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Donald L. Corbin, Chief Judge.
This appeal comes to us from Lee County Circuit Court. Appellant, the City of Moro, appeals from a denial of its post-trial motion for prejudgment interest. We affirm.
Appellant filed suit against appellees, Cline-Frazier, Inc., an engineering firm, and Billy Cline, individually, alleging breach of the warranty of fitness for a particular purpose in the sewer system designed for appellant by appellees. The action was tried to a jury on May 13,1987, and the jury returned a verdict in favor of appellant and against appellee Cline-Frazier, Inc., in the sum of $25,000. Following the trial but prior to entry of judgment on the verdict, appellant filed a motion for prejudgment interest at the rate of 6% per annum from the date of completion of the sewer project to the date of judgment. The trial court denied the motion and entered judgment on the verdict. In its only point for reversal, appellant argues that the trial court erred in failing to grant its motion for prejudgment interest.
Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981). The test for an award of prejudgment interest is whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the causeof action. Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983). If such a method exists, prejudgment interest should be allowed, because one who has the use of another’s money should be justly required to pay interest from the time it should have lawfully been paid. Id. If the damages are not by their nature capable of exact determination, both in time and amount, prejudgment interest is not an item of recovery. Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983).
Appellee was engaged by appellant to perform the “necessary design surveys, accomplish the detailed design of the project, prepare detailed drawings, specifications, and contract documents” in connection with appellant’s project to construct a city sewer system. Appellant alleged, and the jury found, that the plans and specifications submitted by appellee were defective in design. Appellee signed a certificate of completion dated September 10, 1980, stating that the contractor had completed the project substantially in accordance with the approved plans and specifications of appellee. Appellant argues that because the design defects existed at the time appellee issued the certificate of compliance, damages were capable of exact determination by application of engineering principles to undisputed facts. While we agree that the defects may have been capable of exact determination by application of engineering principles, it does not necessarily follow that the amount of damages resulting from the defects was also capable of exact determination by application of the same principles.
Appellant relies extensively on the case of Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981). In Wooten, on conflicting evidence, the jury awarded appellant $2,000 as property damage to his vehicle resulting from appellee’s negligence. Appellant sought prejudgment interest on the property damage award. The supreme court reversed the trial court’s denial of prejudgment interest stating, “Prejudgment interest will always be dependent upon the initial measure of damages being determinable immediately after the loss.” The damage to the automobile was clearly determinable immediately after the accident. In contrast, the case at bar does not involve damage to property. Although the breach occurred upon issuance of the compliance certificate and the defects could have been determined at that point, what damages the city would incur as a result of a defectively designed sewer system were not immediately ascertainable. Conceivably, although technically defective, the system could have caused no actual damage. In fact, the record reflects that no actual damage was brought to appellee’s attention until 1984 although the system had been in place since September 10, 1980.
A review of the more recent decisions reveals that prejudgment interest has been awarded where the facts reveal that the value of the loss was ascertainable on the date the cause of action accrued. In Broadhead v. McEntire, 19 Ark. App. 259, 720 S. W.2d 313 (1986) we remanded the decision with instructions to award prejudgment interest on an award for unjust enrichment based upon checks totaling $3,028 wrongfully retained. Prejudgment interest was also ordered by the appellate court where a real estate broker was awarded damages equal to eight percent commission on the sale of a tract of land for $450,000. Hopper v. Denham, 281 App. 84, 661 S.W.2d 379 (1983). In Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983), we held that the chancellor erred in failing to award prejudgment interest on damages awarded to a principal based upon his agent’s breach of fiduciary duty by securing secret profits for himself of $800.00 per acre in a land sale contract.
In each of the above cases, a method existed for calculation of the value of the loss at the time the cause of action accrued. The same is not true in the case at bar. There was no method to determine what loss, if any, would surface as a result of the breach of warranty. The trial court properly denied prejudgment interest.
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James R. Cooper, Judge.
The appellant in this criminal case was arrested and charged with driving while intoxicated. Following his arrest, he was given a breathalyzer test at the direction of the arresting officer. Afterwards, the appellant asserted his rights to an additional test but did not have the $400.00 in cash necessary to obtain the test at the testing facility to which he was taken pursuant to the policy of the City of Russellville Police Department. The appellant filed a motion to suppress the results of the breathalyzer test on the grounds that he received inadequate assistance in obtaining an additional test. After the circuit court denied the motion, the appellant entered a conditional plea of guilty pursuant to Ark. R. Crim. P. 24.3. The circuit court accepted that plea and found the appellant guilty. From that decision, comes this appeal.
For reversal, the appellant argues that the circuit court erred by failing to suppress the results of the breath test given at the direction of the arresting officer. We do not address this argument because we lack jurisdiction to hear the appeal.
Pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, a defendant may, with the approval of the court and the consent of the prosecuting attorney, enter a conditional plea of guilty or nolo contendere while reserving the right to review of an adverse determination of a pretrial motion to suppress evi dence. However, in Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989), the Supreme Court held that Rule 24.3(b) does not encompass a mere motion to exclude evidence as inadmissible; instead, suppression of evidence as contemplated by Rule 24.3(b) presupposes that the evidence was illegally obtained. The Jenkins Court directs us to Ark. R. Crim. P. 16.2 for illustrations of illegally obtained evidence, e.g., evidence which was obtained by means of an unlawful search and seizure, by eavesdropping, through an involuntary confession, or through an in court identification based on an unlawful pretrial confrontation. However, the breath test in the case at bar did not result from an unlawful search, seizure, or arrest. Instead, the appellant sought to have it “suppressed” pursuant to Ark. Code Ann. § 5-65-204(e)(2) (Supp. 1991), which provides that a law enforcement officer’s failure to advise and assist a defendant in obtaining an additional test “shall preclude the admission of’ the test taken at the officer’s direction. Clearly, the statute merely sets out conditions affecting the admissibility of the initial test. The Jenkins Court distinguished such questions of admissibility from suppression based on illegality as follows:
Jenkins’ motion in limine to suppress the use of a prior, conviction as evidence is distinguishable from the suppression of evidence contemplated by Rule 24.3(b). A motion to suppress evidence presupposes that the evidence was illegally obtained. Here, we are simply dealing with the admissibility of evidence, rather than “illegally obtained” evidence.
Jenkins, 301 Ark. at 21. Because the question presented in the case at bar is the admission of the results of the breath test and not the suppression of evidence as contemplated by Rule 24.3(b), the pretrial order was not appealable.
Appeal dismissed.
Jennings, C.J., and Rogers, J., agree. | [
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John Mauzy Pittman, Judge.
Arkansas Electric Cooperative Corporation (AECC), a wholesale power supplier to the sixteen member systems that own it, appeals from an order of the Arkansas Public Service Commission (Commission) establishing Rules and Regulations Governing Promotional Practices of Electric and Gas Public Utilities (the rules). We find no error and affirm.
Promotional practices are defined in the rules in part as “any consideration offered by a public utility to any person for the purpose, express or implied, of inducing such person to select or use the service or additional service or to conserve the use of service of such or any utility, or to select or install any appliance or equipment designed to use such or any utility service.” Generally, promotional practices can be categorized as issues of conservation, load building, fuel substitution, and load management.
On November 26,1990, the Commission opened a rulemak-ing docket to review the Commission rules and regulations governing the promotional practices of the utilities, which had been approved by the Commission on July 1, 1971, but which apparently had never been enforced. The Commission determined the rules “should be reviewed in light of the current technology and conditions existing within the electric and gas utility industry.” All jurisdictional electric and gas utilities were made parties to the docket.
The Commission sought information from the utilities regarding their marketing and promotional practices and invited them to file comments and reply comments regarding modifications to the existing rules or other regulatory action that might be appropriate. Comments were filed by twenty-six utilities, the Office of the Attorney General (AG), the Arkansas Energy Office, Arkansas Electric Energy Consumers (AEEC), Arkansas Gas Consumers (AGC), the Arkansas Chapter of the Sierra Club, and the Staff of the Commission (Staff). These comments were entered into the record at a hearing on May 7 and 8, 1991, and the parties were allowed to make oral comments and ask clarifying questions as to the other parties’ prefiled comments.
In Order No. 12, filed November 7, 1991, the Commission proposed revised rules in response to the comments filed by the parties. The parties again filed comments and reply comments. At a hearing on December 18, 1991, the Commission heard comments from private citizens and allowed the parties to make additional comments and ask questions of the other parties. Final promotional practices rules were attached to Order No. 13, filed on May 8, 1992.
AECC relies on four points for reversal: (1) the Commission acted without authority or jurisdiction in issuing the promotional practices rules; (2) Order No. 13 violates the requirements of Ark. Code Ann. § 23-2-421 (a), which requires that the Commission’s order be in sufficient detail to enable any court in which any action of the Commission is involved to determine the controverted question presented by the proceeding; (3) the Commission adopted standards to govern promotional practices without proper notice and hearing as required by Ark. Code Ann. § 23-2-305; and (4) the promotional practices rules do not meet the requirement of reasonableness contained in Ark. Code Ann. § 23-2-305.
Briefs in support of the Commission’s ruling were filed by the Commission; AEEC and AGC jointly (collectively, the Consumers); and Arkansas Louisiana Gas Company (ALG), Arkansas Western Gas Company, and Arkansas Oklahoma Gas Corporation jointly (collectively, the Gas Companies.)
AECC argues first that the Commission does not have the jurisdiction or authority to promulgate rules regulating the promotional practices of utilities. The other parties respond that the Commission generally has the duty to protect the public interest and specifically has ample statutory authority to promulgate the rules.
Based on our review of the Arkansas statutes pertaining to the regulation of public utilities, we find that the Commission possesses the authority to regulate the promotional practices of Arkansas electric and gas utilities. First, the Commission is allowed, after hearing and upon notice, to make or amend reasonable rules pertaining to the operation or service of public utilities. Ark. Code Ann. § 23-2-305 (1987). Other statutes also give the Commission the power to regulate the operations of and the service provided by public utilities. See Ark. Code Ann. § 23-2-301 (1987), which provides:
The commission is vested with the power and jurisdiction, and it is made its duty, to supervise and regulate every public utility defined in § 23-1-101 and to do all things, whether specifically designated in this act, that may be necessary or expedient in the exercise of such power and jurisdiction, or in the discharge of its duty.
See also Ark. Code Ann. §§ 23-2-302 and 23-2-304 (1987).
The evidence before the Commission demonstrated that without regulation, customers throughout the state could see great disparities in services and promotional benefits. Such unreasonable advantages or prejudices are prohibited by Ark. Code Ann. § 23-3-114(a)(1) (1987), which provides: “As to rates or services, no public utility shall make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage.”
We also find support for the rules in the Energy Conservation Endorsement Act of 1977, codified at Ark. Code Ann. §§ 23-3-401 — 23-3-405. Section 23-3-405 provides in part:
(a)(1) The Arkansas Public Service Commission is authorized to propose, develop, solicit, approve, require, implement, and monitor measures by utility companies which cause the companies to incur costs of service and investments which conserve, as well as distribute, electri cal energy and existing supplies of natural gas, oil, and other fuels.
(2) After proper notice and hearings, the programs and measures may be approved and ordered into effect by the commission if it determines they will be beneficial to the ratepayers of such utilities and to the utilities themselves.
Included in the definition of energy conservation measures are “[programs which result in the improvement of load factors, contribute to reductions in peak power demands, and promote efficient load management.” Ark. Code Ann. § 23-3-403. Conservation is considered a proper utility function in § 23-3-404, as follows:
It shall be considered a proper and essential function of public utilities regulated by the Arkansas Public Service Commission to engage in energy conservation programs, projects, and practices which conserve, as well as distribute, electrical energy and supplies of natural gas, oil, and other fuels.
AECC argues that in adopting the promotional practices rules, the Commission has exceeded its authority and the legislature’s intent in enacting the Energy Conservation Endorsement Act. We do not agree. Clearly, the legislature has given the Commission the responsibility of protecting the public interest in energy conservation and the authority to investigate and either approve or disapprove utility actions in the conservation or distribution of energy.
Statutes must be construed together and given their plain meanings. Phillips v. City of Eureka Springs, 312 Ark. 57, 847 S.W.2d 21 (1993). The plain meaning of the foregoing statutes is that the Commission possesses authority to regulate the promotional practices of the jurisdictional public utilities.
All the parties to this docket, including AECC, stated in their comments that they believe the public interest requires some regulation of utility promotional practices. Don Smith, a former commissioner of the Federal Energy Regulatory Commission and the Arkansas Public Service Commission, in comments filed for the Gas Companies, stated:
One of the fundamental tenets of utility regulation requires that customers within the same service class be treated in the same way. Discriminatory application of discounts favors new and high-use customers. These discounts are essentially funded by the utilities’ existing and low use customers. Furthermore, the unregulated use of promotional practices by utilities also can cause severe pricing and service discrimination among customers: entire subdivisions can be denied access to one utility service directly as a result of the other utility’s actions to prevent the extension of the competing utility’s service into that area. To minimize the discriminatory effect of promotional practices, the Commission must ensure that they are offered in a nondiscriminatory manner even when there is no other utility directly competing for a particular market.
In its comments, ALG stated:
A review of state commission regulations reveals that utility promotional practices or advertising by utilities are limited or regulated in 30 states, including Arkansas. Seventeen state regulatory commissions in addition to this one specifically regulate or prohibit certain types of utility promotional practices. . . . [I]t is a commonly-held regulatory opinion that utility promotional practices should not go un-checked, but should instead be subjected to clearly defined standards of permissible and non-permissible conduct.
AP&L stated in its comments: “[Promotional practices are generally regulated to assure that they are consistent with the public interest. . . . The issue is not whether promotional practices should be regulated, but how they should be regulated.”
The public interest in energy conservation was recognized by the United States Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). In that case, the Supreme Court found that the Public Service Commission’s complete ban of promotional advertising (advertising that promoted an increase in electric demand either on-peak or off-peak) by electric utilities violated the First Amendment rights of commercial speech. The Court recognized that the state’s interest in energy conservation is clearly substantial, 447 U.S. at 568, but found that no showing had been made that a more limited restriction on the content of promotional advertising would not serve adequately the state’s interest. 447 U.S. at 570. The court also stated: “We accept without reservation the argument that conservation, as well as the development of alternative energy sources, is an imperative national goal. Administrative bodies empowered to regulate electric utilities have the authority — and indeed the duty — to take appropriate action to further this goal.” 447 U.S. at 571. In a footnote, the Court suggested that the commission might consider a system of previewing advertising campaigns to insure that they will not defeat conservation policy. Id.
In its comments, AP&L noted the following:
Clearly, a significant portion of the utility industry is actively pursuing programs to encourage efficient energy use, to move load off-peak, and to conserve energy. While these programs are often offered under various headings, such as Conservation and Load Management or Demand-Side Management, generally they include programs similar to those being considered in this proceeding.
AECC relies on the Oklahoma Supreme Court’s ruling in State v. Oklahoma Gas and Electric Co., 536 P.2d 887 (Okla. 1975), to support an argument that the Commission’s “blanket prohibition” is beyond the authority or jurisdiction of the Commission and impermissibly infringes on the management function of the public utilities. In that case, the court addressed an order prohibiting all promotional practices and concluded that the prohibition was invalid because the practices were prohibited without regard to whether they were reasonably calculated to benefit all consumers of the utility’s service. 536 P.2d at 896. The court stated: “We conclude promotional practices which are reasonably calculated to improve the utilities load factor and benefit all consumers by reducing the average unit cost of energy are not unjustly discriminatory, and prohibitions against such practices constitute an invasion of the discretion reserved to corporate management.” Id.
In the case at bar, there is no blanket prohibition of promotional practices. Section 3 of the rules prohibits a public utility from engaging in promotional practices without first obtaining the approval of the Commission. Section 5 instructs the utilities on the procedure for filing proposed promotional practices and advises that the Commission will conduct an investigation of any proposed promotional practice and make a determination of whether it is in the public interest. Clearly, the rules are not a “blanket prohibition” and specifically provide for the type of public interest determination that the Oklahoma court approved.
The regulation of utilities is one of the most important of the functions traditionally associated with the police power of the states. Arkansas Elec. Coop. v. Arkansas Pub. Serv. Comm’n, 461 U.S. 375, 377 (1983). As demonstrated by the statutes discussed above, the Arkansas General Assembly has delegated broad regulatory and supervisory powers to the Commission. Under this comprehensive regulatory scheme, the public utility is granted monopoly status. As a quid pro quo for its monopoly status, a public service utility is subject to vigilant and continuous regulation. Arizona Pub. Serv. Co. v. Arizona Corp. Comm’n, 155 Ariz. 263, 746 P.2d 4 (Ct. App. 1987), rev’d in part on other grounds, 760 P.2d 532 (1988). The regulation of promotional practices is not an unreasonable interference with management discretion. Far from seeking to expand its traditional regulatory authority or to unlawfully usurp AECC’s management prerogative, the Commission is signaling its intent to carefully scrutinize the utilities’ promotional practices and to exercise its authority to achieve lawful regulatory goals. Such action is clearly within the full regulatory authority of the Commission.
AECC next contends that the Commission erred in finding that the proposed promotional practices must benefit ratepayers in the aggregate and erred in requiring prior approval of any promotional practice. We conclude that the Commission was justified in establishing these requirements. In its comments, the AG addressed these issues as follows:
[T]he requirement that the proposed promotional practice must benefit ratepayers in the aggregate, rather than just the ratepayers of the proposing utility, allows the Commission to fulfill its obligation to protect the overall public interest rather than just one segment of the public. The Commission cannot look merely to the interests of the customers of one company; the ratepayers of competing utilities are equally entitled to this Commission’s consideration and protection. A failure to examine a practice’s impact on other utility’s ratepayers exposes those ratepayers to the potential of unreasonable discrimination, i.e. their costs may increase as a result of a promotional practice from which they receive no benefit.
. . . Proper application of these standards should ensure that abusive business practices such as those described at hearing by public witnesses ... do not recur. It is simply not a “just and reasonable” business practice to mislead customers as to the potential effect of a new appliance on their energy bills or to install an “efficient” appliance in a house for which it is not suited. Further, the requirement that the promotional practice be approved by the Commission before it is implemented will allow the Commission to assure itself and the public that the proposed practice is designed to prevent such abusive activities.
AECC also contends that the Commission lacked the authority to regulate competition among the utilities. It argues that the language contained in § 23-3-114(a)(1) (i.e., “no public utility shall make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage”) simply requires that a public utility treat its customers fairly with regard to rates and services and does not give the Commission jurisdiction over competitive practices among competing utilities. In response, the Commission contends that it has not sought to broadly regulate competition between utilities in all guises and manners but to consider those factors relating to conservation and unreasonable prejudice. The Commission further argues that the words “any person in § 23-3-114 mean precisely what they state and do not mean “its ratepayers” as AECC argues.
Furthermore, testimony at the hearings supports the proposition that regulation of promotional practices may promote healthy competition among the utilities. Mike Bohrofen, manager of marketing for Oklahoma Gas and Electric Company, stated that “we feel programs that are regulated, cost based, fair and reviewed by this Commission can create competition.” The AG commented that “regulation of promotional practices is necessary both to prohibit unreasonable discriminatory practices and to promote fair and vigorous competition.” It went on to explain:
Because the promotional practices of one utility may affect the customers of another, the Commission should scrutinize all proposed promotional programs to guard against predatory pricing and other mechanisms that may result in undue discrimination. Predatory pricing occurs when a company prices a good or service lower than the cost of that good or service, with the intention of driving a competitor out of business or gaining a portion of a competitor’s market share. A particularly egregious example of predatory pricing is a program offering free electric water heaters to replace existing gas water heaters. . . . To the extent that such a program successfully induces load-switching from gas to electric service, remaining gas customers are disadvantaged by the resulting need to spread the gas utility’s fixed costs over a smaller customer base.
Other courts that have considered the necessity of regulation of promotional practices have found that there are means other than promotional practices to promote sound competition among utilities — efficiency of management, technological improvements, superiority of service, and economy of costs. See East Ohio Gas Co. v. Public Util. Comm’n of Ohio, 437 N.E.2d 594, 595 (Ohio 1982), and Application of Hawaiian Elec. Co., 535 P.2d 1102, 1108 (Hawaii 1975).
AECC also argues that under the Arkansas Supreme Court’s decision in Associated Mechanical Contractors of Arkansas v. Arkansas Louisiana Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955), the merchandising of appliances and equipment does not constitute public utility business and is not subject to regulation by the Commission. In that case, the court found that the Commission did not have the authority to regulate the non-public utility business of a corporation. 225 Ark. at 427-28, 283 S.W.2d at 126. Here, however, the Commission is not attempting to regulate any non-public activities of the utilities. In Section 2(g)(2) of the rules, the Commission exempts from regulation the merchandising or financing of appliances or equipment if such activity is operated as a non-utility business that is completely segregated from the utility’s public utility activities.
AECC’s second point for reversal is that Order No. 13 violates the requirements of Ark. Code Ann. § 23-2-421 (a), which provides in pertinent part that “[t]he Arkansas Public Service Commission’s decision shall be in sufficient detail to enable any court in which any action of the commission is involved to determine the controverted question presented by the proceeding.” AECC argues that “Order No. 13 is defective because the Commission failed to set forth in Order No. 13, in sufficient detail, the objections presented at the hearing of December 18, 1991, in opposition to the adoption of the Rules, and the evidence the Commission found substantial enough to controvert these objections.”
AECC refers this court to the supreme court’s ruling in Arkansas Public Service Commission v. Continental Telephone Co. of Arkansas, 262 Ark. 821, 561. S.W.2d 645 (1978), in support of its argument. In that case, the court remanded the case to the Commission for specific findings of fact to show how the Commission arrived at its decision denying the utility a rate increase. The court stated: “ [T]he Commission’s findings must be in sufficient detail to enable the courts to make an adequate and meaningful review. Courts cannot perform the reviewing function assigned to them in the absence of adequate and complete findings by the commission on all essential elements pertinent to determination of a fair return.” 262 Ark. at 829, 561 S.W.2d at 649.
The Commission’s findings in Order No. 13 in the case at bar are as follows:
The parties to this proceeding have developed a very thorough and extensive record. Based upon that record the Commission has endeavored, via the attached final promotional practices rules, to address the concerns expressed by the parties to this proceeding as well as the general public, while attempting to fairly balance the interest of the gas utilities, the electric utilities and the ratepayers they serve. The Commission believes that the final promotional practices rules attached hereto represent a fair and reasonable balance of those interests and are, therefore, in the overall public interest.
Moreover, it is appropriate for the court to consider the public policy section of the rules attached to Order No. 13, as well as the rules themselves, in reviewing the sufficiency of this order. “It is sufficient to satisfy the requirement of findings of fact that the order or determination incorporates by reference a report which contains all of the essential findings of fact. . . .” 73A C.J.S. Public Administrative Law and Procedure § 144 (1983).
In the public policy section of the rules, the Commission discussed why the Commission believes the rules are in the public interest and are based on its statutory authority:
In light of events which have occurred subsequent to the issuance of the 1971 Rules and Regulations Governing Promotional Practices of Electric and Gas Public Utilities (1971 Rules), competition among electric and gas utilities must now exist in an era of energy conservation and integrated resource planning. As these utilities seek to maximize the use of existing generating plants and reserves, to use wisely the natural resources that provide their fuel, and, thus, to encourage their customers to conserve energy where possible, the Commission has determined that promotional practices must benefit ratepayers in the aggregate or not be engaged in at all.
The promotion of goods or services offered the public is an inherent and important part of the economy of the State and Nation. However, any electric and gas utilities desiring to engage in promotional practices have the burden of proving that the proposed practices are not unduly discriminatory or anticompetitive, and are in the public interest because they serve the purposes of energy conservation pursuant to the authority granted the Commission in the Energy Conservation Endorsement Act of 1977, Ark. Code Ann. § 23-3-401 et seq. The laws of this State require the rates of a public utility to be just and reasonable and in conformity with the rules, regulations and orders of the Commission. The laws prohibit a public utility from, directly or indirectly, demanding or receiving from anyone a greater or lesser rate for service than that specified in its tariff. The laws prohibit, with respect to rates and services, the granting of unreasonable preferences or advantages to anyone, or subjecting anyone to unreasonable prejudice or disadvantage. The laws grant the Commission the authority to encourage energy conservation. Accordingly, the Commission declares that the adoption and enforcement of these revised Rules and Regulations are in the public interest because they seek to advance the welfare of all consumers by prohibiting all promotional practices unless approval by the Commission has been granted after investigation and hearing.
It is also important to note that the instant case involves rulemaking and these rules can be distinguished from the usual order issued by an agency.
[E]xcept where otherwise required by statute, it is only where an administrative matter is of an inherently judicial or quasi-judicial nature, or where an agency or officer is acting in a quasi-judicial capacity that findings of fact are necessary. So, findings are not necessary where the agency proceeding is not essentially adjudicatory, or where a legislative function is being performed by an agency, except where the legislature requires such findings to be made.
73A C.J.S. Public Administrative Law and Procedure § 143 (1983).
While we do not determine that findings of fact are not required when the Commission is acting in its legislative capacity, it is appropriate for this court to assess the sufficiency of the findings with the non-adversarial nature and information gathering procedure of the rulemaking process in mind. Here, the Commission clearly stated why the regulation of promotional practices is required by Arkansas statutes and the Commission’s duty to protect the public interest. The Commission discussed specific statutes and the specific requirements of those statutes. In addition, the Commission explained its finding that the rules will assure compliance with these statutes in this “era of energy conservation and integrated resource planning.” The Commission was not required to recite the comments of the parties in its fact findings, especially in light of the fact that all parties agreed in documents and comments presented to the Commission that the public interest requires the regulation of promotional practices. The basis for the Commission’s decision in this regard is clear.
For its third point for reversal, AECC contends that the Commission adopted standards to govern promotional practices without proper notice and hearing as required by Ark. Code Ann. § 23-2-305 (1987), which states:
The commission is empowered, after hearing and upon notice, to make and, from time to time, in like manner, to alter or amend such reasonable rules pertaining to the operation, accounting, service, and rates of public utilities and of the practice and procedure governing all investigations by and hearings and proceedings before the commission as it may deem proper and not inconsistent with this act.
AECC argues that by not including references to the Participant Test, the Ratepayer Impact Measure Test, the Utility Cost Test, and the California Manual in Order No. 12, filed November 7, 1991, the Commission failed to provide to the parties and the public the notice required by § 23-2-305 and the Commission Rules of Practice and Procedure, Rule 12.03. We disagree.
In comments filed on March 6,1991, Don Smith, testifying for the Gas Companies, recommended four tests to be used in evaluating promotional practices:
1. Total-Resource Cost Test — analyzes most demand-side management programs. The test focuses on the total costs of the program, including both the participants’ and the utility’s costs.
2. Participant Test — measures the quantifiable benefits and costs to the customer participating in a promotional program.
3. Ratepayer Impact Measure Test — analyzes what happens to ratepayers’ bills due to changes in utility revenues and operating costs resulting from a program.
4. Utility Cost Test — measures the net costs of a program as a resource option based on narrowly defined costs incurred by a utility, but excluding net costs incurred by a program participant.
ALG also filed comments on that date in which the four tests were described and recommended for use by the Commission to evaluate the practices. Each party had a representative at the hearing on May 7 and 8,1991, and the other parties were given an opportunity to ask questions about the comments.
Attached to Order No. 12 were proposed rules, which provided that the Total Resource Cost Test would be the criterion for determining whether a promotional practice is in the public interest. Comments were filed again prior to the second hearing on December 18, 1991. On December 3, 1991, Staff filed comments recommending that the Commission use all of the four tests that had been recommended. In their reply comments, AP&L noted that there was general agreement among the parties, as evidenced by their comments, that the Total Resource Cost Test should not be the sole criterion.
In the rules issued with Order No. 13, Section 4 stated in pertinent part that:
The following standards shall govern the utility’s promotional practices:
(a) A promotional practice must be in the public interest. In determining whether a practice is in the public interest, the Commission shall consider the following:
(1) Cost efficiency of the proposed promotional practice using the Total Resource Cost Test, Participant Test, and Utility Cost Test; and
(2) Ratepayer impact of the proposed promotional practices using the Ratepayer Impact Measure Test.
The Commission provided a summary of the tests in an appendix to the rules and identified them as coming from the Standard Practice Manual. The Commission noted that the manual “offers guidelines to be used to allow the appropriate match of specific promotional practices with the various tests.” The Commission also stated that a copy of the California Manual would be provided by the Secretary of the Commission upon request. In response to a petition filed by AP&L, one subsection of a rule was revised to clarify the application of the tests and was set out in Order No. 14.
The requirement of notice in a rulemaking is discussed in 73 C.J.S. Public Administrative Law and Procedure, § 105 (1983) as follows:
Notice is sufficient if it affords interested parties a reasonable opportunity to participate in the rule-making process by providing a description of the subjects and issues involved. Accordingly, precise notice of each aspect of the regulations eventually adopted is not required to be given. Modification of a proposed rule does not render the notice defective where adequate notice of the general subject of the rule making was known and it ought to have been anticipated that the rule might be modified in the light of developments during the rule-making process.
AECC had numerous opportunities to question, comment on, or object to the tests proposed by the various parties to the docket. The Commission responded affirmatively to the recommendation that the four tests be adopted, and we are not aware of any requirement of new notice whenever an agency responsibly adopts the suggestions of interested parties. All information and recommendations were made available to the parties and the public well in advance of the issuance of the final rules on May 8,1992. Thus, both the requirements and the spirit of Ark. Code Ann. § 23-2-305 were complied with.
AECC’s final point for reversal is that the rules do not meet the requirement of reasonableness, as found in Ark. Code Ann. § 23-2-305 (1987). That statute is set out in the discussion of the third point for reversal and empowers the Commission to make and amend reasonable rules pertaining to the operation and service of public utilities. In this argument, AECC does not challenge the need for the rules but simply states that the rules result in excessive bureaucratic overburdening and redundant requirements of unnecessary and costly filings, are so unreasonable as to eliminate many energy conservation programs, will cause unnecessary delays in the implementaion of programs, and will require the utilities to expand their staffs.
In Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 18 Ark. App. 260, 715 S.W.2d 451 (1986), this court stated:
[J]udicial review is not a mere formality, and it is our task to determine whether there has been an arbitrary or unwarranted abuse of the Commission’s discretion, although considerable judicial restraint should be observed in finding such an abuse. It is not for this court to advise the Commission how to discharge its functions in arriving at findings of fact or in exercising its discretion. The question of reasonableness of the actions of the Commission relates only to its findings of fact and to a determination of whether its actions were arbitrary.
18 Ark. App. at 265, 715 S.W.2d at 453.
All parties to this docket, however, stated that the public interest requires some regulation of utility promotional practices. The voluminous record in this case is replete with testimony supporting the need for regulation of utility promotional practices. The final rules are based on the Commission’s proposed rules and have been modified, improved, and clarified in response to the many comments received. For instance, the final rules incorporated changes regarding the advertising of promotional practices, the regulation of non-utility business, the standard for determining the public interest of the practices, the burden of proof in hearings on promotional practices, and added a section providing for a period of transition from the 1971 rules to the newly-adopted rules. The Commission obviously reviewed the extensive record in this case, and the evaluation of the testimony was for the Commission, not the courts. Southwestern Bell Telephone Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 568, 593 S.W.2d 434, 445-46 (1980).
AECC argues, without explanation, that the rules will eliminate energy conservation programs. The comments presented by the parties and the Commission’s findings in the public policy section of the rules, however, support the contention that the rules will further the cause of energy conservation. Although AECC argues that the rules will cause unnecessary delays in the implementation of promotional practices, Section 6 of the rules provides for implementation of the rules within thirty days of the filing unless the Commission issues an order suspending the proposed rules pending further investigation. This section also limits the time of suspension. AECC provides no support for its contention that the rules will require utilities to expand their staffs.
In sum, we find no arbitrary action or manifest abuse of the Commission’s discretion, and the rules are not invalid simply because they may work a hardship or create inconveniences.
Affirmed.
Cooper, J., not participating.
Written comments were filed numerous times in this docket and some witnesses testified at both hearings. In this discussion, comments and reply comments are designated as “comments” and are simply identified by the sponsoring utility unless the author has been specifically identified.
To indicate the extent of such practices, we note that AP&L estimated it spent approximately $608,000.00 in 1990 on promotional practices, as defined by the 1971 rules. During 1990, AECC expended, according to AECC, $1,273,334.00 for incentive payments for the installation of energy efficient heat pumps and electric water heaters that meet specified efficiency requirements. AECC also spent $447,679.00 to advertise the incentive programs.
In the case at bar, the proposed rules included a ban on promotional advertising; however, in response to the responsive comments, the ban was not included in the final rules. The final rules require only that “[a]ll advertising associated with a promotional practice shall be truthful and not misleading or deceptive.”
“ ‘Rulemaking’ or legislation on the administrative level, is the function of laying down general regulations relating to classes of persons and situations as distinguished from orders that apply to named persons or to specific situations, the latter being adjudicatory in nature.” 1 Am. Jur. 2d Administrative Law § 164 (1962).
The rules and regulations of a public administrative agency have been distinguished from the orders or determinations of such an agency in that the latter are actions in which there is more of the judicial function and which deal with a particular present situation, or which apply to named persons, while the former are actions in which the legislative element predominates. 73 C.J.S. Public Administrative Law and Procedure, Rules and Regulations § 87 (1983). | [
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John B. Robbins, Judge.
This is an appeal from a judgment of the Saline County Probate Court which denied a petition seeking to require the beneficiary of decedent’s life insurance to account for the insurance proceeds as an asset of the decedent’s probate estate. We find no error and affirm.
Alvin Leland Riddell died testate on February 19, 1991, survived by his wife, Verna Jean Riddell (who, as executrix, is appellee), and three adult children from an earlier marriage: Sharon Kay Riddell Acklin, Ronald Leland Riddell, and Douglas Allen Riddell (appellants). The decedent was a retired employee of Southwestern Bell Telephone Company through which he had $42,000.00 of group life insurance.
The decedent’s will was prepared by an attorney and was executed by the decedent in the attorney’s office shortly after 11:00 a.m. on Friday, March 25, 1988. The will nominated decedent’s wife, Verna Jean Riddell, as executrix, and directed her to pay all claims of his last illness, funeral expenses, and other debts that he owed at the time of his death from the group life insurance proceeds. The will directed that the life insurance proceeds remaining after payment of these debts be distributed one-fourth each to his surviving wife, Verna Jean Riddell, his daughter, Sharon Kay Riddell Acklin, his son, Ronald Leland Riddell, and to Sharon Kay Riddell Acklin as trustee for Douglas Allen Riddell, decedent’s disabled son.
Within an hour of executing his will, the decedent drove to the office of Roy Bishop, Mayor of Bryant, Arkansas, where he signed a beneficiary designation form for his group life insurance policy at Southwestern Bell. Bishop witnessed his signature on the form. This beneficiary designation form listed Verna Jean Riddell as the only person under the category “Primary Beneficiaries,” and Sharon Kay Riddell Acklin, Ronald Leland Riddell, and Douglas Allen Riddell under the category “Contingent Beneficiaries.” On April 4, 1988, the beneficiary designation form was filed with Southwestern Bell. On March 26 and 27, 1988, the decedent completed seven (7) separate hand-written lists which directed the disposition of items of personal property, “auto parts and tools,” which he owned, in accordance with the provisions of his will.
After the decedent’s death, Verna Jean Riddell petitioned the Saline County Probate Court which admitted decedent’s will to probate and appointed her as executrix. She applied for the group life insurance proceeds as the designated beneficiary and received $42,000.00. She did not account for these proceeds as an asset of the estate in her probate inventory.
The probate estate was insolvent, i.e., there were insufficient assets in the probate estate to pay the decedent’s debts, administrative expenses and widow’s allowances. Appellee petitioned for authority to sell the miscellaneous items of tools and equipment valued at $1,393.00 at private sale to provide funds to pay allowances to herself as surviving spouse and to apply toward the administrative expenses of the estate.
The appellants filed an objection and cross-petitioned for a partial accounting and distribution of property. They claimed that appellee received the $42,000.00 in group life insurance proceeds in her representative capacity, as Executrix. They contended that the decedent’s will controlled the disposition of the insurance proceeds and that Sharon Kay Riddell Acklin and Ronald Leland Riddell were entitled to receive the items of personal property devised to them in the respective hand-written lists left by their father, and objected to those items being sold at private sale.
When these matters were presented to the court at hearing, appellee maintained that the provisions of the beneficiary designation form were clear and unambiguous, and objected to the introduction of any extrinsic or parol evidence as to the decedent’s intent regarding the disposition of his life insurance proceeds. The appellants maintained that a latent ambiguity existed as between the dispositive terms of the decedent’s will and the beneficiary designation form and that parol and extrinsic evidence was admissible to establish the decedent’s true testamentary intent regarding the disposition of the life insurance proceeds. The trial court sustained appellee’s objection to the appellants’ attempt to introduce parol and extrinsic evidence on the question of the decedent’s testamentary intent regarding the disposition of the group life insurance proceeds. The court, however, allowed appellants to proffer the parol and extrinsic evidence.
On April 6, 1991, the trial court entered an order holding that the terms of the decedent’s will took effect at his death, not at the time it was executed, and that there was no ambiguity between the terms of the decedent’s will and the beneficiary designation form. The court found that the decedent determined, nearly three years prior to his death, how he wanted to dispose of his insurance proceeds and this was after he executed his will. It held that the decedent’s group life insurance proceeds were not part of the decedent’s estate and belonged to Verna Jean Riddell. The court further ordered that decedent’s miscellaneous personal property be sold and the proceeds applied to the expenses of the estate.
On appeal, appellants argue that the probate judge erred in refusing to allow parol and extrinsic evidence to determine the decedent’s actual intent for the disposition of his group life insurance proceeds and in refusing to find that decedent’s will superseded the beneficiary designation form.
Admittedly, the will and the beneficiary form are contradictory. However, when construing a testamentary document to arrive at the testator’s intention, one does not look at the intention that existed in the testator’s mind at the time of the execution, but that which is expressed by the language of the instrument. Mills Heirs v. Wilie, 250 Ark. 703, 466 S.W.2d 937 (1971). A testator’s intention should be ascertained from the instrument itself and given its expressed intent. Ware v. Green, 286 Ark. 268, 691 S.W.2d 167 (1985). Parol evidence is admissible only for the purposes of showing the meaning of the words used in the will when they are ambiguous, and not to show what the testator intended as distinguished from his expressed words. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1967). When one expresses his inteniion in a written instrument in clear and unambiguous language, it is our duty to construe the written agreement according to the plain meaning of the language employed. C. & A. Constr. Co. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974). When the decedent designated his wife as primary beneficiary and his children as secondary beneficiaries on the beneficiary designation form, he clearly indicated his intention that any interest his children might have in the proceeds of the insurance was subordinate to the interest of his wife. Since the beneficiary designation form was not ambiguous, parol and extrinsic evidence was inadmissible to alter the decedent’s expressed intent. Newman v. First Nat’l. Bank, Harrison, 285 Ark. 52, 685 S.W.2d 147 (1985). This court cannot rewrite the beneficiary designation form and cannot engage in conjecture or speculation. The trial judge did not err in refusing to admit extrinsic evidence to vary the terms of the beneficiary designation form.
Appellants argue that the decedent’s will and beneficiary designation form must be considered together in order to determine the testamentary intent of the decedent, and that his intention as expressed in his will supersedes the beneficiary designation form. Appellee submits that the provision in the beneficiary designation form naming the decedent’s wife as primary beneficiary controls because the form was executed after the execution of the will and, therefore, constituted the decedent’s last expression on the subject. The probate judge relied strictly upon the terms of the beneficiary designation form which by its expressed terms made a disposition of the life insurance proceeds that was different from the disposition made in the decedent’s will. The judge found that the terms of the beneficiary designation form controlled because it was executed after the decedent executed his will.
This is not an action in chancery seeking reformation of the beneficiary designation form. However, even if appellants had done so, the only conceivable basis to support a reformation would be on the basis of mistake. However, the only party to this insurance contract who may have been mistaken was the decedent. There was not even a suggestion within the proof, admitted or proffered, that the insurance company was mistaken, nor that the insurance company or any beneficiary induced a mistaken belief on the part of the decedent. Courts may reform written instruments only where there has been a mutual mistake of fact, or where there has been a mistake by one of the parties accompanied by fraud or other inequitable conduct by the remaining party. Turney v. Roberts, 255 Ark. 503, 501 S.W.2d 601 (1973).
Appellants argue that since the beneficiary designation form was signed within an hour of the will’s execution, the general rule of law in Arkansas that a beneficiary designation may be changed by a later executed will should apply. Appellants cite as authority for such general rule Allen v. First National Bank of Fort Smith, 261 Ark. 230, 547 S.W.2d 118 (1977); Pedron v. Olds, 193 Ark. 1026, 105 S.W.2d 70 (1937); and Eickelkamp v. Carl, 183 Ark. 1155, 104 S.W.2d 814 (1937). While these cases and Clements v. Neblett, 237 Ark. 340, 372 S.W.2d 816 (1963) recognize that a change of beneficiary can be accomplished by will, it appears that apart from the situation where the policy’s designated beneficiary predeceased the insured, Arkansas and Arizona constitute the small minority of states which so hold. See Doss v. Kalas, 94 Ariz. 247, 383 P.2d 169 (1963); and Wanda Ellen Wakefield, Annotated, Effectiveness of Change of Named Beneficiary of Life or Accident Insurance Policy By Will, 25 A.L.R. 4th 1164 (1992). Furthermore, in each instance where this power to change a beneficiary by will has been recognized, the last beneficiary designation which the insured had made in compliance with the insurance policy provisions, was prior to execution of the will which made a contrary disposition. There has been no case in any jurisdiction where a will has been found to supersede a beneficiary designation form which was executed simultaneously with the will, or subsequent to the will; nor do we think the Arkansas rule should be further extended.
Appellants also obj ected to the appellee’s request to sell the personal effects of the decedent which were left to them and others by the decedent’s hand-written lists left with his will. Appellee requested authority to sell these articles of personal property to pay the statutory allowances and administrative expenses. Appellants contend that the position taken by the appellee regarding the disposition of the decedent’s group life insurance proceeds defeats the estate plan established by the decedent and is totally at odds with the decedent’s stated intent at the time of the execution of both the will and the beneficiary designation form. Arkansas Code Annotated § 28-50-106 (1987) provides the order for the classification and payment of claims. Arkansas Code Annotated § 28-50-113 (1987) provides, in part, that if the estate is insolvent the court shall direct the application of the assets of the estate to the payment of claims of the several classes in accordance with the order of priority set forth in Ark. Code Ann. § 28-50-106. Since we affirm the decision of the probate judge, regarding the life insurance, and the estate is insolvent, we also find that the probate court correctly ordered the estate asserts sold to pay claims and expenses of administration.
We affirm.
Pittman, Mayfield, and Rogers, JJ., dissent. | [
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George K. Cracraft, Judge.
McDonald Equipment Company appeals from a decision of the Arkansas Workers’ Compensation Commission awarding additional benefits to Gerald Turner for an injury which occurred in December of 1984. In reaching its decision, the Commission concluded that the additional disability suffered by the appellee was a “continuation” of the December injury for which the statute of limitations had been tolled under the so-called “latent injury rule.” We conclude that the evidence does not support findings on which to base the application of that rule and remand the case to the Commission for further proceedings on the appellee’s contention on which the Commission made no findings.
Appellee’s original claim was based upon an injury to his back sustained on December 3, 1984. Appellant accepted that injury as compensable and made all payments of compensation due on it in accordance with the act. The last payment was made on April 3,1985. On March 4,1987, more than one year after the last payment of compensation and more than two years after the 1984 injury, appellee filed another claim for benefits, contending that he had sustained a second injury, or reinjured his back, on May 19, 1985, when he slipped and fell while alighting from a truck being operated within the scope of his employment. Appellant contended that appellee’s May 19, 1985, injury was not job-related and, in any event, was a mere recurrence of the earlier injury and now barred by the statute of limitations.
The difference between a mere recurrence and aggravation of preexisting condition was discussed in Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable if the claim is made within the greater of two years after the injury or one year after the date on which compensation was last paid. See Ark. Code Ann. § ll-9-702(b) (1987) (formerly Ark. Stat. Ann. § 81-1318(b) (Repl. 1976)). However, if the second period of disability is the result of a second incident which contributes independently to the injury, the injury is a new one for which the employer becomes liable, and the statute of limitations begins to run anew, even though the prior condition may contribute to a major part of the final condition. Bearden Lumber Co v. Bond, supra.
Appellee testified that, on May 9, 1985, he went to appellant’s place of business as was his duty. He slipped and fell to his knees while alighting from a truck and suffered severe pain to his back for which he sought treatment. There was also testimony that, although appellee returned to work at his old job and worked full time after his December, 1984, injury, the pain from that injury never fully subsided and he continued to complain of it up until the second incident.
The Commission considered the distinction between a mere recurrence and an aggravation of a prior injury to be immaterial. Although neither party contended that the “latent injury rule” applied, the Commission so concluded. It found that appellee had “proved by a preponderance of the credible evidence the occurrence of an incident arising out of his employment on May 19, 1985” (emphasis added), but made no finding on appellee’s contention that that incident was an independent intervening cause contributing to his present disabilities. The Commission concluded that “ [i] t was not until completion of diagnostic testing . . . in 1987 that the full extent and nature of [appellee’s] December 3,1984 injuries was known,” and that the matter fell within the latent injury rule as noted in Woodward v. ITT Higbie Manufacturing Co., 271 Ark. 498, 609 S.W.2d 115 (Ark. App. 1980).
We conclude that the case before us is controlled by the decision of the supreme court in Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983). There, the court reaffirmed its prior decisions under similar circumstances that, “when the substantial character of the injury becomes known, then the claimant must file his claim within a specified period of time, or be barred thereafter by the statute of limitar tions.” Id. 278 Ark. at 187, 644 S.W.2d at 927. Here, appellee knew that he had injured his back in December of 1984. He was informed by his doctor of the nature of his injury and has continued ever since to suffer with pains in his back. The “substantial character” of his injury has not changed but was known from the beginning. Only the severity of appellee’s pain has changed since the second “incident.” We conclude that the Commission’s finding that the appellee’s injury was a latent one is not supported by substantial evidence and must be reversed.
The appellee’s contention was not that his injury was latent but that he had suffered a reinjury or aggravation of his prior injury in the second incident, and he offered all of his lay and some medical testimony tending to establish that fact. The Commission made no finding as to whether the May, 1985, incident was a mere recurrence or an aggravation of a preexisting injury, apparently concluding that it made no difference. We conclude that it does make a difference, as the resolution of that issue will be the deciding factor as to whether appellee’s claim is barred by the statute of limitations. We therefore remand the matter to the Commission for a determination of that issue and further proceedings not inconsistent with this opinion.
Reversed and remanded.
Cooper and Mayfield, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Bradley County Circuit Court. Appellant, Duel Lee Johnson, appeals his conviction of battery in the first degree, a violation of Arkansas Code Annotated Section 5-13-201 (Supp. 1987), and the sentence imposed therefor. We affirm as modified at option of Attorney General.
Appellant was charged by information filed July 23, 1987, with attempted capital felony murder of Warren Police Officer Don Burch by shooting him with a pistol while the officer was in the line of duty. Appellant was tried by a jury on November 18 and 19, 1987, and convicted of the lesser included offense of battery in the first degree. Appellant was sentenced to a term of twenty years in the Arkansas Department of Correction.
For reversal, appellant argues the following points:
I.
THE TRIAL COURT ERRED IN ALLOWING APPELLANT TO BE SENTENCED UNDER BOTH A CRIME WHICH CONTAINED AS AN ELEMENT THE USE OF A DEADLY WEAPON AND UNDER THE FIREARM ENHANCEMENT PROVISION OF THE CRIMINAL CODE.
II.
THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT A CONTINUANCE WHEN THE PROSECUTOR SOUGHT ENHANCEMENT OF THE SENTENCE ON THE DAY OF TRIAL.
III.
ARKANSAS CODE ANNOTATED SECTION 5-4-505 IS UNCONSTITUTIONAL ON ITS FACE AS IT DEPRIVES A DEFENDANT OF HIS RIGHT TO A TRIAL BY JURY ON A QUESTION OF FACT.
IV.
THAT THERE WAS INSUFFICIENT EVIDENCE AT THE TRIAL WITH WHICH TO SUSTAIN A VERDICT OF GUILTY TO THE CHARGE OF BATTERY IN THE FIRST DEGREE. THERE WAS INSUFFICIENT TESTIMONY AND NO EVIDENCE PRESENTED BY THE STATE TO INDICATE THAT THE VICTIM HAD RECEIVED SERIOUS PHYSICAL INJURIES PURSUANT TO THE STATUTORY REQUIREMENTS.
We feel compelled to point out that the above points actually argued by appellant differ substantially from the points relied upon for reversal listed after the statement of the case at the front of his brief. We address below only the points argued.
Because the appellate court must review the sufficiency of the evidence prior to consideration of trial errors, McCraw v. State, 24 Ark. App. 48, 748 S.W.2d 36 (1988), we must first address appellant’s final point.
Appellant challenges the sufficiency of the evidence as to proof that Officer Burch incurred serious physical injury. Arkansas Code Annotated Section 5-13-201 (a)(1) (Supp. 1987) provides that a person commits battery in the first degree if “with the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weaponf.]”
Viewed in the light most favorable to appellee, the evidence discloses that on the evening of July 22,1987, Officer Don Burch was dispatched to Kelly and McCauley Streets in Warren, Arkansas, concerning a disturbance involving appellant and Elizabeth Simpson. Officer Burch testified that when he turned into the driveway, he observed appellant struggling with Ms. Simpson over a double-barrel shotgun. The officer testified that he got out of his car, drew his revolver and ordered appellant to “drop the guns.” Appellant subsequently released the shotgun and a holstered long-barrel revolver to Ms. Simpson. The officer further testified that he then instructed appellant to put his hands on the bed of the truck for handcuffing purposes. Officer Burch stated that he holstered his own revolver and started to handcuff appellant at which time appellant spun around, pressed a handgun to the officer’s stomach and pulled the trigger. The officer related that at the time of the shooting he did not think he would live long enough to make it to the hospital. His testimony further revealed that he was in pain but did not lose consciousness in the ambulance en route to the hospital.
Collectively, the testimony regarding Officer Burch’s injury generally revealed that he was shot by appellant in the upper abdomen at contact range necessitating a hospital stay which included four and one-half days in the intensive care unit. The bullet which struck the officer embedded in the muscle in the back of his heart and the doctors were unable to remove it. Officer Burch was physically unable to work from the date of his injury on July 22, 1987, until October 5, 1987.
Appellant asserts that the above evidence is insufficient to show serious physical injury to the officer absent medical testimony. We disagree. The finder of fact is not required to set aside its common knowledge and may consider the evidence in light of its observations and experiences in the affairs of life. Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985). Serious physical injury is defined as a 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. Ark. Code Ann. § 5-1-102(19) (1987).
In this case, although there was no testimony presented by a doctor describing the technical aspects of the officer’s injury, there was ample other testimony describing the severity of the injury. Testimony was produced that the victim was in pain and anticipated death from a gunshot wound inflicted at point-blank range. The officer was hospitalized for an extended period from the injury which left a bullet permanently embedded behind his heart and was unable to return to work for approximately two and one-half months. There is substantial evidence to support the trier of fact’s finding that serious physical injury was caused which created a substantial risk of death.
Secondly, appellant argues the trial court erred in allowing appellant to be sentenced under both a crime which contained as an element the use of a deadly weapon and under the firearm enhancement provision of the criminal code.
The firearm enhancement statute is set out as follows in Arkansas Code Annotated Section 5-4-505 (1987):
5-4-505. Use of firearm — Sentencing for. felony.
(a) If a defendant is convicted of a felony and the trial court finds that the person so convicted employed a firearm in the course of or in furtherance of the felony, or in immediate flight therefrom, the. maximum permissible sentence otherwise authorized by § 5-4-401 or § 5-4-501 shall be extended by fifteen (15) years.
(b) Subsection (a) of this section shall not apply to a defendant convicted of a felony, an element of which is:
(1) Employing or using, or threatening or attempting to employ or use, a deadly weapon; or
(2) Being armed with a deadly weapon; or
(3) Possessing a deadly weapon; or
(4) Furnishing a deadly weapon; or
(5) Carrying a deadly weapon.
As set out in the previous argument, appellant was convicted of battery in the first degree which includes serious physical injury by means of a “deadly weapon.” With regard to this offense, the jury was instructed as follows:
First degree battery with the use of a firearm is punishable by imprisonment in the Department of Correction for not less than five years nor more than thirty five years, or by fine not exceeding Fifteen Thousand Dollars, or both imprisonment and a fine.
Pursuant to Arkansas Code Annotated Section 5-13-201 (c) (Supp. 1987), battery in the first degree is a Class B felony. For a Class B felony, the sentence shall be not less than five (5) years nor more than twenty (20) years. Ark. Code Ann. § 5-4-401(a)(3) (1987). Thus, in the instant case, the jury instruction setting the maximum thirty-five year sentence for a battery in the first degree conviction incorporated the fifteen year enhancement for use of a firearm allowable under Arkansas Code Annotated Section 5-4-505 (1987).
Because the definition of first degree battery for which appellant was convicted does contain the use of a “deadly weapon” as an element of the offense, we agree with appellant that the court erred in allowing enhancement for this conviction. We are unable to determine the effect of the fifteen year enhancement to the above instruction upon the jury. The twenty year sentence imposed by the jury could have been an effort to give appellant the minimum five year sentence plus the fifteen year enhancement, or possibly the maximum twenty year sentence absent any enhancement.
When an erroneous ruling has nothing to do with the issue of guilt or innocence and relates only to the punishment, it may be corrected by reducing the sentence to the minimum provided by law. Osborne v. State, 237 Ark. 170, 371 S.W.2d 518 (1963) (supplemental opinion granting rehearing); Pittman v. State, 84 Ark. 292, 105 S.W. 874 (1907). Hence, we are of the opinion that the state should have the option of retrying this case upon reversal for the error indicated, or accepting the minimum five year penalty for a battery in the first degree conviction. Therefore, the judgment will be reversed and the cause remanded for a new trial, unless the Attorney General within seventeen days elects to accept a modification of the punishment to the minimum of five years in the Arkansas Department of Correction. See Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972); Osborne, 237 Ark. at 172, 371 S.W.2d at 521-2.
Appellant also argues that the trial court erred in not granting his motion for a continuance when the prosecutor sought enhancement on the day of trial. The court denied appellant’s motion stating that allowing the amendment to enhance a possible penalty for the crime charged would not change appellant’s defense.
A trial court has broad discretion in determining whether to grant a continuance, and the trial court’s refusal to grant a continuance will not be reversed absent a clear abuse of discretion amounting to a denial of justice. Beck v. State, 12 Ark. App. 341, 676 S.W.2d 740 (1984). It is also established that in the absence of a showing of prejudice, we cannot say the refusal to grant a continuance is error. Id. The burden is on appellant to demonstrate that the trial court abused its discretion in denying a continuance. Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983).
Here, the information initially filed against appellant accused him of attempting to kill Warren Police Officer Don Burch by “shooting him with a pistol.” Therefore, appellant had notice that the state intended to allege use of a firearm in the charges against him yet he failed to demonstrate any prejudice resulting from enhancement based upon allegations which were contained in the original information. Our review of the proceedings in the present case leads us to the conclusion that appellant has not demonstrated that the trial court abused its discretion or that he was prejudiced by the denial of a continuance.
Lastly, appellant argues that the Arkansas Code Annotated Section 5-4-505 (1987) is unconstitutional on its face as it deprives a defendant of his right to a trial by jury on a question of fact.
Appellee maintains that the constitutionality of the enhancement statute was not presented to the trial court, and the record supports this contention. We find no mention of this argument in the proceeding below. In fact, appellant’s attorney makes the following concession in his brief:
Appellant’s trial counsel (who is not his counsel on appeal) made repeated objections to the use of the enhancement provision, which appellant must concede are not completely specific as to the issue of the constitutionality of the statute in question.
An objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review. Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981). Here, appellant’s objections to the use of the enhancement statute were made upon the basis of surprise, not upon the issue of its constitutionality. We conclude the constitutional issue was not presented below and, therefore, cannot be raised on appeal. Morris v. Garmon, 285 Ark. 259, 686 S.W.2d 396 (1985).
Affirmed as modified at option of Attorney General.
Cracraft and Rogers, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Billy D. Tallant, was found guilty by a jury of negligent homicide, a class D felony, and driving while intoxicated, first offense. For the negligent homi cide conviction, appellant was sentenced to a term of five years in the Arkansas Department of Correction. For DWI, appellant’s driver’s license was suspended for a period of 120 days, and he was ordered to serve a year in the county jail. Appellant advances four issues on appeal in which he argues that: (1) the trial court erred in allowing the introduction of a blood analysis report into evidence; (2) the trial court erred in allowing the coroner to express an opinion concerning the cause of the victim’s death; (3) the trial court erred in sentencing appellant on the lesser included offense of DWI; and (4) the trial court erred in denying his motion for a mistrial. We find that no reversible error occurred with regard to the evidentiary issues raised and affirm appellant’s conviction for negligent homicide; however, we agree with appellant’s third argument and reverse the conviction for DWI.
The record discloses that on October 20, 1990, appellant’s truck crossed the center line of the highway and struck an oncoming vehicle. The accident occurred at around 7:30 in the evening. A passenger in the other vehicle, Alford Alton Dirick-son, was killed. Appellant was subsequently charged with negligent homicide and DWI in connection with the accident. The charges were consolidated on motion of the State.
As his first point, appellant contends that the trial court erred in allowing the results of the blood-alcohol test to be introduced into evidence. He argues that the State failed to offer sufficient evidence that the blood was drawn in accordance with the method and procedures approved by the health department, as is required under Ark. Code Ann. § 5-65-204 (Supp. 1991). Particularly, appellant submits that there was no evidence introduced as to whether a nonalcoholic skin sterilant was used to clean the area from where the blood was drawn. In support of this argument, he relies on the following regulation adopted by the State Department of Health:
3.20 Sample Collection: Blood samples may be collected from living individuals only by persons authorized by law and by means of a sterile, dry syringe and hypodermic needle or other sterile equipment. The skin at the area of puncture shall be thoroughly cleansed and disinfected with an aqueous solution of non-volatile antiseptic such as benzalkonium chloride (zephiran). Alcohol or other vola-
tile organic disinfectant solutions shall not be used as a skin antiseptic or to clear hypodermic needles, syringes or containers.
Tests used to determine the alcohol content of blood must be carefully monitored to assure reliability. See Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). However, it has repeatedly been held that only substantial compliance with health department regulations is required. Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990). We need not decide in this instance whether the testimony presented by the State was sufficient to establish substantial compliance with the above-mentioned regulation because we conclude that any error arising from the admission of the test result was harmless in that there was other evidence presented forcefully suggesting that appellant was intoxicated when the accident occurred. See Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992).
Roger Whitmore, a state trooper, arrived shortly after the accident had occurred. He first observed appellant as he was trying to light a cigarette. Whitmore was instructed by another officer to prevent appellant from lighting the cigarette because his clothing was soaked with gasoline. Whitmore said that appellant kept saying that he was going to get in his truck and go home and that he had to be convinced that he could not do so because his truck was damaged beyond repair. Whitmore further testified that appellant was having difficulty talking in that his speech was “thick-tongued” and it would take appellant several seconds to answer questions put to him. He related that appellant had problems standing and that he required the assistance of another officer to walk. Whitmore also stated that he could smell alcohol on appellant’s breath. Among the debris from appellant’s truck was some fourteen or fifteen beer cans and an ice chest. Other than at the scene, Whitmore also encountered appellant at the hospital. When Whitmore asked appellant if the ice chest that had been found belonged to him, appellant responded, “Yeah, but that beer can was empty, I know all I had today was a 12-pack of Budweisers all day long.” Based on his observations, it was Whitmore’s opinion that appellant was intoxicated.
Sevier County Deputy Sheriff Eric Willis was also of the opinion that appellant was intoxicated given the behavior appel lant exhibited. By way of explanation, Willis stated that appellant was belligerent one moment, and then overly friendly the next. He also said that it was common sense not to smoke in the presence of gasoline. He further testified that appellant had alcohol on his breath and that appellant told him that he had drunk a couple of beers.
When error is alleged, prejudice must be shown because we do not reverse for harmless error. Phillips v. State, 40 Ark. App. 19, 840 S.W.2d 808 (1992). Based on the foregoing evidence, we conclude that any error resulting from the admission of the test results was harmless.
As his second issue, appellant argues that the trial court erred in allowing the county coroner to express an opinion as to the cause of the victim’s death. The coroner, Lawrence Chandler, testified that the immediate cause of the victim’s death was a fractured skull. It is appellant’s contention that the coroner did not possess the necessary skill, training and experience to qualify him to render an expert opinion. No attempt was made, however, to qualify the coroner as an expert and the trial court permitted his testimony as a lay witness under Ark. R. Evid. 701. It has been said that lay witnesses are permitted to give their opinion as to the cause of death or other physical condition if the witness is qualified by experience and observation with regard to the subject matter. McAway v. Holland, 266 Ark. 878, 599 S.W.2d 387 (1979). See also Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991). Here, it was the coroner’s testimony that it was incumbent upon him to investigate fatalities as a part of his official duties and that he had attended seminars on the topic of determining cause of death. He also said that he had additional experience in this area from his work with other coroners. We cannot say that the trial court abused its discretion in allowing the coroner to give his opinion.
Appellant next argues that the trial court erred in failing to dismiss the D WI conviction when he had also been found guilty of negligent homicide. The state concedes error on this point, and we agree that both convictions cannot stand.
Appellant was tried on charges of negligent homicide and driving while intoxicated under the provisions of Ark. Code Ann. § 5-10-105(a)(l) (Supp. 1991) and Ark. Code Ann. § 5-65- 103(a) & (b) (1987), respectively. As such, the jury was instructed as follows:
BILLY TALLANT is charged with the offense of negligent homicide. To sustain this charge, the State must prove beyond a reasonable doubt that BILLY TALLANT negligently caused the death of ALFORD ALTON DIRICKSON as a result of operating a vehicle while intoxicated or with a one-tenth of one percent (.10%) or more by weight of alcohol in his blood as determined by a chemical test of his blood. . . . “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof to such a degree that the driver’s reactions, motor skills and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury to himself or other motorists or pedestrians.
BILLY TALLANT is charged with the offense of driving while intoxicated. To sustain this charge, the State must prove beyond a reasonable doubt: That BILLY TAL-LANT was intoxicated and operating or in actual physical control of a motor vehicle or; That BILLY TALLANT did operate or was in actual physical control of a motor vehicle at a time when there was one-tenth of one percent or more by weight of alcohol in his blood as determined by a chemical test of his blood, urine, breath, or other bodily substance. Definition: “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, or a combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself or other motorists or pedestrians.
Arkansas Code Annotated § 5-1-110 (1987) provides that:
(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section[.]
(b) A defendant may be convicted for one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the sanie or less than all the elements required to establish the commission of the offense charged[.]
In a long line of cases beginning with Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), the supreme court has held that when a criminal offense by definition cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses. Ballew v. State, 298 Ark. 175, 766 S.W.2d 14 (1989). In the present case, driving while intoxicated was an essential component of the crime of negligent homicide since it was necessary to prove that appellant was driving while intoxicated in order to prove that he had committed negligent homicide. Consequently, appellant could not be convicted of both offenses. We therefore set aside the conviction of driving while intoxicated, the less serious offense. Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982).
Appellant’s last argument is that the trial court erred in denying his motion for a mistrial, which was made in response to the following remarks of the prosecutor during closing argument:
Let’s make sure we get Joe Don Jones from Nashville where he’s incarcerated and bring him in here, not knowing whether or not what he’s going to testify to, but proving to you as we did that this Defendant was given a right to an alternative test, and I don’t know how drunk he was. He was awfully drunk. He said he had been there before.
Appellant objected on the ground that the comment “he had been there before” revealed to the jury that appellant “had previous convictions.” The court denied the motion for a mistrial but admonished the jury to disregard the prosecutor’s statement.
A mistrial is only granted when there has been an error so prejudicial that justice cannot be served by continuing the trial. Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993). The decision whether to grant a mistrial is left to the sound discretion of the trial judge and will not be reversed absent an abuse of discretion or manifest prejudice to the complaining party. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992). In addition, a mistrial should only be declared if any possible prejudice cannot be removed with an admonition to the jury. Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). It is not apparent here that the prosecutor was referring to previous convictions had by the appellant and we feel that the judge’s admonition was sufficient to cure any potential prejudice resulting from the prosecutor’s remark. We thus find no error in the trial court’s refusal to declare a mistrial.
Affirmed in Part; Reversed in Part.
Jennings, C.J., and Cooper, J., agree. | [
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DAVID M. GLOVER, Judge.
Lin this dependency-neglect action commenced by the Arkansas Department of Human Services (“DHS”), Joshua Chase appeals the trial court’s decision to award permanent custody of his two minor children, H.C. (dob 9-11-08) and K.C. (dob 9-15-09), to their maternal grandparents, appellees David and Cheryl Collins. Specifically, he argues that the award of permanent custody was in error because (1) the trial court failed to make the requisite finding that he, as the natural father of the children, was unfit for the purpose of overcoming the statutory preference for natural parents to have custody of their children, and (2) there was insufficient evidence to support that decision. We find merit in Joshua’s second argument, and we reverse and remand this matter.
| ¿The Pleadings/Adjudication Order (April 21, 2011)
On February 1, 2011, DHS petitioned for emergency custody of the minor children. At that time, the children’s mother, Mildred Chase (the Collinses’ daughter), was living in Redfield, Arkansas, with her parents, and Joshua, the children’s father, was living in Ohio with his parents. Upon DHS’s affidavit in support of emergency custody, the trial court issued an order of emergency custody on February 1, 2011, finding that there was probable cause to believe that the children were dependent-neglected; that it was contrary to the welfare of the children to be returned to Mildred and Joshua based on allegations of drug use and instability; that removal from the custody of the Collinses and Mildred and Joshua was in the best interest of the children and was necessary to protect the health and safety of the children; and that DHS was the proper party to have custody of the children.
|sOn February 14, 2011, Joshua filed for divorce from Mildred in Jefferson County Circuit Court. In the DHS action, a probable-cause order was filed on March 18, 2011, finding that it was in the children’s best interest for temporary custody to be placed with the Collinses but granting Joshua unsupervised visitation and telephone visitation. On March 29, 2011, the Collinses filed petitions for grandparent-visitation rights and for custody within the DHS action. In their petition for custody, they stated that Joshua and Mildred brought the children to Arkansas in February 2010 and returned to Ohio; that they returned to Arkansas in April 2010; and that Joshua returned to Ohio in May 2010, with Mildred remaining in Arkansas. They stated that they had raised the children since February 2010 and that it was in the children’s best interest that they be granted permanent custody. The Collins-es then filed a motion for support on April 20, 2011, asking that Joshua be required to pay support; they requested no support from Mildred. On that same day, the Collinses moved to intervene in the DHS case, and the order granting intervention was filed the next day.
On April 21, 2011, an adjudication order was filed in the DHS case. The children were adjudicated dependent-neglected, and the basis for that finding was against Mildred due to her drug usage. There was no finding of dependency-neglect on the basis of anything Joshua had done. The goal of the case continued to be reunification; placement with Joshua; |4or a permanent custodian, including placement with a relative. The order further required that Mildred cooperate with DHS and keep it informed of her residence and employment; and that both Mildred and Joshua refrain from illegal drugs and submit to random drug screens, obtain and maintain stable housing and employment, maintain a clean, safe home, and demonstrate the ability to protect their children and keep them safe.
An Interstate Compact on the Placement of Children (ICPC) home study was performed on Joshua’s parents’ home in Ohio, where he was residing. The home study approved placement of the children in the home. The home study was performed in May 2011, and it included not only the condition of the home, but Joshua’s financial condition, his employment situation, his medical history, his family background, and his legal history.
DHS filed a court report on June 30, 2011, noting that the home study was favorable for Joshua, but stating that a hair-follicle test taken on February 9, 2011, revealed that Joshua tested positive for marijuana and that, from DHS’s perspective, Joshua has had a drug habit since 2006 and was still battling drug addiction. DHS recommended that custody be given to appellees and the case be closed.
The Order (August 12, 2011)
A hearing was held on July 8, 2011, and on August 12, 2011, the trial court entered an order of permanent custody, support, and visitation. In it, the trial court found that | ¿Mildred was unfit for custody, and that, although preference in child-custody issues is usually given to the biological parents before grandparents, there was a question as to home stability with Joshua. The trial court then awarded permanent custody to the Collinses, finding that they had provided a good, loving, nurturing environment for the children and that they could provide a stable environment. The trial court awarded supervised visitation to Mildred, but awarded liberal, unsupervised visitation to Joshua. It is from that order that Joshua takes this appeal.
The Heanng (July 8, 2011)
At the July 8 hearing, DHS called Joshua, who acknowledged that he had previously used marijuana and had used methamphetamine on one occasion in July 2010 at Mildred’s sister’s apartment. He acknowledged that the February 9, 2011 hair-follicle test indicated that he tested positive for marijuana, but he stated that he did not use drugs anymore. Joshua testified that in Ohio he was employed by Mansfield Maintenance thirty-five to forty hours per week, performing custodial and maintenance work at $8.50 per hour; that he lived with his parents in a three-bedroom house; that he paid for rent, food, utilities, and gas for his vehicle; that he paid his bills on time; that he planned to live with his parents until this case was “completely done and over with”; and that he considered himself to be “pretty stable.” He stated that he had another child; that he had joint custody of her; that he did not pay child support but paid for things that his daughter needed; and that he had her every other weekend. Joshua testified he does not have medical insurance and that it is not offered through his employment. He said that he had sent $300 to the Collinses for support, but he ^admitted that from January to June 2011, he only sent $180. He informed the court that he and Mildred were technically still married but that they were separated and waiting for a divorce-hearing date.
Joshua explained that he and Mildred originally brought the children to Arkansas for a month in February 2010 because he was having knee surgery in Ohio. Mildred came back to Arkansas around the first of April, so he packed the house in Ohio and moved to Arkansas as well. He said that he went back to Ohio in May to file an intent to relocate so that his other daughter would be able to relocate with him, then came back to Arkansas in June and stayed until July. He said Mildred and H.C. returned to Ohio for a two-week visit, but K.C. never returned to Ohio.
Joshua said that he had been living with his parents since July 2010 and that he became employed in August 2010. He said that since he began working, he sent over $8000 to support H.C. and K.C.— from July 2010 to December 2010, he sent $2700 to Mildred, and he sent at least $300 to the Collinses.
Mildred testified that she had seen Joshua using controlled substances during their marriage; that a lot of the drug usage occurred in Ohio and when he was in the military; that he used drugs in the children’s presence on a regular basis; that she did not believe that Joshua had gotten any help for his drug problem; and that Joshua took niacin to flush the THC out [7of his system. She also alleged that Joshua took Depakote from 2008 to 2010 for bipolar disorder.
Mildred refuted Joshua’s reason for bringing the children to her parents-she said that Joshua’s knee surgery only incapacitated him for about a week, that he could then use crutches, and that they brought the children to her parents because they were having marital issues. Mildred agreed that during the last half of 2010, Joshua sent her $2700, but she admitted that she used that money to continue her drug habit and pay for her sister’s apartment. It was her opinion that it was not in the best interest of the children for Joshua to be given custody, and she denied ever telling Joshua that it was; rather, she believed that it was in the children’s best interest to remain in Arkansas with her parents. Mildred testified that she had been off methamphetamine for two and a half months, that she had smoked THC about two weeks ago, and that she would indicate positive for that drug if tested. She agreed she was not stable enough to raise her children at this time. She claimed that Joshua was not the primary caregiver of the children, and she said that she left when Joshua “raised his hands” to her.
Appellee Cheryl Collins testified that Mildred and Joshua had marital difficulties and that she had heard Joshua over the telephone yelling at Mildred with an “angry tone” in his voice, though she had not actually seen any domestic violence between the two. She said that Joshua had sent about $400 in the last several months, but that he had not sent any money to her in 2010. Cheryl testified that she and her husband were able to provide for the children | ^financially, even though her husband was on disability. It was her opinion that it was in the best interest of the children for her and her husband to be jointly appointed permanent guardians. She confirmed that she did not make the initial contact with DHS; that Joshua made the first contact, alleging that the kids were in danger due to Mildred and that he was afraid for the children’s lives.
LaSonya Goffin, a DHS employee, testified that it was DHS’s recommendation that appellees be granted permanent custody. The basis for her recommendation was that the children had been in the home for a year, and she had “just seen so much trauma” when children were moved from one caretaker to another. Goffin said that when she read the home study, it appeared to her that Joshua was not stable, based on his history with drugs and his short employment. Goffin then admitted on cross-examination that she was not present at the adjudication hearing; that she held a staffing on the case without inviting Joshua or his attorney, though including the Collinses; and that she was unaware that the trial court only adjudicated the children dependent-neglected on the basis of Mildred’s actions, not Joshua’s. Even so, she testified that did not change her opinion that appellees should have permanent custody because it was traumatic for the children to be moved. Goffin was unaware that Joshua had passed all of his urine screens after he failed the first hair-follicle drug test; but even after that revelation, she was still of the opinion that Joshua had a drug problem. Goffin admitted that in a normal case (even with a parent with drug addiction), the goal would still be reunification. Goffin stated that she was under the impression that Joshua would “need |flto do some things” to get his children back. She acknowledged that the home study did not recommend any drug-abuse program for Joshua, but she stated her belief that Ohio officials did not know about the hair-follicle test. While she said that DHS strongly favors reunification with the natural parent, who is usually given an opportunity to “get their act together,” Goffin testified that the home study, even though it approved placement, made her favor Joshua less. She was able to cite a laundry list of things offered to Cheryl Collins in the way of services, but she did not list any services provided to Joshua.
Upon further questioning by the trial court, Goffin testified that Joshua’s instability was unsatisfactory in recommending him for custody. She said that he did not “appear” to be stable. In support of that statement, she cited his job history, drug use, and the fact that he lived with his parents. It was her “feeling” that if he was staying with his parents and was still using drugs, his parents would be the primary caregivers of the children. In arriving at her decision, Goffin admitted that she never had an opportunity to meet with Joshua, yet concluded that he was not stable, used drugs, had been working only since September 2011, was sleeping on his parents’ couch, and had a criminal background, although she had no idea of what he had been convicted. She concluded that Joshua needed to maintain employment for more than a couple of weeks, have his own home, remain drug free, and participate in a drug-rehabilitation program.
Appellee David Collins testified that Joshua and Mildred had marital problems; that he had heard Joshua over the telephone while he was talking to Mildred; and that he could tell |10that Joshua was angry by the “loud talking” directed at Mildred. It was David’s opinion that it was in the children’s best interest for permanent custody to be given to him and his wife. David explained that he was disabled due to a neck injury and took hydro-codone on a regular basis for his injury, but he then said that he did not take it unless absolutely necessary. David said that Joshua had not left him $3000 to take care of the children at any time; however, he said that he knew Joshua had sent Mildred money, but had never asked Mildred for any money to help support the kids. David admitted that he had not seen Joshua using any controlled substances. Appellees rested after David’s testimony.
DaMarcus Scruggs testified that he lived with Joshua and Mildred for eight or nine months, that Joshua was the primary caregiver for the children, and that of the two, Joshua was the responsible one. He denied ever seeing Joshua be physically violent toward Mildred, although he admitted that they had verbally argued. He also said that he had never seen Joshua use drugs around the children, and that it would be a shock to him that Joshua used drugs on a regular basis.
Joshua then testified again, on his own behalf. He reiterated that he and Mildred dropped the children off in Arkansas in February 2010 so that he could have his knee surgery, as he would not be able to recuperate and take care of the children as well. He said that at the end of March or beginning of April, Mildred told him she was leaving and going to Arkansas; that they made plans for him to move as well; and that he stayed at the Collinses’ house when he arrived in Arkansas. He said he returned to Ohio in May and came back to |n Arkansas in June, stayed until July, and then returned to Ohio because he did not have anywhere else to go after the Red-field Police Department told him that he would be arrested for criminal trespass if he came onto the Collinses’ property. Joshua said that his next trip to Arkansas was not until December because he was working and sending all but $20 per paycheck to Mildred. He said he later learned that she was not using the money for the children but rather for her drug habit. Joshua testified that the only time he used methamphetamine, he was with Mildred. He said that he had not used methamphetamine since July 2010, but that he had smoked marijuana in December 2010, which was why he failed the February 2011 hair-follicle test. Joshua stated that he had taken drug tests at every court hearing except the last one and that all of the tests were negative, including the one he took at the July 8 hearing. Joshua denied that he used niacin to mask marijuana. Joshua also presented receipts for the money he sent Mildred from July to December 2010, which he stopped sending after learning that Mildred was not using the money for the children. Joshua testified that he had some minor criminal infractions, but that he had to have a background check performed to work at some locations and had passed. He asserted that he was perfectly capable of taking care of his kids and that he was stable.
Marsha Chase, Joshua’s mother, testified that he was currently living with her; that a home study was performed on her home and that the home passed; that Joshua took an active role in parenting his children; and that she had never seen him do drugs around his children. She said that Joshua had been employed for a year as of the first part of September; that he 112was stable; that he got up and went to work every day; and that he knew his responsibilities and was willing to do what it took to meet them.
The Trial Court’s Findings (July 8, 2011)
The trial court, from the bench, found that Mildred was not a fit parent to have custody of the children. As for Joshua, the trial court stated that it was its practice and procedure and the law to give due consideration to the natural parent. The trial court stated that had the case been in February, it would have granted custody to Joshua, but the trial court received the report from Ohio and while it came back favorably, the trial court was concerned with the positive hair-follicle test that came back in February. The trial court found that the use of controlled substances rendered a parent unfit “as it relates to it” and that the use was in December.
The trial court found that Joshua provided support to Mildred who, by her own testimony, used the money to do as she pleased and did not provide it to her parents for the children. The trial court found that stability was a factor and that in the last fifteen months, Joshua was not as stable as the court would have liked him to be. The court found the Collinses to be of suitable age and stable. The trial court granted Joshua liberal visitation and awarded permanent custody to Cheryl and David Collins.
Discussion
11SJuvenile proceedings are equitable in nature; therefore, our standard of review on appeal is de novo. Rose v. Arkansas Dep’t of Human Sens., 2010 Ark. App. 668, 2010 WL 3902858. However, the circuit court’s findings of fact are not reversed unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id.
We find merit in Joshua’s second argument, that there was insufficient evidence presented to justify an award of permanent custody to the Collinses. Specifically, in support of this argument, Joshua’s attorney argued at the close of the case that DHS did not make reasonable efforts with regard to Joshua; that there was no adjudication of dependency-neglect against Joshua; that Joshua’s home study was approved; that DHS held a staffing without either Joshua or his attorney present; that Joshua had done everything he was supposed to do; that even if he had been the reason the children were adjudicated dependent-neglected (which he was not), parents are offered services and a chance to show improvement; that parents who improve are almost without exception reunited with their children; that the DHS caseworker did not even know that dependency-neglect was not adjudicated against Joshua; and that Joshua had passed all of his drug screens after he failed the hair-follicle test.
The Arkansas Juvenile Code is to be liberally construed in order for its purposes to be carried out. Ark.Code Ann. § 9-27-302 (Repl.2009). These purposes include assuring that “all juveniles brought to the attention of the courts receive the guidance, care, and control, [ 14;preferably in each juvenile’s own home when the juvenile’s health and safety are not at risk, that will best serve the emotional, mental, and physical welfare of the juvenile.... ” and “to preserve and strengthen the juvenile’s family ties when it is in the best interest of the juvenile.” Id. § 9-27-302(1), (2)(A) (emphasis added).
Arkansas Code Annotated section 9-27-338 (Supp.2011) addresses permanency-planning hearings. Although the July 8 hearing was not called a permanency-planning hearing, it was in effect such a hearing because it determined the permanent placement of the children. Subsection (c) of this statute provides that at the permanency-planning hearing, the trial court shall enter one of the following permanency-planning goals, which are listed by preference. The first preference returns the juvenile to the parent, guardian, or custodian at the permanency-planning hearing if it is in the best interest of the juvenile and the juvenile’s health and safety can be adequately safeguarded if returned home. The fifth preference authorizes a plan to obtain a permanent custodian, including permanent custody with a fit and willing relative. In Mahone v. Arkansas Dep’t of Human Servs., 2011 Ark. 370, 383 S.W.3d 854, our supreme court held that the first preference applies to both custodial and noncustodial parents — otherwise, the noncustodial parent would fall to the fifth preference. Therefore, Joshua falls into the first category; the Collinses fall into the fifth category.
While the trial court noted the preference for returning children to their parent, the evidence presented at the hearing undercuts that this preference was truly considered. To begin with, the DHS case was opened in February 2011, and the trial court placed permanent 1, ¡¡custody with the Collinses in August 2011 — a mere six months later. Though this time frame may be sufficient in some cases, we hold that it was not in this case. It is a fact that Joshua’s hair-follicle test, taken at the outset of DHS’s involvement in this case, was positive for marijuana; however, there seems to be a failure to take into account that all of Joshua’s subsequent drug tests were negative. While both DHS and the trial court refer to Joshua’s drug addiction, the trial court never ordered a drug-and-alcohol assessment or required Joshua to be involved in any type of drug treatment.
Testimony from LaSonya Goffin, the DHS employee, was also inadequate in this case. First, her basis for recommending that the children be permanently placed with the Collinses was that she had “just seen so much trauma” when children were moved from one caretaker to the other. Next, even though Joshua’s parents’ home, where he was currently living, was approved to place the children after an ICPC home study, Goffin testified, without any basis, that after reading the home study, it “made her favor Joshua less.” Finally, she was of the opinion that Joshua was not stable because he had a drug problem; had a short employment history; and was living with his parents, who she believed would be the children’s primary caregivers if Joshua were given custody. But even though Goffin believed Joshua had a drug problem, he was offered no services other than drug testing prior to court hearings. With regard to his employment, Joshua became employed within one month after he returned to Ohio permanently, where he was still employed almost one year later. Without any basis for her belief,-Goffin was of the opinion that Joshua’s parents would be the primary caregivers 11fifor the children if custody was awarded to him; however, the other set of grandparents were already caring for the children. Even if Joshua’s parents became caregivers on a regular basis, of which there was no testimony to support this presumption, the fact remains that the children would also be in the care of their natural father. Additionally, Joshua is already co-parenting another child in Ohio.
Goffin admitted that, in a normal case, the goal for a parent with drug addiction would still be reunification, and that DHS strongly favors reunification with the natural parent, who is usually given the opportunity to “get their act together”; but it is apparent that DHS failed Joshua by not offering services. Goffin, who was not present at the adjudication hearing, was unaware that the dependency-neglect adjudication was based on Mildred’s actions, not Joshua’s actions. Goffin also admitted that she held a staffing on the case with the Collinses in attendance without inviting Joshua or his attorney. In fact, Goffin admitted that she had never met Joshua. In light of the above reservations, the trial court then awarded Joshua liberal unsupervised visitation for extended periods of time.
We recognize that Joshua has some issues to resolve; however, since this case was commenced by DHS, a mere six months before the trial court awarded the Collinses permanent custody, he had no positive drug tests, maintained employment, and was living in an approved housing situation with his parents. All of this was accomplished with minimal assistance from DHS.
|17We hold that the grant of permanent custody to the Collinses was clearly erroneous. Under the liberal construction of our juvenile code, all of Joshua’s accomplishments since DHS’s involvement demonstrate that the children’s health and safety would not be at risk if they were placed in Joshua’s custody and would preserve and strengthen the family ties. However, we also acknowledge that several months have now passed since the trial court’s award of permanent custody to the Collinses, and that we are not privy to anything that may have occurred during this interim time. Certainly, we recognize the Collinses’ continued love of, care for, and devotion to their grandchildren, who have lived in the Collinses’ home under their supervision for over three years. However, we hold that the trial court was premature in awarding permanent custody to the Collinses. We reverse and remand for the trial court to reinstate temporary custody while DHS provides the normal array of services to Joshua in order to determine if he can be a proper and adequate parent. Due to our disposition on this point, it is unnecessary to address Joshua’s fitness argument.
Reversed and remanded for further proceedings consistent with this opinion.
HART and GRUBER, JJ., agree.
. It is undisputed that Joshua notified DHS in December 2009 of his wife’s drug usage in Arkansas.
. The affidavit stated that the trial court in this case ordered the children into foster care pursuant to a telephone call on January 26, 2011, at approximately 3:45 p.m.; that a petition had been filed on December 29, 2010, for the Collinses to receive temporary custody of the children because in December 2009 and early January 2010, the Division of Children and Family Services in Ohio initiated a child-maltreatment case against Joshua and Mildred based upon allegations that Joshua had attempted suicide; that in February 2010, Joshua and Mildred brought the children to Redfield, left them with the Collinses, and returned to Ohio, leaving the children in the custody of the Collinses; that Joshua and Mildred returned to Arkansas in April 2010; that Joshua went back to Ohio in May 2010 while Mildred stayed in Arkansas; that the children had resided in the Collinses’ home, and the Collinses had cared for them since February 2010; that Joshua had used methamphetamine in the past nine months and continued to use the drug; that Joshua admitted such use to Mildred; and that Mildred had used controlled substances, having tested positive for THC and methamphetamine.
. In the probable-cause order, the trial court denied what appears to have been a private dependency/neglect petition filed by the Col-linses pursuant to Ark. Code Ann. § 9-27-310(b)(3) (Repl.2009).
. Although the July 8, 2011 hearing of which the parties were given notice was designated as a review hearing, the parties were aware that the Collinses' petition for custody would also be heard at that time. In essence, due to the trial court's disposition of the case, this hearing was a permanency-planning hearing, although it was not styled as such.
. There was testimony that Joshua and Mildred had won a $10,000 lottery in Ohio in 2009.
. This finding, while made from the bench, was not incorporated into the order awarding permanent custody to the Collinses. | [
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WAYMOND M. BROWN, Judge.
| Appellant, J. Robert Fulton, sued ap-pellees Beacon National Insurance Company (“Beacon”) and State Auto Financing Corporation (“State Auto”) after being denied coverage under an insurance policy for water damage to a rental home he owned. He appeals from the Crittenden County Circuit Court orders granting summary judgment in favor of Beacon and granting the motion to dismiss, without prejudice, of State Auto. We affirm.
Background
Appellant purchased an insurance policy from Beacon for coverage of a rental home he owned in West Memphis, Arkansas. The policy contained a provision under “Perils Insured Against” that read, in pertinent part:
[W]e do not insure loss ... caused by: li>a. freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing. This exclusion applies only while the dwelling is vacant, unoccupied or being constructed unless you have used reasonable care to:
(1) maintain heat in the building; or
(2) shut off the water supply and drain the system and appliances of water.
On December 8, 2008, the tenant of the rental house notified appellant that she was moving and vacated the premises. On the same day, the tenant transferred her utility service to a new address, and the West Memphis Utility Commission turned off the power and shut off the water supply to the rental house.
While the rental house was vacant and unoccupied, temperatures went below freezing and a water pipe in the attic froze and burst, causing extensive damage to the rental house. Appellant was informed of the water leak on December 25, 2008, and filed a claim with Beacon for coverage under the insurance policy. State Auto handled the adjustment of appellant’s claim and retained an independent adjuster named Benny Hicks to conduct an investigation. Following the investigation, Beacon denied appellant’s claim on the grounds that he had failed to use reasonable care to drain the rental house’s plumbing system and appliances of water while the house was vacant.
Records from the West Memphis Utility Commission showed that electricity and water at the rental house were shut off on December 8, 2008, and were not turned back on until January 6, 2009. The records showed, however, that during that gap in time, some 22,400 gallons of water were used. There was deposition testimony from several witnesses, | ¡including appellant, that someone must have turned the water back on during the period between shutoff on December 8, 2008, and December 25, 2008, but no proof as to the person’s identity was offered.
Appellant filed suit for breach of contract and bad faith against Beacon and State Auto. State Auto filed a motion to dismiss for failure to state a claim and for lack of personal jurisdiction. Beacon answered and filed for summary judgment. In its motion for summary judgment, Beacon asked the circuit court to rule, as a matter of law, that appellant was not entitled to coverage because the policy required him to use reasonable care to drain the rental house’s plumbing system and appliances of water, and he had failed to do so. In separate orders filed on February 28, 2011, the circuit court granted Beacon’s motion for summary judgment and granted, without prejudice, State Auto’s motion to dismiss for failure to state a claim, but did not rule on the motion to dismiss for lack of personal jurisdiction. Appellant has appealed from both orders.
Discussion
I. Summary Judgment in Favor of Beacon
Appellant argues that the circuit court erred in granting summary judgment because the insurance policy should have been construed liberally so as only to require him to exercise reasonable care to avoid a loss.
14Summary judgment is a remedy that should be granted only when there are no genuine issues of fact to litigate and the case can be decided as a matter of law. Our review on appeal is limited to a determination as to whether the trial court was correct in finding that no material facts were disputed.
Under Arkansas law, the intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. If the language in a policy is ambiguous, or there is doubt or uncertainty as to its meaning and it is fairly susceptible of two or more interpretations — one favorable to the insured and the other favorable to the insurer — the one favorable to the insured will be adopted.
Where terms of the policy are clear and unambiguous, however, the policy language controls, and absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. It is unnecessary to resort to rules of construction in order Rto ascertain the meaning of an insurance policy when no ambiguity exists. When language is clear, it must be given its plain and obvious meaning and should not be interpreted to bind an insurer to a risk which it plainly excluded and for which a premium was not collected. Where language is unambiguous, summary judgment is an appropriate method to resolve issues of contract construction.
We do not find the language of the insurance policy ambiguous. Rather, it clearly and plainly states that damage to appellant’s rental house would be covered only if he used reasonable care to (1) maintain heat in the building or (2) shut off the water supply and drain the system and appliances of water. It is undisputed that appellant did not attempt to maintain heat in the building. Although the parties have conceded that there is a fact question as to whether appellant used reasonable care to shut off the water supply, it is undisputed that he did not make any effort to drain the plumbing system or appliances of water. The use of the conjunctive “and” in the clause in question makes it clear that in order to prove coverage under the policy, appellant also would have had to show that he used reasonable care to drain | Bthe system and appliances of water, and it is undisputed that he took no steps to do so. It is well established that when a party cannot present proof on an essential element of his claim, the moving party is entitled to summary judgment as a matter of law.
Appellant’s argument is that his failure to drain the plumbing system should be regarded as immaterial because it did not cause the damage at the rental house, or as he stated in his deposition, “If I had drained the pipes and somebody came back in and turned it on, it would have still been damaged.” However, the plain language of the policy provides that had he used reasonable care to drain the plumbing system, the damage would have been covered. Since the language of the policy is clear and unambiguous, we are bound by its terms. Arkansas courts have not required insurers to show proximate cause as a condition of enforcing exclusion clauses.
|7We note that in support of his argument, appellant has cited a number of cases from other jurisdictions, none of which would be applicable to this ease even if they did have binding authority. In five of the cases, the insured took affirmative steps to maintain heat in the building and the court addressed the question of whether their efforts constituted using reasonable care to maintain heat. In this case, as previously noted, it is undisputed that appellant did not take steps to maintain heat. In the two other of the cases cited by appellant, the insured had specifically instructed an employee to drain the pipes of the building, and the courts were considering whether the insured’s reliance on a third party to protect the property met the requirements of the policy. As previously noted, it is undisputed that appellant did not take any steps to drain the pipes or appliances in his rental house, or instruct anyone else to do so. Accordingly, there was no genuine issue of material fact with regard to the issue of coverage, and we affirm the circuit court’s grant of summary judgment.
II. Motion to Dismiss State Auto
Our standard of review on a motion to dismiss is well established. We treat the facts alleged in the complaint as true and view them in the light most favorable to the party who |8filed the com plaint. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief We treat only the facts alleged in the complaint as true, but not a plaintiffs theories, speculation, or statutory interpretation. Finally, our standard of review for the granting of a motion to dismiss is whether the circuit judge abused his or her discretion.
Arkansas Rule of Civil Procedure 12(b)(6) (2010) provides that “[ejvery defense, in law or in fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may ... be made by motion: ... (6) failure to state facts upon which relief can be granted[.]” According to Ark. R. Civ. P. 8(a)(1) (2010), a pleading that sets forth a claim for relief shall contain a statement in ordinary and concise language of facts showing that the pleader is entitled to relief. We | nlook to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled.
A pleading is deficient if it fails to set forth facts pertaining to an essential element of its claim. Appellant’s complaint alleges breach of contract against State Auto, but fails to state facts alleging that he had a contract with State Auto. Moreover, on appeal, appellant has not cited any legal authority or made any argument as to how the complaint sufficiently pleads a breach-of-contract claim against State Auto in the absence of a contract. On appeal, appellant states that his allegations also give rise to claims for “negligence, negligent and/or intentional misrepresentations, bad faith, intentional interference with contract, and/or other claims.” However, the face of the complaint does not support that argument, and appellant cites no authority and makes no argument as to how the facts alleged in his complaint might support any of those claims. For example, the complaint fails to allege that State Auto is an insurance company, when the tort of bad faith may only be brought against insurance companies.
It is well settled that mere conclusions unsupported by convincing argument or legal authority will not be accepted or reviewed on appeal. If appellant’s point is not apparent [ 10without further research, this court will not hear the matter. Even more significantly, in his brief, appellant concedes that his claims against State Auto “are premised on the existence of coverage under the Policy,” and that in the event the circuit court’s grant of summary judgment is reversed, he has asserted claims against State Auto sufficient to avoid dismissal under Ark. R. Civ. P. 12(b)(6). Since appellant has conceded that his complaint against State Auto is sufficient to avoid dismissal under Rule 12(b)(6) only if the summary judgment in favor of Beacon is reversed, and has cited no legal authority or convincing argument to show that the complaint is sufficient otherwise, we find no grounds to find that the circuit court abused its discretion in granting State Auto’s motion to dismiss. Accordingly, we affirm.
Affirmed.
PITTMAN and ABRAMSON, JJ., agree.
. Carver v. Allstate Ins. Co., 77 Ark.App. 296, 76 S.W.3d 901 (2002).
. Id. (citing Wright v. Compton, Prewett, Thomas & Hickey, P.A., 315 Ark. 213, 866 S.W.2d 387 (1993)).
. Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993); Baskette v. Union Life Ins. Co., 9 Ark.App. 34, 652 S.W.2d 635 (1983).
. Id.; Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979).
. Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001) (quoting Vincent v. Prudential Ins. Brokerage, 333 Ark. 414, 970 S.W.2d 215 (1998)).
. Id.
. Carver, supra; General Agents Ins. Co. of Am. v. People’s Bank & Trust Co., 42 Ark.App. 95, 854 S.W.2d 368 (1993).
. Carver, supra; Moore v. Columbia Mut. Cas. Ins. Co., 36 Ark.App. 226, 821 S.W.2d 59 (1991).
. Appellant testified that in his experience as a landlord, the West Memphis Utility Commission always turned off electricity and water service at the same time when a tenant moved out. A letter from West Memphis Util ity Commission confirmed that this was the Commission’s practice.
. Fulton testified at his deposition that he never attempted to drain the water pipes at the rental house and he knew there was still water in the system. He said that even though he knew the temperature was going to get down to freezing, he did not think it would cause any problems because he thought the water was off and he believed it would not get cold enough to freeze the water still in the plumbing system.
. Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995).
. We make this statement without regard to any possible arguments concerning agency, since no such arguments are before us.
. See Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004); W. Memphis Flying Serv., Inc. v. Am. Aviation & Gen. Ins. Co., 215 Ark. 6, 219 S.W.2d 215 (1949); Planters Mut. Ins. Ass’n of Ark. v. Dewberry, 69 Ark. 295, 62 S.W. 1047 (1901).
. Billitier v. Merrimack Mut. Fire Ins. Co., 777 F.Supp.2d 488 (W.D.N.Y.2011); Hidalgo v. Mason Ins. Agency, Inc., 2005 WL 1313828 (Mich.Ct.App.2005); Thomas Inv. Co. v. United States Fid. & Guar., 716 S.W.2d 395 (Mo.Ct.App. E.D.1986); McCabe v. Allstate Ins. Co., 260 A.D.2d 850, 688 N.Y.S.2d 764 (N.Y.App.Div.1999); Palmer v. Pawtucket Mut. Ins. Co., 352 Mass. 304, 225 N.E.2d 331 (1967).
. JMB Enters. v. Atlantic Employers Ins. Co., 228 NJ.Super. 610, 550 A.2d 764 (N.J.Super.Ct.App.Div.1988); Int'l Ins. Co. v. Reid, 400 S.W.2d 939 (Tex.Civ.App.1966).
. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377.
. Id.
. See Ark. R. Civ. P. 8(a)(1) (2010); Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324.
. Dockery, supra.
. Id.
. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985).
. Id.
. Thomas v. Pierce, 87 Ark.App. 26, 184 S.W.3d 489 (2004).
. Country Comer Food and Drug, Inc. v. First State Bank and Trust Co. of Conway, Ark., 332 Ark. 645, 966 S.W.2d 894 (1998).
. See, e.g., Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008).
. Id. | [
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DOUG MARTIN, Judge.
|,The Lonoke County Circuit Court found Jackie Green guilty of first-degree criminal mischief, first-degree terroristic threatening, aggravated assault upon an employee of a correctional facility, and third-degree assault. Green was sentenced to 120 days in jail, with sixty-eight days’ credit for time served and fifty-two days suspended. Green was sentenced to six years’ probation, four of which were supervised. The trial court also ordered Green to pay $4,140.21 in restitution, as well as costs and fees, complete 120 hours of community service, and receive a drug assessment and follow any resulting recommendations. Green challenges only two of his convictions on appeal. Green argues that the trial court erred in denying his motions to dismiss the charges of aggravated assault and first-degree terroristic threatening. We affirm.
On or about December 17, 2010, at approximately 7:30 p.m., Jim Biggs, an employee at the England Police Department, picked up Green on a warrant for failure to appear. When [2Biggs initially made contact with Green in order to transport him, Green was calm, but his demeanor changed once they got to Interstate 40. Biggs testified that, on the drive from North Little Rock, where Green was located, to England, Green’s “attitude just continually got worse.” Biggs testified that Green cursed and threatened to sue the Little Rock Police Department. Also, Biggs stated that Green had said that he “was going to blow Sergeant Mike Henry’s mother-fucking head off.” According to Biggs, “[o]ne minute [Green] would be fine, next minute he would be agitated.” Biggs stated that he was familiar with Green from “a run in” long ago and that it was unusual for Green “to be snapping on and off like this.” Given Green’s behavior, Biggs took precautions before his arrival at the police department by requesting assistance from two other officers.
Christina Peebles, a dispatcher/jailer at the England Police Department, testified that it is unusual for an officer to request “backup” when bringing a suspect to the police department. The officers assisted Biggs in getting Green into a cell at the jail. Peebles stated that, once the cell door closed, Green “just went nuts.” Green told Peebles that he knew where she lived and that he was going to kill her. Peebles testified that she took the threat seriously and was scared. Green also threatened other inmates at the jail.
Peebles further testified that Green screamed for hours, so much so that it made it difficult to hear the radio for dispatching. Green defecated in the cell’s sink, threatened to throw his feces on Pee-bles, and eventually smeared the feces on the wall of his cell. At one point, Peebles went to check on Green, and, when she stepped forward, Green spat on her. The spit hit the wall in front of the cell and landed on Peebles’s shoe. At approximately 2:00 |sa.m., Peebles heard the sound of breaking glass coming from Green’s cell. When Green was unsuccessful at luring Peebles back to the jail area, Green began throwing glass at the wall. Officers discovered that Green had ripped the toilet from the wall and broken the porcelain bowl. Peebles testified that she had received training on how to deal with angry prisoners and that she employed the methods she had learned on Green but that “[Green] was on something.” According to Peebles, Green told other inmates that he had smoked “sherm.”
Herman L. Hutton, Jr., a certified law enforcement officer at the England Police Department, testified that England has a small jail. The cell that Green was originally placed in was damaged after Green flushed sheets down the toilet, causing it to overflow; broke the toilet and tore it from the concrete base; bent a metal partition by banging on it; and smeared feces on the wall. Due to the damage, Green was moved to another cell. Green’s relatives arrived to visit him and attempted to calm him down, but they were unsuccessful. Green cursed at Hutton and tried to spit on him. Hutton testified that Green was eventually taken to the Pulaski County jail where he could be placed in an isolation cell. Hutton stated that the England jail had to be shut down, prisoners had to be released, and the water had to be shut off for several days while the damage was repaired. Hutton testified that he believed Green was probably under the influence of an intoxicant because Hutton “had never seen [Green] act that crazy before.”
14 Christian Chaney, a certified law enforcement officer at the England Police Department, testified that he was on patrol when Peebles contacted him to request assistance with “an irate inmate.” Chaney made contact with Green once Green had been placed into a cell, and Chaney testified that “[Green’s] attitude would go from calm and understanding to irate and violent within just a matter of seconds.” Green began kicking a metal partition separating the toilet area, and the concrete that formed the base of the partition broke loose from the floor. Chaney was standing against the cell bars, and Green lunged at Chaney, who then sprayed Green in the face with pepper spray, after which Green complied with Chaney’s order to step away from the damaged partition. Chaney testified that he heard Green threaten Peebles by telling her that he knew where she lived and that he would kill her. Chaney stated that, when he returned to the jail the following day, there was water on the floor as a result of Green’s destroying the toilet. Chaney testified that water had seeped into the dispatch and booking areas, which were carpeted, and had leaked through the walls toward the courtroom and out the back door. Chaney testified that, given his experience and training as a certified narcotics officer, he believed Green “was on something.”
Michael Herron, enrolled at the Arkansas Law Enforcement Training Academy (ALETA), testified that he was summoned to the police department to deal with Green because he “kind of’ knew Green. Herron testified that “the way I seen [Green] at the jail, that was not the same Jackie that speaks to me on the streets.” Herron’s attempts to calm Green were unsuccessful, and Herron returned to patrol. About two hours later, Herron was again summoned to the jail in connection with Green’s behavior. Herron saw the damage that [/¡Green had caused to his cell and described Green as “kicking and spitting.” Herron and another officer then transported Green to the Pulaski County jail. On the drive there, Green spat on the floor of the patrol car in the back seat and tried to spit through the cage barrier at the officers in the front seat. Herron stated that, “[Green] was kicking the window in the door as we were going down the highway.”
Lieutenant Douglas Bjork at the England Police Department testified that, upon Green’s arrival at the police department, Green stated that he was “going to kick our ass once these handcuffs are off of him.” Bjork received reports on Green throughout the night. While Bjork was on a traffic stop, he radioed the dispatcher for information and heard Green yelling in the background. The following day, Bjork entered the cell to remove Green, but Green hid behind a barrier and refused to show his hands. Bjork testified that he had to employ his taser because Green came at him with a piece of the broken toilet in his hand and threatened to throw it if the officers came any closer.
After defense counsel’s motions to dismiss were denied, Green took the stand and testified that he and his “old lady” were out shopping when he decided he wanted to get his warrant “taken care of’ because he did not want to be incarcerated over Christmas. According to Green, he called officials in England about his charges on the day before he was to appear in court and on the day of court, but no one called him back. Green stated that he eventually called the police department and surrendered voluntarily. Green explained that, because his vehicle was inoperable, the police transported him to England. Green testified that “things really did not get rowdy on the ride to England” and that he and Biggs simply had |fia conversation. According to Green, “everything was cool” when he arrived at the police department. Green claimed that, when he was taken to a cell, he was “just carrying on” because he was not given another court date. By “carrying on,” Green said that he was “cursing back” at Peebles, but he never threatened to harm her. Green testified that he was angry at Peebles and told her that her husband had left her because she was “sleeping around” and that as a result Peebles then “made this up about [Green].” Green stated that, although he spat on the wall in his cell, he did not spit on Peebles and did not spit in anyone’s direction. According to Green, the concrete holding the partition was already cracked when he was put into the first cell, and he did not kick it loose. Green testified that he did not think there was anything wrong with the toilet when he left that cell. Green stated that the toilet in the next cell that he was moved to had a cracked lid, which broke when he slammed the lid. Green admitted flushing the sheets down the toilet and causing the cell to become flooded.
Green renewed his motions to dismiss at the close of evidence, and the trial court again denied those motions. Green argues on appeal that the trial court erred in denying his motions to dismiss with respect to his convictions for aggravated assault upon an employee of a correctional facility and first-degree terroristic threatening.
A motion to dismiss at a bench trial is identical to a motion for directed verdict at a jury trial in that it is a challenge to the sufficiency of the evidence. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). In reviewing a challenge to the sufficiency of the evidence, we will not second-guess credibility determinations made by the fact-finder. Stone v. State, 348 ┴7Ark. 661, 74 S.W.3d 591 (2002). Rather, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm the conviction if there is substantial evidence to support it. Wilson v. State, 88 Ark.App. 158, 196 S.W.3d 511 (2004). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, without resorting to speculation or conjecture. Id.
A person commits aggravated assault upon an employee of a correctional facility if, under circumstances manifesting extreme indifference to the personal hygiene of the employee, the person purposely engaged in conduct that creates a potential danger of infection to the employee while the employee is engaged in the course of her employment by causing the employee to come into contact with saliva by purposely expelling the fluid. Ark.Code Ann. § 5-13-211(a) (Repl.2006).
Green’s first point on appeal is that he did not cause Peebles, who is an employee of a correctional facility, to come into contact with his saliva because Green was merely spitting on the wall of his cell and Peebles stepped forward, resulting in some saliva landing on her shoe. Green claims that this action did not result in any potential danger of infection because Pee-bles wore a closed-toe shoe. Finally, Green maintains that there was overwhelming evidence that he was under the influence of an intoxicant and that, because section 5-13-211 requires a purposeful mental state, the defense of voluntary intoxication was available to him.
Because of the obvious difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts. ┴8Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004). While Green maintains that he did not purposely cause his saliva to come into contact with Peebles, the evidence establishes otherwise. Hutton testified that Green attempted to spit on him, and Her-ron testified that Green spat through the cage barrier in the patrol car at him and another officer. Given Green’s actions with regard to the law enforcement officers and the ALETA trainee, the jury could reasonably conclude that Green purposely caused his saliva to come into contact with Peebles. The fact-finder, who makes credibility determinations, obviously believed the testimony of Peebles, Hutton, and Herron and did not believe Green’s testimony that Peebles walked into his stream of saliva that was aimed at the wall in front of his cell. See Stone, supra.
Green contends that his saliva came into contact with Peebles’s closed-toe shoe, and therefore, there was no potential for infection. In Foster v. State, 104 Ark.App. 108, 289 S.W.3d 476 (2008), Foster argued that there was no evidence that he suffered from any infection at the time his saliva came into contact with a correctional facility employee and that he thus could not be found in violation of section 5-13-211 because the offense requires a danger of infection as one of the elements. In rejecting Foster’s argument, this court noted that “Mr. Foster’s act of purposely expelling his bodily fluid onto the deputy’s person satisfied the ‘potential danger’ requirement of the offense.” Foster, 104 Ark.App. at 112-13, 289 S.W.3d at 479. Likewise, Green purposely spat on Peebles creating a potential danger of infection, regardless of where the saliva made contact with Peebles.
Green relies on Davis v. State, 12 Ark. App. 79, 670 S.W.2d 472 (1984), for the proposition that the defense of voluntary intoxication was available to him. Green’s reliance |ais misplaced, as our supreme court declared, only two years after the decision in Davis, that voluntary intoxication is not a defense in criminal prosecutions. See White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986) (taking the opportunity to “resolve the confusion” surrounding the defense of voluntary intoxication); see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227; Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228; Miller v. State, 2010 Ark. 1, 362 S.W.3d 264; Standridge v. State, 329 Ark. 473, 951 S.W.2d 299 (1997); Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992).
In his second point on appeal, Green again raises voluntary intoxication as a defense to his conviction for first-degree terroristic threatening, arguing that the State failed to prove that he acted with the purpose of terrorizing anyone, given that he was intoxicated. As stated earlier, the defense of voluntary intoxication is no longer available. See White, supra.
Affirmed.
ROBBINS and HOOFMAN, JJ„ agree.
. "Sherm" is defined as a cigarette or joint dipped in Phencyclidine, more commonly known as PCP, which is then smoked. Urban Dictionary, Sherm, (April 27, 2012), http:// www.urbandictionary.com/defme.php?term= Sherm | [
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DOUG MARTIN, Judge.
hA Van Burén County jury convicted appellant Dale Harvey Brown of the manufacture of marijuana, possession of marijuana with intent to deliver, possession of drug paraphernalia, and simultaneous possession of drugs and firearms. Brown was sentenced to an aggregate total of sixteen years’ imprisonment and fined $80,000. Brown does not challenge the sufficiency of the evidence supporting his convictions. Rather, Brown argues that the trial court erred in allowing him to represent himself without having made a knowing and intelligent waiver of his right to counsel. We agree and, accordingly, reverse and remand.
The Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Oliver v. State, 328 Ark. 743, 749, 918 S.W.2d 690, 693 (1996). The constitutional right to counsel, however, is a personal right and may be waived. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999). The Arkansas Supreme l2Court has held that the trial court maintains a weighty responsibility in determining whether an accused has knowingly and intelligently waived his right to counsel. Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). The determination of whether any defendant intelligently waived his right to counsel is dependent upon the particular facts and circumstances of the case, including the background, the experience, and the conduct of the accused. Mayo, supra.
The accused must have full knowledge or adequate warning concerning his rights and a clear intent to relinquish them before a waiver can be found. Id. Significantly, every reasonable presumption must be indulged against the waiver of the fundamental constitutional right to counsel. See, e.g., Oliver, supra (emphasis added). In determining whether a defendant knowingly and intelligently waived his constitutional right to counsel, our standard of review is whether the trial court’s finding was clearly against the preponderance of the evidence. Williams v. State, 2009 Ark. App. 684, 372 S.W.3d 358.
There are three requirements that must be met before allowing a defendant to proceed pro se: (1) the request to waive the right to counsel must be unequivocal and timely asserted, (2) there must have been a knowing and intelligent waiver, and (3) the defendant must not have engaged-in conduct that would prevent the fair and orderly exposition of the issues. Mayo, supra. In Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005), our supreme court wrote, “We note that these three requirements are in the conjunctive by the use of the word, ‘and.’ That is, all three factors must be satisfied in order to proceed pro se.” Id. at 504, 209 S.W.3d at 371. The first two requirements were not met in this case.
|⅞1. Brown Was Equivocal With Regard to Proceeding Pro Se
Brown’s actions do not demonstrate that any waiver of his right to counsel was unequivocal given that Brown, over the course of approximately a year, continually considered hiring private counsel to represent him. Brown’s arraignment was held on November 10, 2008, at which time the trial judge asked Brown whether he had submitted an affidavit of financial means, to which Brown responded that he was offered a public defender but “preferred to go pro se.” Yet, on January 6, 2009, Brown was asked by the trial judge whether he had made any efforts to contact an attorney, and Brown said, ‘Yes, but I’m waiting on my ex-wife to send me some addresses of attorneys. I have written to several. I’ve written to the ACLU. I’ve written to Attorneys for Public Justice, and I’ve written tó NORML, and not received any feedback at all about this.” On June 2, 2009, the trial judge asserted that Brown was still acting pro se and had not retained counsel, to which Brown said, ‘Yes, I’m trying to track down an old friend who since became a lawyer, but I haven’t been able to get him yet.” At another pretrial hearing on October 6, 2009, Brown was asked by the trial judge whether he had spoken with anyone about representing him, and Brown said, ‘Yes, I have, but I’ve not been satisfied with my conversations.” The equivocal nature of these statements by Brown vitiate against the trial court’s conclusion that Brown waived his constitutional right to counsel.
II. Any Waiver By Brown Was Not Knowing And Intelligent
At his arraignment, Brown informed the trial court that he had visited the law library; he has a bachelor’s degree in psychology and did post-graduate work in computer science; and he had a computer, printer, and access to an online law library. Brown had no criminal |4history, however, and was essentially a newcomer to the criminal justice system. A few months before Brown’s trial began, the prosecutor informed the court that Brown’s estranged wife and codefendant had provided information suggesting that Brown had mental health problems, and an “Act 3 evaluation” was conducted, which indicated that Brown was competent to stand trial.
Any waiver by Brown was not knowing and intelligent for two reasons. First, although there were thirteen pretrial hearings, the trial judge never explicitly informed Brown that he had an absolute right to counsel. Second, the trial judge, did not adequately warn Brown of the risks and disadvantages of self-representation before permitting Brown to proceed pro se.
In Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999), our supreme court noted that, “Mr. Bledsoe was not informed explicitly of his constitutional right to an attorney, nor was any inquiry made as to his ability to afford an attorney.” Bledsoe, 337 Ark. at 409, 989 S.W.2d at 513-14 (emphasis added). Likewise, Brown was never informed explicitly of his constitutional right to counsel. After being informed by Brown that he had been offered a public defender but preferred to proceed pro se, the trial judge spoke of Brown’s self-representation as though it were a foregone conclusion. Based on our review, however, it appears that the trial judge simply overlooked the basic premise that Brown had a constitutional right to counsel. The trial judge never directly and concisely advised Brown that he had a right to counsel, yet the trial judge concluded that Brown had waived his constitutional right to counsel. Without an explicit statement by the trial judge telling Brown of his right to counsel, we are unable to conclude that Brown knowingly and intelligently waived such right, as we are precluded from presuming the waiver of a constitutional right.
lfiThe trial judge made a brief inquiry regarding Brown’s finances in that the trial judge asked Brown whether he owned property and was employed. Brown’s answer to both questions was essentially “no,” and Brown mentioned that he was on Social Security, drawing benefits of $679 per month, and that he did not have any “cash assets.” Even after learning that Brown had limited financial means, the trial judge did not follow up by informing Brown that he had a constitutional right to the assistance of a public defender free of charge. Following Brown’s assertion that he had no money, the trial judge said:
Well, that’s why the Court was going to consider appointing a public defender to assist you in this matter. And, I would just remind [you], sir, that you could probably take out your own appendix. You might not survive the surgery though, and that’s why God made lawyers — to help people who have legal problems.... But, if you’re going to represent yourself pro se and you seem to have the academic background to do that ... I’ll certainly let you.
Instead of explicitly informing Brown that he had a right to counsel, the trial judge said that he would “consider appointing” a public defender; that his inclination was to ask a public defender to sit second chair; that he would request that the public defender’s office have someone available; and that he “asked Mr. Jackson to assist you in this matter.” None of these statements by the trial judge explicitly conveyed to Brown that he had a constitutional right to counsel.
While the trial judge correctly informed Brown that he had the right to represent himself, the trial judge never expressly told Brown that he had a constitutional right to counsel. On September 17, 2010, the first day of Brown’s trial, the trial judge said, “Mr. Brown, we have talked several times about your right to represent yourself and your efforts in doing that, and I told you that you have a right to do that, and I have concluded based on lfiour discussions that you do not lack the — any sort of mental impairment that would inhibit your ability to do that....” Brown’s mental acuity, however, was not the only consideration in determining whether Brown intended to waive his constitutional right to counsel. We cannot assume that Brown was aware of his right to counsel simply because Brown is educated and had access to an online law library. Again, all reasonable presumptions must be made against the waiver of Brown’s constitutional right to counsel. See Oliver, supra.
In order to effectively waive the right to counsel, not only must the accused be informed that he has the right to counsel, the accused “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faret ta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (citing Adams v. United States ex rel. McCann, 817 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). In Bledsoe, supra, although the judge informed Bledsoe that he must follow the rules of the court, Bledsoe was “given no explanation as to the consequences of failing to comply with those rules, such as the inability to secure the admission or exclusion of evidence, or the failure to preserve arguments for appeal.” Bledsoe, 337 Ark. at 409, 989 S.W.2d at 513.
In this case, the trial judge warned Brown several times of the range of potential sentences he faced if found guilty. The trial judge explained the order of the proceedings to Brown. Also, the trial judge informed Brown that he would be held to the same standards as an attorney and that he had to comply with the court’s rules. The trial judge, however, issued warnings to Brown that were less than clear. For example, the trial judge told Brown, “If you made an objection or if you failed to make an objection, that your situation could be adversely affected by your knowledge.” Also, the trial judge warned Brown that he was “in jeopardy |7of not knowing some things you may need very much to know.” Finally, the trial judge gave Brown the following advice: “[Y]ou have to understand in representing yourself if you present yourself to the jury and make statements to them about your participation, your involvement, your set of circumstances, that they may consider all of those things as your participation in the case as you participate in the case.” While these statements served as generic cautions and vague advice, we are unable to conclude that the trial court specifically warned Brown of the consequences and potential pitfalls of representing himself.
The trial judge failed to recognize that Brown was equivocal with regard to proceeding pro se, failed to explicitly advise Brown that he had a constitutional right to counsel, and failed to adequately warn Brown of the dangers and disadvantages of self-representation. Given that we must indulge every reasonable presumption against the waiver of fundamental constitutional rights, Oliver, supra, we hold that the trial court’s conclusion that Brown waived his right to counsel was clearly against the preponderance of the evidence.
III. The Participation of Standby Counsel Was Not Substantial
The assistance of standby counsel can rise to a level where the defendant is deemed to have had counsel for his defense, thereby mooting any assertion of involuntary waiver. Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001). Whether or not such assistance rises to that level is a question that must be answered by looking at the totality of the circumstances. Id. Our cases on this issue demonstrate that the assistance must be substantial, such that counsel was effectively conducting a defense. Id.
The public defender appointed to act as standby counsel for Brown first attended a hearing on October 6, 2009. The suppression hearing was thereafter held on January 11, |r2010, at which Brown submitted a document that was treated as a motion to suppress the marijuana evidence, although the trial judge acknowledged that the document contained “a great deal of [Brown’s] opinion regarding the current state of the law.” There was no motion to suppress Brown’s incriminating statements made during an interview with police without the presence of counsel, and Brown’s incriminating statements were thus admitted at trial without objection. Brown cross-examined the State’s witnesses. The public defender’s entire contribution at the sup pression hearing was: “[Brown]’s not inquired anything, Your Honor.”
Further, Brown’s standby counsel offered minimal participation at trial. Brown conducted his own voir dire, and counsel did not ask any questions of the jurors. Brown prepared a document that he tendered as his opening statement and gave a verbal statement before the jury as well. Counsel did not raise any objections during the trial, but he moved to dismiss two of the four charges against Brown. Brown made his own closing argument.
We note that the State acknowledged in its brief that standby counsel’s role at trial was negligible and that the State would not argue otherwise. Viewing the totality of the circumstances, we cannot say that the participation by Brown’s standby counsel was substantial, such that counsel was effectively conducting a defense. Therefore, the involuntary waiver by Brown was not rendered moot by standby counsel’s limited assistance in this case.
For all of the reasons set forth in this opinion and, in light of the presumption against waiver of an accused’s fundamental constitutional right to counsel, we reverse and remand.
Reversed and remanded.
VAUGHT, C.J., and ROBBINS and ABRAMSON, JJ., agree.
HART and GRUBER, JJ., dissent. | [
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DOUG MARTIN, Judge.
| Appellant D.L.R. appeals from the February 25, 2011 decree of adoption, entered by the Mississippi County Circuit Court, that granted the petition for adoption filed by the appellees, N.K. and C.K., whereby appellees adopted a baby girl born to D.L.R. and his then-wife, T.W. On appeal, D.L.R. contends that the circuit court erred in finding that he was a parent not having custody and that he was unreasonably withholding his consent to the adoption. We find no error and affirm.
D.L.R. married T.W. on May 4, 2004. On May 8, 2008, T.W. gave birth to a baby girl, K.R. T.W. initially put K.R. up for adoption in June 2008 with D.L.R.’s 1 acquiescence, but when the adoption agency was unable to find a placement to T.W.’s liking, she withdrew her consent. In July 2008, T.W. again placed the baby for adoption with a different agency, and K.R. was placed with appellees that same month. T.W. signed a “Consent to Adoption, Waiver of Notice, and Consent to Guardianship” on July 18, 2008, and the appellees filed a petition for adoption in Benton County Circuit Court on July 21, 2008. A first amended petition for adoption, filed on August 27, 2008, alleged that D.L.R. had refused to sign a consent to the adoption, which was not in the child’s best interest.
D.L.R. filed an answer to the petition for adoption on September 10, 2008, denying that the adoption was proper. After a period of discovery, during which time K.R. remained in the, custody of the appel-lees, the circuit court held a hearing on the adoption petition on October 8, 2010. Following that hearing, the circuit court issued a detailed letter opinion in which it found that D.L.R. was a parent not having custody within the meaning of Arkansas Code Annotated section 9 — 9—220(c)(3) (Repl.2009); that D.L.R. was unreasonably withholding his consent to the adoption; and that the adoption was in the best interest of the child.
The circuit court entered its decree of adoption on February 25, 2011. D.L.R. filed a timely notice of appeal on March 18, 2011, and now argues on appeal that the circuit 13court’s decision was not based on clear and convincing evidence that he was a parent “not in custody” of the child.
As just noted, the trial court in this case ordered termination of D.L.R.’s parental rights pursuant to Arkansas Code Annotated section 9 — 9—220(c)(3) (Repl. 2009), which authorizes a trial court to order termination where a parent who does not have custody unreasonably withholds consent to adoption. The facts warranting termination of parental rights must be proved by clear and convincing evidence. Henderson v. Callis, 97 Ark. App. 163, 245 S.W.3d 174 (2006). In reviewing the trial court’s evaluation of the evidence, this court will not reverse unless the trial court’s findings are clearly erroneous. Id. (citing Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997)). Clear and convincing evidence is that degree of proof which will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. Furthermore, this court will defer to the trial court’s evaluation of the credibility of the witnesses. Id.
Section 9-9-220 provides a mechanism by which a parent may relinquish his or her parental rights or a court may terminate parental rights. Specifically, section 9 — 9—220(c)(3) provides that,
(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:
|4(3) That in the case of a parent not having custody of a child, his or her consent is being unreasonably withheld contrary to the best interest of the child.
Neither the pertinent statutes nor Arkansas case law appears to provide a clear definition of “custody,” insofar as the adoption statutes are concerned; however, Black’s Law Dictionary defines the term as “[t]he care, control, and maintenance of a child awarded by a court to a responsible adult. Custody involves legal custody (decision-making authority) and physical custody (caregiving authority), and an award of custody usu. grants both rights.” Black’s Law Dictionary 441 (9th ed.2009). “Legal custody” is then defined as “[t]he authority to make significant decisions on a child’s behalf, including decisions about education, religious training, and healthcare,” id. at 442, and “physical custody” is defined as “[t]he right to have the child live with the person awarded custody by the court.” Id. at 1263. See also In re Adoption of Baby Boy B, 2012 Ark. 92, at 15, 394 S.W.3d 837, 845-46 (Danielson, J., concurring) (citing Black’s Law Dictionary for a definition of custody).
