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Andree Layton Roaf, Judge.
Garry Wayne Yell appeals from an order of the chancery court which awarded Elizabeth Faye Yell child support retroactive to 1991, pursuant to a petition to modify support which she filed in 1994. The chancellor based his award of back support upon a common-law duty to support. We agree that the chancellor abused his discretion in imposing retroactive support, and reverse.
Garry Wayne Yell and Elizabeth Faye Yell were divorced in 1982. The decree awarded Elizabeth custody of the Yells’ only child, Ty Logan Yell, and ordered Garry to pay $100 per month for child support. On August 10, 1988, the court modified the divorce decree, pursuant to an agreement between the Yells made with benefit of counsel, whereby Elizabeth would retain primary custody, but Garry’s visitation was significantly expanded to the extent that a shared-custody arrangement effectively existed. The order also terminated Garry’s support obligation.
In March of 1991, Ty began living with Elizabeth full time, but continued to spend time with Garry on a regular basis. Garry contributed toward his son’s support, albeit on an informal basis. On June 14, 1994, Elizabeth filed a petition to modify the August 10, 1988, order to again start receiving child support. In July 1994, Garry estimated the chart amount of support he would be Hable for and began to voluntarily pay $250 per month. Elizabeth later amended her petition to also seek retroactive support back to the time that she resumed full custody in 1991.
After a hearing, the chancellor entered an order on July 12, 1995, finding that a private agreement between the Yells ended the shared-custody arrangement approximately four years prior to Elizabeth’s June 14, 1994, filing of a petition to modify the August 10, 1988, order. Pursuant to this finding, the court charged Garry with a common-law duty of support and assessed him $172 per month for the years 1991, 1992, and 1993, for a total of $6,192.00, less a credit of $4,031.52 based on various receipts and records provided by Garry. Finally, the court ordered Garry to continue to pay the $250 per month in regular support that he began paying voluntarily in July 1994. Garry appeals from the order granting a judgment for support prior to the June 14, 1994, filing of the petition to modify.
Garry raises a single issue: that the trial court erred in retroactively imposing a financial obligation for support prior to the date of fifing of the petition for modification. Garry contends that Arkansas law does not allow a chancery court to make retroactive changes in a person’s child-support obligation. He relies upon Reigler v. Reigler, 246 Ark. 434, 438 S.W.2d 468 (1969), as support for this proposition. He further contends that any change to an existing order must be made by a court, and that the agreement to end the shared-custody arrangement was not effective in modifying the 1988 order. Garry submits Sheffield v. Strickland, 268 Ark. 1148, 599 S.W.2d 422 (1980), as his authority. We agree with both contentions.
It is well settled that a parent has a legal duty to support a minor child regardless of the existence of a support order. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 924 (1979); Nason v. State, 55 Ark. App. 164, 934 S.W.2d 228 (1996); Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983). Moreover, retroactive support is not illegal, and is often awarded when an initial support order is entered. See, e.g., Nason, supra; Pardon v. Pardon, 30 Ark. App. 91, 782 S.W.2d 379 (1990). See also Wilder v. Garner, 235 Ark. 400, 360 S.W. 2d 192 (1962) (mother awarded back child support where divorce decree granting custody made no provision for support).
However, retroactive modification of a court-ordered child-support obligation may only be assessed from the time that a petition for modification is filed. Ark. Code Ann. § 9-14-234 (Supp. 1995); Grable v. Grable, 307 Ark. 410, 821 S.W.2d 21 (1991); Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996). Additionally, it is well settled that a support order by a court of competent jurisdiction remains in force until modified by a subsequent decree, or in fimited situations by operation of law. Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993); Laroe v. Laroe, 48 Ark. App. 192, 893 S.W.2d 344 (1995).
A chancellor has discretion to set the amount of child support, and his findings in this area will not be disturbed absent an abuse of discretion. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996); Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994). Absent a specific finding of fraud in procuring an existing support decree, however, it is an abuse of discretion to impose a retroactive modification of a support order beyond the filing date of a petition to modify. Beavers v. Vaughn, 41 Ark. App. 96, 849 S.W.2d 6 (1993).
In this case, Elizabeth sought modification of an existing court-ordered support provision, i.e., that neither party pay support because of a shared-custody arrangement. Consequently, the cases in which an award of retroactive support has been upheld are inapplicable to the facts of this case, and we hold that the chancellor abused his discretion in retroactively modifying Garry’s support obligation to embrace a period of time before Elizabeth filed her petition to modify. Because this Court reviews chancery cases de novo on the record, we accordingly find that Garry’s support obligation applies only from the fifing date of the petition to modify. Because the chancellor allowed a credit in excess of the arrearage which would result, that part of the July 12, 1991, order granting judgment against Garry in the amount of $2,160.48 is reversed.
Reversed.
Robbins, C.J., and Griffen, J., agree. | [
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Andree Layton Roaf, Judge.
Appellant Booker T. Chambers appeals from a ruling by the Workers’ Compensation Commission that his asbestosis claim, filed more than three years after his retirement on permanent disability due to other causes, was barred by the three-year statute of limitations applicable to asbestosis and silicosis claims. We affirm the Commission’s ruling.
Chambers was employed by the appellee, International Paper Company (“IP”), for thirteen years. During this employment, he suffered from high blood pressure, a heart condition, arthritis, and diabetes. The record reflects that Chambers was or may have been exposed to asbestos during his employment with IP and that he was also a smoker. On May 16, 1990, Chambers became ill at work and was hospitalized with congestive heart failure. As a result, he never returned to work and ended his employment with IP in July 1990. Chambers applied for long-term disability benefits in January 1991 and was retired on permanent disability in July 1991.
The pertinent facts that gave rise to Chambers’s workers’ compensation claim for asbestosis are as follows. During his employment, certain pulmonary screening examinations were performed on Chambers by IP in 1985 and 1989. The 1985 examination indicated a finding of pleural abnormalities consistent with pneumoconiosis (lung disease caused by the inhalation of irritants), and diffuse pleural thickening. There is no evidence that the results of this medical exam were disclosed to Chambers at that time and he continued to work at IP. A second pulmonary-function examination was performed in March 1989 and indicated that Chambers’s lung function was so low that he could not use a respirator except in emergency situations. The evidence reflects that the 1989 exam report was either picked up by Chambers or mailed to his personal physician, and that Chambers discussed this report with his physician.
In April 1991, after Chambers had applied for disability retirement, he was examined by a Little Rock physician, who noted “diffuse pulmonary infiltrates, [questionable] cause, with consideration to be asbestosis.” Finally, Chambers consulted with another physician between February and August of 1993, and was diagnosed with moderate to severe restrictive lung disease caused by asbestos. Chambers last saw this physician in August 1993. After receiving the diagnosis of asbestosis, Chambers filed a “notice of injury” on June 28, 1993, more than three years after he last worked at IP on May 16, 1990.
IP timely asserted the three-year statute of limitations for asbestosis claims as a defense; the administrative law judge (“ALJ”) agreed that the three-year statute found in Ark. Code Ann. §11-9-702(a)(2)(A) (Repl. 1996) barred Chambers’s claim, but also found that Chambers had suffered an “occupational injury” in May 1990. Chambers appealed to the foil Commission, which affirmed and adopted the decision of the ALJ.
On appeal, Chambers makes two arguments: 1) based on the facts of his case, the ruling of the Commission is contrary to the Arkansas workers’ compensation law; and 2) the ruling of the Commission violates state and federal due process, equal protection, and the American -with Disabilities Act of 1990.
1. Arkansas Workers’ Compensation Laws
For his first point, Chambers argues that the statute of limitations in a latent disease case involving the exposure to asbestos begins to run from the date of an informed diagnosis of an asbestos-related disease, and the Commission’s failure to apply this standard violates Arkansas law. The ALJ found that Chambers’s claim for asbestosis was barred by the three-year statute of limitations found in Ark. Code Ann. § ll-9-702(a)(2)(A) (Repl. 1996), which states in pertinent part:
[a] claim for compensation for disability on account of silicosis or asbestosis must be filed with the Commission within one (1) year after the time of disablement, and the disablement must occur within three (3) years from the date of the last injurious exposure to the hazard of silicosis or asbestosis.
(Emphasis provided.)
As Chambers last worked for IP on May 16, 1990, and his notice of injury was filed on June 28, 1993, his claim was clearly filed more than three years after the date of his last possible injurious exposure. Moreover, the ALJ found that Chambers suffered an “occupational injury” in May 1990, and Chambers retired on foil permanent disability no later than July 1991; Chambers does not assert that he suffered any disablement within the year prior to filing his asbestosis claim in 1993, and within three years of his last injurious exposure in May 1990, as required by the statute of limitations. Chambers instead argues that the Commission misapplied the three-year statute of limitations in his case because he should be excepted from the requirement that his claim be timely filed, pursuant to Ark. Code Ann. § 11-9-701 (Repl. 1996). Section 11-9-701, entitled “Notice of Injury or Death,” provides in pertinent part:
(a)(1) Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer. . . .
.... (b)(1) Failure to give the notice shall not bar any claim:
(A) If the employer had knowledge of the injury or death;
(B) If the employee had no knowledge that the condition or disease arose out of and in the course of the employment; or
(C) If the commission excuses the failure on the grounds that for some satisfactory reason the notice could not be given.
(Emphasis provided.)
However, this statutory exception is inapplicable to Chambers’s case for two reasons. The statute requires that an employee immediately give notice of an injury to the employer and the exception provided serves only to excuse the employee’s failure to notify the employer of an injury. Chambers’s case does not turn on the failure to notify IP of his injury but rather the failure to timely file his claim, and the statutory exception relied upon by Chambers thus has no direct application to the facts of his case. Although Chambers also relies upon Gunn Distrib. Co. v. Talbert, 230 Ark. 442, 323 S.W.2d 434 (1959), for the proposition that his failure to give timely notice of injury does not bar his claim because IP did not plead or prove prejudice, Talbert is also inapplicable to this case. Unlike IP, the employer in Talbert failed to timely raise the statute of limitations as a defense and had actual knowledge of the injury, a heart attack, because of a medical claim filed by Talbert. The court reasoned in Talbert that the employer and his insurer thus had not been prejudiced by the failure to give timely notice of the injury.
Chambers’s argument that he is entitled to an exception lacks merit for a second reason — it is based on a faulty premise: that IP had certain knowledge of a compensable injury, or that Chambers had no knowledge that his condition arose out of and in the course of his employment. This contention is contrary to the findings of fact by the ALJ, who found that Chambers picked up a copy of his 1989 pulmonary-function test and that he accordingly had knowledge of his condition at least by 1989. Chambers also testified that he took the test report to his family physician and discussed with her the fact that he had pain in his chest. Consequently, Chambers’s argument that, under the facts of his case, he should be excused from the requirement that he timely file his claim is without merit.
With regard to the finding by the Commission that Chambers’s claim was barred by the statute of limitations, this court views the evidence and all reasonable inferences deducible therefrom in a light most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Arkansas Dep’t of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). We will reverse the Commission’s decisions only when convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Patrick v. Arkansas Oak Flooring Co., 39 Ark. App. 34, 833 S.W.2d 790 (1992). If reasonable minds could reach the Commission’s conclusion, we must affirm the decision. Arkansas Dep’t of Health v. Williams, supra.
Here, Chambers has not shown that the Commission’s ruling was not supported by substantial evidence. It is obvious from the record that both IP and Chambers had the 1989 medical information prior to Chambers’s May 16, 1990, heart problem which ended his employment. Subsequently, Chambers had several medical evaluations that further documented his condition. Consequently, the Commission’s finding that Chambers knew or should have known of his condition is clearly supported by substantial evidence in the record and was correctly found to be the basis for applying the statute of limitations to his claim. Because it is uncontroverted that Chambers did not return to work after May 16, 1990, that day had to be his last possible injurious exposure to asbestos, and the three-year limitation logically began to run no later than that date. It is also uncontroverted that Chambers did not file his claim until June 28, 1993, nearly six weeks after the three-year statute of limitations had expired.
Finally, Chambers contends that Ark. Code Ann. § 11-9-529 (Repl. 1996), which requires employers to file a report within 10 days of receipt of notice or of knowledge of injury to the Workers’ Compensation Commission, was violated by IP in this case, and as a result, the Commission’s decision was erroneous as a matter of law. Chambers cites no authority for this contention, and although he fails to explain how this alleged violation is applicable in his case, this argument apparently has reference to IP’s knowledge of the 1985 and 1989 examination results. However, the law in Arkansas is well settled that an employer’s knowledge that certain facts may exist that might or might not result in a claim does not require the employer to recognize a claim before it is filed with the Commission. See Garrett v. Sears, 43 Ark. App. 37, 858 S.W.2d 146 (1993). We thus hold that the Commission’s decision is supported by substantial evidence.
2. Constitutional Claims
Chambers also argues that the ruling of the Arkansas Workers’ Compensation Commission violates state and federal due process, equal protection, and the Americans with Disabilities Act of 1990.
We do not reach these points because Chambers has failed to include any portion of the arguments made on these issues before the Commission or any portion of the Commission’s order dealing with these issues. In fact, there is no indication in Chambers’s abstract that these issues were even raised to the Commission, and we will not go to the record to determine whether reversible error occurred. See Death & Perm. Total Disab. Fund v. Whirlpool, 39 Ark. App. 62, 837 S.W.2d 293 (1992).
Affirmed.
Robbins, C.J., and Neal, J., agree. | [
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Terry Crabtree, Judge.
Appellant was convicted of exposing another to human immunodeficiency virus (HIV) in violation of Ark. Code Ann. § 5-14-123 (Repl. 1993) and was sentenced to thirty years in the Arkansas Department of Correction. He asserts three issues on appeal, contending that the trial court erred by allowing the State to introduce evidence that the victim had tested positive for HIV; that the trial court erred in limiting his cross-examination of the victim regarding other sexual contacts; and that the trial court erred in allowing certain rebuttal testimony. We affirm.
On August 13, 1993, appellant was listed as a contact for HIV and was tested for the virus at the Sebastian County Health Department at the request of Gary Wicke, an investigator for the Health Department. The test returned positive for HIV, and appellant was notified on August 26, 1993. Wicke advised appellant that according to Arkansas law, if he chose to have sexual intercourse, he must first inform his partner that he was HIV positive. Appellant wanted another test, and the Health Department tested him again that day. The results of the second test were also positive.
Appellant’s first assignment of error is that the trial court erred by allowing the State to introduce evidence that the victim was HIV positive. Appellant argues that the evidence was irrelevant and that its prejudicial value outweighed any possible probative value. However, appellant, who was acting pro se during this part of the trial, failed to preserve this point for appeal. At trial, appellant objected when the State began to question the witness who had participated in testing the victim for HIV as to the results of the victim’s test. The following occurred:
Mr. Weaver: I object.
Mr. Tabor: — the September of 1994.
Mr. Weaver: I object.
The Court: Overruled.
Mr. Weaver: Do I need to state the basis why, sir?
The Court: Yes, sir. State it.
Mr. Weaver: Okay. Your Honor, we contend that the aspects that [the victim] is HIV positive
Mr. Tabor: I’m sorry?
The Court: Well, I don’t know what his objection is, really.
Mr. Weaver: We contend that that the fact that [the victim] is positive, she’s been exposed, this is not infection as been exposed, and that test result indicates that she is positive. This is no exposure.
The Court: Objection is overruled.
This court will not consider arguments that are raised for the first time on appeal. Nix v. State, 54 Ark. App. 302, 925 S.W.2d 802 (1996). “[T]o be preserved on appeal, an objection must be made to the trial court with sufficient clarity that the trial court has a fair opportunity to discern and consider the argument.” Abernathy v. State, 278 Ark. 250, 251, 644 S.W.2d 590, 591 (1983) (citations omitted). Appellant did not make clear to the trial court the basis for his objection to the evidence that the victim was HIV positive. The arguments that appellant raises on appeal, that the evidence was irrelevant and unfairly prejudicial, are not deducible from the above-quoted objection. Therefore, the trial court did not have “a fair opportunity to discern and consider the argument,” Abernathy, supra, and we will not consider it on appeal.
For his second assignment of error, appellant contends that the trial court erred in limiting his cross-examination of the victim regarding other sexual partners. Appellant argues that the State opened the door to evidence of other sources from which the victim could have contracted the virus by presenting the testimony that the victim was HIV positive. In Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), the supreme court rejected the appellant’s argument that the trial court should have allowed evidence of a similar murder to show that the same person could have committed the murder of which the appellants were accused. The court stated:
To address this issue, we must consider under what circumstances evidence incriminating others is relevant to prove a defendant did not commit the crime charged. In Killian v. State, 184 Ark. 239, 42 S.W.2d 12 (1931), and West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973), the defendants attempted to introduce testimony that other parties had been charged with the offense for which they were being tried. In each case, we upheld the Trial Court’s refusal to allow the testimony because there was no evidence showing the other party was guilty.
Addressing this precise issue, the Supreme Court of North Carolina stated:
A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible.
State v. Wilson, 367 S.E.2d 589 (N.C. 1988). The Supreme Court of California has recognized that a defendant has the right to present evidence of third party culpability but stated:
[T]he rule does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability . . . ¡E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.
People v. Kaurish, 802 P.2d 278 (Cal. 1990).
Id. at 75-76, 852 S.W.2d at 323.
The number of sexual partners of the victim would only be relevant if appellant could show that one or more had HIV and that the victim was exposed to it through them or that the victim knew they had HIV and disregarded the dangers associated with having sexual intercourse with them. However, appellant did not profFer any evidence that the suspected sexual partners of the victim did have the virus or that the victim contracted the virus by anything other than the relationship she had with appellant. The nexus linking the third parties with the elements of the offense was lacking. Therefore, the trial court properly refused to allow appellant to ask questions concerning the victim’s past sexual encounters.
For his last assertion of error, appellant contends the trial court erred by admitting the rebuttal testimony of Gary Wicke, the investigator for the Sebastian County Health Department. At the close of appellant’s case, in which appellant testified that he told the victim that he was HIV positive prior to having sexual intercourse with her, the State informed the trial court that it wished to recall Gary Wicke to testify that appellant had stated to him that if he was truly positive, he would give HIV to everyone he could. The State explained that it had just learned of the statement by appellant and did not use the statement in its case-in-chief because it had not provided it to appellant in discovery. The State contended that the testimony became relevant after appellant testified that he told the victim he had tested positive for HIV and that the testimony of Gary Wicke would refute his testimony.
The trial court did not err in admitting the testimony of Gary Wicke as rebuttal testimony. The prosecuting attorney is required, upon a timely request, to disclose to a defendant all statements made by the defendant of which the prosecuting attorney has knowledge. Ark. R. Crim. P. 17.1 (a) (ii). However, the State need not disclose true rebuttal evidence. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). In Pyle, the supreme court explained rebuttal evidence:
The answer lies in whether Heflin was properly a rebuttal -witness. If so, the state was not required to disclose him before trial. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Also, the scope of his testimony in that event is given wide latitude, and it will not be restricted merely because it could have been presented on direct. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).
The definition of rebuttal evidence found in Birchett v. State is instructive. We wrote that genuine rebuttal evidence “consists of evidence offered in reply to new matters.” Id. at 20. We said that evidence can still be categorized as genuine rebuttal evidence even if it overlaps with the evidence in chief. However, the evidence must be responsive to that which is presented by the defense. Id. at 19.
Id. at 178-79, 862 S.W.2d at 830.
Gary Wicke’s testimony was offered to rebut the testimony of appellant that he had told the victim that he had tested positive for HIV. Gary Wicke’s testimony went to the intent of appellant not to tell anyone that he had the virus in order to expose them to it. It was proper rebuttal testimony and admissible.
Affirmed.
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John Mauzy Pittman, Judge.
The appellant, Genevieve Elliott, appeals from an order staying the proceedings on her wrongful-death complaint against appellee, Boone County Independent Living, Inc., until appellant paid appellee’s costs and attorney’s fees in connection with a previously dismissed wrongful-death action. Appellant argues that the trial court was without authority to make payment of attorney’s fees a condition to having the stay lifted. Because we conclude that appellant’s point was not preserved for appeal, we do not address it on its merits, and we affirm.
Appellant first filed her wrongful-death lawsuit against appel-lee on May 7, 1993. On February 10, 1994, appellant took a voluntary nonsuit pursuant to Ark. R. Civ. P. 41. Appellant refiled the action on February 9, 1995. Appellee answered and, citing Ark. R. Civ. P. 41(d), moved for an order staying the proceedings until appellant paid appellee $105.68 in costs and $4,055.68 in attorney’s fees associated with the first action. Appellant did not respond to the motion. Subsequendy, the trial court entered an order reciting the above facts and giving appellant until July 14, 1995, to respond to appellee’s motion. Again, appellant filed nothing. On September 7, 1995, the trial court, specifically noting the lack of any response by appellant to appel-lee’s motion, entered an order staying the proceedings until appellant paid appellee $105.68 in costs and $3,000.00 in attorney’s fees. This appeal followed.
Rule 41(d) of the Arkansas Rules of Civil Procedure provides as follows:
Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action, or who has suffered an involuntary dismissal in any court, commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.
Appellant argues that this rule does not authorize trial courts to order the payment of attorney’s fees as “costs.” Appellant notes that the supreme court has not decided this issue, see Transit Homes, Inc. v. Bellamy, 287 Ark. 487, 701 S.W.2d 126 (1985), but cites Brady v. Aiken, 273 Ark. 147, 617 S.W.2d 358 (1981), for the general proposition that attorney’s fees are not to be allowed as costs except as provided by statute or court rule. See also Arkansas Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995). We recognize that appellant’s argument is a strong one and may well have merit. However, because appellant failed to raise the issue in any way before the trial court, we are unable to address it.
It has long been held that Arkansas courts have no plain-error rule. Subject to very limited exceptions, none of which are applicable here, the rule in this state is that an argument for reversal will not be considered on appeal in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); see Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Sturgis v. Lee Apparel Co., Inc., 304 Ark. 235, 800 S.W.2d 719 (1990). The rule requiring an objection below is no less applicable to questions regarding the award of attorney’s fees. See Farm Bureau Mut. Ins. Co. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996); Benton v. Barnett, 53 Ark. App. 146, 920 S.W.2d 30 (1996). Under the particular facts of this case, where the motion for fees was not acted upon for over six months, during which time the trial court specifically invited appellant to respond to the motion, application of the general rule is especially appropriate.
It was argued in our conference of this case that the trial court lacked “subject-matter jurisdiction” to award attorney’s fees under Ark. R. Civ. P. 41(d), and that the issue may, therefore, be raised for the first time on appeal. We conclude, however, that the court did not lack subject-matter jurisdiction over the question of attorney’s fees.
In Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987), we explained:
The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exer cised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court’s jurisdiction to act upon the subject matter, that action is binding until reversed or set aside. [Citations omitted.]
Id. at 149, 737 S.W.2d at 170; see Leinen v. Arkansas Dep’t of Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994); In re: Adoption of D.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992); see also Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990).
Clearly, subject-matter jurisdiction of wrongful death actions, such as are involved here, is vested in the circuit courts of this state. Just as clearly, the circuit court is also empowered with authority to hear and determine requests for costs and fees growing out of actions within its assigned jurisdiction. While the court here may have erred in its decision or proceeded irregularly in exercising its assigned jurisdiction, that is entirely different from the matter of its jurisdiction to determine whether to exercise that power or not.
Finally, we note the case of Lewallen v. Bethune, 267 Ark. 976, 593 S.W.2d 64 (Ark. App. 1980). There, among other things, this court reversed an award of attorney’s fees despite the lack of an objection in the trial court. To the extent that Lewallen conflicts with this opinion, it is wrong and is overruled.
Affirmed.
Robbins, C.J., and Rogers, Stroud, and Neal, JJ., agree.
Griffen, J., dissents. | [
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John B. Robbins, Chief Judge.
Pocahontas Moose Lodge #2405, one of the appellants herein, filed an application for a private-club permit with appellant Arkansas Alcoholic Beverage Control (ABC) Division on May 20, 1994. The ABC Division thereafter received written objections to the application from the Randolph County Sheriff, the Pocahontas Assistant Chief of Police, and appellee Leo King, a nearby property owner. As a result of the public-official objections, the ABC Division Director initially denied the application on June 23, 1994, and the applicant appealed. After a hearing before the ABC Board, the Board voted to grant the application, and this decision was appealed to the Randolph County Circuit Court on October 18, 1994. The circuit court reversed the decision of the ABC Board and denied the application on October 13, 1995. The appellants now appeal the ruling of the circuit court, arguing that it erred in finding that the ABC Board’s decision to grant the permit was not supported by substantial evidence. In addition, the appellants contend that the circuit court erred by usurping the authority and discretion of the ABC Board, thereby substituting its judgment for that of the administrative agency. We affirm the decision of the circuit court.
Review of administrative decisions, both in the circuit court and here, is limited in scope. In Re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992). Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Arkansas Alcoholic Beverage Control Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1992). Administrative action may be regarded as arbitrary and capricious only when it is not supportable on any rational basis. Partlow v. Arkansas State Police Comm’r, 271 Ark. 351, 609 S.W.2d 23 (1980). The appellate court’s review is directed, not toward the circuit court, but rather toward the decision of the agency. In Re Sugarloaf Mining Co., supra. Judicial review is limited 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. First National Bank v. Arkansas State Bank Comm’r, 301 Ark. 1, 781 S.W.2d 744 (1989).
Arkansas Code Annotated section 3-9-222(f) (Repl. 1996) provides that the ABC Board may issue a permit to operate a private club if the applicant is qualified and the application is in the public interest. Arkansas Code Annotated section 3-4-201 (b) (Repl. 1996) pertains to the restricting of the quantity of permits issued in the state and provides:
The Alcoholic Beverage Control Board is empowered to determine whether public convenience and advantage will be promoted by issuing the permits and by increasing or decreasing the number thereof; in order to further carry out the policy here-inbefore declared, the number of permits so issued shah be restricted.
There are a number of factors that the ABC should consider before making such a determination, including the number and types of alcoholic permits in the area, economic impact, traffic hazards, remoteness of the area, degree of law enforcement available, input from law enforcement or other public officials in the area, and comments from area residents in opposition or support of the permit. Edwards v. Arkansas Alcohol Beverage Control, 307 Ark. 245, 667 S.W.2d 660 (1984).
Gordon Steven Rice is the secretary of Pocahontas Moose Lodge #2405 and testified on its behalf. He stated that the lodge currently had 192 members and had been in existence for a little more than a year. Mr. Rice explained that the continuing practice was for each member to bring his own beer to the lodge, and that no member was allowed to possess more than 24 beers on the lodge premises. He further testified that no alcohol was sold on the premises and that sometimes he would take beer orders and transport alcoholic beverages from a nearby wet county to the lodge, and that this practice made him uncomfortable. Mr. Rice explained that the purpose of the lodge is to provide a social atmosphere and to raise money for charities and the community. According to Mr. Rice, there were no membership dues. Instead, the members would donate money, which would later be used for operating expenses. Mr. Rice opined that, if the application were granted, this would benefit the community. He based this opinion in part on the fact that there are only two other private clubs in the county, one of which is a relatively expensive country club, and the other of which has its membership restricted to veterans.
Appellee Leo King testified against the private-club application. He stated that he lives 190 feet from the lodge, and that their activities cause a general disturbance. Mr. King gave accounts of loud music being played late at night as well as beer cans Uttering the premises. He believed that the granting of a permit would lower the value of his property, and he testified that all of the neighbors in the vicinity of the lodge opposed its application.
Sheriff Rob Sammons also testified that he was in opposition to the application. He noted that there were not extensive problems with the existing private clubs, but expressed concern that another club might cause too heavy a burden on the sheriff s office. Sheriff Sammons did, however, acknowledge that the lodge serves a useful purpose in the community.
There was other evidence presented on behalf of the appellee which purported to show that the lodge had previously engaged in illegal activities. For example, it was established that a member of the lodge had been convicted of selling a beer to an ABC agent. In addition, the appellee introduced minutes of some of the lodge’s meetings which purported to show that alcohol was being sold on the premises. Minutes from a December 7, 1993, meeting included a handwritten notation indicating that prices on drinks would be $2.00 on everything but Crown [Royal] and $1.00 for beer. Minutes from a January 10, 1994, meeting indicated that a proposal had been made to have a happy hour from 4:00 p.m. until 6:00 p.m., during which drink prices would be reduced by 25 cents.
We find that the decision of the ABC Board was characterized by an abuse of discretion and was not supported by substantial evidence. This is because, in granting the private-club permit, the ABC Board failed to abide by two of its own regula tions. Therefore, we affirm the circuit court’s decision to deny the permit.
ABC Regulation 1.32(2) provides the following:
Section 1.32. Persons not entitled to Issuance of Permit. No permit shall be issued to:
(2) Persons Giving False Information or Statements in Application or Hearing. Any individual, partnership or corporation if such individual or any member of such partnership or any officer, director, managing agent or stockholder holding more than five percent (5%) of the stock in such corporation knowingly gave any false information or made any false statements on any application or any hearing required by these Regulations or by any Alcoholic Beverage Control Law of the State of Arkansas [.]
In the instant case, secretary Gordon Steven Rice acknowledged that a lodge member, namely Tommy Starr, had previously sold a beer to an ABC agent and had been reprimanded for doing so. In addition, Mr. Rice was aware of lodge minutes which indicated that the lodge would have a happy hour and would charge for alcoholic beverages. Despite having this knowledge, Mr. Rice testified that, “We do not sell liquor in violation of the law,” and further stated, “To my knowledge we have never sold liquor at all.” It is apparent from the evidence presented that, on at least one occasion, the lodge had engaged in the practice of selling beer. Because Mr. Rice knowingly provided false information at the hearing, the ABC Board erred in issuing the permit.
From an inquiry into the record of this case, it is also evident that ABC Regulation 1.32(6) had been violated; this regulation reads as follows:
Section. 1.32 Persons Not Entitled to Issuance of Permit. No permit shall be issued to:
(6) Persons Convicted of Certain Crimes. Any individual, partnership or corporation if such individual or any member of such partnership or any officer, director, managing agent or any stockholder holding more than five percent (5%) of the stock of such corporation has been convicted of a felony or has within (5) five years before the date of application been under the sentence of any Court for the conviction of any violation of the laws of the State of Arkansas or any state of the United States relating to alcoholic beverages [.]
It is undisputed that Tommy Starr had previously violated alcoholic-beverage laws and was convicted after illegally selling a beer on lodge premises. Minutes from a lodge meeting held on April 25, 1994, listed the officers who were elected for 1994 and 1995. Among these officers was three-year trustee Tommy Starr. Because an officer of the nonprofit corporation had been convicted of an alcohol-related offense within five years of application for the permit, the ABC Board was without authority to issue the permit pursuant to its own rules.
The appellant’s remaining argument is that the circuit court erroneously usurped the authority and discretion of the ABC Board in reversing its decision. We disagree. It is the function of the circuit court to uphold decisions of the ABC Board when such decisions are supported by substantial evidence. In the instant case, the circuit court properly exercised its authority, and its decision to reverse the board was a correct one in light of the fact that the pertinent ABC regulations prohibited the issuance of a private-club permit.
Affirmed.
Stroud and Griffen, JJ., agree.
Pittman, Jennings, and Rogers, JJ., dissent.
We acknowledge that we have gone to the record to determine that Mr. Starr was an officer. However, in the instant case we are affirming the decision of the circuit court, and it has been established that an appellate court may go to the record to affirm. See Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995). Although this case is a unique one in that we are actually reviewing the decision of the ABC Board and not the circuit court, we know of no authority that prevents this court from affirming a case without the benefit of an abstract that demonstrates the error committed by the administrative agency. | [
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Wendell L. Griffen, Judge.
Val Jamison and his wife, Sara Lynn Jamison, appeal from a decree by the Hempstead County Chancery Court that granted judgment in favor of the estate of Robert Sims Goodlett, deceased, against them for $185,645.30, plus prejudgment interest of $29,418.43 for the period beginning December 21, 1992, until August 11, 1995, upon a finding that appellants failed to prove that Robert Sims Goodlett made an inter vivos gift to them of all his land and personal property when he gave Val Jamison a power of attorney dated September 4, 1987. The chancellor also decreed that appellants are to return a 315-acre farm and all other property that they hold that was previously owned by the decedent and which they obtained after Val Jamison transferred that property to Sara Lynn Jamison and himself by using the power of attorney. Appellants argue: (1) that the chancellor erred in granting a directed verdict in favor of the administrator of the estate of Robert Sims Goodlett and declaring the alleged gift to be invalid; (2) that the chancellor erred by holding that the statute of limitations had not run on the estate’s claim against Val Jamison for breach of fiduciary duty for refusing to deliver all of the decedent’s money and property where the estate brought suit on the breach of fiduciary duty claim within three years of December 21, 1992, the date of the decedent’s death; (3) that the chancellor erred in holding that appellants are required to return the undivided one-fourth interest of Reese Goodlett in the 315-acre farm; and (4) that the chancellor erred in awarding appellees $17,765.00 for attorney fees, and $2,940.25 for costs. We have conducted a de novo review of the record and hold that the chancellor’s decision was not clearly erroneous. Therefore, we affirm the chancellor’s decree on all points raised in the appeal.
Factual History
Robert Sims Goodlett lived in Hempstead County, never married, and had no offspring. During his later years, he lived with one of his brothers, David Sloman Goodlett (“Sloman”), with whom he operated a 315-acre farm that the two brothers owned as tenants in common as well as a country store in Ozan, Hempstead County, Arkansas. Sloman Goodlett died February 2, 1987, survived by Robert Goodlett and another brother, Jordan Reese Goodlett (“Reese”), who lived in Hot Springs, Arkansas, with his wife, Marie. Reese Goodlett inherited a one-fourth undivided interest in the farm when Sloman died, leaving Robert Goodlett with an undivided three-fourths interest.
Robert Goodlett was a first cousin to Rafe Goodlett, the father of appellant Sara Lynn Goodlett Jamison, and Rafe Good-lett had a farm on land adjoining the farm owned by Robert. During Rafe Goodlett’s lifetime, appellant Val Jamison would fix fences, cut bushes, and keep cattle on the Rafe Goodlett farm, and would visit Robert Goodlett. During the first few days of September 1987, Robert Goodlett became very ill. He arranged for Val Jamison to be contacted, and requested that Jamison take him to a local hospital for emergency treatment by his personal doctor. On the day after he was admitted to the hospital, Robert Goodlett informed Val Jamison that he needed to pay some pending bills and that he had a checking account at First National Bank of Hope. Val Jamison contacted a bank official (Martha Horn), who went with another bank employee (Alan Green) to visit Goodlett in order to obtain his consent to add Val Jamison’s signature to the checking account so that Jamison could pay Goodlett’s bills. After Horn questioned Goodlett to confirm that he understood the effect of adding Jamison’s signature to the account, Jamison signed the signature card and Goodlett initialed it.
According to Jamison, during the September 1987 hospitalization Goodlett became concerned about his health condition after his doctor indicated that he needed to undergo a surgical procedure and stated that he should place his affairs in order. Jam-ison testified that Goodlett stated that he wanted to give all of his money and property to Jamison and his wife, Sara Lynn. There were no other witnesses to the alleged conversation. On September 4, 1987, Jamison obtained a power of attorney from Goodlett that was prepared by Ed Alford, an attorney selected by Jamison. It does not appear from the record that Alford interviewed or otherwise conferred with Goodlett regarding preparation of the power of attorney. In fact, Goodlett had directed Jamison to consult another attorney concerning preparation of the power of attorney, but Jamison testified that the designated attorney (Jim Bob Steel) was unavailable so Jamison arranged for Alford to prepare the power of attorney instead.
Jamison began transferring Goodlett’s property to himself and to his wife after he obtained the power of attorney. On September 8, 1987, Goodlett underwent an endoscopic procedure that left him too weak to permit the surgical procedure that his doctor had contemplated. On September 11, 1987, Jamison obtained a warranty deed from Reese and Marie Goodlett, and Robert Goodlett (by Val Jamison under the power of attorney), which conveyed the 315-acre farm to Sara Lynn Jamison. Val Jamison had first asked Alford (the attorney who prepared the power of attorney) to prepare the warranty deed for the 315 acres to himself. After Alford indicated that this conveyance was unsound, Jamison directed that the land be conveyed to Sara Lynn, his wife. The deed was recorded on September 29, 1987. Jami-son also began closing or combining all of Goodlett’s bank accounts, including three accounts at First National Bank of Hope, one account at Citizens National Bank of Hope, two accounts at Citizens National Bank of Nashville, two accounts at First Federal Savings of Arkansas, and an account at First National Bank of Nashville. Jamison later moved Goodlett’s personal property to his (Jamison’s) house. These actions were taken using the authority vested by the power of attorney that Goodlett had given Jamison and, according to Jamison, were consistent with and pursuant to Goodlett’s statement that he intended to give Jamison and his wife all of the money and property. Jamison maintained Goodlett’s finances and personal property separate from his own, kept records of all transactions concerning Goodlett’s property and financial transactions related to his money, and reported to Good-lett about the warranty deed that conveyed the farm to Sara Lynn Jamison as well as the actions to close or combine Goodlett’s bank accounts.
Jamison testified at trial that Goodlett approved of the actions that were taken based on the power of attorney and did not express a desire to repudiate or change them. Jamison paid Good-lett’s bills each month, transacted his farm business, and handled the filing of his annual tax returns. In February 1989, Jamison signed a crop-share lease, as attorney-in-fact for Goodlett, in favor of Leroy Morrow. Goodlett’s tax returns from 1987 until 1990 reflect that profits from interest income, farm income, rents, and royalties were claimed as income on Goodlett’s tax returns, but Jamison testified that the profits from these items were actually placed in a separate account in Jamison’s name that he maintained for Goodlett’s benefit. At some point in time Jamison sold a car and cattle trailer that belonged to Goodlett, and deposited the sale proceeds into that account. He later purchased Goodlett’s GMC truck and deposited the $1,500 purchase price into the account that he maintained for Goodlett’s benefit. On September 10, 1990, Jamison changed the beneficiary on a life insurance policy that Goodlett had purchased from Reese Goodlett to Sara Lynn Jamison following Reese Goodlett’s death on July 23, 1990.
Robert Goodlett died intestate on December 21, 1992. As of that date, $185,645.30 remained from the money that he owned. His estate made demand upon Val Jamison and Sara Lynn Jamison for the return of all property and monies held by them as trustees for Robert Goodlett. Appellants refused to return the property and monies, contending that Goodlett had made a valid inter vivos gift to them. The estate then filed suit for an accounting; imposition of a constructive trust covering all monies and property held by appellants based upon the fiduciary relationship between Robert Goodlett and Val Jamison; for a determination that any gift alleged by appellants was void; and for reasonable attorney’s fees, costs, and interest. Appellants resisted the suit and contended that Goodlett made a valid inter vivos gift to them of the monies and property. Alternatively, appellants argued that the statute of limitations had run before the estate filed suit, and that the estate’s claim was barred by the equitable doctrine of laches.
After receiving testimony from thirteen witnesses, and following the estate’s motion for directed verdict, the chancellor granted the estate’s motion and entered a decree finding that appellants had failed to prove the validity of a gift from Robert Goodlett “beyond a reasonable doubt.” The chancellor also ruled that the appellants failed to prove by a preponderance of the evidence that a gift was made or intended by Robert Goodlett. The chancellor held that the power of attorney executed by Goodlett in favor of Val Jamison created a fiduciary relationship that Jamison breached when he failed to return Goodlett’s monies and property to Goodlett’s estate after his death, and that the three-year statute of limitations for the breach-of-fiduciary-duty claim did not begin to run until Goodlett died on December 21, 1992, and had not expired when the estate filed its lawsuit in 1994. Based upon those findings and conclusions, the chancellor entered the decree from which this appeal has been taken by appellants.
The Inter Vivos Gift Argument
Appellants first contend that the chancellor applied the improper standard of proof in ruling on the estate’s motion for directed verdict. In the decree, the chancellor addressed the burden of proof as follows:
The Court finds and determines that the burden of proof required to prove the validity of a gift of this magnitude and made in this manner requires a standard of proof “beyond a reasonable doubt.” The Court is noting this standard of proof in the event there is an appeal because the law is not clear as to the appropriate standard of proof required to prove a gift made under these circumstances.
The Court finds that the Defendants have not only failed to prove beyond a reasonable doubt that a gift was made by the decedent, but that they have also failed to prove by a preponderance of the evidence that a gift was made or intended by the decedent.
Appellants rely upon Mercantile Bank v. Phillips & Glasco, 260 Ark. 129, 538 S.W.2d 277 (1976), for the proposition that a donee who has a fiduciary relationship with a donor must present clear and convincing evidence to overcome the presumption that a gift arising from that relationship is void. Appellee concedes that this is a correct statement of the law, citing Birch, Adm. v. Coleman, 15 Ark. App. 215, 691 S.W.2d 875 (1985), for the same proposition. Thus, the parties agree that the chancellor erred by ruling that appellants were obligated to prove that the decedent intended and effected a gift of his property and monies beyond a reasonable doubt.
However, the chancellor’s misapprehension regarding the burden of proof does not preclude an appellate court from undertaking a de novo review of the case and entering judgment upon the proper standard of proof. See Maroney v. City of Malvern, 320 Ark. 671, 899 S.W.2d 476 (1995), where the Arkansas Supreme Court held that although a chancellor had based his decision upon an erroneous conclusion, the appellate court was not precluded from reviewing the case de novo and entering judgment as was proper. The relevant inquiry is not merely whether the chancellor erred concerning the burden of proof, but whether his judgment was proper when the proof is measured by the proper standard.
It is well settled that a directed verdict is only proper where the evidence, when viewed in the light most favorable to the nonmovant, is so insubstantial as to require a jury verdict for the movant to be set aside. City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). On appeal from a chancery court order granting a directed verdict, the court on appeal must decide specifically whether the plaintiff made out a prima facie case of enti tlement to the relief requested. Shaver v. Spann, 35 Ark. App. 118, 813 S.W.2d 280 (1991). This requires that the evidence presented by the party against whom the directed verdict is sought must be given the highest probative value, taking into account all reasonable inferences therefrom. Cameron at 446.
Although the chancellor erred by holding appellants to the beyond-a-reasonable-doubt standard of proof regarding the validity of the alleged inter vivos gift from the decedent, our de novo review of the record leads us to conclude that the error was harmless because appellants failed to meet the clear-and-convincing-evidence standard of proof required to sustain an inter vivos gift. Arkansas law is clear that one seeking to sustain an inter vivos gift must prove by clear and convincing evidence that: (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. Howard v. Weathers, 55 Ark. App. 121, 932 S.W.2d 349 (1996). In Howard, we held that these elements had not been established where the proof showed that a decedent received a monthly stipend from money that she inherited from a sister. Id. at 124. The decedent had instructed Weathers to “take care” of the money that she was to inherit, and to send her $100 monthly, and had told Weathers that he could keep the remainder of the money when she died. After the decedent’s death, Weathers refused the request by the executrix of her estate to turn over the money, claiming that the decedent had made a gift of the money to him. We reversed the trial court’s decision dismissing the estate’s complaint, holding that the proof did not establish the elements necessary for a valid inter vivos gift because the decedent received the monthly stipend and retained authority to demand additional sums at her own pleasure, thus showing that she did not completely surrender dominion and control over the money by placing it with Weathers, and showing that she did not make an unconditional or irrevocable immediate and final gift of the money. Id.
We believe that the case before us involves a similar failure of proof. The chancellor held that appellants failed to present proof sufficient to establish, either beyond a reasonable doubt or by a preponderance of the evidence, that Robert Goodlett made a valid inter vivos gift to appellants when he executed the September 4, 1987, power of attorney. Although the beyond-a-reasonable-doubt standard is inapplicable because it is higher than the clear and convincing evidence burden that properly applies to analysis of evidence concerning alleged inter vivos gifts, the proof in this case contains shortcomings similar to that presented in Howard.
Appellants failed to establish by clear and convincing evidence that an actual delivery of Robert Goodlett’s money and property took place; that Goodlett clearly intended to make an immediate, present, and final gift; that Goodlett unconditionally released all future dominion and control over the money and property; and that they accepted the money and property as a gift. Despite Val Jamison’s testimony that Robert Sims Goodlett intended to give all of his money and property to him and his wife when he executed the power of attorney, and that Goodlett never repudiated or objected to the transfer of his money and land into appellants’ names through the use of the power of attorney, Jami-son continued to account to Goodlett for the money and property. Jamison executed a crop-share lease in Goodlett’s name on February 20, 1989, in favor of Leroy Morrow, despite having transferred title to the land on which the crop was raised to Sara Lynn Jamison. The lease payments were credited to Goodlett, not to Jamison, even though Sara Lynn Jamison was the titled owner of the land that had been leased. Tax returns for Goodlett were prepared at Val Jamison’s direction, signed by him as attorney-in-fact for Goodlett, and reported interest earned on money attributed to him and held by appellants. Val Jamison maintained careful records of Goodlett’s money that had been transferred from the various bank accounts into accounts held in appellants’ names, and always kept Goodlett’s money separate from appellants’ money. Val Jamison admitted giving Goodlett periodic reports concerning the money and property, admitted that he paid Goodlett’s bills using Goodlett’s money, admitted that he did not use any of Goodlett’s money for his own purposes during Goodlett’s lifetime, and admitted that if Goodlett or his surviving brother (Reese Goodlett of Hot Springs) had expressed a desire to assume control over the money and property he would have accommodated that desire.
It is especially noteworthy that when Val Jamison decided to purchase a truck, he purchased a GMC truck from Goodlett, paid $1,500 for it, and deposited the sale proceeds into an account that he maintained exclusively for Robert Goodlett despite his assertion that Goodlett had already given the truck to him by virtue of the power of attorney. These and other factors constitute clear and convincing proof that Goodlett did not unconditionally release all future dominion and control over his property, that appellants did not accept his property as a gift (otherwise they would not have purchased and paid for what they already owned, as in the pickup truck), that actual delivery of his property did not take place, and that Goodlett did not intend to make an immediate, present, and final gift of his property.
Arkansas law has long held that all five elements must be established by clear and convincing proof in order for an inter vivos gift to be sustained. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992); Wright v. Union Nat’l Bank, 307 Ark. 301, 819 S.W.2d 698 (1991); Phipps v. Wilson, 251 Ark. 377, 472 S.W.2d 929 (1971); Maloy v. Stuttgart Memorial Hosp., 42 Ark. App. 16, 852 S.W.2d 819 (1993). It is not enough that a purported donor intend to make a gift, or intend even that the donor take actions that may support the view that he intended for a purported donee to have his property. The law requires clear and convincing proof that the donor was of sound mind, and that actual delivery of the property took place, and that the donor clearly intended to make an immediate, present, and final gift, and that the donor unconditionally released all future dominion and control over the property, and that the donee accepted the gift. Wright, 307 Ark. at 304. Even if one accepts appellants’ argument that Robert Sims Goodlett’s manic depressive condition did not deprive him of the soundness of mind required for effecting an inter vivos gift, they clearly failed to produce clear and convincing proof on the other four elements. Therefore, the chancellor’s decision that they failed to establish an inter vivos gift was not clearly erroneous, despite the fact that the chancellor applied an improper standard of proof.
Our decision sustaining the chancellor’s holding should not be interpreted as a judgment about the good faith of appellants in believing that Robert Goodlett had given his property to them, nor should it be viewed as disregarding the scrupulous attention that Val Jamison clearly gave to Goodlett’s care and to the upkeep of his affairs. Instead, our decision and the chancellor’s holding simply mean that appellants failed to present clear and convincing evidence that the well-established legal requirements for establishing an inter vivos gift were satisfied. Those requirements exist because claims of inter vivos gifts, by their very nature, are often susceptible to fraud and imposition. Howard, 55 Ark. App. at 124; (citing Krickerberg v. Hoff, 201 Ark. 63, 143 S.W.2d 560 (1940)). In many instances these gifts are claimed, as here, based upon parol evidence from the purported donee after the purported donor has died. The exacting requisites and clear-and-convincing-proof standard serve sound public-policy purposes of preventing mistake and confusion, as well as fraud and imposition. The law sets the standard of proof and defines the elements of proof that must be established; it is up to property owners and the persons who claim to be donees to supply the required proof.
The Statute of Limitations
Appellants also argue that the chancellor erred in holding that the statute of limitations had not run on appellee’s claim against them for breach of fiduciary duty. Arkansas Code Annotated § 16-56-105 is the applicable statute of limitations for breach of fiduciary duty. Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993). Appellants argue that the three-year limitations period prescribed by that statute began running no later than September 1987, when Val Jamison used the power of attorney to convey the 315-acre farm to Sara Lynn Jamison, as demonstrated by the warranty deed that was recorded on September 29, 1987. Because the administrator of Robert Goodlett’s estate did not commence this lawsuit until 1994, appellants maintain that the breach of fiduciary duty claim is barred by limitations.
Appellants’ limitations argument fails because there is no proof that Val Jamison acted to deprive Robert Goodlett of the rightful use and benefit of his money and property, even after he conveyed the 315-acre farm to Sara Lynn Goodlett. As already mentioned, Val Jamison was scrupulous in maintaining records of all monies earned by Goodlett and from his possessions. There is no proof that Val Jamison appropriated any part of Goodlett’s money or property for personal benefit during Goodlett’s lifetime. Indeed, the evidence shows that Jamison used several thousand dollars of Goodlett’s money to retire the debt on his (Jamison’s) personal residence, but this action took place only after Goodlett’s death. Goodlett died on December 21, 1992, and there is no allegation or proof that he or anyone acting for him was denied use of his property by Val Jamison before he died. Therefore, Jamison’s refusal to turn over Goodlett’s money and property obtained by way of the power of attorney to the administrator of Goodlett’s estate was the first action that was adverse to Goodlett’s estate for which a claim of breach of fiduciary duty could be asserted. The administrator of the estate filed this lawsuit in 1994, less than three years after Jamison refused to turn over Goodlett’s property and money. Accordingly, we do not find the chancellor’s rejection of appellants’ statute-of-limitations defense to have been erroneous.
The Reese Goodlett Interest in the Farm
We also find unpersuasive appellants’ challenge to that part of the chancellor’s decree that ordered them to return to appellee the undivided one-fourth interest in the farm that Reese and Marie Goodlett conveyed to Sara Lynn Jamison. Although appellants accurately assert that the decree did not specifically refer to the interest obtained from Reese Goodlett and that the prayer for relief did not specifically include a request for reconveyance of that interest, these arguments overlook the fact that appellee sued to have the deed set aside that conveyed the 315-acre farm in which Reese Goodlett held an undivided one-fourth interest and specifically sought to have the property revert to appellee. The complaint that appellee filed also sought an accounting of all money and property that appellants held for Robert Goodlett’s benefit.
Sara Lynn Jamison clearly held the deed to the farm by virtue of one transaction, namely the warranty deed dated September 11, 1987, from Robert Goodlett, by Val Jamison pursuant to the power of attorney, and from Reese and Marie Goodlett. The deeded farm was part of the rest of Robert Goodlett’s property covered by appellee’s lawsuit that sought imposition of a constructive trust over all property that appellants obtained from Robert Goodlett and held for his benefit. These factors persuade us that the chancellor’s ruling was not clearly erroneous insofar as it ordered appellants to return the one-fourth interest that they obtained from Reese Goodlett.
Attorney’s Fees and Costs
Appellants’ challenge to the provisions of the chancellor’s decree that awarded attorney’s fees of $17,765.00, and costs of $2,940.25, is also unpersuasive. There is no indication that appellants objected to appellee’s application for attorney’s fees and costs before the chancellor. The failure to timely object to what one believes to be trial court error has long been viewed a waiver of the objection, and we have consistently held that parties may not raise on appeal objections that were not made and preserved below. Estate of Tucker v. Tittertington, 46 Ark. App. 322, 881 S.W.2d 226 (1994); Garibaldi v. Dietz, 25 Ark. App. 136, 752 S.W.2d 771 (1988).
Affirmed.
Jennings and Bird, JJ., agree. | [
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James R. Cooper, Judge.
This is an appeal from the Workers’ Compensation Commission. The appellant argues that the Commission erred in finding that the appellee’s lung injury was not barred by Ark. Code Ann. § 11-9-805, which provides that the Commission loses jurisdiction over a claim where a joint petition has been entered concerning the same injury. We dismiss because the order appealed from was not an appealable order.
The appellee suffered an injury to his knee during the course of his employment in 1983, which required surgery. Shortly after the surgery the appellee suffered a lung injury which was diagnosed as a possible pulmonary embolus related to the recent surgical procedure. The appellee filed a claim with the Commission alleging that his lung injury was a result of the surgery and, therefore, compensable. The appellant insurance carrier controverted this claim, and a hearing was held on May 15,1984. Before the administrative law judge issued an opinion, the parties entered into a joint petition settlement. Subsequent to the May 15 hearing, it was discovered that the appellee had actually been suffering from silicosis, and the appellant filed a new claim with the Commission.
The administrative law judge found that the Commission had not lost jurisdiction of the claim because there were two different lung injuries in the two different claims. The administrative law judge titled his opinion, Interim Order and Opinion, and noted that although he was finding that the Commission did have jurisdiction over the claim, there were still potential issues concerning the statute of limitations.
The appellant appealed to the full Commission. In a one paragraph opinion, the Commission affirmed and adopted the decision of the administrative law judge, “including all findings and conclusions therein.”
The appellant then filed an appeal in this Court, arguing that the Commission’s findings that there were two injuries and that it had not lost jurisdiction were not supported by sufficient evidence.
For an order to be appealable, it must be a final order. Ark. R. App. P. Rule 2. To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. Hernandez v. Simmons Industries, 25 Ark. App. 25, 752 S.W.2d 45 (1988). This rule applies equally to appeals from the Workers’ Compensation Commission. Id.; Samuels Hide and Metal Co. v. Griffin, 23 Ark. App. 3, 739 S.W.2d 698 (1987). Interlocutory decisions and decisions on incidental matters are not reviewable for lack of finality, and ordinarily an order of the Commission is reviewable only at the point where it awards or denies compensation. Hernandez, supra. The issue decided in this case by the Commission is purely an incidental issue and did not dismiss the parties, discharge them from the action, or conclude their rights as to the subject matter in controversy.
Appeal dismissed.
Cracraft and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, Barton Boyd Adams, appeals (1) his conviction of possession of a controlled substance with intent to deliver for which he was sentenced to pay a fine of $3,000.00 and to serve four years in the Arkansas Department of Correction, and (2) his conviction of possession of drug parapher nalia for which he was fined $500.00.
There is evidence that Officer Joe Newsom of the Newport Police Department was on routine patrol about 6:30 p.m. on December 27, 1986, when he noticed a car, with no lights on, parked in a dark area near the high school. He also noticed that the vehicle was occupied but the motor was not running even though the weather was cold. Because of these facts and because there had been several burglaries in the area, Newsom pulled in behind the car and turned his spotlights on it. He approached the car on the driver’s side, tapped on the window and asked to see the identification of the two occupants. When the window was rolled down, the officer smelled a strong odor of marijuana coming from inside the vehicle.
Newsom then radioed his headquarters for a license check on the car and warrant check on the occupants. While waiting for the results, he observed the male passenger, appellant herein, making unusual movements as if he were stuffing something down the front of his pants. Newsom then went to the passenger’s side of the car, asked appellant to get out of the car and when he did, Newsom frisked him. A large plastic bag containing seven small plastic bags of what the officer recognized as marijuana, two roach clips, and some scales were found.
At a hearing on appellant’s motion to suppress the evidence, in response to questions by defense counsel, Officer Newsom characterized his actions as a “lucky guess, policemen’s intuition, just a hunch.” Appellant points out that under A.RXr.P. Rule 3.1, a law enforcement officer in the performance of his duties may stop and detain a person whom 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.” “Reasonable suspicion” 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 the probable cause requisite to justify a lawful arrest, 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.
According to the commentary on A.R.Cr.P. Rule 2.1, a reasona ble suspicion is not the equivalent of probable cause but is “somewhat more than an intuitive guess or hunch.” Appellant, therefore, emphasizes Officer Newsom’s testimony that his investigation of appellant’s car was only a hunch, policeman’s intuition, or a lucky guess and concludes there was .no reasonable suspicion for a stop. Appellant argues there was a violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution and that, under the exclusionary rule, the evidence seized should have been suppressed.
Appellant cites Reeves v. State, 20 Ark. App. 17, 722 S.W.2d 880 (1987), where we explained that the justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, articulable reasons to suspect that the person or vehicle may be involved in criminal activity. 20 Ark. App. at 22. See also Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882 (1982). Appellant then cites Van Patten v. State, 16 Ark. App. 83, 697 S.W.2d 919 (1985), where we reversed a conviction of driving while intoxicated because the police officer who stopped appellant did not have specific, particularized, and articulable reasons to suspect that a crime had been committed.
While we find no fault with appellant’s assessment of the law as stated in the cited cases, we do not agree that it mandates suppression of the evidence against him. In Van Patten, a Little Rock policeman received two radio calls, shortly after 11:30 p.m., in regard to a loud party disturbance at an apartment complex and a suspect who had driven off in a brown Jeep. The officer spotted a brown Jeep at an intersection near the apartments, stopped it, and discovered that the driver staggered and smelled strongly of alcohol. Although he registered 0.15 % blood alcohol on the breathalyzer machine, his conviction for driving while intoxicated was reversed because a majority of this court thought that the officer making the stop did not have a “reasonable suspicion” the appellant had been involved in criminal activity. The court thought that A.R.Cr.P. Rule 3.1 had been violated because the radio dispatches gave very vague, general information about a loud party and a brown Jeep and the officer had not confirmed the complaint before stopping appellant.
We do not agree, however, that the present case must be judged by Rule 3.1. Another Rule of Criminal Procedure, Rule 2.2(a), provides:
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.
In Baxter v. State, 214 Ark. 539, 626 S.W.2d 935 (1982), a Little Rock police officer stopped appellant’s car in a park, near a jewelry store that had just been robbed, to inquire if appellant had seen anyone else in the park. That stop led to the discovery of two suspects in the jewelry store robbery who were in appellant’s car and to the recovery of the jewelry and two guns. The Arkansas Supreme Court examined the validity of the stop and found it reasonable under Rule 2.2(a). The court’s opinion stated:
The crucial issue in this case is whether the initial stop of appellant was valid under state and federal law. If the stop is found to be valid, the logical progression of events which followed resulted in probable cause for the arrest. The subsequent search of appellant’s car after the arrest was a search incident to a lawful arrest and valid under the recent case of New York v. Belton, 450 U.S. 1028, 101 S.Ct. 2860 (1981).
Cases regarding the police authority to make investigatory stops based upon reasonable suspicion that a vehicle or a person is involved in criminal activity are inapplicable to the stop at issue here. See U.S. v. Cortez, 449 U.S. 411 (1981) and Terry v. Ohio, 392 U.S. 1 (1968) ....
Involved here is the question of the extent of permissible interruption a citizen must bear to accommodate a law enforcement officer who is investigating a crime. The practical necessities of law enforcement and the obvious fact that any person in society may approach any other person for purposes of requesting information make it clear the police have the authority to approach civilians.
There is nothing in the Constitution which prevents the police from addressing questions to any individual. See Terry v. Ohio, supra. However, the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. [Citation omitted.]
Rule 2.2, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977) is a codification and an accommodation of these interests: ....
274 Ark. at 542-43.
The federal courts have reached the same conclusion reached in Baxter. In United States v. Pajari, 715 F.2d 1378 (8th Cir. 1983), D.E.A. officers had obtained a search warrant for appellant’s house. After this, he was seen driving down the street and agents followed him as he pulled into a parking lot and stopped. The agents then approached the car to ask him to be at his house when the search took place. When appellant made a suspicious move, which agents interpreted as possibly reaching for a gun, they ordered him out of the car, and while conducting a pat-down search, they found cocaine. On appeal, he argued that the officers’ initial approach to his car amounted to an unlawful seizure, supported by neither probable cause nor reasonable articulable suspicion that he was engaged in wrongdoing. The court stated:
In this case, we conclude that there was no “seizure” or “stop” until Pajari was ordered to raise his hands and leave his car, which was prompted by Detective Fontana’s reasonably based fear that Pajari was reaching for a weapon. Only at the point when Pajari was ordered to raise his hands and exit the car was there any demonstration of force or authority creating a reasonable apprehension on Pajari’s part that his freedom of movement was restrained.
715 F.2d at 1381.
The District of Columbia Court of Appeals considered a case similar to the instant case in Purce v. United States, 482 A.2d 772 (D.C. 1984). On a routine patrol through a parking lot where several cars had been broken into, an officer discovered appellant asleep in a car registered to a woman. The officer tapped on the window, woke the appellant and asked for identification. While appellant was searching his pockets and the glove compartment, the officer noticed a package of cigarette papers and a brown manila envelope of the sort commonly used to package marijuana lying on the console between the two front seats. The officer again asked for identification, and when none was presented, the officer asked appellant to get out of the car. As appellant stepped out, he reached back inside to get his shoes, and the officer observed what he thought was a gun. Appellant was then patted down and the floor mat of the car was lifted. This exposed a gun, and the appellant was arrested for firearms violations. He moved to suppress the evidence on the grounds that the officer’s request for identification was a seizure and the officer had no articulable suspicion that appellant was involved in criminal conduct. The court held that, “as a matter of law, a request for identification cannot constitute a show of authority sufficient to convert an innocent encounter into a seizure.” 482 A.2d 775. See also United States v. Poitier, 818 F.2d 679 (8th Cir. 1987).
In a case factually similar to the one at bar, the Texas Court of Criminal Appeals, in Merideth v. State, 603 S.W.2d 872 (Tex. Crim. App. 1980), affirmed a conviction of misdemeanor possession of marijuana, rejecting appellant’s argument that there was an unlawful search and seizure when the police detected the odor of marijuana after appellant opened the door of his pickup truck in response to their knock. The court said:
Appellant contends that this was an “investigative stop” and that there was no information available to justify the intrusion . . . We disagree. This was not an investigative stop. The appellant was not “stopped” by the officer nor was the appellant detained in any manner by the officer until the marihuana was discovered. [Citations omitted.]
When the facts of the case at bar are carefully scrutinized, we think they will support a finding that, under the provisions of A.R.Cr.P. Rule 2.2(a), Officer Newsom was authorized to request identification information from appellant and the other occupant of the car parked near the high school as a part of his duty to investigate and prevent crime. We think this was done without a “stop” as referred to in A.R.Cr.P. Rule 3.1. Then, when the car window was rolled down and Newsom smelled marijuana, he had a “reasonable suspicion” that the occupants of the car were committing, had committed or were about to commit a crime which authorized the officer to detain them for a reasonable period under A.R.Cr.P. Rule 3.1 in order to verify their identification or determine the lawfulness of their conduct. Then, when the officer saw the appellant stuffing something down the front of his pants, “there was a logical progression of events” which resulted in probable cause for arrest and the right to search for and seize the marijuana and drug paraphernalia introduced into evidence. Baxter v. State and Puree v. United States, supra. See also United States v. Robinson, 414 U.S. 218 (1973) (search incident to arrest on probable cause requires no other justification).
Affirmed.
Cooper and Coulson, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission denying appellant’s claim for benefits. The Commission’s opinion, dated October 26, 1987, concludes as follows:
We have carefully reviewed the entire record herein and after according the claimant the benefit of liberal construction to which she is entitled, we specifically find that the claimant failed to meet her burden of proof by a preponderance of the credible evidence of record. Accordingly, the Administrative Law Judge’s opinion filed herein on February 9, 1987, is hereby affirmed and this claim is hereby respectfully denied and dismissed. [Emphasis in the original.]
On appeal to this court, the appellant’s first point is: “The Commission erred as a matter of law in not making sufficient findings of fact and in failing to specifically adopt any findings of its A.L.J.”
It is well established that it is the duty of the Commission to make findings according to a preponderance of the evidence and not whether there is any substantial evidence to support the ruling of the administrative law judge. Moss v. El Dorado Drilling Co., 237 Ark. 80, 81, 371 S.W.2d 528 (1963); Clark v. Peabody Testing Service, 265 Ark. 489, 495, 579 S.W.2d 360 (1979); Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 46, 612 S.W.2d 333 (1981); Dedmon v. Dillard Department Stores, Inc., 3 Ark. App. 108, 111, 623 S.W.2d 207 (1981).It is also well established that the findings of the law judge are given “no weight whatsoever” on appeal. Clark v. Peabody Testing Service, 265 Ark. at 495; Lane Poultry Farms v. Wagoner, 248 Ark. 661, 662, 453 S.W.2d 43 (1970); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 310, 635 S.W.2d 276 (1982). It has also been held that the right to find the facts carries with it a duty to find the facts. Wright v. American Transportation, 18 Ark. App. 18, 21, 709 S.W.2d 107 (1986). In Wright, we said a claimant is entitled to know the factual basis upon which his claim is denied, 18 Ark. App. at 22, and absent such findings, the appellate court is not in a position to make a meaningful review of the decision of the Commission, 18 Ark. App. at 20. See also McCoy v. Preston Logging, 21 Ark. App. 68, 74, 728 S.W.2d 520 (1987).
In the instant case, it is clear that the decision of the Commission, which we. quoted above, does not make specific findings which we can review. It is surprisingly similar to the decision made by the Commission in Wright. We reversed and remanded that decision, and we must reverse and remand the decision in this case. We are simply unable to determine what the Commission found to be the facts or what evidence the Commission found not credible.
The appellee suggests that St. Vincent Infirmary v. Carpenter, 268 Ark. 951, 597 S.W.2d 126 (Ark. App. 1980), holds that, where the finding of an administrative law judge is supported by substantial evidence, the Court of Appeals will affirm the findings on appeal. We do not agree. There we said: “The opinion of the administrative law judge was adopted by the Commission, and it reflects a finding claimant sustained an accidental injury. . . .” Thus, it was the Commission’s finding that we affirmed; however, in the instant case, the Commission affirmed but did not adopt the administrative law judge’s decision.
Therefore, we reverse the Commission’s decision and remand this matter for a new decision based upon findings of fact set out in sufficient detail that a meaningful review may be made of those findings.
Reversed and remanded.
Corbin, C.J., and Cracraft, J., agree. | [
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Beth Gladden Coulson, Judge.
Appellant, Harrell Deshazier, Sr., argues two points for reversal of his conviction under the Omnibus DWI Act. The first point concerns the trial court’s refusal to grant appellant’s motion for a directed verdict, while the second point involves the sufficiency of the evidence. Because, as we noted in Nelke v. State, 19 Ark. App. 292, 720 S.W.2d 719 (1986), a motion for a directed verdict is a challenge to the sufficiency of the evidence, we will consider the two arguments as one. Nothing appellant has advanced has persuaded us that the trial court erred.
The record reveals that appellant was arrested by Deputy Troy Keathley of the Prairie County Sheriff’s Office on January 11, 1987, for driving while intoxicated. Officer Keathley, responding to an accident call, found appellant asleep, seated behind the steering wheel of his vehicle, which was in a ditch. The deputy knocked on appellant’s window, and appellant immediately got out. Officer Keathley noticed the odor of alcohol on appellant and placed him under arrest for driving while intoxicated. After appellant was taken to the county jail he was given a breathalyzer test and registered .14 percent.
Appellant was convicted under the provisions of Ark. Code Ann. § 5-65-103 (1987):
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10 %) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.
This case was tried by the court without a jury. The judgment signed by the judge made the specific finding that “The State has met its burden of proof by showing the Defendant did operate or was in actual physical control of his motor vehicle with a blood-alcohol content of .14%.”
Appellant admitted having driven his car into the ditch and having attempted to get it. out. He was given a breathalyzer test and registered .14%. Appellant told the investigating officer that he had been run off the road and into a ditch by another driver. Appellant testified that he began drinking after the accident because he was upset. The trial court chose not to believe his testimony. A trial judge is not required to accept a criminal defendant’s testimony, Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985), especially since an accused is the person most interested in the outcome of the trial, Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). 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 any substantial evidence to support the finding of the trier of fact, Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986), whether tried by judge or jury, Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985).
On the facts, we find this case very similar to Altes v. State, supra. In this case the court said:
The circumstantial evidence is that Altes was drunk, standing by his truck with the motor running and the door open. He confessed he was driving the truck when it went into the ditch. On appeal the test is whether there is substantial evidence to sustain the conviction. [Boone] v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). Circumstantial evidence can be substantial evidence. Coleman v. State, 283 Ark. 359, 676 S.W.2d 736 [1984]. The evidence must present proof so that the finding does not rest on conjecture. Rode v. State, 21A Ark. 410, 625 S.W.2d 469 (1981). Altes’ story might be true; however, the trial court found it false. We are unable to say there is no substantial evidence to support that finding.
Affirmed.
Jennings and Cracraft, JJ., dissent. | [
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Melvin Mayfield, Judge.
Appellant James Woods was convicted by a jury of three counts of battery in the second degree and sentenced as an habitual offender to serve six years in the Arkansas Department of Correction on each count. The sentences are to run concurrently. One of appellant’s arguments on appeal is that the trial court erred in denying his motion to dismiss for violation of the right to a speedy trial. Because we find merit in this argument, we reverse and dismiss without addressing the other points argued.
On July 31, 1986, appellant, an inmate at the maximum security unit of the Arkansas Department of Correction at Tucker, Arkansas, was taken with several other inmates from the administrative segregation area to one of the punitive dayrooms to watch TV. When their time was up, they refused to leave the dayroom. The evidence discloses that inmates assigned to administrative segregation are handcuffed every time they are moved. In a process referred to as “taking the cuffs,” the inmates are required to turn around to the bars while a correction officer puts his hands through the bars and handcuffs the inmate behind his back before the door to the cell is opened.
At the time of the incident in this case, the appellant and four other inmates refused to take the cuffs. Appellant told the guard that he had some “commissary” coming to him and he wanted it before he left the dayroom. After being told he was not getting any “commissary,” appellant said, “Well, you’ll have to come in and get me, because I’m not coming out.” Appellant had a knife and threatened to kill the first man who took the handcuffs. After all the inmates refused several times to take the cuffs, the correction officers entered the room and a confrontation ensued during which several correction officers were injured. A videotape was made of the incident.
On August 20, 1986, appellant was charged, along with three other defendants, with three counts of battery in the second degree. Trial for the four defendants was set for March 10,1987. On March 5,1987, appellant’s then counsel filed a motion seeking to be removed and for a continuance from the trial date of March 10. On March 9, 1987, these motions were granted, present counsel was appointed and trial was rescheduled for June 16, 1987. On April 28, 1987, appellant filed a motion for severance from the other defendants and for a continuance not to exceed 30 days from the June 16th trial date. On May 15, 1987, the trial court granted the motions and rescheduled appellant’s trial for August 5, 1987. Then on July 10, 1987, appellant’s case was transferred along with numerous others to the newly created Third Division of the Jefferson County Circuit Court. Nothing further occurred in appellant’s case until January 20,1988, when appellant filed a motion to dismiss alleging the time for trying the case had lapsed and the charges should be dismissed. On January 22, the trial court entered an order scheduling appellant’s case for trial on February 19, 1988. On January 29,1988, the trial court denied appellant’s motion to dismiss finding that the order “should be, and is hereby denied, for good cause shown.”
On the day of trial, appellant renewed his motion to dismiss the charges based upon the failure of the state to bring the case to trial within the requirements of Rule 28 of the Arkansas Rules of Criminal Procedure. Appellant further objected, pursuant to Rule 28.3, that the court had not entered an order or docket entry delineating the specific reasons for the granting of the continuance and on the basis that there had not been an adequate showing of good cause. Appellant then requested that the court state the reasons for the excludable periods. The court responded “being new court cases recently assigned, and lack of courtroom space, since the other courts had already set their dockets . . . and it was some time before courtroom space was available, that, together with the excludable period that had already been made were the reasons why this Court denied the original motion, and why this court is denying your present motion for a dismissal.”
The time for trial when a defendant is incarcerated in prison is determined by Ark. R. Crim. P. 28.1(b):
Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
The time for trial shall commence running from the date the charge is filed. Ark. R. Crim. P. 28.2(a).
Appellant was charged on August 20, 1986, and tried on February 19,1988, approximately 18 months later, exceeding the 12-month limitation of Rule 28.1(b) by approximately 6 months. Once an accused has shown the trial is to be held after the speedy trial period has expired, the state bears the burden of showing the delay is legally justified. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).
The parties agree that approximately 147 days were properly excluded under Rule 28.3(c) which provides that the period of delay resulting from a continuance granted at the request of the defendant or his counsel shall be excluded in computing the time for trial. This would extend the time for trial until the middle of January 1988. The state, however, also contends that a forty-five day period necessary for the procurement of a jury, a courtroom equipped to handle a jury, and a bailiff is also excludable as a period of delay for “good cause” under Rule 28.3(h), and when this period is added to the 12-month period already extended by appellant’s continuances, the deadline for appellant’s trial was legally extended to the first part of March 1988. We do not agree.
In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court set out criteria by which to judge the speedy trial right. In that case, the Court held that the state has the duty to see that cases are brought to trial. The Court adopted a balancing test which weighed the conduct of both the defendant and the state, and identified four factors to be considered: (1) length of delay, (2) the reason for delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. In discussing the reasons for the delay, the United States Supreme Court said a neutral reason such as negligence or overcrowded courts should be weighed less heavily but nonetheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant.
In Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987), the Arkansas Supreme Court considered the question of whether a judge’s absence due to illness is good cause for delay in bringing an accused to trial. In discussing Barker v. Wingo, supra, the court stated:
Our court, consistent with the principles announced in Barker, has placed the burden on the courts and state to assure a defendant receives a speedy trial. In Norton v. State, 273 Ark. 289, 618 S.W.2d 164, for example, we refused to hold as excludable the period between the recusal of the prosecutor and the appointment of his replacement. We noted the delay caused by the failure to appoint an immediate replacement was not the defendant’s fault; instead, we pointed out that it was the court’s duty to have appointed a substitute attorney for the state. In still another case, Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10, we rejected the state’s argument that a congested docket justified a period of delay to be excluda- ble under Rule 28, and in so holding, we pointed out that no docket entry reflecting the reason for delay had been entered — a requirement under Rule 28.3(b) . . . . Again, our decision in Harkness clearly recognizes the court’s duty to bring criminal cases to a speedy trial.
294 Ark. at 124. The court then observed that the weight of authority appears to hold that the illness or incapacity of a judge does not justify delay in giving defendants a speedy trial. The court continued as follows:
The Wisconsin Supreme Court case of Hadley, 66 Wis.2d 350, 225 N.W.2d 461, is particularly instructive because the court there discussed the speedy trial principles set out in Barker and applied them to a situation where the defendant’s trial had been postponed because of the judge’s illness and a delay in appointing another in his place. In considering the factors or criteria in Barker, the Wisconsin Supreme Court, in holding the defendant was denied a speedy trial, found the length of delay was excessive, the delay was attributable to insufficient judicial and prosecutorial manpower and the defendant timely asserted his right to a speedy trial.
We now consider the instant case in light of the factors in Barker.... In' sum, the state simply has failed to show why the appellants’ case was not tried within the required time by the regular sitting judge, a special elected judge or one on exchange. See Ark. Const, art. 7, §§ 21, 22.
294 Ark. at 125.
In the present case, the delay in appellant’s trial exceeded the 12-month limitation imposed by Rule 28.1(b) by approximately 6 months. While the delay caused by appellant’s requested continuances was clearly excludable, we do not think the additional period of delay is supported by the statements made by the trial judge. See Harkness v. Harrison, 266 Ark. 59, 63, 585 S.W.2d 10 (1979). There was no reason given for transferring this case to the third division of the circuit court and no explanation made for the lack of courtroom space to house that division. It was the state’s duty to assure that the appellant received a speedy trial. The appellant promptly asserted his right after the 12-month period as extended by his continuances had run, and no aifirmative demonstration of prejudice is necessary to prove a denial of a constitutional right to a speedy trial. Novak, supra.
Because the state failed to show that the delay in bringing appellant to trial was justified, we must reverse and dismiss this case.
Reversed and dismissed.
Corbin, C.J., and Cooper, J., agree. | [
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John E. Jennings, Chief Judge.
This is a mortgage foreclosure case. The sole issue presented is whether a certain view easement takes priority over a prior recorded mortgage. The chancellor held that it did, but we cannot agree and therefore reverse.
In March of 1988, Big “K” Development Corporation borrowed $1.2 million from First Federal Savings of Arkansas for the purpose of establishing a residential development in West Little Rock. A mortgage to secure the indebtedness was filed on March 21, 1988.
In August of 1988, Big “K” deeded Lot 40 of the development to Roddy J. and Martha McCaskill. The deed was recorded on August 16,1988, and contained an easement “for the purpose of providing an unrestricted view from said Lot 40.” The view easement encumbered Lots 21, 22, and 23.
When the McCaskills prepared to build a house, they sought and obtained a partial release of the mortgage from First Federal. The release made no mention of the view easement. First Federal subsequently went into receivership and appellant, Amstar/First Capital, Ltd., purchased its assets from the receiver, Resolution Trust Corporation. Big “K” defaulted on the note, and Amstar brought the present action to foreclose the mortgage.
The chancellor expressly found that First Federal had no actual knowledge of the view easement in McCaskill’s deed at the time it gave the partial release. The court did find, however, that First Federal had constructive notice of the view easement from the time of the recording of the deed, that the view easement was valid, and that the appellant’s mortgage was subject to it. While we agree with the finding that the easement was valid we do not agree that it is entitled to priority over the prior recorded mortgage of the appellant.
It has long been the law in this State that nothing can be done by the mortgagor, subsequent to the execution of a valid mortgage, which can impair the rights of the mortgagee. Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 68, 278 S.W. 634 (1926). The mortgagor can make no contract respecting the mortgaged property which would bind the mortgagee or prejudice his rights. Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146, 282 S.W. 995 (1926). “Under this rule, it is beyond the power of the mortgagor to disturb the priority of the mortgage after its execution. Accordingly, dealings of the mortgagor with a third person, subsequent to the execution of the mortgage, cannot affect prejudicially the rights of the mortgagee.” 55 Am. Jur. 2d Mortgages § 323 (1971). See also Whittington v. Flint, 43 Ark. 504 (1884). Furthermore, a mortgagee, after having his deed recorded, it is not required to search the record from time to time to see whether other encumbrances have been put upon the land. Birnie v. Main, 29 Ark. 591 (1874).
The appellees contend that appellant’s claim that its mortgage takes priority over the view easement is barred by acquiescence, waiver, laches, or estoppel and also rely on the maxim “he who seeks equity must do equity.” The chancellor apparently did not base his holding on any of these grounds, and on our de novo review, we can find no basis in the record for doing so.
Our conclusion is that the appellant’s mortgage was entitled to priority as a matter of law and we therefore reverse and remand the case to the trial court for the entry of a decree consistent with this opinion.
Reversed and Remanded.
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Judith Rogers, Judge.
This is an appeal from an order granting summary judgment in favor of Atlanta Casualty Co., appellee. On appeal, appellant contends that summary judgment was inappropriate because a genuine issue of fact existed. We find merit in appellant’s argument, and reverse.
Appellant apparently obtained auto insurance on his truck on August 2, 1991, from appellee. On September 19, 1991, appellant was involved in a one-vehicle accident. He presented a claim under the policy; however, appellee denied coverage contending that the policy had been canceled effective September 18, 1991. Thereafter, appellant filed this action which resulted in appellee being granted summary judgment. Appellant contends on appeal that he did not receive notice of the cancellation. He argues that this creates a genuine issue of fact as to proof of mailing and thus contends that summary judgment was inappropriate.
The burden of proving that there is no genuine issue of material fact rests with the party moving for summary judgment. McNally v. Farm Bureau Ins. Co., 307 Ark. 65, 817 S.W.2d 204 (1991). Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof by showing a genuine issue of material fact. Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993). 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. Harvison v. Charles E. Davis & Assoc, 310 Ark. 104, 835 S.W.2d 284 (1992). On appeal, we determine the appropriateness of a grant of summary judgment based on whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Cash v. Carter, supra.
In its motion for summary judgment appellee contended that it had complied with Ark. Code Ann. § 23-89-304 (1992) by sending a notice of cancellation of insurance on August 29,1991, by ordinary mail to both appellant and Mercantile Bank, the lienholder, canceling coverage effective September 18, 1991. According to appellee, all that was necessary to effect cancellation of the policy was proof that the notice had been mailed.
Under Ark. Code Ann. § 23-89-304(a)(l) (1992), it states:
(a)(1) No notice of cancellation of policy to which § 23-89-303 applies, and no notice of cancellation of a policy which has been in effect less than sixty days at the time notice of cancellation is mailed or delivered, shall be effective unless mailed or delivered by the insurer to the named insured.
Under Ark. Code Ann. § 23-89-305 (1992) it states:
Proof of mailing of notice of cancellation, or of intention not to renew, or of grounds for cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice.
(Emphasis supplied.)
In support of the motion, appellee presented an affidavit by Stacey Sewell, an employee, which stated that she directed that a notice of cancellation be mailed in compliance with Arkansas Statutes to both the appellant and the lienholder. She also noted that the notice was mailed. Attached to this affidavit was the notice of cancellation, two partial mailing lists displaying appellant’s name and one displaying the lienholder’s name and two “sender’s statement and certificate of mailing” signed by the postmaster. Also attached to the motion was a letter, dated September 5,1991, by Gene Griffey, appellant’s insurance agent, stating that appellant’s insurance was canceled effective September 18, 1991. Appellee submits that once it proved the cancellation was mailed no genuine issue of fact existed.
In response to appellee’s proof of mailing, appellant submitted affidavits. In appellant’s affidavit he stated the he did not receive notice of cancellation prior to his accident. Also submitted was an affidavit of Norman Leonard, an employee and officer of Mercantile Bank. In Mr. Leonard’s affidavit, he stated that the only notice of cancellation received was not the alleged mailed notice from appellee or its agent, but was from General Accident Insurance Company of America.
In the case of Harrison v. State Farm Mutual Insurance Co., 230 Ark. 630, 326 S.W.2d 803 (1959), the supreme court observed:
When a letter properly addressed and stamped is shown to have been mailed, there is a presumption of fact that the letter was received by the addressee in due course; however, this presumption ceases where the addressee denies having received the letter, whereupon, it becomes a question of fact whether the letter was written or received.
Id. at 633, 326 S.W.2d at 805. (Emphasis added.) See also Swink & Co. v. McEntee & McGinley, Inc., 266 Ark. 279, 584 S.W.2d 393 (1979). Here, appellant denied receiving notice and the lienholder also denied receiving notice from appellee. We find this created a genuine issue of fact more appropriately addressed during a trial and not dismissed on summary judgment.
Reversed and remanded.
Jennings, C.J., and Cooper J., dissent. | [
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Per Curiam.
This case must be dismissed under Ark. R. App. P. — Civil 4 because the appellant did not file a timely notice of appeal.
Appellee, Christhiaon Susan Coie, Susan Alamo’s daughter, sued appellant, Tony Alamo, in the Crawford County Chancery Court in September 1991, alleging that appellant had violated a temporary restraining order prohibiting him and members of the Tony and Susan Alamo Foundation from removing Susan’s body from its mausoleum. In her complaint, appellee stated that appellant had caused the removal of her mother’s body from the mausoleum and had concealed its location. Appellee also alleged that appellant’s outrageous actions had caused her to suffer emotional distress. She sought damages and an order requiring appellant to deliver the body. On September 14, 1995, the chancellor entered an order directing appellant to produce Susan’s body and awarded appellee damages in the amount of $100,000.00 for the tort of outrage. On September 20, 1995, at 4:26 p.m., appellant filed his notice of appeal. At 4:29 p.m., on September 20, 1995, appellant filed a motion for new trial. There is nothing in the record to indicate that the chancellor ruled on appellant’s motion for new trial. Additionally, appellant did not file a new notice of appeal.
Arkansas Rule of Appellate Procedure — Civil 4(a) provides that, except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty days from the entry of the judgment, decree, or order appealed from. Arkansas Rule of Appellate Procedure — Civil 4(b) provides that, upon the timely filing in the trial court of a motion for new trial under Ark. R. Civ. P. 59(b), the time for filing the notice of appeal shall be extended as provided in this rule. Arkansas Rule of Appellate Procedure — Civil 4(c) provides:
If a timely motion listed in section (b) of this rule [such as a motion to amend the court’s findings of fact under Ark. R. Civ. P. 52(b), or a motion for new trial under Rule 59(b)] is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing.
The failure to file a timely notice of appeal deprives this court of jurisdiction. Williams v. Hudson, 320 Ark. 635, 638, 898 S.W.2d 465 (1995); Rossi v. Rossi, 319 Ark. 373, 374, 892 S.W.2d 246 (1995). Here, appellant failed to file a new notice of appeal within the prescribed time measured from the expiration of the thirty-day period.