At the hearing on the adoption petition, D.L.R. testified that he was twenty-five years old and lived with his parents, both presently and “off and on” during his marriage to T.W. D.L.R. said that his marriage to T.W. was troubled and that the “whole marriage” was “back and forth” to his parents’ house. D.L.R. acknowledged that, during the marriage, he and T.W. got into physical fights, one of which .led to his being charged with domestic battery and ordered not to have any further contact with her. While T.W. was pregnant with K.R., D.L.R. said that he worked “off and on” at temporary jobs. He contended that he contributed about $200 a month, “when [he] had it,” to help T.W. pay for rent and groceries.
| ¡¡Regarding the first attempt at adoption, D.L.R. claimed to have had no prior knowledge that T.W. was going to put the baby up for adoption. He testified that he found out about it when, after an argument, he went to his parents’ house, and when he returned home, the baby was gone. At that time, D.L.R. and T.W. went to pick the baby up together and brought her back to Osceola. As for the second attempt (the one in which K.R. was placed with the appellees), D.L.R. said that he and T.W. had been arguing and he had left the marital home again.
After the baby had been placed for adoption again, D.L.R. and his parents hired an attorney, and his parents initiated a guardianship proceeding. When asked whether he thought it was in K.R.’s best interest for his parents to be the child’s guardian, D.L.R. replied, “Well, it’s the best interest of me.” He also acknowledged that it was his intent, had the guardianship petition been granted, for his parents to raise K.R.
D.L.R. further admitted that he had “a number of criminal offenses” throughout the years, including a conviction for do mestic battery arising out of his fight with T.W., and that he had been in jail from June 9, 2008, through September 28, 2008, as a result of the domestic-battery conviction. Although D.L.R. claimed that he supported T.W. and K.R. after the baby was born, he acknowledged that he was not employed at that time and had no records to indicate what type of support he had provided. He also conceded that he had | ^neither had nor sought visitation with the child since June 2008, when the child was barely one month old.
T.W. also testified at the hearing, stating that there were problems in her marriage to D.L.R., including excessive drinking and physical abuse. At the time T.W. became pregnant with K.R., D.L.R. was not living in the marital home full time, and she said that the “in and out” nature of his residency had existed “pretty much since the beginning of [their] marriage.” Sometimes D.L.R. would move in with his parents for weeks at a time, T.W. said.
T.W. testified that, during her pregnancy, she discussed adoption with D.L.R. and told him that she could not “handle” having another baby. She acknowledged that D.L.R.’s parents had taken the baby to the doctor on one occasion and kept her a “few times,” but she denied that D.L.R.’s parents kept K.R. for extended periods of time. T.W. stated that, at the time she signed the consent to adoption, K.R. was in her custody and possession, and there was never a time when she released the baby to D.L.R.’s custody. T.W. further said that, when she first approached D.L.R. about the adoption, he “seemed okay with it” but changed his mind after speaking with his parents. Moreover, at the time she gave K.R. up, D.L.R. was not living in the house with her.
In its findings of fact, the circuit court noted that the evidence was undisputed that D.L.R. and T.W. did not live together after June 9, 2008, and that D.L.R. had neither physical nor court-ordered custody of K.R. after that time. Moreover, since July 31, 2008, K.R. had been in the sole custody of the appellees. For the period of time from the baby’s 17birth in May 2008 until June 9, 2008, the court noted that D.L.R. “lived as much with his parents ... as he did with T.W.” After the baby’s birth, D.L.R., according to his own testimony, “left the marital home on a number of occasions because of disagreements with T.W.,” and when he left the home, he left the baby with T.W. Emphatically rejecting D.L.R.’s argument that he was a parent with custody solely because he was her biological father, the court wrote as follows:
Since June 9, 2008, [D.L.R.] has not seen [K.R.], he has not attempted contact with her, he has not requested contact with her prior to October 8, 2010, and he has not contributed to her support and maintenance. Between June 9, 2008 and July 18, 2008, [K.R.] was in the sole physical custody of [T.W.]. Since July 31, 2008, [K.R.] has been in the sole physical custody of [the appellees]. During the period of June 9, 2008 to July 21, 2008, [D.L.R.] had neither actual physical custody nor court-ordered custody of [K.R.]. At the time of the filing of the Petition for Adoption on July 21, 2008, [D.L.R.] did not have physical custody or court-ordered custody of [K.R.], During the period of July 21, 2008 to October 8, 2010, [D.L.R.] had neither actual physical custody nor court-ordered custody of [K.R.],
[D.L.R.] contends he was a parent in custody of [K.R.] solely because he is her biological father and was married to [T.W.] at the time of the filing of the Petition for Adoption. Custody in a general sense is defined by Black’s Law Dictionary, 4th Edition “as the care and possession of a thing, and carries with it the idea of the thing being within the immediate personal care and control of the person to-whose custody it is subjected; charge; immediate charge and control ..., implying responsibility for the protection and preservation of the thing in custody,” citing Southern Carbon Co. v. State, 171 Misc. 566, 13 N.Y.S.2d 7, 9 [ (N.Y.Ct.Cl.1939) ]. Black’s Law Dictionary and the New York Court were defining custody as it related to “a thing” and not a young living child, yet one having custody of a young child owes a much greater duty and responsibility to “keep, guard, care, watch, inspect, preserve or secure” a child than some thing.
[D.L.R.] asserts his right of custody of [K.R.], yet he failed to accept and perform his duty and responsibility as a custodial parent in “keeping, guarding, caring, watching, inspecting, preserving and securing” the health, safety and welfare of [K.R.]. [D.L.R.] cannot point to any act taken by him that is evidence that he stepped forward to take on the parental role of providing the necessities of life required for the health, safety, and welfare of [K.R.], The evidence is that [D.L.R.] walked away without providing for the child and with little concern whether anyone |selse was providing for [K.R.]. [D.L.R.] abdicated all parental responsibilities owed to [K.R.].
The court [therefore] finds that [D.L.R.] is not a parent having custody of [K.R.] within the meaning of Ark. Code Ann. § 9 — 9—220(c)(3).
D.L.R. argues on appeal that the trial court’s findings of fact and conclusions of law were not supported by the evidence, and he asserts that he was “definitely a custodial parent.” He contends that, “if a man is married and leaves home for less than a week, his wife does not have a right to give his child to an adoption agency without his consent.” The evidence introduced at the hearing, however, belies D.L.R.’s arguments. There was an abundance of evidence that, for the four or so weeks between KR.’s birth on May 8, 2008, and June 9, 2008, the date on which he does not dispute that he left the marital home, he lived at his parents’ house nearly as much as he did with his wife, and during those times that he returned to his parents’ home, he left the baby with T.W. As the trial court also noted, by D.L.R.’s own testimony, he had contributed very little financially to K.R.’s care, given that he had no income for most of 2008.
In making a decision of whether to terminate the parental rights of a party, the trial court has a duty to look at the entire picture of how that parent discharged his duties as a parent, the substantial risk of harm the parent imposed, and whether or not the parent was unfit. In re Adoption of K.M.C., 62 Ark.App. 95, 969 S.W.2d 197 (1998); Waeltz v. Ark. Dep’t of Human Servs., 27 Ark.App. 167, 768 S.W.2d 41 (1989). Moreover, while it is well-settled that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents, parental rights will not be enforced to the detriment or |9destruction of the health and well-being of the child. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). We affirm the circuit court’s thorough and well-stated decision on this issue.
As noted above, D.L.R.’s argument on appeal is directed to whether the circuit court erred in finding that he was a parent not having custody. He asserts that, “because [he] was a custodial parent, the question of best interests is not reached.” In so doing, D.L.R. cites Lindsey v. Ketchum, 10 Ark.App. 128, 661 S.W.2d 458 (1983), for the proposition that “any evidence having probative value as to the present or prospective fitness of a parent is admissible to determine whether consent has been unreasonably withheld.” He makes no argument, however, that the trial court erred in finding that he unreasonably withheld his consent, nor does he point to any evidence that would have supported a contrary result. For that reason, we decline to raise or discuss this issue on appeal. See, e.g., Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, 385 S.W.3d 285 (noting that the appellate courts will not develop a party’s arguments for him).
Affirmed.
ROBBINS and HOOFMAN, JJ., agree.
. T.W. is not a party to this appeal.
. D.L.R. and T.W. had three other children together: a set of twins who were bom in December 2005 and given up for adoption with both parents' consent, and a boy bom in March 2007. When the couple divorced in 2008, T.W. obtained custody of that child pursuant to the divorce decree. T.W. also had five other children from previous marriages.
. The adoption agency, American Adoptions, Inc., was located in Benton County. The case was subsequently transferred to Mississippi County, where D.L.R. and T.W. lived.
. We note that, although the transcript of that hearing is 211 pages long, D.L.R.⅛ abstract consists only of four pages. The appellees have submitted a 73-page supplemental abstract that cures the glaring deficiencies in D.L.R.’s abstract.
. D.L.R. does not challenge the trial court’s finding that the appellees are fit to raise K.R.
. Court records introduced during the hearing showed that D.L.R. had pled guilty, at various times, to one count of criminal use of a prohibited weapon; one count of fraudulent use of a credit card; one count of third-degree domestic battery, second offense; and four counts 'of violation of thé Arkansas Hot Check Law. | [
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CLIFF HOOFMAN, Judge.
| ] This appeal concerns the division of property acquired by appellant Denise McCormick and appellee Albert McCormick prior to and during their marriage. In six points for reversal, Denise argues that the circuit court misapplied Arkansas Code Annotated section 9-12-315 (Repl. 2009) and erred in dividing the parties’ property unequally. We affirm.
Denise is a medical doctor, and Albert is long retired from General Motors. The parties started living together in 2002 and in 2004 began commingling their funds, after Denise had resolved some past tax issues she had with the IRS. They were married in January 2006. In July 2009, Denise filed for divorce. Albert answered and counterclaimed for divorce.
At trial, one of the major issues litigated was the status and division of the forty-acre marital residence, referred to as the Fulton County property, which the parties purchased in February 2006. As part of the transaction, the parties traded an eight-acre piece of property Albert had purchased in 2001, referred to as the Glen-coe property. The parties received a [^credit of $90,000 for the Glencoe property toward the $132,500 purchase price of the Fulton County property. The parties executed a mortgage for the remaining portion of the purchase price, which was satisfied later in 2006. Title to the Fulton County property was taken solely in Al bert’s name. Albert testified that this was done at Denise’s insistence. Both testified that they feared that the IRS would seek to attach Albert’s property if the title was in Denise’s name.
The parties also contested the division of various bank accounts, retirement accounts, and certificates of deposit, all of which were titled solely in Albert’s name. Some of these accounts existed prior to the marriage, and others were acquired during the marriage. Also at issue was the division of four time-share properties titled in both names and other personal property, including various automobiles.
The circuit court entered its decree of divorce on June 6, 2011, granting Denise a divorce on the grounds of eighteen-months’ separation. The court found that the Fulton County property was marital property and ordered it sold at auction. The decree provided that Albert would receive the first $90,000 in proceeds on the basis that the down payment was made with his premarital property. The court gave two time-share properties to each party, finding that the total value of the two properties each party received was approximately equal. Although the court found $20,000 in one of the accounts to be marital property, it did not award any of the funds to Denise after finding that she had sold marital property after filing for divorce and had not divided the proceeds with Albert. Denise was also ordered to pay Albert $2,708 for a debt he paid on her Cadillac from her proceeds from the Fulton ^County property. Denise was awarded a Sebring automobile free of debt and an Avalanche vehicle with its associated debt. Albert was awarded a 2010 Chevrolet pick-up, a riding mower, guns, and other personal items. Denise was made solely responsible for any tax liability she may owe. The court’s findings of fact were attached to the decree. In those findings, the circuit court noted that Denise admitted selling various items of marital property totaling $22,300. The court also applied the “unclean hands” doctrine in connection with Denise’s contention that she was entitled to one-half of all of the accounts held by Albert because she had made contributions to those accounts. The court discussed in this regard Denise’s testimony that she had received a discharge in bankruptcy in 2003 that discharged approximately $166,000 in tax debt to the IRS; her testimony that she did not file tax returns for the years 2006 through 2009 because Albert would not provide her with the information that she needed to do so; and her claim that she did not have any bank accounts or real property titled in her name because this was demanded by Albert. The court noted Albert’s testimony to the contrary and stated that it was perplexed as to Denise’s failure to file tax returns during the marriage. The court also could not find any rational basis for her failure or neglect to title the real property or bank accounts in her name.
On June 14, 2011, Denise filed a motion for new trial, claiming that the division of property was clearly against the preponderance of the evidence and that the court deviated from the statute without stating its reasons. After being granted an extension of time, Albert filed his response to the motion on July 11, 2011. The motion for new trial was deemed denied on July 14, 2011, and Denise timely filed her notice of appeal on July 22, 2011.
|4On appeal, Denise contends that the circuit court erred in (1) finding that Albert should receive $90,000 off the top from the sale of the parties’ marital home; (2) dividing the four time-share properties owned by the parties without regard to their value; (3) awarding Albert all accounts in his name despite the fact that income used to open these accounts was acquired from both parties’ income; (4) failing to account for any increase in the investments made by the parties during their marriage; (5) failing to consider the contributions of the parties for their property and its appreciation during their marriage and dividing it equally; and (6) failing to divide the marital personal property equally, including a 2010 Chevrolet truck valued at $30,000.
The statutory authority for a circuit court’s division of property upon divorce is set forth in Arkansas Code Annotated section 9-12-815 (Repl.2009). Section 9-12-315(a) gives a court the discretion to divide equitably both marital and nonmarital property after considering certain listed factors in order to achieve an equitable distribution. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993); Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). While the circuit court must consider these factors and state its reasons for dividing property unequally, the court is not required to list each factor in its order, nor is it required to weigh all of the factors equally. Bamburg v. Bamburg, 2011 Ark.App. 546, 386 S.W.3d 31. The overriding purpose of the property-division statute is to enable the court to make a division of property that is fair and equitable under the circumstances. Baxley v. Baxley, 86 Ark.App. 200, 167 S.W.3d 158 (2004). With respect to the division of property in a divorce case, we review the circuit court’s findings of fact and affirm them unless they are clearly erroneous or |fiagainst the preponderance of the evidence. Id. A circuit court’s finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id. In reviewing a circuit court’s findings, we defer to the circuit judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id. We note that the statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Id. We will not substitute our opinion as to what exact interest each party should have; we will decide only if the order is clearly wrong. Bellamy v. Bellamy, 2011 Ark.App. 433, 2011 WL 2395205.
Denise first argues that the circuit court erred in awarding Albert the first $90,000 from the sale of the property and equally dividing the remaining proceeds. At trial, she testified that she helped to pay off $20,000 of the outstanding mortgage balance on the Glencoe property. She and attorney Ed Chandler also recounted the events surrounding the execution of a “Memo of Understanding” prepared by Chandler and signed by both Denise and Albert. The memo stated that the Fulton County Property “is owned by us 50-50. The deed is in the name of Albert McCormick, but is jointly owned property.” Albert acknowledged in his testimony at the hearing and in his deposition that Denise helped to make payments on the Glencoe property, but added that he later bought her interest out prior to their marriage by giving her one-half of what the couple had paid.
| fiDenise relies on this court’s decision in Boggs v. Boggs, 26 Ark.App. 188, 761 S.W.2d 956 (1988), for the proposition that, where transactions result in great difficulty in tracing the manner in which nonmari-tal property and marital property have been commingled, the property acquired in the final transaction may be declared marital property. Boggs does not resolve the question in the present case because the circuit court found that, although titled solely in Albert’s name, the Fulton County property was marital property because it was purchased after the parties’ marriage. Boggs did not, however, purport to eliminate a circuit court’s ability to make an unequal division of marital property in situations where there is difficulty in tracing the funds — separate and marital — used to purchase the property.
In Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), the supreme court considered a similar situation and stated:
It is a well settled rule that property acquired for a consideration paid in part out of community funds and in part out of separate funds of one of the spouses is in part community and in part separate property. The two estates own such property by way of a sort of tenancy in common.
Id. at 48, 655 S.W.2d at 388 (quoting Hancock Mut. Life Ins. Co. v. Bennett, 133 Tex. 450, 128 S.W.2d 791 (1939)). See also Wright v. Wright, 29 Ark.App. 20, 23, 779 S.W.2d 183, 184 (1989). A party to a divorce is ordinarily entitled to the return of his or her premarital property. See Ark.Code Ann. § 9-12-315(a)(l)(B)(2). In essence, the circuit court in the present case reached the same result. The court found that the parties received a credit of $90,000 toward the Fulton County property’s purchase price of $132,500 because they traded the Glencoe property Albert owned prior to the marriage for the marital property. It recognized the separate-property aspect of the transaction by awarding Albert the first $90,000 from the sale |7proceeds. This is an implicit finding crediting Albert’s testimony that he had already repaid Denise for her interest in the Glencoe property. The court then recognized the marital property aspect by ordering that the remaining proceeds be divided equally between the parties. This complied with section 9-12-315(a) in that the court made an unequal division of an item of marital property and explained its reason for doing so. See Gilliam, supra.
Denise next argues that the circuit court erred in its division of the parties’ four time-share properties because, contrary to the circuit court’s finding, the properties she received were not of equal value to the properties Albert received. Denise testified that the parties purchased a time share at Orange Lake Resort in Florida for $18,000; one at Grand Regency in Branson, Missouri, for $11,000; another time share at the West Gate Resort in Branson for $9000; and one at Stormy Point in Branson for $20,000. She did not give any dates for the purchases. Albert testified that not all of the time shares were marital property. He said that the parties had separated and divided certificates of deposit totaling $40,000 in 2007 or 2008. He used his portion of that money to pay off the Stormy Point time share. There was no other evidence concerning the value of the four time-share properties. The circuit court found that the Orange Lake and Stormy Point properties were of “approximate equal value” to the West Gate and Grand Regency properties. Albert was awarded the Orange Lake and Stormy Point properties, and Denise was awarded the West Gate and Grand Regency properties.
The burden was on Denise as the appellant to bring up a record sufficient to demonstrate that the circuit court was in error. Coatney v. Coatney, 2010 Ark.App. 262, 377 ┴8S.W.3d 381. In opening statements, Denise’s attorney said that the four time shares “may not have ascertainable value at this time.” There was no proof presented of what the current value of each property was at the time of trial, or how the properties compared to each other. This is imperative in that the market for real property has changed dramatically since late 2007. See Mitchell v. Powell, 194 Ark. 638, 109 S.W.2d 155 (1987) (holding that courts can take judicial notice that market values of real property fluctuate). Section 9-12-315(a) requires that marital property be valued as of the date of the decree. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). Where the circuit court found that the properties awarded to each party were of approximately equal value and there is insufficient information for us to conclude otherwise, Denise’s argument must fail for lack of a record showing error. Coatney, supra; see also Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986).
Because Denise’s third, fourth, and fifth points are related, we discuss them together. She argues in her third point that the circuit court erred in awarding Albert all of the bank accounts and investment accounts titled solely in his name despite the testimony that the funds in those accounts came from both parties and that the property had been invested to such an extent that tracing the contributions of each party was impossible. Her fourth point is that the circuit court erred in its award of the financial accounts to Albert because they increased in value during the marriage and that increase should be divided equally. In her fifth point, Denise contends that the trial court erred in failing to consider the contributions of the parties toward acquisition, preservation, and appreciation of their property during the marriage in accordance with Ark.Code Ann. § 9-12-315(1)(A) (viii).
|9Penise testified that, at the time of the marriage, Albert had an investment account at Edward Jones and a Sun America annuity. She also testified that ten certificates of deposit were purchased during the marriage for $10,000 each. She said that she deposited money into an account in Albert’s name with the account number ending in 2254 that was used to purchase the certificates. She said that she deposited $181,000 into the account in 2006 and that the parties .used the money for living expenses and various purchases. According to Denise, her income was approximately $20,000 per month, while Albert’s Social Security and pension totaled $2,000 per month. She introduced the statements on this account for the years 2006 through 2009. However, she added that there was no documentation that she made any deposits into the account. Albert testified that both parties had contributed money to the bank account, with Denise’s contributions “far exceeding” his in 2006, although he stated that much of this had been used to pay for improvements to the farm property. He acknowledged that approximately $20,000 in the account was marital property. Both parties testified that, from mid-2007 onward, Denise only contributed enough money to cover the farm expenses.
Albert’s annuity with Sun America was opened in August 1996. The balance of that account as of December 31, 2005, shortly before the parties married, was $39,987.65. As of March 31, 2011, this account had grown to $66,390.48. Most of this was due to changes in market value; however, there was a deposit of $20,000 in January 2010, which Albert admitted came from marital funds. Albert also had an account with Edward Jones prior to the marriage. The value of the account as of December 31, 2005, was $35,127.54. Albert transferred the account to one at Charles Schwab in May 2009, when the value was |in$49,892.81. A Schwab statement shows that at the end of February 2010, the account was worth $62,399.30. The Schwab account was closed on July 21, 2010, when Albert withdrew $61,708.07. That same day, he deposited $60,000 into a money-market account.
There were exhibits introduced by Albert showing three certificates that were purchased during the marriage. Albert acknowledged that all but one of the certificates were opened with marital funds. These certificates, solely in Albert’s name, showed a face value of $10,000 each when opened. Each had appreciated approximately $480 to $650 due to interest payments when they were converted into other certificates. There was one certificate in the name of both parties, opened May 1, 2006, in the amount of $10,000, and closed on February 28, 2007, with a balance of $10,287.76. Both parties testified that Denise cashed in the certificate that was titled in both names. Albert also said that the parties divided four other certificates, with each party receiving two. He said that he used the money he received to pay off one of the time shares. He denied that there were any remaining certificates.
We begin by noting that, although tracing of money or property into different forms may be an important matter, it is only a tool, a means to an end, not an end in itself; the fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986); Cate v. Cate, 35 Ark.App. 79, 812 S.W.2d 697 (1991). Also, contrary to Denise’s argument, the increase in value of nonmarital property such as an individual retirement account acquired prior to marriage is specifically excluded from the definition of “marital property.” Ark.Code Ann. § 9-12—315(b)(5). Our case law has | u articulated an exception to this rule for the active appreciation of nonmarital assets. In Layman v. Layman, 292 Ark. 539, 543, 731 S.W.2d 771, 774 (1987), the supreme court held that “when one spouse makes significant contributions of time, effort and skill which are directly attributable to the increase in value of nonmaritai property ... the presumption arises that such increase belongs to the marital estate.” The supreme court recently affirmed this rule undér the current version of the statute in Farrell v. Farrell, 365 Ark. 465, 476, 231 S.W.3d 619, 627 (2006), wherein it stated that “we follow an ‘active appreciation’ analysis in determining if one spouse’s efforts significantly contributed to the increase in value of nonmarital assets .... ” The circuit court asked Denise about her experience running a business. Denise testified that she had operated a used-ear business, her medical practice, and had also been a teacher. Other than this, there was no evidence as to contributions of time, effort, and skill that she had made to increase the value of these investments. Therefore, we cannot say that the circuit court erred in failing to consider the increase in the value to be marital property here.
The main premise of Denise’s argument under these points on appeal is that she contributed funds to Albert’s bank account that existed prior to the marriage. However, her argument does not recognize the possibility that the circuit court could make some other disposition of the property, even if the property was found to be marital. The court did this with its division of the $20,000 in marital funds in the checking account. It essentially said that this $20,000 was marital property but that Denise had sold marital property in excess of that amount and kept the proceeds. Accordingly, the court awarded Albert the entire $20,000, plus 112additional sums for other items.
In addition, the circuit court found that, despite her contributions, Denise was not entitled to her claim for one-half of all of the real property and financial accounts held in Albert’s name due to the fact that she was guilty of unclean hands. Fault or unclean hands are not one of the factors listed for the court’s consideration in dividing marital property unequally pursuant to Ark.Code Ann. § 9-12-315(a)(1)(A). However, the specific enumeration of these factors within the statute does not preclude a circuit court from considering other relevant factors, where excluding other factors would lead to absurd results or deny the intent of the legislature to allow for the equitable division of property. Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007). While section 9-12-315 requires the circuit court to consider certain factors and to state the basis for an unequal division of marital property, it does not require the court to list each factor in its order or to weigh all factors equally. See Gilliam v. Gilliam, 2010 Ark. App. 137, 374 S.W.3d 108. Moreover, the application of these factors is a factual determination; therefore, this court will not reverse the division of marital property unless that division is clearly erroneous or clearly against the preponderance of the evidence. Singleton v. Singleton, 99 Ark.App. 371, 260 S.W.3d 756 (2007). As noted above, the circuit court can make an unequal division of marital property if it specifies its reasons for the unequal division. Gilliam, supra. In the present case, that reason was the circuit court’s conclusion that Denise had unclean hands. Our courts have upheld unequal divisions of marital property based upon fault considerations. Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985); Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001); ┴13Forsgren v. Forsgren, 4 Ark.App. 286, 630 S.W.2d 64 (1982).
Here, the circuit court heard Denise’s testimony concerning her income and deposits into Albert’s accounts. There was testimony that Denise’s $17,000 student loan was paid off from this account, that she gave -her son $30,000 for a swimming pool, and that she gave $5000 to her son to purchase some property with a mobile home. The court also considered her admission that she had sold marital property without dividing the proceeds with Albert. The court further found that Denise sought two orders of protection against Albert but that there was insufficient evidence to warrant the orders. Finally, the court also considered Denise’s testimony concerning why she did not want to have the real property or bank accounts titled in her name. In essence, the court made a credibility finding that Denise’s explanation was not reasonable and, on that basis, declined to award her an equal share of the marital property. In light of the deference owed to the circuit court, we cannot say that it clearly erred in its division of the marital property.
Finally, in her sixth point, Denise argues that the circuit court erred in awarding Albert a 2010 Chevrolet pick-up truck that was free of debt because she had contributed to the payment of the vehicles Albert owned at the time of the marriage, the latest of which was traded in on the 2010 truck.
As of December 2001, when the parties first started discussing marriage, Albert had a 2000 Ford truck and a recreational vehicle, while Denise had a 2000 Yukon Denali, a 1992 Ford pick-up, and a 1993 Jeep Wrangler. Denise testified that, as a trade-in for Albert’s 2006 truck, he used a farm truck that she had paid for and his 2000 Ford truck. Denise stated that | HAlbert then purchased a 2008 Dodge truck for $11,700. Denise had a 2000 Chrysler Sebring convertible that she said had not been licensed since March 2010. She acquired a 2008 Avalanche in 2010 and still owed $20,000 on it at the time of trial. Albert testified that he had nothing to do with the purchase of the Avalanche. He said that he had a new Ford pick-up at the time the parties married. He further testified that he traded that vehicle in and was allowed $20,000 for it toward the purchase of a 2006 Chevrolet truck to be used on the farm. He also said that he did not have a car payment until he leased a Cadillac for Denise, which she later traded in on the Avalanche.
As with Denise’s second point, we must affirm because she did not bring up a sufficient record to show that the circuit court erred. In our review of the record, we could not find any testimony concerning a 2010 Chevrolet truck or establishing the value of the various vehicles involved. Both parties were awarded vehicles free of debt. After the separation, Denise purchased a vehicle on which she still owed $20,000. The circuit court traced Albert’s premarital Ford truck toward the purchase of a 2006 Chevrolet truck that he traded toward the purchase of the 2008 Dodge truck, which he then traded for the purchase of the 2010 Chevrolet. Although the 2008 Dodge may have been marital property, we cannot say that the circuit court clearly erred in its division of the vehicles because, even if the 2010 Chevrolet truck was marital property, the court still explained its reasons for the unequal division based on the finding that Denise was guilty of unclean hands.
Affirmed.
ROBBINS and MARTIN, JJ., agree.
. In answers to requests for admissions, Albert acknowledged that Denise contributed $40,000 to the two properties. | [
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DONALD L. CORBIN, Justice.
|, Appellant Partne A. Daugherty appeals an order of the Pulaski County Circuit Court finding that Appellees Jacksonville Police Department, its Chief of Police Gary Sipes, and Gary Fletcher, Mayor of Jacksonville (collectively referred to as the “Department”), did not violate the provisions of the Freedom of Information Act (FOIA), codified at Ark.Code Ann. §§ 25-19-101 to -110 (Repl.2002 & Supp.2011). On appeal, Daugherty asserts that the circuit court erred in finding that (1) the Department did not violate the FOIA by refusing her first FOIA request on the basis that it was “too broad or burdensome”; (2) the Department’s response to her second FOIA request imposing a charge of $2,475.90 for copying the requested records was permissible pursuant to Ark.Code Ann. § 25-19-105; (3) the Department timely and reasonably complied with her third FOIA request; (4) there was no misconduct as a result of the Department’s destruction of public records. We affirm in part and reverse and remand in part.
|2The instant FOIA action stems from requests made by Daugherty after she was stopped for speeding by Jacksonville Police Officer Paul Huddleston on June 24, 2010. On August 13, 2010, Daugherty submitted the first of three requests to the Jacksonville Police Department pursuant to the FOIA. In it, she requested, inter alia:
3. A complete copy of any and all audio and video images/recordings of, including but not limited to, any and all patrol vehicle video and separate body recordings with all audio made by Officer Josh Wheeler from July 24, 2010, through August 13, 2010.
4. A complete copy of any and all audio and video images/recordings of, including but not limited to, any and all patrol vehicle video and separate body recordings with all audio made by Officer Hud-dleston from July 24, 2010, through August 13, 2010.
In response, Jacksonville City Attorney Robert Bamburg sent Daugherty a letter, dated August 16, 2010, stating that part of the information in the FOIA request would be provided. But with regard to the requested audio and video recordings of Officers Wheeler and Huddleston, the Department refused to provide them, noting that
your requests are too broad and burdensome. Between the two, there were over Four Hundred (400) separate recordings/incidents, and duplication of such will take too much time and is too broad of a request in nature.
Four days later on August 20, 2010, Daugherty sent a second FOIA request, again asking for all audio and video recordings from Officers Wheeler and Huddleston from June 24, 2010, through August 20, 2010. The city attorney responded, again refusing to turn [sover the requested audio and video recordings on the basis that Daugherty’s requests were “too broad and burdensome.” The letter also stated as follows:
After extensive research, there are over One Thousand (1,000) separate recordings and incidents. Duplication of such will take an estimated Ninety (90) hours to prepare, and the FOI Act allows for the City to assess charges for such and require payment prior to compiling said information. To do so would be payable at a rate of Twenty-seven and 51/100 Dollars ($27.51) per hour to compile and produce....
If you wish for such an extreme request to be prepared, please forward a deposit to the City Clerk’s Office for the estimated costs to do so — Two Thousand Four Hundred Seventy-five and 90/100 Dollars ($2,475.90).
Daugherty filed a third FOIA request on September 2, 2010. Therein, she requested all audio and video recordings for Officer Huddleston on June 24, 2010, for Officer Wheeler on June 24-25, 2010, and all audio recordings recorded via the shoulder and body mies of Officer Wheeler for June 25, 2010, from 10:00 a.m. until 5:00 p.m. By letter dated September 7, 2010, the city attorney responded that Daugherty had already been provided the audio and video recordings from Officers Wheeler and Huddleston on June 24, 2010, and that all other audio and video recordings from that time frame had been purged from the Department’s system.
Thereafter, on September 9, 2010, Daugherty filed a complaint in circuit court, alleging that the Department’s refusal to provide the requested records violated the FOIA. She further asserted that the Department’s requirement that she pay $2,475.90 for copying of the records is not permitted under the FOIA. Finally, she alleged that the Department knowingly and purposefully engaged in spoliation of evidence, in an attempt to circumvent the FOIA, by destroying public records.
|4A hearing was held on Daugherty’s complaint on September 16, 2010. Daugherty testified that she was prompted to file the FOIA requests after receiving a speeding ticket when she believed she was not speeding. She stated that after realizing she had requested recordings from a period beginning July 24, 2010, instead of June 24, 2010, she filed a new FOIA request with the correct date. According to Daugherty, she wrote on the request that she would pick up the records and even provide a flash drive if needed. Daugherty admitted that she received a copy of the traffic citation issued to her on June 24, 2010, but explained that the copy did not satisfy her FOIA request, as her request was for all audio and video recordings of traffic stops made by Officer Huddleston on June 24, 2010, and all stops by Officer Wheeler on June 24-25, 2010.
After Daugherty testified, the Department moved for a directed verdict, asserting that Daugherty had received her copy of the requested video and that the continued litigation over the issue was frivolous. The circuit court denied the motion for directed verdict. Thereafter, Captain Ken Boyd of the Jacksonville Police Department testified and explained that the Department has an audio- and video-recording system used and activated by patrol officers. The recorders in the patrol units are wirelessly downloaded, and the files are transferred to a server stored in Captain Boyd’s office. According to Captain Boyd, access to the server is limited and password protected. He also stated that the recordings are maintained for a forty-five-day period and then purged from the system. The purpose of the forty-five-day limitation is to ensure adequate storage space on the server, according to Captain Boyd. Captain Boyd also testified that Daugherty’s FOIA requests entailed over 1,000 files that ^required converting the files before burning them to a disc. He further stated that this process takes an average of five minutes per video, meaning it would have taken approximately ninety hours to download all of those to disc. According to Captain Boyd, he did not have the technology to remove any given day’s recordings to a disc, flash drive, or any other media. He stated that when he pulls up a particular video to burn it to a disc, it goes through a conversion process because if he simply tried to copy the files to give to someone, the files would be unreadable.
Following arguments to the bench, the circuit court announced it was dismissing Daugherty’s complaint after finding there was no violation of the FOIA by the Department. A written order was entered of record on September 29, 2010. Therein, the circuit court found that Daugherty’s August 13 request received a timely and compliant response. Moreover, the circuit court found that the Department’s requirement that Daugherty pay $2,475.90 to obtain the records requested in her August 20 FOIA request was reasonable. Finally, the court found that the Department’s inability to comply with the September 2 request because of the automatic forty-five-day purging of records was not unreasonable and did not constitute arbitrary and capricious behavior. From that order comes the instant appeal.
The appropriate standard of review on appeal from a bench trial is not whether there is substantial evidence to support the findings of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. City of Rockport v. City of Malvern, 2010 Ark. 449, 374 S.W.3d 660. A finding is clearly 16erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id.
For her first point on appeal, Daugherty argues that the circuit court clearly erred in finding that she received a timely and compliant response to her August 13 FOIA request from the Department. Specifically, she argues that the Department clearly violated the mandatory disclosure requirements of the FOIA when it refused to provide the requested video and audio recordings on the basis that her request was “too broad and burdensome.” In response, the Department asserts that the circuit court did not clearly err where the evidence demonstrated that it made a good-faith attempt to determine which records Daugherty desired and to then provide them. Moreover, the Department states that it searched the Department’s records and timely informed and provided to Daugherty “certain records requested, certain requirements for Appellant to obtain other records, and the unavailability of specific records as requested.”
In finding that there was no FOIA violation by the Department with regard to Appellant’s August 13 request, the circuit court concluded that she received a timely and compliant response from the Department through an August 16, 2010 letter from City Attorney Bamburg, which explained that the request “covered over Four Hundred (400) separate recordings, was too broad in nature, and would need to be narrowed in order for the City to further respond.” This finding is clearly erroneous.
This court has held that for a record to be subject to the FOIA and available to the public, it must be (1) possessed by an entity covered by the Act, (2) fall within the Act’s 17definition of a public record, and (3) not be exempted by the Act or other statutes. See Nabholz Constr. Corp. v. Contractors for Pub. Prot. Ass’n, 371 Ark. 411, 266 S.W.3d 689 (2007). Here, there is no dispute as to whether the requested records are public records subject to disclosure under the FOIA; nor is there any dispute over the fact that the records do not fit within any recognized exception. The question for this court, then, is whether the Department’s August 16 letter, stating that the request was “too broad or burdensome,” was compliant with the dictates of the FOIA, as determined by the circuit court. A review of the FOIA, as well as case law interpreting it, reveals that the response was not compliant with the requirements of the FOIA.
A review of section 25-19-105(a)(2)(C) reveals that a citizen making a request under the FOIA must provide a request that is “sufficiently specific to enable the custodian to locate the records with reasonable effort.” There is no allegation that Daugherty’s request was not specific enough; rather, the Department refused to comply with the request on the basis that it deemed it too broad and too burdensome. Nothing in the FOIA allows a public agency to decline to reply to a request on this basis. While the Department could have requested that Daugherty make her request more specific, that was not the problem with her request. The Department’s response, refusing to comply with the request, is in direct conflict with the Act and with this court’s case law interpreting the Act. We have explained that we liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. See Nabholz, 371 Ark. 411, 266 S.W.3d 689; Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004). Furthermore, we broadly construe the 1 sFOIA in favor of disclosure. See id. Section 25-19-105(a)(l)(A) provides that “[ejxcept as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.” Ark. Code Ann. § 25-19-105(a)(1)(A) (Supp.2009). Subsection (a)(2)(A) provides that “[a] citizen may make a request to the custodian to inspect, copy, or receive copies of public records.” Ark.Code Ann. § 25-19-105(a)(2)(A) (Supp.2009). Pursuant to subsection (d)(2)(A) of the statute, “the custodian shall furnish copies of public records if the custodian has the necessary duplicating equipment,” upon request and payment of a fee as provided in subsection (d)(3). Ark.Code Ann. § 25-19-105(d)(2)(A) (Supp.2009).
Simply stated, the Department’s August 16 letter in response to Daugherty’s first FOIA request, stating that it would not provide the requested records because her request was too broad and burdensome was not a timely and compliant response. The FOIA does not give the custodian of records the power to pick and choose which requests it may comply with. Nor does the custodian get to choose to release only records it deems relevant, such as the video of Daugherty’s stop in this case. We disagree with the Department’s assertion in its brief that it cannot be said that it denied Daugherty her rights under FOIA where its “repeated efforts to provide Appellant with information reasonably deemed relevant in response to her requests.” (Emphasis added.) There is simply no relevancy requirement in the FOIA. Accordingly, it was error for the circuit court to find that the Department complied with Daugherty’s August 13 FOIA request.
1 nNext, Daugherty argues that the circuit court erred in finding that the Department’s requirement that she pay a deposit of $2,475.90 to obtain the records did not violate the FOIA. Daugherty asserts that the legislature specifically clarified and limited a custodian’s ability to charge unreasonable copying and duplication fees in an attempt to deter citizens from “reasonable access” to public records. The Department asserts to the contrary that the circuit court’s finding — that its requirement of a deposit was in compliance with section 25-19-109 — was reasonable and should be affirmed.
In finding that the Department did not violate the FOIA by requiring Daugherty to post a deposit comparable to the amount it was going to cost to produce the records, the circuit court noted that after being informed that her request was too broad and burdensome, Daugherty filed a subsequent request, dating back to June 24, thereby increasing the request. It further cited to the Department’s response, that the new request encompassed more than 1,000 separate recordings and would have required approximately ninety hours to prepare. As a result, the circuit court then concluded that
Defendants’ requirement of a deposit in compliance with the terms of ACA § 25-19-109, is reasonable, and consistent with the testimony of Jacksonville Police Captain Kenny Boyd. The Court further finds that Plaintiff, by her own admissions and through Exhibit D3, timely received said letter from Bamburg but never posted said deposit with the City Clerk.
| inGiven Plaintiffs failure to submit payment of the deposit in a timely fashion, the Court finds no evidence to indicate the Department’s policy or actions were arbitrary, capricious, or in violation of the Act.
The question for this court on appeal is whether the circuit court correctly interpreted section 25-19-109 to authorize the imposition of the fee required by the Department in response to Daugherty’s FOIA request.
At the outset, we note that we review issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. See Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493. Section 25-19-109 provides that
(a)(1) At his or her discretion, a custodian may agree to summarize, compile, or tailor electronic data in a particular manner or medium and may agree to provide the data in an electronic format to which it is not readily convertible.
(2) Where the cost and time involved in complying with the requests are relatively minimal, custodians should agree to provide the data as requested.
(b)(1) If the custodian agrees to a request, the custodian may charge the actual, verifiable costs of personnel time exceeding two (2) hours associated with the tasks, in addition to copying costs authorized by § 25-19-105(d)(3).
(2) The charge for personnel time shall not exceed the salary of the lowest paid employee or contractor who, in the discretion of the custodian, has the necessary skill and training to respond to the request.
(c) The custodian shall provide an itemized breakdown of charges under subsection (b) of this section.
Ark.Code Ann. § 25-19-109 (Repl.2002). This court has not previously addressed this section of the FOIA, which deals with special requests for electronic information. In looking at the plain language of the statute, however, it is apparent that this section does not apply to the situation at hand. Subsection (a) provides that a custodian may agree to “tailor electronic Indata in a particular manner or medium” and may provide the data “in an electronic format to which it is not readily convertible.” Here, the testimony of Captain Boyd clearly demonstrated that the requested audio and video recordings were routinely converted before being saved to a disc. Although Captain Boyd stated that the conversion process takes approximately five minutes per video to complete before it is saved to a disc, this does not mean that the data is not readily convertible. Moreover, Captain Boyd’s testimony that he did not have the knowledge to transfer the records via USB to an external hard drive does not equate to a finding that section 25-19-109 applies to make the imposition of a charge acceptable in this circumstance.
Moreover, we agree with Daugherty that this section governs instances when a custodian discretionarily agrees to provide public records in a certain electronic format, either by summarizing, compiling, or tailoring data not readily convertible. This is in line with section 25-19-105(d)(2)(C), which states that a custodian is not required to compile information or create a record in response to a FOIA request. Thus, if a custodian discretionar-ily complies with such a request, section 25-19-109 is applicable and allows the custodian to require a deposit. Here, Daugherty did not request a summary, compilation, or tailored data not readily convertible; rather, she asked for copies of certain audio and video records. At the hearing, Daugherty testified that she has multiple software programs available that will open formats other than those typically opened through Windows. Daugherty stated that she requested only copies of the recordings and did not ask for any type of special conversion or any type of compilation.
|12The applicable provision to her request is section 25-19-105(d), which provides in relevant part as follows:
(2)(A) Upon request and payment of a fee as provided in subdivision (d)(3) of this section, the custodian shall furnish copies of public records if the custodian has the necessary duplicating equipment.
(B) A citizen may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software.
(C) A custodian is not required to compile information or create a record in response to a request made under this section.
(S)(A)(i) Except as provided in § 25-19-109 or by law, any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.
Ark.Code Ann. § 25-19-105(d)(2)(A)-(d)(3)(A)(i) (Supp.2011). Thus, under this provision, where Daugherty simply requested a copy of the files, the Department could not charge fees that exceeded the cost of reproduction and certainly could not include the hourly rate of Captain Boyd in assessing costs to Daugherty. The circuit court erred in its interpretation and application of section 25-19-109 and thereby erred in concluding that the Department’s requirement of a fee in the amount of $2,475.90 was reasonable and not a violation of the FOIA.
We turn now to Daugherty’s remaining two points on appeal. First, she argues that it was error for the circuit court to conclude that the Department timely and reasonably complied with her September 2 FOIA request, wherein she narrowed her previous requests to copies of audio and video recordings of Officer Huddleston on June 24 and Officer 11sWheeler on June 24-25. Second, she asserts that the circuit court erred in finding no misconduct in the Department’s destruction of public records. The Department counters that the circuit court’s rulings were not erroneous as it did timely respond to Daugherty’s requests and that the purging of records did not violate the FOIA.
Following receipt of Daugherty’s third FOIA request, the Department responded by letter dated September 7, 2010. Therein, the Department stated that Daugherty had previously received the audio and video recordings of Officers Wheeler and Huddleston on June 24, 2010. The response also stated that the Department was providing certain requested audio recordings from June 24, as well as copies of certain traffic citations that had been issued. With regard to the remaining requests for audio and video recordings, the Department stated that those records had been purged from the system and were no longer available.
In addressing the September 2 FOIA request and the purging of records, the circuit court stated that
Defendants timely and reasonably complied with Plaintiffs latest FOI request through a September 7, 2010, letter from City Attorney Bamburg. Said letter noted that recordings from said dates had been purged from the Jacksonville Police Department’s system, and the Court notes that the standard purging date for such records would have been August 8, 2010, from information provided by the parties and Capt. Boyd’s testimony. Further, the Court notes that automatic purging of the system after a Forty-Five (45) day period is not an unreasonable period of recording preservation and does not constitute arbitrary or capricious behavior, recognizing doing so is Department policy with application to any such recordings contained in the Department’s system not specifically preserved otherwise.
Thus, the circuit court’s determination that the Department timely and reasonably replied to the September 2 FOIA request necessarily hinges on its finding that the Department’s purging of the records after forty-five days was not unreasonable.
|HIn arguing that the circuit court’s ruling was erroneous, Daugherty points to the fact that the Department purged these records after it received her FOIA request of August 4, and without providing the requested records. She avers that the August 4 FOIA request was adequate notice to the Department to preserve the records for a legal challenge. Daugherty admits that the FOIA is silent as to a specific retention-requirement period, but that in this case the Department’s conduct violated Ark. Code Ann. § 14-2-204, which in turn implicates a violation of the FOIA.
First, Daugherty’s reliance on Ark. Code Ann. § 14-2-204(a)(l)(A) (Supp. 2011), which requires a seven-year-maintenance period for certain municipal police records, as evidence of a FOIA violation is not properly before us. We will not consider this argument, as Appellant is raising this argument for the first time on appeal. It is axiomatic that we will not address an argument not raised below. May Constr. Co., Inc. v. Town Creek Constr. & Dev., LLQ 2011 Ark. 281, 383 S.W.3d 389. This is so because we must determine the issues upon the record that was made in the circuit court, and issues not raised below cannot serve as the basis for a decision in this court. See Yanmar Co., Ltd. v. Slater, 2012 Ark. 36, 386 S.W.3d 439; Palmer v. Cline, 254 Ark. 393, 494 S.W.2d 112 (1973).
The only issue that was properly raised and ruled on with regard to the retention policy is whether the Department’s actions of purging the records violated the FOIA. Turning to the FOIA itself, we agree with Appellant that there is no specific retention period 11sfor public records set forth in the Act. The Attorney General has issued several opinions on the retention of records within the context of FOIA. The Attorney General has specifically recognized that the FOIA does not require that the document be retained because the FOIA is not a records-retention statute. Op. Ark. Att’y Gen. 2000-220 (2000). However, in answering the question of whether destruction of certain police department documents, in the absence of any stored reproduction of the records, would constitute a violation of the FOIA, the Attorney General opined as follows:
It is my opinion that the destruction of any police department documents in the absence of a stored reproduction would violate the FOIA only if the documents were destroyed after a request for access to the documents had been presented to the Depai'tment. However, such destruction, even in the absence of a FOIA request, could violate a separate criminal law.
The FOIA does not contain any records retention requirements. That is, the FOIA does not state how long public records must be retained. However, the destruction of public records that have been requested under the FOIA could constitute a violation of the Act, which carries a criminal penalty. (Such violation, if done negligently, constitutes a misdemeanor. A.C.A. § 25-19-104.) Moreover, a citizen who has been aggrieved by such destruction may be entitled to civil relief. A.C.A. § 25-19-107. Finally, it is important to note that destroying a public record (even one that has not been requested under the FOIA), if done with the requisite intent, constitutes “tampering with a public record,” within the meaning of A.C.A. § 5-54-121, and is a felony.
Op. Ark. Att’y Gen. 2001-340 (2001) (footnote omitted).
|lfiWe are precluded from addressing the question of whether a violation of a statute, such as section 14-2-204, necessarily implicates a violation of the FOIA. We are limited to the issue raised below, specifically that the Department’s action was a violation of Ark.Code Ann. § 25-19-104 (Supp.2011). That section provides that “[a]ny person who negligently violates any of the provisions of this chapter shall be guilty of a Class C misdemeanor.”
Thus, regardless of how improvident the Department’s retention policy may be, the question is whether Daugherty proved that the Department negligently violated the FOIA. The circuit court rejected this argument, and we cannot say this was error based on the record before us. Captain Boyd testified at the hearing that it was Department policy to purge the system that maintained the audio and video recordings every forty-five days. He explained that this policy was based on the need to maintain sufficient memory on the server. There was no evidence presented by Daugherty to refute this testimony. Accordingly, we cannot say the circuit court erred in finding that the Department timely complied with Daugherty’s third FOIA request or that the Department did not violate section 25-19-104 in purging the records pursuant to its forty-five-day policy.
Affirmed in part; reversed and remanded in part.
. Daugherty filed a previous FOIA request for the audio and video recordings on August 4, 2010. Thereafter, she filed a complaint in circuit court alleging a violation of the FOIA. The circuit court rejected her claim, and the Arkansas Court of Appeals affirmed in Daugherty v. Sipes, 2012 Ark. App. 233, 2012 WL 1111405.
. The July 24 date was incorrect, as Daugherty intended to request records dating back to the day of her traffic stop, which was June 24.
. The Department arrived at this sum by estimating the number of hours it would take to copy the requested records and multiplying this by $27.51 per hour, the hourly wage of Captain Boyd, who is one of the persons responsible for copying such records.
. Although there is no specific retention requirement in the FOIA applicable to this case, it should be noted that the Director of the Department of Information Systems shall establish standards and policies governing the retention of electronic records of state agencies. See Ark.Code Ann. § 25-18-702 (Supp. 2011). | [
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KAREN R. BAKER, Justice.
|!Appellant, Scottsdale Insurance Company (Scottsdale), appeals a grant of partial summary judgment in favor of Morrow Valley Land Company, LLC (Morrow Valley), and Ben Cain (Morrow Valley and Cain referred to collectively herein as ap-pellee). In granting summary judgment, the Washington County Circuit Court concluded that Scottsdale had a duty to defend appellee as its insured in an action for nuisance and trespass. On appeal, Scottsdale claims that the circuit court erred in granting summary judgment on the duty-to-defend claim because the pollution-exclusion provision in the insurance policy is unambiguous and excludes defense of pol lution claims. On cross-appeal, appellee asserts that the circuit court erred in denying in part its motion for attorney’s fees. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1), (2), and (5) (2011). We affirm on direct appeal and dismiss the cross-appeal.
On September 11, 2009, sixty-six plaintiffs filed the underlying lawsuit in Warren | gCounty, Tennessee, against Ben Cain, Morrow Valley Land Company, LLC, Hale Mountain Land Company, LLC, Tyson Foods, Inc., Tyson Farms, Inc., and Sun-best Farms, Inc. The complaint alleged that the defendants owned and operated a concentrated animal-feeding operation (CAFO) in Morrison, Tennessee, which included ten poultry houses with between 400,000 and 600,000 chickens at any given time. The plaintiffs alleged that the defendants’ conduct constituted a public and private nuisance, as well as a continuing trespass, under Tennessee law.
Appellee provided notice of the lawsuit to Scottsdale on September 21, 2009, and demanded that Scottsdale defend and indemnify it based on its insurance coverage with Scottsdale. In 2008, Scottsdale issued a commercial general-liability (CGL) insurance policy to Morrow Valley on its business described as “Broiler Chicken Houses.” The policy’s effective dates were from December 9, 2008, to December 9, 2009 (Policy No. CLS1562044). The initial policy included only the business located in Morrison, Tennessee. On June 1, 2009, Scottsdale added Morrow Valley’s business located in Waldron, Arkansas, to the policy.
Scottsdale notified appellee by letter dated October 1, 2009, that it would not provide defense or indemnification coverage basing its denial in part on the pollution-exclusion provision contained in the insurance policy.
On December 22, 2009, appellee filed a petition for declaratory judgment in the | .Washington County Circuit Court, which it amended on January 5, 2010, adding Scottsdale’s insurance agent, Regions Insurance, Inc. (Regions), and seeking damages for breach-of-contract claims against Scottsdale and Regions. Scottsdale filed an amended and substituted answer to ap-pellee’s second amended petition on July 9, 2010.
On June 8, 2010, appellee moved for summary judgment. Scottsdale filed a response to appellee’s motion for summary judgment on August 13, 2010. The circuit court conducted a hearing on the motion on October 1, 2010. On April 6, 2011, the court granted partial summary judgment to appellee on the duty-to-defend claim. In granting partial summary judgment in favor of appellee, the circuit court, citing to Crisler v. Unum Insurance Company of America, 366 Ark. 130, 233 S.W.3d 658 (2006), found “that Arkansas has the ‘most significant relationship’ to the issues at hand; therefore, Arkansas law governs the insurance contract entered into by the parties.” Relying on Anderson Gas & Propane, Inc. v. Westport Insurance Corporation, 84 Ark.App. 310, 318, 140 S.W.3d 504, 509 (2004), the court also found that the meaning of the phrase “pollution exclusion” was ‘fairly susceptible to more than one reasonable interpretation and, thus, is ambiguous’ under Arkansas law.” The court stated that the duty to defend, therefore, arose because a possibility of coverage existed due to the ambiguity in the policy concerning whether the “pollution exclusion” covered the activities claimed in the underlying lawsuit. Thus, the court concluded that there was no genuine issue of material fact as to whether Scottsdale had a duty to defend the underlying suit on behalf of appellee because the pollution exclusion was ambiguous under Arkansas law. The court denied appellee’s motion for summary judgment on the claims that Scottsdale had |4a duty to indemnify appel-lee and acted in bad faith in denying appel-lee’s request to defend and indemnify, finding that there were genuine issues of material fact on both claims.
On April 12, 2011, appellee filed a motion for supplementary relief, requesting attorney’s fees and expenses related to its defense of the lawsuit. Appellee requested attorney’s fees for three firms or attorneys: (1) $87,897.90 in fees and expenses incurred by the Leader, Bulso & Nolen Firm, of Nashville, Tennessee; (2) $4,077.89 in fees and expenses incurred by Steven Palley with Howrey, LLP, of Washington, D.C.; and (8) $72,033.24 in fees and expenses incurred by David Stubbs, General Counsel of Morrow Valley, of Lincoln, Arkansas. On April 15, 2011, Scottsdale filed a motion for Rule 54(b) certification and to stay the action pending appeal.
The circuit court held two hearings, and on June 16, 2011, the court issued two orders — one order addressing the two pending motions (Fee Order) and one amended and substituted order granting and denying summary judgment in part (Amended Order). The Fee Order agreed to grant appellee’s legal fees and expenses as to the first two firms, but the court declined to award attorney’s fees based on Stubbs’s representation. In its June 16, 2011 Fee Order, the court stated that it would not award fees charged by Stubbs because Stubbs was in-house counsel for Morrow Valley, as well as other entities owned by Richard Latta; he was paid a salary for his role as in-house counsel; the evidence did not show that the fees Stubbs charged were related to the duty to defend and were unrelated to his capacity and role as in-house counsel; and the evidence did not show that the fees were reasonable and customary.
|Jn the Fee Order, the court also granted Scottsdale’s motion for Rule 54(b) certification and to stay the case pending appeal, upon Scottsdale’s posting of a su-persedeas bond in the amount of $91,475.79. The court stated that it would enter an amended and substituted order granting partial summary judgment and including the Rule 54(b) certificate.
In the Amended Order, the court added a Rule 54(b) certificate, finding “that an immediate, interlocutory appeal on the order finding a duty to defend in the above order is necessary in order to avoid hardship and injustice that will result if an appeal is not allowed.”
Scottsdale filed a notice of appeal on June 21, 2011, from the Amended Order. Appellee filed a notice of cross-appeal on June 24, 2011, from the Amended Order and the Fee Order regarding its request for attorney’s fees and expenses paid to Stubbs.
For reversal, Scottsdale argues that (1) Tennessee law, not Arkansas law, governs the interpretation and application of the Scottsdale CGL policy; and (2) under either Tennessee or Arkansas law, the pollution exclusion unambiguously applies and operates to preclude coverage and defense obligations for the persistent and widespread industrial pollution released from an industrial-poultry farm.
I. Choice of Law
In its order granting partial summary judgment, the circuit court found that Arkansas has the most significant relationship to the issues in the case and, therefore, Arkansas law governed the insurance contract between the parties. The court found that the parties contracted for the insurance in Arkansas, they negotiated the policy in Arkansas, that the place of performance was Arkansas, and that the domicile of both parties was Arkansas. The court 1 fiacknowledged that the poultry farm involved in the Tennessee litigation was located in Tennessee, but nonetheless concluded that Arkansas law applied to the insurance policy.
We must first determine whether the insurance contract should be analyzed under our choice-of-law rules. Crisler, 366 Ark. at 132, 233 S.W.3d at 660. If we conclude that the contract does not contain an effective choice of law by the parties, we apply the significant-relationship analysis. Id. Because there are no disputed facts, our standard of review is de novo.
We first look at the contract at issue, Policy No. CLS1562044. Appellee asserts on appeal that the insurance policy contains an effective choice-of-law designation, directing us to the endorsement that states that Scottsdale “will submit to the jurisdiction of any court of competent jurisdiction within the United States of America” at the request of Morrow Valley. The endorsement further provides that “[a]ll matters which arise will be determined in accordance with the law and practice of the Court. In a suit instituted against any one of them under this contract, [Scottsdale] agrees to abide by the final decision of the Court or of any Appellate Court in the event of an appeal.” Scottsdale correctly counters that appellee first raises this issue on appeal; therefore, this court is precluded from considering it. See Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 207 S.W.3d 525 (2005). Appellee never raised and developed the argument that the service-of-suit clause was also a choice-of-law designation before the circuit court, and the circuit court did not have an opportunity to rule on the issue. We will not address an argument raised for the first time on appeal. Id.; see also Brown v. Kelton, 2011 Ark. 93, 380 S.W.3d 361.
|7The insurance policy does not contain an effective choice-of-law provision; therefore, we apply the significant-relationship analysis. In Crisler, supra, we set forth the following list of five factors to determine which state has the most significant relationship to a particular case when the parties’ contract does not contain an effective choice-of-law- provision: “(1) the place of contracting; (2) the place of negotiation of the contract; (3) the place of performance; (4) the location of the subject matter of the contract; (5) the domicile, residence, nationality, place of incorporation and place of business of the parties.” 366 Ark. at 133, 233 S.W.3d at 660 (citing Restatement (Second) Conflict of Laws § 188 (1971)). In this case, the circuit court made specific findings implementing the Crisler analysis, stating that the “place of contracting was Arkansas; the place of negotiating was Arkansas; the place of performance was Arkansas; the domicile of both parties is Arkansas; and, though, the poultry farm is physically located in Tennessee, the Court concludes that Arkansas rather than Tennessee law applies to the contract.”
Scottsdale argues that Tennessee law should apply because the policy was purchased to insure a single property located entirely in Tennessee against losses occurring in Tennessee. This argument is not supported by the facts in this case. In the affidavit of James R. Latta filed in support of appellee’s motion for summary judgment, Látta, as the managing member of Morrow Valley, stated that Morrow Valley purchased the insurance policy from its insurance agent, Eric Herget, a Regions employee, in Little Rock, Arkansas; that Morrow Valley is an | ^Arkansas company with offices in Lincoln, Arkansas; and that the policy was purchased and issued to provide liability protection for one of the farms that Morrow Valley owns and operates in Morrison, Tennessee. Morrow Valley later added the poultry farm located in Waldron, Arkansas, to the policy. The policy was issued to Morrow Valley, at its principal address in Lincoln, Arkansas, by INSURISK Excess & Surplus, with an address in Little Rock, Arkansas. From these facts, we conclude that the circuit court did not err in finding that Arkansas is the state with the most significant relationship. The circuit court acknowledged that the poultry farm was physically located in Tennessee, but did not find that fact sufficient to overcome the other factors in concluding that Arkansas has the most significant relationship to the transaction and parties in this case, and we agree.
II. Summary Judgment on Duty to Defend
We then turn to whether, under Arkansas law, the circuit court erred in granting summary judgment. A party is entitled to summary judgment if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows 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” on the issue set forth in the party’s motion. Ark. R. Civ. P. 56(c)(2) (2011). The burden of proving that there is no genuine issue of material fact is upon the moving party. Ryder v. State Farm Mut. Auto. Ins. Co., 371 Ark. 508, 268 S.W.3d 298 (2007). On appellate review, we must determine whether summary judgment was proper based on whether the evidence presented by the moving party left a material question of fact unanswered. Id. We view the proof in the light most favorable to the party resisting the 19motion, resolving any doubts and inferences against the moving party, to determine whether the evidence left a material question of fact unanswered. Id.
Where the appeal is from the grant of summary judgment in cases involving an insurance policy, we liberally construe any ambiguities in the policy in favor of the insured. State Auto Prop. & Cas. Ins. Co. v. Ark Dep’t of Envtl. Quality, 370 Ark. 251, 258 S.W.3d 736 (2007). The court, and not the jury, determines the construction and legal effect of the policy, except when the meaning of the language depends upon disputed extrinsic evidence. Id.
Scottsdale argues that no duty to defend arose because the unambiguous language of the policy’s pollution exclusion negated its duty to defend appellee from the claims in the underlying lawsuit. We must first apply the test for determining a liability carrier’s duty to defend. See Murphy Oil USA, Inc. v. Unigard Sec. Ins. Co., 347 Ark. 167, 61 S.W.3d 807 (2001). As a general rule, the pleadings against the insured determine the insurer’s duty to defend. Id. The duty to defend is broader than the duty to indemnify; the duty to defend arises when there is a possibility that the injury or damage may fall within the policy coverage Id. Where there is no possibility that the damage alleged in the complaint may fall within the policy coverage, there is no duty to defend. Id.
To trigger a duty to defend under a CGL policy, the complaint must allege facts that would come within the coverage of the policy. Id. The pleadings in the underlying suit alleged that the defendants operated the CAFO “in such a manner that it generates noxious gases, smoke, dust, fumes, odors and particulate in great quantities which migrate off the | mproperty and are disseminated in great quantities through the surrounding environment.” The plaintiffs claimed that these gases, smoke, dust, fumes, odors, and particulate caused them to suffer “grievous discomfort” by effecting nausea and sleep disturbance and by forcing the plaintiffs to stay inside their homes with windows closed to diminish the stench. The plaintiffs stated that the foregoing conduct interfered with and denied them the use and peaceful enjoyment of their properties and resulted in a decrease in the property value of their properties. The plaintiffs alleged that the foregoing conduct constituted a public and private nuisance and a continuing trespass under Tennessee law.
Scottsdale provided a CGL-insurance policy during the relevant period alleged in the complaint. The policy stated that Scottsdale was obligated to defend appel-lee against any suit seeking damages because of bodily injury or property damage to which the coverage applied. However, Scottsdale relied on the policy’s pollution exclusion, which follows, to deny coverage:
This insurance does not apply to:
f. Pollution
(1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants.”
The policy defined the term “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”
To determine whether a duty to defend arises in this suit, we must examine the language in the contract from which the purported duty arises. A critical part of this Inexamination turns on whether the language in the insurance contract is ambiguous. Where the terms of the insurance policy are clear and unambiguous, the policy language controls. Essex Ins. Co. v. Holder, 370 Ark. 465, 261 S.W.3d 456 (2007). Absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. Id. (citing Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997)). We need not resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. Id. We will not rewrite the terms of an insurance contract under the rule of strict construction against the insurer so as to bind the insurer to a risk that the contract plainly excluded and for which it was not paid. Id.
Language is ambiguous when there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). Ordinarily, the question of whether the language of an insurance policy is ambiguous is one of law to be resolved by the court; however, where parol evidence has been admitted to explain the meaning of the language, the determination becomes one of fact for the jury to determine. Id.
The critical language for this court to examine is the pollution-exclusion provision in the insurance contract. Scottsdale argues that the language is plain and unambiguous; therefore, the claims in the underlying lawsuit are excluded by the express terms of the pollution exclusion. In the alternative, Scottsdale argues that if the court determines that the language is ambiguous, Morrow Valley is an “industrial polluter.” Scottsdale argues that Minerva Enterprises, Inc. v. Bituminous Casualty Corporation, 312 Ark. 128, 851 S.W.2d 403 | ]⅞(1993), instructs us that the goal of the pollution exclusion is to prevent widespread and persistent industrial polluters from obtaining insurance coverage for their industrial polluting activities.
We first look to whether the pollution exclusion is ambiguous. Appellee argues that we have held that pollution exclusions are ambiguous as a matter of law. On the other hand, Scottsdale contends whether pollution exclusions are ambiguous always depends on the context, citing Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). Arkansas law is clear on this issue without the need to resort to law from other jurisdictions. We have stated:
Although the meaning of an ambiguity may become a question for the fact-finder if parol evidence has been admitted to resolve that ambiguity, see Minerva Enter., Inc. v. Bituminous Cas. Corp., 312 Ark. 128, 851 S.W.2d 403 (1993), where the meaning of the language of a written contract does not depend on disputed extrinsic evidence, the construction and legal effect of the contract are questions of law. See Duvall v. Massachusetts Indem. & Life Ins. Co., 295 Ark. 412, 748 S.W.2d 650 (1988); Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972).
Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 341, 10 S.W.3d 846, 850 (2000). We have expressly rejected the contention that “when the terms of a written contract are ambiguous, its meaning is always a question of fact.” Id. at 341, 10 S.W.3d at 851.
Arkansas appellate courts have interpreted pollution exclusions similar to the present exclusion in three cases, Minerva, supra; State Auto, supra; and Anderson, supra. In each case, the court concluded that the pollution exclusion at issue before it was ambiguous.
In Minerva, the insured owned a mobile-home park, and the park’s septic system backed up into a tenant’s home, flooding the home with solid and liquid sewage. Minerva, |13312 Ark. at 129, 851 S.W.2d at 403. The insurer refused to defend or indemnify based on a pollution exclusion in the policy. The insured filed an action for declaratory judgment against the insurer for its failure to defend. The trial court granted summary judgment in favor of the insurer on the basis that the policy contained an exclusion for “waste” and that raw sewage is “waste.” Id. On appeal, the issue centered on the interpretation of the term “pollutants” contained in the policy’s pollution exclusion. The court concluded that the pollution exclusion was ambiguous because it was not clear from the policy’s language whether a single incident involving the back-up of a septic tank in a mobile-home park was necessarily the kind of damage the pollution-exclusion clause was intended to exclude. Id. at 134, 851 S.W.2d at 406. The court further applied the rule of ejusdem generis to consider the term “waste” within the context of the entire list of examples of pollutants, and all of the pollutants contained in the list were related to industrial waste. In Minerva, the court noted that the initial determination of ambiguity must rest with the court, but if the court determines that “ambiguity exists, then parol evidence is admissible and the meaning of the ambiguous terms becomes a question for the fact finder.” Id.
The court of appeals, in Anderson, supra, examined a pollution exclusion claimed to exclude an insurer’s duty to defend. As in Minerva, the court of ap-
peals concluded that the language of the pollution exclusion was ambiguous because the term “gasoline” was not included in a policy’s definition of “pollutants” and the terms “irritant” or “contaminant” could reasonably be construed as either including or excluding the term “gasoline.” Anderson, 84 Ark.App. at 318, 140 S.W.3d at 508-09. The court reversed the grant of | ^judgment in favor of the insurer on the duty to defend because the language of the exclusion was fairly susceptible of more than one meaning and there was a possibility that the injury or damage may fall within the policy coverage. Id.
In State Auto, supra, we were again presented with a dispute over the interpretation of a pollution-exclusion clause; however, the appeal involved the duty to indemnify, which is not as broad as the duty to defend. There, the insurer argued that the circuit court erred in granting summary judgment in favor of the insured because the court relied on Minerva and Anderson, which were wrongly decided, and because the circuit court failed to consider the parol evidence that the insurer offered to remove any alleged ambiguity. State Auto, 370 Ark. at 260, 258 S.W.3d at 743. We rejected the argument that we should overrule the cases as wrongly decided, but reversed and remanded on the second point. We concluded that the pollution exclusion was ambiguous because it used the same language that the Minerva court deemed ambiguous. Id. We then continued to the next step in the application of Minerva: an examination of any extrinsic or parol evidence submitted by the parties to resolve the ambiguity. Id. We noted that in Minerva we applied ejus-dem generis, but observed that there the insurer did not apparently offer any extrinsic evidence to resolve the ambiguity; whereas, in State Auto, the insurer did offer extrinsic evidence in favor of its interpretation. Id. We reversed the order awarding summary judgment because the circuit court had not considered the extrinsic evidence. Id.
In the present case, we have a pollution exclusion that is substantially similar to the exclusions we reviewed in Minerva and State Auto. Scottsdale contends that Morrow Valley 11Bis a persistent, industrial polluter, which takes this within the contemplation of this court’s distinction regarding the ambiguity in Minerva. While the Minerva court deemed the industrial-polluter argument a “plausible” one, such an argument does not resolve the holding that the language is ambiguous. By our own definition, language is ambiguous if it is susceptible to more than one reasonable interpretation. Elam, 346 Ark. at 297, 57 S.W.3d at 169. Our cases have made it clear that we have often deemed the definition of the term “pollutants” in pollution-exclusion clauses ambiguous. Here, the plaintiffs in the underlying lawsuit claimed that the defendants have caused noxious gases, smoke, dust, fumes, odors, and particulate to migrate off their property and then disseminated them into the surrounding environment. As in Minerva, it is unclear whether the claimed gases, smoke, dust, fumes, odors, and particulate from the CAFO would constitute “solid, liquid, gaseous or thermal irritant or contaminant” falling within the definition of “pollutants” contained in the insurance policy’s pollution exclusion. We conclude that whether the dissemination of such gases, smoke, dust, fumes, odors, and particulate comes within the definition of “pollutants” is fairly susceptible to more than one reasonable interpretation; therefore, the pollution exclusion is ambiguous.
Then, we turn to the second part of the analysis under Minerva. We must determine whether the parties have submitted any extrinsic evidence in sup port of their interpretation of the clause. It is the province of the court to determine the construction and legal effect of contract, “except when the meaning of the language depends upon disputed extrinsic evidence.” Smith, 340 Ark. at 340, 10 S.W.3d at 850 (quoting Southall v. Farm Bureau Mut. |, Ins. Co., 276 Ark. 58, 60, 632 S.W.2d 420, 421 (1982)). Summary judgment is not proper when the parties submit disputed extrinsic evidence to support their proffered meaning of the disputed term. State Auto, 370 Ark. at 260, 258 S.W.3d at 743. When, however, parol evidence has not been admitted to resolve the ambiguity, the meaning of an ambiguity is a question of law, and it is error for a court to submit the issue to a jury. See Smith, 340 Ark. at 341, 10 S.W.3d at 850.
Here, an examination of the record on appeal does not reveal that the parties submitted extrinsic evidence in support of their interpretation of the word “pollutant” in the clause before us. Accordingly, we conclude that the trial court did not err in finding that the pollution exclusion was ambiguous and that appellee was entitled to summary judgment on the duty to defend because there is a possibility that the injury or damage may fall within the policy coverage, and we affirm.
III. Cross-Appeal on Denial of Attorney’s Fees
In the Fee Order, the circuit court denied appellee’s motion for attorney’s fees for services rendered by Stubbs, its in-house counsel. Appellee had requested reimbursement for Stubbs’s representation in the amount of $72,033.24 in time and expenses.
However, this issue is not properly before us because there is not a final, appeal-able order with respect to the cross-appeal. The circuit court entered two orders on the same date, June 16, 2011: the Fee Order ruled on appellee’s motion for supplemental relief, which included its request for attorney’s fees, and Scottsdale’s motion to stay pending Rule 54(b) certification and appeal; however, the Amended Order was the only order that included a 117Rule 54(b) certificate, and it solely certified the issue involving the duty to defend. It is clear that Scottsdale appeals from the Amended Order, and appellee appeals from the Fee Order. Appellee claims in its notice of cross-appeal that it appeals from the Amended Order and the “order on plaintiffs’ request for supplementary relief entered in this matter of June 16, 2011.” Appellee states in its notice that it particularly appeals the portion of that order that denied it complete reimbursement for its attorney’s fees and costs paid to Stubbs; however, that issue was resolved in the Fee Order. Although Rule 54(b) provides that the trial court may direct final judgment with regard to fewer than all of the claims or parties by an express determination, supported by specific factual findings, that there is no just reason for delay, the circuit court did not make such a determination here with respect to its denial in part of appellee’s motion for supplemental relief. See, e.g., Richardson v. Rodgers, 329 Ark. 402, 947 S.W.2d 778 (1997) (“An order is not ap-pealable when it fails to mention an inter-venor’s claim and contains no recitation of facts which would allow a piecemeal appeal under Ark. R. Civ. P. 54(b).”). The Rule 54(b) certificate does not certify the issue regarding Stubbs’s fees, and we cannot reach its merits on appeal.
We dismiss the cross-appeal without prejudice because the Fee Order is not a final, appealable order within the requirements of Rule 2 of the Arkansas Rules of Appellate Procedure-Civil.
Affirmed on direct appeal; dismissed without prejudice on the cross-appeal.
CORBIN, DANIELSON, and GOODSON, JJ., concur.
. All plaintiffs in the underlying lawsuit are referred to as the plaintiffs, and all defendants in the underlying lawsuit are referred to as the defendants.
. Herget's employment relationship is shown through the affidavit of Kimberly K. Pergeson, the chief financial officer of all of Latta's companies, including Morrow Valley. | [
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PAUL E. DANIELSON, Justice.
| Appellant Grady Tracy appeals from the order of the Saline County Circuit Court awarding custody of the parties’ minor child, M.T., to appellee Theresa Den-nie. His sole point on appeal is that the circuit court erred in its admission of the attorney ad litem’s report. We affirm the circuit court’s order.
The instant appeal arises from a paternity action, filed December 22, 2009, by Ms. Dennie. In it, she contended that Mr. Tracy was the natural father of M.T. and requested custody of the child, with Mr. Tracy having visitation. She also sought child support, both retroactive and future. Mr. Tracy answered the petition, admitting that he was the child’s natural father, and counterclaimed for a finding of paternity and custody.
On January 14, 2010, Mr. Tracy filed his motion for the appointment of an attorney ad litem “to facilitate the case at hand and to further protect the rights of the child.” The | ^circuit court granted the motion and appointed Sherry Burnett as M.T.’s attorney ad litem. Just prior to the final hearing in the matter, during an in-chambers conference, Mr. Tracy objected to the circuit court’s receipt of the ad litem’s written report. Subsequent to that conference, the circuit court brought up Mr. Tracy’s objection at the hearing. The following colloquy then took place:
CIRCUIT COURT: The primary issue we discussed in chambers is the appropriateness of the Court receiving a written report from the ad litem. [Mr. Tracy] objected to my receiving and reviewing the report prior to— prior to having a hearing, and we discussed the matter of Administrative Rule 15, issues related to [an] ad litem’s responsibilities in a custody case. And there was — I think everybody agrees there’s no controlling case law on point in Arkansas or anywhere else that I know, other than — I guess that would be controlling because, potentially, there could be a United States Supreme Court case on it, but there is not as far as we know.
I have reviewed the Rule. There is — it is open to interpretation. I interpret it to mean that the ad litem shall — has obviously the regular attorney responsibilities, duties, and privileges, but also has — has—is required by the Rule to act additionally as an investigator, as an advocate, not only for the child’s best interest, but also— well, not for what the child wants, but also what is in the child’s best interest, which may be different, and is directed by this Rule to make recommendations to the Court for services and also to make recommendations whether or not the child agrees with that, and including going beyond privilege.
I say all of that to — I’m going to try to sum that up more specifically than that. If the attorney ad litem was merely required to be an aggressive advocate for the child, then the Rule would not be necessary because every attorney is required to do that once they become an attorney, once they’re appointed to be an attorney for a person or to act as an attorney for a person; they are supposed to be an aggressive advocate. If that’s all that the ad litem is supposed to do, then there would be no need to have the Administrative Rule given all of these additional things and responsibilities that go beyond the ordinary Lattorney/client relationship.
Therefore, based on that and also on my knowledge from being in private practice and also as a judge that it is common practice in Arkansas for attorneys ad litem to submit written recommendations, including findings of fact which ordinarily might be considered hearsay, then I have in fact denied — or I guess overruled the objection of [Mr. Tracy] and have received the written report which I will make, at this point, an exhibit.
If you want to make any more of a record, [Mr. Tracy], you may do so now.
(Petitioner’s Exhibit 1 received into evidence.)
COUNSEL FOR MR. TRACY: Thank you, Your Honor. I object to the report as hearsay. While it is true that the attorney ad litem is an advocate for the best interest of the child, not in the traditional sense of what a client/attorney relationship would be, Administrative Order 15, Section 5 does require her to present evidence and facts to the Court that would support her recommendation, and that the Rules of Evidence still apply as to hearsay and otherwise.
That being said and accepted, if that were accepted, then she’s also in violation of the Professional Rules of Conduct 3.7 because she is both advocating and serving as a witness. The Court has prohibited attorneys testifying on behalf of their own clients. Even affidavits attached to motions or briefs that are — where the affiant is the attorney are hearsay and not admissible.
CIRCUIT COURT: Okay, I hear your objection. It is noted. I overrule it. I believe Ms. Burnett is not in violation of the model rules and is in compliance with the Administrative Order. And P-1 will be received and is hereby received over [Mr. Tracy’s] objection.
At the conclusion of the hearing, the circuit court left custody with Ms. Dennie and awarded Mr. Tracy standard visitation. An order memorializing the circuit court’s ruling was entered, [ 4and Mr. Tracy filed a timely notice of appeal.
For his sole point on appeal, Mr. Tracy argues that the circuit court erred in admitting the attorney ad litem’s report into evidence, as it contained hearsay and violated the Arkansas Rules of Professional Conduct. He contends that instead of admitting the ad litem’s report, the ad litem should be permitted to present evidence, including the calling of witnesses, to allow for cross-examination and to permit the fact-finder the ability to determine the credibility of the witnesses. He concludes that though Arkansas Supreme Court Administrative Order No. 15 requires some adherence to the Arkansas Rules of Civil Procedure and the Arkansas Rules of Professional Conduct, the rules should not be compromised more than is necessary to allow attorneys ad litem to perform their duties.
Ms. Dennie responds that the attorney ad litem in the instant case acted in accordance with Ark. Sup.Ct. Admin. Order No. 15, which she asserts provides internal safeguards to protect the reliability of an ad litem’s report. She avers that an attorney, acting independently in the capacity of an ad litem, is in a position to accurately report the inconsistent and consistent statements of individuals interviewed. She claims that such a report is reliable and trustworthy, but that if suspect, is susceptible to impeachment by reasonable and available means by either party.
The attorney ad litem also responds, countering that, as an advocate for the child’s best | ¿interest, an attorney ad litem may present oral and written arguments. She further contends that an ad-litem report is not hearsay, because such a report is not presented for the truth of the matter asserted, but even if it was, such a report falls within the reports exception of Arkansas Rule of Evidence 803(8) and is also admissible under Arkansas Rule of Evidence 802. She urges that even if it was error for the circuit court to admit her report, Mr. Tracy was not prejudiced because there was plenty of evidence from which the circuit court could conclude that it was in M.T.’s best interest to remain in Ms. Dennie’s custody. Finally, she maintains, any discussion regarding Rule 8.7 of the Rules of Professional Conduct is irrelevant because she was not called as a witness.
Evidentiary rulings are a matter of discretion and are reviewed only for abuse of that discretion. See Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). At issue here is whether the circuit court abused its discretion in overruling Mr. Tracy’s objections to the admission of the attorney ad litem’s report on two grounds: hearsay and a violation of the Rules of Professional Conduct. We hold that the circuit court did not abuse its discretion.
Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” and it is not admissible except as provided by law or our rules. Ark. R. Evid. 801(c), 802 (2011). A statement is an oral or written assertion. See Ark. R. Evid. 801(a)(1). Here, a review of the attorney ad litem’s report indeed reveals many statements made by persons other than the ad litem, including Mr. Tracy, Ms. Dennie, Mr. Tracy’s father, and Mr. Tracy’s wife, which led to the ad litem’s recommendation on custody. However, to the extent that these | (¡statements or the recommendation itself could be considered hearsay, we hold that they were clearly admissible.
As already noted, even hearsay is admissible, if provided by law or by our rules. See Ark. R. Evid. 802. Our Administrative Order No. 15(V) sets forth the standards of practice for attorneys ad li-tem in domestic-relations cases when custody is an issue. It specifically directs, in pertinent part, that the attorney ad litem
shall conduct an independent investigation consisting of review of all relevant documents and records. The ad litem shall interview the child, parents, and others having relevant knowledge to assist in representation....
b.An attorney ad litem shall determine the best interest of a child by considering such custody criteria as:
(1)Moral fitness factors: integrity, character, compassion, sobriety, religious training and practice, a newly acquired partner regarding the preceding elements;
(2) Stability factors: emotional stability, work stability, financial stability, residence and school stability, health, partner stability;
(3) Love and affection factors: attention given, discipline, attitude toward education, social attitude, attitude toward access of the other party to the child, and attitude toward cooperation with the other party regarding the child’s needs;
(4) Other relevant information regarding the child such as stated preference, age, sex, health, testing and evaluation, child care arrangements; and regarding the home such as its location, size, and family composition.
c. An attorney ad litem shall appear at all hearings to represent the best interest of the child. All relevant facts should be presented to the court and if the child’s wishes differ from the ad litem’s determination of the child’s best interest, the ad litem shall communicate the child’s wishes to the court, as well as the recommendations of the ad litem.
d. An attorney ad litem shall file appropriate pleadings on behalf of the child, call witnesses, participate fully in examination of witnesses, present relevant evidence, and advocate for timely hearings.
f. An attorney ad litem shall make recommendations to the court for specific and appropriate services for the child and the child’s family. All recommendations shall likewise be communicated to the attorneys for the parties, or if a party is pro se, then to the party.
Ark. Sup.Ct. Admin. Order No. 15(V) (2011). Because this court requires that an attorney 17ad litem present all relevant facts, communicate the child’s wishes, and shall make a recommendation to the cir cuit court, each of these must necessarily be deemed admissible pursuant to this court’s order such that the circuit court can take them into its consideration. To hold otherwise would be simply illogical. Because the report’s contents and recommendation were admissible by law or our rules, even if hearsay, we cannot say that the circuit court abused its discretion in admitting the attorney ad litem’s report into evidence over Mr. Tracy’s hearsay objection.
We turn then to Mr. Tracy’s claim that the admission of the report violated Rule 3.7 of the Arkansas Rules of Professional Conduct, which provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(8) disqualification of the lawyer would work substantial hardship on the client.
(b) Reserved.
Ark. R. Prof'l Conduct 3.7 (2011). Pursuant to Order No. 15(V), an attorney ad litem is, in fact, an advocate; however, the plain language of the order makes clear that he or she is an advocate for the best interest of the child, not necessarily for the child himself, whose wishes might differ from what the ad litem considers to be in the child’s best interest. See Ark. Sup.Ct. Admin. Order No. 15(V)(c). Be that as it may, our rules of professional conduct clearly preclude an attorney from being an advocate where he or she is likely to be a necessary witness. See Weigel v. Farmers Ins. Co., 356 Ark. 617, 158 S.W.3d 147 (2004).
Here, however, the record does not reflect that the attorney ad litem testified as a | ¿witness, nor can we say she was likely to be a necessary witness. This is especially true where our order specifically contemplates that an attorney ad litem will directly communicate the relevant facts, the child’s wishes, and his or her recommendation to the circuit court. Moreover, it is clearly within a party’s ability, here, Mr. Tracy’s ability, to dispute the attorney ad litem’s recommendation, such as by calling witnesses or through the arguments of counsel. Because it is not otherwise apparent that an attorney ad litem in a custody dispute is “likely to be a necessary witness,” we cannot say that the admission of an ad litem’s report is violative of Ark. R. Profl Conduct 3.7. Accordingly, we cannot say that the circuit court abused its discretion in overruling Mr. Tracy’s objection on this basis and in admitting the attorney ad litem’s report.
For all of the foregoing reasons, we affirm.
BROWN, BAKER, and GOODSON, JJ., concur.
. On several occasions, Mr. Tracy asserts to this court that his "rights” or "due process rights” were violated; however, a review of the objections raised by Mr. Tracy to the circuit court reveals no allegations of a due-process violation. Arguments not raised below, even constitutional ones, are waived on appeal. See Hunter v. Runyan, 2011 Ark. 43, 382 S.W.3d 643. | [
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ROBERT L. BROWN, Justice.
| Appellants Clinical Study Centers, LLC (CSC); John Giblin, M.D.; Anthony Johnson, M.D.; and Gordon Gibson, M.D. (collectively referred to as appellants), present one point on appeal. That point is whether the Individual Retirement Account (IRA) Statute contravenes the Arkansas Constitution. The circuit court held that the statute was constitutional. We affirm.
This case originated as an action by the appellants against appellees Samuel Boell-ner, M.D., and Marilyn Boellner. The appellants sued, alleging (1) breaches of contract for a covenant not to compete, a nonsolicitation agreement, and a confidentiality agreement; (2) tortious interference with business expectancy; (3) defamation; and (4) injunctive relief. The Boellners counterclaimed for breach of contract, wrongful termination, and declaratory judgment on the noncompete agreement.
| j>A jury returned the following awards: (1) $325,000 to CSC, Giblin, Johnson, and Gibson for breach of contract against Samuel Boellner; (2) $325,000 to CSC, Giblin, Johnson, and Gibson for tortious interference with business expectancy against Samuel and Marilyn Boellner; (3) $325,000 in punitive damages for tortious interference with business expectancy to CSC, Giblin, Johnson, and Gibson against Samuel Boellner; (4) $75,600 in compensatory damages for defamation to Giblin against Samuel Boellner; and (5) $250,000 in punitive damages for defamation to Giblin against Samuel Boellner. The jury also returned verdicts in favor of Samuel Boell-ner in the amount of $403,696.04. Judg ment was entered on July 21, 2009. This court affirmed the judgment. Boellner v. Clinical Study Ctrs., 2011 Ark. 88, 878 S.W.3d 745 (Boellner I).
In Boellner I, the appellants filed a cross-appeal contending that section 16-66 — 220(a)(1) conflicted with article 9, section 2 of the Arkansas Constitution with respect to an IRA owned by Samuel Boell-ner. Although there was a ruling from the bench that the statute was constitutional, this court refused to reach the merits of the cross-appeal because the circuit court’s order simply stated that “the IRA account is ‘exempt from attachment, garnishment, and execution’ under the provisions of section 16 — 66—220(a)(1) and ... made no ruling on the constitutionality of section 16-66 — 220(a)(1).” Boellner I, 2011 Ark. 83, at 23, 378 S.W.3d 745. As a result, this court affirmed the circuit court’s order that the particular IRA account, owned by Dr. Boellner and held by Raymond James, was not subject to garnishment.
Following our affirmance, the appellants caused a writ of garnishment to be issued to Dillard’s Federal Credit Union to reach assets of Marilyn Boellner held in an IRA account. [sThe Boellners’ answered that this account was exempt from garnishment under Arkansas Code Annotated section 16-66-220(a)(l) (Repl.2005). In response, the appellants moved to declare section 16 — 66—220(a)(1) unconstitutional. In their motion, the appellants contended that the exemption provided in that statute conflicted with article 9, section 2 of the Arkansas Constitution because the statute provides a personal-property exemption in excess of the $500-personal-property exemption referred to in the constitution.
The court then entered a written order on September 9, 2011, denying the appellants motion, which read in part:
1.Ark.Code Ann. § 16-66-220 is Constitutional.
2. Ark.Code Ann. § 16-66-220 states that “A person’s right to the assets held in or to receive payments, whether vested or not, under a pension, profit-sharing, or similar plan or contract, including a retirement plan for self-employed individuals, or under an individual retirement account or an individual retirement annuity, including a simplified employee pension plan, is exempt from attachment, execution, and seizure for the satisfaction of debts unless the plan, contract, or account does not qualify under the applicable provisions of the Internal Revenue Code of 1986.”
3. Marilyn’s Boellner’s right to the assets held in or to receive payments, whether vested or not, under the Dillard’s Federal Credit Union Individual Retirement Account of Marilyn Boellner is exempt from attachment, garnishment, and execution under the provisions of Ark.Code Ann. § 16-66-220; and good cause appearing;
It is therefore ORDERED, ADJUDGED, AND DECREED that [Appellants]’ Motion to Declare Ark.Code Ann. § 16-66-220 Unconstitutional is denied.
It is therefore ORDERED, ADJUDGED, AND DECREED that Marilyn Boellner’s right to assets held in or to receive payments, whether vested or not, from an IRA held under or by Dillard’s Federal Credit Union is exempt from attachment, execution, and seizure for the satisfaction of the judgment of July 21, 2009.
I/The circuit court also quashed the writ of garnishment issued to Dillard’s Federal Credit Union.
On appeal, the appellants contest the constitutionality of section 16-66-220(a)(1). The Boellners first contend, however, that the appellants’ challenge to section 16-66-220(a)(1) is barred by the law-of-the-case doctrine. In Boellner I, this court refused to reach the merits of the appellants’ challenge to the same statute because they failed to get a written order from the circuit court on that issue as it related to an IRA owned by Samuel Boellner. Boellner I, 2011 Ark. 83, at 23, 378 S.W.3d 745. The Boellners now claim that our refusal equates to a decision on the issue and law of the case applies. We disagree.
The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided in a prior appeal. Jones v. Double “D” Props., Inc., 357 Ark. 148, 156, 161 S.W.3d 839, 844 (2004). The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Id. The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. Id. The law-of-the-case doctrine specifically provides that in a second appeal, the decision of the first appeal is conclusive of every question of law or fact decided in the former appeal and also of those questions that might have been, but were not, presented. Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 346, 47 S.W.3d 227, 237 (2001).
| fiThe Boellners specifically rely on this court’s decision in Pro-Comp Management, Inc. v. R.K. Enterprises, LLC, 372 Ark. 190, 272 S.W.3d 91 (2008) (R.K. III), as support for their contention that the issue of the constitutionality of the IRA-exemption statute is barred by the law-of-the-case doctrine. Although there were several issues at play in the R.K. cases, the one that is instructive for this court for present purposes is the decision regarding attorney’s fees.
In 2006, this court decided the second R.K. case. See Pro-Comp Mgmt, Inc. v. R.K. Enters., LLC, 366 Ark. 463, 237 S.W.3d 20 (2006) (R.K. II). In that decision, we refused to reach appellant TRS’s contention that the circuit court erred in failing to award attorney’s fees. Id. at 469, 237 S.W.3d at 25. The reason for our refusal was that the written order appealed from contained no reference to attorney’s fees, and, as a result, there was no ruling on the issue by the circuit court. Id. at 469-70, 237 S.W.3d at 25.
Two years later, the same parties returned to this court, and TRS again contended that the circuit court erred in refusing to award attorney’s fees. See R.K. III, 372 Ark. at 195, 272 S.W.3d at 95-96. This time, however, TRS had returned to the circuit court after remand and had obtained a written order denying the motion for attorney’s fees. This court still refused to address the attorney’s-fees issue because “the doctrines of res judicata and law of the case bar relitigation of an issue that has already been decided.” Id. at 196, 272 S.W.3d at 96.
We find that the R.K. Ill case is not controlling for purposes of the instant appeal because the appellants in R.K. Ill sought to relitigate the same attorney’s fees that this court Rhad previously refused to address. As there is a different IRA account at issue in the present appeal, the appellants have presented facts that are materially different from the facts in Boellner I. For this reason, R.K. Ill is distinguishable. This court has held that the law of the case applies only when there is no material change in circumstances between the first and second appeals. See, e.g., Weiss v. McFadden, 360 Ark. 76, 199 S.W.3d 649 (2004) (finding law-of-the-case doctrine applied where there was no change in facts regarding the respective retirees and pensions affected); Jones, 357 Ark. 148, 161 S.W.3d 839 (law-of-the-case doctrine applied where the wife raised an illegal-exaction claim that was the same as an illegal-exaction claim raised by her husband in the first appeal); Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998) (law of the case applied where appellant attempted to refashion her illegal-exaction claim as a claim for breach of contract after the first appeal in order to seek additional attorney’s fees).
In the instant case, the appellants garnished a different IRA account — one owned by Marilyn Boellner — following the first appeal. In Boellner I, the IRA account that was garnished was that of Samuel Boellner. The law-of-the-case doctrine does not apply if the evidence materially varies between the two appeals. Scamardo v. Sparks Reg’l Med. Ctr., 375 Ark. 300, 306, 289 S.W.3d 903, 907 (2008). We cannot say, based on the record before us, that the circumstances surrounding the two IRA accounts were substantially similar. Because now there is a different IRA and a different owner involved, we find that the evidence in the instant appeal materially varies from the evidence before this court in Boellner I. As a result, the law-of-the-case doctrine does not apply.
|7We turn then to the merits of the case. The issue of whether section 16-66-220(a)(1) contravenes article 9, section 2 of the Arkansas Constitution requires this court to engage in statutory interpretation. It is axiomatic that this court reviews issues of statutory interpretation de novo because it is for this court to interpret what a statute means. Mack v. Brazil, Adlong & Winningham, PLC, 357 Ark. 1, 5, 159 S.W.3d 291, 294 (2004). This court is not bound by a circuit court’s interpretation; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id.
The issue in this case is whether Arkansas Code Annotated section 16-66-220(a)(1) is in irreconcilable conflict with article 9, section 2 of the Arkansas Constitution.
Arkansas Code Annotated section 16-66-220 provides, in relevant part:
A person’s right to the assets held in or to receive payments, whether vested or not, under a pension, profit-sharing, or similar plan or contract, including a retirement plan for self-employed individuals, or under an individual retirement account or an individual retirement annuity, including a simplified employee pension plan, is exempt from attachment, execution, and seizure for the satisfaction of debts unless the plan, contract, or account does not qualify under the applicable provisions of the Internal Revenue Code of 1986.
Ark.Code Ann. § 16-66-220(a)(l) (Repl. 2005).
Article 9, section 2 of the Arkansas Constitution provides:
The personal property of any resident of this State, who is married of the head of a family, in specific articles to be selected by such resident, not exceeding in value the sum of five hundred dollars, in addition to his or her wearing apparel, and that of his or her family, shall be exempt from seizure on attachment, or sale on execution or other process from any court, on debt by contract.
Ark. Const, art. 9, § 2.
|sThe circuit court found that Marilyn Boellner’s IRA is exempt from “attachment, garnishment, and execution under the provisions of Ark.Code Ann. § 16-66-220.” The statute itself refers only to “attachment, execution, and seizure for the satisfaction of debts,” and does not explicitly refer to garnishment. See Ark. Code Ann. § 16 — 66—220(a)(1). Generally, the rules of statutory construction do not permit this court to read into a statute words that are not there. McMillan v. Live Nation Entm’t, Inc., 2012 Ark. 166, at 6, 401 S.W.3d 473, 476-77. We have recognized, however, that garnishment is an attachment of the debt or a form of levy on the debt. Thompson v. Bank of Am., 356 Ark. 576, 585-86, 157 S.W.3d 174, 180 (2004); see also Allen v. Stracener, 214 Ark. 688, 691, 217 S.W.2d 620, 621-22 (1949) (“It follows that judicial garnishment before judgment must fit into our jurisprudence in its true form, as a species of attachment, and as such it is subject to the restrictions applicable to the broader remedy.”). Because garnishment is closely related to attachment and is a seizure or levy on the debt, the circuit court’s finding that the IRA-exemption statute applies to garnishment proceedings is not in error.
The appellants contend that the IRA-exemption statute contravenes the plain language of the Arkansas Constitution by providing for limitless exemptions for IRAs. They concede, however, that this court has never held that article 9, section 2 of the Arkansas Constitution serves as a maximum cap on exemptions.
This court has held that “the exemption clause of the Constitution is highly remedial, and should be liberally construed.” Pemberton v. Bank of E. Ark., 173 Ark. 949, 952, 294 S.W. 64, 65 (1927). This court has also repeatedly held that the constitution of this state is not a |9grant but a limitation of power, and, unless the power of the General Assembly is limited, either expressly or by necessary implication, its power is supreme. Bd. of Comm’rs of Red River Bridge Disk v. Wood, 183 Ark. 1082, 1088, 40 S.W.2d 435, 437 (1931). A statute passed by the General Assembly will always be upheld, unless it is clearly prohibited by the constitution. Id. Courts must assume that legislative discretion has been properly exercised. Id.
The appellants point this court to In re Holt, 84 B.R. 991 (Bankr.W.D.Ark.1988) aff'd, 97 B.R. 997 (W.D.Ark.1988) aff'd, 894 F.2d 1005 (8th Cir.1990), as support for their position. They maintain that in Holt, the bankruptcy court held that Arkansas Code Annotated section 16-66-209 was in conflict with article 9, section 2 of the Arkansas Constitution to the extent that the statute exempted personal property in excess of $500. Extending the Holt analysis to the present facts, which would involve a non-bankruptcy matter, would be an error. In analyzing Arkansas Code Annotated section 16-66-209, the bankruptcy court began “with an examination of Arkansas’s bankruptcy exemption statutes, enacted in 1981 and codified at A.C.A. §§ 16-66-217 and 16-66-218. A.C.A. § 16-66-217,” which provides “that ‘[t]he applicable exemptions [are] to be those [exemptions] permitted by the constitution and the laws of the State of Arkansas.’ ” Id. at 1003 (emphasis added). The court hinged its decision regarding the constitutionality of section 16-66-209 on the fact that the Bankruptcy Code limited bankruptcy debtors to the exemption amount permitted by the Arkansas Constitution. That same restriction does not apply where non-bankruptcy debtors, such as the Boellners, are concerned.
[ ipThe issue of personal property that is exempt from execution or garnishment in a non-bankruptcy context has come before this court only sporadically. In 1918, this court addressed the issue of whether funds in the hands of a fraternal benefit society, which were held for the benefit of the spouse of a deceased society member, were subject to garnishment to satisfy the debt of the member. Acree v. Whitley, 136 Ark. 149, 206 S.W. 137 (1918). In Aeree, the insured, Jessie Thomas Aeree, died while a member in good standing of the Supreme Tribe of Ben Hur, undisputedly a fraternal benefit society. The circuit court subsequently ordered that Whitley could garnish the funds held by the Supreme Tribe of Ben Hur in order to satisfy a judgment against Acree’s husband. This court reversed, finding that the Arkansas Code provided the following exemption to funds held by fraternal benefit societies:
No money or other benefit, charity, relief, or aid to be paid, provided, or rendered by any such society, shall be liable to attachment, garnishment, or other process, or to be seized, taken, appropriated, or applied by any legal or equitable process or operation of law to pay any debt or liability of a member or beneficiary, or any other person who may have a right thereunder, either before or after payment.
Id. at 153, 206 S.W. at 138; see also Ark. Code Ann. § 23-74-103.
In discussing the statutory exemption from attachment and garnishment for funds held by fraternal benefit societies, this court said, “It may be stated at the outset that [the Code] does not relate to the absolute exemption of personal property allowed a resident of this state as exempt from certain debts and liabilities under sections 1 and 2 of article 9 of our Constitution.” Aeree, 136 Ark. at 153, 206 S.W. at 138. This court determined that the exemption statute was not enacted for the purpose of allowing beneficiaries total exemptions |Hof personal property which they are not entitled to under the constitution but, instead, for the limited purpose of exempting these specific benefits of a fraternal society from the operation of general garnishment statutes.
In the same vein, this court upheld the exemption of certain insurance benefits from garnishment. See W.B. Worthen Co. v. Thomas, 188 Ark. 249, 65 S.W.2d 917 (1933) rev’d, 292 U.S. 426, 54 S.Ct. 816, 78 L.Ed. 1344 (1934). In that case, a writ of garnishment was issued to the Missouri State Life Insurance Company after W.B. Worthen Co. obtained a judgment against Ralph Thomas and Mrs. W.D. Thomas. At issue was the constitutionality of Act 102 of 1933, which provided, in relevant part:
All moneys paid or payable to any resident of this state as the insured or beneficiary designated under any insurance policy or policies providing for the payment of life, sick, accident and/or disability benefits shall be exempt from liability or seizure under judicial process of any court, and shall not be subjected to the payment of any debt by contract or otherwise by any writ, order, judgment, or decree of any court, provided, that the validity of any sale, assignment, mortgage, pledge or hypothecation of any policy of insurance or if any avails, proceeds or benefits thereof, now made, or hereafter made, shall in no way be affected by the provisions of this act.
Id. at 250-51, 65 S.W.2d at 917. Citing Aeree, this court held that the Act did not violate article 9, section 2, of the Arkansas Constitution because it did not relate to the absolute exemption of personal property but, instead, exempted certain insurance benefits from the operation of general gar nishment statutes. Id. at 253, 65 S.W.2d at 918.
|12The appellants, nevertheless, point to a decision in which the Minnesota Supreme Court held that an unlimited exemption for IRA accounts violated that state’s constitution. See Estate of Jones v. Kvamme, 529 N.W.2d 835 (Minn.1995). Despite appellants’ contention to the contrary, the Minnesota constitutional provision addressed in that case is substantially different from the Arkansas constitutional provision facing this court. The Minnesota Constitution provides: “A reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability. The amount of such exemption shall be determined by law.” Id. at 337. The Minnesota courts have discussed the meaning of “reasonable amount” as follows: “If an exemption has no limit of any kind, then it is unconstitutional. On the other hand, an exemption with a dollar, an objective, or a statutory ‘to the extent reasonably necessary limit is a proper legislative determination of reasonableness.” Id. at 337. The statute addressed in Estate of Jones contained an exemption for IRAs that had no discernible limit. As a result, the Minnesota court held that statute unconstitutional.
It is clear to this court that the exemption statute at issue in Estate of Jones is similar to the one at issue in the instant case. However, the constitutional provisions in Minnesota and Arkansas are vastly different. As a result, Estate of Jones provides no guidance to this court in answering the question at hand.
In sum, Aeree and Worthen stand for the proposition that as long as the exemption at issue is not an absolute exemption of all personal property, but instead relates only to exempting certain funds from general garnishment statutes, then the exemption does not violate article 9, section 2 of the Arkansas Constitution. Section 16-66-220(a)(l) exempts 11sonly a certain type of fund from garnishment. We hold that the IRA exemption provided in section 16-66 — 220(a)(1) is not an absolute exemption of all personal property, and, as such, does not offend article 9, section 2 of the Arkansas Constitution.
Affirmed.
. Worthen was reversed by the Supreme Court of the United States on the grounds that applying the exemption in Act 102 of 1933 to debts that accrued before the Act was passed constituted a violation of the contract clause found in Article 1, Section 10 of the United States Constitution. W.B. Worthen v. Thomas, 292 U.S. 426, 431, 54 S.Ct. 816, 78 L.Ed. 1344 (1934). | [
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Melvin Mayfield, Judge.
The appellant, Juanita J. Mosley, appeals the decision of the Workers’ Compensation Commission denying her claim for benefits in connection with the death of her husband, William C. Mosley. On appeal, appellant raises seven issues for reversal. Her contentions are as follows: (1) that the Commission erred in not addressing a challenge to the “temporality rule” although it was not advanced before the administrative law judge; (2) that the “temporality rule” is void and unlawful; (3) that the “temporality rule” is so vague that its application results in arbitrary, capricious and discriminatory denials of meritorious claims; (4) that the Commission erred in allegedly giving no weight to the testimony of twenty-one witnesses; (5) that Act 10 of 1986 creates an irreconcilable conflict with the doctrine of liberal construction; (6) that section 10.2 of Act 10 of 1986 is an unconstitutional intrusion upon the separation of powers doctrine; and (7) that there is insufficient evidence to support the decision of the Commission.
The record reveals that William C. Mosley was sixty years old at the time of his death, and had been married to appellant for thirty-seven years. For sixteen years, he had been the principal of the McGehee Junior High School. Mr. Mosley took the Functional Academic Skills Test on March 23, 1985, arriving home around 6:30 p.m. Mr. Mosley and his wife went to Kentucky Fried Chicken and Wal-Mart before returning home for the evening. After an uneventful evening and a good night’s sleep, Mr. Mosley and his wife awoke around 7:00 or 8:00 a.m. They spent the morning drinking coffee and reading the morning newspapers. Between 10:30 and 11:00 a.m., appellant heard her husband cough. She went into the den and found him sitting upright in his recliner with no pulse. Mr. Mosley was pronounced dead at the local hospital at 11:45 a.m. It was appellant’s contention below, and now on appeal, that the stress and anxiety of the Arkansas Teacher Competency Test precipitated her husband’s death which occurred the morning following the test. Appellees’ position is that Mr. Mosley’s death did not arise out of and in the course of his employment and that it was not causally related to his employment.
At the March 25, 1988, hearing before the administrative law judge, it was stipulated that appellant is the decedent’s widow and is dependent upon him within the meaning of the Workers’ Compensation Act. The administrative law judge in rendering his opinion found the heart attack suffered by Mr. Mosley on March 24,1985, did not arise out of and in the course of his employment with appellee. He also found appellant had failed to prove by a preponderance of the evidence a causal relationship between the decedent’s employment and his heart attack. After a de novo review of the record, the law judge’s decision was affirmed by the full Commission.
We do not reach the merits of the issues raised in this case because we have concluded that it must be remanded. In Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979), the Arkansas Supreme Court held that the Arkansas Workers’ Compensation Commission must make findings of fact in sufficient detail that “the reviewing court may perform its function to determine whether the commission’s findings as to the existence or non-existence of the essential facts are or are not supported by the evidence.” 265 Ark. 507. We relied upon Clark in Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986), where we reversed and remanded a Commission decision for its failure to make “specific findings” upon which it relied to reach its decision. We also cited Larson, Workmen’s Compensation Law (1983), § 80.13, where it is pointed out that unless findings and supporting evidence are set out in the record of the Workers’ Compensation Commission the review function of the court becomes meaningless. In the present case, the Commis sion made the following “Findings and Conclusions:”
1. That the heart attack suffered by the claimant on or about March 24,1985, did not arise out of and in the course of his employment with the respondent.
The Commission then discussed the evidence in some detail and concluded:
Thus, after according Dr. Rosenman’s testimony the appropriate weight, and considering the testimony of Dr. Kizziar, the risk factors present in this case, and the time of the decedent’s fatal heart attack in relation to the alleged stressful event, we find that the claimant has failed to prove a causal connection between the heart attack and the decedent’s employment by a preponderance of the credible evidence of record.
However, before reaching that conclusion, the Commission cited two of its own opinions in previous decisions and said:
Relying upon a publication of the American Heart Association as well as the medical testimony presented in those cases, the Commission held that in order to be compensa-ble, a stress induced heart attack must have a close temporal relationship with the claimant’s stressful event at work.
The Commission also stated that this court, in an unpublished opinion, had affirmed a Commission’s previous decision in which the holding above quoted was made.
Rule 21 of the Arkansas Supreme Court and the Court of Appeals states that our opinions not designated for publication shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case). However, we think this case is sufficiently related to state that our unpublished opinion, Davis v. Cleburne County, CA 87-396 (June 8, 1988), referred to by the Commission, did not approve the adoption by the Commission of a rule requiring a close temporal relationship between the heart attack and the stressful work events. To the contrary, our opinion stated that there was evidence in the case “that stress was a contributing factor only when it occurred close in point of time to the attack.”
From the record before us, we are unable to determine whether “close temporal relationship” as used in the Commission’s opinion is a rule of law, a rationale for the Commission’s decision, or one of the facts considered in reaching that decision. Therefore, since it is our duty to review the Commission’s findings in this case and determine if those findings are supported by substantial evidence, we find it necessary to reverse the Commission’s decision and remand this matter for the Commission to make a new decision upon the record already made setting out its findings of fact with sufficient clarity and detail that we may determine whether they are supported by substantial evidence in the record before us.
Reversed and remanded.
Rogers, J., dissents. | [
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James R. Cooper, Judge.
This is the second appeal in this adoption case. The appellant, the natural mother, argues that the probate judge erred in granting the appellees’ motion for summary judgment and in dismissing the appellant’s petition to withdraw her consent to the adoption. We reverse and remand.
On January 16, 1986, the appellant signed a consent to the adoption of her daughter by the appellees, and on January 17, 1986, the probate court entered an adoption decree.The appellant attempted to withdraw her consent, asserting that it had been obtained by fraud and duress. The probate court ruled that the decree was final and, that as a matter of law, she could not raise an issue of fact as to her right to withdraw consent. On appeal to this Court, we reversed and remanded, holding that the appellant could withdraw her consent upon a showing that it was obtained by fraud, duress, or intimidation. In re Jennifer Dailey, 20 Ark. App. 180, 726 S.W.2d 292 (1987). We remanded after finding that the trial court had erred in granting summary judgment, and ordered a hearing on whether the appellant’s consent was wrongfully obtained.
On May 27, 1988, the appellees filed sixteen requests for admissions. Request number two asked the appellant to admit that she was “not acting under duress, fraud or under misrepresentation at the time [she] executed the Consent to Adopt,” and request number sixteen asked the appellant to admit “that it would be in the best interests of the minor child that this adoption be granted.” The requests for admissions were to be answered by June 29,1988; however, they were not filed until July 8,1988. The probate court, noting that the responses were unverified and relying on Ark. R. Civ. P. 36, deemed the requests for admissions admitted and granted the appellees’ motion for summary judgment. In his order the probate judge clearly relied on requests for admissions numbers two and sixteen in granting the summary judgment. Verification by the parties is no longer necessary on requests for admissions. Ark. R. Civ. P. Rule 36(a) (1987).
Requests for admissions are generally considered to be designed to ascertain an adversary’s position, and are not discovery devices to ascertain relevant facts. Van Langen v. Chadwick, 173 N.J.Super. 517, 414 A.2d 618 (1980). The purpose of the rule is to facilitate trial by weeding out facts about which there is no true controversy but which are often difficult or expensive to prove. Id.; see United Coal Cos. v. Powell Construction Co., 839 F. 2d 958 (3d Cir. 1988); ASEA, Inc. v. Southern Pacific Transportation Co., 669 F. 2d 1242 (9th Cir. 1981); Webb v. Westinghouse Electric Corp., 81 F.R.D. 431 (E.D. Pa., 1978); Linde v. Kilbourne, 543 S.W.2d 543 (Mo. App. 1976).
Although the Arkansas Rules of Civil Procedure allow for a request for an admission which concerns the application of law to fact, Ark. R. Civ. P. 36(a), admissions designed to directly discover what legal conclusions the opposing attorney intends to draw from those facts are improper. See Equal Employment Opportunity Commission v. Otto, 75 F.R.D. 624 (D. Md. 1976). An element of the burden of proof, or even the ultimate issue in the case may be addressed in a request for admission under Rule 36, and the admission of these matters may not be avoided because the request calls for application of the facts to the law, the truth of an ultimate issue, or opinion or conclusion so long as the opinion called for is not on an abstract proposition of law. Linde, supra. It is the concession of the issue, otherwise determinable by the trier of fact, which comes into evidence, not the assumptions of the party who makes the admission. Id. A request for admission of a pure matter of law is improper. Jensen v. Pioneer Dodge Center, Inc., 702 P.2d 98 (Utah 1985).
In the present case, the probate court relied entirely upon requests for admissions two and sixteen, both of which are bare conclusions of law. There are no facts mentioned in the requests and, therefore, we cannot call them the “application of facts to law.” We hold that in this case, where the appellant has attempted to obtain a hearing on the fraud and duress issues as they apply to her signing the consent to adopt, where we remanded the case and ordered such a hearing to be held, and where the issues are already developed and narrowed for trial, that the probate court erred in granting summary judgment on the basis of the improper requests for admissions. Even had the requests for admission been proper, to allow this result to stand would be to allow technical considerations to prevail over substantial justice. See Jensen, supra. We reverse and remand with directions to the probate court to hold a hearing to determine whether fraud or duress was employed in obtaining the appellant’s signature on the consent to adopt.
Reversed and remanded,
Corbin, C.J., and Rogers, J., agree. | [
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John E. Jennings, Judge.
Appellee Acro Corporation was in the business of raising chickens and, in connection with its business, borrowed extensively from appellant, McIlroy Bank & Trust Company. Acro defaulted on its notes and on March 3, 1986, McIlroy filed suit for $500,000.00 and sought to foreclose its mortgages in Washington County Chancery Court. Ralston Purina Company, another creditor of Acro, was permitted to intervene.
On March 21, 1986, Acro filed a petition under Chapter 11 of the United States Bankruptcy Code and the foreclosure suit was stayed. The stay was subsequently lifted, and the chancery action was set for trial for November 1, 1988. On that date counsel for Acro, McIlroy Bank, and Ralston Purina appeared and announced that the case had been settled. The parties agreed that the court would enter a consent judgment in favor of McIlroy Bank against Acro for $541,772.24, representing the amount of principal and interest due. They also agreed that the settlement would have no effect on a related lawsuit then pending in Washington County Circuit Court. Finally, they agreed that Ralston Purina would be awarded a reasonable attorney’s fee. Nothing was said about an attorney’s fee for appellant. The court asked Mr. Morris, the attorney for McIlroy Bank, to prepare the decree.
Morris prepared a proposed decree but when he presented it to Mr. Pearson, the attorney representing Acro, Pearson would not approve it because the decree would have awarded an attorney’s fee of more than $54,000.00, and also because of a disagreement as to the language in the decree preserving the rights of the parties in the pending action in circuit court. Unable to resolve the disagreement, counsel for McIlroy Bank then took the unapproved consent judgment to the judge’s office and left it for him to sign. Counsel for Acro responded by drafting its own proposed consent decree which awarded McIlroy Bank an attorney’s fee of only $1,000.00 and contained substantially different language concerning the effect on the related litigation pending in circuit court. It was this decree that the chancellor signed, although none of the lawyers had approved it.
McIlroy Bank then filed a motion to amend the judgment. The court never ruled on the motion and it was “deemed denied” at the end of thirty days from its filing. Arkansas Rules of Appellate Procedure, Rule 4(c).
The primary argument on appeal is that the chancellor erred in signing a consent agreement to which appellant did not agree. We hold that it was error to sign the consent decree under these circumstances.
Rule 58 of the Arkansas Rules of Civil Procedure provides that the trial court “may enter its own form of judgment or decree or may enter the form prepared by the prevailing party without the consent of opposing counsel.” A Reporter’s Note to the Rule states:
Implicit in this rule is the right of opposing counsel to be afforded an opportunity to approve the form of the judgment or decree. Where there is disagreement between the parties as to the form of the judgment or decree, the court should hold a hearing to consider whatever objections there might be.
Although Rule 58 does not, by its terms, apply to consent judgments, the admonition contained in the note applies with considerably more force in this context. A consent judgment is different in nature from a judgment rendered on the merits. In Vaughan v. Brown, 184 Ark. 185, 40 S.W.2d 996 (1931), the court said, “[c]onsent excuses error and ends all contention between the parties. It leaves nothing for the court to do, but to enter what the parties have agreed upon, and when so entered, the parties themselves are concluded.” (quoting Schmidt v. Oregon Gold Mining Co., 28 Ore. 9, 40 P. 406 (1895)). In Selig v. Barnett, 233 Ark. 900, 350 S.W.2d 176 (1961), the court said:
A judgment by consent is in effect an agreement or contract of the parties, acknowledged in court and ordered to be recorded, with the sanction of the court. A judgment by consent of the parties is a judgment, the provisions and terms of which are settled and agreed to by the parties to the action in which it is entered, and which is entered of record by the consent and sanction of the court. A consent judgment is not a judicial determination of any litigated right, and is not the judgment of the court except in the sense that the court allows it to go upon the record and have the force and effect of a judgment. [Punctuation altered and citations omitted.]
A valid consent judgment cannot be rendered by a court when the consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). The term “consent judgment” necessarily implies a consent at the time the judgment is entered. The court may not enter judgment when it is advised that one of the parties either denies the existence of the contract or repudiates it, or for any other reason no longer consents to the judgment. Van Donselaar v. Van Donselarr, 249 Iowa 504, 87 N.W.2d 311 (1958); see also Lalanne v. Lalanne, 43 N.C. App. 528, 259 S.E.2d 402 (1979). A consent judgment rendered without the consent of a party will be inoperative in its entirety. Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963).
Milstead v. Milstead, 633 S.W.2d 347 (Tex. App. 1982), was a divorce case. During the trial the parties entered into a settlement in open court. Afterwards each party submitted proposed judgments which were conflicting. The court cited Burnaman, supra, for the proposition that a valid agreed judgment cannot be entered when the consent of one of the parties is lacking. The Milstead court said:
The trial court has no power to supply terms, provisions or details not previously agreed to by the parties.
When the parties submitted conflicting motions for judgment, the trial court was put on notice that mutual consent of the parties was lacking. At that point, rather than granting one party’s motion and denying the other, the court should have denied both motions on the ground that mutual consent was lacking. [Citations omitted, emphasis in original.]
The circumstances in the case at bar are virtually identical to those presented to the court in Milstead. The chancellor should not have signed the decree proposed by the appellee after having become aware of a disagreement between the parties. Appellant is entitled to an order setting aside the consent judgment in its entirety. See Overton v. Overton, supra.
Reversed and Remanded.
Mayfield and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
In this appeal, the appellant contends that the chancellor abused his discretion in awarding child support retroactively.
On April 5,1988, appellee Juanita Pardon filed a petition for change of custody alleging that since the parties’ divorce their minor child, David, had moved into her home and desired to be placed in her custody. The appellee also asked that the appellant be required to pay a reasonable amount for David’s support and benefit.
At a hearing held January 25, 1989, appellee testified that David was 16 years old and had been with her for eleven months during which time she had received no support from appellant. Appellee also testified that she ran a bait shop and florist shop; that she was having a hard time making it financially; that her oldest son, Alan, has had to stay out of school to work and help her pay the bills; and she had to borrow money.
The appellant testified that he had provided the home and support for David until he left to live with his mother. Although there was evidence that appellant’s gross pay for 1988 was $30,000.00, appellant testified he was not doing so well financially because he had remarried; had to completely rebuild his life; and had to start all over buying appliances and clothing.
The appellant argues that the chancellor abused his discretion when he ordered child support retroactive to April 5, 1988, instead of ordering the support to commence as of January 25, 1989, the date of the hearing. Appellant cites Franklin v. Franklin, 25 Ark. App. 287, 758 S.W.2d 7 (1988), and Stracener v. Stracener, 6 Ark. App. 1, 636 S.W.2d 877 (1982), in support of his argument.
In Stracener, the parties entered into a settlement agreement which was approved by the trial court and made a part of its divorce decree. The agreement contained a provision requiring the husband to pay his wife $400.00 per month alimony “as long as she remains single and living as a single person.” There was evidence that on April 1,1981, the divorced wife allowed a man to move into her home and live with her under circumstances that violated the requirement that she live “as a single person.” The former husband stopped making the alimony payments and at a hearing on September 22, 1981, the trial court held that the alimony obligation stopped as of April 1, 1981. This court affirmed the trial court’s holding in spite of the argument that the trial court had remitted past due payments. In Franklin, the trial court awarded alimony to begin as of the date of the court’s letter opinion, although the court’s decree was not entered until later. This court affirmed, saying the date the alimony began was “a decision within the broad discretion of the chancellor.”
The Stracener and Franklin cases show that the date alimony begins and stops will depend upon the circumstances of the case and the discretion of the chancellor. In 27C C.J.S. Divorce § 684 (1986), it is stated:
The commencement date of an award of child support is a matter within the discretion of the trial court. It has been held proper to make child support payable from the date of the divorce or dissolution decree or from the date of the order or decree granting child support.
In an appropriate case, it is within the discretion of the court to make an order for child support retroactive to an earlier date where it appears that the needs of the child existed as of that date. However, it has been held that child support payments may not be ordered to commence earlier than the date the divorce action was commenced.
Thus, in various instances it has been held proper for the court to fix the effective date of an order of child support from the date of filing of the petition or complaint, or from the date of the trial, or from the date of the parties’ separation.
In the instant case, the evidence is clearly sufficient to establish that the appellant’s minor child left his father’s house to live with his mother approximately eleven months before the hearing in this case. As the hearing was held on January 25,1989, this means that the child began living with his mother in February of 1988. On April 5, 1988, after the child had lived with her for over a month, the mother filed a petition in which she requested that the father be required to pay a reasonable amount for the support and benefit of the child. Under the circumstances in this case, we find no abuse of discretion in the chancellor’s ordering child support payments retroactive to the date of the filing of the mother’s petition.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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Judith Rogers, Judge.
The appellant, Rodney Frances Pharo, was initially charged by information with criminal attempt to commit murder in the first degree, a violation of Ark. Code Ann. §§ 5-3-201 (1987) and 5-10-102 (Supp. 1987). The appellant was found guilty by a jury of battery in the first degree, a violation of Ark. Code Ann. § 5-13-201 (Supp. 1987). From this conviction, the appellant received a ten year sentence and a $5,000 fine. On appeal, the appellant raises the following three issues for reversal: (1) that the trial court’s ruling excluding expert testimony on the physiological effects of alcohol consumption was a violation of the “due process” clause of the Fourteenth Amendment; (2) that the trial court’s ruling denying a jury instruction regarding battery in the third degree was error; and (3) that the prosecutor’s comments on the appellant’s exercise of his post-Miranda right to remain silent was a violation of the Fifth and Fourteenth Amendments. We find no reversible error and affirm.
The record reveals that the appellant was employed as an area superintendent for Texas Contractors at the Fayetteville Sewage Treatment Plant construction site. The appellant regularly carried a gun while on the job as it was customary for him to transport the payroll. After work on the evening of January 27, 1988, the appellant frequented three clubs in the Fayetteville area. Over the course of the evening, the appellant consumed an excessive amount of alcohol. As he was leaving the last club the appellant was involved in an exchange which resulted in the bouncer, David Smart, being shot in the abdomen.
The appellant argued below, and now on appeal, that the shooting was accidental. The appellant contends that the exchange between himself and Smart did not reach volatile proportions, that there were no threats or raised voices, and that after the shooting, the appellant appeared to be stunned and confused.
The appellant’s first argument is that the trial court erred in excluding expert testimony as to the physiological effects of alcohol consumption. The appellant sought to introduce the testimony of Carol Tucker, as an expert in the field of alcoholism, who would testify that the appellant did not possess the requisite mental state for the crime charged. The appellant argues that the exclusion of the witness deprived him of “due process” of law citing In re Winship, 397 U.S. 358 (1970), which held that the “due process” clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. The appellant’s argument is that by excluding testimony that would tend to negate the specific intent requirement, the state was effectively relieved of its burden of proving this element of the offense beyond a reasonable doubt. The trial judge denied the admission of said evidence citing the recent supreme court decision of White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).