In Mitchell v. Mitchell, 40 Ark. App. 81, 842 S.W.2d 66 (1992), we were presented with a similar situation. In that case, the appellant filed the notice of appeal on September 4, 1991; on September 5, the appellant filed motions for findings of fact and conclusions of law and for relief from the supplement to the decree. The court orally denied the motions at a hearing held on October 14, 1991. We found it necessary to dismiss the appeal and stated:
Therefore, under either motion filed by appellant on September 5, 1991, the time to appeal would run from the entry of an order on the motion or from the thirtieth day after the filing of the motion, whichever came first. See Ferguson v. Sunbay Lodge, Ltd., 301 Ark. 87, 781 S.W.2d 491 (1989); Jasper v. Johnny’s Pizza, 305 Ark. 318, 807 S.W.2d 664 (1991); Phillips Construction Co. v. Cook, 34 Ark. App. 224, 808 S.W.2d 792 (1991). These cases also make it clear that even when an appeala-ble order has been entered and a notice of appeal has been filed within 30 days thereafter, the filing of a motion provided for in Appellate Procedure Rule 4(b) will extend the time for fifing the notice of appeal, and the notice of appeal filed before the time is extended will be ineffective.
In the instant case, the notice of appeal filed on September 4, 1991, was ineffective because of the motions filed on September 5, 1991. Moreover, those motions were deemed denied at the end of 30 days after they were filed — unless the trial court ruled on them before that time. Although the trial court orally denied the motions at a hearing on October 14, 1991, this was more than 30 days after they were filed and they were already deemed denied; therefore, it was necessary to file a new notice of appeal within 30 days after the motions were deemed denied. Because this was not done, no appeal has been perfected. While this issue was not raised by the appellee, it is jurisdictional and we must raise it even if the parties do not. Eddings v. Lippe, 304 Ark. 309, 802 S.W.2d 139 (1991).
40 Ark. App. at 85. See also Schaeffer v. City of Russellville, 52 Ark. App. 184, 186, 916 S.W.2d 134 (1996); Snowden v. Benton, 49 Ark. App. 75, 76, 896 S.W.2d 451 (1995); Glover v. Langford, 49 Ark. App. 30, 31, 894 S.W.2d 959 (1995).
We therefore dismiss this appeal as untimely.
Dismissed. | [
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Sam Bird, Judge.
Appellant Kenneth Dennis Warren appeals a December 8, 1995, order of the Montgomery County Chancery Court that held that appellant’s motion to reduce his child support was barred by the parties’ property-settlement agreement. The parties were divorced on July 21, 1987. They had entered into a contractual property-settlement agreement that contained the following provision:
Due to the nature of the parties’ property settlement agreement, and the operation of the poultry business by the Defendant, the parties have agreed and contracted between the two of them the amount of child support shall remain the same from now until the children reach 18 years of age and that the Plaintiff will not seek to increase the support at any time hereafter, nor will the Defendant seek to decrease the support obligation as agreed to and set forth herein.
Appellant first argues that the court erred in holding that because of the wording of the contract the amount of child support could not be altered. He cites numerous cases that hold that regardless of whether provisions are in a divorce decree or in a property-settlement contract, the court always retains jurisdiction to modify child-support obligations. We agree with appellant’s argument and reverse and remand for a new hearing regarding the modification of child support.
In Keesee v. Keesee, 48 Ark. App. 113, 891 S.W.2d 70 (1995), we said:
Appellant is correct in his assertion that, in cases in which the parties’ contract is incorporated into the decree, the general rule is that the court cannot alter or modify it. See McInturff v. McInturff, 7 Ark. App. 116, 644 S.W.2d 618 (1983). However, our courts have recognized an exception to this rule in child custody and support matters, and have held that provisions in such independent contracts dealing with child custody and support are not binding. Id. See also Lake v. Lake, 14 Ark. App. 67, 684 S.W.2d 833 (1985). In Crow v. Crow, 26 Ark. App. 37, 759 S.W.2d 570 (1988), we held that the chancellor always retains jurisdiction and authority over child support as a matter of public policy, and that, no matter what an independent contract states, either party has the right to request modification of a child support award. See also Williams v. Williams, 253 Ark. 842, 489 S.W.2d 744 (1973).
48 Ark. App. at 115-16, 891 S.W.2d at 72. And in Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991), a paternity case, we said:
In the context of divorce litigation, while parties may enter into contractual agreements with regard to contributions for child support, nevertheless, it is settled law in this state that the duty of child support cannot be bartered away permanently to the detriment of the child. Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387 (1975); Robbins v. Robbins, 231 Ark. 184, 328 S.W.2d 498 (1959). See also Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972). Likewise, we have held that an agreement not to seek any increases or decreases in child support is void as against public policy. Crow v. Crow, 26 Ark. App. 37, 759 S.W.2d 570 (1988). These holdings are based on the principles that the interests of minors have always been the subject of jealous and watchful care by courts of chancery, and that a chancery court always retains jurisdiction over child support as a matter of public policy, such that regardless of what an independent contract states, a chancellor has the authority to modify an agreement for child support to meet changed conditions. Id.
36 Ark. App. at 119, 818 S.W.2d at 595.
Appellee admits the general rule, points out what she calls an exception to the rule, and argues that appellant failed to show adequate change of circumstances to justify a reduction in child support. Appellee cites McInturff v. McInturff, 7 Ark. App. 116, 644 S.W.2d 618 (1983), as providing an exception to the rule that child support can always be modified. In that case we said, “However, even though child support has been a recognized exception to the general rule, the Supreme Court has on one occasion refused to modify a parties’ independent agreement when it provided for a $200 monthly payment which was designated as alimony and child support. In other words, the amount attributable to child support was not severable from the alimony award.
Backus v. Backus, 216 Ark. 802, 227 S.W.2d 439 (1950).“ McIntuff, 7 Ark. App. at 118. (Emphasis in the original.) In Crow, the court held Mclnturff was applicable only to its facts.
We think that the result in Mclntuff, that the husband was not entided to a pro rata refund, was correct, but our rebanee on Backus and its progeny was misplaced. Nooner, [see citation below] was decided only a few weeks before Mclntuff, and Nooner clearly allows a chancellor to determine which amounts are child support if the independent contract does not so state. Again, Mclntuff involved a refund of a lump sum child support payment rather than the chancellor’s authority to order prospective child support payments and, as we noted, our ruling did not preclude the husband from petitioning the chancery court for future child support. 7 Ark. App. at 119. The issue of the refund in Mclntuff did not involve the same pubbe policy considerations as cases dealing with prospective child support payments, because refusing to refund the money to the father did not deprive the children of support. See Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). McInturff should be strictly limited to its unique fact situation because it involved a refund of a non-severa-ble, lump sum child support payment rather than an order of child support based on changed circumstances and the best interests of the children.
Crow, 26 Ark. App. at 41, 759 S.W.2d at 572-73. We conclude that the chancery court always has the jurisdiction and authority to modify child support.
Reversed and remanded for a hearing on appellant’s motion to reduce child support.
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Margaret Meads, Judge.
The appellant, Leslie Wayne Keene, was found guilty in a jury trial of delivery of a controlled substance (methamphetamine) and sentenced to ten years in the Arkansas Department of Correction. Appellant argues that the trial court erred in not granting his motion to recuse and in excluding the testimony of Heather Goff. We disagree and affirm.
Prior to trial, appellant filed a Motion to Recuse alleging that the court should recuse because appellant had filed a complaint against the court with the Judicial Discipline and Disability Commission. At a hearing on appellant’s motion held September 5, 1995, counsel argued that when allegations are made against a court, there is an appearance that the court’s impartiality might be affected. After listening to counsel’s argument, the trial judge stated that the mere filing of the complaint is not a basis for recusal and denied appellant’s motion.
Appellant argues that the trial judge erred in not granting his motion and in not disqualifying himself. Appellant relies on Canon 3(E) of the Arkansas Code of Judicial Conduct, which provides that a judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned.
In Turner v. State, 325 Ark. 237, 244, 926 S.W.2d 843, 847 (1996), our supreme court said:
We turn next to the trial court’s decision not to recuse in this case, which Turner claims was error. We note at the outset that a judge is required to recuse from cases in which his impartiality might reasonably be questioned. Ark. Code of Judicial Conduct, Canon 3E(1). However, there is a presumption of impartiality, and the party seeking disqualification bears the burden of proving otherwise. The decision to recuse is within the trial court’s discretion, and it will not be reversed absent abuse. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. (Citations omitted.)
In similar circumstances Arkansas appellate courts have held that the trial judge did not abuse his discretion in failing to recuse. See Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988) (trial judge did not err in fading to recuse when the appellant raised the possibility of a class action federal lawsuit for failure to promptly arraign him and others); and Korolko v. Korolko, 33 Ark. App. 194, 803 S.W.2d 948 (1991) (trial court did not err in refusing to recuse on its own motion where appellant’s counsel notified the trial judge by letter that he had filed a complaint against him with the Judicial Discipline & Disability Commission).
Here, the trial judge stated that this is a situation involving “soul-searching,” and after giving “thought and consideration” to the motion he felt he could be “fair and impartial” and decide the case in a fair and impartial way. Appellant has not alleged any specific instances of bias or shown how he was prejudiced by the trial judge’s failure to recuse. Moreover, appellant’s guilt was decided by a jury which imposed the minimum sentence for the offense. We cannot say that the court abused its discretion in failing to recuse.
Appellant also argues the trial court erred in excluding the testimony of Heather Goff. At trial, Charles Rogers, a confidential informant, testified that on February 16, 1995, he and Detective Larry Fiedorowicz went to appellant’s house; appellant got into the detective’s pickup truck; and they started down the highway. Appellant said he wanted $25 a quarter (a quarter gram) and that he had only three quarters left. Rogers testified that appellant handed him the “quarters” of what appellant said was and what was later proved to be methamphetamine; he handed them to the detective; and the detective handed appellant a one-hundred dollar bill. Rogers testified that he had used drugs in 1980 and 1982; that he had not used drugs since then; that he has simulated using drugs, which means that he acts “like I am doing it but am not really doing it” in order to earn people’s trust; and that he has simulated smoking pot around appellant. Rogers said that it is easier to simulate with marijuana than anything else. You do not even have to suck on the “joint,” but just put it to your lips and act like you did.
Appellant proffered the testimony of Heather Goff who stated that she had known Rogers for less than one year, had seen him three or four times, and had seen him smoke a “joint.” Ms. Goff also stated that she is familiar with the term “simulation” and has no doubt that Rogers was not pretending.
Appellant argues that the trial court erred in excluding the proffer because the issue of Rogers’s drug use had been raised during direct examination and Ms. Goff would have contradicted Rogers. Appellant contends Ms. Goff’s testimony was proper impeachment by contradiction.
When a witness testifies on direct examination that he has not committed collateral acts of misconduct, that testimony may be contradicted by extrinsic evidence. Hill v. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991). However, we are not persuaded that Ms. Goffs testimony was contradictory. Although Ms. Goff would have testified that she saw Rogers smoke a “joint,” Rogers acknowledged that on occasion he had “simulated” the use of marijuana in order to gain trust.
Even if Ms. Goffs testimony was erroneously excluded, the appellate court does not reverse on the basis of nonprejudicial error. Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228 (1988). At trial, Detective Fiedorowicz testified that he had worked with Rogers since 1994, and that on the night in question he picked Rogers up at his residence and patted him down. They drove to appellant’s residence; Rogers went to the door; and Rogers and appellant came back and got into the car. Rogers then asked appellant how much he had; appellant said he only had three quarter-grams; and appellant instructed the detective to drive off. They drove down the street, and the detective pulled into a parking lot. Fiedorowicz testified that appellant removed three quarter- grams of methamphetamine from his pocket; appellant showed it to Rogers; and Rogers looked at it and handed it to the detective. Fiedorowicz testified that he saw appellant take it out of his right-hand pocket and that he handed appellant $100.
Therefore, we believe Rogers’s testimony was merely cumulative, and even if the trial court erred in not allowing Ms. Goff s testimony, any error was nonprejudicial.
Affirmed.
Cooper and Stroud, JJ., agree. | [
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George K. Cracraft, Judge.
On the night of January 19, 1988, appellant and a person accompanying him were arrested without warrants as suspects of a burglary. The appellant’s car was impounded and towed to a police facility where an inventory search was conducted. During this process, the officers discovered a quantity of controlled substances and other contraband in the trunk of the car. Appellant was charged and convicted of the crimes of possession of controlled substances with intent to deliver and possessing paraphernalia used in the manufacture of such substances. On appeal, he contends that the trial court erred in not denying his motion to suppress the evidence discovered as a result of a search of his car because the search was made incident to a warrantless arrest for which no probable cause existed. We agree that the evidence should have been suppressed and reverse the conviction.
At the suppression hearing, police officers testified that in the course of the investigation of a burglary they discovered the two stolen articles, a rifle and videocassette recorder, under an abandoned building. They had no suspect for the burglary, but two officers staked out the building hoping to apprehend the burglar if he returned for the stolen property. Sheriff Sam Odell testified that at about 9:30 that evening he saw a car stop in front of the abandoned building, and that a passenger got out and leaned back in the car as if saying something to the driver. The suspect looked in both directions and then walked toward the abandoned building. The officer did not see him enter the building but assumed that he had because he lost sight of him for “two or three minutes” in the darkness of the porch. The officer then walked toward the building and, as the suspect reemerged from the darkness, placed him under arrest and handcuffed him. At about that same time, the officer observed the vehicle which had brought the suspect to the scene returning toward the building. He ordered it stopped and immediately placed the appellant, the driver of that vehicle, under arrest.
The officer testified that when the occupant of the car emerged from the building he had nothing in his hands and, in fact, his hands were in his pockets. There was no evidence that he had gone to the place under the building where the stolen goods were found or had in any way attempted to remove the goods. No stolen property was ever found in possession of either occupant of the car. The other officer on the stakeout did not observe any of these events, as he was at the rear of the building. However, as officer in charge of the investigation, he authorized the arrest of both individuals as “primary suspects” in the burglary then being investigated. Both officers testified that they made the arrests solely because the two persons were suspects in the burglary case and that they had no information other than that recited herein.
After appellant had been arrested, the officers made a “sweep search” of the vehicle for weapons and contraband but found nothing other than a coffee sack containing a sealed box under the front seat. The officers did not know what the sealed box contained. Appellant’s vehicle was impounded and towed to the police facility, where its contents were inventoried. During that process, contraband was discovered in the trunk of the car. All of the evidence sought to be suppressed was found in the search incident to that arrest.
Rules 12.1 and 12.4 of the Arkansas Rules of Criminal Procedure permit a search for limited purposes of the person, property, and vehicle of a lawfully arrested person where the search is substantially contemporaneous with the arrest. Rule 12.6 authorizes the so-called “inventory search” for the protec tion of the arrested person to the extent necessary to the safekeeping of the vehicle and its contents. All of these authorized warrantless searches are conditioned, however, upon the arrest to which they are incident, being a legal one.
It is well settled that a police officer may make a warrantless arrest if he has reasonable cause to believe that the person has committed a felony. Ark. R. Crim. P. 4.1. Reasonable cause exists when the officer has knowledge or trustworthy information sufficient to warrant a man of reasonable caution to conclude that an offense has been or is being committed by the person to be arrested. Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986). This reasonable cause does not require that degree of proof sufficient to sustain a conviction. However, a mere suspicion or even strong reason to suspect will not suffice. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986).
Here, the officers had no reason to arrest the appellant other than his presence near an abandoned building in which stolen goods had earlier been discovered and the fact that a person accompanying him had gone toward that building. The officers were very candid in their statements that they had arrested these persons as suspects in the burglary. Suspicion of burglary, however, is not an offense, and one who is merely suspected of a crime, while possibly subject to brief detention, is not subject to arrest. Roderick v. State, supra.
The State contends that the officers had a sufficiently reasonable suspicion to allow them to stop the vehicle and detain appellant under Ark. R. Crim. P. 3.1. The argument must fail because the appellant was not stopped for investigation. He was stopped and immediately arrested without further inquiry. While the officers may have had a specific and articulable reason to suspect appellant, this record falls far short of a showing that they had probable cause to arrest him.
The State next contends that the motion to suppress the evidence was properly denied because it was untimely filed. Rule 16.2 of the Arkansas Rules of Criminal Procedure provides that objections to the use of evidence on the ground that it was illegally obtained must be made by motion to suppress filed not later than ten days before the date set for trial of the case, except that the court for good cause may entertain a motion to suppress filed within less than ten days. The State argues that the motion to suppress was filed only six days before the date of trial and was therefore untimely absent a showing of good cause permitting a hearing on the motion.
The record presented to us shows that a motion to suppress was filed and that the court conducted a hearing on it. The State made no objection at that hearing that the motion was untimely, and it presented all of the evidence it had in opposition to the motion. While the trial court might have raised the issue on its own, it did not do so, but heard the motion on its merits. Rule 16.2 does not mandate the denial of every motion which is untimely. In the absence of a timely objection, we cannot conclude that the motion to suppress was not properly before the court or that the court’s ruling on it was not properly preserved for review.
We conclude that the appellant’s warrantless arrest was not supported by probable cause and that the trial court erred in denying his motion to suppress the evidence discovered as an incident to that arrest. The case is therefore reversed and remanded.
Cooper and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellants, Richard and Jane Turner, appeal a decision of the Van Burén Chancery Court holding them liable for an amount found due on the purchase price for land deeded to them by the appellees.
On July 16, 1979, the appellants purchased 229.78 acres from the appellees, James and Charlotte Eubanks, for $151,703.00. In December 1983, James Canady won an adverse possession action for 0.94 acres of this land. In July 1984 appellants paid appellees the balance due on their mortgage but withheld $1,703.00 as reimbursement for the fraction of an acre lost to Canady. The appellees refused to release the mortgage, and on July 3,1986, the appellants filed this suit seeking damages for breach of the warranty contained in their warranty deed.
Appellees answered denying the allegations in the complaint and affirmatively pleading the defense of laches. In addition, they filed a counterclaim for foreclosure. In defense to the counterclaim, the appellants pleaded the affirmative defenses of estoppel, fraud, unclean hands, adequate remedy at law and unjust enrichment. Shortly before trial, appellants filed a pre-trial brief in which they stated that absent fraud, which they admitted they could not prove, the statute of limitations had run on their breach of warranty claim. They alleged, however, that their right of action on that claim could still serve as a recoupment or setoff to the counterclaim. This assertion was brought to the attention of the judge prior to trial; later, an order was filed amending the pleadings to conform to the proof. Appellees’ counsel argued to the trial court that the affirmative defense of setoff or recoupment was not available to appellants because they were the moving parties, i.e., plaintiffs, in the action and setoff or recoupment could not be utilized as a defense to a counterclaim. The trial court agreed, and judgment was entered against appellants for $1,703.00 plus interest, and foreclosure was granted.
On appeal, appellants argue the trial court erred in ruling that setoff applied only to defendants and not to counter-defendants. They contend there should be no distinction between a defendant and a counterdefendant because there is no substantive difference between a cause of action brought by a plaintiff as opposed to one brought by a counterplaintiff. It is appellants’ argument that both are governed by the Arkansas Rules of Civil Procedure; that Rule 8(a) treats all claims for relief in an identical manner and states that a “pleading which sets forth a claim for relief, whether a complaint, counterclaim, crossclaim or third party claim, shall contain . . . .” (Emphasis added.) Furthermore, they point to Ark. R. Civ. P. 12(b), which deals with defenses and objections and provides: “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 . . . .” Appellants contend the only distinction to be found between a defendant and a counterdefendant is the manner in which the party must be served with summons.
The usual covenants of title in a general warranty deed are the covenants of seisin, good right to convey, against incumbrances, for quiet enjoyment and general warranty. Logan v. Moulder, 1 Ark. 313, 320 (1839); see also Proffitt v. Isley, 13 Ark. App. 281, 283, 683 S.W.2d 243 (1985). Our research has convinced us that while the parties stipulated that the statute of limitations had run on the covenants contained in the warranty deed, it had actually run only on the covenants of seisin, right to convey and incumbrances. We believe the five-year statute of limitations on quiet enjoyment and general warranty did not begin to run until appellants were evicted, and this occurred on January 13, 1984, when the decree in Canady’s suit against appellants for adverse possession was entered. However, we are bound by the stipulation of the parties and it would serve no purpose to discuss our research with regard to the covenants in the deed and the periods of limitations applicable to each. Therefore, we return to the appellants’ argument that even though the statute of limitations had run on their breach-of-warranty claim, that claim can still serve as an affirmative defense of setoff or recoupment in response to appellees’ counterclaim.
Arkansas Code Annotated § 16-56-102 (1987) (formerly Ark. Stat. Ann. § 37-233 (Repl. 1962)) provides:
Applications of limitations — Setoffs.
The provisions of this act shall be deemed and taken to apply to the case of any demand alleged by way of setoff on the part of any defendant, either by plea, notice, or otherwise. However, any demand, right, or cause of action, regardless of how it may have arisen, may be asserted by way of setoff in any action to the extent of the plaintiff’s demand. [Emphasis added.]
In Little Rock Crate & Basket Co. v. Young, 284 Ark. 295, 681 S.W.2d 388 (1984), the court reviewed the history of this statute, as follows:
First, the setoff. In our view, the answer to the question posed in our first paragraph [When a plaintiff brings suit upon a claim arising from a certain transaction, may the defendant successfully assert a setoff that arose from a different transaction and was barred by limitations when the plaintiff's cause of action accrued?] is discoverable from the language and legislative history of the statute, now compiled as Ark. Stat. Ann. § 37-233 (Repl. 1962). The original statute was enacted in 18 3 8 as Section 33 of Chapter 91 of the Revised Statutes. The preceding 32 sections of that chapter had covered most aspects of the law of limitations, but had not mentioned setoffs. Section 33 treated that subject, as follows:
The provision of this act shall be deemed and taken to apply to the case of any debt or simple contract alleged by way of set-off, on the part of any defendant, either by plea, notice, or otherwise.
284 Ark. at 296. See also Stewart v. Simon, 111 Ark. 358, 163 S.W. 1135 (1914), and Soudan Planting Co. v. Stevenson, 94 Ark. 599, 128 S. W. 574 (1910). Through the years the legislature has revised the statute in response to judicial decisions. No longer is a setoff allowed only when the case involves a contractual debt or arises out of the same transaction. Currently, “any demand, right, or cause of action, regardless of how it may have arisen, may be asserted by way of setoff in any action to the extent of the plaintiff’s demand.” Ark. Code Ann. § 16-56-102 (1987) (emphasis added). See also Jones v. Jones, 22 Ark. App. 179, 737 S.W.2d 654 (1987). We perceive no logical reason why a setoff should not serve as an affirmative defense to a counterclaim as well as to an original complaint, a crossclaim or a third-party claim. Setoff is specifically listed among the affirmative defenses enumerated in Ark. R. Civ. P. 8(c), which provides, in pertinent part:
In responding to a complaint, counterclaim, crossclaim or third party claim, a party shall set forth affirmatively . . . set-off. . . and any other matter constituting an avoidance or affirmative defense. [Emphasis added.]
Appellees argue, however, that even if the appellants’ claim could otherwise be used as a setoff to the appellees’ claim, it cannot be used for that purpose in this case because of lachesl Appellees rely on the principles summarized in Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984), as follows:
The doctrine of laches is based on a number of equitable principles, and here it is based on the assumptions that the party to whom laches is imputed has knowledge of his rights and an opportunity to assert them, that by reason of his delay the adverse party has good reason to believe those rights are worthless [or] have been abandoned, and that because of a change of conditions or relations during this delay it would be unjust to the latter to permit him to assert them. Rhodes v. Cissell, 82 Ark. 367, 101 S.W. 758 (1907). Laches is a species of estoppel and rests upon the principle that if one maintains silence when in conscience he ought to speak, equity will bar him from speaking when in conscience he ought to remain silent. Page v. Woodson, 211 Ark. 289, 200 S.W.2d 768 (1947). It is the unreasonable delay of the party seeking relief under such circumstances as to make it unjust or inequitable for him to seek it now. Langston v. Langston, 3 Ark. App. 286, 625 S.W.2d 554 (1981). These equitable principles are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. The length of time after which inaction constitutes laches is a question to be answered in the light of the facts presented in each individual case.
12 Ark. App. at 99-100.
Applying these principles to the facts of the case at bar, we cannot agree with appellees’ assertion that appellants were guilty of laches. Appellees argue that when appellants built a fence on the surveyed boundary line between their property and the Canadys’ property they did not advise appellees that the fence was being constructed beyond a fence built by Canady. They also contend that in 1981, when Canady filed his adverse possession suit, appellants filed an answer but failed to file a third-party complaint bringing the appellees into the suit. Appellees insist that had they been made a party they could have negotiated with Canady, pressed their own claim for adverse possession against Canady, and at least defended Canady’s cause of action. They also maintain that they were extremely prejudiced because the appellants failed to attend the December 1983 trial by which Canady obtained title to 0.94 acres of the land conveyed to appellants by appellees. Appellees point out that it was not until July 3, 1986, that appellants brought the present suit for breach of warranty against appellees.
However, the record shows that'when appellant Richard Turner was served with the summons in Canady’s suit he notified appellee James Eubanks of the dispute he was having with Canady over the property line. Mr. Turner testified he told Mr. Eubanks that he did not know whether or not Canady was right about the location of the property line and that he asked Eubanks to help clarify the situation. Turner testified that Eubanks told him it “was our property now... he didn’t want to have anything to do with it. . . good-bye.” The record also shows that Mr. Turner hired an attorney to defend the suit filed by Mr. Canady, paid him a $350.00 retainer, and the attorney filed an answer on the Turners’ behalf. However, the attorney failed to notify appellants, who were in California at that time, of the date of the trial and failed to attend the trial himself. It was not until September 1984, almost -nine months after the decree in the adverse possession suit was filed in January of 1984, that appellants found out about the trial. Within two years of that time appellants filed this suit against the Eubanks. Under these circumstances, we fail to see how the Eubanks- suffered any prejudice. They knew about the boundary line dispute as soon as Canady filed suit against the Turners, and Mr. Eubanks told Mr. Turner it was now Turner’s land and Turner’s problem. The Turners were sued because Canady’s claims were not satisfied. Unfortunately the efforts of the Turners’ attorney were ineffectual; however, this does not affect the Eubanks’ liability on the warranties in their deed. See Brawley v. Copelin, 106 Ark. 256, 153 S.W. 101 (1913).
The chancellor decided this case upon the setoff issue and made no finding upon the issue of laches. However, chancery cases are tried de novo on appeal, and while findings of fact are not set aside unless clearly against the preponderance of the evidence, where the chancellor has made no factual decision, or where the evidence is undisputed, we render the judgment, on the record made in the trial court, that the chancellor should have rendered. Pickens v. Stroud, 9 Ark. App. 96, 101, 653 S.W.2d 146 (1983) (citing Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979)). See also Broadhead v. McEntire, 19 Ark. App. 259, 265, 720 S.W.2d 313 (1986). We do not think the evidence supports a finding that the appellants have been guilty of laches.
Appellees also argue that the appellants should not prevail in this appeal because they failed to prove any damages. They contend that since the land was purchased as a whole, rather than by the acre, a proportionate price based on the price per acre would be erroneous because there was a house and other improvements located on the property. Appellees also object to appellants recovering the fee they paid their attorney to defend the Canady action, especially since the attorney failed to appear at trial.
According to Bridwell v. Gruner, 212 Ark. 992, 209 S.W.2d 441 (1948), to be entitled to attorney’s fees in an action such as this, the law requires the purchaser of the land to give his warrantor notice that the title has been called into question and to request the warrantor to defend. However, the record shows after suit was filed by Canady, the appellants notified appellees that Canady was claiming part of the property to which the appellees had warranted title, and that Mr. Eubanks stated he would do nothing to defend against Canady’s claim. Therefore, we think the attorney’s fee paid by Turner is an expense incurred in attempting to defend the title to the property. Bosnick v. Metzler, 292 Ark. 505, 731 S.W.2d 204 (1987).
Lane v. Stitt, 143 Ark. 27, 219 S.W. 340 (1920), cited by appellees, states “the measure of damages is so much of the consideration paid as is proportioned to the value of the land lost, with interest . . . .” More recently, in Tucker v. Walker, 246 Ark. 177, 437 S.W.2d 788 (1969), the court, in referring to the measure of damages for breach of the covenant of seisin stated: “Recovery in such cases is limited to the purchase price, interest from the date of eviction, attorney’s fees and court costs.” 246 Ark. at 182. See also Fox v. Pinson, 182 Ark. 936, 34 S.W.2d 459 (1930),and Wade v. Texarkana Building & Loan Ass’n, 150 Ark. 99, 233 S.W. 937 (1921). While the appellants did not introduce evidence as to the value of the specific 0.94 acres of land they lost to Canady, the evidence clearly shows that the land was lost, and there is evidence on the amount of attorney’s fee and court costs appellants incurred in defending against Canady’s suit. Thus, while there is evidence in the record showing that the appellants sustained damages by the breach of the warranty contained in the deed from the appellees, the evidence is not fully developed on that issue. When the record is such that we cannot end the controversy in this court, we will remand that part of the case as justice requires for further proceedings. RAD-Razorback Ltd. v. B.G. Coney Co., 289 Ark. 550, 558, 713 S.W.2d 462 (1986). See also Ferguson v. Green and Pickens v. Stroud, supra.
We find the appellants are entitled to a setoff for the damages sustained by the breach of warranty resulting in the loss of 0.94 acres of the land conveyed to them by the appellees, and we remand this case to the trial court for the taking of evidence and determination of damages sustained by appellants and direct the trial court to offset that amount against the balance due on the purchase price of the land.
Reversed and remanded.
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Benton County Circuit Court, First Division. Appellant, Richard Booth, appeals from a judgment entered on July 22, 1987, wherein he was found guilty of leaving the scene of an accident involving death or personal injury, a violation of Arkansas Code Annotated § 27-53-101 (Supp. 1987) and two counts of manslaughter, a violation of Arkansas Code Annotated § 5-10-104 (1987) and the sentences and fines imposed therefor. We affirm.
A felony information was filed December 20,1984, charging appellant with leaving the scene of an accident involving death or physical injury and another filed April 23, 1985, charging appellant with two counts of manslaughter for the deaths of Mark and Marcene Gilliland. Prior to trial, appellant moved to suppress all evidence obtained in violation of his fourth and fourteenth amendment rights against unreasonable searches and seizures. The court denied appellant’s motion and the charges were tried to a jury which found appellant guilty on all counts and sentenced him to six years imprisonment and a $10,000 fine for leaving the scene of the accident and ten years imprisonment and $10,000 fine on each manslaughter conviction. From the judgment, comes this appeal.
Appellant raises the following two points for reversal: 1) The trial court erred in denying defendant’s motion to suppress and objections to introduction of evidence taken from defendant’s vehicle without a valid search warrant, without reasonable cause and absent exigent circumstances; 2) the trial court erred in denying defendant’s motions for a directed verdict because the state failed to introduce any substantial evidence from which the jury could find the requisite intent or identify the defendant as the perpetrator of either charge beyond a reasonable doubt.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Vanderkamp v. State, 19 Ark. App. 361, 721 S.W.2d 680 (1986). When there is a challenge to the sufficiency of the evidence, the court must review that point prior to considering any alleged trial error. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In determining the sufficiency of the evidence, we consider all evidence, including any which may have been inadmissible, in the light most favorable to appellee. Id. We will affirm the conviction on appeal if there is any substantial evidence to support the verdict. McCoy v. State, 293 Ark. 49, 732 S.W.2d 156 (1987). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986).
Appellant was convicted of violating the manslaughter statute which provides that a person commits manslaughter if he recklessly causes the death of another. “Recklessly” is defined in Arkansas Code Annotated § 5-2-202(3) (1987) as follows:
(3) “Recklessly.” A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situationf.]
Appellant contends that there was insufficient evidence to identify him as the perpetrator of the crimes charged or to establish that his conduct was “reckless” as required by the manslaughter statute. Viewed in the light most favorable to appellee, the evidence reveals that at approximately 1:15 a.m. on December 9,1984, Mark and Marcene Gilliland were killed in a hit and run automobile accident on Highway 43 near Siloam Springs, Arkansas. Physical evidence at the scene reveals that the Gilliland vehicle was traveling south on the highway and the fleeing vehicle was a reddish-orange tractor-trailer rig traveling north.
A police investigation ensued and based upon physical and verbal evidence gathered, appellant was implicated as the driver of the vehicle that left the scene of the accident in which the Gillilands were killed. A compilation of the evidence generally reveals that Michael Wacker hired appellant to deliver hay to his farm near Gentry, Arkansas. Appellant, a Kansas resident, delivered the hay on December 8,1984, and then went to Mick’s Place, a bar owned by Michael and Dee Wacker in Sandusky, Oklahoma. Mr. Wacker testified that he arrived at the bar at approximately 3:00 p.m. and appellant was already there. Mr. Wacker stated that appellant was drinking at that time and was very argumentative and disruptive toward the other customers.
Dee Wacker testified that she arrived at the bar around 6:00 p.m. and observed that appellant was intoxicated, belligerent and talking vulgarly. The Wackers refused to serve appellant any alcoholic beverages after 6:00 p.m. or 7:00 p.m. because of his intoxicated condition. Appellant became angered by this and attempted to take drinks from other customers. At approximately this time, it was determined that appellant’s tractor-trailer was parked partially on the highway. Appellant was too intoxicated to get into the cab of the truck and another patron of the bar moved the vehicle off the road for him. At that time, Mr. Wacker took appellant’s truck keys so he could not drive.
Appellant left Mick’s Place with a woman to go to another bar to drink at 8:30 p.m. or 9:00 p.m. He returned an hour or an hour and one-half later in a more intoxicated condition and remained at Mick’s Place until it closed. Although the Wackers tried to persuade appellant to stay overnight at their apartment, he insisted on driving back to his home in Kansas. The evidence is inconclusive as to the exact time of appellant’s departure. Dee Wacker testified that appellant drove away from the bar between 12:50 a.m. and 1:00 a.m. on December 9, 1984, while Michael Wacker estimated appellant’s departure time as between 1:00 a.m. and 1:10 a.m. There was evidence presented that the clock in the bar was set back ten minutes.
Pursuant to a conversation Mr. Wacker had with appellant, Wacker testified that appellant was planning on driving home on Highway 43 to avoid going through Gentry, Arkansas, because he previously received a D WI citation in that town. Appellant left on Highway 12 going toward the Highway 43 junction. When appellant left Mick’s Place the brakes on his truck did not have enough air pressure and the vehicle skidded ten or twenty feet. Testimony indicated that appellant’s vehicle made loud, screeching noises as he drove away.
Don Blagg, who lives at the intersection of Highways 43 and 12 on the Oklahoma-Arkansas border, testified that he was awakened at 1:00 a.m. on December 9,1984, by a rumbling noise which sounded like a truck running off the road. Later Mr. Blagg saw skid marks on Highway 43 consistent with the noise he heard.
The persons with whom the Gillilands spent the evening of December 8, 1984, also testified. Collectively their testimony reveals that on this evening the victims were guests in the home of Carl Bonner. The Gillilands, along with the other guests, left the Bonner residence at approximately 1:00 a.m. on December 9, 1984, and arrived at Highway 43 somewhere around 1:00 a.m. to 1:05 a.m.
The accident was discovered by Mike Burrow and Doug McAfee on December 9,1984, between 12:30 a.m. and 1:15 a.m. as they were traveling north on Highway 43. Mr. Burrow testified that there were fresh dual tire marks from a large truck on the highway and the side of the victims’ tan vehicle had red paint on it. When these young men were interviewed at the scene neither told authorities that they met a vehicle on the highway before encountering the accident scene. However, approximately eight days after the accident, Mr. McAfee telephone the police to inform them that he remembered being run off the road on the that evening by a long-nose tractor with a flatbed trailer. Mr. McAfee did not testify at trial; however, Mr. Burrow’s testimony reveals that they did not meet any vehicles on the highway prior to discovering the Gilliland vehicle and were not run off the road by a semi-truck.
The evidence reveals that the victims’ vehicle is a 1981 tan colored Ford Escort and the appellant’s vehicle is a 1976 Peterbilt cab-over brown and white tractor with a reddish-orange flatbed trailer. Physical evidence was presented that indicated that appellant’s tractor-trailer was the vehicle which left the scene of the accident in which the Gillilands were killed. From all the evidence gathered, the estimated time of the accident was 1:15 a.m. on December 9, 1984.
Numerous police officers testified about the condition of both vehicles. Their testimony generally reveals that the skid marks at the scene were made by a large truck traveling north. Comparable dual skid marks were found from Mick’s Place to the Blagg residence, as well as in every curve leading to the scene of the accident. The victims’ car was knocked approximately thirty-five feet off the highway sustaining primary damage to the driver’s side. Red paint transfers were found on the hood, left front quarter panel, and door of the victims’ tan car. Based upon the skid marks and location of damage to the victims’ car, the authorities began looking for a reddish-orange tractor-trailer rig with damage to the driver’s side.
A search of appellant’s vehicle revealed evidence of recent damage consistent with their conclusions. There was a six-to-eight-inch, tan paint transfer above the bumper of the tractor and the same color paint transfer along the left side of the trailer bed approximately six feet in length. The front left axle of the rear tires was pushed back approximately one foot and the tires on the left side of the front axle were flat. Also, particles of glass and tan paint chips were found on the top and bottom of the trailer. The trailer bed was dirty except in the areas where the tan paint was transferred. These areas revealed a clean surface and the part of the trailer scraped down to the base revealed a shiny and rust-free surface indicating a recent scrape. As further proof that the two vehicles collided, evidence was presented that the distance from the ground to where the paint transfers began on appellant’s trailer was thirty-four and one-half inches and the distance from the ground to the bottom part of the red paint transfers on the victims’ car was also thirty-four and one-half inches.
Steve Cox, the Chief Criminalist of the Arkansas State Crime Laboratory testified that he performed tests comparing paint and glass samples removed from both the Gilliland vehicle and appellant’s vehicle. Based upon scientific testing methods, Mr. Cox testified that the tan paint found on appellant’s trailer came from a 1981 Ford product and could have come from the appellant’s 1981 Ford Escort. Also, he concluded that the red paint found on the victims’ car could have come from appellant’s trailer. Mr. Cox also testified that five of the nine analyzed glass samples taken from appellant’s trailer matched the glass samples taken from the victims’ car. Mr. Cox concluded that the odds that the two vehicles did not come into contact with each other are “extremely remote.”
Appellant argues that the above facts are insufficient to support his conviction. We disagree. Guilt need not always be proven by direct evidence. Circumstantial evidence can present a question to be resolved by the trier of fact and be the basis to support a conviction. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977). We have often said that the fact that evidence is circumstantial does not render it insubstantial. See, e.g., Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). The jury is allowed to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987).
Viewing the above and all evidence of record in the light most favorable to appellee, we find substantial evidence from which the jury could have found appellant guilty of the crimes charged and that his conduct was reckless and exhibited a conscious disregard of a perceived risk. Therefore, we affirm as to appellant’s second point for reversal.
Lastly, we address appellant’s argument that the trial court erred in denying his motion to suppress and objections to introduction of evidence taken from appellant’s vehicles without a valid search warrant, without reasonable cause and absent exigent circumstances.
At the pretrial suppression hearing and throughout the trial, appellant sought to suppress all photographs, paint and glass samples, test results and testimony from the seizure and subsequent searches of appellant’s vehicle obtained in violation of the fourth and fourteenth amendments to the United States Constitution.
The record reveals that Officer Edward Boring, a trooper for the Kansas Highway Patrol, received a call on December 9,1984, from the Arkansas State Police stating that appellant was suspected of being involved in a hit and run accident near the Oklahoma-Arkansas border involving two fatalities. The Kansas authorities also received an independent lead which implicated appellant. The Kansas officer was told that the vehicle that left the scene was a flatbed red or burnt orange tractor-trailer with damage to its left side and the victims’ car was a tan Ford Escort. Kansas officers spoke to appellant at his home on that day and obtained his permission to look at his vehicle. Appellant told the officers that his truck was parked at a local tavern. Upon looking at the vehicle, the officers determined that it was the vehicle that had been involved in the fatal accident. Photographs were taken of the vehicle parked at the tavern.
The officers returned to appellant’s home and read him his Miranda warnings. During a brief period of questioning, appellant admitted delivering hay to Arkansas on the previous day but refused to tell the time he returned home. The vehicle was impounded and remained in the custody of the Kansas authorities until December 21,1984. The vehicle was examined and various paint and glass samples were removed on December 11,1984, and on December 21, 1984.
It is well settled that an officer may conduct searches and make seizures without a warrant if consent is given to the search. Ark. R. Crim. P. 11.1. Additionally, any weapons or other things used or likely to be used as means of committing a criminal offense are permissible objects of seizure. Ark. R. Crim. P. 10.2.
Here, appellant gave the authorities consent to view his vehicle; however, even absent such consent, the appellant had no reasonable expectation of privacy to the outside of his tractor-trailer parked on a public street in front of a tavern. See, e.g., Cardwell v. Lewis, 417 U.S. 583 (1974). Upon viewing the vehicle, the police had probable cause to believe that appellant’s vehicle was the instrument of the deaths and was the item to be seized and examined for evidence. While this issue has not arisen in this state, other jurisdictions have addressed the seizure of vehicles because of their potential evidentiary value as the “instrumentality of the crime.”
In the recent case of People v. Griffin, — Cal. 3d —, 761 P.2d 103, 251 Cal. Rptr. 643 (1988) the Supreme Court of California upheld the warrantless search of the defendant’s impounded truck on the ground of the “instrumentality” exception to the warrant requirement, i.e., that the vehicle itself was an instrumentality of the crime or was itself evidence. In Griffin, the appellant’s van had a bloody shoe print on the floorboard which appeared to match a bloody shoe print found at the scene of the murder. The court found that the bloodstains that had soaked into the floorboard of the truck were clearly an appropriate subject of scientific examination and within the limits of the instrumentality exception.
In the vehicular assault case of People v. Zamora, 695 P.2d 292 (Colo. 1985) the court upheld the warrantless search of an impounded automobile because it was legally seized as evidence itself based on the victim’s description of the car and identity of the driver. The court held that when an object is lawfully seized and the police have a reasonable belief that the object is itself evidence of the commission of a crime, a subsequent examination of the object made proximate in time to the seizure, and undertaken for the purpose of determining its evidentiary value, is not an unlawful search.
In People v. Teale, 70 Cal. 2d 497, 450 P.2d 564, 75 Cal. Rptr. 172 (1969) the court upheld the warrantless seizure of an automobile in which police had cause to believe that the victim was shot. The officers seized the car incident to lawful arrest and ten days later the car was examined by a criminologist who found the victim’s blood splattered on the interior. In that case the court found no violation of the fourth amendment because the automobile was itself evidence subject to seizure. The court analogized the situation to a case in which a person suspected of homicide is found in possession of a gun. It stated that it has never been held that a search warrant is necessary to enable the police to perform ballistic testing to determine if the gun was the one used in the killing. The Teale court, quoting People v. Webb, 66 Cal. 2d 107, 424 P.2d 342, 56 Cal. Rptr. 902 (1967) also stated:
The implication is that when the police lawfully seize a car which is itself evidence of a crime rather than merely a container of incriminating articles, they may postpone searching it until arrival at a time and place in which the examination can be performed in accordance with sound scientific procedures.
Teale, 66 Cal. 2d at_, 450 P.2d at 570-571, 75 Cal. Rptr. at 178-79.
This principle was again followed in State v. Lewis, 22 Ohio St. 2d 125, 258 N.E.2d 445, cert. denied, 400 U.S. 959 (1970), where it was held that since there was reasonable ground to believe that defendant’s automobile was an instrumentality used in committing a murder, removal of paint samples for scientific examination was neither a search nor a seizure. No search warrant was required to validate the examination even though the examination was conducted at a place and time remote from the seizure.
The propriety of a warrantless seizure and search where the vehicle is the evidence or instrumentality of a crime is implicit in several United States Supreme Court decisions as well. See e.g., Cardwell v. Lewis, 417 U.S. 583 (1974); Coolidge v. New Hampshire, 403 U.S. 443 (1971); Cooper v. California, 386 U.S. 58 (1967); Carroll v. United States, 267 U.S. 132 (1925).
In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances. We reverse only if the trial judge’s ruling was clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). Additionally, the trial judge has discretion in deciding evidentiary issues and his decision will not be reversed on appeal unless he has abused his discretion. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985). Based upon our independent determination, the total circumstances reveal that the officers lawfully seized appellant’s vehicle as a permissible object of seizure after viewing it with his consent. Upon inspection of the vehicle, the police had a reasonable belief that it was evidence of the commission of a crime. Since the initial seizure was legal and since the reason for and nature of the custody of the vehicle was to use it as evidence, the subsequent warrantless searches were not unconstitutional. From the facts stated and the cases listed above, we find no error in the trial court’s denial of the motion to suppress nor do we find that the trial court abused its discretion in allowing in evidence obtained from the search and seizure of appellant’s vehicle. Therefore, the case must be affirmed.
Affirmed.
Cooper and Mayfield, JJ., agree.
Jennings, J., not participating on rehearing. | [
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Melvin Mayfield, Judge.
Appellant, Calvin Brannon, Jr., was convicted by a jury of the crime of possession of cocaine with intent to deliver. He was sentenced to serve 12 years in the Arkansas Department of Correction and to pay a fine of $ 10,000. On appeal, appellant argues the trial court erred in denying his motion to suppress because the reliability of the confidential informant was not established and the good faith exception as set forth in United States v. Leon, 468 U.S. 897 (1984), does not apply.
On May 1,1987, a warrant to search the premises known as Trailer #20 of Riverdrive Trailer Park #2 was issued upon the affidavit of Jim King, a criminal investigator with the Arkansas State Police. The warrant also described the trailer and its physical location and stated it was the appellant’s trailer.
The affidavit for the warrant stated in pertinent part that:
On 4/29/87 I received information from a Confidential Informant that a Calvin Brannon who lives in Riverdrive Trailer Park #2 had received a shipment of drugs on or around Wednesday, 4/29/87. The Confidential Informant observed the suspected drugs being removed from the car and carried into the trailer occupied by Calvin Brannon. The Confidential Informant said that there is always a lot of traffic at the trailer upon receiving the drugs. Confidential Informant states that hypodermic syringes that have been used to shoot up are laying in the yard at the trailer. The Confidential Informant stated that grow lights are also being utilized underneath the trailer, to grow marijuana.
On 5/1/87 this Investigator received a call from a Confidential source who stated that they had information that Calvin Brannon and Tina Inu residing at Riverdrive Trailer Park #2 had received a shipment of \xh pounds of Cocaine on 4/29/87. The Cocaine came in at the Little Rock Airport and was transported to the trailer occupied by Calvin Brannon and Tina Inu, said trailer being trailer No. 20 of Riverdrive Trailer Park #2. The Confidential Informant said that the Cocaine was kept at the trailer and dispensed from that site. The Confidential Informant stated that the Cocaine was kept in a bedroom of the trailer. The Confidential Informant also said that one of the users would be driving a 1974 red or maroon Pontiac LeMans. This Investigator along with Detective Jerry Bradley went to Riverdrive Trailer Park #2. The trailer is trailer number 20 and is located on the right side of the drive, being the next to the last trailer on that side. The trailer is yellow in color.
On checking with AP&L records it shows the utilities to be in the name of Calvin Brannon at trailer number 20, Riverdrive Trailer Park §2.
On 5/1/87 there were five vehicles at the residence, one being the 1974 Pontiac LeMans, maroon in color, which the Confidential Informant referred to. Also there is a 1957 Chevrolet, tan in color, which this Investigator has personal knowledge belongs to Calvin Brannon. The other vehicles we were unable to identify.
Appellant argues that although the Arkansas Supreme Court has adopted the Illinois v. Gates, 462 U.S. 213 (1983), “totality of the circumstances” test in reviewing the sufficiency of an affidavit in support of a search warrant, the Aguilar v. Texas, 378 U.S. 108 (1964), test for evaluating probable cause based on informant hearsay has not been replaced, but is contained in that portion of Ark. R. Crim. P. 13.1(b) which provides as follows:
If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.
Appellant argues that no facts are contained in the affidavit made by King that would tend to show the reliability of the informants who provided the information; that none of the information from the first informant was corroborated; that there is no statement about how the informant obtained the alleged information or that the informant had produced information in the past that had resulted in conviction; that unverified anonymous telephone tips do not support or contribute to a probable cause determination; and that there was no corroboration of any incriminating details but only of innocent details. He also contends that the affidavit did not provide a substantial basis for determining the existence of probable cause; therefore, the good faith exception as set forth in Leon, supra, does not apply. Appellant says the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” See Leon, 468 U.S. at 923.
The Arkansas Supreme Court accepted the “totality of the circumstances” test set out by the United States Supreme Court in Illinois v. Gates, supra, in the case of Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), and pointed out that this “new, more flexible” test would be applied in the future instead of the “two-prong” test of Aguilar. As explained by our decision in Wolf v. State, 10 Ark. App. 379, 664 S.W.2d 882 (1984), under this new test the magistrate issuing the warrant is to make a practical, commonsense decision based upon all the circumstances set forth in the affidavit, and it is the duty of the reviewing court to simply ensure the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. Moreover, in Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983), the Arkansas Supreme Court stated:
Recently in Illinois v. Gates,_U.S_, 103 S. Ct. 2317 (1983), the United States Supreme Court overruled previous decisions which held warrants obtained on the basis of informants’ tips must satisfy a strict “two prong” test. Instead the Court substituted a totality of the circumstances test, the one ordinarily used to determine probable cause in other instances. We have readily accepted the Gates decision in Thompson v. State ....
280 Ark. at 455.
Most courts agree there is no substantive distinction between the terms “reasonable cause” and “probable cause.” McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); Johnson v. State, 21 Ark. App. 211, 730 S.W.2d 517 (1987). Indeed, Articles III and IV of the Arkansas Rules of Criminal Procedure, which pertain to arrest and search and seizure, use the term “reasonable cause” throughout in preference to “probable cause” because it was felt that the use of the term “probable cause” might imply that the existence of facts must be “more-probable-than-not.” See Commentary to Article IV following Ark. R. Crim. P. 10.1. Under Ark. R. Crim. P. 13.1(d)
If the judicial officer finds . . . there is reasonable cause to believe that the search will discover persons or things specified in the application and subject to seizure, he shall issue a search warrant ....
“Reasonable cause to believe” as defined in Rule 10.1(h) “means a basis for belief in the existence of facts which, in view of the circumstances under and purposes for which the standard is applied, is substantial, objective and sufficient to satisfy applicable constitutional requirements.”
Here, on the face of the affidavit, it shows that it is based on information provided by two confidential informants. The affidavit states that the first confidential informant told King that appellant had received a shipment of drugs on or around April 29, 1987; that the informant had seen drugs carried into appellant’s trailer; and that there was always a lot of traffic at the trailer upon receiving the drugs. The affidavit also states that a second confidential informant told King that appellant had received a shipment of cocaine on April 29, 1987, which was kept in a bedroom of the trailer and dispensed from the trailer, and that one of the users would be driving a red or maroon Pontiac LeMans. The affidavit then states that King verified the information received from the informants as to the residence being that of the appellant, the presence of a maroon 1974 Pontiac LeMans, and the presence of a large number of cars parked at the trailer, one of which he knew belonged to appellant.
This affidavit is not unlike the affidavit upon which a search warrant was issued in Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). There, a sheriff executed the affidavit based upon information supplied by two informants and confirmed in some regards by the sheriff. In holding the affidavit sufficient under the Illinois v. Gates test, the court in Watson pointed out “the corroborating aspect of two informants verifying the same events.” In Gates an affidavit was executed by a police detective based upon information contained in an anonymous letter which had been “corroborated in major part” by the detective. The Court said:
[Pjrobable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gateses or someone they trusted. And corroboration of major portions of the letter’s predictions provides just this probability. It is apparent, therefore, that the judge issuing the warrant had a “substantial basis for . . . concluding]” that probable cause to search the Gateses’ home and car existed.
462 U.S. at 246.
We think the affidavit in the present case contained sufficient corroborating information to support the issuance of the search warrant in question under the Gates test, but the appellant argues that information from an informant which is corroborated only by details that do not incriminate the defendant may not be considered in assessing whether probable cause exists. People v. Magana, 95 Cal. App. 3d 453, 157 Cal. Rptr. 173 (1979), is cited to support that statement. On the other hand, the appellee argues this is not the law and cites United States v. Ellison, 793 F.2d 942 (8th Cir. 1986), in support of its position. We believe the corroboration in the present case is sufficient under both decisions. Magana affirmed convictions and held that an affidavit for search warrant was sufficiently corroborated. The decision was based on the old Aguilar v. Texas test and states “in order for corroboration to be adequate, it must pertain to defendant’s alleged criminal activity.” 157 Cal. Rptr. at 179. However, we find the evidence in the present case sufficient under Magana, and it is certainly sufficient under Ellison which said that “considerable deference is owed to a magistrate’s determination of probable cause.” 793 F.2d at 946. Both informants stated that appellant lived at the trailer where a quantity of drugs had been received on or around 4/29/87; the first informant stated that when drugs were present a large number of cars would be there; and the second informant said one of the users would be driving a Pontiac LeMans. Thus, each informant corroborated the other and when Officer King attempted to verify this information, some of it checked out. We think it is reasonable to believe the remaining unverified information is also true. See Draper v. United States, 358 U.S. 307, 313 (1959). Therefore, the affidavit provided reasonable cause, pursuant to Ark. R. Crim. P. 13.1(d), for the judicial officer to believe the search would discover the drugs specified in the allegation, in keeping with the totality of the circumstances test set out in Gates.
We also find that this case should be affirmed under the good faith exception as set out in United States v. Leon, 468 U.S. 897 In Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987), the court said that the good faith exception to the exclusionary rule enunciated in Leon was adopted in McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). The opinion in Jackson said: “Leon holds that objective good faith reliance by a police officer on a facially valid search warrant will avoid the application of the exclusionary rule in the event the magistrate’s assessment of probable cause is found to be in error.” 291 Ark. at 100. In Jackson, the good faith exception was applied to an affidavit which did not provide the issuing magistrate any particular facts bearing on a confidential informant’s reliability as required by Ark. R. Crim. P. 13.1(b). On that issue, the affidavit provided only the conclusory language “reliable informant.” The Arkansas Supreme Court noted there was an affidavit in support of the warrant and applied the good faith exception stating: “The officer who executed the warrant did act in good faith, in this case, and we apply the exception.” 291 Ark. at 102.
In the present case, Officer King did not attempt to search the appellant’s residence without a warrant and did not act solely upon the first tip, but waited until after he received a second tip and had made an attempt to verify the information received before seeking the warrant. Furthermore, King testified he had personal knowledge of the appellant’s background; that the second informant was identified; and that King had provided the judge who issued the warrant with the name of that informant, although this was not testimony recorded or contained in King’s affidavit. King had other knowledge bearing on this case and testified at the suppression hearing that he felt the confidential information furnished him was good due to the history of appellant and the information received. Under the circumstances, the trial court could find that the officers who executed the warrant did so in good faith, and that the Leon exception applied.
For the reasons discussed, we find the trial court did not err in denying appellant’s motion to suppress.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Judge.
Appellants, Arkansas Charcoal Company (ACC) and TXO Production Corporation (TXO), bring this appeal from orders of the Arkansas Public Service Commission (APSC) entered in APSC Docket Nos. 87-009-U and 88-092-U. By joint motion and stipulation of the parties, the orders appealed from the latter docket were consolidated with those appealed from the first docket. The APSC appears here to defend its actions and is joined as appellee by the Attorney General of Arkansas, who participated below pursuant to statutory authority, and by Arkansas Western Gas Company (AWG), which initiated the proceedings below by petitioning the APSC to investigate the situation giving rise to this appeal. An amicus curiae, Arkansas Louisiana Gas Company, also takes the position that the actions of the APSC should be affirmed.
A clear understanding of the facts giving rise to this controversy is essential to its resolution. Appellee Arkansas Western Gas had for some years been ACC’s sole natural gas supplier and owned the pipeline facilities which served ACC’s plant. At some point, ACC and AWG were unable to reach an agreement which ÁCC found satisfactory for its natural gas requirements, and ACC attempted to reach an arrangement with AWG for transportation of gas from TXO’s wells to ACC’s plant through AWG’s pipeline, but those efforts were unsuccessful. The failure to reach an agreement with AWG resulted in a “Gas Sales Agreement” dated July 2, 1986, entered into between the appellants, ACC and TXO.
Under the terms of this agreement, TXO, a natural gas production company not subject to regulation by the APSC, agreed to construct 14,500 feet of 41/2-inch pipeline and nearly 12,000 feet of 2%-inch pipeline connecting various gas wells to a dehydration station. At the dehydration station, the gas is odorized, metered, and treated prior to delivery to ACC, for use in its charcoal manufacturing plant near Paris, in Logan County, Arkansas. Like TXO, ACC has never been subject to APSC regulation. ACC and TXO contemplated sale of the pipelines and related facilities by TXO to ACC after construction, which transfer was accomplished after the facility became operational in January of 1987. The pipelines traverse the countryside in easements purchased by ACC for that purpose and are designed to accommodate pressures of at least 1,433 pounds per square inch (psi).
On January 21, 1987, AWG filed a complaint with the appellee Arkansas Public Service Commission, and TXO was subsequently ordered by the APSC to appear and show cause why it should not be subject to the jurisdiction of the Commission under the “Utility Facility Environmental and Economic Protection Act,” Ark. Code Ann. Section 23-18-501 et seq. (1987), and why it should not be prohibited from selling natural gas to ACC. AWG also sought permission to abandon its existing pipeline connecting its gas supplies to the ACC plant in the event appellants were allowed to operate their pipeline. ACC intervened in the case to protect its interests in the pipeline and related facilities.
Hearings were commenced in late October of 1987, and in May of 1988, the Commission found by Order No. 38 that the pipeline and equipment constructed and operated by TXO and owned by ACC were a “major utility facility” subject to Commission jurisdiction and that an application for a “certificate of environmental compatibility and public need” should have been filed with the Commission prior to construction of the pipeline. Order No. 38 also directed the appellants to cease and desist operating the pipeline, and a rehearing was sought by appellants in early June of 1988. On June 28,1988, the Commission issued Order No. 39, in which it denied rehearing and ordered compliance with all terms of Order No. 38 and directed that TXO and ACC cease operation of the pipeline within seventy-two hours. We temporarily stayed the Commission’s cease and desist order, and that stay was later made permanent pending resolution of this appeal.
TXO and ACC contend on appeal that the finding that the pipeline was a “major utility facility” as defined by the Arkansas Code is wrong or, alternatively, that, even if the pipeline is considered to fall within the definition of a major utility facility, an “environmental impact statement” is all that must be filed with the Commission. They also claim the Commission lacks authority to order the appellants to cease and desist operation of the pipeline.
A “major utility facility,” so far as a gas transmission line is concerned, is defined by Ark. Code Ann. Section 23-18-503(2)(C) (1987) as:
For the sole purpose of requiring an environmental impact statement hereunder, a gas transmission line and associated facilities designed for, or capable of, transport ing gas at pressures in excess of one hundred twenty-five pounds per square inch (125 lbs. psi), extending a distance of more than one (1) mile, excepting, however, those gas pipelines devoted solely to the gathering of gas from gas wells constructed within the limits of any gas field as defined by the Oil and Gas Commission;
Ark. Code Ann. Section 23-18-503(5), (9) and (10) (1987) provide as follows:
(5) “Person” includes any individual, group, firm, partnership, corporation, cooperative association, municipality, government subdivision, government agency, local government, or other organization;
(9) “Public utility” or “utility” means any person engaged in the production, storage, distribution, sale, delivery, or furnishing of electricity or gas, or both, to or for the public, as defined in Section 23-1-101 (4)(A)(i) and (4) (B);
(10) “Applicant” means the utility or other person making application to the commission for a certificate of environmental compatibility and public need.
Arkansas Code Annotated Section 23-1-101 (1987) provides:
As used in this act, unless the context otherwise requires:
(4) (A) “Public utility” includes persons and corporations, or their lessees, trustees, and receivers, owning or operating in this state equipment or facilities for:
(i) Producing, generating, transmitting, delivering, or furnishing gas, electricity, steam, or another agent for the production of light, heat, or power to, or for, the public for compensation;
(C) the term “public utility,” as to any public utility defined in subdivisions (4)(A)(i), and (ii) and (vi) of this section, shall not include any person or corporation, who or which furnishes the service or commodity exclusively to himself or itself, or to his or its employees or tenants, when the service or commodity is not resold to or used by others;
Ark. Code Ann. Section 23-18-510(a) (1987) reads in part as follows:
(a) No person shall commence to construct a major utility facility in the state, except those exempted as provided in subsection (b) of this section, Section 23-18-504(a), and Section 23-18-508, without first having obtained a certificate of environmental compatibility and public need, hereafter called a “certificate,” issued with respect to such facility by the commission.
Ark. Code Ann. Section 23-18-511 (1987) sets forth the matters which a “certificate of environmental compatibility and public need” must contain, including an “environmental impact statement,” the contents of which are set out in section 23-18-511 (8)(B). And, Ark. Code Ann. Section 23-18-507(a) (1987) provides:
(a) Nothing in this subchapter shall be deemed to confer upon the Arkansas Public Service Commission power or jurisdiction to regulate or supervise the rates, service, or securities of any person not otherwise subject to the commission’s jurisdiction.
The parties do not seriously quarrel over the actual physical characteristics of the pipeline itself, which are best described by David Minor, an engineer who is District Drilling Production Manager for TXO, as follows:
Approximately 14,500 feet of 4Vi" pipeline connecting the Earl “A” well to the Arkansas Charcoal Plant; 10,500 feet of Vk" pipeline connecting the Kalamazoo No. 1 well to the Earl “A” line; a dehydration station near the Arkansas Charcoal plant where the gas is dehydrated, metered, and odorized; and other related equipment.
According to the record, the lines are capable of operating at pressures of between 1,433 and 2,866 pounds per square inch (psi) and were hydrostatically tested to at least 800 psi, which itself exceeds anticipated operating pressures for the system. There can be no doubt from the evidence in the record but that the pipeline facility constructed by TXO from its gas wells to ACC’s charcoal plant meets the definition of a “major utility facility” as defined by Ark. Code Ann. Section 23-18-503(2)(C). It is clear that the pipeline traverses a distance in excess of one mile and has the capability to deliver gas at pressures in excess of 125 psi.
The parties have devoted a great deal of energy arguing whether TXO or ACC, or both, qualify as a “utility” or “public utility.” Ark. Code Ann. Section 23-18-503(9) refers to section 23-1-101(4)(A)(i) and defines those terms. An essential element of the definition is the contemplation that a utility or public utility sells, furnishes or otherwise delivers gas (or other utility service) to the public. The record in this case discloses that the only entity to which gas will be delivered through this pipeline is a private party, ACC. There is simply no evidence that it was constructed to serve any person or entity besides ACC, or that any other use is anticipated.
The parties agree that the proper resolution of this case turns on the intent of the General Assembly when it enacted the “Utility Facility Environmental and Economic Protection Act,” Ark. Code Ann. Section 23-18-501 et seq. The intent of the legislature is stated in the “legislative findings and declarations” set out in Ark. Code Ann. Section 23-18-502, which provides in part as follows:
(d) Furthermore, the General Assembly finds that there should be provided an adequate opportunity for individuals, groups interested in energy and resource conservation and the protection of the environment, state and regional agencies, local governments, and other public bodies to participate in timely fashion in decisions regarding the location, financing, construction, and operation of major facilities.
(e) The General Assembly, therefore, declares that it shall be the purpose of this subchapter to provide a forum with exclusive and final jurisdiction, except as provided in Sections 23-18-505 and 23-18-506, for the expeditious resolution of all matters concerning the location, financing, construction, and operation of electric generating plants and electric and gas transmission lines and associated facilities in a single proceeding to which access will be open to individuals, groups, state and regional agencies, local governments, and other public bodies to enable them to participate in these decisions. These matters presently under the jurisdiction of multiple state, regional, and local agencies are declared to be of statewide interest.
When we seek to determine the intent of the Act as applied to the instant case, we are guided by the Arkansas Supreme Court, which has said:
When construing statutes, the primary object is to carry out the legislative intent which is determined primarily from the language of the statute considered in its entirety. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979); Ark. State Highway Comm. v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958). In the absence of any indication of a different legislative intent, we give words their ordinary and commonly accepted meaning. The meaning of a statute must be determined from the natural and obvious import of the words without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977); Hicks v. Ark. State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976).
Thompson, Mayor v. Younts, 282 Ark. 524, 527, 669 S.W.2d 471 (1984).
We believe that the General Assembly’s expression of intent as set out in Ark. Code Ann. Section 23-18-502 (1987) demonstrates that the legislature intended to provide a forum for any interested person or entity to participate in governmental proceedings pertaining, among other things, to the construction, location and operation of major utility facilities. Primarily, the legislature contemplated that the provisions of the Act would apply in most instances to the activities of “utilities” or “public utilities” as defined by the statutes referred to above. Nevertheless, simply because a gas transmission line may be owned and operated for the purpose of serving a private entity rather than the public in general does not mean that it cannot be a “major utility facility” for some purposes. Although the appellants urge that an understanding of the definition of “major utility facility” requires reference to the definitions of “utility” and “public utility” found elsewhere in the Arkansas Code provisions pertaining to utilities, the legislature plainly stated in Ark. Code Ann. Section 23-18- 503(2) that “[mjajor utility facility means'.” and then proceeded to describe exactly those things it intended the definition to encompass, one of which is a pipeline of the type built, owned and operated by the appellants here.
Since the gas transmission line in this case meets the plain definition of “major utility facility,” the question becomes the extent to which the Act applies to this facility. While the parties have made several arguments as to the harmonious reading of the Act’s various provisions in conjunction with other applicable statutes and definitions, three facts are clear. First, the provisions of Ark. Code Ann. Section 23-18-501 et seq. have some application to the gas transmission line in this case because it meets the Act’s definition of a “major utility facility.” Second, it is a major utility facility “[f]or the sole purpose of requiring an environmental impact statement” under the provisions of the Act. Third, the requirements of an “environmental impact statement” are set out in section 23-18-511 (8)(B) of the Act.
It is obviously true that the Act’s section 23-18-510(a) provides that no person shall commence to construct a major utility facility in this state, unless exempted as indicated in that section, without first having obtained a “certificate of environmental compatibility and public need” from the Commission. But, since section 23-18-503(2)(C) contains the only definition in the Act that applies to the gas transmission line involved in this case, and since that definition only applies “for the sole purpose of requiring an environmental impact statement hereunder,” we think it is clear that the requirement in section 23-18-510(a) for a “certificate of environmental compatibility and public need” does not apply to the gas transmission line in this case. Furthermore, that is the only certificate required by the Act.
We are not authorized to pass upon the General Assembly’s wisdom in enacting the legislation involved in this case. We would note, however, that it appears to be within the “legislative findings and declarations,” set out in Ark. Code Ann. Section 23-18-502(d) and (e), to require only an “environmental impact” statement for the construction of the pipeline in this case in lieu of the “certificate of environmental compatibility and public need” which would be required of a utility serving the public. This would alert the Commission to the fact that the facility would be constructed and allow the Commission to determine whether the facility would serve the public. And, even if it did not serve the public, the filing of the impact statement would put the facility on record with the Commission as interested in the protection of the environment, which is in keeping with section 23-18-502(d).
However, our duty is to decide only the issues before us. An “environmental impact” statement has been filed in this case. In its Order No. 39, the Commission stated that “from the initiation of this Docket” the primary issue had been whether a “certificate of environmental compatibility and public need” should have been sought and obtained prior to the construction of the gas transmission line involved. Because the certificate had not been obtained, the cease and desist order was issued. We affirm the APSC finding that the gas transmission line involved in this case is a “major utility facility.” However, we find it is a “major utility facility” only for the sole purpose of requiring the filing of an environmental impact statement. The APSC finding that a certificate of environmental compatibility and public need must be obtained for the facility is reversed; therefore, it was error to issue the cease and desist order, and the order of the APSC in that regard is also reversed.
Affirmed in part; reversed in part.
Coulson, J., concurs.
Corbin, C.J., and Cooper, J., dissent. | [
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James R. Cooper, Judge.
The appellant and the appellee were divorced on September 26,1986. By agreement between the parties, the appellant had custody of the parties’ three minor children and the appellee agreed to pay $ 1200.00 per month child support. In May 1987, the parties entered into a consent decree which changed custody of the two older children to the appellee. The appellee subsequently filed a petition requesting a reduction of the amount of child support he was required to pay to the appellant. The chancellor granted his petition and reduced the amount of child support to $400.00 per month. On appeal, the appellant argues that the chancellor erred in modifying the amount of child support because the amount was part of an executed independent property settlement agreement. We affirm.
The agreement, which was incorporated by reference into the divorce decree, provided that the appellant was to receive $1200.00 per month child support until the youngest child reached the age of eighteen. The agreement also provided that “neither party shall bring an action to increase or decrease the amount of child support during this period of time.” The agreement further recited that it was the intent of the parties to finally settle the property issues and “determine future property rights, claims and demands in such a manner that any action with respect to the other be finally and conclusively settled by this Agreement.”
It is the appellant’s contention that the chancellor could not modify or alter the decree as to child support because all the provisions were based on an independent, integrated contract. We disagree. The court always retains jurisdiction over child support, as public policy. Regardless of the terms of an independent contract purporting to restrict a court’s power to modify support payments, either party has a right to ask for a change in child support. Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). Although we are confident that this rule is correct, we recognize that there are cases which have left room for confusion.
In Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950), the husband agreed to pay the wife $200.00 per month as alimony and support for their four children. The Arkansas Supreme Court reversed the chancellor’s reduction of the monthly payments, stating
The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants’ contract, nevertheless if the court approves the settlement and awards support money upon that basis there is then no power to modify the decree at a later date. McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946).
We note that the quoted paragraph never specifically mentioned “child support,” but uses terms such as “maintenance” and “support money.” Further, we note that the only authority cited for the Court’s ruling, McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946) had nothing to do with child support since the only issues presented dealt with alimony.
In later decisions the Supreme Court held that the chancery court did have the power to modify agreements as to provisions for support of minor children on a showing of changed conditions necessitating such modification. See Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644 (1955); Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953). The court later explained this discrepancy in Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42 (1967). The Court stated:
Any apparent conflict in these cases is probably attributable to the fact that the alimony and child support were not provided for separately in the Backus case, but child support was a separate item in the Lively case. See Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644. At any rate we think that the better rule is that a chancery court may withhold enforcement of the payment of child support payments that have become inequitable by change of circumstances and the court may either reduce or increase amounts of child support payments provided for by such agreements because of changed circumstances. The interests of minors have always been the subject of jealous and watchful care by courts of chancery.
242 Ark. at 301 (citations omitted).
Any remaining area of confusion should have been eliminated in Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). In Nooner the Supreme Court eliminated any distinction between combined and separate child support and alimony payments. In Nooner the parties entered into an independent contract which provided for the husband to pay $ 100.00 per week as child support and alimony. The Court stated:
The Court always retains jurisdiction over child support, as public policy. No matter what an independent contract states, either party has a right to ask for a change in child support. In this case where alimony and child support were not separately stated, the appellant can ask the Chancery Court to make a determination as to how much of the $100 is child support and how much is alimony.
Thus we see that the Supreme Court clearly held that agreements for child support remain modifiable, even where alimony and child support are lumped together as one sum. We note that Nooner did not mention Bachus v. Bachus. Further, in Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987) the Supreme Court said:
[S]uch separate agreements, even if incorporated into the decree, cannot diminish the power of the court to modify support upon a determination of a change of circumstances ....
292 Ark. at 389.
The appellant cites McInturff v. McInturff, 7 Ark. App. 116, 644 S.W.2d 618 (1983) and Reves v. Reves, 21 Ark. App. 177, 730 S.W.2d 904 (1987) in support of her argument that when an independent contract is so integrated that the various provisions constitute reciprocal considerations, the chancellor lacks the authority to modify the provisions pertaining to child support. We disagree.
In Mclnturff tilt wife had custody of the parties’ three minor children pursuant to a property settlement agreement. The agreement also provided for the wife to receive, in lieu of child support, the husband’s equity interest in the marital home, valued at $43,200.00. Less than two years after the divorce, the children began living with the husband. The husband petitioned the court for a pro rata refund of the lump sum child support. His request was granted. Citing Backus, we reversed because the provision in the agreement for child support was incapable of being severed from the other provisions in the contract for alimony and division of property. In other words, it was impossible to determine how much of the $43,200.00 was intended as child support, how much was consideration for the wife’s waiver of alimony, and how much was consideration for the wife’s release of the husband from a $23,000.00 mortgage. Unfortunately, we also said:
When parties execute an integrated property and support settlement agreement which is incorporated in their divorce decree, we believe the better rule is that the court cannot later alter or modify that decree unless the parties have provided for or agreed to such modification. See Plumer v. Plumer, 48 Cal. 2d 820, 313 P.2d 549 (1957). Our review of the parties’ contract and the other evidence before us leads us to one conclusion: The contract was integrated, it was intended to be a final settlement with respect to all property, financial, alimony and support matters, and it did not provide for modification. Therefore, we hold the trial court erred in modifying the parties’ agreement, and we reverse accordingly.
We think that the result in Mclnturff, that the husband was not entitled to a pro rata refund, was correct, but our reliance on Backus and its progeny was misplaced. Nooner was decided only a few weeks before Mclnturff, and Nooner clearly allows a chancellor to determine which amounts are child support if the independent contract does not so.state. Again, Mclnturff involved a refund of a lump sum child support payment rather than the chancellor’s authority to order prospective child support payments and, as we noted, our ruling did not preclude the husband from petitioning the chancery court for futiire child support. 7 Ark. App. at 119. The issue of the refund in Mclnturff did not involve the same public policy considerations as cases dealing with prospective child support payments, because refusing to refund the money to the father did not deprive the children of support. See Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). Mclnturff should be strictly limited to its unique fact situation because it involved a refund of a non-severable, lump-sum child support payment rather than an order of child support based on changed circumstances and the best interests of the children. The quoted paragraph is not, at least after Nooner, supra, the law in Arkansas.
Reves, supra, contains dicta regarding the trial court’s authority to modify an integrated, independent agreement as it pertains to child support. This dicta followed Mclnturff and, to the extent that it departs from our holding today, is disavowed. We hold that the chancellor always retains jurisdiction and authority over child support as a matter of public policy and that, no matter what an independent contract states, either party has the right to request modification of a child support award. Nooner, supra. In light of our holding, we think that the parties’ agreement not to seek any increases or decreases in child support is void as against public policy. The interests of minors have always been the subject of jealous and watchful care by chancery courts and the public interest in the welfare of children is sufficient reason for the exercise of this power. Collie v. Collie, supra.
Affirmed.
Jennings and Coulson, JJ., agree. | [
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James R. Cooper, Judge.
The appellee in this workers’ compensation case sustained a hernia while pulling a 60-pound part from a jig in the course of his employment with the appellant. The Workers’ Compensation Commission awarded benefits to him on a finding that he had satisfied the five factual requirements set out in Ark. Code Ann. § ll-9-523(a) (1987), thereby establishing that he had sustained a work-related hernia. The employer appealed that decision to this Court, and we affirmed. Cagle Fabricating and Steel, Inc. v. Patterson, 36 Ark. App. 49, 819 S.W.2d 14 (1991). The Arkansas Supreme Court granted review, concluded that we had erred in finding that the Commission made a satisfactory finding of fact with respect to the fifth statutory requirement, and reversed our decision, remanding to the Commission for a new decision based upon a specific finding regarding compliance with the fifth statutory requirement, subsection 1 l-9-523(a)(5). On remand, the Commission found that the appellee had satisfied that subsection, which requires that the physical distress of the hernia be such as to require the attendance of a licensed physician within 72 hours. From that decision, comes this appeal.
For reversal, the appellant contends that there was no substantial evidence to support the Commission’s finding that the physical distress experienced by the appellee following the hernia was such as to require the attendance of a licensed physician within 72 hours after the occurrence. We find no error, and we affirm.
Normally, after an appeal has been decided in the Supreme Court, subsequent appeals are to be filed in the Supreme Court pursuant to Ark. R. Sup. Ct. l-2(a)(l 1). However, because of constitutional limitations upon the appellate jurisdiction of the Arkansas Supreme Court, that rule cannot possibly deprive the Court of Appeals of jurisdiction of an appeal from the Workers’ Compensation Commission. Houston Contracting Co. v. Young, 271 Ark. 455, 609 S.W.2d 895 (1980). Therefore, despite the appellant’s suggestion that the present appeal should be heard by the Supreme Court, jurisdiction is properly in this Court.
The appellant’s first point is a challenge to the sufficiency of the evidence. When reviewing the sufficiency of the evidence to support a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Hampton & Crane v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id. Arkansas Code Annotated § 1 l-9-523(a) requires a showing that “the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.” A claimant need not prove that he was actually attended by a physician within 72 hours after the injury; instead, the statute provides only that the physical distress following the occurrence of the hernia was such as to require the attendance of a physician within the 72-hour-period. Cagle Fabricating and Steel, Inc. v. Patterson, 36 Ark. App. 49, 819 S.W.2d 14 (1991), rev’d on other grounds, 309 Ark. 365, 830 S.W.2d 857 (1992).
In the case at bar, the Commission on remand found that the physical distress experienced by the appellee following the occurrence of the hernia was such as to require the attendance of a physician within the 72-hour-period. Although the record shows that the appellee did not seek medical treatment until more than two weeks after the occurrence, the Commission noted that the appellee continued to experience discomfort and periodic episodes of severe pain during this time. The Commission also relied on testimony that the appellee is “stubborn about going to a doctor,” and that he did not seek medical attention sooner because he “thought it would work itself out.” Viewing the evidence in the light most favorable to the appellee, we cannot say that the Commission erred in finding that the appellee’s physical distress was such to require the services of a physician within 72 hours after the occurrence.
The appellant also argues that our prior award to attorney’s fees to the appellee for prevailing on the prior appeal should be set aside because our decision in that matter was reversed by the Supreme Court. We do not address this argument because the appellant concedes that the appellee’s attorney would be entitled to the award of attorney’s fees should the appellee prevail on appeal. Since the appellee has prevailed on appeal, there is nothing before us to review. This applies equally to the appellant’s argument that the costs taxed by this Court in our earlier decision should be vacated and set aside, because the parties agree that the analysis concerning the award of costs is exactly the same as that concerning attorney’s fees.
Affirmed.
Jennings, C.J., and Rogers, J., agree.
In Houston Contracting Co., supra, the petitioner sought review by the Supreme Court on the grounds that the case was a subsequent appeal following an appeal decided in the Supreme Court. Justice Fogleman, writing for the Court, explained the fallacy in the petitioner’s argument as follows:
We might well have denied this petition without opinion had it not been for the contention of petitioners that the decision of the Court of Appeals should be reviewed by this court because the appeal should have either been filed in this court, or transferred to this court by the Court of Appeals because of Rule 29(l)(j) of the Rules of the Supreme Court and the Court of Appeals. This subsection of the rule excludes a second or subsequent appeal of a case previously decided in this court from the appellate jurisdiction of the Court of Appeals. That section cannot possibly deprive the Court of Appeals of jurisdiction of an appeal from the Workmen’s Compensation Commission. The jurisdiction of the Court of Appeals of appeals from the Workmen’s Compensation Commission is not a part of the appellate jurisdiction of that court assigned to it by this court pursuant to Amendment 58 to the Constitution of Arkansas. It is original jurisdiction conferred upon that court by Acts 252 and 253 of the General Assembly of 1919 [Ark. Stat. Ann. 81-1323(b) (Supp. 1979)]. As we pointed out in Houston Contracting Co. v. Young, 267 Ark. 44, 589 S.W.2d 9, an appeal from the Workmen’s Compensation Commission cannot be transferred or certified to this court prior to a decision having been made by the Court of Appeals. This is due to the fact that the Constitution of Arkansas limits this court to the exercise of appellate jurisdiction (with exceptions not material here), which requires that a decision be first made by a court. Ward Manufacturing Co. v. Fowler, 261 Ark. 100, 547 S.W.2d 394. The constitution places no such limitation upon the jurisdiction of the Court of Appeals.
Houston Contracting Co. v. Young, 271 Ark. at 456-57, 609 S.W.2d at 896; see also Sunbelt Couriers v. McCartney, 31 Ark. App. 8, 786 S.W.2d 121 (1990). | [
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John B. Robbins, Judge.
Appellee Bill Knapp filed suit against appellants F. L. Davis Builders Supply, Inc. and Temple-Inland Forest Products Corp., alleging breach of implied warranties regarding insulation board he had purchased from appellants. Judgment was entered for appellee in the amount of $89,721.00. Appellants appeal, raising five arguments for reversal. After due consideration of the record and the briefs filed by the parties, we find no error and affirm.
During October through December of 1987, appellee purchased from appellant F.L. Davis agricultural insulation board to be used in the construction of chicken houses. The agricultural board (“ag board”) was ordered from the manufacturer, Temple-Inland Forest Products, and shipped directly to the construction site. The ag board cost appellee $34,055.48.
Appellee used the ag board in the construction of four chicken houses. After some time had passed, the foil facers on the foam insulation board began to peel off in sheets and would eventually fall to the floor. The process of the foil peeling away from the foam is referred to as “delamination.”
After appellee notified appellants of the delamination, Temple-Inland sent a representative to investigate. He determined that the delamination had not materially affected the performance of the ag board. He advised appellee that the ag board was not defective and that the delamination was an expected occurrence. Appellee then filed suit against appellants based on breach of implied warranties. The case went to trial in October 1991, and was submitted to the jury on a general verdict form for breach of the implied warranty of merchantability and the warranty of fitness for a particular purpose. The jury returned a verdict in favor of appellee in the amount of $103,180.00. The trial court reduced the verdict to $89,721.00 and awarded an attorney’s fee in the amount of $15,000.00.
Appellants’ first contention is that the trial court erred in refusing to grant a directed verdict in favor of appellants on the issue of breach of the implied warranty of merchantability. When we review the trial court’s denial of a motion for directed verdict, we must determine whether the verdict is supported by any substantial evidence. Tremco, Inc. v. Valley Aluminum Products, Corp., 38 Ark. App. 143, 831 S.W.2d 156 (1992). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other, forcing the mind to pass beyond suspicion or conjecture. BankofMalvernv. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). Where it is contended that the evidence is insufficient to support the appellee’s claim, the evidence, along with all reasonable inferences deducible therefrom, is examined in the light most favorable to the party against whom the motion is sought. Tremco, supra. Only when the proof of one party is so clear, convincing, and irrefutable that no other conclusion could be reached should the issue be taken from the jury and decided by the court. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). If there is any conflict in the evidence or if the evidence is not in dispute but is such that fair-minded men might draw different conclusions therefrom, a jury question is presented. State Farm Mutual Automobile Insurance Co. v. Pharr, 305 Ark. 459, 808 S.W.2d 769 (1991).
Arkansas Code Annotated § 4-2-314 (1987) provides that unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Section 4-2-314(2)(c) provides that “Goods to be merchantable must be at least such as are fit for the ordinary purposes for which such goods are used.” To recover for breach of an implied warrant of merchantability, the plaintiff must prove that (1) he has sustained damages; (2) the product sold to him was not merchantable, i.e., not fit for the ordinary purpose for which such goods are used; (3) this unmerchantable condition was a proximate cause of the damages; and (4) he was a person whom the defendant might reasonably expect to use or be affected by the product. E.I. DuPont Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).
Appellee testified that he has been in the chicken growing business all his life and is a contract grower for Townsends of Arkansas, Inc. In preparing to build four chicken houses, he went to F.L. Davis Builders Supply to buy his materials. Appellee offered evidence that Temple-Inland, manufacturer of the ag board, represented that the ag board was suitable for use in exposed applications in poultry confinement buildings. Testimony was introduced through the deposition of Robert Booker, sales manager for Temple-Inland. Booker testified that the foil facers supposedly gave the ag board a better insulation value, and that if the board did not have the foil facers, the insulation quality would be reduced — it would not be “as good as it would have been expected or intended to be.” Booker also stated, “I still stand by my statement that the foil fascia needs to be up in order to preserve the insulation qualities of the ag board, preserve 100% of it, yes.”
Appellee testified that as a contract grower for Townsends, he is required to maintain the chicken houses at specified temperatures. He also stated that Townsends has expressed concern about the chicken houses and the delamination. Rod Brown, the broilers supervisor for Townsends, testified that Townsends has a certain required R value, or insulation value, that has to be maintained in the chicken houses which are under contract with them. He said that he had observed the delamination process in appellee’s chicken houses, and that it was getting progressively worse. Brown testified that ordinarily they would not expect to see the foil facers falling down, and that Townsends had been required to close out certain growers’ contracts because of non-compliance and problems with their houses. Weldon Peters, live productions manager for Townsends, testified that the delamination was getting progressively worse, and that, in just a matter of time, appellee would be asked by Townsends to do something about it.
Terry Hipp, manager of Hipp Lumber and Hardware, testified as to what would need to be done to correct the ag board problem in these chicken houses. Due to the construction of the houses and the placement of the ag boards, the tin roof and the tar felt paper would have to be removed to replace the ag boards. Hipp estimated that it would cost $22,430.40 per chicken house to replace the damaged boards, for a total of $89,721.60.
Appellants moved for a directed verdict on the basis that appellee had failed to establish a cause of action for breach of the implied warranty of merchantability. Considering the foregoing evidence in the light most favorable to appellee, the party against whom the motion was sought, we find that the motion for a directed verdict on the implied warranty of merchantability issue was properly denied.
Appellants’ second argument is that the trial court erred in refusing to direct a verdict in their favor on the issue of breach of the implied warranty of fitness for a particular purpose.