The appellant contends that the trial court misapplied the White case because the court failed to make a distinction between voluntary intoxication as a defense and evidence of voluntary intoxication to negate the existence of a specific element of a crime. The appellant’s argument mirrors the common law rule that evidence of voluntary intoxication, while no excuse for a crime, could be admitted to show the defendant was incapable of forming the specific intent necessary for the crime. This rule was discussed in White where the court overruled the holding in Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). The court in Varnedare had stated that by amending § 41 -207 to remove self-induced intoxication as a statutory defense, the legislature, in effect, reinstated any prior Arkansas common law on the subject. The court in White stated that “we are now convinced that our court was wrong in Varnedare when we held that the common law defense of voluntary intoxication was reinstated.” By saying the common law defense had not been reinstated, the court in White effectively held that voluntary intoxication is no longer available as a defense or admissible for the purpose of negating specific intent. Inasmuch as the appellant sought to introduce this testimony to show that he lacked the requisite mental state for the crime charged, this position is contrary to the holding in White. We believe the trial court properly applied the rationale of the White case to the facts of the case at bar and did not err in excluding this testimony.
The appellant contends that the trial judge erred in denying his request that the jury be instructed on battery in the third degree. The state argues that since the appellant did not prepare and offer a proper written instruction on battery in the third degree and have it placed in the records, he is precluded on appeal from a decision on the merits. In order to properly preserve an objection to the court’s failure to give an instruction, the appellant must proffer the requested instruction. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); Henry v. State, 18 Ark. App. 115, 710 S.W.2d 849 (1986). This procedure expedites trial and facilitates compliance with the Arkansas Constitution, Art. 7 § 23, and Ark. R. Crim. P. 33.3, which make it mandatory that the trial judge, when requested by a party or a juror, deliver to the jury a typewritten copy of the oral instructions given by the judge. Id.; Willett v. State, 18 Ark. App. 125, 712 S.W.2d 925 (1986). In this case the text of the proposed instruction does not appear in the abstract or in the transcript. In Green v. State, 7 Ark. App. 175, 646 S.W.2d 20 (1983), we held that where a requested instruction does not appear in either the abstract or the transcript, we would not consider it error for the refusal to give the instruction. Therefore, we find no error on this issue.
The appellant’s third contention is more troublesome. The appellant argues that the prosecutor’s comments upon his post-arrest silence constitute prejudicial error. The appellant cites Doyle v. Ohio, 426 U.S. 610 (1976), for the proposition that the use for impeachment purposes of petitioner’s silence, at the time of arrest and after receiving Miranda warnings, violated the “due process” clause of the Fourteenth Amendment. As the court explained in Doyle:
When a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.
Our supreme court has discussed and made reference to the rationale of the Doyle decision in concluding that the prosecution is on dangerous ground and courting prejudicial error when any reference is made concerning an accused’s election to remain silent. See Jarreau v. State, 291 Ark. 60, 722 S.W.2d 565 (1987); Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982).
In the case at bar, the following colloquy occurred on cross examination of the appellant:
Q: Okay. You told them exactly what happened?
A: I assume I have the right to a defense. I don’t have to give the evidence that’s going to convict me of the crime until I got a defense.
Q: Well, did you tell them about that?
A: I didn’t tell the police department nothing. I have a right not to.
Q: Did you ever tell them it was an accident that you shot this person?
A: I just told you that they said I had a right to remain silent and I chose the right to remain silent.
Q: So therefore you did . . .
A: Is that wrong?
Q: Not mention to them that it was an accidental shooting?
A: If I chose the right to remain silent, I don’t have to mention to them that. That’s my legal right.
Q: Did you at any point in time tell the police that the shooting was accidental?
A: No.
Q: Did you tell the police that you were in such a daze that you didn’t even realize that you’d shot somebody?
A: No.
Q: Did you ever tell the police that you didn’t even know the person and couldn’t identify him if you saw him again, the person that you might have shot?
A: No.
Q: Did you ever tell the police that you were so intoxicated that you didn’t know what you were doing on that night?
A: No.
Q: But you never thought about going to the police station the following day, did you?
A: Not when I found the gun in my pocket and the hole.
Q: There was nothing stopping you, was there, Mr. Pharo, on that next day instead of going down to the hospital going down to the police station and bringing the jacket and gun and saying, “Hey, I must have shot somebody. I’m sure sorry about it.”?
A: Yes, the thing that was stopping me, the intelligence enough to know that I ought to talk to a lawyer before I go to the police department.
Q: Didn’t you think the police would believe you?
A: Well, I’m here now to tell what happened. You don’t believe me now so what would make you think the police would believe me?
Q: You think this jury’s going to believe you today, so why didn’t you think the police and prosecutor might have believed you back on January 28?
A: It’s a simple fact ....
We do not disagree with the appellant’s contention that the prosecutor’s repetitive comments implicated the exercise of his right to remain silent, and was thus clearly in error. However, we do not believe this constitutes reversible error for the following reasons: (1) the appellant did not object at the first opportunity; (2)the appellant did not request or receive a definitive ruling on his objection; and (3) the appellant neither requested nor received any curative relief.
Initially, we note that the appellant did not make a timely objection to the prosecutor’s comments regarding the exercise of his right to remain silent. An argument for reversal will not be considered in the absence of an appropriate objection in the trial court. To be considered appropriate, an objection must be made at the first opportunity. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). The objection must be timely, affording the trial court an opportunity to correct the asserted error. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989); see also, Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980).
In Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985), a case remarkably similar to the present case, the appellant’s objection concerning his right to remain silent was held untimely as the impermissible questioning had been asked in various forms without an objection. Although admittedly the questioning in this case was more extensive than that in Hill, and it does without a doubt constitute error, the appellant failed to object at a time when perhaps the error could have been avoided, or the prejudice removed. We have consistently held that “we require a timely objection made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.” Gustafson, supra.
In addition, we note that in Arkansas our courts do not have a “plain error” rule. As stated in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980):
Some courts, especially the federal courts, have a “plain error” rule, under which plain errors affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Federal Rules of Criminal Procedure, Rule 52(b); State v. Meiers, 412 S.W.2d 478 (Mo., 1967). In Arkansas, however, we do not have such a rule. Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980). To the contrary, in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.
In the absence of a “plain error” rule, it is incumbent upon an appellant to make a timely objection in the trial court to preserve the issue on appeal. In the case at bar, the appellant failed to object at the first opportunity, thereby allowing repeated questioning on this subject.
Secondly, the appellant neither requested nor received a definitive ruling on his objection. The objection and ruling were as follows:
MS. HANSON: Your Honor, I’m going to object to this line of questioning. I think it’s argumentative. And I believe it goes to the perview [sic] of Mr. Pharo’s right to remain silent.
THE COURT: Well I think the problem is we’re beginning to get a little argumentative and repetitious. We’ve covered this pretty much.
The trial court’s ruling only addressed the argumentative aspect of the appellant’s objection. The appellant never requested or received a ruling regarding the exercise of his right to remain silent. The burden of obtaining a ruling is upon the movant and objections and questions left unanswered are waived and may not be raised on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Young v. State, 14 Ark. App. 122, 685 S.W.2d 823 (1985). In addition, one final question was asked of the appellant at which time he again failed to object.
Furthermore, the appellant failed to request any curative relief. Apparently, the appellant was satisfied with the trial judge’s ruling since he failed to seek any curative relief and subsequently failed to object during closing argument when further comment was made. Since the appellant requested neither an admonition nor a mistrial, no reversible error occurred. Vick v. State, 299 Ark. 25, 770 S.W.2d 653 (1989); Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989); Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987). Where theappellant was given all the relief he requested, he has no basis upon which to raise the issue on appeal. Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983).
After a careful and thorough consideration of the record and briefs filed by both parties, we find no reversible error in the points raised on appeal. We therefore affirm the appellant’s conviction of battery in the first degree.
AFFIRMED.
Cooper, J., dissents. | [
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James R. Cooper, Judge.
The appellant was charged with second degree murder in the shooting death of his wife. After a jury trial, the appellant was convicted of the lesser-included offense of manslaughter and sentenced to ten years in the Arkansas Department of Correction. On appeal he argues that the trial court erred in refusing to grant his motion for a new trial and that the trial court erred in allowing the State to cross-examine him about prior bad acts. We find merit in the appellant’s first argument and reverse and remand for a new trial.
At a hearing on the appellant’s motion for a new trial, J.R. Mayer, an investigator for the Randolph County Sheriffs Office, testified that he was a witness for the State at the appellant’s first trial. According to Mayer, after the jury had begun deliberations, a juror left the jury room and asked him if the jury could have the statement of Aubrey Huckabee. Aubrey Huckabee is the appellant’s brother and was present the night the appellant’s wife was shot and killed.
Mayer testified as follows:
The juror asked me a question and I said, “Just a minute”, because I had no knowledge of the question that he asked me. About that time, the Judge came out, Judge Erwin, and that question was answered for him and he returned to the jury room.
The record does not reveal the substance of the judge’s answer.
On appeal, the appellant argues that the trial court erred in denying his motion for a new trial because there was no compliance with Ark. Code Ann. § 16-89-125(e) (1987). That section states:
(e) After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.
This statute is mandatory. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 7 58 (1986). Noncompliance with the statute gives rise to a presumption of prejudice and the State has the burden of overcoming the presumption. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).
The State argues that there is nothing in the record to indicate what the trial judge told the juror, and therefore the appellant has failed in his duty to bring up a record sufficient to demonstrate error. However, according to Tarry, supra, the State has the burden of proving that the communication was not prejudicial, and in the present case, the State had the same opportunity that the appellant had to call witnesses and demonstrate that there was no prejudice.
Although we recognize that the Supreme Court’s 1986 ruling in Tarry is not consistent with the line of cases beginning with Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984) and continuing through the recently-decided case of Bonds v. State, 298 Ark. 630, 770 S.W.2d 136 (1989), which require that the appellant demonstrate prejudice, it is clear that the Supreme Court has chosen to apply the earlier rule which presumes prejudice with respect to errors resulting from noncompliance with Ark. Code Ann. § 16-89-125 (e) (1987). See Tarry, 289 Ark. at 196 and 198.
We also find no merit to the State’s contention that § 16-89-125(e) did not come into effect because the juror did not indicate that there was a disagreement as to evidence or that they wished to be informed on a point of law. According to Officer Mayer’s testimony, at least some members of the jury wanted the statement of one of the witnesses who testified. We hold that there was sufficient evidence to show that the jury had some question as to this evidence and we hold that the statute did come into effect.
The State also requests that we overrule Tarry and Rhodes, because the presumption of prejudice is contrary to the previously mentioned rule that prejudice must be demonstrated. However, we do not have the authority to overrule Tarry and Rhodes, which are Arkansas Supreme Court cases. The appellant filed this case with this Court. The cover of the State’s brief states that the case is “In the Arkansas Court of Appeals” but the jurisdictional statement indicates that the case falls within the jurisdiction of the Supreme Court. However, the State has not filed a motion requesting certification to the Supreme Court. We will, in proper cases, certify cases to the Supreme Court on our own motion; however, we do not find that to be appropriate in this case. This case does not require certification because we are applying the statute to the facts in this case, as the statute was interpreted by the Supreme Court just three years ago.
Furthermore, we are not persuaded by the State’s assertion that the Supreme Court’s interpretation is unjust. The purpose of the statute is to prevent exactly what happened in this case. As the State points out in its brief, it is not known exactly what the trial judge told the juror, but according to the testimony, however, he answered the question. Had the statute been followed we would have before us a record of the conversation and both attorneys would have had an opportunity to object if they deemed it necessary. However, because the statute was not followed, we only have Officer Mayer’s testimony as to what occurred. As we noted above, the State had equal opportunity to rebut the presumption of prejudice and, having failed to do so, the State cannot now complain that the result is unjust. We therefore reverse and remand for a new trial.
The appellant’s second argument concerns questions the State asked him regarding prior bad acts. Since we are remanding for a new trial, we address the issue because it is likely to occur on retrial.
The appellant testified in his own behalf. He stated that on the evening of April 29,1988, he and his brother, Aubrey, went to the “state line” and drank beer. They returned to the appellant’s home at approximately 11:30 p.m. and his wife began heating up supper for them. She then went into the bedroom, and the appellant followed. He stated that he sat down on the bed next to his wife and reached up for his holster, which had a gun in it. As he was sitting down again the gun discharged. According to the appellant, his wife “began hollering,” and when he turned around he got his feet tangled, fell, and the gun discharged again. The appellant stated that he and his wife were not arguing, that he loved his wife, and that the shooting was accidental.
On cross-examination, the State asked the appellant if he had in the past picked up the dining room table and broken it over his wife’s back. The appellant objected to the question, asserting that it was not relevant. The trial court overruled the objection, and the appellant denied hitting his wife with the dining room table. The State then asked the appellant if he pushed or slapped his wife when he was drinking, if his wife left him because he had beaten her, and if he had threatened to kill her. The appellant denied all these acts. On appeal, the appellant argues that the trial court erred in allowing him to be questioned about prior acts of violence towards his wife. We disagree.
Evidence of prior wrongs or acts is not admissible to prove the character of the defendant in order to show that he acted in conformity therewith; however, it may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or lack of mistake or accident. Ark. R. Evid. 404(b). To be admissible under this rule, the evidence must be independently relevant and its probative value must substantially outweigh the danger of unfair prejudice. Crutchfield v. State, 25 Ark. App. 227, 763 S.W.2d 94 (1988). In light of the fact that the appellant testified that his wife’s shooting was accidental, we agree with the trial court’s ruling that the evidence was relevant to show intent and lack of accident, and that any prejudice was outweighed by the probative value.
Reversed and remanded.
Jennings and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
After a jury trial, the appellant was convicted of furnishing prohibited articles in violation of Ark. Code Ann. § 5-54-119 (1987), and was sentenced to five years in the Arkansas Department of Correction. On appeal she argues four points: 1) that it was error for the trial court to admit a bag of marijuana into evidence because the State failed to show a proper chain of custody; 2) that the trial court erred in denying her motion for a directed verdict; 3) that it was error for the trial court to permit the State to question her about her post-arrest silence; and 4) that the trial court erred in refusing to grant her motion for a new trial. We affirm.
The record reveals that the appellant went to the Hempstead County Jail to visit a man in custody there, Prentis Weston. The appellant was not permitted to see him, but a trustee was allowed to ask Mr. Weston if he needed anything and he conveyed the response to the appellant. The appellant left and returned shortly in the company of another woman. The appellant allegedly gave a bag of personal articles to Jenny Waller, an employee of the Sheriffs Department. According to Ms. Waller, she and Officer Ronald Wreyford inspected the articles. Officer Wreyford found cigarette rolling papers in between the pages of a package of writing paper and Ms.- Waller found a small plastic bag of green vegetable matter, which was subsequently tested and found to be marijuana, in the bottom of a “Speed Stick” deodorant.
We will address the appellant’s second argument first because a motion for a directed verdict is a challenge to the sufficiency of the evidence. Harris v. State, 284 Ark. 247, 681 S. W.2d 334 (1984). The appellant moved for a directed verdict at the close of the State’s case, however, she failed to renew the motion at the close of the case. In order to preserve the issue of sufficiency of the evidence for appeal a directed verdict motion must be renewed at the close of the case. Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989); Ark. R. Crim. P. 36.21(b) (amended by per curiam March 1,1988). Therefore, we decline to consider this issue.
The appellant’s first argument concerns the chain of custody of the small bag of marijuana found in the deodorant bottle. It is the appellant’s contention that because there was no evidence as to when the bag was mailed from the sheriffs department to the State Crime Lab, or who received the package, the State failed to show a proper chain of custody. We disagree.
The purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic, and to prove its authenticity the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).
To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Nor is it necessary that every possibility of tampering be eliminated: it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with.
(citations omitted) Munnerlyn v. State, 264 Ark. 928, 931, 576 S.W.2d 714, 716 (1979). The effect of minor discrepancies in the chain of custody are for the trial court to weigh. White, supra.
Ms. Waller testified that she inspected the deodorant, found the bag containing the marijuana, pulled it out, and handed it to Officer Wreyford. Officer Wreyford stated that he observed Ms. Waller inspect the deodorant, saw her remove the bag, and immediately took it from her. He stated that he placed the bag in an envelope; sealed it; and placed his initials, a case number, and the date on it. Before mailing it to the crime lab, Officer Wreyford placed the bag in his locker, to which he had the only key. When it was returned to him from the crime lab he again placed it in his locker.
The date on the bag of marijuana was July 14,1988, but the day it was confiscated was July 13,1988. On cross-examination, Officer Wreyford explained that he probably made a mistake on the date. Although Ms. Waller stated at trial that the bag appeared to be the one she pulled from the deodorant, Officer Wreyford testified that he was positive it was the same bag.
Mary Buhler, a forensic chemist with the Arkansas State Crime Laboratory, testified that the evidence was received by the crime lab on January 19, 1989; that she checked it out of the evidence room on January 25, 1989; and that she tested the contents of the bag. When she received the envelope it had the initials RLW on it and the number E-l-88-037. These are the same numbers and initials which Officer Wreyford said he placed on the envelope. Mrs. Buhler stated that she placed the laboratory’s case number on the envelope, 89-00612, taped it shut, put her initials on it, and returned it to the evidence room on the same day she checked it out.
We hold that the State did demonstrate a reasonable probability that the evidence had not been tampered with or altered in any significant manner and we find no error in the trial court’s admitting it into evidence. White, supra.
For her third point, the appellant argues that the trial court erred in allowing the State to cross-examine her about her post-arrest silence. Over the appellant’s objection, the following took place on cross examination.
Q. Ms. Simms, at the time you were arrested by law enforcement officers, did you tell Sheriff Don Worthy what you have told the jury?
A. No, sir.
Q. Did you tell Mrs. Jenny Waller what you told the jury?
A. No.
Q. Did you, in fact, tell any Hempstead County Deputy sheriffs or law enforcement officer what you have told the jury?
A. No, sir.
The appellant also argues that this error was compounded when the State referred to her post-arrest silence during closing arguments.
No objection was raised concerning the remarks made by the State during closing arguments, and therefore we will not address the argument. In order to preserve an alleged error for appeal, an objection must be made. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). As for the questions during cross-examination, we find that, if they did constitute error, it was harmless. Where the defendant’s silence is mentioned by the State, it is harmless error if there is no prosecutorial focus by repetitive questioning or arguing on a defendant’s silence where the evidence of guilt is overwhelming. Vick v. State, 301 Ark. 296, 783 S.W.2d 365 (1990).
There was overwhelming evidence of the appellant’s guilt. Although the appellant testified that she was not the one who brought the marijuana to the jail and that it must have been brought in by the lady who accompanied her. Ms. Waller testified twice that she was sure it was the appellant who had the deodorant when the two women entered the jail. Furthermore, the prosecutor asked only three questions during a lengthy cross-examination and did not return to this line of questioning. Under these circumstances, we find that the error was harmless. Even errors of constitutional proportions do not require reversal if they are harmless beyond a reasonable doubt. Gage v. State, 295 Ark. 337, 748 S.W.2d 331 (1988).
For her final argument, the appellant argues that the trial court erred in refusing to grant a new trial. On direct examination, the appellant indicated that it was the woman who accompanied her to the jail, Vercina Lindsey, who secreted the marijuana in the deodorant and carried it into the jail. The State attempted to call Ms. Lindsey as a rebuttal witness, but the trial court sustained the appellant’s objection and refused to allow Ms. Lindsey to testify because she was not a proper rebuttal witness. During closing argument the State remarked, “[T]he defendant comes in here and says, I didn’t know ... the other girl had it. Where is the other girl?” Later, the State again commented, “What if we could have had that second person that came with her to the jail here today?” The appellant only objected to the second remark, and requested that the trial court instruct the jury that Ms. Lindsey was present but not allowed to testify. She also requested that the State not go into the matter any further. The trial court overruled the appellant’s objection, stating that it had already instructed the jury as to “what weight to place on closing arguments.” The State then continued its closing argument and stated “You have heard the testimony of the defendant that there was no effort to find this second lady, even though she also testified that this lady was the defendant’s husband’s best friend’s girlfriend.”
The appellant based her motion for a new trial on these remarks made by the State. She argues that prejudice is apparent from the fact the jury questioned the judge about why Ms. Lindsey did not testify.
The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in absence of an abuse of discretion or manifest prejudice to the complaining party. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1988). We find no error.
During closing arguments, the State is permitted to draw whatever inferences are reasonable from the evidence. Wilburn v. State, 292 Ark. 416, 730 S.W.2d 491 (1987). In light of the fact that it was the appellant’s testimony that Ms. Lindsey put the marijuana into the deodorant and that it was the appellant’s objection that prevented Ms. Lindsey from testifying, we do not think that the State’s remarks were improper. It is not unreasonable to conclude that the appellant did not want Ms. Lindsey to testify because Ms. Lindsey would deny putting the marijuana in the deodorant. We cannot say that this suggestion by the State in closing arguments created manifest prejudice to the appellant.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with DWI, second offense. He was convicted of that offense after a jury trial on November 3,1988, and sentenced to seven days in the county jail, one year suspension of driving privileges, fined $500.00, assessed court costs of $275.00, and ordered to complete an alcohol education program. From that decision, comes this appeal.
The appellant contends that the evidence was insufficient to support his conviction. Additionally, the appellant asserts error based on the evidence that no breathalyzer test was administered, and that the arresting officer offered the appellant a blood alcohol test at the appellant’s expense. We affirm.
We do not address the appellant’s contention that the evidence was insufficient to support his conviction because he waived this point by failing to renew his motion for a directed verdict at the close of the case. Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989); Ark. R. Crim. P. 36.21(b).
Next, the appellant asserts that he was entitled to a blood alcohol test at the State’s expense. There is evidence to show that the appellant was arrested for DWI after his vehicle crossed the center line, causing Officer Lannie Wortman of the Morrilton Police Department to swerve his patrol car to avoid a collision. Officer Wortman stopped the appellant’s auto and administered field sobriety tests, which the appellant failed. Officer Wortman formed the opinion that the appellant was intoxicated and transported him to the police station. No breathalyzer test was administered to the appellant at the police station because the machine was broken. However, Officer Wortman informed the appellant that he could have a blood alcohol test at his own expense.
The appellant contends that he was not afforded the opportunity to have a breathalyzer test, and that he was therefore entitled under Ark. Code Ann. § 5-65-203 (1987) to a blood alcohol test free of charge. We do not agree. Arkansas Code Annotated § 5-65-204(e) (1987) provides that the person tested may have a chemical test administered to him in addition to any test administered at the direction of a law enforcement officer. Subsection (e)(2) of the statute provides that the results of a chemical test taken at the direction of a law enforcement officer are inadmissible if the person tested is not advised of his right to, and assisted in obtaining, an additional test. The statutory remedy for a person who is not afforded the opportunity to obtain an additional test is therefore exclusion of any chemical test taken at the direction of law enforcement officers. The appellant in the case at bar was given no chemical test by law enforcement officers, and no chemical test results were admitted into evidence against him. “It naturally follows that appellant, in not having any test results introduced into evidence against him, was not deprived of the right the statute cited is intended to insure.” Fletcher v. City of Newport, 260 Ark. 476, 541 S.W.2d 681 (1976). More recently, the Arkansas Supreme Court has held that neither due process nor Ark. Code Ann. § 5-65-204(e) (1987) requires that a person be informed of his right to an additional test unless he is given a test at the direction of a law enforcement officer. Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988). We affirm.
Affirmed.
Jennings and Rogers, JJ., agree. | [
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John E. Jennings, Chief Judge.
Arzo Johnson was employed by Ketcher Roofing as a roofer on August 18, 1992, when he sustained an admittedly compensable injury to his back while lifting materials. He continued to work until about September 18, 1992, when he could no longer tolerate the pain and was sent by his employer to Dr. Scott Carle. Dr. Carle diagnosed him as having a lumbar strain and sciatica and prescribed medication and physical therapy. An MRI scan showed a bulging disc at L3-L4.
When Johnson’s condition did not improve Dr. Carle referred him to Dr. John Wilson, an orthopedic surgeon, on October 8, 1992. On that same date Johnson filed a petition for a change of physician to Dr. Edward Hayes, a chiropractor, to which the appellants agreed. Dr. Wilson saw Johnson on October 13, 1992, and stated that he believed Johnson to have a “resolving lumbo sacral strain.” Dr. Wilson prescribed four medicines and told Johnson to increase his activities and return to his normal work activities on October 20, 1992.
On the strength of Dr. Wilson’s report, appellant terminated total temporary disability payments as of October 20. Johnson attempted to return to work but when he told his superintendent that his back was still hurting, he was told that there was no light duty available.
Johnson first saw Dr. Hayes on October 21, 1992, at which time Dr. Hayes excused him from work. In a report dated December 21, 1992, Dr. Hayes stated that Johnson was “relatively stabilized,” that he had been contacted about Johnson seeing Dr. Wilson again and that he agreed with the decision, and that he felt that conservative treatment would keep the patient relatively pain free. Dr. Hayes also said, “If further treatment, such as surgery, is indicated, then his ability to return to that type work will have to be determined afterwards. My prognosis is very guarded concerning this patient.”
Johnson testified that he is continuing to see Dr. Hayes and that the treatment he received has helped his condition. He also testified that he was as yet unable to return to work. Mr. Johnson is fifty-nine years old and has a third grade education. He can neither read nor write.
Whether an employee’s healing period has ended is a factual determination and is to be made by the Commission. Johnson v. Rapid Die & Molding, 46 Ark. App. 244, 878 S.W.2d 790 (1994). When the sufficiency of the evidence to support the Commission’s findings of fact is challenged, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Thurman v. Clark Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994).
In the case at bar the Commission obviously believed the claimant’s testimony that treatment he was receiving from Dr. Hayes was helping his condition. Clearly, the Commission may consider the claimant’s testimony and choose to believe it. We cannot say that the Commission’s determination that Johnson’s healing period has not ended is not supported by substantial evidence.
Affirmed.
Pittman, J., and Bullion, S.J., dissent. | [
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John E. Jennings, Judge.
Terry Pike was convicted of possession of a controlled substance (cocaine) and was sentenced to ten years imprisonment. Prior to trial, Pike filed a motion to suppress, contending that the search warrant issued in the case was invalid. After a hearing, the trial court denied the motion. The sole issue on appeal is whether this was error. We hold that it was not and affirm.
Jeff Baker, a North Little Rock Police Officer, was both the investigating and arresting officer. He also signed the affidavit for the search warrant and executed the warrant. In the affidavit Baker stated that he had reason to believe that “on the premises described as being located at 28 Granite Mountain, Little Rock, Pulaski County, Arkansas further being described as being a one story building gray in color, with the numerals 28 located on the building, there is now being concealed a certain controlled substance, to-wit cocaine. . . .” The affidavit further stated that Baker had received information from a confidential informant that a man was selling cocaine from the residence at 28 Granite Mountain in Little Rock; that the confidential informant was furnished money with which to buy drugs; that Baker saw the informant enter the residence at 28 Granite Mountain; that Baker saw the informant leave thereafter; and that subsequently the informant handed him cocaine, which the informant said he bought from a man in the residence.
The search warrant which was subsequently issued authorized a search “at 28 Granite Mountain Circle, Little Rock, Pulaski County, Arkansas, further described as being a one-story gray building with the numerals 28 located on the building.”
At the hearing on the motion to suppress, Officer Baker testified that “Granite Mountain” was a housing project. He testified that when he executed the warrant he found the appellant and cocaine in the residence. He said that on the day the informant made the controlled buy, he saw the informant go into “a gray building marked #28.” He testified that the street that leads into Granite Mountain is Granite Mountain Circle and that that was the only street sign he observed while going into the complex. He testified that the building he searched was the one that he saw the informant enter. He admitted that the address of the building he searched was 28 Pasadena, rather than 28 Granite Mountain Circle. He said that Pasadena “forks off of’ Granite Mountain Circle. He testified that there was only one building in the housing project that had the number 28 on it. The appellant testified that there was also a 28 Granite Mountain Circle, a 28 California and a 28 Richmond in the “Granite Mountain area.”
The Fourth Amendment to the United States Constitution provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched. . . .” Appellant argues that the warrant must be held invalid here because of the incorrect address, relying on Perez v. State, 249 Ark. 1111, 463 S.W.2d 394 (1971). In Perez, a police officer’s affidavit seeking a search warrant recited that he had been told by a confidential informant “that Jack Eaton has in his possession [illegal drugs] concealed in his apartment located at the corner of Curl Street and Washington Street in Hot Springs, Arkansas. . . .” The search warrant authorized the search of “Curl Street Apartments at Curl and Washington Streets.” The supreme court noted these facts:
There was no evidence that appellant had ever been known as Jack Eaton. The Curl Street Apartments consisted of seven apartments in the same one-floor structure and an additional apartment in an adjoining structure. The apartments in the same unit were numbered one through seven. Apartment 6 was rented to appellant under the name Jack Perez. No unit in these apartments had ever been rented to a person named Jack Eaton, and the manager of the apartments had never heard of anyone by that name.
The court in Perez held the warrant invalid under the general rule that “a warrant for search of a subunit is not valid if it does not describe the subunit to be searched but merely refers to the larger multiple occupancy structure.” The court also said that search warrants and supporting affidavits should not be subjected to a “hypercritical view” in determining whether or not they meet constitutional requirements and that the sufficiency of the description to permit identification of the premises with certainty by appropriate effort and inquiry must be decided upon the facts and circumstances prevailing in the particular case. See also Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).
The rule applied in Perez is not applicable here. The facts in the case at bar are much more similar to those in Lyons v. Robinson, 783 F.2d 737 (8th Cir. 1985). In Lyons a police officer had obtained information from a confidential informant that Lyons was selling drugs from his home. The affidavit, and the search warrant, incorrectly listed the place to be searched as “325 Atkinson Street.” Lyons’ house was actually at 325 Short Street, on a corner lot where Short and Atkinson intersect. The warrant also described the place to be searched as “a single residence with silver siding with red trim located on the south side of Atkinson Street.” The court held the warrant valid and said that it was not significant that the warrant incorrectly listed Lyons’ address. Citing United States v. Gitcho, 601 F.2d 369 (8th Cir. 1979), cert. denied, 444 U.S. 871 (1979), the court said:
The test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.
Lyons at 738.
The court continued:
Thus, where a search warrant contained information that particularly identified the place to be searched, the court has found the description to be sufficient even though it listed the wrong address. In this case, the warrant listed the residence to be searched as “325 Atkinson Street” whereas the residence was actually located at 325 Short Street. But it is clear that in the circumstances the error in the warrant was not misleading or confusing. Atkinson and Short Streets intersect in front of Lyons’ house. Sgt. Gibson obviously mistakenly read the street sign. In addition, the warrant provides an accurate physical description of the premises. Moreover, where the same officer both applied for and executed the warrant a mistaken search is unlikely. Therefore, we find the warrant description sufficient and the warrant valid. [Citations omitted.]
Similarly, in the case at bar Pasadena and Granite Mountain Circle were intersecting streets. Officer Baker testified that the only street sign he saw was for Granite Mountain Circle and that the building searched was the only one in the housing project with the number 28. He was the officer who both applied for and executed the warrant. The warrant here contained additional language describing the building to be searched. And the officer also had had the premises under surveillance. See United States v. Gill, 623 F.2d 540 (8th Cir. 1980).
Under these circumstances we hold that the incorrect address was not a fatal defect in the warrant.
Affirmed.
Rogers, J., agrees.
Cooper, J., concurs. | [
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James R. Cooper, Judge.
The appellant was convicted by a jury of driving while intoxicated, fourth offense, a felony in violation of Ark. Code Ann. § 5-65-103 (1987), and she was sentenced to one year in the Arkansas Department of Correction. On appeal, the appellant argues that the trial court erred in refusing to grant her motion for a directed verdict because the evidence was insufficient to support her conviction. We agree that the evidence is insufficient to support the verdict and we reverse and dismiss.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. In determining the issue of sufficiency ' of the evidence, we view the evidence in the light most favorable to the appellee, and the judgment must be affirmed if there is substantial evidence to support the finding of the trier of fact. Deshazier v. State, 26 Ark. App. 193, 761 S.W.2d 952 (1989). A person commits the offense of driving while intoxicated if he operates or is in physical control of a motor vehicle while intoxicated. Ark. Code Ann. § 5-65-103(a) (1987).
The record reveals that John Watson, an Arkansas State Police Trooper, was checking a report he received about stolen jewelry in the City of Nashville. He was accompanied by Nashville Police Officer Larry Yates. While in the car they heard tires squealing and as they approached the intersection of Fourth and Bishop Streets in Nashville, they saw the appellant in her car on the shoulder of the road. Trooper Watson testified that there were black skid marks on the road and that the appellant was sitting in the car “with the motor revved.” The officers approached the car and removed the appellant from it. Trooper Watson testified that the appellant was unsteady on her feet, her speech was slurred, and she was in an emotional state, “bawling all the time.” He also stated that there was no odor of alcohol, but that the appellant appeared to be intoxicated and he took her to the police station. She had two bottles of prescription pills in her possession, which appeared to have been filled the previous day. According to the trooper’s testimony, one of the bottles was almost empty and the other bottle was half full. Trooper Watson testified that he did not recall what kind of pills were in the prescription bottle and that, prior to trial, he had called a pharmacist, but that he did not recall what the pharmacist told him. No other evidence was introduced concerning the contents of the bottles or the label on the bottles of pills and neither the bottles nor the pills were introduced into evidence.
Officer Yates testified that the appellant seemed to be “under the influence of something,” and that she was nervous, jittery, and so unstable on her feet she had to lean against the car and be escorted to the police car. He also stated that no field sobriety tests were performed and that she was not requested to provide either a blood or urine sample.
At the close of the State’s case, the appellant moved for a directed verdict, arguing that the State had not shown that the appellant was intoxicated from the ingestion of either alcohol or a controlled substance. The trial court denied the motion, submitted the case to the jury, and the appellant was found guilty. While the jury was deliberating the issue of punishment, the appellant again asked the judge to enter an order of acquittal based on the fact that there was no evidence that the appellant had taken the pills or that the pills were a controlled substance. After the jury announced the one year sentence, the appellant again requested that the verdict be set aside. After a lengthy discussion with the attorneys, the trial court indicated that it was not going to set aside the verdict but it did request briefs on the issue. At the subsequent sentencing hearing, the trial court refused to set aside the verdict.
The State argues that the appellant has not preserved the issue for appeal because she did not obtain a ruling on her motions for directed verdicts. We find no merit to the State’s argument; the trial judge clearly ruled against the appellant’s timely motions. We do not find a waiver of an alleged error merely because the trial judge delayed his ruling in order to have briefs submitted.
We concur with the appellant’s argument that the evidence is insufficient to support the verdict. The affidavit for the arrest warrant states that the appellant “was intoxicated by drugs.” The State stipulated that alcohol was not involved and the jury instructions only referred to intoxication by alcohol or controlled substances. Furthermore, the jury verdict specifically stated that it found the appellant guilty of “Driving While Under the Influence of A Controlled Substance.” A controlled substance is a drug, substance, or its immediate precursor listed in Schedules I through VI of the Controlled Substances List promulgated by the Board of Health. Ark. Code Ann. § 5-65-102(2) (Supp. 1989).
To convict the appellant of driving while intoxicated the State had to prove: 1) that the appellant was driving or in actual physical control of a motor vehicle, Roberts v. State, 287 Ark. 451, 701 S.W.2d 111 (1985); 2) that the appellant’s driving skills were sufficiently impaired to create a substantial danger to herself and others, Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985), and; 3) that the impaired driving skills were the result of the ingestion of a controlled substance. See Ark. Code Ann. § 5-65-102(1) (Supp. 1989). In the present case the proof may be fairly said to show that: 1) the appellant operated or was in control of a motor vehicle; 2) that she was physically impaired; 3) that her reactions, motor skills and judgment were altered and that she constituted a danger to herself and other persons. We also think it fair to say that the jury could conclude, without resort to speculation or conjecture, that the appellant took some of the pills. However, the State has not shown that the pills in the prescription bottles contained a controlled substance. In its brief the State asserts that there was evidence that the appellant admitted that she had ingested some of the pills. We have carefully reviewed the record, and although the prosecutor argued to the judge during the trial that the appellant ingested the pills in a statement given to the officers, her statement was not offered into evidence, she did not testify, and the police officers did not testify that the appellant made such an admission. There is no direct evidence that she ever took any of the pills outside of the remarks of the prosecutor and arguments advanced by counsel in the course of trial are not evidence. See Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980); AMCI 101(e).
The prosecution bears the burden of proving, beyond a reasonable doubt, every element of the crime charged. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). The jury concluded that the appellant was intoxicated by a controlled substance; however, because there is no evidence whatsoever that the pills were a controlled substance, the jury was left to speculation and conjecture.
Reversed and Dismissed.
Rogers, J., dissents. | [
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Melvin Mayfield, Judge.
The administrator of the estate of J.D. Puddy, Jr., filed a petition in the Probate Court of Van Burén County seeking a judgment for the amount alleged to be due the estate by appellee, James Gillam. The appellee filed an answer denying that he was indebted to the estate and denying that a judgment for any amount should be entered against him.
At a hearing on the petition, the administrator presented evidence that at the time of Puddy’s death on November 19,1987, Puddy had in his possession a check for $ 10,000.00, drawn on the farm account of James Gillam, and signed by James Gillam. Although the check had the notation “Loan” on it, the estate contended that Gillam was actually indebted to Puddy for that amount. Gillam contended that the check was a loan to Puddy.
After the estate introduced its evidence and rested, Gillam moved that the claim be dismissed. The motion was granted on the finding that the estate had not made a prima facie case. The estate has appealed from that ruling, but we are unable to decide the matter on its merits because the probate court had no jurisdiction over the matter presented.
Article 7, § 34, of the Arkansas Constitution, as amended by Amendment 24, provides that courts of probate shall have “such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound minds and their estates, as is now rested in courts of probate, or may be hereafter prescribed by law.” Statutory jurisdiction, pertinent to this case, is stated in Ark. Code Ann. § 28-1-104 (1987) (formerly Ark. Stat. Ann. § 62-2004(b) (Repl. 1971)) as follows:
(a) The probate court shall have jurisdiction over:
(1) The administration, settlement, and distribution of estates of decedents.
In Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976), the decedent’s mother, Jewel Hilburn, filed exceptions to the administrator’s inventory on the ground that the real estate listed in the inventory did not belong to the decedent. The administrator then filed a petition asking that it be authorized to sell all the estate’s property, and Mrs. Hilburn filed a response again alleging that the real estate sought to be sold belonged to her because the deed to the realty had been obtained from her by fraud and undue influence. The probate court held against Ms. Hilburn, but the Arkansas Supreme Court reversed on the holding that the probate court order was void for lack of jurisdiction. The court first noted that Ms. Hilburn was not an heir, distributee or devisee of her son, or a beneficiary of or claimant against her son’s estate, but a “third person” or “stranger to the estate.” The court then discussed the jurisdiction of the probate court, saying:
The probate court is a court of special and limited jurisdiction, even though it is a court of superior and general jurisdiction within those limits. ... It has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto.
259 Ark. at 572 (citations omitted). The court then stated that “the probate court’s lack of jurisdiction to determine contests over property rights and titles between the personal representative and third parties or strangers to the estate has long been recognized.” The court also discussed other cases, some of which held or indicated that lack of jurisdiction could be waived. The court in Hilburn concluded, however, that those cases were “aberrations,” and said “it is not only the right but the duty of this court to determine whether it has jurisdiction of the subject matter.”
The case of Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140 (1914), addressed the issue now before us. In that case, the appellee, as executor of the decedent’s last will and testament, instituted an action in circuit court against the husband of the decedent to recover $1,200.00 alleged to be due for money borrowed from the decedent. After a trial, the court determined there was a balance due of $853.69 and rendered judgment in that amount for the appellee. On appeal, the appellant contended that the circuit court was without jurisdiction to determine the case because the probate court had exclusive jurisdiction in matters relative to the probate of wills and the estates of deceased persons, executors and administrators. The Arkansas Supreme Court said:
This contention involves a misconception as to the nature of this action. It is not a matter “relative to the probate of wills, the estate of deceased persons, executors, administrators,” etc., but is a suit by the executor to recover a debt due the estate. The probate court has no jurisdiction of contests between an executor or administrator and third parties over property rights or the collection of debts due the estate. Its jurisdiction is confined to the administration of assets which come under its control, and, incidentally, to compel discovery of assets. ...
The suit was therefore properly brought in the circuit court.
111 Ark. at 357 (citations omitted) (emphasis added).
Likewise in the instant case, Gillam is not an heir, distribu-tee, or beneficiary, and was therefore a “third” person or “stranger to the estate.” Shane v. Dickson was cited in Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942), where the court said:
Aside from this phase of the case, we are convinced that the order of the probate court was void for want of jurisdiction to make it. Throughout its history, this court has held that probate courts are without jurisdiction to hear contests of and determine the title to property between personal representatives of deceased persons and third persons claiming title adversely to the estates of deceased persons.
204 Ark. at 765.
While Shane v. Dickson, supra, was decided prior to the. adoption of Amendment 24 to our constitution in 1938, the jurisdiction of the probate court, so far as the issue here is concerned, was the same — “exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators . . . See Compiler’s Note, Ark. Const, art. 7 § 34, Ark. Stat. Ann. (1947).
In Risor v. Brown, 244 Ark. 663, 426 S.W.2d 810 (1968), involving probate jurisdiction long after the adoption of Amendment 24, the court cited Shane v. Dickson in the following holding:
In the present case, the suit is not a matter “relative to the probate of wills, the estate of deceased persons, executors, administrators, etc.,” but is actually a suit by the administratrix seeking contribution from one she alleges to be a distributee and beneficiary (under the provisions of Section 63-150). As pointed out in Shane, the Probate Court’s jurisdiction was “confined to the administration of assets which come under its control,” i.e., assets which were a part of the estate devised or bequeathed by Mrs. Anderson in her will.
244 Ark. at 666.
In Merrell v. Smith, 226 Ark. 1016, 295 S.W.2d 624 (1956), it was held that the probate court did not have jurisdiction to require specific performance of an agreement the testatrix allegedly made to leave her property to the appellants. The court said while the probate court properly admitted the will to probate, it lacked jurisdiction to decide the issue of specific performance. And in a recent case, Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987), a tort claim was filed in probate court against an estate. The probate court ruled that the statute of limitation had run and dismissed the tort action. The Arkansas Supreme Court reversed this ruling because the probate court did not have jurisdiction of the tort case.
It is our conclusion that in the case at bar, the probate court did not have jurisdiction of the suit by the administrator of the estate to collect a debt alleged to be due to the estate by the appellee. Therefore, we reverse the probate court’s granting of appellee’s motion for directed verdict, or dismissal of claim, on the administrator’s suit to recover the alleged debt. The court’s ruling was void.
The dissenting opinion agrees that Hilburn, supra, as well as other cases, supports our holding that the probate court lacked subject matter jurisdiction of the petition filed by the administrator in this case. The dissent states, however, that the issue is not “clear” and cites cases which the dissent contends “arguably would support a holding to the contrary.”
One case cited is Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986), which held that the probate court had subject matter jurisdiction of a petition filed by the executrix, who was a daughter of the deceased, against her two brothers, who were sons of the deceased. The executrix alleged her brothers had wrongfully taken various articles belonging to the estate, and she asked that they be directed to return this property. The Arkansas Supreme Court cited Snow v. Martensen, 255 Ark. 1049, 505 S.W.2d 20 (1974), and Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979), as authority for its holding that the probate court had jurisdiction of the petition in Deal. The court said it had concluded in Snow v. Martensen “that ‘the better rule would be that the probate courts do have jurisdiction to determine the ownership of property ... as between personal representatives claiming for the estates and heirs or beneficiaries claiming adversely to the estates.’ ” And the court in Deal added that it had in the Keenan v. Peevy case “echoed the statement in Snow.”
The Snow v. Martensen case is cited in the dissent to the opinion in the instant case and was cited in the Hilburn case which we have above discussed. However, there is no conflict between the two cases. Our supreme court said in Hilburn that the probate court had no jurisdiction over the petition filed by the decedent’s mother who was not an heir, distributee or devisee of her deceased son, or a beneficiary of or claimant against his estate, but a “third person” or “stranger” to that estate; and the court cited Snow v. Martensen and said that case reversed the probate court’s dismissal “of a challenge by beneficiaries under the will of the decedent to the inventory filed by the personal representative who was the other beneficiary.” Thus, Hilburn, Snow, Keenan and Deal are all consistent.
The dissenting opinion also cites Hartman v. Hartman, 228 Ark. 692, 309 S.W.2d 737 (1958); Hobbs v. Collins, 234 Ark. 779, 354 S.W.2d 551 (1962); and Park v. McClemens, 231 Ark. 983, 334 S.W.2d 709 (1960), as cases which “arguably” would support a holding contrary to our conclusion in the instant case. However, those cases were also cited in Hilburn which said that Hartman v. Hartman and Park v. McClemens (upon which Hobbs v. Collins had relied) were both “aberrations.” See 259 Ark. at 575.
The dissent also cites Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986), and Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), as “applicable by analogy” and suggests that they show “an inclination” by our supreme court “to follow the trend of foreclosing the issue of subject matter jurisdiction when the issue has not been raised.” The dissent then makes the statement that “because I do not think the probate court had no tenable nexus whatever to the claim below, I would treat the matter as ‘one of propriety,’ ” and concludes that by raising the issue of lack of jurisdiction sua sponte we lose the benefit of briefs on the issue by the parties in the case.
However, we do not agree that Hooper and Liles are “applicable by analogy” to the jurisdictional issue here. Both of those cases involved situations where the jurisdictional issue was clearly different from the one in the instant case and both of these cases recognized and commented on this point. In Liles the court said:
Of course, where the exclusive jurisdiction to adjudicate a matter has been placed by the constitution or by statute in some other court, such as probate matters in the probate court or bastardy proceedings in the county court, the question of subject matter jurisdiction may not be waived and the chancery court is totally without power.
289 Ark. at 176 (emphasis added). And in Hooper the court referred to the Liles decision and said:
As we explained, subject matter jurisdiction in one sense means power and may be exclusively vested in a particular court. For example, the circuit court has exclusive jurisdiction of election contests, the chancery court of divorce cases, and the probate court of the probating of wills. No other court has the power to entertain and decide such cases.
289 Ark. at 154.
In the final analysis, Hilburn v. First State Bank of Springdale, supra, was decided by the Arkansas Supreme Court, we think it is on point and controlling in the instant case, and it is our duty to follow it. The instant case is very simply an attempt by the administrator of an estate to obtain a money judgment in probate court for the estate against one who is a “third person” or “stranger” to the estate. The suit does not come within the constitutional and statutory jurisdiction of the probate court. That was the holding in Hilburn, and if that were not still the law, our supreme court would not have held in Eddleman v. Estate of Farmer, supra, that the probate court did not have jurisdiction of a tort claim filed against an estate.
As for raising the jurisdictional question sua sponte, Hilburn said “it is not only the right but the duty of this court to determine whether it has jurisdiction of the subject matter.” 259 ' Ark. at 576. In Liles v. Liles, supra, cited in the dissenting opinion, the court recognized that Hilburn stands for this proposition. 289 Ark. at 174. And in regard to input from counsel for the parties, the rules allow the filing of a petition for rehearing and briefs on the jurisdictional issue may be filed by both parties in support of and response to the petition for rehearing.
We think, however, that it is not necessary to dismiss the suit against the appellee but that it can be transferred to circuit court. In Hilburn, supra, upon finding the probate court to be without jurisdiction, the Arkansas Supreme Court reversed the probate court and remanded with directions to transfer the contest to chancery court. Also, in Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988), because of the circuit court’s lack of jurisdiction to grant the relief sought, the Arkansas Supreme Court, citing Hilburn, reversed and remanded with directions to transfer the cause to chancery court. 296 Ark. at 281.
Furthermore, Ark. Code Ann. § 28-1-114(b) (1987) provides that the procedure in probate courts, except as otherwise provided, shall be the same as in courts of equity, and chancery courts are specifically authorized to transfer matters to circuit court. See Ark. Code Ann. § 16-13-401 (1987).
We therefore reverse and remand with directions to transfer this suit against the appellee to circuit court.
Jennings, J., dissents.
John E. Jennings, Judge,
dissenting. I cannot agree that the answer to the question whether the trial court had “subject matter jurisdiction” is clear. I do agree that these cases, cited by the majority, support the argument that the probate court lacked subject matter jurisdiction: Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976); Risor v. Brown, 244 Ark. 663, 426 S.W.2d 810 (1968); Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942); Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140 (1914). The majority’s position on this issue is also supported by Huff v. Hot Springs Savings, Trust & Guaranty Co., 185 Ark. 20, 45 S.W.2d 508 (1932). The following cases, however, at least arguably would support a holding to the contrary: Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986); Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979); Snow v. Martensen, 255 Ark. 1049, 505 S.W.2d 20 (1974); Hobbs v. Collins, 234 Ark. 779, 354 S.W.2d 551 (1962); Park v. McClemens, 231 Ark. 983, 334 S.W.2d 709 (1960); Carlson v. Carlson, 224 Ark. 284, 273 S.W.2d 542 (1954); Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808 (1921). Confusion in this area has periodically been acknowledged. See, e.g., Hartman v. Hartman, 228 Ark. 692, 309 S.W.2d 737 (1958); Hilburn, supra; Deal, supra.
Historically, the supreme court has taken a restrictive approach in determining the jurisdiction of probate court. This has not been entirely a function of constitutional limitations. See, e.g., Moss v. Moose, 184 Ark. 798, 44 S.W.2d 825 (1931). Some of the reasons for taking a restrictive approach no longer exist. As late as 1931, the supreme court said of probate judges: “Some possibly are dishonest, many are not wise or discriminating.” Moss v. Moose, 184 Ark. at 802. Today all probate judges are chancellors; an increasing number are also circuit judges.
Traditionally, if a court acts outside of the constitutional or statutory provisions defining its subject matter jurisdiction, any resulting judgment would be coram non judice and void. See R. Casad, Jurisdiction in Civil Actions § 1.01 [1] (1983); Huff v. Hot Springs Savings, Trust & Guaranty Co., 185 Ark. 20, 45 S.W.2d 508 (1932). See also Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987); Filk v. Beatty, 298 Ark. 40, 764 S.W.2d 454 (1989). Professor Casad, however, notes:
Actually, the effect of a court exceeding the limits of its subject matter jurisdiction is not as cut-and-dried a matter as traditional doctrine would suggest. The issue of subject matter jurisdiction can, in fact, be foreclosed in some situations.
Casad, supra; see also Dobbs, The Validation of Void Judgments: The Bootstrap Principle, 53 Va. L. Rev. 1003 (1967). There is certainly authority in Arkansas for foreclosing the issue of subject matter jurisdiction under certain circumstances. Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166 (1913), suggests that jurisdiction of the probate court may be “acquiesced in.” In Mason v. Urban Renewal, 245 Ark. 837, 434 S.W.2d 614 (1968), the supreme court held that one could be estopped to assert a lack of subject matter jurisdiction. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983), suggests that the issue must be raised on appeal.
In an article entitled Subject Matter Jurisdiction as a New Issue on Appeal: Reining in an Unruly Horse, 1988 B.Y.U.L. Rev. 1, Professor Robert Martineau notes that the American Law Institute, both in its Restatement Second of Judgments and in its proposal on diversity jurisdiction, suggests that there is no reason why the issue of subject matter jurisdiction cannot be foreclosed in the trial court under the same rules that apply to preserving other types of error. “Namely, counsel must raise it in the trial court, have the objection noted in the record, and then present the issue in the principal brief on appeal.” Martineau at p. 33. He says:
Foreclosing the issue of subject matter jurisdiction is justified because both the other party and the judicial system have been put to substantial expense in time and money to decide the case on the merits. This expense may all have been avoided if the party objecting to subject matter jurisdiction had done so as a preliminary matter prior to trial.
Id. at p. 34.
Martineau also notes that “making a requirement that a particular person or type of person be made a party an element of subject matter jurisdiction cannot be justified by even an expansive interpretation of the concept. Even when the confusion over necessary and indispensable parties was at its height, there was no suggestion that a court’s subject matter jurisdiction was involved.” Id. at p. 26. This observation is particularly applicable to the issue of subject matter jurisdiction in the case at bar because the applicable case law seems to turn, at least in part, on the “type of person” who is a party to the action.
In my view the Arkansas Supreme Court has shown an inclination to follow the trend of foreclosing the issue of subject matter jurisdiction when the issue has not been raised. In Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986), the primary argument on appeal was that the circuit court lacked jurisdiction to entertain a suit for an accounting and settlement of partnership affairs. The court said:
Hence, it is said, the circuit court had no jurisdiction of the subject matter, so that the entire proceeding in that court was a nullity. There was no objection in the lower court to its jurisdiction, but the argument is that a lack of subject matter jurisdiction may be raised at any time.
* * *
As we explained [in Liles v. Liles], subject matter jurisdiction in one sense means power and may be exclusively vested in a particular court. For example, the circuit court has exclusive jurisdiction of election contests, the chancery court of divorce cases, and the probate court of the probating of wills. No other court has the power to entertain and decide such cases.
The present litigation, however, does not come within that category. . . . Here the lawyers and the trial judge tacitly recognized the jurisdiction of the circuit court and went ahead with the trial. The appellants have had their day in court and are not entitled to a second chance.
In Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), decided the same day as Hooper, the contention was that the chancery court lacked subject matter jurisdiction to decide a tort claim (fraud). There the court said:
We are not considering whether the plaintiff had a right to have the claim in chancery rather than the circuit court; rather the issue is whether the chancellor had the power to determine the matter.
* * *
We noted [in Crittenden County v. Williford] it is only when the court of equity is “wholly incompetent” to consider the matter before it will we permit the issue of competency to be raised for the first time on appeal.
Viewed together, these cases demonstrate that we have come to the position that unless the chancery court has no tenable nexus whatever to the claim in question we will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject matter jurisdiction. We will not raise the issue ourselves, and we will not permit a party to raise it here unless it was raised in the trial court. [Emphasis in original. Citations omitted.]
See also Horne Brothers, Inc. v. Ray Lewis Corp., 292 Ark. 477, 731 S.W.2d 190 (1987) (the test is whether the court has no tenable nexus whatever to the claim in question) and McCoy v. Munson, 294 Ark. 488, 744 S.W.2d 708 (1988). Although neither Hooper nor Liles involved the issue of the jurisdiction of probate court they seem applicable by analogy.
Because I do not think that the probate court had no tenable nexus whatever to the claim below, I would treat the matter as “one of propriety.” Particularly in view of the uncertainty as to whether the probate court did in fact have subject matter jurisdiction, I would not raise the issue sua sponte. While I agree with the majority that we have the power to raise the issue of the trial court’s subject matter jurisdiction sua sponte, 1 do not agree that we have a duty to do so. The cases which refer to the duty of the court to raise the issue of subject matter jurisdiction are cases dealing with the court’s own jurisdiction. For instance, the lack of an appealable order goes to the appellate court’s own jurisdiction and is a matter which the appellate court raises sua sponte. See, e.g., Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988); State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988). Likewise, the trial court has a duty to determine whether a case presented to it is within its subject matter jurisdiction. See generally 20 Am. Jur. 2d Courts § 92 (1965); 21 C.J.S. Courts § 114(1940). There is, however, no duty on the part of the appellate court to raise, on its own motion, the issue of the subject matter jurisdiction of the trial court.
There are practical reasons for not raising issues on our own motion. We do not have the benefit of briefs on the issue. We are left to our own research. We lose the benefits of the adversary system. For precisely these reasons we are less likely to arrive at the correct answer when we raise an issue sua sponte.
Here, it is not at all clear that the probate court was wholly without subject matter jurisdiction, and it is neither necessary nor the best course of action to raise that issue on our own. Appellant has had its day in court in the forum it selected and is not entitled to a second chance. I would decide the case on the merits.
See Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988).
Two recent examples are Gorchik v. Gorchik, 10 Ark. App. 331, 663 S.W.2d 941 (1984), overruled in Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986) and Travelers Indemnity Co. v. Olive's Sporting Goods, Inc., 25 Ark. App. 81, 753 S.W.2d 284 (1988), reversed on petition for review Travelers Indemnity Co. v. Olive’s Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596 (1989). | [
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WAYMOND M. BROWN, Judge.
11Appellant Cordell Wells, Jr., was convicted by a Mississippi County jury of first-degree murder, carrying a prohibited weapon, and fleeing. He also received a firearm enhancement. He was sentenced to an aggregate of fifty-five years’ imprisonment. He argues on appeal that the court erred by denying him his fundamental right to a fair trial and that it erred by denying his motion for directed verdict. We find no error and affirm.
On November 6, 2009, Wells fatally shot Wale Adelowo in the carport of Adelowo’s home. Officer Terry Byrd of the Blythe-ville Police Department testified that he was the first officer on the scene. He stated that when he made it to Adelowo’s house, Adelowo was breathing, but was not responding. He said that he noticed blood but no injuries on Adelowo. Officer Byrd stated that once paramedics arrived, he along with other officers began securing the perimeter. He said that while he was at the scene, he helped remove a |2bullet from the driver’s side door of a Camaro parked in Adelowo’s carport. Officer Danny Bishop testified that he was the second officer on the scene. He said that once he got there, he noticed wounds to Adelowo’s lower body, hips, and hands. He stated that he recovered between five to eight shell casings next to a privacy fence separating Adelowo’s property from his neighbor’s property.
Shayla Adelowo testified that she was the victim’s wife. According to Mrs. Ade-lowo, she was inside on the phone when Adelowo was shot. Mrs. Adelowo said that Adelowo had been outside washing his car on the evening of November 6, 2009. She stated that she dropped the phone when she heard the shots and went outside to see what had happened. She testified that she found her husband lying between the porch and the carport. Mrs. Adelowo said that she placed a comforter over Ade-lowo. She denied seeing anyone outside with Adelowo that evening. On cross-examination, she stated that she did not know what happened or who shot Adelowo. She also said that Adelowo did not have any work or financial problems to her knowledge.
Dale Robinson testified that he saw Ade-lowo in his carport talking to someone on the evening of November 6, 2009. He stated that the two men looked like they were just talking and that he did not see anything strange about it. He said that he had to sit at the stop sign at the intersection of Leawood and Moultrie for a few minutes because “there was a lot of traffic that night.” He testified that he heard gunshots, looked over his shoulder, and saw Adelowo fall. Mr. Robinson stated that after that, a “fellow” ran up to the Robinson’s vehicle and placed his hand on the front end of the vehicle. He said that the person looked [sat his wife and him and continued .running across the street. Mr. Robinson testified that he did not know what the person looked like but that he “had on a camouflaged jacket and a white hoodie or scarf over his head.” He stated that he called 9-1-1 and backed up to Adelowo’s house to get someone’s attention. On cross-examination, Mr. Robinson said that Adelowo waved at him when he was turning the corner. He admitted that he did not see the shooting and that he did not know what transpired between Adelo-wo and Wells during the five to seven minutes he sat at the stop sign.
Maudie Robinson testified that she was in the vehicle with her husband on the evening of November 6, 2009. She stated that she saw Adelowo talking to someone as they turned onto Leawood. She said that she heard some shots and turned back in time to see Adelowo fall to the ground. According to Mrs. Robinson, she told her husband, “he shot him.” Mrs. Robinson testified that she then saw the individual running with what she assumed was a gun in his hand. She stated that the shooter was wearing a camouflage jacket.
Sergeant Kyle Lively testified that he was home, about two blocks from Adelo-wo’s home, on the evening of November 6, 2009. According to Sergeant Lively, he heal'd several gunshots and walked outside. He stated that he saw someone run across the street with a gun in his hand. Sergeant Lively stated that he called in the shots fired and then got in his vehicle to “try to intercept the subject that was running.” He said that he got out of his vehicle and gave Wells a command to stop. At that time, Wells kicked off his shoes and started running. 14Sergeant Lively stated that he caught Wells a short distance later and was able to handcuff him once another unit arrived. He testified that when Wells was lifted, a Glock pistol was found underneath him. He stated that the gun found with Wells was the same type carried by police officers. He said that the slide of the gun was locked to the rear indicating that “all of the rounds have been fired out of that, out of the weapon.”
On cross-examination, Sergeant Lively testified that when he first saw Wells, Wells was walking. Once he made contact with Wells and asked him to stop, Wells kicked off his shoes and started running. He said that Wells’s gun had a fifteen-round magazine.
Detective Jason Eddings testified that he found seven .40 caliber spent shell casings at the scene. He stated that he also went to the scene of Wells’s arrest and “observed two brown work-style type boots and a Glock 22 model .40 caliber handgun.” He said that he made contact with Wells at the police department and that he did not notice any injuries on Wells.
On cross-examination, Detective Ed-dings stated that if Wells had been injured, a medic or ambulance would have been called to that location. He said that there was a bullet in the driver’s side door of the Camaro in Adelowo’s carport. He also stated that there was not a gun “in plain view” in the Camaro but that he could not say that there was not a gun in the vehicle. Detective Eddings testified that five shell casings were found on one side of the privacy fence and two on the other side. On redirect, Detective Ed-dings said that he never received any information that the victim had a gun that day.
|fiAccording to Dr. Daniel Konzelmann, an associate medical examiner at the Arkansas State Crime Laboratory, Adelowo suffered eight gunshot wounds: one to the middle of the back, which was recovered in the right chest; one to the left hip, which came to rest in the mid-line of the left buttock; one to the inside of the mid-line side of the right buttock; one to the inside back of the right thigh, which exited the front of the right thigh; one to the left abdomen, which passed through the tail of the pancreas, the stomach, left liver lobe, and then entered the right heart, passed in front of the right lung and into the right upper chest wall muscle and came to rest below the right clavicle; one to the right lower arm, which exited close to the elbow; one to the left lower abdomen, which came to rest in the muscles along the lower part of the spine called the iliopsoas; and one to the left hand, which came out of the palm. As a result of the wounds, Adelowo suffered internal injuries to his subcutaneous tissues, muscle, liver, pancreas, diaphragm, and right heart ventricle. The cause of death was multiple gunshot wounds, and the manner of death was homicide. The medical report stated that Adelowo was shot at close range.
On cross-examination, Dr. Konzelmann stated that he also found evidence of blunt-force injury: scrapes of the left knee and scratches and an abrasion on the inside of the left wrist. He said that these injuries could be consistent with a scuffle. He testified that the evidence showed at least some movement by the victim because his body was located in a different location from “definite blood evidence.” On redirect, he stated that the location | (¡of Adelo-wo’s gunshot wounds indicate movement by either Adelowo or the shooter. He also said that it was very unlikely for a person who is being shot to stand in one position.
Chantelle Taylor, a criminalist in the trace-evidence section of the Arkansas Crime Laboratory, testified that “gunshot residue” was located on both of Wells’s hands. Zachery Elder, a firearm-tool-mark examiner with the Arkansas State Crime Laboratory, testified that he could neither identify nor eliminate the recovered bullets as being fired through the barrel of Wells’s gun. He did, however, testify that the seven shell casings recovered from the scene had been discharged from Wells’s gun.
Wells testified that he met Adelowo while working at Denso. According to Wells, Adelowo was supposed to be training Wells. Wells stated that Adelowo began “pickin’’ on him by calling him slow and telling him that he had “b*teh hands.” Wells said that he thought it was just a phase that would eventually pass, but it never did. He stated that Adelowo would try to intimidate him with Adelowo’s size. Wells testified that Adelowo accused him of vandalizing Adelowo’s ear by throwing eggs on it the day after Halloween. Wells said that he went to the restroom that day and that he had to pass by the locker room. According to Wells, Adelowo was in the locker room and showed Wells his gun. Wells testified that Adelowo did not say anything, he “just gave [him] a look.” Wells stated that the bullying continued and that on November 6, 2009, Adelowo made a comment about doing something to Wells and put his hands on Wells’s head. He said that when he got off |7of work that day, he went to pick up his check, went by his mother’s job, and went to his girlfriend’s house. He stated that he later left to do some yard work for his mother. According to Wells, he took off his leather jacket and put on his mother’s ex-husband’s hunting jacket. He said that he also retrieved his gun when he got to his mother’s house. Wells testified that after he finished raking leaves, he decided to go over to Adelowo’s house to talk about the bullying. He said that he drove his truck and parked it at Adelowo’s neighbor’s house. He testified that he walked over and started talking to Adelowo. He stated that Adelowo commented, “you come into my house with this mess,” so he turned around to leave. According to Wells, Ade-lowo put him in a choke-hold, and when Adelowo let him go, Adelowo stated that he was going to get his gun. He continued,
I grabbed my gun and I seen him when I turned around I seen him reaching at that car door and I aimed at his legs and I shot twice. I was standing on the ground. After I shot twice, he said, augh. But he didn’t fall though he kept trying to scramble and try to get to that car door. And I kept firing at his legs. No, I wasn’t trying to kill him. I didn’t go over there to shoot him. I started shooting at his legs hoping that he would fall so I could get to my truck. Eventually he fell.
When I seen him fall I just was lookin’ ‘cause it was blood and stuff and I was froze for a minute. And then I just remember it was just, everything just happened so fast and I was just scared. I just remember just runnin’. No, I didn’t go to my truck. I don’t even know where I was runnin’ to. I was just runnin’. The thing I remember, I remember crossing the street and my asthma started acting up and I started walking and I walked, I walkin’ (sic) and I heard a hey. And that scared me so I kicked off my boots and I started run-nin’ some more and then I just fell ‘cause I couldn’t breath. Yes, it was a police officer who yelled at me. They took me to jail.
He stated that he had never been in trouble or to jail before November 6, 2009.
On cross-examination, Wells stated that Adelowo’s bullying did not upset him, it just bothered him. He said that he did not report Adelowo’s actions to his supervisor because 1 she was hoping that it would eventually stop. He testified that he felt that Adelowo looked at him in a threatening manner the day he saw Adelowo with a gun at work. He acknowledged that he did not report this incident. Wells testified that he retrieved his handgun from his mother’s house before he started raking her yard. He stated that one reason he had the gun was because of his mother’s ex-husband. However, he testified that he was always armed. He stated that he lived with his father at the time but that he kept his gun at his mother’s house. Wells said that he knew how to find Adelo-wo’s house because Adelowo was “bragging about his house and where he lived.” He testified that Adelowo told him to leave and that he was attempting to do so when Adelowo tackled him and put him in a choke-hold. He stated that when Adelowo let him go and turned away to walk toward the car, he shot Adelowo in the legs twice. He said that he kept shooting when Adelo-wo did not go down. He stated that he was on his back for two of the shots. He said that he did not know why he did not tell Sergeant Lively that Adelowo had just attacked him and that was why he had to shoot Adelowo. He insisted that he went to Adelowo’s house to make peace, not to shoot him. He also stated that he never told an officer about a possible gun being in Adelowo’s Camaro.
The jury found Wells guilty of first-degree murder, carrying a prohibited weapon, and fleeing. He was sentenced to fifty-five years in the Department of Correction. He filed a timely notice of appeal. This appeal followed.
Wells asserts on appeal that the circuit court erred in failing to grant his directed-verdict motion. The crux of his argument is that he lacked the requisite intent for |9first-degree murder. He contends that he caused Adelowo’s death in self-defense. Although Wells raises this issue as his second point on appeal, double-jeopardy concerns require that we review arguments regarding the sufficiency of the evidence first.
An appeal from a denial of a motion for directed verdict is a challenge to the sufficiency of the evidence. When reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict was supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. The reviewing court views the evidence in the light most favorable to the verdict and considers only evidence that supports the verdict. Circumstantial evidence may constitute substantial evi dence to support a conviction. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. This question is for the jury to decide. Upon review, this court must | ^determine whether the jury resorted to speculation and conjecture in reaching its verdict. The credibility of witnesses is an issue for the jury and not the court. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence.
The intent necessary for first-degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. A person commits first-degree murder if “[wjith a purpose of causing the death of another person, the person causes the death of another person.” A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Furthermore, we have consistently entertained the presumption that one intends the natural and probable consequence of one’s actions.
Wells does not deny shooting Ade-lowo; however, he contends that it was not his intent to kill Adelowo. Wells argues that he only shot Adelowo because Wells was in fear for his life. The existence of criminal intent or purpose is a matter for the jury when criminal Inintent may be reasonably inferred from the evidence. Here, the evidence presented was sufficient to support the jury’s finding of intent by Wells. Adelowo was shot at least seven times and suffered several gunshot wounds to the back and front of his body. Wells testified that when he first began shooting Adelowo, Adelowo’s back was to him. Adelowo suffered severe internal injuries as a result of the shooting. Although Wells maintains his self-defense theory, there were no weapons located on or near Adelowo, and Wells did not display any signs of injury. Finally, evidence of Wells’s flight immediately after the murder further supports the jury’s verdict. It is well settled that flight is probative evidence of guilt.
Based on the evidence, we cannot say that the jury resorted to speculation and conjecture in reaching its verdict. The circumstances of the crime give rise to an inference of intent. Accordingly, we hold that the circuit court did not err by denying Wells’s motion for directed verdict.
Next, Wells argues that the circuit court denied him of his fundamental right to a fair trial. More specifically, he ar gues that the petit jury did not represent a cross-section of the community. Wells contends that by the time his trial came around, 139 persons had already been excused from the 263-person jury pool. He further states that of the remaining 124 potential jurors, only forty-nine showed up for jury duty. He makes no specific argument that he was prejudiced by the jury-selection process. He argues that by “being forced to select a jury from 49 individuals (out of 263) which are not representative of a fair cross-jsection^ of the community in a first-degree murder trial violates an individual’s fundamental constitutional right to a fair trial pursuant to the Sixth Amendment to the United States Constitution.” He also contends that there was no reason given for excusing the potential jurors and that there was no information concerning their race or demographics.
We have repeatedly held that selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. There is no requirement, however, that the petit jury actually seated in a defendant’s case mirror the community and reflect the various distinctive groups in the population. It is axiomatic that the State may not deliberately or systematically deny to members of a defendant’s race the right to participate, as jurors, in the administration of justice. In order to establish a prima facie case of deliberate or systematic exclusion, a defendant must prove that (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepre-sentation is due to systematic exclusion of the group in the jury-selection process.
|13In the present case, Wells had the burden of proving systematic exclusion of members of his racial group from the venire. Only after making a prima-facie case by establishing these three elements could the burden shift to the State to justify its procedure. Wells does not argue that the circuit court deliberately and purposefully excluded African-Americans from the venire. In fact, there were four African-Americans seated as jurors during his trial.
In Gwathney v. State, the appellant argued, as Wells does, that the court violated his right to due process by excusing prospective jurors from the jury pool. The court held that Gwathney had failed to show how he was prejudiced by the number of jurors excused. Wells has also failed to show how he was prejudiced. There has been no suggestion by Wells that the number of potential jurors (263), and the number actually appearing (49) “was the result of any attempt to influence the makeup of the jury panel.” Accordingly, we hold that the circuit court did not err by denying Wells’s objection to the jury panel.
Affirmed.
PITTMAN and ABRAMSON, JJ., agree.
. He testified that he was in uniform at the time he gave Wells the verbal command to stop.
. Dr. Konzelmann stated that it was possible that this bullet reentered the body in the arm.
. The gun was actually purchased and registered by Wells’s father, Cordell Wells, Sr.
. Boldin v. State, 373 Ark. 295, 297, 283 S.W.3d 565, 567 (2008).
. Price v. State, 373 Ark. 435, 438, 284 S.W.3d 462, 465 (2008).
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996).
. Ark.Code Ann. § 5-10-102(a)(2) (Repl. 2006).
. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001).
. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004).
. Kendrick v. State, 37 Ark.App. 95, 98, 823 S.W.2d 931, 933 (1992).
. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310(2006).
. Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996).
. See Danzie, supra.
. See Lee, supra; Davis, supra; Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989).
. Lee, supra (citing Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)).
. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).
. Id.
. 2009 Ark. 544, 381 S.W.3d 744.
. Id. | [
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ROBERT L. BROWN, Justice.
| Appellant N.D. appeals the decision by the Jefferson County Circuit Court, Juvenile Division (juvenile court), that he be designated for extended juvenile jurisdiction (EJJ). He asserts that the Jefferson County Circuit Court, Criminal Division (criminal court) has already declined to make such a designation, and because this court did not reverse that refusal in N.D.’s first appeal, the issue is decided by law of the case. We disagree, and we affirm.
On November 23, 2009, fifteen year old N.D. was adjudicated delinquent for commission of aggravated robbery and possession of a weapon. He was sent to the Department of Youth Services (DYS) by the Phillips County Circuit Court and housed at the White County Regional Detention Facility in Batesville. Later, he was transferred to the Jack Jones Juvenile Justice Center in Pine Bluff. On January 30, 2010, N.D. and one other juvenile allegedly attacked Leonard Wall, a security guard at Jack Jones, who later died of 12cardiac arrest. N.D., along with two other juveniles, allegedly left the detention center, ran several blocks, and stole a car and a woman’s purse at a nearby gas station. On February 1, 2010, N.D. was arrested in Fort Smith.
On March 11, 2010, the State filed a felony information in the criminal court, charging N.D. as an adult with capital murder, escape in the first degree, three counts of aggravated robbery, two counts of theft of property, and second-degree battery. Prior to his trial, N.D. moved to dismiss the charges against him or, alternatively, to transfer his case to the juvenile court. In that motion, N.D. did not include a request that his case be transferred to the juvenile court with an EJJ designation. The State responded to the motion and contended that N.D.’s case should remain in criminal court due to the serious and violent nature of the offenses, the commission of the offenses in an aggressive and violent manner, the offenses being committed against people, the level of N.D.’s participation, and his prior juvenile history.
On August 12, 2010, the criminal court held a hearing on N.D.’s motion to dismiss his case or, alternatively, transfer it to juvenile court. Because of a discovery dispute, the hearing was rescheduled for August 26, 2010. On that date, the criminal court heard testimony from several witnesses regarding transfer. During that hearing, Scott Tanner, the coordinator for the Juvenile Ombudsman Division, testified about rehabilitation options that would be available to N.D. if the case were sent to juvenile court. Tanner mentioned, among those options, the possibility of EJJ. He testified that under EJJ, the length of detention becomes exponentially longer and that there is greater administrative oversight by|Rthe committing court. Tanner added that with an EJJ designation, N.D. could receive a sentence of life in prison, if convicted of capital or first degree-murder. During cross-examination by the State, Tanner stated that the criminal court could transfer the case with an EJJ designation or that an EJJ sentence could be imposed after the transfer to juvenile court.
During closing argument, N.D.’s counsel made the following statements:
We have submitted evidence that if the Court were to transfer this to juvenile court that juvenile court could keep him under the juvenile court’s jurisdiction for — until he’s 21 years old. If the Court were to transfer this as an EJJ case, [N.D.] would not only be under the jurisdiction of the juvenile court until he’s 21, if the court at some point determined he was rehabilitated, then he would be put on probation for a period of time.
On August 31, 2010, the criminal court entered an order denying N.D.’s motion to transfer. That order makes no mention of EJJ or of an EJJ designation. In the order, the criminal court concluded, “Having considered the 10 factors required by Ark.Code Ann. § 9-27-318(g), the Court finds that [N.D.] has failed to show by clear and convincing evidence that his case should be transferred to the juvenile division of circuit court.”
N.D. appealed the decision denying his transfer, and we reversed the criminal court’s denial. N.D. v. State, 2011 Ark. 282, 383 S.W.3d 396 (N.D. I). We said, "... we reverse with directions for the circuit court to enter an order transferring [N.D.’s] case to juvenile court.” N.D. I, 2011 Ark. 282, at 13, 383 S.W.3d 396. Our reversal was based on our conclusion that the State committed a discovery violation by failing to provide the names of witnesses in a timely fashion before the Au gust 26, 2010 transfer hearing. This court’s opinion makes no mention of EJJ.
14After this court’s remand, the criminal court entered an order transferring N.D.’s case to juvenile court on July 29, 2011. The juvenile court accepted jurisdiction over N.D.’s case on the same date. On August 4, 2011, the State moved for an EJJ designation in connection with N.D. On August 11, 2011, N.D. responded to the State’s motion and claimed that the “points raised by the State have been previously raised in the criminal division of circuit court pursuant to [N.D.’s] request for transfer to juvenile court or for transfer as [EJJ] provided in Ark.Code Ann. § 9-27-318.... The law of the case doctrine prevents a second EJJ designation.”
On August 16, 2011, the juvenile court entered an order granting the State’s request to proceed with an EJJ hearing. In that order, the juvenile court concluded that under Arkansas Code Annotated section 9-27-306(g), it had jurisdiction over EJJ cases filed by the State under the authority granted by Arkansas Code Annotated section 9-27-501. The juvenile court also concluded that from its review of this court’s opinion and the pleadings filed in criminal court, no EJJ hearing had been held before the transfer.
On August 17, 2011, N.D. filed a motion objecting to proceeding with an EJJ hearing. He maintained that in the criminal court hearing held on August 26, 2010, he had requested that the case be transferred with an EJJ designation as an alternative to transfer to juvenile court with no such designation. He also contended that this court did not order that the case be transferred with an EJJ designation and that such a designation is not within the |smandate in his case. This means, he argued, that the EJJ matter was resolved. On August 29, 2011, the juvenile court granted the State’s motion for an EJJ designation.
N.D. continues to contend as his principal point on appeal that when the criminal court denied his petition to transfer his case to the juvenile court, it rejected the EJJ designation. Thus, he claims, when this court remanded the case to the criminal court with directions to transfer his case to the juvenile court, and did not mention an EJJ designation, the juvenile court was without authority to conduct a hearing on that issue because it was a matter already decided. N.D. relies primarily on Arkansas Code Annotated section 9-27-318 and section 9-27-501 as the basis for his law-of-the-case argument.
N.D. further contends that when a case originates in criminal court, the EJJ-designation hearing is conducted as part of the transfer hearing contemplated under section 9-27-318. That statute provides that the State may file a motion in the juvenile division of circuit court to transfer a case to the criminal division of circuit court or to designate a juvenile as an EJJ offender under certain circumstances. Ark.Code Ann. § 9-27-318(b) (Repl.2009). Upon a finding by the criminal court that a juvenile charged with capital |fimurder who is age fourteen through seventeen should be transferred to juvenile court, the criminal court may order that the offender have an EJJ designation. Ark.Code Ann. § 9-27-318(i). The criminal court may, however, conduct a transfer hearing and an EJJ hearing under § 9-27-503 at the same time. Ark.Code. Ann. § 9-27-318(m). This, N.D. argues, is what was done in the instant case.
Accordingly, the issue we must address is whether this court’s prior opinion in N.D. I operated as a decision on the EJJ question and, hence, became law of the case. Any issue decided by this court in N.D. I clearly operates as law of the case for the remand and any subsequent appeal. See Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). That doctrine further prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. Id. at 142, 983 S.W.2d at 385. That doctrine also precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. Camargo v. State, 337 Ark. 105, 110, 987 S.W.2d 680, 683 (1999). Questions that have not been decided do not become law of the case merely because they could have been decided; at the same time, law-of-the-case principles are applied when a court concludes that an issue was resolved implicitly despite the lack of any explicit statement. Id. Matters that have not been decided explicitly or implicitly do not become law of the case merely because they could have been decided. Morris v. State, 358 Ark. 455, 457 n. 1, 193 S.W.3d 243, 245 n. 1 (2004).
N.D. appears to emphasize in his appeal that the criminal court had to have rejected a transfer to juvenile court with an EJJ designation when it refused to transfer the matter in 17the first place. That though is highly speculative, since no mention of EJJ as alternative relief is made in the criminal court’s order refusing the transfer or in this court’s opinion directing the transfer. We further emphasize that the criminal court transferred N.D.’s case to juvenile court only after direction from this court in N.D. I. Nothing in N.D. I suggests that an EJJ designation was an issue before this court, either explicitly or implicitly. The sole issue determined by the court was whether the transfer to juvenile court should be made based on the discovery violations by the State.
It is true that during N.D.’s transfer hearing in criminal court, he elicited testimony from the ombudsman, Scott Tanner, regarding the EJJ process. Moreover, during closing argument, N.D.’s counsel also mentioned that the criminal court could transfer his case with an EJJ designation. But, again, neither the criminal court’s order nor this court’s opinion in N.D. I made reference to EJJ.
In this regard, we reject N.D.’s contention that the State was required to obtain a ruling from the circuit court regarding the EJJ designation. The State, as the prevailing party, was under no obligation to obtain a ruling on an alternative matter such as EJJ status because the State had prevailed and the matter was not initially transferred to juvenile court by the criminal court. See, e.g., Landers v. Jameson, 355 Ark. 163, 132 S.W.3d 741 (2003) (holding that the law-of-the-case doctrine does not require a prevailing party to obtain a ruling on an alternative reason to decide the matter in that party’s favor); see also Lofton v. State, 2009 Ark. 341, at 9, 321 S.W.3d 255, 260 (concluding that when the circuit court finds that a case | Rshould not be transferred to the juvenile division, the circuit court’s authority to transfer cases with an EJJ designation under section 9-27-318© is inapplicable).
N.D. also looks to section 9-27-318 for support of his contention that the criminal court held an EJJ designation hearing simultaneously with the transfer hearing. Undoubtedly, that statute permits the criminal court to conduct the two hearings, a transfer hearing and an EJJ hearing, simultaneously. See Ark.Code Ann. § 9-27-318(m). The statute, however, does not mandate that the hearings be conducted at the same time. The statute merely reads that if the circuit court determines that the case should be transferred to juvenile court, the criminal court may enter an order to transfer it with an EJJ. Ark.Code Ann. § 9-27-318(i). There is nothing in the statute that requires the criminal court to make a decision on the EJJ issue before the case is transferred to juvenile court. Also, to repeat, the transfer to juvenile court was done because of directives from this court in N.D. I and not because the criminal court had decided to do so under section 9-27-318©.
In short, we reject N.D’s contention that the law-of-the-case doctrine barred the juvenile court from conducting an EJJ hearing and granting the State’s motion for such a designation. We hold that in N.D. I this court reached no decision and provided no direction to the criminal court with respect to EJJ designation. We further hold that upon remand the criminal court made no decision regarding EJJ designation. After remand, the criminal court simply transferred the case to the juvenile court pursuant to this court’s directive in N.D. I.
| ;,For his next point, N.D. claims that the EJJ designation in this case violates the United States and Arkansas constitutional prohibitions against double jeopardy. Both the Fifth Amendment to the United States Constitution and Article 2, section 8 of the Arkansas Constitution require that no person be twice put in jeopardy of life or liberty for the same offense. N.D. contends that his double-jeopardy rights were violated because he was subject to receiving a life sentence in the criminal court after that court ruled he would be tried as an adult. Because a life sentence for him as an adult was no longer possible after this court transferred the matter to juvenile court without an EJJ designation, he cannot again be subjected to a life sentence as an EJJ designee. According to N.D., when the juvenile court granted the State’s motion for an EJJ designation, he was potentially subject to a life sentence, and his liberty, as a result, was twice placed in jeopardy for the same offense.
The Double Jeopardy Clause protects criminal defendants from: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Williams v. State, 371 Ark. 550, 554, 268 S.W.3d 868, 871 (2007). Jeopardy does attach within the meaning of the Fifth Amendment, as applicable to the states under the Fourteenth Amendment, in an adjudicatory delinquency proceeding in juvenile court. Avery v. State, 311 Ark. 391, 394, 844 S.W.2d 364, 366 (1993).
As N.D. has not been acquitted or convicted of any of the underlying offenses charged in the delinquency petition, the first two double jeopardy protections are not applicable. To the extent that he claims he could face multiple punishments for the same Imoffenses, his claim must be rejected. As an initial matter, his argument is premature because he has yet to be sentenced or even adjudicated a delin quent. Instead, the EJJ designation simply means at this stage that if the juvenile court finds the allegations in the petition are true and adjudicates him to be a delinquent, he may be sentenced to a more strenuous punishment than what is available in juvenile court without such an adjudication. His contention, at this point, is mere speculation.
For his last point, N.D. urges that his due-process rights were violated, but he cites to no law to support this proposition; nor is his argument convincing on this point. This court will not consider an argument that presents no citation to authority or convincing argument. Kelly v. State, 350 Ark. 238, 241, 85 S.W.3d 893, 895 (2002).
Affirmed.
CORBIN, J., not participating.
. An amended order accepting jurisdiction was entered by the juvenile division on August 2, 2011.
. N.D. also contends that if the juvenile court enters an EJJ designation, then his case would be transferred back to the criminal court, in violation of this court’s clear order. His contention is incorrect. If the juvenile court finds that the juvenile should be treated as an EJJ offender, the court must enter its written findings and inform the juvenile of his right to a jury trial and then set a date for the adjudication. Ark.Code Ann. § 9-27-503(d). The statute does not require the juvenile court to transfer the case back to criminal court. In the instant case, the juvenile court’s order does not mention a transfer to criminal court. Moreover, N.D.'s reliance on section 9-37-318(i) is misplaced. This is not a case where the EJJ hearing was held in criminal court prior to the transfer to juvenile court, as he claims. | [
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RAYMOND R. ABRAMSON, Judge.
| iThe Arkansas Workers’ Compensation Commission found appellant Cedric Raul-ston’s alleged back injury to be non-com-pensable. On appeal, Raulston argues that the Commission erred by (1) arbitrarily disregarding testimony of witnesses and other evidence and (2) finding that a 2001 injury was barred by the statute of limitations. We affirm.
Appellant began working for Waste Management, Inc., in 1995 as a dump-truck driver. In 2001, appellant injured his back, and Waste Management accepted the injury as compensable. On December 14, 2009, appellant was making a delivery when he allegedly injured his back while carrying a bucket of rocks. Appellant filed his workers’ compensation |2claim in July 2010, after his employment with Waste Management had been terminated in June.
Appellant saw his family physician in January 2010 for a regular check-up. He testified that he told the doctor about his back injury at that time. The notes from that appointment reflect that he complained of low-back pain but do not state its origin. In May 2010, appellant passed his D.O.T. physical. Appellant testified that he did not disclose his injury at that time because he did not want to lose his driver’s license.
Appellant began treatment with Dr. Justin Seale on August 30, 2010. Appellant complained of low-back pain radiating to the left buttock, with tingling and numbness in his leg. X-rays showed no significant abnormalities, and Dr. Seale noted that an MRI was needed.
Appellant had a second appointment with Dr. Seale on October 29, 2010, at which time an MRI of appellant’s lumbar spine was reviewed. It showed an acute disc protrusion at L5-S1, as well as degenerative-disc disease at L4-5 and L5-S1. Dr. Seale attributed appellant’s symptoms to the disc protrusion. After discussing surgical intervention and injections, Dr. Seale and appellant decided against invasive intervention, and Dr. Seale prescribed Flexeril and Tramadol.
Dr. Seale testified in a deposition that it was his opinion that appellant’s disc protrusion, which caused his symptoms, was attributable to the December 2009 accident. He also acknowledged, however, that his opinion was based on the history appellant gave him.
13A hearing was held before an administrative law judge (ALJ) on December 15, 2010. Lisa Goodman testified that she was currently an operations specialist for Waste Management, and she had previously been a dispatcher. She stated that she recalled appellant reporting in December 2009 that he had been injured. When asked what he was doing when he was injured on December 14, 2009, Goodman responded that “they have to crawl up on the box quite often to move objects around to be able to tarp the loads.” There was no mention of Raulston carrying a bucket of rocks. Goodman heard him discuss a December 2009 incident with his supervisor and another employee. On cross-examination, Goodman denied telling a defense firm employee that a December 14, 2009 incident had never been reported to her, although she then conceded that it was “possible” that she said that.
Kyesha Raulston, appellant’s wife, testified that she had known appellant for a little more than ten years and had been married to him for nine years. On December 14, 2009, appellant complained of pain in his back and left leg when he got home from work that evening. She suggested that he go to the doctor, but according to her, he was more concerned about providing for his family and wanted to try to “stick it out.” Appellant took over-the-counter pain medication. Mrs. Raulston stated that appellant’s pain affected his interactions with their children, his sleep, and his ability to go on walks with her. She acknowledged that he had told her about injuring himself on other occasions, but he was able to function and got over those. She asserted that the December 14 injury was different.
Appellant testified next. After discussing his employment history with Waste Management, he recounted the events of December 14, 2009. He stated that on that day, hejjwas at Ketcher & Company, and it was raining. He was there to deliver a container, and his truck got stuck. Appellant and a couple of the customer’s workers used five-gallon buckets to carry rocks to put under the truck’s tires. Appellant testified that, as he was carrying one of the buckets, something happened in his back and he “went down.” He stated that he called his supervisor, Darren Moore, and told him what happened. His supervisor asked him if he needed to go to the doctor, but appellant wanted to wait and see what happened. After fifteen to thirty minutes, he was able to walk again. He finished his route, but was limping. When he returned to the office at the end of the day, he spoke with Darren Moore and the dispatcher, Anna Holcombe, about his injury. Appellant testified that he chose to “tough it out” because it was the end of the fiscal year.
Appellant acknowledged that he had had back problems in the past, but stated that this was different and was in a different spot. He also had pain in his left leg, running down to the bottom of his foot, but he at first attributed this to his high blood pressure. Appellant went to his primary-care physician, Dr. Joseph, in January for his quarterly blood pressure and cholesterol check. He testified that he discussed his back injury with Dr. Joseph and was prescribed Naproxen.
Appellant testified to the following previous injuries: a 2001 low-back injury sustained while pulling pallets out of a dumpster; a 2002 or 2003 hip and back injury from a fall; a problem with the truck he was driving in 2007 or 2008; and a 2007 accident when the truck he was driving was hit by a bulldozer. He also injured his elbow in 1989 and filed a workers’ | ^compensation claim for that injury. Appellant also testified that he was involved in two vehicle accidents in 2000, both resulting in back and neck problems.
For the respondents, David Steinmetz, a district manager at Waste Management, testified that he first became aware of appellant’s alleged December 2009 injury on the day he was terminated. In response to being terminated, appellant stated that he would see Steinmetz in court because he had a back injury.
The ALJ found that appellant failed to prove that he sustained a compensable injury. The Commission affirmed and adopted the ALJ’s opinion in a 2-1 decision. The Commission’s findings include the following:
The evidence of record shows that the claimant performs heavy manual labor and has had chronic back pain for many years. He has been involved in several personal and work-related accidents. He is aware of the workers’ compensation process because his 2001 back injury was accepted and because he has a handbook explaining the procedure.
[T]he claimant did not ask his employer for medical treatment until June, 2010, when he was suspended and then fired from work. There is no mention of this injury in the claimant’s log sheets. He did not report this injury during his DOT physical. According to the claimant’s medical records, he has been symptomatic since 2001 and attributed the cause of his symptoms to other incidents. Dr. Seale opined that he could distinguish the onset of the claimant’s disc protrusion by radicular pain. According to Dr. Seale’s patient questionnaire, the claimant’s symptoms did not coincide with the December 14, 2009, injury or within the following month.
The Commission further found that “[t]he 2001 claim is barred by the statute of limitations.” The Commission found that appellant failed to meet his burden of proof and denied benefits accordingly.
16In reviewing a decision of the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Ark. Elec. Coop. v. Ramsey, 87 Ark.App. 254, 190 S.W.3d 287 (2004). These findings will be affirmed if supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. If reasonable minds could reach the result found by the Commission, we must affirm the decision. Id.
Appellant contends that the Commission’s decision “should be reversed because a substantial basis does not exist for the denial of [his] claim.” He argues that the Commission arbitrarily disregarded evidence, including the testimony of several witnesses. As for his wife’s testimony, appellant simply notes that her testimony concerning the December injury corroborated his testimony and that no explanation was given as to why her testimony was disregarded. Appellant fails to cite any authority showing that the Commission is required to explain the reasons for disregarding her testimony. Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 8, 14 S.W.3d 482, 485 (2000) (“[W]e will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken.”). Appellant also contends that the testimony of Lisa Goodman was arbitrarily disregarded, and the Commission’s reason for disregarding her testimony — that she recalled appellant being injured while tarp-ing a trailer, while he claimed he was carrying a bucket of rocks — was “specious.” Appellant further contends that the testimony of Dr. Seale was arbitrarily disregarded. Finally, 17appellant points to the “diary” notes that he kept on the backs of his pay stubs, which support his version of events.
It is within the Commission’s province to reconcile conflicting evidence, including the medical evidence, and to determine the true facts. Hernandez v. Wal-Mart Assocs., Inc., 2009 Ark. App. 531, at 2, 337 S.W.3d 531, 532 (citing Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005)). Matters of credibility are exclusively within the Commission’s domain, and the testimony of an interested party is always considered to be controverted. Sally v. Service Master, 2009 Ark. App. 209, at 4-5, 301 S.W.3d 7, 10. Furthermore, this court has held that the Commission’s failure to specifically discuss conflicting evidence does not mean that the evidence was arbitrarily disregarded where there is substantial evidence to support the Commission’s decision. Unimin Corp. v. Duncan, 2010 Ark. App. 119, 2010 WL 502971. Here, appellant’s wife was obviously an interested party, the dispatcher did not seem fully aware of the alleged incident, and the doctor admitted that his medical opinion was based on the history given to him by appellant. It is important to note that the burden of proof was appellant’s, and this court decides only whether there is substantial evidence to sustain the Commission’s findings. Appellant’s long history of back problems and failure to report his claim until he was terminated, along with the discrepancies in his witnesses’ accounts, provide substantial evidence to support the Commission’s finding in this case.
Appellant next argues that the Commission’s finding that his claim is barred by the statute of limitations is not supported by substantial evidence. Actually, the Commission found that the 2001 injury was barred by the statute of limitations; the Commission found [sthat the alleged December 2009 injury was not a compen-sable injury. Appellant’s arguments are based on a December 2009 injury. The statute of limitations provides:
(b) Time for Filing Additional Compensation.
(1) In cases in which any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation or two (2) years from the date of the injury, whichever is greater.
(c) A claim for additional compensation must specifically state that it is a claim for additional compensation. Documents which do not specifically request additional benefits shall not be considered a claim for additional compensation. Ark.Code Ann. § 11-9-702 (Supp.2011). The last payment for appellant’s 2001 injury was in 2001, and any additional compensation for that injury is clearly barred by 2010.
Affirmed.
PITTMAN and BROWN, JJ., agree.
. Rebriefing was previously ordered in this case. Raulston v. Waste Mgmt., Inc., 2012 Ark. App. 68, 2012 WL 147868. | [
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Per Curiam.
Appellant Duke E. Ervin by and through am. attorney, Clint Miller, has filed a motion for a belated appeal from his convictions of first-degree battery and being a felon in possession of a firearm. Appellant was convicted following a jury trial on September 30, 2002. The judgment and commitment order was entered on October 3, 2002. On December 3, 2002, Appellant filed an untimely pro se notice of appeal in the Pulaski County Circuit Court. On that same day, he also filed motions requesting permission to proceed in forma pauperis and requesting the appointment of counsel to pursue his appeal.
The trial court held a hearing on these motions on February 3, 2003. At that hearing, the trial court relieved John Purtle, who had represented Appellant at trial, from further representation of Appellant. The trial court further appointed the Sixth Judicial District Public Defender’s Office as Appellant’s counsel on appeal.
Appellant now seeks permission to file a belated appeal from this court. Attached to his petition is an affidavit from Mr. Purtle accepting complete responsibility for failing to timely file the notice of appeal. We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See Jacks v. State, 344 Ark. 405, 39 S.W.3d 459 (2001) (per curiam); Donald v. State, 341 Ark. 803, 20 S.W.3d 331 (2000) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).
The motion for belated appeal is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals In Criminal Cases, 265 Ark. 964 (1979) (per curiam).
Appellant’s appointed appellate counsel has also filed a motion requesting that this court appoint new counsel to represent Appellant. According to counsel, the public defender’s office already has a substantial caseload consisting of appeals of those persons it represented at the trial level. It further avers that it does not wish to become appellate counsel for those persons represented by retained counsel at trial who can no longer afford retained counsel on appeal. While we are mindful of the substantial caseload it bears, in the absence of any conflict of interest, this court will not relieve the public defender’s office as Appellant’s counsel on appeal.
The motion for appointment of counsel is, therefore, denied. | [
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Tom Glaze, Justice.
This case is before us on petition tice. the court of appeals. We granted the appellee Gary Davis’s petition because the issue presented on appeal called for an interpretation of Ark. Code Ann. § 16-13-317 (Repl. 1997); however, we conclude that the issue was not properly preserved for our review, and therefore, we affirm the trial court.
In November of 1994, Noel Baker, the appellant, selected eighty Holstein heifers from Gary Davis and Davis’s brothers’ dairy farm, residents of Missouri, agreeing to pay $104,000 for the cows, and an additional $2,634 for twenty-six tons of alfalfa hay. After Davis delivered the cattle to Baker in December of 1994, Baker discovered that the cattle delivered and paid for were not the same animals that he had selected from Davis’s dairy. Baker notified Davis that the cattle were not the ones he had selected and demanded the return of the money he had paid. Davis refused to return the money, and as a result, Baker filed suit against Davis in Searcy County.
Davis subsequently moved to dismiss, alleging that Baker’s complaint failed to set forth facts that would support a finding that Davis had contact with Arkansas, as is required to confer personal jurisdiction over him. The Searcy County Chancery Judge signed a decree on December 30, 2000, finding that the Arkansas courts had personal jurisdiction over Davis. The judge went on to find that Davis had defrauded Baker, and awarded damages totaling $360,657.93. The decree was filed and entered with the court clerk on January 19, 2001.
After the decree was entered, Davis filed a motion for new trial on January 26, 2001, reasserting his argument that the trial judge did not have personal jurisdiction over him, and raising a claim that the award of money damages was not supported by the evidence. Baker filed a response to Davis’s motion for new trial on February 6, 2001.
On February 13, 2001, a hearing was held on the motion for new trial before a newly-elected chancery judge, Michael Maggio, in Faulkner County, which is in the same judicial district as Searcy County. At the outset of the hearing, Judge Maggio noted that he was “at a little bit of a disadvantage [because he did] not have the complete file; that is up in Searcy County.” Noel Baker’s counsel noted that the case had been tried in Searcy County, but the motion was being heard in Faulkner County. Counsel stated that “we are here because of the moving party, and not by agreement. We do not agree to the hearing. It is our position that this is outside the venue of the court action. The original court file ... is not here, and neither is the docket.” The judge replied, “All righty. All righty.” The parties then went on to present their arguments, and the judge eventually granted Davis’s motion for new trial, finding that Davis was not subject to the personal jurisdiction of the court. The judge then vacated the decree and dismissed Baker’s complaint without prejudice.
Baker appealed, challenging the chancellor’s authority to hold the hearing in Faulkner County over Baker’s objection. In response, Davis argued that Baker never obtained a ruling on the venue question below, and therefore, the issue was not preserved for appeal. In a split decision, the court of appeals agreed with Baker, concluding that the issue was directed to the chancellor’s attention when Baker objected to the hearing and his objection was resolved by the chancellor’s continuing on with the hearing. Estate of Baker v. Davis, 79 Ark. App. 188, 191, 85 S.W.3d 553 (2002).
In reaching this conclusion, the court of appeals relied on McMahan v. Berry, 319 Ark. 88, 890 S.W.2d 242 (1994). In that case, McMahan objected to a proposed jury instruction, but the trial court gave the instruction anyway. In reaching McMahan’s arguments about the propriety of the instruction, this court held that the giving of the instruction “effectively became the riding, and we can see no sound reason why more should be required.” McMahan, 319 Ark. at 93-94.
McMahan, however, appears to be an unusual decision, and our case law otherwise overwhelmingly requires a party to obtain a ruling on an objection in order to preserve the issue for appellate review. In McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989), we explained the reason for this rule as follows:
We have held many times that the burden of obtaining a ruling is on the movant, and objections and questions left unresolved are waived and may not be relied upon on appeal. Richardson v. State, 292 Ark. 140, 728 S.W.2d 510 (1987); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). By appellant’s [McDonald’s] failure to include any record of a ruling, we are faced with essentially the same situation on review.
We have no way of determining from the record that the trial court did in fact make a ruling, nor, assuming one was made, the nature or extent of the ruling. It may be that the trial court reserved a ruling until the evidence was more fully developed and that the issue was left unresolved. It may be that depending on the ruling, appellant [McDonald] waived any objection on appeal, because it was he who elicited proof of the convictions during his case in chief. The point is that with no record of a ruling we can only speculate as to whether a ruling was made and what the particulars of the ruling may have been. Obviously, for an accurate and fair review of the question, that information is critical.
McDonald, 300 Ark. at 447-48. See also Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999); Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).
Here, Noel Baker’s counsel told the judge that he did not agree to the hearing, and it was counsel’s position that venue was in Searcy County, not Faulkner County. However, counsel made no mention of the venue statute, § 16-13-317, he now attempts to argue on appeal. Although the statute authorized the judge to hold the hearing in Faulkner County to render “appropriate orders” with respect to the pending cause in Searcy County, counsel failed to point out to the judge that only “contested cases” may not be tried outside the county of venue of the case without agreement of the parties. See Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 568 (1978), and Gibbons v. Bradley, 239 Ark. 816, 394 S.W.2d 489 (1965). Despite this failure, Noel Baker now raises those specific venue issues in this appeal, although those issues were never brought to the trial judge’s attention for a ruling below.
Consistency requires that we follow our long-standing rule that a moving party bears the burden of obtaining a ruling on any objection, and in the absence of such a ruling, the issues are not preserved for our review. Because Baker did not properly obtain a ruling on his objection to venue being in Faulkner County, we are unable to reach the merits of this appeal, and the decision of the trial court is affirmed.
Brown and Hannah, JJ., disssent.
Thornton, J., not participating.
At some point during the proceedings, Mr. Baker died, and Vicki White, executrix of his estate, was substituted as plaintiff. In addition, the original complaint also named Gary Davis’s brothers, Daryl Davis and Kevin Davis, along with the brothers’ business, variously called Davis Bros., Davis Bros. Dairy, and Davis Dairy Farm. Criminal charges were filed against all three Davises; Daryl eventually pled guilty to theft of property, and he and Kevin settled and were dismissed from the instant case. The civil case proceeded to trial against only Gary Davis. In writing this opinion, we merely refer to Noel Baker.
The original chancellor, Judge Karen Baker, was elected to the court of appeals in November of 2000.
Section 16-13-317 provides in full as follows:
At any time while mentally and physically competent and physically present in the geographical area of the judicial district which he serves as chancellor, the judge of a chancery court may hear, adjudicate, or render any appropriate order with respect to any cause or matter pending in any chancery court over which he presides, subject to such notice of the time, place, and nature of the hearing being given as may be required by law or by rule or order of the court. However, no contested case can be tried outside the county of the venue of the case, except upon the agreement of the parties interested.
The dissenting opinion in the court of appeals’ decision pointed out that this court’s rules have, in the past, been amended in response to “unreasonable results.” See Estate of Baker v. Davis, 79 Ark. App. 188, 194, 85 S.W.3d 533 (2002) (Vaught, J., dissenting) (citing Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996) (leading to change in Ark. R. Crim. P. 33.1); and City of Monticello v. Kimbro, 206 Ark. 503, 176 S.W.2d 152 (1943) (leading to amendment of Ark. R. Civ. P. 59(b)). Indeed, even those “frustrating procedural pitfalls” recited by the dissent were corrected by changing the rules of procedure. If this long-standing rule is to be altered, the change should first occur in our procedural rules, as it has been done before. | [
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WH. “Dub” Arnold, Chief Justice.
Appellant State of stibrings cappeal e. an amended order finding that seized monies under the Arkansas Drug Forfeiture Act be awarded to the Crawford County general fund. The State brings two points on appeal: 1) whether the trial court lacked the authority to set aside the May 16, 2002, judgment in the absence of a request by an opposing party and a showing of grounds for setting aside a default judgment pursuant to Arkansas Rule of Civil Procedure 55; and, 2) assuming that the trial court was permitted to set aside a default judgment in the absence of a request to do so, whether the trial court nonetheless erred by ordering the subject money forfeited to the County instead of the State. For the reasons that follow, we reverse and hold that the trial court lacked authority to set aside the judgment.
On January 21, 2002, Arkansas Highway Patrol Officer Timothy Gushing seized currency totaling $258,035.00 from a truck driven by Ramkumar Naraine. Officer Gushing observed Naraine filling out his log book after Officer Gushing requested it from Naraine. Officer Gushing conducted an inspection of the truck and the truck’s equipment. Officer Gushing asked Naraine if Naraine had any problems with the searching of the inside of the truck, and Naraine stated that he did not mind. Once inside of the cab of the truck, Officer Gushing observed a large suitcase with large amounts of cash wrapped in several bags. At the scene, Naraine advised the officers orally and in writing that the money was not his, that he had no interest in the money, and that he had no claim for its return to him.
On February 13, 2002, Officer Gushing stopped a truck and made contact with the driver, Parkin, and another driver, Fitzroy Brown. While Officer Gushing was visiting with Parkin, Parkin appeared to be nervous and in a hurry to get out of the station. Parkin gave Officer Gushing his log book and Officer Gushing noticed that Parkin had not driven for a week. Officer Gushing believed that there might be a second log book inside of the truck and obtained consent to search the truck. While searching the •truck and trailer, Officer Gushing discovered a bag filled with United States currency totaling $195,320.00. Both Parkin and Brown advised officers orally and in writing that the money was not theirs, that they had no interest in the money, and that they had no claim for its return.
The State filed in rem forfeiture complaints against the currency in the two separate cases, and the circuit clerk issued summons. The State filed affidavits in each case, requesting that the warning orders issue pursuant to Ark. R. Civ. P. 4(a); those warning orders were issued and duly published. After more than thirty days had passed, no answer had been filed; therefore, the State filed an affidavit requesting default judgments in each case.
The trial court granted the State’s motion, and default judgments were entered on May 16, 2002. The trial court found by a preponderance of the evidence that the subject currency was subject to forfeiture pursuant to Ark. Code Ann. § 5-64-505 (Supp. 2001) and ordered that the money be forfeited to the State for distribution pursuant to that statute.
When a local bank requested that the judgments be amended to reflect the amounts actually seized, the trial court instead set the matter for an “inquiry hearing.” On June 12, 2002, the trial court conducted a hearing at which the officers testified regarding the seizure of the property. After the hearing, the trial court, over the State’s objection, ordered the money forfeited to the Crawford County general fund. On July 9, 2002, the trial court entered amended orders that contained no findings of fact or conclusions of law, but merely noted that the monies were seized and would be awarded to the Crawford County general fund. At the conclusion of the hearing, the following dialogue occurred:
The Court: All right, the court having heard the testimony, they’re going to forfeit this money to the County General Fund. I don’t think there’s sufficient evidence on that, that will be the order of the court.
Mr. Medlock: Judge, I don’t know if there’s any authority to do that?
The Court: I don’t know either, but we’ll find out.
The State filed timely notices of appeal from each judgment.
Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure. That Rule provides, in pertinent part, “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.” Ark. R. Civ. P. 55(a) (2002). Although default judgments are not favored in the law, a default judgment is just as binding and enforceable as a judgment entered after a trial on the merits. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Additionally, according to Arkansas Rule of Civil Procedure 55(c):
The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
Ark. R. Civ. P. 55(c) (emphasis added). Furthermore, a party seeking relief from a default judgment must demonstrate one of the four grounds set out in Rule 55(c), and, unless the judgment is absolutely void, demonstrate a meritorious defense. Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996). Under these standards, the trial court erred by setting aside the May 6, 2002, judgments and entering the amended judgments.
Although a trial court has the authority to set aside a default judgment, it may not do so in the absence of a request to do so. Rule 55(c) contemplates that a request to set aside a default judgment be made by an adverse party. Rule 55(c) qualifies a trial court’s ability to set aside a default judgment by providing that it may do so “upon motion.” Ark. R. Civ. P. 55(c). It does not permit the trial court to act upon its own initiative. Other rules that contemplate actions by the court specify that the court may act upon its own initiative. See Ark. R. Civ. P. 4(i) (2002)(the action shall be dismissed as to that defendant without prejudice upon motion or upon the request of a party or on its own initiative); Ark. R. Civ. P. 6(b)(1) (2002)(the court, for cause shown, may at any time in its discretion . . . with or without motion or notice, order the period enlarged); Ark. R. Civ. P. 21 (2002)(par-ties may be dropped or added by order of the court on motion of any party or on its own initiative); Ark. R. Civ. P. 39(a)(2) (2002) (. . .the trial of all issues so demanded shall be by jury unless . . . the court upon motion or on its own initiative finds that a right of trial. . .); Ark. R. Civ. P. 39(c) (2002)(In all actions not triable of right by a jury, the court upon motion or of its own initiative may try any issue. . .); Ark. R. Civ. P. 40(a) (2002) (the court may assign a trial date on its own motion even though neither party has requested a setting); and Ark. R. Civ. P. 60(a) (2002)(the court may modify or vacate judgment, order, or decree on motion of the court or any party. . .). Rule 55(c) further provides that, to obtain relief from a default judgment, the moving party must demonstrate grounds and must demonstrate a meritorious defense. Thus, the Rule clearly requires a pleading filed by an adverse party setting forth the grounds for relief. See Ark. R. Civ. P. 7(b)(1) (2002) (an application to the court for an order shall be by motion which . . . shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought).
Here, the trial court acted on its own initiative, conducted a hearing, and, over the State’s claim that it lacked authority to do so, set aside the default judgment and entered an order forfeiting the appellee property to the county general fund. Because the trial court lacked authority to set aside the original default judgment in the absence of a motion by an adverse party, we reverse. Therefore, we do not need to address the State’s second point on appeal.
Reversed.
Imber, J., not participating. | [
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Donald L. Corbin, Justice.
This case arises from an stice. collided with a truck near Tamo, Arkansas, on June 28, 1995. Appellant Scipio Johnson was a passenger in the truck and was seriously injured when he was thrown from the vehicle upon impact. He and his wife, Bessie Johnson, filed suit in the Jefferson County Circuit Court against Appellees Union Pacific Railroad, Bonds Fertilizer, Inc., and Bonds Brothers, Inc., alleging negligence and a loss of consortium. The trial court granted summary judgment to Bonds Fertilizer and Bond Brothers. The trial court granted partial summary judgment to Union Pacific, on the issue of inadequate warning devices. Following a jury trial against the railroad on the remaining issue of negligence, the jury returned a verdict in favor of Union Pacific. For reversal, Appellants argue that the trial court erred by (1) finding that the claim against Bonds Fertilizer was barred based on the exclusive-remedy of the Workers’ Compensation Act; and (2) refusing to find that Union Pacific was collaterally estopped from raising the defense of federal preemption on the claim of inadequate warning devices. The latter point is one of first impression, while the former raises a significant issue needing further development or clarification of the law. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. l-2(b)(l) and (5). We reverse and remand on the first point and affirm on the second point.
I. Summary Judgment to Bonds Fertilizer
For his first point on appeal, Johnson argues that the trial court erred in granting summary judgment to Bonds Fertilizer, based on the finding that it was Johnson’s employer at the time of the accident and had paid workers’ compensation benefits to him. Johnson contends that on the date of the accident, he was working for Bonds Brothers Partnership Trust (“the Farm”), not for Bonds Fertilizer. He admits, however, that he was employed by both entities. He maintains that despite his concurrent employment, he was performing work exclusively for the Farm at the time of the accident and immediately prior to the accident. Thus, he contends that he may proceed in circuit court against Bonds Fertilizer.
The record reflects that, on the date of the accident, Johnson was an employee of both the Farm and Bonds Fertilizer. Both companies, along with Bonds Brothers, were either owned or controlled by Kenny Bonds and Brian Bonds. Kenny and Brian each owned fifty percent of Bonds Brothers. Bonds Brothers is the sole shareholder of Bonds Fertilizer. The Farm is a partnership comprised of Kenny Bonds Farms, Brian A. Bonds Trust, and Bonds Brothers. When Johnson performed work for either the Farm or Bonds Fertilizer, he reported to the same supervisor, Allan Maxey. Some weeks, Johnson would perform tasks for both employers, but he would receive only one paycheck, from the company that he did the most work for that week. The week before the accident and the week of the accident, Johnson was paid by Bonds Fertilizer.
On the morning of the accident, Johnson was performing work for the Farm, because one of the Farm’s employees was out sick. That afternoon, Johnson was supposed to deliver a load of fertilizer that was coming in at 3:00 p.m. for Bonds Fertilizer. In the meantime, around 1:00 p.m., Maxey instructed Johnson to pick up a tractor for the Farm and begin laying irrigation pipe. Maxey instructed Johnson to ride with Frances Birmingham, an employee of Bonds Fertilizer. Alyston Luster, an employee of the Farm, also rode with them. The truck they were riding in was owned by Bonds Brothers, and it had a 1,000-gallon water tank hooked to the back.
When they approached the railroad crossing at Clemmons Road, Birmingham applied the brakes and slowed the truck to one or two miles per hour. She did not come to a complete stop. According to their depositions, both Birmingham and Johnson looked both ways to see if a train was coming. Neither of them saw or heard a train. Birmingham then began driving the truck across the track, when Johnson hollered for her to “step on it.” The train collided with the bed of the truck, throwing all three passengers from the vehicle. Johnson and Birmingham received serious injuries from the collision, but Luster’s injuries were fatal.
Following the accident, Kenny Bonds reported Johnson’s accident to the insurance carrier for Bonds Fertilizer. The insurance carrier approved the claim and paid approximately $61,000 in medical and temporary total disability benefits to or on behalf of Johnson. Johnson accepted these benefits for over nine months, from July 1995 to April 1996. Subsequently, in February 1998, Johnson made a claim for additional benefits, listing as his employer: “Bonds Fertilizer, Inc. or Bonds Brothers Farms, Inc.” That claim was later withdrawn by Johnson, in favor of the civil suit.
Based on these facts, the trial court granted summary judgment to Bonds Fertilizer. The trial court found that Bonds Fertilizer was Johnson’s employer at the time of the accident. The trial court also found that because Johnson had received workers’ compensation benefits and had made no attempt to repay those benefits, his exclusive remedy against the company was under the Workers’ Compensation Act.
Johnson urges us to reverse the grant of summary judgment. Flowever, before we may reach the merits of his argument, we must first address the argument made by Bonds Fertilizer that the trial court lacked jurisdiction to determine which employer Johnson was working for at the time of the accident. Bonds argues that the exclusive jurisdiction to determine this issue belongs to the Arkansas Workers’ Compensation Commission. We agree.
In Van Wagoner v. Beverly Enters., 334 Ark. 12, 13, 970 S.W.2d 810, 811 (1998), this court held that “the commission has exclusive, original jurisdiction to determine the fact issues establishing its jurisdiction.” There, the appellant had filed suit against her employer in circuit court. On motion of her employer, the circuit court dismissed with prejudice the tort action on the ground that it was barred by the exclusive-remedy provision of the Act. The appeal was certified to us from the Arkansas Court of Appeals, to decide whether the Commission or the circuit court should determine the applicability of the Workers’ Compensation Act. This court held that such determination belonged exclusively to the Commission:
We believe that the better rule is to recognize the administrative law rule of primary jurisdiction and to alloiv the Workers’ Compensation Commission to decide whether an employee’s injuries are covered by the Workers’ Compensation Act.
We hold that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort. See Angle v. Alexander, 328 Ark. 714, 719, 945 S.W.2d 933 (1997) (citing Miller v. Ensco, Inc., 286 Ark. 458, 461, 692 S.W.2d 615 (1985) (explaining that, before an employee is free to bring a tort action for damages against an employer, the facts must show that the employer had a “desire” to bring about the consequences of the acts, or that the acts were premeditated with the specific intent to injure the employee). In so holding, we overrule all prior decisions to the extent that they are inconsistent with this opinion.
Id. at 15-16, 970 S.W.2d at 812 (emphasis added). In adopting this rule, this court pointed out that the Commission has vast expertise in this area, and that the goals of uniformity, speed, and simplicity would best be achieved by granting the Commission the exclusive, original jurisdiction to determine the applicability of the Act.
Two years later, in WENCO Franchise Mngm’t, Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000) (per curiam), this court reiterated the holding in VanWagoner. There, the appellee injured her back when she slipped and fell at the Wendy’s restaurant where she worked. Her injury was accepted as compensable, and she received benefits. When she later sought additional benefits, her employer responded by arguing that she was not performing employment services at the time of her accident. A hearing was scheduled before the Workers’ Compensation Commission, but was later canceled by the appellee. Thereafter, the appellee filed a negligence suit against her employer in circuit court. The employer filed a motion for summary judgment on the ground that the appellee’s exclusive remedy was under the Act and that only the Commission had the authority to determine jurisdiction in the matter. The circuit court denied summary judgment, and the employer petitioned for a writ of prohibition. This court granted the writ based on the holding in VanWagoner and held:
In the present case, there is no dispute that Chamness was employed by WENCO at the time of the injury or that the injury occurred on WENCO’s premises. Nor is it disputed that Chamness has already received workers’ compensation benefits for her injury. Furthermore, it is not alleged by Chamness that her injury resulted from an intentional tort by WENCO. Accordingly, the Commission has exclusive authority to determine the facts that establish jurisdiction in this matter.
Id. at 88, 13 S.W.3d at 904.
Here, it is not disputed that Johnson’s injuries occurred while he was performing employment services. The only issue is whether he was performing those services for Bonds Fertilizer or for the Farm. All of the evidence submitted below demonstrates that Johnson was employed by both the fertilizer company and the farm, and that he would receive a pay check from the employer that he performed the most work for during the week. The week before the accident, Johnson was paid by the fertilizer company. Likewise, the week of the accident, he was paid by the fertilizer company. The evidence also showed that Johnson’s supervisor was the same, regardless of whether he was working for the fertilizer company or the farm.
On the morning of the accident, Johnson had been operating a tractor for the farm. He was filling in for a farm employee who was out sick. When he returned from lunch, his supervisor told him that he would not have a fertilizer shipment to deliver until 3:00 p.m. Johnson was then instructed to go with Birmingham to pick up a tractor at one of the farming locations and begin laying irrigation pipe for the farm. Johnson was on his way to pick up the tractor when the accident occurred.
Johnson received workers’ compensation benefits from Bonds Fertilizer’s insurance carrier. The benefits were paid over a period of nine months following the accident. Thereafter, Johnson sought additional benefits from the Commission. In his application for those additional benefits, Johnson listed Bonds Fertilizer or the Farm as his employer.
Viewing these facts under the holdings in VanWagoner and Chamness, we conclude that the Commission had the exclusive, original jurisdiction to determine whether Johnson’s injuries were covered by the Act. The evidence adduced below is not so one-sided to demonstrate, as a matter of law, which employer Johnson was working for at the time of the accident. Thus, it is an issue of fact for the Commission to resolve. Accordingly, we reverse the trial court’s grant of summary judgment to Bonds Fertilizer, as the trial court lacked jurisdiction to determine the applicability of the Act to Johnson’s claim. We thus remand this matter to the trial court with leave for Johnson to pursue a determination before the Commission.
II. Partial Summary Judgment to Union Pacific
For his second point on appeal, Johnson argues that the trial court erred in granting partial summary judgment to Union Pacific on the issue of inadequate warning devices. In the complaint, Johnson alleged that the railroad crossing where the accident occurred did not have adequate warning devices. It was undisputed that the crossing was only equipped with passive warning devices in the form of “crossbucks.” There were no flashing lights or gates at this crossing. Union Pacific sought summary judgment on this claim, on the ground that the crossbucks were installed with federal funds according to procedures set out in federal law. Union Pacific asserted that federal law had removed the decision-making authority from the railroad and placed it in the hands of the state and federal government, and that, therefore, the railroad could not be held liable based on the alleged inadequacy of the warning devices.
In response, Johnson asserted that the federal-preemption defense was barred under the doctrine of collateral estoppel, because Union Pacific had unsuccessfully litigated this issue in the prior suit brought by Frances Birmingham in the federal district court. Johnson argued that the federal court’s ruling precluded Union Pacific from raising the issue in state court, as the previous ruling was based on the same accident and the same crossing devices.
The trial court disagreed with Johnson’s theory and granted partial summary judgment to Union Pacific. The trial court found that collateral estoppel did not apply, because the previous determination in federal court was not essential to the judgment in that case. The trial court explained that the jury in that prior case was presented with all the evidence, including that regarding the adequacy of the warning devices, and still found that Union Pacific was not negligent. The trial court also found that Johnson was attempting to use collateral estoppel offensively without mutuality of the parties. For the reasons set out below, we affirm.
Collateral estoppel, also known as issue preclusion, bars relitigation of issues of law or fact previously litigated by a party. Palmer v. Arkansas Council on Econ. Educ., 344 Ark. 461, 40 S.W.3d 784 (2001); Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999). The elements of collateral estoppel are: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Id. The doctrine is applicable to preclude relitigation of issues in state court that were previously litigated in federal court. Palmer, 344 Ark. 461, 40 S.W.3d 784. Unlike res judicata, or claim preclusion, collateral estoppel does not require mutuality of parties before the doctrine is applicable. Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993).
Ordinarily, collateral estoppel is relied upon by a defendant to preclude a plaintiff from relitigating an issue that has previously been decided adversely to the plaintiff. In the case at bar, however, the doctrine is being relied upon by the plaintiff to preclude a defendant from relitigating a defense. This court has not heretofore specifically approved of the offensive use of collateral estoppel to prevent a defendant from relitigating an issue. Thus, this case is one of first impression in Arkansas.
In Fisher, 311 Ark. 450, 456, 844 S.W.2d 954, 958, this court determined that the concept of mutuality of parties was not necessary to raise the issue of defensive collateral estoppel. This court distinguished the defensive use of collateral estoppel from its offensive use, observing that the offensive use “is more controversial” than the defensive use of the doctrine. This court noted, however, that the Supreme Court had approved the offensive use of collateral estoppel in Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979).
In Parklane Hosiery, the Court defined offensive collateral estoppel as occurring “when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party.” Id. at 326 n.4. The Court concluded that trial courts should be given broad discretion in determining when offensive collateral estoppel applies. This conclusion was based on the Court’s determinations that the offensive use of collateral estoppel does not promote judicial economy in the same way that defensive estoppel does, and that its use may be unfair to a defendant. By way of illustration only, the Court observed that the offensive use of collateral estoppel may be unfair (1) where the defendant in the first action is sued for small or nominal damages and thus may not have had great incentive to defend vigorously; (2) where the judgment relied upon as a basis for estoppel is itself inconsistent with one or more previous judgments in favor of the defendant; and (3) where the second action affords the defendant procedural opportunities unavailable in the first action that could cause a different result. The Court then held:
We have concluded that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied. The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.
Id. at 331 (emphasis added) (footnote omitted).
We agree with the Court’s holding that the offensive use of collateral estoppel should be available only in limited cases, and that the trial court should be given broad discretion to determine if it should be applied. We further agree that mutuality of the parties is not necessary to invoke the doctrine, as it is, by its very definition, an attempt by a plaintiff to preclude a defendant from litigating an issue that the defendant has previously litigated unsuccessfully in an action with another party.
We hereby adopt the test promulgated by the Court. Using this test, we cannot say that the trial court abused its discretion in denying the use of the doctrine against Union Pacific, in an attempt to preclude it from raising the defense of federal preemption to Johnson’s claim of inadequate warning devices. In the first place, Johnson easily could have joined in the first litigation against Union Pacific brought by Birmingham in federal court.