Arkansas Code Annotated § 4-2-315 (1987) provides:
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
To recover for breach of an implied warranty of fitness for a particular purpose, the plaintiff must prove that (1) he has sustained damages; (2) at the time of contracting, the defendant had reason to know the particular purpose for which the product was required; (3) the defendant knew the buyer was relying on his skill or judgment to select or furnish the product; (4) the product was not fit for the purpose for which it was required; (5) this unfitness was a proximate cause of plaintiff’s damages; and (6) plaintiff was a person whom defendant would reasonably have expected to use the product. Great Dane Trailer Sales, Inc. v. Pryrock, 301 Ark. 436, 785 S.W.2d 13 (1990).
The proof of many of these elements has already been discussed above. Appellants argue that no particular purpose was shown, citing Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), which quotes a comment to the Uniform Commercial Code stating that a “particular purpose” may differ from an ordinary purpose in that it envisages a specific use by the buyer which is peculiar to the nature of his business, whereas the ordinary purposes for which the goods are used are those envisaged in the concept of merchantability and go to uses that are customarily made of the goods. Appellants argue that since use in chicken houses is one of the ordinary purposes of the ag board, no specific purpose has been shown and the implied warranty of fitness for a particular purpose does not apply. However, in Great Dane Trailer Sales, supra, the court stated that if the particular purpose for which goods are to be used coincides with their general functional use, the implied warranty of fitness for a particular purpose merges with the implied warranty of merchantability. 301 Ark. 436 at 444. Here, we also find that the particular purpose for which appellee purchased the ag board coincides with its ordinary use and purpose, and as a consequence the implied warranties of merchantability and fitness merged.
Appellant Temple-Inland argues that, while F. L. Davis may have dealt directly with appellee and may have known whether appellee was relying on Davis’s judgment or skill in selecting or furnishing the ag board, there was no evidence of such knowledge of reliance on the part of Temple-Inland. Inasmuch as we have found a merger of the implied warranties of merchantability and fitness, it is enough that appellee was a person whom Temple-Inland might reasonably have expected to use its products.
Under the law discussed herein and the evidence presented at trial, we cannot say the trial court erred in denying appellant’s motion for a directed verdict on the issue of an implied warranty for a particular purpose.
Appellants’ third contention is that the trial court erred in instructing the jury on the measure of damages in a breach of warranty action. The jury was instructed that if they found for appellee on the question of liability, they must fix the amount of money that would reasonably compensate him for “the reasonable expense of necessary repairs to any property which was damaged” if the damage was proximately caused by the breach of the implied warranties by appellants. Arkansas Code Annotated § 4-2-714(2) (1987) provides that the measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accépted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. Section 4-2-714(3) provides that in a proper case any incidental and consequential damages under § 4-2-715 may also be recovered. Under § 4-2-715(1) and (2)(b), incidental damages resulting from the seller’s breach include any reasonable expense incident to the breach and consequential damages include injury to property proximately resulting from any breach of warranty.
Appellee offered evidence that the foil facing on the ag board was falling off and that this reduced the insulating effectiveness of the board. He also offered evidence that because of the construction of the chicken houses, the tin roof and tar paper would have to be removed in order to replace the ag board. Considering this evidence and the code provisions providing for incidental or consequential damages, we cannot say the trial court erred in instructing the jury on the amount of damages.
Appellants also challenge the court’s admission of the discovery deposition testimony of Robert Booker as evidence at the trial. The court ruled that the deposition testimony was admissible pursuant to Ark. R. Civ. P. 32(a)(3):
The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
The court noted that Mr. Booker had been on the defendants’ witness list and that while he was not on the plaintiff’s witness list, it appeared from the plaintiffs statements that they felt he was going to be the corporate representative. Statements of counsel indicated that Booker was seen in the area the night before but he did not appear for trial. The counsel for the defense declined to respond as to whether Booker was still in the area. The court stated that given his lack of knowledge as to where Booker was, he was going to have to assume that he was not in the area and, since Booker was from Texas, that he was more than 100 miles away.
Appellants rely on Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), in which the supreme court held that because the parties and the court thought they were dealing with “discovery” depositions as opposed to “evidentiary” depositions, there was an implied agreement that the depositions would not be used as evidence at the trial, and appellant waived the literal wording of Ark. R. Civ. P. 32. In Goodwin, the following colloquy took place when the judge asked appellant’s attorney about his medical witness and depositions:
[Appellant’s attorney]: Your Honor, we’re going to have them all here.
The Court: So regardless of what the court does, you’re not going to try to use the discovery depositions as evidentiary depositions? [Emphasis added in Goodwin.]
[Appellant’s attorney]: We have no present intention of doing that and never have had.
300 Ark. 475 at 485. The Goodwin court observed that from the foregoing colloquy, “it is manifest that the parties and the court thought they were dealing with discovery depositions, not eviden-tiary.” We find the situation in the case at bar to be factually distinguishable from Goodwin. The facts there were such that the supreme court found it “manifest” that the parties and the court had made a distinction as to what kind of deposition was being taken and how it would be used. We find nothing in the instant case to indicate any implied agreement or waiver of Rule 32. In fact, the trial court found that to exclude Booker’s deposition testimony while he was or had been in the area would be contrary to the open disclosure that had taken place up to that time. We find no error in the court’s admission of Booker’s deposition testimony into evidence.
Appellant relies on the same argument to contend that the trial court improperly used the discovery deposition to authenticate certain exhibits. For the same reasons outlined above, we find no error on this point.
Appellants also contend that the trial court improperly permitted Terry Hipp to testify as an expert witness. Appellants base this argument on the fact that Terry Hipp had been a co-defendant with Temple-Inland in a previous litigation. At the time of the instant trial, Hipp was no longer a party in the other litigation, nor was he a party to the present litigation. Upon determining that Hipp’s testimony was not going to be an explanation of why the delamination was taking place, but only what it would take to repair the damage, the court allowed Hipp to testify. Whether a witness may give expert testimony rests largely within the sound discretion of the trial court and the court’s determination will not be reversed unless an abuse of discretion is found. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992). We find no such abuse of discretion.
Appellants contend that the trial court improperly allowed appellee to supplement discovery with designation of expert witnesses and disclosure of documents on the day before trial. The court found that appellants were not surprised by the documents supplemented and allowed the supplementation. Appellants concede the trial court has “significant discretion” in deciding such matters, but contends the appellee’s supplementation goes beyond the rules of basic fairness. Rule 26(e)(1) of the Arkansas Rules of Civil Procedure requires a party to seasonably supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity and location of each person expected to be called as a witness at trial, and in the case of expert witnesses, the subject matter on which he is expected to testify, and the substance of his testimony. A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. Ark. R. Civ. P. 26(e)(3). (Emphasis added.) The judge determined that there was no surprise to appellants before allowing the supplementation. We find no abuse of discretion.
Appellants’ final contention is that the jury considered improper matters in reaching its verdict. Appellants contend that the jury considered an inflation factor in reaching its verdict. However, there is nothing in the record to prove this; appellants are relying on their supposed knowledge of a discussion the circuit clerk had with the jury foremen. In Dickson v. Delhi Seed Company, 26 Ark. App. 83, 760 S.W.2d 382 (1988), the appellants argued that the trial court erred in failing to order a new trial when the jury returned a verdict that demonstrated it had used evidence of anticipated profits in computing damages because that was not a proper measure of damages. The supreme court noted that because the jury verdict was not submitted on interrogatories, the court could not conclude that the jury used evidence of anticipated profits in reaching their verdict. Likewise, the jury verdict herein was not submitted on interrogatories. Absent some showing in the record that the jury improperly considered an inflation factor, we will not presume the jury considered improper evidence.
Affirmed.
Pittman and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was tried by a jury and convicted of two counts of manslaughter, one count of battery in the second degree, and one count of driving while intoxicated, first offense. He was sentenced to three years in the Arkansas Department of Correction on each manslaughter charge, one year for the second degree battery, and one year for driving while intoxicated. The trial court ordered that the battery and DWI sentences be served concurrently with the two manslaughter sentences for a total of six years.
The record reveals that on the morning of March 12, 1987, on Highway 49 south of Brookland, the appellant’s car collided head-on with a car driven by Lucille Kious. Cynthia Ann Finley and two children, Kristen McGown and Cameron Finley, were passengers in Ms. Kious’s 1965 Mustang. Both Ms. Kious and Ms. Finley were killed in the accident and both children were injured; Cameron was critically injured and Kristen was less seriously injured.
The appellant was also injured and he was transported to St. Bernard’s Hospital in Jonesboro, where blood was drawn from him to test his blood alcohol level. The results reflected that the appellant’s blood alcohol level was .20.
The appellant was first tried by a jury in August 1987 on the two counts of manslaughter, but the jury was unable to reach a verdict and a mistrial was declared. The appellant brings this appeal from his second trial, which resulted in the convictions.
The appellant first makes several arguments concerning the information charging him with the offenses. The appellant asserts that the court erred in denying his motion to dismiss because the information failed to establish probable cause, in that the circuit clerk issuing the arrest warrant did not make a determination of probable cause, and because no probable cause hearing was held until after his first trial. We concur with the appellant’s assertion that there were irregularities in the clerk’s issuance of the arrest warrant, see Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987); however, an illegal arrest is not a bar to prosecution nor a defense to a valid conviction. Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987). As we stated in Pipes v. State, 22 Ark. App. 235, 738 S.W.2d 423 (1987):
An invalid arrest may call for the suppression of a confession or other evidence, but it does not entitle the defendant to be discharged from the responsibility for the offense. Illegal arrest, standing alone, does not void a subsequent conviction.
22 Ark. App. at 238 (citations omitted). In the present case the appellant has only asked that the trial court dismiss the charges, relief to which he is not entitled, and he did not request the suppression of any evidence or a confession.
At the appellant’s first trial, he was tried only on the two manslaughter charges. After the mistrial, the State amended the information to include two counts of battery and one count of DWI. Citing Ark. R. Crim. P. 23.1, the appellant contends that the State’s failure to join the battery and DWI offenses in the first trial barred the State from proceeding against him on those charges in his second trial. However, at trial the basis of the appellant’s objection to the amended information was that it punished him for exercising his right to a jury trial. In overruling the appellant’s motion to dismiss, the trial court based its decision on the fact that the statute of limitations had not run.
An argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); 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. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983). The objection must be clear and specific, allowing the trial court a fair opportunity to discern and consider the argument. Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984). Furthermore, the grounds for objection cannot be changed on appeal. Halfacre v. State, 290 Ark. 312, 718 S.W.2d 945 (1986). Therefore, we will not address the appellant’s argument.
The appellant’s second argument concerns the blood test he was given at the hospital. It is the appellant’s contention that he was not notified of his right to have an additional test in accordance with Ark. Code Ann. § 5-65-204(e) (1987), and that the results of the test were not converted to the form used in Ark. Code Ann. § 5-65-103(b).
Section 5-65-204(e) provides that a person tested at the direction of a law enforcement officer for blood alcohol levels may request an additional chemical test. Furthermore, the person tested is to be advised of his right to an additional test and the failure to so advise precludes admission of the test results into evidence. See Whaley v. State, 11 Ark. App. 249, 669 S.W.2d 502 (1984). It is not disputed that the appellant was not advised of his right to an additional test.
We find that under the facts and circumstances of this case it was not necessary for the appellant to be advised of his right to an additional test. The implied consent statute, Ark. Code Ann. § 5-65-202, provides in part:
(b) Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this section, and the test shall be administered subject to the provisions of § 5-65-203.
Requiring that a person be advised of his right to an additional test, under the circumstances outlined in § 5-65-202 would render that section meaningless. It is clear that a person incapable of refusing or consenting to being tested for blood alcohol levels need not be advised of his right to additional tests, because such a literal application of § 5-65-204(e) would lead to absurd consequences. See Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985).
The evidence at trial shows that the appellant was incapable of refusing or consenting to a blood test. Hershel Eaton, a trooper with the Arkansas State Police, was at the scene of the accident. He testified that the appellant was in “pretty bad shape” and that he was taken to the emergency room at St. Bernard’s by ambulance. He stated that he did not advise the appellant of his right to an additional test at the scene of the accident because the appellant was unconscious. The ambulance operator, Toby Emerson, stated that on the way to the hospital, the appellant was belligerent and uncooperative. He also stated that Eaton had advised him that a blood alcohol test was being requested. Leah Coleman, the chemistry section chief at St. Bernard’s, drew the blood from the appellant for the test. She stated that the appellant was crying out, aggravated, and “real upset.” Officer Eaton did not arrive at the hospital until after the blood had been drawn. Clearly, under these facts, any attempt to advise the appellant of his right to an additional test would have been fruitless and we therefore hold that it was not necessary.
The appellant’s argument that the blood test was not reported in conformity with Ark. Code Ann. § 5-65-103(b) is also without merit. Leah Coleman testified that the appellant had 221 milligrams of alcohol in each deciliter of blood. It is the appellant’s contention that she should have stated the blood alcohol level as a percentage.
Section 5-65-103(b) states that it is unlawful for a person to operate a motor vehicle if at that time there was one-tenth of one percent (0.10 %) or more by weight of alcohol in the person’s blood. However, § 5-65-204(a) states that percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood. Leah Coleman’s testimony was plainly in compliance with § 5-65-204(a). Furthermore, she also stated that it was a .2 blood alcohol level.
The appellant’s third argument attacks the qualifications and testimony of the State’s expert witness, Dr. Larry Williams. We find no error.
The appellant first asserts that, because Dr. Williams’s degree is in sociology rather than physics or engineering, he was not qualified to testify about his reconstruction of the accident. It is well established that the determination of an expert’s qualifications as a witness is within the sound discretion of the trial court and, absent an abuse of discretion, we do not reverse its decision. Smith v. State, 258 Ark. 601, 528 S.W.2d 389 (1975); Harper v. State, 1 Ark. App. 28, 643 S.W.2d 585 (1982).
At the time of the trial Dr. Williams was the Dean of Continuing Education at Arkansas State University and was the chairman of the Law Enforcement Standards and Training Commission in Arkansas. He stated that he became involved in traffic enforcement in 1976 when the university was involved with federal grants for training law enforcement officers. He stated that there is no college or university that offers a degree in accident reconstruction but that experts get their experience and training through seminars, conferences, and workshops. Dr. Williams then listed eight different seminars he had attended offered by various universities and law enforcement agencies. He then stated that he had been qualified as an expert in accident reconstruction in several Arkansas courts and in the federal courts of both Arkansas and Texas. We find no abuse of discretion in the trial court’s allowing Dr. Williams to testify as an expert.
Dr. Williams stated at trial that it was his opinion that the head-on collision was caused by the appellant’s car crossing the center line. The appellant argues that the testimony should not have been admitted because it was based on photographs of the two cars after they had been removed from the scene of the accident. Essentially, the appellant is arguing that Dr. Williams’s testimony was based on photographs which, the appellant contends, were themselves inadmissible.
First, we note that according to Dr. Williams’s testimony, he based his opinion not only on the disputed photographs, but also on discussions he had with Trooper Hershel Eaton, examination of the accident scene, and photographs of the cars taken at the scene of the accident. Dr. Williams also explained how the cars had changed by being moved and he pointed out specifically which photographs depicted the cars after they were moved. Secondly, Ark. R. Evid. 703 provides that an expert may base his opinion on facts or data inadmissible in evidence if of a type reasonably relied upon by experts in the particular field. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). Common sense tells us that most experts in accident reconstruction must rely on the type of data and information relied upon by Dr. Williams for the simple reason that rarely is an accident reconstruction expert on the scene when the accident occurs. Lastly, the factual underpinnings of Dr. Williams’s opinion were revealed to the jury and were subject to cross-examination, see Morris v. State, 21 Ark. App. 228, 731 S.W.2d 230 (1987), and the appellant’s arguments go to the credibility of Dr. Williams’s testimony rather than its admissibility. We find that the trial court did not err in allowing Dr. Williams to testify using the photographs.
The appellant next argues that the trial court erred in denying a motion to limit testimony concerning the appellant’s driving prior to the accident. Thomas and Theresa Davis testified that they saw the appellant shortly before the accident. Thomas Davis stated that he first saw the appellant’s car approaching his car from the rear and that it was weaving; the appellant’s car passed him; and when the appellant was around him, the appellant’s car ran off the road onto the shoulder and then crossed the lane and went over the center line. He stated that the appellant almost hit a bridge and then crossed the center line again. He stated further that he saw the two cars collide and he did not see the Mustang (Kious’s car) cross the center line. On cross-examination, Thomas Davis stated that the bridge that the appellant narrowly missed hitting was about one-fourth mile from the accident, and that the appellant had passed him approximately three to five minutes before the accident. Theresa Davis’s testimony was essentially the same except she estimated that the appellant passed them five to ten minutes before the accident occurred.
In making his argument, the appellant relies on the case of Miller v. Tipton, 272 Ark. 1, 611 S.W.2d 764 (1981). Wedo not find that case to be controlling. That case was a civil case that involved damages arising from an automobile accident. Miller was stopped at a red light, with his car protruding about six feet into the intersection when his car was struck by the appellee’s car. Miller argued on appeal that the trial court erred in excluding a witness’s testimony that, prior to the accident, the appellee was “going like a bat out of hell.” The Arkansas Supreme Court stated that the testimony was speculative and not helpful to the jury.
In the present case, the appellant defended himself with the contention that it was not his car that crossed the center line, but that Kious had attempted to pass another car and had crossed into his lane of traffic. Therefore, the fact that the appellant was seen within minutes of the accident weaving and crossing the center line was highly relevant. Furthermore, the Davis’s testimony was an objective statement of the facts, not a subjective opinion of driving as was the proffered statement in Miller. Whatever prejudicial effect the testimony might have had did not so clearly outweigh its probative value as to enable us to say that the trial judge abused his discretion in admitting the testimony into evidence. Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986); Ark. R. Evid. 403.
The appellant’s last argument is that the trial court erred in refusing to grant a continuance because the State failed to provide copies of some photographs prior to trial. We find no error.
The State introduced four pictures of the accident scene at the first trial. The appellant was allowed to examine the photographs prior to their use. When the appellant requested copies of the pictures, he was informed by the State that it had gotten the pictures from the local newspaper. The appellant then went to the newspaper and discovered that there were 48 pictures of the accident scene. The appellant ordered several pictures that he received on September 30, 1987. On October 3, the trial court denied the appellant’s motion for a continuance and the trial was held on October 26. The appellant contends that the trial court should have granted a continuance because the State had not complied with discovery.
Rule 17.1 of the Arkansas Rules of Criminal Procedure provides that, when a timely request is made, the prosecuting attorney has a duty to disclose certain information to defense counsel. This duty of disclosure has been interpreted as requiring that the defendant have the opportunity to discover the State’s evidence prior to trial, Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981), in order to have sufficient time to allow him to make beneficial use of it. Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978); Terry v. State, 9 Ark. App. 38, 652 S.W.2d 634 (1983). We find no abuse of discretion in the trial court’s failure to grant a continuance; the appellant knew of the photographs three months before the second trial and had his own copy of the photographs almost three weeks before trial. We think that three weeks was sufficient time to allow the defense to make beneficial use of the photographs.
We find no error in any of the points raised by the appellant and therefore we affirm his convictions.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this chancery case petitioned for foreclosure. After a hearing, the chancellor found insufficient cause to accelerate the mortgage debt and denied foreclosure. From that decision, comes this appeal. We affirm.
In 1984, the appellee signed a promissory note in the amount of $42,098.40, payable in 216 monthly installments of $194.94 each, to Jim Walter Homes, Inc. The note provided that the holder could declare the entire debt due in the event of default in the payment of any installment for a period of thirty days or failure to promptly fulfill the obligations of the mortgage given to secure the note. The note was secured by a mortgage upon four lots located in Franklin County. In the mortgage, the appellee agreed to keep the property insured in an amount equal to the lesser of the actual cash value of the house on the land or the unpaid balance of the cash price of the house. In the sale contract, the appellee elected to obtain insurance covering the property through Best Insurers, Inc. The contract provided:
In the event Buyer fails to furnish an acceptable policy of insurance, premiums prepaid, or in the event Buyer fails to keep in effect the required insurance cover age, Seller shall have the right, but not the obligation, to purchase such coverage for Buyer, and either add the premiums to the outstanding indebtedness or demand reimbursement from Buyer for those costs.
Jim Walter Homes assigned the note and mortgage to Mid-State Homes, Inc., which assigned them to Southeast Bank, N.A. as Trustee. Subsequently, Southeast Bank assigned the promissory note to Mid-State Trust II.
In July 1992, the appellant filed a complaint alleging that, because the appellee had failed to provide insurance coverage on the property, the appellant had obtained that coverage for the years 1985 through 1992 and had paid premiums in the amountof $1,797.90. The appellant asserted that the appellee was also in default on making the payments due under the note. The appellant sought judgment against the appellee for the balance of $15,982.98 due on the note, the amount paid for insurance premiums, attorney’s fees, and costs. The appellant also sought foreclosure of the property securing the note.
At trial, Russ Racop, an employee of Jim Walter Homes, testified that he had been responsible for the appellee’s account for the past three years. He testified that the appellee’s account was delinquent in installment payments for the months of May, June, July, August, and September 1992. He also stated that the appellee was delinquent in paying the insurance premiums from 1985 through 1992 in the amount of $1,797.90. His records reflected that the last payment was received on June 15,1992, and was credited toward her April 5,1992, installment; the appellee’s account was placed in foreclosure around June 25, 1992. Mr. Racop testified that he had, over a period of time, spoken with the appellee by telephone and in person at her house about her late payments. He stated: “There have been occasions that I’ve come by the home, or my supervisor would have come into town and gone by and left messages for her to return the calls. Mrs. Jackson is usually pretty good about calling back, and it’s the same story each time.”
On cross-examination, Mr. Racop admitted that, on June 1, 1992, when he recommended that the account be foreclosed, the appellee was delinquent in making one monthly installment. He also admitted that he did not inform the appellee that she had been noting on her checks that each payment was for a month later than the month to which the appellant applied each one. He stated that the appellant had considered the appellee to be behind in payments ever since the appellee missed the August 1989 payment. He admitted, however, that he had been provided with a copy of a check for that payment. He stated that he did not apprise the appellee of the confusion in regard to the checks because “she knew the payments were behind, because I’d been contacting her every month.” Mr. Racop stated that the appellant had returned a personal check dated July 1, 1992, to the appellee and admitted that the appellant had refused to accept the appellee’s checks after the account was placed in foreclosure.
The appellee testified that she and her husband, who died in 1988, had first purchased the property in 1978. She stated that, in 1984, the house had been in foreclosure and Jim Walter Homes had sold it back to her for more than she had originally paid for it. She also stated that Jim Walter Homes had required the note and mortgage to reflect her, but not her husband, as owner, even though she was married to him at that time. She stated that, since 1978, she had paid over $34,000.00 for the house, and her monthly income is $427.00 in social security benefits. She also testified about Mr. Racop’s practice of accepting late payments from her:
A. For over two and a half (2 1/2) years Mr. Racop has called me every month on about the 14th, and then from the 14th through the 17th, and he kept telling me that I was two (2) payments behind. I kept saying, “I am not two (2) payments behind, I’m late on this payment, but I will pay the late charges.” See the payment is due on the 5th, but I don’t have to pay late charges until after the 15th. And he said, “But you are still behind that ‘89 September payment.” I went through all my canceled checks, and I found that the September of ‘89, and Mary made copies for me, and I sent them to him.
Q. Did they ever tell you that they had applied that September payment from that copy that you sent of that check, did they ever tell you that they had applied it on a previous month?
A. No, when I. . . sent my next payment... the June payment that Mr. Racop was talking about, when I sent it to him, I think it was in June I mailed it to him in Fort Smith, he called me to tell me that he had got it. I said, “Did you get — also get the copy of that September of ‘89 check?” He said, “Yes, but you could have wrote that September on there any time.” And I had been writing it on there, the month, and most of the time my account number.
Q. On your memo?
A. Since ‘78 I have been writing it on that memo.
Q. Okay. And have you been through your canceled checks?
A. Yes.
Q. Okay. And are you behind on that September payment? A. No.
Q. Did anyone ever call to your attention or tell you that the labels on your checks, where you are writing on the memo, was incorrect?
A. No.
The appellee testified that she made the May 1992 payment around June 1 and her next payment was returned to her by the appellant. She stated that the last payment she made was not delinquent and that she would have been current on her account if it had been accepted.
With regard to the insurance premiums, she stated that the appellant had her “so mixed up that I don’t know where I’m at . . . .” She said that she had occasionally received bills for the insurance and had paid some of them:
Q. Have you been receiving these bills for the insurance?
A. Occasionally.
Q. Okay. And when you would get them, do you pay them?
A. I have paid some. IJh, now, they told me — I have called, ... it used to be Terry someone, that I would call and tell her that I couldn’t make all the payment, and she’d say,
“Well, why don’t you just on your house payment add so much to it,” you know. Well, that didn’t work too well. So then I would send like a Hundred and Fifty Dollars ($ 150.00) or something. I have canceled checks, but I don’t have them with me.
Q. Okay. And you’ve been paying that directly?
A. Yes, to Best Insurers. They have — I have a little card that goes with every payment.
Q. Did anyone ever indicate to you that that was not acceptable to you to do it that way?
A. No, they — they said it was fine if I could pay so much — just so much at a time.
Q. And have you been doing that?
A. I haven’t for the past year.
The appellee stated that she had not been informed by the appellant that, if she did not pay the insurance, the appellant would foreclose on her property.
On October 6,1992, the chancellor awarded judgment to the appellant for the arrearages in the insurance payments in the sum of $ 1,797.90, plus costs and attorney’s fees. The chancellor found that the appellee’s proof that she was, current in her payments of principal and interest was stronger than the appellant’s proof on that issue. He also found that all payments were refused by the appellant after June 1992 and that the appellee’s failure to pay some of the insurance premiums was not sufficient to accelerate the balance. He found that the appellee had paid approximately $34,000.00 since 1978, and denied acceleration of the debt and foreclosure because it would be “totally inequitable” based upon the facts. In the judgment, the chancellor ordered the appellee to immediately begin to pay her regular monthly payments and to immediately procure and keep current a valid insurance policy in an amount sufficient to satisfy the appellant. He further stated that failure of the appellee to comply with that order would constitute facts sufficient to allow acceleration of the debt and foreclosure of the mortgage.
The appellant argues on appeal that the chancellor erred in failing to grant foreclosure. The appellant first argues that the chancellor erred in refusing to find that the appellee was delinquent in her monthly installment payments. We cannot say that the chancellor erred in finding that the appellee’s proof upon this issue was stronger than the proof offered by the appellant. The appellee testified at length on this subject, and her testimony adequately supports the chancellor’s finding in this regard. On our review of chancery cases, we will not set aside a chancellor’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. Bright v. Gass, 38 Ark. App. 71, 78, 831 S.W.2d 149, 153-54 (1992).
The appellant also argues that the appellee’s delinquency in paying the insurance premiums warranted foreclosure. We disagree. It is true that the appellant could accelerate the entire debt due and seek foreclosure upon the appellee’s default in the payment of the insurance premiums. See Mooney v. Tyler, 68 Ark. 314, 315, 57 S.W. 1105 (1900). Nevertheless, principles of justice permit a court of equity to protect the debtor against an inequitable acceleration of the maturity of a debt. Crone v. Johnson, 240 Ark. 1029, 1031, 403 S.W.2d 738, 740 (1966). See also Harrell v. Perkins, 216 Ark. 579, 581-82, 226 S.W.2d 803, 804-05 (1950).
While the consequences of the court’s grant of equitable relief cannot affect its power, they nevertheless have an important bearing on the exercise of the judicial discretion which must guide a court of equity in determining the question whether it should grant or withhold a remedy which is within its power to give. In other words, the consequences of granting relief should be balanced against the need for it.
27 Am. Jur. 2d Equity § 107 (1966). In State v. Cate, 236 Ark. 836, 845, 371 S.W.2d 541, 546 (1963), the supreme court acknowledged that a court of equity may withhold the complete relief to which a plaintiff would otherwise be entitled if the defendant is willing to give in its stead such substituted relief as, under the circumstances, satisfies the requirements of equity and good conscience. In United States v. Forrester, 118 F.Supp. 401, 412 (W.D. Ark. 1954), the district court acknowledged that equity may relieve against acceleration of a debt where strict enforcement of acceleration would impose an unconscionable hardship on the mortgagor and give the mortgagee an unconscionable advantage.
We hold that the remedy ordered by the chancellor in this case was appropriate under the facts shown at trial. A court of equity may fashion any reasonable remedy justified by the proof. Smith v. Eastgate Properties, Inc., 312 Ark. 355, 361, 849 S.W.2d 504, 508 (1993); Cox v. Cox, 17 Ark. App. 93, 95-A, 704 S.W.2d 171, 173 (1986). In Rawhide Farms, Inc. v. Darby, 267 Ark. 776, 589 S.W.2d 210 (Ark. App. 1979), we approved relief similar to that ordered in this case. In Rawhide Farms, the mortgagee had tried to work with the mortgagors by extending and taking partial payments on the overdue amounts before filing for foreclosure, and it was undisputed that all of the amounts due had not been paid. We noted that the acceptance of the late payments was not a waiver of the mortgagee’s right to accelerate with regard to subsequent installments. We stated, however:
Under these circumstances, where the appellants are at fault for not paying and the appellees for giving them some reason to believe acceleration would not occur, we hold the appellants should, upon remand, be given a reasonable time to make the overdue payments. If the entire amount owed by the appellants to Mr. Darby’s estate, that is, the entire amount of the smaller note plus interest and the payments due on the larger note in accordance with its terms plus interest, is not paid at the date to be prescribed by the chancellor, the foreclosure may proceed. This was the approach taken by the Arkansas Supreme Court in Crone v. Johnson, 240 Ark. 1029, 403 S.W.2d 738 (1966), albeit far lesser sums were involved, and we think it fair. We note that, although we have said the chancellor will give the appellants a reasonable time to make their payments current, in no event will the appellees be precluded from acceleration and foreclosure on October 31, 1980, if the amount due then, including the payment which falls due on that date, has not been paid.
Id. at 783, 589 S.W.2d at 214.
Here, the evidence was undisputed that the appellant had a long history of accepting late payments from the appellee and that its representatives had been in frequent contact with the appellee about her installment and insurance payments. Given the fact that the appellee had paid over $34,000.00 for the property since 1978, and the relatively small amount of the unpaid insurance premiums compared to the amount the appellee had paid on the note since 1984, we find no error in the chancellor’s refusal to grant foreclosure in this case.
Affirmed.
Jennings, C.J., and Robbins, J., agree. | [
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John B. Robbins, Judge.
Appellant Elmer Ramey was convicted by a jury of delivery of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia, operating a drug premises, and conspiracy to deliver marijuana. Appellant was sentenced to nine years each on the delivery, possession with intent to deliver, and possession of drug paraphernalia convictions, and to six years each on the operating a drug premises and conspiracy to deliver convictions, with the sentences to run consecutively. The court suspended imposition of sentence on counts three and five, for a total sentence of 39 years imprisonment, with 15 years suspended.
Appellant raised three points on appeal: (1) the trial court erred in denying appellant’s motion to suppress evidence seized pursuant to a nighttime search warrant; (2) the evidence was insufficient to sustain the convictions; and (3) the trial court erred in denying appellant’s motion for mistrial. We find there was sufficient evidence to sustain appellant’s convictions. However, we agree with appellant’s contentions that the affidavit lacked probable cause to support a nighttime search, and that the evidence seized should have been suppressed. Accordingly, we affirm in part and reverse and remand in part.
Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334, we first address appellant’s challenge to the sufficiency of the evidence prior to consideration of any alleged trial error. In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the appellee, and affirm the conviction if there is substantial evidence to support it. Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991). In making our review, we do not weigh the evidence favorable to the State against any conflicting evidence favorable to the accused. Bargery v. State, 37 Ark. App. 118, 825 S.W.2d 831 (1992). In determining whether there is substantial evidence to support the jury’s verdict, it is permissible to consider only the testimony that tends to support the verdict of guilt. Franklin v. State, 311 Ark. 601, 845 S.W.2d 525 (1993). We may even consider evidence which may have been erroneously admitted. Burkett v. State, 40 Ark. App. 151, 842 S.W.2d 857 (1992).
The evidence viewed in the light most favorable to the State shows that the Camden police had received information about alleged drug dealing occurring around appellant’s home at 203 Midland Street. In January of 1991, Officer Poole and Sergeant Vaughan conducted an undercover investigation in which the Ramey residence was telephoned and a marijuana purchase arranged. Jeff Wilkins, the informant, was instructed to go to a grocery store and call again. He was then instructed to go to a club near appellant’s home. He was met at the club by Rod Ramey, who is appellant’s son, and Tom Henderson. Henderson handed Wilkins three or four bags of marijuana contained in sandwich- type plastic bags, for which Wilkins gave Henderson $130. Henderson and Ramey were subsequently arrested and some of the marked buy money was found in the possession of each. Pursuant to a search warrant, appellant’s home at 203 Midland was searched and plastic bags and two sets of scales were seized. After Henderson was arrested, he made a statement to police in which he said that he sold marijuana for appellant and that he and Rod obtained their marijuana from appellant. He also said that appellant obtained his marijuana from El Dorado, and that Rod would hide the marijuana somewhere in the woods. At trial Henderson denied having made these statements.
Officers continued to conduct surveillance activities around appellant’s home for approximately two more months, during which time they observed a pattern of activity whereby individuals would make a call from a pay phone, proceed to Midland Street, where appellant’s house was located, drive slowly by the Ramey residence, continue up the street, and come back and stop either in front of appellant’s house or down the street from it at an intersection. Either Rod Ramey or Abraham Minor (who is appellant’s nephew) would approach the car, then return to the front of the house. Although appellant was not seen during the surveillance, his work truck, car, or both were sometimes seen at the house during surveillance.
On March 14,1991, officers observed someone drive his car slowly by the Ramey residence, then hit his brake lights. Rod Ramey and Abraham Minor were seen at the house, but appellant was not. The vehicle proceeded to the intersection past the house, where it was met by Abraham Minor, and an exchange took place. After the car left, officers stopped the vehicle, which was driven by Michael Hooker. Hooker gave the officer a bag of marijuana and said he had purchased it from Abraham Minor.
The officers obtained a search warrant, which was issued at approximately 9:30 p.m. and which provided that the search could be conducted between the hours of 8:00 p.m. and 6:00 a.m. because the objects to be seized were in danger of imminent removal. The search was conducted at approximately 10:30 p.m. Appellant was present at the time of the search, as were Rod Ramey and Abraham Minor.
When the police arrived, Lt. Harrison and Sgt. McCann saw appellant running to the carport. Lt. Harrison yelled for appellant to stop, but appellant continued into the house. As Lt. Harrison followed him in, appellant reached for the telephone. Appellant was handcuffed and arrested, along with Rod Ramey and Abraham Minor.
A bag of marijuana was found in the pocket of Abraham Minor, who was sitting on the front porch of appellant’s house when the officers arrived. Minor’s billfold and W-2 income tax return form were found inside the house. Appellant had over $3000 cash and some food stamps on his person. Also seized were a set of triple-beam scales, around five or six hundred plastic bags in various sizes, some rolling papers, and a .22 caliber rifle, which was found under the living room couch.
The three men were taken to the police station. While the officers continued to search the house, telephone calls began coming in from people who wanted to purchase drugs. Several people came to the residence to purchase drugs and were arrested and testified at appellant’s trial. David Hathcoat testified that he had been to appellant’s house to purchase marijuana two or three times within the past two months. David Atkinson testified that on March 14, 1991, he went to appellant’s house for the purpose of purchasing drugs, and that he had been there about two times a week in the past for that purpose. He stated that the marijuana was always packaged in a “baggie.” Chris Bates also testified that he had bought marijuana from Minor in the past by going to the vicinity of appellant’s home, and that the drugs were packaged in a “baggie.”
In a statement to the police, Thomas Henderson said that the police arrived too early the night of March 14; appellant was going to El Dorado to pick up marijuana about 30 minutes later. Roy Magby, a former co-worker of appellant, testified that he had purchased marijuana from appellant on several occasions. Specifically, he said he bought marijuana from appellant in January of 1991 by calling appellant on the telephone, then going to his house. Magby said that the marijuana was packaged in a gallon Ziplock bag and that he weighed it on the scales in appellant’s kitchen.
Appellant contends that his conviction for conspiracy to delivery marijuana is not supported by substantial evidence. “Deliver” means the actual, constructive, or attempted transfer from one person to another in exchange for money or anything of value, whether or not there is an agency relationship. Ark. Code Ann. § 5-64-101 (Supp. 1991). Arkansas Code Annotated § 5-3-401 (1987) provides that:
A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:
(1) He agrees with another person or persons:
(A) That one (1) or more of them will engage in conduct that constitutes that offense; or
(B)That he will aid in the planning or commission of that criminal offense; and
(2) He or another person with whom he conspires does any overt act in pursuance of the conspiracy.
In his statement to the police, Thomas Henderson said that Rod Ramey got his marijuana from appellant, and that appellant bought “quarters” of marijuana from El Dorado. Henderson also stated that appellant asked Henderson to sell marijuana for him and that appellant had other people selling for him. After appellant had been taken to the police station the night of the search, calls continued to come in to appellant’s house from people wanting to purchase drugs. Several people came to the house for that purpose and were arrested. Two of them testified at trial that they had bought marijuana from someone at appellant’s house on several occasions. We hold there was sufficient evidence to find that appellant engaged in a conspiracy to deliver marijuana.
Appellant was also charged with the offense of operating a drug premises by maintaining or keeping a premises or structure in violation of the Arkansas Controlled Substances Act by storing, keeping, and distributing illegal controlled substances in and from his residence. Appellant contends his conviction for operating a drug premises is not supported by substantial evidence.
Arkansas Code Annotated § 5-64-402(a)(3) (1987) pro vides that it is unlawful for any person to knowingly keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of the Controlled Substances Act for the purposes of using these substances, or which is used for keeping them in violation of the act. A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. Ark. Code Ann. § 5-2-202(2) (1987).
The evidence shows that the Camden police had received complaints about alleged drug dealing going on around appellant’s home, and that their surveillance had revealed a pattern whereby people would make arrangements then drive by appellant’s home to purchase drugs. The night of the search several people called or came by appellant’s house for the purpose of purchasing drugs, and some stated they had done so several times in the past. Roy Magby testified that he had purchased marijuana from appellant’s residence. Large quantities of plastic bags and triple-beam scales were found in the house. We find there was sufficient evidence to support appellant’s conviction for operating a drug premises.
Appellant also contends his conviction for possession of drug paraphernalia is not supported by substantial evidence. Arkansas Code Annotated § 5-64-403(c)(l) (1987) provides that it is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of the Controlled Substances Act. Arkansas Code Annotated § 5-64-101 (v)(12) (Supp. 1991) sets forth the factors to be considered in determining whether an object is drug paraphernalia:
In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object concerning its use;
(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;
(3) The proximity of the object, in time and space, to direct violation of subchapters 1-6 of this chapter;
(4) The proximity of the object to controlled substances;
(5) The existence of any residue of controlled substances on the object;
(6) Direct or circumstantial evidence of the intent of any owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of subchap-ters 1-6 of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of subchapters 1-6 of this chapter shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia;
(7) Instructions, oral or written, provided with the object concerning its use;
(8) Descriptive materials accompanying the object which explain or depict its use;
(9) National and local advertising concerning its use;
(10) The manner in which the object is displayed for sale;
(11) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(12) Direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise;
(13) The existence and scope of legitimate uses for the object in the community; and
(14) Expert testimony concerning its use.
During the search of appellant’s home, the police seized several hundred plastic bags, ranging from sandwich-sized to gallon-sized; triple-beam scales; dietary scales; and rolling papers. The State offered evidence that the scales found in appellant’s home are commonly used in the drug industry, and a witness testified that when he purchased marijuana from appellant in January of 1991, it was weighed on scales before the purchase. There was also testimony from three witnesses that the marijuana they bought at the Ramey residence was packaged in plastic bags. Appellant admitted that the rolling papers were used to roll marijuana cigarettes. Based on the foregoing, we find the evidence sufficient to support appellant’s conviction for possession of drug paraphernalia.
Appellant was also charged with delivery of a controlled substance (marijuana), the information stating that appellant committed the offense by “delivering a quantity of marijuana into the hands of a Phillip Michael Hooker, Gary Hooker, and Harold Trueax in exchange for a monetary consideration. Elmer Ramey acted as an accomplice to Rod Ramey and Abraham Minor.” “Delivery” is defined as “the actual, constructive, or attempted transfer from one person to another of a controlled substance or counterfeit substance in exchange for money or anything of value.” Ark. Code Ann. § 5-64-101(f) (Supp. 1991). Arkansas Code Annotated § 5-2-403(a)(l) and (2) (1987) provides that a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he (1) solicits, advises, encourages, or coerces the other person to commit it, or (2) aids, agrees to aid, or attempts to aid the other person in planning or committing it.
There was testimony that Michael Hooker purchased marijuana from Abraham Minor after driving by appellant’s house and hitting his brake lights. There was testimony that Rod Ramey got his marijuana from appellant and that appellant had other people selling for him. According to the testimony of several witnesses, drugs were being sold from appellant’s home on a regular basis. We find there was sufficient evidence to support appellant’s conviction for delivery.
Appellant was also convicted of possession with intent to deliver. Actual or physical possession is not required in order to sustain a conviction for possession of a controlled substance. Nowden v. State, 31 Ark. App. 266, 792 S.W.2d 621 (1990). In Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), the supreme court said:
Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Where, however, there is joint occupancy of premises, then some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband and that the accused knew that it was in fact contraband.
301 Ark. 607 at 616. The State agreed there was no actual possession, but contended appellant was in constructive possession of the drugs found on Abraham Minor. We agree with the State’s contention that considering all the evidence of drug trafficking, it was reasonable for the jury to conclude that appellant controlled or had the right to control the drugs found on Abraham Minor. The evidence was sufficient to support the conviction of possession with intent to deliver.
Appellant also argues that the trial court erred in denying his motion to suppress evidence seized pursuant to a nighttime search. Because we agree with appellant that the affidavit lacked probable cause to support a nighttime search, we reverse and remand on this issue.
It is well-settled that an affidavit for a search warrant must set out facts showing reasonable cause to believe that circumstances exist that justify a nighttime search. State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). Ark. R. Crim. P. 13.2 provides:
(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
When reviewing a trial court’s ruling on a motion to suppress evidence because of an alleged insufficiency in the affidavit, we make an independent determination based upon the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992).
The affidavit is dated March 14, 1991, and recites that in January of 1991, officers purchased marijuana from Thomas Henderson and Rod Ramey. Telephone calls setting up the buy were arranged by calling 203 Midland Street. The affidavit further provides that since January of 1991, law enforcement officers had received several complaints about alleged drug transactions going on in front of the house at 203 Midland Street. Surveillance was conducted, which revealed a pattern of people meeting with Rod Ramey, Abraham Minor, or Thomas Henderson after driving in front of the Ramey residence. The meetings were suspected to be for the purpose of purchasing drugs. The affidavit goes on to recite the details of the delivery to the Hookers and Trueax, and states that they said they had bought from Ramey, Minor, and Henderson on approximately 25 occasions.
Neither the affidavit nor the sworn testimony set out facts showing reasonable cause for the issuing judge to have found that any of the required circumstances had been met for a nighttime search. A conclusory statement was made that the drugs to be seized were in danger of imminent removal, but no facts were stated to support this conclusion. The officers merely described the sales that had been observed thus far. We therefore hold that it was error for the nighttime search warrant to have been issued.
863 S.W.2d 839
Pursuant to Ark. R. Crim. P. 16(c), a motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial. In Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990), the supreme court found that the issuance of a nighttime search warrant was in error and the violation was substantial, stating, “[t]he nighttime intrusion into a private home is the violation of an important interest.” The search in Hall occurred between 1:00 a.m. and 3:00 a.m. In Martinez, supra, the supreme court said, “we hold the intrusion into appellee’s home, which began at approximately 9:00 p.m. and continued through 4:00 p.m. the next day, was a substantial violation of our rules.” The search warrant in this case was executed somewhere between 10:15 and 10:30 p.m. at appellant’s home. We find a substantial violation occurred and accordingly reverse and remand for proceedings not inconsistent with this opinion.
Appellant’s third point of error concerns a motion for mistrial based upon a prospective juror’s statements during voir dire. Because we feel that the issue is not likely to occur on retrial, we need not address it. See Hill v. State, 33 Ark. 135 803 S. W.2d 935 (1991).
Affirmed in part; reversed and remanded in part.
Jennings, C.J., and Cooper, J., agree. | [
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Judith Rogers, Judge.
Steven Grimes appeals from an order of the Arkansas Workers’ Compensation Commission limiting his award of permanent partial disability benefits to seven percent to the body as a whole. For reversal of this decision, appellant contends that (1) the Commission erred in remanding the case to the administrative law judge for the taking of additional evidence; (2) that the Commission erred in denying benefits in excess of seven percent; and (3) that the Commission erred in its interpretation of Ark. Code Ann. § 11-9-522 (1987). We find no reversible error, and affirm.
Appellant sustained an admittedly compensable injury to his back on August 22,1987, while in the employ of appellee, North American Foundry. At the time of his injury, appellant was working a forty-hour week as a machine operator earning $6.15 an hour. His duties required him to stand most of the day, and also involved his pushing eighty-pound sand molds onto a conveyor, and lifting aluminum boards. After the injury, appellant returned to work at his former position on November 23, 1987, and he continued to work for appellee in that capacity until he and a number of other employees were laid off on February 9, 1989. Appellant subsequently went to work full time at D&N Machinery earning $5.50 an hour. He filed the present claim seeking an award of permanent partial disability benefits in connection with the injury to his back.
In an opinion dated July 11, 1990, an administrative law judge determined that appellant was entitled to benefits in an amount equal to seventeen percent to the body as a whole, of which seven percent was attributable to his anatomical impairment and ten percent to a loss in wage earning capacity. Both parties appealed the ALJ’s decision to the Commission. In an opinion dated February 5, 1991, the Commission affirmed the ALJ’s finding with regard to the seven percent anatomical impairment rating. The Commission, however, vacated the finding with regard to the loss in earning capacity and remanded to the ALJ for the taking of additional evidence as to whether appellant had been laid off for economic reasons. The Commission determined that this was a relevant consideration in light of the provisions in Ark. Code Ann. § 11-9-522 (1987), since appellant had returned to his job earning the same wages and had continued to work there for fifteen months before his termination. After a hearing, the ALJ issued an order in which he found that appellant had been dismissed solely for economic reasons. As before, the ALJ awarded appellant permanent partial disability benefits in an amount equal to seventeen percent to the body as a whole.
Appellee pursued an appeal to the Commission. A majority of the Commission agreed with the ALJ’s assessment of appellant’s anatomical impairment rating of seven percent, but concluded that appellant had not suffered a loss in wage earning capacity as a result of his compensable injury. It is from this order, in which the Commission awarded appellant permanent partial disability benefits commensurate with an anatomical impairment rating of seven percent, that appellant brings this appeal.
As his first point, appellant contends that the Commission erred when it initially remanded the case for the presentation of additional evidence as to the reason he had been laid off. Appellant contends that the Commission’s action was contrary to our opinion in Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991), where we reversed the Commission’s decision which had allowed the claimant a second opportunity to meet her burden of proving temporary total disability. Appellant thus argues that it was error for the Commission to remand the case to permit appellee to offer proof on this issue. He asks that we remand to the Commission for it to decide his entitlement to wage loss benefits based on the record made at the original hearing.
We might be persuaded by appellant’s argument had the Commission’s consideration of the additional evidence formed the sole basis for its decision to deny wage loss benefits. In its final order, the Commission did consider it significant that appellant had, subsequent to his injury, worked at his previous job for some fifteen months before being laid off for economic reasons, and not on account of his injury. The Commission concluded that this was cogent evidence that appellant’s capacity to earn wages had not decreased. The Commission’s analysis did not end with this observation, however. The Commission further concluded that, based on the remaining evidence presented, including the consideration of appellant’s age, education, work experience, his current employment and the medical evidence offered, appellant had not demonstrated a loss in earning capacity. In light of this finding made by the Commission, it would serve no useful purpose for us to declare error and remand this case for the Commission to render a decision considering only the evidence introduced at the first hearing when it has, in effect, considered this evidence, has made findings of fact, and has concluded that appellant had failed to meet his burden of proof. We, therefore, decline to reverse on this point.
Appellant next argues that the Commission erred in denying benefits in excess of seven percent to the body as a whole. The record reveals that appellant is thirty-six years old, has a high school education and has 140 hours of class work at Westark Community College in the areas of machine shop, carpentry and automotive mechanics. Prior to his employment with appellee, appellant had served in the military and had several jobs of short duration before going to work at Whirlpool in the maintenance program, a job he held for nine years. Subsequent to his injury, appellant returned to his job with appellee and continued to work for almost a year and a half before being laid off. Three weeks after he lost his job, appellant obtained employment at D&N Machinery where he operates a computerized milling machine.
As stated before, appellant was injured on August 22,1987. He slipped and fell while climbing onto a conveyor. The medical evidence presented reflects that appellant was initially found to have a bulging disc at the L5-S1 level, according to a CAT scan performed on September 9, 1987. He was released to return to work on November 23, 1987.
On April 5, 1988, appellant was seen by Dr. Paul Raby, an orthopedic surgeon. From his examination, appellant’s cervical spine appeared normal and he found no muscle spasm in the lumbar spine. Dr. Raby reported that appellant had full range of motion and that straight leg testing was negative. His diagnosis was that of chronic back syndrome and, because of appellant’s complaints of pain, he recommended that appellant undergo an MRI. By appellant’s second visit on April 21,1988, Dr. Raby had the benefit of the results of the MRI, which revealed a herniated disc at the L5-S1 level. Dr. Raby reported that the neurological examination of the lower extremities was normal, that straight leg testing was negative and that “forward bending [was] full.” Because appellant was not symptomatic, Dr. Raby recommended conservative treatment and he placed no restrictions on appellant’s activities. A follow-up visit was scheduled for a month later. In his office notes from this next appointment on May 18, Dr. Raby noted that EMG and nerve conduction velocity testing performed on March 21, 1988, by Dr. Charles Reul, a neurologist, were both normal. Dr. Raby reported that appellant was completely pain free at that time, and no further appointment was made.
Appellant was again seen, however, by Dr. Raby on Febru ary 15, 1989. In his notes from that date, Dr. Raby stated that appellant was complaining of intermittent pain in his lower back, going down to his left lower extremity. He noted that appellant had full flexion and extension of the lumbar spine, that lateral bending was normal, that deep tendon reflexes were present and normal, that there was no muscle weakness and that straight leg raising was negative. Dr. Raby’s diagnosis was that the disc herniation remained but “without detectable neurological deficit on clinical examination.” He suggested that the MRI be repeated.
At the request of the administrative law judge, appellant was next seen by Dr. Stephen Heim, another orthopedic surgeon, on September 21, 1989. In a letter dated September 25, 1989, Dr. Heim reported:
I feel Mr. Grimes has a herniated disk on the left side at the L5-S1 vertebral level. He has decreased motion in his lumbar spine but, at this time, has no hard neurological symptoms other than a very mild decrease in the ability to extend the great toe which is not a functional deficit. Additional treatment, if Mr. Grimes feels that problem is too painful to live with, would be excision of the disk, and I would rate him with approximately a 13% total body impairment as he stands at this time.
Appellant returned to Dr. Raby on January 15,1990, and an MRI was scheduled in several days. On January 23rd, Dr. Raby reported that the MRI revealed disc degeneration, but that the disc herniation was no longer present and that this constituted a marked improvement in appellant’s condition. After seeing appellant on January 29, Dr. Raby released appellant from his care. Dr. Raby advised appellant to protect his back due to the likelihood that the herniation might reoccur, but he placed no restrictions on appellant’s activities. In his deposition of March 1, 1990, Dr. Raby explained that the disappearance of the disc herniation was uncommon, but that appellant was one of the more fortunate patients who showed this improvement. Also in his deposition, Dr. Raby stated that, based on appellant’s current condition, he would assess an impairment rating at seven percent to the body as a whole.
The record also contains the final report of Dr. Charles Reul dated January 19, 1990. Dr. Reul commented:
The patient has a history of low back injury with global back pain and left leg pain. He has a completely normal neurological examination, and EMG-NCV of the left lower extremity is normal. MRI scan shows no significant pathology at this point, and I would feel there is no neurological basis for his complaints.
He released appellant to work without restrictions.
On appeal, appellant contends that there is no substantial evidence to support the Commission’s assessment of a seven percent anatomical impairment rating. In making this argument, he relies on the opinion of Dr. Heim in which he stated that appellant was impaired to the extent of 13% to the body as a whole. Appellant further contends that there is no substantial evidence to support the Commission’s denial of wage loss benefits.
In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidenced. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. CDI Contractors v. McHale, supra. The Commission has the duty of weighing medical evidence and if the evidence is conflicting, its resolution is a question of fact for the Commission. Broadway v. B.A.S.S., 41 Ark. App. 111 848 S.W.2d 445 (1993).
The wage loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. See Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985). The Workers’ Compensation Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other elements affecting wage loss, such as the claimant’s age, education and experience. Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162 (1987). The Commission’s specialization and experience make it better equipped than we are to analyze and translate evidence into findings of fact. Tiller v. Sears, Roebuck & Co., 27 Ark. App. 159, 767 S.W.2d 544 (1989).
Here, there is testimony in the record given by Dr. Raby setting appellant’s anatomical impairment at seven percent. We note that this was the most recent assessment offered, and that Dr. Heim’s opinion, upon which appellant relies, was rendered prior to the MRI which revealed that the disc herniation was no longer present. In denying wage loss, the Commission considered that appellant was a relatively young man, that he had a high school education and a fair amount of training in machine shop, carpentry and automotive mechanics. The Commission also observed that his primary treating physician, Dr. Raby, as well as Dr. Charles Reul, had released appellant for work without any specific limitations. Specifically, the Commission noted Dr. Raby’s testimony on this subject in which he stated:
Yes. And based on the fact that the patient has been working on a regular basis and doing work which is probably not light work but a type of regular work with probably some lifting and he’s still functioning okay, and I didn’t feel that he should have any restrictions.
When we view the evidence in the light most favorable to the Commission’s findings, we cannot say that its decision is not supported by substantial evidence.
As his last issue, appellant argues that the Commission erred in its interpretation of Ark. Code Ann. § ll-9-522(b) (1987). This statute provides that:
(b) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education work experience, and other matters reasonably expected to affect his future earning capacity. However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be em ployed, at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
With reference to the emphasized portion of the statute, appellant argues that the Commission erred in applying this section to deny wage loss benefits based on the evidence that after his injury he returned to his former job earning the same wages. We think appellant has misconstrued the Commission’s decision. As pointed out in the dissenting Commissioner’s opinion, in its final order the Commission did not find that appellant’s claim for wage loss benefits was barred under this section. Since the Commission did not preclude recovery on this basis, we find no merit in appellant’s argument.
Affirmed.
Pittman, Robbins, and Mayfield, JJ., dissent.
In this issue, appellant mentions that the Commission’s conclusion that principles of res judicata precluded it from reconsidering the AL J’s finding that appellant was laid off for economic reasons, since appellant had not appealed that decision, is contrary to our holding in White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990). From our reading of appellant’s argument, he does not seek reversal on this basis, and we note that reversal would not be in order for the reason we discussed in the first issue. | [
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Per Curiam.
The appellee has filed a motion asking that we - stay the enforcement of the order requiring the payment of an attorney’s fee “until appellee has exhausted all judicial review of the issue to which it is entitled.”
This motion goes back to an unpublished opinion which we issued in this case on December 23, 1992. In that opinion we remanded this case to the Arkansas Workers’ Compensation Commission for reconsideration in light of an opinion we issued in Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).
After we remanded the present case, the appellant filed a motion for attorney’s fee, which we granted on April 21, 1993. See Crow v. Weyerhaeuser, 41 Ark. App. 225, 852 S.W.2d 334 (1993). The appellee’s present motion is apparently filed because it thinks our allowance of attorney’s fee would not be final until and unless this case came back from the Commission and we decided for the appellant on the merits of that appeal. This is not the view we have and not what we said in our opinion granting the fee. In that opinion we discussed previous opinions we had issued on this point, and we think our opinion clearly stated that the appellant was allowed an attorney’s fee because he had “in fact prevailed” when we remanded to the Commission.
Motion denied. | [
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Melvin Mayfield, Judge.
Appellant, Gaylon Roberts, appeals from the decree of the chancellor that granted the motion of the appellee, Ann Roberts (Cox), which asked that the court order the appellant to pay appellee $11,000.00 pursuant to a property settlement agreement made when the parties were divorced in September of 1985. Paragraph 3 of the property settlement agreement, which was incorporated into the decree of divorce, stated:
Husband and Wife own as tenants by the entirety the real property located at 1809 Cherry Street, Stuttgart, Arkansas the same being the residence of the parties. Husband and Wife agree that as of the date of this document they have an accumulated equity in said property in the amount of $22,000.00. Husband shall have as his sole and separate property said real property and Wife shall convey to Husband her interest in said real property by Quitclaim Deed in consideration for Husband paying to Wife the sum of $11,000.00 upon Husband selling the house at any time in the future.
At the hearing on appellee’s motion, the appellant testified that in 1988 the appellee gave him a quitclaim deed pursuant to the provisions of the property settlement agreement. Appellant took the position that under the property settlement agreement the $11,000.00 was to be paid simultaneously with the execution of a quitclaim deed when he sold the property. He said he has no intention of paying appellee $11,000.00 because the quitclaim deed shows she has no further interest in the home. He admitted giving appellee nothing in exchange for the deed, but raised the defense of accord and satisfaction. He testified that in August 1988 the appellee wanted to force him to sell the property and pay her $ 11,000.00; that he and his attorney offered several proposals; and then one day the appellee came in and signed the quitclaim deed.
The appellee testified that her understanding of the property settlement agreement was that she would give appellant a quitclaim deed and, upon his selling the home, he would pay her $11,000.00. She said she gave him the quitclaim deed in 1988 because they were having a disagreement and she wanted him to sell the house.
Appellee testified further that she never thought she was giving up her right to $ 11,000.00 and that she received nothing in return for the deed. She said the deed was executed in conjunction with the negotiation and disagreement they were having, but it was still her understanding that she would get her money when the house was sold.
On appeal, appellant argues that a deed need not be based on consideration to transfer title to property; that the trial court erred in not applying the doctrine of merger; and that the trial court erred by allowing parol evidence to vary the terms of the deed.
Appellant’s argument that there need be no consideration for a deed does not pertain to an issue in this case. The appellee is not seeking to void or set aside the quitclaim deed that she gave the appellant. She is trying to enforce the provisions of a property settlement agreement which the parties entered into in 1985.
Appellant also argues that the doctrine of merger applies to this case, and quotes from Croswhite v. Rystrom, 256 Ark. 156, 162, 506 S.W.2d 830 (1974), the statement that “an agreement made for the sale of lands merges into a deed subsequently executed.” But the quotation stops short. The rest of the sentence states, “however, if there be a showing of mutual mistake of fact, a misrepresentation, or perpetration of a fraud, the merger is not consummated.” Moreover, Croswhite v. Rystrom cites as authority the case of Duncan v. McAdams, 222 Ark. 143, 257 S.W.2d 568 (1953), which quotes as authority a statement from American Jurisprudence that the doctrine of merger applies “in the absence of fraud or mistake, and in the absence of contractual provisions or agreements which are not intended to be merged in the deed.” From the testimony of the appellee, the chancellor could find that the agreement between the parties in this case was not intended to be merged in the deed. In other words, that the agreement did not intend for the payment of the money and the delivery of the deed to take place simultaneously. The chancellor’s order in this case stated, “to find for the Defendant [appellant] would in effect cause a forfeiture and would violate all principles of equity.” We think the chancellor’s finding is supported by the law and the evidence; therefore, the doctrine of merger does not apply.
Appellant’s last argument is that parol evidence cannot be admitted to void a deed. This argument, like appellant’s first argument, also misses the point. Appellee is not trying to void the deed; she is simply trying to collect under the terms of the property settlement agreement.
Affirmed.
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John F. Stroud, Jr., Judge.
Brian K. Crow was convicted in municipal court on a charge of night hunting. In addition to a fine and costs, the municipal court ordered his pickup truck and shotgun forfeited to the State of Arkansas, to be disposed of in accordance with the law. He appealed the conviction to circuit court, where a jury found him guilty. He was sentenced to one year in jail with execution of sentence suspended subject to certain conditions. Just as had been done in municipal court, the circuit judge ordered Mr. Crow’s pickup truck and shotgun forfeited following the entry of the verdict and judgment. On appeal, Mr. Crow contends that the circuit court was without jurisdiction to hear his case. His argument is that the municipal court lacked jurisdiction to order a forfeiture and that on appeal the circuit court acquired only such jurisdiction as the municipal court had. We disagree and affirm.
Night hunting and forfeiture of equipment used therein are addressed by the Arkansas Game and Fish Commission Code. Regulation 18.02 provides in part:
It shall be unlawful to hunt or kill any wildlife at night with or without the use of a light of any type.
PENALTY: $500.00 TO $1,000.00
In addition, a jail sentence of up to one year and/or suspension of hunting and fishing privileges may be imposed in accordance with Code 11.05, Revocation of Privileges. Equipment used in such violations (including but not limited to killing devices and lights) may be confiscated by the court, forfeited to the State, and disposed of according to law.
Confiscation and seizure of equipment for night hunting and other violations are addressed by Game and Fish Regulation 01.00-D. It states that any equipment, including but not limited to guns, boats, lights, motors, or vehicles used in willful and deliberate violation of 18.02 may be seized and disposed of according to Commission policy. Furthermore, upon conviction of the defendant, the court having jurisdiction may order title to the equipment forfeited to the Commission with its disposal to be determined by the court for the benefit of the Commission. See Arkansas Game and Fish Regulation 01.00-D.
Although appellant argues that the circuit court acquired on appeal only such jurisdiction as the municipal court had, he does not question the circuit court’s general residual jurisdiction to order a forfeiture in an original proceeding in that court. Arkansas Code Annotated section 16-96-507 (1987) specifies that a case appealed to circuit court shall be tried anew as if no judgment had been rendered. If any defect occurred in the present case at the municipal court level, it was remedied by the de novo trial in circuit court. See Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993); Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988); Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988). In the present case, the circuit court had jurisdiction to order forfeiture of the truck and shotgun in the de novo trial.
Because the de novo trial cured any defect at the municipal court level, we need not decide whether the municipal court lacked jurisdiction to order a forfeiture. We note, however, that appellant was not without a remedy to challenge the inherent power of a municipal court over a forfeiture proceeding. An accused who wishes to prevent a municipal court from exercising jurisdiction over a given matter should seek a writ of prohibition in circuit court. See State v. Webb, 323 Ark. 80, 913 S.W.2d 259 (1996); Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988).
Appellant also contends that the trial court erred in not proceeding with forfeiture as an in rem civil action independent of any criminal charges. We do not agree. In Dennis v. State, 26 Ark. App. 294, 764 S.W.2d 466 (1989), appellants convicted of the offense of night hunting were sentenced to fifteen days in the county jail, fined $1000, had their hunting privileges suspended for two years, and had a rifle and spotlight confiscated. The Dennis appellants argued that the court, in fixing their punishment, clearly exceeded the statutory range of Ark. Code Ann. § 15-43-240 (1987) (since repealed), which limited the penalty for a person convicted of night hunting to a fine of between $10 and $200. We addressed that argument as follows:
[W]e point out that § 15-43-240 was enacted before Amendment 35 to the Arkansas Constitution was adopted in 1945. Under the provisions of that amendment, the Arkansas Game and Fish Commission was given full and complete authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife, including regulations setting penalties for violations. . . .
Pursuant to this authority, the Commission promulgated Regulation 18.02, which provides that it is unlawful to hunt or kill any wildlife at night with or without the use of a light. Possible penalties for its violation include a fine of from $250.00 to $1000.00, a jail sentence of up to one year, suspension of hunting privileges of up to two years, and confiscation of all equipment used in the violations. Under the provisions of Amendment 35, these regulations have the effect of law, and courts judicially know and apply such rules and regulations promulgated by administrative agencies pursuant to law. See Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1986).
Dennis v. State, 26 Ark. App. at 298.
Here, the circuit court committed no error in confiscating and forfeiting to the State the pickup truck and shotgun of appellant as a part of his sentence for night hunting pursuant to the regulations of the Arkansas Game and Fish Commission.
Affirmed.
Cooper and Meads, JJ., agree. | [
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John B. Robbins, Chief Judge.
Appellee Ron Hill was hired by appellant Marshall School District as a football coach and teacher for the 1992-93 school year. His annual salary was set at $31,081.00. On January 21, 1993, he was notified in writing that the superintendent was going to recommend that his contract not be renewed for the following year. The superintendent’s recommendation was based essentially on his opinion that the football program had deteriorated to an unacceptable level. Mr. Hill requested a hearing, which was conducted on March 1, 1993. After the hearing, Marshall School District’s Board of Directors decided not to renew Mr. Hill’s contract.
Mr. Hill appealed the decision of the Board of Directors to the Searcy County Circuit Court. In his complaint, Mr. Hill alleged that the refusal of Marshall School District to renew his contract constituted a breach of its contract with him. Specifically, Mr. Hill contended that, in making its decision, the appellant violated the terms of the Teacher Fair Dismissal Act. The circuit court agreed, finding that the school district did not comply with the Act in that it (1) failed to notify Mr. Hill, in writing, of problems that could lead to nonrenewal and (2) produced no documentation of efforts to assist Mr. Hill in correcting the deficiencies that could lead to nonrenewal. The circuit court awarded him damages and attorney’s fees against Marshall School District.
On appeal, neither party asserts that the trial court’s decision to award damages and attorney’s fees was error. Rather, the issues on appeal pertain only to the amount of damages and attorney’s fees awarded. The circuit court ordered Marshall School District to pay damages in the amount of $44,924.00 and attorney’s fees in the amount of $14,975.00. On direct appeal, Marshall School District argues that the award of attorney’s fees was excessive. On cross-appeal, Mr. Hill contends that the damages award should have been $93,234.00 instead of $44,924.00. We affirm the circuit court’s decision in all respects.
We first address Marshall School District’s argument pertaining to the issue of attorney’s fees. The circuit court’s order included the following statement:
The court has considered the plaintiff s petition for attorney’s fees pursuant to A.C.A §16-22-309 and upon consideration of the plaintiffs petition for attorney’s fees and other matters within the knowledge of the court and which may have been brought to the attention of the court by the defendant, the court finds a reasonable attorney’s fee to be in the amount of $14,975.00.
Arkansas Code Annotated section 16-22-309 (Repl. 1994) provides, in pertinent part:
(a)(1) In any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court shall award an attorney’s fee in an amount not to exceed five thousand dollars ($5,000), or ten percent (10%) of the amount in controversy, whichever is less, to the prevailing party unless a voluntary dismissal is filed or the pleadings are amended as to any nonjusticiable issue within a reasonable time after the attorney or party fifing the dismissal or the amended pleadings knew, or reasonably should have known, that he would not prevail.
Marshall School District now asserts that, pursuant to the above statute, the circuit court was without authority to award more than $5,000.00 in attorney’s fees. It submits that the circuit court lacked the discretionary power to award $14,975.00, and that this award should be reversed.
We affirm the amount of attorney’s fees awarded by the circuit court. We agree that Ark. Code Ann. § 16-22-309 (1987) limits attorney’s fees to a maximum of $5,000.00. However, as argued by the appellee before the trial court and now on appeal, Ark. Code Ann. § 16-22-308 (Repl. 1994) is applicable to this case. See Junction City Sch. Dist. v. Alphin, 56 Ark. App. 61, 938 S.W.2d 239 (1997). Arkansas Code Annotated section 16-22-308 provides:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
Mr. Hill’s action against Marshall School District was for breach of contract, and pursuant to the above statute, the circuit court was authorized to award attorney’s fees, which were not subject to a specified limit. Although the trial court referenced section 16-22-309 in its opinion, the court may have actually relied on section 16-22-308, inasmuch as it recited in its judgment that the damages awarded were for breach of contract. At any rate, it has been established that this court may affirm a ruling by the trial court if it reached the right result, even though it may have announced the wrong reason. Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992). Under the facts of this case, we hold that an attorney’s fee award of $14,975.00 was appropriate under Ark. Code Ann. § 16-22-308 (Repl. 1994).
The remaining issue is raised by Mr. Hill in his cross-appeal. It involves the measure of damages by which the trial court computed the $44,924.00 award to be paid by Marshall School District.
In assessing the damages suffered by Mr. Hill as a result of his dismissal, the circuit court first considered lost salary for the 1993-94, 1994-95, and 1995-96 school years, which amounted to $93,234.00. The court then reduced this amount by earnings that Mr. Hill received through other employment during the same time frame. He worked at a shirt factory for a brief period, during which he earned $10,317.00. Mr. Hill then worked as a teacher for Westside Schools for two years at an annual salary of about $27,103.00. Thus, his total earnings were approximately $64,523.00. The circuit court reduced this amount by $16,138.00, which represented the cost expended by Mr. Hill in seeking other employment. After subtracting the cost expended by Mr. Hill from his earnings, the court concluded that his damages had been mitigated by $48,313.00. The court subtracted this amount from the three years’ salary that had been lost and arrived at $44,924.00 as the amount of damages owed by Marshall School District.
Mr. Hill appeals this damages award, contending that he was entitled to judgment for the full $93,234.00. Specifically, he asserts that the court erred in reducing the award by the earnings he received through other employment. For his argument, Mr. Hill cites Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985). In that case, the supreme court affirmed an award of back pay that had been sought pursuant to the Arkansas Teacher Fair Dismissal Act. In addition, the court specifically held that the award was not to be reduced by the unemployment compensation that the appellee had received subsequent to his wrongful dismissal. In doing so, the court announced:
It is a general rule that “recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result,” Amos, Adm’s v. Stroud & Salmon, 252 Ark. 1100, 482 S.W.2d 592 (1972); Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30 (1982). The question is whether the collateral source rule applies to employment situations and, specifically, whether unemployment compensation is a collateral source. This is an issue of first impression in Arkansas, but other courts have held that with regard to damages for breach of an employment contract, unemployment benefits received were not deductible by the employer in mitigation of damages. 22 Amjur2d Damages § 209, p. 293 (1965). Furthermore, an Arkansas federal district court has held that unemployment compensation benefits are a collateral source and cannot be used to offset a judgment against a tortfeasor. Collins v. Robinson, 568 F.Supp. 1464 (D.C. Ark. 1983). Accordingly, we adopt this application of the collateral source rule and hold that appellee’s unemployment benefits should not be deducted from his award of back pay.
Id. at 49-50, 696 S.W.2d at 718. Mr. Hill acknowledges that the collateral-source rule has never been applied in Arkansas to employment breach-of-contract cases where the dismissed employee has subsequently earned income from other employment. He now urges this court to apply the collateral-source rule and find that the damages owed by Marshall School District should not have been reduced by his income from other sources.
Despite the argument being raised by Mr. Hill, we find that the disposition of this issue is dictated by Western Grove Sch. Dist. v. Strain, 288 Ark. 507, 707 S.W.2d 306 (1986). In that case, a teacher prevailed on a contract dispute under the Arkansas Teacher Fair Dismissal Act, and the supreme court discussed possible mitigation of damages through other employment. The court held that, in such cases, the aggrieved party must use reasonable care, effort, and expenditure to mitigate damages. The court also held that the proper measure of damages is the loss sustained by the teacher, less any mitigation earnings that may be realized through subsequent employment.
Mr. Hill contends that Western Grove School District and Green Forest Public Schools are inconsistent and that we should follow the precedent set in the Green Forest Public Schools opinion. We, however, find no inconsistency. Western Grove School District involved the duty to mitigate through subsequent employment, while Green Forest Public Schools involved the effect of unemployment benefits in breach-of-employment contract actions. In the instant case, the precedent set in Western Grove School District is controlling. Mr. Hill had a duty to take reasonable steps to mitigate the damages, and he did so by seeking and finding other employment. The court’s decision to consider his subsequent earnings in mitigation of damages was not erroneous.
Affirmed on appeal; affirmed on cross-appeal.
Griffen and Roaf, JJ., agree. | [
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Margaret Meads, Judge.
Appellants, B.J. and D.R., are juveniles who were adjudged delinquent for having each committed two counts of battery in the third degree and one count of violent criminal group activity. On appeal, they argue that the trial court erred in adjudicating them delinquent on the charge of engaging in violent criminal group activity under Ark. Code Ann. § 5-74-108 (Repl. 1993). Appellant B.J. also contends that the evidence is insufficient to support the finding that he committed battery in the third degree with regard to Charles Sypret. We find these arguments without merit and affirm the convictions as modified herein.
The charges stem from two separate incidents which occurred on December 12, 1995. B.J., D.R., Tony Cragar, and Dana Reed were riding in a car driven by Daniel Reed. They followed a truck carrying Robert Washburn and passenger Nick Summers into a cul de sac, blocked the truck’s path, and a fight between occupants of the respective vehicles ensued.
Summers testified that both he and Washburn were pulled from the truck, he was hit several times, was chased down the street, and was kicked repeatedly after he fell down. Summers identified both D.R and B.J. as his assailants. Beth Longing testified that she saw three or four men pulling another young man out of the truck and then chasing him down the street. She went inside her house to call 911 and saw that the young man was bloody when she came back outside.
Later that day, Charles Sypret was attacked by four individuals as he walked home from school. Sypret testified that Daniel Reed, B.J. and Tony Cragar surrounded him, that B.J. hit him in the nose and broke it, and that he would require surgery. Sypret testified that D.R. was also present during the fight. Marcus Joliett testified that he witnessed the altercation between Sypret and Cragar, Daniel Reed, B.J., and D.R. and corroborated Sypret’s testimony that B.J. hit Sypret.
Tony Cragar, Dana Reed, Daniel Reed, B J., and D.R. testified that neither B.J. nor D.R. hit or kicked Summers during the first fight, and that Daniel Reed had taken B.J. home before the Sypret incident. However, Sypret testified that B.J. hit him in the nose, and Marcus Joliett testified that B.J. was both hitting and kicking Sypret. Both Dana and Daniel Reed admitted they had lied under oath at the detention hearing.
B.J. contends there was insufficient evidence to support his conviction of battery in the third degree regarding Charles Sypret. The offense of battery in the third degree is defined at Ark. Code Ann. § 5-13-203 (Repl. 1993) as follows:
(a) A person commits battery in the third degree if:
(1) With the purpose of causing physical injury to another person, he causes physical injury to any person; or
(2) He recklessly causes physical injury to another person; or
(3) He negligently causes physical injury to another person by means of a deadly weapon; or
(4) He purposely causes stupor, unconsciousness, or physical or mental impairment or injury to another person by administering to him, without his consent, any drug or other substance.
(b) Battery in the third degree is a Class A misdemeanor.
In resolving the question of the sufficiency of the evidence in a criminal case, all evidence is viewed in the light most favorable to the appellee, and the decision is affirmed if there is substantial evidence to support the conclusion of the trier of fact. D.D. v. State, 40 Ark. App. 75, 842 S.W.2d 62 (1992). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. It is the duty of the trier of fact, the trial judge in the instant case, to resolve any contradictions, conflicts, and inconsistencies in a witness’s testimony, Id.; and to determine the amount of credibility to be given to each witness’s testimony. Galvin v. State, 323 Ark. 125, 912 S.W.2d 932 (1996).
Here, the trial judge stated that she was “more persuaded by the testimony of Beth Longing, Mr. Summers, and Mr. Washburn, and Marcus Joliett, who have not, to my knowledge, lied under oath in this court, previously. I do not find any credibility, to speak of, in any of the witnesses called by the defense.” Based upon the foregoing facts, there is substantial evidence to convict B.J. of third-degree battery in the Sypert incident.
Appellants also contend the trial court erred in finding them guilty of two counts of battery in the third degree, Class A misdemeanors, and one count of engaging in violent criminal activity, a Class D felony, because engaging in violent criminal activity is merely an enhancement of punishment statute, not a substantive offense. Therefore, engaging in violent criminal activity, as enumerated in Ark. Code Ann. § 5-74-108, would not be a Class D felony in itself, but rather would raise a third-degree battery Class A misdemeanor to a Class D felony. Appellants contend that the sentence imposed was excessive and improper due to the misapplication of the statute.
Arkansas Code Annotated § 5-74-108 (Repl. 1993) provides, in pertinent part:
(a) Any person who violates any provision of Arkansas law which is a crime of violence while acting in concert with two (2) or more other persons shall be subject to enhanced penalties.
(b) Upon conviction of a crime of violence committed while acting in concert with two (2) or more other persons, the classification and penalty range shall be increased by one (1) classification.
Appellee concedes, and we agree, that inasmuch as the commitment orders suggest that Ark. Code Ann. § 5-74-108 requires a separate sentence, they are in error. Yet, because the elements of engaging in violent criminal activity were proved, the trial court properly applied the sentence enhancement statute to appellants.
The trial judge found both appellants guilty of third-degree battery and imposed punishments prescribed in the juvenile code. See Ark. Code Ann. § 9-27-330 (Supp. 1995). Clearly, the trial judge has the authority to deal with delinquents in the manner she deems appropriate. Each of the punishments is specified in Ark. Code Ann. § 9-27-330(a)(Supp. 1995); therefore, we cannot say that the penalties were excessive or improper.
We affirm the decision of the trial court with the modification that Ark. Code Ann. § 5-74-108 should not appear as a separate enumerated offense in the court’s orders.
Affirmed as modified.
Cooper and Stroud, JJ., agree. | [
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Sam Bird, Judge.
Marsha Mikel appeals from a decision by the Workers’ Compensation Commission, which found that she did not suffer a compensable injury on January 29, 1994, while working for appellee, Engineered Specialty Plastics, as a machine operator. In September 1993, Mikel started working with Engineered Specialty Plastics on the assembly line snipping gates, which are pieces of plastic that are attached to parts when they come out of the machines. On January 29, 1994, she was moved to a different assembly line, where she clipped larger gates. To clip gates, appellant squeezed clippers, which she said sometimes caused soreness in the palm of her hand. When she changed to a different assembly line, clipping larger gates, she was required to use bigger clippers, which apparently caused her hand to become sore and bothersome. After working about five hours on the new assembly line, “something in her wrist snapped”; and she said the incident felt like a rubber band popping. Afterward she could not close the clippers. She testified that she reported the injury to her supervisor on January 29, and at the time, her hand appeared red, swollen, and had a bump on the top of her wrist. This was the first time she had complained to her supervisor about any pain that she experienced while snipping gates. However, contrary to her testimony, an accident report indicates that appellant did not report the accident to her supervisor until January 31. The report also states that appellant informed her supervisor that she had been experiencing problems with her hand ever since she began working for appellee, but the report does not mention any swelling.
Appellant was sent to the company doctor who diagnosed her with right wrist strain, possible early carpal tunnel syndrome, and who prescribed medication and a wrist splint; however, the doctor’s report also does not mention any swelling. In addition, the doctor also recommended work activity that did not involve Mikel’s right hand.
Appellant returned to work and informed her supervisor that the doctor had recommended not using clippers, but the appellant’s supervisor did not take her off the line, which caused her hand to get worse. On April 27, 1994, the doctor eventually recommended not using her right hand at all, and the appellee provided Mikel with light work duty.
Appellee had paid for all of appellant’s medical expenses, up until the time that the company doctor referred appellant to an orthopaedic surgeon, Dr. Michael Moore. Instead of telling Dr. Moore of a specific incident that caused her pain, Mikel said the pain was a result of a gradual onset of problems. Dr. Moore diagnosed Mikel with carpal tunnel syndrome and performed surgery on June 30, 1994, and the appellee controverted the claim. Mikel was released to work on September 19, 1994.
Mikel filed a claim with the Commission for temporary total disability from June 30-September 19, 1994, and a hearing was held before an administrative law judge on October 21. Mikel did not call the supervisor as a witness to testify about the swelling, and she was the only witness at the hearing. At the hearing, the respondents asked the administrative law judge to take judicial notice that carpal tunnel syndrome could not result from a single incident under Ark. Code Ann. § 11-9-102(5)(A) (i) (Supp. 1993), as Mikel claims, because carpal tunnel syndrome is specifically provided for under Ark. Code Ann. § ll-9-102(5)(A)(ii)(a) (Supp. 1993). The judge declined to take judicial notice and found that Mikel had suffered a compensable injury. The Workers’ Compensation Commission reviewed Mikel’s claim and reversed, find ing that she had failed to prove by a preponderance of the evidence that she had sustained a compensable injury. We agree and affirm the Commission’s order.
When determining the sufficiency of the evidence, this court gives deference to the Commission’s findings and affirms if those findings are supported by substantial evidence. Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995). Substantial evidence is defined as evidence that a reasonable mind would accept as adequate to support a conclusion. Id. at 3, 899 S.W.2d at 483. A decision by the Commission is reversed only if this court is convinced that “fair-minded persons” using the same facts could not reach the same conclusion reached by the Commission. Id. (citing Willmon v. Allen Canning, Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992)). The worker fifing the claim with the Commission has the burden of proving by a preponderance of the evidence that the claim is a result of an injury arising from the course of employment. Deffenbaugh Indus, v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). This court will defer to the Commission in determining the weight of evidence and the credibility of the witnesses. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989); Morrow v. Mulberry Lumber, Co., 5 Ark. App. 260, 635 S.W.2d 283 (1982).
Mikel, who has the burden of proving her injury by a preponderance of the evidence, filed her claim with the Commission pursuant to Ark. Code Ann. § ll-9-102(5)(A)(i). The statute defines one type of compensable injury as, “[a]n accidental injury causing internal or external physical harm to the body or accidental injury . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence.” The appellant must prove her injury by medical evidence supported by objective findings. Ark. Code Ann. § ll-9-102(5)(D) (Supp. 1993).
The issue before this court is whether any medical evidence exists to support the fact that appellant experienced an injury due to a specific incident, as opposed to her injuries being gradual. Neither doctor mentioned any swelling of the wrist, as reported by appellant. Appellant claims that her supervisor witnessed the swelling. However, the supervisor did not testify to that nor was it stated in the accident report. Both doctors acknowledge that the appellant has carpal tunnel syndrome, but neither acknowledged that it was caused by a specific incident. Dr. Moore, in a medical report, wrote,
[S]he developed symptoms shortly after she began work. . . . Therefore, she may have had an underlying carpal tunnel syndrome prior to work which was exacerbated with her new job. In other words, it is difficult for me to solely relate her carpal tunnel syndrome to her work which she performed for only a two month period before experiencing symptoms.
After reviewing the medical testimony by both doctors, this court agrees that the appellant did not prove her claim by a preponderance of the evidence.
An issue not relied upon by appellant, but brought up by appellee, concerns the interpretation of Ark. Code Ann. § 11 — 9— 102(5)(A)(ii) (Supp. 1993), which provides compensation for injuries that cannot be identified by time and place of occurrence. Carpal tunnel syndrome, which may be caused by a rapid repetitive motion, is specifically categorized as falling into this definition. Ark. Code Ann. § ll-9-102(5)(A)(ii)(a). However, because it is not an issue before us and because we are not reversing the Commission’s finding, we do not have to decide whether this part of the statute excludes carpal tunnel syndrome from falling under other statutes.
Because appellant has failed to meet her burden of proof, the Commission’s decision should be affirmed.
Cooper and Stroud, JJ., agree. | [
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John Mauzy Pittman, Judge.
Manuel Vega was charged with possession of a controlled substance (marijuana) with intent to deliver. His pretrial motion to suppress evidence obtained as a result of a search of his pickup truck was denied. He then entered a conditional plea of guilty, reserving the right to appeal as provided in Ark. R. Crim. P. 24.3(b). He was sentenced to a term of ten years in the Arkansas Department of Correction, with imposition of an additional term suspended. See Ark. Code Ann. § 5-4-104(e)(3) (Supp. 1995). On appeal, he contends that the trial court erred in denying his motion to suppress. We affirm.
On April 4, 1995, Trooper Bill Glover of the Arkansas State Police stopped a pickup truck for speeding. Appellant was the driver and was accompanied by a passenger, Sherry Ford. The trooper discovered that the license plate on the truck belonged to a different vehicle and that appellant’s driver’s license had been suspended. Appellant was arrested for speeding and driving on a suspended license and was told that he would have to post bond before he could continue on his journey. Appellant and Ms. Ford, with Ms. Ford driving, followed the trooper to the Pope County Detention Center to post bond. Upon arriving at the detention center, a dog trained and certified in the detection of drugs was allowed to smell the outside of the truck. The dog aggressively “alerted” to the bed of the truck, indicating the presence of illegal drugs. The dog’s reaction, together with the fictitious license plate and the trooper’s visual observation of alterations to the bed of the truck, caused Trooper Glover and other officers to search the truck. The search uncovered 158 pounds of marijuana hidden under a false bed.
On appeal, appellant first contends that his truck was searched without reasonable cause to believe that it contained things subject to seizure. Appellant does not challenge the legality of the initial stop, his arrest, or how his truck came to be parked in the public parking lot of the detention center. Nor does he contend that the police lacked reasonable cause to search his truck after the dog alerted to it. Instead, appellant contends that the canine sniff was itself a search and that, at the time that the dog smelled the truck, the officers did not yet have the required reasonable cause. The view we take of the case does not require us to decide whether the police had reasonable cause prior to the dog’s reaction.
Appellant’s argument flows from and depends upon the premise that the canine sniff was a search within the meaning of the Fourth Amendment. However, that premise is a false one. We hold, as many other courts have, that a canine sniff of the exterior of an automobile that is parked in a public area or is legitimately within the custody of the police is so limited an intrusion of protected privacy interests as to not amount to a Fourth Amendment search. See, e.g., United States v. Friend, 50 F.3d 548 (8th Cir. 1995), vacated and remanded on other grounds, 116 S.Ct. 1538 (1996); United States v. Jeffus, 22 F.3d 554 (4th Cir. 1994); United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993); United States v. Seals, 987 F.2d 1102 (5th Cir. 1993), cert. denied, 114 S.Ct. 155 (1993); United States v. Rodriguez-Morales, 929 F.2d 780 (1st Cir. 1991), cert. denied, 502 U.S. 1030 (1992); United States v. Dicesare, 765 F.2d 890, amended on other grounds, 111 F.2d 543 (9th Cir. 1985); see abo United States v. Place, 462 U.S. 696 (1983); United States v. Vasquez, 909 F.2d 235 (7th Cir. 1990), cert. denied, 501 U.S. 1217 (1991). Therefore, no reasonable cause was necessary to justify having the dog smell appellant’s truck.
Appellant next contends that, after the dog alerted to the truck, the officers should not have searched it without first obtaining a warrant. He argues that, while the officers then had reasonable or probable cause to believe that the truck contained contraband, there were no exigent circumstances sufficient to justify a warrantless search because he was in the detention center and the truck was in the custody of the police. We cannot agree.
An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is on a public way or other area open to the public. Ark. R. Crim. P. 14.1(a); Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). In reviewing the denial of a motion to suppress evidence obtained through a warrantless search, this court makes an independent determination based on the totality of the circumstances, but will not reverse the trial court’s decision unless its finding is clearly against the preponderance of the evidence. Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641 (1989).
Here, while appellant had been arrested and arguably was not free to leave until he posted bond, Ms. Ford, who had driven the truck to the detention center, was not under arrest and was free to leave. The truck was readily movable, and no further exigency is required to search a vehicle in an area open to the public. See Bohanan v. State, supra. We cannot conclude that the trial court clearly erred in denying appellant’s motion to suppress.
Affirmed.
Rogers and Crabtree, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with class Y kidnapping. After plea negotiations, he pled nolo contendere to a charge of class B kidnapping, and requested sentencing under the Alternative Service Act, codified at Ark. Code Ann. § 16-93-501 et seq. (1987). At a hearing on this motion, the trial judge ruled that the appellant was not eligible for sentencing under the Act and that the facts did not warrant sentencing under the Alternative Service Act. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in ruling that he was ineligible for sentencing under the Act. Arkansas Code Annotated § 16-93-502(6)(A) defines an “eligible offender” as:
any person convicted of a felony offense other than a capital felony offense, or murder in the first degree, murder in the second degree, first degree rape or kidnapping, or aggravated robbery, and who has never been previously convicted of a felony offense, and whose interests, and the interests of the state, in the opinion of the sentencing court, could be better served by diversion under the provisions of this subchapter than by sentencing under other applicable penalty provisions established by law.
The Act provides a two-pronged test to be met in order for an offender to be “eligible.” First, he must not be excluded by the crime for which he was convicted, and second, the trial court must decide whether he believes that the interests of both the offender and the State would be best served by sentencing under the Act. Garrison v. State, 13 Ark. App. 245, 682 S.W.2d 772 (1985).
At the hearing, the record showed that the appellant pled no contest to a charge of class B kidnapping which, the State proposed to show, resulted when the appellant enticed a young child into his automobile by representing that he was a police officer and attempted to drive into Camp Robinson through the back gates. After the hearing for sentencing under the Act, the trial court ruled that the appellant was ineligible under § 16-93-502(6)(A) because he was convicted of kidnapping, and he further determined that sentencing under the Act would be improper because of the nature of the crime and the circumstances of its commission. Concerning the latter determination, the trial judge expressed his opinion that the facts could have supported a conviction for a greater offense, and voiced his concern over the possibility of early parole if the appellant was sentenced under the Act. He also considered evidence relating to the appellant’s history of alcohol abuse, and concluded this evidence did not justify sentencing under the Act.
In his brief, the appellant specifically concedes that he does not dispute the correctness of the trial court’s discretionary determination. Instead, he argues that § 16-93-502(6)(A) does not exclude offenders convicted of class B kidnapping from the definition of eligible offender, and he therefore contends that this part of the trial court’s ruling was in error. It is unnecessary to reach that issue, however, because the court’s finding that the appellant was ineligible under the Act is sufficiently supported by the trial judge’s discretionary determination. We hold that the trial court’s determination that the interests of the State would not be better served by sentencing under the Act, was clearly supported by the evidence, and the record fully demonstrates that the appellant was not an eligible offender. See Garrison v. State, supra.
The appellant states that his statutory argument is brought to seek clarification with respect to the eligibility of offenders convicted of class B kidnapping. We are unable to provide such clarification, however, because to do so under these facts would be to declare a principle of law which cannot affect the matter in issue in the case at bar. See Saunders v. Kleier, 296 Ark. 25, 751 S.W.2d 343 (1988). We do not give advisory opinions. City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988).
Affirmed.
Corbin, C.J., and Mayfield, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission holding that the appellee became temporarily totally disabled on May 12, 1986, as the result of a compensable injury sustained on April 24, 1985, and that the disability would continue until a date to be determined.
On April 24,1985, appellee injured her back lifting a patient at Legacy Lodge Nursing Home. She was initially treated by Dr. James Kolb, an orthopedic surgeon, who diagnosed a herniated disc at L4-5 on the left side. The appellee improved under his treatment and, against his advice, returned to work on May 14, 1985. She last saw Dr. Kolb on December 3, 1985, and began visiting a chiropractor, Dr. John Price, who treated her through April 9, 1986. When Dr. Price felt he could be of no further benefit to appellee, he recommended that she consult a neurosurgeon.
On May 12, 1986, the appellee was evaluated by Dr. Jim Moore, a neurosurgeon, whom she had seen in August of 1985 at the request of the appellant insurance carrier. In June of 1986, Dr. Moore hospitalized appellee for a CT scan and myelogram, which revealed a herniated nucleus pulposus at L4-5 on the left side. In a report dated June 19, 1986, Dr. Moore stated that he had recommended surgery but appellee was opposed to surgery at that time, so he had given her an epidural cortisone injection on the date of the report. Appellee subsequently got another opinion from Dr. Thomas Fletcher, neurosurgeon, who also recommended that she have back surgery.
In the meantime, on November 5, 1985, the appellee had been discharged from her employment with the nursing home for reasons that were unrelated to her physical condition. She applied for, and eventually received, unemployment compensation for several months. Appellee testified that during that time she applied for numerous positions as an LPN but was honest with potential employers about her back condition and no one would hire her.
In an opinion affirmed and adopted by the full Commission, the administrative law judge noted that there was no evidence of any independent intervening cause of the appellee’s back problems and held that the preponderance of the evidence established that all her physical complications were causally related to her compensable back injury of April 24, 1985. Therefore, even though she had been paid temporary total disability payments for approximately two weeks before she returned to work on May 14,1985, the Commission adopted the law judge’s finding that appellee became temporarily totally disabled again on May 12, 1986.
On appeal, the appellants argue that the decision is not supported by substantial evidence. They call our attention to Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), which held that temporary total disability is “that period within the healing period in which the employee suffers a total incapacity to earn wages.” They also cite Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982), which held that when the claimant’s healing period has ended his right to temporary total disability also ends. Moreover, appellants say that because a claimant is still within his healing period does not necessarily mean that he is entitled to temporary total disability since he might be suffering from only a decrease in his capacity to earn the wages he was receiving at the time of the injury, and in that case he would be entitled to only temporary partial disability. Arkansas State Highway Department v. Breshears, supra, at 246-47.
Appellants contend that because appellee returned to work on May 14,1985, and did not take off any workdays between then and the time she was terminated on November 5, 1985; because she did not complain of her back during that period of time; because Dr. Kolb stated on December 3,1985, that appellee was able to work; and because during the spring of 1986 appellee drew unemployment benefits, representing that she was ready, willing and able to to work and without physical restrictions, the evidence does not support a finding that appellee was entitled to the temporary total disability benefits awarded by the Commission.
In Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987), we stated our duty as follows:
On review, we must view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission. Our standard of review on appeal is whether the decision of the Commission is supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We do not reverse a decision of the Commission unless we are convinced that fair minded persons with the same facts before them could not have arrived at the conclusion reached. These rules insulate the Commission from judicial review and properly so, as it is a specialist in this area and we are not. But a total insulation would obviously render our function in these cases meaningless.
22 Ark. App. at 107 (citations omitted). Appellants remind us that it was the claimant who had the burden of proof and that any finding of physical impairment must be supported by objective and measurable physical or mental findings. Ark. Code Ann. § ll-9-704(c)(l) (1987). However, this is a fact finding function for the Commission. We review the evidence in the light most favorable to the Commission’s finding. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. The extent of our inquiry is to determine if the findings of the Commission are supported by substantial evidence. Even where a preponderance of the evidence might indicate a contrary result, we will affirm if reasonable minds could reach the Commission’s conclusion. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
From the evidence relied upon by the appellants, the Commission could have found for them. There is, however, other evidence in the record. For example, the law judge pointed out that although Dr. Kolb’s report stated that on December 3,1985, the appellee was able to work, he also said in a deposition that on that date she was asked to return to see him again. There is also evidence in the record that each of the physicians seen by appellee anticipated that she would receive continued treatment, and both neurosurgeons consulted by appellant recommended surgery for the herniated disc. Dr. Moore’s last report, June 19,1986, stated he still thought appellee was a surgical candidate, and Dr. Fletcher’s report of September 7, 1986, stated appellee would continue to have increasing symptoms until surgery was performed. Although appellants argue that it is “beyond argument” that the appellee’s healing period ended prior to May 12, 1986, appellee’s doctors did not think her healing period had ended and neither did the Commission. We think the Commission’s decision is supported by substantial evidence.
Affirmed.
Cooper and Cracraft, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Pulaski County Chancery Court, Third Division. Appellants appeal from the opinion and order denying their complaint for injunctive relief and damages. We affirm.
Appellant property owners initiated this action by seeking an injunction to prevent construction of a seventy-two bed, long-term care institution neár their property in an unincorporated area of North Pulaski County. Appellee, Eugenia Brown McGin-nis, d/b/a Brown’s Homes and Brown Properties, Inc. (hereinafter McGinnis), seeks to build the institution on a five-acre tract of land purchased from appellee Estate of Carrie Burton. The McGinnis property is Tract 1 of Woodland Valley Estates. Appellants are property owners who own property in Woodland Valley Estates and residents of Arbor Oaks Subdivision whose backyards abut the southern property line of Tract 1. After hearing several days of testimony and inspecting the present facility personally, the chancellor, by order dated July 20, 1987, denied appellants’ request for an injunction. From the order, comes this appeal.
For reversal, appellants raise the following points: (1) The chancellor erred in holding as a matter of law that the court cannot enjoin a prospective nuisance; (2) the chancellor’s findings of facts on the private nuisance count are clearly erroneous; and (3) the chancellor’s findings of fact on the restrictive covenant count are clearly erroneous. We address their points in order.
First, appellants contend that the chancellor erred in holding as a matter of law that the court cannot enjoin a prospective nuisance. Specifically, in their brief, appellants argue that “[w]ith the Order and Opinion taken as a whole, the Chancellor appears to hold that a court of equity loses its injunctive power over a facility which is in compliance with state regulations while a suit to enjoin its operations as a nuisance is pending” and that such a holding is erroneous. While we agree that the chancellor considered relevant the fact that the present facility was in compliance with state regulations, we cannot agree that the chancellor made the holding alleged. In her opinion and order, the chancellor went to great length to discuss cases in which enjoining an otherwise lawful operation as a prospective nuisance has been and would be proper, and correctly stated that the question of whether a proposed use will constitute a nuisance is one of fact. See Phillips v. Adams, 228 Ark. 592, 309 S.W.2d 205 (1958). Furthermore, in conclusion, the chancellor stated, “Case law and public policy have been so defined, that the Court must rule in favor of the home’s construction under the facts in this case." Because the holding alleged was not made by the court, appellants’ first point is without merit.
Next, appellants argue that the chancellor’s findings of fact on the private nuisance count are clearly.erroneous. On appeal, we review chancery decisions de nóvo and reverse the chancellor’s findings only if clearly erroneous or clearly against the preponderance of the evidence. Cuzick v. Lesly, 16 Ark. App. 237, 700 S.W.2d 63 (1985). It is well settled that ordinarily an injunction preventing the erection of a structure will not be granted unless the structure is a nuisance per se. Cooper v. Whissen, 95 Ark. 545, 130 S.W. 703 (1910). A nuisance at law or a nuisance per se is an act, occupation or structure which is a nuisance at all times and .under any circumstances, regardless of location or surroundings. Jones v. Little Rock Boys’ Club, 182 Ark. 1050, 34 S.W.2d 222 (1931). However, equity will enjoin conduct that culminates in a private nuisance where the resultant injury to nearby property and residents is certain, substantial and beyond speculation and conjecture, even :though it does not constitute a nuisance per se. See, e.g., Arkansas Release Guidance Found. v. Needler, 252 Ark. 194, 477 S.W.2d 821 (1972); Howard v. Etchieson, 228 Ark. 809, 310 S.W.2d 473 (1958); Bickley v. Morgan Utilities Co., 173 Ark. 1038, 294 S.W. 38 (1927); Huddleston v. Burnett, 172 Ark. 216, 287 S.W. 1013 (1926).
The erection of the building itself could not constitute a nuisance, and it is not insisted that it would be, but only that, as erected and operated as it had been formerly, it would constitute a nuisance. Where, as here, the alleged nuisance to be prospectively enjoined is one in fact rather than at law, such prohibition is permissible only when the preponderance of the evidence shows that the activity is certain to be a nuisance. City of Newport v. Emery, 262 Ark. 591, 559 S.W.2d 707 (1977).
The record reflects that appellee has operated a long-term care institution for mentally ill and disabled persons who are incapable of living alone for approximately thirteen years. During September of 1986, the institution housed fifty residents, forty of whom were schizophrenic and two of whom were manic depressives. Appellee purchased the tract of land in Woodland Valley Estates to build a new facility. At trial, numerous homeowners around the present facility testified regarding the behavior of the residents. Testimony was presented that, among other things, the residents of the present facility have a tendency to roam about the neighborhood appealing to people for food, money, cigarettes and clothing; that on occasion they delve through homeowners’ garbage cans; and that the residents have been the subject of numerous police reports. An expert in real estate appraisal also opined that construction of the facility at the proposed location would reduce the value of the property by a total of $157,000 for nine nearby tracts. However, as we have noted before, the construction of a jail or gas station in an essentially residential area may cause a depreciation in property values, but not a nuisance. City of Newport, 262 Ark. at 594, 559 S.W.2d at 709.
Appellants attempted to show that the present facility was being operated as a nuisance and therefore the proposed facility would also be operated as a nuisance. In support of their contention appellants put great reliance in a statement made by appellee that she would not change her method of operation in the future. However, upon our review of the record it appears the statement was made in the context of eviction procedures alone. Appellee testified that when a resident is evicted, they are allowed to go wherever they want because they are their own legal guardians, and state regulations prohibit appellee from requiring them to go to another institution or anywhere else. We do not believe that the statement was directed at the overall operation of the facility. In any event, the chancellor, although recognizing that problems existed with the present facility, did not find that it was being operated as a nuisance, nor do we decide the issue. However, even had the present facility been found to be a nuisance, such a finding would not have been conclusive as to operation of the future facility. In Jones v. Little Rock Boys’ Club, 182 Ark. 1050, 34 S.W.2d 222 (1931), the court apparently conceded that operation of the boys’ club at its present location constituted a nuisance, but it nevertheless refused to enjoin construction of a new facility because it was not shown that the club could not be operated without becoming a nuisance. Likewise, we cannot say that the facility in question will certainly amount to a nuisance in its new location. It may, as appellants’ proof tends to indicate, prove to be a serious annoyance to residents in the vicinity, but on the other hand it may turn out that the facility is operated in a manner that it does not become a nuisance. Because the evidence leaves a doubt, and is not certain regarding whether the facility will be operated as a nuisance, we cannot say that the chancellor’s finding that construction should not be enjoined is clearly erroneous. We do point out, however, as the chancellor did, that the appellee proceeds with construction at her own risk, this action being without prejudice to appellants’ right to file another suit if the facility does in fact become a nuisance. See Kimmons v. Benson, 220 Ark. 299, 247 S.W.2d 468 (1952); Little Rock Boys’ Club, 182 Ark. at 1050, 34 S.W.2d at 222.
Finally, appellants argue that the chancellor’s findings of fact on the restrictive covenant count are clearly erroneous. Only the appellants who own property in Woodland Valley Estates raise this contention. Specifically, they argue that a general scheme of development exists in the area, so as to create an implied restrictive covenant which excludes a seventy-two bed facility from being constructed in Woodland Valley Estates.
The grantor of each tract in Woodland Valley Estates was the Estate of Carrie Burton. The only express restrictive covenants contained in the grantees’ deeds were that no mobile homes were allowed and that no newly-constructed dwellings contain less than 1,500 square feet. While parol evidence is generally inadmissible to vary or contradict the language of a restrictive covenant, such evidence is admissible to establish a general building plan or scheme of development and improvement. Warren v. Detlefsen, 281 Ark. 196, 663 S.W.2d 710 (1984). Such plan or scheme can be proven by express covenant, by implication from a field map, or by parol representations made in sales brochures, maps, advertising, or oral statements upon which the purchaser relied in making his decision to purchase. Id. Appellants attempted to prove at trial that the real estate agent for the Estate of Carrie Burton made representations to them as purchasers that the property could be used only for single-family residential purposes and that they relied on the representations in purchasing tracts in Woodland Valley Estates. Sarah Shelton, the real estate agent, denied having made such representations. Other testimony was presented regarding the manner in which the property was advertised, marketed, and was listed for sale, which appellants contend supports their position. The chancellor specifically found that Ms. Shelton did not make specific representations that construction would be limited to single-family residences. Although we review chancery cases de novo on the record, we do not disturb the chancellor’s findings unless they are clearly erroneous, giving due deference to his superior position to observe the witnesses and weigh their credibility. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); Ark. R. Civ. P. 52(a). Whether or not Ms. Shelton made representations regarding single-family occupancy is clearly a question of credibility and because of her superior position, we defer to the chancellor’s finding in that respect. Whether the manner of marketing and advertisement of the tracts for sale created an implied restrictive covenant is a question of fact, and we cannot say that the chancellor was clearly erroneous in finding that it did not.
Affirmed.
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Perry County Chancery Court, First Division. Appellant, Wye Community Club, Inc., appeals from the trial court’s denial of its petition to quite title. We affirm.
This suit was initiated by appellant in February of 1987 as an action to quiet title to approximately two acres of land in Perry County. The relevant facts follow. In 1944, Wye Community Club (appellee) was incorporated as a nonprofit corporation under the law existing at that time. The 1944 corporation met in regular sessions, transacted business, elected officers and directors annually, and functioned as a corporation from its inception until after the institution of this proceeding.
Apparently, sometime in 1986, it was discovered that the 1944 corporation had not filed its Articles of Incorporation with the Secretary of State’s office in response to legislation enacted in 1963 and amended in 1973. Without consultation or notice to the existing members of the club, Wye Community Club, Inc. (appellant), with a record of two named incorporators and nine members of the 1944 club, was incorporated as a nonprofit corporation on October 30,1986. The record reveals that the bylaws of the 1986 corporation differed substantively from the bylaws of the 1944 corporation, specifically regarding the fact that those responsible for incorporating would serve as officers of the new corporation, that no other members could serve as an officer until they had been a member of the new club for two years, and requiring members to be a resident and landowner within a three-mile radius. On November 10, 1986, and September 26, 1987, quitclaim deeds were executed to the new corporation for the tract of land in question, on which the community club building sits. The deeds were executed by several individuals who were the directors of the 1944 corporation on January 31, 1975, rather than the directors of the 1944 corporation as of the time the deeds were executed. Both the 1944 corporation and the 1986 corporation claimed title to the subject property. The 1986 corporation petitioned the court to quiet title in itself. After trial of the matter, the chancellor denied the petition and vested title to the land in the 1944 corporation. The trial court specifically found that appellant failed to meet its burden of proof; that appellee continued in existence as a de facto corporation after passage of the 1963 and 1973 legislative acts; and that the deeds executed in 1986 and 1987 by the 1975 directors had no legal effect. From the judgment and decree comes this appeal.
For reversal, appellant raises five arguments:
I.
THE COURT ERRED IN DECLARING THAT APPELLANT FAILED TO MEET THE BURDEN OF PROOF.
II.
THE LOWER COURT ERRED IN DECLARING WYE COMMUNITY CLUB A DE FACTO CORPORATION AFTER JANUARY 31, 1975, BECAUSE:
(a) IT DOES NOT MEET ARKANSAS CASE LAW DEFINITION OF A DE FACTO CORPORATION.
(b) THE STATE TERMINATED ITS EXISTENCE.
III.
THE LOWER COURT ERRED IN DECLARING THE DEED TO APPELLANT TO BE A NULLITY AND VOID.
IV.
THE LOWER COURT ERRED IN VESTING AND QUIETING TITLE IN WYE COMMUNITY CLUB, A DE FACTO OR UNINCORPORATED ASSOCIATION.
V.
THE COURT ERRED IN FINDING THAT APPELLANT FAILED TO ALLEGE AND PROVE COLOR OF TITLE, PAYMENT OF TAXES FOR SEVEN YEARS AND/OR ADVERSE POSSESSION OF THE PROPERTY.
Because appellant’s second, third and forth points involve a central issue, the remaining arguments will be discussed first.
In its first point, appellant argues that the trial court erred in declaring that it failed to meet its burden of proof. However, this argument is unsupported by either convincing argument or authority. Where an assignment of error is unsupported by either convincing argument or citation of legal authority, the appellate court does not consider it on appeal unless it is apparent without further research that it is well taken. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986). Appellant, in its brief, merely lists ten facts that it alleges are undisputed, but admits that the legal effect of the facts are controverted. Appellant neither explains the controversion nor enunciates its position with regard thereto. Chancery cases are reviewed de novo on appeal and the chancellor’s findings of fact will not be reversed unless they are clearly erroneous or clearly against the preponderance of the evidence. Kunz v. Jarnigan, 25 Ark. App. 221, 756 S.W.2d 913 (1988). The burden is upon the appellant to show that the findings are erroneous, and because appellant has made no argument to that effect, we do not address its first point.
Appellant’s fifth point for reversal asserts that the court erred in finding that appellant failed to allege and prove color of title, payment of taxes for seven years or adverse possession of the property. We disagree.
A quiet title action is an action by one in possession. Carter v. Phillips, 291 Ark. 94, 722 S.W.2d 590 (1987). If a person takes possession of land and holds the same under claim of ownership continuously, openly, adversely, for more than seven years, such person acquires title by adverse possession and will prevail in an action to quiet title. Gibbs v. Bates, 215 Ark. 646, 222 S.W.2d 805 (1949). Appellant alleges that it and its predecessors in title have been in possession of the described property, openly, notoriously, adversely and exclusively, for more than seven years and no one has claimed or occupied said premises adversely to it and its predecessors. The court specifically found that appellant had no legal existence until October 30, 1986, at which time it was granted its corporate charter and, therefore, could not possibly have had possession of the property for a period of more than seven years. Findings of fact of a chancellor will not be reversed on appeal unless clearly erroneous. Cuzick v. Lesly, 16 Ark. App. 237, 700 S.W.2d 63 (1985).
Prior to the discovery made in 1986, that the 1944 corporation failed to file its corporate charter with the Secretary of State, all of the members of the 1944 corporation possessed the property, none claiming any ownership adverse to any other, with the exception of Mr. Harmon who is not a party to this appeal. In order to prove adverse possession, the possession must have been adverse for more than seven years. Possession was not claimed adversely until after the 1986 discovery. Therefore, we cannot say the chancellor was clearly erroneous in finding that appellant failed to prove adverse possession.
Appellant’s remaining three points all require resolution of the effect of certain legislation, enacted in 1963 and amended in 1973, and will therefore be discussed together. We also note at this point that this case was originally appealed to the Arkansas Supreme Court. The supreme court declined to review the case and transferred it to this court. We, therefore, assume jurisdiction pursuant to Rule 29(3) of the Rules of the Supreme Court and Court of Appeals.
Appellant essentially challenges the chancellor’s findings that appellee existed as a de facto corporation subsequent to January 31,1975, retaining the ability to hold title to land in the corporate name. Appellant’s argument centers around the “Arkansas Nonprofit Corporation Act” enacted March 7,1963, and amended in 1973, codified at Arkansas Code Annotated Sections 4-28-201 to -223 (1987 and Supp. 1987). The 1963 Act generally provides for the incorporation and registration of nonprofit organizations, and repeals Act 51 of 1875, the prior law for formation of nonprofit corporations. The Act, among other things, requires any association of person desirous of becoming incorporated under the Act to file its articles of incorporation, which have been court approved, with the Secretary of State and pay the requisite filing fee. Ark. Code Ann. § 4-28-206 (1987). Section 22 of Act 176 of 1963 stated “The provisions of this Act shall in no way affect any nonprofit corporation chartered under the laws of this state existing prior to the effective date hereof whose primary purpose, as stated in its charter, is for the education of its members.” Section 1 of Act 42 of 1973 amended Section 22 of Act 176 of 1963, which is now codified at Arkansas Code Annotated Section 4-28-204 (1987), to read as follows:
The provisions of this Act shall in no way affect any nonprofit corporation chartered under and in accordance with the laws of this State existing prior to [March 7, 1963]. Any such non-profit corporation organized prior to [March 7,1963] and which has not filed a copy of the order or action whereby they were granted corporate status under the then existing law may file a certified copy of such order or action from the Clerk of the Court wherein such authority was granted, together with a filing fee of $10.00, with the Secretary of State of Arkansas and such filing shall evidence the incorporation and shall entitle such organization to recognition of its legal status, the same as one formed under the provisions of this Act.
Section 2 of Act 42 of 1973 further provided that “any non-profit corporation organized prior to [March 7, 1963] and wishing to take advantage of the provisions of Section 22 of [the 1963] Act, as amended by this Act, shall make the filing provided for herein within two (2) years after the effective date of this Act [January 31, 1973].” Section 2 was never codified and appeared only as a note to Arkansas Statute Annotated Section 64-1921 (Repl. 1980). It does not appear in any form in the Arkansas Code Annotated.
It is undisputed that appellee did not file its order granting corporate status with the Secretary of State prior to January 31, 1975. Appellant argues that appellee’s failure to file within that two year period terminated the existence of the 1944 corporation. We disagree.
The plain language of the Act specifically states that it in no way affects corporations existing prior to passage of the Act. Further, the Act as amended and codified provides only that a preexisting corporation may file a copy of the order granting corporate status with the Secretary of State. By usual statutory construction “may” is directory or permissive rather than mandatory. Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539 (1963). See also, Richards v. State, 266 Ark. 733, 585 S.W.2d 375 (Ct. App. 1979). Although the filing is not mandatory, if a corporation chooses to file, the filing merely enhances the legal status of the corporation by offering prima facie evidence of incorporation. This is apparent from the wording “shall evidence the incorporation” when read in light of the emergency clause which recites that the Act is necessary to clarify the status of nonprofit corporations formed prior to the 1963 Act.
Although Section 2 of the 1973 amendment used the mandatory wording “shall” when providing for the two year filing period, it did so only in reference to preexisting corporations “wishing to take advantage of’ the Section 22 provisions. By implication, this also means that those not wishing to take advantage of those provisions are not required to file.
Furthermore, although not directly relevant to this appeal, we note that a similar act was passed in 1987. It again provides that “any nonprofit corporation organized prior to the effective date of Act 176 of 1963 which wishes to exist and function under the provisions of that Act shall within one (1) year . . . file with the Secretary of State a copy of the court order or action whereby it was granted corporation status . . . .” Obviously had the legislature intended termination of corporations that failed to file within two years of the 1973 amendment, there would be no corporations in existence to which Act 406 of 1987 could apply since it applies only to pre-1963 corporations which had not yet filed with the Secretary of State.
We now reach appellant’s specific points for reversal. Appellant alleges in its second point that the trial court erred in finding that the 1944 club was a de facto corporation after January 31, 1975. Appellant offers two arguments in this regard.
First, appellant asserts that the 1944 club does not meet the common law definition of a de facto corporation because there was no attempt to comply with the 1963 Act, as amended. The requirements necessary to constitute a de facto corporation were first enunciated by the supreme court in Whipple v. Tuxworth, 81 Ark. 391, 99 S.W. 86 (1907). To constitute a corporation de facto there must be a charter or general law under which such a corporation as it purports to be might lawfully be organized, an attempt to organize thereunder, and actual use of the corporate franchise. Id. Thus, appellant asserts that the second requirement is absent in the case at bar. We disagree. Because the 1963 Act, as amended, in no way affected pre-1963 corporations, it was not essential that appellee attempt to organize thereunder, especially in light of our conclusion that the filing requirement was permissive rather than mandatory. Therefore, appellant’s argument that the common law requirements have not been met is unpersuasive.
Appellant also argues that a de facto corporation could, not exist subsequent to January 31, 1975, because the existence of a nonprofit corporation created prior to the 1963 Act was limited by Section 2 of Act 42 of 1973. Appellant properly cites the rule that where statutes limit the existence of a corporation to a certain period there cannot be a corporation de facto after that limit. Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S.W. 622 (1916). However, as discussed above, the acts relied on by appellant do not limit the period of corporate existence.
In its third point, appellant argues that the chancellor erred in declaring the deed to it to be a nullity and void. Appellant’s position, however, is based upon the assumption that no corporation existed subsequent to January 31, 1975, and that the directors at that time had authority to wind-up corporate affairs, including disposition of the subject property.
As we have stated, the 1944 corporation’s existence was not terminated in 1975. The corporation continued to exist and function in that capacity until after this action was initiated. The subject property was held by the 1944 corporation in the corporate name. Pursuant to its constitution and by-laws, the power to convey real property rested with the Board of Directors. The deed in question was executed in 1986 but was executed by 1975 directors who no longer held a position on the corporation’s board at the time the deed was executed. Because the grantors were no longer directors of the corporation, they had no authority to convey property on behalf of the corporation.
Appellant alternatively argues that the 1975 directors’ actions were ratified by the 1986 membership of the original corporation. However, upon our de novo review of the record, we find no evidence sufficient to support that contention.
Finally, appellant argues that the court erred in vesting title in the 1944 corporation. Based upon disposition of appellant’s other points for reversal and the reasons cited therein, we cannot say that the chancellor was clearly erroneous in vesting title to the subject property in appellee.
Affirmed.
Cracraft and Rogers, JJ., agree.
A third claim to the subject property was also made by Lampkin Ross Harmon. Mr. Harmon’s claim was denied by the court and he is not a party to this appeal. | [
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John Mauzy Pittman, Judge.
Jimmy Smith appeals from an order dismissing his action seeking restitution from appellee Billy Ray Whitener for unjust enrichment. We reverse.
The facts of the case are essentially undisputed. Patricia Birlson owned property in White county that when encumbered with a mortgage in favor of Newport Federal Savings & Loan (Newport Federal). In 1980, Birlson sold all but one acre of the property to appellee. In conjunction with his purchase of the remainder of the property, Whitener assumed the existing mortgage to Newport Federal. Birlson later sold the remaining one acre to Charles Burress, who then sold the acre by warranty deed to appellant in 1981. Appellant constructed a house on the property and entered into a contract for its sale with J. J. Reeves. Reeves’ title search revealed Newport Federal’s lien on the property. To facilitate the sale to Reeves, on November 21,1984, appellant obtained a release of his one acre from the mortgage by assigning a $5,000.00 certificate of deposit to Newport Federal. According to the assignment, the CD was to serve as security for appellee’s debt to Newport Federal. Appellant testified that it was his understanding that his CD would be returned once the note secured by the mortgage was paid off.
On March 29, 1990, Newport Federal informed appellant by letter that appellee Whitener’s loan was delinquent, that it had exercised its option to accelerate, and that it was crediting against the loan the proceeds from the CD, according to the terms of the assignment. On April 4,1990, Newport Federal’s attorney wrote appellant’s counsel and stated that, after the application of appellant’s CD with interest, the balance due on the note had been reduced from $14,794.02 to $9,265.22. When appellee’s mother paid off the note, appellant filed suit against Newport Federal for breach of contract and against appellee for unjust enrichment. Appellant subsequently dismissed the claim against Newport Federal, and proceeded solely on the claim against appellee. The chancellor found that appellant had “failed to meet his burden of proof,” and dismissed the case.
Appellant argues that appellee was unjustly enriched when his indebtedness was reduced by the application of the proceeds from the CD. While Newport Federal was entitled to the proceeds of the CD under the terms of the assignment, appellant maintains that he was not indebted on the mortgage and, therefore, appellee remained responsible for the entire amount of the note, not for the loan amount less the proceeds of the CD.
On appeal, we try chancery cases de novo on the record and do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Merchants & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990). A finding is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed. Duckworth v. Poland, 30 Ark. App. 281, 785 S.W.2d 472 (1990).
One is not unjustly enriched by receipt of that to which he is legally entitled. Merchants & Planters Bank & Trust Co. v. Massey, supra. To find unjust enrichment, a party must have received something of value to which he is not entitled and which he should restore. There must be some operative act, intent, or situation to make the enrichment unjust and compensable. Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67 (1986); First National Bank v. Quality Chemical, 36 Ark. App. 215, 821 S.W.2d 53 (1991). It is not necessary that the party unjustly enriched should have been guilty of some wrongdoing, the question being whether he obtained something of value to which he was not entitled, to the detriment of someone else. Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979). Appellant does not maintain that appellee was enriched through fraud or any tortious act. Appellant was obligated to pay the mortgage covering the entire property. He received a considerable savings, $5,528.22, on the indebtedness due to Newport Federal’s application of the CD proceeds to the loan. This savings allowed appellee’s mother to redeem the property for $9,265.22 after appellee defaulted.
Appellee testified that he did not know of the assignment between appellant and Newport Federal and that he never intended to use appellant’s money. Nonetheless, appellee was enriched by Newport Federal’s application of the CD to the loan when appellee defaulted. Even an innocent party who has been unjustly enriched may be compelled to surrender the fruits to another more deserving party. Orsini v. Commercial National Bank, 6 Ark. App. 166, 639 S.W.2d 516 (1982). If one has money belonging to another, which, in equity and good conscience, he ought not to retain, it can be recovered although there is no privity between the parties. Patton v. Brown-Moore Lumber Co., 173 Ark. 128, 292 S.W.2d 383 (1927). Although the enrichment was to appellee and at the expense of appellant, the enrichment need not have come directly from appellant, but could come from a third source, Newport Federal. See Id.
Newport Federal was entitled to the CD proceeds until the note secured by the mortgage was paid off. The CD was put up as security and in consideration of appellant’s obtaining a release of the one acre from the mortgage, thus allowing appellant to sell the acre free of the Newport Federal’s lien. It was argued that appellee was not unjustly enriched because the CD stood for the property released from the mortgage appellee has assumed which covered the entire property. The argument continued that appellant made this assignment with no reasonable expectation of payment from appellee, who became the beneficiary of the loan’s reduction by application of the CD. However, appellee demonstrated his willingness to accept this savings by paying off the mortgage at the reduced amount. See Frigillana, supra.
Although this one acre was released from the mortgage lien, appellee was still responsible for the entire note. Appellant’s assignment was not made to excuse appellee from this obligation. When one not primarily bound to pay a debt to remove an encumbrance nevertheless does so, either from his legal obligation or to protect his own secondary right, he may assert a claim of unjust enrichment against the other who is liable. See Cox v. Wooton Bros. Farms, 271 Ark. 735, 601 S.W.2d 278 (Ark. App. 1981). Here, appellant was not obligated to appellee to pay any portion of appellee’s mortgage. He assigned his CD to Newport Federal to protect the. one acre from Newport Federal’s lien created by the mortgage. Appellant was protecting a legitimate interest: a clear title on the property. Appellee should not be permitted to be unjustly enriched by achieving a savings on the mortgage after initially defaulting on the loan and activating the terms of Newport Federal’s assignment.
From our review of the record, we find that it was error for the chancellor to dismiss appellant’s action for unjust enrichment and reverse.
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Olly Neal, Judge.
Appellant school district takes this appeal from a November 28, 1995, order of the Union County Circuit Court. Appellee Margaret Alphin is a school teacher in the Junction City School District who, by action of the Junction City School Board on April 28, 1994, suffered a loss of 3/7th of her regular salary when the district unexpectedly resolved to reduce its expenditures by eliminating or reducing staff positions during the 1993-94 school year. The trial court correctly found that appellant’s action in reducing Ms. Alphin’s contract was in violation of the Arkansas Teacher Fair Dismissal Act, Ark. Code Ann. § 6-17-1501 et seq., and, therefore, we affirm the judgment. The court’s decision to disallow appellee an attorney’s fee was erroneous as a matter of law, and we therefore reverse on Ms. Alphin’s cross-appeal.
Junction City School District is located on the Arkansas-Louisiana state line and is comprised of students from both states. Historically, both states have shared the financial burden of providing an education for the district’s students. In March 1994, the district was notified by the Arkansas Education Department that the State of Arkansas would immediately terminate turn-back funds that Arkansas had provided in previous years. Upon the school district’s request, the Union County Circuit Court entered a temporary injunction, holding the impending termination of funding in abeyance until the 1994-95 school year. Ms. Alphin requested a hearing before the school board, which was granted, and the hearing was conducted July 6 and 7, 1994. The board ultimately decided to offer appellee a part-time position, which amounted to a 3/7th reduction in her salary instead of the original proposition of a 4/7th reduction. Ms. Alphin accepted the modification subject to her right to appeal the board’s decision. She subsequently took an appeal to the Union County Circuit Court.
In the circuit court’s November 28, 1995, order, the court adopted the findings it set out in its September 20, 1995, letter opinion. The court found that appellant failed to comply with its own policy and applicable state law in reducing appellant’s contract, and that the board’s decision to do so was arbitrary and capricious. Ms. Alphin was awarded back pay for the period in which she received a reduced salary, reinstatement of her full-time status as a teacher, and an attorney’s fee. The court later retracted the award of attorney fees.
At trial, Junction City School Superintendent Alvin Kelly testified that when it became apparent that the district would have to eliminate some staff positions, it was he who was designated by the school board to develop criteria to be used in determining which contracts to reduce or terminate. At the time of the 1993-94 “funding crisis,” the district had two separate policies in effect. Policy GAAB related to the hiring, termination, and demotion of certified personnel and contained both objective and subjective standards for employee dismissal. Policy GKBA dealt with selection and dismissal of professional personnel and contained a provision for the development of a reduction in force policy by a committee composed of representatives from the major categories of personnel in the district, and approval by the board. The Junction City School Personnel Policy Committee devised a reduction in force policy (RIF), which was submitted to the board on April 26th and 28th 1994, and ultimately rejected. Mr. Kelly admitted that teaching certification and seniority in the district were the sole factors he considered in terminating employees.
The district urges first that the applicable standard of appellate review of judicial determinations pursuant to the Arkansas Teacher Fair Dismissal Act is whether the trial court erred in finding that the board’s decision is supported by a rational basis. This is somewhat of a misstatement of the law. In such appeals our review is limited to a determination of whether the circuit court’s decision is clearly erroneous. Helena-West Helena School District v. Davis, 40 Ark. App. 161, 842 S.W.2d 873 (1992); Murray v. Altheimer-Sherril Public Schools, 294 Ark. 403, 743 S.W. 2d 403 (1988) (decision under prior law). Here, the trial court held that the manner in which the board attempted to reduce appellee’s contract was not in compliance with its own personnel policies and therefore violated state law. The court concluded that because the board made its decision without reference to its own policies, any action the board took was, as a matter of law, arbitrary and capricious.
The Teacher Fair Dismissal Act has three requirements: 1) that each district have a set of written personnel policies; 2) that each district have a committee on personnel policies consisting of five classroom teachers and three administrators; and 3) that the school board approve or adopt any proposed policy or modification to existing policy. Ark. Code Ann. § 6-17-201; 6-17-203; and 6-17-205. Strict compliance with the Teacher Fair Dismissal Act has been required by law since 1989. See Lester v. Mount Vernon-Enola School District, 323 Ark. 728, 917 S.W.2d 540 (1996). School policy is part of teachers’ contracts as a matter of law, and teachers may reasonably expect the district to comply with its own declared policy. Ark. Code Ann. § 6-17-204(a) (Repl. 1993); Lauren Maxwell v. Southside School District, 273 Ark. 89, 618 S.W.2d 148 (1981).
At the time Ms. Alphin’s contract was reduced, appellant had a personnel policy in place. The only provision in the unified policy that specifically addresses the issue of reduction in force is the portion of policy GKBA which states:
The Board of Education shall have the authority to terminate, demote, or reassign personnel within the School District at times when reduction in staff becomes necessary and essential to the successful financial operations of the district. ... A specific and detailed plan of action for the reduction in the number of personnel, developed by representatives from the administrative, instructional, and auxiliary staff, and recommended to the superintendent for presentation to the Board of Education will be in compliance with statutory requirements and in accordance with Board of Education Policies.
Should a RIF become necessary, implementation procedures will be designed (1) to maintain a high quality educational program and (2) to assure fair and equitable treatment of all district employees.
Under these terms, the district guaranteed only that it would reduce its force in a manner that would maintain educational standards, that it would not discriminate against any employee, and that any RIF policy would be developed by the committee and approved by the board. Inherent is the requirement that the board must adopt any standard to be used.
Policy GAAB, which was also in effect, addresses generally the issue of teacher dismissal, demotion, selection, and transfer. That section of the policy provides that both objective and subjective criteria will be used in determining action on teacher contracts. Those criteria include teacher certification, years experience teaching, years experience teaching in the district, years experience teaching a certain grade or subject, and any degrees, endorsement hours beyond degree, and voluntary participation in workshops, seminars, etc. Subjective considerations include past performance, ability, leadership, and personality. It is undisputed that superintendent Kelly used only two of thirteen enumerated criteria.
The court concluded that policy GAAB supplied the criteria for reduction that were missing from policy GKBA. The authority to set standards is vested in the committee by operation of law and required by policy GKBA. Because superintendent Kelly testified that he alone decided which criteria to use in reducing the district’s work force and because he failed to provide the guarantees enumerated in policy GAAB, we cannot say the trial court’s finding that appellant failed to strictly comply with its own policy is clearly erroneous. Although the district had no specific RIF policy, the terms contained in policy GAAB were a part of its contract with appellee. We recognize that the district was under stringent time restraints. However, state law precludes the district from circumventing the criteria for fairness in dismissal set out in its own policy. See Murray v. Altheimer-Sherril Pub. Schools, 294 Ark. 403, 743 S.W.2d 403 (1988) (decision under prior law).
An action brought pursuant to the Fair Dismissal Act is both a civil action and “a claim for ‘labor or services’” within the meaning of Ark. Code Ann. § 16-22-308, the general statute authorizing attorney’s fees. Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995); City of Ft. Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991). The supreme court held in Driggers that the subject matter of the underlying litigation is solely dispositive of whether Ark. Code Ann. § 16-22-308 may be invoked.
Because the trial court failed to exercise its discretion to award or deny an attorney’s fee, reversal and remand is required for consideration of the issue. See Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).
Affirmed on direct appeal; reversed and remanded on cross appeal.
Robbins, C.J., and Roaf, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission. The appellant was employed by the appellee as a maid in April 1986 and worked at the motel until July 1986 when she was injured. Her claim for workers’ compensation was denied by an administrative law judge who found that the appellee was not subject to the compensation act because he did not carry on an employment “in which three (3) or more employees are regularly employed by the same employer in the course of business.” See Ark. Code Ann. § 11-9-102(3) (A) (1987). The full Commission affirmed, adopting the law judge’s opinion as its own.
Raj Patel is the owner of the Linwood Motel, which contains only 26 units. During the period in question, appellee and his wife, Val, lived and worked at the motel and the appellee had an uncle who also resided there. At the time the appellant was injured, the appellee and his wife were on a vacation trip to California and appellee’s nephew was managing the motel. This appeal involves the question of whether Patel or his family members should be considered as employees in determining whether appellee had the requisite number of employees to subject him to the Arkansas Workers’ Compensation Law.
When reviewing a decision of the Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979).
There is evidence that when Mr. Patel is present, most of the work necessary to operate the motel is performed by him without help. His wife fills in when he is absent, but she does not assist in keeping the books or paying bills. She may, however, make beds or do the laundry on occasion. Although Mr. and Mrs. Patel live out of the money from the motel, there is no evidence that she was ever carried on the payroll or paid in money for her services. The Commission held she was not an employee, citing Stewart v. Cosby-Parsons Quarter Horse Ranch, 269 Ark. 866, 601 S.W.2d 590 (Ark. App. 1980), where the wife of one of the business partners performed substantial services for the business, but we upheld the finding of the Commission that the wife was not an employee, stating:
Nevertheless, the commission found that these duties were performed out of a sense of familial respo'nsibility. There is no evidence in the record that she [was] ever paid for her services or that she was working under a contract of employment.
269 Ark. at 869.
Appellee’s uncle also resides at the motel, and the appellant testified that before the Patels went on vacation, the uncle would work in the garden and help with the flowers and cleaning. Appellant also testified that while the Patels were on vacation, the uncle did the laündry. The appellee testified that the uncle “helps with the gardening” but does “nothing considering the business.” He denied that his uncle helped with the laundry or that he ever gave his uncle money. He did admit, however, that his uncle never paid for lodging or meals. Mr. Patel’s nephew, who appellant argues was also an employee, managed the motel while the Patels went on vacation, but there is no evidence that he worked there either before or after the Patels’ vacation.
In Wallace v. Wells, 221 Ark. 750, 255 S.W.2d 970 (1953), the Arkansas Supreme Court considered the statute which then provided that employment “means every employment carried on in the State in which five (5) or more employees are regularly employed in the same business.” The Court said:
We hold that Wells had five men regularly employed, although some of them worked only two days a week. The fact that five men were “regularly employed in the same business” is the determinative factor.
221 Ark. at 756. In Stewart v. Cosby-Parsons Quarter Horse Ranch, supra, this court considered the present statute which provides that employment “means every employment carried on in the state in which three (3) or more employees are regularly employed by the same employer in the course of business.” During our discussion, we cited Wallace v. Wells in support of our statement that the determinative factor is whether “three persons are regularly employed in the same business,” 269 Ark. at 868, and later said:
Nor can we say that the commission’s determination that James Whitely was not regularly employed is unsupported by substantial evidence. . . . Even if we could find that James Whitely was, in some way, employed ... his employment would be too irregular and of insufficient duration to be considered an employee of the ranch. See Larson’s, Workers’ Compensation Law § 52.20 (1979).
269 Ark. at 870. In the present case, the Commission adopted the law judge’s opinion finding that the uncle and nephew were nothing more than casual employees who were “not regularly employed in the business.”
In defining the term “employee,” Ark. Code Ann. §11-9-102(2) (1987), provides in part: “The term ‘employee’ shall also include a sole proprietor or a partner who devotes full time to the proprietorship or partnership and who elects to be included in the definition of ‘employee’ by filing written notice with the Workers’ Compensation Commission.”. This section of the compensation act determines the status of Raj Patel as a matter of law. Under the original statute, the definition of “employee” did not include the above reference to a sole proprietor or partner. See Ark. Stat. Ann. § 81-1302(b) (Repl. 1976). That definition was amended by Act 119 of 1979 to include sole proprietors and partners under the conditions set out above. Section 3 of Act 119 provided:
It is hereby found and determined by the General Assembly that under the present Workers’ Compensation Law a sole proprietor or partner is not eligible to obtain worker’s compensation coverage for himself; ....
It is clear that after 1979 sole proprietors could be considered employees, but only if they elected to be included in the definition of employees and filed their election with the Commission. Gilbert v. Gilbert Timber Co., 292 Ark. 124, 126, 728 S.W.2d 507 (1987). There is no evidence in the record, nor is it contended, that appellee ever filed such an election.
In workers’ compensation cases, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable. Fraternal Order of Eagles v. Kirby, 6 Ark. App. 198, 639 S.W.2d 529 (1982). In determining whether the party has met the burden of proof on an issue, Ark. Code Ann. § ll-9-704(c)(4) (1987) now requires administrative law judges and the Commission to weigh the evidence impartially and without giving the benefit of the doubt to either party. Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988). The determinative factor in ascertaining the requisite number of employees under the compensation act is whether three'persons are regularly employed by the same employer in the same business. Ark. Code Ann. § ll-9-102(3)(A) (1987). This presents a question of fact and the Commission’s decision cannot be disturbed on appeal if it is supported by substantial evidence. Stewart v. Cosby-Parsons Quarter Horse Ranch, supra.
Under the evidence and the law in this case, we must affirm the Commission’s finding that the appellee did not carry on an employment in which three (3) or more employees were regularly employed in the course of the business.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal involves a dispute over money owed by C. S. Standefer, his wife, Geraldine Standefer, and their corporation, C. S. Standefer, Jr. Farms, Inc. (hereinafter referred to as Standefer Farms), to appellant, Central Production Credit Association (hereinafter referred to as CPCA), and to appellees. For the reasons hereinafter discussed, we find the court’s judgment in this appeal is not a final appealable order pursuant to Ark. R. Civ. P. 54(b).
C. S. Standefer and Geraldine Standefer are president and secretary, and sole shareholders, of Standefer Farms, which was formed in 1975. Over the years, the Standefers and Standefer Farms obtained financing through appellant, CPCA, and its predecessor, Planters Production Credit Association. Between 1981 and 1986, the Standefers, individually and as officers of Standefer Farms executed three separate promissory notes to CPCA, which were secured by security agreements covering, among other things, equipment, crops, proceeds, contract rights, and certain government payments obtained through participation in government farm programs. In 1986, two separate lease agreements were executed regarding land owned by appellees. Appellant, CPCA, contended those leases were executed by C. S. Standefer, individually, and appellees contended the lease agreements were executed by Standefer Farms, the corporation.
In March 1987, a voluntary chapter 7 bankruptcy proceeding was filed by the Standefers, individually, which included the debts asserted by appellant, CPCA, and appellees. Appellees obtained an order from the bankruptcy court, granting them relief from the automatic stay, and filed their complaint in chancery court seeking a money judgment against Standefer Farms, establishment of their alleged landlord’s liens against certain proceeds held by the bankruptcy trustee, and foreclosure of such liens. Appellant answered, admitting the execution of the leases by Mr. Standefer, individually, but denied the liability of Standefer Farms. Appellees then obtained a consent judgment, without notice to CPCA, in the approximate amount of $58,000.00'. After learning of the consent judgment, CPCA moved for and was granted an order setting aside the consent judgment. Thereafter, CPCA filed its amended answer, counterclaim, and cross-claim, seeking a money judgment for the balance due under the promissory notes executed by Standefer Farms and the Standefers, foreclosure of its security liens, and determination of the priority of the parties’ respective liens. Standefer Farms filed a separate answer, admitting the amounts of debt owed to CPCA and appellees and requested a determination regarding the lien priorities.
At a hearing held March 7, 1988, the trial court heard the parties’ evidence and, over appellant’s objection, granted appel-lees a final money judgment against Standefer Farms in the approximate amount of $50,000.00. The trail court postponed making a judgment on appellees’ entitlement to a landlord’s lien and denied CPCA’s request for a money judgment, stating that its request was not ripe for adjudication. The court further refused to stay the enforcement of appellees’ judgment and reserved its determination of the parties’ lien rights and priorities.
Appellant, CPCA, contends on appeal that (1) the trial court erred in failing to dismiss appellees’ complaint under Ark. R. Civ. P. 50(a); (2) the trial court’s judgment in favor of appellees is not supported by substantial evidence; (3) the trial court erred in granting appellees a final judgment; and (4) the trial court erred in failing to stay the enforcement of appellees’ judgment. We find the trial court’s order is not a final appealable order as provided by Ark. R. Civ. P. 54(b) and decline to address the points raised by appellant.
Rule 54(b) of the Arkansas Rules of Civil Procedure provides:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
This court stated in Tulio v. Arkansas Blue Cross & Blue Shield, Inc., 283 Ark. 278, 280-81, 675 S.W.2d 369, 371 (1984):
The Rule, which applies only when there are multiple claims or multiple parties, requires two things: First, the trial court must direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. Whether the judgment is in fact final is apparently to be determined under Ark. R. App. P. 2. Second, the trial court must make an express determination that there is no just reason for delay, which has been construed to mean that there must be some danger of hardship or injustice which would be alleviated by an immediate appeal. Campbell v. Westmoreland Farm, 403 F.2d 939 (2d Cir. 1968). Should there be an uncertainty about the trial court’s intent, clarification may be sought during the 30 days allowed for the notice of appeal. Fundamentally, however, the policy of the rules is still to avoid piecemeal appeals, so that the discretionary power vested in the trial court is to be exercised infrequently, in harsh cases. Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d Section 2653.
Here, the court found that appellees were entitled to money judgments of $44,054.10 and $6,600.00 on their two respective lease agreements with Standefer Farms; however, the court went on to order:
The Court hereby reserves judgment on all other issues set forth in the pleadings filed herein including, but not limited to, the lien claims and priority of liens.
It is also found that there is no just reason for the delay of an entry of both of these Judgments contained herein and it is expressly directed that entry of these Judgments as final judgments be made and the Plaintiff's are not stayed from enforcing the Judgments for the reasons set forth in the Court’s letter opinion dated March 8, 1988, which is attached hereto and incorporated herein.
In Murry v. State Farm Mutual Automobile Insurance Co., 291 Ark. 445, 725 S.W.2d 571 (1987), the Arkansas Supreme Court stated:
This opinion gives us an opportunity to express our concern over the treatment Rule 54(b) is receiving in our trial courts. We have had numerous occasions of late to hold that appeals must be dismissed for failure to comply with the rule. See, e.g., Arkhola Sand & Gravel Company v. Hutchinson, 289 Ark 313, 711 S.W.2d 474 (1986), and the four other recent cases cited in that opinion. The litigants wishing to appeal in those cases obviously overlooked the requirements of the rule when preparing to appeal. We may have suggested that the trial judges should take lightly a request for the direction of finality by, in some cases, dismissing appeals of cases where there had been no compliance with the rule without prejudice to the appellant, Howard v. Wood Manufacturing Co., 291 Ark. 1, 722 S.W.2d 265 (1987), thus permitting the appellant to return to the trial court upon remand for an order in compliance with the rule. See City of Marianna v. Arkansas Municipal League, 291 Ark. 74, 722 S.W.2d 578 (1987). It was not our intention to make any such suggestion. As we said in Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984), and reemphasized in 3-W Lumber Co. v. Housing Authority for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985), before entering the direction of finality, the trial court must find some danger of hardship or injustice which would be alleviated by an immediate appeal. We stressed that we adhere to a policy against piecemeal appeals and said the discretionary power of the trial court is to be exercised infrequently and only in “harsh cases.”
Our Rule 54(b) was taken from the federal rule which is discussed in C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure Section 2659 (1983), in part, as follows:
Because of the strong federal policy against piecemeal review several courts have stated that the district court should make the express determination only in the infrequent case in which a failure to do so might have a harsh effect. As Judge Hastie said in Panichella v. Pennsylvania Railroad Company, [252 F.2d 452 (3rd Cir. 1958)] the determination involves “weighing the overall policy against piecemeal appeals against whatever exigencies the case at hand may present. ... It follows that 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel.” It is clear from this statement that some showing must be made by the party desiring an immediate appeal in order to overcome the normal rule that no appeal be heard until the entire case has been completed, [pp. 99-100, footnotes omitted]
APRIL 12, 1989
Although there can be no precise standard for determining when the trial court should issue the direction that the judgment be considered final as to one of several claims or claimants when others are left for trial, we concur that such an order should issue only in exigent'cases.
291 Ark. at 446-47, 725 S.W.2d at 572.
Here, the trial court found there was no just reason for the delay of the entry of the judgments for appellees and expressly made the judgments final. The trial court did not make a finding of some danger or hardship which would be alleviated by an immediate appeal. The trial court reserved judgment on the issues of the priorities of the parties’ liens and whether to grant appellees a landlord’s lien in the proceeds. Thus, the granting of a money judgment to appellees is not an appealable order because judgment on the issues of appellees’ landlord’s lien, appellant’s cross-claim, and priority of the parties’ respective liens was reserved. Although the parties did not raise the issue, the question of a final order is a jurisdictional requirement which the appellate court raises on its own in order to avoid piecemeal litigation. Samuels Hide and Metal Co. v. Griffin, 23 Ark. App. 3, 739 S.W.2d 698 (1987).
Dismissed.
Cracraft and Rogers, JJ., agree. | [
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John E. Jennings, Chief Judge.
The appellees, Roger and Patricia Jenkins, filed suit in Phillips County Circuit Court against Jim Caldwell, the appellant, seeking damages based on Caldwell’s sale of a car to them, allegedly with knowledge that the odometer had been turned back. The complaint set out two theories of recovery: common law fraud (with a claim for punitive damages) and violation of Ark. Code. Ann. § 4-90-204 (Repl. 1991), which prohibits the sale of a motor vehicle with knowledge that the mileage registered on the odometer has been altered. The jury returned a verdict in favor of appellees and awarded them $4,635.00 in compensatory damages. Although the jury did not assess punitive damages, the circuit judge, pursuant to Ark. Code Ann. § 4-90-203 (Repl. 1991), increased the amount of damages awarded to $9,270.00 and awarded attorney’s fees in the sum of $4,904.50.
For reversal, three arguments are made: that the attorney’s fees awarded were excessive; that the court abused its discretion in doubling the amount of damages awarded by the jury; and that the trial court should have granted a directed verdict for the appellant. We find no error and affirm.
Appellant first argues that the trial court abused its discretion in granting appellees’ attorney an unreasonable amount of attorney’s fees. Arkansas Code Annotated § 4-90-203 provides that “[a]ny person injured by a violation of this subchapter shall recover the actual damages sustained together with costs and disbursements, including a reasonable attorney’s fee. . . .” When attorney’s fees are authorized by statute, the amount to be awarded lies within the broad discretion of the trial court. While there is no fixed formula to be used in setting a reasonable fee, Federal Life Insurance Co. v. Hase, 193 Ark. 816, 825, 102 S.W.2d 841, 845 (1937), the supreme court has adopted the list of factors to be considered set out in the American Bar Association’s Code of Professional Responsibility. Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 92, 514 S.W.2d 224, 226 (1974). These factors include the time and labor required and the results obtained. New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 361, 601 S.W.2d 836, 837 (1980). We have recognized the superior position of the trial judge to determine a reasonable attorney’s fee because of his acquaintance with the record and the quality of services rendered. Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 401-02, 664 S.W.2d 886, 890 (1984); Farm Bureau Mut. Ins. Co. v. Kizziar, 1 Ark. App. 84, 613 S.W.2d 401 (1981). The case at bar was tried to a jury, the record on appeal is 400 pages long, and the recovery in the trial court was substantial. On these facts, we cannot say the trial court’s award was an abuse of discretion.
Appellant also argues that the trial court abused its discretion by doubling the amount of damages awarded by the jury. In addition to providing for the award of attorney’s fees, § 4-90-203 provides that the court in its discretion may increase an award of damages to an amount not to exceed three times the actual damages sustained or $1,500.00, whichever is greater. Appellant contends that, because the jury refused to assess punitive damages, it was error for the circuit judge to double the amount of compensatory damages pursuant to this section. His argument is that, by requesting punitive damages, the appellees waived any rights they might have under Ark. Code Ann. § 4-90-203 to treble damages. This argument was not made to the trial court, and no authority is cited to support it. Had the appellees obtained an award of punitive damages the situation might be different, but given the fact that only compensatory damages were awarded by the jury, the trial court clearly had authority under the statute to double the amount of damages. See Currier v. Spencer, 299 Ark. 182, 185, 772 S.W.2d 309, 311 (1989).
Finally, appellant argues that there was insufficient evidence presented to support a verdict against appellant. We do not agree. The statute in issue, Ark. Code Ann. § 4-90-204(d) (Repl. 1991), provides that no person shall sell or offer for sale any motor vehicle with knowledge that the mileage registered on the odometer has been altered so as to reflect a lower mileage than the motor vehicle has actually been driven without disclosing such fact to prospective purchasers. Appellant does not argue on appeal that a disclosure was made.
Appellant testified that he had no knowledge that the odometer on the car sold to appellee had been rolled back and showed a false reading. However, appellee Patricka Jenkins testified that, subsequent to appellees’ purchase of the vehicle, she confronted appellant about appellees’ suspicions in that regard. She stated that appellant told her that he did not turn back the odometer but that he knew who did. Appellant testified that the man that sold him the car gave him an odometer statement dated November 28, 1989, which showed the mileage on the car to be 40,090 miles. However, the record reflects that the invoice appellant gave appellees when they purchased the car was dated the following day, November 29,1989, and showed the mileage to be approximately 8,000 miles less than the statement dated the previous day. The car actually had been driven more than 79,000 miles. The odometer statement dated December 1,1989, given by appellant to the appellees shows the car’s mileage as 40,352.
Whether a person has sold a motor vehicle with knowledge that the mileage registered on the odometer has been altered is a question of fact and evidence of such alteration is often circumstantial. Boren v. State, 297 Ark. 220, 224-25, 761 S.W.2d 885, 887 (1988). Evidence of alteration is shown by contrasting a previously higher odometer reading and the lower reading at the time the vehicle is sold to the complaining party. See Boren v. State, 297 Ark. at 224, 761 S.W.2d at 887. It is the responsibility of the jury to determine credibility and to settle disputed questions of fact. Neugebauer v. Marlin, 268 Ark. 1070, 1072, 598 S.W.2d 446, 447 (1980). Furthermore, it is the jury’s sole prerogative to evaluate the conflicting evidence and draw its own inferences; the jury may draw any reasonable inference from the evidence presented. Boren v. State, 297 Ark. at 225, 761 S.W.2d at 888. The record reflects that there was sufficient evidence from which the jury could find that the appellant sold the vehicle to appellees in violation of § 4-90-204.
Affirmed.
Mayfield, J., concurs in part; dissents in part.
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James R. Cooper, Judge.
In this criminal case the appellee, Levi Harvest, was charged with delivery of a controlled substance. At the close of the State’s case, the trial court granted the appellee’s motion for a directed verdict. The State appeals, arguing three points: that the trial court erred in ruling that Dale Arnold’s in-court repetition of Frederick Swopes’ statements, made in the course of the drug deal, was accomplice testimony; that the trial court erred in ruling that the appellee could not be convicted as an accomplice because his alleged accomplice, Frederick Swopes, had been acquitted of the charge; and that the trial court erred in ruling that the State’s case against the appellee for delivery of a controlled substance and the lesser included offense of delivery of a controlled substance was not sufficient. We dismiss the appeal.
The record reveals that Dale Arnold, a narcotics officer with the Arkansas State Police, entered the appellee’s pawn shop and inquired about the purchase of illegal drugs. According to Arnold, the appellee told him he would send someone to take care of him. Approximately fifteen minutes later, Arnold was approached by Frederick Swopes. Swopes offered to sell Meperidine capsules to Arnold for $20.00 a capsule. Arnold objected to the price and according to Arnold, Swopes stated that he had to check with the appéllee. The only other testimony was that of Swopes: he stated that he got the capsules from the appellee, that he gave the capsules to Arnold, and that he did not receive any money. Swopes denied that he gave any money to the appellee and stated that he did not say that he had to check with the appellee about the price of the capsules.
In criminal cases involving a felony, the State may appeal after the attorney general has inspected the record and determined that the trial court has committed an error, correction of which is essential to the proper and uniform administration of the criminal laws of the state. A.R.Cr.P. Rule 36.10(c). In all such cases, regardless of the decision in this court, the trial had below is a bar to any subsequent trial of the accused for the same offense, the only possible result of the appeal being a ruling by us on questions of law that might serve as a guide in future trials. See State v. Dixon, 209 Ark. 155, 189 S.W.2d 787 (1945); Ark. Code Ann. § 16-91-114 (1987); A.R.Cr.P. Rule 36.10. Usually such issues involve a question as to the sufficiency of the information, the admissibility of testimony, the competency of witnesses, the correctness of instructions, or any other question, the determination of which might furnish a precedent which would be “important to the correct and uniform administration of the criminal law.” Dixon at 159, 189 S.W.2d at 789. Furthermore, where the appeal by the State presents only the question of the sufficiency of corroborating testimony of the appellee’s accomplices in the commission of the crime charged, it will be denied, since that is a question of fact. State v. Massey, 194 Ark. 439, 107 S.W.2d 527 (1937).
In the case at bar, all of the issues raised by the State involve the sufficiency of the evidence or the sufficiency of the corroborating evidence. Although the trial court commented on the fact that he did not think Swopes’ statement that he had to check with the appellee about the price of the drugs was in fact accomplice testimony, it is clear from the written order that the trial court based its decision for directing the verdict on the absence of sufficient evidence. The same is true, for the State’s second point: the trial court expressed concern that Swopes was acquitted of delivery and convicted by a jury of the lesser included offense of possession and stated that in all good conscience it could not give the instruction for delivery to the jury. However, in spite of the trial court’s statement, in the written order, the trial court’s basis for the directed verdict was the insufficiency of the evidence. The State’s third point is again a challenge to the sufficiency of the evidence, and the State concedes this in its brief. We simply cannot base an opinion on the trial court’s concerns and speculations, and as in the case of the State’s second point, a trial court’s expression of what it might do. The trial court clearly and unambiguously directed the verdict because it found that the State had not proven that the appellee was connected to either the drugs or the money exchanged for the drugs.
Appeal dismissed.
Jennings and Mayfield, JJ., agree. | [
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James R. Cooper, Judge,
dissenting. This case is a subsequent appeal from a decision of the Workers’ Compensation Commission. Although a number of issues were raised in the prior appeal, we did not address the merits of those issues but instead remanded to the Commission for more specific findings. Sonic Drive-In v. Wade, 36 Ark. App. 4, 816 S.W.2d 889 (1991). The briefs pertaining to that prior appeal were filed during a trial period established by the Supreme Court for experimentation with the appendix system as a substitute for the former method of abstracting the record on appeal; therefore, the record of the prior appeal was not abstracted, but instead was submitted as an appendix pursuant to the rules applicable at that time. The appellant has moved for leave to file her brief using an appendix in place of an abstract, asserting that most of the points on appeal are similar to those which had been fully briefed pursuant to the appendix method in her prior appeal. The majority has denied the appellant’s motion, and I dissent.
It is clear from the appellant’s motion that, if her motion is denied, she will be required to abstract the record of the prior appeal for which she has already submitted an appendix pursuant to the rule applicable at the time the briefs in the prior appeal were filed. Under the circumstances of this case, I think it would be fundamentally unfair to require this unnecessary duplication of effort on the appellant’s part, as well as unnecessary expense. The period of experimentation with the appendix system began with the Supreme Court’s per curiam order of October 17,1988; after an intermission and two extensions, the experiment was pronounced a failure and ended effective August 1, 1991. In re Revision of the Rules of the Supreme Court and Court of Appeals, 306 Ark. 655 (1991). By the latter revision to its Rules, the Supreme Court reinstituted the abstracting system as provided for in Rule 9 of the Arkansas Supreme Court and Court of Appeals, which, as recently amended, is now contained in Rule 4-2.1 submit that, if our Rules are flexible enough (as they should be) to support the many changes and experiments they have undergone in recent years, they should be flexible enough to avoid the unnecessary duplication of effort and expense which will be required of this appellant.
Although her present case has a different docket number, it is not really a new appeal. While the present rule makes no provision for this situation, fairness requires that she be allowed to proceed under the rules in force when her appeal commenced. To do so would be within our inherent authority to institute orderly procedures for situations which arise that are not provided for by any rule. Furthermore, allowing an appendix to be filed in this instance would work no hardship on this Court, which has had extensive experience with appendices during the experimentation period.
I dissent.
Rogers, J., joins in this dissent. | [
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John E. Jennings, Chief Judge.
Chick-A-Dilly Properties, Inc. of Camden, Gail Fanning, and Nancy Fanning appeal from a summary judgment entered by the Columbia County Chancery Court for appellee, Thomas L. Hilyard. We find no error and affirm.
Appellants Gail Fanning and Nancy Fanning own interests in appellant Chick-A-Dilly Properties. Their deceased sister, Connie Fanning Hilyard, who also owned an interest therein, was appellee’s wife. In 1988, Gail and Nancy entered into an agreement to purchase Connie’s interest in the corporation and gave Connie two promissory notes which provided for monthly payments. The notes were secured by a stock pledge and a mortgage on real estate. The parties also entered into a sales contract, which provided as follows in paragraph 5:
On each anniversary date during the five (5) years of this Contract the sales for the year ending June 8,1988 shall be compared with those for the year ending on the anniversary date in question. After adjusting the difference in the sales figures for inflation, using the Consumer Price Index as published by the Department of Labor and as applicable to the geographic region of which Arkansas is a part, then in the event there is a twenty-five percent (25 %) decrease in gross sales or a twenty-five percent (25 %) increase in gross sales, the following adjustments shall apply:
a. In the event of a decrease of sales of twenty-five percent (25 %) or more, verified by a certified audit by a C.P.A., then Buyer may, at its option, not be obliged to make any further payments to Seller, either under the purchase Promissory Note or the covenant not to compete.
After Connie died in 1989, appellants stopped making payments on the promissory notes and the parties engaged in litigation. In 1991, the parties entered into a settlement agreement which provided that the monthly payments would resume in February 1991. This settlement agreement stated: “The parties shall continue to be bound by the terms of the Sales Contract for the next 50 months, commencing February 8, 1991 without penalty or prejudice to Chick-A-Dilly, Gail or Nancy.”
In June 1991, appellants again stopped making payments to appellee on the ground that there had been a twenty-five percent reduction in business compared with the first fiscal year of the sales contract. On July 8, 1991, appellee sued appellants on the notes and sought foreclosure against the property securing them. In their answer, appellants asserted that there had been a twenty-five percent drop in gross sales and, pursuant to the sales contract, appellants were required to make no further payments to appellee.
Appellants moved for summary judgment, arguing that there was no genuine issue of material fact regarding the enforceability of paragraph 5 of the sales contract. They submitted the affidavit of Laura Tucker, a certified public accountant, who stated that an audit revealed that there had been a twenty-five percent or greater decrease in sales for the corporation for the fiscal year ending June 8,1991, when compared to the fiscal year ending June 8,1988. Appellants also attached a copy of the sales contract, the promissory notes, the security agreement and pledge, the mortgage, appellants’ responses to requests for admissions, the settlement agreement, a schedule prepared by Laura Tucker setting forth the results of the audit, Gail’s affidavit, a letter from Gail and Nancy to appellee, and Nancy’s affidavit.
Appellee also moved for summary judgment. In his motion, he questioned the reliability of Laura Tucker’s audit and the methodology she employed in calculating the alleged twenty-five percent decrease in sales. Appellee also asserted that she had utilized the wrong Consumer Price Index in making her calculations. In support of this assertion, appellee attached the deposition of Laura Tucker and the affidavit of Dr. Charles E. Venus, a consulting economist, who stated:
3.
I know to my personal knowledge that there are in excess of one-hundred (100) such indexes which require those persons engaged in. the field of my profession to determine which index should be utilized as being most correctly applicable for a specific reference purpose;
5.
That under the provisions of Paragraph 5 such Sales Contract requires the comparative calculation to be based upon the index identified as CPI-U (for all urban consumers) or CPI-W (for urban wage earners and clerical workers) within the Southern geographic region of which Arkansas is a part;
6.
That calculating the sales comparison as of the anniversary date specified within said Contract under the Consumer Price Indexes published by the U.S. Department of Labor identified as CPI-U and CPI-W, respectively, applicable to the South for the relative dates yield the following conclusions:
CPI-U South CPI-W South
June, 1988 116.1 115.5
June, 1991 132.8 131.8
Dividing the percentage change between the two periods set forth above results in the following percentage adjustment to be applied.
132.8 = 1.1438 or 14.38% 131.8 = 1.1411 or 14.11% 116.1 115.5
7.
I have likewise been furnished a copy of Exhibit 2 as annexed to the deposition of Laura Tucker as taken in the above case on April 29, 1992, and of her Affidavit with Schedules attached as subscribed before a Notary Public under date of the 19th day of December, 1991; as reflected therein, sales for the year ending 6/8/88 were $756,959.33 which, as adjusted for comparative purposes to sales for the period ending June 8,1991, would be as follows based upon the above indexes:
CPI-U $756,959.33 X 1.1438 = $865,810.08
CPI-W $756,959.33 X 1.1411 = $863,766.29
If the adjusted sales decreased by twenty-five percent (25 %) as specified within Paragraph 5 of the aforesaid Contract, then sales would be as follows:
$865,810.08 X .75 = $649,357.56
$863,766.29 X .75 = $647,824.72
8.
The Schedule attached as Exhibit 2 to the deposition of Laura Tucker indicates actual sales for the contract year ending on the anniversary date of June 8,1991, to be $650,544.12, which exceeds or is greater than the total sales adjusted under either of the above price indexes after reducing by twenty-five percent (25 %) the sales otherwise reflected as of the anniversary date of June 8, 1988.
9.
The conclusion therefore necessarily follows that Paragraph 5 of said Sales Contract has no application as the sales decrease based upon such comparison is less than the twenty-five percent (25%) as specified therein as likewise evidenced by the recalculation made by Laura Tucker reflected within the handwritten figures appearing upon Exhibit 2 annexed to her deposition.
Appellants responded to appellee’s motion for summary judgment by attaching another affidavit from Laura Tucker with the results of an independent auditor’s report dated June 26, 1992, and by providing the affidavit of Robert Marsh, a consulting economist, who stated:
The Size D index for the South region is a better measure of inflation for El Dorado and Magnolia than the other “size” indices for the south region or the combined index for all sizes for the entire south region used by Charles E. Venus. Of all the indices applicable to the geographic region of which Arkansas is a part, the Size D index is the best measure of inflation for the El Dorado and Magnolia areas.
The conclusion therefore necessarily follows that Paragraph 5 of said Sales Contract applies as the sales decrease based upon such comparison is more than the twenty-five percent (25%) as specified therein.
The chancellor granted summary judgment for appellee after hearing the parties’ arguments on their motions and noted that the case turned on the construction of the wording contained within paragraph 5 of the sales agreement. He stated:
When making the comparison of 1988 with 1991, using the Consumer Price Index, defendants used the C.P.I. applicable for “size D” non-metropolitan areas in the South Region with a population of less than 50,000. The rationale being that cities of El Dorado and Magnolia fall in that category. The plaintiff contends that the C.P.I. for the entire Southern Region of which Arkansas is a part should have been used.
It may well be that the C.P.I. applicable for “size D” non-metropolitan areas is more accurate to determine the inflation for El Dorado and Magnolia. However, the plain wording of paragraph 5 of the sales contract does not call for that determination. It states that the C.P.I. to be used is the one that includes Arkansas. The C.P.I. utilized by the defendants does not include Arkansas. It includes cities of certain sizes in Arkansas. To reach the same conclusion as defendants regarding the appropriate C.P.I. would give paragraph 5 of the sales agreement a meaning which it simply does not contain.
This court therefore finds and concludes that the defendants did not properly compare the sales of 1991 with 1988 as required by the sales agreement and the tender of stock rather than payments pursuant to the promissory notes to plaintiff was not pursuant to the sales agreement.
Appellants argue on appeal that it was inappropriate for the chancellor to enter summary judgment for appellee because there was a genuine issue of material fact as to the meaning of paragraph 5 of the sales contract. Appellants argue that the question of which Consumer Price Index should apply was an issue of fact which required an evidentiary hearing and urge this court to reverse and remand this case for trial for the taking of evidence as to the parties’ intentions in that regard. In response, appellee argues that, having moved for summary judgment, appellants waived this issue and cannot argue it on appeal under the doctrine of invited error.
The leading case in Arkansas on the filing of cross motions for summary judgment is undoubtedly Wood v. Lathrop, 249 Ark. 376, 459 S.W.2d 808 (1970). In an opinion written by Justice George Rose Smith the court said:
Both Mrs. Wood and the Lathrops filed motions for summary judgment, setting forth the facts substantially as we have outlined them. We may say at this point that we do not agree with the appellees’ contention that a party who files a motion for summary judgment after his adversary has filed such a motion thereby concedes that no material issue of fact exists in the case. That argument is opposed both to reason and to authority. When such cross motions are filed each movant is contending for the purpose of his own motion that there is no material issue of fact in the case, but there is no reason at all to say as an inflexible rule that he also admits the nonexistence of any factual issue with respect to his adversary’s motion. Our summary judgment statute was copied from Rule 56 of the Federal Rules of Civil Procedure, with respect to which this statement is made in Barron and HoltzofFs Federal Practice & Procedure, § 1239 (Wright’s Ed., 1958):
The fact that both parties have moved for summary judgment does not establish that there is no issue of fact. A party may concede that there is no issue if his legal theory is accepted and yet maintain that there is a genuine dispute as to material facts if his opponent’s theory is adopted. Thus, both motions should be denied if the court finds that there is actually a genuine issue as to a material fact.
249 Ark. at 379, 459 S.W.2d at 809-10.
The short form of the rule in Wood v. Lathrop may be found in 10A Charles A. Wright et al., Federal Practice and Procedure § 2720, at 19 (2d ed. 1983): “[T]he mere fact that both parties seek summary judgment does not constitute a waiver of a full trial or the right to have the case presented to a jury.” There are sound reasons for the rule:
For example, a defendant moving for summary judgment on the ground that the claim is barred by the statute of limitations may contend that there is no issue of fact as to that defense, but if the defense is held insufficient as a matter of law, he still may argue that there is an issue of fact as to his liability on the claim asserted against him.
Wright | 2720 at 21-22.
The general principle set forth in Wood has been subsequently followed in the supreme court and in this court. Dickson v. Renfro, 263 Ark. 718, 569 S.W.2d 66 (1978); Moss v. Allstate Ins. Co., 29 Ark. App. 33, 776 S.W.2d 831 (1989); Heritage Bay Property Regime v. Jenkins, 27 Ark. App. 112, 766 S.W.2d 624 (1989).
There are however decisions of both courts holding that an appellant may find himself barred from raising on appeal the argument that an issue of fact remains to be decided when he has contended to the contrary in the trial court. In Bibler Brothers Timber Corp. v. Tojac Minerals, Inc., 281 Ark. 431, 436, 664 S.W.2d 472, 474-75 (1984), the court said:
Appellant’s final point for reversal is that the trial court erred in granting judgment on the pleadings because material issues of fact were unresolved. Specifically, appellant alleges the issue in dispute is whether the lease was subject to forfeiture due to appellees’ failure to drill and develop the non-unitized acreage. However, the failure to drill and develop was waived when the appellant asserted positively in its Motion for Summary Judgment:
“That there is no genuine issue as to any material fact and that Plaintiff [appellant] is entitled to a judgment as a matter of law.”
In Neel v. Citizens First State Bank of Arkadelphia, 28 Ark. App. 116, 120, 771 S.W.2d 303, 305 (1989), this court said:
Appellant’s argument that issues of fact remain .to be tried is entirely inconsistent with her position below. First, appellant offered no proof in response to appellee’s affidavits and exhibits. Second, appellant clearly waived this issue and agreed with appellee that no material issues of fact remained for trial. Accordingly, appellant may not assert this argument on appeal. See Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 401, 664 S.W.2d 886 (1984) (one may not complain of action he had induced, consented to, or acquiesced in).
We think the cases are entirely reconcilable. The case which comes closest to explaining the distinction is Schlytter v. Baker, 580 F.2d 848, 849-50 (5th Cir. 1978):
Appellant is not estopped by the mere filing of his motion for summary judgment from now asserting that there are genuine issues of fact. As a general rule the filing by both parties of opposing motions for summary judgment will not warrant a court’s granting either party’s motion if, indeed, there exists a genuine factual dispute concerning a material issue. . . .[T]he rationale of this rule lies in the fact that each party may be basing its motion on a different legal theory dependent on a different set of material facts.
When the parties proceed on the same legal theory and on the same material facts, however, the basis for the rule disappears. Thus, in qualifying the general rule, this Court has said:
Nonetheless, cross motions may be probative of the non-existence of a factual dispute when, as here, they demonstrate a basic agreement concerning what legal theories and[ material facts are dispositive.
(Citations omitted.)
In the case at bar, trial counsel for the appellants, during his argument on the cross motions for summary judgment made it clear to the trial court that the dispute between the parties focused on which consumer price index applied and that that issue was ready for the court to decide as a matter of law. Here, as in Schlytter, the parties proceeded on the same legal theory and the same material facts. Although we do not believe the trial judge was thereby bound to grant summary judgment to one side or the other, under the circumstances presented here the appellants may not argue that the court erred in deciding the issue as one of law.
Affirmed.
Mayfield and Cooper, JJ., dissent. | [
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James R. Cooper, Judge.
The appellee in this civil case filed a petition to quiet title to property originally owned by the parties as tenants by the entirety. The chancellor denied the appellee’s petition, holding that the property was incapable of division in kind and ordering that it be sold. After payment of costs and attorney’s fees, the proceeds were to be used to reimburse the appellee for the mortgage and tax payments she had made since December 14, 1983; any remaining proceeds were to be divided equally between the parties. The chancellor also awarded the appellee an attorney’s fee of $1,000.00. The appellant brings this appeal from the chancellor’s distribution of the proceeds. The appellee cross-appeals the denial of her quiet title petition. We find merit in the appellee’s argument on cross-appeal and reverse and remand.
The appellee sued the appellant for divorce on October 24, 1983. In her complaint, the appellee alleged that “[t]here is property in dispute, which will require distribution by the court.” The appellant was duly served with the complaint but failed to answer. On December 14, 1983, the chancellor awarded the appellee a decree of divorce. In the decree, the chancellor held that “the home formerly occupied by the parties in Earle, Arkansas, was and is the sole, absolute property of the appellee, and the appellant has no interest in said property of any nature.” The appellant received a copy of this decree several days after it was entered but did not appeal. Thereafter, the appellee and the parties’ minor children continued to occupy the Earle property, and the appellee paid all the taxes and mortgage payments on the property as well as made improvements to the property. On March 1, 1992, the appellee petitioned the Crittenden County Chancery Court to quiet title to the Earle property in her, alleging that she had acquired absolute title to the property by a decree of divorce, entered December 14, 1983. The appellant denied that the appellee was entitled to have title quieted in her and counterclaimed, alleging that the Earle property was owned by the parties as tenants by the entirety until their divorce, at which time their ownership converted to a tenancy in common. The appellant prayed that the property be sold and the proceeds divided according to the interests of the parties.
At trial, the appellee argued that title to the property should be quieted in her under four separate theories: res judicata, adverse possession, estoppel, and laches. The appellant argued that the chancellor did not have the authority to award property held as tenants by the entirety solely to the appellee as her separate property and, therefore, the award was void and ownership of the property was converted to a tenancy in common. The appellant’s attorney further argued that the divorce decree did not apply to the Earle property.
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. 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, 175-76 (1993); however, a judgment by default is just as binding and enforceable as a judgment entered after a trial on the merits in a case, and a defense not presented before the entry of a default decree is barred by the doctrine of res judicata. Williams v. Connecticut Gen. Life Ins. Co., 26 Ark. App. 59, 61, 759 S.W.2d 815, 817 (1988).
The appellant admitted at trial that he had been timely served with the appellee’s complaint for divorce and that he received a copy of the final divorce decree several days after it was entered. The appellant testified that he recalled being served with the divorce complaint and that the complaint stated there was property in dispute which would require distribution by the court. He stated that the parties had some personal property but the house was the only real property they owned. He testified that he had read the provision in the divorce decree awarding the Earle property to the appellee but stated he did not believe it because he knew his name was on the deed. Although he admitted that the divorce decree stated he had no interest in the property and he knew that the property had been awarded to the appellee, he testified that he did not appeal the divorce decree nor did he attempt to bring the matter up before the court. The evidence reflected that, after the parties were divorced, the appellant was back in court on several occasions for arrearages in his child support obligation and for his petition to change custody.
We agree with the appellee that the doctrine of res judicata barred the appellant from asserting a claim to the property. The evidence is undisputed that appellant was properly served with the summons and complaint in the divorce action, he did not file an answer, he did not appear at trial, and he did not appeal from the divorce decree even through he had notice that it awarded the Earle property to the appellee as her sole property.