In the second place, we agree that the offensive use of collateral estoppel in this case would be unfair to the defendant. The trial court pointed out in its order that since the federal district court ruled against Union Pacific on the issue of federal preemption, this court issued the opinion of Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997), which held that federal funding is the touchstone of preemption in the area of railroad warning devices, because such funding indicates that the warning devices have been deemed adequate by federal regulators. In so holding, this court relied on the Eighth Circuit’s holding in Elrod v. Burlington N. R.R. Co., 68 F.3d 241 (1995), which applied the Supreme Court’s holding in CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993). The holding in Sharp conflicts with the earlier holding of the federal district court, which rejected the specific holding in Elrod. As such, the application of the offensive use of collateral estoppel against this defendant would be unfair.
Moreover, we are persuaded by Union Pacific’s assertion that one of the specific factors provided by the Court in Park-lane Hosiery is present in this case, namely that Union Pacific did not have the incentive to fully adjudicate the federal’s courts ruling. It is undisputed that the Birmingham case was fully submitted to the federal jury, including the allegation that the warning devices were inadequate. It is also undisputed that the jury found that Union Pacific was not liable for Birmingham’s injuries. Birmingham appealed to the Eighth Circuit Court of Appeals, and Union Pacific cross-appealed the district court’s ruling on the federal-preemption issue. After Birmingham filed her appeal brief, Union Pacific withdrew its cross-appeal. According to Union Pacific, it withdrew its cross-appeal because it was convinced that the appellate court would affirm on direct appeal and would then decline to reach the cross-appeal on the ground of mootness. Thus, Union Pacific no longer had any incentive to pursue the issue on appeal.
In sum, we reverse the grant of summary judgment to Bonds Fertilizer and remand this matter to the trial court with leave for Johnson to seek a determination from the Commission as to whether he was performing employment services for Bonds Fertilizer or the Farm on the date of the accident. However, we affirm the grant of partial summary judgment to Union Pacific, as we conclude that the trial court did not abuse its discretion in determining that the doctrine of collateral estoppel was not applicable in this case.
Affirmed in part; reversed and remanded in part.
Bonds Brothers is not a party to this appeal.
For clarity and ease of writing, we hereafter refer to Appellants collectively as “Johnson.”
Our holding that the trial court lacked jurisdiction to determine the applicability of the Workers’ Compensation Act to Johnson’s claim against Bonds Fertilizer does not affect the trial court’s, and consequently this court’s, jurisdiction to determine Johnson’s separate claims against Union Pacific, as those claims are not covered under the Act.
Contrary to Johnson’s argument, this court’s holding in Zinger, 336 Ark. 423, 985 S.W.2d 737, did not approve of the offensive use of collateral estoppel. Rather, that case merely carved out a narrow exception to the long-standing law that a judgment in a criminal case is neither a bar to a subsequent civil proceeding founded on the same facts nor proof of anything except its rendition. The exception recognized in Zinger was that a prior criminal conviction for murder acts as a bar to relitigating the same issue for the same defendant in civil court. Beyond that, this court did not address the issue of collateral estoppel for other criminal convictions.
Indeed, the record reflects that Johnson initially filed this suit in federal court, but it was eventually dismissed for lack of diversity jurisdiction when he joined Bonds Fertilizer and Bonds Brothers. | [
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Jim Hannah, Justice.
A Drew County jury convicted stice. of three counts of kidnapping, four counts of rape, two counts of attempted capital murder, one count of first-degree battery, and one count of vehicular piracy. He received the maximum sentences on all counts, all to be served consecutively except for the battery conviction, for a total of seven life sentences plus eighty years in the Arkansas Department of Correction. On appeal, Smith raises six points for reversal. We hold that there is no merit to any issue except sufficiency of the evidence on the first-degree battery conviction. The trial court erred in denying the directed-verdict motion where the evidence failed to show that Smith caused serious physical injury as required by Ark. Code Ann. § 5-13-201 (a)(1) (Repl. 1997) or physical injury by means of a firearm as required by Ark. Code Ann. § 5-13 — 201 (a)(7) (Repl. 1997). We modify the sentence on first-degree battery from twenty years’ imprisonment to six years’ imprisonment, the maximum sentence for second-degree battery.
The events leading up to Smith’s convictions began on June 22, 2000, when he robbed a grocery store located in Desha County at gunpoint and took the store’s owner, George Barnes, hostage. Smith drove Barnes in his pickup to a crop-dusting airport near Tillar in Drew County. At the airport, they encountered Wes Lawson, and Smith forced both men to accompany him into the airport office. Judy Quandt, the wife of the crop-dusting pilot, Fred Quandt, was in the office. Smith told Judy to call her husband on the radio and tell him that if he did not come back to the airport, Smith would kill everybody in the office. Smith then ordered all three hostages to take off their clothes. He forced the two men into the bathroom but kept Judy with him. Judy testified that Smith told her to bring up something on her computer, and when she was unable to bring up what he wanted Smith hit her more than once in the head with the butt of a gun.
Upon receiving his wife’s urgent call, Fred Quandt landed his plane at the airport. With the plane’s engines still running, he rushed toward the office wearing a helmet and earplugs, and did not heed or hear an order to “get naked,” whereupon Smith shot him in the stomach. Although seriously injured, Fred was able to escape and eventually recovered. After shooting Fred, Smith ordered Lawson to stand in the front doorway and threatened to shoot him next. Lawson then opened the front door and started running away from the building. During his escape, he sustained a gunshot wound to his arm and side that was not fatal.
Thereafter, Smith took the two remaining hostages into the bathroom, where he raped Judy, forced her to engage in oral sex with him, and forced her to engage in oral sex with Barnes. Over the course of several hours, Smith ordered the hostages to call the FBI, and he spoke by phone with various people while law enforcement officers surrounded the building. Finally, Smith instructed the hostages to put on their clothing. Then, he released Barnes and,, while holding Judy for the purpose of shielding himself, Smith exited the office and was arrested.
Initially, Smith was charged with aggravated robbery, three counts of kidnapping, two counts of attempted capital murder, and two counts of rape. Based on a court-ordered mental evaluation, Smith was found unfit to proceed and committed to the State Hospital on December 4, 2000. On May 8, 2001, the State Hospital declared Smith fit to proceed, and the State amended the information to include three counts of kidnapping, two counts of attempted capital murder, four counts of rape, and one count each of first degree battery, vehicular piracy, and aggravated robbery. The count for the aggravated robbery offense that occurred in Desha County was nolle prossed as a result of an objection to venue. Smith was tried by a Drew County jury and found guilty of all other counts. He was sentenced to seven terms of life imprisonment for four counts of rape and three counts of kidnapping, thirty years for each of the two counts of attempted capital murder, twenty years for first-degree battery and twenty years for vehicular piracy, with all sentences to run consecutively, except the sentence on the first-degree battery conviction.
Smith filed a timely appeal and raises six points for reversal. Three of the points involve challenges to the sufficiency of the evidence and three pertain to alleged discovery violations and procedural error. For double jeopardy reasons, we first consider Smith’s sufficiency-of-the-evidence arguments. Atkinson v. State, 347 Ark. 336, 345, 64 S.W.3d 259, 265 (2002).
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion 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.
I. Sufficiency of the Evidence — Class Y Felony Kidnapping Conviction
Smith’s first point on appeal is that with respect to the kidnapping of Barnes and Judy, he was only guilty of a class B felony because he released those hostages alive and in a safe place. We do not reach the merits of this point because it is not preserved for appellate review. In his directed-verdict motions on the kidnapping charges, Smith failed to specify how the State’s case was deficient as required by Ark. R. Crim. P. 33.1.
Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that
[a] motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.
Ark. R. Crim. P. 33.1(c) (2002); see, eg., Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). As to the kidnapping charges, defense counsel merely asserted that the State did not make a prima facie case. Such an assertion does not identify a specific deficiency; rather, it is nothing more than a statement that the evidence is insufficient. Smith’s motions for directed verdict, stating only that the State did not make a prima facia case, but not specifying in what respect the State’s case was deficient, were not specific enough to preserve the issue for appellate review. See Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002).
II. Sufficiency of the Evidence — First-Degree Battery Conviction
As his second issue on appeal, Smith argues that he could only be guilty of second-degree battery and not first-degree battery. Smith caused injury to Judy by striking her with the butt of a pistol. When asked what she meant by stating Smith had hit her with the butt of the gun, Judy specifically testified that she was struck by the part of the pistol that Smith was holding in his hand. Based on this conduct, Smith was charged with first-degree battery.
The first-degree battery statute provides, in relevant part, as follows:
(a) A person commits battery in the first degree if:
(1) With the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; or
‡ ijí sf:
(7) With the purpose of causing physical injury to another person he causes physical injury to any person by means of a firearm.
Ark. Code Ann. § 5-13-201 (Repl. 1997). It is undisputed that Judy was injured when Smith struck her with the butt of the pistol, but the injury does not rise to the level of a serious physical injury as defined by Ark. Code Ann. § 5-1-102(19) (Supp. 2001). Judy testified that she required no stitches.
The issue we are then faced with is whether striking a person with the butt of a pistol constitutes causing an injury to another person by means of a firearm under Ark. Code Ann. § 5-13-201(a)(7). This presents an issue of statutory construction.
We strictly construe criminal statutes and resolve any doubts in favor of the defendant. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001); Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). There is no better settled rule in criminal jurisprudence than that criminal statutes must be strictly construed and pursued. Williams, supra. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. Williams, 347 Ark. at 742. We are without authority to declare an act to come within the criminal laws of this state by implication. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952), (citing State v. Simmons, 117 Ark. 159, 174 S.W. 238 ( 1915)). Nothing is taken as intended which is not clearly expressed. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).
Recognizing we must strictly construe the statute, we next consider within that restriction the basic rule of statutory construction which is to give effect to the intent of the legislature. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the lan guage of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id.
We first note that there is no issue of whether Judy was struck in the head with a firearm. Smith used the pistol to shoot Fred and Lawson. Therefore, there can be no dispute that Smith struck Judy on the head with a firearm. Thus, we need not consider the definition of a firearm. The issue is simply whether striking Judy over the head with a firearm constitutes “physical injury ... by means of a firearm” as required by the first-degree battery statute.
If the words “by means of’ in Ark. Code Ann. § 5-13-201(a)(7), are changed to, “With the purpose of causing physical injury to another person he causes physical injury to another person by ... a firearm,” the State’s argument would be more understandable. There is no doubt that Smith caused physical injury by striking Judy with a firearm. However, the phrase “by means of’ is in the statute and may not be ignored. This court construes a statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Turnbough v. Mammoth Springs Sch. Dist. No. 2, 349 Ark. 341, 78 S.W.3d 89 (2002). To conclude that the conduct in this case constitutes first-degree battery under Ark. Code Ann. § 5-13-201 (a) (7) requires that the court ignore the phrase “by means of.” The phrase “by means of’ must be considered because it alters the meaning of the statute.
Websters defines “by means of’ as “through the agency or instrumentality of.” Webster’s Third New International Dictionary, 307 (1993). The term “by means of a firearm” is found in a number of different types of cases and is not restricted to cases involving a battery. The cases do not construe “by means of a firearm,” directly or by implication, to mean any injury inflicted by a firearm. The cases all use the term “by means of a firearm” where the firearm has been used as a firearm, including shooting, brandishing, or where a firearm is otherwise used to threaten that it will be used as a firearm.
For example, in Rawls v. State, 260 Ark. 430, 541 S.W.2d 298 (1976), Rawls was convicted and sentenced for second-degree murder committed by means of a firearm. Rawls shot R.C. Edwards fourteen times with a rifle. In addition, both Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002), and Maxwell v. State, 73 Ark. App. 45, 41 S.W.3d 402 (2001), include the term “by means of a firearm,” and the injuries were injuries caused by bullets.
Cases from other states containing the term “by means of a firearm” do not differ. In State v. Rivera, 74 Conn. App. 129, 810 A.2d 824 (2002), the appellant shot someone in the abdomen. In Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir. 2002), the victim was killed by shooting. In People v. Cook, 91 Cal. App. 4th 910, 111 Cal. Rptr. 2d 204 (2001), the California Court of Appeals stated, “Consequently, when murder is alleged to have been committed by means of a firearm, it cannot be so committed without also committing an assault with a firearm.” Cook, 91 Cal. App. 4th at 920. In other words, “by means of a firearm” means use of a firearm as a firearm, not as a club. In Bowers v. State, 2 P.3d 1215 (Alaska 2000) the criminal defendant was convicted of assault by means of a firearm when he fired a rifle in the air.
The clear intent of Ark. Code Ann. § 5-13-201 (a) (7) is to criminalize and treat as battery in the first-degree any physical injury caused by use of a firearm as a firearm because of the inherent potentially deadly character of the discharge of a firearm. It is not intended to include an injury such as clubbing. That is covered by Ark. Code Ann. § 5-13-201(a)(l) (Repl. 1997) where there is serious physical injury, or by Ark. Code Ann. §5-13-202(a)(1) where there is physical injury, as in this case.
It is not the mere presence of the firearm or its use as a club that elevates the crime to first-degree battery. Under Ark. Code Ann. § 16-90-120 (1987), a person convicted of a felony where he or she employed a firearm as a means of committing or escaping from the felony may be subjected to an additional period of confinement. This statute is not at issue in this case.
The plain and ordinary meaning of “by means of a firearm” is that the firearm be used as a firearm. To conclude otherwise is to ignore the rules of statutory construction.
When the proof offered supports a conviction on a lesser included offense but not the offense the accused was convicted of, we may reduce the punishment to the maximum for the lesser included offense, or reduce it to the minimum for the lesser offense or something in between, depending on the circumstances. Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). In this case we find that it is appropriate to reduce the sentence from twenty years imprisonment, the maximum for first-degree battery, to six years, the maximum sentence for second degree battery. The trial court ordered the original sentence on first degree battery to run concurrently. The modified sentence will also run concurrently.
Ill, Sufficiency of the Evidence — Vehicular Piracy Conviction
Smith’s third point on appeal is that the State failed to meet its burden of proving the elements of vehicular piracy because he never gained control of the aircraft. The circuit court found that Fred’s actions in returning to the airport and landing the plane were not voluntary, but were the result of compulsion.
“A person commits vehicular piracy if, without lawful authority, he seizes or exercises control, by force or threat of violence, over [a]ny aircraft occupied by an unconsenting person ____” Ark. Code Ann. § 5-ll-105(a)(l) (Repl. 1997). The statute does not require that the threat of violence be directed toward Fred. It only requires that the threat be sufficient to exercise control over the aircraft such that a person becomes an unconsenting occupant of the aircraft.
In this case, it is undisputed that Smith was threatening to kill everyone at the airport office if Fred refused to return to the airport and land the plane. Thus, because Smith exercised control over the aircraft through a threat of violence to the Fred’s wife and others, Fred became an unconsenting occupant of the plane. Therefore, the circuit court did not err in denying Smith’s motion for a directed verdict on this count.
As to the other points raised on appeal, Smith asserts his convictions should be reversed because of two discovery violations and the sentencing phase of his trial should be reversed because of a procedural error. Specifically, he contends that (1) the circuit court erred in denying his motion for a continuance based on the voluminous discovery presented within ten days of trial; (2) the circuit court erred in allowing the State to present witnesses without providing him with a witness list; and (3) the circuit court erred in not allowing him to argue during the sentencing phase that the sentences would run consecutively rather than concurrently.
IV. Continuance for Investigation of a Phone-Call List
While Smith frames this argument as an error based on the denial of a continuance requested in response to “voluminous discovery within ten days of trial,” his only argument concerns a list of people identified in confidential telephone bills. He contends that the circuit court’s ruling prejudiced his ability to contact the people on the list for evidence of paranoia to support his mental-defect defense. The trial court denied a continuance, noting that Smith had the fist for six days prior to trial and that he had not brought any specific item to the court’s attention that would justify a continuance.
Arkansas Rule of Criminal Procedure 17.1 provides in part:
(d) Subject to the provisions of Rule 19.4, the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.
Ark. R. Crim. P. 17.1(d) (2002). The prosecutor must disclose information in sufficient time to permit the defense to make ben eficial use of it, and withholding significant evidence that denies the defendant a fair trial is reversible error. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002), cert. denied 537 U.S. 1051 (2002). However, a defendant cannot rely upon discovery as a total substitute for his own investigation. Id.
The threshold question is whether there was a discovery violation. Upon receipt of the telephone records, the State prompdy provided Smith’s counsel with the list of names and phone numbers of twenty-five people and tape recordings of many of the calls. Because the State met its obligation to promptly provide the information to defense counsel, there was no discovery violation. The question then becomes whether the trial court erred in denying Smith’s motion for a continuance.
We review the grant or denial of a motion for continuance under an abuse of discretion standard. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). An appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but also show prejudice that amounts to a denial of justice. Id. When a motion for continuance is based on a lack of time to prepare, this court considers the totality of the circumstances. Id.
The defense had six days to investigate twenty-five telephone calls, many of which were tape recorded. Smith’s counsel did not direct the trial court’s attention to any particular call or calls that warranted a continuance. On appeal, Smith merely speculates that one of the persons on the list might have been able to testify in support of his affirmative defense of mental incompetence. Furthermore, Smith cannot rely upon discovery as a substitute for his own investigation. He was aware that phone calls were made from the airport, and the information could have been obtained through his own investigation. Under these cir cumstances, we cannot say that the trial court abused its discretion in denying a continuance. We affirm the trial court on this point as well.
V. The State’s Discovery Obligations — Providing a Witness List
Next, Smith asserts that the court erred in denying his motion to prohibit any of the State’s witnesses from testifying because no witness Hst was provided by the prosecutor when there were over 150 potential witnesses identified in the prosecutor’s file. The State responds that Smith never made a specific request for a witness list, but instead relied on the general provisions of Ark. R. Crim. P. 17.1. Because the prosecuting attorney’s office maintained an open-file policy, the State contends that it satisfied the discovery requirements.
Rule 17.1 of the Arkansas Rules of Criminal Procedure provides for the discovery of the names and addresses of persons the State plans to call as witnesses: “[T]he prosecuting attorney shall disclose to defense counsel, upon timely request, . . . the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial . . . .” Ark. R. Crim. P. 17.1 (a)(i) (2002). Rule 17.2 permits a prosecuting attorney to fulfill his or her discovery obligations through the use of an open-file policy. Ark. R. Crim. P. 17.2 (2002). If a prosecutor’s office intends to fulfill its discovery obligations by relying upon an open-file policy, it must make every practicable effort to ensure that the information and records contained in the file are complete and that the documents employed at trial are identical to the material available to the defense in the open file. Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994). In order to obtain a reversal of a criminal conviction on the basis of a discovery violation, the appellant must make a showing of prejudice. Id. In the event of a discovery violation, the choice of an appropriate sanction is within the trial court’s discretion. Howard v. State, supra.
On June 23, 2000, Smith made a motion for discovery based on Rules 17.1, 17.3, and 17.4. The language generally followed the wording of the rules and requested “[t]he names and addresses of persons the Prosecuting Attorney intends to call as a witness at any hearing or at trial and a short, plain statement of their anticipated testimony . . . However, at no time before the day of trial on July 17, 2001, did Smith make any further requests for a witness list, either by independent motion or at any of the four additional hearings held after the initial hearing. At all times, Smith had access to the State’s case file and had been provided with copies of the investigative reports from which the State would select its witnesses. Smith made no objections to the State fulfilling its discovery obligations through an open-file policy until the day of trial, and then he requested only the extreme remedy of prohibiting all of the State’s witnesses from testifying. He did not request a continuance or any lesser sanction for the alleged discovery violation. The trial court did not abuse its discretion in denying Smith’s eleventh-hour motion to strike all of the State’s witnesses.
VI. Closing Argument — Consecutive Sentencing
For his final point on appeal, Smith asks this court to hold that the trial court erred in sustaining the State’s objection to his closing argument regarding the matter of consecutive sentences. Smith contends he was only arguing the law as set out in Ark. Code Ann. § 5-4-403 (Supp. 2001). The trial court is given broad discretion to control counsel in closing arguments, and this court does not interfere with that discretion absent a manifest abuse of discretion. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999) (citing Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996)). It is the trial court’s duty to maintain control of the trial and to prohibit counsel from making improper arguments. Leaks v. State, supra (citing Peebles v. State, 305 Ark. 338, 808 S.W.2d 331 (1991)).
During the closing arguments, the State asked the jury to give Smith life sentences rather than sentences for a term of years because he would not have to serve an entire term-of-years sentence before being eligible for parole. Defense counsel then made statements to the jury about consecutive sentences, and the State voiced its objection. The colloquy between defense counsel, the prosecutor, and the trial court was as follows:
Defense Counsel: But if you really, really, really want to punish Dennis Smith, and you want each one of these people out here to know that Dennis Smith is going to remember what he did to them, let me suggest that you do this: Don’t give him life because he’ll be in there for the rest of his life on what he considers just one episode. And he won’t ever think again about these people out here (Indicating).
Let me suggest that you do this: On each kidnapping charge and on each rape charge, he’s got to do seventy percent of any years that you give him. And let me suggest that you do this: You give him thirty years on each one of those involving Mrs. Quandt, Mr. Quandt, and the kidnapping of Wes Lawson, and the kidnapping of George Barnes. And he’s got to do twenty-one years of each one of those sentences before he starts the next. . . .
Prosecutor: Your Honor, I’m going to object to that. Consecutive and concurrent is the Court’s choice and it is not automatic. And I object to the suggestion to this jury that it is.
The Court: I’ll sustain that objection.
Defense Counsel: Well, Your Honor, it’s a possibility. And I submit to the court that the Court’s got every right to stack them and that’s proper argument.
The Court: I don’t think it is proper argument. I think it goes beyond the law that has been given to the jury, and I’ll sustain the objection.
Defense Counsel: Is the Court saying that he’s not going to stack any of these charges?
The Court: No. I’m saying that it’s not a jury consideration. It’s my decision. It’s improper argument on the law that’s been given to this jury. So I sustain the objection.
The power to determine whether multiple' sentences are to run consecutively or concurrently is established by statute:
(a) When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, ... the sentences shall run concurrently unless, upon recommendation of the jury or the court’s own motion, the court orders the sentences to run consecutively.
* * * *
(d) The court is not bound by recommendations of the jury concerning sentencing options under this section.
Ark. Code Ann. § 5-4-403(a), (d) (Supp. 2001). The decision to impose consecutive or concurrent sentences lies solely within the province of the trial judge, and the appellant assumes a heavy burden of showing that the trial judge failed to give due consideration in the exercise of that discretion. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996) (citing Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996)).
Defense counsel’s statement to the jury — “he’s got to do twenty-one years of each one of those sentences before he starts the next” — was not a correct statement of the law because it clearly suggests that multiple sentences automatically run consecutively. Even defense counsel stated to the trial judge that consecutive sentences were only a possibility. Yet, there was no offer to restate the argument so that it would represent an accurate statement of the law. As noted above, the trial judge has the responsibility to prohibit counsel from making improper arguments. Leaks v. State, supra. Because defense counsel’s argument to the jury was not a correct statement of the law, the trial court did not err in sustaining the State’s objection.
For the foregoing reasons, the convictions and sentences are affirmed, excepting first-degree battery, which is modified as stated above. The record has been reviewed for other reversible error, as required by Supreme Court Rule 4-3 (h), and none has been found.
Affirmed as modified.
Glaze, Imber, and Thornton, JJ., concurring in part and dissenting in part.
The aggravated robbery charge was refiled in Desha County Circuit Court and is the subject of a separate appeal in case number 02-895. This conviction was affirmed in Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003).
We note Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999), a case where a victim was struck in die head with a firearm in her bedroom, dragged outside by her foot, and put in a truck where she was then struck in the face several times causing her head to strike the back glass of the truck cab. The perpetrator then placed a shirt around the victim’s head to stop the bleeding and later applied paper towels and a “toboggan” when the victim bled through the shirt. Her surgeon characterized her injuries as “serious physical injuries.” Bangs, 338 Ark. at 521.
Thus, naturally, serious physical injury may be inflicted by using a firearm as a club, however, in Bangs, the prosecutor charged first-degree battery under Ark. Code Ann. §5-13-201(a)(3), which provides:
(3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. . .
In the present case, Smith was not charged under Ark. Code Ann. §5-13-201(a)(3), rather he was charged under Ark. Code Ann. §5-13-201(a)(7).
This is analogous to the proof required in. cases of rape by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(l)(A) (Supp. 2001). See Jones v. State, 348 Ark. 619, 74 S.W.3d 663 (2002) (finding substantial evidence where the perpetrator threatened the victim’s children and roommate).
The State explained to the circuit court that, for various reasons, it had difficulty obtaining the list of phone calls.
Although Smith contended below that he did not have access to the proper equipment to play microcassette tapes, he does not make that argument on appeal. According to the prosecutor, the public defender’s office representing Smith at trial and on appeal had provided the prosecutor’s office with a microcassette tape recorder.
Smith argues in his appellate brief that the trial court should have given him a continuance to interview the State’s witnesses following receipt of a witness list. However, he made no such request below so the issue is not preserved for appellate review. | [
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Per Curiam.
Appellant Joe Copeland, by and through am. attorney, has filed a motion for a belated appeal and request for new counsel. His attorney, Norman G. Cox, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion for a belated appeal is granted. The motion requesting new counsel is denied. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Annabelle Clinton Imber, Justice.
The issue on appeal stice. authority to terminate the parental rights of appellant, Donald Gene Hudson. Testimony showed that Mr. Hudson became involved with appellee, Christina Kyle (then Christina Harvey), when he was thirty-seven and she was seventeen. During their approximately four-year relationship, Ms. Kyle’s daughter, K.H., was born. Although DNA tests proved Mr. Hudson was not KH.’s biological father, a birth certificate was issued listing him as her father. Mr. Hudson and Ms. Kyle were married in December 1996, when K.H. was fourteen months old. Mr. Hudson never made any attempt to adopt K.H.
Ms. Kyle testified that Mr. Hudson was violent toward her during their relationship both before and after K.H.’s birth, and that violence eventually resulted in a conviction for domestic battery for an incident in which Mr. Hudson beat Ms. Kyle, causing a concussion that kept her off work for weeks. In March 1997, Ms. Kyle filed for divorce, stating there were no children born of the marriage. Nonetheless, in the November 25, 1997 divorce decree issued by the Saline County Chancery Court, Mr. Hudson was adjudicated the legal father of K.H. and was granted reasonable visitation rights. Ms. Kyle never contested or appealed that decree.
In July 1998, Mr. Hudson and Ms. Kyle met at the Benton Police Station so that Mr. Hudson could visit with K.H. During that visit, an incident occurred that led to an allegation of child abuse against Mr. Hudson. An investigator with the Arkansas State Police Family Protection Division made a finding that there was credible evidence of abuse, and the Arkansas Department of Human Services placed Mr. Hudson’s name on the Arkansas Child Maltreatment Central Registry. Mr. Hudson appealed DHS’s determination and, following a hearing by an administrative law judge, his name was removed from the Registry.
On March 30, 2001, Ms. Kyle filed a motion in the Saline County Chancery Court, asking that the court rescind the. divorce decree’s finding that Mr. Hudson was K.H.’s legal father, and further asking that all visitation between Mr. Hudson and K.H. be terminated. Mr. Hudson’s answer asserted that his status as K.H.’s father was settled in the November 1997 divorce decree, and that he had a right to reasonable visitation with his daughter.
On October 25, 2001, a hearing on Ms. Kyle’s motion was held. Pursuant to Act 1736 of 2001, codified at Ark. Code Ann. § 9-10-115 (Repl. 2002), Ms. Kyle asked the court to set aside the finding that Mr. Hudson was K.H.’s legal father, asserting that Ms. Kyle was under duress at the time she signed the decree. Through a child psychotherapist who had counseled K.H. for several years, Ms. Kyle presented evidence that K.H. had been sexually abused by Mr. Hudson. The psychotherapist, Ms. Denise Maples, testi fied that K.H. had consistently stated that Mr. Hudson had sexually abused her, and that K.H. had expressed fear of Mr. Hudson on many occasions.
In a letter-order filed on October 29, 2001, the trial court found that Act 1736 of 2001 did not apply and refused to set aside the divorce decree. However, the trial court went on to say that he found Ms. Maples’s testimony compelling, and that the allegation of sexual abuse of K.H. by Mr. Hudson had been “established by clear and convincing evidence.” The trial court then found that it was in the best interests of K.H. to terminate Mr. Hudson’s parental rights. In a written order entered on November 5, 2001, the court terminated Mr. Hudson’s parental rights and ordered that the divorce decree’s previous orders with regard to Mr. Hudson’s child support obligation be withdrawn, stating that he owed no further duty of child support to K.H.
Mr. Hudson asserts four points of error on appeal: (1) the trial court erred in terminating his parental rights because it lacked jurisdiction to do so in an action between private parties; (2) the trial court erred by failing to credit the DHS decision that there was no credible evidence to support a finding of sexual abuse; (3) the trial court erred in finding there was clear and convincing evidence to terminate parental rights; and (4) the trial court erred in failing to grant a new trial. Because we agree that the trial court had no jurisdiction to terminate Mr. Hudson’s parental rights, we reverse and remand for a new trial on Ms. Kyle’s motion to terminate visitation.
In its order, the trial court cited no statutory basis upon which to predicate its jurisdiction to enter an order terminating Mr. Hudson’s parental rights. Given the situation in which the trial court terminated Mr. Hudson’s parental rights, we conclude that no statutory authority conferred jurisdiction upon the trial' court to terminate parental rights.
Two Arkansas statutes confer jurisdiction upon a circuit court to terminate parental rights. The first is Arkansas Code Annotated § 9-27-341 of the juvenile code, which states in pertinent part:
(a)(1)(A) This section shall be a remedy available only to the Department of Human Services or a court-appointed attorney ad litem.
(B) It shall not be available for private litigants or other agencies.
(2) It shall be used only in such cases when the department is attempting to clear a juvenile for permanent placement.
Ark. Code Ann. § 9-27-341 (Repl. 2002). Neither DHS nor an attorney ad litem petitioned the court for termination of Mr. Hudson’s parental rights, and DHS was not trying to permanently place K.H.; therefore, § 9-27-341 did not apply.
The second statute that gives a circuit court jurisdiction to terminate parental rights is found at Ark. Code Ann. § 9-9-220, which states in pertinent part:
(a) With the exception of a duty to pay child support, the rights of a parent with reference to a child, including parental right to control the child or to withhold consent to an adoption, may be relinquished and the relationship of parent and child terminated in or prior to an adoption proceeding as provided in this sec tion. The duty of a parent to pay child support shall continue until an interlocutory decree of adoption is entered.
(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:
(1) Abandonment;
(A) A child support order shall provide notice to the non-custodial parent that failure to pay child support or to visit the child for at least one (1) year shall provide the custodial parent with the right to initiate proceedings to terminate the parental rights of the non-custodial parent.
(B) If the notification clause required by subdivision (c)(1)(A) is not in the child support order, the custodial parent, prior to termination of parental rights, shall notify the non-custodial parent that he or she intends to petition the court to terminate parental rights.
(C) (1) The non-custodial parent shall have three (3) months from the filing of the petition to pay a substantial amount of past due payments owed and to establish a relationship with his or her child or children.
(2) Once the requirements under subdivision (c)(1) (C)(1) are met, the custodial parent shall not be permitted to proceed with the adoption nor the termination of parental rights of the non-custodial parent.
(3) The court may terminate parental rights of the non-custodial parent upon a showing that:
(i) Child support payments have not been made for one (1) year or the non-custodial parent has not visited the child in the preceding year and the non-custodial parent has not fulfilled the requirements of subdivision (c)(1) (C)(1); and
(ii) It would be in the best interest of the child to terminate the parental relationship.
(2) Neglect or abuse . . .
(3) That in the case of a parent not having custody of a child, his consent is being unreasonably withheld contrary to the best interest of the child.
(e) A petition for termination of the relationships of parent and child made in connection with an adoption proceeding may be made by:
(1) Either parent if termination of the relationship is sought with respect to the other parent;
(2) The petitioner for adoption, the guardian of the person, the legal custodian of the child, or the individual standing in parental relationship to the child or the attorney ad litem for the child;
(3) An agency; or
(4) Any other person having a legitimate interest in the matter.
Ark. Code Ann. § 9-9-220 (Repl. 2002) (emphasis added). Section 9-9-220 is part of the Arkansas Uniform Adoption Code, and sets out several grounds for termination of parental rights, but only in connection with an adoption proceeding. Subsection (a) deals with termination of parental rights in an adoption proceeding by voluntary relinquishment of those rights by the parent. Subsection (c) oudines some of the grounds for involuntary termination of parental rights, but because of the language “under this sub-chapter,” it is apparent that this termination is, once again, only appropriate when an adoption is contemplated. This is clarified by subsection (e), which gives private litigants and others the right to petition the court for termination of parental rights, but limits this right to petitions “made in connection with an adoption proceeding.”
In the instant case, the record shows that Ms. Kyle had at some point requested Mr. Hudson’s consent to allow her current husband to adopt K.H., but Mr. Hudson refused to give that consent. The record also shows that Mr. Hudson has paid child support for K.H. and has on several occasions given Ms. Kyle financial assistance over and above the child-support amount. At the time the motion at issue here was filed, there was no adoption proceeding in the works. Moreover, Ms. Kyle’s motion for cessation of visitation does not reflect that an adoption proceeding is her reason for the motion. For these reasons, the circuit court did not have jurisdiction to terminate Mr. Hudson’s parental rights under § 9-9-220.
In addition to these two sections of the Arkansas Code, Mr. Hudson cites one other section, Ark. Code Ann. § 16-13-304, as possibly giving the circuit court jurisdiction to terminate parental rights, but notes that the subsection giving that jurisdiction also required the appointment of a guardian ad litem prior to the termination, as follows:
(d)(1) Chancery courts shall have the power to terminate parental rights in matters properly before the chancery court, except when the parties to the chancery court action are also parties to a juvenile division of chancery court action; then the juvenile division of chancery court shall have exclusive jurisdiction over termination of parental rights.
(2) In all proceedings involving the termination of parental rights before the chancery court, the court shall appoint a guardian ad litem to represent the best interest of the juvenile and to advocate for the juvenile’s articulated wishes.
Ark. Code Ann. § 16-13-304(d) (Repl. 1999).
While this section of the Code was still in effect on March 30, 2001, when Ms. Kyle filed her motion to cease Mr. Hudson’s visitation, the Arkansas General Assembly, on March 28, 2001, passed Act 1153 of 2001 to repeal § 16-13-304(d). This repeal was effective in August 2001. The original motion to cease visitation made no mention of terminating Mr. Hudson’s parental rights, and § 16-13-304(d) had already been repealed when the matter came up for the first time during the October 2001 hearing on the motion. Thus, this subsection could not have conferred jurisdiction for termination of Mr. Hudson’s parental rights.
Because no statutory authority conferred jurisdiction on the court to terminate Mr. Hudson’s parental rights, this case is reversed and remanded for a new trial on the motion to terminate visitation.
Reversed and remanded for new trial.
Arnold, C.J., and Thornton, J., dissent.
The dissent incorrectly states that the trial court “set aside provisions of that divorce decree relating to paternity rights and responsibilities.” In fact, the trial court declined to set aside the divorce decree that adjudicated Mr. Hudson to be IC.H.’s father. The trial court’s order states in pertinent part as follows:
1. The Decree of Divorce entered on November 25, 1997 shall not be set aside. Act 1736 of 2001 does not apply to this case.
2. The Plaintiff established by clear and convincing evidence that it is in the best interests of the minor child ... , for the parental rights of Defendant to be terminated. The Defendant’s parental rights to said child are hereby terminated.
3. The previous Court’s orders with regard to Defendant’s obligation to pay child support to Plaintiff are hereby withdrawn, and Defendant owes no further duty of support as to [K.H.].
Thus, the paternity statutes cited by the dissent are inapposite.
None of the paternity statutes cited by the dissent authorize a trial court to terminate parental rights.
Between the time this case was originally filed with the Saline County Chancery Court in March 2001, and the date of the hearing in October 2001, Amendment 80 to the Arkansas Constitution became effective, designating all courts as “circuit courts.” Pursuant to Amendment 80, we no longer have separate “chancery courts” and “circuit courts.” The courts have now been merged and carry the designation of “circuit courts.” Thus, when Amendment 80 took effect on July 1, 2001, the statutory jurisdiction that allowed chancery courts to terminate parental rights conferred that same jurisdiction upon circuit courts.
Contrary to the dissent’s limited citation of subsection (c)(1)(C), a court may terminate parental rights under (3)(ii) only in conjunction with (3)(i). Subpart (3)(i) does not apply because the record shows that Mr. Hudson paid his child support payments and attempted to visit K.H.
Likewise, Ark. Code Ann. § 9-13-101 (Repl. 2002) is inapposite and did not confer jurisdiction on the trial court to terminate Mr. Hudson’s parental rights. That statute deals with child custody and visitation issues and does not address the termination of parental rights. In order to prevent confusion, we hereby overrule the decision of the Arkansas Court of Appeals in Office of Child Support v. Lawrence, 57 Ark. App. 300, 944 S.W.2d 566 (1997), to the extent that it holds otherwise. | [
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Robert L. Brown, Justice.
Appellant Rudolph Zangerl, icappeals e. judgment of conviction for third-offense DWI and asserts a violation of his right to a speedy trial. We agree that his speedy-trial rights were violated, and we reverse his judgment of conviction and dismiss the case.
On August 25, 1999, Zangerl was arrested for driving while intoxicated in the city of Humphrey. He was issued a ticket by the arresting police officer and advised of his court-appearance date of September 14, 1999, in Humphrey city court for taking a plea. That plea date was subsequently continued in order to give Zangerl an opportunity to consult with an attorney. On November 9, 1999, Zangerl entered a plea of not guilty in city court, and his trial was set for December 14, 1999. On December 14, 1999, the case was transferred to the Arkansas County Circuit Court on the belief that this was Zangerl’s fourth DWI offense and, as such, a felony.
On January 18, 2000, an information was filed in circuit court charging Zangerl with fourth-offense DWI. Zangerl’s pretrial hearing was set for June 12, 2000, and his jury trial was set for July 6, 2000. On June 9, 2000, Zangerl moved for a continuance of his pretrial hearing, because his counsel was in the process of preparing pretrial motions. On June 13, 2000, the circuit court reset his pretrial hearing for June 26, 2000. On June 21, 2000, Zangerl filed two pretrial motions. The first motion was to exclude his prior DWI convictions based upon a violation of the ex post facto clause, while the second motion was to exclude the prior convictions due to the statute of limitations.
On June 26, 2000, the court held Zangerl’s pretrial hearing. At the hearing, defense counsel informed the court that Zangerl’s pretrial motions “[were] of a variety that can be dealt with by the Court, based on the motions and perhaps, briefs [,]” but that Zangerl “would not need an evidentiary hearing on those.” The court then “ma[d]e the briefs due” on July 11, 2000, and reset the trial for August 10, 2000. The jury trial did not take place on July 6, 2000, and no explanation for this is contained in the record.
On August 16, 2000, which was six days after the scheduled trial date, the court reset the trial date for October 12, 2000, and stated the reason as “docket congestion, older case tried[.]” On October 19, 2000, which was seven days after the scheduled trial date, the court reset the case for January 4, 2001, and stated the reason as “Defendant’s request, waiting on a brief from Mr. Molock[.]” On January 11, 2001, which was seven days after the scheduled trial date, the court again reset the trial for February 13, 2001, at the State’s request. On January 23, 2001, the circuit court entered its order denying Zangerl’s two motions to exclude prior DWI convictions. On January 30, 2001, Zangerl waived his right to a jury trial. On March 1, 2001, the court reset the case for a nonjury trial to be held on April 16, 2001.
On April 9, 2001, Zangerl filed his motion to dismiss based on an alleged violation of his right to a speedy trial. In his brief-in-support of the motion, Zangerl conceded that 181 days should be charged to him in the speedy-trial calculations. On April 16, 2001, the motion was heard before Zangerl’s bench trial. At the hearing, Zangerl argued that his right to a speedy trial had been violated in that he was tried on the 566th day following his arrest on August 25, 1999. He then conceded that the following time periods should be charged to him: September 16, 1999, to November 9, 1999, for continuances at his request; June 21, 2000, to July 26, 2000, for the time in which his motion to exclude prior convictions was filed and heard; July 6, 2000, to August 8, 2000, for a continuance at his request; and February 13, 2001, to April 16, 2001, for his request to have a non-jury trial rather than a jury trial. The total days conceded by Zangerl was 164.
The State responded that even using the arrest date of August 25, 1999, as a starting point, the State was still within its time because only 275 days were attributable to either the circuit court’s or State’s requests or actions. Zangerl then made four arguments in reply: (1) that in response to the State’s statement that the October 12, 2000 trial resetting was at the defendant’s request due to his inability to get to Arkansas County because he was in school in Jonesboro, there had been no time in which he was unable to attend because of school; (2) his request to change a pretrial-hearing date did not affect the trial date; (3) a continuance for docket congestion requires exceptional circumstances to be set out in the docket sheet or by court order under the criminal rules; and (4) his motions to exclude prior convictions of June 21, 2000, did not contain requests for a continuance; thus, the continuance on October 19, 2000, stating “Defendant’s request, waiting on a brief from Mr. Molock” was in error. Zangerl claimed that the State was still 46 days over the 365-day limit. The State countered that even assuming this, the delay had been only 336 days. The court denied Zangerl’s motion and, after the ensuing trial, found him guilty of DWI.
On May 29, 2001, the court held a sentencing hearing. At the sentencing hearing, the State conceded that this was Zangerl’s third DWI offense, not his fourth. Thus, the crime was a misdemeanor, not a felony. The court then sentenced Zangerl to sixty days in jail and ninety days of community service, and ordered him to pay a fine of $3,500 plus $300 in costs. The court further ordered that his driver’s license be revoked. On June 8, 2001, the court entered an order memorializing the judgment of conviction and sentence.
Zangerl appealed his conviction and sentence to the court of appeals, and the court of appeals reversed the conviction in an unpublished opinion and dismissed. See Zangerl v. State, No. CACR01-1437 (Nov. 13, 2002). This court subsequently granted the State’s petition for review. When we hear an appeal pursuant to a grant of a petition for review, we review the matter as if it were originally filed in this court. See Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002); Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002).
Zangerl’s sole point on appeal is that the circuit judge erred in denying his motion to dismiss on speedy-trial grounds. The apposite law governing speedy trials has been often stated by this court. Arkansas Rule of Criminal Procedure 28 governs speedy-trial determinations. It requires the State to try a defendant within twelve months, excluding any periods of delay authorized by Ark. R. Crim. P. 28.3. See Ark. R. Crim. P. 28.1 (2002); Miles v. State, 348 Ark. 544, 75 S.W.2d 677 (2002). The time for trial begins to run from the date the charge is filed; however, if prior to that time, the defendant has been continuously held in custody, on bail, or lawfully at liberty, the time shall begin to run from the date of arrest. See Ark. R. Crim. P. 28.2(a); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Once a defendant demonstrates a prima facie case of a speedy-trial violation, the burden is on the State to show that the delay was the result of the defendant’s conduct or was otherwise justified. See Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002); Burmingham v. State, 346 Ark. 78, 57 S.W.3d 118 (2001). If .a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1 provides the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that discharged offense. See Moody v. Arkansas County Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002).
Zangerl was arrested on August 25, 1999 for driving while intoxicated. His trial commenced on April 16, 2001, which was the 600th day following his arrest. Because Zangerl has made a prima facie showing of a speedy-trial violation, the State must show that 235 days of delay were caused by the defendant or otherwise legally justified. See Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000).
Zangerl initially conceded before the circuit court that 181 days were excludable due to his delay. On appeal, however, he concedes 188 days are attributable to him. However, as the State points out, the correct dates and calculation of days of the times conceded by Zangerl are as follows:
(1) September 14, 1999 to November 9, 1999, due to Zangerl’s request for a continuance to consult an attorney, for a total of 56 days;
(2) June 21, 2000 to July 26, 2000, for the period in which appellant’s pretrial motion was under advisement;
(3) July 6, 2000 to August 10, 2000, due to Zangerl’s request for a continuance, for a total of 50 days (due to overlap of prior period); and
(4) February 13, 2001 to April 16, 2001, due to Zangerl’s request for a non-jury trial, for a total of 62 days.
Using these- corrected dates and calculations, it appears Zangerl concedes that a total of 168 days are chargeable to him rather than 164, 181, or 188 days. The State, however, argues that 70 more days should be charged to Zangerl. It contends that the entire period from August 10, 2000, until at least October 19, 2000, on which the docket sheet reflects the case was reset while “waiting on brief [from] Mr. Molock[,]” should be excluded. We disagree.
On June 21, 2000, Zangerl did indeed file his motions to exclude his prior convictions. The court addressed the status of the motions in its pretrial hearing held on June 26, 2000. At that time, the following colloquy took place between counsel and the court:
Defense Counsel: . . . And I think [the motions] are of a variety that can be dealt with by the Court, based on the motions and perhaps briefs, but that we would not need an evidentiary hearing on those. . . .
The Court: Well, let’s see, it will obviously be •— we are not going to be ready for trial on the sixth?
Defense Counsel: I doubt it, as far as getting the motions resolved by that time.
The Court: Why don’t we make the briefs due, like, the eleventh, and re-set the trial —
Case Coordinator: August 10.
It appears clear to this court that the court requested briefs to be filed by July 11, 2000.
Arkansas Rule of Criminal Procedure 28.3(a) provides in pertinent part that “[n]o pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.” Ark. R. Crim. P. 28.3(a) (2002). The State contends, however, that under the facts of this case, the motions filed by Zangerl were not “under advisement” until the briefs were filed, which, as of October 19, 2000, they had not been. Again, we disagree. In Ferguson v. State, supra, this court addressed a similar scenario and held as follows:
For example, on July 15, 1996, Appellant filed a motion to suppress the custodial statements made by Appellant to his fellow inmates. On August 5, 1996, a continuance was granted upon agreement of the parties to obtain additional information from the lead police investigator that was pertinent to his pretrial motions. The suppression hearing was held on November 4, 1996. At the conclusion of the hearing, the trial court took the motion under advisement and requested briefs from both sides. No ruling was made within thirty days after the hearing. The thirtieth day from the date of hearing was December 3, 1996. Thus, under our holding in Gwin, the period of time from July 15 to December 3, 141 days, should be excluded from the calculation of speedy trial as a period of delay attributable to hearings on a pretrial motion.
Ferguson, 343 Ark. at 171, 33 S.W.3d at 123. See also Gwin v. State, 340 Ark. 302, 306, 9 S.W.3d 501, 504 (2000) (” . . . the excluded period contemplated by the rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard by the court and not more than thirty days thereafter.”). Although the State claims that in the instant case, appellant’s motions were not “heard” at the June 26, 2000 hearing, the prosecutor was in fact present and represented as stated on the cover page of the hearing’s transcript. The prosecutor failed to object to Zangerl’s counsel’s statement that the motions could be decided on the motions or briefs. Moreover, the record fails to reflect that any briefs were filed by either party.
The State submits as persuasive authority the United States Supreme Court decision of Henderson v. United States, 476 U.S. 321 (1986), and argues that it stands for the proposition that a motion is not “under advisement” until all the papers it reasonably expects to aid it in ruling on the motion are received. The State’s citation is unpersuasive. The Court said in Henderson that it was “consistent with [the] exclusion [permitted by another statute] to exclude time when the court awaits the briefs and materials needed to resolve a motion on which a hearing has been held[.] . . . We therefore hold that subsection (F) excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion.” 476 U.S. at 331. The facts in Henderson are not the facts in the instant case, as we have no evidence before us that briefs were ever filed in this case. Ultimately, the circuit court apparently decided the motions without briefs. Why there was such a delay in deciding the motions is unclear. What we do know is that the circuit court asked that briefs be submitted on July 11, 2000, and that the circuit court noted it was “waiting” on defense counsel’s brief on October 19, 2000. Zangerl denies that he requested a continuance based on briefing.
We conclude that Rule 28.3(a) is clear in its terms and provides that no pretrial motion shall be held under advisement for more than thirty days, and our case law confirms this. The question then becomes when was the case taken under advisement. We answer the question by looking to the date that the judge asked for briefs, July 11, 2000. Hence, thirty days from that date would be August 10, 2000. However, this time period was within the time already conceded by Zangerl as chargeable to him. Accordingly, the State still fails to meet its burden of showing that the delay in trying Zangerl was the result of his conduct or otherwise legally justified. In sum, we conclude the following time is chargeable to the State:
August 25, 1999 — September 14, 1999 20 days
November 9, 1999 —June 21, 2000 225 days
August 10, 2000 — February 13, 2001 187 days
Total 432 days
There is one further point. As stated previously, Zangerl filed his motion to dismiss on April 9, 2001. The date the speedy-trial motion is filed by a defendant tolls the running of the time for speedy trial under our rules. See Doby v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002); Moody v. Arkansas County Circuit Court, supra; Ibsen v. Plegge, supra. This time between August 25, 1999, and April 9, 2001, is 593 days. Thus, the State had the burden of showing that at least 228 days were properly excluded in order for Zangerl to have been timely brought to trial. Here, Zangerl only conceded 168 days were chargeable to him. Thus, the State was left with the burden of showing that at least 60 additional days could be properly excluded. This the State failed to do.
Again, we are mindful of the fact that on October 19, 2000, there was a letter from the court resetting the case which referred to “Defendant’s request, waiting on a brief from Mr. Molock[.]” Defense counsel disputes the fact that he requested a continuance for briefing purposes. We admit to some ambivalence on the point in light of this docket entry. Nevertheless, the question is whose obligation is it to bring a defendant to trial in 365 days. Our Criminal Rule 28 places that burden squarely on the shoulders of the State. In this case, approximately four months passed from the date pretrial motions were filed to October 19, 2000, and seven months passed between the time the motions were filed and their denial. The circuit court ordered briefs due by July 11, 2000, and they apparently were never filed. Saddling the defendant with a four-month or seven-month delay because pretrial motions were not decided runs counter to the express policy behind Rule 28 and specifically Rule 28.3(a), which expressly limits excludable time for pretrial motions. A defendant is not required to bring himself to trial or “bang on the courthouse door” to preserve his right to a speedy trial; the burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Nelson v. State, 350 Ark. 311, 86 S.W.3d 909 (2002) (quoting Burmingham v. State, supra). See also Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002).
Under the dissent’s analysis, there was no obligation on the part of the State or the court to move this case along even though Rule 28.3(b) specifies a 30-day time limit for an exclusion after pretrial motions are taken under advisement. We believe the date the briefs were due must be the operative date. Otherwise, a circuit court could set a date for briefs and then the State and the court could wash their hands of any responsibility to comply with the speedy-trial rule until the briefs were filed. That could take seven months, which is exactly what occurred in the case before us. And we still do not know whether a brief was actually filed or whether only cases were sent to the court because no evidence of this is in the record. Such a loophole undermines completely the obligation of the State and the court to bring a person to trial within twelve months of the date of arrest: Again, our Rule 28.3(b) is clear ■ — ■ only thirty days from when the motion was taken under advisement is excludable. The rule makes no reference to when the matter was “heard.”
We conclude that the State failed to meet its burden of showing that the seventy days between August 10, 2000, and October 19, 2000, are chargeable to Zangerl. This is especially true in light of the policy expressed in Rule 28.3(a) relating to excludable time for pretrial motions. Because we decide the issue on this basis, we need not address Zangerl’s second point that a mere reference to “docket congestion, older case tried” does not comply with Rule 28.3(b).
Reversed and dismissed.
Glaze, Corbin, and Hannah, JJ., dissent..
Both the appellant and the State contend that 599 days elapsed between Zangerl’s arrest and his bench trial. However, our calculations reveal that April 16, 2001, the date of Zangerl’s bench trial, was the 600th day counting from the day after his arrest on August 25, 1999. See Ark. R. Crim. P. 1.4. The discrepancy may be due to the fact that 2000 was a leap year. | [
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Per Curiam.
Jason McConnell, by and through his attorney, am. filed a motion for a rule on the clerk.
His attorney, Michael L. Allison, admits in his motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion, which we will treat as a motion for belated appeal. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is,- therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Attorney J. F. Atkinson, Jr., counsel for appellant Alisa Danieal Efurd, who was convicted of first-degree murder by a jury in Sebastian County Circuit Court and was sentenced to twenty-five years in the Arkansas Department of Correction, appeared before this court on March 20, 2003, to show cause why he should not be held in contempt for failing to timely perfect the appeal.
During the hearing conducted on March 20, 2003, we accepted Mr. Atkinson’s guilty plea for failing to timely perfect his client’s appeal. Mr. Atkinson has taken responsibility for his failure to timely perfect the appeal, and submitted statements in mitigation of his actions when making his plea.
The facts are that on February 23, 1999, the Arkansas Court of Appeals issued a mandate affirming Efurd’s conviction; and, on March 19, 1999, Efurd filed a timely pro se Rule 37 petition, petition to proceed informa pauperis, and a motion for appointment of counsel. On April 9, 1999, the trial court issued an order to appoint J. F. Atkinson, Jr., to represent Efurd in her Rule 37 proceeding; and, on April 12, 1999, the trial court sent a notice to counsel stating, “Please find an order appointing you (Jeff Atkinson) to represent Ms. Efurd in her Rule 37 Petition. No hearing has been scheduled as of this date.” On August 31, 1999, Efurd’s Rule 37 petition was summarily denied without making written findings specifying the parts of the files and records relied upon in denying the petition.
On September 9, 1999, the trial court entered an order awarding attorney fees to J. F. Atkinson, Jr. Efurd notified Atkinson of her desire to appeal; and, on November 10, 1999, Atkinson filed Efurd’s notice of appeal and designation of record. The court reporter filed the transcript with the Sebastian County Circuit Court Clerk and tendered to counsel the transcript on or about February 10, 2000.
Atkinson thereafter failed to timely file the transcript with the clerk of this court, due to the file and transcript sitting therein, having been misfiled or lost and forgotten about according to Atkinson. Atkinson asserts that while searching for another file which was misfiled, Atkinson came across Efurd’s file. Then, on February 7, 2003, Atkinson filed a motion to file belated appeal and rule on the clerk.
Based on the foregoing, we accept Mr. Atkinson’s guilty .plea for failing to timely perfect his client’s appeal, and we fine him $500.00. However, the motion to file a belated appeal is denied.
Belated appeals in criminal cases are governed by Rule 2(2) of the Rules of Appellate Procedure — Criminal. The rule provides in pertinent part that “no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of. . . the order denying postconviction relief . . . .” Atkinson tendered Efurd’s motion for belated appeal in February 2003, some three years after the order was entered, and three years after he filed a notice of appeal. It is incumbent to file the motion for belated appeal in a timely manner. Hayes v. State, 328 Ark. 95, 940 S.W.2d 886 (1997). Here, Atkinson did not act with diligence and thus waived the right to appeal from the order. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion dismissed.
Brown and Hannah, JJ., dissent. | [
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Jim Hannah, Justice.
Appellants Reggie Chavers and Mark Chavers appeal a judgment entered against them by the Craighead County Circuit Court. Reggie and Mark argue that the trial court erred in holding them liable for a company debt based upon partnership by estoppel because the proof was vague and insufficient and there was no detrimental reliance on the part of a creditor. We hold that the trial court was not clearly erroneous in finding liability based upon partnership by estoppel. Accordingly, we affirm.
Gary Chavers operated Chavers Welding and Construction (“CWC”), a construction and welding business, in Jonesboro. Gary’s sons Reggie Chavers and Mark Chavers joined their father in the business after graduating from high school. Gary, Mark, and Reggie maintain that CWC was a sole proprietorship owned by Gary, and that Reggie and Mark served only as CWC employees, not as CWC partners.
Facts
In February 1999, CWC entered into an agreement with Epsco, Inc. (“Epsco”), a staffing service, to provide payroll and employee services for CWC. Initially, Epsco collected payments for its services on a weekly basis, but later, Epsco extended credit to CWC. Melton Clegg, President of Epsco, stated that his decision to extend credit to CWC was based, in part, on his belief that CWC was a partnership.
CWC’s account with Epsco became delinquent, and Epsco filed a complaint against Gary, Reggie, and Mark, individually, and doing business as CWC, to recover payment for the past due account. Gary discharged a portion of his obligation to Epsco due to his filing for bankruptcy. Epsco sought to recover CWC’s remaining debt from Reggie and Mark. After a hearing on March 7, 2002, the trial court issued a letter opinion, finding that Reggie and Mark “represented themselves to [Epsco] as partners in an existing partnership and operated in such a fashion to give creditors in general, and Epsco in particular, the impression that such creditors/potential creditors were doing business with a partnership. . . .” On May 21, 2002, the trial court entered an order stating that Reggie and Mark were partners by estoppel as relates to Epsco. The trial court found that Reggie and Mark were jointly and severally liable for the debt of CWC in the amount of $80,360.92. In addition, the trial court awarded Epsco pre-judgment interest at the rate of six percent, post-judgment interest at the rate of ten percent, and attorney’s fees in the amount of $8,036.92.
Standard of Review
In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a) (2002); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Sharp v. State, 350 Ark. 529, 88 S.W.3d 348 (2002). Disputed facts and determinations of credibility are within the province of the fact-finder. Sharp, supra; Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001).
Partnership by Estoppel
Arkansas Code Annotated § 4-42-308 (Repl. 2001) [repealed January 1, 2005] provides, in pertinent part:
(1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one (1) or more persons not actual partners, he is liable to any person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner, he is liable to that person, whether the representation has or has not been made or communicated to that person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to it being made.
(a) When a partnership liability results, he is liable as though he were an actual member of .the partnership.
We have long recognized the doctrine of partnership by estoppel. In Olmstead v. Hill, 2 Ark. 346 (1840), the court stated that
they who hold themselves out to the world as partners in business or trade, are to be so regarded quoad creditors and third persons; and the partnership may be established by any evidence showing that they so hold themselves out to the public, and were so regarded by the trading community.
2 Ark. at 354. Further, we have stated that “[partnerships may be proved by circumstantial evidence; and evidence will some times fix a joint liability, where persons are charged as partners, in a suit by a third person, when they are.not, in fact, partners as between themselves.” Humphries v. McCraw, 5 Ark. 61, 64-65 (1843).
In Herman Kahn Co. v. Bowden, 80 Ark. 23, 96 S.W. 126 (1906), the court noted that
[a] person who holds himself out as a partner of a firm is estopped to deny such representation, not only as to those as to whom the representation was directly made, but as to all others who had knowledge of such holding out and in reliance thereon sold goods to the firm. . . .
80 Ark. at 30. In addition, “if the party himself puts out the report that he is a partner, he will be liable to all those selling goods to the firm on the faith and credit of such report.” Id.
When a person holds himself out as a member of partnership, any one dealing with the firm on the faith of such representation is entitled to assume the relation continues until notice of some kind is given of its discontinuance. Watkins v. Moore, 178 Ark. 350, 10 S.W.2d 850 (1928); Gershner v. Scott-Mayer Comm’n Co., 93 Ark. 301, 124 S.W. 722 (1910); Bowden, supra; Brugman v. McGuire, 32 Ark. 733 (1878).
In Firestone Tire & Rubber Co. v. Webb, 207 Ark. 820, 182 S.W.2d 941 (1944), the court wrote:
It is a thoroughly well-settled rule that persons who are not as between themselves partners, or as between whom there is in fact no legal partnership, may nevertheless become subject to the liabilities of partners, either by holding themselves out as partners to the public and the world generally or to particular individuals, or by knowingly or negligently permitting another person to do so. All persons who hold themselves out, or knowingly permit others to hold them out, to the public as partners, although they are not in partnership, become bound as partners to all who deal with them in their apparent relation.
The liability as a partner of a person who holds himself out as a partner, or permits others to do so, is predicated on the doctrine of estoppel and on the policy of the law seeking to prevent frauds on those who lend their money on the apparent credit of those who are held out as partners. One holding himself out as a part ner or knowingly permitting himself to be so held out is estopped from denying liability as a partner to one who has extended credit in reliance thereon, although no partnership has in fact existed.
Webb, 207 Ark. at 825 (quoting 40 Am. Jur. 179-80). In Webb, the court held that the appellee was estopped from denying that he was a partner when the “appellant showed that it relied on the truth of the financial statement . . . signed by [the appellee] as a partner, and made shipments on the truth of the statement.” Id. at 824.
In the present case, the trial court cited specific examples of representations made by Reggie and Mark indicating that they were partners of CWC, including correspondence to Epsco, checks written to Epsco, business cards distributed to the public, and credit applications. We will discuss each in turn.
The Faxed Credit References
Epsco argues that Plaintiff’s Exhibit #1, a faxed list of credit references, clearly indicates that Gary was the owner and that Reggie and Mark were partners in the business. The fax lists four credit references, and it includes CWC’s contact information. The contact information lists CWC’s telephone number, fax number, and federal tax number. The last two lines of the contact information state: “Gary Chavers Owner” and “Reggie Chavers and Mark Chavers Partners.”
Kim Baker Adams, an office manager at Epsco, testified that in the beginning ofEpsco’s relationship with CWC, she told Gary that he needed to fill out a credit application. Adams testified that Gary told her that CWC had its own company credit application already typed up, and that he would fax it to her. Adams testified that Plaintiff’s Exhibit #1 was the fax she received from Gary.
Gary testified that he did not know that the list of credit references was faxed to Epsco. In addition, he testified that his signature was not at the bottom of the fax. He testified that his former secretary might have signed his name to the fax; however, he stated that he did not authorize his secretary to sign or fax a list of credit references to Epsco. Moreover, Gary testified that the first time he saw the list of credit references was at the bench trial.
This court gives deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002); Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Further, it is within the province of the trier of fact to resolve conflicting testimony. Lee, supra; Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). Though there was a dispute concerning whether Gary faxed the list to Epsco, the trial court found that Epsco received the faxed credit references from CWC and relied on CWC’s statement that Reggie and Mark were partners. The trial court’s finding is not clearly erroneous.
The Fax Cover Sheet
At trial, Epsco introduced Plaintiff’s Exhibit #2, a fax cover sheet from “Chavers Construction” to Epsco. The fax cover sheet was dated July 19, 2000. The fax cover sheet contained the address, telephone number, and fax number of the business. Listed under this information was “Gary, Reggie, or Mark Chavers.” Epsco argues that Gary, Reggie, and Mark are all listed on the fax cover sheet, and that this indicates that they were holding themselves out to the public as partners of the business. The trial court’s finding that the fax cover sheet indicated that Reggie and Mark were holding themselves out as partners of CWC is not clearly erroneous.
The Epsco Personnel Credit Application
Epsco introduced Plaintiff’s Exhibit #9, a personnel credit application, which was received from CWC. Adams testified that the exhibit represented a completed credit application that she received from CWC. The type of business checked on the credit application is “partnership.” Adams testified that the application showed the company to be a partnership, and that this information was relied upon in extending credit. Clegg testified that he viewed the credit application which indicated that CWC was a partnership, and that his decision to extend credit to CWC was based, in part, on his belief that CWC was a partnership. Gary denied filling out the credit application form.
It was within the trial court’s discretion to find Adams’s and Clegg’s testimony more credible than Gary’s testimony and to determine that Epsco relied on the statement of partnership on the credit application before extending credit to CWC. See, e.g., Lee, supra; Myrick, supra. The trial court’s finding concerning the credit application is not clearly erroneous.
The Checks to Epsco
Epsco argues that Plaintiff’s Exhibit #3 and Plaintiffs Exhibit #11, checks written to Epsco showing the CWC account to be in the name of “Gary A. or Reggie J. Chavers,” indicates that Reggie was holding himself out to be a partner of CWC. Plaintiff’s Exhibit #3 was signed by Gary, and Plaintiffs Exhibit #11 was signed by Reggie. The checks are evidence that Reggie was holding himself out to the public as a partner of CWC, and Epsco could have detrimentally relied on the checks before extending credit to CWC. The trial court was not clearly erroneous in finding that the checks supported a finding of partnership by estoppel.
The Business Card
Epsco introduced Plaintiff’s Exhibit #4, a business card that states “Chavers Welding, Construction & Crane Service.” Listed on the card as “owners” are Gary Chavers and Reggie Chavers. Gary testified that the business cards were printed incorrectly, and that Reggie’s name should not have been included as an owner. He also testified that some of the cards might have been handed out, and that it was possible that he might have given one of the cards to a business listed as one of CWC’s credit references on Plaintiff’s Exhibit #1.
The business card listing Reggie as an owner indicates that Reggie was holding himself out as a partner. As we stated in Watkins, supra, when a person holds himself out as a member of partnership, any one dealing with the firm on the faith of such representation is entitled to assume the relation continues until notice of some kind is given of its discontinuance. There is no indication that Reggie ever informed any person who received a business card that the business relationship listed on the card was incorrect or had been discontinued. The trial court’s finding concerning the business card is not clearly erroneous.
The Dealership Application
Epsco introduced Plaintiff’s Exhibit #5, an application form from “Chavers Welding,” signed by Reggie, seeking a dealership from Sukup Manufacturing. The application, dated January 23, 1997, lists “Gary & Reggie Chavers” as owners of “Chavers Welding.” The application is signed by Reggie. Reggie admits that he signed the dealership application and represented that he was an owner of “Chavers Welding,” but he dismisses his statement of ownership as mere “puffery” on his part. Epsco argues that instead, the application shows that Reggie was holding himself out to the public as being a partner. The trial court’s determination that Reggie’s dealership application supports a finding of partnership by estoppel is not clearly erroneous.
In sum, the trial court was not clearly erroneous in finding that Reggie and Mark held themselves out as partners of CWC and that Epsco detrimentally relied on the existence of the partnership before extending credit to CWC. The appellants argue that even if we find Reggie liable based upon partnership by estoppel, there was scant proof of Mark being liable based upon partnership by estoppel. We disagree. We are aware that some examples of holding out cited in the trial court’s order pertain only to Reggie. However, the representations attributed to both Reggie and Mark are sufficient proof to support the trial court’s finding that both Reggie and Mark are estopped from denying liability to Epsco.
Affirmed.
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WH. “Dub” Arnold, Chief Justice.
This appeal sticinterpretation e. statute allowing for annexation of lands contiguous to municipalities and the exceptions thereto. The appellant, Dan Utley, challenged an annexation approved by a majority of voters in a special election held by the City of Dover, on April 10, 2001; appellant complained that the annexation violated Arkansas law set forth in Ark. Code Ann. §§ 14-40-301 to 304 (Repl. 1998 and Supp. 2001). The trial court upheld the annexation. We affirm.
On February 6, 2001, appellee, the City of Dover (hereafter “Dover”), adopted its Ordinance 2001-2, entitled “An Ordinance Submitting to the Voters of the City of Dover, Arkansas, and Other Affected Persons, the Questions of Annexation to the City of Dover, Arkansas, Certain Contiguous Territory” (hereafter the “Ordinance”). A special election was held by Dover on April 10, 2001, in which a majority of the voters participating approved the annexation.
Appellant is the co-owner of property within the city limits of Dover. He also is a 25 percent shareholder in an entity that owns property within the proposed area to be annexed. On May 2, 2001, appellant filed suit in the Circuit Court of Pope County, challenging the annexation. The complaint alleged that annexation violated Arkansas law set forth in Ark. Code Ann. §§ 14-40-301 to 304.
A trial was held before the Pope County Circuit Court on October 3, 2002, after which the court issued a ruling dismissing appellant’s complaint and upholding the annexation election. It is from that ruling that appellant brings the instant appeal. Appellant asserts the following eight points on appeal:
1) The trial court erred in finding that the lands in the annexed area were platted and held for sale or use as municipal lots pursuant to Ark. Code Ann. § 14-40-302(a)(l);
2) The trial court erred in finding that the lands in the annexed area, whether platted or not, were held to be sold as suburban property pursuant to Ark. Code Ann. § 14-40-302(a)(2);
3) The trial court erred in finding that the lands in the annexed area represented the actual growth of the City of Dover beyond its legal boundaries pursuant to Ark. Code Ann. § 14-40-302(a) (3);
4) The trial court erred in finding that the lands in the annexed area were needed for proper municipal purposes pursuant to Ark. Code Ann. § 14-40-302(a)(4);
5) The trial court erred in finding that the lands were valuable by reason of their adaptability for prospective municipal uses pursuant to Ark. Code Ann. § 14-40-302(a) (5);
6) The trial court erred in finding that appellant failed to establish that the highest and best use of any parcel within the subject area is horticultural or agricultural pursuant to Ark. Code Ann. § 14-40-302(b);
7) The trial court erred in failing to grant appellant’s motion to amend final judgment wherein appellant requested that the trial court void the annexation pursuant to Ark. Code Ann. § 14-40-304(b) because the City of Dover had failed to use the proper standards outlined in Ark. Code Ann. § 14-40-302 when determining the lands to be annexed;
8) The trial court erred in denying appellant’s motion to disqualify counsel for the City of Dover.
Appellee, Dover, cross-appeals, asserting simply that the trial court erred in failing to dismiss the complaint of the appellant since the same was untimely. Appellee maintains that, pursuant to Ark. Code Ann. § 14-40-304(a), any challenge to an annexation should have been filed within thirty days after the election and that appellant failed to properly bring such action in a timely manner. The trial court disagreed with this and refused to dismiss appellant’s complaint. Appellee asserts that this was error.
This case is governed by Ark. Code Ann. §§ 14-40-301 to 304 concerning municipal annexation of contiguous lands through election. Our standard of review in annexation cases is that the order of the circuit court will be upheld unless it is clearly erroneous. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985). Section 14-40-302(a) sets forth five acceptable bases upon which an annexation by election may be based. Specifically, section 14-40-302(a) states as follows:
(a) By vote of two-thirds (2/3) of the total number of members making up its governing body, any municipality may adopt an ordinance to annex lands contiguous to the municipality if the lands are any of the following:
(1) Platted and held for sale or use as municipal lots;
(2) Whether platted or not, if the lands are held to be sold as suburban property;
(3) When the lands furnish the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary;
(4) When the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or
(5) When they are valuable by reason of their adaptability for prospective municipal uses.
These bases have been referred to as the Vestal criteria after this Court’s decision in Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891 (1891), from which they originate. It is not necessary that all five criteria be met. Rather, the lands must meet only one of the five. See Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998). However, this Court has also made it clear that if a part of the proposed area does not meet one of the five requirements, the annexation of the entire area is void in toto. Id.; see also Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989) (holding that if one of several tracts is found to be improperly included, the entire annexation must fail).
Further, § 14-40-302(b) sets forth certain types of land that cannot be annexed, regardless of whether they might meet one or more of the criteria set out in subsection (a). Relevant to this case is the language in subsection (b)(1)(A), which prevents annexation of lands that “[h]ave a fair market value at the time of the adoption of the ordinance of lands used only for agricultural or horticultural purposes and the highest and best use of the lands is for agricultural or horticultural purposes.” Town of Houston, 332 Ark. at 348, 965 S.W.2d at 135 (1998) (holding that agricultural and horticultural lands are not to be annexed when their highest and best use is for agricultural and horticultural purposes).
I. Platted and Held for Use as Municipal Lots — Ark. Code Ann. § 14-40-302(a)(1)
Appellant asserts that in its final judgment, the trial court found that appellant “did not prove that none of the lands in the annexed area were platted and held for sale or use as municipal lots as required by Ark. Code Ann. § 14-40-302(a)(l).” Appellant maintains that this was error and references several reasons to support his position. However, when looking at the actual final judgment entered by the trial court, it actually reads as follows:
The court specifically finds that the plaintiff [appellant] did prove that none of the lands in the annexed area were platted and held for sale or use as municipal lots as required by Ark. Code Ann. § 14-40-302(a)(l). [Emphasis added.]
It appears, from the reading of the judgment, that the trial court actually ruled in appellant’s favor on this point, and appellant obviously misread the judgment to read that he “did not prove . . . .” As such, it is unnecessary for us to address this point, as appellant prevailed on the matter in the trial court and no cross-appeal was brought on this point.
II. Whether Platted or Not, Held to be Sold as Suburban Property — Ark. Code Ann. § 14-40-302(a)(2)
In its final judgment, the trial court found that appellant “failed to offer sufficient evidence that the lands in question, whether platted or not, were not held to be sold as suburban property.” To support its finding, the trial court stated that “[t]he testimony established that the lands in question met the definition of ‘suburban’ because they are in close proximity to the city limits of the City of Dover, Arkansas, and the City of Russellville, Arkansas, and there are utilities, businesses, a shopping center, a church and residences in the area which are indicative of a ‘suburban’ area.” Appellant asserts that this finding was erroneous for several reasons.
First, appellant asserts that the trial court misapplied appellant’s burden of proof by requiring appellant to prove that all of “the lands in question” in the annexed area were not held to be sold as suburban property, when he was actually only required to prove that a part of the lands did not meet the criteria. Appellee claims that appellant has mischaracterized the trial court’s opinion and that the final judgment makes clear that the court was well aware of the statutory requirements for annexing property and of the appellant’s burden of proof. We agree. There is simply no language contained in the final judgment from which it can be said that the trial court ruled as appellant argues.
Next, appellant asserts that the trial judge erred because he determined that the lands in the area met the definition of the word “suburban,” rather than finding that the lands in the annexed area were “held to be sold as suburban property,” as referenced in the statute. Appellant maintains that the trial court’s definition of the word “suburban” is irrelevant under the statute and that that was not the appropriate standard. We disagree. Defining the word “suburban” is clearly relevant to a determination of whether the lands in the area being annexed were “held to be sold as suburban property.”
Appellant further argues that in regard to whether the lands were “held to be sold as suburban property,” the court completely ignored the testimony of appellant and Ms. Hendrickson (who owns six acres within the annexed area) that each of their properties were not held to be sold as suburban and that appellee’s witnesses provided no guidance on this subject. We find no merit to this argument. First, the trial court is in the best position to judge the credibility of witnesses. Next, both appellant and Ms. Hendrickson were interested parties. This Court has long held that the testimony of a party interested in the result of the action will not be regarded as undisputed in determining the sufficiency of the evidence. See Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). Furthermore, such testimony does not prohibit a finding by the trial court in regard to other properties within the area to be annexed meeting this criteria. The law only requires that a tract meet one of the five criteria and merely because the property of appellant and Ms. Hendrickson may not meet this criteria does not mean that no other properties meet the criteria.
In regard to the appellant’s assertion that none of appellee’s witnesses provided guidance to the court on this subject, it appears to the contrary. Mayor Waldo testified that he had spoken with “three of the landowners that have major portions of the property to be annexed” and that “they had indicated to me that they were going to — that they wanted all of their land in the city limits if we did annex and that they were going to be subdividing that and selling lots for residential and commercial.” While appellant may now say that he disagrees with such testimony, it was solicited by his own attorney during direct examination of Mayor Waldo. Such testimony clearly constitutes a basis for the trial court’s decision on this point.
We further find it notable that appellant’s present assertion is inconsistent with certain answers to interrogatories he gave prior to trial and was asked about during trial. One of those interrogatories asked appellant to identify any tracts which did not meet any of the five criteria. He acknowledged that his answer to this interrogatory was that he was “in the process of determining and compiling the list of specific tracts that do not meet the criteria in the statute,” and that he further answered by stating that the response would be supplemented when such information was available. Appellant then admitted that he had not supplemented his answer and identified each tract and the criteria which that tract did not meet.
Moreover, during cross-examination, appellant admitted that in his deposition, he had testified that at some point it was possible that his property could be developed for residential or commercial use. He further acknowledged that directly across the road from his property was a cemetery and some commercial development. In fact, although he now criticizes the decision of the trial court and the fact that appellee’s witnesses had not been on each tract of land within the area being annexed, appellant admitted that he had not sat down and looked at each of the areas being annexed and determined which could possibly be developed for residential or commercial purposes.
While appellant contends that the decision of the trial court was erroneous, such an argument ignores substantial testimony to the contrary. Specifically, upon examination of the testimony of Mayor Waldo in appellee’s case-in-chief, the mayor testified that he was familiar with the five criteria and that he had reviewed the area to be annexed and, in his opinion, the area met the criteria under the statute.
Possibly the most compelling testimony presented from the viewpoint of the appellee was the testimony of Jim Von Tungeln, an urban planning consultant certified by the American Institute of Certified Planners, which is the professional arm of the American Planning Association. Von Tungeln testified that he had worked as the city planner on a consulting basis for the cities of Russellville, Searcy, Cabot, El Dorado, Harrison, and, on a less frequent basis, for some ten other cities. He testified that an urban planner generally looks at the planning boundary of a city which can extend beyond the city limits and within that plan for orderly growth. He testified that he is familiar with the five criteria that are involved in annexation issues. He further testified that he had looked at appellant’s Exhibit No. 2, which consisted of a map of the area being annexed and that he had generated a map of his own. Von Tungeln then gave a very detañed list of afi actions that he had taken in arriving at an opinion as to whether the area being annexed met the five statutory criteria.
It was his opinion that every parcel of land in the area being annexed was held to be sold as suburban property. While the fact that Mr. Von Tungeln may not have personafiy visited with each property owner in the area might go to the weight to be given his testimony, he was qualified as an expert witness and certainly demonstrated a thorough famüiarity with the area over an extended period of time.
Appeüant argues that the only way to determine whether lands were actuafiy being held for sale as suburban property was to ask the actual landowners themselves. AppeUant seems to be forgetting that it was he who actually had the burden of proving that the lands being annexed did not meet one of the criteria. His argument also ignores the fact that the case law is clear that a majority of electors voting in favor of annexation makes a prima facie case for annexation, and the burden rests on the plaintiff [appellant here] to produce sufficient evidence to defeat the prima facie case. Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989). If appeñant believed that tracts other than his and Ms. Hendrickson’s did not meet this criteria, appeüant should have cafied those landowners as witnesses; he chose, however, not to do so.
In short, the record reflects that both appeñant and Ms. Hendrickson testified that their property was not being held to be sold as suburban property, while Mr. Von Tungeln and Mayor Waldo testified that afi the property in the area being annexed met this criteria. Under our standard of review of an annexation contest, appellant has failed to demonstrate that the trial court’s ruling was clearly erroneous on this point.
III. Actual Growth of the City of Dover Beyond its Legal Boundaries — Ark. Code Ann. § 14-40-302(a)(3)
The trial court found that the annexed area represented “the actual growth of the area of the City of Dover beyond its legal boundary.” Appellant asserts that this finding was not supported by the evidence. Appellant maintains that the trial court misapplied the statute on this point in that, rather than basing its decision on whether there was any “actual” growth, the trial court impermissibly based its opinion on testimony that the annexed area was going to be a growth area in the future.
Appellant’s argument seems to be that, before this criteria can be met, there must have already been substantial growth of a city into an area before that area can be annexed. Appellant cites no authority for this proposition. This Court has said on numerous occasions that it will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. See Stilley v. James, 347 Ark. 74, 60 S.W.3d 410 (2001).
Appellee contends, and we agree, that the requirement that an area being annexed represents the actual growth of a municipality does not mean that the municipality must have already grown into the area prior to annexation. One of the primary purposes of annexation by a municipality is to have orderly growth, if this Court were to accept the argument of appellant, such a purpose would be thwarted.
Even if appellant’s argument had merit and this Court accepted same, there was testimony from which the trial court could have determined that the area being annexed represented the actual growth area of the appellee. Specifically, Mr. Hamilton (called by appellant and qualified as an expert in the field of certified general appraisers) testified that the commercial development of Dover would go south and that south of the city was the actual growth of the commercial area of Dover as it extends.
The testimony of Mr. Von Tungeln on this criteria also clearly supports the decision reached by the trial judge. Although appellant asserts that because some of the property being annexed is within a flood plain, this means that it cannot be developed or meet any of the five criteria, Von Tungeln’s testimony was to the contrary. In fact, he even gave specific examples of properties within flood plains being developed to generate income.
As with appellant’s other points in this appeal, the record contains testimony that is favorable to both parties. When there is testimony that supports the decision of the trial court, there can be no demonstration that the decision reached was clearly erroneous. We, therefore, affirm the trial court on this point, as well.
IV. Needed for Proper Municipal Purposes — Ark. Code Ann. § 14-40-302(a)(4)
The trial court found that this element of the statute had been met because “the lands in question are needed for the purpose of municipal growth and expansion.” Appellant asserts that the sheer size of the annexed area attempted by Dover belies this finding and supports the contrary finding that the annexation was actually a “land grab.” Appellant cites Town of Houston, supra., in which the annexation was held improper where the town in that case had no real need for the additional acres and persons within the annexed area. Appellant further maintains that this additional alleged municipal purpose was not listed or described in any manner in the ordinance in question and that, for this reason, appellee should be estopped from relying upon this alleged municipal purpose to uphold its annexation.
The primary problem with appellant’s arguments on this point is that they were not made to the trial court and are being raised for the first time on appeal. We have clearly held that argument, even constitutional arguments, are improperly raised for the first time on appeal. Jones v. Jones, 347 Ark. 409, 64 S.W.3d 728 (2002). Appellant has simply failed to preserve the arguments it now makes on this point for appeal.
Appellant further argues that, to expand the definition of “municipal purposes” as far as the trial court did, essentially reads subsections (a)(1), (a)(2), and (a)(3) out of the statute. This argument seems to ignore the fact that the Vestal criteria are in the disjunctive, as discussed earlier. Gay v. City of Springdale, supra. If property meets any of the criteria, then it does not matter that it may not meet any of the others. In addition, appellant cites no authority for his argument that the desire for a city to grow is not a “proper municipal purpose.” Appellant simply notes that the language “proper municipal purpose” is broad.
Mayor Waldo testified that there were very few residential sites within the city limits of Dover; that the population of Dover had grown 20 to 25 percent in the last ten years; that the City of Dover was already providing utility service to a number of people in the area being annexed and that the city had a lot of infrastructure already in place; and, that there were a number of businesses and lands in the area being developed, divided, and subdivided. Finally, he testified that all of the lands in the annexed area were valuable by reason of their adaptability for prospective municipal purposes.
The testimony of Mr. Von Tungeln was similarly instructive on the issue. He testified that his expertise was in zoning or annexation for cities. As in prior points discussed above, Mr. Von Tungeln gave .extensive testimony as to his knowledge of the lands in question and that, in his opinion, all of the lands met this criteria.
The trial court specifically found that appellee was very limited in any areas for expansion within its present city boundaries and that the expansion of a city’s boundaries to facilitate new areas for new construction of businesses and homes was a legitimate municipal purpose. The trial court obviously relied heavily on Von Tungeln’s testimony in this regard. The court also noted that appellee has extended water and sewer lines to the lands in question, as well as fire hydrants, and further found that maintenance and expansion of these services to people in the affected lands was proof that the lands were valuable by reason of their adaptability for these prospective municipal purposes. Appellant has, in short, failed to demonstrate that the trial court’s decision on this issue was clearly erroneous.
V. Valuable by Reason of Their Adaptability for Prospective Municipal Uses —- Ark. Code Ann. § 14-40-302(a)(5)
The trial court found that the land was valuable by reason of its adaptability for the prospective municipal use of extending water and sewer lines to the lands in question, as well as fire hydrants. Appellant asserts that the trial court and appellee’s “expanded reading” of this portion of the statute is unsupported; further, appellant maintains that the trial court’s ruling is “nonsensical,” in that the lands themselves are not “valuable” to the city simply because Dover might be able to extend water and sewer services outside its city limits. Appellant again cites Town of Houston for the proposition that the proper focus is not on what is needed by the annexed area but rather on what benefits would be reaped by the original city. Appellant maintains that the extension of water and sewer lines and fire hydrants to the annexed area simply does not fit within subsection (a)(5) because these facts do not make the land “valuable” to the city itself.
Appellant asserts that even if this could be properly described as a benefit for the City of Dover, the land was not “needed” for the purpose of placing sewer and water lines through the area because that had been done twenty years ago. Appellant suggests that if this is the law, then any time a small city might want to extend water or sewer lines and connect these lines to those of another larger city, the smaller city could automatically annex all of the land between the cities.
Appellant acknowledges that if a portion of the land had been needed by Dover for the construction of a sewer treatment plant, for example, then this would be the precise kind of prospective municipal use envisioned by the statute. Other prospective municipal uses might be city parks or other publicly-owned facilities. Appellant directs the Court, however, to the testimony of Mayor Waldo, who testified that no such plans were in place and that he could not detail which lands would be valuable by reason of their adaptability for prospective municipal uses. Appellant, therefore, claims that the trial court erred in that it did not focus on the value of the lands to the existing city but on the value to the lands to be annexed.
While appellant has only referenced the testimony of Mayor Waldo, he has apparently ignored the fact that Mr. Von Tungeln had also testified in regard to this requirement. Von Tungeln testified that the lands had developed from a basic vacant land along a quiet Arkansas scenic highway to land along a highly-traveled, four-lane facility between two growing cities in a growing county. He further testified that he knew of no tract of land in the annexed area that did not meet this criteria.
Obviously, from the testimony of Mr. Von Tungeln, the trial court was able to draw a finding that the lands met this criteria, and the appellant has done nothing more than attempt to point to evidence that he feels contradicts the court’s finding rather than demonstrate that the record contained no evidence to support the trial court’s findings. Regardless of appellant’s argument or the evidence to which he points, the testimony of Mr. Von Tungeln on this criteria clearly supports the trial court’s decision; therefore, we cannot say that the trial court’s finding on this point was clearly erroneous.
VI. Highest and Best Use of Any Parcel Within the Subject Area is Horticultural or Agricultural ■— Ark. Code Ann. § 14-40-302(b)
The trial court found that appellant had failed to prove that the highest and best use of any parcel within the annexed area was horticultural or agricultural. Appellant again asserts that the trial court misapplied the statute and used the wrong standard in determining if any of the annexed lands met this criteria. We disagree.
Subsection (b)(1)(A) of § 14-40-302 states that contiguous lands shall not be annexed when they “[h]ave a fair market value at the time of the adoption of the ordinance, of lands used only for agricultural or horticultural purposes and the highest and best use of the lands is for agricultural or horticultural purposes.” [Emphasis added.] Appellant asserts that the trial court ignored the phrase “at the time of the adoption of the ordinance,” and, as it did with other criteria, applied a “potential” use or “future-use” standard. Appellant further maintains that the court ignored the testimony of landowners and experts that the land was actually being used for agricultural purposes and had a highest and best use as such.
Appellant seems to be arguing both sides of this issue. On the one hand, he argues that the court should be looking at what the land was being used for at the time of the adoption of the ordinance; then, in the next paragraph of his brief, he claims that the court ignored the testimony of landowners and experts regarding what the land was currently being used for at the time of the trial. If the statute requires the value to be placed “at the time of the adoption of the ordinance,” which appellant correcdy states that it does, then what difference would any testimony from landowners or experts regarding its current use make? For example, the testimony of the appellant, Mr. Hamilton, and Mayor Waldo, cited by appellant, refers only to the current use being made of certain properties. Appellant has not referred to any testimony from any of these witnesses as to whether such use was in fact the highest and best use of these lands at the time the annexation ordinance was passed.
Appellant also seems to misconstrue the testimony of Mr. Von Tungeln. His testimony, as to the basis for determination of the highest and best use of property, was based upon a use that he felt was presently physically possible for the lands. He did not state that this possibility was what might happen in the future, as the appellant argues.
Appellant contends that the trial court ignored unrebutted testimony that much of the land was located in a flood plain and that the fair market value of the land in the flood plain would be set based upon its use for agricultural purposes. While there was such testimony, it was not unrebutted. Mr. Von Tungeln testified at several different points that merely because property was located in a flood plain did not prevent it from being developed for purposes other than agricultural in nature. Thus, at best, the testimony on this point is conflicting, and iqerely because appellant disagrees with the testimony of Mr. Von Tungeln and can point to conflicting testimony does not demonstrate reversible error.
VII. Appellant’s Motion to Amend Final Judgment and Void the Annexation
Appellant asserts that the trial court should have amended its final judgment to include a finding that the annexation was void because the City of Dover made no considerable effort to determine whether the lands in the annexed area met the five criteria set forth in the ordinance as the bases for annexation. Appellant begins this argument by contending that the reason appellee was attempting to annex the property in question was because “it wanted to beat the City of Russellville to the land south on Highway 7.” Even if such a statement were supported by any testimony or evidence of record, the motive of the appellee is irrelevant. Appellant has cited no case law or statutory law nor does he make any convincing arguments that motive was entitled to any consideration by either the trial court or by this Court. Again, we have repeatedly held that arguments unsupported by authority or convincing argument will not be considered. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).
Appellant further argues that if a majority of the voters approve an election that a prima facie case has been made and that this is “contrary to the statute” and “promotes haphazard planning and ‘land grabs’ designed merely to benefit the city through increased tax revenues or other irresponsible goals.” Interestingly enough, however, this argument fails to mention or attempt to distinguish Gay v. City of Springdale, 287 Ark. 55, 696 S.W.2d 723 (1985), which held:
The procedural rales are well settled to determine whether any one of the criteria is met: A majority of electors voting in favor of annexation makes a prima facie case. City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971).
Gay v. City of Springdale, 287 Ark. at 58. [Emphasis added.]
Appellant’s argument appears to be in direct contrast to the statutory scheme for challenging an annexation election. The appellant must prove that the lands do not meet the statutory requirements. The manner by which the lands being annexed were determined to be included or excluded or the manner used to determine whether they met the statutory requirements prior to annexation have been resolved by the election. The making of a prima fade case as a result of the election had the effect of shifting the burden of proof to the appellant.
Appellant’s argument is simply at odds with the statutory scheme and applicable case law in regard to annexations. There is simply no basis for delving into what may have transpired prior to the adoption of the annexation ordinance and election once the election was successful. At that point, the party attacking the election must prove that the lands do not meet the applicable criteria or that there was some irregularity in the election itself. Appellant has simply failed to demonstrate error in the actions of the trial court.
VIII. Motion to Disqualify Counsel for Appellee
Appellant filed in the trial court a motion to disqualify counsel for the City of Dover, Mr. David McCormick, asserting that because he served as Dover’s city attorney and actually drafted the ordinance in question, in addition to serving as trial counsel for appellee, his service as trial counsel created a conflict of interest and prejudiced appellant in violation of Rule 3.7 of the Arkansas Rules of Professional Conduct. The trial court rejected these arguments. We affirm the trial court.
Appellant has correctly noted that Rule 3.7 of the Arkansas Rules of Professional Conduct prevents an attorney from being an advocate in a case in which he is likely to be a necessary witness. However, merely because the appellant thinks that the attorney for the appellee is a “likely witness” is insufficient to justify appellant’s effort to disqualify him in this action.
It is undisputed that appellee’s attorney drafted the ordinance that called for the election, which appellant is challenging. However, an examination of the pleadings filed by appellant reveals that his attack is upon the lands within the area being annexed not meeting the statutory requirements, not the manner in which the ordinance was drafted nor the manner in which the ordinance was passed.
Appellant’s brief asserts that Mr. McCormick’s “testimony is certain to relate to highly-contested matters concerning the attempted annexation in this case” without ever setting forth what those “highly-contested matters” are, and, of which, Mr. McCor mick is supposed to have knowledge. Here, as in the trial court, the brief and argument of appellant make only vague and general allegations that Mr. McCormick has knowledge of certain matters that will be contested. At the very least, the appellant had the duty to advise the trial court and this Court of the exact matters about which Mr. McCormick will be expected to testify. Furthermore, appellant had the duty to demonstrate to the trial court that such testimony could not be gained from any other witness or source.
Most importantly is the fact that the manner in which the City of Dover Ordinance 2001-2 was enacted was not challenged in the trial court by appellant and is not relevant to the issues contained in appellant’s pleadings. Lee v. City of Pine Bluff, 289 Ark. 204, 710 S.W.2d 205 (1986), holds that a majority of electors voting in favor of annexation makes a prima facie case for annexation, and the burden rests on those objecting to produce sufficient evidence to defeat the prima facie case. The facts surrounding the enactment of the annexation ordinance are simply not relevant. Appellant’s brief fads to set forth any facts or law that gives this Court any legitimate basis for disqualification of Mr. McCormick. Appellant has simply failed to demonstrate that the trial court’s decision to deny his motion to disqualify appellee’s counsel was erroneous or that he was prejudiced as a result.
IX. Cross-Appeal — Appellee’s Motion to Dismiss Complaint
Appellee maintains that, pursuant to Ark. Code Ann. § 14-40-304(a), any challenge to an annexation should have been filed within thirty days after the election and that appellant failed to properly bring such action in a timely manner. The trial court disagreed with this and refused to dismiss appellant’s complaint. Appellee asserts that this was error. We hold that, as a result of our affirmance of the trial court in regard to appellant’s points on appeal, appellee’s cross-appeal has become moot.
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Tom Glaze, Justice.
This case requires us to determine stice. actions of the Arkansas State and Public School Life and Health Insurance Board constituted rule-making and whether those actions had to be taken in accordance with the Arkansas Administrative Procedures Act, Ark. Code Ann. § 25-15-201 et seq. (Repl. 2002).
Appellee State and Public School Life and Health Insurance Board (Board) is a statutorily created board that sets policy and selects plans and coverages for the state employee and public school personnel health and life insurance and self-funded medical programs. Ark. Code Ann. § 21-5-401 (Supp. 2001). Appellee AdvancePCS Health, L.P. (APCS) provides pharmacy benefits management services for health-benefit plans. The Employee Benefits Division of the Arkansas Department of Finance & Administration (the Division) contracts for health and life insurance coverage on behalf of state and public school employees; the Division also provides state and public school employees with prescription benefits through APCS.
On March 1, 2001, APCS’s predecessor, Advance Paradigm, entered into a contract with the Division to provide pharmacy benefits management services for State and public school employees. Under this benefit services contract, prescription drug purchases by state and public school employees are covered under the plan if the purchases are made at APCS network pharmacies. The network is a group of pharmacies that have contracted with APCS to provide pharmacy services to state and public school employees covered by the plans and to receive reimbursements according to a specific formula. The appellants in this case — the Arkansas Pharmacist’s Association, Sunnymede Pharmacy, Bryant’s Investments and Holding, Sims Drug, Inc., and Gary Fancher, P.D., d/b/a Flippin Pharmacy — alleged they were participating pharmacies in the APCS pharmacy network.
After reviewing various proposals regarding changes to the pharmacy benefit services agreement, the Board recommended two changes to the Division’s and APCS’s agreement at an October 17, 2001, board meeting. First, the Board passed a motion to recommend the implementation of an optional mail service to state and public school employees, whereby certain prescriptions could be filled through the mail. Second, the Board moved to recommend a change in the rate at which pharmacists were reimbursed. Discussions at the board meeting indicated that changing the reimbursement rate could save the State about $5 million annually. On January 17, 2002, the Division and APCS executed an amended agreement incorporating the Board’s recommended changes to the reimbursement rates and the mail-order service; the amended agreement also extended the term of the agreement until December 31, 2002.
The Arkansas Pharmacist’s Association, Inc., and the pharmacies named above (collectively referred to as the Association) filed a declaratory judgment action against the Board and, by way of an amended complaint, included the Division and APCS as defendants. The complaint alleged that, in making the recommendations at the October 17 meeting, the Board engaged in rule-making within the meaning of the Arkansas Administrative Procedures Act, Ark. Code Ann. § 25-15-201 (Repl. 2002) (APA). Further, the complaint alleged that the Board failed to comply with the notice and hearing provisions of the APA, and as a result, the “rules” should be declared invalid.
The opposing parties filed cross-motions for summary judgment. After a hearing on May 16, 2002, the trial court granted the summary-judgment motion filed by the Board, the Division, and APCS, and denied the Association’s motion. The trial court held that the Board’s actions at its October 17 meeting, recommending the mail order provision and lower reimbursement rates, were not “rules” or “rule making” under the APA; it also determined the Division’s and APCS’s conduct in adopting these two recommendations by amending their contract did not constitute “rules” or “rule making.” From the trial court’s order granting summary judgment in favor of the Board, the Division, and APCS, the Association brings this appeal.
For its first point on appeal, the Association argues that the trial court erred in finding that the Board’s action did not constitute rule-making. Under the Administrative Procedures Act, a “rule” is defined as “any agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice of any agency and includes, but is not limited to, the amendment or repeal of a prior rule.” Ark. Code Ann. § 25-15-202(8)(A) (Repl. 2002). Moreover, the APA defines “rule making” as meaning an “agency process for the formulation, amendment, or repeal of a rule.” § 25-15-202(9). The Association asserts that the Board’s decision to amend the pharmacy benefit services agreement between the Division and APCS amounted to “rule making.”
In support of its argument, the Association asserts that the Board’s actions were indisputably of “future effect” and amounted to a prescribing of policy; the “only dispute,” according to the Association, is whether the Board’s actions were “of general applicability.” The Association insists that the Board’s decision was of general applicability, because the amendment 1) changed the reimbursement formula for all current and future pharmacies that provide services to plan members, and 2) offered the mail order benefit to all current and future members.
The Association is in error on this point. The only Arkansas case that discusses the meaning and import of “general applicability” within the framework of the APA is Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989). In that case, Steve Eldridge brought suit for declaratory and injunctive relief challenging the site selection for an adult detention facility by the Department of Correction; Eldridge claimed that the Department failed to comply with the notice and hearing provisions of the APA. The trial court granted summary judgment in favor of the Department, finding that the site-selection decision did not constitute the adoption of a rule. In affirming the trial court, this court held as follows:
Eldridge strongly argues that the decision by the Department of Correction to establish an adult detention facility is a statement of general applicability that implements the law authorizing the Department to establish such facilities. While this construction perhaps involves an interesting argument in semantics, the action of the Department was no more than the carrying out of legislatively mandated administrative duties under section 12-27-103 and not the adoption of a rule within the meaning of section 25-15-202(4) and (5).
Here, the term “rule” has been defined for us, and subsections (4) and (5) of section 25-15-202 were obviously drafted to address those instances in which an agency subject to the Act either formulates, amends, or repeals statements of general applicability and future effect which implement, interpret, or set out provisions having legal consequences, or which describe departmental policies, or explain the organization, procedure, or practice of an agency. Our first rule of construction as to the language of any piece of legislation is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). Site selection for the construction of an adult detention facility does not fall anywhere within the definition of the term “rule” as contained in the Act, if for no other reason than that it does not constitute an agency statement of general applicability.
Eldridge, 298 Ark. at 470-71 (emphasis added).
It is clear from Eldridge that a state agency can carry out its statutorily appointed day-to-day tasks without every action being considered an exercise in “rule making.” In Eldridge, this court noted that the Department of Correction had the “function, power, and duty ... to establish and operate regional adult detention facilities.” Id. at 470. Similarly, in the instant case, the Board is statutorily charged with the following powers, functions, and duties:
(1) To explore various cost containment measures and funding options;
* * * *
(6) To evaluate responses to requests for proposals, select contractors for all services, approve the award of contracts resulting from bids for all health and life insurance offerings for participants of the various plans;
* * * *
(8) To promote increased access to various health plan options and models;
(9) May, at the discretion of the board, direct the Office of State Purchasing to contract with all qualified vendors, as defined by the board, offering the health benefit plans prescribed by the board without regard to § 19-11-228 or other statutes requiring competitive bidding.
§ 21-5-404 (emphasis added).
In making its recommendations, the Board was exploring various cost-containment measures, in that it determined that changing the reimbursement rate would save up to $5 million annually. In addition, it was promoting increased access to various health-plan options and models, by deciding to offer the mail-service option to its members.
As to the question of whether the Board’s actions were of “general applicability,” the Association attempts to distinguish Eldridge on the basis that the issue in that case “only concerned the specific location in which the agency decided to build a single, specific adult detention facility.” Because the decision in Eldridge was of “particular applicability,” to use the Association’s phrase, it did not constitute rule making. Here, however, the Association asserts that the Board’s decisions are of future effect, and act on unnamed and unspecified pharmacies and plan members, and are therefore of “general applicability.”
However, it is difficult to conclude that the Board’s recommendations to the'Division were of “general applicability,” because these recommendations were of no effect until the Division and APCS negotiated and executed the terms of their amended contract. Moreover, the record reveals that the Board’s recommendations impacted only the Division’s contract with APCS for a limited time, ending on December 31, 2002. Obviously, as in Eldridge, the action of the Board was “no more than the carrying out of legislatively mandated administrative duties under section [21-5-404,] and not the adoption of a rule within the meaning of [the APA].” See Eldridge, 298 Ark. at 471.
Bearing on this point, Ark. Code Ann. § 21-5-406 (Supp. 2001) sets out that the Board must choose an executive director with the approval of the executive director of the Department of Finance & Administration (DF&A), and the selected director is located in the Employment Benefits Division of DF&A. The Board’s executive director is charged with the duty to administer the Board’s day-to-day functions, and this includes having the authority to supervise the implementation and day-to-day management of the health insurance programs and other employee benefit programs and plans.
In the present case, due to information provided to the Board, the Board approved motions that led its executive director to renegotiate the Division’s contract with APCS, so state and public school employees had an option for mail-order pharmacy services, in addition to overall plan savings by lowering the rate of reimbursement to network pharmacists. This action falls entirely within the statutorily mandated duties of the Board, and the trial court did not err in concluding that the Board’s conduct did not amount to rule-making within the meaning of the APA. •
We note that the Association refers to four cases from other jurisdictions, but we believe the Eldridge decision and our court’s interpretation of Arkansas’s APA rule and rule-making provisions are sufficient to decide the situation before us. We also conclude those decisions relied on by the Association are inapposite or distinguishable. For instance, the Association cites National Association of Psychiatric Treatment Centers for Children v. Weinberger, 658 F. Supp. 48 (D. Colo. 1987), wherein the federal district court addressed the failure of the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) to provide notice about proposed changes in participation agreements that affected every participating treatment center within the CHAMPUS plan. There, the court noted that the challenge was not to the implementation of a single participation agreement, but instead was directed at CHAMPUS’s creation of a policy applicable to all participation agreements. Weinberger, 658 F. Supp. at 54. Here, on the other hand, there is only one agreement, and the Board’s proposed changes were negotiated and agreed upon by the parties to that contract; there was no unilateral imposition of the changes, as there was in Weinberger.
Next, the Association cites Failor’s Pharmacy v. Department of Social & Health Services, 886 P.2d 147 (Wash. 1994). There, the issue was whether a decision by the Washington State Department of Social and Health Services to unilaterally alter the state’s Medicaid reimbursement payment schedules to prescription drugs constituted rule-making under that State’s APA. The Washington Supreme Court held that it did, because the reimbursement schedules “constituted an order, directive, or regulation of general applicability relating to a benefit conferred by law.” Failor’s Pharmacy, 886 P.2d at 494. Because the reimbursement schedules were uniformly applied to all members of the class of Medicaid prescription providers, it was generally applicable. Unlike the Failor’s Pharmacy decision, the case before us involved the Board’s recommendations to amend a single pharmacy benefit services contract.
The Association also cites Senn Park Nursing Center v. Miller, 470 N.E.2d 1029 (Ill. 1984), for its statement that an amended “inflation-update procedure” was an agency statement of general applicability because it “does implement a policy of the agency and is not a statement dealing only with the internal management of the agency. The rifle does affect the rights and procedures available to people outside the agency.” Senn Park, 470 N.E.2d at 178. But again, as in Failor’s Pharmacy, the amended procedure was a unilateral alteration to a state Medicaid plan that affected every nursing home facility that participated in the Medicaid program. See also, NME Hospitals, Inc. v. Department of Social Services, 850 S.W.2d 71 (Mo. 1993) (wherein the Missouri Supreme Court held that a change to the formula used to reimburse Medicaid mental health provides was of “general applicability,” and that court held that the amended formula was a rule of general applicability because the Medicaid reimbursement policy applied generally to all participants in the Medicaid program, and because “[definition of the reasonable costs, manner, extent, quantity, quality, charges, and fees of medical assistance under the program must be made by rule and regulation” under Rev. Stat. Mo. § 208.153.1). NME Hospitals, 850 S.W.2d at 74.
Before leaving this point, we would be remiss to fail to mention APCS’s out-of-state cases that can be said to sup port its position that the amended agreement APCS entered into with the Division did not constitute a rule. For example, in Alabama Department of Transp. v. Blue Ridge Sand & Gravel, Inc., 718 So.2d 27 (Ala. 1998), the court held that certain amended standard specifications were not “rules” within the context of Alabama’s APA, but were rather only specifications for engineering details and materials that may be incorporated by reference into a request for bids for highway construction contracts. The Blue Ridge court further stated that the specifications did not describe the organization, procedure, or practice requirements of the Department of Transportation or constitute a regulation of general applicability, but were simply terms that could be incorporated into a contract between the Department and some other party. APCS also referred to Alca Industries, Inc. v. Delaney, 686 N.Y.S.2d 356 (1999), where that court declined to hold that bid-withdrawal procedures were rules, because “[c]hoosing to take an action or write a contract based on individual circumstances is significantly different from implementing a standard or procedure that directs what action should be taken regardless of individual circumstances; rule making, in other words, sets standards that substantially alter or, in fact, can determine the result of future agency adjudications”; see also Dep’t of Health & Mental Hygiene v. Chimes, Inc., 681 A.2d 484 (Md. Ct. App. 1996) (institution of cost containment measures did not constitute a rule because it did not change existing law, formulate new rules of widespread application, or apply new standards retroactively to the detriment of an entity that had relied upon the agency’s past pronouncements; rather, the “growth cap” applied only to a limited number of providers in their capacity as contractors with a state agency pursuant to contracts between the parties subject to termination by either side, and applied only in a particular program), and Dep’t of Transp. v. Blackhawk Quarry Co. of Florida, Inc., 528 So.2d447 (Fla. Dist. Ct. App. 1988) (standard contract specifications for building materials did not qualify as rules because they were “more in the nature of a contract term between the contractor and the [Department of Transportation] as opposed to a rule”). In sum, we hold that the trial court was correct in ruling that the Board’s actions in this matter did not constitute rule making.
For its second point on appeal, the Association contends that Paragraph 4 of the trial court’s order is erroneous “in that the amendment of the contract between the Division and APCS does not establish the terms and conditions of the plan.” That paragraph reads as follows:
The conduct of defendants in establishing the mail order provisions and lower reimbursement rates by amending the [pharmacy benefit management] contract between the Division and APCS do not constitute “rules” or “rule making” under the [APA].
Although the court’s order does not mention the word “plan,” the Association argues in its brief that this statement is in error because it “assumes that the terms and conditions of the Plan are governed by the contract between the Division and APCS.” The Association asserts that the Board, as a policy-making body, modified the “Plan” when it made its recommendations on October 17, 2001, and this action constituted the adoption of a new policy to amend the health benefits plan offered to employees. The Association further contends that, since the APA rule-making procedures were not followed, the amendment to the “Plan” was invalid. In support of its argument, the Association cites § 21-5-401, which provides for the Board’s creation and states that the Board is to “set policy and select plans and coverages for the state employee and public school personnel health and life insurance and self-funded medical programs.”
The Board responds that it did not adopt a new policy, or amend any “Plan” because there was no “Plan” to amend. Instead, as previously discussed, the Board merely recommended an amendment to an existing contract between the Division and APCS, and there was no independent or separate “Plan,” as now alleged by the Association. The evidence clearly supports the Board’s position.
It should be noted that the Association does not refer to any document it claims to be a “Plan,” and, while the Association refers to certain testimony in support of its suggestion that such a “Plan” exists, the Association never makes clear exactly what the “Plan” contains, where it is located, or what it sets out. Further, although the Association points to snippets of testimony from the current and imm ediate past executive directors of the Division and from the chairman of the Board, this testimony, taken as a whole, does not support the Association’s conclusions.
For example, John Greer, the former executive director of the Division, was asked whether there is “a written plan providing for prescription drug benefits for state employees and public school teachers”; he responded, “I would answer no, and I don’t know of any plan existing anywhere that has a written plan for pharmacy and health or life benefits.” Similarly, Sharon Dickerson, the current executive director of the Division, testified that “[t]here is not a document, per se, not one document.” Rather, she stated, “[t]he plan consists of the drugs that are on the formulary. . . . The plan consists of the relationship between the — APCS and [the Division] as related to the performance guarantees. The plan is the pre-op, the quality versus time, the step therapy, you know, the reimbursement, the claims payment. You know, it’s — the whole thing is the plan.”
The Association also refers to the testimony of John Hartnedy, the chairman of the Board, who said that it was Board policy to determine the benefits of the plan. Hartnedy also averred that DF&A required action by the Board before the reductions in pharmacy reimbursement rates could take place and before the mail-order program could be implemented. However, Hartley’s testimony never revealed what the plan was or where it was set out.
In sum, no independent, overarching “Plan” was developed by Hartnedy’s, Greer’s, or Dickerson’s testimony. Instead, the testimony and evidence clearly supports a conclusion that the prescription drug benefits plan offered to Arkansas state and public school employees consists of the terms and conditions of the pharmacy benefits management contract, not some independent “Plan” developed and ordered by the Board. The trial court did not err in granting summary judgment in favor of the Board, the Division, and APCS. Therefore, we affirm.
The Arkansas Pharmacist’s Association is a non-profit corporation that represents pharmacists throughout the State. Initially, a fifth pharmacy, Yellville Drug Store, Inc. d/ b/a Clinic Pharmacy, had joined in this litigation.
Because the changes were required to be made by rule, the concerns presented in the Missouri case are different from the instant situation. | [
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Jim Hannah, Justice.
Appellant John E. Searcy, III, appeals stice. Amended Complaint for Fraud Upon the Court and denial of his motion to recuse. We hold that this case is barred by res judicata because the fraud alleged by Searcy is a repeated allegation that he was unlawfully deprived of his property, all aspects of which were or could have been litigated in the prior action to quiet title. Searcy v. Davenport, slip op. at 1 (Ark. App. March 14, 2002). We also hold that the trial judge did not abuse his discretion in denying Searcy’s motion to recuse.
Facts
Searcy acquired forty acres in Van Burén County in 1986. Searcy then became involved in a dispute with the Internal Revenue Service over back taxes, and the forty acres were seized and sold. A deed in the record indicates that on September 18, 1995, the forty acres were deeded to the United States of America, and this same deed indicates that on June 21, 1996, the forty acres were deeded to appellees Neill Reed and Emmett Davenport by the United States in a quitclaim deed.
On June 27, 1997, appellees filed an action on the quitclaim deed to quiet title in the forty acres. On November 12, 1999, the Van Burén County Chancery Court entered a decree quieting title in appellees, specifically finding that Searcy held no interest in the forty acres. On March 14, 2001, the decision of the chancery court was affirmed. Searcy, supra.
On June 8, 2000, Searcy filed the present action for fraud on the court against Neill Reed, Emmett Davenport, Stephen E. Whitwell and Hurley Whitwell Realty Co., Inc., alleging the decree in Searcy had been procured by fraud and requested that the 1999 decree be set aside. Searcy filed an amended complaint making the same allegations, but changed the relief requested and asked for damages against appehees. However, at the hearing on the motion to dismiss in the present case, Searcy stated that he was alleging that the attempt to transfer title to appellees by the United States was fraudulent, and that he had attempted to prove this fraud in Searcy, but was prevented from doing so by the chancery court.
Searcy also moved the trial court to recuse in the present case. The motion to recuse alleges that Judge Charles E. Clawson, Jr. was biased. Searcy argued as support for the accusation of bias that Judge Clawson presided in Searcy and ruled against him on evidence and the ultimate issue of tide to the forty acres. We note that Searcy also filed a complaint with the Judicial Discipline and Disability Commission following the decision on the action to quiet title.
Res Judicata
Searcy presents the same arguments in the present action as he asserted in the earlier case in Searcy. He again asserts in the present case, as he did in Searcy, that the United States Government failed to follow lawful procedure in acquiring title, that the United States never acquired title, and that appellees therefore could not acquire title from the United States. Searcy also argues as he did in Searcy, that appellees committed a fraud upon the court by presenting the trial court with documents and making arguments to quiet title when the appellees knew that they could not acquire title because the United States had no title to pass to them.
In his answer to the petition to quiet title in Searcy, supra, Searcy asserted that the appellees had acquired no interest in the forty acres through the United States because the United States seized the forty acres from him fraudulently and without due process. He further alleged in the action to quiet title that appellees knowingly provided title documents to the trial court which the appellees knew to be fraudulent. Thus, the issue of whether appellees committed fraud in asserting a right to clear title in the forty acres was raised in Searcy, supra, and it is now being raised again in the present case.
The concept of res judicata has two facets, one being issue preclusion and the other claim preclusion. Huffman v. Alderson, 335 Ark. 411, 983 S.W.2d 899 (1998); John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993). 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. Huffman, supra. Res judicata bars not only the relitiga tion of claims which were actually litigated in the first suit, but also those which could have been litigated. Id. Further, where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id.
Issue preclusion, or collateral estoppel, bars relitigation of issues. Crockett & Brown v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). In State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000), we stated of collateral estoppel:
When an issue of ultimate fact has once been determined by a valid and final judgment, collateral estoppel precludes relitigation of that issue between the same parties in any future proceeding. E.g., 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)). In order to establish collateral estoppel, proof of the following is required: 1) the issue sought to be precluded must be the same as that involved in the prior litigation; 2) the issue must have been actually htigated; 3) the issue must have been determined by a final and valid judgment; and 4) the determination must have been essential to the judgment. Edwards, 328 Ark. at 401-02, 943 S.W.2d at 603.
Thompson, 343 Ark. at 139-40.
At the hearing on appellee’s motion to dismiss in the present case, Searcy responded to the assertion that he was attempting to rehágate the issue of fraud by stating that he believed the issue of fraud was a new issue. He stated:
In fact, the Chancery Court, when I attempted • — • when I attempted to prove the fraud in Chancery Court, I was prevented from — from proceeding down that road. It was considered a — separate issue, which I — I disagreed with. I think it — I think it had — it was an issue that was very — very germane to the — to the decision of that •— of that Court. And I don’t believe that those issues were ever considéred by the Chancery Court • — • or this issue — the — the issues I’m bringing forward in this case.
It is abundantly clear that Searcy sincerely believes that he has been defrauded of his interest in the forty acres. However, it is also abundantly clear that Searcy previously made these same assertions that appellees were acting fraudulently in the action to quiet title. He now makes the assertions again. The doctrine of res judicata precludes relitigation of claims already litigated. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). Res judicata also bars relitigation of claims that could have been litigated. Linder, supra. Thus, we hold Searcy’s attempt to relitigate the issue of fraud in the present action is barred by res judicata.
However, Searcy alleges that he may raise the claim now because the trial court in the action to quiet title refused to hear the claim. Searcy does not argue that the trial court in Searcy, supra refused to rule, but rather that the trial court refused to allow him to admit evidence on the claim of fraud by appellees. Searcy thus alleges the trial court erred in admission of evidence in Searcy, supra. All issues of trial error should have been raised in the appeal from the action to quiet title. The case was affirmed on appeal, and the doctrine of res judicata precludes Searcy’s attempt to again raise the claim of fraud in the present case.
Motion to Recuse
Searcy moved for recusal, alleging that Judge Clawson had presided in Searcy, supra, and that throughout that litigation Judge Clawson had refused to consider his claims of fraud, refused to consider the issue of whether the federal government had lawfully seized his property, and stopped him from putting on evidence of fraud. Searcy further alleged that Judge Clawson was biased in favor of appellees, and that he acted summarily and refused to provide conclusions of fact and law underlying his decision quieting title in the forty acres. The trial court denied the motion to recuse.
The rule is long established that there is a presumption of impartiality on the part of judges. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001). A judge’s decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Id; Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1992). The party seeking recusal must demonstrate bias. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Fur ther, unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. City of Dover, supra.
Searcy offers no facts to show bias. The mere fact that Judge Clawson ruled against Searcy in the prior case is not sufficient to demonstrate bias. Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001). In addition, the mere fact that Searcy filed a petition with the Judicial Discipline and Disability Commission against Judge Clawson is not sufficient to demonstrate bias. Bias must be demonstrated. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Irvin, supra. We find no abuse of discretion in denial of the motion to recuse.
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Donald L. Corbin, Justice.
Appellant Ronald A. Weastice. the Pulaski County Circuit Court of manufacture of methamphetamine, possession of drug paraphernalia with intent to manufacture, and possession of drug paraphernalia. On the first count, he was sentenced to a term of ten years’ imprisonment in the Arkansas Department of Correction. Fie received a fine in connection with the remaining two counts. Subsequently, Appellant lodged an appeal with the Arkansas Court of Appeals challenging his conviction. At the time that he lodged his appeal, Appellant also filed a motion seeking to waive the prohibition of citation to unpublished court of appeals’ opinions as set forth in Ark. Sup. Ct. R. 5-2(d). The court of appeals certified that motion to this court on August 27, 2002, on the basis that the motion dealt with the constitutionality of a rule of this court; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 -2(b) (6). We deny Appellant’s motion.
Following the certification of Appellant’s motion, this court entered an order staying the briefing schedule of Appellant’s direct appeal,, pending a decision by this court on his motion. We also ordered that the motion was to be submitted as a case and ordered briefing on the matter on September 12, 2002. Appellant avers that Rule 5-2(d)’s prohibition should be waived, because he needs to rely on certain unpublished opinions as persuasive authority in establishing his argument that there was not sufficient evidence supporting his conviction. He argues that the rule’s prohibition implicates constitutional concerns. In this regard, he raises four separate arguments. First, Appellant argues that application of Rule 5-2(d) violates his right to due process under the Fourteenth Amendment to the United States Constitution. Second, he argues that application of the rule violates his right to' due process under Article 2, §§ 8 and 21, of the Arkansas Constitution. Next, Appellant avers that the rule violates his right to effective assistance of counsel under the Sixth Amendment of the United States Constitution. Finally, Appellant claims that prohibiting him from relying on unpublished opinions violates his right to be heard through counsel under Article 2, § 10, of the Arkansas Constitution.
Before addressing Appellant’s arguments, it is helpful to consider the current context surrounding the issue of prohibiting reliance on unpublished opinions. The role of unpublished cases took on recent importance following a decision by the Eighth Circuit Court of Appeals in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). That case involved an appellant claiming that she was entitled to a refund from the Internal Revenue Service, resulting from an overpayment of her federal income taxes. The appellant waited three years to seek the refund and, in fact, mailed her claim immediately prior to the expiration of time in which she could seek the refund. The IRS did not receive her claim until one day after the expiration period. The appellant filed suit claiming that a liberal interpretation of the “mailbox rule” should be applied in her case, thus, meaning that she timely filed her claim, because she mailed it prior to the deadline.
At the time that the case reached the Eighth Circuit, there were no published opinions directly on point, but the court had addressed this precise situation in an unpublished opinion in Christie v. United States, No. 91-2375MN (8th Cir. March 20, 1992) (per curiam). There, the court rejected the parties’ argument that the “mailbox rule” provided that their claims had been filed timely because they had been mailed prior to the expiration of the three years. Because Christie was not published, however, it was not binding precedent on the court of appeals. Recognizing this problem, the court determined that its Rule 28A(i), governing unpublished opinions, was unconstitutional under Article III of the United States Constitution, because it attempted to confer on the federal courts a power in excess of the “judicial” power. In reaching this conclusion, the court stated:
Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177-78, 2 L.Ed. 60 (1803). This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991); Cohens v. Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257 (1821). These principles, which form the doctrine of precedent, were well established and well regarded at the time this nation was founded. The Framers of the Constitution considered these principles to derive from the nature of judicial power, and intended that they would limit the judicial power delegated to the courts by Article III of the Constitution. Accordingly, we conclude that 8th Circuit Rule 28A(i), insofar as it would allow us to avoid the precedential effect of our prior decisions, purports to expand the judicial power beyond the bounds of Article III, and is therefore unconstitutional. That rule does not, therefore, free us from our duty to follow this Court’s decision in Christie.
Anastasoff, 223 F.3d at 899-900 (footnote omitted). The court stated that it did not'mean to imply that the Framers anticipated publication of all opinions; rather, the Framers did not intend limited reporting to be an impediment to the precedential nature of judicial opinions. Thus, according to the court’s reasoning in Anastasoff, all decisions of the court of appeals should be regarded as binding precedent. The court then rejected the appellant’s claim, finding that it was bound by the panel’s decision in Christie. In concluding its opinion, the court noted that this case was not about a requirement that all cases be published; rather, the question resolved was the precedential effect of opinions, published or not.
The decision in Anastasoff was later vacated as moot, after the government notified the court that it intended to pay Anastasoff s claim in full. See Anastasoff v. United States, 235 F.3d 1054 (8th Cir. 2000). Thus, as the court pointed out, “[t]he constitutionality of that portion of Rule 28A(i) which says that unpublished opinions have no precedential effect remains an open question in this Circuit.” Id. at 1056. This remains the case today.
The debate surrounding “no citation” rules deepened following the Ninth Circuit’s opinion in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001). Therein, an attorney violated the court’s no-citation rule by relying on an unpublished opinion, but argued that the rule was unconstitutional in light of the Eighth Circuit’s opinion in Anastasoff. The court ordered that the attorney show cause as to why he should not be sanctioned for violating the no-citation rule. According to the opinion in Hart, the court in Anastasoff erred in determining that rules, such as the one prohibiting citation to unpublished opinions, violated the court’s judicial power conferred under Article III. According to the court in Hart, the “judicial power” clause had never before been thought to encompass a constitutional limitation on the manner in which courts conduct their business. Id. The court stated in relevant part:
[W]e question whether the “judicial Power” clause contains any limitation at all, separate from the specific limitations of Article III and other parts of the Constitution. The more plausible view is that when the federal courts rule on cases or controversies assigned to them by Congress, comply with due process, accord trial by jury where commanded by the Seventh Amendment and generally comply with the specific constitutional commands applicable to judicial proceedings, they have ipso facto exercised the judicial power of the United States. In other words, the term “judicial Power” in Article III is more likely descriptive than prescriptive.
Id. at 1161 (footnote omitted).
The court in Hart also disagreed with the contention in Anastasoff that there existed a historically-based constitutional’ requirement of binding precedent. According to the court in Hart, the notion of binding precedent developed gradually over the nineteenth and twentieth centuries. Thus, the Hart court rejected the Eighth Circuit court’s opinion in Anastasoff that a court may not decide which of its opinions will be deemed binding on itself.
This court has also recently been faced with a constitutional challenge to its rule prohibiting citation to unpublished opinions in Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). In that case, the appellant contended that Rule 5-2(d) was unconstitutional because it allowed the court to ignore its own precedent, thus exceeding its judicial authority. The appellant relied on the Anastasoff decision, but to no avail. Agreeing with the State, this court determined that a person must have suffered an injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a rule. Id. (citing Ross v. State, 347 Ark. 334, 64 S.W.3d 272 (2002)). The court then concluded that the appellant lacked such standing, as he was not seeking to rely on unpublished opinions of this court, but rather sought to rely on unpublished opinions of the court of appeals. Id. This court reasoned that because court of appeals’ decisions have no binding effect on this court, the appellant lacked standing to challenge the rule. There is no such lack of standing in the present appeal, however, as Appellant’s direct appeal is pending before the court of appeals. With this background history in mind, we now turn to Appellant’s arguments on appeal.