Arkansas Statutes Annotated § 34-1215 (Supp. 1985), which controlled the dissolution of estates by the entirety at the time of the parties’ divorce, provided that, when a chancery court in this state renders a final decree of divorce, any estate by the entirety in real property held by the parties to the divorce shall be automatically dissolved unless the court order specifically provides otherwise and, in the division and partition of said property, parties shall be treated as tenants in common. Although the chancellor may have erred in awarding the property to the appellee as her sole property, his decision was not outside the jurisdiction of the chancery court and could not be collaterally attacked. When a judgment becomes final,, it is protected by the common law principle of res judicata, and the findings and orders of the decree cannot later be collaterally attacked, even if the judgment is erroneous. Ford v. Ford, 30 Ark. App. 147, 151-52, 783 S.W.2d 879, 881 (1990); Nelson v. Nelson, 20 Ark. App. 85, 87, 723 S.W.2d 849, 850 (1987); Gideon v. Gideon, 268 Ark. 873, 875-76, 596 S.W.2d 367, 368 (Ark. App. 1980). The appellant did not appeal the decree of divorce within the time permitted by law. He therefore should not have been allowed to challenge the appellee’s ownership of the property eight years later, and the appellee’s petition for quiet title should have been granted.
Because we are reversing on the appellee’s cross-appeal, the appellant’s issue on appeal is rendered moot, and we need not address that issue. The judgment of the chancellor is reversed and remanded with instructions to enter a decree consistent with this opinion.
Reversed and remanded.
Pittman, J., not participating. | [
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John E. Jennings, Judge.
Donald Ray Reese pled guilty to theft of property on January 13, 1984. The court suspended imposition of sentence for a period of 5 years, conditioned upon good behavior and the payment of a $500.00 fine and $4,000.00 in restitution, payable at the rate of $100.00 per month.
On August 5, 1987, the court conducted a hearing on the State’s petition to revoke appellant’s suspended sentence, the fourth such petition filed since the date of the plea. At that hearing the State offered into evidence, without objection, the appellant’s payment record, and the appellant then testified. The trial court found an inexcusable violation of the condition requiring appellant to make monthly payments toward the restitution and fine, revoked his suspended sentence, and sentenced him to 17 months in the Department of Correction. On appeal, it is argued that the trial court’s judgment was against the preponderance of the evidence. We find no error and affirm.
Arkansas Statutes Annotated § 41-1208 (Repl. 1977) (now Ark. Code Ann.§ 5-4-309 (1987)) provides that if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with the conditions of his suspension, it may revoke that suspension. In a revocation proceeding the State must prove its case by a preponderance of the evidence. Smith v. State, 9 Ark. App. 55, 652 S.W.2d 641 (1983). On appeal we do not reverse the trial court’s decision to revoke unless it is clearly against the preponderance of the evidence. Brewer v. State, 214 Ark. 38, 621 S.W.2d 698 (1981). In testing the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986).
Preliminarily, appellant argues that the State has, in effect, shifted the burden of proof to the appellant by merely introducing the record of non-payment, and resting. We agree that where the alleged violation of the conditions of suspension or probation is a failure to make payments as ordered, the State has the burden of proving by a preponderance of the evidence that the failure to pay was inexcusable. See Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984). The burden of proof does not shift. However, once the State has introduced evidence of non-payment, the burden of going forward does shift to the defendant to offer some reasonable excuse for his failure to pay. See Brown v. State, 10 Ark. App. 387, 664 S.W.2d 507 (1984). To hold otherwise would place a burden upon the State which it could never meet — it would require the State, as part of its case in chief, to negate any possible excuses for non-payment.
The evidence offered by the State at the August hearing showed that appellant had paid a total of $200.00 during 1986 and a total of $100.00 in 1987. The record reflects that appellant was hospitalized for several days for depression in late February, 1986. Appellant testified that he was employed by a trucking company in Batesville and that he anticipated that he would make $26,000.00 during the next year. He had been employed as a trainee for the trucking company during 1986 and had made approximately $6,000.00. He testified that during the six months immediately preceding the hearing, he had been working 40 hours per week for the company and was making $3.35 an hour. He testified that his employer was confused as to where to send his restitution payments. He said that he had sent his sister an additional $200.00, but that she had failed to pay this toward his restitution. Appellant has a wife and two small children. He testified that the truck driving school he attended in 1986 had been more expensive than he anticipated. The primary reason he gave for paying only $200.00 in 1986 was that he was confused about his sentence. The primary reason he gave for his failure to pay in 1987 was that he had medical bills to pay, although he offered no testimony as to the amount of his bills or the amount of his payments.
On this evidence we think the trial court was justified in determining that appellant had not been making a reasonable effort to comply with the conditions of his suspended sentence. The trial court’s finding of an inexcusable failure to pay is not clearly against the preponderance of the evidence.
Affirmed.
Cracraft and Coulson, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Polk County Circuit Court. Appellant, Earl Orson Neble, appeals his conviction of driving while intoxicated, a violation of Arkansas Code Annotated § 5-65-103(a) (1987), and the sentence imposed therefor. We affirm.
Appellant was charged by information filed April 23,1987, with driving while intoxicated. The information further alleged that appellant had committed three previous offenses. Appellant was tried by a jury on March 11,1988, and convicted as charged. Being an habitual offender, he was sentenced to a term of four years in the Arkansas Department of Correction and fined $900.00. From the judgment of conviction comes this appeal.
For reversal, appellant raises the following points:
I.
The trial court erred in allowing the prosecution to introduce evidence of a DWI conviction in Hunt County, Texas, because the record is silent as to defendant waiving his right to counsel “intelligently, understandingly, competently, voluntarily, without pressure or coercion, by a person having full knowledge of his rights” and since the record is silent, compliance with these constitutional requirements cannot be presumed.
II.
The trial court erred by allowing the prosecution to make the improper closing argument in that appellant was unfairly prejudiced by the remarks, and the remarks were improper and immaterial to the issues before the jury.
III.
The trial court erred by allowing testimony which was cumulative, prejudicial, highly irrelevant, and introduced only to show a bad person or a person that should be punished.
IV.
The trial court erred by denying defendant’s motion for directed verdict based upon the state’s failure to meet its burden of proof as to defendant’s operating or being in actual physical control of a motor vehicle while intoxicated as required by Ark. Stat. Ann. § 5-65-103.
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 first address appellant’s final point.
Appellant challenges only the sufficiency of the evidence as to proof that appellant was operating or in actual physical control of a motor vehicle while intoxicated. Arkansas Code Annotated § 5-65-103(a) (1987) makes it unlawful and punishable “for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.” The state must prove beyond a reasonable doubt every element of the crime charged. Wortham v. State, 5 Ark. App. 161, 634 S.W.2d 141 (1982). Therefore, the state must prove not only that appellant was intoxicated, but also that he operated or was in actual physical control of a motor vehicle while intoxicated.
On the evening of April 19,1987, Mr. Raymond Yahn and his son heard an accident near their home. Mr. Yahn testified that he went to the scene of the accident and discovered a single car which had left the road, torn down fifty to sixty feet of fence and come to rest in a ditch. He testified that there were no occupants in the vehicle at the time he and his son arrived. After searching briefly for the driver, Mr. Yahn returned to his home and contacted Deputy Sheriff Bill Nelson at his home. Deputy Nelson also resided nearby. Deputy Nelson arrived at the scene and they began to search for the car’s occupant. Other law enforcement officials were also called to the scene. State Trooper Mickey Simmons testified that during his investigation of the accident he discovered that the car was registered in appellant’s name. While searching the area, Deputy Nelson received a dispatch that his wife had called to report that the man they were looking for had approached the Nelson residence requesting help because his car had broken down. Mrs. Nelson testified that the man requesting help, later identified as the appellant, was, in her opinion, drunk. She testified that his eyes were glazed, his clothing was disheveled, and that he had urinated on himself. By the time Deputy Nelson arrived at his home, appellant was gone. Testimony revealed that an extensive search ensued involving Mr. Yahn, Deputy Nelson, Sheriff Fred Neblick, and State Trooper Mickey Simmons. Mr. Yahn testified that he found the appellant lying face down in a ditch in a semi-conscious state approximately 300 feet from the wrecked vehicle. Trooper Simmons testified that appellant’s clothes were in total disarray, that he detected a very strong odor of alcohol about his person, and that appellant spoke with a slur and was belligerent. Trooper Simmons further testified that when he asked appellant if he was driving the vehicle, appellant replied that he was not. Appellant told Trooper Simmons that a man named “Bill,” whom he had met at a tavern, was driving, but that he did not know where “Bill” lived. Appellant was then taken to a nearby hospital for a blood alcohol test.
When the sufficiency of the evidence is challenged on appeal, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the verdict. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Substantial evidence has been defined as evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other; it must force or induce the mind to pass beyond a suspicion or conjecture. Phillips v. State, 11 Ark. App. 86, 703 S.W.2d 471 (1986). The fact that evidence is circumstantial does not render it insubstantial. Shipley v. State, 25 Ark. App. 262, 757 S.W.2d 178 (1988).
Appellant contends that upon the above facts the state failed to prove that appellant was the one driving the vehicle. Appellant did not testify at trial, but his explanation, given at the scene of the accident, was before the jury through other witnesses. However, decisions regarding the credibility of the witnesses are for the trier of fact, in this instance the jury, and the jury was not required to believe the explanation given by the appellant, who was the person most interested in the outcome of the trial. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). Furthermore, the appellate court need only consider testimony lending support to the jury verdict and may disregard any testimony that could have been rejected by the jury on the basis of credibility. Sparks v. State, 25 Ark. App. 190, 756 S.W.2d 911 (1988). The evidence revealed that the car was registered in appellant’s name, that appellant told Mrs. Nelson that his car had broken down rather than that he had been in an accident and that appellant left the Nelson residence when Mrs. Nelson notified the police. The jury could have concluded from the circumstances that appellant was the one driving the vehicle when the accident occurred without resorting to suspicion or conjecture. Therefore, the trial court did not err in failing to direct a verdict.
Appellant also argues that the trial court erred in allowing appellant’s sentence to be enhanced by a prior DWI conviction because the record is silent as to whether appellant knowingly and intelligently waived his right to counsel in that proceeding. While we agree that presuming waiver of counsel from a silent record is impermissible, and that introduction of a previous conviction where the record is silent in that regard is prejudicial error, McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974), we cannot agree that error was committed in the case at bar. The conviction of which appellant complains was obtained in Hunt County, Texas, in 1984. During the suppression hearing, appellant testified that he was not advised of his right to counsel at the time he entered his guilty plea. However, the record reveals otherwise. The certified document signed by appellant states in pertinent part:
On this day, this cause being called for trial, came the County Attorney for the State of Texas, and came the Defendant in person and by attorney, or attorney being waived, and the Defendant, having been arraigned, pleaded guilty to the Information herein, waived trial by jury and submitted this cause to the Court ....
Appellant specifically contends that because the statement does not indicate that he was advised of his rights, that he “knowingly and intelligently” waived his rights, or that he was offered counsel it should be treated as a silent record. We disagree. In Bryant v. State, 16 Ark. App. 45, 696 S.W.2d 773 (1985), we held that a certified copy of a prior conviction for DWI which stated that the appellant had “waived counsel,” was sufficient to show waiver of counsel because it was a certified part of the court record. See also, Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985). We see no reason to require more in this instance. We also note that appellant’s argument that the waiver was ineffective because he was unaware that a guilty plea could be used to enhance punishment for any subsequent conviction has been rejected by this court in Dickerson v. State, 24 Ark. App. 36, 747 S. W.2d 122 (1988). We find appellant’s point numbered one to be meritless.
Next, appellant argues that the trial court erred in allowing the prosecutor to make improper remarks during his closing argument. We disagree.
It is well settled that closing argument must be confined to questions in issue, the evidence introduced at trial, and all reasonable inferences and deductions which can be drawn therefrom. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied, 459 U.S. 1022 (1982). However, counsel is allowed some leeway with respect to making opening and closing arguments. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). The trial judge has a wide latitude of discretion in controlling the arguments of counsel, and rulings on argument will not be reversed in absence of clear abuse of that wide discretion. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984).
The remarks complained of were made by the prosecutor during his rebuttal closing argument. It is permissible to comment upon matters which were discussed or invited by the appellant’s preceding closing argument. Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982); Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). Because we agree with the appellee that the alleged improper remarks were invited by appellant’s, closing argument it is necessary to set out the relevant portions of both arguments. During her closing argument, appellant’s attorney made the following comments:
It’s important, it’s an important case. I would say it’s much better . . . for a person who is guilty to walk out of here than an innocent man to be convicted because we are just as safe as our neighbor . . . and we should always require the state to prove every element beyond a reasonable doubt and that’s for everybody’s safety. That’s for public safety and that’s what we’re upheld to do today.
During his rebuttal closing argument, the prosecutor stated:
[Appellant’s attorney] says that this is an important case. That is one area I agree with her. This is an important case, and if you buy this concocted story about this ficticious character, Bill, you are basically going to be opening the door to this defendant and every other drunk driver in the future [appellant’s attorney objects and moves. for a mistrial which is overruled] . . . that when they have a wreck, what they need to do is get out of. the car [appellant’s attorney renews her objection which is overruled] . . . and invent some ficticious beer drinking buddy, and try to lay all the blame off on him. Now, is that the kind of message that you want to give drunk drivers in the future. I think not, and that’s why I’m asking you to find [appellant] guilty.
The comments made by appellant’s attorney regarding the importance of the case and its relation to public safety invited the prosecutor’s remarks concerning his view on the impact the case could have on public safety. Furthermore, refusal to exclude expressions of opinion of the prosecuting attorney as to the effect of failure to properly enforce the law has been held not erroneous. Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972); Venable v. State, 156 Ark. 564, 246 S.W. 860 (1923). The trial court was in a better position to evaluate any possible prejudice from the statements and we cannot say he abused his discretion in denying appellant’s motion for a mistrial.
Finally, appellant argues that the trial court erred in admitting evidence which was cumulative, prejudicial, and irrelevant. Over objection, Trooper Simmons was allowed to testify regarding appellant’s demeanor and conduct at the hospital emergency room. Trooper Simmons testified in general that appellant was very uncooperative; that he was loud and boisterous; that he was using foul language; that he refused medical assistance; and that he had to be restrained in order for the doctor to examine him. The state contends that the evidence was relevant to show intoxication. Appellant essentially contends that because evidence of intoxication had been previously shown and well established and because appellant did not dispute intoxication that the testimony was needless and merely exposed the appellant to ridicule in an attempt to show that he was a bad person. The fact that evidence is cumulative or unnecessary does not, of itself, make it inadmissible. See Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). Nor can a party prevent the introduction of relevant evidence simply by stipulating to facts. See Henderson v. State, 291 Ark. 138, 722 S.W.2d 600 (1987). We agree with the state that Trooper Simmons’ testimony was relevant to the element of intoxication. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Wood v. State, 20 Ark. App. 61, 724 S.W.2d 183 (1987). On the record before us, we cannot conclude that the testimony resulted in the unfair prejudice of which the rule speaks, and therefore, we find no abuse of discretion.
Affirmed.
Jennings and Coulson, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal from the Pulaski County Chancery Court arises out of divorce proceedings. The parties had been married for a good number of years, had two children, and had accumulated considerable assets during their marriage. We dismiss because we find that the order appealed is not appropriate for appeal pursuant to Rule 2 of the Arkansas Rules of Appellate Procedure.
The facts are essentially undisputed. During the course of the divorce action below, the appellant signed the appellee’s name to state and federal income tax refund checks totaling $56,668.71, cashed in an insurance policy for $14,739.96, and disposed of other items of marital property. The appellee sought to have the appellant held in contempt for disposing of these marital assets in violation of a standing restraining order of the court which enjoined the parties from disposing of marital assets except in the ordinary course of business. The appellant admitted to dealing with the assets as alleged but contended that he had done so in the ordinary course of business for the purpose of attending to marital debts. After a hearing on the matter, the chancellor found appellant in contempt but imposed no sanctions. The appellant was, however, ordered to make a payment on a martial debt obligation and restore $62,408.67 to the pool of marital assets for later division and distribution by the court. This appeal is from that order.
Rule 2 of the Arkansas Rules of Appellate Procedure provides in pertinent part that:
(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court;
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;
3. An order which grants or refuses a new trial;
4. An order which strikes out an answer, or any part of an answer, or any pleading in an action[.]
In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Epperson v. Biggs, 17 Ark. App. 212, 705 S.W.2d 901 (1986). While this court has held that a finding of contempt is appealable because it constitutes a final disposition of the contempt matter as between the appellant and the court, Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985), no sanctions were imposed in the case at bar. Here, as in Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967), there was not merely a postponement of a sanction but a complete remission of the contempt. Therefore, there is no basis for appellate relief on the contempt issue.
The record reflects that this case remains pending in the court below; no final judgment or decree has been entered; there has been no order which is determinative of the divorce action between the parties; and no punishment was imposed on the appellant. Because the order is not appealable under Rule 2, the appeal is dismissed.
Dismissed.
Cooper and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The parties in this civil case were divorced by a decree of the Cross County Chancery Court entered August 27, 1986. The decree incorporated the parties’ property settlement, child support, and child custody agreement. On December 3, 1986, the appellee filed a motion alleging that certain marital property had not been divided in the August 27 decree, and asking that the property be distributed. After a hearing, the chancellor entered an order dated April 7, 1987, dividing corporate stock and a profit sharing account which were not distributed in the original decree. From that decision, comes this appeal.
For reversal, the appellant contends that the distribution of his stock and profit sharing account was an impermissible modification of the property settlement agreement, and that the chancellor erred in distributing that property in the absence of a finding of fraud, duress, or mutual mistake. We reverse.
The property settlement agreement recites that the parties intended by that instrument to make a complete and final settlement of all the property owned by them. Separate clauses divide specific items of marital property between the parties. These contain detailed lists of the property divided; for example, the personal property allotted to the appellee includes twenty categories of items ranging from furniture and major appliances to miscellaneous houseplants and the family pet. Elsewhere the agreement provides for distribution of the house, auto, and linens for the master bedroom. Neither the stock nor the profit sharing plan are mentioned in the agreement, and the agreement contains no residual clause or other provision dealing with property not specified in the agreement.
The appellant first argues that the property settlement was an independent contract which the chancellor lacked authority to modify, and that the chancellor thus erred in amending the decree to provide for division of the stock and profit sharing account. The appellee concedes that the property settlement was an independent contract. As a general rule, the parties to a divorce action may enter into an independent agreement to settle property rights which, if approved by the court and incorporated into the decree, may not be subsequently modified by the chancellor. Law v. Law, 248 Ark. 894, 455 S.W.2d 854 (1970). Assuming that the property settlement was such an independent contract, we disagree with the appellant’s argument. We think that the chancellor correctly found that the stock and profit sharing plan were outside the terms of the agreement, and that the amendment of the decree to provide for their distribution did not constitute a modification of an independent contract. The terms of the agreement and the intention of the parties determine whether a property settlement between husband and wife covers all property owned by the parties. Jones v. Jones, 236 Ark. 296, 365 S.W.2d 716 (1963); 42 C.J.S. Husband & Wife § 598 (1944). The property settlement agreement in the present case recited that it was intended to be a complete settlement of all the property owned by the parties, yet failed to mention or provide for the stock and profit sharing account, assets worth approximately $66,000.00. The existence of these assets makes the meaning of the facially unambiguous contract uncertain, and this gives rise to a latent ambiguity. See Countryside Casualty Co. v. Grant, 269 Ark. 526, 601 S.W.2d 875 (1980). Parole evidence is admissible both to bring out the latent ambiguity and to explain the true intention of the parties. Id. At the hearing, the testimony regarding whether the stock and profit sharing account was discussed or intended to be part of the agreement was in conflict. Both the existence of a latent ambiguity and conclusions concerning the true intention of the parties primarily involve issues of fact, and the chancellor’s decision on these issues will not be reversed unless the findings are clearly erroneous. Countryside Casualty Co. v. Grant, supra. On this record, we hold that the chancellor was not clearly erroneous in finding that the parties did not intend to include the stock and profit sharing account in the property settlement agreement, and we conclude that the amendment of the original decree was therefore not a modification of an independent contract. We emphasize for the sake of clarity that our discussion of the remaining points is based on our holding that the amendment to the decree did not modify the independent contract: the remainder of this opinion is not concerned with the law governing contractual property settlements, but rather involves principles relating to amendment or modification of a non-contractual divorce decree.
Next, the appellant contends that the chancellor erred in distributing the stock and profit sharing account in the absence of fraud, mutual mistake, or other invalidating grounds. The appellee asserted fraud in her motion for distribution, but the record clearly shows that the evidence failed to establish fraud: there was evidence that the parties were married on August 3, 1964; divorced on August 27,1986; and that the stock and profit sharing account was derived from the appellant’s twenty-three years of employment at Halstead Industries. Moreover, the appellee admitted that she was fully aware of the existence of stock and profit sharing account at the time the agreement was executed, and she stated that she would most likely have agreed to the appellant’s retention of this property even had it been discussed. The chancellor made no finding of fraud, but instead found that the stock and profit sharing account had not been provided for in either the property settlement or decree, and concluded that he was required to divide this undistributed marital property. This conclusion was based on the Missouri case of Schulz v. Schulz, 612 S.W.2d 380 (Mo. App. 1980), which held that, under the Missouri statute governing disposition of property in divorce, the trial court is obliged to determine and divide marital property, and the jurisdiction of the trial court is not exhausted until it has done so. 612 S.W.2d at 382. The Missouri appellate court also held that, although a divorce decree is final and not subject to modification as to property distributed by the decree, the trial court nevertheless has jurisdiction in a subsequent or ancillary proceeding to distribute the remaining undistributed property.
Although the Schulz rationale has, at first blush, some appeal, the principles enunciated in that case are not in accord with Arkansas statutory or case law in this area, and we decline to adopt its holding. First we note that the Missouri statute discussed in Schulz, Mo. Ann. Stat. § 452.330 (1986), does not specify when the trial court must set aside and dispose of the marital property. In contrast, Ark. Stat. Ann. § 34-1215 (Supp. 1985), now codified at Ark. Code Ann. § 9-12-315 (1987), requires that marital property be divided at the time the divorce is granted. Moreover, we have held that a chancellor loses the authority to distribute property not mentioned in the original decree after the decree has become final. See Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983).
For these reasons, we agree with the appellant’s argument that § 34-1215 does not authorize a division of marital property after the divorce decree has been entered, in the absence of fraud or other grounds for relief from the original judgment. As we have noted, our statute requires that marital property be divided at the time the divorce is granted. On the basis of this statutory requirement we have held that failure to assert rights in a retirement fund in the divorce action, or to appeal from the trial court’s failure to effect the statutorily mandated property division in the divorce decree, results in a waiver of the party’s rights to the property where the asserted property interest is based solely on the marital relationship. Mitchell v. Meisch, 22 Ark. App. 264, 739 S.W.2d 170 (1987). The appellee asserts no title interest in the stock or profit sharing account, asserted no rights in this property at trial, and brought no appeal from the chancellor’s failure to divide the property in the original decree.
Moreover, the appellee’s motion for distribution of the stock and profit sharing account was filed December 3,1986, more than 90 days after the filing of the original divorce decree on August 27, 1986. After the expiration of the 90-day period provided for in A.R.C.P. Rule 60(b), a chancellor lacks jurisdiction to distribute property not mentioned in the original decree if grounds for modifying a judgment after 90 days are absent. Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983). We note that the appellee asserted fraud in her motion for distribution, and that the chancellor had jurisdiction to act on such a motion even though the 90-day period had expired. See A.R.C.P. Rule 60(c)(4). The chancellor’s order amending the original decree was not based on a finding of fraud, however: instead he concluded in his opinion that by specifically retaining jurisdiction for all future proceedings in the original decree, he retained the authority to amend the decree despite the absence of grounds for setting aside a judgment after 90 days under Rule 60(c). We hold that this conclusion was erroneous. A general reservation of jurisdiction will permit modification of a decree after 90 days only with respect to issues which were before the trial court in the original action. Cox v. Cox, 17 Ark. App. 95A, 705 S.W.2d 902 (1986) (supp. op. on reh’g denied); see 24 Am. Jur. 2d Divorce and Separation § 958 (1983). In Cox, the issue of tax liability was considered by the chancellor before the original decree was issued. The present case differs in that the stock and profit sharing account were never before the chancellor until the motion for distribution was filed, more than 90 days after the original decree was issued. We conclude that, although the chancellor properly could have amended the decree based on a finding of fraud, he lacked jurisdiction to do so in the absence of such a finding or other grounds for modifying a judgment after 90 days. The appellee’s claim to the disputed property is based solely on the marital relationship. Because this claim was not advanced at trial, no appeal was brought from the chancellor’s failure to divide the property, and no grounds for modifying the decree after 90 days have been established, we hold that the appellee waived any rights she may have had in the stock and profit sharing account, and that the chancellor erred in amending the decree to distribute this property. Mitchell v. Meisch, supra.
Reversed and remanded.
Coulson and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellants in this guardianship case appeal from the probate court’s denial of their petition to set aside an order permitting transfer of the ward’s assets into an irrevocable trust in which the ward’s previous guardian had a beneficial interest. The appellants contend that the transfer of the ward’s assets into the guardian’s trust was incompatible with the guardian’s duties to the ward and her estate, and that the probate court’s prior order authorizing the transfer should have been set aside. We affirm.
The record shows that Josiah Bilheimer filed a petition in 1986 alleging that his wife, Carol Bilheimer, was incapacitated by Alzheimer’s Disease. Josiah was appointed to serve as guardian of Carol’s person and estate on May 12,1986. In the order of appointment, the probate court found that Carol owned separate property consisting of eleven shares of General Motors stock, twelve shares of Ford Motor stock, and a $3,000.00 certificate of deposit. The court also found that Carol and Josiah jointly held property valued at $150,000.00.
On November 13, 1986, the probate court granted Josiah’s petition to sell certain property, finding that it was in Carol’s best interest to authorize Josiah to convey all property interests owned or held by Carol, to the First National Bank and Trust Company of Rogers, Arkansas, in its capacity as trustee of the Josiah Bilheimer Irrevocable Trust. The irrevocable trust provided for trust income to be paid, at the trustee’s sole discretion, for Carol’s benefit. Any remaining income was, by the terms of the trust instrument, to be paid to Josiah. Moreover, the trustee was authorized to make payments of the trust principal to Josiah at his direction. Trust assets remaining after the deaths of Josiah and Carol were to be distributed to Rosalind Hunter Biggs or, if Ms. Biggs was no longer living, to Josiah’s heirs at law.
Josiah died on December 12, 1986. Mary Smart, Carol’s nearest living relative, was appointed Carol’s temporary guardian on January 29, 1987, and permanent successor guardian on February 19,1987. On December 19, 1987, Mary Smart, in her capacity as successor guardian, filed a pleading alleging that the November 13, 1986, order authorizing the transfer of Carol’s property to the trustee of the irrevocable trust was not in Carol’s best interest, and asking that the order be set aside. On December 24,1987, the probate court found that the order of November 13, 1986, should not be set aside, and this appeal ensued.
We initially note that the appellees have contended that the time for appeal from the order of November 13,1986, has run under Ark. R. App. P. 4, and that this appeal is therefore barred. We find no merit in this contention, because this appeal is not brought from the November 1986 order per se, but rather from the order of December 24, 1987, in which the probate court denied the motion to set aside the earlier order. The record shows that the notice of appeal was filed on January 10,1988, within the thirty-day period provided for in Ark. R. App. P. 4(a).
The appellees also argue that, because the appellant, Mary Smart, waived notice of all hearings and proceedings prior to her appointment as successor guardian, she now lacks standing in her capacity as successor guardian to challenge the order permitting the transfer of the ward’s property to the irrevocable trust. We disagree. Unless expressly restricted to decedent’s estates, the provisions of Ark. Code Ann. § 28-1-113 (1987) are applicable to guardians. See Ark. Code Ann. § 28-65-103(a) (1987). Section 28-1-113 provides that a written waiver by an interested party is effective when made by a legally competent person in his own behalf. Mary Smart is not a party to this action in her own behalf, however, but rather in her representative capacity as successor guardian, and we hold that her personal waiver does not bar her from challenging the order on behalf of the ward where her personal waiver was executed prior to her appointment as successor guardian.
The appellant contends that the probate court erred in denying the motion to set aside the order permitting Josiah to transfer his ward’s assets to the trustee of the irrevocable trust. We do not agree, because it is apparent that there were no grounds which would authorize the probate court to set aside the order of November 13, 1986, over one year after it had been entered. The appellant, citing Crider v. Simmons, 192 Ark. 1075, 96 S.W.2d 471 (1936), contends that the transfer of Carol’s property into the irrevocable trust constituted fraud per se. Even assuming, arguendo, that the transfer was fraudulent per se, we find no error. Rule 60(c)(4) of the Arkansas Rules of Civil Procedure authorizes the trial court to modify or vacate an order, at any time, for “fraud practiced by the successful party in obtaining the judgment.'''’ (Emphasis supplied). The Rule thus permits vacation or modification of an order after 90 days only in cases of fraud practiced upon the court in obtaining the judgment. See Summers v. Mylan, 287 Ark. 150, 697 S.W.2d 91 (1985); Turner v. Turner, 221 Ark. 932, 257 S.W.2d 271 (1953). The record shows that Josiah included a full text of the irrevocable trust agreement in his November 13,1986, petition to transfer his ward’s property to the irrevocable trust. The fact that the trial court may have reached an erroneous conclusion is not a sufficient basis for setting aside a judgment after 90 days, in the absence of evidence to support a finding that the judgment was obtained through fraud, practiced on the court, by the successful party. See Field v. Waters, 175 Ark. 1169, 1 S.W.2d 807 (1928). Because there is no such evidence in the record of the case at bar, we hold that the trial court lacked authority to set aside the judgment after 90 days, and therefore did not err in refusing to set aside the November 13, 1986, order authorizing the transfer of Carol’s property to the irrevocable trust.
Affirmed.
Coulson and Jennings, JJ., agree. | [
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John E. Jennings, Chief Judge.
Stuttgart Memorial Hospital obtained a judgment against Mrs. Beulah Maloy for $7,700.00. On September 16,1991, the hospital served a writ of garnishment on Farmers and Merchants Bank bf Stuttgart, seeking to garnish two certificates of deposit totaling $8,600.00 held jointly by Mrs. Maloy and her mother, India Ola Glover. Mrs. Maloy filed a motion to quash the writ, alleging that the money represented by the certificates belonged solely to her mother. The court held a hearing on the motion.
Mrs. Glover testified that she was the mother of three children, Beulah Maloy, Bill Glover, and Leola Jolly. She said that she sold various items of personal property after her husband died in 1978. On the advice of a banker she put the money in certificates of deposit. She said she “tried to divide it evenly into the kids’ names so if I went into a nursing home it would be the kids.” Mrs. Glover testified that none of her children had ever taken any money from the certificates of deposit.
On cross-examination she stated that she had put her children’s names on the certificates “to keep the money away from other people, if I go to a nursing home or something like that, because I had always heard that they can take your home or whatever money you have and I didn’t want that to happen.” She testified that she knew the children “could get [the money] right now if they want to,” but that she trusted them not to do so.
Mrs. Glover’s son, Billy, testified that Mrs. Glover had never told him the money was his and that he never considered the money to belong to anyone other than her.
Mrs. Maloy testified that the money represented by the certificates was her mother’s and that she had never “exercised or evidenced any ownership or control” of the money during the past thirteen years.
On this evidence the trial judge, without comment, denied the motion to quash the writ of garnishment. The sole argument on appeal is that this was error. We find no error and affirm.
The leading case in this state on the garnishment of joint bank accounts is Hayden v. Gardner, 238 Ark. 351, 381 S.W.2d 752 (1964). In Hayden the supreme court adopted the view “that the joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other.” The court held that “all of the joint bank account was prima facie subject to garnishment, and that the burden was on each joint depositor to show what portion of the funds he or she actually owned.”
It is true that certificates of deposit are subject to the same rules as other personal property when the question is whether a valid inter vivos gift has been made. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992). When the question is whether a gift has been made, the donee has the burden of proving by clear and convincing evidence all of the elements of an inter vivos gift, including actual delivery. See Irvin, supra; Wright v. Union National Bank, 307 Ark. 301, 819 S.W.2d 698 (1991); Phipps v. Wilson, 251 Ark. 377, 472 S.W.2d 929 (1971). But these are cases where the alleged donee is seeking to establish a gift.
In the case at bar the hospital was not required to prove an inter vivos gift from Mrs. Glover to Mrs. Maloy. It was not necessary to do so in view of the holding in Hayden v. Gardner that the joint account was prima facie subject to garnishment; i.e., there is a presumption that the money is owned by the judgment debtor. The hospital was not obliged to prove actual delivery, nor any other element of an inter vivos gift. Instead, the burden was on the joint account holders to persuade the court that Mrs. Maloy did not own the money represented by the certificate of deposit. Hayden, supra.
In the case at bar all of the witnesses who testified had an interest in the outcome of the litigation — Mrs. Maloy and Mrs. Glover were parties. The trier of fact is not required to accept the testimony of an interested witness. See Jones v. State, 308 Ark. 555, 826 S.W.2d 233 (1992). The trial court may also accept portions of the witnesses’ testimony and reject other portions. White v. State, 39 Ark. App. 52, 837 S.W.2d 479 (1992). Mrs. Glover’s testimony that she intended to put the money beyond the reach of her own creditors supports the trial judge’s decision. On the evidence presented we cannot say the trial court’s decision was clearly erroneous.
Affirmed.
Mayfield, Cooper, and Rogers, JJ., dissent.
Robbins, J., concurs. | [
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James R. Cooper, Judge.
The appellant, a black man, was convicted of rape by an all white jury. He was sentenced to ten years in the Arkansas Department of Correction. On appeal, the appellant argues that the jury selection was fundamentally unfair and a violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. We find no error and affirm.
During voir dire, the State asked if anyone on the panel had teenaged children. Prospective jurors, Allen McCurry and Donna Harris answered affirmatively. Next, the State asked if anyone on the panel had been a victim or knew someone who had been a victim of a crime. Ms. Harris explained that she had a goddaughter who had been raped in the last year and that the culprit had not been convicted. During further voir dire by the appellant’s counsel, Ms. Harris and Mr. McCurry stated they felt that if the appellant did not testify at trial, it would have an effect on how they evaluated the case. Counsel for the appellant stated to the court that due to their opinions, there was cause to excuse Ms. Harris and Mr. McCurry. However, the trial court did not rule on the matter at that point and told the appellant’s counsel to go ahead with his questions.
When Ms. Harris was further questioned, she stated that she would be sympathetic to the victim because her goddaughter had been raped. The appellant’s counsel asked that he might sequester Ms. Harris for voir dire outside the hearing of the rest of the panel. The trial court denied this request and proceeded to ask Ms. Harris: whether it was true that she would not convict the appellant because her goddaughter was raped; whether she would require the State to prove that the appellant was guilty beyond a reasonable doubt before she would convict him; and whether it was true that she would not try to get even with whomever raped her goddaughter by convicting the appellant. Ms. Harris replied affirmatively to all three questions. Ms. Harris further stated that she did not know whether her experience would have an impact on her evaluation of the victim but that she would be fair. Counsel for the appellant requested again to ask Ms. Harris questions in a sequestered setting. The trial court denied this request and told counsel to go ahead and ask the questions and that if he felt Ms. Harris could be a fair juror, he should accept her and if not, then he should excuse her. The appellant then exercised a peremptory challenge while taking exception to the trial court’s ruling, asserting that Ms. Harris should have been excused for cause.
Subsequently, counsel for the appellant stated that he did not know whether they had resolved the question concerning Mr. McCurry. In response to the trial court’s questioning, Mr. McCurry responded that he could give the State and the appellant a fair trial but that it would bother him personally if the appellant did not testify. The trial court then excused him.
Thereafter, another prospective juror, Nellie Hindman, was questioned. Counsel for appellant objected, arguing that if he had not had to use one of his peremptory challenges to strike Ms. Harris, then he would have been able to strike this juror.
The appellant argues that he was forced to utilize a peremptory challenge to unseat Ms. Harris, a black juror, when Mr. McCurry, a white juror who was similarly situated, was removed for cause. As an adjunct to this argument, he contends that because he was forced to peremptorily strike Ms. Harris, he lacked a peremptory challenge with which to strike Ms. Hindman.
In order to have preserved this point for appeal it must appear from the record that the trial court should have excused Ms. Harris for cause, not Ms. Hindman, the juror the appellant was forced to accept. Hilly. State, 275 Ark. 71, 628 S.W.2d 285 (1982); contra Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). The appellant must have exhausted his peremptory challenges and stated for the record that there was someone sitting on the jury that he would have stricken if he had another peremptory challenge. Hill, supra; Noel v. State, 28 Ark. App. 158, 771 S.W.2d 325 (1989).
Jurors are presumed unbiased and the burden of proving actual bias is on the party challenging the juror. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). A potential juror may be challenged for cause if he or she is actually biased. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). A venire person is actually biased if he or she cannot try the case impartially and without prejudice to the substantial rights of the party challenging. Id. This determination lies within the sound discretion of the trial court. Further, the trial court is in a superior position to access the demeanor of prospective jurors. Id. We find that Ms. Harris was sufficiently rehabilitated by the trial court so that we cannot say it was error to not strike her for cause.
The appellant contends that the selection of the jury was tainted because he was not allowed to sequester Ms. Harris and that the trial court refused to allow him to make a record in this regard. He also contends that the trial court improperly rehabilitated Ms. Harris.
Counsel for the appellant stated that he felt the questions he wanted to ask Ms. Harris would be prejudicial to the remainder of the panel. After the trial court denied his second request to sequester Ms. Harris, counsel for the appellant stated for the record that “there are questions that I am not going to ask in the presence of the remainder of the jurors, the entire panel. And the reason for my not following up those questions with Mrs. Harris is that I believe it would unduly prejudice Mr. Givens’ right to a fair trial.” In denying his request, the trial court stated that there was no evidence before the court as to any prejudice.
The decision to grant or deny sequestered individual voir dire is left to the discretion of the trial court. Leach v. State, 38 Ark. App. 117, 831 S.W.2d 615 (1992), aff'd 311 Ark. 485, 845 S.W.2d 11 (1993). Also, the extent and scope of voir dire in general is within the sound discretion of the trial court. We will not reverse the trial court absent a clear abuse of this discretion. Henry, supra. The appellant has not shown that he was prejudiced by the trial court’s ruling or in the trial court’s questions of Ms. Harris and we find no evidence from the record that the trial court refused to allow him to make a record regarding the matter.
The appellant next argues that the number of blacks on the venire panel was vastly disproportionate to the population as a whole because there were only three blacks on the thirty member panel from which the jury was selected. The 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. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). In order to establish a prima facie violation of the fair cross-section requirement, the appellant must show 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 jurors are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Id.
Here, the appellant clearly did not meet his burden of proof. From our review of the record, there is a lack of proof as to the racial makeup of the community and the jury panel, and there is no showing that the underrepresentation of blacks in the appellant’s jury panel is due to systematic exclusion in the jury selection process. Furthermore, the fact that there were only three black persons on the panel from which the jury in this case was selected does not mean the jury was selected in a way which would not result in a fair cross-section. Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989).
For his last argument, the appellant contends that the principle set out in Batson v. Kentucky, 476 U.S. 79 (1986), was violated when the State dismissed a black juror, Danny Austin. In Batson, the Supreme Court held that a criminal defendant has the right to be tried by a jury whose members are selected pursuant to a nondiscriminatory criteria. The Supreme Court further held that the Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied 111 S.Ct. 1123 (1991).
Under Batson, the appellant has the burden of establishing a prima facie case of purposeful discrimination. The prima facie case may be made by showing any one of the following: (1) the totality of the relevant factors gives rise to an inference of discriminatory purpose; (2) the total or seriously disproportionate exclusion of blacks from the jury venires; or (3) a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire. Wainwright, supra. Once a prima facie case is shown, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992).
The appellant argues that the State struck Mr. Austin without making any inquiry. However, the record reveals that Mr. Austin was questioned by the trial court and he admitted that he knew the appellant from school. Mr. Austin was struck by the State along with two other jurors, presumably not black. It was the appellant who struck the two other black jurors. From these facts we conclude the appellant failed to establish a prima facie case, but even if he had done so, the State clearly had a racially neutral reason for challenging Mr. Austin. Accordingly, we find no error and affirm.
Affirmed.
Jennings, C.J., and Robbins, J., agree. | [
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John E. Jennings, Chief Judge.
Tony Floyd Bookout was found guilty by a Lawrence County jury of theft by receiving and was sentenced to three years in the Arkansas Department of Correction. Prior to trial the court held a hearing on appellant’s motion to suppress evidence obtained in the search of a 1979 Dodge van that he was driving. The circuit court held that Bookout had no standing to contest the search because he had no proprietary interest in the van. We agree with the appellant that this ruling was in error.
On August 30,1991, Bookout was drivinga 1979 Dodge van when he was stopped by State Trooper Steve Coleman. The trooper searched the van and obtained incriminating evidence. Following a hearing on Bookout’s motion to suppress, the court found that, at the time of the arrest, Bookout was living with a woman named Dorothy Hefner and that they had a child; that Bookout had no ownership interest in the van (it belonged to Ms. Hefner); that the van had been loaned to him on various occasions; that for the two weeks immediately preceding his arrest, Bookout was in exclusive possession of the van; and that the van was used by him to make an income and to help support the family. The court held that he had no standing to challenge the search because he had no proprietary interest in the van.
The decision here is clearly governed by State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990). There the court said:
The doctrine of standing to invoke the fourth amendment exclusionary rule has evolved to focus on a defendant’s substantive fourth amendment rights. State v. Hamzy, 288 Ark. 561, 564, 709 S.W.2d 397, 398 (1986); Rakas v. Illinois, 439 U.S. 128, 140 (1978). Accordingly, evidence should be excluded when the court finds that an unlawful search or seizure violated the defendant’s own constitutional rights, and his rights are violated if the challenged conduct invaded his legitimate expectation of privacy. Johnson v. State, 303 Ark. 12, 18, 792 S.W.2d 863, 866 (1990); Rakas v. Illinois, 439 U.S. 128, 138-40 (1978). In Rakas, supra, the Supreme Court made clear that a defendant can have a reasonable expectation of privacy in the area searched, or the object seized, if he can show a possessory interest in them.
If the owner of a vehicle has turned it over to another person for some period of time, that person has standing to challenge a search of the car during the bailment. 4 W. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 11.3(e), at 334 (2d ed. 1987). In United States v. Ochs, 595 F.2d 1247 (2d Cir. 1979), the court held that the appellant had a possessory interest in the searched vehicle because the owner allowed him to use it whenever he wished and he freely availed himself of that privilege. The appellant had permission to use the car and had a key to it. Id. at 1253. A person may have a legitimate expectation of privacy in a place or object he does not own. U.S. v. Perez, 689 F.2d 1336, 1338 (9th Cir. 1982); U.S. v. Reyes, 595 F.2d 275, 278 (5th Cir. 1979).
In sum, Villines and Miller were lawfully in joint possession of the car and had a reasonable expectation of privacy in its trunk. The trial court correctly ruled that they had a possessory interest in thg car sufficient to give them standing to challenge the search of it on fourth amendment grounds.
See also State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992).
The trial court apparently relied on Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990). There, the supreme court held that the defendant bears the burden of proving that he had a legitimate expectation of privacy in an automobile. In Fernandez the court found that the appellant never showed that he “lawfully owned or possessed the car.” In the case at bar, however, the trial judge expressly found that Bookout was in lawful and exclusive possession of the van. It follows that Bookout had standing to challenge the search of the van.
Reversed and remanded.
Cooper and Robbins, JJ., agree. | [
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Judith Rogers, Judge.
Robert and Betty Ann Gardner appeal from a decree granting their request for quiet title but denying their claim for damages for conversion. On appeal, appellants contend that the chancellor erred in refusing to award damages for conversion. We find merit in their argument and reverse.
On June 12, 1991, appellants filed a complaint in the chancery court seeking to quiet title in certain property located in Jackson County. Appellants alleged ownership of the described property by virtue of a warranty deed which was attached as an exhibit to the complaint. Appellants also averred that appellee claimed ownership of this property and that he had removed valuable stone from the land. For the extraction of the stone, appellants claimed entitlement to damages in conversion and also treble damages pursuant to Ark. Code Ann. § 18-60-102(a) (1987). Appellee filed an untimely answer to the complaint.
At the outset of the hearing, appellants’ counsel informed the chancellor that appellee was in default due to the lateness of his answer, and asserted that the only matter at issue was the amount of damages to be awarded appellants for the conversion of the stone. Appellee acknowledged that his response to the complaint was untimely and no excuse was offered for the lateness of his answer.
On the question of damages, appellant presented the testimony of Arno Shuman. Mr. Shuman testified that in the spring of 1991, appellee approached him with the idea of removing stone from the property. According to Shuman, it was agreed that Shuman and his sons would provide the labor, while appellee would supply the fuel and necessary equipment. Shuman stated that he and his sons removed ten truckloads of stone, which was sold to a man in Mississippi at $200 a load, for a total of $2,000. He said that he and appellee split the profits. Shuman further testified that the land had the appearance of a mining company having gone through it and that appellee related that he had removed twenty-five to thirty loads of stone from the land on previous occasions. Shuman also said that appellee advised him that there existed a controversy with appellants over the ownership of the land.
In his testimony, appellee stated that Mr. Shuman approached him about removing stone from land owned by one of Shuman’s relatives. He testified that he did provide equipment for a share of the proceeds, but he denied having directed Shuman to the location from which the stone was to be taken.
Over appellants’ objection, the chancellor allowed appellee’s witness, Dewayne Jones, to testify that he owned the land from which the stone was removed. In overruling appellants’ objection, the chancellor commented that “[d]amages goes to what was taken from the land, and they’re entitled to have a defense whether it was taken from this land or somebody else’s land.” At the conclusion of the hearing, the chancellor took the case under advisement, and later issued an order quieting title to the described property in appellants, but declining to award damages for conversion of the stone.
In this appeal, appellants argue that the chancellor erred in considering the testimony which was offered to circumvent the allegations in the complaint. They contend that the averments in the complaint were admitted by the default and thus were not open for contest. Based on the allegations in the complaint and the proof submitted, appellants maintain that they were entitled to recover damages for the conversion of the stone.
The general rule is that in an inquiry of damages upon default, all of the plaintiffs material allegations are to be taken as true, and the determination of the amount of the damages to be awarded is all that remains to be done. Clark v. Collins, 213 Ark. 386, 210 S.W.2d 505 (1948). The plaintiff, of course, must introduce evidence to support any judgment for damages, in excess of nominal damages. Kohlenberger v. Tyson’s Foods, Inc., 256 Ark. 584, 510 S.W.2d 555 (1974). Although he is entitled to offer proof in mitigation of damages, a defaulting defendant may not controvert the plaintiffs right to recover as the default fixes the defendant’s liability on the plaintiffs cause of action. See id. See also e.g. Ferri v. Braun, 236 Ark. 329, 366 S.W.2d 286 (1963); Mizell v. McDonald, 25 Ark. 38 (1867); Thompson v. Haislip, 14 Ark. 220 (1853). As was more recently said by our supreme court in B&F Engineering, Inc. v. Controneo, 309 Ark. 175, 830 S.W.2d 835 (1992):
Under the Arkansas Rules of Civil Procedure a default judgment establishes liability but not the extent of damages. Proof is still required to establish the amount of damages except in suits in which a verified account has been submitted. After default the defendant has the right to cross-examine the plaintiffs witnesses, to introduce evidence in mitigation of damages, and to question on appeal the sufficiency of the evidence to support the amount of damages awarded. The defaulting defendant may not introduce evidence to defeat the plaintiff’s cause of action.
Id. at 181, 830 S.W.2d at 838-39 (citation omitted).
Conversion is a common law tort action for the wrongful possession or disposition of another’s property. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987). In order to maintain an action to recover damages for the conversion of property, the plaintiff must show title in the property so wrongfully taken or converted. Passwater Chevrolet Co. v. Whitten, 178 Ark. 136, 9 S.W. 1057 (1928). Here, the appellee’s liability for conversion was settled by the default. By failing to submit a timely answer, the appellee admitted the allegations in the complaint that appellants owned the property and that the stone was removed from the land in question. Under the authorities, proof to the contrary was not competent to defeat appellant’s cause of action. From the record, it appears that the chancellor was influenced by the testimony which was designed to avoid appellee’s liability. We, therefore, remand this case to the chancery court for the chancellor to determine the issue of damages on the record already made.
For purposes of remanding, however, we point out that we do not agree with appellants’ contention that they may recover treble damages for the removal of the stone pursuant to Ark. Code Ann. § 18-60-102(a) (1987). By proceeding in equity, rather than at law, appellants waived the consideration of an award of treble damages under the statute, as courts of equity will not aid in the enforcement of penalties. See Augusta Cooperage Co. v. Bloch, 153 Ark. 133, 239 S.W. 760 (1922).
Reversed and remanded.
Pittman, J., agrees.
Robbins, J., concurs. | [
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John B. Robbins, Judge.
Appellant Henry J. Price appeals from a decision of the Arkansas Workers’ Compensation Commission which found that appellant had failed to prove by a preponderance of the evidence that he suffered a compensable hernia on April 26, 1990. Because we agree with appellant’s contention that the Commission’s decision was not supported by substantial evidence, we reverse and remand to the Commission for an award of benefits.
In February of 1990, appellant tripped and fell at work, but reported no injury from this fall. Appellant testified that on April 26, 1990, when he was lifting loads of paper, he felt an “awful pain” in his side, in the groin area. He said he told a co-worker, then went to report to his supervisor, Allen Timms, and the personnel director, Shirley Johnson. Ms. Johnson filled out a report and made an appointment for appellant at the hospital the next day. At the time he reported his injury, appellant attributed the pain to his fall in February. After seeing a physician, appellant underwent surgery for hernia repair, and was off work from April 27, 1990, through July 24, 1990. Appellant sought temporary total disability benefits and medical and related expenses.
The Commission found that appellant failed to prove by a preponderance of the evidence that he suffered a compensable hernia while working for respondent in April of 1990. The Commission further stated that appellant failed to report to his employer or his physician an incident occurring on April 26, 1990.
The findings of the Commission must be upheld unless there is no substantial evidence to support them. Arkansas Department of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. International Paper Co. v. Tuberville, 302 Ark. 22, 27, 786 S.W.2d 830 (1990); see also Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
The requirements for establishing compensability of a hernia are set forth at Ark. Code Ann. § 11-9-523 (1987):
(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was sever pain in the hernial region;
(3) That the pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.
Because appellant first attributed his pain to his fall in February, that date was listed as the date of injury when the report was filled out. Appellant also did not complain to his physician of any injury occurring on April 26, 1990. However, even though appellant attributed his pain to the fall in February, his treating physician testified that he would say “with a high degree of medical certainty” that appellant’s hernia occurred on the day in April when appellant had the right groin pain, and not two months earlier.
In Siders v. Southern Mattress Company, 240 Ark. 267, 398 S.W.2d 901 (1966), the Commission’s opinion denying benefits stated:
Claimant did mention to his employer that his stomach was hurting, but according to the employer, claimant did not give any history of hurting himself on the job. Claimant went to Dr. Wenger that same day and Dr. Wenger’s testimony is that T have no record of any history of any specific injury . . . .’ Claimant’s failure to tell his em ployer of an on-the-job accident plus his failure to tell Dr. Wenger of any specific incident raises a serious question as to whether claimant in fact suffered an injury as alleged.
240 Ark. at 269. In reversing the denial of benefits, the supreme court said:
The commission imposed a heavier burden on appellant than the law calls for. Just as the Act does not require an immediate diagnosis, it also does not require that the claimant insist that the doctor’s history contain the gory details of the occurrence .... Appellant has established a prima facie case. From all the circumstances, there is no question but that the employer had timely and proper notice of the occurrence that caused the hernia. There is not substantial evidence to the contrary. Appellant is not required to give notice that he has a hernia — he is not a doctor — the statute merely requires that appellant give notice of the occurrence which resulted in a hernia.
240 Ark. at 269-271.
Allen Timms, appellant’s supervisor, testified that appellant came to him on April 26, 1990, and stated that he was “hurting pretty bad,” and that appellant said he had been “cutting back there on the knife and as he was bending over and straightening up and all and he got to hurting pretty bad, and didn’t think he ' could continue to run it.” Shirley Jones, personnel director for appellee, said that when appellant came to her to make his report, “he had said that his pain was quite bad, and he was holding his stomach.”
Appellant notified his employer of the occurrence resulting in a hernia when he told Allen Timms that he “got to hurting pretty bad” while bending and straightening over the knife. The employer had timely and proper notice of the occurrence that caused the hernia. We do not think that fair-minded persons with the same facts before them, could have concluded that appellant failed to prove by a preponderance of the evidence that he suffered a compensable hernia on April 26, 1990. We reverse and remand for proceedings not inconsistent with this opinion.
Reversed and Remanded.
Cooper and Mayfield, JJ., agree. | [
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Andree Layton Roaf, Judge.
Appellant Mark Barnett was convicted in municipal court of speeding and DWI. His de novo appeal to circuit court was dismissed for failure to proceed, when neither Barnett nor his attorney appeared at trial. On appeal, Barnett argues only that the circuit court erred in denying his motion to dismiss for failure to provide a speedy trial. The State contends that Barnett’s case is not properly before this court because his appeal from municipal to circuit court was untimely filed. We agree with the State and hold that the circuit court lacked subject-matter jurisdiction because Barnett did not timely appeal his municipal court conviction, and for this reason affirm the trial court’s dismissal of Barnett’s appeal.
Mark Barnett was convicted in Yell County Municipal Court of speeding and DWI on August 10, 1994. His notice of appeal to Yell County Circuit Court was filed thirty-five days later on Wednesday, September 14, 1994. The State did not move to dismiss the appeal. Barnett’s appeal was first dismissed for failure to appear for trial on August 15, 1995, but was reinstated by the trial court on October 3, 1995. Neither Barnett nor his attorney appeared when the case was next set for jury trial at 9:00 a.m. January 5, 1996. The trial court again dismissed Barnett’s appeal for failure to prosecute and dismissed the jury. When Barnett’s counsel later appeared approximately at 10:30 a.m., and sought a ruling on a speedy-trial motion filed the previous day, the trial court denied the motion, finding that it had not been timely presented because Barnett’s appeal had already been dismissed.
Barnett’s sole argument on appeal is that the trial court erred in calculating the time for speedy trial. He asserts, in essence, that the circuit court lacked jurisdiction to conduct trials and hearings after the time for speedy trial had run. However, we do not reach the merits of Barnett’s argument for two reasons.
First, as the State has correctly noted in its argument, Barnett failed to file his notice of appeal from municipal court to circuit court within thirty days, as required by Arkansas Inferior Court Rule 9(a). The State further contends that the circuit court therefore lacked jurisdiction over Barnett’s case. In his reply brief, Barnett argues that a notation entered by the municipal judge on his municipal court docket sheet, which reads “To be paid or appealed by 9-14-94,” extended his time to appeal beyond the thirty-day period allowed by Arkansas law. However, Barnett does not assert that he either sought or obtained an extension of time to file his notice of appeal, or otherwise explain why the docket entry is anything more than a deadline by which he was to pay his municipal court fine.
Barnett provides no authority for his argument and we do not agree that his time to appeal is extended by the docket entry. In Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994), the supreme court affirmed the circuit court’s dismissal of an appeal from municipal court for failure to file the record within thirty days of the municipal court judgment. Although Ottens argued that the State did not timely file its motion to dismiss, the court stated:
[Appellant] asks us to excuse his failure to comply with Rule 9 because the State did not file the motion to dismiss until after the filing period had expired. He explains that because of the delay, he had begun preparation for trial. The argument overlooks the fact that when the time for fifing an appeal is fixed by a rule or statute, the provision which limits the time is jurisdictional in nature. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989); Searcy County v. Holder, 257 Ark. 435, 516 S.W.2d 901 (1974). Because jurisdiction is the power or authority of a court to hear a case on its merits, it may be raised at any time. Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982). Jurisdiction may even be raised for the first time on appeal. Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). Consequently, the argument that preparation for trial had begun prior to the filing of the motion to dismiss on jurisdictional grounds is without merit.
Id. at 5, 871 S.W.2d at 331.
Moreover, Barnett’s appeal must fail for a further reason. Although Barnett argues only the merits of his speedy-trial motion, the circuit court’s dismissal of his de novo appeal was based on his failure to appear, and no trial was conducted. The trial court’s ruling in this regard is clear from the record and from the order entered that dismissed the appeal and remanded the case to municipal court.
Barnett’s brief and argument do not address, in any respect, the ruling made by the trial court to dismiss the appeal. Consequently, he does not argue that the dismissal, under the circumstances of his failure to appear, was an abuse of discretion or in any way erroneous. The appellant faded to demonstrate or even argue trial error regarding those findings; this court will not presume reversible error. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995).
Affirmed.
Robbins, C.J., and Griffen, J., agree. | [
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John B. Robbins, Chief Judge.
Appellant Grady Matthews was charged with capital felony murder in the shooting death of Don Wyrick. Appellant was convicted as an accomplice to first-degree murder and was sentenced to twenty years in the Arkansas Department of Correction. Appellant contends on appeal that the evidence is insufficient to support his conviction. We affirm.
In reviewing the sufficiency of the evidence in criminal cases, we consider the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the verdict. Boyd v. State, 54 Ark. App. 17, 922 S.W.2d 357 (1996). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). Circumstantial evidence alone may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). On appellate review, it is permissible for this court to consider only that evidence that supports the guilty verdict. Choate v. State, 325 Ark. 251, 925 S.W.2d 409 (1996).
Arkansas Code Annotated section 5-10-102 (Repl. 1993) defines murder in the first degree as follows:
(a) A person commits murder in the first degree if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human fife; or
(2) With a purpose of causing the death of another person, he causes the death of another person. . . .
Each conspirator or participant in the execution or attempted execution of a crime is responsible for everything done that follows directly as a probable and natural consequence. Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600 (1972). An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces another person to commit the offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or, having a legal duty to prevent the offense, fails to make a proper effort to prevent the commission of the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993).
The evidence presented at trial showed that on May 19, 1995, Don Wyrick was shot and killed at a residence in Pine Bluff known as “The Hill.” Several witnesses testified that the residence was a gambling house where people came to play cards and shoot dice. Several witnesses testified that, on the night in question, four young men entered the residence and put stocking caps over their faces. The young men displayed handguns, stated that it was a “stickup,” and demanded that everyone get down on the floor. John Moore testified that he recognized the appellant as he entered the house and identified him in court as one of the young men involved in the robbery.
The evidence indicated that the young men entered the house through the living room and, while two of them guarded people in the living room, two of the suspects went into the dining room where a gaming table was set up. Several witnesses testi- fled that the victim refused to get on the floor and began wrestling •with the appellant for the gun the appellant was holding. The testimony indicated that after the victim fought for appellant’s gun he was shot by Patrick Davis, one of the appellant’s accomplices. The victim died as a result of two gunshot wounds.
Marcus James, one of the appellant’s accomplices, was called on behalf of the State. James testified that he, the appellant, Patrick Davis, and Derrick Pridgeon planned to rob the gambling house and take everyone’s money. James testified that he, the appellant, and the two others met on the night in question about 10:30 or 11:00 p.m. The young men organized their guns and later left to perform the robbery. James identified State’s exhibit #5 as the .380 pistol that Derrick Pridgeon used during the robbery. James also identified State’s exhibit #1 as the .25 pistol that the appellant had during the robbery, which was found after the robbery on the floor under the victim.
James testified that the four of them entered the house, and he and Pridgeon stopped in the living room while Davis and the appellant went on back into the dining room area. James testified that appellant and the victim began struggling over the gun that appellant was holding. James testified that Patrick Davis then shot his gun.
The appellant testified in his own defense at trial. He admitted that they had planned for more than a week to rob the gambling house. Appellant testified that State’s exhibit #1 was the .25 pistol that he used during the robbery. He testified that he knew the victim because the victim was his girlfriend’s stepfather, and when he entered the dining room he believed the victim recognized him. The appellant testified that the victim attempted to take his gun from him and a struggle ensued. Appellant testified that he fell to the floor during the fight and heard two shots. He did not see who fired the shots because he was trying to hide his face after his stocking cap had come off. The appellant, Davis, and Pridgeon then fled the house, while James remained in the home hiding under a bed.
The expert testimony in this case indicated that the victim was shot once in the left chest area. A second shot hit the victim in the right shoulder area. Two bullets were recovered from the victim’s body that expert testimony indicated were fired from a .38, the same type weapon Davis was carrying on the night in question. Dr. William Sturner, the chief medical examiner with the Arkansas State Crime Laboratory, testified that the victim in this case was killed as a result of the two gunshot wounds.
The appellant specifically argues that the evidence was insufficient to show that he or one of his codefendants shot the victim on the night in question. However, Marcus James testified that Patrick Davis fired his weapon when the victim was killed. Both the appellant and James testified that Davis was carrying a .38-caliber handgun on the night in question, and it was ,38-cali-ber bullets that were recovered from the victim’s body. The testimony of the other witnesses also indicated that only the appellant and his codefendants had weapons drawn on the night in question. There was both direct testimony and circumstantial evidence to indicate that it was Davis, appellant’s accomplice, who killed the victim. There is substantial evidence to support the appellant’s conviction.
Affirmed.
Griffen and Roaf, JJ., agree. | [
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John B. Robbins, Chief Judge.
Appellee Keith Ray is an employee of appellant South Central Arkansas Drug Task Force (SCDTF). On June 29, 1993, Mr. Ray was involved in a drug raid and injured his right knee while attempting to kick in a door. He subsequently underwent knee surgery and incurred medical expenses for his treatment. Mr. Ray filed for workers’ compensation benefits, but compensation was controverted by the Public Employee Claims Division (PECD) based on its assertion that Mr. Ray was not a state employee. Alternatively, the PECD contended that, even if Mr. Ray was considered a state employee, benefits should be denied because the SCDTF and its employees are not covered under the Public Employee Workers’ Compensation Act (PEWCA). After a hearing, the Workers’ Compensation Commission found Mr. Ray to be a state employee and awarded compensation. In addition, the Commission found that, even if Mr. Ray were not a state employee, he would still have been entitled to compensation as a public employee within the intent of the legislature when it enacted PEWCA.
SCDTF and PECD now appeal the decision of the Commission. For reversal, the appellants argue that the Commission erred in finding that Mr. Ray is a state employee within the meaning of PEWCA. In addition, the appellants contend that the Commission erred in finding that, even if Mr. Ray is not a state employee, he would nonetheless be covered by the Act for purposes of receiving workers’ compensation benefits. We affirm.
At the hearing before the Commission, Mr. Ray testified on his own behalf. He stated that he is a certified Arkansas police officer and had been working for SCDTF for approximately four years prior to his injury. Mr. Ray indicated that the group he works with has five employees and is supervised by Joe Thomas. The program is directed by the prosecutor’s office for the Eighth Judicial District, and Mr. Ray’s paychecks are drawn against the prosecutor’s office.
Brent Haltom, Prosecuting Attorney for the Eighth Judicial District, also testified. He stated that the program is funded by grant money, which he receives from the state. Because Mr. Haltom is a state official, the state matches certain funds that are provided by the federal government through a federal grant program. According to Mr. Haltom, the funds appropriated for 1993 included $228,204.00 from the federal government and $76,068.00 from the State of Arkansas. Mr. Haltom did not use any of this money to purchase workers’ compensation insurance for the agents of SCDTF because he considered the agents to be state employees covered by PECD. He based this belief, in part, on the fact that Mr. Ray and other agents were provided with health and retirement benefits by the State of Arkansas.
Sandra Rodgers, fiscal officer for SCDTF, testified that she sends in a request and receives a check directly from the state. According to Ms. Rodgers, all of the federal and state funds appropriated for the program are deposited by the Department of Finance and Administration into the State Treasury. The money is then disbursed upon request for operating expenses and salaries for the agents.
Roland Robinson, Assistant Director for PECD, testified on its behalf. He acknowledged that prosecuting attorneys are constitutional officers and are covered by the PECD. However, he stated that, to his knowledge, no PECD funds are available to pay claims for employees of a drug task force operating under the direction of a prosecutor.
In awarding compensation against PECD, the Commission cited PEWCA, which is codified at Ark. Code Ann. § 21-5-601 (Repl. 1996) et seq. Arkansas Code Annotated § 21-5-602 (Repl. 1996) explains the legislative intent of the Act and provides, in pertinent part:
It is the purpose of this subchapter to:
(1) Provide workers’ compensation coverage through state funds for all public employees, as defined in this subchapter, who are not otherwise covered under a workers’ compensation liability insurance policy written and issued by a private workers’ compensation liability carrier[.j
“Public Employee” is defined by Ark. Code Ann. § 21-5-603 (Repl. 1996), which provides in pertinent part:
(a) The term “public employee”, as used in this sub-chapter, unless the context otherwise requires, includes:
(1) State Employees and Officers. Any officer or employee of any state agency, board, commission, department, institution, college, university, or community college receiving an appropriation for regular salaries, extra help, or authorized overtime payable from funds deposited in the State Treasury or depositories other than the State Treasury by the General Assembly, provided that inmates of state correctional facilities who perform work for the state while incarcerated or while on a work-release program shall not be considered state employees]!]
The Commission determined that Mr. Ray was a state employee for purposes of the Act and, therefore, was entitled to benefits.
For reversal, the appellants first argue that the Commission erred in finding Mr. Ray was a state employee. Specifically, the appellants maintain that drug task forces are not covered by the Act because most of the financing comes from federal sources, including the financing that is appropriated for the agents’ salaries. The appellants contend that workers’ compensation coverage for such individuals, if there is to be any, should come out of the funds received for operation of the task forces.
We find the first argument raised by the appellants to be unpersuasive. As the appellee points out, if the State of Arkansas does not provide compensation coverage for individuals such as he, this would result in all drug task force workers of this state working without the benefit of workers’ compensation. We find that Mr. Ray qualifies as a state employee, and that his compensation was correctly assessed against the PECD.
The evidence in this case demonstrated that all funds to be disbursed to the SCDTF were handled by the state through the State Treasury. Moreover, the state provided health and retirement benefits to individuals such as Mr. Ray. Mr. Ray is a police officer certified by the state, and he works in a program operated by a state officer. The stated purpose of the Act is to provide coverage for public employees not covered by a private entity. In the case at bar, it is undisputed that Mr. Ray was without the benefit of private compensation coverage. Furthermore, from the particular facts presented in this case, it is apparent that he is a “state employee” and therefore is a “public employee” entitled to compensation under the Act.
The findings of the Workers’ Compensation Commission must be upheld on review if there is substantial evidence to support them. Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991). Before we can reverse a decision of the Commission, we must be convinced that fair-minded persons with the same facts before them could not have reached the same conclusion reached by the Commission. Public Employee Claims Division v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992). In the instant case, we find the Commission’s determination that Mr. Ray qualified as a state employee is supported by substantial evidence.
The appellants’ remaining argument is that the Commission erred in determining that, even if Mr. Ray was not a state employee, he nevertheless was entitled to coverage as a public employee. However, due to our disposition of the first issue on appeal, we need not address this argument. The Commission’s order directing PECD to provide workers’ compensation benefits to Mr. Ray is affirmed.
Affirmed.
Neal and Roaf, JJ., agree. | [
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James R. Cooper, Judge.
The appellee in this workers’ compensation case was employed as a fire fighter by the appellant on October 26, 1993, when he suffered a heart attack after venti lating smoke from a burning building. The appellee filed a workers’ compensation claim and the Commission awarded benefits. From that decision, comes this appeal.
For reversal, the appellant contends that there was insufficient evidence to support the Commission’s findings that an accident caused the appellee’s heart attack; that the work performed by the appellee when he suffered the heart attack was unusual and extraordinary in comparison with his usual work; and that the work incident was the major cause of the appellee’s heart attack. The appellant also contends that the Commission erred in allowing policy decisions to weigh in its decision to award benefits. We affirm.
We first address the appellant’s arguments concerning the sufficiency of the evidence to support the Commission’s findings.
In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the fight most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; 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. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id.
Viewed in the light most favorable to the Commission’s findings, the record shows that the appellee was employed by the appellant as a fire fighter for approximately seven and one-half years. The appellee suffered his first heart attack in October 1992 and underwent bypass surgery. In January 1993, the appellee returned to his regular employment, which consisted of driving a fire truck when he was on duty, and doing whatever was assigned when he answered a call while off duty. The appellee had no physical limitations or health problems between his return to full-duty status in March 1993 and his second heart attack on October 26, 1993, which is the subject of the present claim. This second heart attack occurred while the appellee was venting the roof of a burning building, which involves cutting a hole in the roof and placing a pipe to allow smoke and gas to escape. In so doing the appellee was exposed to unusually heavy, dark, thick smoke. The appellee inhaled a good deal of smoke and was shaking as he climbed down from the roof. He sat down, felt sick to his stomach, and broke into a sweat. Although his chest was tight and his arm hurt, the appellee refused an ambulance and went home. However, his symptoms progressively worsened and his wife took him to the hospital. Dr. Charles Burnett, the cardiologist who treated the appellee during and following his first heart attack, opined that the appellee’s second heart attack was primarily caused by his exposure to heavy smoke, which caused his blood to become hypercoagulable and resulted in the formation of a clot. Dr. Burnett testified that the risk factors contributing to the appellee’s heart disease combined equalled less than ten percent as far as contributing to his second heart attack.
The appellant contends that the Commission erred in finding that an “accident” was the major cause of the appellee’s heart attack. The appellant concedes that, in the context of workers’ compensation law, Arkansas has long held that an injury is “accidental” if the result of the injury is unexpected, unforeseen, or unintended, but argues that this definition was the product of liberal statutory construction that may not appropriately be applied to our present workers’ compensation law as promulgated in Act 796 of 1993.
It is true that, while the provisions of the Workers’ Compensation Act were formerly construed liberally in accordance with the act’s remedial purpose, Act 796 of 1993 changed former practice and mandated that both the Commission and the courts should henceforth construe the provisions of the act strictly. Ark. Code Ann. § ll-9-704(c)(3) (Repl. 1993); /Ark. Code Ann. § 11-9-704(c)(3) (1987). It is likewise true that, under former law, the Arkansas Supreme Court employed liberal construction in holding that an injury is accidental when either the cause or the result is unexpected. Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956). Nevertheless, we do not rely on former law or construction thereof in determining the meaning of “accident” as employed in Ark. Code Ann. § 11-9-114(a) (Repl. 1996).
Arkansas Code Annotated Section 11-9-114(a) (Repl. 1996) provides that a heart or lung injury or illness can constitute a compensable injury only if the major cause of the physical harm is an accident. Although “accident” is not defined in this statute, the rules of statutory construction require us to place it beside other statutes relevant to the subject and give it a meaning and effect derived from the combined whole. Hercules Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). After so comparing the statute in question to other provisions of Act 796 of 1993, we find that the legislature employs the word “accident” in the sense of an event “caused by a specific incident and identifiable by time and place of occurrence.” See Ark. Code Ann. § ll-9-102(5)(A)(i) (Repl. 1996). In light of this construction and the evidence that the appellee suffered a heart attack caused by and immediately following his exposure to smoke while ventilating the roof of the burning building, we hold that the Commission did not err in finding that an accident was the major cause of the appellee’s heart attack.
Nor do we think that the Commission erred in finding that the work that precipitated the appellee’s heart attack was unusual and extraordinary in comparison to the appellee’s usual work duties. There was evidence that the appellee was normally assigned to drive a fire truck, and that he would perform other tasks only when he answered a call while off-duty. Furthermore, there was evidence that the appellee inhaled a good deal of smoke that was unusually heavy, dark, and thick immediately prior to his heart attack.
The appellant also contends that the medical evidence was insufficient to support a finding that the appellee’s work incident was the major cause of his heart attack. We do not agree. Dr. Burnett’s testimony indicated that the appellee’s exposure to smoke while ventilating the roof was by far the major cause of his heart attack, with all other factors combined amounting to less than ten percent by comparison. Although there was medical evidence to the contrary, the Commission chose to accept Dr. Burnett’s testimony. The resolution of this conflict was a question of fact for the Commission and, in light of the substantial nature of Dr. Burnett’s testimony, we are powerless to reverse the decision. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987).
Finally, the appellant contends that the Commission erred in giving considerations of public policy weight in construing the provisions of the Workers’ Compensation Act. Although the ALJ’s opinion did contain a discussion of public policy concerns bearing on the application of the “extraordinary and unusual” requirement of Ark. Code Ann. § 11-9-114(b)(1) (Repl. 1996) to public servants such as fire fighters and police officers, who are exposed to extraordinary and unusual events in the course of their work, these matters have not been considered by us in construing the relevant statutes. Consequently, the appellant has not been prejudiced, and the public policy issues raised by the administrative law judge need not be decided.
Affirmed.
Bird and Stroud, JJ., agree.
The Commission adopted the ALJ’s findings of fact and conclusions of law in the case at bar. However, it is not clear whether the ALJ’s discussion of public policy was also adopted by the Commission. | [
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John F. Stroud, Jr., Judge.
This is a prescriptive easement case in which appellants, Eugene and Joye Kelley, claim a prescriptive right of passage over property belonging to appellees, William F. Westover, William E. Westover, and Patricia M. Westover. The chancellor determined that appellants had sporadically crossed appellees’ property for more than twenty years, but that their use of the property was not continuous and uninterrupted, and therefore had not established a prescriptive easement. We agree and affirm.
In 1951, appellee William F. Westover purchased twenty acres of unimproved property in Benton County. He subsequently executed a warranty deed that conveyed the twenty-acre tract to his son and daughter-in-law, appellees William E. and Patricia M. Westover, but he retained a life estate in the property. In 1971, appellants, Eugene and Joye Kelley, purchased property adjacent to the twenty-acre tract. Approximately three years later, appellants built a house on their property. Mr. Kelley testified that eighty to ninety percent of the time, his family used their own driveway to get to and from Walnut Valley Road. Occasionally, however, they used a portion of Mr. Westover’s property as an alternate access to and from another road, Cloverdale Road, particularly in times of bad weather because their driveway is very steep. This use continued for an approximate twenty-year period.
During this twenty-year period, appellees used various methods to keep appellants from crossing the property. For example, they asked appellants by telephone and in person to stay off the property; they ran barbed wire across the road; they replaced barbed wires cut by appellants; they removed a gate installed by appellants and replaced the fence wire; they piled brush, logs, and other debris across the road; they posted no trespassing signs; they called the sheriff s office; and they felled trees across the road. The following colloquy between Mr. Kelley and appellees’ counsel is demonstrative:
Q. [Appellees’ counsel]: When do you believe the Westovers had knowledge that you were crossing their property to Cloverdale Road?
A. [Eugene Kelley]: From the very beginning because they kept putting debris in and putting up the wire and we kept taking it down. When I took the wire down, I didn’t go back, unless — if I took it down and like I was in my car, you know, I might put it back up again, but, generally, like I said, I had a front end loader. When I thought he was doing it just to close off the road, then I just drove through it. I would go down there with my front end loader and just drive right through it because most of the times when he did that, he also put brush on it and I just took care of it all at one time.
Q. So, I understand from your testimony that since, from the very beginning, when you purchased your property, Mr. Westover, or people acting for him, someone consistently had been trying to thwart your attempts to use that pathway down Cloverdale Road?
A. Yeah.
In 1995, appellants filed a complaint in chancery court asking that appellees be “enjoined from interfering with [appellants’] use of the roadway [appellants] have prescriptively used more than twenty years. . . .” The chancellor found in favor of appellees, and this appeal followed.
Appellants raise four points of appeal: (1) that the chancellor erred in finding the appellants’ use of the property was too sporadic to meet the requirement of continuous and uninterrupted use; (2) that the chancellor erred in finding the location of the claimed easement was not clearly defined; (3) that the chancellor erred in relying upon a particular case; and (4) that the chancellor erred in not granting the appellants’ prayer for a prescriptive easement over the appellees’ property. The first and last of these issues control this appeal and can best be discussed together.
A prescriptive easement may be created only by the adverse use of privilege with the knowledge of the person against whom the easement is claimed, or by use so open, notorious, and uninterrupted that knowledge will be presumed, and the use must be exercised under a claim of right adverse to the owner and acquiesced in by him. Childress v. Richardson, 12 Ark. App. 62, 670 S.W.2d 475 (1984). The following explanation is helpful in understanding the concept of acquiescence in establishing a prescriptive easement:
The foundation of a right by prescription is acquiescence of the owner of the servient tenement in the acts relied on to establish the easement by prescription. Acquiescence is here used in its ordinary sense; it does not mean license or permission in the active sense, but means passive assent or submission, quiescence, or consent by silence.
In some jurisdictions, mere verbal protests by the owner of land to its use by another are sufficient to disprove an acquiescence by him in such use. In other jurisdictions, however, a mere verbal act on the premises over which an easement is claimed, resisting its exercise and denying its existence, does not disprove acquiescence by the owner unless it is accompanied by an overt act which in fact obstructs the use of the alleged easement. Where this rule prevails, one isolated instance of an attempt to interrupt a use not resulting in actual interruption and not followed by an attempt to test the right to use does not, as a matter of law, necessarily disprove acquiescence.
25 Am. Jur. 2d, Easements and Licenses §§ 72 & 73 (1996). Moreover, “any unambiguous act of the owner of the land which evinces his intention to exclude others from the uninterrupted use of the right claimed breaks its continuity so as to prevent the acquisition of an easement therein by prescription.” Id. at § 69.
Here, the appellees did not sit idly by and allow appellants to use the property. They not only protested verbally, they also pursued a series of overt acts to obstruct the use of the alleged easement. The chancellor determined that appellants’ use of appellees’ property had not been of such a continuous and uninterrupted nature as to vest in them a prescriptive easement. A chancellor’s finding with respect to the existence of a prescriptive easement is a finding of fact and will not be reversed by this court unless it is clearly erroneous. Stahl v. Thompson, 6 Ark. App. 275, 641 S.W.2d 721 (1982). We find no clear error here.
Concluding as we have that the chancellor did not err in refusing to grant appellants a prescriptive easement over appellees’ property, we do not find appellants’ second and third points persuasive.
Affirmed.
Cooper and Meads, JJ., agree. | [
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Sam Bird, Judge.
David Lee Williams was convicted following a jury trial of the crime of murder in the second degree in connection with the shooting death of Debra Barnes at his Fay-etteville, Arkansas, apartment on October 21, 1994. Appellant now contends that the trial court erred in denying his motion for directed verdict that was premised on his claim that the evidence was insufficient to show that he acted with a culpable mental state. Appellant also contends that the trial court erred when it denied his motion to suppress the statements that he made to the police during the course of custodial interrogations. We hold that appellant’s challenge to the sufficiency of the evidence was not preserved for appellate review because he failed to renew his motion for directed verdict after the prosecution presented rebuttal evidence, pursuant to Rule 33.1 of the Arkansas Rules of Criminal Procedure. We also hold that the trial court did not err when it denied his motion to suppress the custodial statements because appellant agreed to talk to the police before any deceptive police conduct occurred, and because the trial court’s ruling that appellant knowingly and intelligendy waived his right to remain silent was not clearly erroneous. Therefore, we affirm.
Debra Barnes died from loss of blood due to wounds inflicted by a bullet that, according to the testimony of an associate medical examiner during the trial, was fired from a black-powder pistol. That bullet first struck her leg, entered the left side of her body, and then exited the mid-breast area of her body. Appellant lived in the apartment where Barnes was shot, and he was arrested by the police shortly after they arrived at the shooting scene. Appellant claimed that the pistol fell from a piece of furniture and either struck the floor and discharged or discharged when he tried to grab it after it fell. However, he was charged with murder in the first degree, found guilty of murder in the second degree, and sentenced to twenty years imprisonment.
Appellant first challenges the sufficiency of the evidence to support his conviction and alleges that he lacked a culpable mental state because he had been drinking alcohol and taking Valium before the shooting. He moved for a directed verdict at the close of the State’s case and renewed his motion for directed verdict at the close of his defense. Both motions were denied, and the State presented rebuttal evidence. Appellant failed to renew his motion for directed verdict after the State presented rebuttal.
Appellant’s failure to renew his motion for directed verdict after the State presented rebuttal evidence constituted a waiver of his challenge to the sufficiency of the evidence. Rule 33.1 of the Arkansas Rules of Criminal Procedure (formerly Rule 36.21) expressly requires renewal of a directed verdict motion after rebuttal evidence has been presented, and the rule is strictly interpreted. Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994); Bradley v. State, 41 Ark. App. 205, 849 S.W.2d 8 (1993). Consequently, appellant’s challenge to the sufficiency of the evidence regarding his mental state was not preserved for appellate review.
Appellant also contends that the trial court erred by denying his motion to suppress the custodial statements that he made during several interrogations by the police, arguing that police deception rendered his statements involuntary. Officer David Corley testified that after appellant was arrested and placed in his patrol car, at approximately 5:00 a.m. on October 21, 1994, he informed appellant about his right to remain silent, right to speak with an attorney before and during any questioning, and right to stop answering questions at any time after he decided to answer. Two hours later, Detective Larry Norman of the Fayetteville Police Department interviewed appellant at the police department. Norman testified that he read appellant his rights, and that appellant signed a waiver-of-rights form before Norman conducted a tape-recorded interview. According to Norman’s testimony during the hearing on appellant’s motion to suppress his custodial statements, appellant was responsive to questions during the interview.
Detective Tracey Risley testified at the suppression hearing that he began interviewing appellant at approximately 9:20 a.m. on October 21, 1994, after Norman had already interviewed him for two hours. Risley did not have appellant sign another rights form, but testified that he reviewed the rights form that Norman had already covered. Risley testified that appellant agreed to talk and gave “a somewhat detailed statement” during that interview and indicated that he understood his rights. Risley also testified that appellant specifically asked about the welfare of the shooting victim. Although Risley knew that the victim had died, he testified that he told appellant that he did not know her welfare. Ris-ley testified that he did so out of concern that appellant would have immediately stopped the interview if he learned that the victim had died, and Risley described his deception as “just one of my investigative techniques.” Appellant was only informed of the victim’s death after Risley interviewed him.
Detective Norman conducted a third interview at 4:34 p.m. on October 21, 1994, and appellant executed a second rights form in connection with that interview. Norman told appellant that there were discrepancies between his previous statements and the physical evidence, and appellant requested an attorney during that interview.
Appellant contends that his Fifth Amendment right to be free from self-incrimination was violated when the police intentionally gave him false information in response to his repeated inquiries concerning the welfare of the shooting victim. His contention requires that we decide whether he made a free choice, uncoerced by the police, to waive his Fifth Amendment right to be free from self-incrimination; if so, we must also determine whether appellant’s waiver of his right to be free from self-incrimination was made intelligently and knowingly. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993). On appeal, an independent determination about the validity of custodial statements is made based on the totality of the circumstances, and there is no reversal unless the trial court’s determination is against the preponderance of the evidence. Whether a defendant made a valid waiver under the circumstances is a question of fact for the trial court to resolve. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994).
Although appellant does not claim that his custodial statements resulted from intimidation or coercion by the police, he alleges that the police practiced deception by deliberately withholding information from him concerning the victim’s welfare, and by consciously misrepresenting that they did not know her status when, in fact, they knew that she had died. However, appellant had already been advised of his rights, had agreed to talk with the police, and had signed a waiver-of-rights from before the police lied to him about the victim’s welfare. When appellant agreed to talk with the police, he had already been told that the police could and would use anything that he said against him. Under the totality-of-the-evidence standard of review applied to challenges to trial court decisions that deny motions to suppress custodial statements, we hold that the trial judge’s denial of appellant’s suppression motion based on a finding that the statements were made voluntarily was not against the preponderance of the evidence.
Appellant also argues that the trial court erred when it held that he knowingly and intelligendy waived his Fifth Amendment right to be free from self-incrimination. This argument is based on appellant’s claim that he lacked full awareness of the nature of that right, and because he was allegedly intoxicated due to having consumed alcohol and taken Valium. Appellant maintains that he was impaired on account of that intoxication when the police arrested him, when they spoke with him about his rights, and when they interrogated him.
However, Officer Corley, Detective Norman, and Detective Risley testified that appellant appeared to understand what was said to him and did not slur his speech. Appellant signed two rights forms in which he indicated that he understood his rights and did not request an attorney until Norman told him that there were discrepancies between his custodial statements and the physical evidence. Although there was proof that appellant smelled of intoxicants and had bloodshot eyes when he was arrested and when Corley interviewed him, it was the trial court’s function to weigh the conflicting evidence, resolve credibility questions, and decide whether appellant made a knowing and intelligent waiver of his rights. Based on our review of the record under the totality-of-the-evidence standard, we hold that the trial court’s decision on this question was not clearly erroneous.
Affirmed.
Jennings, J., agrees.
Griffen, J., concurs. | [
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John B. Robbins, Chief Judge.
On January 3, 1996, the appellant was tried before the court and convicted of attempted theft by deception, a Class C felony. Appellant was sentenced as an habitual offender to five years in the Arkansas Department of Correction, with five days of jail credit. Appellant contends on appeal that the evidence was insufficient to support the conviction of theft by deception, and that the trial court erred in denying him jail credit of 400 days. We find no error and affirm.
Where the sufficiency of the evidence is challenged on appeal in criminal cases, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the appellee and affirm if there is substantial evidence to support the conviction. Muhammed v. State, 27 Ark. App. 188, 769 S.W.2d 33 (1989). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). The fact that some evidence is circumstantial does not render it insubstantial. Alford v. State, 33 Ark. App. 179, 804 S.W.2d 370 (1991).
The evidence before the trial court indicated that Nancy Babb was contacted by a friend who worked at the American Legion. Ms. Babb’s son was involved in activities that had resulted in criminal charges being brought against him. Ms. Babb went to the American Legion and met with the appellant, James Wilson, who informed her that he was the director of an organization called FAMM. Ms. Babb testified that the appellant told her he was purchasing land and a home in Cabot for the purpose of operating a program to keep juveniles out of criminal trouble and jail. Appellant told her that her son would have to go through his nine-month program to stay out of jail.
Ms. Babb testified that the appellant later contacted her by telephone, and they met at the American Legion a few more times. At appellant’s request, Ms. Babb drove him to the prosecutor’s office and the Pulaski County Jail, allegedly for appellant to make some contacts concerning her son.
On January 4, 1995, after appellant telephoned her and stated, “The money’s here. I need you to come up here,” Ms. Babb met with him at the American Legion for the last time. When Ms. Babb arrived, her boyfriend, Mike Laneer, and appellant were talking about Mr. Laneer having money to pay the appellant. Mr. Laneer left, and Ms. Babb and appellant discussed how the appellant was going to help her son stay out of jail. The appellant told Ms. Babb that her son would not have to serve any jail time, but would have to participate in his nine-month program. He told Ms. Babb that “it’s going to cost you Five Thousand Dollars.” When she asked how he could guarantee that her son would not go to prison and asked what all the money was for, the appellant stated, “part of it will go to the judge, part of it to the prosecutor.” She asked the appellant if this was an “under the table” transaction, and the appellant told her it was. Appellant pressured Ms. Babb to go to Mr. Laneer’s home that night to get the money, but she told him to call her in the morning.
The next morning, January 5, 1995, Ms. Babb called Larry Jegley at the prosecutor’s office to tell him what was occurring. After she explained everything, Mr. Jegley had North Little Rock Police Detective Jim Scott contact Ms. Babb. At one point Ms. Babb was talking to the appellant when Detective Scott telephoned. She informed the detective of the situation and put him on a three-way telephone call with the appellant, without the appellant being aware that the detective was monitoring the call. The appellant went over the plan step by step, and they arranged to meet at Mr. Laneer’s auto parts store later that morning.
Detective Scott and Detective David Dallas met Ms. Babb at the parts store prior to the appellant’s arrival. Ms. Babb worked at this store as her boyfriend’s (Mr. Laneer’s) secretary and had an office with a two-way mirror. The store was also equipped with a video and audio monitor. The detectives positioned the camera so they could observe the appellant and Ms. Babb prior to his arrival.
When the appellant arrived, he and Ms. Babb went over the plan one final time while the detectives listened. Detective Scott corroborated Ms. Babb’s testimony and further testified that the appellant explained to Ms. Babb that for five thousand dollars he would have her son’s charges taken care of by paying off certain officials. Detective Scott testified that the appellant stated he would be keeping seven hundred and fifty dollars for himself and the rest would go to the prosecutors and judges, but never mentioned any names. Appellant agreed to accept a check for three thousand dollars that day and set up a payment plan for the two-thousand-dollar balance. Both Ms. Babb and Detective Scott testified that Ms. Babb wrote the appellant a check for three thousand dollars, and the appellant wrote out a receipt. Ms. Babb gave the check to the appellant and then went out of the store to her vehicle. Mr. Laneer, who corroborated this testimony, informed the appellant to wait fifteen minutes before cashing the check so Mr. Laneer could transfer sufficient funds into the account to cover the check. As the appellant exited the building, the detectives exited the office and arrested him with the check and the receipt in his possession.
The appellant contends on appeal that the evidence was insufficient to support his conviction. He specifically argues that he did not obtain anything of value because the check was “hot,” and that he did not deceive the victims (Ms. Babb and Mr. Laneer) because they knew it was a scam. While the appellant cites several cases for his argument that there must be value and deception, the cases cited deal with theft and theft by deception that were actually consummated. The appellant in this case was convicted only of attempted theft by deception which makes only his state of mind and what he believed the facts to be the issue, not whether the check had some actual value, or whether he actually “deceived” the victims.
Arkansas Code Annotated section 5-36-103(a)(2) (Supp. 1995), provides that a person commits theft of property if he “knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof.” Arkansas Code Annotated section 5-36-101(A)(i) and (v) (Repl. 1993), defines deception as:
Creating or reinforcing a false impression, including false impressions of fact, law, value, or intention or other state of mind that the actor does not believe to be true[.]
* * *
(v) Employing any other scheme to defraud;
Arkansas Code Annotated section 5-3-201 (a)(1) and (2) (Repl. 1993) states:
(a) A person attempts to commit an offense if he:
(1) Purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believes them to be; or
(2) Purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be. (Emphasis supplied.)
In this case, the appellant believed he was deceiving the victims by telling them that he could pay off the prosecutor and judge to keep Ms. Babb’s son out of jail. At the time of his arrest, the appellant had a check for three thousand dollars that he believed could be drawn on sufficient funds in just a few minutes. The trial court found that the appellant attempted to take the three thousand dollars and that he believed he had accomplished just that at the time of his arrest. We cannot say that this evidence was insufficient to support the court’s decision.
The appellant contends in his second point that the trial court erred in not giving him 400 days jail credit toward his sentence. Appellant argues that, because he was arrested on January 5, 1995, and was not sentenced until February 14, 1996, some 405 days’ later, he was entitled to 405 days’ jail credit rather than the five days that the trial court gave him.
Arkansas Code Annotated section 5-4-404 (Repl. 1993) provides that a defendant shall be given credit for time spent in custody against the sentence for which he is being held for trial. However, in this case the court found that the appellant was on parole at the time of his arrest on January 5, 1995, and his parole was revoked January 10, 1995. As the court correctly held, the appellant was actually being held after January 10, 1995, for his parole violation and not simply pending a trial on the present charge. As the State points out, the supreme court has held that a defendant is not entitled to jail credit on a subsequent sentence for time spent in jail on a parole revocation, even if the parole revocation resulted from the crime for which he received the subsequent sentence. Hughes v. State, 281 Ark. 428, 664 S.W.2d 471 (1984). We find no merit to the appellant’s argument concerning jail credit.
Affirmed.
Neal and Roaf, JJ., agree. | [
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Andree Layton Roaf, Justice.
Harold Eugene Kersh was charged with second-degree battery and criminal mischief in Fort Smith Municipal Court. He pled no contest to the charges and the municipal court judgment was entered on June 29, 1995. Kersh filed his notice of appeal and transcript in the Sebastian County Circuit Court on July 31, 1995. The State moved to dismiss the appeal as untimely filed. The circuit judge granted the motion and dismissed Kersh’s appeal; Kersh appeals from that ruling. We reverse and remand to the circuit court for further proceedings.
Because the timeliness of Kersh’s appeal is the sole issue before us, it is only necessary to discuss the facts relevant to computation of time for the filing of his appeal to circuit court. The municipal court judgment was entered on June 29, 1995. Kersh filed his notice of appeal and transcript in the circuit court on Monday, July 31, 1995, or 32 days after the municipal court judgment was entered. The State argued to the trial court that this appeal was untimely for two reasons: 1) the day of the event (entry of judgment) should be counted in calculating the 30-day period, which would thus have ended on Friday, July 28, 1995; or 2) if the 30th day falls on a Saturday, Sunday, or legal holiday, it should be counted, also requiring Kersh to have filed his appeal on the previous Friday, July 28, 1995.
On appeal, Kersh argues that Arkansas Inferior Court Rule 9 should be read in conjunction with either Rule 1.4 of the Arkansas Rules of Criminal Procedure or Rule 6(a) of the Arkan sas Rules of Civil Procedure in order to determine first, whether the day of the event should be counted in the calculation of the 30-day period; and second, whether a Saturday, Sunday, or legal holiday should be counted as the final day to appeal. The State concedes in its brief that Inferior Court Rule 9(a) and Ark. R. Civ. P. 6(a) mandate reversal of this case.
Arkansas Inferior Court Rule 9 reads as follows:
(a) Time for Taking Appeal. All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.
Although Rule 9(a) only applies explicitly to civil cases, this court and the supreme court have repeatedly held that this rule also governs criminal appeals from municipal court to circuit court. See e.g., Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994); Laxton v. State, 49 Ark. App. 148, 899 S.W.2d 479 (1995). While Rule 9 provides no guidance as to the calculation of the time period, Inferior Court Rule 10 states as follows:
Where applicable and unless otherwise specifically modified herein, the Arkansas Rules of Civil Procedure and rules of evidence shall apply to and govern matters of procedure and evidence in the inferior courts of this State. (Emphasis added.)
Finally, Ark. R. Civ. P., Rule 6(a) provides in pertinent part:
(a) Computation: In computing any period of time prescribed or allowed by these rules, by order of the Court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. (Emphasis added.)
Arkansas Rule of Civil Procedure 6(a) clearly provides, and the Arkansas appellate courts have consistently held, that the day of the event should not be included. See eg., Union Nat’l Bank v. Nichols, 305 Ark. 274, 279, 807 S.W.2d 36 (1991); Hodge v. Wal-Mart Stores, 297 Ark. 1, 759 S.W.2d 203 (1988). Thus, the time for appeal began on June 30, 1995; thirty days from that date fell on Saturday, July 29, 1995.
Rule 6(a) also specifically provides that should the time for appeal expire on a Saturday, Sunday, or legal holiday, the period shall extend to the next day that is not a Saturday, Sunday, or legal holiday. Kersh’s time for appeal accordingly expired the following Monday, July 31, 1995. Kersh, in fact, timely filed his notice of appeal and transcript that day.
Reversed and remanded.
Robbins, C.J., and Neal, J., agree. | [
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Andree Layton Roaf, Justice.
This is an Arkansas Teacher Fair Dismissal Act (“TFDA”) case. The appellant, Frankie Hall, was informed by the appellee, Kingsland School District (“School District”), that her contract as an elementary principal would not be renewed for the 1993-94 school year. Pursuant to the TFDA, Hall requested a hearing before the school board, in which the board upheld the decision not to renew her contract. Because the hearing was not scheduled within the time required by the TFDA, the trial court granted Hall’s appeal and petition for writ of mandamus, and ordered reinstatement plus back pay and benefits. Hall appeals only from the trial court’s failure to award attorneys’ fees. We reverse and remand.
Because the School District does not appeal from the trial court’s ruling in favor of Hall, we need not further recite the facts leading up to the nonrenewal of Hall’s contract. In the notice of appeal and petition for writ of mandamus filed by Hall in the circuit court of Cleveland County, she asked that the trial court order the School District to issue her a contract for the 1993-94 school year, because the untimely scheduling of the review hearing violated the TFDA and the School District’s personnel policies. Hall also asked for back pay, matching social security and teacher retirement benefits, and requested attorneys’ fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1994). Hall’s motion for summary judgment was granted by the circuit judge, who ordered reinstatement, back pay, and benefits. Hall then filed a motion seeking attorneys’ fees pursuant to § 16-22-308. The trial court found that because the proceeding was brought pursuant to the TFDA, which made no provision for attorneys’ fees, the motion should be denied. Hall’s sole point on appeal is that the trial court erred in finding that the TFDA’s failure to mention attorneys’ fees prohibits consideration of an award of fees to the prevailing party.
Hall concedes that the TFDA does not expressly provide for the award of attorneys’ fees; however, she contends that such an award is permissible under Ark. Code Ann. § 16-22-308, which provides in pertinent part:
In any civil action to recover on . . . [a] contract. . . for labor or services, or for breach of contract. . . the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
This court has recently decided this issue in Hall’s favor, in Junction City School Dist. v. Alphin 56 Ark. App. 61, 938 S.W.2d 239 (1997). In Alphin, we reversed the trial court’s disallowance of attorneys’ fees to a teacher who prevailed in an action brought pursuant to the TFDA, where the disallowance was based on the same reason articulated by the trial court in Hall’s case. In so holding, we applied two cases decided by our supreme court, and stated that:
[a]n action brought pursuant to the Fair Dismissal Act is both a civil action and “a claim for ‘labor or services’ ” within the meaning of Ark. Code Ann. § 16-22-308, the general statute authorizing attorney’s fees. Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995); City of Ft. Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991). The supreme court held in Driggers that the subject matter of the underlying litigation is solely dispositive of whether Ark. Code Ann. § 16-22-308 may be invoked.
Id.
Although Hall concedes that the award of attorneys’ fees is discretionary, see, e.g., Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), here, the trial court did not exercise its discretion when it declined to award Hall attorneys’ fees. A clearly erroneous application of the law is a manifest abuse of discretion. Little Rock Waste Water Util. v. Larry Moyer Trucking, 321 Ark. 303, 902 S.W.2d 760 (1995). Because this court has determined that attorneys’ fees are recoverable in a TFDA action, pursuant to Ark. Code Ann. § 16-22-308, we reverse and remand this case to the trial court to determine if an award of fees is warranted.
Reversed and remanded.
Robbins, C.J., and Neal, J., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was convicted of burglary and misdemeanor theft of property, and was sentenced as an habitual offender to thirty years in the Arkansas Department of Correction. From that conviction, comes this appeal. The appellant’s sole point for reversal is that there was insufficient evidence to support the burglary conviction. We affirm.
In determining the sufficiency of the evidence to support a criminal conviction, we review the evidence in the light most favorable to the appellee, and affirm if there is substantial evidence to sustain the conviction. Lair v. State, 19 Ark. App. 172, 718 S.W.2d 467 (1986). Substantial evidence is evidence which induces the mind to go beyond suspicion or conjecture, and is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987).
Burglary is committed when a person enters or remains unlawfully in an occupiable structure with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a) (1987). The appellant waived his right to a jury and was tried by the court, with the trial judge as the fact-finder. Viewed in the light most favorable to the appellee, the evidence adduced at trial showed that Verlon Walker and Herman Binns went to Dwight Walker’s house on October 21, 1987. Verlon Walker discovered that the door was pushed in, and heard someone moving around in the back of the house. Herman Binns, who had waited in the car, testified that he saw the appellant leave Dwight’s house through the window and run away. He also testified that, about ten minutes later, he saw the appellant, accompanied by one or two Other people, return to the area in a Chevrolet. The Chevrolet circled the block; the appellant then got out of the Chevrolet, got into a Cadillac parked nearby, and drove away.
Dwight Walker testified that he returned home shortly after Verlon, his brother, telephoned him. He testified that he discovered that his front door had been kicked down, and that he saw the appellant and another man get out of a Chevrolet and drive away in a Cadillac which had been parked across the street from his back door. He also stated that various pieces of gold jewelry were taken from his house, including a ring, a necklace, two chains, and two watches. Cynthia Walker testified that she identified some jewelry recovered by the police as her property, and stated that it was worth $200.00 or $250.00.
Detective Max Spriggs testified that he stopped a brown Chevrolet identified as a suspect vehicle in the burglary, and that Bobby Plumber and Larry Harrison were in the car. Mark Fisher of the Little Rock Police Department testified that he stopped a Cadillac circling the vicinity of Dwight Walker’s house. The appellant was the driver of the car, and Eugene Morris was a passenger. He testified that he found a gold watch and two rings in the appellant’s pocket. The owner later identified these items as hers, but told Officer Fisher that a necklace with a ring on it was still missing. Fisher testified that he then realized that the appellant was wearing the missing necklace, and returned to the interrogation room to discover that the appellant was no longer wearing the necklace. When questioned, the appellant admitted to dropping it through a heating vent in the interrogation room, where it was subsequently discovered.
Finally, Kenneth Lewis, the appellant’s cousin, took the stand and stated that it was he, and not his cousin, who committed the robbery. He explained that he had borrowed the appellant’s car to use in the robbery. The court interrupted the testimony to warn Mr. Lewis that he could go to the penitentiary if he made a judicial confession, and inform him that his confession would not necessarily result in acquittal for the appellant. Lewis was provided with appointed counsel. He nevertheless testified that it was he who entered Walker’s house, took the jewelry, and fled through the window, and that the appellant was not involved in the crime, but was in possession of the jewelry only because Lewis left it, without explanation, in the appellant’s car. Lewis was found guilty of burglary by virtue of his judicial confession. At the conclusion of the trial, the appellant was also found guilty of burglary.
The essence of the appellant’s argument for reversal is that his cousin’s confession and testimony render the evidence against the appellant insubstantial. We do not agree. The appellant was identified as the man who was seen exiting the house through the window and fleeing the scene, was soon afterward discovered to be in possession of the stolen property, and admitted to concealing the necklace. We hold that the conviction for burglary was supported by substantial evidence. See Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). As finder of fact, the trial judge was free to accept some of Lewis’s testimony and reject those portions of his testimony which were found to lack credibility. Weighing the evidence, determining credibility, and resolving conflicts in the testimony are matters to be resolved by the fact finder. See Girdner v. Kensett, 285 Ark. 70, 684 S.W.2d 808 (1985). The trial judge could properly have found that both the appellant and Lewis committed burglary, that only the appellant was seen by the witnesses, and that Lewis’s statement that the appellant was not involved lacked credibility. We therefore find no inherent contradiction in both the appellant and Lewis being convicted of burglary, and we affirm.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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George K. Cracraft, Judge.
Timothy Dennis and Brian Milton appeal from their convictions of the offense of night hunting, for which they were sentenced to fifteen days in the county jail, fined $1000.00, had their hunting privileges suspended for a period of two years, and had a rifle and spotlight found in their possession confiscated. We affirm.
The appellants first contend that there was not sufficient evidence to support the findings that they were night hunting or that the offense was committed within the geographic jurisdiction of Cross County courts. We do not agree.
In reviewing the sufficiency of the evidence to support a criminal conviction, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and will affirm the judgment if there is substantial evidence to support the findings of fact. Harris v. State, 15 Ark. 58, 689 S.W.2d 353 (1985). The evidence viewed in this light reflects that Chuck Tedder, a wildlife officer with the Arkansas Game and Fish Commission, with nine years of experience, received a tip from an informant that he had observed night hunters. The officer testified that it was not uncommon for him to receive information of game violations from informants. He responded to that call by going to the location mentioned by the informant, which was near the county line between St. Francis and Cross counties and at the edge of a game reserve which contained a high concentration of deer and where there had been numerous instances of illegal hunting. He stated that he observed a truck moving at a very slow speed, with a spotlight working along the edge of a thicket. He testified that he was familiar with that location and that, although the vehicle did cross into St. Francis County, most of the activity he observed and described occurred in Cross County.
As the truck came near his position, he turned on his blue lights and stopped it. The two appellants were in the vehicle, and one was “crouched down into the floorboard ... as though he was trying to hide something.” The officer found a .22 Magnum rifle, loaded with five .22 Magnum hollow point bullets, lying on the floorboard between the passenger’s legs. He also found two boxes of like shells in the vehicle. Without objection, he testified that this type of ammunition was illegal for the taking of big game, but that it was used often by nighthunters because it was “a lot quieter than a 30-30 or a 30-06, and it is very powerful.” He did not find any game in the vehicle but did find a 300,000 candle power spotlight.
Appellants contended that they were on legitimate business concerning their commercial interests. One claimed that he had gone to the area to check the oxygen content in a catfish pond and that he always carried the rifle and spotlight to shoot turtles and snakes, which damage the fish crop. The other appellant testified that he was requested to go with him and did so because he wished to use the spotlight to check his own farming interest in that vicinity.
No one disputed that the appellants were arrested near midnight while in possession of a loaded rifle in an area adjacent to a state park containing an abundance of deer and small game. Arkansas Code Annotated § 15-43-105(a) (1987) (formerly Ark. Stat. Ann. § 47-502(S) (Repl. 1977)) and Arkansas Game and Fish Commission Regulation 1.00-F provide that the possession of firearms in forests, or along streams or any location known to be game cover, should be considered prima facie evidence that the possessor is hunting. There was definite evidence that the appellants were in possession of a firearm in an area near a game reserve and within Cross County. The appellate court does not attempt to weigh the evidence or pass on the credibility of the witnesses where the testimony conflicts. We affirm the trier-of-fact if there is any substantial evidence to support the conviction. We cannot conclude from our review of the record that the findings that the appellants were in fact night hunting and that the offenses occurred in Cross County are not supported by substantial evidence.
Appellants next contend that the sentence imposed by the trial court exceeded the range of punishment provided by law. They contend that, under the provisions of Ark. Code Ann. § 15- 43-240 (1987) (formerly Ark. Stat. Ann. §§ 47-502(P) and 47-502(P-1) (Rep. 1977)), the penalty for a person convicted of hunting at night with a spotlight is limited to a fine of between $10.00 and $200.00. They argue that the court clearly exceeded the statutory range in fixing their punishment.
Although this issue was not properly preserved for appellate review because the appellants failed to object to the sentence at the time it was entered, Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987), we point out that § 15-43-240 was enacted before Amendment 35 to the Arkansas Constitution was adopted in 1945. Under the provisions of that amendment, the Arkansas Game and Fish Commission was given full and complete authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife, including regulations setting penalties for violations. It has been held that this amendment is complete within itself and that legislative acts are superseded by exercise of the authority granted the Commission under the provisions of the amendment. State ex rel. Wright v. Casey, 225 Ark. 149, 279 S.W.2d 819 (1955).
Pursuant to this authority, the Commission promulgated Regulation 18.02, which provides that it is unlawful to hunt or kill any wildlife at night with or without the use of a light. Possible penalties for its violation include a fine of from $250.00 to $1000.00, a jail sentence of up to one year, suspension of hunting privileges of up to two years, and confiscation of all equipment used in the violations. Under the provisions of Amendment 35, these regulations have the effect of law, and courts judicially know and apply such rules and regulations promulgated by administrative agencies pursuant to law. See Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1986).
Affirmed.
Corbin, C.J., and Rogers, J., agree. | [
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James R. Cooper, Judge.
The appellant was found guilty by a jury of theft of property. He was found to be a habitual offender and sentenced to twenty years in the Arkansas Department of Correction. The appellant argues two points on appeal: that the trial court erred in excluding from evidence a police report from another state, and that the trial court erred in imposing the Habitual Offender Act when that charge was not included in the information. We affirm.
The record reveals that on February 19, 1986, D.H. Pettin-gill of Morrilton, Arkansas, discovered that his 1985 pickup truck had been stolen from his driveway. The truck was found in South Bend, Indiana, about three weeks later by Officer Douglas Way. Way stopped the truck, which was being driven by Betty Larrison. Ms. Larrison told Way that the appellant had brought the truck with him from Arkansas and that the appellant was at her house, about one-half block away.
Way stated that he arrested the appellant, and after being advised of his Miranda rights, the appellant admitted that he and Becky Turner stole the truck from a driveway in Morrilton, Arkansas. He also stated that Ms. Larrison did not know that the truck had been stolen and that he had let her use it to go and see a friend.
After being returned to Arkansas, the appellant was questioned by Ray Coffman, the chief of the Morrilton Police Department. The appellant again admitted that he and Becky Turner had stolen the truck.
At trial, the appellant testified that Dean Bishop had stolen the truck and he did not know of the theft until the day before Ms. Larrison was stopped by the police. The appellant stated that he confessed to stealing the truck to keep Ms. Larrison from being arrested and her children taken to foster homes. According to the appellant, Bishop ran when the police came to the house, and the appellant’s confession was the only way he could keep Ms. Larrison from being charged.
During cross-examination of Chief Coffman, the appellant’s attorney attempted to introduce into evidence a report from the South Bend Police. The State objected on the basis that the report was hearsay, and the trial court sustained the State’s objection.
The appellant argues that he did not offer the report for the truth of the matter asserted, but to describe an emotional scene. The appellant contends that the report describes the emotional upset of Ms. Larrison and her children at the time Ms. Larrison was stopped and the appellant arrested. The appellant argues that the report is an exception to the hearsay rule under Ark. R. Evid. 803(3), 803(6), and 803(8).
The report is not in the record and there was no proffer of the report at trial. The only reference to what is contained in the report is the question asked by the appellant’s attorney: “Do not read from the statement, Chief, but tell me if the statement describes an emotional scene at the home with reference to the children?” There must be a proffer of the evidence excluded for us to find error, Barker v. State, 21 Ark. App. 56, 728 S.W.2d 204 (1987), unless its substance is apparent from the context. Ark. R. Evid. 103(a)(2).
Moreover, even if there was error it was harmless error. In Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985), the Supreme Court said that when evidence is offered to show its effect on the listener and is not offered to prove the truth of the matter asserted, then the evidence is not hearsay and is admissible. However, in Hall, the exclusion of the evidence was found to be harmless error because the same evidence was introduced by another witness and was before the jury.
In the present case both Officer Way and the appellant testified about the emotional condition of the children. Way stated that they were hysterical and the appellant stated that the two children were crying and screaming and saying that the police were going to put their mom in jail and put them in foster homes. We therefore find that, even if exclusion of the evidence was error, it was harmless in light of the fact that the emotional conditions were testified to, and in light of the overwhelming evidence of guilt. We do not reverse if error is harmless beyond a reasonable doubt. Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986).
The appellant’s next argument concerns the trial court’s enhancement of his sentence in accordance with the Habitual Offender Act. The appellant argues that the trial court erred in enhancing his sentence because he was not “charged” with being an habitual offender in the information and that the trial court allowed the information to be modified orally.
We do not address the appellant’s argument because the appellant did not object to the modification. The appellant objected to the fact that the State was going to proceed on the basis of four prior felonies and in one of the prior convictions it was unclear whether the conviction was for one or two counts. The appellant stated that he did not have sufficient notice of whether the State was going to use one or two counts. We have said many times that an argument for reversal will not be considered in the 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).
Affirmed.
Jennings and Cracraft, JJ., agree. | [
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Judith Rogers, Judge.
Pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, the appellant, Robert Timothy Thompson, entered conditional pleas of guilt to charges of possession of a controlled substance (methamphetamine) with intent to deliver and possession of a controlled substance (marijuana) . As a result, appellant was sentenced to a total of five years in prison. On appeal, appellant contends that the trial court erred in denying his motion to suppress evidence allegedly seized in an unauthorized nighttime search. Because we agree that the affidavit upon which the warrant was issued contained insufficient facts to support a search at night, we reverse the judgment of conviction.
The search warrant in this case was issued upon the affidavit of Officer Robert Scott of the North Little Rock Police Department. In the affidavit, dated February 5, 1991, Officer Scott described in general terms the location of appellant’s residence in an apartment complex called the Bradford Oaks Apartments on Camp Robinson Road. The affidavit also recounted the details of three controlled drug purchases made by a confidential informant which were said to have occurred on January 21, 1991, January 22nd and February 5th. The affidavit recited that on each occasion the informant and his or her vehicle were first searched for contraband; that the informant was provided funds with which to purchase drugs; that the informant was observed entering the apartment; and that upon exiting the apartment the informant met with officers at a pre-designated location where the contraband was turned over to the authorities. The affidavit further recited that the informant named appellant as the person from whom the controlled substances were purchased. The affidavit concluded with the following computer-generated paragraph:
Affiant Scott states that because the location of the residence is such that officers approaching the residence could be easily observed and the substance located therein could be destroyed or disposed of before officers could secure said residence and that information has been received that the above described controlled substance is being sold from the residence at any time of the day or night, the warrant should be executed at any time of the day or night.
Based upon this information, a search warrant was issued which authorized the search of appellant’s residence at night. The warrant was executed on February 5,1991, at 8:02 p.m. Various items, including controlled substances, were seized during the search.
In this appeal, appellant attacks the validity of the search on the ground that the statements in the affidavit were conclusory and that there was an insufficient factual basis to support a search at night. In reviewing a trial court’s ruling on a motion to suppress because of an alleged insufficiency of the affidavit, we make an independent determination based upon the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Holmes v. State, 39 Ark. App. 94, 839 S.W.2d 226 (1992).
Rule 13.2 of the Arkansas Rules of Criminal Procedure sets out three bases for the issuance of a nighttime search warrant. The rule provides:
(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i)the place to be searched is difficult of easy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night , and within a reasonable time not to exceed sixty (60) days from the date of issuance.
It has consistently been held that the affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). It has further been held that conclusory statements do not suffice to establish the requisite factual basis for reasonable cause. Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). As was said by the supreme court in State v. Broadway, supra:
An affidavit should speak in factual and not mere con-clusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one’s home.
Id. at 218, 599 S.W.2d at 723.
In support of his argument, appellant relies heavily on the supreme court’s decision in Garner v. State, supra. There, the affidavit included a printed form with places for check marks to be made beside any of three phrases which, incidentally, mirrored the wording of Ark. R. Crim. P. 13.2(c). To justify the nighttime search, check marks had been placed next to two of the phrases. The court found error in the denial of the appellant’s motion to suppress, holding that the statements that had been marked were conclusory and unsupported by sufficient facts, and thus did not establish reasonable cause for a nighttime search.
The State urges, and we agree, that the use of a computer-generated phrase like the one at issue here is not necessarily fatal. In Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992), the affidavit contained language from a computer memory bank that the drugs located in the appellant’s residence were “packaged and maintained in a manner that [their] destruction or removal can be easily accomplished.” The court upheld the validity of the search because the affidavit contained additional factual information which, when read in conjunction with the conclusory language from the computer, supported a finding of reasonable cause for a nighttime search. With reference to the decision in Coleman v. State, we reached a similar result in the case of Holmes v. State, 39 Ark. App. 94, 839 S.W.2d 226 (1992).
However, unlike the circumstances found in Coleman v. State, supra, and Holmes v. State, supra, the affidavit in this case contains no other facts to support a search at night. The affidavit here recites that “the location of the residence is such that officers approaching the residence could be easily observed and detected.” However, it is not apparent from the general description given of the apartment complex and appellant’s apartment that this was so. The affidavit also states that “the substance located therein could be destroyed or disposed of before officers could secure said residence.” As with the first quoted phrase, there are no facts contained in the affidavit to support this conclusion. The affidavit further states that “information has been received that the above described controlled substance is being sold from the residence at any time day or night.” While the affidavit recounts in some detail that a confidential informant had purchased illegal substances on three occasions, the times of these purchases was not disclosed and the “information” spoken of was not divulged. In sum, the statements contained in the affidavit were conclusory and thus provided no factual basis for authorizing a nighttime search. Consequently, the situation in this case more closely resembles that found in Garner v. State, supra. We therefore hold that the trial court’s finding to the contrary is clearly against the preponderance of the evidence.
Rule 16.2(e) of the Arkansas Rules of Criminal Procedure provides that a motion to suppress is to be granted only if the court finds that the violation upon which it is based is substantial. In Garner v. State, supra, the supreme court found that the circumstances warranted a finding that the violation of the appellant’s rights was substantial. Under the facts of the case, the court further declined to extend the good faith exception under United States v. Leon, 468 U.S. 897 (1984). We perceive no marked distinction between this and the decision in Garner, and thus we also find the violation to be substantial and decline to apply the good faith exception.
In addition to the foregoing contention, appellant presents the argument that the search and seizure in this case also violated Article 2, Section 15 of the Arkansas Constitution and that the Arkansas Constitution provides a greater degree of protection than does the Fourth Amendment. In the same vein, appellant further contends that the good faith exception under Leon does not apply under our constitution. Since we have determined that the good faith exception does not apply in this case, we need not address this argument. It is well settled that constitutional issues will not be decided unless their determination is essential to the disposition of the case. Gill v. State, 290 Ark. 1, 716 S.W.2d 746 (1986).
Reversed and Remanded.
Jennings, C.J., and Cooper, J., agree. | [
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John E. Jennings, Chief Judge.
Kenyon Washington entered a conditional plea of guilty to a charge of possession of a controlled substance (crack cocaine) with intent to deliver. He was sentenced by the court to ten years imprisonment. Under Rule 24.3(b)of the Arkansas Rules of Criminal Procedure, Washington now appeals from the trial court’s denial of his motion to suppress evidence. We find no error and affirm.
On February 3, 1992, Kirk Lane, a detective with the Pulaski County SheriiFs Department, received information that there was narcotics activity at Poppy’s Place, a snack bar and pool hall in Alexander. He had received similar reports before. At 9:30 p.m. Detective Lane arrived at Poppy’s Place in plain clothes and in an unmarked car. He walked to a window of the business, while waiting for other officers to arrive. The front door was partially open.
Looking through the window, Lane could see an open area with pool tables and pinball machines. Beyond the open area he could see into another room in which three or four men appeared to be watching television. When other police cars arrived he saw the men go to the window and look out. Detective Lane testified that then “it appeared like they began to panic.” Lane testified that Washington had what appeared to be a black film canister in his hand. Lane testified, “[Appellant] made several movements like he didn’t know which way to go, turned around and placed the item into the floor. . . like he was throwing them into the floor.” He then saw another man, Joe Dickerson, come up to the appellant, take a matchbox out of his pocket, and hand it to the appellant. Appellant “did the same thing” with the matchbox.
At this point the officers entered the building as appellant, Joe Dickerson, and another man walked out. Detective Lane testified that one man was left sleeping in a cháir.
Lane walked to the place where he had seen the appellant throw the containers down and found a hole in the floor. Lane shined his flashlight into the hole and could see the matchbox and film canister on the dirt floor of the crawl space beneath the building. He checked for a loose board in the floor and could find none. He then asked another officer to shine a flashlight into the hole and Detective Lane went outside the building.
At one corner of the building Lane saw a loose concrete block in the foundation. Lane removed the block and could see the light from above shining on the matchbox and film canister. He reached his arm through the open space in the foundation and retrieved the containers. He then opened them, both of which contained “white rock-like substances” which subsequently proved to be cocaine.
Detective Lane testified that when he saw the matchbox and film canister through the hole in the floor he had a strong suspicion as to what might be contained in them, due to previous narcotics experience. He testified:
I’ve been in the narcotics [division] for five years. And in the last two or three years since crack cocaine has really come strong in Pulaski County it became evident to me on people involved in dealing cocaine that these canisters are typical of what they [are] carrying them in. And due to the actions of the panic [sic] and the nervousness and the wanting to conceal these items and the fact of where they threw them and the fact they got rid of them. The fact that they’re similar. I can show you a hundred cases that we’ve done in the last two or three years where these were the exact items that they concealed these items in. Or use to carry them around.
At the hearing on the motion to suppress, the State conceded that appellant had standing to contest the seizure.
As recently as 1991, the Supreme Court has reiterated the “cardinal principle” that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject to a few specifically established and well-delineated exceptions. California v. Acevedo, 500U.S_, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). The observation of evidence in plain view, however, is not a search and therefore the resulting seizure is not the result of an unreasonable search. Horton v. California, 496 U.S. 128 (1990); Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987), cert. denied, 484 U.S. 830 (1987); Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). The basic test is whether the officer had a right to be in the position he was when the objects fell into his plain view. Johnson, supra; Kelley, supra.
Arkansas courts have treated “plain view” as an exception to the warrant requirement. See e.g., Johnson, supra. The United States Supreme Court has suggested that the doctrine of plain view may perhaps be better understood not as being an independent exception to the warrant clause. See Texas v. Brown, 460 U.S. 730 at 738-39 (1983); see also Horton v. California, 496 U.S.128 at 133-34(1990). In Texas v. Brown, the Court said, in a plurality opinion:
The question whether property in plain view of the police may be seized therefore must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question. The Coolidge plurality, while following this approach to “plain view,” characterized it as an independent exception to the warrant requirement. At least from an analytical perspective, this description may be somewhat inaccurate. We recognized in Payton v. New York, 445 U.S. 573, 587, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), the well-settled rule that “objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.” A different situation is presented, however, when the property in open view is “ ‘situated on private premises to which access is not otherwise available for the seizing officer.’ ” As these cases indicate, “plain view” provides grounds for seizure of an item when an officer’s access to an object has some prior justification under the Fourth Amendment. “Plain view” is perhaps better understood, therefore, not as an independent “exception” to the Warrant Clause, but simply as an extension of whatever the prior justification for an officer’s “access to an object” may be.
The principle is grounded on the recognition that when a police officer has observed an object in “plain view,” the owner’s remaining interests in the object are merely those of possession and ownership. Likewise, it reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a “needless inconvenience,” that might involve danger to the police and public.. . .[0]ur decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. This rule merely reflects an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property. [Citations omitted.]
Our courts have held that in order for the plain view doctrine to apply three criteria must be met: (1) the initial intrusion was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987); McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984); Freeman v. State, 37 Ark. App. 81, 824 S.W.2d 403 (1992); Munguia v. State, 22 Ark. App. 187, 737 S.W.2d 658 (1987). This formulation was clearly based on the United States Supreme Court’s holding in Coolidge v. New Hampshire, 403 U.S. 443 (1971). See e.g. Johnson v. State, supra. The requirement of Coolidge that the discovery of the evidence be “inadvertent” was overruled by the Supreme Court in Horton v. California, 496 U.S. 128 (1990).
Although appellant suggests that we might continue to require inadvertent discovery in plain view cases under the Arkansas Constitution, we need not decide that question here. As the court said in Johnson v. State:
The real concern expressed in Coolidge was with “a planned warrantless seizure.” The inadvertence requirement has generally been interpreted to mean that “immediately prior to the discovery, the police lacked sufficient information to establish probable cause to obtain a warrant to search for the object.” Inadvertence does not “encompass total surprise” or mean “unexpected.” It is absurd to believe that the officers planned in advance to see Johnson walking on this property near the highway carrying an armful of marijuana, use that as a pretext to follow him onto the premises to make the arrest, and at that time seize the marijuana they expected to find there. The fact that the officers had an informant’s tip that marijuana could be growing there does not make the sighting of the marijuana “advertent” in these circumstances. [Citations omitted.]
291 Ark. at 263, 724 S.W.2d at 162. We reach the same conclusion in the case at bar.
Appellant’s argument focuses on two issues: (1) whether the intrusion of Detective Lane by reaching into the crawl space to seize the matchbox and film canister was constitutionally impermissible, and (2) whether the officers needed a warrant to open the closed containers.
When Detective Lane looked through the window of Poppy’s Place, he was in a place he was legally entitled to be and the matchbox and film canister came into his plain view. There is no contention that the officers were not entitled to enter the open business. Law enforcement officers may accept a general public invitation to enter commercial premises for purposes not related to the trade conducted therein. United States v. Berrett, 513 F.2d 154 (1st Cir. 1975). After Lane entered the business, the canister and matchbox were once again in plain view through the hole in the floor. The fact that it was necessary to use a flashlight to view the objects did not violate the Fourth Amendment. Texas v. Brown, 460 U.S. 730 (1983); United States v. Lee, 274 U.S. 559 (1927); Freeman v. State, 37 Ark. App. 81, 824 S.W.2d 403 (1992). Had the hole in the floor been large enough to enable the officer to reach through it with his hand, surely that intrusion into the dirt floor crawl space would not have been constitutionally impermissible. “What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection[.]” Katz v. United States, 389 U.S. 347, 351 (1967). In the case at bar the officer’s action was essentially equivalent: he reached his arm through an opening in the foundation to seize that which was in plain view from the interior of the business.
Clearly, an owner or operator of a business has an expectation of privacy in commercial property which society is prepared to consider reasonable. New York v. Burger, 482 U.S. 691 (1987). Nevertheless, an expectation of privacy in commercial premises is different from, and less than, a similar expectation in a person’s home. Burger, supra; see also Donovan v. Dewey, 452 U.S. 594 (1981). We do not hold that a crawl space beneath a home or business is the kind of area which is subject to a search without a warrant. But the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. California v. Greenwood, 486 U.S. 35 (1988). Furthermore, one’s reasonable expectation of privacy in a dirt floor crawl space under a business is qualitatively different than an expectation of privacy in the interior of one’s home.
In Delaware v. Prouse, 440 U.S. 648 (1979), the Court said that the permissibility of a particular law enforcement practice is judged by balancing its intrusion on Fourth Amendment interest against its promotion of legitimate governmental interests. Here there was no general exploratory search of the crawl space; rather, as the trial judge noted, the intrusion was strictly limited to the seizure of that which had been in plain view. In determining whether evidence should be excluded on a motion to suppress, Rule 16.2 of the Rules of Criminal Procedure requires that consideration be given to the importance of the particular interest violated and the extent to which privacy was invaded. Under the peculiar circumstances of the case at bar we hold that the limited intrusion into the crawl space to seize evidence which was in plain view was constitutionally permissible.
In order for the plain view doctrine to be applicable the incriminating character of the object must be “immediately apparent.” Horton v. California, 496 U.S. 128 (1990); Texas v. Brown, 460 U.S. 730 (1983); Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987). In Texas v. Brown an officer seized a balloon which he reasonably suspected contained drugs. The Supreme Court held that under the circumstances the “immediately apparent” requirement was met. The court said:
The fact that [the officer] could not see through the opaque fabric of the balloon is all but irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officer.
Professor LaFave notes that in Brown, “[t]he defendant inexplicably raised only the question of the warrantless seizure of the balloon, and only that issue was addressed by the Supreme Court.” 2 Wayne R. LaFave Search and Seizure § 5.5 (2d ed. Supp. 1993). Three justices, Stevens, Brennan, and Marshall, concurred in Brown to discuss the issue of the examination of the contents of the container. The concurring justices said:
Alternatively, the balloon could be one of those rare single-purpose containers which “by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”. . . Viewing it where he did could have given the officer a degree of certainty that is equivalent to the plain view of the heroin itself. If that be true, I would conclude that the plain-view doctrine supports the search as well as the seizure even though the contents of the balloon were not actually visible to the officer.
In discussing a series of four cases, People v. Miller, 33 Cal. App. 3d 193, 108 Cal. Rptr. 788 (1973); United States v. Candella, 469 F.2d 173 (2d Cir. 1972); United States v. Welsch, 446 F.2d 220 (10th Cir. 1971); and United States v. Brewer, 343 F.Supp. 468 (D. Haw. 1972), Lafave says:
[T]hese cases suggest in general a willingness of courts to permit police to look within containers in plain view upon a substantial basis for doing so. That is, while the rule discussed earlier which permits a surface inspection upon a reasonable suspicion cannot logically be extended to the opening of a container, which is more obviously the type of activity which constitutes a search, the opening of a container is not seen as that much more intrusive, and thus a plain view interpretation which makes that possible upon solid evidence of the container’s contents is attractive to the courts.
2 Wayne R. LaFave, Search and Seizure § 6.7(b) (2d ed. 1987).
While we recognize that the Constitution makes no distinction between “worthy and unworthy containers,” United States v. Ross, 456 U.S. 798 (1982), it is equally clear that under some circumstances the nature of the container may be relevant to the question before us. In cases somewhat similar to the case at bar, courts have approved the opening of closed containers, under the plain view doctrine, when it was clear enough from the circumstances, including the experience of the officers, what the contents were. See United States v. Drew, 451 F.2d 230 (5th Cir. 1971) (pistol contained within an opaque plastic folder); United States v. Grubczak, 793 F.2d 458 (2d Cir. 1986) (black zippered case containing lock-picking tools). Compare State v. Sapatch, 108 N.C. App. 321, 423 S.E.2d 510 (N.C. Ct. App. 1992) (possession of film canisters, without more, insufficient to give rise to probable cause of a crime).
We think that the facts in the case at bar are analogous to those in Grubczak, supra. Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea. Sibron v. New York, 392 U.S. 40 (1968). See also Tyler v. United States, 302 A.2d 748 (D.C. 1973); State v. Belton, 441 So.2d 1195 (La. 1983), cert. denied, 466 U.S. 953 (1984); People v. Rivera, 233 Ill. App. 3d 69, 598 N.E.2d 423 (1992). In the case at bar, given the officer’s previous experience both with the particular business and the type of containers involved and the actions of the defendant as observed by the police, we conclude that the contents of the film canister and matchbox could be “inferred from their outward appearance.” Texas v. Brown, 460 U.S. at 750-51 (concurring opinion).
For the reasons stated the decision of the trial court is affirmed.
Cooper and Mayfield, JJ., agree.
From photographs admitted into evidence the hole appears to be approximately two to three inches in diameter.
Cf Justice Scalia’s concurrence, 500 U.S. at et seq. | [
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Judith Rogers, Judge.
This is an appeal from a judgment entered against appellant, the First National Bank at Paris (hereinafter “Bank”), in the principal amount of $142,556.65. In its first two issues on appeal, the bank contends that the trial court erred in failing to either grant its motion for a directed verdict or enter a judgment notwithstanding the verdict in its favor because appellees failed to present sufficient proof of a joint venture. The bank further contends that the trial court erred in not granting its motion for a directed verdict because any promise to pay the debt of another must be in writing and there was no writing in this case. On cross-appeal, appellees contend that the trial court erred in denying their motion for partial summary judgment. Because we agree that there was insufficient evidence offered to establish the existence of a joint venture, we reverse on direct appeal. As the issue raised by appellees is not properly before us, we affirm on cross-appeal.
In June of 1987, the bank loaned $550,000 to Pine Ridge Farms, Inc. Forty percent of the loan was guaranteed by the Small Business Administration. Pine Ridge Farms was in the business of organically raising chickens, and was owned by David Farrington, now deceased, and his wife. Appellees were suppliers of products to the farm and they filed this suit against the bank claiming that the bank was liable to them for sums owed by the farm, which had declared bankruptcy. In the complaint, appel-lees predicated the bank’s liability on the allegation that the bank had entered into a joint venture with Farrington for the operation of the farm. Appellees also claimed that they were entitled to damages based on the tort of bad faith, and also fraud.
The bank thereafter filed a motion for summary judgment contending that the statute of frauds precluded recovery because there was no writing by which it had agreed to assume liability for the farm’s debts. The bank further contended that it and Farrington had not formed a joint venture, and that its relationship to the farm was simply that of lender and borrower. Appellees also filed a motion for partial summary judgment in which they alleged that the bank was collaterally estopped from denying the existence of a joint venture as that question had been decided adversely to the bank in a previous lawsuit. Finding that there remained genuine issues of material fact, the court denied the bank’s motion for summary judgment. From the documentation presented by appellees in support of their motion and the opposing affidavits submitted by the bank, the court could not ascertain the applicability of collateral estoppel, and it tentatively denied appellees’ motion for partial summary judgment, leaving the record open for further discovery and the presentation of additional proof on that issue. At trial, appellees abandoned their claims of fraud and bad faith, and the only theory of recovery upon which the jury was instructed was that of joint venture. The jury returned a verdict in favor of appellees.
The primary thrust of this appeal is the bank’s contention that there was insufficient evidence offered to establish that it and Farrington were engaged in a joint venture. Thus, it is argued that the trial court erred in denying motions for a directed verdict and judgment notwithstanding the verdict on that issue.
On appellate review of a trial court’s denial of a motion for a directed verdict or a motion for a judgment notwithstanding the verdict, we must determine whether the verdict is supported by any substantial evidence. Tremco, Inc. v. Valley Aluminum Products Corp., 38 Ark. App. 143, 831 S.W.2d 156 (1992). In so doing, we examine the evidence, along with all reasonable inferences deducible therefrom, in the light most favorable to the party against whom the motion is sought. See id.
In order for a business enterprise to constitute a joint venture, the following elements must be present: (1) two or more persons combine in a joint enterprise for their mutual benefit; (2) right of mutual control or management of the venture; and (3) an expressed or implied understanding that they are to share in the profits or losses of the venture. Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990); Tackett v. Gilmer, 254 Ark. 689, 496 S.W.2d 368 (1973). The burden of proving the existence of a joint venture rests on the party asserting this relationship. See Burge v. Pack, supra.
At trial, it was shown that bank officials held almost daily discussions with Farrington and that frequent visits were made to the farm. These officials also spoke at a public meeting in an attempt to obtain an AIDC grant for the farm. Further, it was established that the bank collected the farm’s accounts receivable. The bank sent letters informing those indebted to the farm of the bank’s security interest in the accounts receivable, and directed them to send payment directly to the bank. The bank maintained the checkbook for one of the farm’s three accounts, and required that checks for expenditures over $200 be cosigned by a bank official. There was testimony suggesting that the bank offered advice on the hiring of employees. There was also evidence that the bank tolerated a $77,000 overdraft in the farm’s accounts, and that it retained some $77,000 more than it was initially allocated under the SBA guarantee agreement as payment for monies it had advanced the farm.
The primary attribute and necessary condition for a joint venture is the element of joint, not several, profit sharing. Batterman v. Wells Fargo AG Credit Corp., 802 P.2d. 1112 (Colo. Ct. App. 1990). Accord Tackett v. Gilmer supra. Thus, it is generally understood that the relationship of borrower and lender does not establish a joint venture. Gainesville Carpet Mart v. First Federal Savings & Loan Ass’n. of Gainesville, 174 S.E.2d 230 (Ga. Ct. App. 1970). See also e.g. Burge v. Pack, supra; American Insurers Life Ins. Co. v. Regenold, 243 Ark. 906, 423 S.W.2d 551 (1968). As was succinctly stated by the Minnesota Supreme Court:
They [the creditors] are entitled to a return of the money loaned or advanced, and stand to lose only in the event there shall be no net profits. The money advanced is not contributed to the enterprise, and must be repaid whether the venture is a success or failure.
We therefore have no difficulty in holding that a creditor, whose interest in a business venture is in receiving back his debt, is not engaged in a joint venture with a debtor merely because he secures an assignment of the proceeds of the sales and from time to time gives advice, pays bills, and takes other measures to protect his security.
Treichel v. Adams, 158 N.W.2d 263, 266 (Minn. 1968).
In the case at bar, there was no evidence that there was an express agreement for the bank to share in the profits or losses of the farm, nor was there evidence from which such an agreement can be inferred. Contrary to appellees’ argument in support of the judgment, we do not consider the evidence that the bank permitted an overdraft situation to exist or that it retained monies as payment for an advance loan as being indicative of an intent to share in the profits or losses of the farm. Such evidence lacks sufficient mutuality to reflect an intent to jointly share in the profits or losses. Although it cannot be doubted that the bank focused a great deal of attention on the farm, it was not shown that the bank’s interest extended beyond its desire for the business to succeed so that its loan might be repaid. In the absence of any kind of agreement to share in the profits or losses, we can find no substantial evidence to support the judgment. Consequently, we reverse.
The bank next argues that the trial court erred in not granting its motion for a directed verdict because there was no writing by which it had agreed to assume responsibility for the farm’s debts. See Ark. Code Ann. § 4-59-101 (1991). Since we have reversed the judgment for the reasons discussed above, it is not necessary to address this point.
In their cross-appeal, appellees contend that the trial court erred in denying their motion for partial summary judgment. In this motion, appellees argued that collateral estoppel should prevent the bank from relitigating the existence of a joint venture because that question had been decided adversely to the bank in a previous lawsuit. In making this argument, appellees sought to use collateral estoppel as an offensive weapon, rather than as the defensive tool for which it is more commonly applied. In Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993), our supreme court recognized that the offensive use of collateral estoppel had been approved by the Supreme Court in the case of Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), but it expressed no opinion on the matter as the issue was not squarely before it. We also need not decide whether collateral estoppel was applicable here. It has long been held that the denial of a motion for summary judgment is not an appealable order or subject to review after a trial on the merits. Estate of Hastings v. Planters & Stockmen Bank, 307 Ark. 34, 818 S.W.2d 239 (1991). Therefore, we conclude that this issue is not properly before us. Moreover, it appears that appellees abandoned this issue as the record'reflects that no additional evidence was offered, as was contemplated by the trial judge and the parties, and no further, definitive rulmgwas sought or obtained. We will not consider arguments on appeal that were not fully developed at the trial level. Id. And, the burden of obtaining a ruling on a motion is upon the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Kulbreth v. Purdom, 305 Ark. 19, 805 S.W.2d 622 (1991).
Reversed on Direct Appeal; Affirmed on Cross-Appeal.
Pittman and Robbins, JJ., agree. | [
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Per Curiam.
In an opinion not designated for publication, we affirmed the appellant’s conviction. Williams v. State, CACR92-92 (op. del. October 7,1992). Our mandate was issued on October 27,1992. Approximately seven months later, on May 26,1993, the appellant’s attorney filed this motion for attorney’s fees. We deny the motion.
Noting that efficiency requires us to consider motions for attorney’s fees while the briefs are in our possession and the case is fresh in our minds, we denied a motion for attorney’s fees filed approximately eight months after our decision was rendered in Terrell v. State, 32 Ark. App. 58, 796 S. W.2d 348 (1990). In so doing, we repeated earlier warnings that failure to file motions for attorney’s fees in a timely manner could prevent an allowance of attorney’s fees. Moreover, Ark. R. Sup. Ct. 6-6(c) provides that all motions for attorney’s fees from attorneys appointed to represent indigent appellants in criminal cases shall be filed no later than thirty days after the issuance of the mandate. Under the circumstances of this case, where no reason for the long delay in filing the motion is argued by the appellant’s attorney or appears in the record before us, the motion is untimely under our decision in Terrell, supra, as well as under Rule 6-6(c). Consequently, the motion for attorney’s fees is denied. | [
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Melvin Mayfield, Judge.
This is an appeal from a judgment of conviction, entered upon a conditional plea of nolo contendere, for driving while intoxicated, first offense. Appellant argues that the trial court erred in denying his motion to suppress.
At the suppression hearing held May 16, 1991, Officer Jim Ragland, who is employed by the City of Marshall, testified that he and Deputy Sheriff George Sutterfield were together in Ragland’s patrol car on Highway 27 North, inside the Marshall city limits, when he looked into his rear view mirror and saw a car go off the edge of the highway onto the shoulder and then come back onto the road. Ragland said he pulled off the road, let the car pass, and followed it to “junction 65” and then “south on 65 up Backbone Mountain.” Officer Ragland turned his lights on and stopped the vehicle on top of Backbone Mountain which is outside the city limits. Officer Ragland testified that he intended to stop the vehicle before it left the city limits, but decided to follow it for a while because he had a DWI case dismissed in court for failing to follow a vehicle for a reasonable amount of time and did not want to take any chances on having another case dismissed for the same reason.
Officer Ragland testified that the appellant’s pants were unzipped, and he could smell some kind of intoxicating beverage on appellant; that he called State Trooper Don Brown for assistance; and that Officer Brown administered field sobriety tests. As a result of failing “enough of the tests” appellant was arrested and taken to Van Burén County for a breathalyzer test.
Officer Ragland testified that he heard the breathalyzer operator inform appellant of his right to have another test. Ragland also testified that, although the appellant was very talkative both “coming and going”, the officer did not recall appellant saying anything about a blood test or any other type of chemical test.
Appellant testified that he requested a blood test twice; once before the breath test was administered, and later on the way back to Marshall. He said the officer that administered the breathalyzer test told Office Ragland, “Well, this might be a long night if he wants a blood test.”
On this evidence, the trial judge ruled that Officer Ragland had probable cause to stop appellant based upon the “initial swerve on Highway 27” which occurred inside the city limits of Marshall and that the officer was in “fresh pursuit.”
At a pre-trial hearing held April 7,1992, appellant entered a conditional plea of nolo contendere and reserved the evidentiary issue for appeal.
Arkansas Rule of Criminal Procedure 24.3 provides:
(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Appellant first argues that because Officer Ragland arrested appellant outside the officer’s territorial jurisdiction without authority to do so, any evidence resulting from the arrest should be suppressed. Appellant also contends Officer Ragland did not form reasonable cause to stop and arrest appellant until he had followed appellant outside the city limits. The case of Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990), is cited. That case holds that a local police officer, acting without a warrant outside the territorial limits of the jurisdiction under which he holds office, is without official power to apprehend an offender unless he is authorized to do so by statute, and evidence obtained as a result of an unlawful detention or illegal arrest is subject to the exclusionary rule and should be suppressed.
Arkansas Rule of Criminal Procedure 3.1 provides that 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 a felony or misdemeanor involving danger of forcible injury to persons or damage to property, if such action is reasonably necessary to obtain or verify the identification of the person or to determine the lawfulness of his conduct. The Arkansas Supreme Court held in Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990), that the officer in that case was entitled to stop Smith under the authority of Ark. R. Crim. P. 3.1 because “Smith’s actions were sufficient to give the arresting officer a reasonable suspicion that a misdemeanor involving risk of forcible injury to persons or damage to property had been, or was about to be, committed.” After the stop, Smith was arrested for driving while intoxicated and his conviction was affirmed. In holding that the officer had “reasonable suspicion” to stop Smith because he was driving in the center lane of 1-430 “quite slow” with his bright lights on, the court said that under certain circumstances a police officer may rely on his experience and make “inferences and deductions that might well elude an untrained person,” and police officers are trained through experience to observe the actions of individuals in order to ascertain suspicious activities and protect the public from unlawful activities.
In Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991), the appellant was arrested by a campus patrolman employed by the University of Arkansas at Little Rock. The campus officer’s jurisdiction was limited to property owned by, or under the control of, the institution and included streets “contiguous to or adjacent to” the campus. The patrolman first observed the appellant driving at a slow rate of speed on Fair Park Boulevard, a street adjacent to the campus, and saw appellant “weave left of the center line a couple of times.” The arrest, however, was made one block off Fair Park Boulevard, on a street not adjacent to the campus. Our supreme court held:
Arkansas statutes, nevertheless, do contemplate arrests made in fresh pursuit for any criminal offense committed in the presence of any peace officer. The doctrine of fresh pursuit at common law enabled an officer to pursue a felon into another jurisdiction. Arkansas law expands the definition to pursuit of a person who has committed “any criminal oifense in this state in the presence of the arresting officer. . . .” This definition is easily broad enough to embrace misdemeanors.
305 Ark. at 172, 806 S.W.2d at 373 (citations omitted).
In the instant case, Officer Ragland initially noticed appellant’s erratic driving while both the officer and the appellant were within the city limits of Marshall. The officer said that he intended to arrest appellant before he left the city limits but waited for an additional period of observation rather than taking a chance of having the case dismissed. In addition to having “reasonable suspicion” to stop appellant under Ark. R. Crim. P. 3.1, the officer had the authority to stop and arrest appellant for the violation of Ark. Code Ann. § 27-51-301 (1987) (vehicle shall be driven on the right half of the roadway). See Taylor v. State, 254 Ark. 620, 495 S.W.2d 532 (1973) (an officer can legally make an arrest for a misdemeanor committed in his presence). Under the evidence, we cannot say the trial court erred in denying the appellant’s motion to suppress on this point. Here, as in Smith v. City of Little Rock, supra, the officer had the authority to either stop, or to stop and arrest, the appellant before he left the officer’s jurisdiction, and we think the officer was within the bounds of his authority when he followed appellant outside his jurisdiction and subsequently made the stop and arrest.
Appellant also argues that the trial judge erred in not suppressing the breathalyzer test results because the state failed to assist him in obtaining an additional test as required by Ark. Code Ann. § 5-65-204(e) (1987). We do not agree. Although appellant testified he asked to be given another test on two different occasions, the trial court does not have to believe the testimony of a criminal defendant, who is probably the person most interested in the outcome of the proceeding. Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985).
We note, however, that the rights form which the appellant signed does not have a place for the person being administered the test to request an additional test, and the trial judge stated he was not particularly pleased with that situation because it causes “a swearing match.” We agree that it would be the better course of action for the city to utilize a rights form which provides for such request to be made in writing.
Also, we have not overlooked the State’s argument that appellant failed to obtain a ruling as to whether appellant had been afforded the opportunity to have an additional test. However, at the pre-trial hearing held April 7, 1992, the trial judge asked whether a ruling had been made on appellant’s motion to suppress, and appellant’s attorney stated that such a ruling had been made. The prosecutor stated this was a technical matter; asked whether appellant’s counsel could prepare the order; and said he would approve it.
In reviewing the trial court’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Brown v. State, 38 Ark. App. 18, 827 S.W.2d 174 (1992). Under the totality of the circumstances in this case, we cannot say the trial judge erred in denying appellant’s motion to suppress.
Affirmed.
Jennings, C.J., agree and Cooper, J., concurs. | [
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James R. Cooper, Judge.
In this criminal case, the appellant was convicted of rape and sentenced to seventeen years in the Arkansas Department of Correction. On appeal the appellant argues six points for reversal. We find that the trial court erred in limiting the appellant’s testimony concerning the past relationship between the appellant and the, victim and we reverse and remand.
The record reveals that the alleged rape took place on December 4,1986. The victim testified that she and the appellant were neighbors and friends. According to the victim, she was asleep in bed when she heard the doorbell at approximately 1:30 a.m. A few minutes later she heard knocking on her bedroom window. The victim stated that when she looked out she saw the appellant and he asked her to let him come inside and wait for his ride. The appellant explained to her that he and his girlfriend had gotten into a fight. The victim let the appellant in and sat with him in the living room. After about fifteen minutes, the victim told the appellant that he would have to leave, but at his request, she allowed him to wait a few more minutes. She then got up to look out of the window and when she turned around, the appellant jumped on her, pulled at her clothes, and began to have digital intercourse with her. After struggling with him, she was able to grab a decorative rock from a bookshelf and hit the appellant in the head. When the appellant left, his head was bleeding.
The appellant, testifying in his own defense, stated that he did not have a fight with his girlfriend, but was unable to sleep after attending an alcoholic’s anonymous meeting and left his house, across the street from the victim’s house, to buy cigarettes. According to his testimony, he saw the victim and she called to him and invited him into her house. They then began to argue because the appellant refused to spend the night at the victim’s house. The argument led to a physical fight and the appellant left when the victim struck him in the head with a rock.
The appellant first argues that the trial court erred in limiting the evidence of a prior romantic relationship between himself and the victim. In light of the fact that the appellant’s defense was that his and the victim’s injuries were the result of a fight about their relationship, we agree.
The Arkansas Rape Shield Statute prohibits evidence of the victim’s prior sexual conduct unless, on written motion and hearing, relevancy of the proffered evidence is established and its probative value outweighs its prejudicial effect. State v. Small, 276 Ark. 26, 631 S.W.2d 616 (1982); Ark. Stat. Ann. § 41-1810.1 etseq. (Repl. 1977), now codified at Ark. Code Ann. § 16-42-101 (1987). Here, the fact that the victim and the appellant may have had a relationship beyond being just friends and neighbors is highly relevant. Without any evidence of the past relationship, the jury had no basis upon which it could find it reasonable for the appellant to be at the victim’s home in the early morning hours and no basis upon which it could find that the incident was the result of an argument. The appellant should be able to testify to the actions of the victim on the night of the alleged rape and the other events which occurred on that night. Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980); Brown v. State, 264 Ark. 944, 581 S.W.2d 549 (1979).
However, it must be kept in mind that the purpose of the Rape Shield Statute is to limit evidence of the victim’s past sexual conduct and to protect the victim from unnecessary humiliation. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). Therefore, while evidence of the victim’s and appellant’s past relationship should be admitted into evidence in the appellant’s new trial, evidence of explicit sexual conduct that has no direct bearing on the events which occurred on the night of the alleged rape should be excluded.
The appellant’s second point concerns a tape made when the victim made her statement to the police, which was later destroyed. It is the appellant’s contention that the trial court erred in failing to grant his motion to dismiss based on the fact that the tape was destroyed, because the tape was essential to impeach the victim’s testimony.
Apparently, the victim’s statement was transcribed and copies provided to the appellant. The statement allegedly contained “strikeovers” and changes initialled by the victim. The appellant argues that the tape recorded statement would resolve the issues of credibility. The appellant does not allege bad faith or connivance on the part of the State. See State v. Hardin, 271 Ark. 606, 609 S.W.2d 64 (1980). Furthermore, the appellant makes no showing that the missing tape was exculpatory, see California v. Trombetto, 467 U.S. 479 (1985), or that there is a reasonable probability that, had the tape been produced, the result would have been different. United States v. Bagley, 473 U.S. 667 (1985). Under these circumstances, we cannot say that the loss of the tape was of such prejudicial magnitude as to warrant dismissal. Wood v. State, 20 Ark. App. 61, 724 S.W.2d 183 (1987).
The appellant’s fourth point concerns the trial court’s refusal to allow the appellant to question the victim about the strikeovers in the written transcription of the tape recording. At trial the appellant wished to impeach the victim by cross-examining her about the strikeovers. Although the appellant was permitted to cross-examine the victim about any inconsistencies between her in-court testimony and her edited statement, he was not permitted to question the victim about the strikeovers and changes. In an in camera conference the appellant argued that the written statement had been changed from “I said, come to the door,” to “He said, come to the door.” The court stated that it could not conclude that the word stricken out had been “I,” and that he did not see a prior inconsistent statement.
The trial court found that the edited statement was the only statement that the victim had made and that there was no prior inconsistent statement. The statement itself is not part of the record and the only strikeover argued in the record is the alleged I/he change discussed above. Because the typed statement is not in the record, we cannot discern if there was a reversible error. However, this issue is likely to recur in the appellant’s new trial, and we will deal with it.
In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), the appellant’s conviction for robbery was reversed because the State refused to disclose either the recorded or taped testimony of the victim. The Court stated:
We are further persuaded that appellant was not only entitled to t'he written transcription prepared by the state from the recorded statements, but appellant was entitled to discover the tapes not only because the tapes represented the best evidence, but without the tapes, appellant had no way of comparing the transcription in order to determine if the transcription was a correct reproduction of the recordings. Indeed, the statement as well as the tapes would have been most helpful to appellant in his cross-examination of state’s witnesses.
263 Ark. at 405. The next year the Supreme Court decided the case of Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Westbrook was convicted of murdering a police officer and received the death penalty. At trial, Westbrook raised the defense of insanity. Westbrook had been committed to the state hospital in 1972 and 1974, and, as part of his defense, requested the records from these commitments. The Court held that, in light of Westbrook’s defense, it was necessary for him to have the records to prepare for his defense, and compared the records to the tapes in Williamson, supra.
Recently, the Supreme Court decided the case of Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). Hamm, convicted of aggravated robbery, made a confession which was recorded on microcassette. The confession was transcribed and then the tape was erased. The transcript of the confession was read into evidence over Hamm’s objection. Prior to trial, Hamm had requested the tape recorded statement in order to compare it with the transcript. Citing Williamson, supra, the Court reversed Hamm’s conviction.
In the case at bar, the victim’s statement was not read into the record as in Hamm, nor, as far as we can tell, did any alleged discrepancy between the tape and the transcript reveal a crucial difference in identity of the appellant, as in Williamson. However, in light of the Supreme Court’s rulings on this issue, we believe that the trial court unduly restricted the appellant’s cross-examination of the victim with regard to the typed statement. See Miller v. State, 269 Ark. 409, 601 S.W.2d 845 (1980). On retrial, the appellant should be able to cross-examine the victim about the alleged strikeovers and the alleged inconsistencies.
For his third point, the appellant argues that the trial court erred in not excusing a juror for cause. The appellant contends that he was forced to use a peremptory strike on Terry Milam because he was then represented by the prosecutor, Mr. Foster, in a pending civil case. Although the appellant properly requested that Mr. Milam be excused for cause, he has not shown that he was forced to accept a juror against his wishes, which is required to preserve this issue for appeal. Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).
For his fifth point the appellant alleges that the trial court committed error by allowing the State to bolster the testimony of the victim with prior consistent statements. Immediately after the victim testified, Officer David Naylor of the Conway Police Department was called to testify. Over the appellant’s objection Officer Naylor testified extensively about what the victim told him when he arrived at her home to investigate the rape. The statements the victim made to Officer Naylor were consistent with her testimony at trial. It is the appellant’s contention that since the victim’s credibility had not been impeached, it was error to allow the officer to testify about what she told him.
Arkansas Rules of Evidence Rule 801 (d)(1)(h) states:
(d) Statements Which are Not Hearsay. A statement is not hearsay if: (1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive ....
During cross-examination of the victim, the defense attorney questioned her about inconsistencies between her statement to the police and her testimony at trial. The attorney also attempted to elicit testimony from her that she had recently reviewed her statement and that her testimony resulted from reviewing her statement rather than from her recollection. Ordinarily, evidence of prior consistent statements is not admissible to bolster credibility because it is hearsay. Rule 801 (d) (1) (ii) provides an exception to that rule where there has been a charge of recent fabrication or improper influence, as there was in this case, and we hold that the trial court ruled correctly. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984).
The appellant’s last argument concerns expert testimony given by Officer Jerry Snowden, who also investigated the rape. He testified about some photographs of blood splatters and smears on the victim’s wall. After he testified about the pictures, the State began questioning him about his training and experience in blood splatters. The appellant objected to the foundation that had been laid for expert testimony and requested an opportunity to voir dire Officer Snowden. The trial court overruled the appellant’s objection. The appellant then objected because he had not been notified by the State that Officer Snowden would be testifying as an expert, which the trial court also overruled. Officer Snowden then testified that the splatters were about sixteen inches off of the floor, that when a person is struck, blood travels straight out, hits what is closest and then drops. Therefore, he stated, the appellant’s head had to have been about sixteen inches from the floor when he was struck. The appellant contends that the trial court erred in refusing his request to voir dire Officer Snowden and in allowing Officer Snowden to testify when the appellant had not been notified. We do not address these issues because we do not think that the alleged errors are likely to recur in the appellant’s new trial. The appellant will be entitled to any reports or statements made by any experts and to a list of witnesses the State intends to call pursuant to A.R.Cr.P. Rule 17(a). If the State fails to comply with discovery, the appellant can request sanctions in accordance with A.R.Cr.P. Rule 19.7. Although not reversible error in this case, we do think it is a better practice for the trial court to allow a defendant to voir dire a witness giving opinion testimony in order to test the witness’s qualifications. See Scott v. Jansson, 257 Ark. 410, 516 S.W.2d 589 (1974); Arkansas State Highway Commission v. Dipert, 249 Ark. 1145, 463 S.W.2d 388 (1971).
Because we have found that the trial court was too severe in its limitation of the appellant’s testimony about the prior relationship between him and the victim, and its limitation on cross-examination of the victim about her statement this case is reversed and remanded for a new trial.
Reversed and remanded.
Mayfield and Coulson, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was convicted in non-jury trial of theft by receiving property allegedly valued in excess of $2,500.00 in violation of Ark. Stat. Ann. § 41-2206 (Repl. 1977), now codified at Ark. Code Ann. § 5-36-106 (1987). On appeal, the only issue is the sufficiency of the evidence. We affirm.
In a criminal case, the test is whether there is substantial evidence to support the verdict and, on appeal, it is only necessary to view the evidence which is most favorable to the State in determining whether there is substantial evidence. Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985). To be substantial, the evidence must do more than merely create a suspicion; it must be of sufficient force and character as to force the mind beyond conjecture and compel a conclusion one way or the other with reasonable certainty. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). For a defendant to be found guilty of theft by receiving, the State must prove that he received, retained, or disposed of stolen property knowing, or having good reason to believe, that it was stolen. Tubbs v. State, 19 Ark. App. 306, 720 S.W.2d 331 (1986).
The record reveals that the appellant was arrested on August 4, 1987, along with Michael Howard at Blume Scrap Metal in Little Rock. Mike Durham, a detective with the Little Rock Police Department, testified that the two men were found standing beside a blue Ford pickup truck. When Durham asked the appellant if he had any identification, the appellant told him he did not, and told the detective that his name was Bill Jones. After the arrest, an identification card was found in the appellant’s pocket which identified him as Clydell Austin.
Jerry Matlock, another Little Rock Police officer, testified that he took possession of the blue truck and found that the truck bed was loaded with fifteen hydraulic disc jacks. He stated that he ran a check on the license plate of the truck and the truck did not belong to the appellant. He also stated that the jacks were large and covered the entire bed of the truck. Bobby Oxford, a heavy equipment operator for May Construction Company, identified the jacks as ones which had been stolen from May Construction, and estimated their value at $500.00 each.
Ken Jenkins, a branch manager at Air Products and Chemicals, testified that between 8:30 and 9:00 on the morning of August 4, he noticed a barrel had been thrown over the fence surrounding the business, and that some material which was normally stored in the barrel was missing. He then called three local scrap dealers, Sol Alman Company, Gray Supply, and Blume Scrap, and described the missing materials to employees of those companies. Approximately one hour later an employee from Sol Alman called and reported that they had just purchased those items described by Jenkins. Jenkins received a description of the vehicle and went to Blume Scrap and waited until the blue Ford pick up arrived. Jenkins stated that there were two individuals in the truck when it arrived. The police were called and the appellant and Michael Howard were arrested.
It is the appellant’s contention that the State did not show that he had any knowledge that the items were stolen, and that he did not participate in the selling of the goods. The weight tickets issued by the scrap company with the sale had only the name of Michael Howard on it. The appellant also asserts that he was not in possession of the jacks.
The unexplained possession or control by a person of recently stolen property, or the acquisition by a person of property for a consideration known to be far below its reasonable value gives rise to a presumption that he knows or believes that the property was stolen. Jones v. State, 20 Ark. App. 1, 722 S.W.2d 871 (1987). Constructive possession occurs when the accused maintains control or the right to control property. When stolen property is found at a location which is under the joint control of the accused and other persons, it is sufficient to prove possession if there are sufficient factors which would link the accused to the possession. Parker v. State, 270 Ark. 3, 603 S.W.2d 393 (1980). Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985), involved the joint possession of narcotics. The appellant’s comments about who had turned him in were deemed tó be a sufficient link between the appellant and the narcotics. Although Ward v. State, 280 Ark. 353, 658 S.W.2d 379 (1983) did not involve joint occupancy, the fact that Ward had attempted to sell stolen goods and fled when asked for identification was sufficient to find that Ward had possessed the stolen goods.
In the present case, there is no evidence that the appellant attempted to sell the goods. However, there was evidence that the appellant accompanied Michael Howard to Sol Alman where other stolen merchandise had been sold, there was testimony that the appellant arrived at Blume in the blue truck, that when the appellant was arrested he was beside the truck, that he falsely stated that he had no identification and told the officers his name was Bill Jones. We find these facts sufficient to establish constructive possession.
It is the appellant’s contention that he was merely assisting Michael Howard by showing him where the local scrap buyers were located and that he had no knowledge that the jacks had been stolen. However, the trial judge was not required to believe his testimony because he was the person most interested in the outcome. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). Furthermore, the use of a false name after the commission of a crime is commonly accepted as being relevant on the issue of the consciousness of guilt. See Kidd v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988). We are of the opinion that use of a false name to avoid detection, like fleeing, is a circumstance in corroboration of evidence tending to establish guilt. See Mason v. State, 285 Ark. 479, 688 S.W.2d 299 (1985).
Affirmed.
Corbin, C.J., and Mayfield, J., agree. | [
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Donald L. Corbin, Chief Judge.
This criminal appeal comes to us from Newton County Circuit Court. Appellant, Rondal Campbell, was convicted of theft of property and was sentenced to pay a $2,500.00 fine. Appellant, Randy Campbell, was convicted of burglary and theft of property and sentenced to pay a $2,500.00 fine on each count. Appellants’ only argument on appeal is that the state violated their right to a speedy trial. Because we find merit to this argument, we reverse and dismiss.
The charges brought against both appellants and a third person resulted from an accident on June 26, 1986, wherein Tanner Hardware and Market in Jasper, Arkansas, was burglarized. A felony information was filed July 10, 1986, charging appellant Rondal Campbell with burglary and theft of property. A week later, on July 18, 1986, a felony information was filed charging appellant Randy Campbell with the same offenses. These cases were consolidated for trial. Numerous trial dates were set and continued prior to trial. In issue are the last three dates on which trial was set. The case was set for December 15, 1987; however, the trial was cancelled due to an ice storm. By court order, the case was rescheduled for January 6, 1988; however, on that morning an abundant snowfall necessitated that the trial again be cancelled. By court order, the case was reset for trial on February 22, 1988. On February 3, 1988, and February 12,1988, respectively, appellants, Rondal and Randy Campbell filed motions to dismiss alleging the time for trying the case had lapsed and the charges should be dismissed.
A hearing was held on the motion on February 19,1988, and the case proceeded to trial as scheduled on February 22,1988. On February 29, 1988, the trial court rendered an order denying appellants’ motions and finding that the continuances from December 15, 1987, to January 6, 1988, and from January 6, 1988, to February 22, 1988, constituted “good cause” for delay under Arkansas Rules of Criminal Procedure 28.3.
The time within which a defendant must be brought to trial is determined by Arkansas Rules of Criminal Procedure 28.1(c):
Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty . . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
The time for trial shall commence running from the date the charge is filed. Ark. R. Crim. P. 28.2(a).
The appellants were charged on July 10 and July 18, 1986, and tried February 22,1988, exceeding the eighteen month period by over a month for each appellant. Once an accused has shown the trial is to be held after the speedy trial period has expired, the state bears the burden of showing the delay is legally justified. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).
At the hearing on the motion to dismiss, the state presented the testimony of the circuit clerk of Newton County regarding the weather conditions on the days in question. Regarding the December 15, 1987, trial date the clerk stated that an ice storm occurred on the 14th which caused the roads to be impassable and extremely bad on the morning of trial. The clerk further opined that the next day the temperature warmed up clearing the roads except in the rural “brush” areas of the county. As regards the subsequent trial date of January 6,1988, the clerk testified that a “big snow” occurred which again caused extremely dangerous road conditions; however, he could not recall the road conditions for the following day. On both dates, the trial was continued because it was unsafe for the jurors and witnesses to try to drive to court.
In discussing the weather and the continuances, the trial court stated at the hearing that he recalled the situation as follows:
As I remember, the ice storm lasted several days and as I remember, the snow that we encountered on the 5th day of January, it continued for several days because I remember my children being out of school here in Boone County for at least four days that week of January and I believe for three days in the week of December.
During the course of the hearing, the court admitted that it could not find that the case was continued because of congestion on the docket. Additionally, the court generally revealed that its policy is not to have jury trials after the 15th of December on any year because of the Christmas season and inconvenience to the jurors. Further, the court stated that after the snow on the December 15, 1987, trial date, the case was set for January 6, 1988, because he had “set aside the first week of January for oral surgery.”
In denying appellants’ motions to dismiss, the court found no violation of the speedy trial rule because he excluded the entire seventy day period from December 15, 1987, to February 22, 1988, because of adverse weather conditions. The court held that the continuances during this period constituted “good cause” of delay under Arkansas Rules of Criminal Procedure 28.3. Although the court did not specifically set out the subsection upon which it relied, it appears that it entered its order under Arkansas Rules of Criminal Procedure 28.3(h) which generally provides that periods of delay for “good cause” shall be excluded in computing the time for trial.
It is well settled that it is the court’s duty to bring criminal cases to a speedy trial. Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979). In the case at bar, although the court excluded a seventy day period for weather related conditions, the record and proof reflect that other factors were considered. We cannot agree that refusing to try cases during the Christmas season takes precedence over giving defendants a speedy trial. Nor can we agree that delaying the trial beyond the first week of January due to the trial judge undergoing oral surgery constitutes good cause. In Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987) the Arkansas Supreme Court held that a judge’s absence due to illness or incapacity does not constitute a good cause for delay in bringing an accused to trial.
While we agree that the days with extreme weather conditions surrounding the trial dates of December 15, 1987, and January 6,1988, constitute good cause for delay, we cannot agree that the entire seventy day period as found by the court is excludable. Although there was a conflict as to the exact number of days that the weather conditions persisted, we find a violation of appellants’ right to a speedy trial even when we employ the trial judge’s more lengthy estimation of seven bad weather days.
The state failed to show that the delay in bringing appellants to trial was justified and we find that the court erred in excluding more than the actual bad weather days. Under Rule 28 of the Arkansas Rules of Criminal Procedure concerning calculations of the speedy trial period and based upon the exclusion of only seven days, Rondal, who was charged on July 10, 1986, should have been tried on or before January 18,1988. Randy, who was charged on July 18,1986, should have been tried on or before January 25, 1988. Both were tried on February 22, 1988, in violation of their right to a speedy trial. We, therefore, reverse and dismiss.
Reversed and dismissed.
Jennings and Coulson, JJ., agree. | [
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Per Curiam.
The appellee was injured on June 13, 1979. The only issue in a hearing before the administrative law judge was whether the statute of limitations found in Ark. Code Ann. § ll-9-702(a)(l) (1987) [formerly Ark. Stat. Ann. § 81-1318(a)(1) (Supp. 1985)] barred the appellee’s claim. After finding that appellee’s claim was not barred, the administrative law judge stated in his opinion that the parties could “proceed with the remaining issues of claimant’s entitlement to medical, temporary total, and permanent disability benefits.” The appellant then appealed to the full Commission. The full Commission also found that the appellee’s claim was not barred by the statute of limitations, and “remanded for a determination of appropriate benefits.”
In response to the appellant’s filing of an appeal with this Court, the appellee has filed a motion to dismiss, arguing that the Commission’s order is not an appealable order. We agree and dismiss the appeal.
The general rule is that for an order to be appealable, it must be a final order. Ark. R. App. P. Rule 2. To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. This rule applies equally to appeals from the Workers’ Compensation Commission. H.E. McConnell & Son v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970); Samuels Hide and Metal Co. v. Griffin, 23 Ark. App. 3, 739 S.W.2d 698 (1987). Interlocutory decisions and decisions on incidental matters are not reviewable for lack of finality, and ordinarily an order of the Commission is reviewable only at the point where it awards or denies compensation. Hernandez v. Simmons Industries and Allen Canning Co., 25 Ark. App. 25, 752 S.W.2d 45 (1988); citing 3 A. Larson, The Law of Workmen’s Compensation § 80.11 (1983).
In its response to the motion to dismiss, the appellant cites the case of Danco Construction Company v. City of Fort Smith, 268 Ark. 1053, 598 S.W.2d 437 (Ark. App. 1980), for the proposition that a finding that a claim is not barred by the statute of limitations is appealable. In that case Forth Smith had filed suit against Danco and in its answer Danco affirmatively pled the statute of limitations. Danco then filed a motion for summary judgment and the City responded, alleging that there were genuine issues of material fact in dispute concerning the statute of limitations. The trial court overruled Danco’s motion for summary judgment and also stated that the City was not barred by statute of limitations.
On appeal, this Court stated that the trial court’s decision should have been limited to the question of whether there were genuine issues of material fact present, and that when a denial of a motion for summary judgment is so limited it is not appealable. We also held that the portion of the order ruling that the City was not barred by the statute of limitations would operate to foreclose appellant from further asserting that defense and offering evidence at trial on that issue. That portion of the order was held to be a final order and therefore, appealable. Danco does not stand for the proposition that a finding that a claim is not barred by the statute of limitations is an appealable order: it stands for the proposition that where a court makes a gratuitous finding about an issue in dispute in a motion for summary judgment, the effect of which is to preclude further presentation of evidence and fact finding on the issue, that finding is appealable. It was the fact that the trial court made a finding about the statute of limitations, instead of limiting itself to a finding that there were genuine issues of material fact, that made that part of the order appealable.
In the present case, all of the evidence on the issue of the statute of limitations had been presented to the administrative law judge. His finding that the claim is not barred by the statute of limitations is not appealable. See Ross v. McDaniel, 252 Ark. 253, 478 S.W.2d 430 (1972).
The appellant also points out in its response that if the Commission had found that the appellee’s claim was barred by the statute of limitations, then the appellee would have a right to appeal that decision. The appellant contends that because the law grants mutuality of rights, then it should be able to appeal the Commission’s finding that the claim was not barred.
However, this argument fails to recognize the fact that a decision that the claim was barred, would have been final, because all of the parties’ rights in the litigation would have been completely resolved. In the present case, all of the parties’ rights have not been resolved, there has been no award or denial of benefits, and the Commission’s order is not final. Should the Commission award benefits, and if the employer chooses to appeal, the limitations issues can be raised then.
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Pope County Circuit Court. Appellant, Betty Joyce Hendrix, appeals from an order of the trial court which set aside a default judgment entered against appellee, Joe David McAfee Hendrix. We find error and reverse and remand.
The record reflects that the parties were divorced in 1987, and appellant intended to file an individual tax return for 1986 to enable her college-age children to be eligible for financial aid. The pertinent facts which gave rise to the default judgment entered against appellee involve an agreement whereby appellant alleges she agreed to file a joint tax return with appellee for 1986 in return for which appellee agreed to reimburse appellant for the amount of financial aid that the children would lose because of the joint filing. Appellant did not receive the money she alleged was owed her by appellee and subsequently in October of 1987 her attorney sent appellee a letter accompanied by a complaint seeking reimbursement. The letter generally stated that suit would be filed if the matter of financial aid reimbursement could not be settled within one week. The complaint accompanying the letter was not file marked or signed but contained the case number CIV-87-299. Appellee obtained an attorney and filed a reply to the unfiled petition denying he owed appellant any sum of money. On November 10, 1987, appellant’s attorney filed a complaint identical to the one previously mailed to appellee with the exception that the case number was changed to CIV-87-426. A summons was duly issued and served upon appellee by certified mail, with a signed return receipt dated November 27, 1987.
A default judgment was entered against appellee for $5,815.00 on December 29, 1987, since no pleading was filed in behalf of appellee to the second complaint numbered CIV-87-426, and appellee failed to appear or defend. When appellee learned of the default judgment, he filed an answer to appellant’s second complaint on December 31,1987, followed on January 27, 1988, by an amended motion to set aside the judgment by default. The amended motion contained information regarding the differing case numbers, the dates of both complaints and the answers filed thereto. Lastly, appellee alleged that this gave rise to and caused an “unavoidable casualty.”