I. Violation of Federal Due Process
Appellant first argues that the application of Rule 5-2(d) preventing him from relying on unpublished opinions violates his right to due process of law by depriving him of access to available law to support his arguments on appeal. According to Appellant, the need to rely on unpublished opinions is particularly significant in a case such as his, because he is attempting to rely on these opinions to support his argument that there was insufficient evidence submitted at trial to support the charges against him. According to Appellant, challenges to the sufficiency of the evidence are clearly fact intensive because the law governing substantial evidence is understood best when applied to the facts in an individual case. Appellant claims that in his case there is no binding precedent that he can rely on in support of his argument; thus, he must couch his sufficiency argument in terms of differentiating his case from prior cases where the evidence was held sufficient. According to Appellant, this line of argument is necessary in order to avoid summary dismissal on the basis that his arguments are not supported by authority. Appellant then asserts that his right to be free from a conviction not supported by sufficient evidence compels the conclusion that he be allowed to rely on unpublished opinions to establish why there was insufficient evidence in his case. We disagree.
The history of Rule 5-2 demonstrates that the proscription against relying on unpublished opinions first appeared in 1974. Originally codified as Ark. Sup. Ct. R. 21, the rule applied only to opinions of this court, as there was no intermediate appellate court in existence at that time. In a per curiam opinion addressing the issue, this court stated that Rule 21 was being amended to eliminate the publication of opinions that had no precedential value. This court then set forth the standards for publication, stating:
An opinion of this court shall not be designated for publication unless:
(a) The opinion establishes a new rule of law or alters, modifies, or clarifies an existing rule; or
(b) The opinion involves a legal or factual issue of continuing public interest; or
(c) The opinion criticizes existing law; or
(d) The opinion resolves a real or apparent conflict of authority; or
(e) The opinion will serve as a useful reference, such as one reviewing case law or legislative history.
In Re: Opinions, Standards For Publication — Copies Available, 257 Ark. 1065 (1974) (per curiam). This court went on to state that those opinions not designated for publication could not be “cited, quoted, or referred to hy any court or in any argument, brief, or other materials presented to any court[.]” Id. at 1066.
Following the creation of the court of appeals, Rule 21 was again amended in 1979. In another per curiam opinion, this court stated that all of its signed opinions would be designated for publication, but then set forth criteria allowing only certain opinions of the court of appeals that “resolve novel or unusual questions” to be published. In Re: Changes in Supreme Court Rules, 265 Ark. 972, 973 (1979) (per curiam). The proscription against citing to unpublished opinions remained the same.
The rationale underlying the prohibition against citing to unpublished opinions was discussed by the court of appeals in Aaron v. Everett, 6 Ark. App. 424, 644 S.W.2d 301 (1982). There, the court stated:
An opinion which qualifies as one not designated for publication is written primarily for the parties and their attorneys. These interested parties already are knowledgeable of the facts of their case. For that reason, such nonpublished opinions often do not contain a litany or rehash of those matters which underly the legal issue(s) decided by this Court. Once again, we state that nonpublished opinions will not be considered as authority and should not be cited to this court.
Id. at 426, 644 S.W.2d at 302. See also Yockey v. Yockey, 24 Ark. App. 169, 750 S.W.2d 420 (1988).
The Court of Appeal of Louisiana similarly discussed the reasons behind no-citation rules, stating:
The reason for such rules is that citation or reliance on unpublished opinions by counsel or by courts defeats the entire purpose for which unpublished opinions are allowed — to ease the burden on judges by allowing them to decide cases involving well settled principles of law without having to spend the extensive time and effort that is required in deciding cases involving unsettled principles of law and writing full-fledged, . . . opinions.
L.M. v. J.P.M., 714 So.2d 809, 811 (La. Ct. App. 1998) (citing George Rose Smith, The Selective Publication of Opinions: One Court’s Experience, 32 Ark. L. Rev. 26 (1978)).
Here, Appellant states that there are five decisions that he relies on in his brief in support of his arguments challenging the sufficiency of the evidence. Those decisions include: Bolton v. State, 2001 WL 577062 (Ark.App.); Dodson v. State, 2001 WL 615330 (Ark.App.); Porter v. State, 2001 WL 56444 (Ark.App.); Strom v. State, 2001 WL 167822 (Ark.App.); and Zajac v. State, 1999 WL 436283 (Ark.App.). According to Appellant, these cases are either the only known decisions demonstrating the argument that he is raising, or are the most appropriate opinions available to support the proposition advanced.
Appellant, however, fails to cite to any cases that stand for the proposition that due process requires that Appellant be able to cite to unpublished opinions. Instead, he relies on the United States Supreme Court’s decisions in Fiore v. White, 531 U.S. 225 (2001), and Fiore v. White, 528 U.S. 23 (1999). Appellant opines that the litigation in Fiore demonstrates that federal due process guarantees require a minimum level of procedural fairness in the operation of state appellate review systems. Fiore involved a petitioner seeking federal habeas relief on the ground that his conviction under Pennsylvania law was based on an inconsistent application of state law. The petitioner’s argument was based on the fact that while one appellate panel rejected his argument challenging the sufficiency of the evidence, another appellate panel agreed with his co-defendant that his conviction was not supported by substantial evidence. The Supreme Court agreed with the petitioner, holding that his conviction violated due process. Fiore, however, is inapposite to the present case. While we agree that an appellant is entitled to fundamental fairness in appellate proceedings, we do not agree with Appellant’s unsupported assertion that due process requires that he be entitled to rely on unpublished opinions.
We believe it is important to note that while Appellant challenges the constitutionality of Rule 5-2(d), he does not argue that the rule should be abolished. Likewise, he does not argue that there are cases representing binding precedent that he should be allowed to rely on; rather, he simply wants to rely on certain opinions as persuasive authority. Specifically, he wants to rely on the factual circumstances of those opinions to demonstrate how the evidence was insufficient in his case. While Appellant may prefer those cases that are not published, there is nothing to indicate that Appellant is impaired in seeking appellate relief by not being able to rely on those cases. There are ample published opinions setting forth the test for sufficiency of the evidence, as well as its application.
In reviewing a sufficiency issue, the reviewing court is charged with viewing the evidence in the particular case on appeal. See, e.g., Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002); Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001); Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). This issue was discussed by Justice George Rose Smith, who stated:
The court, in adopting its selective-publication rule, sought to achieve two goals — a reduction in the volume of published opinions and a reduction in the amount of time devoted to opinion writing. The justification for the first goal lies simply in the undeniable truth that many appellate court opinions are of no precedential value. Of course, like snowflakes, no two cases are exactly alike. But, for the purpose of selective publication, the question is whether the factual differences between one case and another are of precedential value. For instance, it is a familiar rule that out-of-court declarations of an alleged agent are not admissible to prove the agency. Here it is the rule of law, not the differences in the fact situation, that is important.
32 Arxc. L. Rev. 26, 28 (emphasis added). Likewise, the evidence used to support a conviction in one manufacture case is of no moment in this case; thus, even if Appellant were allowed to cite to unpublished opinions, there is no requirement that this court agree with Appellant’s assessment that a particular case constitutes persuasive authority. See Webb v. State, 318 Ark. 581, 886 S.W.2d 624 (1994). See also Heathscott v. Raff, 334 Ark. 249, 973 S.W.2d 799 (1988). Accordingly, Appellant’s argument on this point fails.
II. Violation of this State’s Law of the Land
For his second point on appeal, Appellant argues that the prohibition of Rule 5-2 violates his right of due process under Article 2, §§ 8 and 21, of the Arkansas Constitution. While this argument mirrors Appellant’s previous one, he further avers that under section 21, the due-process right is predicated on the “law of the land.” According to Appellant, this is a reference to the law applicable at the time of the section’s adoption. Arguing for an expanded interpretation of “law of the land,” Appellant avers that the phrase must refer to the entire body of law known to govern individual rights at the time of adoption of the state constitution; thus, judges are not authorized to act beyond the powers accorded by the Judicial Article. Appellant states that the Judicial Article does not allow this court to abrogate the common law, which he argues, is precisely what this court has done in the application of Rule 5-2(d). Appellant concludes his argument on this point by stating that his right to rely on the entire body of available Arkansas law in advancing his sufficiency argument is protected by section 21’s reference to “law of the land.”
Appellant’s argument on this point mirrors the discussion set forth in Anastasoff, 223 F.3d 898. Thus, for Appellant to prevail on this theory, this court must agree that the judicial power does not encompass the ability of this court to set forth a rule regarding the reliance on unpublished opinions. At the time of this rule’s enactment, this court’s judicial power was derived from Article 7, § 4, of the Arkansas Constitution. That section was repealed by Amendment 80, but this amendment still grants this court the power to set forth rules governing all courts. Moreover, it is well settled that this court possesses the inherent authority to make procedural rules. State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990); Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). See also Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). As previously stated, this court’s rule prohib iting citation to unpublished opinions does not impede Appellant’s ability to pursue an appeal of his conviction. The Ninth Circuit stated in Hart, 266 F.3d 1155, that the federal judicial power clause has never before been construed to limit courts in the manner in which they conduct their business. The same may be said for our state’s judicial article. Accordingly, there is no due-process violation under this state’s constitution.
III. Denial of Effective Assistance of Counsel
Next, Appellant argues that the proscription of Rule 5-2(d) violates his right to effective assistance of counsel under the Sixth Amendment. According to Appellant, the determination of appellate strategy falls under the notion of effective assistance of counsel, and when counsel is restricted from relying on unpublished opinions to demonstrate what facts have previously been considered significant, counsel’s ability to represent his client is compromised. Appellant cites to no legal authority in support of this novel proposition, however. We have frequently stated that we will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001).
Appellant does attempt to analogize this case to the situation in Brooks v. Tennessee, 406 U.S. 605 (1972), where the United States Supreme Court struck down a Tennessee court rule that required a defendant wishing to testify in his own behalf to be the first witness called by defense counsel. In that case, the Court’s primary reason for striking down the rule was that it infringed on a defendant’s right to choose whether or not to testify at trial. As a secondary concern, the Court noted that the rule also implicated a defendant’s right to due process because it restricted the defendant’s counsel’s planning of the case. No such restriction can be demonstrated in this case, however. The fact that Appellant’s counsel may be restricted in arguing the facts of certain cases in'no way restricts counsel from setting forth the facts of his own case and demonstrating how they do not rise to the level of sufficient evidence. Accordingly, Appellant’s argument on this point fails.
IV. Denial of Counsel’s Right to be Heard
Finally, Appellant argues that application of Rule 5-2(d) violates his right to be heard through his counsel under Article 2, § 10, of the Arkansas Constitution. Appellant states that section 10’s provision that counsel shall be heard means, in the context of an appeal, that counsel be allowed to argue prior decisions available to the public through online research sites. Appellant avers that this court’s due-process doctrine regarding effective representation must be based on an expanded protection under section 10, rather than the protections provided under the Sixth and Fourteenth Amendments. Again, however, Appellant fails to cite to any authority or convincing argument in support of this point. We therefore decline to address the merits of this point. See Hollis, 346 Ark. 175, 55 S.W.3d 756.
For the foregoing reasons, Appellant’s motion is denied. | [
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Ray Thornton, Justice.
Appellant, First National tice. (“Bank”), appeals the trial court decision in favor of appellees, William Cruthis and Terry Cruthis, d/ b/a Cruthis Brothers, refusing to grant its motion to dismiss based on Rules 12 and 13 of the Arkansas Rules of Civil Procedure. We hold that the action was a compulsory counterclaim and must have been brought as such. Accordingly, we reverse and dismiss.
The Bank financed the Cruthises’ farming operations by making loans for the production of crops. The loans were secured by the Cruthises’ farm equipment and crops. In October and November of 1995, the Bank made a wheat-production loan to the Cruthises to finance that year’s wheat and oat crops. The loan was also secured by the crops.
In March of 1996, the Cruthises discontinued their farming operation and informed the Bank that they had no funds to continue production of the wheat and oat crop that was growing. The Cruthises surrendered the crop to the Bank to complete the harvest. After evaluating the benefits of completing the crop, the Bank decided to complete production.
As the crop approached maturity, the market price of wheat and oats increased and the Cruthises asked the Bank to enter a booking contract in order to secure the higher price. The Bank entered the booking contract with Bunge Corporation (“Bunge”) for the sale of 11,000 bushels of wheat. However, on May 21, 1996, the Cruthises told the Bank that the crop should be delivered to Stratton Seed Company (“Stratton”) on booking contracts that the Cruthises had entered prior to relinquishing possession, and the Cruthises threatened action for conversion if the crop was delivered to Bunge.
The Bank hired Mike Walton to harvest the wheat. Mr. Walton cut and delivered one trailer load of wheat to Stratton, as requested by the Cruthises and over the Bank’s objections. Mr. Walton abandoned his job, and the Cruthises rented machinery to complete production, delivering all the remaining crops to Stratton. The Cruthises disavowed any contract with Bunge, and the Bank terminated the contracts with Bunge. Bunge then paid $5,920.00 to the Bank, pursuant'to their contract, to compensate for the drop in the price of wheat.
After the harvest was completed in August of 1996, the Cruthises delivered settlement checks from Stratton payable to the Cruthises, the Bank, and Stratton. In the settlement checks, Stratton allocated rental shares and set prices over the Bank’s objection. The Bank did not negotiate these checks. The Bank then filed suit in Arkansas County Chancery Court in May, 1997, against Stratton, the Cruthises, and the Cruthises’ parents on the basis of equitable theories for the recovery of property lost in the liquidation of the Cruthises’ equipment and crops. In April 1998, the Cruthises and their parents brought this action based on conversion, fraud, tortious interference with a contract, breach of fiduciary duty, slander of tide and defamation against the Bank in Monroe County Circuit Court. The Bank responded with a motion to dismiss due to the pendency of the action in the Arkansas County Chancery Court pursuant to Rules 12 and 13 of the Arkansas Rules of Civil Procedure, as well as a general denial asserting its security interest and its rights as a secured party. The trial court denied the motion to dismiss.
The Cruthises’ causes of action for conversion, interference with a contractual relationship, and breach of fiduciary duty proceeded to trial. The trial court also ruled as a matter of law that a fiduciary relationship to the Cruthises was imposed upon the Bank. The jury was instructed upon the theories of conversion, tortious interference with a contract, and over the Bank’s objection, on breach of fiduciary duty.
The jury returned a verdict of $172,850.00, and the judge entered the judgment on November 13, 2001. This appeal arises from the trial court’s denial of appellant’s motion to dismiss on the basis of Rules 12 and 13, the trial court’s denial of appellant’s motion on the sufficiency of the evidence, and the trial court’s alleged error in instructing the jury on breach of fiduciary duty.
We first address the questions of whether the claims filed in Arkansas County and Monroe County arise out of the same transaction or occurrences and whether the claims are compulsory counterclaims that should have been brought in Arkansas County in response to the Bank’s complaint.
Rule 12(b) of the Arkansas Rules of Civil Procedure states in pertinent part:
Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state facts upon which relief can be granted, (7) failure to join a party under Rule 19, (8) pendency of another action between the same parties arising out the same transaction or occurrence. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.
Id. (emphasis added). We have held that we had no choice but to dismiss the complaint where another case is pending in a different court. Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999). Where concurrent jurisdictions are vested in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other. Id., (citing Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996)). When a case is brought in a court of competent jurisdiction, that court’s authority and control over the case continues until the matter is disposed of in the appellate court. Id. This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results. Id. (citing Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934)).
Rule 13(a) of the Arkansas Rules of Civil Procedure states in pertinent part:
A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.
Id. (emphasis added).
Linn v. Nationsbank, 341 Ark. 57, 14 S.W.3d 500 (2001), supports our conclusion that the claims at issue arise from the same set of circumstances, and therefore were compulsory counterclaims to the Bank’s complaint filed in Arkansas County. In Linn, appellants had obtained a construction loan from the bank to build a bed-and-breakfast. Construction was completed, and soon after, a dispute arose. As a result, the Linns discontinued payment on the loan and the bank responded by filing a foreclosure action in the chancery court. Two months later, the Linns filed a counterclaim, requesting that it be severed and transferred to a circuit court for jury trial. Meanwhile, the Linns filed bankruptcy in the federal district court. After that, the Linns filed a motion requesting that the court dismiss their counterclaim without prejudice. A year later, the Linns filed a complaint against the bank in the circuit court that stated that it was founded on the same action non-suited in the chancery court. It was the same claim plus new claims for breach of good faith and breach of fiduciary duty. The bank filed an answer that asserted the claims were compulsory counterclaims and were barred by res judicata or collateral estoppel. The trial court agreed and granted the summary judgment. Id.
In Linn, we held that there was “no question that the claims at issue here arose from the same set of circumstances — financing arrangements for a bed-and-breakfast facility.” Id. We further held that there was a “logical relationship . . . between the foreclosure, the counterclaim, and the subsequent complaint.” We held that the claims were compulsory counterclaims, and stated: “The purpose for this rule is to require parties to present all existing claims simultaneously to the court or be forever barred, thus preventing a multiplicity of suits arising from one set of circumstances.” Id.
In the instant case, the same “logical relationship” exists between the Bank’s financing of the farming operations, secured by the growing oat and wheat crops and the subsequent complaint by the Bank and by the Cruthises. It was the booking contracts concerning those very crops that became the subject of the dual contracts for sale of bushels of wheat and oats to both Stratton and Bunge. The purpose of booking the crops was to offset the cost of repaying the Bank’s financing of the farming operation that the Cruthises abandoned. The Bank filed suit, alleging its claim for recovery of lost property when the Cruthises liquidated their farming equipment and crops — the very crops that were the security for the financing. The Cruthises’ complaint, alleging basically the same factual circumstances as set out in the Bank’s complaint, included claims of conversion of the wheat and oat crop that was the security for the financing. The complaint alleged interference with a contractual relationship, based upon the Bank’s contract to sell to Bunge the wheat that the Cruthises argued had been sold to Stratton. Finally, the Cruthises’ complaint alleged breach of fiduciary duty, which stemmed from the Bank’s relationship with the Cruthises concerning the financing. All of these claims are inextricably tied to the same transaction. There is a “logical relationship” between the claims and the financing and liquidation of the farming operation.
In light of Linn, supra, it is clear that pursuant to Rule 12(b)(8) and Rule 13(a) the claim in Monroe County arose out of the same set of circumstances as the Bank’s complaint in Arkansas County, and therefore should have been dismissed because it should have been filed as a compulsory counterclaim to the Bank’s complaint in Arkansas County. Because we hold that the claims should have been dismissed by the trial court, we decline to reach the issues that arose during the trial in Monroe County, such as the trial court’s denial of appellant’s motion on the sufficiency of the evidence and the trial court’s alleged error in instructing the jury on breach of fiduciary duty.
We reverse and dismiss. | [
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Robert L. Brown, Justice.
Appellant Dan M. Gray appeals tipart ce. circuit court’s divorce decree dealing with division of appellee Nancy Coleman Gray’s pension plan and his retirement benefits. He urges that it was clear error to value and divide Nancy Gray’s pension plan based on contributions made rather than based on its present value. He further contends that a portion of his Civil Service Retirement pension should be exempted from division, because that portion is in lieu of Social Security benefits, which are not subject to division as marital property. We affirm the decision of the circuit court on both points.
On January 4, 1980, Dan Gray and Nancy Gray were married. Dan Gray was born on July 26, 1938, and was forty-one years old at the time of the marriage. Nancy Gray was born on January 11, 1950, and was twenty-nine years old when they married. Their age difference, accordingly, was about eleven-and-a half years.
Dan Gray started working for the Internal Revenue Service during July of 1965 and continued working with the IRS until July of 2001. His retirement when married to Nancy Gray made her eligible for a guaranteed survivor’s benefit, which could be waived by her but not by him. Nancy Gray is a special education teacher and has been since 1977. The Grays never had children, although Dan Gray has a daughter from a previous marriage.
The parties separated in early 1996. According to Nancy Gray’s testimony, the relationship was always discordant. She filed a complaint for divorce on December 1, 2000, on grounds that she and Dan Gray had been separated for over eighteen months. Dan Gray answered, admitted the grounds, and asked the circuit court for an equitable division of the parties’ marital property and debt. Later, Dan Gray filed a counterclaim for divorce and asserted his own grounds of eighteen-months separation and general indignities.
The parties accumulated substantial assets during their marriage, including a house and furnishings valued at $102,500; mineral interests on a section of real property; multiple checking and savings accounts at various banks; money market accounts; a certificate of deposit at Bank of the Ozarks valued at approximately $30,000; an AARP Capital Growth Fund investment valued at approximately $15,700; a Soloman Smith Barney account containing cash and shares of Wal-Mart, Acxiom, and Ozark Gas & Electric valued at approximately $380,000; various vehicles including a 1993 Pontiac Sunbird, a 1998 Ford Pickup, a 1997 Chevrolet Blazer, a Mazda Miata, and a boat, motor and trailer; liquidated sick leave accumulated by Dan Gray at the IRS worth $10,000; Individual Retirement Accounts of various amounts; and retirement plans (including plans not at issue in this case) . Additionally, Dan Gray had nonmarital property assets, including a farm located near Paris, Arkansas, where he was living while the parties were separated. Nancy Gray stayed in the marital home in Fort Smith during the parties’ separation and lengthy pre-divorce litigation.
The parties have two pension plans. Dan Gray participated in the federal Civil Service Retirement System benefit program throughout his career with the IRS. He now contends that a portion of his civil service pension benefits was given to him in lieu of Social Security. Since his retirement, he receives a monthly pension check in the amount of $4,033. At his death, Nancy Gray will receive the surviving spouse’s benefit, which will be a monthly check from Dan Gray’s civil service pension equal to fifty-five percent of his monthly pension entitlement, or $2,455. Dan Gray’s retirement account with the federal government is fully vested, but under the Civil Service Retirement System law, he is not able to liquidate his retirement account and receive the amount that he has contributed to it.
Nancy Gray, on the other hand, has contributed throughout her career to a retirement account administered by the Arkansas Teacher Retirement System. She must wait until retirement to be able to draw a monthly retirement benefit. Her account is also fully vested, but she is able to liquidate her retirement account if she chooses and receive the value of her contributions made plus taxes. The Arkansas Teacher Retirement System was able to detail exactly how much Nancy Gray had contributed to her retirement account at the time of the divorce hearing. Her plan was described as a “defined-benefit plan.”
At trial on October 15, 2001, Nancy Gray asked to be given $1,204 per month from Dan Gray’s Civil Service Retirement System retirement check. That amount represented one-half of her marital-property portion (21/35ths, because the parties were married for 21 years out of the 35 that Dan Gray contributed to his retirement system) of Dan Gray’s monthly retirement in the amount of $4,033. She also asked the court to include language in the decree to secure for her the “former spouse survivor annuity” in an amount of $2,455. With respect to her own pension plan, Nancy Gray stated that she had no objection to the court’s awarding Dan Gray his proportionate interest in her pension benefits when she began receiving them. She also argued that Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999), where this court held that a portion of a contractual fireman’s retirement benefit plan that replaced Social Security was included in the marital estate, foreclosed any attempt by Dan Gray to exempt the Social Security replacement portion of his retirement pay.
Nancy Gray also testified that her income from her day job teaching for the school district netted her approximately $48,000 a year, and that her income from part-time tutoring of disabled children amounted to around $2,000 a year. She told the court that her expenses outstripped her income by a considerable amount.
She added that she had worked for the school system for twenty-four years, twenty-one of which she was married to Dan Gray. She testified that she had contributed to the pension plan every year of her employment except for four years, when she paid approximately eight thousand dollars in dental work for her husband, which ordinarily would have been paid into her retirement plan.
With respect to when she would retire, she stated that she knew that her retirement system allowed her to begin drawing monthly retirement benefits after twenty-eight years with the school system, which would put her age at fifty-nine. Other testimony established that her monthly retirement benefit, if she retired at the minimum age of fifty-nine, would be approximately $1,872.39. She maintained, however, that she intended to work until she was sixty-five or sixty-seven years old (the date of social-security and medicare eligibility), because her health insurance premium was $457 a month and she needed Medicare protection.
When asked about Dan Gray’s proposal to reduce the future value of her retirement account to present value and divide that amount by one-half, she said: “I will be penalized by doing it the way that he wants to do it. He wants to project my fifty-three or thirty-five thousand dollars to a hundred and seventy-one thousand and me give him half my assets, current assets at this time.” She admitted that because her retirement plan was a defined-benefit plan, if she died between the time of the divorce and the time of retirement, the benefits would pass to no one.
Dan Gray argued on the other hand that the age difference between Nancy Gray and him made her proposed division of the pension plans fundamentally unfair. He contended that if the circuit court adopted her proposal that, based on the actuarial tables predicting his and her life spans, he would only enjoy the marital part of her retirement plan for approximately eight years. By contrast, if she survived to her life expectancy, she would enjoy payments under his pension plan for over thirty-one years. He asked the court to reduce her pension to present value of what she will receive in retirement benefits and give him an immediate payment of one-half of that amount. Dan Gray also argued that it would be unfair not to offset the Social Security replacement portion of his retirement pay and not consider that marital property, since Nancy Gray had social security benefits which were off-limits for the purpose of dividing the marital property.
Donna Young, a certified financial planner for Morgan Stanley, testified at trial as an expert for Nancy Gray. She'stated that the liquidated value of Nancy Gray’s pension account would be approximately $55,000. When asked about the methods used by Dan Gray’s expert, Dr. Robert Marsh, and the results he obtained, she stated that the assumptions made by Dr. Marsh were faulty. First, she stated that Dr. Marsh assumed that her client would retire at her earliest opportunity, age fifty-nine, when it was not likely in her opinion that she would do so until age sixty-five or sixty-seven because of the high cost of medical insurance.
Ms. Young stated that a valuation of Nancy Gray’s pension plan using an “immediate offset” method, which would reduce the future value of her pension account to present value and give Dan Gray one-half of its value, would be unfair to her client, because she may not receive the full benefit of her pension plan due to a premature death. She added that a seqond method that could be used to divide the property equitably would be to let each party simply collect his or her own pension, and the non-owning spouse would receive one-half of the amount received. This method is known as the “deferred distribution method.” Under this method, she calculated that Nancy Gray would receive $1,203.85 per month until Dan Gray died, and then the survivor benefit would activate, and she would receive approximately $2,455 per month.
Ms. Young testified about the financial interest that both parties had in advocating their proposed methods of valuing Nancy Gray’s pension plan. She testified that it would be in Dan Gray’s interest, because of the age discrepancy between them, to use present value calculations and ask for an immediate distribution, but not in Nancy Gray’s interest due to the possibility of her premature death. She said, with respect to Nancy Gray’s premium plan, “ . . . if Nancy were to quit today and collect her money that she has in her plan which is fifty-five thousand, then half of that could be used today to offset Nancy’s future pension benefits.” She went on to say that Dan Gray would receive, under that method, one-half of eighty-nine percent of the value of the current value of her retirement account. (The eighty-nine percent was used because she was married to Dan Gray for eighty-nine percent of the time that she had worked for the school system.) In return, she would be entitled to the marital portion of Dan Gray’s retirement benefits that he was currently receiving, followed by the surviving spouse benefit when he died. She concluded: “I’m not sure why [Nancy Gray] should be penalized for the age discrepancy.” With respect to the effect of the age difference on the marital distribution, she added: “[T]hat was a decision that they both made when they got married. They knew they were eleven years different in ages and I know that it may be unfair that Dan has to wait, but Nancy shouldn’t be penalized for that.”
Dr. Robert E. Marsh, an economist, testified for Dan Gray by way of deposition and gave his opinion on how the parties’ pensions might be equitably divided. He first testified that the full monthly retirement benefit that Dan Gray would receive was approximately $4,464 per month.
He further stated that he had calculated the present value of Nancy’s pension plan using data provided by the Arkansas Teacher Retirement System. Under his calculations, Dan Gray would be expected to live approximately seventeen years from the date of the hearing, and Nancy Gray would be approximately seventy years old when he died. Dr. Marsh also provided some calculations that treated a portion of Dan Gray’s retirement benefit as being equivalent to Social Security. With respect to the age difference of the parties, he testified:
I don’t think Dan Gray is going to be able to draw anything on Nancy Gray’s teacher retirement benefit unless she predeceases him. Her life expectancy is so much longer. . . . She has an additional thirty years of life expectancy in comparison to Dan’s life expectancy of seventy years, so the likelihood of her predeceasing Dan is slim and none, which means that he is not going to be eligible for any sort of retirement benefit out of the Arkansas Teacher Retirement System. . . .
On October 22, 2001, the circuit court issued a letter opinion. The opinion first granted Nancy Gray a divorce based on the eighteen-month separation and usage of her maiden name, Coleman. The opinion next divided the parties’ property. The court’s reasoning regarding the valuation of Nancy Gray’s pension largely followed the recommendation of Ms. Young:
The current value of Nancy Coleman Gray’s pension plan is $55,321. Testimony indicated that 21.5/24 of the pension plan is marital property. Ordinarily, a division using this figure would be very beneficial to the Plaintiff and accordingly very unfavorable to the Defendant. However, considering the age difference of the parties, the Court has determined that this is how I should divide the Plaintiffs pension. The Court is awarding the Defendant one-half of $55,321.00 or $27,660.50. This award will be made by adjusting the division of the IRA accounts later in this letter opinion so that as far as the Plaintiff and her pension plan are concerned, she will receive it in its entirety. Because a division of this nature is extremely advantageous to the Plaintiff, the Court is dividing 100% of the current value of the pension rather than 21.5/24, or 89%.
The opinion also directed that Nancy Gray be named the beneficiary of the surviving spouse’s benefit at the time of Dan Gray’s death, in order to allay her fears of the benefit’s being challenged if he remarried.
The opinion explained the circuit court’s reasoning on the division of Dan Gray’s pension. The opinion stated that his monthly benefit from his Civil Service Retirement System pension was $4,033 per month and recognized that Nancy Gray’s request of a percentage of his Civil Service pension, or $1,204 per month, was based on their years of marriage. The court noted that the value of the pension payment would be approximately $4,440 per month but for the cost of funding the future survivor’s benefit. The court held that the amount that it took to fund the survivor’s benefit, approximately $407 a month, should be deducted from the amount that Dan Gary was required to pay. This led the court to the conclusion that Nancy Gray should be paid $797 per month.
The court then explained its belief that this division of property balanced the equities in the case:
The Court recognizes that by deducting the $407.00 from Plaintiffs requested $1,204.00 per month, the Defendant is benefitted by approximately $121.00 per month. However, based on the Court’s division of the Plaintiffs pension which is extremely beneficial to the Plaintiff, this benefit to the Defendant is equitable. ... I divided the pension this way to address the Defendant’s concerns about the age difference of the parties, the Plaintiffs anticipated retirement date, and the parties’ life expectancies.
Ultimately, the court determined that Nancy Gray was to pay $25,137.27 to Dan Gray to make the accounts divide evenly. A decree was entered later reflecting the findings and conclusions of the letter opinion.
I. Nancy Gray’s Pension Plan
The first issue on appeal is whether the circuit court’s decision to award Dan Gray one-half of the current value of Nancy Gray’s pension plan, based on her contributions as opposed to the present value of full pension benefits, was clearly erroneous.
This court has previously discussed the standard of review for the division of property in a divorce case:
On appeal, chancery cases, such as divorces, are reviewed de novo. With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; the division of property itself is also reviewed, and the same standard applies. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has .been committed. In order to demonstrate that the chancellor’s ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. We give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be given their testimony.
Skokos v. Skokos, 344 Ark. 420, 425, 40 S.W.3d 768 (2001) (citations omitted).
The Arkansas marital-property statute requires that marital property be divided evenly between the parties unless the circuit court finds that such a division would be inequitable. Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 2002). If the circuit court decides that an even division is inequitable, it is required to make a written finding to that effect and explain its reasoning. Ark. Code Ann. § 9-12-315(a)(l)(B) (Repl. 2002). The statute lists nonexclusive factors that the circuit court may consider in modifying an even distribution, including the length of the marriage; the age, health, and station in life of the parties; the occupation of the parties; the amount and sources of income available to the parties; the parties’ vocational skills; their employability; the estate, liabilities, and needs of each party; the opportunities before them to acquire further assets and income; and the parties’ past contributions in the acquisition and maintenance of marital property. Ark. Code Ann. § 9-12-315(a)(l)(A)(i)-(vii) (Repl. 2002). “Marital property” includes payments made under a deferred compensation plan and individual retirement accounts as well as survivor benefits. Ark. Code Ann. § 9-12-315(b)(l) (Repl. 2002); see also Skelton v. Skelton, 339 Ark. 227, 231, 5 S.W.3d 2, 4 (1999).
The issue before us is what method should be used to value Nancy Gray’s pension. This case deals with the valuation of a vested pension plan, which is a type of retirement plan. See Black’s Law Dictionary 115 (7th ed. 1999) (defining “pension” as “A fixed sum paid regularly to a person (or to the person’s beneficiaries) esp. by an employer as a retirement benefit.”) There are two relevant types of retirement plans:
If the employee’s benefits are defined as a certain amount per period of time, the plan is known as a defined benefit plan. It is not necessary that the amount of the benefit be known, and many plans compute this amount using a formula. By contrast, if the employee and the employer both make contributions to a retirement plan account, and the employee’s benefits are expressed in terms of the present balance in his account, the plan is known as a defined contribution plan.
Brett R. Turner, Equitable Distribution of Property § 6.02 at 289 (2nd ed. 1994) (emphasis in original). Turner further notes:
While a defined contribution plan expresses the employee’s interest in terms of the balance remaining in the plan account, the employee need not necessarily receive his or her interest in that form. Many defined contribution plans use the balance in the plan account on the date of retirement to purchase an annuity, which will yield periodic benefit for the employee’s entire remaining lifetime. The distinction between defined benefit and defined contribution plans therefore lies in how the plan benefits are defined before retirement, and not in the form in which the benefits are received after retirement.
Turner, supra, § 6.02 at 289 n.4 (emphasis added) (citations omitted).
There are several ways of valuing a pension plan. One is the “immediate offset” method, which is advocated by Dan Gray in this case and which consists of reducing the lifetime value of the pension benefits to present value and awarding the marital share of that present value to the non-owning spouse in the form of cash or other property. Turner, supra, § 6.11 at 347. The other method is the “deferred distribution” method, where the trial court does not divide the pension immediately but instead determines a percentage of the monthly pension benefit that the non-owning spouse is entitled to; the non-owning spouse then enjoys that share when the owning spouse begins drawing retirement. Turner, supra, § 611 at 347.
The Connecticut Supreme Court has outlined the advantages and disadvantages of both methods:
The offset method has the advantage of effecting a “clean break” between the parties. It also avoids extended supervision and enforcement by the courts.
The drawback to the offset method is that it places the entire risk of forfeiture before maturity on the employee spouse. Further, this method is not feasible when there are insufficient other assets by which to offset the value of the pension; or where no present value can be established [by expert testimony] and the parties are unable to reach agreement as to the value of the pension. If there are sufficient other assets, however, several courts have favored this approach.
Alternatively, under the “reserved jurisdiction” method [or deferred distribution method], the trial court reserves jurisdiction to distribute the pension until benefits have matured. Once matured, the trial court will determine the proper share to which each party is entitled and divide the benefits accordingly.
Both the present division and reserved jurisdiction methods have the advantage of imposing on the parties equally the risk of forfeiture, but have the cost of prolonging the parties’ entanglement with each other. These methods are favored when there are insufficient assets to offset the award of the pension to the employee spouse alone or when the evidence is inadequate to establish present value.
Krafick v. Krafick, 234 Conn. 783, 802-804, 663 A.2d 365, 374-375 (1995) (citations and quotations omitted).
The proper method for valuing a defined-contribution plan is by ascertaining the current account balance, or “total contributions.” As long as the court recognizes appreciation in prior contributions, the total-contributions method can properly be used to value a defined-contribution plan. Turner, supra, § 6.12 at 374-375.
Mr. Turner in his treatise notes that, although it is generally disfavored, the total-contribution method of determining value is proper in an appropriate defined-benefit plan case. “When there is no better evidence in the record, the number of decisions reluctandy accept a value based upon the total contributions method.” Turner, supra, § 6.12 at 374 (citing Addis v. Addis, 288 Ark. 703 S.W.2d 852 (1986)). As Mr. Turner notes, our court has seen fit to use the total-contributions method in an appropriate case. See Addis v. Addis, supra. In Addis, this court observed that the total-contribution method chosen was a sound alternative under the facts of that case:
Three basic methods are available for disposing of vested but non-matured retirement interests upon divorce: (1) assign the whole of the interest in the plan to the employee, and assign assets of equivalent value to the other spouse; (2) divide the interest in the plan itself on a percentage formula; and (3) reserve jurisdiction until retirement to divide the actual monetary benefit when received. See B. Goldberg, Valuation of Divorce Assets, § 9.5 at 254. The chancellor chose the first method, an appropriate method. The appellant does not question the method, but instead questions the valuation. However, at trial no actuarial valuations were offered. The trial court could value the rights only upon the evidence presented, which was the amount of cash that appellant had contributed to the fund at the time of the hearing. We affirm the trial court’s action.
Addis, 288 Ark. at 207-208, 703 S.W.2d at 854. In the case before us, however, Dan Gray did present ample evidence of the value of the plan reduced to present value, which distinguishes the facts in this case from the facts in Addis.
Hence, the question becomes whether the circuit court abused its discretion in treating Nancy Gray’s pension as a defined-contribution plan. In other words, was the circuit court’s decision arbitrary or groundless?
We conclude that from the testimony presented at trial, Nancy Gray’s pension plan could be considered a defined-contribution plan. First, Nancy Gray testified that she would be able to liquidate the pension and receive exactly what she contributed to it. Indeed, she referred to the retirement plan as if it were an account, which is indicative of a defined-contribution plan, rather than speaking in terms of a specific benefit tied to a period of time in the future, which is indicative of a defined-benefit plan. Secondly, the Arkansas Teacher Retirement System was able to tell her precisely how much she personally had contributed to her plan, which makes the plan appear to be more like an account and hence a defined-contribution plan. Nancy Gray did testify that she would not be allowed to withdraw a monthly retirement check until she had been employed with the school system for twenty-eight years, but this is relevant only to how the plan is treated after retirement, which, as Mr. Turner notes in his treatise, is not relevant. The question is how the plan is treated before retirement. On the other hand, running contrary to this reasoning is the Arkansas Teacher Retirement System’s letter, which states that her plan is a “defined-benefit program.”
The circuit court’s opinion specifically stated that the total contribution method was used because of the age difference between the parties. In deciding as it did, the court met Dan Gray’s concern about the length of his enjoyment of her pension fund by giving him an immediate cash benefit in the amount of half of the current value of her pension contributions. Dan Gray, after all, requested an immediate payment of value, although he advocated a division of present value, not total contributions. A rough estimate of the present value of Nancy Gray’s pension plan, according to Dr. Marsh, was approximately $173,000, meaning he would be entitled to approximately $87,000 from her marital estate. This offset would have reduced Nancy Gray’s assets considerably. Plus, as the circuit court noted, there was no assurance that she would live to full life expectancy and be able to enjoy full retirement benefits. We conclude that the circuit court exercised its discretion in a good-faith effort to balance the equities of the case. The circuit court’s decision was not arbitrary; nor was it groundless. There was no abuse of discretion by the court.
II. Dan Gray’s Pension Plan
Dan Gray next asserts that $1,365 of the $4,033 received each month as his retirement benefit under his Civil Service Retirement System pension is paid to him in lieu of Social Security benefits. He points out that the reason that he does not receive Social Security benefits is because he participates in the Civil Service Retirement System, and participants in that program are foreclosed from receiving benefits under Social Security. He argues that it would be unfair not to exempt this portion of his pension which corresponds to Social Security benefits.
Nancy Gray contends, in opposition, that Dan Gray had a choice of whether to enter the Civil Service Retirement program or the Federal Employees Retirement System, which includes Social Security, and that she should not be penalized because of his choice. She again emphasizes the circuit court’s balancing of the equities in this case, which involved considerable assets accu mulated over a lengthy period of marriage and separation. She argues that Arkansas case law controls this case, specifically Skelton v. Skelton, supra, and that Dan Gray’s argument urges this court to adopt the reasoning in cases that this court has specifically rejected. She also points out that the United States Congress has provided for the treatment of civil service pensions as marital property and has refused to exempt them in the same way that Social Security has been exempted. She claims that this lack of action is indicative of Congressional intent and implies that the adoption of Dan Gray’s position may well violate the Supremacy Clause of the United States Constitution.
Our standard of review is de novo, as the issue involves a legal conclusion by the circuit court that the pension benefits were part of the marital estate under the Arkansas marital property statutes. See Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). Moreover, we beheve that there is an Arkansas case directly on point. In Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984), this court treated a federal employee’s civil service retirement pension as marital property. There, the wife of a former administrative law judge for the Social Security Administration claimed a marital interest in her husband’s civil service retirement benefits. The trial court held that the pension plan was not marital property, and this court reversed, stating:
The husband’s retirement plan is subject to division. Congress has wisely anticipated that this treatment would be given by the various state courts (see 94 A.L.R..3d 176) through the passage of 5 U.S.C.A. § 8345(j)(l) (1976), to wit:
Payments under this subchapter which would otherwise be made to an employee, Member or annuitant based upon his service shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment or legal separation. Any payment under this paragraph to a person bars recovery by any other person.
By holding these retirement benefits to be marital property, we are not laying down a rigid and inflexible rule for the future. § 34-1214 expressly provides for equal distribution “unless the court finds such a division to be inequitable.” Any exception to the rule of equal distribution will always depend upon the specific facts as reflected by the trial court’s findings and conclusions.
Gentry, 282 Ark. at 414-415, 669 S.W.2d at 948. See also McDermott v. McDermott, 336 Ark. 557, 562, 986 S.W.2d 843, 845 (1999) (recognizing that in Gentry, “we held that a husband’s civil service retirement benefits were marital property subject to distribution.”). This court thus held in Gentry that under the congressional act, a trial judge is permitted to consider Civil Service Retirement benefits as marital property, if appropriate under the equities of the specific case.
The United States Code section cited in our Gentry decision, although it was amended by Congress in 1994, nevertheless appears to apply to the case at hand as well. The pertinent section which governs Civil Service Retirement reads:
(j)(l) Payments under this subchapter which would otherwise be made to an employee, Member, or annuitant based on service of that individual shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of—
(A) any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation .... (emphasis added).
5 U.S.C. §8345(j)(l) (2000). The circuit court’s divorce decree expressly provided that the payments to be made to Dan Gray, a member of the Civil Service Retirement System, should be made in part to Nancy Gray. The decree thus falls directly within the purview of the statute.
Moreover, in Skelton v. Skelton, supra, this court rejected an argument that a fireman’s pension fund was deserving of the same protection as Social Security and instead held that the pension was marital property. In Skelton, the husband had been a Fayetteville firefighter for approximately thirty years at the time of the divorce and had contributed to a relief and pension fund during his employment. Under the terms of the plan, the husband was not allowed to contribute to Social Security. He was thus ineligible for Social Security benefits and was covered only by the fireman’s pension plan. The trial court held that the pension benefit was marital property and awarded his ex-wife half of the marital portion of his retirement benefit.
On appeal, the husband argued that the retirement benefit was made in place of Social Security benefits and, therefore, should be treated the same as Social Security and exempted from the marital estate. This court disagreed:
We recognize that Mr. Skelton appears to be placed at a disadvantage because he was prohibited from contributing to social security under his fireman’s pension plan; however, the minority view on which he relies does not take into account the fundamental difference between social security and pension plans. A Florida court makes this distinction in Johnson v. Johnson, 726 So.2d 393 (Fla.Dist.Ct.App.1999). Florida’s equitable distribution statute provides that “[a]ll vested and non-vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” Fla. Stat. Ann. § 61.076(1) (West 1997). In Johnson, the court held that the husband’s social security replacement plan was a marital asset. Id. The Johnson court, persuaded by the decision in Mack v. Mack, supra, further reasoned that social security replacement pension plans were not so similar to federal social security benefits as to render them exempt from the Florida statutes.
In the Mack case, the Wisconsin Court of Appeals provided the following rationale:
Although an employee’s social security account increases in relative value over his working life, social security is not a property like a pension. It is a system of social insurance. ‘To engraft upon the social security system a concept of accrued property rights would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands.’
Id. (citing Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)).
Since the courts are divided on this issue, we further examine the purposes behind social security benefits and pension plans. In the United States Supreme Court case of Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), a railroad-benefits case, the Court discussed the contractual nature of pension plans vis-a-vis the noncontractual nature of social security. Writing for the majority, Justice Blackmun states:
Like Social Security, and unlike most private pension plans, railroad retirement benefits are not contractual. Congress may alter, and even eliminate, them at any time. This vulnerability to congressional edict contrasts strongly with the protection Congress has afforded recipients from creditors, tax gatherers, and all those .who would ‘anticipate’ the receipt of benefits. . . .
Id. The possibility of changes in benefits is expressly stated in the Social Security Act: “The right to alter, amend, or repeal any provision of this [Act] is reserved to Congress.” 42 U.S.C. § 1304 (1994). This language emphasizes the difference between social security benefits and pension plans. As the Mack case points out, social security benefits are a type of public welfare, or social insurance. Social security benefits provide revenue or income; however, social security is not contractual in nature and does not become a property interest. It is subject to change by congressional act at any time.
According to Hisquierdo, most private pension plans are contractual agreements between the employer and employee. In Mr. Skelton’s case, the contributions to his pension plan were made during the marriage and became a property interest during the marriage. See Ark. Code Ann. § 9-12-315; Day, supra. Mr. Skelton’s pension was not designed to replace noncontractual social security benefits; rather, it provided a pension benefit which exceeded that of the social security system. We note that Ms. Skelton, by foregoing compensation which would otherwise have been received during marriage, contributed indirectly to the pension plan. Because the purposes of social security and the retirement plan are fundamentally different, they are not interchangeable. Therefore, we affirm the trial court on this issue.
Skelton, 339 Ark. at 232-234, 5 S.W.3d at 4-5.
Dan Gray urges that the Skelton case is distinguishable because (1) the firefighters’ plan was contractual, and (2) in Skelton, the non-owning spouse would not receive Social Security. We disagree that those factors render Skelton inapposite precedent. The essence of the Skelton decision is that pension plans differ from Social Security, which is more in the nature of public welfare or social insurance. The Civil Service Retirement pension, albeit established by congressional act, establishes a pension plan and is not social insurance. The policies governing the two programs are entirely different. Moreover, our case law is clear, as evidenced by the Gentry and McDermott decisions discussed earlier in this opinion, that the circuit court had statutory authority to divide Civil Service Retirement benefits. Congress could easily decide that Civil Service Retirement benefits should not be subject to division as marital property. It has not done so.
As for Dan Gray’s characterization of Nancy Gray’s receipt of both Social Security and retirement benefits as “unfair,” he made a choice to contribute to the Civil Service Retirement System rather than Social Security, and the Civil Service Retirement System provided more benefits. Moreover, he had a chance to convert his retirement system over to a Social Security eligible system in 1982. He testified that he studied the matter and decided not to join the new plan.
We cannot say the circuit court abused its discretion in ruling as it did.
Affirmed.
Corbin, J., dissents.
Nancy Coleman Gray has been using her maiden name, Coleman, since her divorce but, for ease of reference, she will be referred to as Nancy Gray in this opinion.
Both Dan and Nancy Gray testified that she was age 27 and Dan Gray was age 38 when they married, but that does not correspond with their birthdates.
Unless otherwise noted, the dollar amounts given in this opinion are approximate, as the circuit court noted in its decree. | [
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Per Curiam.
Terrick Nooner was found guilty by a jury m. capital murder and sentenced to death. We affirmed. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Mr. Nooner subsequently filed in the trial court a petition pursuant to Criminal Procedure Rule 37. The petition was denied, and the order was affirmed. Nooner v. State, 339 Ark. 283, 4 S.W.3d 497 (1999).
Now before us are eight pro se motions filed by Nooner that pertain entirely to the original appeal of the judgment of conviction, which was affirmed approximately seven years ago. Only two of the motions, the motion to lift stay of execution and the motion for a copy of the mandate issued on affirmance of the judgment, are cognizable by this court at this time. The remaining motions are dismissed inasmuch as this court no longer has jurisdiction of Mr. Nooner’s case. As we are without jurisdiction to revisit the issues which were raised, or which could have been raised, in the direct appeal, our clerk is directed to file no further motions from petitioner Nooner that pertain to the direct appeal.
The motion to lift the stay of execution is moot because there is no stay of execution as such in effect at this time. The circuit court was obligated to vacate the stay of execution it issued when petitioner’s Rule 37 petition was affirmed on appeal. See Ark. R. Crim. P. 37.5(g)(2). The State in its response to the motion states that it does not intend to request that the Governor set another execution date until such time as petitioner has exhausted his federal remedies.
The motion for a copy of the mandate at public expense is denied. A petitioner is not entitled to a free copy of material on file with this court unless he or she demonstrates some compelling need for specific documentary evidence to support an allegation contained in a petition for postconviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985). Indigency alone does not entitle a petitioner to photocopying at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). Petitioner here has not demonstrated a compelling need for a copy of the mandate.
Motion to lift stay of execution moot; motions for copy of mandate at public expense denied; motions for other relief dismissed. | [
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Per Curiam.
This is a death case. Sanders’s death seniam. 'affirmed by direct appeal to this court. Sanders v. State, 318 Ark. 328, 878 S.W.2d 391 (1994). Appellant Raymond C. Sanders, Jr., through his attorney, Jeff Rosenzweig, now petitions for rehearing or clarification of this court’s recent opinion of February 13, 2003, reversing the judgment of the circuit court denying Sanders a Rule 37 hearing. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). Sanders claims in his rehearing petition that this court denied his request for appointment of counsel for the evidentiary hearing on remand on the basis that he was already represented by competent counsel. He maintains, however, that his counsel served without compensation at the trial level. He further contends that in order to comply with Ark. R. Crim. P. 37.5, appointment of counsel is required.
We noted in our recent Sanders opinion, the policy behind Rule 37.5 and Sanders’s status regarding representation by counsel:
As a final note, Appellant asks this court to make a determination of whether the protections of Rule 37.5 should be applied to him in this case. Rule 37.5, which became effective on August 1, 1997, provides the method for pursuing postconviction relief in death-penalty cases. The rule evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp.1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Appellant recognizes that the rule is inapplicable to his case, because he became eligible to file his Rule 37 petition prior to the effective date of Rule 37.5. See Rule 37.5(k). He argues, though, remanding his case without providing him counsel under Rule 37.5 amounts to a denial of equal protection in violation of the Fourteenth Amendment and Article 2, § 18, of the Arkansas Constitution. Although this court in Wooten, 338 Ark. 691, 1 S.W.3d 8, addressed the application of the principles of Rule 37.5 to a petition filed before the rule’s effective date, we are unaware of such a need in the instant case. It is apparent from the record before us that Appellant is already represented by qualified counsel; thus, any discussion of appointing counsel pursuant to Rule 37.5 is moot.
Sanders, 352 Ark. at 28-29, 98 S.W.3d at 43.
The issue now presented to this court is a payment issue. Counsel for Sanders advises this court that he is not retained counsel but has served pro bono publico. He also indicates that failure to be formally appointed counsel under Rule 37.5 procedure would jeopardize protection against multiple federal habeas corpus proceedings in this case. It is true that Sanders’s eligibility to file a Rule 37.5 petition predates the effective date of the rule. Nevertheless, this court has afforded Rule 37.5 protections to similarly situated petitioners where there was some procedural defect. See, e.g., Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001) (failing to meet stringent filing deadlines for Rule 37 review not dispositive of case when appellant believed he was represented by counsel and was not); Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999) (pre-Rule 37.5 case; Rule 37 petition was late due to confusion over representation by counsel; held good cause was established “in the narrowest of instances where the death penalty was involved.”).
We direct the circuit court to commence proceedings to determine appointment of counsel in this matter pursuant to Ark. R. Crim. P. 37.5. | [
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Jim Hannah, Justice.
Appellant Chan Holcombe appeals a stice. of dismissal entered on May 8, 2002. Holcombe alleges that the trial court erred in denying his February 21, 2002, motion to proceed pro se, and in permitting discharged counsel to sign and approve the judgment and order dismissing the case. Holcombe provides no convincing authority for his argument that once he informed the trial court that he had discharged his attorney, the trial court erred as a matter of law in denying his motion to proceed pro se and to enter an order relieving his attorney of any further responsibility to this case. This assignment of error will not be considered by the court.
We do not reach the issue of whether the trial court was clearly erroneous in denying Holcombe’s motion to proceed pro se because no transcripts of hearings or evidence of any form showing why the trial court denied the motion has been provided by Holcombe. We further hold that no objection was made below to Holcombe’s counsel signing and approving the judgment and order of dismissal. Because the issue was not objected to or raised below, it will not be heard on appeal.
Facts
On February 21, 2002, Holcombe filed a motion to proceed pro se, informing the trial court that he had discharged his attorney and requesting the trial court to enter an order relieving his attorney. On March 4, 2002, the trial court entered an order denying the motion to proceed pro se and relieve counsel. No hearing was held on the motion to proceed pro se. On April 15, 2002, a joint motion of dismissal with prejudice was signed and filed by counsel for the appellee and the counsel Holcombe asserts he had discharged.
This case was settled and dismissed by the parties. No trial was held; therefore, no jury was empaneled. All matters at issue were heard by the trial court alone. The standard of review on appeal is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001); Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997).
Holcombe alleges that the trial court erred when it summarily denied his motion to relieve his counsel and proceed pro se. He cites the commentary to Model Rule of Professional Conduct 1.16, which provides that “a client has a right to discharge a lawyer at any time, with or without cause. ...” Model Rule of Professional Conduct 1.16 (2002). Holcombe argues that this statement in the commentary supports his argument that he has the right to discharge his attorney and proceed pro se, and that the trial court erred as a matter of law when it denied his motion.
Holcombe acknowledges Ark. R. Civ. P. 64 (2002), which controls addition and withdrawal of counsel and provides that counsel may not withdraw absent permission of the court. However, citing Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996), Holcombe argues that under this court’s interpretation, Rule 64 is aimed at protecting the client’s interests, and the issue of withdrawal is to be viewed from the point of view of the client, not the attorney.
The issue presented is not whether Holcombe has a right to discharge his attorney or whether Rule 64 is to be interpreted from one viewpoint or another, but rather whether the trial court erred as a matter of law in denying Holcombe’s motion to proceed pro se when he informed the court .he had discharged his attorney. Holcombe simply offers no convincing authority to support his argument that a litigant must be allowed to proceed pro se when a litigant discharges his or her attorney and moves to proceed pro se. This court has repeatedly held that we do not consider assignments of error that are unsupported by convincing authority. Bonds v. Carter, 348 Ark. 591, 75 S.W.3d 192 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001); Ark. Pub. Defender Comm’n v. Greene County, 343 Ark. 49, 32 S.W.3d 470 (2000).
Holcombe, however, further argues that the trial court also erred in denying his motion because he provided the trial court proof that he had previously represented himself successfully in this suit pro se and that he wished to again proceed pro se because his counsel was not adequately pursuing his case. Holcombe’s motion makes no assertion that his counsel was performing inade quately. Nothing in the abstract shows that the issue of adequacy of counsel was raised before the trial court. An issue cannot be raised for the first time on appeal. Coles v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002).
Additionally, Holcombe is arguing that the trial court was clearly erroneous in denying his motion to proceed pro se. We cannot reach this issue because the record and abstract are devoid of any proceedings or pleadings that show why the trial court denied the motion. Without a record of some form, we cannot conduct a meaningful review of Holcombe’s argument. This court has repeatedly stated that it is the appellant’s burden to produce a record sufficient to support his arguments on appeal. Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997).
Finally, Holcombe argues that the trial court erred in permitting his counsel to sign and approve the judgment and order of dismissal. The motion to proceed pro se was denied by an order entered March 4, 2002. The judgment and order of dismissal was entered May 8, 2002, in other words, some eight weeks after the trial court denied Holcombe’s motion to proceed pro se. Based on the trial court’s denial of the motion to proceed pro se, Holcombe’s attorney was not relieved and was still serving as Holcombe’s attorney. In any event, Holcombe does not argue, and the abstract does not reveal that Holcombe objected or ever brought this issue to the attention of the trial court. The trial court was never given an opportunity to consider the issue. It is settled law that for a trial court to have committed reversible error, timely and accurate objections must have been made, so that the trial court was given the opportunity to correct the error. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993); Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980). There is no indication this issue was raised below, and it will not be considered on appeal for the first time.
Affirmed. | [
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Ray Thornton, Justice.
Petitioner, Chad Gondolfi, ticpetition e. writ of prohibition on Benton County Circuit Court, naming Judge David S. Clinger as respondent. This petition arises from the trial court’s order denying a motion to dismiss based upon violations of the speedy-trial provisions of Ark. R. Crim. P. 28 and the Interstate Detainer Act, codified at Ark. Code Ann. § 16-95-101 et seq. (1987). In his petition, petitioner seeks a writ of prohibition on his prosecution and a reversal of the trial court’s denial of his motion to dismiss. Petitioner argues that the State has failed to bring him to trial within the 365 days required under Ark. R. Crim. P. 28.1, and that the State failed to bring him to trial within the 180 days required under the Interstate Agreement on Detainers. We find no merit in petitioner’s argument and deny the writ of prohibition challenging the jurisdiction of the trial court.
I. Facts
Petitioner was charged by an amended felony information for having committed felonies in Arkansas on April 2, May 13, and June 6, 2000. The June 6 charges include the sale of a controlled substance and simultaneous possession of drugs and a firearm.
On June 26, 2000, and on July 12, 2000, petitioner failed to appear for his arraigninent. On July 12, 2000, the trial court issued a bench warrant for his arrest. Sometime before August 22, 2000, petitioner fled the jurisdiction and was arrested in Chicago, Illinois on Illinois charges that were subsequently dismissed. Petitioner was arrested in Cook County, Illinois on August 22, 2000, on the bench warrant issued by the Benton County Circuit Court. Petitioner was released by the Illinois authorities.
On August 23, 2000, the Benton County Sheriffs Office notified the prosecutor’s office that petitioner refused to waive extradition and that a Governor’s warrant would have to be obtained. On September 21, 2000, the State amended the felony information on the April 2 charge to include the July 6 charge. On October 16, 2000, the State requested extradition. Petitioner signed a waiver of extradition on March 20, 2001, and later returned to Arkansas. By March 27, 2001, petitioner was back in the Benton County jail.
On April 6, 2001, petitioner appeared in court represented by Mr. Louis Lim, a public defender. From April 16, 2001, to June 6, 2001, petitioner appeared with counsel at various pretrial hearings. On June 25, 2001, Mr. Lim was relieved as counsel because of a conflict of interest. The Public Defender Commission was appointed to substitute as counsel.
On July 23, 2001, at an attorney status hearing, petitioner appeared with Mr. Charles Duell, a public defender. The trial court was informed that no attorney had been appointed to represent petitioner. On August 2, 2001, the trial court entered an order, appointing Ms. Linda Schribner to replace Mr. Lim as counsel. After numerous status hearings where trial dates were set and reset, on May 24, 2002, Ms. Schribner was allowed to withdraw as counsel, and Mr. Larry Froelich was appointed.
On June 27, 2002, petitioner filed a motion to dismiss the June 6 charges on the basis that he had been denied a speedy trial. The State responded. A hearing on the speedy-trial issue was held on August 5, 2002.
On August 7, 2002, the trial court entered an order denying petitioner’s motion to dismiss based upon allegations of violations of the speedy-trial provisions of Rule 28 of the Arkansas Rules of Criminal Procedure and the Interstate Detainer Act, codified at Ark. Code Ann. § 16-95-101 et seq. On August 9, 2002, petitioner filed a petition for writ of prohibition with our court alleging a speedy-trial violation.
II. Speedy trial
For his first point, petitioner seeks a writ of prohibition against Judge David S. Clinger to prohibit him from conducting a trial on the basis that he had been denied a speedy trial. We note that petitioner erroneously seeks the writ against Judge Clinger. That is incorrect. Prohibition lies to the circuit court and not to the individual judge. Crump v. Ford, 346 Ark. 156, 55 S.W.3d 295 (2001). Accordingly, we will treat the petition as one against the Benton County Circuit Court. Id.
Petitioner first argues that a writ of prohibition should issue. In Doby v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002), we stated:
Pursuant to Ark. R. Crim. P. 28.1(d), a defendant may bring a petition for a writ of prohibition when the trial court denies the defendant’s motion for dismissal under the speedy-trial rules. A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction.
Id. (citing Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002)). A writ of prohibition will not issue unless it is clearly warranted. Id.
Under Ark. R. Crim. P. 28.1, a defendant must be brought to trial within twelve months unless there are periods of delay which are excluded under Ark. R. Crim. P. 28.3. Moody v. Arkansas County Circuit Court, Southern District, 350 Ark. 176, 85 S.W.3d 534 (2002). If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1. If prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R. Crim. P. 28.2. It is well settled that a defendant does not have a duty to bring himself to trial; rather, the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. Moody, supra. Once a defendant establishes a prima facie case of a speedy-trial violation, the State bears the burden of showing that the delay was the result of the defendant’s conduct or otherwise justified. Id.
In the present case, we first must determine when the speedy-trial period commenced. Petitioner asserts that the State failed to prosecute his case twelve months from his August 22, 2000, arrest date because he was released by Illinois officials and “lawfully at liberty,” pursuant to Ark. R. Crim. P. 28.2. The State contends that the time for bringing him to trial began to run on March 20, 2001, when petitioner waived extradition.
Petitioner’s argument is unavailing. On August 5, 2002, at the hearing on the speedy-trial motion, petitioner testified that he did not resist extradition and that he never refused to waive extradition. However, the trial court noted that petitioner failed to appear on pending Arkansas charges, fled the jurisdiction, went to Illinois, and was arrested in Illinois. We have no evidence before us, other than petitioner’s testimony, about petitioner’s circumstances in Illinois. In fact, the State produced as State’s Exhibit 2 a faxed memo, dated August 23, 2000, from Brenda Larsen, a fugitive warrant secretary for Benton County, that petitioner refused to sign the waiver of extradition back to Arkansas.
We agree with the State’s argument on this point. In White v. State, 310 Ark. 200, 833 S.W.2d 771 (1992), appellant was arrested in Texarkana, Texas for charges stemming in Arkansas and in Texas. He waived extradition to Miller County, Arkansas. We stated:
We have held that an accused in prison in another state, for a different crime, must affirmatively request a trial in order to activate the speedy trial rule. Here, the state showed that the appellant signed the waiver of extradition on October 18, 1990, thus he was unavailable for trial before this date. . . . Thus, appellant’s speedy trial period did not begin to run until he waived extradition on October 18, 1990, and his trial on July 22, 1991 was well within the twelve month speedy trial period.
Id. (citations omitted).
Under White, supra, we will use March 20, 2001, when petitioner waived extradition to Arkansas, as the date that commenced the speedy-trial period. We will also use June 27, 2002, as the end of the speedy-trial period, as that date is when petitioner filed his speedy-trial motion. We have said that the filing of the speedy-trial motion tolls the speedy-trial period. Doby, supra; Moody, supra. The time between March 20, 2001, and June 27, 2002 is 464 days. As this period exceeds the twelve-month requirement for a speedy trial, a prima facie case is established, and the State must show that the delay was the result of the defendant’s conduct, or was otherwise justified. Moody, supra.
We now consider whether there are any periods of time to be excluded from the 464-day period between March 20, 2001, and June 16, 2002. First, we note that, in a pretrial order dated April 16, 2001, the trial court excluded June 26, 2000 to April 16, 2001. However, March 20, 2001, the day from which the speedy-trial period begins, falls within this excludable time period. The twenty-seven days from March 20, 2001 to April 16, 2001 is chargeable to the petitioner, as noted below.
In various pretrial, arraignment, and setting orders, the trial court excluded the following periods from the speedy-trial calculation:
Order Time Excluded Number of days
4/16/2001 June 26, 2000-April 16,-2001 27 (beginning at 3/20/01)
4/25/2001 April 25, 2001-April 26, 2001 1
5/24/2001 May 24, 2001-June 6, 2001 13
6/6/2001 June 6, 2001-June 25, 2001 19
6/25/2001 June 25, 2001-July 23, 2001 28
7/23/2001 July 23, 2001-Aug. 2, 2001 10
8/2/2001 Aug. 2, 2001-Aug. 9, 2001 7
8/10/2001 Aug. 10, 2001-Sept. 25, 2001 46
9/20/2001 Sept. 25, 2001-Nov. 27, 2001 63
11/27/2001 Nov. 27, 2001-Feb. 14, 2002 79
5/2/2002 May 2, 2002-May 6, 2002 4
5/24/2002 May 7, 2002-July 23, 2002 51 (ending at 6/27/02)
Therefore, the total number of excludable days found by the trial court to be chargeable to the petitioner equals 348 days. After subtracting 348 days of the excludable periods from the total period of time of 464 days, the balance is 116 days, which is well within the twelve-month requirement for speedy trial.
In his brief, petitioner only challenges three excludable periods: (1) March 20, 2001 to April 16, 2001, (2) June 25, 2001 to July 23, 2001, and (2) July 23, 2001 to August 2, 2001. The first period involves the time when petitioner was in Chicago after he waived extradition. The second period was when his attorney appeared for the purpose of withdrawing as counsel due to a conflict in interest. The third period of ten days involved the appointment of the Public Defender Commission, and petitioner argues that consideration of this period as excludable was inappropriate because he was without counsel. We note that even if petitioner were to prevail on his argument that these three periods, which aggregate sixty-five days, should not have been excluded, only 181 days of nonexcludable time have elapsed within the 365 days allowed by Rule 28.1. However, we do not reach petitioner’s argument concerning the March 20, 2001 to April 16, 2001 exclusion or the June 25, 2001 to July 23, 2001 exclusion because the issue of those exclusions was not preserved for appellate review because no contemporaneous objection was made at the hearings. A contemporaneous objection to the excluded period is necessary to preserve the argument in a subsequent speedy-trial motion. Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999); Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996); Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995).
Because the time elapsed between petitioner’s waiver of extradition and his motion to dismiss for violation of our requirement for a speedy trial is less than twelve months after proper exclusions of chargeable times, we hold that no violation of our speedy-trial rule occurred. Therefore, we find no error in the trial court’s denial of petitioner’s motion to dismiss because the time for bringing petitioner to trial has not expired. Accordingly, petitioner is not entitled to a writ of prohibition on the basis of a speedy-trial violation.
III. Interstate Agreement on Detainers
For his second point, petitioner argues that the trial court erred in denying petitioner’s motion to dismiss based upon violations of the Interstate Agreement on Detainers, codified at Ark. Code Ann. § 16-95-101 et seq. (1987). Specifically, petitioner argues that he was not brought to trial within the 180-day period allowed in that agreement.
The Interstate Agreement on Detainers, found at Ark. Code Ann. § 16-95-101, provides in pertinent part of Article III:
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
Id.
In the present case, petitioner cites subsection (a) for the purposes of his argument that he shall be brought to trial within 180 days. However, petitioner was not returned to Arkansas pursuant to the Interstate Agreement on Detainers, but upon signing a waiver of extradition. Extraditions are governed by the Uniform Criminal Extradition Act, codified at Ark. Code Ann. § 16-94-201 et seq. (1987).
In order to comply with the Interstate Agreement on Detainers, a prosecutor must file a detainer upon learning that an accused is imprisoned elsewhere and must request that the official having custody of the accused advise the prisoner of the filing of the detainer and of the prisoner’s right to demand trial. Ark. R. Crim. P. 29.1(b); Dukes v. State, 271 Ark. 674, 609 S.W.2d 924 (1981). The prisoner then has the right to demand trial, and such trial must be had within 180 days unless there is good cause for a delay. Id. Here, there is no showing in the record that the State filed a detainer or that petitioner was served with a detainer while incarcerated in Illinois. Therefore, we hold that the Interstate Agreement on Detainers was never triggered and is inapplicable.
Petition for writ of prohibition denied.
Imber, J., not participating.
Pursuant to Ark. R. Crim. P. 1.4, we will not count the first day of each excludable period. | [
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Ray Thornton, Justice.
On September 6, 2000, appellant, Becky ice. filed a complaint against appellees, Buena Vista Resort and George Bogdanov. In her complaint, appellant asserted that she was an employee of Buena Vista Resort and that Bogdanov was the owner of Buena Vista Resort [BVR]. The complaint further alleged that during her employment with Buena Vista Resort, Bogdanov approached her and propositioned her for sex. The complaint also alleged that Bogdanov had made lewd comments to appellant on several occasions. Finally, the complaint alleged that when appellant rejected Bogdanov’s sexual advances, she was treated poorly, and eventually terminated from her job. ■
Based on the factual allegations, appellant asserted three causes of actions. First, she alleged that appellee Bogdanov’s behavior violated the Arkansas Civil Rights Act. Next, she argued that appellees’ actions were outrageous and caused her to suffer severe emotional distress. Finally, she asserted that she was wrongfully discharged in violation of'the public policy of the State of Arkansas.
On January 30, 2002, appellees filed a motion seeking summary judgment. An affidavit from Bogdanov was attached to their motion. In his affidavit, Bogdanov stated that the reason appellant was terminated was because he was going to give her job to his son. He also denied that he had solicited appellant for sex or treated her differently during her employment. In support of their motion for summary judgment, appellees also attached appellant’s claim for unemployment benefits in which appellant stated that she was separated from her job because “[Bogdanov] brought [his] son back to run [the] business.” Finally, appellees attached appellant's deposition testimony to their motion for summary judgment.
Appellees also filed a brief in support of their motion for summary judgment. In their brief, they argued that appellant admitted that she was terminated for reasons other than rebuffing Bogdanov’s sexual advances. They asserted that appellant admitted that she was terminated: (1) because Bogdanov’s son was going to take her job; or (2) because her friend allegedly took some pears from Bogdanov’s pear tree.
Additionally, appellees argued that appellant’s claim under the Arkansas Civil Rights Act “must fail.” They argued that “the Act protects persons against discrimination based on their status, it establishes certain protected classes, specifically, race, religion, national origin, gender, and disability. However, as has been shown, the termination of the plaintiff had nothing to do with her gender, but instead to a gender-neutral reason.”
Appellees also asserted that they were entitled to summary judgment on appellant’s “tort-of-outrage” cause of action. They argued that Bogdanov’s behavior did not rise to the level of outrageous and that appellant did not suffer severe emotional distress.
On February 19, 2002, appellant responded to appellees’ motion for summary judgment. Appellant asserted that there were outstanding factual issues and that therefore summary judgment was not proper. Specifically, she argued that the jury should be permitted to determine the reason for her termination. She also asserted that she had established: (1) a violation of the Arkansas Civil Rights Act; (2) a cause of action for the tort of outrage; and (3) a cause of action for wrongful discharge. Attached to her response were copies of her deposition, Bogdanov’s deposition, an affidavit from Mary Caldwell, and appellees’ answers to interrogatories.
In a brief in support of her response to appellees’ motion for summary judgment, appellant argued that there were outstanding factual disputes that must be resolved by a jury. First, she argued that a jury must determine whether Bogdanov’s behavior constituted sexual harassment in violation of the Arkansas Civil Rights Act. Next, she argued that the jury should determine whether appellant was terminated for rebuffing Bogdanov’s sexual advances. Finally, she argued that a jury should determine whether Bogdanov’s actions supported a claim for outrage.
In a response to appellant’s response, appellees argued that sexual harassment is not covered by the Arkansas Civil Rights Act and that the trial court could not look to federal Title VII cases when considering appellant’s cause of action under that Act. Appellant countered this assertion.
On March 5, 2002, a hearing was held on appellees’ motion for summary judgment. On April 16, 2002, the trial court issued its findings of fact and conclusions of law. The trial court found that there were no genuine issues of fact, and granted appellees’ motion for summary judgment. The trial court also found as a matter of law that appellant was terminated because Bogdanov wanted to rehire his son. Next, the trial court concluded that because appellant’s termination was not based on her gender, she failed to establish a cause of action pursuant to the Arkansas Civil Rights Act. Additionally, the trial court found that appellees were entitled to summary judgment on the wrongful-termination cause of action because appellant was an at-will employee, and as such, could be terminated at any time. Finally, the trial court found that appellees’ actions did not support a claim of outrage.
It is from this order that appellant appeals. We conclude that there are unresolved questions of fact relating to appellant’s civil-rights claim and wrongful-termination claim, and remand the matter for development of those issues.
In Palmer v. Council on Economic Education, 344 Ark. 461, 40 S.W.3d 784 (2001), we outlined the rules governing motions for summary judgment. We wrote:
[W]e need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved' against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
Once a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof. Furthermore, the moving party may present pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, to support the burden of showing entitlement to summary judgment as a matter of law.
Id. (Citing Crockett v. Essex Home. Inc., 341 Ark. 558, 19 S.W.3d 585 (2000)). Additionally, in Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000), we noted:
[W]e will not engage in a “sufficiency of the evidence” determination. We have ceased referring to summary judgment as a drastic remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is.not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Id. However, when there is no material dispute as to the facts, the court will determine whether “reasonable minds” could draw “reasonable” inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses.
Flentje, supra.
Guided by our rules governing the granting of summary judgment, we turn to appellant’s first point on appeal. Appellant argues that the trial court erred when it determined that the Arkansas Civil Rights Act does not provide protection from workplace sexual harassment as a matter of law. The Arkansas Civil Rights Act, originally enacted in 1993, and codified at Ark. Code Ann. 16-123-101 et seq., provides citizens of this State legal redress for civil-rights violations of State constitutional or statutory provisions, hate offenses, and discrimination offenses.
. We have not had an opportunity to determine whether workplace sexual harassment is covered under the Arkansas Civil Rights Act. However, the express language of the Act appears to forbid such behavior. Specifically, Ark. Code Ann. § 16-123-107 (Supp. 2001) provides:
(a) The right of an otherwise qualified person to be free from discrimination because of race, religion, national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:
(1) The right to obtain and hold employment without discrimination.
Id. This language may be interpreted as prohibiting discrimination such as workplace sexual harassment. However, because the Arkansas Civil Rights Act does not include language specifically prohibiting “workplace sexual harassment,” we look to the federal courts for guidance. We have explained that our state courts may look to federal decisions for persuasive authority when considering claims under the Arkansas Civil Rights Act. See Faulkner v. Arkansas Children’s Hospital, 347 Ark. 941, 69 S.W.3d 393 (2002); Rudd v. Pulaski County Special School District, 341 Ark. 794, 20 S.W.3d 310 (2000); Flentje, supra.
Additionally, we note that the Arkansas Civil Rights Act expressly instructs us to look to federal civil-rights law when interpreting the Act. Specifically, Ark. Code Ann. § 16-123-105 (Supp. 2001) states:
(c) When construing this section, a court may look for guidance to state and federal decisions interpreting the federal Civil Rights Act of 1871, as amended and codified in 42 U.S.C. § 1983, as in effect on January 1, 1993, which decisions and act shall have persuasive authority only.
Ark. Code Ann. § 16-123-105.
Because we have not had an opportunity to consider this issue, and because the Arkansas Civil Rights Act instructs us to look to federal civil-rights law when interpreting the Act, we look now to Title VII and federal cases interpreting Title VII for guidance on sexual-harassment claims brought pursuant to the Arkansas Civil Rights Act. The federal courts have recognized a cause of action for sexual harassment under the following Title VII language:
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. §.2000e-2(a)(l).
In Henderson v. Simmons Foods Inc., 217 F.3d 612 (8th Cir. 2000), the Eighth Circuit Court of Appeals reviewed a sexual-harassment claim filed pursuant to the Arkansas Civil Rights Act. The Court of Appeals noted “claims premised under the Arkansas Civil Rights Act of 1993 are analyzed in the same manner as Title VII claims. See Ark. Code Ann. § 16-123-103(c).” Henderson, supra. Based upon its interpretation of our law, the Court of Appeals applied Title VII case law to Ms. Henderson’s claim and determined that her employer had violated the Arkansas Civil Rights Act.
There are two distinct sexual-harassment claims which may be brought pursuant to Title VII. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Smith v. Foote’s Dixie Dandy, Inc., 941 F. Supp. 807 (E.D. Ark. 1995). A worker may claim that she was subjected to sexual harassment due to a hostile work environment or a worker may claim that she was subjected to sexual harassment based on quid pro quo.
The plaintiff in Henderson, supra, argued that she suffered sexual harassment due to exposure to a hostile work environment. The Court of Appeals explained that “Title VII forbids sexual harassment in the workplace and imposes liability upon employers who tolerate a hostile work environment.” There are five elements that must be present to establish a hostile work environment sexual-harassment claim pursuant to Title VII. Henderson, supra. Specifically,
[A] plaintiff asserting a hostile work environment claim must show (1) membership in a protected group or class, (2) unwelcome sexual harassment (3) based upon gender (4) resulting in an effect on a term, condition, or privilege of employment, and (5) that the employer knew or should have known about the harassment and failed to take proper remedial action. See Staton v. Maries County, 868 F.2d 996, 998 (8th Cir. 1989). In addition, the plaintiff must show that the sexual harassment created an environment that was both objectively and subjectively abusive. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Henderson, supra.
In Smith v. Foote’s Dixie Dandy, Inc., supra, a case from the Arkansas Eastern District Federal Court in which a sexual-harassment claim was brought pursuant to the Arkansas Civil Rights Act and Title VII, the District Court explained:
For a plaintiff [t]o make a prima facie case of quid pro quo harassment, [she] must show that (1) she was a member of a protected class; (2) she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) the harassment was based on sex; and (4) her submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in a tangible job detriment.
Id. (Citing Cram v. Lamson & Sessions Co., 49 F.3d 466 (8th Cir. 1995) (internal citations omitted).
After reviewing the foregoing case law, we are persuaded that the trial court erred in determining that the Arkansas Civil Rights Act is not applicable to workplace sexual harassment.
Next, we must consider whether an issue of fact remains unresolved as to whether appellant was subjected to workplace sexual harassment. In the case now before us, appellant alleged in her complaint that “defendants’ [Bogdanov’s] behavior violated the plaintiffs rights in the workplace which are protected under the Arkansas Civil Rights Act.” In support of this claim, appellant offered evidence of numerous facts. Appellant alleged that Bogdanov, who was her supervisor and owner of the business, offered to suspend her rent if she would have sex with him once a week. Appellant further alleged that Bogdanov asked if he could touch her breasts. She asserted that Bogdanov would also tell appellant about his sex life in “graphic detail” and that Bogdanov offered to purchase a car for her in exchange for sexual favors. Appellant also alleged that Bogdanov would frequently ask her to meet him at a hotel to engage in sexual activities. Appellant further alleged that Bogdanov made crude sexual comments to her while she was working. Finally, appellant alleged that when she firmly rebuffed Bogdanov, he treated her with disdain and she was terminated shortly thereafter.
In an affidavit attached to appellees’ motion for summary judgment, appellee Bogdanov responded to appellant’s allegations. He stated that he “never solicited sex from [appellant]. I never did anything more than comment favorably on her appearance.”
In response to Bogdanov’s denial, appellant offered Bogdanov’s deposition. The following questions and answers from the deposition are relevant:
Q: [appellant’s attorney] Did you ever offer her [appellant] money for sex?
A. [Bogdanov] I don’t remember that-I say that.
Q. Is it possible that you did?
A: I don’t think, because I’m not a person that can have money.
Q: Did you ever ask her to have sex with you?
A: I don’t remember.
Q: What I’m asking you Mr. Bogdanov is if Ms. Island testifies to the fact that you did ask her to have sex with you, are you able to dispute that or will you dispute that?
A: I don’t remember say that.
Q: Did you ever have conversations with her about your sex life with your wife?
A: I don’t remember.
In addition to the deposition testimony, appellant offered the affidavit of Mary Caldwell, a former employee of Buena Vista Resort, in support of her sexual-harassment claim. In her affidavit, Ms. Caldwell stated:
Mr. Bogdanov began making some inappropriate sexual comments to me. Then, after a while, he took his actions a step further and began trying to touch and/or kiss me. Mr. Bogdanov offered me money to have sexual relations with him. This occurred on numerous occasions. He repeatedly asked me for sexual favors, and I always told him no. After I would reject him, however, he would become very angry with me. After a while, however, he would begin talking to me again and would start his sexual propositions all over again. It was an endless cycle.
Mr. Bogdanov made comments about my body, including my breasts. He even made sexual comments about him and his wife’s sexual relationship. Mr. Bogdanov would sit in the office and tell inappropriate nasty jokes.
Mr. Bogdanov tried to kiss me on more than one occasion, and I had to tell him no, which resulted in him becoming very angry with me. After I bought my new vehicle, a Toyota 4-Runner, Mr. Bogdanov offered to pay for it if I would have sex with him every week. I declined.
Other employees told [me] that Mr. Bogdanov acted in the same manner towards them. It was a very bad environment to work in, and the worst part was that there was no one to report his behavior to. Since he was the owner, there was no way to stop the harassment.
After reviewing the foregoing depositions and affidavits, we conclude that there is a genuine issue of material fact which remains to be resolved. Specifically, we conclude that the issue of whether Bogdanov’s actions constituted sexual harassment in violation of the Arkansas Civil Rights Act raises questions of fact. His actions must be evaluated and a question of fact remains whether appellant was subjected to sexual harassment because she was working in a hostile working environment. There are also disputed facts that must be resolved before determining whether appellant was subjected to sexual harassment by offers of quid pro quo. Because we conclude that there are unresolved factual issues, we reverse the trial court and remand this case for further development of those issues.
Before leaving this point, we note that appellees argue that because they are able to give a non-gender-based reason for appellant’s termination, she is precluded from pursuing a sexual-harassment claim under the Arkansas Civil Rights Act. Appellees’ contention is misplaced. A review of the elements that must be established to present a valid sexual-harassment claim do not require the termination, of the harassed employee. In fact, an employee who is the subject of sexual harassment sometimes remains an employee after the harassment. A lack of termination, or a non-gender-based reason for the employee’s termination, does not extinguish a harassed employee’s cause of action. Accordingly, we conclude that the possible existence of a non-gender-based reason for appellant’s termination is not determinative of her sexual-harassment claim.
In her second point on appeal, appellant argues that the trial court erred in granting appellees summary judgment as a matter of law on appellant’s claim for wrongful discharge. Specifically, she argues that although she was an employee-at-will, her termination for an alleged refusal to engage in sex for compensation violated public policy, and as such, constituted wrongful discharge.
We have repeatedly held that when an employee’s contract of employment is for an indefinite term, either party may terminate the relationship without cause or at will. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). However, we have also noted that an at-will employee cannot be terminated if he or she is fired in violation of a well-established public policy of the State, but such public policy must be outlined in our statutes. Palmer, supra. Finally, we have explained that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the State. Sterling Drug, supra.
Considering the foregoing rules of law, we turn now to the case sub judice. In this case, appellant argues that summary judgment was not proper because there was a genuine issue of fact as to the reason for her termination. In her complaint, appellant alleged that “the defendants wrongfully discharged the plaintiff in violation of the public policy of Arkansas.” In support of her contention, appellant asserted that “during the first week of September of 1999, the plaintiff had finally had enough [of unwanted sexual advances] and yelled at him [Bogdanov] to never speak dirty to her again. The defendant was caught off guard and said something in a foreign language and walked off. On September 9, 1999, the plaintiff was terminated from employment.” The complaint further explains that prior to confronting appellant in September of 1999, Bogdanov had sexually propositioned her on several occasions. She alleged that Bogdanov offered to give her money to purchase a car and that Bogdanov offered to suspend her rent in exchange for sexual favors.
In an affidavit attached to their motion for summary judgment, Bogdanov stated that “I told the plaintiff that she was being terminated so that Sosh could return and run the business.” Appellees also attached a notice from the Employment Security Department to their motion for summary judgment. In this notice, appellant states that she was terminated because “[appellee] brought [his] son back to run the business.”
In appellant’s deposition, which was attached to appellees’ motion for summary judgment, she testified that appellee told her that she was being terminated so that Bogdanov’s son Sosh could take her job. However, in her deposition, she also testified about the day that she confronted Bogdanov and stated that shortly thereafter she was terminated.
After reviewing the evidence, we conclude that there is a material question of fact that must be resolved. Specifically, we conclude -that a factual issue of whether appellant was terminated in retaliation for rebuffing Bogdanov’s sexual advances or whether she was terminated so that Bogdanov’s son could take appellant’s job remains to be resolved.
We further conclude that the public policy of the State of Arkansas prohibits the termination of at-will employees based on retaliation for rejecting solicitations to engage in sex in exchange for compensation. This position was fully discussed in Lucas v. Brown & Root, 736 F.2d 1202 (8th Cir. 1984), a case which we cited in Sterling Drug, Inc., supra. In Lucas, the Eighth Circuit Court of Appeals was asked to review plaintiffs wrongful-discharge claim which had been dismissed pursuant to Arkansas law. Ms. Lucas alleged that her supervisor had sexually propositioned her, and that when she rejected him, her employment was wrongfully terminated. Ms. Lucas’s claim was brought pursuant to a breach-of-contract claim. After reviewing Ms. Lucas’s claim, the Court of Appeals acknowledged our long-standing doctrine of employment at will. The Court of Appeals also explained that we recognized several exceptions to the basic rule that an employee at will can be terminated for any reason. The Eighth Circuit stated:
The decisions of the Supreme Court of Arkansas establish two propositions: (1) that employees whose contracts are for no fixed term may ordinarily be discharged, just as they may ordinarily quit, for any reason or for no reason; and (2) that there are exceptions to this rule, coming into play when the reason alleged to be the basis for a discharge is so repugnant to the general good as to deserve the label “against public policy.”
Id. After reviewing the public-policy exception to the employment-at-will doctrine, the Court of Appeals concluded that it was against the public policy of the State of Arkansas to terminate an employee for refusing to submit to sexual advances. The Court of Appeals continued:
On this appeal we sit as just another court of the State of Arkansas, applying not our own private views of public policy (though no judge ever completely leaves them behind, because no person can), but the public policy of Arkansas as it has in the past been declared by the Supreme Court of the State and as we think it will be declared by that Court in the future. What we know of the shared moral values of the people of Arkansas and the considerable clues to be found in positive law point alike to the conclusion that this complaint does state a claim. Prostitution is a crime denounced by statute. It is defined as follows:
A person commits prostitution if in return for, or in expectation of a fee, he engages in or agrees or offers to engage in sexual activity with any other person.
Ark. Stat. Ann. §§ 41-3002(1) (Supp. 1983). It is at once apparent that the shoe fits. A woman invited to trade herself for a job is in effect being asked to become a prostitute. If this were a criminal prosecution, it might be argued that a job is not a “fee” within the meaning of this statute, and a court, applying the maxim that criminal statutes are to be strictly construed, might agree, holding that “fee” means only money, and not other things of value. But in this civil action no such narrow interpretation is required or appropriate. A wage-paying job is logically and morally indistinguishable from the payment of cash. Indeed, it necessarily involves the payment of cash.
Lucas, supra. Having concluded that the alleged wrongful termination violated public policy, the Court of Appeals held:
Plaintiff should not be penalized for refusing to do what the law forbids. And if she can prove that this is in fact what happened, and that her employer is responsible for it, she can recover damages for breach of contract. For it is an implied term of every contract of employment that neither party be required to do what the law forbids.
Id. See also Sterling Drug, supra (discussing Lucas and its holding).
We find the reasoning in Lucas very persuasive, and have no hesitancy in following the Eighth Circuit’s lead in holding that the public policy of the State of Arkansas is violated when an at-will employee is terminated for rejecting a solicitation to engage in prostitution. Accordingly, without expressing an opinion as to the reason for appellant’s termination, we hold that if she was terminated for refusing Bogdanov’s sexual propositions, appellant has a valid cause of action for wrongful termination.
In her third point on appeal, appellant argues that the trial court erred in granting appellees summary judgment on her tort-of-outrage claim. We have recognized a cause of action for the tort of outrage in an employment setting. See M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). We have explained that liability [for the tort of outrage] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Palmer, supra. (Citing the Restatement (Second) of Torts § 46 Cmt. d (1965)).
There are four elements that are necessary to establish liability for the tort of outrage: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002).
In the case now before us, appellant’s allegations of outrage stem from appellee Bogdanov’s sexual advances. As previously discussed, appellant’s complaint alleged that Bogdanov engaged in the following behavior: (1) offering to suspend appellant’s rent and/or to give appellant money for the purchase of a new automobile in exchange for sex; (2) asking to touch appellant’s breasts; (3) telling appellant about his sexual relationship with his wife in “graphic detail;” (4) making “sexual comments” to appellant about her body; (5) asking appellant to find women to have sex with him; and (6) asking appellant to meet him at hotels to engage in sexual activities. In her complaint, appellant also alleged that “as a result of the defendant’s behavior [she] did suffer severe emotional distress.”
In their answer to appellant’s complaint, appellees denied all of appellant’s allegations. Additionally, in his affidavit attached to appellees’ motion for summary judgment, appellee Bogdanov stated “the allegations against me by the plaintiff are untrue. I never solicited sex from her. I never did anything more than comment favorably on her appearance.”
In her deposition testimony, appellant reiterated all allegations of Bogdanov’s unwanted sexual advances and stated that based on her termination, she was “depressed.” In appellee Bogdanov’s deposition testimony, he denied some of appellant’s allegations and stated that he could not remember whether he had engaged in any of her other allegations. Finally, an affidavit offered by Mary Caldwell corroborated appellant’s allegations of Bogdanov’s improper sexual advances towards employees of Buena Vista Resort.
After reviewing the evidence, the trial court found:
Considering the allegations of the plaintiff as true, the alleged emotional distress of the plaintiff was not severe so as to support a claim of outrage. The plaintiff did not state or allege any peculiar susceptibility to emotional distress on her part, and the effect on the plaintiff from the alleged conduct of the defendant, according to her deposition testimony was inconsequential. In particular, the plaintiff testified that the defendant sometimes treated her poorly for a short period of time after an incident, but otherwise the relationship was unaffected.
While it is clear that the allegations of Bogdanov’s behavior are egregious, it appears that appellant has failed to offer proof that she suffered damages or emotional distress so severe that no reasonable person could be expected to endure it.
We have concluded that the factually disputed issue whether appellant was fired for refusal to engage in sex for compensation gives rise to a claim for wrongful discharge that will withstand a motion for summary judgment, and that appellant’s showing of sexual harassment prohibited by the Arkansas Civil Rights Act was sufficient to withstand a motion for summary judgment. However, appellant does not show, by affidavit or other proof, that she has suffered damages or emotional distress so severe that no reasonable person could endure it. In fact, it appears that she did endure the alleged harassment for several years before she firmly rejected his alleged advances and yelled at him “to never speak dirty to [me] again.” We conclude that appellant has not offered proof showing that as a result of Bogdanov’s behavior she suffered that level of damages or emotional distress sufficient to sustain an action for the tort of outrage. Accordingly, we affirm the trial court on this issue.
In appellant’s final point on appeal, she argues that the trial court “clearly erred when it accepted as true all of the facts set forth by Mr. Bogdanov and BVR, and totally ignored the facts set forth by Ms. Island.” This argument appears to be repeating arguments raised in appellant’s previous points on appeal. Having concluded that summary judgment was not proper on two of appellant’s causes of action, we agree with appellant’s contention. Specifically, we hold that because there are unresolved fact questions the trial court erred when it granted appellees’ motion for summary judgment.
We conclude that allowing appellant her day in court for the consideration of factual issues relating to her allegations of a violation of our civil-rights' act, and a violation of our public policy against wrongful discharge for refusing to breach a statutory prohibition against prostitution is required to resolve the disputed facts remaining in this case. Therefore, we remand this case to the trial court for development of those issues.
Affirmed in part; reversed and remanded in part.
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WH. “Dub” Arnold, Chief Justice.
This is an appeal involving stice. zoning ordinances. Appellants challenge four West Memphis city ordinances passed by the West Memphis City Council that allow certain businesses to purchase licenses to engage in the sale of fireworks in West Memphis, Arkansas. The trial court found that the agreement between American Fireworks and the City of West Memphis did not bind the West Memphis City Council to rezone. The trial court also found that the City of West Memphis had gone through a bona fide procedure in passing the subject ordinances. We affirm.
Facts
Appellants, Ruby Murphy and Juanita Sandusky, filed a lawsuit against appellee, City of West Memphis (hereinafter “City of West Memphis”), as interested property owners. Appellant Meramec Specialty Company (hereinafter “Meramec”), filed as an entity with a leasehold interest in property located in West Memphis, Arkansas. Meramec sells fireworks from leased property. Meramec has been operating a firework stand at its present location since 1975, located first in the county limits, and later in the West Memphis city limits. Meramec’s traditional sales location was originally located outside the city limits of West Memphis. However, the area was eventually annexed into the city limits in 1992.
Initially, the applicable city fire code prohibited the sale of fireworks. At the time its location was annexed into the city limits of West Memphis, Meramec was “grandfathered in” and allowed to continue its sale of fireworks. Subsequently, the fire code was amended and the altered version contained no prohibition of the sale of fireworks.
Through the years, appellee American Fireworks Company (hereinafter “American Fireworks”), a competitor of Meramec has unsuccessfiilly attempted to obtain the right to sell fireworks in West Memphis. On July 21, 1999, the City of West Memphis passed an ordinance which made the sale of fireworks illegal within the city limits. This prohibition did not apply to Meramec. In an attempt to obtain the right to sell fireworks in West Memphis, American Fireworks sought redress through various governing authorities controlling land use within the city to obtain the appropriate rezoning to allow for it to operate in the area of Mound City Road in West Memphis; however, each attempt was denied.
On October 12, 1999, American Fireworks sued the City of West Memphis, and other individuals in the United States District Court for the Eastern District of Arkansas. In that lawsuit, the City of West Memphis argued that it did not want any company to be allowed to sell fireworks in West Memphis and only allowed Meramec to sell fireworks due to its grandfathered status. The City of West Memphis defended the lawsuit on the basis that the requested zoning was not proper for health and safety concerns. Also within that lawsuit, American Fireworks alleged various violations to its rights guaranteed by the Constitution of the United States, as well as violations of the Sherman Anti-trust Act. In this lawsuit, the City of West Memphis consistently argued that it was against the law to sell fireworks in the City of West Memphis; that the outlawing of fireworks was a valid use of the city’s police power; and, that the location American Fireworks desired was not properly zoned for the sale of fireworks.
On February 16, 2000, American Fireworks’ attorney wrote the City of West Memphis’s attorney and offered to settle the fed eral litigation by promising to dismiss the lawsuit on behalf of American Fireworks in exchange for the approval to sell fireworks at American Fireworks’ location on Mound City Road on or before April 1, 2000, with the demand that American Fireworks be regulated in the same manner as any other firework vendor in West Memphis.
After American Fireworks and the City of West Memphis reached the tentative settlement agreement, a secondary issue arose as to whether appellant Meramec would be limited to its one location. In a May 12, 2000, letter, American Fireworks’ attorney informed United States District Judge Bill Wilson that the settlement between American Fireworks and the City of West Memphis had “fallen through.” Subsequently, American Fireworks’ attorney wrote letters to the City’s attorney on May 11, 2000, and May 26, 2000, and advanced his understanding of the settlement agreement which he believed had fallen through.
On June 15, 2000, the West Memphis City Council passed a series of ordinances which permitted the sale of fireworks within a certain area of the city of West Memphis. Specifically, the West Memphis City Council passed ordinance number 1942 which created a zoning classification allowing for firework sales within an area zoned under that classification. It also passed ordinance number 1943, which rezoned the land lying in the area of Mound City Road in West Memphis to the zoning classification allowing for the sale of fireworks within that area. In addition, the City Council also passed ordinance number 1944, which elevated the building/tent permit fee for businesses engaged in the sale of fireworks to $2,500.00 per location.
At the City Council meeting on June 15, 2000, when the rezoning ordinances were passed, representatives of interested parties were in attendance. At that time, while arguments were being held in the course of the “precouncil” meeting, American Fireworks agreed to dismiss its federal lawsuit, if the West Memphis City Council voted in favor of the ordinances rezoning the Mound City Road area to allow for the sale of fireworks. An attorney was also present on behalf of Meramec, and he did not object to the passage of the ordinances to rezone, namely ordinances 1942 and 1943; however, Meramec’s attorney did voice an objection to ordinance number 1944, which increased the building/tent permit fee.
At the meeting, the Mayor of West Memphis specifically indicated that he wanted the record to reflect that the passage of these ordinances would finalize the settlement of the pending litigation. The emergency clauses for each of the ordinances specifically reflect that the ordinances were passed to settle the pending litigation in federal court. On July 11, 2000, a joint motion to dismiss was filed in the federal court case; and, on July 13, 2000, an order was entered dismissing the action with prejudice.
Appellants initiated this action against the City of West Memphis in Crittenden County Circuit Court challenging the validity of ordinances numbers 1933, 1942, 1943 and 1944 (hereinafter referred to collectively as “challenged ordinances”), which appellants argue were the result of illegal contract zoning. Subsequently, American Fireworks was allowed to intervene in the action. ■
On March 20, 2001, appellants filed a motion for summary judgment. In their motion for summary judgment, appellants argued that this case involves the following undisputed facts: (1) West Memphis had a long standing policy against the sale of fireworks within the city limits; (2) Up through 1999, American Fireworks made efforts to sell fireworks with the West Memphis city limits without success; (3) West Memphis rejected American Fireworks’ attempts to sell fireworks because the request did not comply with the zoning ordinance and because the sale of fireworks in West Memphis was prohibited due to concerns for public health, safety and welfare; and (4) The passage of the four challenged ordinances was the direct result of an agreement reached between West Memphis and American Fireworks. This motion was supported by several exhibits any of which were ultimately introduced at the bench trial.
In considering appellants’ motion, the trial court determined that the only reason the city relented to American Fireworks’ demands was to settle the federal lawsuit. However, the trial court also ruled that such a settlement can be upheld as long as the city went through a bona fide procedure in the rezoning process. Following this ruling the trial court conducted a bench trial on the merits.
Following a trial on the merits, the parties submitted extensive posttrial briefs. After reviewing all the evidence, the trial court found that the City of West Memphis had gone through a bona fide procedure in the rezoning process and that, although the evidence demonstrated a predetermined decision to rezone, the mayor and the city council members were not shown to have specifically been bound by the settlement agreement and the attorney for the City of West Memphis was not shown to have had the authority to commit the city to such action in entering into the settlement agreement. In other words, the trial court found that there was no showing that the agreement with American Fireworks bound the City Council members or the Planning Commission or that the rezoning process had been a sham. The trial court also found that, while initially the settlement agreement was rough and informal, the agreement was finalized at the precouncil meeting. The trial court also found that the precouncil meeting was open to the public and that the council was theoretically open to objections.
It is from that ruling that appellants bring this appeal arguing two points on appeal: (1) whether the trial court erred in ruling that the subject zoning ordinances, which were the result of a contract to rezone, could be upheld under any circumstances; and, (2) whether the trial court erred in ruling that the subject zoning ordinances, which were the result of a contract to rezone, should be upheld under the present circumstances. We affirm and hold that the trial court was not clearly erroneous in ruling that the city council followed a bona fide procedure in enacting the challenged ordinances. Therefore, we do not reach the argument of the legality of contract zoning.
Standard of Review
In bench trials, the standard of review on appeal is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Foundation Telecommunications, Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000); Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all of the evidence, is left with a definite and firm conviction that a mistake has been committed. Neal, supra. This court views the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Arkansas Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000). However, a trial court’s conclusion on a question of law is given no deference on appeal. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).
Additionally, in reviewing cases involving legislative enactments such as zoning ordinances, there is a strong presumption that the legislative branch acted in a reasonable manner, and the burden is on the moving party to prove that the enactment was arbitrary or unreasonable. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). In cases challenging the validity of an ordinance, the plaintiff s burden of proof is elevated, and there must be clear and satisfactory proof that the ordinance is unreasonable and arbitrary. Wright v. City of Monticello, 345 Ark. 420, 47 S.W.3d 851 (2001). Every reasonable presumption is to be afforded to the municipal authority in support of the legality of the ordinance. City of Little Rock v. T.H. Linn, 245 Ark. 260, 432 S.W.2d 455 (1968). Because of this presumption, one who challenges the validity of an ordinance, alleging it to be arbitrary, discriminatory, or unreasonable, should make it so appear by clear and satisfactory evidence. Wright, supra; City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S.W.2d 187 (1938).
Bona Fide Procedure
Although alleged to be the result of contract zoning, the trial court did not err in finding that the actions of the West Memphis city government in enacting the challenged ordinances followed a bona fide procedure. In its letter opinion, the trial court held:
Here, the Court has to conclude that there is no showing that the planning commission meeting of May 31, 2000, or the city council and pre-council meeting of June 15, 2000, can be said to be a sham, or pre-textual. There is no showing that the council had closed its mind to other voices. A city has the right to settle a lawsuit, and that is all that transpired here, The complaint will be dismissed.
Appellants argue that the sole basis for the enactment of the subject ordinances was the supposed contract entered into between the City of West Memphis and American Fireworks. Appellants contend that the reason for the enactment of the ordinances was to settle the federal litigation, which would make it contract zoning.
The legality of contract zoning is an issue of first impression in the State of Arkansas. However, other jurisdictions have examined contract zoning and found that contracts rezone are not prohibited; but, other jurisdictions have held in the exercise of its governmental function, a city cannot legislate by contract. The term “contract zoning” refers to an agreement between a property owner and a local government where the owner agrees to certain conditions in return for the government’s rezoning or enforceable promise to rezone. Chung v. Sarasota County, 686 So.2d 1358 (Fla. 2d Dist. Ct. App. 1996). Here, the trial court was correct in finding that American Fireworks and the City of West Memphis had not entered into any type of binding agreement to settle the federal litigation until the city council meeting. The agreement was only finalized after the city council passed the challenged ordinances, not before.
However, at no point in the trial court’s ruling does it hold that contract zoning occurred in this case. Rather, the trial court engages in a brief analysis of the principles of contract-zoning law as described in cases from other jurisdictions, concluding that none of the circumstances which traditionally give rise to a finding of contract zoning was present in the instant case. Therefore, the question of the legality of contract zoning in the State of Arkansas is not an issue that need be addressed by this court in the instant appeal.
Here, the trial court correctly ruled that the challenged ordinances could be upheld under the facts of the instant case. There is a strong presumption of the validity of ordinances enacted in this state. Because of this presumption, one who challenges the validity of an ordinance, alleging it to be arbitrary, discriminatory, or unreasonable, should make it so appear by clear and satisfactory evidence. City of Forth Smith v. Can Zandt, 197 Ark. 91, 122 S.W.2d 187 (1938; See also, Wright v. City of Monticello, 345 Ark. 420, 47 S.W.3d 851 (2000). Appellants argue that the trial court erred in finding that the City of West Memphis followed a bona fide rezoning procedure in enacting the subject ordinances. Appellants contend that one of the reasons contract zoning is generally rejected is because the legislative power to enact and amend zoning regulations requires due process, notice, and hearings. Appellants assert that City Council made its decision to rezone prior to the City Council’s public hearing. Thus, any process following the agreement to rezone was merely a sham.
However, appellants have failed to make any showing that the legislative process was replaced by a contract to rezone. The trial court specifically found that the pre-council and city council meeting on June 15, 2000, were not pretextual. Rather, the public hearing provided a bona fide due process protection with respect to the enactment of the instant ordinances.
Sara Voye, who was called to testify by appellants, testified that the notice of the Planning Commission meeting on May 31, 2000, was published in the newspaper, and that the meeting was open to the public. She also testified that the precouncil meeting conducted on June 15, 2000, was open to the public. In fact, Voye confirmed that it is during the precouncil meetings that the city council normally entertains argument. She also stated that the pre-council meeting is considered part of the council meeting.
In addition, the “Agreed Stipulations” executed by the attorneys for the City of West Memphis state, “All proper notice and public hearing and reading requirements were met concerning each of the ordinances which are the subject of this litigation.” Also, appellants had counsel in attendance at the June 15, 2000, city council meeting. Despite this presence, there was no objection to the ordinances dealing with rezoning, by appellants’ counsel, or anyone else. Considering this proof, appellants’ contention that the meeting was proforma or a sham is at odds with the greater weight of the evidence.
Therefore, appellants have not overcome the strong presumption of legality or proven that enactment of the challenged ordinances was arbitrary or unreasonable. The city council meeting was open to the public and proper notice of such was given. The trial court found that the City of West Memphis followed the proper procedure in enacting the challenged ordinances. This court has not been left with a definite and firm conviction that a mistake his been committed by the trial court. Because the City of West Memphis followed a bona fide procedure, this court need not address the legality of contract zoning at this time.
Affirmed.
Corbin and Imber, JJ., not participating. | [
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Jim Hannah, Justice.
Craighead Electric Cooperative stice. Cooperative”) appeals summary judgment entered against it by the Craighead County Circuit Court. The Cooperative asserts that material questions of fact precluded entry of summary judgment. We agree.
The Cooperative sued Craighead County (“the County”) alleging that in widening roads, the County encroached upon easements and rights-of-way owned or possessed by the Cooperative, causing the Cooperative damages in costs in moving power lines and poles and in taking of the easements or rights-of-way. The County brought a motion for summary judgment asserting that only the County had a right-of-way in the land used to widen the roads because the County had sixty-foot rights-of-way since entry of a County Court order in 1907. The trial court found that the 1907 Order of the Craighead County Court conveyed to the County a sixty foot right-of-way in the four roads at issue in this case.
Because we hold that the 1907 Order does not purport to convey a property interest to the County, we need not address the issue of whether the 1907 Order could convey a property interest to the County, or whether the Cooperative would have standing to challenge any taking by the 1907 Order. We consequently hold that the issue of whether the Cooperative holds easements or rights-of-way that were encroached upon by the County has not been addressed by the trial court. Thus, a question of material fact remains undetermined by the trial court. Therefore, the summary judgment of the Craighead County Circuit Court must be reversed.
Facts
The Cooperative sued the County alleging that the County had encroached on easements and rights of way owned or possessed by the Cooperative. More specifically, the Cooperative alleged that the County enlarged roadways without notice, and in some instances with notice, moving road ditches and soil so as to leave Cooperative power poles unsupported, leaning, and otherwise in unsafe conditions that required the Cooperative to move poles and power lines at its own expense. The Cooperative sued for $100,171.20 in compensation for property taken and for costs of moving lines and poles caused by the widening of four specific roadways. The Cooperative further sought declaratory judgment that compensation would be required for future takings by the County and for costs and fees.
The County moved for summary judgment under Ark. R. Civ. P. 56, alleging that the Cooperative had no property rights in the affected easements, nor any equitable right to compensation. The County also argued that the Cooperative decided to move the poles on its own, and that there was no taking.
The trial court granted summary judgment, finding that a 1907 Craighead County Court order conveyed a sixty-foot easement to the County on all the affected roads; therefore, the Cooperative held no interest in the land on which the poles stood. The trial court further found that pursuant to the common-law rule, the Cooperative had to bear its own costs of relocation. The trial court additionally found that if there was an issue of an unconstitutional taking under the 1907 order, the Cooperative lacked standing to raise it; instead the affected landowners had to raise the issue. The Cooperative appeals the summary judgment.
Standard of Review
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002); George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the 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. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, supra.
Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Cole, supra; Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Cole, supra; George, supra.
Easements and Rights-of-Way
We note first that the parties use the terms right-of-way and easement interchangeably. A right-of-way is an easement and “right-of-way” is usually the term used to describe the easement itself or the strip of land which is occupied for the easement. Loyd v. Southwest Ark. Util. Corp., 264 Ark. 818, 825, 580 S.W.2d 935 (1979). Also, as the County asserts in citing Arkansas State Highway Commission v. Cordes Motors, Inc., 315 Ark. 285, 867 S.W.2d 178 (1993), a right-of-way or easement in a road may be acquired by prescription. The Cooperative asserts that it holds a right-of-way in the land used by the County to widen the subject roads. The County argues that by way of the 1907 Order, it has a right-of-way in the land used to widen the roads.
The parties agree that the landowners adjoining the roads hold the fee in the land, and that any right to use the land consumed in widening the roads comes by way of an easement or right-of-way. A right-of-way or easement is entitled to all the constitutional protections afforded other property rights. Southwestern Bell Tel. Co. v. Davis, 247 Ark. 381, 385, 445 S.W.2d 505 (1969).
We will first dispense with the argument that the 1907 Order conveyed a right-of-way to the County. The August 17, 1907, Order of the Craighead County Court states:
On this day it is ordered by the Court that all Public Roads established in Craighead County, where the order establishing same fails to state the width, shah be construed to read sixty feet.
The trial court found that this order was effective to confer on the County a right-of-way of sixty feet in the roads in question. By’ its terms the 1907 Order does not attempt to confer an interest in property. The 1907 Order attempts to modify county court orders establishing roads that are silent regarding the width of the road to be established. It goes no further. Therefore, no property right was conveyed by the 1907 Order alone.
The County alleges that even without the 1907 Order, the Cooperative failed to prove below that it held an interest in the land where its poles and power lines were located, that it has no franchise or deed proving ownership, that it has agreements showing entry on to the land was permissive, that it could acquire no easement against the County by adverse possession, and that the common-law rule is utilities pay their own costs of relocation.
The trial court’s order on summary judgment does state that to prevail in the event the 1907 Order was ineffective, the Cooperative had to show that it held an easement by prescription, that the County encroached on that easement, and that the Cooperative suffered damages. However, the trial court found the 1907 Order to be effective and consequently made no determination of what other rights might exist in the easement, whether those rights are held by the County or by the Cooperative. It is also true that the trial court additionally found that applying the common-law rule that utilities pay their own relocation costs meant the Cooperative was responsible for the costs of relocation. The Cooperative challenges this finding, and we agree that application of the common-law rule in Arkansas is limited and not applicable in this case.
Whether the County, the Cooperative, or both possess a right-of-way in the land adjoining the roadway has not been determined below. We note that if the County had a prescriptive right-of-way in the roads as they existed before widening, that right-of-way does not vest in the County the right at a later date to widen or enlarge the prescriptive right except by just compensation to or the permission of the adjoining easement owner or landowner. Davis, supra.
The trial court must determine what rights, if any, both the County and the Cooperative may possess in the land used to widen the subject roads. The Cooperative alleged by way of the Affidavit of Cooperative manager Wayne Honeycutt that the Cooperative has never sought permission to enter the land where its poles and lines are located, and that the Cooperative maintained the poles and lines, and cut tree limbs, trees, and brush in the area where the poles are located. According to Mr. Honeycutt, the use of the land has always been under a claim of right. There is a material question of fact regarding whether the Cooperative has a prescriptive right in the land used to widen the subject roads. Likewise, the County alleges a similar right in the same land.
The evidence shows that the poles and power lines were placed along the subject roads at the latest between 1947 and 1951. There is no evidence that the Cooperative obtained and recorded written easements or that it obtained permission. Some records were provided showing power customers in the last few years have agreed to grant and convey an easement, but no easements were recorded based on these agreements, which likely long post-date any interest by prescription acquired by the Cooperative anyway. The trial court stated in a footnote to its order that the later agreements granting the right to obtain an easement would show entry was now by permission. The agreement was to “grant and convey an easement” or right-of-way, and therefore was an agreement to convey an interest in the property. Such a property interest would be due constitutional protection by the courts. Davis, supra. The agreements do not grant permission to enter onto the property. The language in the agreements cuts against the County and tends to show the entry on the land was not permissive.
The facts in this case are simply that the subject four roads were built at an undetermined earlier date and constructed at that time of undetermined dimensions. The County asserts that it has a prescriptive right in the land used in widening the roads, and that the Cooperative may not acquire an interest in the property by adverse possession because adverse possession is not effective against the County as a part of the State. The parties agree that the Cooperative could not obtain a property interest in the County’s property by adverse possession. This is a correct statement of the law. Arkansas Game and Fish Comm’n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987). However, the Cooperative does not assert that it has acquired a right-of-way against the County by adverse possession or prescription, but rather that it has acquired that right against the fee holder. This court in Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 95, 97 S.W.2d 624 (1936), stated:
The highway department had a right to condemn or take a right-of-way over appellant’s land. It, however, could not do this without paying him just compensation therefor, and it would have no right to appropriate or take the right-of-way over one’s land for any purpose other than for a highway for the use of the public, and every additional servitude to which the land is subjected entitles the owner to compensation for such additional servitude.
Cathey, 193 Ark. at 95. This court in Cathey, supra further stated:
The condemnation of land for a highway does not deprive the landowner of the fee in the land, but the right-of-way gives the public the right to use it as a highway. The appellee, having erected its poles and wires on appellant’s land, was a trespasser and liable for nominal damages whether there were any actual damages or not.
Cathey, 193 Ark. at 94. This encroachment by the power company constitutes a new servitude. Cathey, supra; Southwestern Bell Tel. Co. v. Biddle, 186 Ark. 294, 298, 54 S.W.2d 57 (1932). See also, Padgett v. Arkansas Power & Light Co., 226 Ark. 409, 413, 290 S.W.2d 426 (1956). The parties agree that the roads, and the poles and power lines, constitute an encumbrance on the property of the adjoining landowners. The trial court must determine who had what rights in the land used in widening the roads. If the Cooperative has property rights in the easements adjoining the subject roads, it may not be ousted from its occupancy of that portion of the street or easement or forced to move or relocate without just compensation for its costs. City of Little Rock v. Ark. La. Gas Co., 261 Ark. 347, 548 S.W.2d 133 (1977). It may turn out that the Cooperative has no such right, but to date, neither the rights of the Cooperative nor the rights of the County have been determined by the trial court.
Common Law and Franchises
The trial court found that the common law requires a utility to bear its own relocation costs where the county widens its roads. The County asserts that under the common-law rule, outside of four exceptions, a utility must bear its own costs of relocation. The County attempts to expand the common-law rule beyond its bounds in Arkansas. The general common-law rule is that a utility must bear its own relocation costs when relocation of equipment is required by public necessity. Southwestern Bell Tel. Co. v. City of Fayetteville., 271 Ark. 630, 634, 609 S.W.2d 914 (1980). It should be noted that in the City of Fayetteville, this court noted that our decisions were departing from the very common-law rule cited by the County. City of Fayetteville, 271 Ark. at 635. It also must be noted that in neither of the cases cited by the County was the utility forced to pay the costs of its relocation. Further, the County’s argument about the common-law rule ignores the Cooperative’s argument it has a property right in a right-of way that would be violated.
The existence of a public necessity allows the state to exercise its police power. Phillips v. Town of Oak Grove, 333 Ark. 183, 189, 968 S.W.2d 600 (1998). The police power is an attribute of sovereignty and a necessary attribute of every civilized government. It is a general term used to express the particular right of a government which is inherent in every sovereignty. Geirin v. City of Little Rock, 203 Ark. 103, 108, 155 S.W.2d 719 (1941), citing 11 Am. Jur. 245. See also Arkansas County v. Burris, 308 Ark. 490, 496, 825 S.W.2d 590 (1992). However, this court has stated that the police power should not be indiscriminately or unnecessarily used, that the police power of the State is one founded in public necessity, and this necessity must exist in order to justify its exercise. Ark. State Hwy. Comm’n v. Ark. Power & Light Co., 231 Ark. 307, 311, 330 S.W.2d 77 (1959). See also Hand v. H & R Block, Inc., 258 Ark. 774, 528 S.W.2d 916 (1975); Beaty v. Humphrey, 195 Ark. 1008, 1013-1014, 115 S.W.2d 559 (1938). In Arkansas State Highway Commission, a case involving a utility, this court determined that there was no need to use the police power because the authority under which the Highway Commission intended to undertake construction provided that the prop erty and property rights may be acquired by gift, devise, purchase, or condemnation. Ark. Code Ann. § 27-68-108 (Repl. 1994). The road construction at issue was undertaken under this same statute.
The County alleges that case law supports the conclusion that under these facts, the Cooperative must bear its own costs to move the poles and power lines, citing language in Ark. State Hwy. Comm, supra., “But even though the Power Company has the right to maintain its poles on the rights of way, it does not mean that the company could not be compelled to move its facilities so as to not unnecessarily interfere with the use of the streets.” Ark. State Hwy Comm’n, 231 Ark. at 309. The Arkansas State Highway Commission case and the quoted language is cited in the dissent in Southwestern Bell Tel. Co. v. City of Fayetteville, 271 Ark. 630, 636, 609 S.W.2d 914 (1980). However, in Ark. State Hwy. Comm’n, the court was discussing a written franchise granted to the power company by the City of El Dorado, which provided, “provided the streets, alleys, avenues, and sidewalks shall not be unnecessarily and unreasonably impaired or obstructed.” Ark. State Hwy. Comm., 231 Ark. at 310. Arkansas Power & Light Co., supra, also involved a franchise. A review of the briefs, abstracts, and addendums reveals no franchise in the present case. Indeed, the County argues in its brief at page thirteen that the Cooperative has failed to produce a franchise or contract. Whatever rights the Cooperative has neither arise from nor are controlled by a written franchise or contract.
The trial court must determine whether the Cooperative acquired a prescriptive right in the property where the poles and power lines were located. That right is against the landowner as a new servitude on the land. As discussed above, the landowner still holds the fee. The cases distinguish the erection of utilities as distinct and not subservient to any right-ofrway or easement the County may have for construction of a road. The County, however, notes that under Ark. Code Ann. § 18-15-803 (Supp. 2001), the Cooperative may construct its poles and power lines along a public highway. The County goes on to note that Ark. Code Ann. § 18-15-503 does not require that the Cooperative pay for a right-of-way and also does not require that the Cooperative be compensated when it must relocate its poles. This statute sets out the right to acquire a right-of-way. Loyd, supra. However, a right-of-way is not granted by the statute. The Cooperative is claiming the right-of-way by adverse possession as against the landowners.
If the Cooperative has a property interest in the land where the poles and power lines were standing before the subject four roads were widened, then forcing the movement of the poles and power lines may constitute a taking that requires compensation. The common-law rule is not that a utility is required to bear the costs of its own relocation where the county widens a road, but rather the common-law rule is that a utility must bear the costs of its own relocation when relocation of that equipment is required by a public necessity. Southwester Bell Tel. Co., supra.
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WH. “Dub” Arnold, Chief Justice.
Appellant, Anthony Tyrone Matthews, brings ce. appeal from his conviction of first-degree murder and life sentence imposed in connection with the shooting death of Alfredo Resendiz, which occurred on October 27, 2000, in Newport, Arkansas. Appellant asserts the following three points on appeal:
1) The trial court erred when it denied the appellant’s motion in limine to exclude overly prejudicial photographs of the crime scene;
2) The trial court erred when it denied the appellant’s objection to overly prejudicial evidence being admitted into evidence;
3) The trial court erred when it allowed the use of an uncertified interpreter at the trial.
Finding no error, we affirm.
I. Photographs
For his first point on appeal, appellant asserts that the trial court abused its discretion in admitting certain photographs of the victim that he alleges were more prejudicial than probative. In Barnes v. State, 346 Ark. 91, 55 S.WAd 271 (2001), this Court discussed the admission of photographs.
The admission of photographs is a matter left to the sound discretion of the trial court. Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). When photographs are helpful to explain testimony, they are ordinarily admissible. Id. (citing Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995)). Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Id. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence. Id.
Barnes, 346 Ark. at 104, 55 S.W.3d at 281.
In the instant case, the State was allowed to introduce photographs that depicted the deceased victim in various manners or views. These photographs were the subject of a pretrial hearing on the appellant’s motion in limine seeking their exclusion. At the hearing, defense counsel raised various objections to photographs he anticipated would be proffered by the State. The State proffered eleven photographs. State’s Exhibit No. 1 (admitted at trial as State’s Exhibit No. 16), was an overhead view of the crime scene to which defense counsel offered no objection. State’s Exhibits Nos. 2-6 were various views of the victim, and State’s Exhibits Nos. 7-11 were photographs taken during the autopsy of the victim, Alfredo Resendiz. The trial court examined each of the photographs and heard arguments of counsel. The trial court subsequently excluded State’s Exhibits Nos. 3, 9, and 11, finding that these photographs were duplicative of remaining photographs.
At trial, the State sought to prove that the appellant shot and killed the victim during the course or in furtherance of a robbery. To that end, the State called witnesses familiar with the scene of the crime and the discovery of the victim as well as the medical findings of the autopsy. The State called James Duvall, a lieutenant with the Newport Police Department, who testified that he was the supervising officer of the investigation surrounding the death of the victim.
Duvall testified that, on the night of the shooting, he arrived at the scene at approximately 9:30 p.m. and, as part of his duties, photographed the crime scene with the body of the victim present and, subsequently, took additional photographs after the victim’s body had been moved to the funeral home to await transport to the Arkansas State Crime Lab for an autopsy. Duvall described State’s Exhibit No. 12 as a photograph of the victim as he lay in the street, where the shooting occurred. Duvall further described State’s Exhibits Nos. 13, 14, and 15 as photographs depicting wounds to the victim’s head and the bagged hands of the victim.
Duvall explained that, in the course of the investigation, the appellant had indicated that he had struggled with the victim and that his gun had accidentally discharged. According to Duvall, the victim’s hands were bagged in order to preserve evidence that might have indicated signs of a struggle. Duvall also testified that when he interviewed the appellant, he had incorrectly assumed that the smaller bullet wound to the victim’s forehead had been the entry wound and that the large wound to the back of the victim’s head had been the exit wound. Duvall said that, during the course of several interviews, the appellant first denied involvement, then accused another person of the shooting, and, finally, admitted participation, but maintained that his gun accidentally discharged during his struggle with the victim.
Dr. Stephen Erickson, qualified as an expert in the area of forensic pathology to give his opinion as to the cause and manner of death of the victim, testified that he performed an autopsy on the body of the victim, whom he identified as Alfredo Resendiz, a twenty-two-year-old Hispanic male. He testified that, prior to his external examination of the victim, he learned that the victim had been involved in a shooting. Consequently, his external examination of the body took this into account and was part of his testimony. Erickson said he noted a small abrasion on the back of the victim’s right elbow and a small abrasion and contusion on the mid-forehead, from which he concluded that the victim had fallen to the ground after having been rendered unconscious by the gunshot wound to the head.
Erickson further testified that his examination revealed a through-and-through gunshot from the back of the head, in the hairline, with an exit wound located at the left forehead. In order to further examine and document his findings, Erickson said that the area around the wound was shaved and photographed. Erickson described State’s Exhibit No. 19 as a photograph of the face and forehead of the victim that included an area that had been shaved to reveal the exit wound with a ruler placed in the photo to indicate the correct scale of the depiction. Erickson identified State’s Exhibit No. 20 as a photo of the bullet entry-wound to the victim after having been cleaned and shaved to reveal the physical characteristics of the wound. State’s Exhibit No. 21 was identified by Erickson as a photo of the victim’s upper back and head with the bullet wound to the back of his head as he initially observed it.