A hearing was conducted on April 5, 1988, on appellee’s motion to set aside judgment by default and his amended motion to set aside judgment by default. On April 7, 1988, the court entered its order setting aside the default judgment based “upon the pleadings, statements and argument of counsel and other things and matters before this court.” This appeal is taken from the court’s order of April 7, 1988.
Appellant’s only argument on appeal is that the circuit judge erred in setting aside the default judgment because appellee failed to plead and prove a meritorious defense. We agree.
Rule 55(c) of the Arkansas Rules of Civil Procedure provides that a default judgment may be set aside “upon a showing of excusable neglect, unavoidable casualty, or other just cause.” Further, Rule 60(c)(7) provides that a judgment may be vacated for “unavoidable casualty or misfortune preventing the party from appearing or defending.” Appellee contends that the confusion created by appellant’s attorney’s trickery regarding the unfiled and filed complaints bearing different case numbers constituted an unavoidable casualty which justified the court’s order setting aside the default judgment. Appellee also contends that the court order was proper because he did not receive the three day notice required when an application for a default is made under Arkansas Rule of Civil Procedure 55(b).
Rule 60(d) of the Arkansas Rules of Civil Procedure provides that no judgment against a defendant shall be set aside unless the defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such a defense. See Farmers Union Mut. Ins. Co. v. Mockbee, 21 Ark. App. 252, 731 S.W.2d 239 (1987). This court in Bunker v. Bunker, 17 Ark. App. 7, 701 S.W.2d 709 (1986) said that in order to prevail under either Rule 55,60(b) or 60(c), a party is required to show that it has a meritorious defense. The motion itself must assert this defense. Taggart v. Moore, 8 Ark. App. 160, 650 S.W.2d 590 (1983). A meritorious defense has been defined as:
evidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.
Tucker v. Johnson, 275 Ark. 61, 66, 628 S.W.2d 281, 283-4 (1982).
In the case at bar, appellee’s efforts fall short of establishing the necessary requirements under Rules 55 and 60 entitling him to an order vacating the default judgment. Appellee’s motion merely contained the factual data surrounding the two complaints and responses, and the bare allegation that “this has given rise and causing an unavoidable casualty on behalf of the defendant.” Nowhere in appellee’s motion did he assert a valid or meritorious defense, nor did he make any showing of such a defense at the hearing. Appellee did not testify at the hearing on his motion. In fact, the testimony at the hearing consisted solely of that presented by appellant’s attorney who took the stand to explain to the court the events which led to the default judgment entered against appellee. During cross-examination, appellee’s attorney disputed appellant’s attorney’s version of the events; however, at no time was a defense to appellant’s action for recovery of money shown.
A trial judge has wide discretion in determining whether a default judgment should be set aside and this court will not reverse the decision of the trial judge absent an abuse of that discretion. Southern Paper Box Co. v. Houston, 15 Ark. App. 176, 690 S.W.2d 745 (1985). Appellee did not raise a valid defense to the judgment in his motion pursuant to Rule 60(d), and we hold that the trial court abused its discretion in setting aside the default judgment. Therefore, we reverse and remand with directions to the trial court to reinstate the default judgment.
Reversed and remanded.
Cracraft and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
Charles J. Upton, Jr., died on December 14,1985, survived by two adult children from his first marriage, his second wife, Joyce, and their daughter, Pamela Rene Upton. A will dated June 12,1979, left Upton’s entire estate to his wife Joyce. Upton’s two adult children, appellants herein, appeal from the decision of the probate court admitting their father’s will to probate. Their stepmother, as executrix of her husband’s estate, is the appellee.
On appeal, the appellants argue that the appellee failed to prove the proper execution of the will. They cite Ark. Stat. Ann. § 60-403 (Repl. 1971) [now Ark. Code Ann. § 28-25-103 (1987)] which they contend “requires two attesting witnesses who sign in the presence of the testator and of each other,” and appellants claim that the evidence does not “prove that these formalities were followed.”
We first point out that appellants are mistaken in their contention that the attesting witnesses are required to sign the will in the presence of each other. In Coleman v. Walls, 241 Ark. 842, 844, 410 S.W.2d 749 (1967), the court said: “There has never been any requirement in Arkansas that the two witnesses sign in the presence of each other, though in construing our original statute we said that such a course might be most prudent.” Coleman was considering Ark. Stat. Ann. § 60-403 (Supp. 1965), but Ark. Stat. Ann. § 60-403 (Repl. 1971), which is applicable in the present case, contains the same provisions as were considered in Coleman.
As to the sufficiency of the evidence in regard to the other formalities, the evidence shows that one of the witnesses to Upton’s will, William E. Hightower, was the former law partner of the attorney who prepared the will, James C. McCaa, but Hightower was unavailable to testify because he had predeceased Mr. Upton. The other witness, Clyde A. Self, testified that he was called by Upton and asked to come to McCaa’s office to witness Upton’s will. He said he observed Upton sign the will and then signed as a witness. He remembered Joyce Upton and McCaa being in the office but could recall no one else being present. He said he left as soon as he had signed the will. He also testified that he had known Upton for twenty to twenty-five years, knew that Upton was an alcoholic and knew that Upton had been very ill. However, Self said, on the day of the will signing, Upton looked well, did not appear to him to have been drinking and did not appear to be acting under improper influence of anyone.
McCaa, who currently resides in Virginia, testified by deposition upon written interrogatories that he prepared the will for Upton, following Upton’s instructions. He said he reviewed the contents of the will with Upton before its execution and was satisfied that Upton understood its provisions and that they represented his wishes. McCaa said he never observed any conduct of Joyce Upton which indicated that she was attempting to influence Upton in any way. In response to interrogatory number 6, “Where was this Will executed?” McCaa replied, “At my then office in West Memphis, Arkansas, at the corner of 4th Street and Broadway.”
Based upon this evidence, the probate judge found that the will had been properly executed and should be admitted to probate. It is clear that if attesting witnesses are unavailable, the genuineness of their signatures, and the signature of the testator, may be proved by two credible witnesses who are disinterested. See Walpole v. Lewis, 254 Ark. 89, 92, 492 S.W.2d 410 (1973), and Ark. Stat. Ann. § 62-2117 (Repl. 1971).
In explaining his decision, the trial judge read from the opinion in Walpole where the Arkansas Supreme Court said:
In determining whether there is sufficient proof of the only lacking essential, we follow our historical practice of avoiding a strict technical construction of statutory requirements where there is no indication of fraud, deception, imposition, or undue influence. If that were not done but few wills could be sustained. As a corollary, the meeting of some of the requirements for due execution may be inferred from all the attending circumstances. The only fair inference to be drawn from the circumstances shown here is that Arthur F. Turley signed as an attesting witness at the request of Lovie Harris. As we said in Hanel, it would be a strict, if not a dangerous, construction to require proof that the testator made a specific request of each witness to sign his name as a witness before the will is held valid. [Citations omitted.]
254 Ark. at 94. Relying upon the Walpole rationale, the judge said that the only reasonable inference that could be made from the deposition of McCaa in the instant case, particularly the number 6 question and answer, would be that Upton’s will was properly signed by the testator and the attesting witnesses.
Appellants argue that no presumption should arise in the present case because Self did not remember seeing any other witness in the room at the time Upton executed the will and Self witnessed it, and two disinterested persons must verify the authenticity of the testator’s signature. They argue that McCaa is not disinterested because he prepared the will and it is in his professional interest that the court hold it valid. The Arkansas Supreme Court, however, has held that the attorney who drafted a will and was named therein as attorney for the estate was a qualified attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 98, 364 S.W.2d 665 (1963), and Rosenbaum v. Cahn, 234 Ark. 290, 305, 351 S.W.2d 857 (1961). Therefore, we think the judge could properly consider McCaa’s deposition in making his decision.
The appellants also contend that McCaa’s deposition did not address the formalities that are required by Ark. Stat. Ann. § 60-403 (Repl. 1971) and that it was error to presume from the overall tenor of his testimony that those formalities were complied with. In Edwards v. Knowles, 225 Ark. 1024, 287 S.W.2d 449 (1956), the court said it is the general rule that no presumption of the due execution of a will arises from the mere production of an instrument purporting to be a last will and testament; however, where a will is presented which appears to have been properly executed, and the attestation is established by proof of the handwriting of the witnesses, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with the requirements of the statute. 225 Ark. at 1027.
More recently, in Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983), after citing some of the cases cited here, this court stated:
The requirements for establishing an attested will must be read together and construed to permit establishment of the will by any legally admissible evidence or requisite facts in order that the testatrix’s wishes may not be thwarted by straightlaced construction of statutory language where there is no indication of fraud, deception, imposition or undue influence.
9 Ark. App. at 241-42.
Probate cases are tried de novo on appeal, but the decision of the probate judge will not be reversed unless it is clearly against the preponderance of the evidence. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).
After reviewing the record, the testimony of Mr. Self, the deposition of Mr. McCaa, and the will itself, we have concluded that the trial judge’s decision that the inference from McCaa’s deposition that the will was properly signed and attested is not clearly against the preponderance of the evidence.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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James R. Cooper, Judge.
The appellant in this chancery case, the executor of the estate of Vera Bell Hamilton, brought an action to set aside a deed executed by the deceased, alleging that it was invalid because of the grantor’s lack of mental capacity and undue influence exerted on the grantor. The complaint also alleged that the deed violated an oral contract between the deceased and her husband to execute and not to revoke reciprocal wills. In an order filed February 19, 1988, the chancellor found that the appellant failed to prove lack of mental capacity or violation of the oral contract concerning reciprocal wills. From that decision, comes this appeal.
The appellant contends that the trial court erred in ruling that certain statements regarding the execution of Mrs. Hamilton’s will, and her then-existing state of mind and physical condition, were inadmissible. We reverse.
At trial there was evidence that the deceased, Vera Bell Hamilton, and her husband, Horace Hamilton, entered into an oral contract to execute reciprocal wills to provide that the surviving spouse would inherit the entire estate and, upon the death of the survivor, the real property would be inherited by their son, James Hamilton, and his wife. According to the purported agreement, the personal property was on the survivor’s death to be divided between the appellees, Ruth Hamilton Hickey and Wanda Hamilton Jones, the daughters of Vera and Horace Hamilton. Horace died in 1980, and Vera received all of his assets under the provisions of his will. However, on August 2, 1984, Vera executed a warranty deed conveying the real property mentioned in the oral contract to Ruth and Wanda, the appellees, subject to a life estate reserved to herself. Vera subsequently died on October 1, 1984.
The appellant contends that, on four occasions, the chancellor erroneously sustained objections to questions asked by the appellant’s attorney. The first instance involved testimony given by Vera’s daughter-in-law concerning a series of strokes Vera suffered just prior to her death. The appellant’s attorney attempted to elicit testimony fixing the period of time in which the strokes took place; when the witness began to answer on the basis of what Vera had told her about the strokes, the appellee made a hearsay objection which the chancellor sustained. A second hearsay objection was sustained when the same witness attempted to testify about the oral agreement to make reciprocal wills, based on discussions she had heard between Horace Hamilton, Vera Hamilton, and James Hamilton. The testimony of Ruth Hickey concerning Horace and Vera’s intentions to make wills leaving their real property to James was also excluded by the chancellor on hearsay grounds. Finally, the chancellor sustained a hearsay objection to the testimony of Bessie Clevenger, concerning statements made in her presence by Horace and Vera at the time the wills were executed.
Rule 803(3) of the Arkansas Rules of Evidence provides that the hearsay rule does not exclude:
A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of de-clarant’s will.
The appellant did not proffer any of the excluded testimony. With respect to the questions concerning Vera’s strokes and the agreement to make reciprocal wills, we are unable to determine from the context in which the questions were asked whether the evidence related to the wills per se or to other theories advanced by the appellant at trial. Under these circumstances, the chancellor’s exclusion of the evidence cannot be considered error. Boykin v. State, 270 Ark. 284, 603 S.W.2d 911 (1980); A.R.E. 103(a)(2). However, it is apparent from the context of the question addressed to Bessie Clevenger concerning what was said when the wills were executed that the substance of the testimony, if permitted, would have concerned the intent and state of mind of the testators at the time the wills were executed. Moreover, at a prior bench conference concerning the exception to Rule 803(3) dealing with statements of memory or belief relating to the execution of a will, the appellant’s attorney discussed at length the admissibility of testimony he would seek to introduce at trial. In this context, he stated that it was common knowledge among family members that the decedents had agreed to make wills leaving their real property to James Hamilton, and that he could demonstrate the existence of the agreement through third-party witnesses to the agreement who were not beneficiaries. In light of this bench conference and of Bessie Clevenger’s testimony that she was Horace Hamilton’s sister and that she was present when the wills were executed, we think that the proffer was sufficient and that the testimony was proper under Ark. R. Evid. 803(3), see Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). We hold that the chancellor erred in excluding this testimony.
Reversed and remanded.
Corbin, C.J., and Mayfield, J., agree. | [
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John E. Jennings, Chief Judge.
Dynamic Enterprises, Inc., owns and operates a chain of used car sales lots which do business under the name of Car Mart. Bob Dimango was the manager of the Car Mart location in Batesville. Appellant, General Agents Insurance Company of America, was the garage liability insurance carrier for Car Mart.
On October 3,1986, Dimango left work in a car he selected from those on the lot. There is no dispute that Dimango was allowed to drive whatever vehicle he wanted that was on the lot and that he drove different vehicles from time to time. He and a friend, Jerry Gray, went to a bar that night and while returning home they had a wreck and Mr. Gray was killed.
In denying coverage the appellant relied on a provision of the policy excluding “those automobiles . . . furnished for the regular use of. . . employees[.]” While appellant concedes that the particular automobile Dimango was driving at the time of the accident was not regularly used by him, it argues, in effect, that all of the cars on the lot were furnished for Dimango’s regular use because of Car Mart’s policy permitting him to drive any one he chose. The trial court held to the contrary and we find no error.
We certainly agree with the general principles appellant states: when the contract is clear, it must be interpreted in accordance with the plain meaning of its words; a word should be given its obvious meaning; and insurance coverage should not be extended to cover a risk for which a premium has not been collected. On the other hand, we think the trial court was entirely correct in holding that the automobile involved in the accident was not one “furnished for the regular use of’ Mr. Dimango. It has been held that “regular use” means “principal use as distinguished from a casual or incidental use.” See Tillotson v. Farmers Ins. Co., 276 Ark. 450, 637 S.W.2d 541 (1982).
In the case at bar, Mr. Dimango regularly used vehicles off the lot for his nonbusiness purposes. He did not, however, as even the appellant concedes, use the vehicle involved in the accident on a regular basis. Nor was it furnished to him for his regular use. Given the undisputed facts in this case, we agree with the trial court’s conclusion.
Affirmed.
Cooper and Robbins, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with murder in the second degree. After a jury trial, she was convicted of manslaughter, fined $10,000.00, and sentenced to ten years in the Arkansas Department of Correction. Subsequently, the appellant filed a motion for a new trial pursuant to Rule 36.22 of the Arkansas Rules of Criminal Procedure, asserting ineffective assistance of counsel. The trial court overruled the motion on the grounds that the appellant had failed to show facts constituting grounds for a new trial. The appellant appealed her conviction and the denial of her motion for a new trial to this Court and, in an opinion not designated for publication delivered on May 2, 1990, we held that Arkansas Rule of Criminal Procedure 36.22 mandates that the trial judge hold a hearing on a motion for a new trial if one is requested by the convicted defendant. Because the trial court failed to conduct an evidentiary hearing, we reversed and remanded for such a hearing to be conducted. Pursuant to our mandate, the trial court held an evidentiary hearing on December 14, 1990, and on September 26, 1991, entered an order denying the appellant’s motion for a new trial. From that decision, comes this appeal.
For reversal, the appellant contends that she was denied effective assistance of counsel by virtue of her trial counsel’s failure to interview and subpoena witnesses; to proffer evidence objected to by the State; to submit adequate jury instructions; and failure to impeach witnesses called by the prosecution. We find no prejudicial error, and we affirm.
The standard of review applicable to claims of ineffective assistance of counsel was summarized by our Supreme Court in Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990):
To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).
Mullins, supra, 303 Ark. at 698-699. Therefore, the test for ineffective assistance of counsel consists of two components: deficient performance by counsel, and prejudice suffered by the defendant. The defendant is not entitled to relief unless he makes the requisite showing on both components. See Beavers v. Lockhart, 755 F.2d 657 (8th Cir. 1985).
Regardless of how pervasive trial counsel’s errors may be, there is no presumption of prejudice in determining whether a defendant was denied effective assistance of counsel. Rode v. Lockhart, 675 F. Supp. 491 (E.D. Ark. 1987). Instead, the burden of showing prejudice rests on the party claiming ineffective assistance of counsel. Fink v. Lockhart, 823 F.2d 204 (8th Cir. 1987). The strength of the State’s case against an accused is an important factor to consider in resolving the issue of prejudice. Rode v. Lockhart, supra.
We affirm because, even assuming, without deciding, that trial counsel’s performance in the case at bar was deficient, the appellant has failed to show, as she must, that any deficient performance which occurred prejudiced the defense.
The appellant had been living with the victim in his home since late September 1987. She admitted that she shot and killed the victim approximately ten weeks later, on December 13,1987. Having admitted the killing, the appellant’s plea of not guilty to the charge of second degree murder was based on her defense of justification. Prior to trial, the appellant’s trial attorney informed the appellant of a proposed plea bargain whereby the appellant would not be fined, would serve no prison time, and would be placed on probation for ten years in exchange for a guilty plea to manslaughter. The appellant refused this proposal, was tried before a jury on charges of murder in the second degree, was convicted of manslaughter, fined $10,000.00, and sentenced to ten years imprisonment.
The appellant asserts that she was prejudiced by trial counsel’s failure to investigate, interview, and subpoena witnesses material to her defense.
We note that ineffective assistance complaints based on counsel’s failure to secure witnesses are disfavored because presentation of evidence is a matter of trial strategy. Walker v. Lockhart, 807 F.2d 136 (8th Cir. 1986). Furthermore, “ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government’s case.” Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).
In the case at bar, the State’s case was strengthened by the fact that the appellant admitted that she shot and killed the victim. She argues that trial counsel was ineffective in failing to call several witnesses to testify in support of her theory of self-defense. Four of these witnesses could have testified to injuries the appellant sustained prior to the shooting. However, our review of the record reveals that these injuries, consisting of a knot on the head and several bruises, were relatively minor in nature. Furthermore, the appellant testified at length at trial, asserting that she was injured during beatings delivered by the victim before she shot him. In the absence of any proffered evidence to show that these injuries were severe or otherwise life threatening, we cannot say that the appellant was prejudiced by the absence of this testimony.
We reach a similar conclusion regarding the appellant’s argument that she was prejudiced by her trial counsel’s failure to proffer evidence of prior acts of violence by the victim directed at other persons. It is not clear from the record before us to what extent, if any, a proffer was made with regard to this evidence. Nevertheless, the appellant testified at length and in great detail concerning acts of violence by the victim towards herself and others, and her testimony clearly depicts the victim as a cruel and unbalanced man.
We think it significant that the appellant was not convicted of second degree murder as charged, but was instead convicted of manslaughter, which is committed by one who:
causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse.
Ark. Code Ann. § 5-10-104(a)(l) (1987). Inasmuch as the defense of justification advanced by the appellant is a defense conditioned on a reasonable belief on the part of the actor that unlawful physical force is about to be inflicted on him, see Bargery v. State, 37 Ark. App. 118, 825 S.W.2d 831 (1991), it appears that the jury gave credence to the appellant’s testimony concerning the victim’s violent acts towards her. Although the testimony proffered at the hearing on the appellant’s motion for a new trial constituted additional evidence relating to the victim’s character, we cannot say that this additional evidence was so different in kind or nature from that offered by the appellant at trial that trial counsel’s failure to proffer it prejudiced the defense.
The appellant also argues that she was prejudiced by her counsel’s failure to submit adequate jury instructions regarding the defense of justification and the lesser offense of negligent homicide. Specifically, she argues that her trial counsel failed to request an instruction informing the jury that she was under no obligation to retreat from an aggressor in her own dwelling. We find no merit in this argument because it is clear from the record that, whether or not she was under an obligation to do so, the appellant had in fact retreated prior to the shooting, and that the victim was shot in the bedroom to which she had retreated. With regard to the appellant’s argument that she was prejudiced by her trial counsel’s failure to submit an instruction for negligent homicide, we find no prejudice because, under the circumstances of this case, where the appellant admitted to purposely shooting the victim, we find no rational basis for a negligent homicide instruction. See O’Roark v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).
Finally, the appellant argues that her trial counsel was ineffective in his failure to impeach two witnesses, Joe Logsdon and Officer Gary McVay. At the hearing on the appellant’s motion for a new trial, the appellant’s trial counsel testified that he did not impeach Mr. Logsdon at trial because he believed that Mr. Logsdon’s credibility had already been destroyed. Although it is clear from the record before us that appellant’s trial counsel had an opportunity to impeach the testimony of both of these witnesses, the ultimate question of whether such impeachment would have affected the result of the trial turns heavily on the credibility of their prior testimony. We note that the appellant had testified that Mr. Logsdon had encouraged the victim in his abuse and beating of the appellant; that Mr. Logsdon and the victim had had a pact whereby Mr. Logsdon would avenge the victim if the appellant ever harmed him; and that Mr. Logsdon threatened the appellant and had to be held at gunpoint by her until the police arrived. Given this evidence, and giving due deference to the trial court’s ability to assess the credibility of the witnesses, we cannot say that the result of the proceeding would have been different had these witnesses been impeached.
When we consider the arguments raised by the appellant, and the facts adduced at trial and in the motion for a new trial in light of the totality of the circumstances, including the fact that the appellant had admitted to killing the victim and that she was not convicted of second degree murder, but instead of the lesser included offense of manslaughter, we cannot say that the appellant was prejudiced by any errors which trial counsel may have committed.
Affirmed.
Pittman, Robbins, and Rogers, JJ., dissent. | [
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Beth Gladden Coulson, Judge.
Appellant, Peggy Boggs, appeals from a divorce decree that denied alimony and found certain personal property to be the separate or nonmarital property of appellee, Donald D. Boggs. We affirm in part and reverse in part and remand.
Appellant and appellee married in 1955. Appellee is a senior vice president of First National Bank in Searcy. Appellant, who has a high school diploma and some typing and clerical skills, has not worked outside the home for much of the marriage. In April 1987, appellant petitioned for divorce based on general indignities. Appellee counterclaimed. A trial was held before the chancellor on November 3, 1987, and the trial court denied appellant’s request for divorce, granting appellee the divorce on the ground of adultery. The court denied appellant’s request for alimony and divided the parties’ property. In the property division, the chancellor found that the following was nonmarital property and not subject to division upon divorce: an earnings asset account, one-hundred-fifty shares of bank stock, and two individual retirement accounts. From those rulings, appellant brings this appeal.
For her first point for reversal, appellant argues that the trial court erred in ruling that the earnings asset account was nonmarital property. Before opening the earnings asset account, but during the marriage, appellee received about $50,000 from his parents’ estate. Initially, he used the money to purchase certificates of deposit that earned interest until January 1983, when he transferred the inherited funds, and the interest, to the earnings asset account. Originally, the account was in the names of “Don or Peggy Boggs.” In May 1983, appellant changed the account to “Don Boggs, payable on death to Peggy Boggs.” Appellee closed the account in 1987, after appellant had filed for divorce.
In finding that the earnings asset account was nonmarital property, the trial court held that the burden had been on appellant to prove that an inter vivos gift was made to her when appellee put both his name and appellant’s on the account. The trial court relied on Hayse v. Hayse, 4 Ark. App. 160-B, 630 S.W.2d 48 (1982), a case that this court examined in Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). Although the chancellor in the instant case did not have the benefit of the precedent in Lofton, we find it controlling.
In Lofton, we clarified the law applicable to personal property held by the entireties and, in particular, joint accounts. We held that when property, personal or real, is placed in the names of a husband and wife, the presumption arises that they own the property as tenants by the entirety. Lofton v. Lofton, supra. Clear and convincing evidence is required to overcome the presumption that the spouse depositing the money in the joint account did not intend a gift or one-half interest to the other spouse. Id. Once established,' one spouse or the other lacks unilateral power to destroy the entirety. See Lofton v. Lofton, supra.
Having found that Lofton is controlling rather than Hayse v. Hayse, supra, we remand for further proceedings in which the chancellor must determine whether appellee has met his burden of rebutting the presumption that the earnings asset account in both spouses’ names was held as a tenancy by the entirety. Furthermore, in regard to the interest on the certificates of deposit (CD’s) that appellee used to open the account, the Supreme Court of Arkansas has held that marital property includes the income derived from nonmarital property acquired after the marriage. Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987). In the instant case, the chancellor did not have the benefit of the Wagoner precedent, which is controlling. Clearly the interest that accrued on the CD’s was marital property. On remand, the trial court’s findings must be consistent with the holding in Wagoner.
Appellant’s second point for reversal is that the trial court erred in ruling that bank stock purchased by appellee was nonmarital property. As a bank officer, appellee was offered the opportunity to purchase stock in the bank’s holding company, First Central Corporation, a closely held corporation. He made two stock purchases for a total of one-hundred-fifty shares.
The first purchase was in June 1978, when appellee purchased sixty-one shares for $7,015. The purchase was made with funds drawn from a joint savings account in the names of appellee and his father. At trial, appellee and Wayne Hartsfield, president of the bank where appellee works, testified that the money in the account was solely that of appellee’s father. The trial court held that the withdrawal from the account to purchase the stock was a gift, from the father, and that the stock was nonmarital property. We find that the chancellor erred on this issue.
Monies earned from the rental of a car lot owned by appellee and his father were deposited in the joint savings account of appellee and his father. Appellee and his father purchased the property after appellant and appellee had married, and the trial court found that the car lot was marital property. There is no appeal from that finding. Concerning whether income from the car lot was ever deposited in the joint account that was in the name of appellee and his father, the record reveals that appellee testified as follows:
QUESTION: When you got the rental check from the car lot, did you put your share in that account or just his share (the share of appellee’s father) in that account?
ANSWER: Well, on occasion, I probably put some of the rental money in his account (the account held in the names of appellee and his father), but when I did, I mean, he never did draw any rental money and occasionally I’d just pop a check in there for him or something.
Our supreme court held in Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), that property acquired during the marriage, such as the income from the car lot in the instant case, is presumed to be marital property. Relying in part on Potter, this court has stated that where transactions result in great difficulty in tracing the manner in which nonmarital and marital property have been commingled, the property acquired in the final transaction may be declared marital property. See Speer v. Speer, 18 Ark. App. 186, 712 S.W.2d 659 (1986). In the instant case, the evidence does not permit tracing of the funds, and, based on the testimony above, we cannot be certain of the extent to which separate funds, as opposed to marital funds, were used to acquire the stock. We reverse and remand for the chancellor to divide the sixty-one shares of stock as marital property, pursuant to Ark. Code Ann. Section 9-12-315 (Supp. 1987). In that division, the spouses must be treated equally unless a valid reason exists for making a distinction between them. See Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).
Appellant’s second point for reversal also addresses the bank stock purchases appellee made in 1983, when he bought eighty-nine shares with funds from the earnings asset account. The question of any distribution of that stock as marital property will depend on the trial court’s ruling on remand, in light of Lofton v. Lofton, supra, whether the earnings asset account was marital property. The issue of whether the earnings asset account was marital property also will decide the question raised by appellant’s third argument for reversal. For her third argument, appellant contends that the trial court erred in finding that two individual retirement accounts (IRA’s) were nonmarital property. Appellee purchased the IRA’s for himself out of the earnings asset account.
Appellant’s final argument is that the trial court erred in denying alimony. The award of alimony is not mandatory; it is a question that addresses itself to the sound discretion of the chancellor. Lofton v. Lofton, supra. We do not disturb the chancellor’s decision absent a clear abuse of that discretion. Id. Numerous factors are considered in determining whether to set alimony. Weathers v. Weathers, 9 Ark. App. 300, 658 S.W.2d 427 (1983). The trial court heard testimony on those factors and stated in its decree that it had fully considered them. Without discussion of the details of the evidence, we hold that the chancellor did not abuse his discretion in his ruling on alimony.
Affirmed in part; reversed in part and remanded. | [
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Melvin Mayfield, Judge.
Appellant, David Tiller, was found guilty by a jury of attempted burglary and was sentenced as a habitual offender to thirty years in the Arkansas Department of Correction. We reduce the judgment to attempted criminal trespass and remand for resentencing.
A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201 (a) (1987). A person attempts to commit an offense if he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be. Ark. Code Ann. § 5-3-201 (a)(2) (1987).
At trial, Deanna Hinderliter testified that on January 10, 1992, she and her husband were living in an upstairs apartment in a large apartment complex. The Hinderliters both worked nights but Mrs. Hinderliter was not required to work on January 10. She said after her husband left for work she was cleaning house, doing laundry, and watching television when someone knocked on the door. She explained that it is her policy not to answer the door when her husband is not at home; however, she did look through the peephole in the door and saw appellant, her next-door neighbor, standing at the door. She said the door was locked with the regular lock and a deadbolt lock, and as she remained quiet and watched, appellant started twisting the door knob and looking around. According to Mrs. Hinderliter, appellant then put a piece of plastic in the door and tried to flip the bottom lock. She watched him for a while, then went back and sat down; when she heard appellant’s apartment door close, she looked out the peephole again and he was gone.
Mrs. Hinderliter said she called the police, but after being told an officer would have to come to her door and talk to her then go to Mr. Tiller’s door, she told them to “just forget about it for now” because she did not want appellant to know she was home. She testified that later appellant came to her door again. This time he did not knock but just started attempting to unlock the door. Mrs. Hinderliter said she couldn’t see what was in his hand, but she knew it was metal because she could identify the sound of metal scraping against the metal door; and when she looked through the peephole she could see appellant pushing on the door and looking around. She said she could hear wood popping and breaking and was afraid the door would not hold, so she called the police again.
Mrs. Hinderliter related that as officers examined the damage to the door, a metal piece fell off. After the officers left she tried to screw the piece back on, but she still had trouble keeping the door closed and she had to deadbolt it. She also said the metal door had dents on the edge of it, and the wooden doorjamb was split.
On cross-examination Mrs. Hinderliter said appellant and his wife had lived in the next apartment when she and her husband moved in. She described them as “down on their luck”; they had no car or telephone and neither of them had a job. She explained that they met when the Tillers’ child had a seizure and afterward she and her husband allowed the Tillers to use their phone. They also took the Tillers to the store and Mr. Hinderliter even tried to arrange a job for appellant but “that fell through.” She said that the Tillers became annoying because they would come over to use the phone at inconvenient times, sometimes more than once a day, and they gave the Hinderliters’ telephone number to their friends who frequently called and left messages for the Hinderliters to relay to the Tillers.
Mrs. Hinderliter also disclosed that she had signed “some papers” for the appellant which purportedly allowed his family to get food stamps. Later, appellant told her he had gotten some forms from the “Unemployed Parent” for her to sign, but he had gone ahead and signed them for her. She said, “he didn’t have a right to sign my name,” and for that reason she and her husband had “cut off complete contact” with the Tillers.
Gary Crews, a Fayetteville police officer, testified that after talking to Mrs. Hinderliter, he arrested appellant and when appellant produced his driver’s license, the edges were all jagged and torn up, which, the officer said, indicated that the plastic card had been used to “jimmy” a door lock. He said appellant admitted that he had gone to Mrs. Hinderliter’s apartment twice that evening but had insisted he only wanted to use her telephone. Officer Crews also testified that a man who identified himself as Reverend McGarrah told the officer he had just returned from driving appellant to the store to use the telephone.
Officer Robert Haas testified that the doorjamb to the Hinderliters’ apartment was very scratched, the latch plate fell off, underneath the latch plate was scuffed up, and the door would not stay closed.
Reverend Russell McGarrah testified for the defense that he and his wife visited the Tillers on the day involved, and appellant had gone to the apartment next door a couple of times to try to use the phone but no one was home. McGarrah said he and appellant then went to a nearby store so appellant could use a phone and when they returned to the apartment complex the police were there.
Appellant argues on appeal that the trial court erred in denying his motion for a directed verdict on the basis that the prosecution’s evidence was insufficient to find that he was guilty of attempted burglary beyond a reasonable doubt. A motion for a directed verdict is a challenge to the sufficiency of the evidence. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988), Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991). On appeal, this court does not weigh the evidence favorable to the accused; it views the evidence in the light most favorable to the State, considering only the evidence that tends to support the conviction, Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989), and affirms the judgment if there is any substantial evidence to support the finding of the trier of fact. Woodberry v. State, 35 Ark. App. 129, 811 S.W.2d 339 (1991); Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan v. State, supra.
The State is required to prove every element of the crime charged beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975). Appellant alleges that an element of the crime of burglary is that it be the conscious object of the accused to commit an offense punishable by imprisonment at the time he illegally enters the occupiable structure. He argues that, assuming he was attempting to break into his neighbor’s apartment, there was no evidence whatsoever that once inside he intended to do anything but use the telephone.
Intent is a state of mind which is not ordinarily capable of proof by direct evidence, but it may be inferred from the circumstances. Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). The jury is allowed to draw upon its own common knowledge and experience to infer intent from the circumstances. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990); Alford v. State, 33 Ark. App. 179, 804 S.W.2d 370 (1991). Circumstantial evidence may constitute substantial evidence. Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992); Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Lukach, supra; Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). Whether the evidence excludes every other reasonable hypothesis is for the finder of fact to determine. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. Ward v. State, 35 Ark. App. 148, 816 S.W.2d 173 (1991).
We have held that evidence of breaking into a house is not evidence of intent to commit a crime therein. See Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980); Wortham v. State, 5 Ark. App. 161, 634 S.W.2d 141 (1982). In Norton, shortly after the sound of breaking glass was heard, appellant was observed opening from the inside the front door of an office building, which had been secured for the night, and speaking to two acquaintances who were walking by. When later that evening the owner of the building discovered the front door open, a window broken out, glass on the floor, and her window drapes down, a police investigation ensued. It was learned, however, that nothing was taken from the office building. Appellant was convicted of burglary. The Arkansas Supreme Court reversed, stating that, although the prosecution had proved the appellant had illegally entered the office building, there was no proof that he had taken, or even touched, any property inside the building.
In Wortham, supra, two thirteen-year-old girls were painting in the bedroom of one girl’s house. A radio was playing loudly in the kitchen. One of the girls went into the living room, where she saw appellant standing inside the house in the open doorway. She screamed and appellant ran away. We reversed appellant’s conviction of burglary because, we said, there were several explanations of appellant’s actions which would be inconsistent with guilt. We pointed out, for example, appellant might have entered the open door of the house when he could not get anyone to hear his knock above the noise of the radio. 5 Ark. App. at 162.
In Jiminez v. State, 12 Ark. App. 315, 675 S.W.2d 853 (1984), a police officer responded to a call to investigate a possible break-in just in time to find appellant sitting in a corner in the living room. A window in the back door was broken; some dishes, glasses and silverware had been wrapped in towels and placed in a large pail; and curtains were torn off the living room wall and used to wrap a staple gun and some other items. In affirming the conviction, we distinguished both Wortham and Norton, on the basis that in those cases the State had proved only that appellant was “merely present.” In Jiminez, we said, the State had proved “presence” plus other facts and circumstances from which the trial court could infer that appellant had the requisite intent. 12 Ark. App. at 318.
Here, the State relies on Cristee v. State, 25 Ark. App. 303, 757 S.W.2d 565 (1988), to support its argument that there is adequate circumstantial evidence of appellant’s motive to support a finding of guilt. Cristee was convicted of attempted burglary on evidence that during the night a lumberyard burglar alarm sounded; a neighbor saw someone climbing the fence that enclosed the lumberyard; and the neighbor’s son chased the man some distance before he was caught and arrested by a police officer. We discussed Norton, Mullaney v. Wilbur, and Patterson, all cited supra, and determined that the evidence of a hole in the office wall, the burglar alarm sounding at night, and appellant climbing the fence and fleeing would support the finding of guilt. We said we could think of no other rational reason to explain his conduct. 25 Ark. App. at 308.
In the instant case, the State contends that evidence that (1) appellant attempted to get the Hinderliters’ apartment door open on two separate occasions; (2) there was damage to the Hinderliters’ apartment door and lock; (3) appellant’s driver’s license was frayed in a way that made Officer Crews thinks it had been used to “jimmy” a lock; and (4) appellant fled the scene supports the jury’s finding of guilt on the burglary charge. We disagree. Although the actions of an accused in fleeing from the scene of a crime is a circumstance that may be considered with other evidence in determining probable guilt, Cristee, supra, the evidence here is that appellant was only gone from his apartment about fifteen minutes, and the police were still there when he came back. We also think there is insufficient evidence of appellant’s intent, if he had been successful in getting the Hinderliters’ apartment door open, to allow the jury to pass beyond speculation and conjecture.
We do think, however, that the evidence was sufficient to support a finding that appellant was guilty of the lesser included offense of attempted criminal trespass, which is committed if a person purposely attempts to enter or remain unlawfully in or upon the premises of another. See Ark. Code Ann. § 5-39-203(a) (1987) and Ark. Code Ann. § 5-3-201 (a)(2) (1987). The jury was instructed on this offense, and we modify the judgment to show a conviction of attempted criminal trespass, a Class C misdemeanor, and remand to the trial court for resentencing. See Benson v. State, 19 Ark. App. 345, 720 S.W.2d 340 (1986).
Affirmed as modified and remanded.
Jennings, C.J., and Cooper, J., agree. | [
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JOSEPHINE LINKER HART, Judge.
b Gary Howard, acting individually and as the administrator of his late father’s estate, sued attorney Lauren Adams and her law partners for breach of contract, legal malpractice, and fraud. Adams moved for summary judgment, which the trial court granted on all counts other than Gary’s individual fraud claim. Gary appeals and argues that summary judgment was inappropriate because genuine issues of material fact remain to be decided. He also argues that the trial court erred in reducing a fee request by the estate’s attorney. We agree that fact questions preclude the entry of summary judgment. We therefore reverse the partial-summary-judgment order. We also reverse the attorney-fee award for reconsideration in light of our disposition on appeal.
| ?Facts
We view the facts in a light most favorable to Gary, as the party resisting the motion for summary judgment. See Lynn v. Wal-Mart Stores, Inc., 102 Ark.App. 65, 280 S.W.3d 574 (2008). Gary is the only child of Odis Howard, who died on January 16, 2001. He is also the stepson of Odis’s wife, Mabel. In the latter part of 1998, Odis and Mabel visited attorney Bill Watkins to obtain estate-planning services. Watkins drafted a revocable trust to hold all of Odis’s and Mabel’s property, and he drafted a deed transferring Odis’s primary asset, a forty-six-acre tract of land, to the trust. The trust named Mabel as trustee and provided that, upon the death of the last settlor, the trust assets would be distributed to Gary. The trust also provided that either settlor could revoke or amend the trust.
Odis did not sign either the trust or the deed transferring his land. By June 2000, he was suffering from Alzheimer’s disease and his family was concerned that he lacked the capacity to care for himself or his affairs. Gary, Mabel, and Gary’s daughter, Samantha, decided that Gary should be appointed as Odis’s guardian. According to Gary, he hired Bill Watkins to petition the court for a temporary guardianship. Watkins did so, and the court appointed Gary as Odis’s guardian for ninety days, beginning June 19, 2000.
In December 2000, approximately three months after the guardianship expired, Gary and his family believed that Odis’s death was imminent. Gary, Mabel, and Samantha met with attorney Watkins, and, according to Gary, Watkins advised him to immediately sign the |strust and the deed as Odis’s guardian. Gary followed Watkins’s advice and signed the documents. There is evidence that Watkins back-dated the documents to September 6, 2000, when Gary’s guardianship was still in effect. During this meeting, Gary also agreed with Mabel and Samantha that the three of them would become co-trustees with equal authority. Watkins assured the family that he would amend the trust to reflect the co-trusteeship. Watkins did not tell Gary that, in the absence of the trust and deed, he stood to inherit Odis’s property by intestate succession or through a will, subject only to Mabel’s dower interest. Watkins also did not advise Gary that his and Mabel’s interests were in conflict with regard to Odis’s property and that the trust document gave Mabel the unfettered discretion to revoke or amend the trust.
Following Odis’s death on January 16, 2001, Watkins amended the trust to name Gary, Mabel, and Samantha as co-trustees. However, the amendment did not alter the provisions that gave Mabel the authority to revoke or amend the trust. In December 2001, Watkins drafted a second amendment, signed by Mabel, that purported to remove Gary as co-trustee, even though Watkins had previously agreed to amend the trust to grant equal authority to all co-trustees. A third amendment, drafted by Watkins and signed by Mabel in July 2002, unequivocally removed Gary as co-trustee. It also provided that, upon Mabel’s death, Gary would receive approximately one-third of the trust assets, with the remainder |4going to Samantha. Thereafter, Mabel asserted that she owned the trust’s real property, both individually and as trustee.
These events and a belief that he had been deprived of his inheritance prompted Gary to seek legal advice from appellee, attorney Lauren Adams. According to Gary, he and Adams entered into an oral contract that called for Adams to probate Odis’s estate; to rectify the situation involving the trust’s real property; and to collect her attorney fees from Watkins’s malpractice carrier, with whom she had already spoken. Adams later presented Gary -with a •written contract for recovery of the real estate, reflecting a thirty-three-percent contingency fee of “all amounts recovered.” Gary asserts that Adams told him that the sole purpose of the contract was “to show her fee to Bill Watkins’ malpractice insurance carrier.” According to Gary, he asked Adams to write the terms of their oral agreement on the back of the contract, and she did so. The handwritten notations on the back of the contract read as follows: “will see malpractice insurance to re-pay attny fees & loses (probate & taxes); Bill [Watkins] has $lm in coverage and CNA has been notified; if ins. is insufficient to cover cost of litigation we agree to pro-rata reduction of fees.” Adams later described the handwriting as mere notes from a conversation.
In October 2003, Adams filed a petition to have Gary appointed as administrator of Odis’s estate. She also filed a complaint against Mabel seeking to void the trust documents. The probate case languished, but on February 11, 2005, Adams successfully set aside the | ¿deed that conveyed the forty-six acres to the trust. Adams subsequently asserted that the property then became an asset of Odis’s estate. Gary inquired about the malpractice suit against Watkins, and Adams told Gary that he should seek other counsel on that cause of action. Gary made inquiries to several attorneys, but they informed him that the statute of limitations had expired on a malpractice case against Watkins.
In April 2005, Gary hired his third and current attorney, Harry McDermott. McDermott agreed to help Gary probate Odis’s estate, and he terminated Adams’s services with a demand that she relinquish any claim for fees. In response, Adams filed an attorney-fee lien in the probate proceeding, along with a notice of lis pen-dens and a fee claim against the estate for $613,333, purportedly one-third of the value of the land that Adams had removed from the trust. Gary, acting individually and as the administrator of Odis’s estate (having been appointed in August 2005), countered with a suit against Adams for breach of contract, fraud, and legal malpractice. The gist of his claim was that Adams failed to file a timely malpractice suit against Watkins as she had agreed to do in order to fund the probate proceedings and the case against Mabel.
The circuit court held a hearing in October and December 2006 to determine the validity of Adams’s attorney-fee lien. The court ruled that Adams’s lien was correctly filed but that Gary could pursue his legal claims against Adams in a jury trial to determine the amount of any offset to which he might be entitled. The court also found that Adams’s | (¡handwriting on the back of the contingency-fee agreement may well have been part of her contract with Gary, which she failed to perform.
In October 2007, Adams filed two summary-judgment motions, one against Gary individually and the other against Gary as administrator of Odis’s estate. She argued primarily that 1) her failure to file a malpractice suit against Watkins did not damage Gary individually because Gary had no case against Watkins, due to lack of contractual privity; 2) the estate had no claim against Watkins because the decedent, Odis Howard, suffered no harm from Watkins’s actions prior to his death; and 3) she took no actions that harmed the estate, nor did she have a contract with the estate. Following a hearing, the circuit court granted Adams’s motions for summary judgment on all counts, other than Gary’s individual fraud claim. Gary now appeals the court’s partial-summary-judgment order.
Standard of Review
Summary judgment should be granted only when it is clear that there are no disputed issues of material fact. Lynn, 102 Ark.App. 65, 280 S.W.3d 574. The object of a summary-judgment proceeding is not to try the issues but to determine if there are any issues to be tried. Id. If there is any doubt whatsoever, the motion should be denied. Id. In summary-)judg-mentj cases, we view the evidence and all doubts and inferences therefrom in the light most favorable to the party resisting the motion. See id.
Partial Summary Judgment on Gary’s Personal Claims
Gary’s personal claims against Adams stem from Adams’s failure to pursue a legal-malpractice suit against Watkins. In order for Gary to prevail against Adams, he must prove a case within a case, that is, he must prove that he has a meritorious claim against Watkins. See Nash v. Hendricks, 369 Ark. 60, 250 S.W.3d 541 (2007). Adams argued below that Gary had no case against Watkins because Gary did not have privity of contract with Watkins. The circuit court agreed with Adams and made the following pertinent findings:
7. At the time that Mr. Watkins provided services to have Gary Howard appointed guardian of Odis Howard and have the Trust and deed executed, Mr. Watkins was providing legal services to Odis and Mabel Howard, not Gary Howard in his individual capacity. Any representation by Mr. Watkins to Gary Howard was done only in Gary Howard’s capacity as representative of Odis Howard. Therefore, as a matter of law, Gary Howard did not have privity with Mr. Watkins.
8. In addition, Gary Howard is es-topped from arguing that Mr. Watkins was his personal attorney. Gary Howard filed verified discovery responses and a verified petition in previous litigation before the Court wherein he took the position that Mr. Watkins was the attorney for Odis and Mabel Howard. The verified petition stated that he was “induced to sign [the Trust] by the attorney for Mr. and Mrs. Howard after the attorney insisted it was necessary to save estate taxes.” [Emphasis added.]
9.Since Gary Howard could not have prevailed in an action against Mr. Watkins due to lack of privity, summary judgment dismissing Gary Howard’s individual claims [other than fraud] is proper due to lack of causation....
Gary argues that summary judgment was improper on the issue of privity because genuine tissues of material fact remain to be decided. We agree.
Arkansas law requires a plaintiff to have direct privity of contract with an attorney before the attorney may be held liable for his acts, omissions, decisions, or other conduct in connection with the performance of professional services. See Ark.Code Ann. § 16-22-310(a) (Supp.2009); Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (2003); Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002); McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999). Privity of contract is defined as “that connection or relationship which exists between two or more contracting parties.” Swink v. Ernst & Young, 322 Ark. 417, 420, 908 S.W.2d 660, 662 (1995). The “contract” contemplated by section 16-22-310(a) relates to a contract for professional services performed by the attorney for the client. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). A plaintiff may not substitute an attorney-client-relationship requirement for the privity requirement. Jackson, 353 Ark. 847, 120 S.W.3d 587. There must be a contract for services. See id.
The affidavits, depositions, and testimony on file in this case reveal contradictory accounts of Gary’s contractual relationship with Watkins. Watkins testified in his deposition that he was “never Gary’s attorney” and that he represented “the family,” which did not include Gary. Watkins also stated that Mabel and Samantha ap- proaehed him about establishing a guardianship for Odis and that Mabel paid his fees. Adams’s expert, attorney Jack Butt, testified in his deposition that Gary was not in privity with Watkins. However, |flGary claimed that Watkins represented him in addition to representing Mabel and Samantha. Gary’s guardianship petition, which he filed with the court in June 2000, bears the signature of “Bill Watkins, His Attorney.” Gary’s affidavit and his testimony from a prior hearing reflect that he “hired” Watkins to appoint him as Odis’s guardian and that he later “sought the advice of my attorney, Bill Watkins concerning my rights to my father’s estate.” Gary stated that Watkins advised him to sign the trust and the transfer deed but did not advise him that, without the trust, he would inherit Odis’s property. Gary also stated that Watkins assured him that he would implement a co-trustee agreement to give Gary, Mabel, and Samantha “equal say” over the real property.
The court also had before it the testimony of attorneys Tim Dudley and Richard Hatfield. Dudley testified that Watkins represented Gary as his attorney and that Watkins had an obligation to advise Gary of his inheritance rights and the possibility that Mabel could “cut him out” of the trust. Hatfield testified that Gary had privity of contract with Watkins but only as guardian of Odis’s estate.
The record therefore demonstrates conflicting evidence on the question of privity. Summary judgment is inappropriate in cases where the proof conflicts on a material issue. See Chlanda v. Killebrew, 326 Ark. 791, 934 S.W.2d 227 (1996). Additionally, our supreme court has reversed a summary judgment in a similar situation involving conflicting testimony on the question of whether a legal-malpractice plaintiff was in privity with the defendant, (attorney. Jackson, 353 Ark. 847, 120 S.W.3d 587.
Adams cites Great American Insurance Co. v. Dover & Dixon, 402 F.Supp.2d 1012 (E.D.Ark.2005), Giles v. Harrington, Miller, Neihouse, & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005), and McDonald, 337 Ark. 265, 988 S.W.2d 9, for the proposition that Gary lacked privity with Watkins. However, those cases are inapposite because the purported clients there produced no evidence that the attorney advised them on legal matters or contracted to provide them with legal services. By contrast, Gary offered proof that he hired Watkins, that Watkins advised him during the course of his representation, and that Watkins had an obligation to advise him further. We therefore conclude that summary judgment was inappropriate on the question of privity.
Adams proposes two alternative reasons why we should affirm the partial-summary-judgment order. She contends first that Gary’s claim of contractual privity with Watkins is barred by the doctrine of judicial estoppel. Judicial estoppel prohibits a party from taking inconsistent positions in successive cases with the same adversary. See Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004). Adams points to Gary’s 2003 complaint against Mabel in which he alleged that “the attorney for Mr. and Mrs. Howard” induced him to sign the trust documents. Adams also cites Gary’s interrogatory response in that same case, stating that Mabel had first contacted Bill Watkins and paid for his services. Adams argues that these representations contradict Gary’s current position that Watkins was his attorney.
|nThe first topic we must address on the estoppel issue is procedural. Adams argues that the court’s estoppel ruling constituted an independent, alterna tive basis for granting partial summary judgment and that Gary failed to attack the estoppel ruling in his opening brief on appeal. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989) (holding that appellate courts will not reverse if an appellant fails to attack a trial court’s independent, alternative basis for its ruling). It is true that Gary made only a brief mention of the estoppel ruling in his initial brief. However, there is no procedural bar. We read paragraphs seven through nine of the court’s partial-summary-judgment order to say that the court “hung its hat” so to speak, on the privity ruling. While the court did state that Gary was estopped from claiming privity, we do not view that ruling as a separate and distinct ground for the court’s decision. Rather, it was simply correlative to the court’s ultimate ruling on privity.
On the merits of the estoppel issue, fact questions remain as to whether Gary’s conduct met the elements of judicial estoppel. Judicial estoppel arises when 1) a party assumes a position clearly inconsistent with a position taken in an earlier case, or with a position taken in the same case; 2) a party assumes the inconsistent position with the intent to manipulate the judicial process to gain an unfair advantage; 3) a party successfully maintained the position in an earlier proceeding such that the court relied upon the position taken; and 4) the integrity of the judicial process of at least one court is impaired or injured 112by the inconsistent positions taken. Dupwe, 355 Ark. 521, 140 S.W.3d 464. Gary’s previous statements that Watkins was Mabel and Odis’s attorney are not necessarily inconsistent with his present claim that Watkins was his attorney. Watkins could have represented all three of them. Furthermore, questions remain as to whether the prior court relied on Gary’s representations and whether Gary manipulated the judicial process or injured the integrity of the courts.
As a second alternative reason for affirmance, Adams argues that Gary was not damaged by any alleged failure on her part to timely sue Watkins for malpractice. Adams contends that Watkins’s actions could not have harmed Gary until July 2002, when the third trust amendment removed Gary as a trust beneficiary. Therefore, she claims, the three-year statute of limitations had not expired when Gary fired her in April 2005. Adams also points out that Gary hired attorney Harry McDermott before the statute of limitations expired in July 2005, making McDer-mott’s failure to file a malpractice claim against Watkins an “intervening cause.” We decline to affirm on this basis. We initially point out that, in Arkansas, a malpractice cause of action against an attorney accrues when the negligent conduct occurs, not when the client sustains injury. See Rice v. Ragsdale, 104 Ark.App. 364, 292 S.W.3d 856 (2009). Moreover, part of Gary’s assertion of malpractice against Watkins involves Watkins’s failure to properly advise him in December 2000. It is arguable that Gary’s cause of action against Watkins arose in December 2000 and expired in December |132003, while Adams was still representing him.
For these reasons, we reverse the grant of partial summary judgment against Gary individually.
Summary Judgment on the Estate’s Claims
The circuit court ruled that, like Gary, the estate could not prevail in a legal malpractice suit against Bill Watkins and, therefore, could not prevail in its case against Adams. The court determined that, as a matter of law, the estate suf fered no damages from Watkins’s alleged omissions.
The existence of a fact question on this issue is apparent. A jury could conclude that Watkins’s actions damaged Odis Howard while he was still alive by wrongfully depriving Odis of his property. Odis never signed the trust or the deed of his own accord. Yet, during his lifetime, Watkins encouraged Gary to transfer Odis’s land to the trust, despite Gary’s lack of authority to do so. If Odis suffered damages prior to his death, his estate could have filed a survival action against Watkins. McDonald, 337 Ark. 265, 988 S.W.2d 9. Additionally, Gary sought legal counsel from Adams as the result of Watkins’s actions surrounding the trust, and legal fees were incurred in setting aside the deed that transferred Odis’s property from his ownership to a trust that he did not establish. Based on Adams’s attorney-fee lien against Odis’s estate, her services may cost the estate over $600,000. Accordingly, there is the prospect of harm to the estate.
114Adams also argues that she returned Odis Howard’s property to the estate and thereby benefited the estate rather than harmed it. Adams did provide that legal service. However, Adams did not finance her efforts with the proceeds from Watkins’s malpractice carrier, as she allegedly promised. As a result, the estate has a claim against it for Adams’s fees and costs instead of having them paid for by a secondary source.
Adams also asserts that she did not contract with the estate. This too is an issue of fact, if for no other reason than Adams has sought payment of her attorney fees from the estate. Moreover, there is evidence that Adams contracted to probate the estate and that she entered into her representation with Gary for the purpose of returning valuable realty to the estate.
Based on the foregoing, we reverse the summary judgment against the estate.
Reduction of Estate’s Attorney’s Fee Request
Attorney Harry McDermott has performed numerous legal services on behalf of the estate, including obtaining Gary’s appointment as administrator; filing Odis’s 1960 will for probate; settling several matters with Mabel; and handling at least two lawsuits involving the 11fiestate’s real property. The court awarded Mr. McDermott his fees and costs for the those lawsuits, and that award is not at issue. However, Mr. McDermott’s request for approximately $90,000 in fees and $10,000 in costs associated with his probate of Odis’s estate and his work in this case against Adams was reduced by the circuit judge to $21,296. (It is not clear if that amount includes costs.) Gary argues on appeal that this drastic reduction was unwarranted. We have serious reservations about the fee reduction, but we decline to rule on the merits of the fee award at this time. Instead, we reverse the award for reconsideration. The circuit court may wish to revisit its ruling in light of our disposition of this appeal.
Reversed.
VAUGHT, C.J., and GRUBER, J., agree.
. In fact, Odis’s 1960 handwritten will was offered for probate several years later, having just been discovered. The will provided that the executor should liquidate Odis’s property and use the proceeds for Gary’s support and education.
. Ordinarily, a partial-summary-judgment order is not a final, appealable order. Parks v. Hillhaven Nursing Home, 309 Ark. 106, 827 S.W.2d 148 (1992). However, the present case involves probate orders, all of which are immediately appealable, with certain exceptions not applicable here. Ark. Code Ann. § 28-1-116(a), (b) (Repl.2004); Ark. R.App. P.,Civ. 2(a)(12) (2009); Taylor v. Hamilton, 90 Ark.App. 235, 205 S.W.3d 149 (2005).
. We note, for purposes of clarity, that title to real property vests immediately in the heirs or devisees upon the death of the owner. Farmers Co-op. Ass'n, Inc. v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970). If the owner dies testate, real property becomes an asset of the estate when so directed by the will or when the court orders the property sold, mortgaged, leased, or exchanged for payment of claims or other purposes. Ark.Code Ann. § 28-49-101(a) (Repl.2004). If the owner dies intestate, title to his real property vests immediately in his heirs subject to the personal representative’s right to sell, mortgage, lease, or exchange it for payment of claims or other purposes. Ark.Code Ann. § 28-9-203(c)(1) (Repl.2004). | [
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PAUL E. DANIELSON, Justice.
^Appellant Steve M. Stuhr, as administrator of the estate of Donald James Stuhr (“the Administrator”), appeals from the circuit court’s order, which denied the Administrator’s motion to be substituted as a party in Oliver’s annulment proceeding and granted Oliver’s motion to dismiss her petition for annulment. The Administrator asserts two points on appeal: (1) that the circuit court’s denial of Oliver’s annulment petition was clearly erroneous; and (2) that the circuit court’s denial of his motion to be substituted as the party in interest in the annulment proceedings was clearly erroneous. We hold that even were there an order denying Oliver’s petition for annulment, the Administrator would lack standing to challenge it, and we affirm the circuit court’s order denying the Administrator’s motion to substitute.
On May 27, 2009, Oliver filed a complaint for annulment against Donald James Stuhr. In the complaint, Oliver alleged that the parties had married on or about May 22, 2009, and |2had separated on or about May 23, 2009. She further stated that the marriage had not been consummated, and she requested
an absolute annulment of and from the Defendant on the grounds of the Defendant was incapable of entering into the marriage state due to physical and mental causes and consent of the Plaintiff was obtained fraudulently by the Defendant. Further, that the Defendant was incapable of understanding or consenting to the marriage according to of [sic] Arkansas Law, Ark.Code § 9-12-201 (1987).
Stuhr responded, denying the allegations. On July 7, 2009, Stuhr died.
According to the circuit court’s order, a hearing was held on Oliver’s petition for annulment, without knowledge of Stuhr’s death, and the circuit court “did not grant the petition due to insufficient testimony.” On July 16, 2009, Oliver filed a motion to dismiss her cause of action for annulment. That same day, the Administrator filed a motion to be substituted as a party in Oliver’s annulment action.
In his motion to substitute, the Administrator stated that Stuhr had died, and that, while an estate had not yet been opened, he intended to petition the probate division of the circuit court to open an estate and appoint him as soon as the death certificate was issued. The Administrator contended that under the rules of civil procedure, the court could appoint a special administrator to be substituted for the deceased party. For that reason, and in the Isinterest of public policy, the Administrator stated that he “should be transferred as the real party in interest” in the annulment matter. Oliver responded to the motion, stating that the Administrator had no standing in an annulment case and, because the estate had not yet been opened, the Administrator had no authority.
On August 19, 2009, the circuit court held a hearing on the Administrator’s motion to substitute. After hearing arguments from both sides, the circuit court took the matter under advisement. On August 31, 2009, the circuit court entered a letter opinion in which it denied the Administrator’s motion to substitute and granted Oliver’s motion to dismiss. On September 9, 2009, the circuit court memorialized its earlier letter opinion in its order to dismiss. There, the circuit court made the following findings, in pertinent part:
2. The parties in this case were married on May 22, 2009. They separated on May 23, 2009. Plaintiff filed her complaint for annulment on May 27, 2009.
3. On July 7, 2009, the Defendant died. Without knowledge of Defendant’s death, Plaintiff presented testimony to support the annulment petition approved by both parties on July 15, 2009.
4. This Court did not grant the petition due to insufficient testimony.
5. On July 16, 2009, the estate of the Defendant moved to be substituted as a party to the annulment action. On July 20, 2009, the Plaintiff filed a Motion to dismiss her Petition^ ]
6. The Court finds that any action in this matter is personal in nature. Death abates a divorce suit. Death during [a] suit for annulment should be treated the same as death during divorce.
7. Estate’s motion to be substituted as a party is denied and Plaintiffs motion to dismiss is granted.
The Administrator now appeals.
|)I. Denial of the Annulment Petition
For his first point on appeal, the Administrator challenges what he deems is the circuit court’s denial of Oliver’s annulment petition. However, it does not appear from the instant record that any order was ever entered by the circuit court denying the petition for annulment. That being said, even were there an order denying the petition, the Administrator would be precluded from challenging any order by the circuit court denying the petition because he was not a party to the action at the time of the decision.
The general rule regarding standing is that an appellate court cannot act upon an appeal taken by one not a party to the action below. See In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999). Here, the Administrator was not a party to the annulment action. The circuit court denied his motion to be substituted as a party, thus, he was never a party to the annulment action and would lack standing to appeal any determination relating to the annulment. While this court has recognized two circumstances in which a nonparty may gain standing to pursue appellate review of a circuit court’s orders, neither applies here. The first occurs when a nonparty seeks relief under Ark. R. Civ. P. 60(k), which provides that an independent action may be filed to relieve a person from judgment who was not actually served with process. See id. The Administrator has sought no such relief; therefore, it is inapplicable. The other circumstance is the unique set of facts where this court has recognized “the right of those interested, ie., pecuniarily affected, to perfect an appeal where action had been taken without notice to the one complaining.” Arkansas State Highway Comm’n v. Perrin, R240 Ark. 302, 305, 399 S.W.2d 287, 290 (1966). It is equally inapplicable as the Administrator’s pecuniary interest would not be directly affected by any order granting or denying the annulment. See id. For these reasons, the Administrator would have no standing to appeal even were there an order denying Oliver’s annulment petition.
II. Denial of the Motion to Substitute
For his second point on appeal, the Administrator argues that the circuit court’s denial of his motion to be substituted as a party was clearly erroneous. The Administrator, while conceding that the marriage at issue was voidable rather than void, points to other jurisdictions that have permitted an estate to proceed with an annulment action after the death of a spouse, where the petition for annulment was filed prior to the spouse’s death. He urges that under Arkansas law, an annulment is not treated like a divorce. Further, he claims that public policy is not violated here, where both spouses, when alive, agreed that the marriage should be annulled, pointing to his exhibit that was before the circuit court, which consisted of a notarized signature by Stuhr on a proposed order of annulment.
Oliver responds that the circuit court did not err in denying the Administrator’s motion to substitute because her annulment action abated upon Stuhr’s death. She asserts that because it is well settled in Arkansas that death abates a divorce action, and annulment and divorce involve similar considerations, the abatement concept should apply equally to annulment actions. Alternatively, Oliver contends that even if the circuit court erred in denying the motion to substitute, the circuit court granted her motion to dismiss her ^annulment petition, and any reversal would therefore be futile. While the Administrator urges a clearly erroneous standard of review, this court has previously applied an abuse-of-discretion standard of review when reviewing the denial of a motion for substitution of parties. See Wolford v. St. Paul Fire & Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998).
In Arkansas, “[m]arriage is considered in law a civil contract to which the consent of the parties capable in law of contracting is necessary,” Ark. Code Ann. § 9-11-101 (Repl.2009), and may be annulled only for causes set forth by statute. See Phillips v. Phillips, 182 Ark. 206, 31 S.W.2d 134 (1930); see also Porter v. Arkansas Dep’t of Health & Human Servs., 374 Ark. 177, 188, 286 S.W.3d 686, 695 (2008) (“Annulment, like divorce, is a creature of statute and can be granted only upon proof of a statutory ground.”). Arkansas’s annulment statute, section 9-12-201 (Repl.2009), sets forth those causes:
When either of the parties to a marriage is incapable from want of age or understanding of consenting to any marriage, or is incapable of entering into the marriage state due to physical causes, or when the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.
In Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 412 (1953), this court held that the term “void” as used in the annulment statute means that such a marriage is voidable. There, this court held that a decedent’s direct heirs could not attack the decedent’s marriage after her death. In interpreting the annulment statute, then Ark. Stat. Ann. § 55-106, this court noted that the Missouri Supreme Court had previously construed the Arkansas statute, and we quoted a provision cited with approval by the Missouri appellate court:
t“A voidable marriage can only be inquired into by a direct proceeding between the parties and during the lives of both of them. Until it is set aside it is practically valid for all purposes, but when set aside the decree renders it void from the beginning.”
222 Ark. at 499, 261 S.W.2d at 415 (quoting Henderson v. Ressor, 265 Mo. 718, 178 S.W. 175, 177 (1915) (quoting 2 William T. Nelson, A Treatise on the Law of Divorce & Annulment of Marriage § 569 (1895))). More recently, we have observed that “[a] state of marriage can only be dissolved during the lives of the parties to the marriage by annulment” under the annulment statute. Mabry v. Mabry, 259 Ark. 622, 626, 535 S.W.2d 824, 826 (1976) (emphasis added); see also 4 Am.Jur.2d, Annulment of Marriage § 57 (2010) (“[T]he right to annulment of a marriage which is voidable only is a personal right and proceedings for annulment must be brought during the lifetime of both parties to the marriage.”).
Here, the defendant to Oliver’s annulment action, Stuhr, died prior to any entry of an order disposing of the action, and, therefore, the marriage was not dissolved during the lives of the parties. While we have not specifically addressed whether death abates an annulment action, we have held that death abates a divorce action. See Ginsburg v. Ginsburg, 353 Ark. | 816, 120 S.W.3d 567 (2003); Chil- dress v. McManus, 282 Ark. 255, 257-58, 668 S.W.2d 9, 11 (1984) (“Death of a party to a divorce proceeding takes away the jurisdiction of the chancery court.”). In line with our prior holdings that a marriage can only be inquired into or dissolved by annulment during the lives of the parties, we now hold that an annulment action also abates upon death, as other jurisdictions have held. See, e.g., Davidson v. Davidson, 35 Wis.2d 401, 151 N.W.2d 53 (1967) (holding that where the marriage was voidable, the action for annulment abated upon the death of the plaintiff); Merrick v. Merrick, 314 Ill.App. 623, 42 N.E.2d 341, 343 (1942) (“We are of the opinion that the rule announced in the Bushnell [v. Cooper, 289 Ill. 260, 124 N.E. 521 (1919) ] case, that in the absence of a statute to the contrary, the death of one of the parties to a divorce case or a separate maintenance case abates the action, should be applied in a case like the one at bar, where it is sought to annul a marriage.”). Accordingly, Oliver’s suit for annulment abated upon Stuhr’s death. See, e.g., 4 Am.Jur.2d, Annulment of Marriage § 53 (2010) (“The death of a party to a marriage terminates a proceeding attacking the marriage.”). Because the suit abated upon Stuhr’s death, the circuit court lost jurisdiction and did not abuse its discretion in denying the Administrator’s motion to substitute. See, e.g., Speer v. Speer, 298 Ark. 294, 766 S.W.2d 927 (1989) (observing that a court will lose jurisdiction to award a divorce when one party dies prior to a decree); Childress, supra (observing that the death of a party to a divorce proceeding takes away the jurisdiction of the chancery court); Day v. Langley, 202 Ark. 775, 152 S.W.2d 308 (1941) (observing that pending suits for divorce abate when either husband or wife dies and that the | Bchancery court loses jurisdiction by the death of one of the parties to the proceeding). For this reason, we affirm the circuit court’s denial of the Administrator’s motion to substitute.
Affirmed.
. The only reference in the instant record to this hearing and the circuit court's decision is made in the circuit court’s order dismissing the annulment action. The record contains no transcript of the hearing, nor any order regarding the circuit court’s decision to "not grant.”
. The instant record does not reflect whether an estate was in fact opened; however, it does indicate that a petition to open an estate had been filed. Because the circuit court treated Steve Stuhr as an administrator, we do as well to avoid any confusion.
.As already noted, the record reflects that Oliver filed her motion to dismiss on July 16, 2009, and the Administrator filed his motion to substitute that same day.
. Notwithstanding that holding, we have further held that a court will retain jurisdiction to settle property rights when one of the parties dies after a decree is entered and an appeal is pending:
Where the party seeking a divorce appeals from a judgment, simply denying it, and pending the appeal either party dies, the appeal and the action abate absolutely and cannot be revived, there being no one living who can legally have any interest in the same.... We do not have for decision the question whether an appeal could be prosecuted where no property rights were involved, for property rights were adjudged here; and there appears to be no division of authority as to the existence of the right of appeal when the decree also adjudicates property rights.
Speer v. Speer, 298 Ark. 294, 299, 766 S.W.2d 927, 930 (1989) (quoting Owen v. Owen, 208 Ark. 23, 24, 184 S.W.2d 808, 809 (1945)). | [
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JIM GUNTER, Justice.
|,A Union County jury convicted Appellant Benjamin Carter of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, possession of drug paraphernalia, simultaneous possession of drugs and a firearm, and maintaining a drug premises. He was sentenced to life imprisonment and a $25,000 fine on the cocaine-possession charge; twenty years and a $25,000 fine on the marijuana-possession charge; forty years on the simultaneous-possession charge; twenty years and a $10,000 fine on the paraphernalia charge; and twelve years and a $10,000 fine on the drug-premises charge. His sentences were to run consecutively.
Appellant asserts only one point on appeal — that the circuit court erred in denying his motion for directed verdict. Because appellant was sentenced to life imprisonment, our jurisdiction is pursuant to Ark. Sup.Ct. Rule 1 — 2(a)(2). We affirm on all counts.
On July 31, 2008, the El Dorado Police Department executed a search warrant at 1020 |2Craig Street after conducting two controlled drug buys at that location using a confidential informant. In executing the warrant, the police focused first on apprehending the people in the house. The police located appellant near the toilet in a bathroom connected to the southwest bedroom of the home. Several other people were present in the southwest bedroom but appellant was the only person found in the bathroom. When appellant was searched incident to arrest, $500 was recovered from his person that matched the serial numbers of the buy money the informant had been given the previous day to purchase drugs.
The police then performed a full search of the home and found (1) a 9 mm handgun in the grass approximately ten feet from the southwest corner of the residence near an open window to the southwest bedroom; (2) a box of 9 mm ammunition and three loose 9 mm rounds in a cabinet in the kitchen; (3) two large blocks of crack cocaine in the hallway of the home leading to the bedrooms; (4) a 9 mm handgun on the floor of the closet off the hallway; (5) two small walkie talkies, switched to the same channel, on a chair in a room north of the kitchen; (6) a plate containing several rocks of crack cocaine under the sofa in the living room; (7) on a table near the east door, an open box of plastic baggies, three bags of marijuana, a bag of crack cocaine, a set of digital scales, a ledger list of names and dollar amounts, and three dry-cleaning receipts bearing appellant’s name; (8) a video surveillance system connected to a flat-screen television directed to observe the outside of the home; (9) two large chunks of crack cocaine and a crack pipe in the southwest bedroom; and (10) a baggie containing crack cocaine in the bottom of the toilet bowl in the bathroom where appellant was apprehended.
| a At trial, the confidential informant testified that he had purchased drugs from appellant on July 30, 2008, in cooperation with the El Dorado Police Department in exchange for a reduction of his own drug-possession charges. A forensic chemist from the state crime lab testified to the tests she performed on the over fifty-eight grams of crack cocaine and thirteen grams of marijuana that was found in the home. Additionally, Peggy Meeks testified that she owned the home at 1020 Craig Street and had rented it to appellant. Meeks stated that although appellant gave her the money, he asked that the rental agreement be in his sister’s name, which Meeks remembered as Rolanda Loggins.
Douglas Henry testified that he was the “door man” at 1020 Craig Street, patting down people who came in the house to check for weapons or wires. He stated that he bought drugs from appellant at the home. Henry said that he saw people buy drugs from appellant in late July 2008, including the confidential informant. Henry stated that he was at the house when the police raided it. Just before the police entered the home, he stated that he saw appellant with drugs and a handgun. He testified that it was normal for appellant to carry a gun. Henry admitted that his testimony was in exchange for a plea agreement.
Appellant testified in his own defense, claiming that he was innocent of the charges against him. He denied renting the house at 1020 Craig Street and stated that Rolanda Loggins was his co-defendant’s sister. He admitted being in the house on the day of the raid and knowing it was a “crack house,” but denied being there for the purpose of buying or selling drugs. He stated that he went to the house to “shoot dice” and “smoke weed” and that Rhe had never seen anyone “smoke crack” at the home. He stated that he was in the “front room” playing a video game when the police came in and that he ran to a back bedroom.
For his sole point on appeal, appellant argues that the circuit court should have granted his motion for directed verdict (1) on all possession charges as there was insufficient evidence that he possessed a controlled substance with intent to deliver, possessed drug paraphernalia, or simultaneously possessed a controlled substance and a firearm; and (2) on the drug-premises charge because there was insufficient evidence that appellant rented the house. Appellant fails to present any argument that there was insufficient evidence of his intent to deliver. Therefore, we do not address the issue of intent to deliver as we have held that we will not research or develop an argument for an appellant. See Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006).
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). In reviewing a challenge to the sufficiency of the evidence, this court determines 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. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
Although circumstantial evidence may provide a basis to support a conviction, it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. Whether the evidence excludes every other | r,hypothesis is left to the jury to decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Appellant maintains that none of the contraband found in the home is directly connected to him; that with so many individuals in the home at the time of the raid, it was impossible to know to whom the contraband belonged; that no drugs or firearms were found on appellant’s person when he was searched; that appellant was not physically near the marijuana, handguns, drug paraphernalia, or majority of the crack cocaine found in the house; and that there was no rental agreement in appellant’s name. Appellant also claims that the word of a confidential informant alone, seeking a reduction in his own charges in exchange for testifying, is insufficient to sustain appellant’s convictions. In response, the State contends that, reviewing the evidence in the light most favorable to the verdict, there was sufficient evidence to prove that appellant constructively possessed all the contraband found in the home and to prove that appellant was maintaining the home for the purpose of selling drugs.
Appellant was convicted of several possession-related offenses, including possession of cocaine and marijuana with intent to deliver pursuant to Ark.Code Ann. § 5-64-401 (Supp.2009), possession of drug paraphernalia pursuant to Ark.Code Ann. § 5-64-403 (Supp.2009), and simultaneous possession of drugs and a firearm pursuant to Ark.Code Ann. § 5-74-106 (Supp.2009).
It is not necessary for the State to prove that an accused physically held the contraband, as possession of contraband can be proved by constructive possession, which is the control or right to control the contraband. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. In such cases, the State must prove two elements: (1) that the accused exercised care, control, or management over the contraband, and (2) that the accused knew the matter possessed was contraband. Id. This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Id. In addition, this court has held that an accused’s suspicious behavior coupled with proximity to the contraband is clearly indicative of possession. Tubbs, supra.
In Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991), the State established that appellant lived in the home and was present with another person when it was searched. Id. Further, when the police first knocked on the door, they heard appellant’s voice from the kitchen area fade into the back of the home. Id. Upon entering the home, police discovered appellant in the bedroom. Id. Drugs were in plain view in the kitchen and in the bathroom. Id. We held that the evidence was sufficient for the jury to conclude that appellant was l7attempting to dispose of the contraband when the police broke in and that appellant had knowledge and control of the contraband. Id.
In the present ease, viewing the facts in the light most favorable to the State, we are convinced that sufficient evidence supports appellant’s possession-related convictions. The owner of 1020 Craig Street testified that she rented the home to appellant. The police conducted controlled drug buys at the house the day before and the day of the search. The confidential informant stated the he purchased drugs from appellant during the controlled buy the day before the search. Police found $500 on appellant’s person after his arrest that matched the serial numbers of the money the informant used to purchase drugs during the controlled buy. During the search, police found large amounts of crack cocaine, as well as marijuana and paraphernalia used in the sale of controlled substances, in plain view in many areas of the house, including the front part where appellant admitted he was located just pri- or to the police raid. In his testimony, appellant acknowledged that he knew the house was a “crack house.” Dry-cleaning receipts bearing appellant’s name were found on a table near drug paraphernalia and marijuana. Police also found two handguns during the search, one lying in a closet in the hallway leading to the bedrooms and one on the ground outside the southwest bedroom window. Police found appellant in the bathroom connected to the southwest bedroom near a toilet wherein a baggie of crack cocaine was found in the open bowl. Crack cocaine was found in plain view in the southwest bedroom. Douglas Henry testified that he had seen appellant sell drugs out of the home and that he often saw appellant with a handgun. IsUpon these facts, it was reasonable for the jury to conclude that appellant had knowledge and control over the contraband found in the home and that he knew it was contraband.
Appellant was also convicted of maintaining a drug premises in violation of Ark.Code Ann. § 5-64-402 (Supp.2009). Although appellant refers to his drug-premises conviction as insufficient because the State failed to prove that he rented the house at 1020 Craig Street, he neglects to include any citation to authority for his argument. We have held that where the party fails to cite to authority or fails to provide convincing argument, we will not consider the merits of the argument. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). Here, appellant neglects to cite to even one case for his argument.
Mindful, however, of our obligation under Rule 4 — 3(i), we turn to the merits of appellant’s sufficiency argument on the drug-premises conviction. Arkansas Code Annotated section 5-64-402 provides that it is unlawful for any person to knowingly keep or maintain any dwelling that is resorted to by a person for the purpose of using or obtaining a controlled substance. The State presented evidence that appellant sold illegal substances from the house, allowed others to use illegal substances in the house, and stored illegal substances in the house. The owner of the home testified that she rented it to appellant. Other witnesses testified that appellant lived in the home. A confidential informant made two eontrolled-narcotic purchases at the home prior to the raid. The informant testified that he bought drugs from appellant. When appellant was searched, he had the buy money on his person that the police had given the informant. Douglas Henry testified that he was the “door man” for the house, assisting | ^appellant with selling drugs. Henry also testified that he had seen appellant sell crack cocaine and marijuana from the home. Appellant admitted the home was a “crack house.” Moreover, during the search of the home, officers found over fifty-eight grams of crack cocaine, over thirteen grams of marijuana, drug paraphernalia, and items used in the sale of illegal substances, such as scales, baggies, and a ledger. Viewing the evidence in the light most favorable to the State, we are satisfied that there was sufficient evidence to support appellant’s conviction for maintaining a drug premises.
In compliance with Ark. Sup. Ct. R. 4-8(i), we have reviewed the record for all objections, motions, and requests made by either party that were decided adversely to appellant and find no prejudicial error.
Affirmed.
CORBIN, J., not participating. | [
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KAREN R. BAKER, Judge.
| Appellant Ivan Evtimov appeals his decree of divorce from appellee Mariofanna Gueorgieva asserting three points of error: (1) The trial court erred in granting appel-lee a divorce where appellant presented insufficient evidence regarding residency and separation; (2) The trial court erred in refusing to award appellant alimony despite the significant difference in income and appellant’s limitation on future employment; (3) The trial court erred by failing to equally divide the marital property of the parties. We find no error and affirm.
Appellant Ivan Evtimov and appellee Mariofanna Gueorgieva were married in Bulgaria on or about December 19, 2001. Shortly after they were married, the couple moved to Little Rock, Arkansas, where appellee began working for the University of Arkansas at 12Little Rock. Appellee filed for a divorce on March 27, 2006, and a hearing was held on July 24, 2007. Appellant did not challenge the divorce; however, he contended that he should receive a portion of the tax refund from the last year of marriage, sought equity in the marital home, and requested spousal support.
In 2002, the parties purchased a Toyota Camry, which at the time of the hearing was in appellant’s possession and worth approximately $11,000. Appellee testified that the parties purchased a house in 2004, that the initial purchase of the home was $324,900, and that the parties owed slightly less on the house than it was worth. The testimony and evidence reflected that appellee had retirement accounts totaling $92,194 and marital debts totaling $32,700 excluding the home mortgage.
Appellee also testified that appellant contributed nothing to her education as she received her position prior to the parties’ marriage. She, however, had contributed to his education, spending a great deal of money on many language and business courses for him during the marriage. Despite her expenditures and efforts to assist appellant in obtaining satisfactory work, and her expectations that he would contribute to the marriage financially, he continued to refuse to work. In addition to his failure to contribute to the marital assets, appellee explained that appellant had wasted marital assets, particularly by destruction to the marital home and incurring marital debt. She also explained that appellant had used her checking account without her authorization, asserting that he was stealing from her.
| sAppeIlee’s daughter reaffirmed appellant’s lack of contribution to the marital assets. She added that appellant had many private teachers in addition to the English courses he took at the University. When he was enrolled in English classes, he would ask her for help in writing essays and with grammar; however, despite the fact that she helped him “a lot” and made herself available to assist him in learning the language, she could not characterize him as “eager” to learn the English language.
At the hearing, appellant listed a variety of ideas that either appellee or he had suggested as avenues of income for appellant. Appellant contended that he was unable to work for two months of those years of marriage due to an infection in his leg. Appellant contradicted appellee’s testimony that he did not contribute by stating that he sometimes gave money to her, but many times she rejected receiving any money from him. He also disputed her testimony that he had destroyed the house; instead, he asserted that he was attempting to maintain the house by doing yard and electrical work to avoid her using maintenance people. As for the allegations of his stealing, he categorically denied that he stole from her. His explanation was that he was using her checking account to pay some of his expenses. While appellee opined that appellant was capable of working, appellant insisted that his limitations with the English language restricted his earning capacity. In his affidavit of financial means, he indicated that he netted $339.41 biweekly with expenses of $1070 a month.
The trial court found that appellant had not contributed to the marital household. |4On appeal, appellant does not challenge that finding. Instead, he challenges the trial court’s denial of alimony arguing that it was error to deny his requested alimony based upon the difference in income and future earning capacity.
While the trial court did not award alimony, he did order appellee to pay appellant an amount equal to one-half of her retirement fund, minus one-half the value of the couple’s consumer debt and one-half the value of the car awarded to appellant, in the form of a monthly payment in the amount of $470 for sixty months at six percent interest. The distribution of assets to appellant totaled $24,000, and the court placed all payment of the debt obligation upon appellee.
Residency
Appellant’s first assertion of error is that the trial court erred in granting appellee a divorce where appellant presented insufficient evidence regarding residency and separation. To obtain a divorce, a plaintiff must prove residency in the state by either herself or the defendant for sixty days before the commencement of the action and residency in the state for three full months before the final judgment granting the decree of divorce. Ark.Code Ann. § 9-12-307(a)(l)(A) (Repl. 2006).
Residency must be proven and corroborated in every instance. Ark.Code Ann. § 9 — 12—306(c)(1) (Repl.2006); Hodges v. Hodges, 27 Ark.App. 250, 770 S.W.2d 164 (1989). If a trial court renders a divorce decree without obtaining sufficient proof and corroboration of residency, the decree has been entered without jurisdiction. Araneda v. Araneda, 48 Ark.App. 236, 894 S.W.2d 146 (1995). We recognize that, where it is plain that there is no collusion, corroboration of residency need only be slight. Hodges, supra. But, by the same token, residency for the required period is jurisdictional and, dealing as it does with the power and right of the trial court to act, corroborating evidence of residency should not be speculative and vague in scope. Araneda v. Araneda, supra. Proof of residency must be corroborated in every action for divorce regardless of the defendant’s admission. Ark.Code Ann. § 9-12-306(b) (Repl.2006); Hodges, supra. The purpose of the rule requiring corroboration is to prevent the procuring of divorces though collusion, and when it is plain that there is no collusion, the corroboration of residence only needs to be slight. Hodges, supra.
The evidence of the parties’ residence sufficiently corroborates residence in this case. The record contains appellee’s W-2 statements from 2002-2006 with each listing a Little Rock address as the employee’s residence, the notarized deed to the house which was filed in 2004, and a letter enclosing the “Owner’s Policy of Title Insurance” sent to appellee’s Little Rock address and dated April 7, 2005. As for evidence of the separation, a witness for appellee testified that appellant lived for six to eight months by himself, and specifically that they had lived separate and apart since the filing of the petition. The petition was filed on March 27, 2006. Paragraph four alleged that the parties had been living separate and apart since January 9, 2006, and appellant admitted that allegation in his answer. Accordingly, the trial court did not err in finding residency and adequate |fievidence of separation.
Alimony
Neither did the trial court err in refusing to award alimony. A trial judge’s decision regarding alimony is a matter that lies "within his sound discretion and will not be reversed on appeal absent an abuse of that discretion. See Hiett v. Hiett, 86 Ark.App. 31, 158 S.W.3d 720 (2004); Delacey v. Delacey, 85 Ark.App. 419, 155 S.W.3d 701 (2004). An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Southwestern Bell Yellow Pages, Inc. v. Pipkin Enterprises, Inc., 359 Ark. 402, 198 S.W.3d 115 (2004) (citing Arnold v. Camden News Publ’g Co., 353 Ark. 522, 110 S.W.3d 268 (2003)). Our supreme court and this court have emphasized in the past that the circuit court is in the best position to view the needs of the parties in connection with an alimony award. See Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007).
The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Id. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id. The trial judge should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the income, both current and 17anticipated, of both parties; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of each party’s spendable income; (7) the earning ability and capacity of both parties; (8) the property awarded to each party; (9) the disposition of the homestead or jointly owned property; (10) the condition of health and medical needs of the parties; (11) the duration of the marriage. Id. See also Ellis v. Ellis, 75 Ark.App. 173, 57 S.W.3d 220 (2001).