Erickson said that after his examination of the physical characteristics of the head wound (depicted in the photos), he proceeded to determine the distance between the victim and the weapon when the weapon was fired. Erickson explained that firearm distance is classified in three categories: contact; close range, where powder from the firearm comes out and marks the skin; or distant, where the powder has lost its energy and does not reach to the skin of the target. With regard to the victim’s wound, he stated that it was' consistent with that of a contact wound, in that the muzzle appeared to have created a seal against the skin and that, together with the projectile, gases associated with the firearm’s discharge go underneath the scalp and deposit soot into the adjoining tissue.
Appellant principally relies on the case of Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1996), for the proposition that the introduction of photographs depicting the victim and his wounds was more unfairly prejudicial than probative. Appellant’s reliance on Berry is misplaced. In Berry, there was clearly more of a “carte blanche acceptance” of graphic and repetitive pictures of the victim and the crime scene. Id. at 227, 718 S.W.2d at 450. This Court observed, in Berry, that the only real issue at trial was whether the defendant had helped plan the crime. We further described the use of photographs, which clearly distinguishes the instant case, as follows:
[T]he probative value of the photographs in this case was limited to the cause and nature of death and would easily have been satisfied by introduction of a reasonable number of photographs depicting the injury to the victim and showing the crime scene.
Id. at 233, 718 S.W.2d 453.
In the instant case, the trial court exercised its discretion in excluding three of the ten photographs objected to as being cumulative or repetitive. Even if the remaining photos could be characterized as “inflammatory,” they are admissible at the discretion of the trial judge if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony. Perry v. Smith, 255 Ark. 378, 500 S.W.2d 387 (1973). The testimony at trial revealed that, initially, the police believed (incorrectly, as it turned out) that the bullet that had killed the victim had struck him from front to back. Additionally, the police had taken various statements from the appellant, who had given varying accounts of the shooting and his participation therein. The seven remaining photos depicted what the police initially observed, the steps they took in their investiga tion, and what, ultimately, the medical examiner determined had happened.
In short, the photos of the victim’s wounds clearly served to corroborate the testimony of Dr. Erickson and served to explain the course of the police’s investigation. Based upon these accepted purposes for the photographs, the trial court was within its discretion in admitting them. We, therefore, affirm the trial court’s admission of the photographs in question.
II. Testimony Regarding Location of Appellant’s Arrest
The appellant’s next point on appeal is that the trial court abused its discretion in allowing testimony that he was arrested on the night of the shooting at a Newport liquor store with another suspect and in possession of several bottles of wine. The State contends that the testimony was offered, and is properly admissible as such, to demonstrate the appellant’s state of mind, i.e., his motive or intent. The State further points out that, although appellant did object to the testimony in this regard, he failed to request a limiting instruction with regard to the jury’s consideration of this evidence and, as such, the trial court should be affirmed. We agree.
The appellant was initially charged with capital murder, in that he, or an accomplice, caused the death of the victim during the commission of a robbery. Ark. Code Ann. § 5-10-101 (Repl. 1997). The underlying felony of robbery requires that the actor must act “with the purpose of committing a felony or misdemeanor theft[.]” Ark. Code Ann. § 5-12-102(a) (Repl. 1997). As part of its case-in-chief, the State sought to demonstrate the appellant’s motive and intent for the commission of the offense. The admission of evidence showing motive is a matter left to the discretion of the trial court, which will be reversed only for an abuse of that discretion. E.g., Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). In Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002), we reiterated the long-held rule that where the purpose of evidence is to disclose a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Id. at 494, 79 S.W.3d at 287.
At trial, the State adduced evidence regarding the planning and commission of the robbery and shooting death of Alfredo Resendiz. This evidence came largely from the statements made by appellant to the police. The evidence established that, after learning that the victim carried money, appellant’s motive was to rob the victim. However, appellant claimed that the victim was shot as the result of his firearm accidentally discharging. The appellant claims that evidence that he was apprehended outside a liquor store after having just made a purchase was more unfairly prejudicial than probative. While the appellant claims that evidence of the circumstance of his arrest was not “narrowly” drawn, the State submits otherwise. We agree with the State.
Testimony indicated that the victim was shot on the night of October 27, 2000, and that police responded at approximately 9:30 p.m. After interviewing witnesses at the scene, the appellant was sought in connection with the shooting. Scott Bridgeman, an officer with the Newport Police Department, testified that he apprehended appellant in the company of another person also sought, as the two, on that same night, were leaving a Newport liquor store where they had just purchased several bottles of wine.
The purchase of wine being a legal act in Newport, Arkansas, the appellant’s assertion begs the question of how his apprehension there could be deemed prejudicial. That he would be making such a purchase on the same night that he had robbed and gunned down his victim in the middle of a city street, however, is highly probative of his intent to rob and his motive for doing so. The circumstances that tie a defendant to the crime or raise a possible motive for the crime are independently relevant and admissible as evidence. E.g., McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). It is far-fetched to suggest that a jury would convict a defendant of first-degree murder solely on the ground that he was a wine addict. Had there been the remotest possibility that the jury would have based the appellant’s conviction solely on the location of his arrest, he could have requested that an instruction be given, instructing the jury as to the purposes for which it could consider the admitted evidence. Appellant requested no such instruction. As such, we find no error with regard to any testimony about the location of appellant’s arrest.
III. Interpreter
The appellant’s final point on appeal is whether the trial court erred in employing a noncertified foreign-language interpreter to assist in translating some of the responses of family members of the victim during the sentencing phase of his trial. Based upon this fact alone, appellant contends that his sentence should be reversed and remanded for a new sentencing hearing. We disagree.
The appellant was found guilty of first-degree murder, and the trial proceeded to sentencing, at which time, the State called Jose Resendiz, brother of the victim. Resendiz testified in English and served as the representative of the family. In that capacity, Resendiz proffered a document, written in Spanish, by family members that corresponded to a written English translation. Both the document written in Spanish and the one in English (State’s Exhibits Nos. 29 and 30) were admitted without objection from appellant. Prior to Resendiz reading from the victim-impact statement, the trial court summoned Ms. Isaac to the witness stand in order for her to affirm the translation of the written responses. At that time, defense counsel waived reading of the oath to Ms. Isaac; however, the trial court subsequently placed Ms. Isaac under oath and received an affirmation from her that her translation accurately reflected the responses of the witness(es).
It does not appear that the prosecutor proffered Ms. Isaac as a certified interpreter or that the trial court qualified her as a non-certified court interpreter pursuant to this Court’s directives. It does appear, however, that Ms. Isaac’s principal role was to explain court proceedings to members of the victim’s family. It does not appear that Ms. Isaac was called upon to translate in the usual question-and-answer format normally conducted during direct and cross-examination of witnesses. As such, we find no error in her limited participation.
In short, Ms. Isaac was not called upon to translate in the usual question-and-answer format; moreover, both the document written in Spanish and the one in English were admitted without objection by appellant; as such, we affirm the trial court’s admission of such documents and find no error in Ms. Isaac simply affirming that her translation accurately reflected the responses of the witness(es)’ statements offered in written documents to which no objection was made.
IV. Rule 4-3 (h) Compliance
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.
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Tom Glaze, Justice.
The Arkansas Department of Envitice. Quality (“DEQ”) appeals from an order of the Jefferson County Circuit Court dismissing its complaint with prejudice. This appeal requires us to construe Ark. Code Ann. § 8-7-501 et seq. (Repl. 2000), the Remedial Action Trust Fund Act (“RATFA”), and jurisdiction is therefore proper in this court under Ark. Sup. Ct. R. l-2(b)(6).
On March 15, 2001, DEQ filed a lawsuit against fifteen separate defendants, seeking a declaratory judgment. The fifteen defendants were alleged to be customers of a defunct corporation called Utility Services, Inc. (“USI”), a company that, from 1975 until 1984 or 1985, had operated on a thirty-acre site in Jefferson County. According to DEQ’s complaint, USI engaged in the repair and maintenance of various electrical equipment and components. One of the activities conducted by USI was the treating and filtering of spent oil containing polychlorinated biphenyls, or PCBs, from electrical transformers and other electrical equipment at the site for the purpose of reclaiming the oil or restoring it to or near its original properties. USI also bought or otherwise acquired used PCB-containing oil from other facilities that wished to dispose of the oil and treated or filtered it, as described above, to use in its operations or to sell to other facilities. The treating, filtering, and reclaiming process removed hazardous substances and hazardous wastes from the oil, which was then disposed of at the site. USI additionally operated a wood-treating operation at the site; in that process, the PCB-containing oil was used to preserve wood products.
The complaint further alleged that the defendants, who were individual USI customers, generated and/or transported hazardous substances and hazardous wastes, including PCB-containing oil, to the site for disposal. DEQ alleged that the disposal of the hazardous substances and hazardous wastes was conducted in such a manner as to constitute unsound disposal and management practices. DEQ claimed that USI used oil disposed of by the defendants at the site to conduct its wood-treating operations, and as a result of these processes, hazardous substances and hazardous wastes were spilled on the ground, thereby contaminating surface and subsurface waters around the site.
In November of 1990, according to the complaint, DEQ personnel conducted an investigation on the USI property. The investigation revealed a number of drums and tanks, some of which were deteriorating, and which contained high levels of PCB-containing oils, trichloroethene, and tetrachloroethene. In addition, the investigation revealed that the soil in and around the site was contaminated with oil, PCBs, and pentachlorophenol. DEQ asserted that its investigation was limited, but other hazardous wastes were also likely to be present at the site.
On February 21, 1991, DEQ entered into a Consent Administrative Order with Entergy Arkansas, Inc., one of the named defendants, to perform certain preliminary actions to stabilize and secure the site and to reduce the potential for further release of hazardous substances and hazardous wastes. The Consent Administrative Order further provided that the stabilization actions undertaken by Entergy would not constitute final action at the site and that a final remedial action would be negotiated.
On May 12, 1993, DEQ entered into a second Consent Administrative Order with the “Utility Services PRP Committee,” primarily for the purpose of removing drums of hazardous substances from the site. On that same day, pursuant to Ark. Code Ann. § 8-7-508 (a)(1) and § 8-7-511, DEQ issued an “Administrative Notice of Liability and Request for Information” to a number of entities, including the defendants; however, none of the parties notified of responsibility accepted responsibility for final remediation of the site.
DEQ took no further action regarding this site until it filed suit in March of 2001, seeking a declaratory judgment that the defendants were liable parties under RATFA as either generators or transporters of hazardous substances. The complaint also sought a declaratory judgment that the defendants committed an unlawful act under Ark. Code Ann. § 8-7-201 et seq. (Repl. 2000), the Arkansas Hazardous Waste Management Act (“AHWMA”), by storing, collecting, transporting, treating, or disposing of hazardous waste in such a manner or place as to create, or which was likely to create, a public health hazard.
In response, twelve of the defendants filed motions to dismiss under Ark. R. Civ. P. 12(b)(6), raising four primary issues: 1) DEQ’s complaint failed to allege specific facts upon which relief could be granted; 2) the conduct complained of in DEQ’s complaint arose before the passage of RATFA, and RATFA’s provisions could not be applied retroactively; 3) the “recycling presumption” for used oil contained in DEQ Regulation 23 applied to the defendants; and 4) DEQ was precluded from initiating its action due to the three-year statute of limitations. On September 18, 2001, the trial court conducted a hearing on the defendants’ motion to dismiss.
Subsequently, on November 21, 2001, the trial court issued a letter order in which it agreed with the defendants that DEQ failed to state sufficient facts in its complaint on which relief could be granted, that RATFA could not be applied retroactively to conduct that occurred before its passage, and that the recycling provision of Regulation 23 exempted the defendants’ conduct at the USI hazardous-substance site. However, the trial court agreed with DEQ that the case was not barred by the three-year statute of limitations. The letter order was reduced to an Order of Dismissal, filed on December 12, 2001, which dismissed DEQ’s complaint without prejudice. DEQ then elected to appeal from that order.
On appeal, DEQ first contends that the trial court erred in granting the defendants’ motion to dismiss, asserting that it stated sufficient facts in its complaint to make the complaint legally sufficient. In a related issue, DEQ urges that RATFA extends liability to “generators” and “transporters” who cause the disposal of hazardous substances; on this point, DEQ takes issue with the trial court’s conclusion that its complaint did not sufficiently allege that any of the defendants actively “disposed” of any hazardous substances at the USI site. Because these two points are so closely linked, we treat them together.
As an initial matter, although DEQ suggests that this court should apply a de novo standard of review to its determina tion of the propriety of the trial court’s granting the defendants’ motion to dismiss, our standard of review in such appeals is well-settled. In reviewing the trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002); Martin v. Equitable Life Assurance Soc’y, 344 Ark. 177, 40 S.W.3d 733 (2001). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Clayborn, supra. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Ark. R. Civ. P. 8(a). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Country Corner Food & Drug, Inc. v. First State Bank & Trust Co., 332 Ark. 645, 966 S.W.2d 894 (1998).
Arkansas’s rules of civil procedure make it clear that a pleading which sets forth a claim for relief “shall contain ... a statement in ordinary and concise language offacts showing that the . . . pleader is entitled to relief[.]” Ark. R. Civ. P. 8(a) (emphasis added). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated many times that these two rules must be read together in testing the sufficiency of the complaint; we have stated with equal frequency that facts, not mere conclusions, must be alleged. Brown v. Arkansas Dep’t of Correction, 339 Ark. 458, 6 S.W.3d 102 (1999); Malone v. Trans-States Lines, Inc., 325 Ark. 383, 926 S.W.2d 659 (1996); Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Rabelais v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). This court has specifically and deliberately rejected the theory of notice pleading. See McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992); Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981) (noting that the Arkansas Rules of Civil Procedure contain a “significant departure from the Federal Rules of Civil Procedure” in both Rule 8 and Rule 12; the federal rule speaks only in terms of a “claim,” whereas the Arkansas rules specifically require a statement of “facts”).
This court has frequently had the opportunity to consider what constitutes a statement of facts sufficient to survive a Rule 12(b)(6) motion to dismiss. In Malone v. Trans-State Lines, supra, appellant Malone filed a complaint alleging that his employer had discriminated against him in violation of the Arkansas Civil Rights Act. In his complaint, Malone averred that he “had a disability within the meaning of the Arkansas Civil Rights Act.” Noting that “disability” was defined within the Act as a “physical or mental impairment that substantially limits a major life function,” see Ark. Code Ann. § 16-123-2102(3), this court affirmed the trial court’s dismissal of the complaint, holding that Malone’s complaint contained no allegation of facts to support the conclusion that he met the definition of “disability.” Malone, 325 Ark. at 386.
Similarly, in Hollingsworth v. First Nat’l Bank & Trust Co., supra, this court affirmed the dismissal of Hollingsworth’s complaint. Hollingsworth filed a complaint alleging malicious prosecution and the tort of outrage against First National Bank. The bank had previously instituted a “RICO” action against her in federal court, where Hollingsworth prevailed. In her complaint, Hollingsworth set out the RICO allegations the bank leveled against her, stated that she had been absolved of those allegations, and further asserted that the bank had commenced the federal action maliciously and without probable cause. She also complained that the bank was liable for the tort of outrage because its actions were extreme and outrageous beyond the bounds of decency. The bank moved to dismiss under Rule 12(b)(6), and the trial court granted the motion. Hollingsworth, 311 Ark. at 639.
On appeal, this court affirmed, first setting out the elements of the torts that Hollingsworth alleged the bank had committed. The court then concluded that the complaint fell short of pleading a cause of action for malicious prosecution because it failed to plead sufficient facts to show either malice or lack of probable cause, writing as follows:
In their complaint, [Hollingsworth] mentionfs] no facts bearing on the background for [the bank] having filed the RICO action. [Hollingsworth] merely allege [s] [she] prevailed against [the bank’s] allegations which is not the same as saying [the bank] had no probable cause to file the action in the first place. Concerning appellant Hollingsworth, the federal court obviously ruled sufficient evidence had been presented to send her case to the jury. Such a ruling itself indicates probable cause accompanied the RICO action that the [bank] filed against her. Regardless, [Hollingsworth’s] merely stating that the [bank’s] actions were malicious is not sufficient to meet the pleading requirements under ARCP Rule 8(a)(1). The only facts ... set out in the complaint were that Hollingsworth had been served while she was working at a school in front of some of her students and this manner of service was used to embarrass and humiliate her. Again, such an allegation has little to do with whether [the bank] had probable cause to bring the earlier RICO action against appellants. Likewise, [Hollingsworth] failed to plead any facts to support [her] cause of action for tort of outrage besides merely stating in summary fashion that the [bank’s] actions were “extreme and outrageous beyond the bounds of decency.” Accordingly, we uphold the trial court’s decision to dismiss [the] complaint.
Hollingsu/orth, 311 Ark. at 640-41.
In Brown v. Arkansas Department of Correction, supra, this court again affirmed the trial court’s granting of a motion to dismiss. There, Elizabeth Brown filed suit against the Department of Correction, alleging that the Department had violated her due-process rights in numerous ways. In affirming, this court noted that, although Brown’s complaint was lengthy and referenced numerous statutory and constitutional provisions, it failed to set forth facts sufficient to state a claim. Specifically, the Brown court held that she had “merely claimfed] in conclusory fashion that her due-process rights were violated, but she fail[ed] to set forth the facts necessary to support her claim.” Brown, 339 Ark. at 461.
On the other hand, in Rabalais v. Barnett, supra, this court reversed the trial court’s decision to grant a motion to dismiss with respect to one count in the complaint. The Rabalaises sued five members of the First United Methodist Church in Batesville for breach of contract and for the tort of outrage. This court agreed that the Rabalaises failed to state facts to support the outrage claim, where the complaint only asserted that the defendants “wilfully and wantonly breached the contract ... to repair and rebuild the church organ causing the Rabalaises emotional distress.” Rabalais, 284 Ark. at 528.
However, the court reversed the trial court’s dismissal of the breach-of-contract claim. This court stated that, in order to state a cause of action for breach of contract, the complaint need only assert the existence of a valid and enforceable contract between the plaintiff and defendant, the obligation of defendant thereunder, a violation by the defendant, and damages resulting to plaintiff from the breach. Id. at 528-29. In their complaint, the Rabalaises alleged that they entered into a contract with the defendants to rebuild the church organ, that the defendants discontinued their services prior to rebuilding the organ, and that the Rabalaises were entitled to damages. An amended complaint had attached to it a copy of the contract and the notice of termination. This court held that the complaint stated a cause of action for breach of contract: “The Rabalaises did not explain in detail all of the reasons for the disagreement, but that is not required. The [Rabalaises] should not be denied their right to the claim.” Id. at 529.
In the present case, DEQ claims it did all that was required to state a cause of action under RATEA. Under RATFA, any one of four parties may be liable to the State for all costs of remedial actions under the Act: (1) the owner and operator of a facility; (2) any person who, at the time of disposal of any hazardous substance, owned or operated a hazardous substance site; (3) any generator of hazardous substances who, at the time of disposal, caused such substance to be disposed of at a hazardous substance site or who causes a release or threatened release of the hazardous substances; or (4) any transporter of hazardous substances who causes a release or threatened release of the hazardous substances or who, at the time of disposal, selected a hazardous-substance site for disposal of the hazardous substances. Ark. Code Ann. § 8-7-512(a) (Repl. 2000).
DEQ urges this court to conclude that DEQ stated sufficient facts in its complaint, setting forth the elements of a claim under RATFA, to establish a prima facie case that the defendants were liable under these statutes. Specifically, DEQ claims that it was required to allege only that a person generated or transported hazardous substances, caused disposal, or otherwise selected a hazardous substance site for disposal.
In its brief, DEQ asserts that it specifically alleged a number of facts, as follows: 1) the activities at the USI site began in or about 1975; 2) the activities continued until 1984 or 1985; 3) each of the defendants were USI customers who generated and/or transported hazardous substances and hazardous wastes to the site for disposal; 4) the activities that USI performed “on behalf of the defendants in this matter fit into distinct RATFA and AHWMA liability categories”; 5) in conducting these activities “on behalf of the defendants,” USI removed hazardous substances and hazardous wastes from defendants’ oil; 6) these hazardous substances and hazardous wastes were then disposed of on the USI property; and 7) the USI property is contaminated with hazardous substances and hazardous wastes that threaten public health and the environment.
However, despite DEQ’s contention that its complaint made reference to certain activities being conducted “on behalf of the defendants,” a close reading of the complaint reveals that no such allegations were actually made, and the complaint’s allegations almost exclusively refer to USI’s activities and performance, and fails to describe the defendants’ involvement. For example, paragraph 26 of the complaint states that, “[i]n conducting its business, USI provided some or all of the following services.” That paragraph then goes on to list certain services USI performed, including, among other things, the following: treating and filtering spent PCB-containing oil from electrical equipment; testing PCB-containing transformer oil; buying or otherwise acquiring used PCB-containing oil from other facilities that wished to dispose of the oil and treating or filtering that oil; and salvaging and reclaiming component parts of used electrical equipment, including disposing of and reclaiming used PCB-containing oil from that equipment. The complaint then goes on to read that the treating, filtering and reclaiming process removed hazardous substances and hazardous wastes from the oil, and that these hazardous substances and wastes were then disposed of at the site.
Paragraph 31 of DEQ’s complaint is the only averment that the defendants were “individual USI customers who generated and/or transported hazardous substances and hazardous wastes, including, but not limited to, PCB-containing oil, to the site for disposal.” In paragraphs 33, 34, and 35 of the complaint, DEQ alleged that, “[o]n information and belief, USI used oil disposed of by [the] defendants at the site to conduct wood-treating operations. As a result of these processes, hazardous substances and hazardous wastes were spilled on the ground. As a result of this spillage, the surface and subsurface waters around the site were contaminated.”
After describing the investigation undertaken by DEQ in the next several paragraphs, DEQ’s complaint then contains paragraphs 46 through 67, setting out statutory provisions from RATFA and AHWMA, captioned “Violations of Law.” This portion of the complaint includes two paragraphs that purport to state DEQ’s legal claim against the defendants. The RATFA claim, found in paragraph 57, reads as follows:
The Defendants are “persons” that generated or transported “hazardous substances,” and who disposed of such substances at a “hazardous substance site,” or otherwise selected a “hazardous substance site” for disposal, where a “release of hazardous substances” or a “threatened release” occurred, and are therefore liable to the State for all costs of “remedial action.”
Additionally, paragraph 67, concerning the AHWMA claims, states the following:
The Defendants are “persons” who have “transported” and/ or “disposed” of “hazardous wastes” contrary to the rules, regulations, permits, or orders issued under the HWMA or in such a manner or place as to create or as is likely to be created a public nuisance or a public health hazard or to cause or is likely to cause water or air pollution within the meaning of the Arkansas Water and Air Pollution Control Act, and are therefore liable for all costs, expenses, and damages to DEQ and any other agency or subdivision of the State in enforcing or effectuating the provisions of this law, including, but not limited to, natural resource damages.
In granting the motion to dismiss, the trial court focused on these foregoing paragraphs captioned “Violations of Law,” and concluded that, “at the most, [DEQ’s] complaint . . . [consists of] nothing more than generalities and conclusions of law with no specifics alleged as to the individual defendants. [DEQ] has done nothing more than set out in great detail the provisions of RATFA [and AHWMA] and, in effect, alleged that defendants have violated thfese] statute[s].” We agree with the trial court on this issue.
As we pointed out above, the only paragraph directly linking the defendants to USI is paragraph 31, and clearly, that paragraph states only that the defendants were customers who brought their waste oil to USI for disposal. It contains no factual allegations specifying which, if any, of the defendants contributed any PCB-containing oil to the site, how much or when any given defendant may have contributed used oil, or the purposes for which the defendants conducted business with USI. The mere recitation that the defendants were “generators” or “transporters” who brought hazardous substances or hazardous waste to the USI site “for disposal,” without any further facts to support a conclusion that the defendants came within the meanings of these terms, simply fails to comport with our fact-pleading requirements. See Malone, supra.
The question of whether the defendants brought their oil to USI “for disposal” brings us to DEQ’s second point, wherein DEQ argues that the defendants “caused” a “disposal.” As noted above, in order to be subject to liability under RATFA, one must have been a generator of hazardous substances who, “at the time of disposal, caused such substance to be disposed of at a hazardous substance site or who causes a release or threatened release of the hazardous substance.” § 8-7-512(a)(3) (emphasis added). Alternatively, one may be liable as a “transporter of hazardous substances who causes a release or threatened release of the hazardous substances or who, at the time of disposal, selected a hazardous substance site for disposal of the hazardous substances.” § 8-7-512(a)(4) (emphasis added).
The word “disposal” has a specific meaning within the context of RATFA. Although the word itself is not defined in RATFA, that Act provides that the word “shall have the meaning provided in § 3 of the Arkansas Hazardous Waste Management Act.” The AHWMA, in turn, defines disposal as the “discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land or water in whatever manner so that such hazardous waste or any constituent thereof might or might not enter the environment or be emitted into the air or discharged into any waters including groundwaters.” Ark. Code Ann. § 8-7-203(4) (Repl. 2000).
In considering the meaning of a statute, our first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens, supra (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Finally, the ulti mate rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).
Here, we are called upon to determine what is meant by the word “disposal.” The defendants urge an interpretation that requires some temporal link between the causation and the disposal. The defendants focus on the phrase “at the time of disposal,” contained in subsections (a)(3) and (4) of § 8-7-512. This language, they contend, requires direct, active involvement, and further requires that the actions of the generator or transporter of the 'hazardous substances in “causing” the substance to be disposed of must take place at the same time the disposal actually occurs. Because DEQ failed to allege facts that the defendants were present at the time USI actually disposed of the hazardous substances, the defendants urge that they did not “cause” the disposal of any such substances.
DEQ, on the other hand, argues in its brief that there should be no temporal limitations on activity, and maintains that, as a result, it should not be required to aver facts of actual disposal. Further, at oral argument, DEQ contended that the “at the time of disposal” language is merely surplus verbiage that means nothing. However, we cannot so lightly dispose of language that the General Assembly must have inserted to serve some purpose. In construing a statute, it is our duty to construe it just as it reads, giving the words their plain and ordinary meanings. See ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). To simply ignore this clause would be to disregard our rules of construction.
We conclude that the phrase “at the time of disposal,” taken in conjunction with the definition of “disposal” found in the AHWMA, should be construed to mean, “at the time the hazardous substances were discharged, deposited, injected, dumped, spilled, leaked, or placed any hazardous substances into or on any land or water.” Given this interpretation, it is glaringly apparent that DEQ’s complaint is bereft of any factual allegations that, at the time of disposal, any of the defendants caused hazardous substances to be disposed of at a hazardous-substance site, or selected a hazardous substance site for disposal of the hazardous substances. Consistent with this view, we point out that the General Assembly, in enacting RATFA, provided that “[n]o person, including the state, may recover under the authority of this section for any remedial action costs or damages resulting solely from an act or omission of a third party[.]” Ark. Code Ann. § 8-7-515(b) (Repl. 2000). Here, that third party was USI. In sum, the General Assembly never intended an innocent customer to be found liable resulting from unlawful conduct by an owner/operator like USI. Therefore, we affirm the trial court’s dismissal of DEQ’s complaint.
Before turning to the defendants’ cross-appeal, we must address what is to befall DEQ’s complaint. When a complaint is dismissed under Rule 12(b)(6) for failure to state facts upon which relief can be granted, the dismissal should be — and here was — without prejudice. See Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). The plaintiff then has the election to either plead further or appeal. Id. When the plaintiff chooses to appeal, he or she waives the right to plead further, and the complaint will be dismissed with prejudice. See Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987). Therefore, the dismissal of DEQ’s complaint is modified to be with prejudice.
On cross-appeal, the defendants argue that the trial court erred in finding that DEQ’s RATFA and AHWMA claims were not barred by the three-year statute of limitations. The defendants urge that the general three-year statute of limitations, found in Ark. Code Ann. § 16-56-105(3) (1997) (governing “all actions founded on any contract or liability, expressed or implied”), should apply to the State, as well as to any private parties that might bring an action under RATFA. In particular, the defendants point to Ark. Code Ann. § 8-7-507 (Repl. 2000), which provides as follows:
Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the federal government and the state government shall be subject to, and comply with, this part in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under this section.
(Emphasis added.) This, according to the defendants, means that the General Assembly has subjected the State, including DEQ, to all provisions of the statute, including liability, in the same manner as any private entity; to argue that this does not include the statute of limitations would require the court to “ignore the clear and simple words of the state.” The defendants argue that, because every alleged illegal activity took place before 1984 or 1985, the statute should have run over a decade ago.
In response, DEQ points out that, ordinarily, the statute of limitations does not run against the State. See Ark. State Hosp. v. Cleburne County, 271 Ark. 94, 607 S.W.2d 61 (1980); Alcorn v. Arkansas State Hosp., 236 Ark. 665, 367 S.W.2d 737 (1963); Jensen v. Fordyce Bath House, 209 Ark. 478, 190 S.W.2d 977 (1945). In Jensen, this court held that it was “well-established that statutes of limitation do not run against sovereign states unless by the terms of the limitation statute it is made applicable to the state[.]” This principle was further explained in Alcorn, supra, as follows:
In a discussion of the question in 34 Am. Jur. p. 309, it is said: “It has been said that the maxim “nullum tempus occurrit regi” is an attribute of sovereignty only, and cannot be invoked by counties or other subdivisions of the state. In many cases, probably a majority, a distinction is drawn between cases where a subordinate political subdivision or agency is seeking to enforce a right in which the public in general has an interest and those where the public has no such interest, and it is held that the statute of limitations, while applicable to the latter character of actions, cannot be interposed as a bar where the municipality is seeking to enforce the former type of action. In these decisions, the view is taken that the plaintiff, in seeking to enforce a contract right, or some right belonging to it in a proprietary sense, may be defeated by the statute of limitations; but as to rights belonging to the public and pertaining purely to governmental affairs, and■ in respect to which the political subdivision represents the public at large or the state, the exemption in favor of the sovereignty applies, and the statute of limitations does not operate as a bar.
Alcorn, 236 Ark. at 670-71 (quoting Jensen, supra) (emphasis provided in original).
In the present case, the “rights” at issue belong to the public — i.e., the enforcement of environmental regulations intended to improve the environment for the benefit of the public — and the state agency represents the public at large; therefore, the exemption applies, and the statute of limitations does not bar the action. The trial court did not err in reaching this conclusion, and we therefore affirm on cross-appeal.
Brown, Imber, and Hannah, JJ., dissent.
The defendants named in the original complaint were Brighton Corporation; Coltec Industries, Inc.; Entergy Arkansas, Inc.; First Electric Cooperative Corp.: Kamo Electric Cooperative, Inc.; Kuhlmen Corporation- on behalf of Kuhlmen Electric Corporation; Magnetic Electric Company; Missouri Public Service; Pirelli Cable Corporation; Reed & McClain Electrical Works, Inc.; Reynolds Metals Company; San Angelo Electric Service Company; Southern Cotton Oil Co.; T&N Electric Company, Inc.; and Texas Eastern Transmission Corporation. They are referred to collectively herein as “the defendants.”
On this point, we note that the defendants offered an apt analogy: if one took one’s car to a garage for a tune-up, and the mechanic dumped the used oil on the ground behind the garage instead of disposing it properly, it could not fairly be said that the car owner “caused” an improper disposal.
DEQ raised two other issues on appeal, challenging the trial court’s conclusions that RATFA could not be applied retroactively to cover events that occurred before that Act’s passage, and that used oil intended for recycling cannot be considered a “hazardous substance” within the meaning of RATFA. However, because we agree that the complaint was factually insufficient, we do not reach or address these last two issues.
“Time does not run against the king.” Black’s Law Dictionary 1068 (6th ed. 1990). | [
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Ray Thornton, Justice.
On October 1, 1992, the stice. Trust was established. The trust was created pursuant to the terms of William Otis Garland, Jr.’s will. Appellant, Donna Summers, was the executrix of Mr. Garland’s estate. First Commercial Bank was appointed the trustee of the Richard David Garland Trust. The trust consisted of a certificate of deposit worth $100,000.
The terms of the trust provided that appellee, Richard Garland, could use the interest generated by the trust property until he was thirty years old. The trust agreement further provided that if appellee died or was convicted of a felony prior to becoming thirty years old, the corpus of the trust would be divided equally between appellant and Ruby Jo Garland Warren.
On December 3, 1993, prior to appellee turning thirty, he pleaded guilty to a class C felony in Johnson County Circuit Court. Appellee was placed on probation for five years, ordered to pay a fine of $1,000, and ordered to pay court costs in the amount of $397.25. Appellee turned thirty on August 9, 2000.
On August 16, 2000, appellee filed a petition in the Johnson County Circuit Court requesting that the previous charges filed against him be dismissed and that the records involved in his case be sealed. On August 23, 2000, the Johnson County Circuit Judge entered an order finding that appellee had satisfactorily complied with the terms of his probation. The circuit judge also dismissed appellee’s class C felony offense, and sealed all records involved in appellee’s case.
Appellant and appellee each made demands upon the trustee for the trust property. On October 3, 2000, the trustee filed an interpleader complaint in the Pope County Chancery Court. On October 19, 2000, appellant filed a cross-claim stating that appellee had been convicted of a felony, and requesting that the court award her one-half of the trust property pursuant to the trust agreement. On January 10, 2001, an order was entered authorizing the trustee to retain possession of the trust property until the trial court determined the rightful owner of the property.
On February 13, 2001, appellee filed a motion for summary judgment. In his motion, appellee argued that he was entitled to the trust property. Specifically, he argued that because he was placed on probation, had his charges dismissed, and had his record expunged, he was not “convicted” of a felony. He further argued that the sealed documents were privileged from introduction into evidence. Finally, he argued that because “by law” he was not convicted of a felony prior to his thirtieth birthday, he was entitled to the trust property.
On March 26, 2001, appellant responded to appellee’s motion for summary judgment. She argued that it was William Garland’s intent that appellee not receive the trust property if he was convicted of a felony. She argued that the term “convicted” in Mr. Garland’s will and the trust agreement was to have a layman’s definition. Appellant further explained that Mr. Garland requested that this provision be included in the trust agreement as an incentive to his son, who had previously demonstrated irresponsible behavior.
On October 2, 2001, a hearing was held on appellee’s motion for summary judgment. At the hearing, the trial court found that appellee was convicted of a felony prior to his thirtieth birthday. However, the trial court also found that because the charges against appellee had been dismissed and the records sealed, the conduct was deemed not to have occurred. The trial court further concluded that because the records were sealed, appellant would not be able to prove that appellee was convicted of a felony.
On November 9, 2001, an order granting appellee’s request for summary judgment was entered. It is from this order that appellant appeals. We reverse the trial court, and remand this matter for distribution of the trust funds in accordance with this opinion.
On appeal, appellant argues that the trial court erred when it granted appellee’s motion for summary judgment. In Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999), we summarized our standard of review of a summary-judgment order. We explained:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
Id. (citing Hall v. Tucker, 336 Ark. 112, 983 S.W.2d 432 (1999)).
Appellant argues that summary judgment was not proper because there was an unresolved fact question. Specifically, she argues that whether William Garland intended the word “convicted,” as used in his will and the trust agreement, to be given a layman’s definition or whether he intended the word to be given a legal definition is unresolved. The language to which appellant refers appears in paragraph five of the trust agreement. It states:
Principal and income of this trust shall be administered according to the terms of the last will and testament of William Otis Garland, Jr., which was probated in Johnson County, Arkansas, in Johnson County Probate Court case number 91-13. Specifically, the trust property shall be held for the benefit of and ultimately distributed unto Richard David Garland upon his attaining 30 years of age; provided,
(a) that until Richard David Garland attains thirty (30) years of age, he shall be entitled to the use of the interest only generated by the trust property;
(b) that should Richard David Garland die before obtaining thirty (30) years of age or should he be convicted of a felony prior to attaining thirty (30) years of age, then upon the happening of either of these events, then the trust property shall be divided equally between Ruby Jo Garland Warren and Donna Garland Summers.
At the hearing on the motion for summary judgment, the trial court found:
Mr. Garland did plead guilty to a felony and an order of probation was entered finding him guilty of that. In my opinion, therefore, he was convicted of a felony prior to the time he was thirty years old.
The trial court’s determination that appellee was convicted of a felony is correct. We have explained that a plea of guilty, coupled with a fine and probation, constitutes a conviction. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985). Appellee pleaded guilty to manufacturing a controlled substance in violation of Ark. Code Ann. § 5-64-401. This offense is a class C felony. After pleading guilty, appellee was ordered to pay a $1,000 fine and placed on probation for five years. Based on our holding in Carter, supra, we conclude that the trial court correctly determined that appellee was convicted of a felony.
Having made this determination, we must now consider whether the trial court erred when it found that appellant was prohibited by an order entered after appellee attained thirty years of age from introducing evidence of appellee’s conviction for the purpose of establishing that appellee was not entitled to collect the trust property. The trial court found that because the charges against appellee had been dismissed and the record of appellee’s criminal case was sealed, appellant was prohibited from introducing evidence concerning appellee’s conviction to establish that appellee had violated the terms of the trust. We conclude that the trial court erred.
The facts presented in this case require consideration of a future interest problem. To determine what, if any, effect appellee’s expungement may have on the rights of the parties to collect the trust property, we must first determine what interest each person may have had. Looking to the language of the trust, we conclude that Mr. Garland gave appellee and appellant alternative contingent remainder interests in the trust property. “Alternative contingent remainders occur when two contingent remainders follow an estate and the condition precedent for one is the opposite of the condition precedent for the other.” John Makdisi, Estates in Land and Future Interest, 2d ed. (1995). “A contingent remainder is a remainder that is subject to a condition pre cedent.” Id. A “condition precedent is a condition that must occur before the remainder will be allowed to take following the termination of the preceding life estate(s) and/or fee tail(s).” Id.
In the case now on review, the conditions precedent to appellee’s possession vesting in the trust property were: (1) attainment of age thirty, and (2) not being convicted of a felony prior to turning thirty. The conditions precedent to appellant’s remainder interest were: (1) appellee’s death before attainment of age thirty, or (2) appellee being convicted of a felony prior to turning thirty.
Appellee failed to meet one of the conditions precedent. Specifically, appellee was convicted of a felony prior to turning thirty. When appellee’s conviction occurred, appellant’s remainder interest immediately vested and appellee’s remainder interest was simultaneously destroyed. The law desires property to vest as soon as possible. Pickens v. Black, 318 Ark. 474, 885 S.W.2d 872 (1994). See also Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 2d ed. (1984) (writing that a contingent remainder becomes a present estate immediately upon the expiration of the prior estate). Because appellant’s interest in the trust property vested in 1993, when appellee was convicted of a felony, the dismissal of the charges and the sealing of the record that occurred in 2000 were of no consequence. Accordingly, we conclude that one-half of the trust property vested in appellant on December 3, 1993.
Appellant raises one additional point in which she contends that the Johnson County Circuit Court was without jurisdiction to dismiss appellee’s conviction and seal the records from his criminal case. Because we have determined that the dismissal of appellee’s conviction, and the sealing of his criminal records did not interfere with appellant’s right to the trust property, we decline to consider this point on appeal.
Reversed and remanded.
First Commercial Bank is now Regions Bank. | [
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Tom Glaze, Justice.
This case ensues from a domestic dispute ice. the appellant, David Colburn, and his wife, Donna Colburn. On August 14, 2001, and on August 15, 2001, David caused physical injury to Donna, and he later was charged separately on both counts with committing domestic battering in the third degree under Ark. Code Ann. § 5-26-305 (Supp. 2001).
The record reflects that, on August 16, 2001, David pled guilty in Little Rock Municipal Court to the Class A misdemeanor third-degree domestic battering of Donna, which occurred on August 15. On October 17, 2001, the State filed an information in Pulaski County Circuit Court against David in connection with the August 14 battering of Donna, charging him with a Class D felony offense of third-degree battering. Section 5-26-305 (b)(2) (A) (iii) provides a third-degree battering charge is a Class D felony if, within the past five years, the person has committed a prior offense of domestic battering in the third degree. Otherwise, third-degree domestic battering is a Class A misdemeanor. § 5-26-305 (B)(1).
At trial, the State moved to introduce a certified copy of David’s municipal court guilty plea. In response, David contended that his conviction for domestic battering in municipal court was not relevant, and therefore could not be used to enhance the felony third-degree battering charge in circuit court. He reasoned that, since the August 15 offense was subsequent, not prior, to the August 14 offense charged in circuit court, felony third-degree domestic battering could not be established, and he was entitled to a directed verdict. The circuit court denied David’s motion to dismiss, and David rested his case without presenting a case-in-chief. The court found David guilty of Class D felony third-degree domestic battering and subsequently sentenced him to eighteen months’ imprisonment. David brings this appeal, raising two points for reversal.
David’s first argument is that the trial court erred in admitting the State’s exhibit of the certified copy of his municipal court guilty plea to the misdemeanor domestic battering charge which occurred on August 15, 2001. He refers to § 5-26-305(a) and (b)(2)(A)(iii) (Supp. 2001), and asserts that to prove a Class D felony domestic battering in the third degree, the State must prove a person committed a prior offense of third-degree domestic battering within the past five years. David argued below and in this appeal that the certified copy of his guilty plea in municipal court to the August 15 offense was not relevant because he committed that offense subsequent, and not prior, to the felony battering offense which occurred on August 14. David asserts that, to be relevant, the municipal court’s prior conviction would have had to show the added element that, within five years before the August 14 felony battering charge in issue here, he committed an offense of domestic battering. In other words, David submits that there is a distinction between a prior conviction and having committed a prior offense.
David further adds that the language of § 5-26-305 referring to “within the past five years” is ambiguous in that the provision does not specifically state a date to be used in determining when the “past five years” begins. He suggests that two possible beginning points áre (1) the date the defendant committed the domestic battering in issue, or (2) the date the defendant stands trial for having committed the offense. Citing Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002), David argues that, when an ambiguity exists in a criminal statute, this court strictly interprets the statute in the defendant’s favor. The State’s view of § 5-26-305 is that the legislature intended to allow enhancement with convictions occurring within five years prior to the trial of the August 14 enhanced offense, regardless of the chronological order in which the offenses were committed.
The State agrees with David that we must interpret § 5-26-305 (b)(2) (A) (iii) and determine whether the five-year backward calculation of offenses begins on the date David committed the enhanced offense or the date the enhanced offense is tried. However, the State submits that the legislative intent supports the interpretation to allow enhancement with all offenses that occur five years prior to trial of the enhanced offense. In other words, the State argues David’s August 16 conviction shows he had committed another battering offense within five years of his trial for the August 14 offense; therefore, the August 16 conviction involving the August 15 offense was relevant for enhancement purposes. The State offers several theories in support of its position.
First, the State argues that we should interpret the term “prior offense,” as employed in § 5-26-305(b)(2)(A), to mean a defendant who has been previously convicted, regardless of the chronological order in which the offense or misconduct occurred. The State claims such an interpretation is consistent with case law. It cites Nail v. State, 225 Ark. 495, 283 S.W.2d 683 (1955), for the proposition that, without any statutory language indicating that the dates the defendants commit their offenses are determinative, “offense” is synonymous with “conviction.” In Nail, the prosecuting attorney filed an information against the defendant simply by following the language of the statute by charging Nail with a second offense committed within one year of the “first offense,” which latter term the Legislature clearly meant to be synonymous with the first, or prior “conviction.” The Nail court further stated the following:
While the fact of conviction should be sufficiently averred in an information or indictment seeking to charge an accused as a second or subsequent offender, it is not essential to use the word “convicted” if its equivalent is otherwise sufficiently alleged. The term “second offense,” as it is used in habitual criminal statutes, has been generally defined by the courts as, “one committed after conviction for a first offense.” It cannot be legally known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense.
Nail, 225 Ark. at 495 (citations omitted).
Our court explained the Nail decision in the later case of Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987). In Rogers, this court interpreted the Omnibus DWI Act, and decided when, under that Act, a prior offense occurred for purposes of penalty enhancement. There, the defendant was charged with the “offense” of DWI for operating his vehicle while intoxicated on May 11, 1986; he had two prior DWI “convictions,” one on June 22, 1984, and the other on July 17, 1985. There was no proof or stipulation as to the dates on which the two prior offenses were committed. However, the trial court found the defendant, Rogers, guilty of “the third offense occurring within three years of the first offense.”
This court reversed the trial court because the State did not show that all three “violations” (offenses) occurred within three years of the first violation; instead, it only showed that all three “convictions” occurred within three years. The court rejected the State’s contention' that an “offense” occurs on the date of the conviction, because the word “offense” is often equated with the word “conviction.” The Rogers court cited the Nail decision and acknowledged it is true that “offense” is often held to mean “conviction.” However, the Rogers court went on to explain Nail and similar cases as follows:
The State contends that an offense occurs on the date of the conviction, because the word “offense” is often equated with the word “conviction.” It is true that “offense” is often held to mean “conviction.” [S]uch cases deal with the problem that an act cannot be considered an “offense” until there has been a conviction, and they simply do not address the issue of when an “offense” occurs. There are two different concerns, and the distinction is best illustrated by employing a two-step analysis. The first step is that the act in issue is not elevated to the status of an “offense” until there is a conviction. The second step is that once a conviction is shown, it must relate back and the act is deemed an “offense” from the moment of commission. Therefore, the offense occurs when the criminal act is committed.
Rogers, 293 Ark. at 414 (citations omitted) (emphasis added).
When we apply the rationale in Rogers to the present case, David’s August 15 battering of Donna was not elevated to the status of an “offense” until there was a conviction. Here, once David was convicted on his August 15 battering charge under § 5-26-305(b)(2)(A), that criminal misconduct was deemed an “offense” from the moment of its commission. That being true, David’s offense occurring on August 15 was not a prior offense since it occurred after the August 14 battering charge.
The State also compares the enhancement provision in § 5-26-305 (b) with cases involving Arkansas’s Habitual Offender Statutes. See Ark. Code Ann. § 5-4-501 (Supp. 2001). For example, it cites Beavers v. State, 345 Ark. 291, 47 S.W.3d 222 (2001), where the court held the Habitual Criminal Statutes are not deterrent, but punitive in nature, so that a prior conviction, regardless of the date of the crime, may be used to increase punishment. However, in Beavers, the enhancement statute plainly spoke in terms of the conviction date of the offenses and not the dates of the actual crimes. See also Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981). As already thoroughly discussed, the statute here speaks in terms of a prior offense of domestic battering in the third degree. Our case law, like the Nail and Rogers decisions, has given meaning to the interplay between such terms as “prior offense” and “prior convictions,” and when interpreting a statute, we construe it just as the statute reads. See Hager v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). Moreover, the Legislature is presumed to know the decisions of the supreme court, and it will not be presumed in construing a statute that the Legislature intended to require the court to pass again upon a subject where its intent is not expressed in unmistakable language. Books-A-Million, Inc. v. Ark. Painting & Specialities Co., 340 Ark. 467, 10 S.W.3d 857 (2000).
In conclusion, we believe § 5-26-305 is, at the very least, ambiguous because it is subject to more than one interpretation. As David is quick to point out, this court strictly construes criminal statutes and resolves any doubt in favor of the defendant. Williams, 347 Ark. 728, 67 S.W.3d 548.
David’s second and final argument is related and dependent upon our ruling in the first. Defense counsel moved for dismissal because the State had not proved David had committed a “prior offense” to the August 14 offense by introducing the August 16 conviction of the August 15 offense. Since we agree with David that the State’s evidence did not amount to substantial evidence, we must reverse and remand.
The record is not clear why the August 15 charge was filed in municipal court and the August 14 charge was later filed in circuit court.
Section 5-4-501(d)(l) reads as follows:
A defendant who is convicted of a felony involving violence enumerated in subdivision (d)(2) of this section and who has previously been convicted of two (2) or more of the felonies involving violence enumerated in subdivision (d)(2) of this section shall be sentenced to an extended term of imprisonment, without eligibility except under § 16-93-1302 for parole or community punishment. (Emphasis added.)
It is noteworthy to point out the phrasing of the previous version of § 5-26-305. That version also defined domestic battering in the third degree as a Class A misdemeanor. However, the statute continued, “if the person has previously been convicted or found guilty of domestic battering in the first, second, or third degree, or wife battering in the first, second, or third degree, domestic battering in the third degree is a Class D felony.” (Emphasis added.) | [
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Per Curiam.
On January 23, 2003, we delivered a per iam. opinion in this matter directing Mr. Warren’s attorney, Gina H. Reynolds, to file within thirty days from the date of that opinion, a motion and affidavit accepting fault for an untimely notice of appeal and record. On February 20, 2003, Ms. Reynolds requested, among other things, this court’s reconsideration of its January 23 per curiam. Ms. Reynolds relates that Mr. Warren refused to communicate with her immediately after his trial, and she also was not notified of Warren having filed a pro se notice of appeal. Earlier in this proceeding, on January 3, 2003, Ms. Reynolds stated that Warren had never alleged that he asked her to appeal. Ms. Reynolds requested she be relieved as counsel. On March 3, 2003, Warren filed a response, stating he did inform Ms. Reynolds that he would like to appeal, and he denied that he refused to communicate with Ms. Reynolds after his trial.
We remand this matter to the trial court for a hearing to settle the record in order to determine whether Mr. Warren had requested his trial counsel, Ms. Reynolds, to file a notice of appeal and whether Ark. R. App. P. — Crim. 16 had been complied with. See Strom v. State, 346 Ark. 160, 55 S.W.3d 297 (2001). | [
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Per Curiam.
Gregory Fisher, by his attorney, iam. Waldman, has filed a motion for rule on the clerk. This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Terry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.
The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
The present motion for rule on the clerk is denied. | [
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Per Curiam.
Appellant was charged with capital murder riam. of Heaven Pace, a fetus in its ninth month of gestation, and battery of the mother, Shiwona Pace. Appellant was charged under Act 1273 of 1999, the Arkansas Fetal Protection Act, which redefines “person” for purposes of the state’s homicide statutes to include a fetus beyond twelve weeks of development. See Ark. Code Ann. § 5-l-102(13)(B)(i)(b) (Supp. 1999). Ark. Code Ann. § 5-1-102(13) provides in pertinent part:
(B)(i)(a) For the purposes of §§ 5-10-101 — 5-10-105, “person” also includes an unborn child in útero at any stage of development;
(b) “Unborn child” means a living fetus of twelve (12) weeks or greater gestation.
Appellant challenged the statute as unconstitutional; however, the trial court denied the claim. Appellant then sought a writ of prohibition, which was denied. See Beulah v. State, CA CR 00-506 (Ark. App. July 7, 2000).
Appellant subsequently pleaded guilty to murder in the first degree and battery and was sentenced to forty years’ imprisonment. According to appellant, he entered into the plea agreement with the condition that he could pursue his constitutional challenge under Ark. R. Crim. P. 37. Appellant filed a timely petition for postconviction relief, alleging (1) that a fetus or unborn child is not a person and that the state is not free to define its homicide statutes, particularly its capital homicide statutes, to include a fetus and (2) that the definition of “unborn child” as contained in the statute is contradictory, and thus void for vagueness. According to appellant, his claims are cognizable because Rule 37.1 provides relief when a sentence is imposed “in violation of the Constitution and laws of the United States or this state” or “is otherwise subject to collateral attack.” The Attorney General was served and declined to intervene.
The trial court found that when appellant entered his plea of guilty, a Rule 37 petition was contemplated and that it was agreed that the filing of the petition “would not abrogate the plea agreement.” However, in denying the petition, the court found that the state is free to define the killing of a fetus as a homicide and that the definition of “unborn child” is not void for vagueness. From that order comes this appeal.
It is well settled that a defendant ordinarily does not have a right to appeal a guilty plea except as provided in Ark. R. Crim. P. 24.3(b). Payne v. State, 327 Ark 25, 28, 937 S.W.2d 160, 161 (1997). Rule 24.3(b) provides:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
This court has interpreted the language of Rule 24.3(b) to permit the review of a conditional guilty plea solely with respect to the denial of a motion to suppress illegally obtained evidence. Payne, supra. Strict compliance with Rule 24.3(b) is required to convey appellate jurisdiction. Id.
Moreover, when a guilty plea is challenged under Rule 37, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel. Mills v. State, 338 Ark. 603, 606, 999 S.W.2d 674, 675 (1999). Rule 37 does not provide an avenue to raise matters that could have been raised on direct appeal, including constitutional claims. E.g., Nooner v. State, 339 Ark 253, 256, 4 S.W.3d 497, 498-99 (1999). A constitutional claim is not in itself sufficient to trigger application of Rule 37. Cigainero v. State, 321 Ark. 533, 536, 906 S.W.2d 282, 284 (1995).
As stated, appellant claims he entered into the plea agreement with the condition that he could pursue his constitutional challenge under Rule 37. However, an agreement between parties does not convert an otherwise incognizable claim into a cognizable one, just as subject-matter jurisdiction cannot be conferred by consent of the parties. See State v.J.B., 309 Ark. 70, 72, 827 S.W.2d 144, 145 (1992). “The proper administration of the law cannot be left merely to the stipulation of the parties.” Burrell v. State, 65 Ark. App. 272, 276, 986 S.W.2d 141, 143 (1999).
Because appellant’s claims are not cognizable under Rule 37, postconviction relief is not warranted.
Affirmed.
Brown, J., dissents.
Corbin, J., not participating.
The Attorney General’s waiver of his statutory right of response under Ark. Code Ann. § 16-lll-106(b) (1987) does not affect the controlling principles cited in this opinion. It is simply a waiver of a right to appear in circuit court to defend a statute. See generally Carney v. State, 305 Ark. 431, 434-35, 808 S.W.2d 755, 756-57 (1991). It is not acquiescence to jurisdiction or to the cognizability of a claim. | [
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Robert L. Brown, Justice.
Appellant Arnell Willis opposed Appellee ice. King in the race for District 13 Representative to the Arkansas House of Representatives. The Phillips County Election Commissioners certified that Ms. King won the Democratic Preferential Primary for that position by a vote of 2,667 to 2,576. According to a complaint filed by Mr. Willis contesting the election, Ms. King’s margin of victory was secured by serious violations of the Election Code, including persons voting more than once, forged bahots, and manipulation of absentee ballots in Ms. King’s favor. Mr. Willis filed his complaint in timely fashion, but he failed to attach a verification of the facts contained in the complaint within the statutory time limit.
The relevant dates are these: On May 31, 2002, the Phillips County Election Commissioners certified the election returns in the preferential primary, including the results of the King/Willis race. Twenty days later, on June 20, 2002, Mr. Willis filed his complaint contesting the election. Four days after that, on June 24, 2002, Mr. Willis filed an affidavit, verifying the truth of the allegations made in his complaint.
The defendants, now appellees, in the case ■— Ms. King, the Phillips County Election Commissioners, the Phillips County Circuit Clerk, and the Arkansas State Election Commissioners — uniformly moved to dismiss Mr. Willis’s complaint for lack of subject-matter jurisdiction. They asserted that the Election Code required an affidavit verifying the allegations of the complaint be filed within twenty days of the election’s certification and that Mr. Willis was four days late with his verification. The circuit court agreed and dismissed the complaint for lack of subject-matter jurisdiction.
In his appeal from the circuit court’s dismissal order, Mr. Willis contends that he substantially complied with the statutory mandate and that this should suffice. We disagree. Because it lies within the province of this court to interpret a statute, we review a circuit court’s construction of the law de novo. E.g., Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). A circuit court’s interpretation of the law will be accepted on appeal, however, unless it is demonstrated to be erroneous. Id.
This case involves statutory construction of Ark. Code Ann. § 7-5-801 (Repl. 2000), the relevant subsections of which read as follows:
(a) A right of action is conferred on any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election.
(d) The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements to be true and shall be filed within twenty (20) days of the certification complained of.
The cardinal rule of statutory construction is to give effect to the legislative will. E.g., Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). When a statute is unambiguous on its face, the court will look to the plain and ordinary meaning of the text, and in such cases, there is no need to resort to the canons of statutory construction. E.g., R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001).
A losing candidate in an election has no common-law right or constitutional right to contest the outcome of an election, since the right is purely statutory. See e.g., Brewer v. Fergus 348 Ark. 577, 79 S.W.3d 831 (2002). The deadlines set out in § 7-5-801 quoted above have long been held to be both mandatory and jurisdictional. See, e.g., McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000) (citing Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998); Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971); Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409 (1932); Gower v. Johnson, 173 Ark. 120, 292 S.W. 382) (1927)). This court stricdy construes jurisdictional requirements in election contests. McCastlain v. Elmore, supra.
Mr. Willis urges this court to hold that a candidate substantially complies with § 7-5-801, when the affidavit is filed within a reasonable time after the twenty-day deadline and when no party is prejudiced by the tardy filing. Mr. Willis asserts in his brief that “[i]t is an open question what degree of compliance satisfies the affidavit requirement of Section 7-5-801 (d)” and argues all cases of this court before 1969 (the effective date of the present § 7-5-801) are not apposite.
Next, Mr. Willis argues that the trial court in McCastlain v. Elmore, supra, upheld the sufficiency of the contestant’s timely-filed jurat, which read “Subscribed and sworn to before me this 2nd day of December, 1998,” and that this supports his contention that substantial compliance is the appropriate standard of review. He offers that this court, on appeal, upheld that jurat sub silentio and that, because the trial court “refused to exalt form over substance” in that case, we should do the same in the case before us. He further claims that the Election Code is designed to discourage frivolous filings, protect the continuity of the administration of government, and uphold the integrity of elected offices. As a final point, he contends that the purpose of the verification is to prevent frivolous contests, not to defeat meritorious contests on hypertechnical grounds.
We turn then to our analysis of § 7-5-801 and its legislative history. Section 7-5-801 is a codification of Act 465 of 1969, but the statutory mandate for timeliness has a significant history in Arkansas. The precursor to § 7-5-801 first took the form of an initiative act in 1917. See Initiative Act No. 1, 1917 Ark. Acts 2287. Initiative Act No. 1 was codified in the Crawford and Moses Digest and read in pertinent part as follows:
A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in civil court. . . . The complaint shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county. The complaint shall be answered within ten days.
Crawford & Moses Digest § 3772 (1921). A statute containing the same language is reported in Pope’s Digest of 1937 at § 4738. That statute was amended by Act 386 of 1947. See Act 386, 1947 Ark. Acts 884 (codified at Ark. Stat. Ann. § 3-245 (1947)). The new act provided that an affidavit of the contestant in lieu of ten reputable citizens be filed and that the deadline be changed from ten days to twenty days. See id. In 1969, the deadline provision was reenacted as part of a reorganization of the Election Code. See Act 465 of 1969, 1969 Ark. Acts 1195. The substance of the deadline provision was unchanged. See id. art. 10 § 1 (codified at Ark. Stat. Ann. § 3-1001 (Supp. 1969)). The statute was later codified in its present form as § 7-5-801. This legislative history is persuasive proof of the fact that the timeliness of election-contest complaints has been an ongoing concern of the General Assembly since at least 1917 and that the verification of the alleged facts has been a mandated component of election-contest complaints.
The General Assembly has also made it abundantly clear that the concern for timely resolution of election contests is not unique to the filing of the complaint but that expedited deadlines and consideration of election contests permeate the Election Code. See Ark. Code Ann. § 7-5-801 (e) (Repl. 2000) (response due within twenty days of the complaint being filed); Ark. Code Ann. § 7-5-810 (Repl. 2000) (seven-day time period for filing an appeal); Ark. Code Ann. § 7-5-802 (Repl. 2000) (requiring the circuit court to “proceed at once” with election cases); Ark. Code Ann. § 7-5-804 (Repl. 2000) (stating it is the duty of the Supreme Court to advance election cases). Nothing in the record or abstract indicates that Mr. Willis ever moved this court to expedite this appeal, which explains why this appeal is being considered in February of 2003 rather than in a more expedited manner. While it is the duty of this court to advance appeals of election contests, it is incumbent on the contestants to bring the matter to this court’s attention by motion. See Ark. Sup. Ct. R. 6-1 (b) (“[T]hat the pleader shall inform the Clerk’s office of the need for an emergency or accelerated hearing by the Court.”). Cf. Dean v. Williams, 339 Ark. 263, 264, 5 S.W.3d 37, 38 (1999) (per curiam) (“[I]n expediting this case we can promptly decide the . . . pressing issues that have been brought to our attention.”) (emphasis supplied). That was not done.
In interpreting § 7-5-801, this court has written that the purpose of the statute is to “furnish a summary remedy and to secure a speedy trial.” McCastlain, 340 Ark. at 368, 10 S.W.3d at 836 (quoting Gower, 173 Ark. at 122, 292 S.W. at 383). We have further emphasized that the Election Code was designed to resolve election disputes expeditiously and to avoid election-contest “fishing expeditions.” McCastlain, 340 Ark. at 369, 10 S.W.3d at 837 (quoting Cartwright v. Carney, 286 Ark. 121, 690 S.W.2d 716 (1985)).
It is patently clear to this court that Mr. Willis failed to comply with the plain terms of § 7-5-801 (d). The unambiguous text of the statute, the legislative history, and our common law foreclose any construction of § 7-5-801 (d) that would allow “substantial compliance” to be our standard of review.
Mr Willis relies on his theory of public policy, but, in point of fact, Mr. Willis’s standard of substantial compliance would create movable deadlines based on the inexact criterion of lack of prejudice. This runs directly contrary to our announced goal and the legislature’s enacted public policy of resolving election contests expeditiously and summarily.
We also observe that Mr. Willis’s cited authority, McCastlain v. Elmore, supra, has no pertinence to the proposition he advances. The question presented in McCastlain was whether the savings statute applied to election cases. The McCastlain court held that it did not, and we specifically declined to address the sufficiency of the plaintiff’s jurat. See McCastlain, 340 Ark. at 368, 10 S.W.3d at 836 (“Because we find merit in Ms. McCastlain’s first assertion of error [the savings statute question], we need not address her second argument [sufficiency of the jurat].”). Mr. Willis argues that the trial court in McCastlain concluded that the language of the jurat was specific enough to satisfy the verification requirement and contends that the language of his verification is much more specific than that of the McCastlain plaintiffs. But a decision on the language of the jurat by a trial court in another case has no precedential value for this court’s decision on timeliness.
As a final point, we turn to the venerable case of Logan v. Russell, 136 Ark. 217, 206 S.W. 131 (1918). In Logan, the parties were rival candidates for the Democratic nomination to the position of county clerk. Logan lost and filed a complaint contesting the election. We said in our rendition of the facts: “The complaint and the accompanying statement of the ten citizens were filed in the office of the clerk of the court within ten days after the result of the primary election was duly certified, but the statement of said citizens was not sworn to until after the expiration of that time.” Logan, 136 Ark. at 219, 206 S.W. at 131. The defendant demurred, and the trial court granted the demurrer. We upheld the trial court’s decision:
“There is, we think, no escape from the conclusion that the language of the statute with reference to time of filing the complaint is mandatory, and not merely directory, and that the same requirement applies to the accompanying affidavits. The plain purpose of the framers of the statute was to require expedition in the commencement and preparation of contests of primary elections, and we do not feel at liberty to disregard the language of the statute or lessen its binding effect by declaring it to be merely directory.”
Id. at 221-222, 206 S.W. at 132-133. The Logan decision is on all fours with the case at hand. We decline the invitation by Mr. Willis to adopt a new standard and to depart from our abundant case law on this point. The circuit court was without subject-matter jurisdiction to hear Mr. Willis’s complaint.
Affirmed.
Glaze, J., concurs.
Mr. Willis also sued the Phillips County Circuit Clerk, the Phillips County Election Commissioners, and the members of the Arkansas State Board of Election Commissioners individually by name, but he voluntarily dismissed those claims. The State in its brief correctly points out that the name of the state board is “Arkansas State Board of Election Commissioners.” | [
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Per Curiam.
Appellant, Paul Eugene Hanlin, by and through am. attorney, Lynn Lisk, has filed a motion for a rule on the clerk. His attorney, Lynn Lisk, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
We granted the' Arkansas State stice. petition for review in this appeal to resolve an apparent conflict between the court of appeals’ decision in this case and prior case law.
Appellant Robert Holloway is a licensed professional engineer. In 1999, Holloway prepared and filed plans for a pre-engineered metal building to be assembled for the Rosenbaum Industrial Supply Facility on Doyle Venable Road in North Little Rock. On September 21, 1999, Tim Yelvington, an architect, filed a complaint with the Arkansas State Board of Architects, alleging that Holloway, as a non-architect, had designed and stamped different aspects of the project. Acting on Yelvington’s complaint, the Board sent a letter to Holloway on November 10, 1999, notifying him of Yelvington’s complaint. Holloway responded to the Board’s letter, asserting that it was his understanding that his work on the facility was well within the realm of activity of engineering.
On March 1, 2000, the Board served an order and notice of hearing on Holloway, alleging that Holloway had practiced architecture without a license, in violation of Ark. Code Ann. § 17-15-301 (Repl. 2001). The Board conducted a hearing on May 11, 2000. At that hearing, the only witness to testify was John Harris, Director of the Board. Holloway did not appear, but his attorneys were present. The Board found that Holloway had practiced architecture without a license, and it imposed a fine of $5,000 pursuant to Ark. Code Ann. § 17-15-203(d)(4)(A)(i) (Repl. 2001).
Holloway filed a timely appeal to the Pulaski County Circuit Court, and reasserted the arguments he had raised before the Board. In that appeal, Holloway alleged first that the statutes defining the practice of architecture and the practice of engineering are void for vagueness and, as applied to him, the statutes violated his due-process rights. In addition, Holloway argued that the Board had failed to make necessary findings of fact, and that the civil penalty imposed upon him was arbitrary, capricious, and an abuse of discretion. Finally, he asserted that the Attorney General’s office should be disqualified as counsel for the Board of Architects due to a conflict of interest. On November 22, 2000, the circuit court heard the matter, and, on December 11, 2001, it affirmed the Board on all four issues.
Holloway then appealed to the court of appeals, which considered the same four arguments that were presented to the Board and the circuit court. The court of appeals held that Holloway did not preserve his constitutional issue because the Board did not rule on it; that court remanded the case to the Board for further fact finding and for a ruling on the constitutional question. The court of appeals also remanded the case so the Board could make further findings of fact concerning whether Holloway’s actions fell within the definition of the practice of engineering. That court also held that, because it was remanding the case, it was vacating the civil-penalties argument. The court of appeals did address and affirm the trial court’s final ruling that the Attorney General’s office was not disqualified merely because it represented both the Board of Architects and the Board of Engineers. We subsequently granted the Board’s petition for review.
Upon a petition for review, we consider a case as though it has been originally filed in this Court. Sharp County Sheriff's Office v. Ozark Acres Improvement Dist., 349 Ark. 20, 75 S.W.3d 690 (2002); Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). Our review is directed not toward the circuit court, but toward the decision of the agency. Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Board v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992).
Holloway’s first argument on appeal is that the statutes defining the practice of architecture and the practice of engineering are void for vagueness. We initially need to mention that our review of the record reflects that Holloway’s counsel, at the Board hearing, raised this constitutional issue challenging the statutes defining the practices of architecture and engineering. Counsel made his point as foEows:
“We are chaEenging also the definition of the practice of architecture in [section] 17-15-102, in that it is unconstitutionaEy vague and is in direct conflict with Arkansas statute [s] 17-30-101 and 17-30-104. So that it is our assertion that it is void for vagueness.”
Sections 17-30-101 and 17-30-104 pertain to the practice of engineering. The Board, through its hearing officer, responded that it noted HoEoway’s objection and overruled it. Because HoEoway raised this constitutional issue before the Board and obtained the Board’s ruling on it, we conclude that Holloway preserved his argument on appeal. See Arkansas Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001); AT&T Communications of the Southwest v. Arkansas Pub. Serv. Comm’n., 344 Ark. 188, 40 S.W.3d 273 (2001).
We turn now to Holloway’s first point for reversal: the statutes defining the practice of architecture and engineering are void for vagueness and, as applied in this case, constitute a violation of Holloway’s due-process rights. Holloway first cites Ark. Code Ann. § 17-15-102(5)(A)(i) and (ii) (Repl. 2001), which read as follows:
(A)(i) The “practice of architecture” means the provision of, or offering to provide, those services hereinafter described in connection with the design and construction, enlargement, or alteration of a building or group of buildings, and the space within and surrounding such buildings, which is designed for human occupancy or habitation. The services referred to include planning, providing preliminary studies, designs, drawings, specifications, and other technical submissions, and administration of construction contracts.
(ii) Provided, that the practice of architecture shall not include the practice of engineering as defined in the Arkansas Engineering Act, § 17-30-101 et seq., or the practice of contracting as defined in the Contractors Licensing Law, § 17-25-101 et seq., but a registered architect may perform such engineering work as is incidental to the practice of architecture, and an engineer may practice such architectural work as is incidental to the practice of engineering.
(Emphasis added.) Section 17-15-102(5) (B) further provides the following:
(B) The provisions of this chapter affirm the legal authority of an engineer licensed under the Arkansas Engineering Act, § 17-30-101 et seq., to provide consultation, investigation, evaluation, planning, and design of buildings intended for the accommodation of equipment, vehicles, goods, and/or processes or other utilitarian function, with human occupancy including office space as required for the support of these functions, provided the engineer is practicing within his or her area of competency as defined in the Arkansas Engineering Act, § 17-30-101 et seq[.]
(Emphasis added.)
Also pertinent to Holloway’s argument is Ark. Code Ann. § 17-15-302(a)(l) (Repl. 2001), which exempts licensed engineers from the provisions governing architects so long as the engineer’s work is incidental to the practice of engineering and provided the engineer does not use the designation “architect.”
Holloway next refers to Ark. Code Ann. § 17-30-101(4)(A) (Repl. 2001), which defines the practice of engineering as follows:
[The] “[p]ractice of engineering” means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge in the mathematical, physical, and engineering sciences to services or creative work such as consultation, investigation, evaluation, planning, and design of engineering works and systems relating to the use of air, land, water, municipal and regional planning, forensic services, engineering teaching of advanced engineering subjects or courses related thereto, engineering surveys, and the inspection of construction for the purpose of assuring compliance with drawings and specifications, any of which embraces service or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, or projects including such architectural work as is incidental to the practice of engineering.
(Emphasis added.) The engineering statutes further provide the following:
The provisions of this chapter affirm the legal authority of an engineer licensed under its provisions to provide consultation, investigation, evaluation, planning, and design of buildings intended for accommodation of equipment, vehicles, goods, and/or processes or other utilitarian functions, with human occupancy including office space as required for the support of these functions, provided the engineer is practicing within his or her area of competency as defined by this chapter.
Ark. Code Ann. § 17-30-104 (emphasis added).
In making his argument that his due-process rights are violated because the foregoing statutory provisions are vague, Holloway cites Thompson v. Arkansas Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984), for his proposition that statutes governing architects and engineers fail to provide a person of ordinary intelligence fair notice as to what conduct is forbidden. For example, Holloway alludes to language contained in § 17-30-104 that permits a licensed engineer to plan and design “buildings intended for accommodation of equipment, vehicles, goods, and/or processes or other utilitarian functions, with human occupancy including office space as required for the support of these functions.” This same language is found in § 17-15-102(5)(B), which governs architects. Holloway submits that the ambiguity and vagueness of the language used in these statutes is readily apparent, asking rhetorically, “How much ‘human occupancy including office space’ do these provisions permit? To what does ‘other utilitarian functions’ refer? When does an engineer cross the line and design a building with too much ‘human occupancy including office space?’ ” He urges that the statutes involved fail to give any guidance to determine the answers to these questions. Instead, he says, the legal definitions of the practice of architecture and engineering must turn on the facts of each case.
The Board rejoins Holloway’s argument by first reiterating the settled law that a statute is presumed constitutional, and the party challenging it must demonstrate otherwise. Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998). Because statutes are presumed to be framed in accordance with the United States Constitution, we do not hold them invalid unless the conflict with the Constitution is clear and unmistakable. Shoemaker v. State, 343 Ark. 727, 38 S.W.3d 350 (2001). Moreover, all doubts are resolved in favor of a statute’s constitutionality. See State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999); Foster v. Jefferson County Bd. of Election Comm’rs, 328 Ark. 223, 944 S.W.2d 93 (1997).
For a statute to avoid being vague, it must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden and it must not be so vague and standardless that it leaves judges free to decide, without any legally fixed standards, what is prohibited and what is not on a case-by-case basis. Thompson v. Arkansas Social Servs., 282 Ark. 369, 669 S.W.2d 878 (1984). The subject matter of the challenged law also determines how stringently the vagueness test will be applied. For instance, if the challenged law infringes upon a fundamental right, such as liberty or free speech, a more stringent vagueness test is applied; in contrast, however, if the law merely regulates business activity, a less stringent analysis is applied and more flexibility is allowed. Craft, supra (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982)). A statute is not to be struck down as vague only because marginal cases could be put where doubts might arise. Thompson, supra (citing Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979)).
A critical element of the definition of the practice of architecture is that the building be designed for human occupancy or habitation. .On the other hand, the statutes governing the practice of engineering and the practice of architecture both recognize that a licensed engineer has the authority to perform work on buildings that are “intended for accommodation of equipment, vehicles, goods, and/or processes or other utilitarian functions, with human occupancy including office space as required for the support of those functions.” § 17-30-104. In addition, there are instances in which an engineer can perform services which would fall into the definition of architectural services if those services are “incidental to the practice of engineering.” § 17-30-101(4)(A). “Incidental” means “depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal]!]” Black’s Law Dictionary 162 (6th ed. 1990).
While it is true that the statutes governing engineers do not specify what is meant when they state that an engineer may provide services and consultation on buildings intended for “utilitarian functions, with human occupancy including office space as required for the support of these functions,” a person of ordinary intelligence could easily conclude that this would mean that “human occupancy” is not to be the primary purpose of a building planned by an engineer. Supporting this conclusion is the language in the architecture statutes that provides that the practice of architecture includes the planning of buildings “which [are] designed for human occupancy or habitation.” § 17-15-102(5)(A)(i). Reading these together, a person of ordinary intelligence can glean that architects plan and design buildings primarily intended for people to live and work in, and engineers plan and design buildings primarily “intended for accommodation of equipment, vehicles, goods, and/or processes.” In sum, the statutes Holloway challenges are not void for vagueness.
Holloway’s second point on appeal is that the Board failed to make necessary findings of fact. He asserts specifically that the Board was required to “make a finding that the ‘human occupancy including office space’ was not required for the support of the ‘utili tarian function’ being made in the space in the building that was not office space.” The Board made five findings of fact, as follows:
1. Robert D. Holloway is not a licensed architect in the State of Arkansas.
2. Mr. Holloway prepared drawings and specifications for the Rosenbaum Industrial Supply facility on Doyle Venable Road, North Little Rock, Arkansas. The project is a preengineered metal building with a dry-vit facade.
3. The approximate size of the project is 144 feet by 93 feet. The building consists mainly of office space with a small amount of storage.
4. The primary purpose of the facility is for human occupancy or habitation and the cost is in excess of $100,000.
5. The work performed by Mr. Holloway [was] not incidental to the practice of engineering.
In support of his arguments, Holloway points out that the only witness to testify, Board Director John Harris, never testified that the “human occupancy” part of the building, comprising approximately 70% of the building, was not required for the support of a utilitarian function that could take place in the part of the building that was not office space. He also suggests that there are situations where a building might need up to 75% of its office space to support some “utilitarian function” that only takes up 25% of the building; however, he does not provide examples of such situations.
The Administrative Procedures Act, Ark. Code Ann. § 25-15-201 et seq. (Repl. 2002), requires that a “final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.” § 25-15-210(b)(2) (Repl. 2002).
The court of appeals has described a “finding of fact” as “a simple straightforward statement of what happened. A statement of what the Board finds has happened; not a statement that a witness, or witnesses, testified thus and so. . . . [W]hen the reader is a reviewing court the statement must contain all specific facts relevant to the contested issue or issues so that the court may determine whether the Board has resolved those issues in conformity with the law.” Nesterenko v. Arkansas Bd. of Chiropractic Exam’rs, 76 Ark. App. 561, 69 S.W.3d 459 (2002). The purpose of requiring such factual findings is that they benefit the court in the following way: facilitating judicial review; avoiding judicial usurpation of administrative functions; assuring more careful and administrative consideration; aiding the parties in planning for hearings and judicial review; and keeping an agency within its jurisdiction. Gordon v. Cummings, 262 Ark. 737, 561 S.W.2d 285 (1978).
The Board’s findings in this case contain sufficient facts relevant to the contested issue so that this court can determine whether the Board has resolved those issues in conformity with the law. These findings were based on the testimony of John Harris, the Director of the Board, who stated that he went to the site, walked around the building, measured it, and looked inside. He averred that it appeared to consist largely of office space, including restrooms, and although there was a large empty space, comprising the 20-25% of the budding that was not obviously office space, the space looked like it could be partitioned out into office space at a later date. Harris also testified about the customary cost per square foot for a building of that sort, opining that it would go for $85.00 to $100.00 per square foot. Although Holloway objected to Harris’s testifying about the cost of the building, he offered no testimony or evidence to rebut Harris’s figures. On cross-examination, Harris conceded that he did not call anyone to ask what the building’s purpose was, but insisted that, based on the plans and his own observation of the budding, it was “obviously office space.”
The Board’s findings reflected the facts to which Harris testified: the Board found that HoUoway was not a licensed architect; Hodoway had prepared drawings and specifications for the building; the budding was approximately 144 by 93 feet and consisted mainly of office space; the primary purpose of the facdity was for human occupation and the cost was in excess of $100,000; and the work was not incidental to the practice of engineering. Because the findings incorporate a “proper and acceptable finding of the basic or underlying facts drawn from the evidence,” Nesterenko, 76 Ark. App. at 567, the Board’s factual findings were sufficient; therefore, we reject HoUoway’s second point as having no merit.
Hodoway’s third point is that the penalty imposed by the board was arbitrary, capricious, and an abuse of discretion, because the statute authorizing the imposition of a civd penalty does not provide any guidelines or standards for imposing the penalty, and because the findings of the Board and the imposition of the penalty are not supported by substantial evidence.
Section 17-15-203(d)(4)(A)(i) provides as follows:
After providing notice and a hearing, the examining body may levy civil penalties, in an amount not to exceed five thousand dollars ($5,000) for each violation, against those individuals or entities found to be in violation of this chapter or rules and regulations promulgated thereunder.
Holloway argues that, because the foregoing statute does “not provide any guidelines or standards for determining when and under what circumstances the imposition of the maximum civil penalty is appropriate,” it bestows “unbridled discretion on [the Board] to levy the maximum civil penalty in any manner it chooses, regardless of the nature or severity of the violation.” He relies on Alcoholic Beverage Control Division v. R. C. Edwards Distributing Co., 281 Ark. 336, 681 S.W.2d 356 (1984), for his argument that such a degree of discretion is an unlawful delegation of legislative powers.
In delegating legislative authority, the General Assembly must spell out appropriate standards for the guidance of the administrative body by which the power is to be exercised. Arkansas St. Bd. of Pharmacy v. Hall, 243 Ark. 741, 421 S.W.2d 888 (1967). Further, although discretionary power may be delegated by the legislature to the licensing authority, it is essential that reasonable guidelines be provided. McQuay v. State Bd. of Architects, supra. In R.C. Edwards, supra, on which Holloway relies, this court invalidated a liquor-distributorship regulation that provided, in part, that “[n]o person holding a wholesale permit shall add an additional brand to his stock without first securing the written approval of the Director, and no manufacturer shall transfer a brand from one wholesale distributor to another or create dual distributorships on the same items without first securing the written approval of the Director.” Because the regulation did not define “dual distributorship,” and because it did not set out a time frame or limit to regulate timely approval or disapproval of a petition, this court held that the statute was too vague and indefinite. R.C. Edwards, 284 Ark. at 339.
Here, however, the statute defines the prohibited activity •— i.e., the practice of architecture by one not licensed to do so — and provides that penalties will be imposed for the violation of the statute. In addition, the statute explicidy provides for notice and a hearing prior to the levying of civil penalties, and there must be a finding that the person has committed the unauthorized practice of architecture, as defined by the legislature. Further, the penalty is capped at $5,000. If the court were to accept Holloway’s apparent suggestion that the General Assembly should specify the exact amount of a fine for every type of violation, then the Board would have no discretion at all, even though discretionary power may be delegated by the legislature to the licensing authority. See McQuay v. State Bd. of Architects, supra.
Holloway further argues that the penalty should be reversed because the Board did not make a specific finding that property or the public’s health or safety was threatened or continue to be threatened as a result of Holloway’s unauthorized practice of architecture. However, as the Board points out, the statute itself contains a legislative determination that the unauthorized practice of architecture is a threat to the public health and safety. Ark. Code Ann. § 17-15-301 (Repl. 2002), which sets out the license requirement for architects, provides as follows:
In order to safeguard life, health, and property, no person shall practice architecture in this state, . . . unless the person shall have secured from the examining body a certificate of registration and license in the manner hereinafter provided and shall thereafter comply with the provisions of this chapter governing the registration and licensing of architects.
(Emphasis added.) The legislature determined that the unauthorized practice of architecture is a threat to the public; therefore, in order to safeguard life, health, and property, no person may practice architecture without having secured a certificate of registration and a license.
Finally, Holloway asserts that the imposition of the civil penalty was not supported by substantial evidence. However, a reviewing court will not substitute its judgment for that of an administrative agency unless the decision of the agency is arbitrary and capricious. See Arkansas Appraiser Licensing & Certification Bd. v. Biles, 320 Ark. 110, 895 S.W.2d 901 (1995). The testimony offered by John Harris, discussed above, supports the conclusion that the Board’s findings were supported by substantial evidence, and this court has held that, where a decision is so supported, it automatically follows that the decision cannot be classi fied as unreasonable or arbitrary. See Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
Holloway’s fourth principal argument is that the Attorney General’s office had an irreconcilable conflict of interest in representing the Board of Architects, because it also represents the State Board of Registration for Professional Engineers and Land Surveyors (“the Board of Engineering”) in disciplinary proceedings against engineers. He asserts that it is “manifestly unjust for the Attorney General to advocate and aid in the imposition of a civil penalty against a licensed engineer pursuant to the [Board of Architects’] subjective interpretation of the legal definitions of the practices of architecture and engineering while, at the same time, the Attorney General is called upon to advocate and aid in the imposition of a civil penalty against a licensed architect pursuant to the Board of Engineers’ subjective interpretation of the legal definitions of the practices of engineering and architecture.”
In the present case, however, the Attorney General is only representing the Board of Architects, not the Board of Engineering; that Board is in no way involved in this case. There is no “call to advocate and aid in the imposition of a civil penalty against a licensed architect” by the Board of Engineers. There is only the proceeding by the Board of Architects against Holloway. Therefore, it is not immediately apparent that there is a conflict, since the Attorney General is not representing two sides with conflicting interests.
Secondly, the Attorney General is not precluded from representing opposing agencies. Ark. Code Ann. § 25-16-702(a) (Repl. 2002) establishes that “the Attorney General shall be the attorney for all state officials, departments, institutions, and agencies.” Section 25-16-702(b) further states that “[a]ll office work and advice for state officials, departments, institutions, and agencies shall be given by the Attorney General and his or her assistants.” Finally, Ark. Code Ann. § 17-15-203(c) (Repl. 2001) expressly provides that the Board of Architects shall be entitled to the services of the Attorney General; and Ark. Code Ann. § 17-30-205 (Repl. 2001) provides that the Attorney General .or his or her assistant shall act as legal advisor to the Board of Engineers.
Therefore, because the Attorney General is statutorily obligated to represent these state agencies, and because there is no indication that the Board of Architects and the Board of Engineers will develop adverse interests in this litigation, there was no error in either the Board of Architects’ or the circuit court’s refusal to disqualify the Attorney General.
Affirmed.
Corbin, J., not participating. | [
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Annabelle Clinton Harness Imber, Justice.
Appellant Kenneth Roy Harness pleaded guilty to one count of manufacturing methamphetamine and to two counts of possession of drug paraphernalia. In an amended judgment and commitment order filed on March 30, 2001, the circuit court sentenced him to a term of twenty years’ imprisonment and suspended the imposition of sentence as to an additional term of twenty years. Based on a violation prior to his incarceration, the trial court revoked the suspended portion of Mr. Harness’s sentence and sentenced him to a term of thirty years’ imprisonment. His only point on appeal is that the trial court did not have the power to revoke the suspended portion of his sentence prior to the commencement of the period of suspension. We agree and reinstate the original sentence as modified.
The facts are not in dispute. Upon sentencing, Mr. Harness was not instructed to report immediately to the Arkansas Department of Correction. Instead, he was placed under a $20,000 ADC bond and instructed to call the ADC each morning at 6:00 a.m. and surrender to the ADC when informed that it had room for him. Mr. Harness called in each morning from February 23, 2001, through March 6, 2001, except on February 28. On March 6, 2001, the ADC advised the Crawford County jail administrator that Mr. Harness should surrender at 5:00 a.m. the next morning, March 7, 2001. Mr. Harness did not surrender, and a warrant was issued for his arrest on March 14, 2001. On September 11, 2001, Mr. Harness was arrested in Utah, where he was working under an assumed name, and then returned to Arkansas.
After a hearing, the circuit court revoked Mr. Harness’s suspended sentence and resentenced him to a term of thirty years’ imprisonment in an amended judgment and commitment order filed on January 1-6, 2002. Mr. Harness filed a motion for reconsideration alleging that the original sentence was illegal because it was longer than the statutory maximum, that the circuit court was without the power to revoke the suspended portion of his sentence prior to the commencement of the period of suspension, and that the revocation violated his due-process rights. The circuit court denied his motion for reconsideration. The Arkansas Court of Appeals certified Mr. Harness’s appeal to this court because it presents an issue of first impression involving statutory construction. Thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l), (2), (5) (2002).
Mr. Harness does not challenge his conviction or the lawfulness of his apprehension. His only challenge is to the propriety of the circuit court’s revocation of the suspended portion of his sentence. First, he contends that a circuit court does not have the power to revoke a suspended sentence prior to the commencement of the period of suspension. In the alternative, he presents a procedural due-process argument contending that he did not receive fair warning or other notice that the violation of a condition of suspension prior to the commencement of'his suspended sentence could lead to its revocation.
I. The March 30, 2001 Amended Judgment and Commitment Order
As an initial matter, the sentence imposed in the March 30, 2001 amended judgment and commitment order is illegal in two respects. First, the original judgment reflects a sentence of forty years’ imprisonment, as well as a twenty-year suspended imposition of sentence, for a total of sixty years — a sentence not authorized for a class Y felony. Second, because the suspended portion of the sentence requires Mr. Harness to report to a supervising officer, the sentence is in reality imprisonment followed by probation — a sentence specifically prohibited by statute. Even though neither Mr. Harness nor the State challenges the legality of the sentence on appeal, we treat problems of void or illegal sentences similar to problems of subject-matter jurisdiction and review them even if not raised on appeal and not objected to in the trial court. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985).
Sentencing is entirely a matter of statute in Arkansas. Bunch v. State, 344 Ark. 730, 738, 43 S.W.3d 132, 137 (2001). “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” Ark. Code Ann. § 5-4-104(a) (Supp. 2001). A circuit court has jurisdiction to correct an illegal sentence even if it has been placed into execution. Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996); Bangs v. State, supra; Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984); Massey v. State, 278 Ark. 625, 648 S.W.2d 52 (1983). If we hold that a trial court’s sentence was illegal and that the error had nothing to do with guilt, but only with the illegal sentence, we can correct the sentence in lieu of remanding. Banks v. State, supra.
In Lewis v. State, this court set out the parameters for interpreting a trial court’s judgment. 336 Ark. 469, 986 S.W.2d 95 (1999). “Q]udgments are generally construed like other instruments and the determinative factor is the intention of the court, gathered from the judgment itself and the record, including the pleadings and the evidence. . . . [I]t is to be presumed that a defendant has been accorded a fair trial, and that the judgment of conviction is valid.” Id. at 475, 986 S.W.2d at 98. The March 30, 2001 amended judgment and commitment order imposed a sentence of 480 months’ imprisonment and a suspended sentence of 240 months, for a total of 720 months (or sixty years). The sentence for a Class Y felony is ten to forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997). Mr. Harness’s attorney pointed out the illegal length of the sentence to the trial court. After a brief discussion among the judge, the prosecutor, and Mr. Harness’s attorney in which all agreed on the intended sentence, the judge ruled as follows: “[a]ll right, then it will be amended to reflect 20 year sentence with 20 suspended.” Based upon the record in this case, the clear intent of the circuit court and the understanding of both the State and the defendant was that Mr. Harness be sentenced to twenty years’ imprisonment, followed by a twenty-year suspended imposition of sentence.
One of the conditions imposed by the circuit court in connection with the twenty-year suspended sentence was as follows: “You must report as directed to a supervising officer and permit him or her to visit you in your residence, place of employment, or other property.” This reporting requirement makes the actual sentence imposed by the circuit court one of probation rather than suspension.
Section 5-4-104 of the Arkansas Criminal Code provides in relevant part as follows: “The court may sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment, but the court shall not sentence a defendant to imprisonment and place him on probation, except as authorized by § 5-4-304.” Ark. Code Ann. § 5-4-104(c)(3) (Supp. 2001). Section 5-4-304 permits confinement as a condition of suspension; however, the period of confinement cannot excéed 120 days in the case of a felony or thirty days in the case of a misdemeanor. Ark. Code Ann. § 5-4-304(d)(l) (Supp. 2001). The original commentary explains that this section recognized the practice of Arkansas judges to use the shock of a short period of incarceration to enhance the effectiveness of a subsequent period of suspension or probation by giving the offender a “taste” of imprisonment. Original Commentary to Ark. Code Ann. § 5-4-304 (Repl. 1995).
As noted earlier, the judge, the prosecutor, and the defense attorney all agreed that the circuit court intended to sentence Mr. Harness to twenty years’ imprisonment followed by a twenty-year suspended imposition of sentence. The issue before us is whether the condition that Mr. Harness report to a supervising officer transformed the suspension into probation. We addressed this same issue in Bangs v. State, 310 Ark. 235, 835 S.W.2d 294.
The distinction between probation and suspension is one of supervision. Ark. Code Ann. § 5-4-101 (1987) defines both probation and suspension as release without pronouncement of sentence. However, probation is defined as “release without pronouncement of sentence but subject to the supervision of a probation officer” and suspension is defined as “release without pronouncement of sentence and without supervision.”
Id. at 239-40, 835 S.W.2d at 296 (emphasis added). The Bangs court explained that when the current criminal code was written, imprisonment followed by suspension was authorized because it was a widespread practice by the Arkansas trial bench. Id. However, “probation was prohibited from following imprisonment because supervision by both the court and the Board of Pardons and Paroles is a needless duplication of effort conducive to jurisdictional disputes.” Id. at 240, 835 S.W.2d at 296. The Bangs court held as follows: “we affirm the trial court’s revocation based on the escape and modify the conditions so that appellant is no longer required to report to a probation officer.” Id. at 242, 835 S.W.2d at 297 (Mr. Bangs had fled during the period of suspension). Accordingly, the conditions imposed by the circuit court in this case are hereby modified so that Mr. Harness is no longer required to report to a supervising officer.
As modified herein to reflect a sentence of twenty years’ imprisonment, followed by a twenty-year suspended imposition of sentence, and with the above-mentioned modification to the conditions of suspension, the March 30, 2001 amended judgment and commit ment order imposes a legal sentence. This then leads us to a consideration of Mr. Harness’s point on appeal — whether the circuit court had jurisdiction to issue its amended judgment and commitment order on January 16, 2002, revoking Mr. Harness’s suspended sentence and imposing a term of thirty years’ imprisonment.
II. The January 16, 2002 Amended Judgment and Commitment Order
The first point on appeal challenges the jurisdiction of the circuit court to revoke Mr. Harness’s suspended sentence for an action occurring prior to the commencement of the suspension period. This court has stated that “without another statutory provision conferring jurisdiction, ‘the jurisdictional statements contained in §§ 41-1208 and 41-1209 [now §§ 5-4-309 and 5-4-310] control [revocation of probation].’” Carter v. State, 350 Ark. 229, 233, 85 S.W.3d 914, 916-17 (2002) (quoting Gill v. State, 290 Ark. 1, 3, 716 S.W.2d 746, 747 (1986)). Therefore, resolution of Mr. Harness’s point on appeal involves an issue of statutory interpretation. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect derived from the whole. Id. However, we will not interpret a statute, even a criminal one, so as to reach an absurd conclusion that is contrary to legislative intent. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999).
Mr. Harness argues that a plain reading of the statutes limits a circuit court’s power to revoke to the time during the period of suspension or probation and that to interpret the statutes to allow revocation prior to the commencement of the suspension period leads to absurd results. He acknowledges an opinion to the contrary by the Arkansas Court of Appeals, and asks this court to overrule Venable v. State, 271 Ark. App. 289, 770 S.W.2d 170 (1989). On the other hand, the State contends that the statutes permit a circuit court to revoke a suspended sentence at any time prior to the expiration of the period of suspension, not just during the period of suspension. When asked to specify the reason for revoking Mr. Harness’s suspended sentence, the circuit court replied that rather than surrendering to the ADC as ordered by the court, Mr. Harness fled to Utah under an alias “specifically for the purpose of avoiding the penalty here in Arkansas and the sentence here in Arkansas . . . .”
Our analysis begins with one of the statutory provisions that confers jurisdiction on the circuit court to revoke a suspended sentence. Section 5-4-309 provides in pertinent part:
If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
Ark. Code Ann. § 5-4-309(d) (Supp. 2001) (emphasis added). While this section clearly refers to the end of the period in which a circuit court can revoke a defendant’s suspension, it does not-specify when the period of suspension begins. In order to make that determination, we must read section 5-4-309 in harmony with other sections dealing with the same subject matter. Short v. State, supra.
When a circuit court considers whether to order a suspended sentence, it must first decide whether “[t]here is undue risk that during the period of suspension . . . the defendant will commit another offense . . . .” Ark. Code Ann. § 5-4-301 (b)(1) (Supp. 2001) (emphasis added). A circuit court’s power to impose terms and conditions of suspension is established in Ark. Code Ann. § 5-4-303 (Supp. 2001). Although the court is directed to “attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life,” Ark. Code Ann. § 5-4-303(a), it is required to provide as an express condition of every suspension “that the defendant not commit an offense punishable by imprisonment during the period of suspension . . . .” Ark. Code Ann. § 5-4-303(b) (emphasis added). Thus, both the purpose and the mandatory conditions of suspension contemplate that the conditions are imposed during the period of suspension. The permissive conditions also contemplate that the conditions be imposed during the period of suspension. For example, a circuit court may require, as a condition of suspension, that the defendant support dependents, work faithfully, participate in community-based rehabilitation programs, refrain from consorting with designated persons, make restitution, post bond, or the court may require other conditions “not unduly restrictive of [the defendant’s] liberty[.]” Ark. Code Ann. § 5-4-303(c). The alternatives available to the court after revocation of suspension also assume that the revocation takes place during the period of suspension. The circuit court may continue the period of suspension, impose a period of confinement, direct the defendant to report to the court, require the defendant to remain within the jurisdiction of the court, and notify the court of any change of address or employment. Ark. Code Ann. § 5-4-303 (d).
Section 5-4-306 requires that the suspension “shall be for a definite period of time . . . .” Ark. Code Ann. § 5-4-306(a) (Supp. 2001). Section 5-4-307 explains that the period of suspension “commences to run on the day it is imposed,” except where the suspension follows a term of imprisonment and then “the period of suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment.” Ark. Code Ann. § 5-4-307 (Repl. 1997). Our review of section 5-4-309 along with the other sections that are relevant to the subject matter of suspended sentences leads us to conclude that a circuit court is statutorily authorized to revoke a period of suspension for a violation of the terms or conditions of suspension that occurs “during the period” of suspension. ,
In any event, the interpretation suggested by the State would lead to absurd results because certain terms and conditions of suspension only make sense if imposed during the period of suspension. For example, as a condition of suspension, Mr. Harness was ordered not to associate with persons who have been convicted of felonies. He was required to be gainfully employed or a student, to pay household expenses, and to support his dependents. He was also ordered to remain within the state. If a defendant can violate the conditions of suspension before the commencement of the suspension period, then imprisonment itself would result in a violation. Upon imprisonment, the defendant necessarily associates with persons who have been convicted of felonies — a suspension violation. Moreover, incarceration prohibits the defendant from being gainfully employed to support his or her family and dependents, and it makes remaining within the state a meaningless condition. Thus, terms and conditions of suspension in this case only make sense if imposed during the period of suspension. Any other interpretation leads to an absurd result.
Nonetheless, the State relies on Venable v. State, supra, in which an equally divided court of appeals panel affirmed a trial court’s revocation of a suspended sentence based on circumstances similar to those in this case. In revoking Mr. Harness’s suspended sentence, the circuit court relied on an unpublished decision of the court of appeals, that in turn relied on Venable v. State, supra. The Venable plurality based its reasoning primarily on policy considerations drawn from the decisions of federal courts and the courts of some, but not all, of our sister states. However, those decisions provide little guidance in the resolution of the issue before us because sentencing in Arkansas is strictly a matter of Arkansas statutes, and a trial court may only impose a sentence authorized by statute. Ark. Code Ann. § 5-4-104(a); Bunch v. State, supra. Because none of the cases from other state and federal jurisdictions are based on statutes containing the same language as the Arkansas statutes, we must rely on our own criminal code and case law.
Construing the statutes authorizing a suspended sentence as a whole and resolving all doubts in favor of the accused, as we must do, we hold that the statutes did not empower the circuit court to revoke Mr. Harness’s suspended sentence prior to the commencement of the period of suspension. Because a sentence is void when the trial court lacks the authority to impose it, we reverse the January 16, 2002 amended judgment and commitment order. We reinstate the March 30, 2001 amended judgment and commitment order as modified herein.
Having concluded that the circuit court does not have the power to revoke a suspended sentence prior to the commencement of the suspension period, we overrule Venable v. State, 27 Ark. App. 289, 770 S.W.2d 170 (1989), and all other court of appeals decisions in conflict with this holding. Because we reverse based on Mr. Harness’s first point on appeal, we need not address his due-process argument.
The January 16, 2002 amended judgment and commitment order is reversed, and the March 30, 2001 amended judgment and commitment order is reinstated as modified.
Affirmed as modified.
Corbin, J., not participating.
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Donald L. Corbin, Justice.
Appellant Raymond C. stJr. ice. two counts of capital murder in the Grant County Circuit Court and was sentenced to death. On appeal, this court affirmed his conviction, but reversed his death sentence and remanded the case for resentencing. See Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992) (“Sanders I”). Upon remand, Appellant was again sentenced to death, and this court affirmed. See Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert. denied, 513 U.S. 1162 (1995) (“Sanders II”). Subsequent to this court’s decision, Appellant timely filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition without holding a hearing. We now reverse and remand for an evidentiary hearing pursuant to Rule 37.
In light of the fact that there have been two previous direct appeals in this matter, it is not necessary to go into a lengthy recitation of the underlying facts. See Sanders I and Sanders II. Suffice it to say, Appellant was convicted of the murders of Nancy and Charles Brannon on February 28, 1991. Following his conviction, Appellant filed two petitions under Rule 37. The first petition was eleven pages long, with the eleventh page containing only the certificate of service. The second petition was a sixteen page “enlarged” version of the first petition. In support of his petition, Appellant alleged that: (1) venue was changed without Appellant’s consent and out of his presence; (2) several conflicts of interests precluded Appellant from receiving a fair trial; (3) Appellant’s counsel was ineffective in both the guilt and penalty phases of his trial; and (4) the State improperly admitted a subsequent homicide as an aggravator during sentencing. Along with these petitions, Appellant also filed a motion seeking the court’s permission to file the enlarged Rule 37 petition. He also filed a motion to supplement his petition on the basis that he had obtained newly discovered evidence regarding a criminal association between Dan Harmon, the prosecutor in his case, and William Murphy, one of his attorneys in this case.
The trial court concluded that both motions exceeded the ten-page limit set forth in Rule 37.1(e) and summarily dismissed both petitions. The trial court then denied Appellant’s motion to file the enlarged petition. The court also denied Appellant’s motion requesting permission to supplement his original Rule 37 petition. The trial court then went on to state, however, that even if he were to consider Appellant’s substantive arguments, he still would not prevail under Rule 37. According to the trial court, there was no genuine issue as to any material fact in Appellant’s petition; thus, the State’s motion for summary judgment under Ark. R. Civ. P. 56 was proper. The trial court based this finding on his conclusion that the Arkansas Rules of Civil Procedure are applicable to Rule 37 proceedings.
The trial court also determined that Appellant’s petition failed under Rule 37.3(a), because it contained only conclusory allegations that lacked any factual support and did not warrant an evidentiary hearing. The trial court acknowledged that Appellant attempted to set forth additional facts in support of his petition regarding the criminal association between Harmon and Murphy that led to their indictments and ultimate convictions in federal court. The trial court concluded, however, that these facts were irrelevant to Appellant’s petition, because Appellant failed to tie the crimes of Murphy and Harmon to his prosecution for the Brannon murders. This appeal followed.
Appellant raises several arguments on appeal. First, Appellant contends that it was error for the trial court to dismiss his original Rule 37 petition on the basis that it exceeded the page limits of Rule 37.1(e). Next, Appellant argues that the trial court erred in denying his motion to file an enlarged Rule 37 petition and his motion to supplement the petition. Appellant also contends that the trial court erred in applying the principles of Rule 56 to a Rule 37 proceeding. Finally, Appellant contends that his Rule 37 petition demonstrates that he is entitled to a hearing. We agree that Appellant has set forth sufficient facts in support of his petition for postconviction relief to warrant an evidentiary hearing. Having so concluded, it is unnecessary for us to consider the merits of Appellant’s remaining arguments on appeal. For purposes of clarity, however, we will address each of the points raised by Appellant.
For his first point on appeal, Appellant argues that the trial court erred in denying his Rule 37 motion on the basis that the motion was eleven pages long. According to Appellant, the petition’s eleventh page contained nothing but the certificate of service, which is not even required under any provision of Rule 37. Thus, Appellant argues the trial court erred in dismissing his petition on this procedural basis.
Under Ark. R. Crim. P. 37.1(e), petitions for postconviction relief shall not exceed ten pages in length. This court has held that the rule limiting petitions to ten pages is an entirely reasonable restriction on petitioners seeking postconviction relief. See Washington v. State, 308 Ark. 322, 823 S.W.2d 900 (1992); Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989). In fact, this court has stated that due process does not require courts to provide an unlimited opportunity to present postconviction claims or prevent a court from establishing limits on the number of pages in a petition. Id. Moreover, this court has held that any exhibits attached to a petition filed under Rule 37 are counted for purposes of determining whether the petition conforms to the ten-page limitation. Washington, 308 Ark. 322, 823 S.W.2d 900. This court has not, however, considered the issue of whether a page containing only a certificate of service should count towards that page limitation. We think that it should not.
This court has repeatedly stated that, in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure the denial rests on solid footing. Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001); Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). In this case, the substance of Appellant’s petition was concluded half-way through the tenth page. Appellant’s counsel’s signature followed on the remainder of the tenth page, with the certificate of service carried over to the next page. It is, therefore, unreasonable to dismiss a petition as too long under these circumstances. Accordingly, the trial court abused its discretion in summarily dismissing Appellant’s original Rule 37 petition because it exceeded ten pages.
With regard to Appellant’s contention that the trial court erred in denying his motion to file an enlarged petition, we disagree. This court’s Rules of Criminal Procedure do allow for the amendment of Rule 37 petitions, but only with leave of the court. Ark. R. Crim. P. 37.2(e). In Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000), the trial court found that the appellant failed to set forth any legitimate ground or justification for fifing the enlarged petition. This court affirmed on appeal. Likewise, in the present matter, Appellant fails to establish that the trial court abused its discretion in denying the motion to file an enlarged petition. As the trial court pointed out, Appellant spent the majority of his motion attacking the page restrictions of Rule 37.1(e), rather than estabhshing a need to exceed that limitation. Accordingly, the trial court did not err on this point.
Appellant also argues that the trial court erred in denying his motion to supplement his Rule 37 petition so that he could raise the allegations regarding the criminal relationship between the prosecutor, Harmon, and his own defense counsel, Murphy. The trial court denied this motion on the ground that it was facially meritless. Specifically, the trial court stated that the motion failed to demonstrate any nexus between the criminal activities of Murphy and Harmon with the prosecution of Appellant for the Bran-non murders. While we agree that there is a lack of proof of any such nexus, we think the trial court abused its discretion in denying the motion to supplement on this basis.
The motion at issue here set forth in detail the offenses that Harmon and Murphy were accused of, as well as the time periods in which these offenses allegedly occurred. The offenses included attempts to extort money from criminal defendants that occurred around the time that Appellant was represented by Murphy and prosecuted by Harmon. While it is not clear whether there is any nexus between the two, the facts alleged by Appellant in his petition raise more than the mere specter of an improper relationship between the prosecutor and defense counsel that may have prejudiced Appellant in his trial. Accordingly, the trial court abused its discretion in refusing to allow Appellant to supplement his petition with this newly obtained information.
Appellant’s next argument is that the trial court erred in granting the State’s motion for summary judgment under Ark. R. Civ. P. 56, as that rule is not applicable in Rule 37 proceedings. The State counters that even if Rule 56 is not applicable, the trial court still based his denial of Appellant’s claims under both Rule 56 and Rule 37.3; thus, Appellant’s argument on this point is without merit. We agree with the State that the trial court’s application of Rule 56 did not prejudice Appellant, because the trial court alternatively relied on Rule 37.3. Again, though, we address this issue in order to prevent any future confusion.
This court has long recognized that Rule 37 proceedings are civil in nature. See State v. Hardin, 347 Ark. 62, 60 S. W.3d 397 (2001); Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001); Arkansas Pub. Defender Comm’n v. Greene County Cir. Court, 343 Ark. 49, 32 S.W.3d 470 (2000). Moreover, this court has referred to and applied the Rules of Appellate Procedure— Civil when necessary in criminal appeals. Id; Byndom v. State, 344 Ark. 391, 39 S.W.3d 781 (2001). Usually, this court’s discussion of the civil nature of Rule 37 proceedings is in the context of a petitioner seeking the appointment of counsel for the pursuit of his Rule 37 petition. See, e.g., Greene County, 343 Ark. 49, 32 S.W.3d 470. This court has also applied a civil appellate rule in a Rule 37 proceeding where the State seeks to appeal from the grant of postconviction relief. See, e.g., State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). We have not, however, applied the Rules of Civil Procedure to a Rule 37 action.
Here, the State attempts to rely on this court’s decision in Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999), in support of its argument that Rule 56 is applicable. Nance is of no help to the State. That case involved an appeal from the denial of a Rule 37 petition, following a motion by the State for summary judgment on the pleadings. The trial court determined that the pleadings were conclusory and insufficient to warrant postconviction relief. This court affirmed the trial court’s denial of the petition, but analyzed the denial of the claim under Rule 37.3(a). Nothing in the opinion indicates that Rule 56 is applicable to Rule 37 proceedings.
The very provisions of Rule 56 demonstrate its inapplicability to the present matter. Rule 56(c)(2) states in pertinent part:
The judgment sought shall be. rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows 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 on the issues specifically set forth in the motion.
There are no depositions, interrogatories, or other pleadings at issue in Rule 37 proceedings. In determining whether a petitioner has established grounds entitling him to Rule 37 relief, the trial court relies on the Rule 37 petition itself. Rule 37.3(a) provides its own mechanism for dealing with conclusory petitions. It states in relevant part:
If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court’s findings.
Accordingly, it was error for the trial court to apply the summary-judgment principles of Rule 56 to this case.
For his final point on appeal, Appellant argues that he was entitled to a hearing on his Rule 37 petition, as he set forth numerous grounds entitling him to relief. The State counters that Appellant’s allegations are either procedurally barred or amount to nothing more than mere conclusory allegations. The trial court agreed with the State that Appellant’s petition contained only conclusory allegations and adopted the assertions set forth by the State in its Rule 56 motion as its findings of fact. This was error.
It is undisputed that the trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court’s findings without a hearing. See Bilyeu v. State, 337 Ark. 304, 987 S.W.2d 277 (1999); Luna-Holbird v. State, 315 Ark. 735, 871 S.W.2d 328 (1994). This court has previously interpreted Rule 37.3 to “provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief.” Wooten, 338 Ark. 691, 694, 1 S.W.3d 8, 10 (emphasis added) (quoting Bohanan v. State, 327 Ark. 507, 510, 939 S.W.2d 832, 833 (1997) (per curiam)). Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court’s decision. Id.; Smith v. State, 300 Ark. 291, 778 S.W.2d 924 (1989). If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. Bohanan, 327 Ark. 507, 939 S.W.2d 832.
In the present case, we are confronted with two problems. First, even if we were to accept the trial court’s adoption of the State’s assertions as sufficient findings of fact, the trial court’s order still fails to comply with the requirements of Rule 37.3(a), because the order does not specify those parts of the record relied on to form the basis of the order. As we stated in Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988), such a failure constitutes reversible error, unless this court can determine from the record as a whole that the petition has no merit. Upon reviewing this record, we cannot say that it conclusively shows that Appellant’s petition is without merit.
Appellant has submitted a petition that states facts sufficient to render his allegations more than conclusory. In addition, he attempted to supplement his petition with facts regarding the relationship between Harmon and Murphy that call into question the fairness of his capital-murder trial. We believe the instant case is analogous to the United States Supreme Court’s decision in Bracy v. Gramley, 520 U.S. 899 (1997). There, the defendant was convicted of armed robbery, aggravated kidnapping, and murder and was sentenced to death. Following a denial of his request for postconviction relief, the defendant sought federal habeas corpus relief. The federal district court denied his petition, and he appealed to the United States Supreme Court. At issue was whether the defendant had shown good cause to prove his claim that he was denied a fair trial, because the judge who presided at his trial was later convicted of taking bribes from criminal defendants.
On appeal, the Supreme Court reversed and remanded the matter to the federal district court with instructions that the defendant be allowed to conduct discovery into his allegation. The Court recognized that there was no allegation that the trial judge tried to obtain a bribe from this particular defendant, but expressed concern over evidence that the trial judge “fixed” other murder cases around the same time as this defendant’s case was pending. The Court determined that the defendant had shown good cause for conducting discovery into his allegation that the trial judge was biased in favor of the prosecution in order to cover up the fact that the judge accepted bribes from other defendants.
We find Bracy to be more persuasive than Lovell v. State, 984 P.2d 382 (Utah 1999), a case relied on by the State in support of its contention that Appellant is not entided to an evidentiary hearing. That case involved an attorney who had an extensive, but legal, relationship with the prosecutor. The Utah Supreme Court determined that there was no conflict of interest, because the defendant failed to demonstrate that other counsel would have approached the case differendy. The State ignores, however, the fact that the defendant had previously been granted an evidentiary hearing into his allegation that he was prejudiced by the conflict of interest between his counsel and the prosecutor.
Finally, we note that in Sanchez v. State, 290 Ark. 39, 716 S.W.2d 747 (1986), this court allowed the appellant to proceed with an evidentiary hearing pursuant to Rule 37, despite the conclusion that the majority of the appellant’s claims were not cognizable under Rule 37 or failed to demonstrate that he was entided to relief under the rule. Nonetheless, this court determined that a hearing was warranted on the allegation of ineffective assistance of counsel, because the appellant discovered after his trial that his attorney was under indictment at the time of this trial in the same court as the appellant was being tried. Recognizing that this may have created a conflict of interest, this court granted the appellant a hearing on this issue.
. In summary, this court cannot ignore the fact that Appellant was represented in a capital-murder case by someone who was later indicted on charges of racketeering and conspiracy along with the man who prosecuted Appellant. Appellant has set forth sufficient facts in his petition demonstrating that he is entitled to pursue these claims in the course of an evidentiary hearing. We are mindful of our previous acknowledgment that death-penalty cases are different from other criminal cases, due to the obvious finality of the punishment. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); Echols, 344 Ark. 513, 42 S.W.3d 467; ACLU, Inc. v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), modified on other grounds, State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). With that said, we remind Appellant that this evidentiary hearing is strictly limited to those issues already raised by Appellant in his petition. This is not an opportunity to raise new issues.
Appellant also urges this court to remand this matter for a hearing before a different judge. He contends that the trial judge in this case has already expressed his opinion regarding the merits of his petition and, thus, is biased against Appellant. We disagree. It is well settled that there is a presumption of impartiality on the part of judges. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001); Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998). The question of bias is usually confined to the conscience of the judge. Id.; Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). Appellant has failed to overcome the presumption of impartiality. Accordingly, we decline to remand this case to a different trial judge.
As a final note, Appellant asks this court to make a determination of whether the protections of Rule 37.5 should be applied to him in this case. Rule 37.5, which became effective on August 1, 1997, provides the method for pursuing postconviction relief in death-penalty cases. The rule evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16 — 91— 201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Appellant recognizes that the rule is inapplicable to his case, because he became eligible to file his Rule 37 petition prior to the effective date of Rule 37.5. See Rule 37.5(k). He argues, though, remanding his case without providing him counsel under Rule 37.5 amounts to a denial of equal protection in violation of the Fourteenth Amendment and Article 2, § 18, of the Arkansas Constitution. Although this court in Wooten, 338 Ark. 691, 1 S.W.3d 8, addressed the application of the principles of Rule 37.5 to a petition filed before the rule’s effective date, we are unaware of such a need in the instant case. It is apparent from the record before us that Appellant is already represented by qualified counsel; thus, any discussion of appointing counsel pursuant to Rule 37.5 is moot.
Reversed and remanded.
The “enlarged” petition did not raise any additional claims supporting Appellant’s entitlement to Rule 37 relief; rather, the longer petition simply expands on those claims raised by Appellant in the first petition. | [
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Per CurDistrict
On February 11, 2003, the United States District Court for the Western District of Louisiana filed with this court a motion to certify a question of law and certification order pursuant to Rule 6-8 of the Rules of the Supreme Court and Court of Appeals. Rule 6-8 was adopted in 2002 pursuant to Section 2 (D) (3) of Amendment 80 to the Arkansas Constitution: “The Supreme Court shall have original jurisdiction to answer questions of state law certified by a court of the United States which may be exercised pursuant to Supreme Court rule.” The pending motion is the first filed pursuant to this provision and presents the first opportunity for this court to consider its application.
At the outset, we note observations made by other courts concerning the certification process.
The growth of the Uniform Certification of Questions of Law Act has largely been a response to the Abstention Doctrine, which was a necessary outgrowth of Erie Railroad v. Tompkins, 304 U.S. 64 (1938). In Erie, the Court held that in diversity cases federal courts were no longer “free to exercise an independent judgment as to what the common law of the State is or should be; . . .” but must apply the substantive law as evolved by the state either through its statutes or its court decisions.
Morningstar v. Black and Decker Manufacturing, 162 W. Va. 857, 253 S. E. 2d 666, 669 (W. Va. 1979).
Many commentators have noted the benefits of certification. The procedure: (i) allows federal courts to avoid mischaracterizing state law (thereby avoiding a misstatement that might produce an injustice in the particular case and potentially mislead other federal and state courts until the state supreme court finally, in other litigation, corrects the error); (ii) strengthens the primacy of the state supreme court in interpreting state law by giving it the first opportunity to conclusively decide an issue; (iii) avoids conflicts between federal and state courts, and forestalls needless litigation; and (iv) protects the sovereignty of state courts. (See, e.g., Braun, A Certification Rule for California (1996) 36 Santa Clara L.Rev. 935, 937-942; Schneider, “But Answer Came There None’’: The Michigan Supreme Court and the Certified Question of State Law (1995) 41 Wayne L.Rev. 273, 299-301; see also Goldschmidt, Certification of Questions of Law: Federalism in Practice (1995 Amer. Judicature Soc’y.) pp. 3-10.)
Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352, 993 P. 2d 334, 338 (Cal. 2000).
Certification will only be necessary when our substantive law is unclear on an issue “which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court.” Rule 6-8(a) (2).
[0]ur sister-state high courts overwhelmingly have rejected contentions that in answering a certified question a court issues an improper advisory opinion. The weight of authority holds that a high court’s answer to a certified question is not an improper advisory opinion so long as (i) a court addresses only issues that are truly contested by the parties and are presented on a factual record; and (ii) the court’s opinion on the certified question will be dispositive of the issue, and res judicata between the parties. (See, e.g., Schlieter v. Carlos (1989) 108 N.M. 507, 775 P.2d 709, 710; Wolner v. Mahaska Industries, Inc. (Minn. 1982) 325 N.W.2d 39, 41; Elliott, supra, 74 Wash.2d 600, 446 P.2d 347, 354-355; see generally Braun, supra, 36 Santa Clara L.Rev. 935, 947.)
Los Angeles Alliance, 993 P. 2d at 338-39.
Acceptance of certification is a matter of judicial discretion, and this court will accept certification of a question of Arkansas law only where all facts material to the question of law to be determined are undisputed, and there are special and important reasons therefor, including, but not limited to, any of the following:
1. The question of law is one of first impression and is of such substantial public importance as to require a prompt and definitive resolution by this court.
2. The question of law is one with respect to which there are conflicting decisions in other courts.
3. The question of law concerns an unsettled issue of the constitutionality or construction of a statute of this State.
See Pennsylvania Supreme Court’s Internal Operating Procedures Regarding Certification of Questions of Law.
As to the pending motion before the court, it concerns an unsettled issue of the construction of a statute. Therefore, we accept the certification. As stated by the federal district court, the question is: “Does the phrase ‘person or persons’ in Ark. Code Ann. § 18-44-211 (‘Act 513’) include a limited liability company, in light of Ark. Code Ann. § 18-44-202 (‘Act 615’), the language of which clearly provides a lien to a ‘person, corporation, firm, association, partnership, materialman, artisan, laborer, or mechanic?”’ To that statement of the issue, we note that the certifying court points out that in 1837 the Arkansas General Assembly enacted a provision for construction of Arkansas Acts that states the following: “[w]hen any subject matter, party, or person, is described or referred to by words importing the singular number or the masculine gender, several matters and persons, and females as well as males, and bodies corporate as well as individuals, shall be deemed to be included.” Ark. Code Ann. § l-2-203(a). The federal district court points out that this rule of construction applies “in all cases,” Ark. Code Ann. § 1-2-201, and asserts that the conflict presented by these statutes, viewed collectively, is as follows: whether the general rule of statutory construction applies, or whether the Arkansas General Assembly intended to carve out an exception to this rule by its use of the phrase “person or persons” in Act 513 and its contemporaneous use of the phrase “person, corporation, firm, association, partnership, materialman, artisan, laborer, or mechanic” in Act 615? This per curiam order constitutes notice of our acceptance of the certification as herein reformulated. No portion of the record is to be filed at this time.
In considering this motion, we have concluded that Rule 6-8 may need to be supplemented to provide additional procedural details, but the prudent course of action appears to be to have further experience with this new procedure before considering amendments to the rule. A Rule 6-8 matter is an original action involving questions of law only. For purposes of the pending proceeding, the following requirements are imposed:
A. Timé limits under Rule 4-4 will be calculated from the date of this per curiam order accepting certification. The plaintiff in the underlying action, Longview Production Company, is designated the moving party and will be denoted as the “Petitioner,” and its brief is due 30 days from the date hereof; the defendants, Oil Field, et al, shall be denoted as the “Respondent,” and its brief shall be due 30 days after the filing of Longview’s brief, and Petitioner may file a reply brief within 15 days of Respondent’s filing. The Attorney General and any other interested parties filing amicus curiae briefs (see D, below) shall file briefs at the same time as the Respondent’s brief.
B. The briefs shall be as in other cases except for the content. Only the following items required in Rule 4-2(a) shall be included:
(3) Point on appeal which shall correspond to the “certified question of law to be answered” in the federal district court’s certification order, as reformulated.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the “facts relevant to the certified question of law” as stated in the federal district court’s certification order.
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
C. Oral argument will only be permitted if the court concludes that it will be helpful for presentation of the issue.
D. Rule 4-6 with respect to amicus curiae briefs will apply. Because the certified question involves statutory interpretation, a copy of this per curiam order accepting the certification will be sent to the Arkansas Attorney General, and that office shall prepare an amicus curiae brief on the issue.
E. This matter will be processed as any case on appeal and will not be given any special priority.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioner and Respondents.
Corbin, J., not participating. | [
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Donald L. Corbin, Justice.
Karl Douglas Roberts was stice. County Circuit Court of the cap ital murder of twelve-year-old Andria Brewer, for which he was sentenced to death by lethal injection. Roberts filed a waiver of his rights to appeal and to pursue postconviction remedies. Following a hearing on the waiver, the trial court determined that Roberts had the capacity to knowingly and intelligently waive his appeal rights. This is an automatic review of the entire record pursuant to our holding in State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). We find no error and affirm both the conviction and sentence.
The record reflects that on May 15, 1999, Andria Brewer was reported missing from her home, near Mena. She was last seen leaving her house in a small red pickup truck. Police initially thought that Andria may have run away from home. After a day or so, however, they decided that was unlikely, and they called in the FBI and the Arkansas State Police to help investigate. They first looked for people known to the family that drove small red pickup trucks. The only two people who fit that description were Roberts and Bobby Stone. Both men agreed to voluntarily go to the police station to be interviewed on May 17, and both submitted to polygraph examinations.
Roberts’s polygraph exam was conducted by Corporal Ocie Rateliff of the Arkansas State Police. Rateliff read Roberts his Miranda rights prior to the exam and explained to'him how the polygraph test worked. At the conclusion of the exam, Rateliff allowed Roberts to go outside to smoke a cigarette while he analyzed the polygraph. Before speaking with Roberts, Rateliff informed FBI Special Agent Mark Jessie that Roberts was being deceptive on the exam.
Rateliff then called Roberts back into the interview room and told him that the test revealed that he was being deceptive. Roberts immediately dropped his head and said, “I messed up.” He then confessed that he took Andria from her home, drove her out on an old logging road, raped her, and then strangled her to death. Rateliff wrote down Roberts’s statements as he made them, and then Roberts signed off on the written statement.
Roberts was subsequently convicted of the capital murder of the young girl and sentenced to death, in an order entered on May 23, 2000. Following his conviction and sentence, on June 13, 2000, Roberts filed a waiver of appeal. Thereafter, the trial court held a hearing on the waiver and determined that Roberts had knowingly and intelligently waived his appeal rights. This court granted the State’s petition for a writ of certiorari to review the record in this case and appointed attorney Tim Buckley to abstract the record and prepare a brief setting out any points of error. See Roberts v. State, CR 02-22, slip op. (February 7, 2002) (per curiam).
Because Roberts waived his rights to appeal and to postconviction relief, this court must conduct a review of the record in this case to determine whether there is reversible error. In doing so, we must consider and determine: (1) whether Roberts properly waived his rights to appeal; (2) whether any errors raised in the trial court are prejudicial to Roberts in accordance with Ark. Code Ann. § 16-91-113(a) (1987) and Ark. Sup. Ct. R. 4-3 (h); (3) whether any plain errors covered by the exceptions provided in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), have occurred; and (4) whether other fundamental safeguards were followed. See Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Robbins, 339 Ark. 379, 5 S.W.3d 51.
Appointed counsel raises four points of error. The first two points concern the trial court’s refusal to suppress Roberts’s statement and the physical evidence gained as a result thereof. The third point concerns the seating of a juror that the defense attempted to remove for cause. The fourth point challenges the evidence to support the aggravating circumstance that the crime was committed in an especially cruel or depraved manner. Before reviewing these points or any other potential errors, we must first determine whether the trial court erred in ruling that Roberts was competent to waive his appeal rights.
I. Knowing and Intelligent Waiver of Appeal Rights
In this state, a defendant sentenced to death will be able to forego a state appeal only if he or she has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his or her sentence. Smith, 343 Ark. 552, 39 S.W.3d 739. This court will not reverse the trial court’s conclusion unless it is clearly erroneous. Id.
In the present case, the trial judge had the benefit of having heard much psychological evidence during the pretrial competency hearing and throughout the course of the trial. The defense presented testimony from Dr. Lee Archer, a neurologist from the University of Arkansas'Medical Sciences, and Dr. Mary Wetherby, a neuropsychologist from Texarkana. Both doctors testified that Roberts had experienced an injury to the frontal lobes of his brain when he was hit by a dump truck at age twelve. Both doctors stated that as a result of the brain injury, Roberts suffered from hallucinations and his ability to conform his conduct to the requirements of the law was impaired. Both doctors acknowledged that Roberts knew right from wrong, but they opined that he was not able to control his emotions, and that this lack of emotional control was direcdy responsible for his raping and murdering the victim.
The State presented testimony from Dr. Reginald Rutherford, a clinical neurologist, and Dr. Charles Mallory, a psychologist from the Arkansas State Hospital. Dr. Rutherford opined that Roberts’s brain injury did not cause him to do what he did. Rutherford explained that Roberts had no dramatic behavioral problems that would indicate that he would do something of this nature. Rutherford also stated that it was evident that Roberts was involved in a complex series of actions that culminated in the crime, and that his actions demonstrated that he appreciated the criminality of his conduct.
Mallory determined that Roberts had a full-scale I.Q. of seventy-six, which placed him within the borderline-intellectual-functioning range. Despite his lower I.Q., Mallory found that Roberts had graduated high school, could read and write on a high school level, had held the same job for the last six years, and had a wife of ten years and a family. Mallory also stated that Roberts did very well on the Georgia Court Competency Test, which measures if a person understands the criminal-justice system and the procedure of the trial. Mallory stated that Roberts’s responses demonstrated that he understood his legal rights and the trial process. Mallory ultimately concluded that, based on his tests and interviews with Roberts and his review of Roberts’s medical and psychological records, Roberts knew the difference between right and wrong and that he had the ability to conform his conduct to the requirements of the law. Mallory relied on the foregoing facts as well as on Roberts’s actions in the crime. Particularly, Mallory stated that Roberts was cognitive of his actions, and that he took steps to avoid apprehension both before and after the crime, by driving the girl- to a remote location, raping and killing her, and then covering up her body and throwing away her clothes. Mallory also pointed to Roberts’s statement that he decided to kill Andria because he knew that she could identify him as having raped her.
During the posttrial hearing, defense counsel asked Roberts if he was aware of the rights that he was waiving, specifically his right to appeal to this court, his right of postconviction challenge under Ark. R. Crim. P. 37.5, and his postconviction and habeas rights in federal court. Roberts stated that he understood the rights he was waiving and that it was his desire to waive any right to appeal. Roberts stated that he was not under the influence of alcohol or any other substance that would affect his ability to understand or to make a decision.
The trial judge asked Roberts a series of questions about the rights he was waiving and, specifically, if he understood what it meant to waive a right. Roberts stated that the word waiver “means to let something pass.” Roberts then reaffirmed that he understood all of his appeal rights. The trial judge asked Roberts to tell him in his own words what he was asking for, and Roberts stated: “I want to die.” The trial judge then asked Roberts if he was asking that the death sentence be carried out without any further action by his attorney on direct appeal, and Roberts stated: “Yes.”
We conclude that the foregoing evidence demonstrates that the trial court did not clearly err in determining that Roberts knowingly and intelligently waived his rights of appeal. We now turn to the points raised by appointed counsel in his brief.
II. Errors Alleged by Appointed Counsel
A. Motion tó Suppress Statement and Physical Evidence
Appointed counsel first argues that the trial court erred in denying Roberts’s motion to suppress his statement to police and any physical evidence gathered afterwards, as fruit of the poisonous tree. During the proceedings below, Roberts’s attorneys argued that the statement was involuntary because the police made a false statement of leniency in order to secure Roberts’s confession. At the suppression hearing, Officer Rateliff testified that when he confronted Roberts with his deceptive polygraph exam, Roberts “got that teared up look in his eye and dropped his head and said, ‘I messed up last Saturday.’” Rateliff testified that Roberts also said that he needed help. Rateliff stated that he then rolled his chair over next to Roberts, put his hand on Roberts’s shoulder and stated: “Get it off your chest, we’ll help.” When questioned by the defense, Rateliff explained that the help he was referring to was listening to Roberts and letting him get it “out in the open.”
Agent Jessie testified that both he and Rateliff were present in the interview room when Roberts came back in, and that when Rateliff told him that the polygraph indicated that he was being deceptive, Roberts “teared up and began to cry and made a statement to the effect that he had done something terrible.” Jessie also stated that Roberts asked for help. Jessie explained that, based on the general tone of the statement, he thought that the help Roberts was referring to was from a clergyman.
Defense counsel argued that by stating “we’ll help,” the officers made a false promise of leniency to induce Roberts’s confession. The prosecutor responded that the statement was too vague to be a promise of leniency. The prosecutor argued that at the point that Rateliff made the statement, the officers did not even know what they were dealing with, i.e., whether Andria had been kidnapped or whether she was dead. The prosecutor argued that it would be hard to make a promise of leniency if the officers did not know what they were promising. The prosecutor conceded, however, that all the physical evidence they gained was the result of Roberts’s statement and that, therefore, if the statement were suppressed, the physical evidence would have to be suppressed as well.
The trial court denied the motion to suppress, finding that the statement by Rateliff amounted to nothing more than an officer being courteous. The trial court found further that Roberts was over the age of twenty-one, that he could read and write, and that he was capable of functioning in society, as demonstrated by the facts that he was married and had a family, a home, and a job. The trial court noted the testimony of Dr. Mallory that although Roberts’s intelligence was not overly great, he could function in society and was capable of understanding. The trial court also found that Roberts was not initially detained by the police, but that he came to the police voluntarily. The trial court found further that the actual period of detention, i.e., from the point that Roberts stated that he had messed up and was thus no longer free to leave, was not lengthy. Based on all of these circumstances, the trial court concluded that the statement was not involuntary. We find no error on this point.
A statement induced by a false promise of reward or leniency is not a voluntary statement. Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000). When a police officer makes a false promise that misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been made voluntarily, knowingly, and intelligently. See Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997). In deciding whether there has been a misleading promise of reward or leniency, this court views the totality of the circumstances and examines, first, the officer’s statement and, second, the vulnerability of the defendant. Id.
If we determine in the first step that the officer’s statement is an unambiguous false promise of leniency, there is no need to proceed to the second step. Id. If, however, the officer’s statement is ambiguous, making it difficult for us to determine if it was truly a false promise of leniency, we must proceed to the second step of examining the vulnerability of the defendant. Id. Factors to be considered in determining vulnerability include: (1) the age, education, and intelligence of the accused; (2) how long it took to obtain the statement; (3) the defendant’s experience, if any, with the criminal-justice system; and (4) the delay between the Miranda warnings and the confession. Conner, 334 Ark. 457, 982 S.W.2d 655 (citing Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987)).
Additionally, for the statement to be involuntary, the promise must have induced or influenced the confession. Bisbee, 341 Ark. 508, 17 S.W.3d 477. Furthermore, the defendant must show that the confession was untrue, because the object of the rule is not to exclude a confession of truth, but to avoid the possibility of a confession of guilt from one who is, in fact, innocent. Id. We will not reverse the trial court’s denial of a motion to suppress a statement unless it is clearly erroneous or clearly against the preponderance of the evidence. Conner, 334 Ark. 457, 982 S.W.2d 655.
Here, the statement made by Officer Rateliff was, “Get it off your chest, we’ll help.” According to both Rateliff and Agent Jessie, the statement was made after Roberts had dropped his head and stated that he had messed up and that he needed help. The statement itself is ambiguous, especially given the context. The phrase “we’ll help” could mean anything from letting Roberts cleanse his guilty conscience, as Rateliff testified, to allowing him to speak to a clergyman, as Jessie testified. It certainly was not specific enough to be viewed as a false promise to get Roberts a reduced charge or a lesser sentence if he confessed. The prosecutor’s point is well taken, that at the time Rateliff made the statement, the officers did not know what Roberts was about to tell them or whether the girl was dead or alive. Because the statement is ambiguous, we proceed to the second step and assess Roberts’s vulnerability.
The evidence showed that Roberts was thirty-one years old at the time and that he had graduated high school and had held a job for the last six years. The evidence also showed that Roberts had been married for ten years and that he had two children. Dr. Mallory testified that Roberts’s overall I.Q. was seventy-six, which placed him in the range of borderline intellectual functioning. Mallory indicated, however, that Roberts could read and write at a high school level, and that he reads like a person who has a higher I.Q. This court has held that a low score on an I.Q. test does not mean that a suspect is incapable of voluntarily making a confession or waiving his rights. See, e.g., Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000) (upholding confession of defendant who was twenty years old and had an I.Q. of seventy-seven); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898 (1996) (affirming the admission of a confession where the defendant was age seventeen, had an I.Q. of seventy-two, and was reading on a third-grade level); Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995) (affirming the admission of a confession where the defendant was fifteen years old, had an I.Q. of seventy-four, and read on a second-grade level). Accordingly, Roberts’s I.Q. of seventy-six must be viewed in light of the facts that he was thirty-one years old, had graduated high school, and could read and write at a high school level.
Additionally, the record reflects that Officer Rateliff informed Roberts of his Miranda rights firom a statement-of-rights form at 3:16 in the afternoon, before Roberts took the polygraph test. Roberts stated that he understood his rights, and he agreed to talk to the officer. Rateliff stated that the test took anywhere from forty-five minutes to an hour to complete. During this entire time, Roberts was not in custody and was free to leave. In fact, after completing the polygraph, Roberts went outside to smoke, while Rateliff evaluated the test. Roberts was told the results of his polygraph around 5:00. Thereafter, he confessed. Rateliff began writing Roberts’s statement at 5:30. The statement was finally completed at 6:54. All told, Roberts was at the police station for approximately four hours, but he was only detained for a period of two hours. We agree with the trial court that this is not a lengthy period of detention. Moreover, there was not a lengthy delay between Roberts’s confession and the time that he was informed of his Miranda rights.
As for Roberts’s emotional vulnerability, there was testimony from Officer Rateliff that while Roberts was confessing, he was upset, crying, embarrassed, and mad at himself. Rateliff also stated that Roberts appeared remorseful. Agent Jessie stated that Roberts broke down and sobbed during his confession; however, he stated that Roberts’s emotion and remorse seemed to stem less from the fact that he had taken the young girl’s life and more because he had ruined his own life.
Appointed counsel asserts that Roberts’s emotional state combined with his lower intelligence and his limited experience with the criminal-justice system demonstrate that he was especially vulnerable to the officer’s statement. Appointed counsel relies on the holding in Pyles, 329 Ark. 73, 947 S.W.2d 754. That case, however, is distinguishable. There, the interrogating officer assured Pyles that he knew that Pyles was not a cold-blooded killer, and that he would “help him in every way in the world.” Id. at 77, 947 S.W.2d at 755. In suppressing the statement, this court found the following facts significant: (1) that the interrogating officer had previously known the defendant through baseball and had a friendly relationship with him; (2) that the defendant was interrogated for a long period of time; and (3) that the defendant was emotional during the interrogation, as demonstrated by the fact that he held the officer’s hands and wept as he confessed. This court also noted Pyles’s testimony that the officers had repeatedly told him that if the murder was done in self-defense, a court would be more lenient. Additionally, the State conceded that the officer’s promise in that case was questionable. This court held that the totality of the circumstances supported the conclusion that the confession was not voluntary. The same is not true here.
In this case, the officer’s statement, “Get it off your chest, we’ll help,” is ambiguous, at best, and the evidence does not demonstrate that this defendant was so vulnerable that the officer’s statement rendered the confession involuntary. Moreover, even if the officer’s statement could be considered to be a false promise of leniency, the confession was not invalid because the record does not demonstrate that the officer’s statement induced or influenced Roberts’s confession. This is evident from the fact that immediately after being informed that his answers on the polygraph exam were deceptive, Roberts hung his head and stated that he had messed up and that he needed help. Thus, Roberts had already incriminated himself before any alleged promise was made, and he appeared to be ready to confess to his crimes, regardless of Rateliff s statement. In contrast, the defendant in Pyles made no statement until after the police promised to help him.
Finally, we cannot say that the defense has succeeded in showing that Roberts’s confession was untrue or that it was a false confession of guilt of one who is, in fact, innocent. To the contrary, the veracity of his confession is demonstrated by the physical evidence obtained thereafter.
We cannot leave this point without responding to the concerns raised by the dissent, regarding the brain injury that Roberts sustained when he was struck by a dump truck at age twelve. The dissent opines that this injury combined with his low I.Q. and his adolescent behavior patterns made Roberts especially vulnerable to Rateliff s statement. While we agree that the evidence of the physical extent of Roberts’s brain injury was uncontroverted, we point out that the effect of the injury on Roberts’s behavior was highly controverted. As noted in the previous section, the defense experts stated that his brain injury resulted in Roberts being unable to control his emotions and actions. They also indicated that the injury resulted in Roberts’s behaving more like an adolescent, than an adult. However, neither defense expert opined that Roberts lacked the ability to understand his legal rights or that he lacked the capacity to appreciate the criminality of his actions. To the contrary, Dr. Wetherby stated that Roberts knew he was in trouble after he had raped Andria, and Dr. Archer specifically stated that Roberts could understand right from wrong.
Dr. Rutherford, one of the State’s experts, testified that he agreed with Dr. Archer as to the extent of the physical injury to Roberts’s frontal lobe.’ He opined, however, that the relationship between the loss of tissue and brain function was less clear cut. He stated that from his review of the medical records and Roberts’s reported history, he found no severe or dramatic behavioral problems that would indicate that his brain injury was the sole cause of his actions on the date in question. He further pointed out that the majority of the tissue loss to Roberts’s brain was to the right frontal lobe, and that it was better to sustain an injury to that side of the brain, because loss on that side will result in less aberrant behavior. Finally, he stated that there are many reasons, besides a frontal-lobe injury, that a person may have behavioral problems, and that, in his opinion, Roberts’s brain injury was not the cause of his criminal actions.
Based on this conflicting evidence of the effect of Roberts’s brain injury on his behavior and actions, we are hard pressed to conclude, as the dissent does, that Roberts’s brain injury made him especially vulnerable to Officer RatelifFs ambiguous statement of help. Instead, we conclude that the totality of the evidence in this case demonstrates that the trial court did not clearly err in denying Roberts’s motion to suppress his statement. Because there was no error in refusing to suppress the statement, there is likewise no error in refusing to suppress the physical evidence gained as a result of the statement. Where the tree is not poisonous, neither is the fruit. Jones v. State, 348 Ark. 619, 74 S.W.3d 663 (2002); Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999).
B. Juror for Cause
Appointed counsel next argues that the trial court erred in refusing to strike for cause juror Glenda Gentry, who was seated on Roberts’s jury. During jury selection, defense counsel objected to Mrs. Gentry on the ground that she had stated that she had been sexually abused by her father when she was eighteen years old. Although the exact date of the abuse is unknown, it appears to have occurred many years earlier, given that Mrs. Gentry stated that she had children ages thirty, twenty-nine, and twenty-four. Mrs. Gentry indicated that her allegations had resulted in the prosecution of her father, but that he was ultimately acquitted of the crime.
When asked if she carried any resentment because of the incident or because of the failure of the criminal-justice system, Mrs. Gentry stated that her father was now dead, and that the matter was over and she could not change anything. When asked if she could be fair and impartial in this case, given that Roberts was charged with raping and killing a twelve-year-old girl while he was thirty-one years old, Mrs. Gentry stated that she could. She stated further that she could set aside anything that had happened to her personally and decide the case based on the facts and the law. When asked by the prosecutor if she could still be impartial in light of the fact that Roberts was the victim’s uncle and there was a family relationship involved, she stated that she could. Mrs. Gentry then stated that the family relationship did not change any of the answers that she had given to defense counsel.
At the conclusion of the questioning, the prosecutor announced that the juror was acceptable to the State, but defense counsel asked to approach. At the bench, defense counsel informed the trial court that if they had any peremptory strikes left, they would use one on Mrs. Gentry. Counsel then stated: “It doesn’t appear that her answers go to the level of moving for cause.” However, defense counsel argued that had the trial court granted some of their prior motions to strike other jurors for cause, they would not have used up all of their peremptory strikes and would have been able to remove Mrs. Gentry from the jury.
Appointed counsel now asserts as a point of error that the trial court should have excused Mrs. Gentry for cause. However, this point was not preserved for appellate review, since defense counsel essentially agreed with the trial court’s ruling, conceding that there were no grounds to excuse Mrs. Gentry for cause. This court has repeatedly stated that a defendant cannot agree with a trial court’s ruling and then attack the ruling on appeal. See, e.g., Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Accordingly, there is no reversible error reviewable under Rule 4-3(h) or section 16-91-113(a).
Nor does this point fall within one of the four plain-error exceptions set out in Wicks, 270 Ark. 781, 606 S.W.2d 366. Those exceptions are: (1) a trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself; (2) error by the trial judge of which the defense has no knowledge and therefore no opportunity to object; (3) a trial court’s failure to intervene without objection and correct a serious error by admonition or declaring a mistrial; and (4) failure of the trial court to take notice of errors affecting substantial rights in a riding admitting or excluding evidence, even though there is no objection. Only the third exception could possibly apply to this case; however, given our law on the presumption of impartiality of jurors, it cannot be said that the trial court’s failure to strike Mrs. Gentry on its own motion amounted to a serious error or grounds for a mistrial.
A juror is presumed to be unbiased and qualified to serve, and the burden is on the appellant to prove actual bias. Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002); Smith, 343 Ark. 552, 39 S.W.3d 739. The decision to excuse a juror for cause rests within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Id. It is the appellant’s burden to show that he or she was prejudiced by the juror being seated. Id. When a juror states that he or she can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, a trial court may find the juror acceptable. Spencer, 348 Ark. 230, 72 S.W.3d 461; Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998). Although the bare statement of a prospective juror that he or she can give the accused a fair and impartial trial is subject to question, any uncertainties that might arise from the juror’s response can be cured by rehabilitative questions. Id.
The fact that Mrs. Gentry stated that she had been sexually abused by her father when she was an adolescent, in and of itself, is not sufficient evidence of bias to overcome the presumption of impartiality. Moreover, Mrs. Gentry’s answers to questions from defense counsel and the prosecutor demonstrate that she could lay aside any feelings she had about her abuse and decide Roberts’s case on the merits. Accordingly, the trial court did not commit error, plain or otherwise, by declining to remove Mrs. Gentry for cause.
C. Sufficiency of the Evidence to Support the Aggravating Circumstance
Appointed counsel’s last point of error is that there is insufficient evidence to support the jury’s finding that the one aggravating circumstance submitted by the State existed beyond a reasonable doubt. That aggravating circumstance was that the murder was committed in an especially cruel or depraved manner, as set out in Ark. Code Ann. § 5-4-604(8) (Supp. 2001), which provides in pertinent part:
(B)(i) For purposes of this subdivision (8) (A) of this section, a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted.
(ii) (a) “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate.
(b) “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.
(c) “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
The State asserts that two of these elements were present in this case: (1) that Roberts intended to inflict mental anguish on the twelve-year-old victim by refusing to tell her what was going to happen to her, after she repeatedly inquired, and (2) that Roberts intended to and did inflict serious physical abuse on the girl when he violently raped her.
Whenever there is evidence of an aggravating or mitigating circumstance, however slight, the matter should be submitted to the jury for consideration. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000) (citing Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982 (1996); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995)). Once the jury has found that an aggravating circumstance exists beyond a reasonable doubt, this court may affirm only if the State has presented substantial evidence in support of each element therein. Id.; Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. Id. To make this determination, this court views the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt. Jones, 340 Ark. 1, 8 S.W.3d 482.
Here, the evidence showed that Andria was taken from her home by Roberts on May 15, 1999. According to his confession, Roberts knocked on the door, and Andria answered. Roberts knew that her parents were not home at the time. He told Andria to get into his truck. Andria then asked him what was wrong, and Roberts responded by telling her to just get in the truck. Andria complied. Roberts then proceeded on a journey of approximately ten miles that, according to Arkansas State Police Detective Lynn Benedict, would have taken twelve to thirteen minutes. Benedict also stated that the road that Roberts took continued to become darker and more remote, covered with low hanging trees and brush.
According to Roberts’s statement, Andria asked him to take her home several times along the way. Roberts kept on driving. He eventually stopped his truck on an old logging road and told Andria to get out. When she asked him what he was going to do, he told her he was going to “fuck” her. He told her to take off her shirt and lay down. He then took off the girl’s pants and raped her. While he was violating her, Andria tried to get away from him, but he was able to hold her down. He told police that when he finished raping her, he knew that he could not let her live, because he had ejaculated inside her. He then decided to kill her by mashing his thumbs into her throat. Once the child turned blue and passed out, he dragged her body off into the woods and covered her up with limbs and brush. He then took her clothes and threw them off a nearby bridge, into a creek.
Associate Medical Examiner Dr. Stephen Erickson testified that the child’s vaginal vault was bruised in three different areas and, in his opinion, the area was subjected to a significant amount of trauma. Erickson further stated that the sexual encounter would have to have been pretty rough to cause such “deep-seated injuries.”
The foregoing is substantial evidence that the murder was committed in an especially cruel or depraved manner. Roberts’s intention to inflict mental anguish on the girl is evident from his own admission that when he took Andria from her home, he would not tell her what was going to happen to her and he ignored her repeated pleas to be taken home. Instead of taking her home, Roberts drove her down a long, dark, remote logging road, which took some twelve or thirteen minutes to travel. He then violently raped her, causing deep-seated injuries to the child’s vagina. Accordingly, we find no error on this point.
III. Review under Rule 4-3(h) and Section 16-91-113(a)
In addition to the issues briefed by appointed counsel, we have further reviewed the transcript of the record in this case for adverse rulings objected to by Roberts and his counsel, pursuant to Rule 4-3 (h) and section 16-91-113(a), and no such reversible errors were found.
IV. Review for Plain Error under Wicks
Arkansas does not recognize plain error, i.e., an error not brought to the attention of the trial court by objection, but nonetheless affecting substantial rights of the defendant. Smith, 343 Ark. 552, 39 S.W.3d 739; State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000). We have, however, adopted four limited exceptions in Wicks, 270 Ark. 781, 606 S.W.2d 366, as set out above. In Robbins, this court mandated consideration of the Wicks exceptions in death-penalty cases where, as in the instant case, the defendánt has waived his or her appeal rights. Our review of the transcript of the record in this case reveals no errors under the Wicks exceptions.
V. Other Fundamental Safeguards
The final review requirement under Robbins, 339 Ark. 379, 5 S.W.3d 51, is to determine whether other fundamental safeguards were followed. This court did not define the term “fundamental safeguards” in that case, nor do we attempt to do so here. Suffice it to say, nothing in the instant record reveals.any irregularity in procedure that would call into question the essential fairness of the process afforded Roberts.
The dissent asserts that the jury in this case did not properly complete Form 2 of the sentencing instructions, which pertains to mitigating circumstances. The dissent contends that because sections B and C of that form were left blank, it cannot be determined whether the jury properly considered the mitigating evidence prior to imposing the death penalty. We note that neither trial counsel nor appointed counsel challenged the verdict forms. However, out of an abundance of caution, we will address the concern raised by the dissent.
The record reflects that the defense submitted a total of sixteen possible mitigating circumstances. Part A of Form 2 reflects that the jury unanimously found that nine of those mitigating factors existed. Part B contains no check marks, reflecting that of the remaining seven factors, none were found by any of the jurors to have been mitigating circumstances. Part C also contains no check marks, reflecting that there was no evidence presented substantiating those remaining seven factors.
The dissent is apparently concerned that because there are no check marks on Parts B and C, the jury disregarded the instructions on filling out those forms. The dissent is further concerned that the lack of marks on these forms may indicate that the jury did not properly consider the evidence on these proposed mitigating circumstances. Based on the record before us, we conclude that these concerns are not well founded.
This court has recognized that a jury may generally refuse to believe a defendant’s mitigating evidence; however, when there is no question about credibility and when objective proof makes a reasonable conclusion inescapable, the jury cannot arbitrarily disregard that proof and re&se to reach that conclusion. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997) (citing Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226 (1996); Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied, 434 U.S. 894 (1977)). In the present case, the jury was faced with neither unquestionable credibility nor objective proof that would make a reasonable conclusion inescapable on any of the remaining seven proposed mitigating factors.
The first of the seven remaining factors was that the capital murder was committed while Roberts was under extreme mental or emotional disturbance. There was no credible evidence of this proposed factor. The second factor was that the murder was committed while Roberts lacked the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law due to a mental disease or defect or alcohol intoxication. There was no dispute on the first part of this factor, as all of the expert witnesses, even those for the defense, opined that Roberts knew right from wrong and therefore had the ability to appreciate the criminality of his conduct. However, there was conflicting testimony as to Roberts’s ability to conform his conduct to the requirements of the law.
The third factor was that Roberts, although legally responsible, suffers from an intellectual deficit. This factor, like the first two, was the subject of conflicting testimony. Roberts’s experts stated that he had low intellect and functioned like an adolescent. The State’s experts, on the other hand, stated that while Roberts had a below-normal intellect, he functioned well in society, he could read and write on a high school level, and he was, as evidenced by his crimes, capable of engaging in a complex series of actions that included his efforts to conceal his crimes. Accordingly, the jury did not act arbitrarily in disregarding this conflicting proof.
The fourth and fifth factors were that as a result of Roberts’s brain damage, his ability to control his emotions or impulses has been impaired and that his ability to accurately interpret social cues and communications with other persons has been impaired. Again, these factors were the subject of expert debate. As stated earlier in this opinion, there was no debate among the experts that Roberts had incurred some loss of the brain tissue in his right and left frontal lobes. However, there was strenuous debate about the effect that his brain injury had on his behavior, specifically as it pertained to his ability to control his actions and emotions and to his ability to function in society.
The sixth factor was that Roberts exhibited remorse about Andria’s disappearance when interviewed by police. There was specific evidence countering this factor by Agent Jessie, who stated that any remorse Roberts had was for himself. Jessie testified that the one thing that stuck out in his mind was Roberts’s statement that he had managed to ruin his life in ten minutes.
Finally the seventh factor was that Roberts cooperated with police by leading them to Andria’s body. Again, the evidence on this factor was conflicting. The record reflects that when Roberts was initially interviewed by police, the day after Andria was reported missing, he denied knowing anything about Andria’s disappearance, and he lied to police about his whereabouts at the time. Roberts did not tell the truth until he was interviewed a second time and then only after he was confronted with the fact that he was being deceptive during the polygraph. The jury certainly could have concluded that Roberts’s actions were less than cooperative.
Based on our case law, we cannot say that the jury erred in refusing to believe the defense’s mitigating evidence. There was conflicting evidence presented on each of the remaining seven proposed mitigating factors. As such, the jury did not arbitrarily disregard unquestionably credible and objective proof. Accordingly, there was no error in the completion of the jury forms.
Affirmed.
Thornton, J., dissents.
On July 9, 2001, this court adopted an amendment to Ark. R. App. P. — Crim. 10 that effectively codified the mandatory review in death cases provided in Robbins, 339 Ark. 379, 5 S.W.3d 51. That amendment became effective for all cases in which the death penalty is imposed on or after August 1, 2001. Roberts’s death sentence was imposed on May 23, 2000, prior to the effective date of the amendment. We thus review this case under Robbins.
After much discussion at the bench, the trial judge indicated that he would be inclined to reverse one of his prior rulings on a motion to strike for cause, so that the defense would receive an additional peremptory strike. In response, defense counsel stated that he was satisfied with the record as it was. However, the record reflects that sometime after Mrs. Gentry’s selection, defense counsel exercised an additional peremptory challenge. | [
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Jim Hannah, Justice.
Carwell Elevator Co., Inc., and Poinsett Rice & Grain, Inc., appeal the decision of the Circuit Court of Pulaski County finding that Carwell and Poinsett may not recover assessments of the Arkansas Rice Research & Promotion Board (“Board”) that they paid as first-time rice buyers because the assessments were voluntarily paid. Carwell and Poinsett also appeal the trial court’s finding that Carwell and Poinsett’s claims that the assessments were illegal are precluded by laches.
Carwell and Poinsett allege that the trial court erred in failing to find that an illegal-exaction lawsuit creates a class suit. Carwell and Poinsett also allege that the trial court erred in failing to find that they are entitled to a refund of the assessments paid.
Facts
Act 344 of 1995, codified at Ark. Code Ann. § 2-20-511 (Repl. 1996), authorized the Board to refer to the rice producers the question of whether the Board should levy an assessment of $1.35 per bushel to be paid by buyers of rice at the first point of sale. The producers approved the assessment, and beginning in August 1996, the assessment was collected. On August 14, 1996, Gulf Rice Arkansas, Inc. brought suit alleging that Act 344 constituted an unlawful delegation of taxing power under article 2, section 23, and an illegal exaction under article 16, section 13, of the Arkansas Constitution. The Gulf Rice suit was resolved at the trial level by summary judgment finding that Act 344 constituted an unlawful delegation of legislative authority. That summary judgment was appealed to this court and affirmed in Leathers v. Gulf Rice Arkansas, Inc., 338 Ark. 425, 994 S.W.2d 481 (1999).
In Gulf Rice, this court affirmed the trial court’s holding that Act 344 constituted an unconstitutional delegation of legislative authority. In addition, we noted that we did not address the issue of whether the assessment constituted an illegal exaction. In Gulf Rice, we stated, “Because we agree with the Chancellor that Act 344 is unconstitutional as an unlawful delegation of legislative power, it is unnecessary to examine whether the Act’s assessment is also invalid as an illegal exaction” Gulf Rice, 338 Ark. at 434 n 1.
On February 15, 2000, Carwell and Poinsett filed an illegal-exaction suit in Pulaski County Circuit Court alleging that they are entitled to a refund of all assessments they paid after Gulf Rice filed its lawsuit in 1996. This case was tried before the circuit court on October 8, 2001.
In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Shelter Mut. Ins. Co v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001); Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997).
Illegal Exaction
Carwell and Poinsett argue that the trial court erred in failing to find that an illegal-exaction lawsuit creates a constitutional class action entitling them to refunds of rice assessments they paid pursuant to the assessment levied under Act 344. Carwell and Poinsett rely upon the holding in Gulf Rice, supra, that Act 344 constituted an unlawful delegation of legislative authority. Carwell and Poinsett allege that they are members of the class of rice buyers in Gulf Rice, supra, and therefore there is already a finding that the assessment was illegal. On that basis Carwell and Poinsett allege they are entitled to a refund of the assessments they paid.
However, the trial court found that as a matter of fact and law, Gulf Rice was not a class action on behalf of all rice buyers subject to the assessment, and that the case only adjudicated the rights of Gulf Rice. Therefore, the trial court rejected Carwell and Poinsett’s claims they were members of the class in Gulf Rice, supra.
We disagree with the trial court. The issues adjudicated in Gulf Rice, supra were not limited to Gulf Rice. The decree by the trial court in Gulf Rice, supra declared Act 344 unconstitutional and enjoined “assessments on first buyers of Arkansas Rice pursuant to Act 344 of 1995 . . . .” Thus, it is clear the decree in the Gulf Rice case reached all first buyers of Arkansas Rice, both because it declared the assessment unconstitutional, and because it enjoined further coEection of the assessment. Guf Rice was a class action on behalf of aE first buyers of Arkansas Rice. It is true that the injunction was stayed by the trial court in Guf Rice pending appeal, however, staying the injunction does'not alter the finding stated in the decree that Act 344 was unconstitutional as to aE first buyers of Arkansas Rice. Nor does staying the injunction alter that the injunction enjoined aE coEection of the assessments, not just the assessments against Gulf Rice.
CarweE and Poinsett attempt to avaE themselves of the rule that taxes paid after a complaint is filed in an Elegal-exaction suit are deemed paid in protest and are recoverable. See Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000). CarweE and Poinsett are asserting a right to recover all assessments they paid after Gulf Rice filed its complaint in Guf Rice, supra. They argue that as members of the class in Guf Rice they are entitled to rely on Gulf Rice’s complaint.
Taxes paid by a party after the filing of a complaint in iEegal exaction are deemed paid in protest and are recoverable. Elzea, supra. However, because the trial court found that Guf Rice, was not a class action, the trial court concluded CarweE and Poinsett could not rely on Gulf Rice’s complaint and therefore the assessments were voluntarEy paid and nonrecoverable. The trial court applied the common-law rule that taxes voluntarEy paid are not recoverable. See Elzea, supra. Again we disagree.
The Gulf Rice litigation was a class suit because a suit in iEegal exaction is a class suit as a matter of law. Worth v. City of Rogers, 351 Ark. 183, 89 S.W.3d 875 (2002). Any assessments paid by CarweE and Poinsett after the filing of the complaint in Guf Rice were paid in protest. Elzea, supra.
However, the trial court also found that recovery by CarweE and Poinsett was precluded based on laches. As discussed below, notice to CarweE and Poinsett was fataEy defective. Therefore, recovery may not be precluded based on laches. The trial court also found that there was no fund from which any recovery might be paid. We must note that the decree in the Gulf Rice case finding Act 344 unconstitutional and the injunction on behalf of all first buyers of Arkansas Rice put the Board on notice. Yet rather than put the assessments collected in escrow to safeguard them pending the outcome of the litigation, the Board spent them. Assessments, however, have been collected under a subsequent act and continue to be collected.
Carwell and Poinsett argue correctly that an illegal-exaction suit arises as a class-action suit under the constitution. Worth, supra. In Martin v. Couey Chrysler Plymouth, Inc., 308 Ark. 325, 824 S.W.2d 832 (1992), this court stated:
The wording of Ark. Const, art. 16, §13 is broad and not to be narrowed by statute or interpretation. We believe our cases are consistent with that concept. But we also think it clear that the provision was not intended to be the vehicle by which taxpayers air individual grievances in the methods by which taxes are assessed and collected. Rather, it was intended to be the means by which taxpayers, generally, in a collective capacity, resist illegal exaction.
Martin, 308 Ark. at 331. In Laman v. Moore, 193 Ark. 446, 100 S.W.2d 971 (1937), this court discussed an illegal-exaction suit where the original plaintiff who brought the suit had moved away from the city and Laman had intervened to continue the suit. An objection was raised that the only proper means for Laman to proceed was by a separate and independent action. This court stated:
The suit as originally brought was necessarily for the benefit of all taxpayers of the city and might as well be prosecuted in the name of one as of another. No prejudice whatever resulted to the defendants (appellees) by allowing appellant to become a party plaintiff for the purpose of prosecuting the suit. Neither the original plaintiff nor the appellant could recover a personal judgment against any of the appellees (defendants) except for the benefit of all taxpayers of the city.
Laman, 193 Ark. at 447-48.
Thus, it is this clear that an illegal-exaction suit is a collective single action prosecuted on behalf of all affected taxpayers. In 1944, this court stated an illegal-exaction suit under article 16, section 13, “is made a class suit in which any citizen may sue for the benefit of himself and all other interested citizens. ...” Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944). See also, Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W.2d 46 (1967); Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950). Moreover, this court has recently stated that an illegal-exaction suit is a class suit as a matter of law. Frank v. Barker, 341 Ark. 577, 20 S.W.3d 293 (2000); Carson v. Weiss, 333 Ark. 561, 972 S.W.2d 933 (1998).
Thus, the suit in Gulf Rice and the suit in the present case are both class suits under article 16, section 13, of the Arkansas Constitution based on the same alleged illegal levy. This raises the question of whether considering the issue of illegal exaction under Act 344 a second time is precluded by the doctrine of res judicata. In Rigsby v. Ruraldale Consol. Sch. Dist. No. 64, 180 Ark. 122, 20 S.W.2d 624 (1929), the defendants raised res judicata asserting that the issues had already been litigated in a prior suit. Rigsby had sued under article 16, section 13, as had the parties to the first suit, and this court stated that “all citizens were bound by the result of the suit brought against appellees by R.M. Johnson upon all issues presented by the pleadings and testimony in the Johnson case.” Rigsby, 180 Ark. at 124. In McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939), this court discussed that the doctrine of res judicata precluded a subsequent suit by another taxpayer under article 16, section 13, because a case under article 16, section 13, is a case under virtual representation and every citizen is regarded as a party to the proceedings. McCarroll, supra. See also, Laman, supra.
The concept of res judicata has two facets, one being issue preclusion and the other claim preclusion. Huffman v. Alderson, 335 Ark. 411, 983 S.W.2d 899 (1998); John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993). 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. Huffman, supra. Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could be litigated. Id. Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. Issue preclusion, or collateral estoppel, bars relitigation of issues. Crockett & Brown v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). In State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000), we stated of collateral estoppel:
When an issue of ultimate fact has once been determined by a valid and final judgment, collateral estoppel precludes relitigation of that issue between the same parties in any future proceeding. Eg., 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)). In order to establish collateral estoppel, proof of the following is required: 1) the issue sought to be precluded must be the same as that involved in the prior litigation; 2) the issue must have been actually litigated; 3) the issue must have been determined by a final and valid judgment; and 4) the determination must have been essential to the judgment. Edwards, 328 Ark. at 401-02, 943 S.W.2d at 603.
Thompson, 343 Ark. at 139-40.
Thus, if the issue of whether the assessments amounted to an illegal exaction was not decided in Gulf Rice, litigation of the issue may now be precluded as an issue which could have been litigated. The concern about multiple suits in illegal exaction was discussed in McCarroll, supra, where this court considered the issue of a second suit alleging the same illegal exaction arising from implementation of the same alleged unconstitutional act. This court stated:
If a suit of this character is not a bar, then one citizen after another might institute a suit for himself and others against the Commissioner of Revenues, and if the judgment in one suit was not a bar, this could continue until every citizen in the state had brought suit. The doctrine of res judicata is not only to protect the individual, but it is a matter of public policy.
McCarroll, 199 Ark. at 325. See also, Rigsby, supra.
It is clear that the issue of an illegal exaction was raised by the litigation in Gulf Rice, however, the trial court did not specifically rule that the assessment constituted an illegal exaction. Nonetheless, the decree in Guff Rice declared Act 344, which created the assessment, unconstitutional and enjoined further collection of the assessment under Act 344. Whether the trial court declared the assessment to be an illegal exaction is not material because res judicata would not be a bar under the facts of this case in any event. The doctrine of res judicata applies against a party only when the party had a fair and full opportunity to litigate the issue in question. Huffman, supra; Bailey v. Harris Brake Fire Protection District, 287 Ark. 268, 697 S.W.2d 916 (1985). See also, Kremer v. Chemical Constr. Co., 456 U.S. 461, 481 n.22 (1982); Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983). The trial court found that Carwell and Poinsett became aware of Gulf Rice’s suit shortly after it was filed, and that they then held the belief that the assessment was illegal. The trial court also found that the plaintiff in Gulf Rice intentionally prosecuted its case as an individual lawsuit and not as a class suit. The mere knowledge that Gulf Rice filed suit and a belief that the assessment was illegal does not rise to the level of knowledge that would be required to apply res judicata.
Notice is required in illegal-exaction cases. Worth, supra. Notice of an illegal-exaction suit was not provided in Gulf Rice. Gulf Rice attempted to proceed individually and no adequate notice of an illegal-exaction suit was provided to class members. The notice must inform the class members:
1. That the illegal-exaction suit is pending and what it alleges;
2. That the class is established by the constitution and who it includes;
3. That a class member may not opt out and will be bound by any judgment;
4. That class members may wish to become named parties to have greater input in the remedy sought;
5. That class members may wish to become named parties to assure there is no collusion or friendly lawsuits, and to have input in the amount of attorney’s fees granted; and 6. That class members may declare any alleged illegal tax voluntarily paid so as to remove it from the illegal-exaction suit.
See generally T&T Chem., Inc. v. Priest, 351 Ark. 537, 95 S.W.3d 750 (2003); Worth, supra; Martin, supra; Samples, supra; McCarroll, supra; Laman, supra; Rigsby, supra; Dreyfus v. Boone, 88 Ark. 353, 114 S.W. 718 (1908).
Further, as we stated in Dreyfus, supra, it is the duty of the court to construe the complaint in an illegal-exaction suit to be one for the relief of all. This was not done by the trial court in Guf Rice. Also, contrary to Gulf Rice’s attempt to litigate its claim individually, as the taxpayer who initiated the suit, Gulf Rice was without the authority to waive contentions that should have been asserted on behalf of the class. Chandler v. Bd. of Tr. of the Teacher Ret. Sys. of Ark., 236 Ark. 256, 365 S.W.2d 447 (1963). We hold that there was a lack of notice to Carwell and Poinsett, and that neither Carwell nor Poinsett had a fair and full opportunity to litigate the issue in question. Therefore, the present suit is not precluded by res judicata. Huffman, supra.
Laches
The trial court found that Carwell and Poinsett became aware of the Gulf Rice suit shortly after it was filed, and that they then held the belief that the assessment was illegal. Therefore, the trial court concluded the doctrine of laches applied. The doctrine of laches was laid out in Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999):
The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. Andarko Petroleum v. Venable, 312 Ark. 330, 850 S.W.2d 302 (1993). It is based on the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert them, that by reason of his delay some adverse party has good reason to believe those rights are worthless or have been abandoned, and that because of a change of conditions during this delay it would be unjust to the latter to permit him to assert them. Self v. Self, 319 Ark. 632, 893 S.W.2d 775 (1995). Laches requires a demonstration of prejudice to the party alleging it as a defense resulting from a plaintiffs delay in pursuing a claim. Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998).
Goforth, 338 Ark. at 77-78. The first requirement in laches is that the party have a knowledge of his or her rights and the opportunity to assert those rights. As already noted, the present suit is not precluded by res judicata. The required notice was not provided in the Gulf Rice litigation. The illegal assessments were paid by Carwell and Poinsett through July 1999, and suit was brought in February 2000. Laches is inapplicable under these facts. We also must note that the Board continued to spend the money received from the assessments rather than place it in escrow even though the Board was on notice the assessment was illegal and therefore might have to be refunded. The Board may not now assert that it is unable to pay back the money it knew it was receiving under a tax declared unconstitutional by the chancery court.
Remaining Issues
Carwell and Poinsett assert that this court may order a refund. Refunds are available in illegal-exaction cases. Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993). However, a decision on a refund must first be decided in the trial court. This case is remanded for the trial court to require proper notice and proceed with an illegal-exaction class suit.
Reversed and remanded.
Glaze, Imber, and Thornton, JJ., concurring in part and dissenting in part. | [
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Annabelle Clinton Imber, Judge.
Appellant Rayudge. aggravated robbery and sentenced to imprisonment for ten years. On appeal, he challenges the circuit court’s order denying his motion to suppress on three separate grounds. Martinez argues that the officer who detained him was outside his territorial jurisdiction and without statutory authority to arrest him. He also contends that neither his arrest nor the subsequent search of his vehicle was supported by probable cause. This appeal was certified to us by the Arkansas Court of Appeals pursuant to Ark. R. Sup. Ct. l-2(b)(4), (5) (2002). We find no error and affirm.
Shane Williams was shot and killed by Pam Sowell on January 21, 2000, when he attempted to rob Buddy’s Place, a conve nience store in the City of Ward owned by Pam and her husband, Alan Sowell. Mr. Sowell, who was also on the premises at the time of the attempted robbery, called 911 after the shooting at 8:39 p.m. He told the operator that a suspect had been shot and was in need of an ambulance. Mr. Sowell also stated that someone else was in the parking lot and a kid was outside the store.
Officer Don Sims of the Austin Police Department was on a routine traffic stop when he heard the radio report that somebody had been shot at Buddy’s Place. Officer D. Sims immediately responded to the call and asked if the Ward Police Department needed his assistance. His brother, Eric Sims, who was a police officer with the neighboring City of Ward, answered affirmatively. According to the 911 operator’s call logs, Officer Eric Sims was the first officer to arrive at Buddy’s Place. He checked in from the store at 8:41 p.m. — just two minutes after the 911 call was received. Meanwhile, his brother was en route to the store. At the suppression hearing, Officer D. Sims testified that he was three minutes away from Buddy’s Place. Upon arriving at the scene, he did not see any police vehicles. He also testified about hearing that another suspect armed with a pistol and disguised with a ski mask was still at the scene.
As Officer D. Sims approached Buddy’s Place, he saw a white Mazda leaving the store’s parking lot. He radioed to dispatch that he was going to stop the vehicle. Another police officer with the Ward Police Department, Patty Andolina, also responded to the initial 911 call. While nearing the scene, she happened to be right behind Officer D. Sims and approved his request to make a stop. Officer D. Sims proceeded to make the stop, and ordered the driver to exit the vehicle and walk slowly back toward him. Next, the police officer ordered the driver, Raymond Martinez, to get down on the ground. Martinez complied, whereupon Officer D. Sims handcuffed him and did a pat-down search for weapons. No weapons were found, and Martinez was placed in the back of the officer’s patrol car.
According to the radio logs, Officer D. Sims reported at 8:45 p.m. that he had a subject in his vehicle. He asked Martinez what he was doing at Buddy’s Place and whether he knew what was going on. Martinez responded that he was going into the store to get a coke, but a man told him to leave. Officer D. Sims advised Martinez that he would be released as soon as everything was straightened out. Then, the officer drove back to Buddy’s Place and informed Officer E. Sims that he had a suspect in his vehicle.
In the meantime, after Officer Andolina approved the stop by Officer D. Sims, she continued to the crime scene. At the scene, Officer Andolina interviewed an eyewitness, Terry Colbert. This interview took place within ten minutes of her arrival on the scene. Additionally, Officer D. Sims had already returned to the store with Martinez in the back seat of his patrol car. Colbert gave the following description of the fleeing suspect: A darlc-headed male, wearing dark clothes and baggy pants. Colbert further stated that he saw the suspect leave like “a bat out of hell” in a white vehicle. With that information, Officer Andolina approached Officer D. Sims’s patrol car, opened the door, and visually confirmed that Martinez matched the description given by Colbert.
Shortly thereafter, at 8:53 p.m., Chief Deputy Mike Coffman of the Lonoke County Sheriffs Department arrived on the scene. He began to take pictures of the crime scene, including the white Mazda driven by the subject. When Deputy Coffman got to the Mazda, he reached through an open window and picked up a wallet lying on the passenger seat. The deputy opened the wallet and saw a picture ID that resembled Shane Williams — the victim-perpetrator. According to the radio logs, Deputy Coffman called in the name shown on the ID to check for warrants at 9:18 p.m. The wallet was seized and turned over to a Ward police officer.
Deputy James Kulesa of the Lonoke County Sheriffs Department also assisted in the investigation of the attempted robbery at Buddy’s Place. He interviewed Martinez at the Ward Police Department beginning at 10:47 p.m., or about two hours after the initial 911 call. During the interview, Martinez made statements implicating himself in the crime.
Subsequently, Martinez entered a negotiated plea of guilty and was sentenced to a term of twenty-five years imprisonment. The circuit court, however, allowed him to withdraw his guilty plea due to a claim of ineffective assistance of counsel. Prior to trial, Martinez moved to suppress all evidence obtained after he was arrested, including the incriminating statements made at the police station. He argued that Officer Don Sims was without statutory authority to make the arrest and that the arrest and search were made without probable cause and in violation of the United States and Arkansas Constitutions. After a hearing, and subsequent briefing, the circuit court denied Martinez’s motion to suppress and a jury trial ensued. Martinez was convicted of aggravated robbery, and this appeal followed.
When a trial court’s denial of a motion to suppress is challenged on appeal, our court makes an independent examination of the issue based on the totality of the circumstances and views the evidence in the light most favorable to the State. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000). The trial court’s ruling will only be reversed if it is clearly against the preponderance of the evidence. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).
It is well settled in Arkansas that a law enforcement officer cannot make a warrantless arrest outside of the territorial limits of his jurisdiction without statutory authority. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000). This court has announced the four instances where the General Assembly has delegated authority for law enforcement officers to make an arrest outside of their jurisdiction: (1) “fresh pursuit” cases under Ark. Code Ann. §16-81-301 (1987); (2) when the police officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency requests an outside officer to come into the local jurisdiction and the outside officer is from an agency that has a .written policy regulating its officers when they act outside their jurisdiction, as stated in Ark. Code Ann. § 16-81-106(3), (4) (Supp. 2001); and (4) when a county sheriff requests that a peace officer from a contiguous county come into that sheriffs county and investigate and make arrests for violations of drug laws pursuant to Ark. Code Ann. § 5-64-705 (Repl.1993). See Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997) (citing Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990)). According to Martinez, and conceded by the State, only the third exception is applicable to this case.
Pursuant to Ark. Code Ann. § 16-81-106(c)(B)(3), (4) (Supp. 2001), an officer may make an arrest outside his jurisdiction if (1) he is acting “at the request of or with the permission of the municipal or county law enforcement agency having jurisdiction in the locale where the officer is assisting or working by request,” and (2) the extrajurisdictional officer’s agency has a “written policy on file regulating the actions of its employees relevant to law enforcement activities outside its jurisdiction.” Under this two-pronged analysis, Martinez concedes that the Austin police officer was acting at the request and with the permission of the local agency. He maintains, however, there was no evidence that the Austin Police Department had a written policy regulating its officers when they act outside their jurisdiction.
Martinez is mistaken in his argument under this point. The circuit court made a specific finding in its written opinion attached to the order denying the motion to suppress that the “[Austin police officer’s] city does have a policy and procedure about law enforcement assistance to and from his city.” The record in this case also reflects that the State produced a copy of the Austin Police Department’s written policy and procedure on extrajurisdictional activities. Here, the local law enforcement agency requested the assistance of an outside officer, and that officer’s law enforcement agency had the statutorily mandated written policy. See Ark. Code Ann. § 16-81-106(3), (4). Under these circumstances, we cannot say that the Austin police officer was acting outside his territorial jurisdiction without the requisite statutory authority. Thus, we conclude that the circuit court’s denial of the motion to suppress was not clearly against the preponderance of the evidence.
For his second point on appeal, Martinez contends that his arrest was not supported by probable cause and amounted to an illegal seizure in violation of both the United States and Arkansas Constitutions. Specifically, he asserts that the “first credible evidence that officers had that the Appellant had any involvement in the incident” developed forty-five minutes after Martinez was detained, when “Chief Deputy Coffman reached into the appellant’s vehicle and discovered a wallet belonging to the decedent Williams.” We disagree.
Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002); Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). In assessing the existence of probable cause, this court’s review is liberal and is guided by the rule that probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002); Baxter v. State, 324 Ark. 440, 922 S.W.2d 682. However, mere suspicion is not enough to support a finding of probable cause to arrest. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002); Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986)(citing Beck v. Ohio, 379 U.S. 89 (1964)). Probable cause to arrest without a warrant exists when facts and circumstances within the officers’ collective knowledge are sufficient in themselves to warrant a person of reasonable caution in believing that an offense has been committed by the person to be arrested. Howell v. State, supra.
In this case, Officer D. Sims stopped Martinez within a couple of minutes of the 911 call. At the time of that stop, it was dark and law enforcement officers already knew that there had been an attempted aggravated robbery at Buddy’s Place. They also knew that there were at least two suspects, one having been shot by the store owner. The officers were told the second suspect was armed and wearing a ski mask. When Officer D. Sims arrived at the store, the only vehicle seen leaving the crime scene was a white Mazda driven by Martinez. Additionally, ten minutes after the stop, Officer Andolina took a statement from an eyewitness who described the second suspect and the suspect’s car. The eyewitness’s description matched Martinez and his vehicle.
The information outlined above, which is sufficient to constitute probable cause, was available to police officers prior to the search of Martinez’s vehicle. Because the record reflects that probable cause developed before Chief Deputy Coffman found the wallet in Martinez’s vehicle, we conclude that the second argument on appeal is without merit.
In his third and final point on appeal, Martinez contends that the search of his vehicle was not supported by probable cause. Specifically, he argues that the moment Chief Deputy Coffman’s “hand breached the interior of that vehicle and grabbed that wallet probable cause had to exist.” As we have already concluded in connection with his second point, probable cause developed before the search of Martinez’s vehicle. Accordingly, Martinez’s last point is also without merit.
Affirmed.
Buddy’s place was previously known as “Dude’s Place.”
This situation is to be contrasted with one where an officer is acting outside his or her territorial jurisdiction and none of the statutory grounds for making an extraterritorial arrest appear to apply to the facts of the case. In the latter situation, the issue becomes whether the local officer is present in his or her capacity as a law enforcement officer and participates in making the arrest. See Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979). | [
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Jim Hannah, Justice.
Jimmy Ray Heikkila appeals his conviction and sentence on two counts of incest. He was also convicted of rape, but he does not appeal that conviction. Heikkila alleges that the trial court erred in submitting the incest charges to the jury because he was accused of sexual intercourse or deviate sexual activity with his two nieces to whom he was related by affinity but not by consanguinity. Heikkila asserts that applying the rule that criminal statutes are strictly construed requires the conclusion that the alleged conduct with his nieces was not prohibited under the incest statute because he was not related to his nieces by blood. We hold that the incest statute prohibits sexual intercourse or deviate sexual activity between an uncle and a niece. The language of the statute is clear and makes no mention of affinity or consanguinity. The convictions and sentences are affirmed.
Facts
Heikkila is not related by blood to the two nieces he is accused of engaging in incest. They are the children of Heikkila’s wife’s sister. Both nieces were below the age of sixteen at the time of the incest. The two nieces came to live with Heikkila in 1990 after they had been in foster care for six months following removal from the home of their grandmother. The nieces considered Heikkila and his wife father and mother, calling Heikkila dad and his wife Tia, which is Spanish for aunt. Heikkila was charged with acts of incest and rape beginning in 1990.
Incest
Heikkila argues that the word “niece” in the incest statute, Ark. Code Ann. §5-26-202 (Repl. 1997), refers only to nieces to whom a person is related to by blood. Arkansas’s incest statute provides:
(a) A person commits incest if, being sixteen (16) years of age or older, he purports to marry, has sexual intercourse with, or engages in deviate sexual activity with a person he knows to be:
(1) An ancestor or a descendant; or
(2) A stepchild or adopted child; or
(3) A brother or sister of the whole or half blood; or
(4) An uncle, aunt, nephew, or niece; or
(5) A step grandchild or adopted grandchild.
(b) The relationships referred to in this section shall include blood relationship without regard to legitimacy.
(c) Incest is a Class C felony; however, incest is a Class A felony if the victim is under sixteen (16) years of age and the perpetrator is over twenty-one (21) years of age at the time of the offense.
This court has never interpreted “niece” as it appears in Ark. Code Ann. § 5-26-202. We are therefore required to interpret the incest statute. We strictly construe criminal statutes and resolve any doubts in favor of the defendant. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001); Hogar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). There is no better settled rule in criminal jurisprudence than the rule that criminal statutes must be strictly construed and pursued. Williams, supra. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. Williams, 347 Ark. at 742. We are without authority to declare an act to come within the criminal laws of this state by implication. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952) (citing State v. Simmons, 117 Ark. 159, 174 S.W. 238 (1915)). Nothing is taken as intended which is not clearly expressed. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).
The incest statute prohibits sexual intercourse or deviate sexual activity with five named categories of persons, including “uncle, aunt, nephew or niece.” The word “niece” is not defined in the statute. However, the statute in its express terms creates criminal liability for sexual intercourse or deviate sexual activity with one’s niece. Webster’s defines a niece as a female descendant or relative, a daughter of one’s brother or sister, or a daughter of one’s brother-in-law or sister-in-law. Black’s defines niece as “the daughter of a person’s brother or sister; sometimes understood to include the daughter of a person’s brother-in-law or sister-in-law.” Black’s Law Dictionary 1066 (7th Ed. 1999). Webster’s Third New International Dictionary, 1526 (1993). Both nieces in this case were the daughters of Heikkila’s sister-in-law. When the words used in a statute have a well-defined meaning, and the wording of the statute is clear, we give those words their plain meaning. Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). Therefore, under the express terms of the statute, the conduct between Heikkila and his nieces was prohibited.
The incest statute protects the integrity of the family. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986). This protection extends to step-relationships as well as blood relationships because sexual activity in step-relationships is equally disruptive of the family as would be sexual activity between blood relations. Camp, supra. Although Heikkila’s relationship to his nieces would not be characterized as a step-uncle, as with a stepfather, Heikkila was not related to his nieces by blood. Where uncle and niece are not related by blood, the relationship is analogous to a step-relationship. Regardless of whether Heikkila was related to his nieces by consanguinity or affinity, the State’s charges against him under Ark. Code Ann. § 5-26-202 would effectively be the same. See e.g. Douhitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996).
Affirmed. | [
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Jim Hannah, Justice.
The City of Dover (“Dover”) appeals a judgment granting a dismissal with prejudice where the trial court found that Dover lacked standing to contest an annexation election. Dover alleges that the trial court erred in finding that it has no rights entitling it to sue. Dover asserts that it is the property owner of land annexed in the election, and therefore it may contest the election. We hold that judicial review of elections in municipal annexation as set out in Ark. Code Ann. § 14-40-304 (Repl. 1998) provides for legal action contesting compliance with the statutory requirements in annexation elections, and that Dover may contest the election. The trial court is reversed.
Facts
This case continues a longstanding dispute between Dover and the City of Russellville (“Russellville”) over land and sewage treatment. In May of 1997, Dover contracted to purchase fifteen acres of unincorporated land on which to construct a sewage-treatment facility. Construction on the facility commenced in 1997. However, Dover was sued in 1997 by Russellville, among others. City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999) (Dover I). Russellville alleged in Dover I that Dover failed to comply with Act 1336 of 1996 which required a feasibility study showing that the proposed sewage-treatment plant could not be constructed within the existing city limits. This court reversed the trial court in Dover I, holding that the language in Act 1336 was not effective at the time construction began. Then, in City of Dover v. A.G. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000) (Dover II), this court considered the appeal from the trial court’s decision after remand in Dover I. In Dover II, this court reversed summary judgment entered by the trial court, finding that Dover was required to comply with Russellville’s Land Subdivision and Development Code because the proposed sewage-treatment plant was to be built on property within one mile of Russellville city limits, or on land contiguous to property within one mile of Russellville city limits. The trial court was again reversed in Dover II.
The present case arises from an October 19, 2000, Russell-ville ordinance calling for an annexation election to annex the fifteen acres on which Dover had commenced construction of a sewage-treatment facility, as well as other land, into the city of Russellville. The election was held December 19, 2000, and the voters approved annexation. On December 29, 2000, Dover filed the present action under Ark. Code Ann. § 14-40-304, alleging Russellville failed to comply with the requirements in Ark. Code Ann. §§ 14-40-301 — 14-40-304’ (Repl. 1998 and Supp. 2001). The present case was submitted to this court previously and was remanded for failure to comply with Ark. Sup. Ct. R. 4-2. City of Dover v. City of Russellville, 351 Ark. 557, 95 S.W.3d 808 (2003).
Standard of Review
Dover appeals the dismissal of its action under Ark. R. Civ. P. 12(b)(6) (2002). When reviewing a dismissal under Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Ark. R. Civ. P. 8(a) (2002). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id.; Country Corner Food & Drug, Inc. v. First State Bank & Trust Co., 332 Ark. 645, 966 S.W.2d 894 (1998).
Standing
The trial court found that Dover was not an elector who could challenge the annexation, and also that Dover lacked any due process or other constitutional rights related to the annexation and therefore lacked standing. The trial court also noted an unidentified “related proceeding” where Dover argued Russell-ville lacked standing to challenge annexation and where the trial court agreed Russellville lacked standing. The trial court then stated that to be consistent, it would also find a lack of standing in the present case.
Russellville acknowledges that Dover owns land affected by the annexation, but argues that Dover is neither a person nor a resident who has standing, and further that Dover, as a municipal corporation with powers limited to those provided by statute, may not challenge the annexation because no statute allows it to do so. We disagree.
Russellville seeks a holding which states that, although Dover owns land included in the annexation, and on that basis would be an interested person entitled to contest the annexation, Dover may not contest the annexation because, as a municipal corporation it is not a natural person and is without power to contest the annexation. Whether a municipal corporation may contest an annexation by an election under Ark. Code Ann. § 14-40-301 is an issue of first impression. Annexation of a portion of another city or incorporated town is expressly forbidden by Ark. Code Ann. § 14-40-301. However, the statutory scheme for municipal annexation of contiguous land under Ark. Code Ann. §§ 14-40-301 — 14-40-304 does not include any discussion of annexation of land owned by another city. Dover stands in the same position as any other landowner whose land is annexed and who wishes to contest the election that resulted in annexation.
Election contests are creatures of statute and have no basis in the common law. Adams v. Dixie Sch. Dist. No. 7, 264 Ark. 178, 570 S.W.2d 603 (1978). The right to contest an annexation undertaken by election is set out in Ark. Code Ann. § 14-40-304. See also Duennenberg v. City of Barling, 309 Ark. 541, 832 S.W.2d 237 (1992). Section 14-40-304 provides that “if it is alleged that the area proposed to be annexed does not conform to the requirements and standards prescribed in § 14-40-302, a legal action may be filed in the circuit court. ...” Ark. Code Ann. § 14-40-304.
Although it is not explicitly stated in Ark. Code Ann. § 14-40-304, to have standing a party must have an interest at issue in the annexation. In Reynolds v. Guardianship of Sears, 327 Ark. 770, 940 S.W.2d 483 (1997), we cited David Newbern, Arkansas Civil Practice and Procedure § 5-15, at 61-62 (2d ed. 1993):
To be a proper plaintiff in an action, one must have an interest which has been adversely affected or rights which have been invaded. Courts will not allow suit by one who is a “stranger to the record” or for the purpose of vindicating an abstract principle of justice.
Reynolds, 327 Ark. at 775. The land upon which Dover was building a sewage-treatment facility was annexed by Russellville. Certainly Dover’s interest in the land was affected by the annexation. Dover has an interest in land that was affected by the annexation because its fifteen acres were taken by Russellville. See, e.g., Forrest Constr., Inc. v. Milam, 345 Ark. 1, 44 S.W.3d 140 (2001). Therefore, Dover has standing as a landowner affected by the annexation.
Russellville, however, argues that Dover, as a municipal corporation, is not empowered to contest the election because no statute specifically provides that municipal corporations are included as those who may bring a legal action under Ark. Code Ann. § 14-40-304. Section 14-40-304 does not specifically mention a municipal corporation. However, a municipal corporation is empowered to sue or be sued. Ark. Code Ann. § 14-54-101 (Repl. 1998). We note that although standing was not discussed in the case, City of Springdale v. Town of Bethel Heights, 311 Ark. 497, 845 S.W.2d 1 (1993), involved municipal corporations contesting the validity of annexation under Ark. Code Ann. § 14-40-301 — 14-40-304.
Municipal corporations are creatures of the legislature and only possess those powers bestowed by statute or by the Arkansas Constitution. Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000). Municipal corporations have no inherent power and can exercise only those powers expressly given by the Legislature or the Arkansas Constitution. However, municipal corporations do have powers"necessarily implied by the express powers granted, as well as those powers indispensable to the objects and purposes of the powers granted in the statutes and Arkansas Constitution. Id.
As already noted, a municipal corporation has the power to sue and be sued. A municipal corporation also has the power to acquire, hold, and possess real property. Ark. Code Ann. § 14-54-101(3) (Repl. 1998). See also City of Harrison v. Boone County, 238 Ark. 113, 378 S.W.2d 665 (1964). Further, a municipal corporation may sell property even though sale is not expressly provided for in Ark. Code Ann. § 14-54-101. See Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984). This is an example of a power necessarily implied from the power to hold and possess property. Likewise, a power necessarily implied from the power to hold and possess property is the power to sue and protect property interests, even though the right to sue to protect property is not expressly stated in Ark. Code Ann. § 14-54-101. See e.g. City of Springdale, supra. Thus, Dover may sue to protect its property rights.
However, Russellville argues that even if Dover has standing, it may not sue under Ark. Code Ann. § 14-40-304 because the language of Ark. Code Ann. § 14-40-304 will not permit suit by a municipal corporation, but rather is limited to suits by natural persons. Russellville asserts that Ark. Code Ann. § 14-40-301 — 14-40-304 permits participation in the suit by only the annexing municipality, the persons who reside in the annexed area, and the electors. Therefore, Russellville argues Dover may not contest the election. Russellville cites City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001), in arguing Dover is not a person, noting that under Cave Springs, a municipality was not a person for purposes of asserting deprivation of Fourteenth Amendment rights. However, the opinion in Cave Springs is not so narrow as Russellville argues. It is true that in Cave Springs we held that Cave Springs was not a person for purposes of asserting Fourteenth Amendment rights, but we also stated that the City of Cave Springs was a person for purposes of declaratory relief actions under Ark. Code Ann. § 16-111-101 (1987). Thus, Cave Springs does not stand for the proposition that a municipal corporation may never be considered a person.
In any event, contrary to Russellville’s argument, the language of Ark. Code Ann. § 14-40-304 does not limit an election contest to one brought by a person. The statute provides that a legal action may be filed in the circuit court. Aside from the requirement of standing already discussed, there are no additional requirements restricting suit under Ark. Code Ann. § 14-40-304 to one brought by a natural person.
There are no prior cases interpreting who may sue under Ark. Code Ann. § 14-30-304. Thus, we must turn to statutory interpretation. The basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning. Bond v. Lavaca Sch. Dist., 347 Ark. 300, 64 S.W.3d 249 (2001). The language in Ark. Code Ann. § 14-40-304 is clear; “a legal action may be filed in circuit court.” Applying the plain meaning rule it is apparent that any property owner affected by the annexation may sue. Dover is such a property owner; therefore, Dover may sue. The trial court erred in granting the motion to dismiss.
Issues Raised by Russellville
Russellville argues that it presented the trial court with multiple independent bases for dismissal, and that even if the court finds error in the trial court on the issue of standing, this court should affirm the trial court because the right result was reached even if the trial court erred in its reasoning. Russellville asserts there are at least eight other reasons Dover failed to state a cause of action. A review of the order of dismissal fails to reveal that the trial court addressed any of the issues. Because we decide the case on standing we need not address the remaining issues.
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Tom Glaze, Justice.
This case involves a married couple, tice. Buck Jones, who reside in Ft. Smith. Robbie Jones was the record owner of their resident property since 1963, and, over the ensuing years, she handled the payment of the couple’s taxes and bills. However, beginning in 1996, Mrs. Jones stopped paying her real estate taxes. As a result, she became delinquent on her real property taxes, which led to the sale of the land to Double “D” Properties, Inc. After the sale and the State Land Commissioner’s issuance of a limited warranty deed to Double “D”, Mrs. Jones brought suit against Double “D” and the Commissioner. She alleged the Commissioner had failed to comply with the notice provisions of Act 626 of 1983, as amended, and, therefore, the sale was void and the Commis sioner’s deed should be cancelled. Double “D” and the Land Commissioner answered, denying Mrs. Jones’s allegation, and, in addition, Double “D” counterclaimed, seeking an order directing Mrs. Jones to vacate. Double “D” subsequently filed a third-party complaint against Buck Jones, seeking the same relief as previously requested against Robbie. Robbie’s attorney filed an answer on Mr. Jones’s behalf, reasserting the Joneses’ claims that the sale of their residence was not in compliance with Act 626.
. This dispute was tried on November 2, 2001. The trial judge, by letter opinion entered on January 2, 2002, held that the Commissioner’s sale of the Joneses’ delinquent property complied with Act 626, and the Commissioner’s deed issued to Double “D” was valid. Following the judge’s ruling, Buck Jones’s new attorney filed a counterclaim, alleging that the Joneses’ property had been illegally assessed, that an unlawful, unconstitutional amount of taxes had been imposed, and, therefore, the Commissioner’s deed should be set aside. In addition, Mrs. Jones tried to question Act 626’s notice requirements as being unconstitutional and depriving the Joneses of their rights of due process. The trial court considered these new arguments at a hearing on March 1, 2001, and it entered two orders on April 12, 2002, holding again that the Commissioner had strictly complied with the notice of provisions of Act 626, and further deciding that the Joneses had failed to raise their constitutional arguments in a timely manner. The Joneses challenge the trial court’s decisions in this appeal.
We first address whether the State Land Commissioner complied with the notice requirements of Act 626. The pertinent provision is codified at Ark. Code Ann. § 26-37-301 (Repl. 1997), which provides as follows:
(a)(1) Subsequent to receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner, at the owner’s last known address, by certified mail, of the owner’s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.
(2) All interested parties known to the Commissioner of State Lands shall receive notice of the sale from the Commissioner of State Lands in the same manner.
(b) The notice to the owner or interested party shall also indicate that the tax-delinquent land will be sold if not redeemed prior to the date of sale. The notice shall also indicate the sale date, and that date shall be no earlier than two (2) years after the land is certified to the Commissioner of State Lands.
In cases involving redemption of tax-delinquent lands, this court has stated that strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of his or her property. Pyle v. Robertson, 313 Ark. 692, 858 S.W.2d 662 (1993); Trustees of First Baptist Church v. Ward, 286 Ark. 238, 691 S.W.2d 151 (1985).
In Wilson v. Daniels, 64 Ark. App. 181, 980 S.W.2d 274 (1998), a case much like the one before us, our court of appeals construed § 26-37-301. There, appellant lived in El Dorado Hills, California, but owned property in Pine Bluff. Taxes on the Pine Bluff property had not been paid since 1990, and the property was certified delinquent in July of 1994. On September 15, 1994, the Land Commissioner mailed a certified letter to Wilson’s last known address in the tax records notifying her that the taxes on the Pine Bluff property were delinquent, that she could redeem the property, and that the property would be offered for sale on September 17, 1996. The letter was addressed to Wilson in Folsom, California; it was returned marked “attempted not known.” Upon learning of Wilson’s correct address, a second certified letter was mailed to her on June 25, 1996, in El Dorado Hills, California, notifying her that the property was delinquent, that she could redeem the property, and that the property would be offered for sale on September 17, 1996. This letter was returned “unclaimed or refused.”
Wilson denied ever receiving either of the letters mailed by the Land Commissioner, and she testified that she had called the county and state offices to inquire why she had not received her tax statements; she also gave that office her correct address. The trial court found that there was a problem with the address and tax billings from the tax office; however, the court concluded that the first notice that was mailed to the wrong address was cured by the second letter that was mailed to the correct address. The court ruled that the Commissioner had fully complied with the applicable statutes.
On appeal, the Wilson court affirmed, stating that Ark. Code Ann. § 26-37-301 “provides that after receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner of his/her right to redeem, notify that the land will be sold, and notify the owner of the sale date.” Wilson, 64 Ark. App. at 184. The court continued as follows:
Under this section, the Commissioner is required to notify the owner, at the owner’s last known address by certified mail. After reviewing the evidence, it is clear that the Commissioner, subsequent to receiving the tax-delinquent land, sent certified notice to [Wilson’s] last known address. Even though the first notice mailed by the Commissioner was mailed to the wrong address, the Commissioner sent a second notice to the correct address of [Wilson] where she had resided since 1980. We cannot say that the chancellor’s decision that the second notice satisfied the statutory requirement was clearly erroneous.
Id.
The Wilson case is factually analogous to the present case. In both instances, the certified letter was returned marked “unclaimed.” Nevertheless, in Wilson, the court of appeals held that the Commissioner had complied with the requirements of the statute. In the instant case, the testimony was undisputed that the Commissioner mailed a certified letter, as required, and that the post office made the appropriate attempts to deliver it. The statute does not require the Land Commissioner to take every step possible to see that the letter arrives in the property owner’s hand; it only requires that the Commissioner “shall notify the owner, at the owner’s last known address, by certified mail, of the owner’s right to redeem [the property.]”
Jones concedes that this case is factually similar to Wilson, but asserts that the court of appeals nevertheless “expressed reservations about deficiencies in the notice.” The “reservations,” however, consisted of the court’s concern about the timing of the notice — i.e., that it could be sent relatively close in time to the time of the sale. That precise question was never an issue in this case, as it was undisputed that the notice was sent a full two years before the scheduled sale date.
Further, Jones argues in her brief that strict compliance with the statute is required, and that, because the Legislature required the notice to be sent via certified mail, that was a clear indication that the legislature intended that the taxpayer be given actual notice of the jeopardy to his property. However, in construing a statute, it is the court’s duty to construe it just as it reads. St. Paul Fire & Marine Ins. v. Griffin Const., 338 Ark. 289, 993 S.W.2d 485 (1999); Heard v. Payne, 281 Ark. 485, 665 S.W.2d 865 (1984); City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977). When we construe a statute, we look first at the plain language of the statute and give the words their plain and ordinary meaning. See ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Griffin Constr., supra. Here, the statute requires notice “by certified mail.” The Land Commissioner sent notice to Jones by certified mail. Therefore, the trial court did not err in concluding that the Commissioner had strictly complied with the statute.
Next, the Joneses argues that the trial court erred in concluding that Mrs. Jones’s constitutional arguments were not timely. In its April 12, 2002, order, dealing with the issues raised in Mrs. Jones’s “post trial brief,” the trial court noted first that the matter was tried to the court on November 2, 2001. After receiving post-trial briefs, the court entered a letter opinion on January 2, 2002, and requested that counsel for Double “D” prepare a precedent and present copies to the other attorneys; if no objections were received within five days, the precedent would be signed and entered. The April 12 order then noted that Mrs. Jones “filed [a] post-trial brief [on January 16, 2002], which the court consider [ed] a motion for new trial, within the five days. The judgment has not been signed and entered pending resolution of the issues presented in [Mrs. Jones’s] motion and the responses filed by [Double “D” and the Land Commissioner].”
The January 16 motion filed by Mrs. Jones alleged that Act 626 of 1983 was constitutionally defective as to its notice requirements with respect to the right of redemption, and that it was therefore a deprivation of her right of due process. In her brief, Jones argued that she and her husband had a vested interest in the property in question that entitled them to actual notice of the proceedings, and that mere compliance with the statutory scheme did not satisfy the requirements of due process. Further, Jones asserted that the fact that no notice whatsoever is required for the second redemption period under the statute, which runs for a period of thirty days from the time that the land commissioner issues the tax deed; the omission of any notice requirement about the second redemption period also rendered the statute unconstitutional.
In its order denying Jones’s motion, the trial court found that the constitutional issues were never raised at trial by Mrs. Jones, and that she had not properly objected to the alleged error of law, as is required by Ark. R. Civ. P. 59(a)(8). The court submitted that the only possible ground for a new trial was Rule 59(a)(8), which provides that a new trial may be granted when there has been an error of law occurring at the trial and objected to by the party making the application. Therefore, the court wrote, “since the aggrieved party has failed to establish grounds, pursuant to Rule 59(a), for granting a new trial, the court does not have the authority to open the record to amend its findings of fact and conclusions of law.”
On appeal, Mrs. Jones asserts that the trial court erred in concluding that her constitutional issues were not properly raised. She maintains that Rule 59 was inapplicable, because no judgment had yet been entered as of the date she filed her motion, and, for the first time, she asserts that “it would have been more proper that the motion ... be treated by the court as being governed by Rule 52(b)(1).” Rule 52 pertains to requests for findings by the trial court, and permits a party to move the trial court to amend its findings of fact within ten days after entry of judgment. Here, however, Jones never suggested to the trial court that it should consider her motion as a request for findings under Rule 52.
In any event, the trial court did not err in concluding that Jones’s raising of the constitutional issue was untimely. Ark. R. Civ. P. 59 governs the granting of new trials, and provides that a new trial may be granted for any a number of grounds materially affecting the substantial rights of a party, including, as noted above, an error oflaw occurring at the trial and objected to by the party making the application. Ark. R. Civ. P. 59(a)(8). The Rule further states that, “[o]n 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 oflaw or make new findings and conclusions, and direct the entry of a new judgment.”
Rule 59(b) establishes when a new trial motion shall be filed, and reads as follows:
(b) Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
(Emphasis added.)
Our case law is well-settled that a motion for new trial is addressed to the sound discretion of the trial court, and the trial court’s refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. Sharp Co. v. Northeast Ark. Planning & Consulting Co., 269 Ark. 336, 602 S.W.2d 627 (1980). An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995); Nazarenko v. CTI Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993).
The trial court here found that the issues raised in Mrs. Jones’s motion for new trial were not timely raised, and therefore, the court denied her motion. This decision was correct. This court has repeatedly held that an objection first made in a motion for new trial is not timely. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). Stated another way, an issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal, and even a constitutional issue must be raised at trial in order to preserve it for appeal. Foundation Telecom., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000). A party may not wait until the outcome of a case to bring an error to the trial court’s attention. Id. The court in Lee, supra, stated further on this issue as follows:
In Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978), this court noted that the reason for requiring an objection before the trial court is to discourage “sandbagging” on the part of lawyers who might otherwise take a chance on a favorable result, and subsequently raise a constitutional claim if the gamble did not pay off. Selph, 264 Ark. at 204. See also Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); Hodges v. State, 27 Ark. App. 154, 767 S.W.2d 541 (1989) (allowing a party to raise an objection for the first time in a motion for new trial would give them “license to lie behind the log,” waiting to see if they obtain an adverse verdict before complaining about any alleged irregularities). Because Fowler failed to raise her constitutional claim until her motion for new trial, the question is not preserved for our review.
Lee, 350 Ark. at 476-77.
Clearly, then, a party may not raise a constitutional objection for the first time in a motion for new trial. The problem here, as has been discussed, is that, at the time Mrs. Jones filed her “motion for new trial,” the trial court had not entered a final order; instead, it had only issued its letter opinion dated December 27, 2001, informing the parties how the court was going to rule. However, Rule 59(b) provides that a “motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered.” Here, the judgment was entered on April 12, 2002, which would cause the motion to become effective and be treated as filed on April 13, 2002. Applying the rules in this manner leads to the same conclusion — i.e., that the constitutional issues were not raised timely. This result serves the purpose of the rule, discussed in Lee, supra: a party should not be permitted to wait until he or she knows how the trial court is going to rule, and then “subsequently raise a constitutional claim if the gamble [does] not pay off.” Therefore, we conclude that the trial court did not err in finding that Jones’s constitutional arguments were not timely.
As previously discussed, Buck Jones was initially brought into this case as a third-party defendant by Double “D” when it was discovered that Mrs. Robbie Jones was married. At that time, Mr. Jones was represented by Mrs. Jones’s attorney, James Filyaw. After the November 2001 trial, however, Buck Jones had a new attorney appear on his behalf. On January 16, 2002, Buck Jones filed a pleading captioned “Cross Claim Complaint,” (hereafter termed the “counterclaim”) wherein he alleged for the first time that the taxes, claimed by the State to be delinquent, were assessed as the result of an illegal reappraisal, and as such, the taxes constituted an illegal exaction.
On January 24, 2002, Double “D” filed a motion to dismiss the “counterclaim,” arguing that the pleading filed by Mr. Jones should be considered a compulsory counterclaim that should have been filed before the trial on the merits of the case. The Commissioner also filed a motion to dismiss, asserting that the issues raised in the “counterclaim” were not presented to the trial court during the November 2, 2001, hearing and pointing out that the court had not given leave to “cross claimant” to raise the issues now.
The trial court dismissed Mr. Jones’s “counterclaim” on the basis of Ark. R. Civ. P. 13(a), which provides as follows with respect to compulsory counterclaims:
A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
The trial court found that Mr. Jones’s claims arose out of the same transaction or occurrence that was the subject matter of Double “D’”s claim and Robbie Jones’s claim, and that Mr. Jones’s claim was a compulsory counterclaim. The court continued by noting that, under cases such as Foundation Telecommunications, Inc. v. Moe Studios, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000), an issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal, and a party may not wait until the outcome of a case to bring an error to the trial court’s attention. Because Mr. Jones’s earliest opportunity to present his claim occurred when, on August 10, 2001, an answer was filed on behalf of Mr. Jones by his first attorney, and because Mr. Jones never presented his claim prior to or at the trial on November 2, 2001, the court concluded that this pleading failed to comply with Rule 13(a), and dismissed the “counterclaim.”
On appeal, Buck Jones argues that the trial court erred in its conclusion. In support of his argument, he cites Allison v. Long, 336 Ark. 432, 985 S.W.2d 314 (1999), and in particular, he notes that case’s statement that, under Rule 13(e), a pleader may assert his counterclaim by amended or supplemental pleading subject to the requirements of Rule 15. Rule 15, in turn, provides as follows:
With the exception of pleading the defense mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.
Ark. R. Civ. P. 15(a). Thus, Mr. Jones argues, to strike a counterclaim without a finding of prejudice or delay amounts to reversible error.
First, Mr. Jones ignores the fact that the trial court did find prejudice. In its findings, the court expressly found the following:
Mr. Jones’s earliest opportunity to present his claim occurred when, on August 10, 2001, an answer was filed on behalf of Mr. Jones by Mr. Filyaw. Mr. Jones never presented his claim prior to or at the trial on November 2, 2001. However, Mr. Jones waited until after he had notice of the outcome of the case, the court’s letter opinion of December 27, 2001, before he raised his claim on January 16, 2002.
We further point out that the “counterclaim” to which Jones refers was not an “amended” pleading; rather, it amounts to a counterclaim that raises a bevy of new issues. The court in Allison stated that the purpose of the compulsory counterclaim rule is the “avoidance of multiple lawsuits on the same facts with the same parties.” Allison, 336 Ark. at 434. This is exactly what the trial court was accomplishing by dismissing Mr. Jones’s “counterclaim,” .which, under a plain reading of Rule 13(a), was truly a compulsory counterclaim and should have been brought before or during the trial of this matter.
Even assuming that Rule 15(b) is applicable, and that Jones’s “counterclaim” should be considered an amended pleading under Rule 15(b), that rule still only permits amendments to conform to the pleadings “when issues not raised by the pleadings are tried by express or implied consent of the parties.” In such a situation, those issues “shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment[.]” However, this Rule presupposes that these issues were “tried by express or implied consent of the parties.” See, e.g., Shinn v. First Nat’l Bank of Hope, 270 Ark. 774, 606 S.W.2d 154 (Ark. App. 1980) (noting that the rule has been interpreted as permitting a defendant to raise a counterclaim, even after judgment, so long as it was clear that all the relevant evidence was in the record or the issue was clearly one the parties contemplated as being before the court).
Here, the issues raised by Mr. Jones’s “counterclaim” were never tried, whether by express or implied consent of the parties, and there was no evidence whatsoever on these issues in the record. The trial court was correct to conclude that these issues raised by Mr. Jones were not timely presented to the court, and the dismissal of his “counterclaim” is affirmed.
Brown and Imber, JJ., concur.
According to her testimony, when the Fort Smith property was purchased in 1963, Mr. Jones was unavailable, and Mrs. Jones signed the papers on the house herself; the deed was only issued in her name.
Such a creature does not exist in the Rules of Civil Procedure, which provide that “[t]here shall be a complaint and an answer; a counterclaim; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third party answer, if a third party complaint is served. No other pleadings shall be allowed.” Ark. R. Civ. P. 7(a).
The Commissioner also argued that the issues raised in the “counterclaim” related to the actions of the Sebastian County Assessor, who, although necessary, had not been named as a party.
The so-called “cross claim complaint” is certainly not a “supplemental pleading,” in the sense of Rule 15(d), which permits a party “at any time without leave of court [to] file a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” | [
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Per Curiam.
Appellant Jason J. Gulley, by and through am. attorney, has filed a motion for belated appeal. Attorney, Ron Gillespie, states in the motion that the notice of appeal was filed late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
This appeal was certified to us from tice. appeals so that we can once again address a trial court’s authority to modify a defendant’s probation under Act 346 of 1975. Appellant Raymond Clampet was charged with first-degree criminal mischief, a Class C felony, on October 9, 1996, after he smashed out the windows on his wife’s truck with a tire iron. In April of 1997, Clampet entered a plea of guilty to this charge, and the trial court sentenced him to three years’ probation pursuant to Act 346 of 1975; the court also imposed $500.00 “restitution in lieu of a fine,” and $1,124.10 in victim restitution. The order of probation was entered on April 24, 1997.
On February 11, 1999, the State filed a petition for revocation of Clampet’s probation, alleging that he had faded (1) to report to his probation officer, (2) to pay court costs and restitution as ordered, and (3) to report a change of address. On May 10, 1999, the trial court held a hearing at which it found Clampet in violation of his probation, but declined to revoke his probation. The judge stated, “However, your Act 346 status will be revoked and your plea of guilty accepted. You’ll be found in contempt for violating the court’s orders and sentenced to 120 days in jail with credit for 12 days served.” (Emphasis added.) In addition, the court extended Clampet’s period of probation for twenty-four additional months, and ordered him to pay the balance of what he owed on his restitution.
On July 2, 2001, the State filed another petition for revocation of probation, alleging that Clampet had failed (1) to report to his probation officer, (2) to remain in his treatment program, and (3) to report his change of address. This petition was amended in August of 2001 to add an additional allegation of committing the offenses of driving while intoxicated and driving on a suspended license. Clampet moved to dismiss the petition, based on lack of subject-matter jurisdiction, because on May 10, 1999, the court had revoked his Act 346 status and accepted his guilty plea. At a hearing on August 13, 2001, the trial court denied Clampet’s motion to dismiss.
At a subsequent revocation hearing, held on August 27, 2001, Clampet admitted to part of the factual allegations contained in the revocation petition, and the trial court found him in violation of his probation, revoked it, and sentenced him to 42 months in the Department of Correction, with an additional 30 months suspended. The court gave Clampet credit for 160 days and directed that he complete a substance abuse program. Prom this order, Clampet brings his appeal, arguing that the trial court erred in denying his motion to dismiss the 2001 petition to revoke his probation. He argues that the court lost subject-matter jurisdiction when it previously revoked his Act 346 status.
Because Clampet was charged and placed on probation in 1996, this case is governed by the sentencing law in effect prior to the passage of Act 1569 of 1999. That Act changed the statutes governing a trial court’s authority to modify or amend the terms and conditions of a defendant’s probation. However, in Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001), we declined to apply that Act retroactively, and therefore, our prior case law on the subject — including Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2000), and McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998) — controls.
This court has consistently held that a trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is put into execution. See, e.g., McGhee, supra; Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). We have also held that a plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. Pike, supra; McGhee, supra. In the present case, the State urges that the trial court never lost jurisdiction because it never imposed a “fine,” and therefore, Pike should not control in this case.
It is true that Judge Keith ordered Clampet to make a payment designated as a “restitution in lieu of a fine” to the Benton County Restitution fund, as well as making full restitution to the victim. However, the only statutory authority for imposing restitution in this fashion is found in Ark. Code Arm. § 16-90-307 (1987), which reads, in pertinent part, as follows:
(a) The circuit judges of each judicial district may establish a restitution fund to be administered by the circuit judge, the prosecuting attorney, or probationary agency, whichever the circuit judge shall designate.
* * * *
(c)(1) The circuit judges may levy additional fines against criminal defendants and place the additional fine money in the restitution fund of the judicial district.
(2) The additional fines shall be in an amount not to exceed the amount of the criminal penalty fine provided by law for the offense.
(3) The additional fine money shall be remitted to the fund, to be deposited in a depository other than the county treasurer or State Treasury.
(Emphasis added.) Although we have not previously interpreted this statute, it is clear from the emphasized language that this kind of “restitution” is comprised solely of fine money and is used to establish a “restitution fund” maintained by “additional fines.” Pike is directly on point, and involved the same trial judge as we have before us here. In Pike, Eric Pike pled guilty to four counts of forgery in November of 1993; his plea was deferred under Act 346, and he was placed on three years’ supervised probation. In January of 1995, the State filed a petition to revoke Pike’s probation, alleging he had failed to report to his probation officer and failed to pay fines, fees, and costs. On January 30, 1995, the trial court held a probation-revocation hearing, wherein Pike admitted the allegations. The court found Pike in contempt of court and sentenced him to eighteen days in jail, with credit for eighteen days served. However, the trial court did not accept Pike’s initial guilty plea or revoke his Act 346 status. The court also extended Pike’s probation by two years.
In October of 1996, the State filed a second petition to revoke Pike’s probation, again alleging he had violated several terms of his probation. The trial court held a second revocation hearing in September of 1997, and Pike again admitted the violations. At that time, the trial court revoked Pike’s Act 346 status, accepted his initial guilty plea on the forgery charges, ordered him to pay the balance of his fines, fees, and court costs, and found him in contempt of court, ordering him to serve 120 days in the Arkansas Department of Community Punishment. The court also extended Pike’s probation for another twenty-four months.
In June of 1998, the State filed a third petition to revoke Pike’s probation. This time, Pike filed a motion to dismiss the petition, citing McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), and Harmon v. State, 317 Ark. 46, 876 S.W.2d 240 (1994), and arguing that the trial court had lost jurisdiction over him by entering its September 1997 order that accepted his guilty plea, revoked his Act 346 status, and executed his sentence by ordering him to pay the balance of his fines, fees, and court costs. The trial court denied Pike’s motion to dismiss, and then held a third probation-revocation hearing. The court denied the State’s petition to revoke, but found Pike in contempt for violating the conditions of his probation and sentenced him to 150 days in the Benton County jail.
On appeal, Pike argued that the trial court erred in finding him in contempt of court at the third revocation hearing because the court lost jurisdiction over him when it executed his sentence at the second revocation hearing by accepting his guilty plea and ordering him to pay the balance of his fines. This court agreed, holding as follows:
We have made it clear that a trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is put into execution. E.g., McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). We have also held that a plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. McGhee, supra; Harmon, supra; Jones, supra.
In McGhee, supra, the State urged us to overrule Harmon, supra, but we declined to do so and reversed the trial court, adhering to our long-standing case law, which holds that a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment, constitutes a conviction, and that, therefore, the court loses power to modify the original order. McGhee, supra (citing Jones, supra).
Similarly, in the present case, by the time of the third revocation hearing, the trial court had lost subject-matter jurisdiction to modify the sentence that had already been executed by the trial court’s actions in revoking [Pike’s] Act 346 of 1975 status, accepting his guilty plea, and ordering him to pay the balance of $866.25 in fines, fees, and court costs.
Pike, 344 Ark. at 484.
What Judge Keith did at Pike’s second revocation hearing is identical to what he did in Clampet’s first revocation hearing: the judge revoked Clampet’s Act 346 status, accepted his initial guilty plea, and ordered him to pay the balance of his “restitution in lieu of a fine.” Because that “restitution” was comprised of money that in reality constituted a fine, given the language of § 16-90-307, the judge’s actions at the May 1999 revocation hearing amounted to executing Clampet’s sentence. The plea of guilty, coupled with a fine and probation, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. See Pike, supra; McGhee, supra; Baker v. State, 318 Ark. 223, 884 S.W.2d 603 (1994) (trial court enters a conviction judgment if it sentences the defendant to pay a fine and places the defendant on probation); Harmon, supra; Jones, supra (interpreting § 5-4-301 (d)(1) to mean that a guilty plea, a fine, and suspension of imposition of sentence amounts to a conviction, which, in turn, entails execution).
Because the valid sentence was put into execution at the May 1999 hearing, the trial court was without jurisdiction, in August of 2001, to amend or modify Clampet’s sentence, and the court thus erred in denying Clampet’s motion to dismiss the State’s petition to revoke his probation. The trial court’s denial of Clampet’s motion to dismiss is therefore reversed. | [
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Per Curiam.
Former court reporter Iris Brooks filed a iam. clarification concerning the writ of certiorari issued in our per curiam order of April 10, 2003.
On January 16, 2003, we held a show-cause hearing so that Ms. Brooks could explain to the court why she should not be held in contempt for failure to complete the record by the scheduled date. On January 23, 2003, we issued a contempt order wherein we directed Ms. Brooks to pay a reduced fine of $100.00 and referred the matter to the Arkansas Board of Certified Court Reporter Examiners. See Hamilton v. Jones, 351 Ark. 561, 95 S.W.3d 809 (2003).
On March 4, 2003, attorney, S. Butler Bernard, Jr., filed a petition with this court, requesting that we direct Ms. Brooks to complete the record and set a date for its completion. In an order granting the writ of certiorari, issued on April 10, 2003, we directed Ms. Brooks to complete the record within thirty days of the issuance of the order. However, on April 5, 2003, a few days prior to the issuance of the order, Ms. Brooks’s court reporter’s license was revoked by the Arkansas Board of Certified Court Reporter Examiners, and she was directed to deliver “all court records and tapes now in her possession” to Circuit Judge Victor Hill for delivery to the new court reporter, William Kisselberg. Ms. Brooks reports in her motion that she delivered “any and all verbatim records produced by [her] and all physical exhibits received or proffered in evidence in any court hearing, trial, or proceeding” to Judge Hill, and it is her understanding that all materials have been given to Mr. Kisselberg.
In response to our April 10, 2003, per curiam order, Ms. Brooks filed a motion for clarification, as she is no longer licensed to work as a court reporter and cannot perform those duties as we directed by the April 10, 2003 per curiam order. Under the circumstances, we revise our writ of certiorari, and now direct Mr. Kisselberg to complete the record within sixty days. Upon the filing of the record with our court clerk, the court clerk shall set a new briefing schedule. | [
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Donald L. Corbin, Justice.
This case arose when Appellees Andy ice. Nelson Erdmann filed a suit for defamation and libel in the Benton County Circuit Court against Appellants John Dodge, Jim Bolt, Dr. Tim Brooker, Francis J. Hart, and thirteen other defendants. Many of the defendants, including these Appellants, filed counterclaims, alleging that Appellees’ suit was frivolous and constituted a malicious prosecution. The suit was eventually dismissed pursuant to Appellees’ motion for voluntary nonsuit. Thereafter, the trial court struck Appellants’ counterclaims, and they appealed. On appeal, we determined that we could not reach the merits of Appellants’ claims, due to an insufficient addendum, and we gave Appellants additional time to provide the necessary information. See Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002). With that information now before us, we reverse the trial court’s order striking the counterclaims of Appellants Dodge, Bolt, and Brooker.
We must, however, affirm the trial court’s ruling as to Appellant Hart, as the record does not contain a counterclaim filed on his behalf. In the prior appeal, we observed that a copy of Hart’s counterclaim was absent from the addendum. Thereafter, it was discovered that Hart’s counterclaim had been omitted from the record. Prior to submitting the new addendum, Appellants filed a motion to supplement the record with the missing counterclaim. We denied that motion. Accordingly, we cannot review Hart’s claim on appeal, based on this court’s long adherence to the rule that matters outside the record will not be considered on appeal. See, e.g., Rothbaum v. Arkansas Local Police & Fire Ret. Sys., 346 Ark. 171, 55 S.W.3d 760 (2001); Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000); Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). The burden is on the appellant to bring up a record sufficient to demonstrate that the trial court was in error, and where the appellant fails to meet this burden, we have no choice but to affirm the trial court. Id. We now discuss the claims of the remaining three Appellants.
The record reflects that Appellees filed their complaint for defamation and libel on November 21, 2000, alleging that Appellants Dodge, Bolt, and Brooker had, for the past several years, “engaged in a concentrated effort to defame the character and professional standing of the [Appellees] herein by repeated publications of slander and libel with no basis in fact.” The complaint sought actual damages of $500,000 and punitive damages of $1,500,000 on behalf of each Appellee, for a total amount of $4,000,000.
The following day, Appellant Bolt filed a pleading titled “CROSS-COMPLAINT” charging that Appellees’ complaint was frivolous and constituted a malicious prosecution. Bolt sought actual damages to be determined by the court and punitive damages of $5,000,000. One week later, on November 28, Appellants filed an answer, which reflected an assertion that the complaint was frivolous, and it sought dismissal of the complaint with an award of expenses, attorney’s fees, and punitive damages.
On December 7, Appellants Dodge and Brooker each filed a document titled “CROSS-COMPLAINT,” alleging that Appellees’ suit was frivolous and constituted a malicious prosecution. Brooker, like Bolt, sought unspecified actual damages and punitive damages of $5,000,000, while Dodge did not specify any amount of damages. Also on December 7, Appellant Bolt filed an amended cross-complaint, again, seeking punitive damages of $5,000,000.
On December 12, Appellees filed a motion to strike the foregoing cross-complaints, on the ground that such a pleading is not recognized under the Arkansas Rules of Civil Procedure, particularly Rifle 7(a). On December 18, Appellants filed a response to the motion to strike, asserting that the foregoing pleadings were inadvertently styled as cross-complaints due to a scrivener’s error on Dodge’s secretary’s part. The response asserted that the pleadings were actually counterclaims. The response also asserted that their claims were sufficient under Ark. R. Civ. P. 8. They asserted further that Appellees’ motion to strike should be denied because the intent of the pleadings was clear.
Also on December 18, Appellants Dodge, Bolt, and Brooker filed new pleadings titled “AMENDED COUNTERCLAIM.” The allegations were the same as those previously styled as cross-complaints; however, the amount of punitive damages sought by each increased from $5,000,000 to $6,000,000.
During the hearing on August 31, 2001, counsel for Appellees argued that the trial court should strike the cross-complaints because the rules of civil procedure do not recognize such a pleading. Appellees’ counsel argued that the amended counterclaims were also improper because there had been no prior counterclaims to amend. Thus, in essence, counsel asked the trial court to strike the counterclaims merely because they were styled as amended counterclaims. Appellants’ counsel, on the other hand, argued that granting the motion to strike would be putting form over substance, against this court’s rules.
The trial court ultimately agreed with Appellees and struck the pleadings and the claims stated therein. In an order entered on October 29, 2001, the trial court found that the cross-complaints were improper pleadings. The trial court found further that the amended counterclaims were also improper because no counterclaims had ever been filed. The trial court reasoned: “Without a Counter-Claim there can be no Amended Counter-Claim.” Appellants argue that these rulings are erroneous under the rules of civil procedure and this court’s cases. We agree.
Rule 7(a) provides for the types of pleadings allowed, specifically complaints, answers, counterclaims, answers to counterclaims, cross-claims, third-party complaints, and third-.party answers. It then provides that no other pleadings will be allowed. Rule 8(f), however, provides: “All pleadings shall be liberally construed so as to do substantial justice.” This court has repeatedly relied on this rule of liberal construction in looking to the substance of a pleading, beyond its actual form. See, e.g., Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Wise Co., Inc. v. Clay County Circuit Court, 315 Ark. 333, 869 S.W.2d 6 (1993); Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987); Fort Smith Symphony Orchestra, Inc. v. Fort Smith Symphony Ass’n, Inc., 285 Ark. 284, 686 S.W.2d 418 (1985). The holding in Cornett succinctly reflects our position:
Courts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek. It would not be in the interest of justice and fair play to be blindly guided by the title of a motion or pleading. We continue to abide by the well-established rule that a pleading will not be judged entirely by what it is labeled but also by what it contains.
293 Ark. at 111, 737 S.W.2d at 160-61. See also O’Guinn Volkswagen, Inc. v. Lawson, 256 Ark. 23, 505 S.W.2d 213 (1974) (holding that substance, rather than form, has been the watchword in matters pertaining to pleading and procedure in Arkansas); Home Ins. Co. v. Williams, 252 Ark. 1012, 1015, 482 S.W.2d 626, 628 (1972) (holding that “a liberal construction requires that every reasonable intendment should be indulged in favor of the pleader and effect should be given to substance rather than form regardless of the name of the pleading”).
Under the foregoing law, the trial court’s order striking Appellants’ counterclaims must be reversed, as it directly contradicts Rule 8(f) and our holdings. It is clear from the record before us that the trial judge did just what our cases caution against — he construed the pleadings strictly, looking only to their style or form, with no regard for their substance. Construing the pleadings liberally, as we must, it is clear that the claims made by Appellants were counterclaims, seeking damages against Appellees for filing a frivolous complaint and for malicious prosecution. As such, the counterclaims should not have been stricken merely because they were styled as cross-complaints. We thus reverse the trial court’s ruling as it pertains to Appellants Dodge, Bolt, and Brooker, and we remand this matter for further proceedings consistent with this opinion.
Affirmed in part; reversed and remanded in part.
In that case, we also affirmed the appeal of seven defendants, wherein they sought attorney’s fees from Appellees, as well as the appeal brought by Appellees, wherein they sought to overturn the default judgment granted in favor of one of the defendants. | [
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Andree Layton Roaf, Judge.
This is the second appeal by Tommy Bain in this paternity case. We dismissed Bain’s first appeal in an unpublished opinion issued December 8, 1994, under Ark. R. Civ. P. 54(b), because the judgment of paternity did not provide for child support and was thus not a final, appeala-ble order. The trial court entered an order for regular and back support on February 6, 1996, and Bain again appeals the adjudication of paternity. He asserts that the chancellor erred in admitting into evidence reports of two blood tests performed on him; that the testimonial evidence does not support a finding of paternity without the erroneously admitted blood-test reports; that the decision should be reversed because the chancellor evidenced a lack of impartiality; and that the appellee should be ordered to repay all sums paid pursuant to the order of support if the paternity judgment is reversed. We hold that the chancellor properly admitted the first of the two blood-test reports and affirm.
Tina Lawrence claims that Bain is the father of her child born on February 18, 1991. A paternity action was filed against Bain by the appellee, Child Support Enforcement (“CSE”), on June 12, 1991. An order for blood draw designating Genetic Design, Inc. (“Genetic Design”), as the court-appointed expert to perform the blood test was entered on July 10, 1991. The test was instead performed by Roche Biomedical Labs (“Roche”). Roche submitted a report dated September 20, 1991, finding a 99.98% probability that Bain was the father of Lawrence’s child.
After receiving the test result, Bain filed an answer denying paternity and cross-complained, alleging that James Priddy was the father of Lawrence’s child. Bain asked that a blood test also be performed on Priddy. Priddy voluntarily submitted to the blood test, which was also performed by Roche; CSE did not obtain a court order authorizing this test.
During a hearing on the merits held on May 11, 1992, Lawrence testified that she had sexual relations with Bain during the period of conception, and also testified to relations with James Priddy approximately a week before she learned she was pregnant. Bain denied having any sexual contact with Lawrence. CSE attempted to introduce the blood-test reports on Bain and Priddy. The trial court admitted the report on Bain over the objection of Bain’s counsel that the test was not performed by the court-appointed expert as required by Arkansas statute. However, the court sustained Bain’s objection to admission of the report of Priddy’s test.
At the conclusion of the hearing, the trial court requested briefs on the issue of whether additional testing of Bain could be ordered. An additional test was performed on Bain by Genetic Design and its report dated December 31, 1992, found that there was a 99.97% probability that Bain was the father. A second hearing was held on February 5, 1993, during which Bain objected to the admission of the Genetic Design report because it was not properly certified as required by Arkansas statute. The trial court again overruled Bain’s objection and allowed the second test report to be introduced.
On August 27, 1993, the trial court entered an order which found that Bain was the father of Lawrence’s child based on the second blood-test report and on the testimony of the parties and other witnesses. Bain’s appeal of this order was dismissed for lack of finality. A subsequent hearing was conducted during which the amount of regular and back child support was determined. Bain again appeals the trial court’s determination that he was the father of Lawrence’s child.
Bain’s first two arguments on appeal pertain to the admission of the reports of the two blood tests performed on him. Bain relies on the language of Ark. Code Ann. § 9-10-108 (1987) and on two cases decided by this court and the Arkansas Supreme Court for his argument that neither of these reports should have been admitted into evidence. Because these arguments are related, we discuss them together.
At the time the two blood tests were performed and the hearing held on the merits of the paternity complaint, § 9-10-108 provided in pertinent part:
(a)(1) Upon motion of either party in a paternity action, the trial court shall order that the putative father, mother, and child submit to blood tests or other scientific examinations or tests. . . .
(2) The tests shall be made by a duly qualified expert or experts to be appointed by the court.
(3) (A) A written report of the test results prepared by the duly qualified expert conducting the test, or by a duly qualified expert under whose supervision or direction the test and analysis have been performed, certified by an affidavit duly subscribed and sworn to by him or her before a notary public, may be introduced in evidence in paternity actions without calling the expert as a witness unless a motion challenging the test procedures or results has been filed within thirty (30) days of the trial on the complaint and bond is posted in an amount sufficient to cover the costs of the duly qualified expert to appear and testify. (Emphasis supplied.)
(Ark. Code Ann. 9-10-108 (a)(l)-(3) (Repl. 1993) (now amended as Ark. Code Ann. 9-10-108 (a)(1), (4), and (5)(A)).
Bain asserts that the first blood test should have been excluded because Roche was not named in the blood-test order as the expert appointed by the court, as required by § 9-10- 108(a)(2). Bain further relies on the holdings in Ross v. Moore, 30 Ark. App. 207, 785 S.W.2d 243 (1990), and Boyles v. Clements, 302 Ark. 575, 792 S.W.2d 311(1990), for the proposition that strict adherence to the statute is required before a blood-test report may be admitted in the absence of the expert who performed or supervised the test.
With regard to the second blood test performed by Genetic Design, Bain asserts that because the written report does not comply with the foundational prerequisites set forth in § 9-10-108 (a)(3)(A), the holdings in Ross and Boyles also mandate its exclusion.
In the case of the second test performed by Genetic Design, Bain’s argument is well taken. Section 9-10-108(a)(3)(A) requires that a report be certified by the duly qualified expert who either conducted the test or supervised or directed the test and analysis, if the report is to be introduced without calling the expert as a witness. The report submitted by Genetic Design was signed by Dr. Deborah Cutter, who certified under oath only that she had “read the foregoing report” and “that the facts and results therein are true and correct as I verily believe.” The certification lists Cutter, along with seven others, as directors or associate directors of Genetic Design. In a separate affidavit, which set forth her qualifications as an expert in genetic testing, Cutter simply stated that she was an associate director of Genetic Design.
We do not agree with CSE’s assertion that Bain was required to give 30 days’ notice in order to object to admission of the report, because such notice is required only where the chain of custody, test procedures,' or results are contested. See Parks v. Ewans, 316 Ark. 91-B, 871 S.W.2d 343 (1994). Nor do we agree with CSE that Cutter’s certification and affidavit constitute strict compliance with § 9-10-108(a)(3)(A), and that the expert need not attest that he or she personally either performed or directed the performance of the test. Moreover, this issue was addressed in our holding in Ross, supra, which involved a similarly defective test report. In Ross, a blood-test report was admitted over the objection of the putative father. At the time, the paternity-test statute required that the report be certified by the expert who performed the test. The report in Ross, like that of Genetic Design, was merely signed by the laboratory director and did not indicate that he performed the test or whether he was a qualified expert. This court held that the statutory foundation, which was a prerequisite to admission of the report, had not been established and that the trial court had thus abused its discretion in admitting the report.
Although the statute has since been amended to also allow for certification by an expert under whose supervision or direction the test has been performed, Cutter’s statements that she is a director of Genetic Design and that she had read the report likewise fall short of meeting the foundational prerequisites for admission under the amended statute. Moreover, the following rationale for requiring strict adherence set forth in Ross applies equally in the instant 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. . . .
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.
Id. at 210-11, 785 S.W.2d at 245.
Finally, the supreme court has adopted the rationale and conclusion of Ross in a case involving a report that was only signed by two laboratory directors and notarized, stating:
As in Ross v. Moore, supra, 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 Mr. Gutendorf and states their positions to be Laboratory Director and Scientific Director respectively, there is nothing in the report to indicate that these two men performed the test or that they are qualified experts.
Boyles, 302 Ark. at 579, 792 S.W.2d at 314. We therefore hold that the trial court abused its discretion in admitting the second test performed by Genetic Design.
As to the first test performed by Roche, we reach a different conclusion. Although CSE does not argue the merits of this issue, and merely states that the question is moot because the trial court did not rely on the first report in making the adjudication of paternity, we do not agree that the matter is moot. Rather, if the trial court in fact erroneously admitted this report, the error would be harmless if the trial court relied solely upon the report by Genetic Design. Moreover, in reviewing chancery cases, we consider the evidence de novo on the record. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993). Accordingly, we can consider the report of the Roche blood test, if properly admitted, in determining whether the chancellor’s finding of paternity is clearly against the preponderance of the evidence, and we can affirm if the chancellor reached the right conclusion for the wrong reason. See, e.g. Estate of Gaston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995); Southern Farm Bureau Cas. Ins. Co. v. Pettie, 54 Ark. App. 79, 89, 924 S.W.2d 828 (1996).
In arguing that the Roche report was erroneously admitted, Bain again relies on Ross and Boyles for the proposition that the statutory directive that the expert be appointed by the court requires strict compliance. He does not challenge the test procedures or the results of the test performed by Roche, nor does he argue that Roche is not an expert qualified to perform paternity blood tests or that he would have objected to the appointment of Roche. In short, he does not suggest that he was in any way prejudiced by the substitution of Roche in the first blood test.
After Bain objected to the admission of the Roche report, CSE advised the trial court that it had used both Roche and Genetic Design to perform paternity blood tests and that both companies had been approved by the court in prior cases. However, CSE stated that their office had switched to Roche exclu sively after the entry of Bain’s blood-test order, because of problems with Genetic Design’s chain of custody and affidavits. CSE characterized the erroneous designation of Genetic Design in the order as an administrative error and argued that the use of Roche was substantial compliance with the statute. The trial court found that there had been substantial compliance or good-faith compliance with the statute, even though Roche was not specifically named in the blood-test order, and that Roche was a recognized company and denied Bain’s motion to exclude the report.
Under the circumstances of this case, we cannot say that the trial court erred in admitting this report. The Roche report was properly certified by a director who set forth his expert qualifications and attested that he had supervised and directed the test, and neither the holdings nor the rationale set forth in Ross and Boyles, which pertain to the foundational requirements of the report, mandate the exclusion of this report.
Bain next argues that the trial court erred in finding that he was the father of Lawrence’s child. He in essence argues that Lawrence’s uncorroborated testimony that she had sexual relations with Bain and her admission that she had sexual relations with Priddy shortly before learning she was pregnant do not support the finding of paternity if the two blood-test reports were erroneously admitted and are thus excluded from evidence. Lawrence’s testimony may be summarized as follows. She stated that she had sexual relations with Bain five to ten times between April and July of 1990, at her home and one time at his place of employment. She stated that her doctor advised her that her probable date of conception was in May of 1990, and that she first had sexual relations with James Priddy the weekend before she learned she was pregnant on June 18, 1990. She candidly testified that she wanted a blood test because although she believed Bain to be the father of her child, there was a slight possibility that Priddy could have fathered the child.
Bain denied having any sexual relations with Lawrence, but admitted that he visited her in her home during the relevant period. He and his wife testified that he was completely impotent during the months of April through July 1990 due to medication he was taking for high blood pressure. Bain’s pharmacist testified that his impotence could have resolved with intermittent withdrawal from the medication. Moreover, in a paternity client questionnaire completed by Lawrence for CSE in April 1991 when her child was two months old, she stated that Bain was unable to achieve an erection the first five or six times they attempted intercourse. Finally, the Roche blood-test report found a 99.98% probability that Bain was the father of Lawrence’s child. Arkansas Code Annotated § 9-10-108 (a)(4) provides as follows:
If the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child, 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 putative father to rebut such proof.
Thus, the Roche blood-test report along with the corroborating testimony of Lawrence constitute a prima facie case of establishment of paternity, and Bain has not met the burden of rebutting this proof. Moreover, in a review of chancery court findings, we will not reverse a finding of fact made by the chancellor unless it is clearly erroneous. Erwin L. D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993). Based on the evidence in the record, we cannot say that the trial court’s finding of paternity was clearly against the preponderance of the evidence.
Bain next argues that the decision of the trial court should be reversed because the chancellor evidenced a lack of impartiality during the proceedings. Bain in essence complains of certain remarks the trial court made in the first hearing, during discussion of whether the court could order a second blood test of Bain. Bain’s counsel asserted that CSE should be required to go forward with its case without benefit of the Roche blood test or further testing. The trial court’s remarks occurred during this discussion and indicated a concern about the interest of the child and the ability of the court to require further blood testing if necessary to reach a decision. Bain also argues throughout his brief that the second blood-test order is evidence of the chancellor’s partiality. Bain offers no citation of authority or convincing argument on this point. This court has long held that assignments of error unsupported by convincing argument or authority will not be considered on appeal. Rogers. v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994). Moreover, the welfare of the child is paramount even in paternity proceedings, for the major purpose of Arkansas’s filiation law is to identify the putative father so that he may assume his equitable share of the responsibility to his child. See Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995).
Because we affirm the finding of paternity, we do not reach Bain’s final argument that he is entitled to a refund of monies paid pursuant to the order of support. We also note that this action was filed by CSE when the minor child was four months old, and had not been finalized as the child approached his seventh birthday in part due to the failure of CSE to ensure that its crucial blood-test reports meet the requirements of the paternity testing statute before introducing them into evidence.
Affirmed.
Robbins, C.J., and Neal, J., agree. | [
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John B. Robbins, Chief Judge.
Appellant Barry G. Cowan appeals the Board of Review’s denial of unemployment compensation benefits in accordance with Ark. Code Ann. § 11-10-513 (Repl. 1996), upon finding that appellant left his last work voluntarily and without good cause connected with the work. He argues that the decision is not supported by substantial evidence. We affirm.
We do not conduct a de novo review on the appeal of a decision of the Board of Review. The findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. § 11-10-529(c)(1) (Repl. 1996); Perdix- Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
The Board of Review adopted the findings of fact and conclusions of law made by the Appeal Tribunal. The Appeal Tribunal found that appellant quit his job because of problems with another worker, Kenny Stern. Stern had hidden the appellant’s lunch, took keys out of equipment that appellant was operating, and threw the appellant’s hat. The appellant believed that they were about to fight and complained to the superintendent, Joe Holland, who instructed the appellant to fight it out. Appellant did not approach the president of the company prior to quitting because he had rarely seen him and he had always answered to Holland. The Appeal Tribunal found that the employer encouraged its employees to resolve problems among themselves or through the superintendent, but that the president would meet with employees to discuss problems if he was approached. One of the elements in determining whether good cause exists for an employee to terminate his employment within the meaning of unemployment compensation law is whether the employee took appropriate steps to prevent the mistreatment from continuing. See McEwen v. Everett, Director, 6 Ark. App. 32, 637 S.W.2d 617 (1982); Teel v. Daniels, Director, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980). The Appeal Tribunal concluded that while the appellant did talk to his direct supervisor, it would have been appropriate to take his complaint to the president before giving up his job. Therefore, appellant voluntarily left his last work without good cause connected with the work within the meaning of the law. From our review of the record, there is substantial evidence to support these findings and decision. Therefore, we affirm the Board’s decision that appellant left his last work voluntarily and without good cause connected with the work.
Affirmed.
Pittman and Jennings, JJ., agree.
Rogers, Stroud, and Griffen, JJ., dissent. | [
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Olly Neal, Judge.
After an August 14, 1995, bench trial, appellant Jerry Sam Mackey was found guilty of the offense of residential burglary in violation of Ark. Code Ann. § 5-39-201(a)(2) (Repl. 1993) and being an habitual offender under Ark. Code Ann. § 5-4-501 (Repl. 1995). Mr. Mackey now appeals from the September 12, 1995, judgment of the Pulaski County Circuit Court which reflected that he was sentenced as an habitual offender, pursuant to Ark. Code Ann. § 5-4-501. Mr. Mackey was sentenced to a 108-month term of imprisonment in the Arkansas Department of Correction. The evidence supporting appellant’s conviction is not in dispute, and the sufficiency of the evidence to sustain the conviction is not challenged on appeal. Mr. Mackey challenges only his sentence on appeal, maintaining that the State’s evidence that he had been convicted of three prior felonies was insufficient to justify the court’s decision to sentence him as an habitual offender.
The State, citing Fellows v. State, 309 Ark. 545, 828 S.W.2d 847 (1992), argues that appellant’s sufficiency argument was not properly preserved for our review, and that as a result, we are precluded from addressing the merits of the issue on appeal. It is undisputed that appellant failed to object to the insufficiency of the evidence to prove his habitual status at trial.
The Fellows case is one of a line of cases following the supreme court’s holding in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In Wicks, an appeal from a jury verdict finding Wicks guilty of two counts of rape, the supreme court addressed two of Wicks’s arguments, neither of which was supported by a contemporaneous objection at trial. In discussing the deficiency, the court first noted the general, well-established rule that failure to object to an alleged error at trial results in waiver of the argument on appeal. The court then noted four exclusive exceptions to the rule: 1) when the death penalty is sought by the State and the court fails to notify the jury of matters essential to consideration of the death penalty; 2) where the trial judge commits error of which defendant’s counsel has no knowledge or opportunity to object; 3) possibly where the trial court is derelict in its duty to intervene without objection to correct a serious error by admonition or order of mistrial; and 4) possibly where the asserted error is one “affecting a substantial right.”
We note from the outset that while Wicks and its progeny all were appeals from jury verdicts, the current appeal is from a bench trial; the procedural requirements are different. One such difference was clarified recently in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). The supreme court held in Strickland that at bench trials, no directed-verdict motion based on the sufficiency of the evidence need be made, as such would be “superfluous”; “the judge would only be directing his own verdict.” The court stated:
Our supposition in the Igwe case was that a Trial Court, sitting as a trier of fact, would be sufficiently aware of the evidence and the elements of the crime that no such motion would be necessary, and that is why our rales do not require the motion to dismiss in non-jury-trial cases. We adhere to that supposition today.
Id. at 318.
Because the supreme court has essentially relieved trial counsel of the duty to apprise the trial court of deficiencies in the evidence, including missing elements of proof, it has concomitantly placed the burden upon trial judges to “step in” and order dismissal or other appropriate remedy where the evidence is insufficient. Here the court should have directed the State to produce evidence beyond a reasonable doubt that appellant had been convicted of three prior felonies as such was an element of the allegations contained in the information.
The argument has been made that appellant has misclassified his argument as one of the insufficiency of the evidence when it should really be countenanced as a challenge to an illegal sentence. That argument has no merit. First of all, our bifurcation system created two separate and distinct phases of a criminal trial: guilt and punishment. Here, the only evidence of appellant’s priors was presented during the State’s case in chief, in an attempt to prove the habitual element; no certification of priors was entered or discussed at sentencing. Secondly, while being an habitual offender is not a separate offense, it is an enhancement provision that requires specific elements of proof that the record does not reflect were introduced in this case. Both the information by which he was charged and the judgment and commitment order refer to appellant’s habitual status under § 5-4-501, not § 16-90-803 (Supp. 1995). The only “proof” that appellant had prior convictions was the State’s contention “we have certification of defendant’s priors.” Because a prosecutor’s statements are not evidence, there is nothing in the record that justifies the court’s finding that appellant should be sentenced as an habitual. See Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). Although it was enacted at a later date, § 16-90-803 contains no repealing clause, and does not conflict with § 5-4-501; the range of sentencing is essentially the same under both statutes. Accordingly, the State has the option of alleging specific habitual status in the information or simply charging the underlying offense. Under the grid, a convicted felon’s criminal history is automatically considered and applied in compiling a sentence. The record here contains neither a copy nor the original presentence report and reflects that the State’s only attempt to prove prior felony convictions was made during the guilt phase of trial. Accordingly, the State’s failure to provide proof of appellant’s priors during the sentencing phase requires reversal of the court’s finding that appellant was an habitual offender, and remand for resentencing.
Reversed and remanded for resentencing.
Robbins, C.J., and Stroud and Jennings, JJ., agree.
Rogers and Pittman, JJ., dissent. | [
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John Mauzy Pittman, Judge.
This is a quiet-title action. Appellant, Lillian Howard, appeals from an order of the Madison County Chancery Court finding that she failed to establish an easement or right-of-way across appellee’s, Willow Cramlet’s, property. Appellant argues on appeal that this ruling was error. We agree and reverse and remand for further proceedings consistent with this opinion.
Wayne and Marlene Keck owned 320 acres of land. On April 20, 1992, they conveyed 199.57 of the 320 acres to appellee by warranty deed with the following reservation; “Less and except a right of way 30 feet in width, for the purposes of ingress and egress over the above described property for access to the adjacent property to the west. ...” The reservation across appel-lee’s servient estate provided ingress and egress to the Kecks’ remaining lands.
On May 15, 1992, the Kecks conveyed a portion of their lands to appellant. On July 27, 1992, Marlene Keck, the surviving spouse of Wayne Keck, conveyed her right-of-way across appel-lee’s 199.57 acre tract to appellant. That instrument stated, “This right of way is more specifically described as being 30 feet in width proceeding across the above described property [appellee’s lands] to the property of the grantee [appellant] described below.”
In 1993, a dispute arose when appellee blocked the roadway appellant was using to access appellant’s property. Thereafter, appellee brought suit to quiet title contending that appellant did not have an easement or right-of-way across appellee’s property. The court held that appellant’s deed did not contain a metes and bounds description and was too vague for enforcement. It found that there was no easement retained by the Kecks in their conveyance to appellee or by Marlene Keck’s conveyance of the easement or right-of-way to appellant.
In Hatfield v. Arkansas Western Gas Co., 5 Ark. App. 26, 28-29, 632 S.W.2d 238, 240 (1982), we held:
An easement or right-of-way is an interest in land and is conveyed by deed the same as land is conveyed. However, it is not essential to the validity of the grant of an easement that it be described by metes and bounds or by figures giving definite dimensions of the easement. The grant of an easement is valid when it designates the easement or right-of-way as such and describes the lands which are made servient to the easement. While the owner of the servient estate has the right to limit the location of an easement, where he fails to do so it may be selected by the grantee so long as his selection is a reasonable one taking into consideration the interest and convenience of both estates. Where the grant of a right-of-way is not bounded in the deed it is to be bounded by fines of reasonable enjoyment. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W.2d 645 (1924). The court in reaching such determination will consider the interest and convenience of both estates, and the grantor will have the right to the use of the easement, except insofar as the limitation of that use is essential to the reasonable enjoyment of the easement. Drainage District No. 16, Mississippi County v. Holly, 213 Ark. 889, 214 S.W.2d 224 (1948), 25 Am. Jur. 2d Easements and Licenses § 78.
A primary characteristic of an easement is that its burdens fall upon the possessor of the land from which it issues. This characteristic is expressed in the statement that the land constitutes a servient tenement and the easement a dominant tenement. Restatement of Property § 450 comment a (1944).
The rule in this state is that the owner of an easement may make use of the easement compatible with the authorized use so long as the use is reasonable in fight of all facts and circumstances of the case. The owner of the servient tenement may make any use thereof that is consistent with, or not calculated to interfere with, the exercise of the easement granted. 3 Tiffany, Law of Real Property, § 811 (3rd ed. 1939); see Natural Gas Pipeline Company of America v. Cox, 490 F.Supp. 452 (E.D. Ark. 1980).
The location of the undefined right-of-way must be reasonable to both the dominant and servient estates, considering the condition of the place, the purposes for which it was intended, and the acts of the grantee. Carroll Electric Coop. Corp. v. Benson, 312 Ark. 183, 848 S.W.2d 413 (1993); Massee v. Schiller, 243 Ark. 572, 420 S.W.2d 839 (1967). The owner of the servient estate has the right to delimit the right-of-way, but if he or she fails to do so, the holder of the dominant estate may exercise this right, but in either case the location must be reasonable. Bradley v. Arkansas-Louisiana Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983); Hatfield, supra; see Carroll Electric, supra.
The findings of a chancellor will not be disturbed on appeal unless they are found to be clearly erroneous or clearly against the preponderance of the evidence. Fields v. Ginger, 54 Ark. App. 216, 925 S.W.2d 794 (1996). From our de novo review, we conclude that the chancellor’s finding that appellant failed to establish an easement over the lands of appellee is clearly erroneous. In this case, the grant of the easement is valid since it designates the right-of-way and describes the lands that are made servient to the easement. Hatfield, supra; see Bradley, supra; Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W.2d 645 (1924).
Appellant filed a counterclaim seeking an injunction and damages for appellee’s obstruction of the road that appellant was using to access her property. Appellant testified that she incurred $560.00 for the cost of bulldozing appellee’s obstructions. The owner of a servient estate may not erect a barrier that unreasonably interferes with the right of passage by the easement owner. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995). Because the court found no easement, the issue of damages was not reached. The decree is reversed, and the case is remanded for the court to consider the issue of damages and to enter an order consistent with this opinion. The order should locate the easement by description.
Reversed and remanded.
Rogers and Crabtree, JJ., agree. | [
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James R. Cooper, Judge.
This is the second appeal of these parties’ divorce and custody action. The appellant raises two points for reversal: 1) the Arkansas court did not have jurisdiction of the parties’ divorce proceeding; 2) the Arkansas court did not have jurisdiction under the Uniform Child Custody Jurisdiction Act to award the appellee custody of the parties’ minor children. We affirm on both points.
The parties were married in Michigan on May 23,1981. The appellant was in the service, stationed in Germany, and the appellee joined him in Germany after residing with her parents in Arkansas for two months. The parties lived in Germany for approximately two years and then returned to Michigan where they resided until their separation. In August 1986, the appellee left Michigan with the parties’ two minor-children and moved into her parents’ home in Arkansas. Four days later, on August 27, 1986, the appellee filed for divorce and custody in Arkansas. On September 2, 1986, the Johnson County, Arkansas Chancery Court by an ex parte order awarded the appellee custody. On October 14, 1986, the appellant filed an answer and a special appearance requesting dismissal of the appellee’s complaint, denying that the Arkansas court has jurisdiction of the divorce and the custody proceeding. The appellee amended her complaint on October 28, 1986, alleging that, at that time, she had been a resident of Arkansas for the requisite sixty days. On November 5, 1986, the appellant filed a petition for divorce and custody in the State of Michigan.
A trial was held in Arkansas on the appellee’s complaint on March 17,1987, at which time the chancellor found that he had jurisdiction of the parties and the subject matter and awarded the appellee a divorce and custody of the parties’ children. Thereafter, the appellant filed his first appeal, CA 87-219, Mellinger v. Mellinger. In an unpublished opinion, handed down January 27, 1988, this court affirmed the chancellor’s finding of jurisdiction and award of divorce to the appellee but remanded the custody issue for further proceedings in accordance with the Uniform Child Custody Jurisdiction Act.
On remand, the Johnson County Chancery Court contacted the Michigan court for the purpose of determining which court was the appropriate forum to determine custody under the Uniform Child Custody Jurisdiction Act. During this communication, the Michigan court indicated that it did not believe the Michigan court was the most appropriate forum to exercise jurisdiction and declined to hear the case. The Michigan court further advised the Arkansas court that the Michigan proceeding had been dismissed at Calender Call on March 7,1988, for lack of progress.
An amended decree was filed on May 17,1988, in which the Johnson County Chancery Court found that, based upon the pleadings, testimony of the witnesses, and evidence adduced at the hearing and as a result of its communication with the Michigan court, it was the appropriate forum under the Uniform Child Custody Jurisdiction Act to make a custody determination; that it was in the best interest of the minor children for it to assume jurisdiction because the children and the appellee had a significant connection with this state; and its decree, entered on March 17, 1987, should continue to be its order. From this amended decree, the appellant brings his second appeal.
First, we deal with the appellant’s contention that the chancery court erred in finding it had jurisdiction of the appellee’s divorce action. We disagree. In the first Mellinger, CA 87-219, this Court affirmed the chancery court’s findings of jurisdiction and award of divorce to the appellee. This issue is no longer subject to review.
Our court has long adhered to the rule that when a case has been decided by it, and after remand returned to it on a second appeal, nothing is before the court for adjudication except those proceedings had subsequent to its mandate. Matters decided in the first appeal are the law of the case and govern the action of the trial court on remand and our actions on a second appeal to that extent, even if we were now inclined to say that we were wrong in the earlier decision. This rule is based on the fundamental concept that judgments must at some point become final and departure from that rule would result in only uncertainty, confusion, and incalculable mischief. International Harvester Co. v. Burks Motors, Inc., 252 Ark. 816, 481 S.W.2d 351 (1972); Ouachita Hospital v. Marshall, 2 Ark. App. 273, 621 S.W.2d 7 (1981).
Pickle v. Zunamon, 19 Ark. App. 40, 44, 716 S.W.2d 770, 773 (1986). See also Glover v. Glover, 15 Ark. App. 79, 689 S.W.2d 592 (1985).
For his second point, the appellant contends the chancery court erred in finding it had jurisdiction under the Uniform Child Custody Jurisdiction Act to award the appellee custody of the parties’ minor children. This issue was also raised in the appellant’s first appeal. There, this Court held that, although the Arkansas court made findings of the existence of the requirements provided for by the Uniform Child Custody Jurisdiction Act, which would allow the Arkansas court to determine the custody of the children, the Arkansas court should not have proceeded with a custody determination because it did not enter into direct communications with the Michigan court to decide which was the better forum to decide custody. In that opinion this court stated:
In Norsworthy [Norsworthy v. Norsworthy, 289 Ark. 479, 713 S.W.2d 451 (1986)], the appellee had taken the parties’ child from Texas to Arkansas. In Texas, a court had given temporary custody to the appellee and that order, entered by agreement, was still in existence at the time the appellee took the child to Arkansas. The appellant in Norsworthy came to Arkansas to visit the child and, instead of returning her to her mother, took the child to Texas and filed a suit in that state for divorce and custody. The appellee filed a suit in Arkansas seeking divorce and custody and the Arkansas court granted her a divorce and awarded her custody of the child. On appeal to the Arkansas Supreme Court, it was held that Arkansas was not without jurisdiction to adjudicate the custody of the parties’ child but that, under Ark. Stat. Ann. Section 34-2706 (Supp. 1985), the Arkansas court should have entered into direct communications with the Texas court to determine which was the better forum to decide custody. We think we are faced with that same situation in the case at bar. At the time the Arkansas court entered its decree granting the appellee custody in this case, there was an order of a Michigan court which had given interim custody of the parties’ children to the áppellant. This order was called to the attention of the Arkansas court but that court determined custody without any communication with the court in Michigan. Under the holding in Norsworthy, we think the custody issue in the instant case should be remanded for further proceedings in accordance with the Uniform Child Custody Jurisdiction Act.
Arkansas Code Annotated Section 9-13-206(c) (1987) [formerly Ark. Stat. Ann. Section 34-2706(c) (Supp. 1985)] states in part that, “[i]f the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.” Ark. Code Ann. Section 9-13-207(c) (1987) [formerly Ark. Stat. Ann. Section 34-2707(c) (Supp. 1985)] states:
(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose, it may take into account the following factors, among others:
(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his family or with the child and one (1) or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate; and
(5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 9-13-201.
Here, pursuant to our remand in the first appeal, the Johnson County Chancellor communicated with the judge in the Michigan jurisdiction on April 5, 1988, entered a Decree on Mandate on April 21,1988, and entered an Amended Decree on Mandate on May 17, 1988, reflecting that communication. The amended decree states in part:
1. That the Circuit Court of Monroe County, Michigan has declined to exercise jurisdiction in the case of Mellinger v. Mellinger (No. 86-14954-DM), a divorce and custody case pending in said state. That said case of Mellinger v. Mellinger was dismissed at Calendar Call for Lack of Progress. That a certified copy of said Dismissal marked Exhibit “A”, is attached hereto and incorporated herein as if fully set forth below at this point.
2. That the Chancery Court of Johnson County, Arkansas is the appropriate forum under the Uniform Child Custody Jurisdiction Act to make a custody determination in this case.
3. That it is in the best interest of the minor children of the parties that this Court assume jurisdiction under the Uniform Child Custody Jurisdiction Act because the children and the Plaintiff have a significant connection with this State, and there is available in this State substantial evidence concerning the children’s present and future care, protection, training and personal relationships.
4. That the Decree heretofore entered on March 17, 1987, shall remain in full force and effect and shall,, for all purposes, continue to be the Order of this Court herein.
The Uniform Child Custody Jurisdiction Act expressly directs that it be construed to promote the general, purposes enumerated in the act such as avoidance of jurisdictional competition, promotion of cooperation between courts, facilitation of the enforcement of custody decrees of other states, and promotion and expansion of the exchange of information. Norsworthy, 289 Ark. at 483-84, 713 S.W.2d at 454-55. Ark. Code Ann. Section 9-13-203 (1987) [formerly Ark. Stat. Ann. Section 34-2703 (Supp. 1985)] provides:
(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:
(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
(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.
A court may decline to exercise its jurisdiction on a custody determination where it finds it to be an inconvenient forum, taking into account whether another state was the child’s home state or has a closer connection with the child and parent, or that evidence of present and future care is more readily available in another state. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).
The appellant concedes that the chancellor correctly found the requisite evidence concerning the children’s present and future care but denies the children had the necessary “significant connections” with Arkansas to allow the trial court to assume jurisdiction. In Pomraning, we held that the fact that the appellee and her child had lived in this state for a shorter period than that required to establish it as their “home state” did not preclude jurisdiction over the custody issue. Here, after hearing the testimony of both parties and their witnesses, the chancellor found Arkansas had significant contacts with the children and assumed jurisdiction. Furthermore, the Michigan court declined to exercise jurisdiction and dismissed the appellant’s suit. We cannot say the Arkansas court’s assumption of jurisdiction is clearly erroneous and therefore affirm.
Affirmed.
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Melvin Mayfield, Judge.
Appellant was convicted of DWI, first offense, by a judge sitting without a jury and sentenced to 24 hours in jail, fined $150.00 plus costs, his driver’s license was suspended for 90 days, and he was ordered to attend DWI school. On appeal, he contends the trial court erred in denying his motion to suppress since he was unlawfully seized and all evidence obtained as a result of that seizure should have been suppressed.
On August 29, 1987, on instructions from State Police Headquarters, the Arkansas State Police and the Saline County Sheriffs Office conducted a roadblock for the purpose of checking vehicle and drivers’ licenses and headlights and taillights. The safety checks began at approximately 6:00 p.m. and lasted until midnight, or shortly thereafter, at a site chosen by a supervisor who was directing the other officers as to where to set up the roadblock and what to check. There was testimony that police cars were present with blue lights on and that the roadblock was clearly visible.
Officer Roger Bullard, a reserve deputy with the Saline County Sheriffs Office, was instructed by Corporal Halley, a senior trooper, to tell anyone who turned around to avoid the roadblock that they were to go back through. Bullard testified he observed appellant, who was going south on the highway toward the roadblock, pull into a driveway, back out into the highway, and head back north. Bullard said he pulled out behind appellant, put on the blue lights, and stopped him. Appellant stepped out of his vehicle, and Bullard called for a trooper’s assistance because appellant appeared too intoxicated to drive back through the roadblock. Bullard testified that, before appellant stopped, he did not observe appellant driving erratically or suspect him of any criminal activity. He stopped appellant only because he was trying to avoid the roadblock.
Officer Howington responded to Bullard’s call for assistance. When he arrived at the scene, Howington observed appellant sitting in his vehicle behind the steering wheel. When he began talking to the appellant, Howington detected a strong odor of alcohol coming from the vehicle and from the appellant. Howing-ton asked appellant to step out of the vehicle, and he was given a field sobriety test which he failed. Appellant was then arrested for DWI, transported to the Bryant Police Department, and given a breathalyzer test which registered 0.19%.
Appellant argues that the original stop of his vehicle constituted an unconstitutional seizure because there was no probable cause or reasonable suspicion that he had committed or was about to commit a crime. He also argues that the roadblock was unlawful.
Rule 3.1 of the Arkansas Rules of Criminal Procedure provides in part:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
The term “reasonably suspects” is defined in A.R.Cr.P. Rule 2.1 as a “suspicion based on facts or circumstances which of themselves do not give rise to probable cause. . . but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” The Commentary following Rule 2.1 points out that Rules 2 and 3 of our Rules of Criminal Procedure are characteristic of those generated by the decision of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). These rules were discussed at length by the Arkansas Supreme Court in Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882 (1982), where it was said:
The courts have used various terms to describe how much cause or suspicion is necessary or reasonable in ordér to stop a person or vehicle. The common thread which runs through the decisions makes it clear that the justification for the investigative stops depend upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. U.S. v. Cortez, 449 U.S. 411 (1981); Michigan v. Summers, 402 U.S. 692, 101 S.Ct. 2587 (1981); Terry v. Ohio, 392 U.S. 1 (1968).
275 Ark. at 80. See also Reeves v. State, 20 Ark. App. 17, 722 S.W.2d 880 (1987).
Under the authority of the above case decisions and rules of criminal procedure, we do not agree with appellant’s contention that the stop of his vehicle was unconstitutional or unlawful. We agree with the appellee that the question is whether the record will support a finding that the police officer could have “possessed the requisite reasonable suspicion necessary to effectuate a constitutionally permissible investigatory stop.” We find that the record will support such a finding. There is evidence from which it could be found that the appellant was approaching a roadblock made clearly visible by the presence of police vehicles with flashing blue lights; that the appellant attempted to avoid the roadblock; and that the trained police officers who were conducting the roadblock could reasonably suspect that one who attempted to avoid this roadblock was trying to hide some type of unlawful activity. Indeed, the Comment to A.R.Cr.P. Rule 2.1 lists a number of factors to be considered in determining whether reasonable suspicion exists and one factor listed is “apparent effort of a person to avoid identification or confrontation by the police.”
The appellant argues he was not stopped because Officer Bullard had a reasonable suspicion that appellant was engaged in criminal activity but simply because Bullard was told to stop anyone who tried to avoid the roadblock. The standard, however, is not subjective. In Terry v. Ohio, the Court said “it is imperative that the facts be judged against an objective standard,” 392 U.S. at 21, and in determining whether an officer acted reasonably “due weight must be given, not to inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in the light of his experience,” id. at 27. Also, the record shows that Officer Bullard’s superior officer, a senior trooper, gave Bullard these instructions. In Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981), the court said that a warrantless arrest is to be evaluated upon the collective information of the police, and in Tillman, Huggins & Byrd v. State, 275 Ark. 275, 630 S.W.2d 5 (1982), where it was claimed that a vehicle stop was an unlawful arrest and seizure, the court found reasonable suspicion for the stop based upon “objective manifestations” revealed by the evidence, 275 Ark. at 281. That opinion also quoted from the case of United States v. Cortez, 449 U.S. 411 (1981), as follows:
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. (Emphasis supplied.)
To a trained police officer, the fact that a motorist attempted to avoid the roadblock in this case would surely excite a reasonable suspicion that, at the very least, the motorist was drunk, driving a stolen vehicle, did not have a valid driver’s license, or had some car light defect. These violations of the law would meet A.R.Cr.P. Rule 3.1 requirements since they involve appropriation of property or danger of injury to other motorists. Therefore, we do not agree that the stop of appellant’s vehicle was unlawful; and after he was stopped, the appellant’s intoxicated condition was apparent and the officers had obvious probable cause to arrest him.
Appellant also argues that the roadblock was unlawful and he contends that this would make his arrest unlawful because of the fruit-of-the-poisonous-tree doctrine. First, we simply do not agree that an unlawful roadblock would infect the validity of appellant’s arrest under the circumstances in this case. Second, we agree with the appellee that roadblocks are constitutionally permissive if certain criteria are met. See generally 4 LaFave Search and Seizure: A Treatise on the Fourth Amendment § 10.8 (2nd Ed. 1987 & Supp. 1988). In Delaware v. Prouse, 440 U.S. 648, 663 (1979), the Court held the random stopping of an automobile invalid but said:
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 alterna tive. 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.
Therefore, even if the roadblock issue is relevant, and we do not think it is, the record does not convince us that the trial court erred in sustaining the validity of appellant’s stop and arrest in this case.
Affirmed.
Cooper and Coulson, JJ., agree. | [
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John E. Jennings, Judge.
The defendant was charged in Pike County Circuit Court with second degree battery, a class D felony. Two days after his arrest, the defendant was released on a $5,000.00 corporate surety bond. At arraignment, he appeared without counsel, asserted that he was indigent, and asked the court to appoint an attorney to represent him. It is clear from the record that the trial court declined to appoint counsel solely on the basis that the defendant had made a corporate surety bond. The court did appoint “standby” counsel to help the defendant with jury selection. After a jury trial, at which the defendant proceeded pro se, he was convicted of battery in the third degree, a class A misdemeanor, and sentenced to one year in jail, and fined $1,000.00.
The issue presented on appeal is whether the trial court may constitutionally refuse to appoint counsel for an indigent defendant on the sole ground that he has been released on bail furnished by a professional bondsman. Because the answer is no, the case must be reversed and remanded for new trial.
The sixth amendment to the United States Constitution provides that a criminal defendant shall have the right to the assistance of counsel. In Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court held that the right to counsel in a criminal prosecution was made applicable to the states through the due process clause of the fourteenth amendment.
While the issue has not arisen in this state, other courts have held that the posting of bail by a defendant does not conclusively establish that he is non-indigent. People v. Wood, 91 Ill. App. 3d 414, 414 N.E.2d 759 (1980); People v. Eggers, 27 Ill. 2d 85, 188 N.E.2d 30 (1963); State v. Gardner, 626 S.W.2d 721 (Tenn. Ct. App. 1981); People v. Gillespie, 42 Mich. App. 679, 202 N.W.2d 552 (1972); Moore v. State, 401 N.E.2d 676 (Ind. 1980); People v. Valdery, 41 Ill. App. 3d 201, 354 N.E.2d 7 (1976); Williams v. Superior Court, 226 Cal. 2d 666, 38 Cal. Rptr. 291 (1964). See also Sizemore v. Commonwealth, 450 S. W.2d 497 (Ky. Ct. App. 1970); McCraw v. State, 476 P.2d 370 (Okla. Crim. App. 1970); Sapio v. State, 223 So.2d 759 (Fla. Dist. Ct. App. 1969), State v. Brown, 557 S.W.2d 687 (Mo. Ct. App. 1977); 1 American Bar Association, Standards For Criminal Justice § 5-6.1 (2nd ed. 1986). There appear to be no cases holding to the contrary.
We recognize that a defendant’s ability to post bond may be a factor to be considered by the trial court in making its determination of indigency. See Toomer v. State, 263 Ark. 595, 566 S.W.2d 393 (1978). On appeal, we do not reverse the trial court’s ruling as to indigency vel non, absent an abuse of discretion. See Jordan v. State, 273 Ark. 75, 616 S.W.2d 480 (1980). In the case at bar, we hold only that the trial court failed to exercise that discretion by accepting the defendant’s release on bail as conclusive evidence of non-indigency. On remand, the trial court should determine whether the defendant is in fact indigent, prior to re-trial.
Reversed and remanded.
Cracraft and Coulson, JJ., agree. | [
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Per Curiam.
In the above appeal, the appellant has asked us to remand the matter to the trial court for that court to act upon appellant’s motion for a new trial. Appellant, however, wants this appeal to remain in suspense while the trial court is passing on his motion for a new trial. The basis alleged for new trial is newly discovered evidence and the brief in support of the motion contends the evidence was discovered in August of 1988. Since trial was in February of 1988, the evidence would have been discovered more than 90 days after the trial. We do not address the merits of the motion but hold that it should be denied upon procedural considerations.
Rule 60(b) of the Arkansas Rules of Civil Procedure allows judgments to be set aside for certain reasons within 90 days after they are filed with the clerk. Ark. R. Civ. P. 60(c) allows judgments to be set aside for certain reasons after the expiration of 90 days from the date they are filed with the clerk. Under Rule 60(c) (1) a judgment may be vacated after 90 days of the filing of the judgment by the granting of a new trial on the ground of newly discovered evidence which could not have been discovered in time to file a motion under Rule 59(c), provided the motion is filed within one year after the discovery of the ground or one year after the judgment was filed with the clerk of the court whichever is the earlier.
A writ of error coram nobis has been allowed in criminal cases while the appeal was pending in the appellate court. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984); Shamlin v. State, 19 Ark. App. 165, 718 S.W.2d 462 (1986). In Penn the court said: “A writ of error coram nobis is an excessively rare remedy, more known for its denial than its approval.” 282 Ark. at 573. Undoubtedly, the writ has been allowed while the appeal was pending because of the rule that “[o]nce a conviction has been affirmed on appeal, error coram nobis is not available to secure a new trial on the basis of newly discovered evidence . . . .” Williams v. Langston, 285 Ark. 444, 688 S.W.2d 285 (1985); see also Edgemon v. State, 292 Ark. 465, 730 S.W.2d 898 (1987).
The rule, however, is different in civil cases. Ark. Stat. Ann. § 27-1906 (1947) allowed a motion for new trial to be heard in a civil case where the grounds were discovered after the term at which the verdict was rendered, provided the petition was filed not later than the second term after the discovery; however, the application for new trial could not be made more than three years after final judgment was rendered. Ark. Stat. Ann. § 29-506 (1947) provided that judgments could be vacated after the expiration of the term in which they were entered for several reasons, one of which was to grant a new trial for the cause and in the manner prescribed in Ark. Stat. Ann. § 27-1906.
Under the above statutes, judgments could be set aside and motions for a new trial allowed even though the judgment set aside had been affirmed by the appellate court. See Foohs v. Bilby, 95 Ark. 302, 129 S.W. 1104 (1910) (new trial sought on grounds of unavoidable casualty which prevented the appellant from appearing for trial, under Kirby’s Digest § 4431, subsequently compiled as Ark. Stat. Ann. § 29-506 (1947)). Cooper v. Vaughan, 107 Ark. 498, 155 S.W. 912 (1913) (new trial sought on grounds of newly discovered evidence under Kirby’s Digest § 6220, subsequently compiled as Ark. Stat. Ann. § 27-1906 (1947)). Clark v. Bowen, 186 Ark. 931, 56 S.W.2d 1032 (1933) (new trial sought on grounds of newly discovered evidence under Crawford & Moses’ Digest § 6290 (Ark. Stat. Ann. § 29-506) and prosecuted under Crawford & Moses’ Digest § 1316 (Ark. Stat. Ann. § 27-1906)).
Rule 60(c) of the Arkansas Rules of Civil Procedure now allows judgments to be set aside and new trials granted for the same reasons as could previously be done under Ark. Stat. Ann. §§ 27-1906 and 29-506. See Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987). Davis allowed the trial court to modify a judgment, after it had been affirmed on appeal, for fraud. This was allowed under the authority of Ark. R. Civ. P. 60(c)(4). Rule 60(c) contains essentially the same provisions of former Ark. Stat. Ann. §§ 27-1906 and 29-506. Davis stated that Ark. R. Civ. P. 60 was intended to substantially retain existing Arkansas law, cited Foohs v. Bilby, supra, and specifically stated the lower court had the power to modify the judgment even though it had been affirmed on appeal.
It is, therefore, clear that under the provisions of Ark. R. Civ. P. 60 a trial court in Arkansas may modify or set aside its judgment, or vacate its judgment to allow a new trial, even though the judgment has been affirmed on appeal. This view is not unique to Arkansas although it is not unanimous. See Benner v. Krieger’s Cleaners & Dyers, 38 Ohio App. 7, 175 N.E. 867 (1929), aff'd. 123 Ohio St. 482, 175 N.E. 857 (1931); 58 Am. Jur. 2d New Trial §§ 4-5 (1971); Annot. 139 A.L.R. 340.
Therefore, we hold that the motion to remand in the instant case should be denied. The briefs have all been filed and the case is ready for decision. If the appellant loses, he has his motion for new trial pending, and the trial court can then rule on it. If the trial court agrees as to the merits, the judgment can be set aside and a new trial granted even though we have affirmed this case on appeal. On the other hand, to suspend our decision while the trial court is considering whether or not to grant a new trial will, of course, prolong the disposition of the case on appeal. If we allow this, all appellants could appeal their cases, put them on hold while they keep filing motions in the trial court attempting to get a new trial, and if those efforts are all eventually unsuccessful, they can finally come back to the appellate court and ask that their case on appeal be decided. This would simply circumvent the appellate time periods.
Motion denied. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with rape. After a jury trial, he was convicted of that offense and sentenced to thirty years in the Arkansas Department of Correction. From that conviction, comes this appeal.
For reversal, the appellant contends that the trial court erred in failing to dismiss the charge on the basis that there was no probable cause to support his arrest; in denying his motion in limine; in denying his motion to quash statements relating to a polygraph examination; in permitting the prosecutrix to remain in the courtroom after she testified on behalf of the State; and in refusing to give a jury instruction proffered by the appellant concerning a stipulation that evidence of a polygraph examination would be admissible at trial. In addition, the appellant contends that there was insufficient evidence to support his conviction. We affirm.
Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we first address the appellant’s contention that there was insufficient evidence to support his conviction. Under Ark. Code Ann. § 5-14-103(a)(l) (1987), a person commits rape if, by forcible compulsion, he engages in sexual intercourse with another person. In determining the sufficiency of the evidence to support a conviction, we review the evidence in the light most favorable to the appellee and affirm if the verdict is supported by substantial evidence. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must induce the mind to go beyond mere suspicion or conjecture. Harris, supra; Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). In rape cases, it has been consistently held that the victim’s testimony is sufficient to satisfy the requirement of substantial evidence. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).
Viewed in the light most favorable to the appellee, the evidence shows that, on January 21, 1986, the victim was awakened in her home by a man wearing a ski mask. The man threatened to kill her if she did not give him money. After she gave him five dollars, the man demanded food stamps, which she also gave him. He then inquired about the whereabouts of her husband, and ordered her to go into the back bedroom and remove her clothes. The victim testified that, although she told him she just had a baby and was still bleeding, the man cursed her and required her to insert his penis into herself. After he ejaculated, he told her to “wash that stuff out” of her. When she went to the bathroom to do so, she was allowed to turn on the light, and saw that her attacker was wearing white tennis shoes and a black glove with gray stripes across the knuckles. Before leaving, the man told her that he “had done that to teach [her] husband a lesson to stay home,” and because her husband “had been messing around with his old lady.”
The victim testified that the appellant was an acquaintance of her husband, that the appellant had previously come to their home to visit her husband, and that she knew the appellant’s voice quite well. She stated that she recognized the rapist’s voice as that of the appellant, and positively identified the appellant as the man who raped her.
The appellant asserts that the victim’s testimony was insufficient to support his conviction. He argues that she was upset and nervous when she reported the rape; that the examining physician reported that she said that the rapist’s voice was “somewhat familiar,” and that this statement is inconsistent with her later positive identification of the appellant to the police and at trial; and that her identification should be discounted because her testimony that she did not like her husband to associate with the appellant shows that she has a propensity for misstatement about the appellant. We find no merit in these contentions. Any inconsistenpies which may have been present in the testimony were for the jury to resolve. Cope v. State, 293 Ark. 524, 739 S.W.2d 533 (1987). No corroboration of a rape victim’s testimony is required, id., and we hold that the testimony of the victim in this case is substantial evidence to sustain the appellant’s conviction. See Lewis v. State, supra. Moreover, additional evidence was presented by the State: the physician testified that he examined the victim on the morning of January 21,1986, and found sperm in her vagina. A ski mask was found in the Woodworth residence, where the appellant had stayed at the time the rape was committed, as well as a glove, identified by the victim as identical to the glove worn by the rapist. Bill Woodworth testified that he saw a book of food stamps in the appellant’s pocket on the morning of January 21,1986. Bradford Woodworth also testified that he saw the appellant with food stamps on that day, and that the appellant told him that he “had been with a woman the night before, and it was bloody, but he got it anyway.” Cecil Woodworth testified that at 7:00 or 8:00 on the morning of January 21,1986, he accompanied his father, his uncle, and the appellant to Anthony Murray’s house. Upon arriving, he saw that Deputy Fielder was there. Without explaining why, the appellant told them to keep on going. They did not stop at Murray’s house at that time, but returned there at the appellant’s instance after the deputy had left. The appellant entered the Murray residence wearing white tennis shoes; while inside, he changed shoes and returned wearing boots. They then set out for Marvell, but before arriving there they stopped by the side of the road, where the appellant changed clothes. They continued to Marvell, where the appellant got out and went into the police station. Finally there was evidence that the appellant submitted to a polygraph test administered by John Howell. Mr. Howell stated his opinion that the test results showed that the appellant lied when he said that he did not know how much money was taken from the victim, and when he said that he did not force her to have sex. Thus, although no corroboration of the victim’s testimony is required, it was, in fact, amply corroborated by other evidence that a rape occurred and that the appellant was the rapist.
We next address the appellant’s contention that the trial court erred in denying his motion to dismiss on the ground that his arrest was illegal. The essence of the appellant’s argument is that there was no reasonable cause to arrest him, that the arrest was therefore illegal, that an illegal arrest is grounds for dismissal, and that the trial court erred in denying his motion to dismiss based on the assertedly illegal arrest. We need not determine the legality of the arrest to address this contention, because it is well settled that an illegal arrest is no bar to prosecution:
The appellant cannot challenge his own presence at trial or claim immunity to prosecution simply because his appear- anee was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or a defense to a valid conviction.
Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987), citing United States v. Crews, 445 U.S. 463 (1980). We hold that the trial court did not err in denying the appellant’s motion to dismiss.
Next, the appellant contends that the trial court erred in denying his motion in limine, by which he sought to exclude the introduction of any of his prior convictions. He argues that his November 3,1975, convictions on two counts of burglary were erroneously admitted under Ark. R. Evid. 404 and 609. We disagree. Because evidence which might not be admissible under Rule 404(b) could be admissible under Rule 609 for the purpose of attacking the credibility of a witness, Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982), our analysis is based on Rule 609, which provides that:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness . . .
Ark. R. Evid. 609(a)(1). Rule 609(b) provides that evidence of a conviction is inadmissible if over ten years has elapsed between the date of the conviction or the release of the witness from confinement, whichever is later. The appellant was convicted of two counts of burglary on November. 3, 1975; released from confinement by parole on October 13,1977; and trial on the rape charge which is the subject of this appeal was held on September 22, 1987. Because the trial was held within ten years of the appellant’s release from confinement resulting from the burglary convictions, evidence of those convictions was not barred under Rule 609(b). With respect to balancing of probative value and prejudicial effect under Rule 609(a)(1), the trial couft should consider (1) the impeachment value of the prior crime; (2) the date of the prior conviction and the witness’s subsequent history; (3) the similarity between the prior conviction and the crime charged; (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue. Bell v. State, 6 Ark. App. 388, 644 S.W.2d 601 (1982). As was the case in Bell, the testimony of the appellant in the case at bar would have been in direct conflict with that of the State’s principal witness, the victim. Moreover, the prior conviction is similar to the crime charged in that both involve elements of unlawful entry. Finally, it is clear that the case turned on the credibility of the appellant and the victim. The appellant suggests in his brief that the victim’s testimony that she did not like for her husband to associate with the appellant indicates that she was inclined to make misstatements concerning the appellant. Given the centrality of the credibility issue and the potential for the appellant to attack the victim’s credibility on the basis of her emotional distress at the time she identified the appellant and her asserted dislike for the appellant, we find no unfair prejudice resulting from the denial of the motion in limine, and hold that the trial judge did not abuse his discretion in determining that the probative value of the prior conviction outweighed its prejudicial effect.
The appellant next contends that the trial court erred in denying his motion to quash statements pertaining to a polygraph examination. The record shows that the appellant executed a written stipulation that the results of a polygraph examination of the appellant would be admissible at trial, and that such an examination was performed on January 22,1986. The examination was administered by John Howell, who testified that the polygraph results indicated the appellant lied when he stated he was not in the victim’s house on the morning the rape occurred, and that he did not force the victim to have sex with him.
In his motion, the appellant asserted that his arrest was illegal and that his statements should be suppressed as the fruit of the assertedly illegal arrest. At the suppression hearing, the appellant argued that the polygraph examination was “suspect to scientific evaluation” and its results were “useless and worthless in any proceeding.” On appeal, the appellant argues that the written stipulation was invalid because (1) it was not dated; (2) there was evidence that the polygraph examination was given prior to the written stipulation; and (3) he was not represented by counsel at the time the stipulation agreement was executed. We do not reach these arguments because they were not raised in the trial court. An argument for reversal will not be considered in absence of a clear and timely objection, and the grounds for objection cannot be changed on appeal. See Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987); Halfacre v. State, 290 Ark. 312, 718 S.W.2d 945 (1986); Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984); Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983). Neither do we reach the appellant’s contention that polygraph examinations are unscientific and unworthy of consideration. No evidence was presented to attack the scientific basis for or accuracy and reliability of polygraph examinations, and the appellant’s argument is advanced as a bare assertion without reference to supporting evidence or citation of authority. An assignment of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that it is well taken. Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985).
The appellant’s next contention is that the trial court erred in allowing the victim to remain in the courtroom after testifying for the State. The record shows that Ark. R. Evid. 615, providing for exclusion of witnesses at the request of a party, was invoked by the appellant at trial, and that the victim was the third witness called by the State. Following her testimony, the State requested that the victim be allowed to remain in the courtroom for the remainder of the trial. Over the appellant’s objection, the trial judge ruled that she was entitled to remain in the courtroom under Ark. R. Evid. 616. The State called five more witnesses and rested. The victim was later called by the appellant to testify as the eighth witness for the defense.
The appellant argues that the victim waived her right to be present in the courtroom by failing to invoke Rule 616, either at the suppression hearing or at trial, when Rule 615 was invoked by the appellant. We find no merit in this theory of waiver, which is advanced without citation to authority. Rule 615 provides that the court shall order witnesses excluded at the request of a party. If a party requests the rule, it must be granted: the trial judge has no discretion. See Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). In contrast, Rule 616 requires no request, but provides that, notwithstanding any provision to the contrary, the victim of a crime has the right to be present at any hearing, deposition, or trial of the offense. Rule 616 allows the victim to be present notwithstanding the witness-exclusion provisions of Rule 615, and Rule 616 purports to leave no discretion to the trial court. Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986). The plain language of Rule 615 requires that the Rule be invoked by a request to exclude the witnesses, and it is equally clear that Rule 616 requires no such request. Because no request to remain in the courtroom is required by Rule 616, we hold that the victim did not waive her right to be present at the proceeding by failing to make such a request.
The appellant’s final contention is that the trial court erred in refusing to give his proffered jury instruction concerning the admissibility of the polygraph examination. To briefly recount the facts pertinent to this assignment of error, the record shows that the stipulation agreement was undated, and that the testimony was in conflict as to whether the appellant signed the stipulation before or after the polygraph examination was administered. The appellant’s proffered instruction required the jury to make a finding concerning the date on which the stipulation was signed, and instructed the jury to disregard exhibits and testimony relating to the results of the examination if the stipulation was found to have been signed after the polygraph was administered. The results of polygraph examinations are inadmissible in the absence of a stipulation as to their admissibility executed before the polygraph examination is administered. State v. Bullock, 262 Ark. 394, 557 S.W.2d 193 (1977). The issue of whether the stipulation agreement was entered into before or after the polygraph examination was administered was thus a preliminary question concerning admissibility; such questions are for the trial court to determine. McKim v. State, 25 Ark. App. 176, 753 S.W.2d 295 (1988). The appellant’s proffered instruction, which would have effectively left the issue to the jury, was therefore incorrect, and we hold that the trial court did not err in refusing to give it.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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Judith Rogers, Judge.
This case involves a parcel of real property which is situated in both Boone and Marion Counties. Appellee, Commerce Bank of St. Louis, N.A., trustee of the Guy N. Magness Residuary Trust, obtained partial summary judgments giving it immediate possession of the real property in ejectment and unlawful detainer actions filed in both counties against appellant, William Grady Magness (Guy Magness’ brother). The cases have been consolidated for purposes of appeal. We agree with the circuit judge that no genuine issue of material fact remained for trial with regard to the issue of possession and affirm.
On July 19, 1985, the circuit judge for Marion and Boone Counties partitioned three tracts of land, one of which is involved in the present litigation. Those actions were consolidated, and appellee’s predecessor, Ella Mae Magness, ancillary executrix for the estate of Guy N. Magness, deceased, and individually, was the plaintiff; appellant and his wife, Ruth Magness (now deceased), were the defendants. The parties to that suit owned the tracts of real property as tenants in common. On February 15, 1985, five months before the entry of the partition order, appellant informed Commerce Bank of St. Louis County (to which appellee is the successor in interest and which acted as trustee under the last will and testament of Guy Magness) that he had an agreement with his deceased brother, Guy Magness, that he could use the land involved herein without paying rent if he paid the taxes thereon. Commerce Bank of St. Louis County responded to that letter on February 20,1985, and acknowledged that appellant’s understanding of the agreement regarding the property was “consistent with'the explanation given. . .by Mrs. Magness.”
In the partition order entered in July 1985, the parcels of property were partitioned in kind, and the parties were ordered to exchange quitclaim deeds conveying their interests in the parcels of land within ten days from the date of the order. The partition order did not recognize nor award appellant any leasehold interest in the property involved in this action. Although the partition order required appellant and his wife to grant the property involved in this litigation to Ella Mae Magness, they refused to do so, and the circuit clerk issued a deed fulfilling their obligation. The clerk’s deed, dated August 7,1985, was issued to Commerce Bank of St. Louis County (appellee’s predecessor) as trustee under the last will and testament of Guy Magness; the record contains little explanation of the reason why the clerk’s deed was issued to Commerce Bank of St. Louis County, rather than to Ella Mae Magness. However, the record does reflect in a February 1985 letter from Commerce Bank of St. Louis County to appellant that Guy Magness’ interest in the property had passed into his trust administered by that bank.
The record does not contain a copy of the order approving the clerk’s deed. The record also contains no evidence that appellant appealed from the order confirming the clerk’s deed, which was the proper order from which to file an appeal in the partition action. Bell v. Wilson, 298 Ark. 415, 418, 768 S.W.2d 23, 24-25 (1989). (A decree ordering partition is not a final order from which an appeal may be taken.)
In November 1985, Commerce Bank of St. Louis County sent the following letter to appellant:
As a follow-up to my letter of November 6,1 again wanted to inquire as to whether you have any interest in buying the trust’s share of the two pieces of real estate in Arkansas. Before proceeding with the listing of the two pieces of property with a local real estate broker, we did want to give you the first opportunity to consider purchase of the same. If we do not hear from you, we will proceed with the appropriate listing. During that period of time while these properties may be listed for sale, you are welcome to continue to use the properties as in the past, your consideration to us being the payment of our real estate taxes. It should be understood however that no lease is involved and that should the property be sold, use of the property would immediately pass to the new purchaser. In other words, in exchange for your paying our taxes, you will continue to have the use of the both properties, only until such time as the property is sold. At that time, the new owner would have complete use of the property from the date of his purchase forward.
Please do advise as to what interest if any you have in both of our properties.
In January 1986, Commerce Bank of St. Louis County, as trustee under the last will and testament of Guy Magness, deceased, successfully quieted title to the real property; appellant, however, was not a party to that action. On September 25,1991, appellee sent notice to appellant that it had entered into a contract to sell the real property and demanded that he vacate it within thirty days. Appellant refused to do so.
In January 1992, appellee filed complaints in Marion and Boone Counties seeking possession of the property and damages for unlawful detainer. Appellee attached to the complaint copies of the 1985 partition order, the clerk’s deed, the quiet title order, the November 1985 letter from Commerce Bank of St. Louis County to appellant, and appellee’s September 1991, notice to appellant that he vacate the premises within thirty days. In his answer, appellant asserted that he had a lease agreement with his deceased brother whereby he could possess the premises for the duration of his life if he maintained the land and paid the real estate taxes thereon.
Appellee then moved for partial judgment on the issue of the right to possess the property and reserved the issue of damages for a trial. In its motion, appellee stated that appellant had failed to appeal from the decision in the partition suit and argued that the issue of possession was, therefore, precluded by the doctrine of res judicata from being subsequently litigated. Appellee also argued that appellant’s assertion of a lifetime interest in the real property in an oral agreement with Guy Magness, who died prior to the partition action, violated the status of frauds.
In response to appellee’s motion for partial summary judgment, appellant asserted that a material question of fact remained as to his purported leasehold interest in the property and filed copies of three letters. The first letter was from appellee’s predecessor, Commerce Bank of St. Louis County, to appellant and was dated February 6, 1985. It stated:
As you will recall, Dr. Magness’s 1/2 interest in the Arkansas properties, has passed into his trust administered by this bank. Specifically, I refer to the 396 acre farm that overlaps between Marion County and Boone County as well as the 4 acre piece there in Boone County, there by Bull Shoals Lake. It is my understanding from Mrs. Magness that you have paid all of the taxes on these two properties, and this was confirmed through calls to the tax collectors at both Marion County and Boone County. To complete our records, I would be obliged if you would forward copies of the paid tax receipts. If this is inconvenient, you could forward the originals in the envelopes provided, and I in turn would make copies returning the originals to you.
From my conversations with Mrs. Magness, it is my understanding that historically, payment of the taxes on these properties has been incurred in full by you in exchange for the complete use of the parcels without rent. If this is not the case or if you have some other understanding as to an agreement with Dr. Magness as it applies to the burden of the payment of taxes, please do advise me.
The second letter attached by appellant to his response to the motion for partial summary judgment was from appellant to Commerce Bank of St. Louis County and dated February 15, 1985. In that letter, appellant stated:
There was an agreement between me and my brother, Dr. Guy N. Magness, that I could use the land without rent as long as I wished if I kept the taxes paid.
You may or may not know that there is no record of deeds from my Grandfather for the 40 acres or 2 acres in Boone County.
The 4 acres you mention, includes the 2 acres, is really less than 3 acres, however, I am paying taxes for 3 acres.
The third letter was dated February 20,1985, and was from Commerce Bank of St. Louis County to appellant. It stated: “Thank you for your letter reply of February 15, as to your understanding of the agreement for use of the various properties and arrangements for payment of taxes. This is consistent with the explanation given to me by Mrs. Magness.”
The circuit judge granted partial summary judgments to appellee on the grounds that the lifetime leasehold interest asserted by appellant was barred by the statute of frauds and that appellant was collaterally estopped from asserting this interest. The circuit courts stated: “Even if the [appellant] has held a valid leasehold interest in the subject real property, said leasehold interest was terminated by the Clerk’s Deed conveying the subject property. . . on or about August 7,1985.” A hearing was later held on the issue of damages, and the circuit judge entered judgments for appellee in the amount of $2,381.92, with damages of $225.00 to accrue each month until appellant surrendered possession of the property.
Appellant asserts that the circuit judge erred in granting the partial summary judgments because the series of letters filed by appellant in response to appellee’s motion revealed a question of material fact for trial. 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. Watts v. Life Ins. Co. of Ark., 30 Ark. App. 39, 41, 782 S.W.2d 47, 48 (1990). Once the moving party makes a prima facie showing of entitlement to summary judgment, the party opposing summary judgment must meet proof with proof by showing a genuine issue as to a material fact. Hughes W. World, Inc. v. Westmoor Mfg. Co. 269 Ark. 300, 301, 601 S.W.2d 826, 827 (1980).
Under the claim preclusion aspect of the doctrine of res judicata, 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 or cause of action. Daley v. City of Little Rock, 36 Ark. App. 80, 82, 818 S.W.2d 259, 260 (1991). Res judicata bars not only the re-litigation of claims which were actually litigated in the first suit but also those which could have been litigated. Id. Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Swofford v. Swofford, 295 Ark. 433, 435, 748 S.W.2d 660, 662 (1988). The doctrine of res judicata applies only when the party against whom the earlier decision is being asserted had a fair and full opportunity to litigate the issue in question. Cater v. Cater, 311 Ark. 627, 632, 846 S.W.2d 173, 176 (1993).
Arkansas Code Annotated § 18-60-401 (1987) provides for the filing of a complaint for the partition of land by any person having “any interest in, and desiring a division of, land held ... in common . . . .” This statute also states that “all persons interested in the property” who have not united in the petition shall be summoned to appear. It is clear, from the letters offered by appellant in response to appellee’s motion for summary judgment, that appellant was asserting a lifetime leasehold interest granted to him by his deceased brother several months before the property was partitioned. The partition order, however, did not recognize such an interest on the part of appellant, and the clerk’s deed conveyed all of appellant’s interest in the property to Commerce Bank of St. Louis County. In the deed, the circuit clerk expressly stated that she conveyed to Commerce Bank of St. Louis County “all of the right, title, interest, equity and estate of any and all parties to [that] action” in the described real property. Appellant was one of those parties, and all of his interest in the property, including the right of possession, was therefore conveyed by that deed. When appellant failed to appeal from the order confirming the deed, it became final and protected by the doctrine of res judicata. Gideon v. Gideon, 268 Ark. 873, 875-76, 596 S.W.2d 367, 368 (Ark. App. 1980). See also Robertson v. Cunningham, 207 Ark. 76, 80, 178 S.W.2d 1014, 1016 (1944).
Further, the issue of possession was necessarily involved in the previous action for partition: “To entitle one to have partition of lands, he must not only have title but have possession, either actual or constructive, of the land which he asks to have partitioned.” D.R. Varn, Supplement to Jones’ Arkansas Titles § 1354 (1959). Here, the parties in the 1985 partition suit held the property as tenants in common. One of the characteristics of a tenancy in common is that each tenant has the right to occupy the premises, and neither tenant can lawfully exclude the other. Graham v. Inlow, 302 Ark. 414, 419, 790 S.W.2d 428, 431 (1990). A decree of partition has no other effect than to sever the unity of possession; it does not vest in either of the cotenants a new or different title. Brown v. Smith, 240 Ark. 1042, 1048, 405 S.W.2d 249, 252 (1966). See also D.R. Varn, Supplement to Jones’ Arkansas Titles § 1361.
We therefore agree with the circuit judge that appellant’s assertion of a lifetime leasehold interest in the property in question could have been litigated in the previous partition action to which appellant was a party. Accordingly, the doctrine of res judicata bars appellant’s assertion of such an interest in the present action. Because we affirm the circuit judge on the issue of res judicata, we need not address the question of whether appellant raised an issue of fact regarding the statute of frauds.
Affirmed.
Pittman and Mayfield, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Craighead County Circuit Court. Appellant, Sylvester Williams, appeals his conviction of theft by receiving, and the fine imposed therefor. We affirm.
A felony information was filed February 13,1987, charging appellant with theft by receiving, a violation of Arkansas Code Annotated § 5-36-106 (1987) (formerly Ark. Stat. Ann. § 41- 2206 (Repl. 1977)). The information alleged that appellant did unlawfully receive numerous articles of jewelry and a pair of binoculars having a value in excess of $2,500.00 having good reason to believe that the property was stolen. Appellant was tried by a jury on October 30, 1987, and found guilty as charged. A sentence in the form of a $10,000.00 fine was imposed. From the judgment of conviction comes this appeal.
For reversal, appellant raises two points: (1) The trial court erred in its ruling against the defendant’s motion to suppress evidence since the search and seizure violated the defendant’s rights protected by the fourth and fourteenth amendments to the United States Constitution and article two, section fifteen of the Arkansas Constitution; and (2) there was insufficient evidence to support the jury’s verdict.
Where the sufficiency of the evidence is challenged on appeal of a criminal conviction, the appellate court must review the sufficiency of the evidence prior to consideration of trial errors. McCraw v. State, 24 Ark. App. 48, 748 S.W.2d 36 (1988). However, the defendant must raise the issue of sufficiency of the evidence to the trial court. Appellant failed to move for a directed verdict either at the close of the State’s case in chief or at the close of all evidence. It is well settled that an appellate court will not consider errors raised for the first time on appeal, with certain exceptions not applicable here. See, Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988). Although we are not required to consider the sufficiency issue, we have reviewed the abstract of the testimony and cannot conclude that the evidence was insufficient to sustain the jury verdict.
Appellant also argues that the trial court erred in denying his motion to suppress evidence allegedly obtained through an unlawful search and seizure.
The record of the hearing on the motion to suppress reflects that on the evening of February 12, 1987, the Jonesboro City Police received a phone call from Tom Fleming. The investigating officer, Rusty Grixby, testified that Mr. and Mrs. Fleming reported seeing “a Ranchero, different colors, loud exhaust, that had trash bags in back of it,” on Vine Street. They reported that at least two black males were in the vehicle and that one of the males got out when the vehicle turned onto Poplar. They described the male to the police including his clothing and testified that they saw him again on the east side of the house at 824 Vine carrying a laundry basket that had items in it which looked suspicious to them. Officer Grixby radioed the police dispatcher and advised him to be on the lookout for the vehicle described.
Officer Ansel Gines testified that he received a call from the dispatcher to be on the lookout for a 1966 red and white Ford Ranchero that was supposed to be occupied by three black males. Officer Gines testified that he was told the occupants were possible suspects for burglaries in the area of Vine and Poplar Streets. The record reflects that Officer Gines encountered a vehicle of that description with three black males inside and began following it. The driver of the red and white Ranchero pulled into the driveway of a vacant house and stopped of his own accord. Officer Gines pulled in behind the vehicle and stopped. The driver of the Ranchero exited his vehicle and walked back toward the patrol car. Officer Gines told the driver, appellant herein, to return to his vehicle and he did so. Officer Gines testified that he returned to his vehicle to radio in his position and while doing so, the two passengers in the vehicle exited and fled on foot. Appellant remained in the vehicle. Officer Gines then approached the Ranchero and using a flashlight, looked into the bed of the vehicle where he saw an open binocular case with two gold watches and other jewelry beneath the binoculars. Officer Gines asked appellant if the items belonged to him and appellant did not answer. He then placed appellant in his patrol car and went back to the Ranchero for another look. Officer Gines testified that he never touched anything and that the items were eventually seized by another officer who arrived on the scene.
Appellant contends that the actions by the officers constituted an unlawful search and seizure. It is well established that warrantless searches of automobiles may be reasonable when, under the same circumstances, a search of a home, place of business or other structure would not be because of the mobility of the automobile and the diminished expectation of privacy in an automobile. Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). Whenever a police officer has reasonable cause to believe that contraband is being unlawfully transported in a vehicle, that vehicle may be the object of a warrantless search, but the right to search and the validity of the search are dependent upon the reasonableness of the cause the searching officer has for believing that the contents of the automobile offend against the law. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978).
Although appellant puts much emphasis on the fact that the communications to Gines through the dispatcher were not sufficient' to establish probable cause on which to stop appellant, we need not reach that issue since appellant voluntarily stopped his vehicle. Appellant testified that he voluntarily stopped his vehicle to find out why the officer was following him, despite the fact that the officer never turned on his blue lights or siren.
It is also argued that requiring appellant to return to his vehicle was violative of his rights. There is no requirement that an officer have probable cause to inquire of a person who voluntarily encounters the officer. Furthermore, Ark. R. Crim. P. 2.2(a) states: A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request. Thus, the issue before us is whether the officer had probable cause to search the voluntarily stopped vehicle.
We have said that although a stop for a traffic violation may not justify a vehicle search, other circumstances surrounding the stopping, together with facts becoming apparent to the officer after the stop has been made may afford probable cause to believe the vehicle contains contraband. Perez v. State, 260 Ark. 438, 541 S.W.2d 915 (1976). In such cases, given exigent circumstances, the right to search and the validity of the consequent seizure depend on the reasonableness of the cause the seizing officer has for believing that the contents of the automobile offend against the law. Id. The question is whether the facts available to the officer at the moment of the search would warrant a man of reasonable caution to believe that the action taken was appropriate. Id.
The facts becoming apparent to Officer Gines after the vehicle had voluntarily stopped provide probable cause for the search in the case at bar. As previously stated, while attempting to reach his dispatcher on his radio, the two passengers in the vehicle with appellant fled the scene. Flight from the scene to avoid arrest has long been held evidence of felonious intent. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). See also, White v. State, 271 Ark. 692, 610 S.W.2d 266 (1981). Furthermore, probable cause is evaluated by the courts on collective information of the police, and not merely on the personal knowledge of the officer making the decision. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978). The conduct of the passengers, considered in light of the collective information of the police, including the officer who arrived on the scene prior to the seizure, was sufficient to warrant a prudent police officer in the exercise of common sense to arrive at the honest judgment that an offense had been or was being committed.
The search was valid if it was not reasonable to obtain a search warrant. Jackson v. State, 266 Ark. 754, 585 S.W.2d 367 (1979), cert. denied, 444 U.S. 1017 (1980). The circumstances of the case, coupled with the fact that it occurred late at night made it impractical to obtain a warrant. Since we find the warrantless search to be reasonable, the judgment is affirmed.
Affirmed.
Cooper and Jennings, JJ., concur.
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John E. Jennings, Judge.
Billy Disheroon had worked for Tyson Foods, Inc., since 1974 in the maintenance and rendering departments. In 1986 he filed a workers’ compensation claim contending that he had suffered a herniated disc as a result of an on-the-job injury which occurred in January of 1986. The administrative law judge held that Disheroon had not met his burden of proving that he suffered an on-the-job injury and denied the claim. On appeal, the full Commission found that Disheroon had suffered an on-the-job injury in January of 1986 which caused the herniated disc. The sole argument on appeal is that this finding by the Commission is not supported by substantial evidence. We affirm.
When a decision of the Workers’ Compensation Commission is appealed to this court we give no weight to the findings and conclusions of the administrative law judge. Oller v. Champion Parts Rebuilders, Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982). While this may seem anomalous, it remains the law in this state and is the view of a majority of courts. See Webb v. Workers’ Compensation Commission, 292 Ark. 349, 730 S.W.2d 222 (1987) (Newbern, J., concurring). In workers’ compensation cases, the Commission functions as the trier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988). The credibility of witnesses and any conflict and inconsistency in the evidence is for the Commission, as the trier of fact, to resolve. Warwick Electronics, Inc. v. Devazier, 253 Ark. 1100, 490 S.W.2d 792 (1973). The Commission has the right to believe or disbelieve the testimony of any witness. Green v. Jacuzzi Brothers, 269 Ark. 733, 600 S.W.2d 448 (Ark. App. 1980). On appeal to this court, when the issue is whether the Commission’s findings are supported by substantial evidence, we must view the evidence in the light most favorable to those findings and give the testimony its strongest probative force in favor of the Commission’s action. Blevins, supra. The Commission’s decision is entitled to the weight we give a jury verdict. Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988). Substantial evidence is more than a scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 752 S.W.2d 766 (1988). There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972).
In the case at bar, Disheroon testified that he hurt his back in January of 1986 while digging a trench to bury a drain pipe in frozen ground. He testified that he told his supervisor, Jim O’Gorek, that he got the drain in but “broke his back.” He said that when he came to work the next day his back was hurting but that he continued to work for about 10 more days. On January 30 he was unable to get out of bed and called a co-worker, George Harrison, and told him so. He went to see his doctor, Charles Beard, on that day.
Disheroon testified that he had had intermittent back pain for about two years before 1986, but that his back was not bothering him at all during the month of January 1986, until he worked in the ditch. He said he did not tell Dr. Beard anything about working in the ditch when he first saw him. He said he filed a workers’ compensation claim because his group health insurance benefits were about to run out. Disheroon never returned to work after January 30, 1986.
The claimant’s wife, Edna Disheroon, said that during the latter part of January, Disheroon’s back was hurting and that he told her he had “dug a ditch drain.” She denied having stated in an insurance claim form that her husband’s injury was not work-related but admitted putting a question mark in a box beside that question on another form. She denied having told Cheryl Masters, the plant nurse, that Disheroon hurt his back at home.
Cheryl Masters, the plant nurse, testified that Mrs. Disher-oon did in fact tell her that the claimant had hurt his back at home. Disheroon’s supervisor, Jim O’Gorek, testified that Disheroon did not tell him he hurt his back digging a ditch. He did testify, however, that Disheroon dug a 10 foot trench with a pick and shovel in frozen ground and that he observed Disheroon having difficulty moving both before and after he dug the trench. He also said that the claimant was a hard worker who “shrugged off’ pain.
George Harrison, a co-worker, testified that when Disheroon first told him his back was hurting he did not say how he hurt it. Harrison testified that the claimant told him about hurting his back in the ditch after his back surgery.
Vance Mason, another co-worker, testified that he was with Disheroon in January of 1986 and that after he dug the ditch his back was hurting him. Two other co-workers, Edward Roberts and Tom Prince, testified that Disheroon told them he had hurt his back digging a ditch.
Tom McElroy, the plant manager for Tyson Foods, testified that about three or four days after the drain was installed, Disheroon told him that he was “sore from working with the sludge operation.”
The claimant’s doctor, Charles Beard, reported on January 30,1986, that he saw Disheroon who reported a one-week history of back pain. The report said the pain began “insidiously” and that there was no history of trauma or falling. It was only after Disheroon was found to have a herniated disc that Dr. Beard elicited a history including the ditch digging episode.
Certainly Dr. Beard’s report showing that the claimant did not initially tell him about the ditch digging incident, O’Gorek’s contradiction of the claimant’s testimony, and Ms. Masters testimony that Edna Disheroon had said her husband hurt his back at home, all would support a finding contrary to that which the Commission made. We have said, however, that the question for us is not whether the evidence would have supported findings contrary to the ones made by the Commission, but whether the evidence supports the findings made. Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988). In Nationwide Warehouse Market v. Whisenant, 249 Ark. 604, 460 S.W.2d 90 (1970), the court said:
Appellee produced no eyewitnesses to corroborate the occurrence; he testified that he was working alone in a back room of the warehouse. There was testimony adduced by appellant to sustain its contentions (1) that appellee had said he injured himself while playing with his children; (2) that appellee attempted to influence some witnesses to testify in his behalf; and (3) that the incident was not reported to the appellant at the time of the occurrence. On those conflicting issues it is apparent that the commission accepted appellee’s evidence and rejected the evidence which was in conflict therewith. What we said in Kivett v. Redmond Company, 234 Ark. 855, 355 S.W.2d 172 (1962), is equally applicable here: “The question is ultimately a simple one of credibility, a matter lying within the exclusive province of the commission. . . . We are bound by the commission’s findings upon the disputed question of fact.”
249 Ark. at 606.
We reach the same conclusion here.
Affirmed.
Corbin, C.J., and Coulson, J., agree. | [
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Melvin Mayfield, Judge.
The appellant, Stewart De-weese, appeals from a conviction of driving while intoxicated, third offense. He contends the charge should have been dismissed because it was barred by limitations.
It is admitted that appellant was arrested in Marion County, Arkansas, on June 22,1984, by an Arkansas State Police officer. The officer, G.B. Harp, testified he stopped appellant when he observed the vehicle driven by him weaving back and forth “all over the highway.” Officer Harp testified appellant was so obviously intoxicated that he did not try to get him to perform any type of field sobriety test because he was afraid appellant might fall and hurt himself. Appellant was placed under arrest for D WI and taken to the Marion County Sheriffs Office where his blood alcohol content registered 0.24% on a breathalyzer test.
Officer Harp testified that when he arrested the appellant he was “charged” with driving while intoxicated, fourth offense, and driving with a suspended driver’s license, and he was given a ticket requiring an appearance in the Marion County Municipal Court on July 9,1984; however, appellant failed to appear on that date. Harp also testified that he “obtained a bench warrant and an information charging Mr. Deweese with driving while intoxicated, fourth offense.” The record contains a copy of this information. It was subscribed and sworn to by a deputy prosecuting attorney before a deputy circuit clerk on August 6,1984. The record also contains a copy of a bench warrant for the arrest of the appellant issued on the same day by the same deputy clerk. However, for some reason unexplained in the record, the warrant was not executed until March 20, 1987. The return on the warrant shows that appellant was arrested on that date by a deputy sheriff, and the warrant was filed by him with the circuit clerk on March 23, 1987.
This case apparently went to trial before the circuit judge without a jury on October 29,1987, although the formal written judgment signed on December 9, 1987, states the case was tried on November 2, 1987. In either event, at the conclusion of the evidence the judge found the appellant guilty of driving while intoxicated, third offense. While the judge did not specifically state his reason for finding appellant guilty of a third offense rather than a fourth offense, it appears from the record that one of the three prior convictions alleged in the information was not admitted into evidence because the judge sustained appellant’s objection that it did not show the defendant was represented by counsel or waived his right to be represented by counsel. Before the judge announced his guilty finding, the appellant moved that the information be dismissed on the basis that no felony was proven because there was no showing of three previous DWI convictions and because there could be no misdemeanor conviction since the information was not filed within one year of the date of commission.
On appeal to this court, the appellant again argues that his misdemeanor conviction was barred by limitations. The Omnibus DWI Act, Ark. Code Ann. §§ 5-65-101 through 5-65-115 (1987), makes the first three DWI offenses misdemeanors and the fourth and subsequent offenses, occurring within three years of the first offense, felonies. See Ark. Code Ann. §5-65-111. The general period of limitation for prosecution for misdemeanors is one year. Ark. Code Ann. § 5-l-109(b)(3) (1987). The limitation period “starts to run on the day after the offense is committed.” Ark. Code Ann. § 5-l-109(e). Under Ark. Code Ann. § 5-l-109(f),
A prosecution is commenced when an arrest warrant or other process is issued based on an indictment, information, or other charging instrument, provided that such warrant or process is sought to be executed without unreasonable delay.
The above statute was involved in Thompson v. City of Little Rock, 264 Ark. 213, 570 S.W.2d 262 (1978), when the court considered the same statute which was then compiled as Ark. Stat. Ann. § 41-104 (Repl. 1977). The court stated the question presented was whether the issuance of a uniform traffic ticket constitutes commencement of prosecution of the alleged offense so as to toll the running of the one-year statute of limitation applicable to misdemeanor charges. 264 Ark. at 214. After discussion, the answer was stated: “We are, therefore, persuaded that prosecution commences upon the issuance of the citation.” 264 Ark. at 221.
In the instant case, the record does not contain the ticket issued by Officer Harp and we cannot know whether it conformed to the one described in the Thompson v. City of Little Rock case. However, we are convinced that the one-year statute of limitation applicable to misdemeanor charges did not bar the conviction in the instant case because the prosecution was commenced on August 6, 1984, when the arrest warrant was issued, based upon the information filed that same date, and because this occurred well within the period of one year from the date the offense was committed. In Thompson, the court stated it had “concluded that a traffic citation is embraced within the statutory term ‘other charging instrument’ which is required in initiating a prosecution.” 264 Ark. at 221. Surely, there is no reason why the August 6, 1984, information did not constitute a “charging instrument” in the instant case.
It is true that this information was not entered on the circuit court’s docket until March 23,1987, which was three days after the appellant was arrested on the bench warrant. The reason for this was given by the trial judge who said the circuit clerks in his district do not set up a court file until the warrant is served. The only thing in the record indicating why the warrant was not served sooner is that the appellant did not appear in municipal court on the day the ticket given him stated he should appear. This suggests that he was not readily available to the Marion County police officers. It is not important except for the provision of Ark. Code Ann. § 5-l-109(f) that a prosecution is commenced when the warrant is issued if it “is sought to be executed without unreasonable delay.” This point, however, was not raised below and cannot be raised for the first time on appeal. See Allen v. State, 294 Ark. 209, 214, 742 S.W.2d 886 (1988).
We also point out that no obj ection was made to the fact that the information charged a fourth offense DWI and appellant was found guilty of a third offense DWI. Also, the information was filed in the name of the prosecuting attorney, although it was subscribed and sworn to by the deputy prosecuting attorney, but there would be a presumption to that effect anyway and even the failure to file it in the name of the prosecuting attorney would not make it void. See State v. Eason, 200 Ark. 1112, 143 S.W.2d 22 (1940). Finally, we call attention to the case of Beckwith v. State, 238 Ark. 196, 379 S.W.2d 19 (1964), and its holding that a warrant may be issued, based upon an information filed by the prosecuting attorney, without an order of the court — regardless of a provision requiring that the court must order the issuance of the warrant on a grand jury indictment. (A printing error in 238 Ark. at 199 is clarified in 379 S.W.2d at 21.)
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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Judith Rogers, Judge.
Liberty Mutual Insurance Company [hereinafter “Liberty”] appeals from a judgment declaring that it owed appellee, Sexton Foods Company, Inc., an additional $ 16,948.36 for a fire loss under a policy of insurance. For reversal, Liberty contends that appellee is not entitled to any recovery under the loss of earnings endorsement contained in the policy; that the total amount appellee was owed under the contents provision of the policy was $169,332.51; and, that it is entitled to restitution for an overpayment in the amount of $36,653.39. We find sufficient merit in the first point raised such that we reverse and remand for the taking of additional evidence.
Liberty issued a multi-peril policy to appellee covering several grocery stores operated by Charles Sexton. On November 19,1986, a fire destroyed the store located in England, Arkansas. Liberty honored the claim and on December 16, 1986, it paid appellee an advance of $40,000. In July of 1987, Liberty paid appellee an additional sum of $165,985.90. Liberty thereafter filed a complaint in chancery court claiming that it had overpaid appellee because it had failed to take into account the advance payment of $40,000 when it made the July 1987 disbursement. Liberty thus sought restitution for the amount of the alleged overpayment. In response, appellee disputed this allegation and filed a counterclaim in which it contended that the payments it had received were actually less than the amount it was due under the policy.
After a trial, the chancellor found in favor of appellee on its counterclaim. In his letter opinion, the chancellor recognized that Liberty had paid out a total of $202,985.90, as the sum of the advancement and the July 1987 payment. The chancellor found, however, that appellee was owed $172,400 under the contents provision of the policy and an additional $50,534.26 under the loss of earnings endorsement for a total of $222,934.26. The chancellor thus awarded appellee judgment for $16,948.36, representing the difference between the amount that Liberty had paid and what he determined that appellee was entitled to receive under the policy.
As its first issue, Liberty contends that the chancellor erred in allowing appellee to recover under the loss of earnings endorsement. The “Loss of Business Earnings Endorsement” in question provides in pertinent part as follows:
1. Subject to all the provisions applicable to Section 1 of this policy, except the Coinsurance Clause and the Deductible Clause, this policy is extended to insure against loss of earnings resulting directly from necessary interruption of business caused by the perils insured against damaging or destroying, during the policy period, real or personal property (except finished stock) at the premises described in this endorsement, subject to the limit of liability specified above for the premises at which the damage or destruction occurs.
2. The company shall be liable for:
a. The actual loss sustained by the insured resulting directly from necessary interruption of business, but not exceeding the reduction in earnings less charges and expenses which do not necessarily continue during the interruption of business, for only such length of time as would be required with the exercise of due diligence and dispatch to rebuild, repair or replace such part of the property herein described as has been damaged or destroyed, commencing with the date of such damage or destruction and not limited by the date of expiration of this policy. Due consideration shall be given to the continuation of normal charges and expenses, including payroll expense, to the extent necessary to resume operations of the insured with the same quality of service which existed immediately preceding the loss.
5. Definitions:
a. For the purpose of this insurance, “earnings” are defined as net profit, plus payroll expense, taxes, interest, rents and all other operating expenses earned by the business.
Liberty argues that no recovery could be had under this endorsement in light of the testimony that the grocery store was operating at a net loss when the fire occurred. We agree with Liberty’s argument to the extent of finding that the chancellor erred in failing to consider this as a factor in calculating the business interruption loss under the endorsement.
It has been said that the purpose of business interruption insurance is to protect the prospective earnings of the insured business only to the extent to that which the business would have earned had no interruption occurred. Associated Photographers, Inc., v. Aetna Casualty & Surety Co., 677 F.2d 1251 (8th Cir. 1982). While the policy is aimed at protecting the insured, it is also designed to prevent the insured from being placed in a better position than if no loss or interruption of the business had occurred. United Land Investors, Inc. v. Northern Ins. Co. of America, 476 So.2d 432 (La. Ct. App. 1985).
In determining the loss of earnings here, the chancellor’s computation included only the sum of appellee’s continuing business expenses (i.e. payroll expense, taxes, interest, rents, etc.) without regard to its net profit, which was said to have been át a loss. The endorsement, however, provides that appellee was to be compensated for the “actual loss resulting directly from necessary interruption of business, but not exceeding the reduction in earnings less charges and expenses which do not necessarily continue during the interruption of business.” Furthermore, the term “earnings” is defined as “net profit plus payroll expense, taxes, interest, rents and all other operating expenses earned by the business.” It is apparent from the wording of the endorsement that in determining the business’s actual loss consideration must be given to net profit since the business’s “earnings” are specified as being the sum of the net profit and the ongoing expenses incurred by the business after sustaining the loss. We thus find that the chancellor erred by not considering appellee’s net profit in computing the amount of loss. Simply stated, the proper way to calculate the amount due under this provision is to reduce the sum of the net profit and continuing expenses by the amount of non-continuing expenses. See Associated Photographers, Inc. v. Aetna Casualty & Surety Co., supra.
We reject, however, Liberty’s contention that recovery is completely barred in the event that a business is not operating at a profit. Neither the language of the provision nor the authorities Liberty cites support this position. In Continental Ins. Co. v. DNE Corp., 834 S.W.2d 930 (Tenn. 1992), the Tennessee Supreme Court had occasion to interpret a provision similar to the one at issue here. To assess the amount of loss, the court stated:
We therefore conclude that the amount of “business income” under the insurance policy provision involved in this case should be determined by adding the amount of “net income” and the amount of “continuing normal operating expenses.” Under this approach, if “net income” is a positive number (which will occur whenever there are net profits), the amount of “business income” will be the sum of two positive numbers, and the insured will be entitled to recover that amount. If, however, “net income” is a negative number (which will occur whenever there is a net loss), the amount of “business income” will be the amount of “continuing normal operating expenses” reduced by the amount of the net loss. If, as under the facts of this case, the amount of the net loss that would have been incurred had there been no business interruption exceeds the amount of the normal operating expenses actually incurred, the resulting number is a negative number, and there can be no recovery for an “actual loss of business income.”
Id. at 934. As demonstrated by this holding, recovery might be had even though the business is operating at a loss if the result of the equation yields a positive number.
Here, there was testimony that an audit of the business revealed that it was operating at a net loss. The amount of the loss, however, was not specified, nor was there any mention made of the business’s non-continuing expenses. We hear equity cases de novo on the record made below, and ordinarily dispose of such cases on that record. However, if the record is not sufficient for us to dispose of the case, we have the discretionary authority to remand an equity case for further proceedings. Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990). On the record before us, we are unable to calculate the loss of business earnings; therefore, we remand this case to the chancery court for the taking of additional evidence on this point and for the chancellor to determine the amount of loss, if any, in a manner consistent with this opinion.
Liberty’s next argument focuses on the amount of recovery under the contents provisions of the policy. As noted above, the chancellor determined that $172,400 was owed for the inventory that was lost in the fire. In its brief, Liberty goes through a series of calculations to arrive at a figure of $ 169,332.51, which it contends that appellee is entitled to receive. It then points out that the chancellor correctly utilized the same methodology in calculating the amount of loss, but that the only difference is that the chancellor “erroneously determined that the policy covered certain inventory for which Sexton did not make a claim in its proof of loss.” This quoted statement is the extent of Liberty’s argument on appeal. While Liberty makes this bald assertion, it has failed to offer any argument whatsoever in support of its contention. Points of error which are unsupported by convincing argument or authority will not be considered on appeal. Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992). Consequently, we affirm the chancellor’s finding on this issue.
As its last argument, Liberty contends that it is entitled to restitution for the amount it claims to have overpaid appellee. Since recovery under the loss of business earnings endorsement is yet to be determined, it would be premature for us to address this issue.
Reversed and Remanded.
Pittman and Robbins, JJ., agree. | [
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John Mauzy Pittman, Judge.
Jolie Perdrix-Wang appeals from the Arkansas Board of Review’s denial of her claim for unemployment compensation benefits. She contends that there is no substantial evidence to support the Board’s finding that she voluntarily left her last work without good cause connected with the work. She also contends that her Fourteenth Amendment right to equal protection of the law has been violated. We affirm.
The facts of this case are largely undisputed. Appellant, who holds a master’s degree in chemistry, began working as a quality control chemist for Cyro Industries (Cyro), a plastics manufacturer, in April 1990. Early in 1991, appellant became pregnant. Appellant continued to work; however, she did so only under various restrictions and limitations because her physician advised that she not be allowed to come in contact with certain chemicals present in Gyro’s plant while pregnant. Appellant gave birth on October 17,1991. She then took approximately two months off as a maternity leave, during which she breast-fed her baby.
Appellant’s obstetrician released her to return to work, without any restrictions, in December 1991. Her baby’s pediatrician advised that, if appellant wished to continue to breast-feed the child, she continue to avoid certain chemicals in order to protect the integrity of her milk. Appellant stated that she wished to breast-feed the child until she was six-months old. Therefore, appellant asked that she be allowed to work for the four remaining months under the same limitations in effect during her pregnancy.
Appellant’s superiors at Cyro refused appellant’s request because appellant’s decision to breast-feed was, admittedly, a personal one and not one based on any medical advice. Appellant was given the option of ceasing to breast-feed and returning to her job as a chemist, without restrictions, or accepting a position as “FF Assistant,” the only available position that would allow her to avoid contact with chemicals. Appellant refused to consider feeding her daughter formula, which would allow her to return to her position as chemist. She also refused to accept the other offered position because it would be a “demotion,” required twelve-hour shifts, and was considered by appellant to fall below her skill level and outside her career objectives. Appellant never did return to work at Cyro. She tendered her resignation, effective January 8,1992, and filed this claim for unemployment benefits.
Appellant’s claim was denied both at the Agency and Appeal Tribunal levels. On appeal, the Board of Review also denied appellant’s claim and expressly adopted as its own the findings and decision of the Appeal Tribunal. The Board found that appellant had voluntarily quit her job without good cause connected with the work. It specifically found that, although appellant wished to continue to breast-feed, there was no medical necessity that she do so and no evidence that the baby’s health would be in danger if she were to be fed formula. The Board also found that Cyro had not treated appellant unreasonably and had attempted to accommodate her by offering her another position, which would have allowed her to avoid exposure to chemicals and, therefore, to feed her baby breast milk.
Arkansas Code Annotated § 11-10-513 (1987) provides in pertinent part that an individual shall be disqualified from receiving unemployment benefits if she left her last work “voluntarily and without good cause connected with the work.” Ark. Code Ann. § 11-10-513(a)(1). A claimant bears the burden of proving good cause by a preponderance of the evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978); Tate v. Director, 267 Ark. 1081, 593 S.W.2d 501 (Ark. App. 1980). Good cause has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980). It is dependent not only on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting, but also on the reaction of the average employee. Id. In determining the existence of good cause for voluntarily leaving one’s work under § 11-10-513, factors to be considered include the degree of risk to one’s health, safety, and morals, and her physical fitness, prior training, and experience. Ark. Code Ann. § ll-10-515(c) (Supp. 1991). What constitutes good cause is ordinarily a question of fact for the Board to determine from the particular circumstances of each case. Roberson v. Director, 28 Ark. App. 337, 775 S.W.2d 82 (1989); Rose v. Daniels, 269 Ark. 679, 599 S.W.2d 762 (Ark. App. 1980).
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. § 1 l-10-529(c)(l) (1987); Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Industries Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Feagin v. Everett, supra. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
In the case before us, the record is less than clear in several respects. Appellant’s regular duties as a chemist are not described except most generally. Nor is it explained in the record how the position of “FF Assistant”, which alternative appellant refused, differs from that of chemist, either in terms of status, duties, or pay. However, it is clear that the restrictions under which appellant sought to work as a chemist would prohibit her from performing some of her regular duties and, thus, would require that someone else perform them. It is also clear that appellant’s decision to breast-feed her baby was not the result of instructions or recommendations by her physicians. Rather, admittedly, it was appellant’s “personal” decision based on her own judgment and her research of scientific literature, which appellant stated, without elaboration, indicated that “breastfeeding best meets the nutritional needs of infants.” There was no evidence of the manner or extent, if any, that breast milk would benefit appellant’s child or whether the child would have been in any way endangered if she were fed formula instead. There was no evidence to indicate that appellant’s child suffered from allergies or immunity problems or that she was in any way less than perfectly healthy.
From our review of the record, we cannot conclude that there is no substantial evidence to support the Board’s finding that appellant voluntarily quit her job without good cause connected with the work. Whether a given reason for leaving one’s employment amounts to “good cause” within the meaning of the Employment Security Law quite often turns on matters of degree. See Ark. Code Ann. § 11-10-515(c). The mere fact that breast-feeding may be the “best” of two available methods of feeding a child does not compel a finding of good cause to quit in this case. Many things are “good” for children, and may even constitute perfectly legitimate reasons for a parent to quit work. However, the question before the Board was not whether appellant’s purpose was legitimate; the issue was whether her reason for quitting constituted sufficiently good cause to justify an award of unemployment compensation. The record supports the conclusion that appellant’s decision to breast-feed was a personal, voluntary one, unsupported by either medical advice or any evidence of the degree to which breast-feeding might benefit the baby or protect her from harm. However worthy, or even admirable, appellant’s purpose in quitting may have been, we cannot conclude on the facts of this case that the Board could not reasonably find a lack of good cause connected with the work. See Gilbert v. Everett, 7 Ark. App. 260, 647 S.W.2d 486 (1983); Hunter v. Daniels, 2 Ark. App. 94, 616 S.W.2d 763 (1981).
Appellant next contends, in a very conclusory fashion, that the Board of Review has “establish [ed] a rule” that “effectively eliminate[s] appellant’s right to breast-feed her child.” This, she contends, has worked a violation of her Fourteenth Amendment right to equal protection. While we have difficulty accepting the factual premise of appellant’s argument, i.e., that the Board has established such a rule, we decline to address the merits of the argument. First, it was not made below, and this court does not consider issues raised for the first time on appeal. City of Fort Smith v. Moore, 269 Ark. 617, 599 S.W.2d 750(1980). Second, appellant has cited no authority and made no convincing argument regarding how the equal protection clause is implicated in this case. See Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989).
Affirmed.
Robbins and Rogers, JJ., dissent.
Appellant does not contend that she is entitled to benefits on grounds that she left her last work due to a “personal emergency” or because of “illness” or “disability” as provided in Ark. Code Ann. § ll-10-513(b). | [
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James R. Cooper, Judge.
This is an appeal from a summary judgment granted in favor of the appellee, Acme Fence & Iron Company, Inc., against the appellant, Butler Fence Company. The appellee obtained a default judgment against the appellant on February 22,1991, in the District Court of Cleveland County, Oklahoma, in the total amount of $61,659.30, plus interest. The appellee subsequently sought registration of the foreign judgment in Arkansas. The appellant objected on the grounds that the Oklahoma court lacked both in personam and subject matter jurisdiction. The appellee moved for summary judgment, and the trial court granted the motion.
Summary judgment is an extreme remedy which should be granted only when it is clear that there is no genuine issue of fact to be decided. Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W.2d 187 (1975). In appeals from the granting of summary judgment, we need only decide if the granting of summary judgment was appropriate based on whether the evidence presented by the moving party in support of the motion left a material question of fact unanswered. Harvison v. Charles E, Davis & Assocs., 310 Ark. 104, 835 S.W.2d 284 (1992). All proof submitted must be viewed in the light most favorable to the party resisting the motion and any doubts and inferences must be resolved against the moving party. Id.
The Uniform Enforcement of Foreign Judgments Act, Ark. Code Ann. § 16-66-602 to -608 (Supp. 1991), provides a summary procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found, thereby enabling the judgment creditor to obtain relief in an expeditious manner. McDermott v. Great Plains Equip. Leasing Corp., 40 Ark. App. 8, 839 S.W.2d 547 (1992). The Uniform Act requires only that the foreign judgment be regular on its face and duly authenticated to be subject to registration. Id.
Under the Full Faith and Credit Clause of the United States Constitution, art. IV, § 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. See, e.g., Strick Lease, Inc. v. Juels, 30 Ark. App. 15, 780 S.W.2d 594 (1989). These judgments are presumed valid; 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. Strick Lease, supra; Dolin v. Dolin, 9 Ark. App. 329, 659 S.W.2d 954 (1983).
The appellee contends that because the Oklahoma judgment was rendered by default, overturning it in Arkansas is governed by Ark. R. Civ. P. 55(c) for setting aside default judgments. The United States Constitution, art. IV, § 1, overrides the local regulation of access to the procedures of state courts for the purpose of enforcing foreign judgments. Therefore, foreign judgments, regardless of whether entered by default, are protected against collateral attack by the full faith and credit clause unless the previously stated defenses can be established.
Our initial inquiry, therefore, is whether the appellant has shown that there are genuine issues of material fact concerning the Oklahoma judgment’s validity. On appeal, the appellant argues that there are two genuine issues of material fact to be resolved: (1) whether there was proper service of process upon the appellant, and (2) whether Oklahoma had sufficient contacts with the subject matter of the lawsuit to give that state jurisdiction over the appellant.
For its first argument, the appellant contends that there was no evidence of proper service on the appellant and that, therefore, the Oklahoma court did not have in personam jurisdiction.
Service of process under Oklahoma law may be made:
(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the petition to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process ....
Okla. Stat. Ann. tit. 12 § 2004(C)(1)(c) (West Supp. 1993). Section 2004(E)(2) provides that when the exercise of jurisdiction is authorized by Oklahoma’s long arm statute, service of process may be made:
(a) by personal delivery in the manner prescribed for service within this State (Oklahoma) or
(b) in the manner prescribed by law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction.
Proof of service shall be made by the person serving the process to the Court, but failure to make proof of service does not affect the validity of the service. § 2004(G)(1). Subsection (G)(2) requires that the return set forth the name of the person served and the date, place and method of service.
In Oklahoma, statutes concerning service of process must be substantially complied with in order to vest a court with jurisdiction. Graff v. Kelly, 814 P.2d 489 (Okla. 1991); VanNort v. Davis, 800 P.2d 1082 (Okla. Ct. App. 1990). Serviceof process is sufficient if it informs the defendant that he has been sued, the nature of the proceedings against him, his interest therein and of the court where the hearing will be held. VanNort, supra.
In support of the summary judgment motion, the appellee included an affidavit of Charles Wise, a deputy sheriff with the Miller County Sheriff’s Department, which stated that on September 10, 1990, he personally served a person at Butler Fence Company authorized by law to accept service. The affidavit of service did not identify the person with whom the documents were left or that person’s relationship to the appellant.
Jay Lucas Schniederjan, an attorney for the appellee, stated in her affidavit that she had received a telephone call from a man identifying himself as the son of Mr. Butler of Butler Fence Company, in which he told her that he had received the papers and that their attorney would be calling her regarding the lawsuit. However, actual notice cannot by itself be sufficient to establish in personam jurisdiction. Graff, supra.
The appellant bases its argument that it was not properly served on the contention that the affidavit of personal service did not reflect service upon a legal entity and that it did not identify the person served or that person’s relationship to Butler Fence Company. Wylie Butler, in his affidavit, stated that Butler Fence Company is an assumed name and not a corporation.
The trial court in its order for registration stated that it could not determine from the evidence the name of the person served at Butler Fence Company. However, it accepted the statements of Charles Wise and Jay Schniederjan in concluding that a person authorized by law to accept service at Butler Fence Company was served.
On this record, we hold that there are disputed facts as to whether there was substantial compliance with the Oklahoma statute for service of process. The affidavit of service does not indicate who was served, whether that person was authorized to receive service of process on behalf of the appellant, or whether that method of service of process on the appellant was proper.
The appellant next asserts that it did not have sufficient minimum contacts with Oklahoma to justify the Oklahoma court’s jurisdiction over the appellant. An Oklahoma court may exercise jurisdiction on any basis consistent with the Constitution of Oklahoma and the Constitution of the United States. Okla. Stat. Ann. tit. 12, § 2004(F) (West Supp. 1993).
The Oklahoma Long Arm Statute extends the jurisdiction of Oklahoma courts over nonresidents to the outer limits permitted by due process requirements of the United States Constitution. Taylor v. Taylor, 709 P.2d 707 (Okla. Ct. App. 1985).
Due process prohibits a state court from exercising personal jurisdiction over a non-resident defendant unless the defendant has sufficient “minimum contacts” with the forum state, “such that he would reasonably anticipate being hauled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Due process also requires that a defendant’s “minimum contacts” with the forum state be such that “maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
An affidavit of an employee of the appellee stated that representatives of both parties met in Oklahoma with regard to the account upon which the judgment was based. However, Wylie Butler, in his affidavit for the appellant, stated that the subject matter of the Oklahoma proceeding involved a consignment arrangement in which the appellee delivered materials to the appellant in Texarkana, Arkansas. He related that an account was established at a bank in Texarkana from which the appellee drew funds as the material was used. He further stated that the initial order was solicited at Butler Fence Company in Texar-kana, Arkansas, that all subsequent deliveries were made to the appellant in Texarkana, and that all the activities regarding the subject matter of the lawsuit were conducted in Arkansas.
The affidavits are in sharp conflict, thus presenting a disputed fact question as to whether the appellant had sufficient minimum contacts with Oklahoma to satisfy the due process requirements.
We find there are genuine issues of material facts and therefore, we reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Jennings, C.J., and Pittman, J., agree.
The appellant filed a motion to amend the record on April 9, 1993, stating that the District Court of Cleveland County, Oklahoma, in a post-judgment proceeding, entered an order dismissing the original judgment for lack of personal jurisdiction. However, the original judgment, by virtue of its filing under the Uniform Act, has become a judgment of the State of Arkansas with its own independent life support system. A domestic judgment enforcing a foreign judgment is not directly affected by subsequent proceedings in the originating state. See Burchett v. Roncari, 434 A.2d 941 (Conn. 1980). If, on the basis of the subsequent proceedings in the originating jurisdiction, there are equitable reasons for not enforcing or pursuing the domestic judgment, such issues should be raised in an independent action. Id. | [
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James R. Cooper, Judge.
The appellee in this workers’ compensation case was employed by the appellant, Riverside Furniture Company, as a lead man. His duties included pushing carts loaded with lumber inside the factory. The appellee filed a claim for benefits alleging that he sustained a compensable back injury on April 12, 1990, while pushing a loaded cart on rough pavement. After a hearing, the administrative law judge found that the appellee sustained a compensable injury, and that the appellant was not entitled to credit for private insurance benefits paid to the appellee as a result of his injury. The appellant appealed to the Arkansas Workers’ Compensation Commission which likewise found that the appellee’s injury was compensable, but reversed the law judge by finding that the appellant was entitled to credit for the private insurance benefits. From that decision, comes this appeal in which the appellant seeks reversal of the Commission’s finding that the appellee sustained a com-pensable injury, and the appellee cross-appeals, challenging the Commission’s finding that the appellant was entitled to credit for the private insurance benefits paid to the appellee. We affirm on appeal, but reverse on cross-appeal.
The appellant contends that the Commission erred in finding that the appellee suffered a compensable injury and that the appellee notified his employer of the injury. We do not agree. The appellee testified that, on April 12,1990, he injured his back when the cart he was pushing became stuck on rough pavement and that David Millsap, a co-worker, helped him push the load the rest of the way. He further stated that he reported the injury to Rick Standridge, his assistant foreman, and went to the doctor on April 16, 1990, because his back gradually kept getting worse. The appellee stated that he told his physician, Dr. Barron, that he hurt his back at work but that the employer was not going to pay for it. He further stated that, at the time of his injury, he filed claims with his private insurance carrier at work. The appellee testified that he initially checked olf the box indicating that the injury was work related, but changed it after the secretary called him in and said the company would not accept that. The appellee also stated that, while at work on August 27, 1990, his back “popped” after he sneezed; he stated that he reported this to the assistant foreman, and called his wife who took him to the hospital. He was then treated by Dr. Haines, who kept him off work and performed disc surgery on October 9, 1990. The appellee stated that he returned to work December 17, 1990.
David Millsap, a co-worker, testified that he recalled an incident last year when the appellee grabbed his back, could not push the load, and was helped by Mr. Millsap, although he did not remember the date on which this incident occurred.
Rick Standridge, the appellee’s assistant foreman, testified that he could not remember the appellee reporting a job-related injury to him, but conceded that it was possible that the appellee reported an injury that he did not remember, and that he could not say with any sort of certainty whether the appellee did or did not report any injury to him on April 12.
For reversal, the appellant cites testimony from the hearing that contradicts the testimony of the appellee, and argues that these contradictions render the appellee’s testimony so insubstantial that reasonable persons could not believe it. We regard this argument as no more and no less than an invitation to reverse the Commission’s determination regarding the credibility of the witnesses, and to weigh the evidence to determine where the preponderance lies. We are unable to do so, however, because questions concerning the credibility of witnesses and the weight to be given their testimony are within the exclusive province of the Commission. Robinson v. Ed Williams Construction Company, 38 Ark. App. 90, 828 S.W.2d 860 (1992). As the appellant concedes in its brief, the appellee’s testimony provided evidence that he injured his back at work on April 12, 1990, and that he reported that injury to Mr. Standridge. Although the appellant characterizes this testimony as “self-serving,” the Commission found it credible, and once the Commission has made its decision on issues of credibility, we are bound by that decision. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). As the appellant notes, there are contradictions in the evidence, but it is likewise within the Commission’s province to reconcile conflicting evidence and determine the true facts. Jackson Cookie Company v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986). We hold that the Commission’s findings of compen-sability and proper notice are supported by substantial evidence, and we affirm on direct appeal.
On cross-appeal, the appellee argues that the Commission erred in deciding that the appellant was entitled to a credit for private insurance benefits.
As a general rule, there is ordinarily no reduction of compensation benefits because of payments made from private pensions or health and accident insurance, whether provided by the employer, union, or the claimant himself. However, the employer may be entitled to a setoff where the employer clearly establishes that (1) the claimant has received payments from insurance provided by the employer; and (2) sums paid to the injured employee were intended as advance payments of compensation. See Varnell v. Union Carbide, 29 Ark. App. 185, 779 S.W.2d 543 (1989). Only where the employer clearly establishes that sums paid to an injured employee are advance payments of compensation is the employer entitled to any setoff; in all other situations, the employee recovers the full amount of his disability benefits provided under the Workers’ Compensation Act. Varnell v. Union Carbide, supra.
In Emerson Electric v. Cargile, 5 Ark. App. 123, 633 S.W.2d 389 (1982), we concluded that:
[W]here the insurance, whether private or company administered, is provided and funded by the employer the rule announced in Southwestern Bell Telephone Company [ v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966)] should be followed and the employer afforded the right to show, if he can, that the payments were ‘payments of compensation in advance.’
[Emphasis supplied.]
The appellee argues that there was insufficient evidence to show that the insurance was provided and funded by the employer as required by Emerson Electric, supra. We agree. Our review of the record in the case at bar reveals no evidence to show that the employer paid the premiums for or contributed in any way to providing the private insurance which gave rise to the payments in the case at bar. In the absence of such evidence, the employer has failed to show entitlement to setoff for advance payments of compensation, see Emerson Electric, supra, and we need not address the question of whether the parties intended the insurance payments as advance payments of compensation.
Affirmed on direct appeal; reversed on cross-appeal.
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Judith Rogers, Judge.
At issue in this appeal is the extent to which two co-depositors, Jessie E. O’Flarity and Gloria M. O’Flarity, appellee, own the funds in a joint account. Appellant, James P. O’Flarity, is conservator of the estate of his mother, Jessie E. O’Flarity. Appellant brings this appeal from the ruling of the probate judge that Jessie O’Flarity and appellee own fifty percent of the funds in the account in question.
Because of Jessie O’Flarity’s failing health, appellant was appointed conservator of her estate in 1991. Acting in that capacity, he then withdrew all the funds from the joint account in question held in the names of “Gloria M. or Jessie E. O’Flarity.” Appellee then brought suit to recover such sums, claiming ownership of the money in the account she and her mother had. The probate judge found that all of the funds in the account, which had an ending balance of $ 106,262.31, could not be traced but concluded that appellee and her mother, Jessie, each were entitled to fifty percent of the account.
On appeal, appellant first argues the probate judge erred in determining appellee was entitled to one-half of the joint account. In this regard, he asserts that appellee failed to carry the burden of proving a gift of the funds was made to her. We do not agree.
Appellee and her mother lived together from 1968 to 1991. In 1968, appellee opened an account under the names of “Gloria M. or Jessie E. O’Flarity.” The account was taxed under appellee’s social security number, and deposits to the account were made from appellee’s social security, disability, and retirement Veteran’s payments, as well as other sources. Jessie O’Flarity purchased a house in 1969 and a second house in 1970. In 1971, she deeded both properties to Jessie E. O’Flarity and Gloria Marie O’Flarity as joint tenants with right of survivorship. Jessie and Gloria lived in one house and rented the other. In 1989, both properties were sold, and the proceeds were ultimately deposited in the joint account. In connection with the sale of one of the properties, the buyer executed a promissory note payable to both Jessie and Gloria, and the monthly payments were deposited in their joint account. Other funds contributed to the account were proceeds from the sale of school bonds originally purchased by Jessie and held jointly by Jessie and Gloria.
Appellee testified that she made additional deposits to the account from the proceeds of her individual savings account, the sale of personal property, and various insurance proceeds. She also stated that, during the twenty-three years she and her mother lived together, she took care of making all the deposits to and withdrawals from their joint account and that their living expenses were paid for in part from the account. She testified that she and her mother both provided the funds deposited in the account and that her mother had told her she wanted appellee to have such funds.
Appellee testified that she was the one that opened the bank account in 1968; because she was disabled, she put her mother’s name on the account so that, if appellee died, her mother would have access to the money. She testified that all of her disability and social security checks were deposited into the account and that, in 1968, the monthly amount of those checks was approximately $ 1,000.00 and had increased to over $2,200.00 by the time of the hearing. She also testified that her mother had a separate bank account of her own, to which her mother deposited her own social security checks and various other funds. Gloria testified that she and her mother lived in one of the houses her mother had purchased and rented the other and that Gloria paid all of the taxes, insurance, and upkeep on the rental house. She stated that she was aware that her mother deeded both pieces of property to Jessie E. O’Flarity and Gloria Marie O’Flarity as joint tenants with right of survivorship and that her mother did so because she wanted appellee to have that property. She also testified that, upon the sale of one of those properties, she and her mother received $3,648.00 as a down payment and subsequently received the balance of the amount due on the property in the sum of $65,487.50. These sums were deposited in the joint account. Appellee stated the money was placed in that account because she paid all the bills and “[M] other wanted me to have it.” She testified that the furniture from one of the houses was subsequently sold for approximately $8,000.00 and that those proceeds were also placed in the joint checking account.
Appellee testified that, when the second piece of property was sold, she and her mother received a down payment of $3,904.50, which was deposited in the joint account. The buyers of the property also executed a promissory note in the sum of $70,000.00 payable to appellee and her mother; those monthly payments of $629.18 were also deposited in the joint account. Appellee also indicated that, in 1968, she had her own savings account at First Federal with a balance of $10,267.50 and that she subsequently closed out that account and transferred the money to the joint account she shared with her mother.
Appellee also testified that her mother had placed appellee’s name on a Merrill Lynch account consisting of tax-free school bonds. She stated that, in January 1990, her mother sold the bonds and indicated she wanted appellee to have those proceeds. Appellee testified that, when her mother sold the bonds, Merrill Lynch sent the proceeds to her mother; her mother than gave the money to appellee and instructed her to deposit the funds in the joint account.
Gloria testified that her mother had also given money and property to other family members. In this regard, Gloria testified:
[My mother] has refused to make a will because she said, “I want to distribute my stuff and take care of all my children and make sure they all have a home and everything they need before I go.” And that’s what she thought she had done. She said, “I don’t want anybody fighting over my estate when I’m gone.” And she said, “I’ll give everybody their houses, homes, money, whatever they need.” And she had just enough. She said, “I have enough in my account now to bury me, and everybody else has their own share now, and I’m happy.”
Appellee indicated that she considered the funds in the joint account to be hers and that the only reason she initially put her mother’s name on the account in 1968 was because “I wasn’t expected to live when I got out of the service and I wanted whatever I had to go to Mother.” She stated that her mother never exercised any control over the joint bank account, never wrote a check off of it, and never personally made any deposits into the account.
Beverly Stamper, one of Jessie O’Flarity’s daughters, testified that she lived in the Little Rock area until 1985. She testified she was aware of the transactions concerning the two pieces of real estate in question and that her mother had told her that, because appellee had taken care of the rental house, it should go to her and that the house in which the two of them lived was “their home.” She stated that her mother was very generous with all of her children and had given each of them money or property from time to time.
James P. O’Flarity testified that, although he borrowed $25,000.00 from his mother on one occasion, he subsequently repaid it and that his mother never gave him large sums of money. He also testified that, in 1986 or 1987, his mother telephoned him and indicated that she was in dire financial straits and also indicated that Gloria “does her own thing.” Therefore, appellant testified that, for the following year, he sent his mother $750.00 to $ 1,500.00 per month for her living expenses. He also testified that his mother had given him thirty-nine acres of property in east Mississippi, on which he has paid taxes since she deeded it to him. He stated that, when his mother’s health failed to the point that he believed she needed additional care, Gloria refused to cooperate with family members concerning the records on his mother’s bank account so that they could have access to funds to pay for her care. He testified that his mother put bank accounts and real estate in joint names for testamentary purposes and never intended to give away any of it during her lifetime. He also testified that, when the two parcels of property held in appellee’s and his mother’s names were sold, his mother did not endorse the checks and had no recollection of signing the deeds.
Mary Kathryn Rogers, another daughter of Jessie O’Flarity, testified that she has lived a few doors away from her mother since 1970 and that her mother and appellee took care of each other. She testified that her mother deeded a house on Louisiana Street to her in 1986, which she and her mother had previously owned as joint tenants with right of survivorship. She testified that her mother did not intend for Gloria to have all the funds in the joint account. In this regard, Mary Kathryn stated: “[My mother is] alert and she knows that all of this is going on and it grieves her greatly. She says, ‘I trusted Gloria with everything I had. I didn’t think she could do this to me.’ She knows that Gloria wants all of it and it’s really grieving her.”
The rule in Arkansas is that the law presumes a gift when the donor registers legal title in a family member’s name. Perrin v. Perrin, 9 Ark. App. 170, 176, 656 S.W.2d 245, 248 (1983). Therefore, with regard to the proceeds from the sale of both parcels of real estate which were owned jointly by appellee and her mother, it is presumed that appellee is entitled to one-half of these amounts.
Whether elements of an effective inter vivos gift have been proven with regard to the school bonds and other sources of revenue to the account is a question of fact. See Warren v. Warren, 33 Ark. App. 63, 65, 800 S.W.2d 730, 731 (1990). The required elements for an effective inter vivos gift are that the donor knew and understood the effect of his act, and intended that effect; that the donor made actual delivery of the chattel to the donee or his agent; that the donor, by delivery, intended to pass title immediately; and that the donee actually accepted the chattel as a gift. McCune v. Brown, 8 Ark. App. 51, 57, 648 S.W.2d 811, 814 (1983). These elements must be proved by clear and convincing evidence. Id. Accord Kelley v. Pipkin, 268 Ark. 1009, 1014, 598 S.W.2d 102, 105 (Ark. App. 1980). Even where the burden of proof is by clear and convincing evidence, we defer to the superior position of the chancellor to evaluate the evidence. Akin v. First Nat’l Bank, 25 Ark. App. 341, 345, 758 S.W.2d 12, 19 (1988). A requirement that the evidence be clear and convincing does not mean that the evidence must be uncontradicted. Freeman v. Freeman, 20 Ark. App. 12, 15, 722 S.W.2d 877, 879 (1987). Although probate cases are reviewed de novo on the record, we will not reverse the finding of the probate judge unless clearly erroneous. Winters v. Winters, 24 Ark. App. 29, 34, 747 S.W.2d 583, 586 (1988); Birch v. Coleman, 15 Ark. App. 215, 221, 691 S.W.2d 875, 878-79 (1985); Ark. R. Civ. P. 52(a). In this regard, we give due deference to the probate judge’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Thomas v. Thomas, 30 Ark. App. 152, 156, 784 S.W.2d 173, 175 (1990). We find the evidence sufficient to prove the elements of a gift regarding appellee’s interest in the joint account and cannot say that the finding of the probate judge that appellee is entitled to a fifty-percent share of the account is clearly erroneous.
The creation of joint bank accounts is addressed in Ark. Code Ann. § 23-32-1005(l)(A) (1987). However, the present wording of subparagraph (1)(A) was included by amendment, Act 843 of 1983, and the amendment does not apply to deposits established prior to the effective date of Act 843. Courtney v. Courtney, 296 Ark. 91, 95, 752 S.W.2d 40, 42 (1988); see also Martin v. First Security Bank, 279 Ark. 273, 274, 651 S.W.2d 70,71 (1983). Instead, the former statute, Ark. Stat. Ann. § 67-521 (Repl. 1980), applies. That statute provides in pertinent part:
When a deposit shall have been made in the names of two (2) or more persons and in form to be paid to any of the persons so named, such deposit and any additions, thereto made by any of the persons named in the account, shall become the property of such persons as joint tenants ....
In Park v. McClemmons, 231 Ark. 983, 334 S.W.2d 709 (1960), the supreme court held that § 67-521 should be considered together with the testimony, facts, and circumstances disclosed by the record to arrive at the intent of the depositor. 231 Ark. at 986, 334 S.W.2d at 712.
Based on this, the trial court could find that appellee intended to establish a joint tenancy when she created the account in question. Additionally, the record reflects that the actions of Jessie O’Flarity in commingling her funds with those of appellee in the account establish her intent to share such funds with appellee. Commingling of funds in a joint account leads to the conclusion that the parties intended all deposits to the account from whatever source to be held jointly by the parties, and it takes clear and convincing evidence to overcome this presumption. See Lofton v. Lofton, 23 Ark. App. 203, 209-10, 745 S.W.2d 635, 639 (1988). We cannot say that the actions of Jessie O’Flarity and appellee in dealing with the funds placed in the account fail to show an intent to own such funds jointly. We find there was insufficient evidence presented to overcome a presumption of owning the funds jointly.
Appellant also argues that Jessie O’Flarity, as a joint tenant to the account, had the right to withdraw all of the funds in question and that, therefore, James P. O’Flarity, as conservator of the estate of Jessie E. O’Flarity, was equally entitled to exercise his mother’s right to withdraw all of the funds in the account. While he may be entitled to withdraw the funds on her behalf, we cannot agree that he is entitled to retain the funds. Although a bank or savings and loan may rightfully pay all the funds in an account to either of the two co-depositors in a joint account, it does not necessarily follow that either of the co-depositors may withdraw such funds without accounting to the other co-depositor for such action. See Savage v. McCain, 21 Ark. Ap. 50, 52, 728 S.W.2d 203, 204 (1987); see also McEntire v. McEntire, 267 Ark. 169, 175, 590 S.W.2d 241; 244-45 (1979). Each depositor’s right to the funds may depend on an agreement among the co-depositors as to their respective ownership rights in the account. See Haseman v. Union Bank of Mena & Haseman, 262 Ark. 803, 807, 562 S.W.2d 45, 48 (1978).
Appellant also asserts that the probate judge erred in finding that appellee was entitled to one-half of the proceeds of the promissory note from the sale of the property made payable to appellee and her mother. In this regard, appellant argues that the ownership of the note was not an issue before the court. We cannot agree. Appellee correctly points out that appellant’s own counsel asked the judge about the disposition of the real estate promissory note. At the conclusion of the hearing, the judge announced her findings regarding the joint account and asked if there were any additional questions. Appellant’s counsel responded: “Judge, we have a real estate note involving one of the sales, about ‘75.” The court then responded: “Well, that would mean each one of you get one-half of that real estate note.” No further discussion of the note took place. Not only did appellant’s counsel fail to object to the issue being addressed by the court, but it was appellant’s own counsel who invited a ruling on the issue. Additionally, we disagree with appellant’s alternative argument that the evidence does not support a finding that appellee owns fifty percent of the proceeds of the note. When considering ownership of a note payable to two parties, we can look to cases dealing with notes payable to a husband and wife for guidance. In such a case, there is a presumption that the taking is by the parties as tenants by the entirety. See Ramsey v. Ramsey, 259 Ark. 16, 19, 531 S.W.2d 28, 30 (1975). The fact that the consideration for the note taken in the two names was given by only one of the parties is of little significance where that party is responsible for the note being taken in both names, and the presumption is that there was a gift of an interest by that party to the other. See 259 Ark. at 19, 531 S.W.2d at 30-31.
Finally, appellant argues that the court erred in failing to grant a new trial pursuant to appellant’s motion for rehearing and new trial. Arkansas Rule of Civil Procedure 59(a) (1992) provides in part:
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues 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.
Appellant, however, fails to state any of the reasons listed in Rule 59, which would provide a basis for granting a new trial. Further, appellant stated in his motion that a new trial should be granted so Jessie O’Flarity could have an opportunity to testify as to her intent concerning ownership of the funds in question. In this regard, appellant stated in his motion: “It was not deemed wise by counsel to put [Jessie O’Flarity] through the trauma of coming to court to testify inasmuch as no allegation of the petition of Gloria O’Flarity was support [sic] at trial.” The fact that appellant failed to call Jessie O’Flarity as a witness at trial is not an adequate ground for granting a new trial. 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. Franklin v. Griffith Estate, 11 Ark. App. 124, 128, 666 S.W.2d 723, 725-26 (1984). We find no abuse in the denial of appellant’s motion.
Affirmed.
Mayfield and Cooper, JJ., agree. | [
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John E. Jennings, Chief Judge.
Clemmie Stewart was found guilty by a Pulaski County jury of possession with intent to deliver and was sentenced by the court to thirty years imprison-' ment as an habitual offender. The sole contention on appeal is that the cocaine was obtained by the police as a result of an unlawful seizure and thus Stewart’s motion to suppress should have been granted. We find no error and affirm.
On the evening of December 13, 1991, Little Rock police officers Austin Lynch and Johnny Gravett were on patrol on Scott Street in an area where they knew drugs were sold. Lynch saw a man, later identified as Clemmie Stewart, standing in front of the apartments at 2301 Scott. Lynch saw that Stewart had in his hand a plastic bag that appeared to contain Domino matchboxes. Officer Lynch testified that “It’s a common practice for people that sell narcotics to keep their drugs in Domino matchboxes.” When Stewart started walking away, Lynch and Gravett got out of their police car and Gravett told Mr. Stewart to stop. Instead of stopping, Stewart began to run and Lynch began to chase him.
Stewart ran into the apartment building and up a flight of stairs with Lynch following. When Officer Lynch reached the top of the stairs he saw Stewart enter an apartment. Stewart then came out of the apartment without the plastic bag. Lynch stopped him in the hall, and through the open door could see the plastic bag of matchboxes lying on a dresser. Officer Lynch went into the apartment and picked up the bag. The bag contained three Domino matchboxes, each of which contained crack cocaine.
Rule 3.1 of the Arkansas Rules of Criminal Procedure provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
A “reasonable suspicion” need not rise to the level of probable cause, but it must amount to more than a “purely conjectural suspicion.” Ark. R. Crim. P. 2.1. Stewart’s argument is that the officers lacked reasonable suspicion that he was about to commit a felony and that he was “seized” by the officers when he became aware they were chasing him. Appellant relies primarily on In re Hodari D., 265 Cal. Rptr. 79 (Cal. Ct. App. 1989). There the California Court of Appeals held that a suspect had been “seized” when he saw an officer running toward him. After the California Supreme Court denied the state’s application for review, the case was appealed to the United States Supreme Court which reversed the decision of the California Court of Appeals. California v. Hodari D., 499 U.S_, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). The supreme Court found it unnecessary to decide the question of whether the officer’s pursuit was based on reasonable suspicion and viewed the sole issue as whether, at the time Hodari dropped the drugs, he had been “seized” within the meaning of the Fourth Amendment. The Supreme Court held that the chasing of the suspect did not constitute a seizure. That decision controls the case at bar.
Since Stewart had not been seized at the time he abandoned the cocaine, the trial judge properly overruled the motion to suppress. See California v. Hodari D., 499 U.S_ (1991); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). When appellant discarded the plastic bag, he abandoned any rights he possessed under the Fourth Amendment. Rabun v. State, 36 Ark. App. 237, 821 S.W.2d 62 (1991). Like the Supreme Court in Hodari, we find it unnecessary to decide the question whether the officers had a reasonable suspicion to stop the appellant.
Affirmed.
Cooper and Mayfield, JJ., agree.
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Sam Bird, Judge.
This case involves an amended decree of divorce that undertakes to make division of appellant’s retirement account that was not divided in the original divorce decree. The record reveals that Danny W. Tyer and Rebecca A. Tyer (Poole) were divorced by decree rendered on July 14, 1994, following a trial. Before the trial there had obviously been some discussions between the parties’ counsel in an effort to reach a settlement. Among the subjects covered in the discussions was the division of appellant’s retirement account. However, the discussions did not lead to a settlement, and the case proceeded to trial.
During direct examination of appellant at the trial, he stated that he had been employed by Pitney-Bowes for nineteen-and-one-half years and that he had a retirement plan there. He stated that he understood that the part of his retirement plan earned during his marriage to appellee was divisible by the court, and he acknowledged his marriage to appellee on October 30, 1981. A letter from Pitney-Bowes was introduced that described appellant’s retirement plan as being 100% vested; that monthly benefits would become payable at age sixty-five; that distributions were not allowed prior to attainment of age sixty-five; and that the plan contained no loan or lump-sum distribution features. No further evidence was presented at the trial regarding appellant’s retirement plan.
At the conclusion of the testimony, the court orally announced its findings by which it (a) granted the divorce to appellant, (b) approved the property division except bills charged to third party credit cards, and (c) granted $200 monthly alimony to appellee for not exceeding eighteen months, terminating upon appellee’s remarriage. No mention was made of appellant’s retirement account. Likewise, the written divorce decree signed by the chancellor and approved as to form by the parties’ attorneys contained no mention or reference to the appellant’s retirement plan. In fact, the only mention at all in the divorce decree about the division of property was the statement that “each party shall have that property which is currently in their possession as their separate property and shall be responsible for the indebtedness incurred with the property. . . .” The divorce decree closes with the statement, “this Court maintains jurisdiction for all further orders as may be necessary.”
On September 28, 1995, more than thirteen months after entry of the decree of divorce, appellee filed her motion that is the subject of this appeal in which she alleged that appellant’s Pitney-Bowes retirement plan was an item of marital property that should have been divided in her divorce from appellant. Appellee alleged in her motion that appellant had admitted through his counsel in a letter before trial that appellee was entitled to one-half of the Pitney-Bowes retirement plan; that pretrial discovery had resulted in a letter from the plan manager setting forth the terms of the plan, including the fact that it was vested and the dates and amount of distributions; that the appellant had acknowledged during his testimony that he understood that the retirement plan was divisible; and that the Court had approved the property division. The motion also alleged that the retirement plan is a “qualified plan” within the meaning of section 401 of the 1986 Internal Revenue Code and Ark. Code Ann. § 9-18-101(3) (Repl. 1992), that the court has jurisdiction to enter orders dividing qualified plans pursuant to Ark. Code Ann. § 9-18-102, and that the court retained jurisdiction in the divorce decree for the entry of all further orders as may be necessary. Appellee’s motion prays for an order compelling appellant to “make coordination for drafting the Qualified Domestic Relations Order,” and for other relief not pertinent to this appeal.
Appellant responded with a motion to dismiss in which he alleged that pursuant to Ark. R. Civ. P. 60, the court lacked jurisdiction to amend the divorce decree because a final order had been entered more than twelve months earlier in which the court made no division of the retirement plan.
Following a hearing, which consisted of arguments by counsel, the court rendered a letter opinion in which it is stated that the court had reviewed the tape from the divorce trial on July 14, 1994, and concluded that the omission from the divorce decree of provisions dividing the appellant’s retirement plan was clerical error and that the decree should be amended to reflect that the portion of appellant’s retirement benefits acquired during the marriage should be divided one-half to each party. An amended decree of divorce containing a provision dividing the retirement plan was entered on November 3, 1995.
We disagree with the conclusion of the chancellor that the omission of a provision dividing the retirement plan from the 1994 decree was “clerical error” within the meaning of Rule 60(a), and we hold that the chancellor lacked authority to amend the divorce decree to include a provision to divide the retirement plan more than ninety days after entry of the original divorce decree.
Rule 60 of the Arkansas Rules of Civil Procedure sets forth the circumstances under which the trial courts can correct judgments and orders. Paragraph (a) deals with the authority of the court to correct clerical mistakes and provides that they “may be corrected by the court at any time on its motion or on the motion of any party after such notice, if any, as the court orders . . . .”
First, we do not believe that amending a divorce decree to add a new requirement for the division of a retirement plan not mentioned in the chancellor’s original oral findings or written decree can be characterized as the correction of a clerical error. In Luckes v. Luckes, 262 Ark. 770, 561 S.W.2d 300 (1978), the supreme court held that clerical error had occurred when a clerk made a mistake in adding up a column of numbers on an adding machine and gave the incorrect total to the chancellor, who accepted the total as correct and included it in his order. An amended order changing the incorrect total was allowed. Correcting a clerk’s error in addition is significantly different from adding an entirely new provision to a decree.
Secondly, under Ark. R. Civ. P. 60(b), action to correct an error or mistake in a chancellor’s order or decree must be taken within ninety days of its filing with the clerk. In Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), the supreme court held that the ninety-day limit referred to in Rule 60(b) for the prevention of miscarriage of justice is also a reference to those clerical errors and mistakes described in Rule 60(a). We earlier held, in Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988), that a chancellor lacks jurisdiction after ninety days from the filing of a divorce decree to distribute property that was not mentioned in the original decree unless grounds existed under Rule 60(c) for modifying a judgment after ninety days. Therefore, in the present case, even if the chancellor’s failure to include in the original decree a provision dividing appellant’s retirement plan was clerical error, he lost jurisdiction to correct it after the lapse of ninety days following the fifing of the original decree with the clerk. The provision in the original decree that appears to reserve jurisdiction indefinitely “for all further orders as may be necessary,” was ineffectual insofar as it would override the provisions of Rule 60.
Appellee cites Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171 (1986), in support of the chancellor’s authority to reserve jurisdiction over property division issues in a divorce action for more than ninety days after the fifing of a decree. In Cox, the chancellor had entered a divorce decree making detailed findings as to the division of marital property and debts, but not including any finding as to the income-tax liability of the parties. The decree concluded with a provision by which the court retained jurisdiction “for the entry of other and further orders as may be necessary herein. . . .” More than ninety days later the chancellor modified the decree to require Mrs. Cox to either sign a joint 1983 tax return or to pay half of the additional tax liability that would result from her refusal to sign it. We upheld that modification, finding that Rule 60 was not applicable in that situation. However, in Cox there was extensive testimony in the record to support the chancellor’s finding that Mrs. Cox had agreed during her testimony that she would file a joint income tax return for 1983 and pay any tax liability. The chancellor found that in drafting the original divorce decree he relied upon Mrs. Cox’s testimony and that it led him to believe that she would sign the tax returns.
' In the present case, however, the record contains only a brief reference to appellant’s retirement plan to the effect that he agreed that it was marital property to the extent that it accrued during the marriage, and that it was divisible. There was no testimony that appellant agreed to any particular formula for division or any other details. There was no testimony as to how much of the retirement benefits accrued during the parties’ marriage nor any testimony about the appropriate formula to be applied in determining how much of the pension benefits should be awarded to appellee. There was simply no record made at the trial that would justify the chancellor in amending the decree to include a provision dividing the retirement plan on the strength of a provision in the original decree reserving the right to enter “all further orders as may be necessary.” If such a reservation is to be given any validity, the “further orders” must at least relate to and be supported by some evidence in the record. The evidence here is simply not sufficient to support the chancellor’s action.
The other points argued by appellee are found to be without merit. Therefore, we reverse and dismiss.
Jennings and Griffen, JJ., agree. | [
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Margaret Meads, Judge.
The City of Ozark, Arkansas, filed a condemnation complaint against appellees on June 14, 1993, for the purpose of constructing and maintaining a water-storage tank, water line, and roadway on land owned by appellees. Ozark posted a seventy-five hundred dollar ($7,500.00) bond with the circuit clerk’s office, and the circuit court entered an order of possession in favor of Ozark on June 14, 1993. Ozark filed a second amended complaint on November 30, 1994, to add newly discovered defendants. Answers were filed seeking a jury trial for the purpose of determining just compensation for the condemned property. A jury trial on the issue of compensation was held on January 11, 1996, and the jury awarded appellees $28,500 for their property.
The appellees requested attorney’s fees during the trial and after the return of the jury’s verdict. Plaintiff objected to an award of attorney’s fees on the basis that they were not authorized by law at the time the condemnation case was instituted or at the time the order of possession was entered. The judgment provided that “the said City of Ozark shall pay, in addition to the sum aforesaid, the sum of $8,634.05 to defendants’ attorney in accordance with Ark. Code Ann. § 18-15-605.” It is from this award of attorney’s fees that the City of Ozark appeals. We find no error and affirm.
It is established that attorney’s fees are not allowed except when expressly provided for by statute. Damron v, Univer sity Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988) (citing Harper v. Wheatley Implement Co., 278 Ark. 27, 643 S.W.2d 537 (1982)). In the case at bar, the statute governing damages for an eminent domain proceeding by a water company was amended to mandate attorney’s fees in certain situations, after entry of the order of possession but before trial and entry of the judgment.
Arkansas Code Annotated § 18-15-605 (1987), the statutory provision in effect when suit was instituted, provided:
18-15-605. Damages ■— Deposits.
The further proceedings in the matter of assessment of damages and the making of deposits to secure the owner shall be the same as is now prescribed by law in reference to condemnation proceedings by railroad, telegraph, and telephone corporations.
This statute, as revised by Act 1207 of 1995 and made effective April 11, 1995, now provides:
18-15-605. Damages — Deposits.
(a) The further proceedings in the matter of assessment of damages and the making of deposits to secure the owner shall be the same as is now prescribed by law in reference to condemnation proceedings by railroad, telegraph, and telephone corporations, except that the measure of damages shall be the fair market value of the condemned property at the time of the filing of the petition by the corporation or water association as may be determined by a jury based on the opinion of a licensed appraiser.
(b) In the case of application for orders of immediate possession by the corporation or water association, if the amount awarded by the jury exceeds the amount deposited by the corporation or water association in an amount which is more than twenty percent (20%) of the sum deposited, the landowner shall be entitled to recover the reasonable attorney’s fees and costs.
Ark. Code Ann. § 18-15-605 (Supp. 1995).
There is no question that the jury’s award of $28,500 as compensation for the land exceeded the $7,500 deposit by more than twenty percent. Therefore, if the statute has retroactive application, appellees are clearly entitled to recover reasonable attorney’s fees.
Appellant cites Arkansas Rural Med. Prac. Student Loan Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987), in support of its contention that there should be no retroactive application of the statute. However, Luter is distinguishable from the present case, because the statutory changes involved in that case impeded upon a substantive, or “vested,” right for which the student loan board contracted in promissory notes for loans made to Dr. Luter. The supreme court, in reversing the trial court’s decision to deny the student loan board relief, held, “The general rule can be stated categorically — laws affecting substantive rights operate prospectively.” Luter, 292 Ark. at 261, 729 S.W.2d at 403 (1987). There are no substantive rights at issue in the case at bar.
Both parties cite City of Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989), for their positions. The applicable statute in that case, Ark. Code Ann. § 16-22-308 (1987), allowed reasonable attorney’s fees to be assessed by the court and collected as costs. The trial judge in Bibb declined to award attorney’s fees on the basis that the act was not in effect when the action was commenced. The court of appeals, upon review, held that the correct resolution regarding whether or not a statute could be retroactively applied turned on whether the statute in question was characterized as “substantive” or “procedural.” Bibb, supra. In Bibb, the court cited Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962):
The rule by which statutes are construed to operate prospectively does not ordinarily apply to procedural or remedial legislation. The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature. (Citations omitted.)
30 Ark. App. at 37-38, 781 S.W.2d at 496 (1989).
Appellant cites Bibb for the proposition that the best argument which could be made against the retroactive application of the attorney’s fees statute is that the statute “deals not with the procedure for enforcing a remedy but rather with the substance of the remedy itself, i.e. it provides for the award of an attorney’s fee where none could be awarded before.” Bibb, 30 Ark. App. at 38, 781 S.W.2d at 496. However, in the next sentence, this court explicitly rejected that argument and determined that a statute which taxed attorney’s fees as costs was procedural in nature and that as such it should be given retrospective application. Bibb, supra. This rationale from Bibb was adopted by the Arkansas Supreme Court in Barnett v. Ark. Trans. Co., Inc., 303 Ark. 491, 798 S.W.2d 79 (1990).
Based upon these precedents, the question is whether the statute (1) is either procedural or remedial in nature or (2) creates a new obligation. In USAA Life Ins. Co. v. Boyce, 294 Ark. 575, 745 S.W.2d 136 (1988), the supreme court determined that the allowance of attorney’s fees is a procedural matter governed by the laws of the State of Arkansas. In Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987), this court quoted with approval the following language from Dargel v. Henderson, 200 F.2d 564 (Emer. Ct. App. 1952):
We think that this conclusion is in accord with the setded rule that changes in procedural or remedial law are generally to be regarded as immediately applicable to existing causes of action and not merely to those which may accrue in the future unless a contrary intent is expressed in the statute.
22 Ark. App. 196, 200, 737 S.W.2d 663, 665 (1987).
We find that the amendment to Ark. Code Ann. §18-15-605 was procedural in nature and was instantly applicable to existing causes of action. We affirm the decision of the trial judge in awarding attorney’s fees to appellees.
Affirmed.
Cooper and Stroud, JJ., agree. | [
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