We cannot say that the trial judge abused his discretion in denying appellant’s request for alimony. The crux of appellant’s argument is that appellee should pay alimony because she can due to her significantly higher income. While the trial court did not award alimony, it did mandate a present distribution of appel-lee’s retirement account to be paid over a five year period with interest. Alimony and property divisions are complementary devices that a trial judge employs to make the dissolution of a marriage as equitable as possible. See Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). See also Janet Flaccus, Domestic Relations Contempt Orders, and the Bankruptcy Automatic Stay, Property of the Estate and Concurrent Jurisdiction, 2004 Ark. L. Notes 41, 50 (2004) (stating “It should be recalled that under domestic relations law an equitable division of property is a way of avoiding a need for temporary alimony”).
Appellee does not challenge the immediate distribution of her retirement, nor the interest awarded on the five-year payment plan. Accordingly, the appropriateness of that division is not at issue in this case. It is, however, appropriate for this court to consider that Rthe distribution resembles an award of rehabilitative alimony, and that appellant received the money without the corresponding benefit to appellee of a shifting of income for tax purposes. In making the distribution, the trial court noted that it believed the current distribution was more equitable in these circumstances than to have appellant wait until appellee retired in the future. The trial judge specifically stated from the bench that this distribution addressed appellant’s immediate need for cash. The trial judge also specifically found appellant less than forthcoming and did not afford him much credibility on the debt and income issues.
In reaching our decision, we are mindful that the award of alimony is not mandatory, but is instead discretionary, and the trial court’s decision regarding any such award will not be reversed absent an abuse of discretion. Powell v. Powell, 82 Ark.App. 17, 110 S.W.3d 290 (2003). Discretion and flexibility are critical to the trial court’s ability to make the dissolution of the marriage as equitable as possible. As we explained in Mitchell v. Mitchell, 61 ArkApp. 88, 964 S.W.2d 411 (1998), neither this court, nor the supreme court, has ever attempted to reduce the amount of alimony to a mathematical formula. Presumably,_j^it has been thought that the need for flexibility outweighs the corresponding need for relative certainty. Id. In setting the amount of alimony, the trial court may consider a range of acceptable alternatives. Id.
Here, the trial court ordered an immediate distribution of appellant’s interest in appellee’s retirement that addressed appellant’s present need for liquid funds. The parties in this case were married for less than five years prior to their separation, appellant presented no evidence that his earning capacity was reduced because he relinquished rights or opportunities in furtherance of the marriage, and appellee presented evidence that appellant’s failure to contribute to the marriage combined with his abusive behavior were the reasons for the marriage’s failure. The evidence showed that appellee had obtained her position prior to the marriage negating any equitable claim that appellant’s services in the home allowed appellee to pursue and obtain the credentials that provided her with a higher earning capacity. Rectification of economic imbalances is not necessarily appropriate when the marriage relationship did not influence the imbalances in earning capacity.
Furthermore, in the context of rehabilitative alimony, it is clear that the standard of living to be maintained is the standard achieved by the marriage. Our courts initially recognized rehabilitative alimony in 1990, when this court considered Bolan v. Bolan, 32 ArkApp. 65, 796 S.W.2d 358 (1990). Rehabilitative alimony is alimony that is payable for a short, specified duration of time. See Bolan, 32 Ark.App. at 67-68 n. 1, 796 S.W.2d at 360 n. 1. The primary purpose of rehabilitative alimony is to afford the recipient a specific Imperiod of time in which to become self-supportive:
Generally, the purpose of rehabilitative maintenance is to allow the recipient spouse to become self-supporting; its purpose is to aid the former spouse as he or she transitions back into the workplace and self-sufficiency. Rehabilitative alimony enables the receiving spouse to establish the capacity for self-support commensurate with the standard of living established during the course of the marriage, through the redevelopment of previous skills or the provision of training necessary to develop new skills. The goal of self-sufficiency must, however, be balanced against the realistic likelihood that the spouse will be able to attain a level of support comparable to the standard of living enjoyed during the marriage, especially where the spouse has not been in the work force for a long period of time.
An award of rehabilitative alimony is also designed to permit former spouses to develop their own lives free from obligations to each other. Rehabilitative alimony is a “bridge-the-gap” measure to aid the recipient spouse in making the transition from married life to being single.
Other purposes rehabilitative alimony is intended to serve include the following:
to give the paying spouse some predictability concerning financial obligations, to prevent possible further court appearances by permitting the court to take into consideration reasonably foreseeable changes in the recipient spouse’s circumstances to encourage the recipient spouse to find employment or complete education or training leading to employment.
AMJUR DIVORCE § 760 (footnotes omitted).
We cannot say that the trial court abused its discretion in denying alimony when appellant does not challenge the trial court’s finding the appellant provided no contribution to the marital assets and evidence indicated that he merely depleted marital resources. Although he asserted that his earning capacity was limited by his poor English skills, the evidence established that appellee provided ample opportunity for him to learn the language through private tutoring and university classes. Whether appellant’s professed | uinability to communicate effectively in English was a result of disinterest or inability, nothing in the record indicates how further classes would improve his English skills in order to increase his earning power. Furthermore, there was no testimony explaining how his limited English skills would affect his earning capacity should he return to his home country.
Likewise, we find no error in the trial court’s division of marital property. The trial judge’s distribution of property balances in appellant’s favor with the property distribution and the allocation of debt. Alimony and property divisions are complementary devices that a trial judge employs to make the dissolution of a marriage as equitable as possible. See Davis v. Davis, 79 Ark.App. 178, 84 S.W.3d 447 (2002). A judge’s decision to allocate debt to a particular party or in a particular manner is a question of fact and will not be reversed on appeal unless clearly erroneous. Ellis v. Ellis, 75 Ark.App. 173, 57 S.W.3d 220 (2001). The allocation of debt is an essential issue to be resolved in a divorce case, id., and the overall distribution of property must be considered in that allocation. See Boxley v. Boxley, 77 Ark. App. 136, 73 S.W.3d 19 (2002).
In this case, the division of property addressed any inequities without an award of alimony. This court reviews division of marital property cases de novo. Glover v. Glover, 4 Ark.App. 27, 627 S.W.2d 30 (1982). The trial court has broad powers to distribute property in order to achieve an equitable distribution. Keathley v. Keathley, 76 ArkApp. 150, 61 S.W.3d 219 (2001). The overriding purpose of Arkansas Code Annotated section 9-12-315 | i2(Repl.20Q2) is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Id. Arkansas Code Annotated section 9-12-315 provides that marital property is to be divided equally unless it would be inequitable to do so. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). If the property is divided unequally, then the court must give reasons for its division in the order. Ark.Code Ann. § 9-12-315(a)(l)(B) (Repl.2002); Harvey v. Harvey, supra. The code also provides a list of factors the court may consider when choosing unequal division. Ark.Code Ann. § 9 — 12—815(a)(1)(A)(i)—(ix) (Repl.2002). This list is not exhaustive.
Arkansas Code Annotated section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Creson v. Creson, 53 ArkApp. 41, 917 S.W.2d 553 (1996). The trial court is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. Id. (Emphasis added.) These broad powers, under the statute, include the distribution of all property in divorce cases, marital and non-marital, in order to achieve an equitable distribution. Id.
Under the facts presented in this case, we find no error in the trial court’s distribution of property. A trial judge’s unequal division of marital property will not be reversed unless it is clearly erroneous. Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005). The trial court in this case specifically found that any sale of the marital residence would result in a deficiency to which appellant could not contribute. The trial court | ^accordingly awarded the residence, which was deeded to appellee in her name only, to appellee as her sole and separate property, free and clear of any claims by appellant. None of the debt obligation for the residence was allocated to appellant. While this may have resulted in an unequal distribution, we cannot say that the division of the total assets and debt allocation was clearly erroneous and inequitable toward appellant.
Affirmed.
VAUGHT, C.J., MARSHALL and HENRY, JJ., agree.
HART and ROBBINS, JJ., dissent.
. Despite the trial court's immediate distribution of appellant’s interest in appellee's retirement and award of accruing interest, the dissenting judges assert that this court should find that the trial court abused its discretion in failing to grant alimony. Neither dissent cites a case with factual similarities to support the award of alimony. Furthermore, neither dissent cites a case supporting the contention that providing appellant monthly funds for a period of five years to address appellant’s need for immediate cash demonstrates that the trial court abused its discretion by acting thoughtlessly and without due consideration in denying alimony. Southwestern Bell Yellow Pages, Inc. v. Pipkin Enterprises, Inc., 359 Ark. 402, 198 S.W.3d 115 (2004) (citing Arnold v. Camden News Publ’g Co., 353 Ark. 522, 110 S.W.3d 268 (2003)). | [
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Per Curiam.
Respondent Robert Paul Newman has filed a motion with this court asking for clarification of the abstracting and briefing responsibilities regarding his disbarment proceeding. This court previously appointed the Honorable Jack Lessen-berry of Litde Rock to sit as special judge to hear the evidence in this case and make findings of fact and conclusions of law. See Ligon v. Newman, 355 Ark. 620, 143 S.W.3d 576 (2004) (per curiam). On March 18, 2005, Judge Lessenberry filed the report, which recommended that Newman be disbarred.
In his motion, Newman seeks guidance as to whether he or Petitioner Stark Ligón, as Executive Director of the Supreme Court Committee on Professional Conduct, should file the opening brief and abstract in this matter, as Section 13 of the Procedures Regulating Professional Conduct is silent on this issue. Newman suggests that because the special judge appointed to hear this matter only makes a recommendation as to a sanction, there is no “judgment” to challenge and, thus, it is incumbent upon Ligón to move the matter forward and get this court to adopt the special judge’s recommendation. Thus, Newman asserts that Ligón, as Executive Director and Petitioner, must bear the burden of abstracting the record and filing the opening brief.
Ligón, on the other hand, asserts that Newman should file the opening brief and abstract because he is the one challenging the special judge’s findings, conclusions, and recommendation. He suggests that any recommendation of a sanction by the special judge should place the respondent-attorney in the position of briefing first.
The position advanced by Ligón is consistent with the language of Section 13(D), which provides in pertinent part:
The findings of fact, conclusions of law, and recommendation of an appropriate sanction shall be filed with the Clerk of the Supreme Court along with a transcript and the record of the proceedings. Upon the filing, the parties shall file briefs as in other cases. Thefindings of fact shall be accepted by the Supreme Court unless clearly erroneous. [Emphasis added.]
This section appears to place the burden of abstracting and filing the opening brief on the party seeking to challenge the special judge’s findings, given that the findings shall be accepted by this court unless they are clearly erroneous.
Ordinarily, it is the burden of the appellant, i.e., the party challenging the findings, to demonstrate that the findings are clearly erroneous. Hence, the burden is placed on the appellant to abstract the record to demonstrate error. See, e.g., Simmons First Bank of Arkansas v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Luttrell v. City of Conway, 339 Ark. 408, 5 S.W.3d 464 (1999); McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996) (holding that it is the appellant’s burden to abstract the record to demonstrate error, and the appellate court will not go to the record to determine whether reversible error occurred). This is the procedure employed in other cases before this court. Section 13(D) specifically provides that parties in disbarment cases file briefs as in other cases. Thus, we conclude that the party challenging the special judge’s findings, whether it be the attorney or the Committee, bears the burden of demonstrating that the findings are clearly erroneous and therefore bears the burden of abstracting the record to so demonstrate.
Here, the special judge’s findings support the Committee’s petition for disbarment, and Newman is the party challenging those findings. As such, he is placed in the role of an appellant in this instance and he should bear the burden of abstracting the record and filing the opening brief. However, we reiterate that it will not always be the attorney who must bear this burden. In those instances in which the special judge’s findings support the attorney and are challenged by the Committee, the Committee would be in the role of the appellant and would bear the burden of abstracting the record and filing the opening brief.
We hereby direct the Clerk to set a briefing schedule in this matter in accordance with our ruling today. | [
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Tom Glaze, Justice.
We deny appellant Damien Echols’s petition for rehearing. A petition for rehearing is to be used to call attention to specific errors of law or fact which the opinion is thought to contain; the brief on rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. Ark. Sup. Ct. R. 2-3(g) (2004).
Echols first argues in his petition for rehearing that, if this court was correct in holding that his juror-bias claim should have been raised in a motion for new trial, then he should now be permitted to argue that counsel’s failure to file such a motion constituted ineffective assistance of counsel. However, this court has previously foreclosed Echols’s attempts to raise new ineffective-assistance claims. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).
Echols next argues that this court erred in its interpretation of Ark. R. Evid. 606(b), and he claims that this court’s holding has deprived him of his ability to raise a federal constitutional claim. However, he argued this in his original briefs, and petitions for rehearing are not intended to allow an opportunity for “mere repetition of the argument already considered by this court.” Ark. Sup. Ct. R. 2-3(g).
Finally, Echols states that this court’s comments concerning the DNA testing “do not reflect, and indeed are at odds with, the testing procedures agreed upon by the parties, which are now in progress.” We point out that this court has repeatedly granted stays in this case so that the parties could complete the DNA testing authorized by Ark. Code Ann. § 16-112-201 (Supp. 2001). The first stay was for sixty days, granted in an opinion issued on September 12, 2002. See Echols v. State, 350 Ark. 42, 84 S.W.3d 424 (2002) {per curiam). Thereafter, on November 14, 2002, and February 28, 2003, this court extended the stay, for a period of ninety days each time. On June 19, 2003, this court granted yet another motion to extend the stay. See Echols v. State, 353 Ark. 755, 120 S.W.3d 78 (2003) (per curiam). We declined, however, to issue an open-ended stay, as Echols requested. Instead, we granted a stay for a period of seventy days from the date of that opinion, and declared that it would be the final extension of time.
In his brief in support of his current petition for rehearing, Echols avers that the trial court in this case issued an order on June 2, 2004, approving the DNA testing of specific items of evidence to be performed at the Bode Technology Group in Springfield, Virginia. Although he has attached a copy of that order to his petition for rehearing, he failed to provide this court with that information when he submitted his motion to recall the mandate and to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis. Thus, our comment at the conclusion of the opinion, encouraging the parties to “take action to ensure that the DNA testing is addressed and concluded,” was occasioned by the parties’ failure to inform this court of the status of the DNA testing. This failure caused us to question whether our previous admonishment regarding the finality of the extensions of time had been ignored — a concern that the parties did nothing to allay when they failed to inform this court of the status and whereabouts of the DNA proceedings. We would not have made such a statement if the parties had provided this information to the court. Now that the parties have favored us with the status of the DNA testing, we clarify our opinion by striking its final paragraph. We again stress to the parties the importance of concluding this matter..
Petition for rehearing denied. | [
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Tom Glaze, Justice.
This appeal was certified to this court by the court of appeals in order to address apparent conflicts between the statutes governing the practice of chiropractic and the practice of physical therapy. Appellant Michael Teston appeals from an order of the Pulaski County Circuit Court affirming a decision by the Arkansas State Board of Chiropractic Examiners that Teston practiced chiropractic without a license.
Teston is a licensed physical therapist. From January 2001 through April 2001, Teston treated Katherine Fryar after she had been injured as a result of a car accident. In early 2002, Fryar filed a complaint with the Arkansas State Board of Chiropractic Examiners (“the Board”) against Teston, which resulted in the Board sending an investigator, Dennis Hendrix, to Teston’s office in May of 2002. While Hendrix was there, Teston performed certain treatment maneuvers on Hendrix. Based on Hendrix’s investigation, the Board sent Teston a notice of hearing in which the Board alleged that Teston was practicing chiropractic without a license, in violation of Ark. Code Ann. § 17-81-303 (Repl. 2002).
During the pendency of the Chiropractic Board’s investigation of Teston, Teston sought a declaratory order from the Arkansas State Board of Physical Therapy (“the Physical Therapy Board”) pursuant to Ark. Code Ann. § 25-16-206 (Repl. 2002). After reviewing Fryar’s and Hendrix’s medical records and written statements, the Physical Therapy Board found that the treatments administered to both Fryar and Hendrix by Teston “were within the scope of the practice of physical therapy.” The Physical Therapy Board concluded that Teston provided treatment within the scope of the practice of an individual providing physical therapy services. The Physical Therapy Board’s declaratory order was entered on October 17, 2002.
On December 10, 2002, the Chiropractic Board held its hearing on Fryar’s complaint, and at the hearing, Fryar testified that Teston’s treatment of her consisted of, among other things, putting pressure on her spine such that the joints would pop. Fryar further stated that she had been to a chiropractor before, and the things Teston did to her felt like what the chiropractor had done. Fryar also said that Teston referred to what he was doing as “releasing the joint.” Investigator Hendrix likewise testified that Testen performed maneuvers on him that resulted in a “popping” or “snapping” in his spine.
Following the hearing, the Board issued its findings of facts and conclusions of law, in which the Board determined that Teston’s treatment of both Fryar and Hendrix constituted the practice of chiropractic. Specifically, the Board stated that, based on both Fryar’s and Hendrix’s “testimonial description of [the patients’ and Teston’s] body and hand positions, pressure used, documentary evidence submitted, and testimony of the various expert witnesses, the Board finds that the maneuvers] described by [Fryar and Hendrix] [were] . . . spinal manipulation^] [that] can only be performed by licensed chiropractors in the State of Arkansas.” As a result, the Board found that Teston’s actions violated Ark. Code Ann. § 17-81-303(a)(l) (Repl. 2002) (prohib iting the practice of chiropractic without a license), and fined him $5,000 for each violation, for a total of $10,000.
Teston filed a petition for judicial review in the Pulaski County Circuit Court on January 17, 2003, alleging that the Board’s decision was “in violation of constitutional and statutory provisions; was in excess of the Board’s statutory authority; was made upon unlawful procedure; was not supported by substantial evidence; and was arbitrary, capricious, and an abuse of discretion.” The trial court denied Teston’s petition and affirmed the Board’s decision. Teston filed a timely notice of appeal from the circuit court’s order, and on appeal to this court, he raises the following four points: 1) there is no substantial evidence that Teston was subject to the Arkansas Chiropractic Practices Act and not exempt due to performing procedures within the scope of the Arkansas Physical Therapy Act; 2) the Chiropractic Board’s order should be reversed because it failed to follow statutory requirements that it make findings of fact; 3) the Chiropractic Act’s prohibition against a physical therapist’s performing a “manipulation” is unconstitutionally void for vagueness; and 4) the Chiropractor Board’s order is not supported by substantial evidence.
We address Teston’s first and fourth points together, as both arguments pertain to the quantity and quality of the evidence presented to the Board. Our standard of review regarding administrative decisions is well developed. Judicial review of agency decisions is governed by the Arkansas Administrative Procedure Act, Ark. Code Ann. § 25-15-212 (Repl. 2002). The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. Williams v. Arkansas State Board of Phys. Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). 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. Id.; State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999); McQuay v. Arkansas State Board of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). Our review of administrative decisions is limited in scope. McQuay, supra. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).
We will not reverse the Board’s decision if there is any substantial evidence to support it. Arkansas Board of Examiners v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). Substantial evidence is evidence that is valid, legal, and persuasive and that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Id. The question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. Id. It is the prerogative of the board to believe or disbelieve any witness and to decide what weight to accord the evidence. Id. Similarly, the construction of a state statute by an administrative board or agency will not be overturned unless it is clearly wrong. Thomas v. Arkansas Dep’t of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995). The appellant has the burden of proving that there is an absence of substantial evidence. McQuay, supra.
The party challenging the agency’s action must prove that such action was willful and unreasonable, without consideration and with a disregard of the facts or circumstances of the case. Williams, supra; Moore v. King, 328 Ark. 639, 945 S.W.2d 358 (1997). To establish an absence of substantial evidence to support the decision the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Williams, supra. Where the agency’s decision is supported by substantial evidence, it automatically follows that the decision cannot be classified as arbitrary and capricious. Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992).
Teston argues first that there was no substantial evidence that he was subject to the Arkansas Chiropractic Practices Act, see Ark. Code Ann. § 17-81-101 et seq. (Repl. 2002), and he claims that he was exempt from the Chiropractic Act because he was performing procedures within the scope of the Arkansas Physical Therapy Act. See Ark. Code Ann. § 17-93-101 et seq. (Repl. 2002). We begin with an examination of the relevant statutes. The “exemption” Teston cites as part of the Chiropractic Act provides in pertinent part as follows:
Nothing herein shall be construed to prohibit or to require a license [under the Chiropractic Act] with respect to any of the following acts:
(3) The practice of.. .physical therapy... or any other branch of the healing arts as defined by the laws of this state as now or hereafter enacted, it not being intended by this chapter to limit, restrict, enlarge, or alter the privileges and practices of any of these professions or branches of the healing arts.
Ark. Code Ann. § 17-81-302(3) (Repl. 2002) (emphasis added).
In addition, although the Chiropractic Act makes it “unlawful for any person other than a physician licensed to practice chiropractic ... to perform spinal mobilizations, spinal adjustments, or spinal manipulations as those terms are defined in § 17-81-102(7),” Ark. Code Ann. § 17-81-303(d)(1) (Repl. 2002), the Act further provides that “[n]othing contained in this subsection shall be construed to limit or restrict the authority of a licensed physical therapist to practice physical therapy as defined in § 17-93-102(6).” Ark. Code Ann. § 17-81-303(d)(2) (Repl. 2002). In turn, the “practice of physical therapy” is defined, in part, in Ark. Code Ann. § 17-93-102(6) (Repl. 2002) as follows:
(B)(i) Alleviating impairments and functional limitations by .designing, implementing, and modifying therapeutic interventions that include:
* * * *
(c) Manual therapy techniques, including soft tissue massage, manual traction, connective tissue massage, therapeutic massage, and mobilization, i.e., passive movement accomplished within normal range of motion of the joint, but excluding spinal manipulation and adjustment[.]
(Emphasis added.)
Finally, “spinal manipulation and adjustment” is defined within the Chiropractic Act as “the skillful or dexterous treatment whereby a corrective force or passive movement of the joint is made to realign vertebrae or articulations to their normal juxtaposition.” Ark. Code Ann. § 17-81-102(7) (Repl. 2002).
Teston argues that there is no substantial evidence in the record that he exceeded his authority under the Physical Therapy Act. Stated another way, he contends that the evidence supported a conclusion that he was practicing physical therapy, and therefore, he could not have been engaged in the unlawful practice of chiropractic. In support of his argument, Teston points out that the Physical Therapy Board determined that his actions fell within the definition of physical therapy, and he also notes that four physical therapists testified before the Chiropractic Board that Teston’s treatments of Fryar and Hendrix constituted appropriate physical-therapy treatments.
Teston’s argument appears to be based fundamentally on his contention that the witnesses testifying on his behalf offered more compelling testimony than the witnesses who offered evidence against him. As stated above, however, the credibility and the weight of the evidence is within the administrative agency’s discretion, and it is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord that evidence. Williams, 353 Ark. at 785.
Here, Katherine Fryar, the complaining witness, testified that she began to see Teston for physical therapy after sustaining injuries from a car accident. She described what Teston did to her as being like a “wrestling hold,” in which he would “put pressure on the spine and the joint would pop.” Fryar stated that she would “cross [her] hands over [her] chest and lay down over his hand and would feel [and] hear a popping sound, feel the movement of the vertebrae.” Fryar further asserted that she had been to a chiropractor before, and what Teston did to her felt like what the chiropractor had done; she said that Teston’s treatment consisted of “very similar motion[s] and the results felt the same.”
The Chiropractic Board also heard the testimony of investigator Dennis Hendrix, who testified that when he went to see Teston for treatment, Teston placed his fingertips on Hendrix’s spine and indicated that he (Teston) could feel a “flat spot” in the thoracic area. Hendrix then testified that Teston had him lie prone on his back with his fingers laced together behind his head and his elbows pulled together; Hendrix “rose up” in this position, and then Teston pulled Hendrix’s elbows even closer together and started repositioning Hendrix in a prone position. Just before reaching a flat, prone position, Teston pulled Hendrix’s torso to the right, and Hendrix heard “two or three pops or snaps.” Teston repeated this exercise a second time, and Hendrix heard two or three more pops or snaps. Teston later told Hendrix that what he had done was called a “joint mobilization.” Hendrix stated that he, like Fryar, had been to a chiropractor before, and the procedure Teston had performed, as well as the results of the procedure, were the same as Hendrix had received from the chiropractor.
Finally, the Board heard the expert testimony of Dr. Edward Ashton, a chiropractor and physical therapist from Silver Springs, Maryland. Dr. Ashton testified that, in the practice of chiropractic, spinal manipulations or adjustments are used in order to “move [a joint] outside of the normal range [of movement] ... [in order to] facilitate the changes ... to make that [joint] segment more normal.” He defined an adjustment as “moving joints or spinal joints outside their normal range [of motion] . . ., which generally results in an audible release.” Dr. Ashton further testified that he believed Teston manipulated Fryar’s and Hendrix’s joints by moving them outside of their normal range of motion, based on the “popping” sound to which both witnesses alluded.
As mentioned above, physical therapy involves the use of manual therapy techniques, including mobilizations, which are “passive movement[s] accomplished within [the] normal range of motion of the joint.” § 17-93-102(6)(B)(i)(c). The evidence before the Chiropractic Board substantially supported its conclusion that Teston’s treatment of Fryar and Hendrix involved moving their joints beyond their normal range of motion, and consequently, Teston’s actions did not fall within the definition of the practice of physical therapy. Therefore, he was not entitled to the Chiropractic Act’s “exemption” which he claims applies. Furthermore, the evidence supported the Chiropractic Board’s conclusion that Teston performed “spinal manipulations” or “spinal adjustments,” defined in Ark. Code Ann. § 17-81-103(7) as “a corrective force or passive movement . . . made to realign vertebrae or articulations to their normal juxtaposition,” and both “spinal manipulation” and “adjustment” are encompassed within the definition of the “practice of chiropractic.” See § 17-81-103 (6) (A).
We note that the question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. Teston spends much of his argument contending that Dr. Ashton relied on the “popping” testimony received from Fryar and Hendrix to support his expert opinion that such a “popping” sound demonstrated that Teston was practicing chiropractic. However, we note that Dr. Ashton was qualified as an expert, and although Teston attempted to discredit his opinion, the apparent inconsistencies that were revealed on cross-examination (and on which Teston relies heavily on appeal) went only to the weight of Dr. Ashton’s testimony. As discussed above, the credibility and the weight of the evidence is within the administrative agency’s discretion, and it is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord that evidence. Williams, 353 Ark. at 785. Further, the Board had before it both Fryar and Hendrix’s testimony to support its decision.
Here, we conclude that the evidence supports the finding made by the Board, namely, that Teston’s treatments of Fryar and Hendrix were spinal manipulations that can only be performed by licensed chiropractors. As there was substantial evidence to support the Board’s finding that Teston was practicing chiropractic, it necessarily follows that Teston was not practicing physical therapy, and therefore, he was not entitled to the “exemption” found in § 17-81-302(3).
Teston’s next argument on appeal is that the Board failed to make sufficient factual findings. The Administrative Procedures Act (APA), Ark. Code Ann. § 25-15-210(b)(2) (Repl. 2002), requires that an administrative adjudication be accompanied by specific findings of fact; the act provides in relevant part as follows:
(b)(1) In every case of adjudication, a final decision or order shall be in writing or stated in the record.
(2) 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----
In Holloway v. Arkansas State Board of Architects, 352 Ark. 427, 101 S.W.3d 805 (2003), this court cited with approval from Nesterenko v. Arkansas Board of Chiropractic Examiners, 76 Ark. App. 561, 69 S.W.3d 459 (2002), as follows:
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, [supra]. 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 fimctions; 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).
Holloway, 352 Ark. at 438-39.
In Holloway, this court determined that the findings of the State Board of Architects “contain[ed] sufficient facts relevant to the contested issue so that this court [could] determine whether the Board [had] resolved those issues in conformity with the law.” Id. at 439. There, the facts included statements that Holloway, an engineer, was not a licensed architect, and that Holloway had prepared drawings and specifications for a building. The building consisted mainly of office space, and the primary purpose of the building was for human occupation or habitation. The cost of the building was in excess of $100,000, and the work performed by Holloway was not incidental to the practice of engineering. Id. at 438. These findings “reflected the facts to which [the Board’s witness] testified, and because the findings incorporated a “proper and acceptable finding of the basic or underlying facts drawn from the evidence,” they were sufficient under the APA. Id. at 439 (quoting from Nesterenko, supra).
In the instant case, the Chiropractic Board’s findings were as follows:
F-l. At all times pertinent to this hearing, [Teston] has been unlicensed to practice chiropractic in the State of Arkansas.
F-2. Between January and April 2001, [Teston] treated . . . Katherine Fryar as a physical therapist following a car accident.
F-3. During the three-month period, [Teston’s] treatments included popping [Fryar’s] cervical, thoracic and lumbar regions of [the] spine. Based on [Fryar’s] testimonial description of her and [Teston’s] body and hand positions, pressure used, documentary evidence submitted, and testimony of the various expert witnesses, the board finds that the maneuvers described by [Teston] were spinal manipulations which can only be performed by licensed chiropractors in the State of Arkansas____ [T]his finding shall constitute one violation.
F-4. Based on [Teston’s] testimony that the maneuvers were common in his practice, the Board finds that [Teston] may have treated others similarly. Due to the speculative nature of the finding, it shall not count as a violation.
F-5. On May 30,2002, the Board’s investigator, Dennis Hendrix, visited [Teston’s] clinic as part of his investigation and was treated. [Teston’s] treatments included an upper body twisting maneuver that created a popping in the spine. Based on Mr. Hendrix’s testimonial description of his and [Teston’s] body and hand positions, pressure used, documentary evidence submitted, and testimony of the various expert witnesses, the board finds that the maneuvers described by [Teston] were spinal manipulations which can only be performed by licensed chiropractors in the State of Arkansas. This finding shall constitute one violation.
Thus, the Board’s findings contain a statement that Fryar’s treatment consisted of “popping [her] cervical, thoracic and lumbar regions of the spine,” as well as a statement that Hendrix was treated with “an upper body twisting maneuver that created a popping in the spine.” Both of these statements include sufficient details of the witnesses’ testimony upon which the Board reasonably relied in reaching its decision. As in Holloway, supra, this court has facts from which we are able to determine whether the Board resolved the questions before it in conformity with the law. Thus, we conclude that the Board’s factual findings were sufficient.
The final argument in Teston’s appeal is that the Chiropractic Act’s prohibition against a physical therapist performing a “manipulation” is unconstitutionally void for vagueness. He asserts that, because the Chiropractic Act defines “spinal manipulation” the same as “spinal mobilization,” but the Physical Therapy Act permits a physical therapist to perform all “mobilizations,” there is an unconstitutionally vague overlap, as a person of ordinary intelligence would have to guess at the statutes’ meaning.
Teston’s constitutional argument is not preserved for appeal. In order to preserve a constitutional argument in an appeal from an agency decision, the constitutional issue must first be raised and developed at the administrative level. This court firmly established the rules governing the raising and developing of constitutional arguments before an administrative agency in AT&T Communications of the Southwest, Inc. v. Arkansas Public Service Commission, 344 Ark. 188, 40 S.W.3d 273 (2001), wherein the1 court wrote as follows:
Our court has addressed the question of whether an administrative agency has the authority to declare a statute unconstitutional. In Lincoln v. Arkansas Public Service Commission, 313 Ark. 295, 854 S.W.2d 330 (1993), we held that to allow the Public Service Commission to declare unconstitutional a statute that it was required to enforce would violate the separation of powers doctrine. However, this does not mean that a constitutional issue should not be raised and developed at the administrative level. [Emphasis in original.]
This precise question has been considered in the context of other administrative agencies, such as the Workers’ Compensation Commission. In Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), the court of appeals held that questions of constitutional magnitude must be addressed at the administrative agency level before such questions will be considered preserved for appeal. The [Hamilton] court wrote as follows:
Until now, this court has not been asked whether constitutional questions must first be presented at the Commission level. The general rule is that the constitutionality of a statute will not be considered if raised for the first time on appeal. Citation omitted.] This rule has also been followed by appellate courts in appeals from workers’ compensation commissions and other administrative agencies. [Citations omitted.] Even though the Commission may not have the authority to declare statutes unconstitutional, we believe such issues should first be raised at the Administrative Law Judge or Commission level. Constitutional questions often require an exhaustive analysis which is best accomplished by an adversary proceeding. Obviously this can be done only at the hearing level. Requiring these constitutional issues to be considered by the Commission, we can be assured that such issues will be thoroughly developed before we are asked to rule on a statute’s validity.
Hamilton, 6 Ark. App. at 335.
AT&T, 344 Ark. at 196-97. The court in that case continued as follows:
The development of facts before the Commission thus is critical[.]. . . [T]he Commission is the only forum where a full development of the facts and law can occur; without that complete development of the facts and arguments below, this court cannot fulfill its reviewing function. Raising such constitutional issues before the Commission is significant even when a statute is challenged as unconstitutional on its face, especially since the interpre tation given by the agency charged with its execution is highly persuasive. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 69 Ark. App. 323, 13 S.W.2d 197 (2000).
... AT&T provided only a bare reference to what it believed were issues of constitutional magnitude in its motion for reconsideration and its application for rehearing. No attempt was made to flesh out these constitutional arguments before the Commission, either in AT&T’s pleadings or by proffering testimony of witnesses. Nor did AT&T request a ruling or determination by the Commission, or suggest the Commission was wrong in not making a determination. Thus, we hold that AT&T has not sufficiently developed its constitutional arguments to preserve them for this court’s review.
Id. at 197-98.
In the instant case, the record fails to show that Teston filed any pleadings with the Chiropractic Board during its consideration of Fryar’s complaint. The only mention of “vagueness” came in Teston’s attorney’s closing arguments before the Board, which Teston did not abstract. Teston did not address this constitutional issue before the Board, nor did he request the Board’s ruling on this constitutional argument. Accordingly, the Board made no conclusions of law concerning the constitutionality of the statute; its order stated only that Teston had practiced chiropractic without a license. Although Teston raised his constitutional argument before the trial court, this court does not, on an appeal from an agency decision, review the actions of the circuit court. See Williams v. Arkansas State Board of Phys. Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). Further, Teston did not even specifically challenge the statute as being void for vagueness in his petition for judicial review; instead, he generically alleged that the “Board’s decision was in violation of constitutional and statutory provisions.” Because Teston did not raise, address, or develop the issue of the constitutionality of the Chiropractic Act in the proceedings before the Chiropractic Board, this court must hold that his constitutional argument is not preserved for appeal.
Hannah,'C.J., concurs.
Brown and Imber, JJ., not participating.
The record reveals that Teston argued that “[what] you have [is] a law that’s too vague and nobody can tell what they’re allowed to do. You know, where is it explained in your regulations or anything how anything that Mr. Teston did falls within the definition of spinal manipulation in your law?”
We also note that several of the amicus curiae briefs cite Ark. Code Arm. § 17-80-114 (Supp. 2003), which provides for a method of arbitration between boards of the healing arts concerning scopes of practice; the statute provides that no board of the healing arts may take disciplinary action at the board level against a licensee of another board of the healing arts except as provided by § 17-80-114(c). However, neither Teston nor the State raises this argument. This court has repeatedly held that it will not address new points raised only by amici curiae, as the amici curiae must “take the case as [they] find[ ] it and cannot raise issues not raised by the parties or introduce new issues at the appellate level.” See Arkansas Transit Homes v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000); Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995); City of Little Rock v. AT&T Communications of the Southwest, Inc., 316 Ark. 94, 870 S.W.2d 217 (1994); Ferguson v. Brick, 279 Ark. 168, 649 S.W.2d 397 (1983) (per curiam); Mears v. Little Rock School Dist., 268 Ark. 30, 593 S.W.2d 42 (1980); Equilease Corp. v. United States Fidelity & Guar. Co., 262 Ark. 689, 565 S.W.2d 125 (1978). | [
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Per Curiam.
On March 10, 2005, attorney Jerome Green appeared before this court for a second time to show cause as to why he should not be held in contempt for attempting to pay his delinquent bar dues with a check returned for insufficient funds and for failing to pay a fine previously ordered by this court in Edwards v. State, 360 Ark. 90, 199 S.W.3d 684 (2004) (per curiam). Mr. Green entered a plea of guilty to the contempt charge and offered a statement of mitigation, through his attorney Sheila Campbell.
Ms. Campbell indicated that the Internal Revenue Service had placed a lien on Mr. Green’s bank account in August 2004. Mr. Green’s wife was working at the time, but she became ill in September 2004 and did not return to work until around Thanksgiving. The lien on Mr. Green’s bank account was released on February 2, 2005, when Ms. Campbell filed a Chapter 13 bankruptcy petition on behalf of the Greens. Thereafter, on February 28, Mr. Green tendered to the clerk of this court a cashier’s check for his delinquent bar dues and fine. On March 6, Mr. Green was accepted into the Arkansas Lawyer Assistance Program, to help him with depression and other issues so that he may get his law practice back on track.
We accept Mr. Green’s plea of guilty to the contempt charge. Because he has paid his delinquent bar dues and fine, we refer this matter to the Committee on Professional Conduct for further action, if any be required.
It is so ordered.
Dickey, J., not participating. | [
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Per Curiam.
Appellant Ray Sebastian, by and through his attorney, has filed a motion for rule on clerk. His attorney, Brenda Stallings, states in the motion that the record was tendered late due to a mistake on her 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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Jim Gunter, Justice.
James C. Fudge was convicted of capital murder in the death of his wife, Kimberly Fudge, and was sentenced to death. We affirmed the conviction and sentence in Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Fudge then filed a Rule 37 petition requesting post-conviction relief, which was denied by the circuit court. On appeal, we reversed and remanded for further findings of fact and conclusions of law on certain issues related to Fudge’s ineffective-assistance-of-counsel claim. See Fudge v. State, 354 Ark. 148, 120 S.W.3d 600 (2003). On remand, the circuit court issued an amended order denying all of Fudge’s claims except for one. The court agreed with Fudge’s claim that his penalty-phase counsel, Tammy Harris, was ineffective for faffing to object to evidence of a purported prior conviction for first-degree battery, which was used by the State as evidence of an aggravating circumstance. Accordingly, the circuit court granted Fudge a new sentencing hearing. The State appeals, and Fudge cross-appeals.
Justice Glaze, Justice Dickey, and I would reverse on appeal and affirm on cross-appeal. Chief Justice Hannah and Justice Corbin would affirm on appeal and affirm on points B, C, D, and E on cross-appeal, but would not address point A on cross-appeal for reasons stated in Chief Justice Hannah’s opinion. Justice Imber would affirm on both the appeal and the cross-appeal. Justice Brown would remand the case on appeal for additional findings of fact and conclusions of law and would affirm on cross-appeal. Therefore, our disposition is to affirm the trial court’s findings on both the appeal and the cross-appeal.
We will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.; Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).
Both parties argue that the circuit court’s decision granting relief in part and denying relief in part on the basis of ineffective assistance of counsel was clearly erroneous. Therefore, it is important in reviewing both the appeal and the cross-appeal to set forth the standard for determining whether counsel’s assistance was ineffective. To prevail on a claim of ineffective assistance of counsel, Fudge must prove two things: (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Proof on component one requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id.; Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). Proof on component two requires a showing that counsel’s errors were so serious as to deprive Fudge of a fair trial, a trial whose result is reliable. Id. This means that there is a “reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
In making its determination, the court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). That is, the petitioner must overcome the presumption that, “under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, supra, 350 U.S., at 101, 76 S. Ct., at 164.” Strickland, 466 U.S. at 689. If it is determined that counsel’s performance was indeed deficient, this does not end the ineffective-assistance inquiry. Petitioner must prove the deficient performance prejudiced his defense. Id. at 687. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test.” Id. at 693. When a death sentence is being challenged, the petitioner must show that there is a reasonable probability that, absent the counsel’s errors, the jury “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695. With these standards in mind, I turn to the allegations of ineffective assistance raised on appeal.
I. State’s Appeal
The State’s sole argument on appeal is that the circuit court erred by ruling that Fudge’s trial counsel was ineffective for failing to object to the introduction of State’s Exhibit 56, evidence regarding a purported first-degree battery conviction. The circuit court granted post-conviction relief on this claim, holding as follows:
[W]here the jury in a capital case was presented wrongly with evidence that the petitioner was previously convicted of the crime of battery in the first degree, when, in fact, the petitioner had only been convicted of robbery, a less violent offense, the failure to object to the introduction of such evidence, even where the exhibit thereto was not presented to the jury, constitutes representation deficient enough in a death-penalty case that it constitutes ineffective assistance of counsel and, indeed, denied this petitioner the constitutional right to counsel under the Sixth Amendment to the United States Constitution. Strickland, supra.
To allow the jury deliberating on sentencing in a death-penalty case to believe that the defendant previously has been convicted of the violent offense of battery in the first degree, when that is not the case, is so prejudicial as to warrant reconsideration in a new sentencing hearing.
In order to impose a sentence of death for capital murder, the jury must find beyond a reasonable doubt that at least one aggravating circumstance exists. Ark. Code Ann. § 5-4-603 (Repl. 1997). The aggravating circumstance that the State presented to the jury in this case was that Fudge had been convicted of several prior felonies “an element of [each of] which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person.” See Ark. Code Ann. § 5-4-604(3) (Supp. 2003). The evidence introduced to support this aggravating circumstance was State’s Exhibits Nos. 56, 57, and 58. These exhibits were never shown to the jury, but were simply read by the State’s counsel to the jury as follows: (1) Exhibit 56 shows Fudge was convicted of battery in the first degree; (2) Exhibit 57 shows Fudge was convicted of two counts of terroristic threatening; and (3) Exhibit 58 shows Fudge was convicted of two counts of terroristic threatening.
Fudge does not dispute the admission into evidence — or the recitation to the jury regarding such admission — of either Exhibit 57 or Exhibit 58. Fudge argues that the recitation of Exhibit 56 was incorrect. He claims that the references to first-degree battery in Exhibit 56 do not amount to proof beyond a reasonable doubt that he was convicted of first-degree battery. He argues that the judgment in Exhibit 56 shows only that he was convicted of robbery. Therefore, he claims that his counsel’s failure to object to the introduction of evidence of a first-degree-battery conviction constituted ineffective assistance of counsel. The circuit court agreed and granted Fudge a new sentencing hearing. I would hold that the circuit court’s finding of ineffective assistance of counsel on this issue is clearly erroneous. Accordingly, I would reverse.
Exhibit 56 consists of four documents. The first document is a felony information charging Fudge with two crimes: count one — aggravated robbery; and count two — first-degree battery. The second document is a plea statement, stating that Fudge pleaded guilty on the charges of robbery and first-degree battery. Next, a criminal-docket sheet contains notes indicating that count one was reduced from aggravated robbery to robbery, the plea of not guilty was withdrawn, and a plea of guilty was entered. The docket sheet also states that the defendant was sentenced to eight years on each count concurrent with each other. Finally, the judgment and commitment order indicates that the State reduced the charge to robbery, and that Fudge withdrew a previous plea of not guilty and entered a plea of guilty. There is no specific mention made of count two, the first-degree battery charge, in the judgment and commitment order. However, it states that “the Court doth sentence and commit defendant to [eight] years imprisonment in the State Penitentiary on each count to run concurrent with each other.” Whether Fudge was convicted of first-degree battery is not the issue before us. The issue is whether, under the facts and circumstances of this case, Ms. Harris’s conduct constituted ineffective assistance of counsel. I would hold that it did not.
Fudge’s penalty-phase counsel, Ms. Harris, testified in the Rule 37 hearing that Fudge admitted to her that he had been convicted of first-degree battery. She testified that Fudge was shown all of the exhibits — that is, Exhibits 56, 57, and 58 — and that he said he “had” those convictions. Ms. Harris further testified that, having previously reviewed Exhibit 56, she believed the judgment and docket sheet were sufficient to establish that Fudge was convicted of battery. She explained this in the Rule 37 hearing as follows:
Q [Fudge’s counsel]: . . . Did the fact that Mr. Fudge may have admitted to you that he’d been convicted of battery play a role in whether or not to challenge this aggravating circumstance?
A: We showed him all — he was shown all of the exhibits. As we went through each one, he said that he had those convictions. And the felony information shows that there was an eight — he got eight years on count — on each count, count one being the robbery and count two being the battery first in this particular case.
Q [Fudge’s counsel]: You believe that the judgment on state’s exhibit fifty-six is sufficient to establish —
A: Yes.
Q: — that Mr. Fudge was convicted of battery?
A: The judgment and the docket sheet, yes.
Q: Did it ever cross your mind that it might not be sufficient?
A: No. I mean we’d reviewed them before.
Q [State’s counsel]: If you would look, Miss Harris, for a moment there at, I think, what’s marked as state’s exhibit fifty-six for just a moment.
A: Okay.
Q: I’ll let you hang onto that, if I may. Isn’t it true, Miss Harris, that there were about four or five documents that were all part of state’s exhibit fifty-six?
A: Yes.
Q: And isn’t it true that within those dockets there’s the felony information, which originally Mr. Fudge was charged with aggravated robbery and first degree battery?
A: Yes.
Q: And then there is the judgment and commitment report which shows that he was convicted. And I think it may reference only the robbery; but it does denote convicted on both counts. Correct?
A: Yes. The typewritten information says eight years on each count to run concurrent with each other.
Q: And I think also the Court’s docket sheet, which was part of that exhibit, reflects a plea on both counts, does it not?
A: Yes.
Q: And, also within there, there is a plea statement that was executed by Mr. Fudge himself which shows him pleading to both robbery and battery in the first degree?
A: That’s correct.
Q: Okay. So, this wasn’t simply an issue of that the only exhibit was a judgment and commitment that was — that was at issue. Is that correct?
A: Right. There were — these — these four pages made up that exhibit.
Q: Okay. And you said you did discuss with Mr. Fudge the fact that he did have that conviction?
A: Yes.
Q: Okay. Again, given those four exhibits, was that part of your consideration? When you look at those as a total — in total proof prove beyond a reasonable doubt that he was convicted of first degree battery?
A: Yes.
Those who would affirm on appeal state that it is improper for this court to base a decision to reverse on arguments not raised by the State. The argument they claim was not raised by the State is that it was reasonable for Ms. Harris not to object to the first-degree battery conviction, that is, the deficient-performance prong of Strickland. While the State’s argument on appeal focuses on the prejudice prong of Strickland, the State brought this appeal arguing that Ms. Harris’s failure to object to Exhibit 56 was not ineffective assistance of counsel. I agree. The State’s focus on the prejudice prong in its appeal might be due to the circuit court’s mistaken conclusion in its initial order denying post-conviction relief that “[t]he State concedes that the first-degree battery charge was reduced to robbery.” See Fudge v. State, 354 Ark. 148, 120 S.W.3d 600 (2003). This finding is not supported by the record. In its testimony presented during the Rule 37 hearing, in its closing argument, and in its brief in response to Fudge’s post-conviction relief petition, the State consistently argued that Exhibit 56 proved Fudge was guilty of first-degree battery and that counsel was not ineffective on this point. The circuit court’s finding that the State conceded the battery charge was reduced to robbery is simply a mistake. Therefore, any finding of ineffective assistance based on that mistake is clearly erroneous. On a more important note, the State cannot concede the ultimate issue oflaw, that is, that counsel was ineffective. See, e.g., State v. Knighten, 109 Wash. 2d 896, 748 P.2d 1118 (1988)(holding court was not bound by State’s erroneous concession that ño probable cause existed, because it concerned a question oflaw, not fact).
Under Strickland, our review must be highly deferential to counsel’s performance. Strickland, 466 U.S. at 689.
It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ....
Id.
I now turn to the Strickland principles governing this case. With respect to the performance component, the inquiry must be whether Ms. Harris’s assistance “was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688. The Supreme Court intentionally declined to provide detailed guidelines for determining whether counsel’s performance was reasonable in a particular case, explaining as follows:
[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessfid defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.
Id. at 690.
The reasonableness of counsel’s actions may be substantially influenced by the defendant’s own statements, 466 U.S. at 691, in this case, Fudge’s admission to Ms. Harris that he had been convicted of first-degree battery. When a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. Id. “In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions[.]” Id.
Fudge told Ms. Harris that he had pleaded guilty to and been convicted of first-degree battery, in addition to numerous other crimes. She reviewed Exhibit 56 with that fact in mind. While I am not here to determine the sufficiency of Exhibit 56 with regard to whether it constitutes a conviction of first-degree battery, I would determine whether Ms. Harris’s actions in not objecting to this exhibit were objectively reasonable “considering all the circumstances.” Id. at 688. Could Ms. Harris have further investigated this exhibit and its validity? Yes. Is it possible that another defense attorney would have chosen to object to the introduction of Exhibit 56? Yes. Was Ms. Harris ineffective under Strickland for failing to do this? No. “There are countless ways to provide effective assistance in any given case.” Id. Considering all of the circumstances of this case and the “wide range of reasonable professional assistance” presumed under Strickland, I would hold that Ms. Harris’s determination with regard to Exhibit 56 was the result of reasonable professional judgment.
While Strickland does not require us to examine the prejudice component in light of our determination on the performance component, even assuming Ms. Harris’s conduct was unreasonable, Fudge did not suffer prejudice sufficient to warrant a finding of ineffective assistance of counsel. Strickland, 466 U.S. 698 (holding that there is no reason for a court to address both components if the petitioner makes an insufficient showing on one).
With respect to the prejudice component, in addition to Exhibit 56, there were two other exhibits introduced to support this aggravating circumstance: (1) Exhibit 57 shows Fudge was convicted of two counts of terroristic threatening; and (2) Exhibit 58 shows Fudge was convicted of two counts of terroristic threatening. Therefore, Fudge was sentenced on the basis of five violent felonies. This is not a case in which the challenged felony is the only one introduced. The argument that one felony should not have been introduced still leaves four to support this aggravating circumstance. Given the overwhelming number of violent felonies, I would hold that Fudge has failed to prove that if Exhibit 56 had been excluded, “there is a reasonable probability that. . . the result of the proceeding would have been different.” Id. at 694.
I would hold that the circuit court’s finding of ineffective assistance of counsel on this issue is clearly erroneous, and I would reverse.
Glaze and Dickey, JJ., join in this opinion.
II. Cross-appeal
On cross-appeal Fudge argues that the circuit court clearly erred in holding that there was no ineffective assistance of counsel with regard to the following claims: (1) trial counsel’s failure to investigate and present evidence of mitigation; (2) trial counsel’s failure to include federal grounds in his motion for directed verdict, thereby foreclosing Fudge’s opportunity to present the claim in a federal habeas corpus proceeding; (3) trial counsel’s failure to investigate and present evidence in support of the motion to prohibit the use of voter-registration records to select the jury panel; (4) appellate counsel’s failure to argue that Fudge’s statement to Portland, Oregon, police should have been suppressed; and (5) trial counsel’s failure to move for a mistrial or seek other remedial measures to rectify the State’s continuous pattern of improper questioning of witnesses. We affirm.
A. Failure to Investigate and Present Evidence of Mitigation
Fudge contends that his penalty-phase trial counsel, Tammy Harris, was ineffective for failing to investigate and present the following evidence of mitigation: (1) Fudge’s history of alcoholism and drug addiction; (2) the history of alcoholism in Fudge’s family; (3) the physical abuse Fudge suffered at the hands of his mother as a child; (4) the history of violence in Fudge’s family, specifically that of his father, grandfather, and uncle; and (5) evidence of positive attributes, including Fudge’s attempts to better himself in prison and his talents as a poet, artist, sculptor, and automotive-body repairman. Pursuant to our remand for further findings of fact and conclusions of law on the issue of these mitigating factors and the appropriate investigation thereof, see Fudge v. State, 354 Ark. 148, 120 S.W.3d 600 (2003), the circuit court held that counsel’s decision not to present these additional mitigating factors was not ineffective assistance of counsel, but a matter of trial strategy. We agree.
In Strickland, the Supreme Court addressed how much investigation of mitigating evidence counsel was required to perform to constitute reasonable professional assistance. The Court stated that
strategic choices made after thorough investigation of law and facts relevant to plausible options are unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
Strickland, 466 U.S. at 690-691. In Williams v. State, 347 Ark. 371, 64 S.W.3d 709 (2002), we stated that every effort must be made to eliminate the distorting effects of hindsight and to evaluate counsel’s performance by looking from counsel’s perspective at the time. “[H]indsight has no place in a review of effective assistance of counsel.” Williams, supra.
In support of his claim, Fudge refers us to the United States Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510 (2003). In Wiggins, the defendant was convicted of murder and sentenced to death. During post-conviction proceedings, the defendant claimed that counsel failed to investigate and present mitigating evidence of defendant’s dysfunctional background, which included extreme physical and sexual abuse. Id. at 516. Counsel argued that, as a matter of trial tactics, he decided to focus on retrying the factual case instead of investigating and introducing mitigating evidence during the sentencing phase. Id. at 517. The Maryland Court of Appeals affirmed the trial court’s denial of relief, holding that counsel’s decision not to investigate was a matter of trial tactics. Id. at 518. The Supreme Court reversed, holding that “[gjiven both the nature and the extent of the abuse petitioner suffered, we find there to be a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing in an admissible form.” Id. at 535.
In Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000), we held that trial counsel’s failure to investigate mitigating circumstances and present such evidence during the penalty phase constituted ineffective assistance of counsel. In Sanford, as in Wiggins, counsel conducted virtually no investigation regarding mitigation evidence. The potential mitigation petitioner argued should have been investigated and introduced included long-standing mental retardation, his age of sixteen at the time of the murder, medical records of head injuries, a family history of mental retardation, and jail records reflecting commendations. In finding there was ineffective assistance, we approved of the Eighth Circuit’s reasoning from Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983), stating “it is only after a full investigation of all the mitigating circumstances that counsel can make an informed, tactical decision about which information would be the most helpful to the client’s case.” Sanford, supra. In Pickens, it was undisputed that counsel failed to make any investigation at all. The court recognized that counsel
may choose not to investigate ail lines of defense and may concentrate, for reasons of sound strategy, on another possible line of defense. We would not fault such a strategy if it were a reasoned choice based on sound assumptions. That is not the situation here. Plant did no investigation into any possible mitigating evidence. He was left with no case to present. A total abdication of duty should never be viewed as permissible trial strategy.
Pickens, 714 F.2d at 1467 (citations omitted).
In contrast with Wiggins, Sanford, and Pickens, Fudge’s counsel did investigate and made a tactical decision not to offer the information to the jury. The question before us is whether Ms. Harris did enough investigation to satisfy the test of reasonableness under Strickland. Strickland, 466 U.S. at 690-691. With regard to Fudge’s and his family’s history of alcoholism, Fudge’s guilt-phase counsel, Brett Qualls, and Ms. Harris both testified that they and their investigator talked with members of Fudge’s family and his friends and made a tactical decision not to present evidence of alcoholism. Ms. Harris said that she did not present the information to the jury because it was inconsistent with Fudge’s defense of innocence to claim in the sentencing hearing that he killed his wife because he was an alcoholic. She felt it would compromise her credibility with the jury.
The only testimony regarding physical abuse of Fudge by his mother was from his Aunt Essierean Brown. She testified that Fudge’s mother whipped him because she thought Fudge was bad. However, she then said that although we might call what his mother did to him abuse these days, it was called “chastising” in those days. Aunt Essierean did not consider it abuse, but a way of life. She testified that children were whipped when they did not do the right thing. Fudge offered no other evidence of abuse. In light of the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, Williams, supra, we do not believe that counsel’s failure to introduce this evidence of “abuse” constitutes deficient performance under Strickland.
The next potential mitigating factor Fudge argues should have been introduced is his family’s history of violence. Fudge’s father was allegedly convicted of three homicides, one involving his wife. His uncle was allegedly convicted of killing his girlfriend. At the Rule 37 hearing, Fudge introduced the testimony of Dr. Bradley Diner, a psychiatrist, to explain the detrimental effect this violence had on Fudge. Dr. Diner testified that it has not been proven that there is a hereditary link between a child’s propensity for violence and the violent nature of his father and uncle. However, he did state that he would expect for Fudge to grow up using violence to manage conflict, given the family history of violence.
Ms. Harris testified that she was aware of Fudge’s father’s criminal history. However, she stated that after learning about the homicides, she did not attempt to obtain additional criminal history on Fudge’s father. She and Mr. Qualls made a decision, given Fudge’s father’s history, that he probably was not the best witness they could call on Fudge’s behalf. She was afraid the jury would have seen that Fudge’s father had been convicted of murder three times and was out on the street. In her opinion, evidence of a genetic link was too big of a risk to take. Her experience with this sort of family violence was that it did not go over well with juries; in this case, they thought the information regarding Fudge’s father’s violent history would do more harm than good.
Here, Ms. Harris investigated and made a tactical decision not to put on testimony of Fudge’s violent family history. We have often said that matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Id.
Finally, Mr. Qualls and Ms. Harris both knew about Fudge’s alleged talents with regard to his artwork, sculpting, and auto-body work. Neither believed that this type of evidence was a good mitigator. Moreover, they were afraid that if they showed the jury what a good artist Fudge was, the State might then show pictures of the autopsy or crime scene and say “no, here’s James Fudge’s artworkf.]” Pictures of a car Fudge customized were not shown to the jury because the car had gun holsters built into it. Counsel chose not to introduce evidence regarding Fudge’s job working in an auto-body shop, since the owner of the shop witnessed Fudge attack someone with a sledge hammer at the shop. Ms. Harris’s decision not to introduce this mitigating evidence was a matter of trial strategy.
In this case, all of the mitigating evidence Fudge argues should have been introduced may or may not have had the effect of mitigation. We hold that Ms. Harris’s actions with regard to investigation and her decision not to introduce this evidence were both matters of trial strategy. Fudge’s claim of ineffective assistance on this point is denied.
B. Failure to Federalize Directed- Verdict Motion
After the State rested in the guilt phase of the trial, Fudge’s counsel moved for a directed verdict on the grounds that the State had not presented sufficient evidence to prove either the identity of Kimberly Fudge’s killer or premeditation and deliberation. In the alternative, counsel moved to reduce the charge to first-degree murder. Defense counsel renewed these motions after he rested. Fudge claims that counsel’s failure to include federal grounds in his motion for directed verdict constituted ineffective assistance of counsel because it foreclosed Fudge’s opportunity to present the claim in a federal habeas corpus proceeding.
The circuit court rejected this argument, relying on Satter v. Leapley, 977 F.2d 1259 (8th Cir. 1992), which held that a challenge to the sufficiency of the evidence was necessarily a due-process challenge under the federal constitution. Therefore, there was no counsel error. Moreover, we held in Johnson v. State, 356 Ark. 534, 187 S.W.3d 151 (2004), that failure to preserve an issue for federal habeas review is not the prejudice contemplated by the Strickland test, which requires a reasonable probability that the outcome at trial would have been different. Because Fudge has not proven that counsel was deficient or that Fudge was prejudiced, counsel was not ineffective.
C. Failure to Investigate and Present Evidence in Support of Motion to Prohibit Use of Voter-Registration Records
Before trial, Fudge’s counsel made a motion to prohibit the use of voter-registration records to select the jury panel on the grounds that African-Americans and women would be underrepresented in violation of Duren v. Missouri, 439 U.S. 357 (1979). It was denied. Fudge argues that counsel should have attempted to compile evidence regarding the racial makeup of every jury venire in Pulaski County in support of this motion. Counsel’s failure to do so, Fudge argues, constitutes ineffective assistance of counsel. In denying this claim, the circuit court relied on our holding in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), rejecting the argument that the use of a voter-registration list to select a jury panel is unconstitutional.
Moreover, Fudge offers nothing more than conclusory allegations that had counsel provided this information, the court would have granted his motion. Even if Fudge’s counsel were to have shown that blacks were under-represented on his jury venire, Fudge must then have shown that the alleged misrepresentation of African-Americans was due to a systematic exclusion in the jury-selection system itself Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997)(citing Duren v. Missouri, 439 U.S. 357 (1979)). Where the venire is chosen using the random-selection process required by Ark. Code Ann. § 16-32-103 (Repl.1999), we have held that there is no possibility of a systematic or purposeful exclusion of any group. Id.; Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002). Fudge offered no evidence of purposeful exclusion. As Fudge has proved neither error nor prejudice, we affirm the circuit court’s determination on this issue.
D. Failure to Argue on Appeal that Fudge’s Statements to Oregon Police Should Have Been Suppressed
Fudge was arrested in Portland, Oregon, pursuant to an arrest warrant issued in Pulaski County. According to Detective David Rubey of the Portland Police Department, Fudge was taken into custody, searched, and advised of his Miranda rights. Fudge then read and signed a copy of their standard Miranda constitutionál-rights form. Fudge argues that the form was deficient, making his statement to Detective Rubey inadmissible. While trial counsel moved to suppress the statement, Fudge argues that his appellate counsel’s failure to raise the issue on appeal constituted ineffective assistance of counsel.
We are required by Ark. Code Ann. § 16-91-113 to review all errors prejudicial to the rights of the appellant where either a sentence for life imprisonment or death has been imposed. To aid us in compliance with the statute, Ark. Sup. Ct. R. 4-3(h) requires an appellant in such a case to abstract all rulings adverse to him on all objections, motions, and requests made by either party. In Fudge’s direct appeal to this court, we stated that “[i]n accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by appellant James Fudge but not argued on appeal, and no reversible error was found.” Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000).
We reviewed all errors, including the denial of Fudge’s suppression motion, and implicitly found no reversible error. Since there was no reversible error, counsel was not ineffective for failing to argue this point on appeal. Counsel cannot be found ineffective for failing to make an argument that has no merit. See Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993). Because this issue was settled in Fudge’s direct appeal, it is now the law of the case and cannot be reargued here. See Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999); Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004).
E. Failure to Seek a Mistrial For State’s Pattern of Improper Questioning
Finally, Fudge claims that the State engaged in a pattern of improper questioning, including leading questions, questions calling for hearsay, compound questions, questions calling for speculative responses, irrelevant questions, and questions that had been asked and answered. Fudge contends that his trial counsel had a duty to stop this improper questioning by moving for a mistrial, and that his failure to do so constituted ineffective assistance of counsel. The circuit court disagreed, and so do we.
The circuit court held that the questions asked by the State did not rise to the level of misconduct for which a motion for mistrial should have been made, nor for which there was a remedy beyond sustaining the objection. A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).
The following are examples of the “improper” questions: (1) the victim’s daughter was asked how it made her feel to hear Fudge say that she would “never find” her mother; (2) the victim’s mother was asked about telephone conversations she had with the victim and whether her daughter regularly kept track of what her children were doing; (3) the victim’s neighbor was asked about her conversation with the victim regarding injuries the victim received at the hand of Fudge and when she had seen the victim on certain relevant dates; and (4) the Oregon detective was asked to testify about his contact with the Pulaski County Sheriff s Office, about conversations with Fudge regarding his use of the victim’s car and whether he stole her keys, and about his conversations with Fudge regarding information he had obtained from a Pulaski County investigator. All were objected to by Fudge’s counsel and ruled upon by the trial court. These questions do not rise to such an egregious level as to warrant a mistrial. The circuit court’s ruling on this issue was not clearly erroneous.
Hannah, C.J., Corbin, and Imber, JJ., affirm on direct appeal.
Glaze, Dickey, and Gunter, JJ., reverse on direct appeal.
Brown, J., remands on direct appeal.
Glaze, Brown, Imber, Dickey, and Gunter, JJ., affirm cross-appeal.
Hannah, C.J., and Corbin, J., reverse in part on cross-appeal.
Jim Hannah, Chief Justice.
I agree with Justice Imber’s disposition of the issue on direct appeal. I write to further emphasize that it is wholly improper for this court to base a decision to reverse on arguments never raised by the appellant. Rather than addressing the arguments before this court, three of my colleagues would go to the record and craft the State’s argument in order to determine that counsel’s performance was not deficient. “This court has been resolute in stating that we will not make a party’s argument for that party or raise an issue, sua sponte, unless it involves the trial court’s jurisdiction.” Hanlin v. State, 356 Ark. 516, 157 S.W.3d 181 (2004).
As the appellee with respect to the first-degree battery issue, Fudge responded to the arguments raised by the State. Three of my fellow justices would have Fudge anticipate and provide a response to an argument that this court decides to raise on its own. Raising a ground for reversal sua sponte deprives Fudge of his right to be heard on this issue. See Hanlin, supra. This is unacceptable.
As to the cross-appeal, I disagree with the majority’s decision to address Fudge’s argument that his penalty-phase counsel was ineffective for failing to investigate and present evidence of mitigation. In the present case, the circuit court’s decision to order resentencing is affirmed; therefore, Fudge is entitled to a new sentencing hearing. Fudge’s first point on cross-appeal, that his penalty-phase counsel was ineffective for failing to investigate and present evidence of mitigation, should not be addressed because the point is moot.
As a general rule, the appellate courts of this state will not review issues that are moot. Delancy v. State, 356 Ark. 259, 151 S.W.3d 301 (2004). To do so would be to render advisory opinions, which we will not do. Id. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id.; K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000). This court has recognized two exceptions to the mootness doctrine. Delancy, supra. The first one involves issues that are capable of repetition, yet evade review, and the second one concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id. An analysis of what Fudge’s penalty-phase counsel did in this sentencing hearing with regard to the investigation and presentation of mitigating evidence will have no practical legal effect upon this case, as it is already clear that Fudge will receive a new sentencing hearing.
Further, this case does not fall under one of the exceptions. Clearly, the issue of whether Fudge’s penalty-phase counsel is ineffective is not an issue that is capable of repetition that evades review. Nor is the issue one that raises considerations of public interest which, if addressed, would prevent future litigation. When Fudge is resentenced, the penalty phase will begin anew. The State will have the opportunity to present evidence of aggravating circumstances, and Fudge will have the opportunity to present evidence of mitigating circumstances. After hearing all the evidence, the jury will make its determination. This court cannot anticipate what evidence will be presented at the resentencing hearing. Nor can this court anticipate Fudge’s sentence or whether Fudge will raise future claims alleging that his penalty-phase counsel was ineffective in failing to investigate and present evidence of mitigation.
Here, Fudge will be resentenced; he has obtained the relief he sought. There is no controversy and, accordingly, rendering any decision on this issue is merely advisory. It is not the practice of this court to anticipate future litigation and issue advisory opinions. Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995). I would hold that Fudge’s point on cross-appeal that his penalty-phase counsel failed to investigate and present evidence of mitigation is moot.
In sum, I believe that the circuit court should be affirmed on direct appeal. To the extent that Justice Imber’s opinion agrees that the circuit court’s order on direct appeal should be affirmed, I join that opinion. I disagree with the majority’s decision to address Fudge’s argument on cross-appeal that his penalty-phase counsel was ineffective for failing to investigate and present evidence of mitigation. I join the majority with respect to the remaining issues on cross-appeal.
Corbin, J., joins.
Imber, J., joins on direct appeal.
Annabelle Clinton Imber, Justice.
Although I agree with the opinion’s disposition of the issues on cross appeal, I must respectfully disagree with the position that the circuit court’s order granting a new sentencing hearing should be reversed.
At the outset, the opinion correctly sets forth the standard that the defendant must satisfy to succeed on an ineffective-assistance-of-counsel claim. Fudge must prove (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The circuit court concluded that counsel’s failure to object to the introduction of evidence from State’s Exhibit 56 regarding a purported first-degree battery conviction “constituted representation deficient enough in a death-penalty case that it constitutes ineffective assistance of counsel” under Strickland. On appeal, the State makes no argument that counsel’s performance was not deficient; rather, the State limits its argument to explaining why counsel’s failure to object to Exhibit 56 did not result in any prejudice to Fudge’s defense. Specifically, the State argues on appeal that the circuit court erred in granting Rule 37 relief because Exhibit 56 was admissible despite the jury being “misinformed that [Fudge’s] conviction was for battery in the first degree.” Alternatively, the State suggests that defense counsel’s failure to object to the jury being “erroneously informed that [Fudge] had a conviction for first-degree battery” did not prejudice the defense because the State presented evidence of other prior violent felony convictions. Both of these arguments relate solely to the prejudice prong in Strickland. Yet, the opinion in large part hinges its conclusion that the circuit court’s order should be reversed on the premise that counsel’s conduct during the penalty phase was not deficient under the first prong of Strickland — an argument that the State never made on appeal. By doing so, the opinion advocates a sua sponte reversal on a ground not argued by the State.
We do not reverse on a ground that was not argued by the appellant because well-settled rules of this court state that arguments not made by appellants on appeal are deemed abandoned. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977); Missouri Pac. R. Co. v. Harding, 188 Ark. 221, 65 S.W.2d 20 (1933). The State, as the appellant here, did not address the first prong of Strickland on appeal. It failed to argue that counsel’s performance was not deficient on either of two grounds: (1) the four documents contained in Exhibit 56 reasonably led counsel to believe that Fudge had a first-degree battery conviction; and (2) Fudge admitted that he had received all “those convictions.” While such arguments concerning whether counsel’s performance was in fact deficient under the first prong of Strickland may indeed have merit, we simply should not examine arguments that were never made by the appellant, much less reverse on grounds raised sua sponte by the court.
With respect to the prejudice prong, the opinion briefly concludes that Fudge’s four prior convictions of terroristic threatening constitute an overwhelming number of violent felonies. On review, we will not reverse a trial court’s decision granting post-conviction relief unless that decision is clearly erroneous. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. The opinion concludes that Fudge failed to prove that if Exhibit 56 had been excluded the result of the proceeding would have been different. However, based on our standard of appellate review, I cannot conclude that the circuit court erred in granting relief. Terroristic threatening, either in the first or second degree, is a crime that involves threats of injury. See Ark. Code Ann. § 5-13-301 (2004). However, the crime of battery in the first degree involves the infliction of serious physical injury. See Ark. Code Ann. § 5-13-201 (Repl. 1997). Despite Fudge’s four prior convictions of terroristic threatening, the first-degree battery conviction was the only aggravator that included the actual infliction of serious physical injury. Without the first-degree battery conviction, I am not left with a definite and firm conviction that the circuit court committed a mistake when it granted a new sentencing hearing. Consequently, I would affirm the circuit court’s order on direct appeal and cross appeal. To the extent Chief Justice Hannah’s opinion agrees that the court is reversing on grounds that the State never argued on appeal, I join his opinion.
Hannah, C. J., and Corbin, J., join in part.
We will not reverse a circuit court’s decision granting or denying post-conviction relief unless the decision is clearly erroneous. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. (emphasis added); Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).
See Florida v. Nixon, 125 S. Ct. 551 (2004) (holding that defense counsel’s failure to obtain defendant’s express consent to a concession of murder did not automatically render counsel’s performance deficient). There is no presumption of deficiency or prejudice under Strickland even to a concession of guilt on the capital-murder charge itself; the question is did counsel’s representation fall below “an objective standard of reasonableness?” Id. at 555. Counsel’s concession of defendant’s guilt“does not rank as a‘fail[ure] to function in any meaningful sense as the Government’s adversary.’ ” Id. at 562.
The “opinion” refers to the opinion written by Justice Gunter in which Justices Glaze and Dickey join. | [
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Per Curiam.
Appellant Rodell Avery, Jr., by and through his attorney, has filed a motion for belated appeal. His attorney, AlvinD. Clay, states that on September 16,2003, judgments were entered reflecting Avery’s convictions for aggravated robbery, three counts of kidnapping, and escape in the second degree, following which Mr. Clay filed motions to vacate the sentences. Upon the denial of the motions, Mr. Clay filed notices of appeal that merely made reference to the order denying the motions to vacate, and not to the judgments themselves. Mr. Clay states that on appeal, this court treated the appeal as one from a denial of post-conviction relief and dismissed the appeal when Mr. Clay failed to file a substitute brief and abstract as directed by the court. See Avery v. State, 360 Ark. 595, 203 S.W.3d 109 (2005) (per curiam). Mr. Clay now admits that he erred in failing to file a timely notice of appeal from the judgments entered against Avery on September 16, 2003, and that his error prevented Avery from having his convictions reviewed by this court.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
This court’s rules further provide that no motion for belated appeal shall be entertained unless application has been made to this court within eighteen months of the date of the entry of judgment. See Ark. R. App. P.-Crim. 2(e) (2004). While Mr. Clay did not file the instant motion until the last possible day on which to do so, we note that the motion is in fact timely.
In accordance with McDonald v. State, supra, Mr. Clay has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion, granted. | [
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Betty C. Dickey, Justice.
Terri Phelan appeals the decision of the Washington County Circuit Court granting Discover Bank’s (Discover) motion for new trial and denying Ms. Phelan’s request for attorney’s fees. On appeal, Ms. Phelan argues (1) the trial court should have excluded both the date of filing and the first day of trial when computing the 14-day statutory period pursuant to Ark. Code Ann. § 16-46-108, and (2) the court should have granted Ms. Phelan’s motion for attorney’s fees. We affirm on both points.
Discover sued Ms. Phelan to collect on a credit card debt. At trial, Discover attempted to introduce into evidence an affidavit, credit card statements, and an application for Ms. Phelan’s account. Ms. Phelan objected to the introduction of this evidence on the grounds that the documents had not been filed “at least 14 days prior to the day upon which the trial . . . commences,” in accordance with Ark. Code Ann. § 16-46-108. The affidavit and supporting documents had been filed on January 13, 2004, and the first day of trial was January 27, 2004. The trial court determined that neither the date of filing nor the first day of trial should be included in the 14-day period, and it excluded the evidence. After objecting to this ruling, Discover rested its case without introducing any additional evidence. The trial court determined that Discover had “failed to meet its burden to establish the account against [Ms. Phelan],” and dismissed the case with prejudice.
On February 18, 2004, Discover filed a motion for new trial, arguing that the trial court had improperly excluded both the date of filing and the date of trial in its computation of time, and asserting that the evidence should have been admitted. Ms. Phelan filed a motion requesting attorney’s fees. The trial court granted Discover’s motion, stating that it had “miscalculated the number of days prior to trial that the documents in question were filed, and [that] a correct count totals exactly 14 days prior to trial, in accordance with § 16-46-108.” In the same order, the court also denied, without explanation, Ms. Phelan’s motion for attorney’s fees. Ms. Phelan now appeals the trial court’s order.
Motion for New Trial
A trial court’s decision to grant a motion for new trial is reviewed for abuse of discretion. Carlew v. Wright, 356 Ark. 208, 148 S.W. 3d. 237 (2004). Issues of statutory interpretation, however, are reviewed de novo. Nationsbank v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001).
There is a split of authority on to how to compute a statutory time period when the statute in question requires “at least” or “not less than” a certain number of days. In Jones v. State, 42 Ark. 93 (1883), this court, while interpreting a statute that required “at least three days’ actual notice,” stated, “When a certain number of days are required to intervene between two acts, the day of one, only, of the acts is to be counted, but when a statute requires notice of at least a certain number of days, this means so many full days, and the day of the notice and the act are both excluded from the computation.” Id.
In State v. Hunter, 134 Ark. 443 (1918), however, this court came to a different conclusion when addressing a statute that provided that notice shall be filed “not less than 15 days before the election.” This court acknowledged the holding in Jones, but said, without further explanation, that it did not consider that case to be controlling. The Hunter court held that only one of the days should be excluded when computing the statutory time period.
Although there is authority to support the interpretations of both the Jones and Hunter courts, the bulk of the authority, and all recent cases, support the interpretation of the Hunter court. See Williamson v. Montgomery, 185 Ark. 1129, 51 S.W.2d 987 (1932); Hodge v. Wal-Mart Stores, Inc., 297 Ark. 1, 759 S.W.2d 203 (1988); but see Moore v. State, 52 Ark. 265, 12 S.W. 562 (1889). This court has applied the “exclude-one-day” rule in a variety of situations. Hodge, 297 Ark. 1 (where injured party refiled suit exactly one year after voluntarily filing nonsuit, day of filing nonsuit should have been excluded); State ex rel. Herbert v. Hall, 228 Ark. 500, 308 S.W.2d 828 (1958) (where governor must veto bill within five days of receiving it, day of receipt is excluded); Chavis v. Pridgeon, 207 Ark. 281, 180 S.W.2d 320 (1944) (where notice of appeal to circuit court must be given within 30 days, exclude day on which lower court judgment was rendered); Matthews v. Warfield, 201 Ark. 296, 144 S.W.2d 22 (1940) (where election must be contested within ten days, exclude day on which results are certified); Shanks v. Clark, 175 Ark. 883, 300 S.W. 453 (1927) (five-year limitation period for recovery on a note begins to run the day after the note is due).
The Hunter court’s interpretation is reinforced by our statutes and rules of civil procedure. Ark. R. Civ. P. 6(a) specifically states:
In computing any period of time prescribed or allowed by these rules, by order of the Court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.
In addition, § 16-55-119 (1987) provides:
Where a certain number of days are required to intervene between two (2) acts, the day of one (1) only of the acts may be counted.
As this court noted in Hodge, this is an area of the law in which uniformity can easily be achieved. 297 Ark. at 2. We hold that it is proper to exclude either the date of filing or the first day of trial when computing the 14-day statutory period pursuant to § 16-46-108, but that it is improper to exclude both dates from the computation. The trial court did not err in granting Discover’s motion for new trial.
Motion for Attorney’s Fees
Ms. Phelan next argues that the trial court erred in denying her motion to award attorney’s fees. A trial court’s decision regarding the award of attorney’s fees is reviewed for abuse of discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). Ms. Phelan contends that the trial court abused its discretion in denying her motion because the court did not explicitly state why it had chosen to deny the motion. A trial court abuses its discretion when it makes a decision that is arbitrary or capricious. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). According to Ms. Phelan, a court acts in an arbitrary and capricious manner any time it makes a ruling that is “without discussion and without reason.” There is no authority to support this proposition. The only case cited by Ms. Phelan that is on point, Bailey v. Rahe, 355 Ark. 560, 142 S.W.3d 634 (2004), held that the lower court abused its discretion in awarding attorney’s fees, not because the trial court had failed to give an explanation for its decision, but because “we are unable to discern exactly on what basis it did so.” In this case, the trial court denied Ms. Phelan’s request for attorney’s fees in the same order in which it granted Discover’s motion for new trial. It is clear that the lower court’s decision was based on the fact that, once it had determined that a new trial was in order, Ms. Phelan was no longer the prevailing party and, therefore, no longer entitled to attorney’s fees. See Burnette v. Perkins & Associates, 343 Ark. 237, 33 S.W.3d 145 (2000). The trial court did not abuse its discretion in denying Ms. Phelan’s motion for attorney’s fees.
Affirmed. | [
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Jim Gunter, Justice.
Appellant, Dr. Per Otte, appeals the judgment of the Garland County Circuit Court affirming the decision of the Arkansas State Board of Acupuncture and Related Techniques. The Board held that Otte does not have a valid license to practice acupuncture and related techniques in Arkansas and is not presendy eligible to hold a license in Arkansas because he has not taken the examination required by Arkansas law. We affirm.
In November 1995, Otte moved to Hot Springs Village and set up an acupuncture practice, specializing in the treatment of eye diseases. In 1997, the legislature enacted the Arkansas Acupuncture Practices Act (the “Act”), found in Ark. Code Ann. § 17-102-101 et seq. (Repl. 2002). Pursuant to the Act, Otte applied for and was issued a provisional license in October 1997. The parties dispute whether that provisional license was valid, but agree that all provisional licenses in Arkansas expired on August 1, 1999. See Ark. Code Ann. § 17-102-302 (Repl. 2002).
The Board reviewed Otte’s license during a meeting held on September 22, 2000, and determined that it had been issued in a meeting without a quorum. Rather than require Otte to submit a new application, the Board entered into an agreement with Otte under which he agreed to sit for the licensing exam, administered by the National Certification Commission for Acupuncture and Oriental Medicine (“NCCAOM”). The Board agreed to allow him to continue to practice until the results of the March 2001 test became available. Otte did not take the exam. In May of2001, the Board granted Otte’s request to extend the date by which he could take the exam until July 2001. Otte did not sit for the July exam.
According to Otte, NCCAOM did not allow him to take the exam for several reasons: (1) NCCAOM requested more affidavits, which Otte could not provide in time to take the March 2001 exam; (2) there was an outstanding complaint against Otte before the NCCAOM Board; and (3) the professional practice route, a procedure under which Otte originally qualified to take the exam, was eliminated as of January 1, 2001, and Otte did not otherwise meet the NCCAOM standards to take the exam.
In a meeting held September 12, 2001, the Board found that Otte’s license had expired. Otte filed a petition for review with the Garland County Circuit Court. Because Otte had no notice of the September 12th meeting, the court remanded the case to the Board to hold a hearing to determine the status of Otte’s license. At the hearing, the Board found that Otte did not have a valid license. The circuit court affirmed the Board’s decision. Otte now brings this appeal.
Under the Administrative Procedure Act, a circuit court may reverse or modify an agency’s decision if
(h) ... the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212 (Repl. 2002). Because the rules governing judicial review of administrative agency decisions are the same for both the circuit and appellate courts, this statute also governs our review. Arkansas State Hwy. and Transp. Dep’t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996).
When determining whether a decision is supported by substantial evidence, we give the evidence its strongest probative force in favor of the agency’s decision. Id. To establish an absence of substantial evidence to support the decision, the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. The question is not whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. Id.; Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983).
Finally, we note at the outset that the administrative decision we are reviewing in this case did not arise from a truly adversary proceeding. A complaint was never filed against Otte. The Board’s purpose was to determine the status of Otte’s license, which it did. In such a situation, the burden is on Otte to prove his eligibility to the satisfaction of the agency. See Williams, supra.
To obtain a license to practice acupuncture — or to “renew” a license that expired more than one year earlier — an applicant must take and pass an examination. Ark. Code Ann. §§ 17-102-304, 305, and 307. Pursuant to section 17-102- 206(b)(7), the Board has delegated its responsibility for conducting this examination to NCCAOM. Otte argues that the Board erred when it failed to provide its own examination for him in light of his problems qualifying for the NCCAOM exam. His argument is based on his interpretation of Ark. Code Ann. § 17-102-305(b), which states as follows:
(b) The Arkansas State Board of Acupuncture and Related Techniques shall hold an examination at least once each calendar year, and all applicants shall be notified in writing of the date and time of all examinations. The board may utilize a nationally recognized examination if it deems the national exam is sufficient to qualify a practitioner for licensure in this state.
Ark. Code Ann. § 17-102-305 (Repl. 2002).
Otte claims that, although the Board has properly delegated its examination responsibilities to NCCAOM, it still retains the authority to administer its own examination and should have done so in this case. He argues that a test limited to his practice area would have ensured his competency and provided him an opportunity to continue his practice until his problems with NCCAOM were resolved. Finally, he claims that the members of the Board wanted to do something to allow Otte to continue his practice, but the Board’s legal counsel advised the Board to stay within the purpose of the hearing, which was to determine the status ofOtte’s license. Therefore, according to Otte, the Board’s decision is in violation of the Act’s statutory provisions.
First, while the Board may have had the power to administer a different examination to Otte, they chose not to do so. Although the Board members briefly discussed the possibility of a limited test for Otte, they rejected it for several reasons. Since by Otte’s own admission his practice is very specialized, contracting with someone qualified to draft such a test would .be difficult at best. The Board also raised the issue of other applicants desiring exams limited to their areas of expertise. Finally, the Board’s counsel noted that there was no legal authority to grant a limited license in Arkansas. Otte has cited no such authority. We have often recognized that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies, and we will not substitute our judgment and discretion for that of the administrative agency. See Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998).
Under the statutory authority of section 17-102-305(b), the Board may use “a nationally recognized examination if it deems the national exam is sufficient to qualify a practitioner for licensure in this state.” The Board chose to do this. It is Otte’s duty to take and pass the exam to obtain a license. He has not. Therefore the Board held his license invalid. We hold that this decision is supported by substantial evidence. Where the agency’s decision is supported by substantial evidence, it is not arbitrary and capricious. See Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992). Furthermore, we hold that the Board’s decision is not in violation of the Act’s statutory provisions.
Otte’s next argument relies on the holding of a federal district court in Texas that the State of Texas may choose to regulate acupuncture or not, but it may not “unnecessarily render acupuncture treatment essentially unavailable.” Andrews v. Ballard, 498 F. Supp. 1038 (S.D. Tex. 1980). He claims that the Board’s decision to declare his license invalid is essentially rendering acupuncture treatment for macular degeneration unavailable. First, the holding of a district court in Texas in no way binds this court. Moreover, Otte is barred from raising this argument because it was not raised below. See Brown v. Dep’t of Human Servs., 330 Ark. 764, 956 S.W.2d 866 (1997) (holding that an administrative decision will not be set aside on a ground not presented to the agency).
Finally, Otte argues that the Board should be estopped from finding that his license is invalid or void. He claims that the Board issued a license to him without informing him that it was either provisional or conditional. The license itself contained no such limitation. Because he did not know the license was provisional, he relied on this fact, built his practice in Arkansas, let his license lapse in Texas, and has been injured by his reliance. Therefore, he argues, the Board is estopped from treating his license as invalid.
This argument was not raised in the agency hearing and is therefore barred. See Brown v. Dep’t of Human Servs., supra.
Based upon our standard of review regarding agency decisions, we hold that the trial court properly affirmed the Board’s decision. Accordingly, we affirm.
Affirmed.
The Board later determined that a quorum was not present at the meeting in which it issued a provisional license to Otte, and therefore the license was not valid.
Section 206(b)(7) authorizes the Board to “[a]dopt standards for applicants wishing to take the licensing examination and conduct examinations or contract with persons or entities to conduct examinations of applicants!)]” | [
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Per Curiam.
Petitioner Warren Camp filed a certified partial record and a petition for writ of certiorari to complete the record on December 17, 2004. The notice of appeal states that he is appealing from the order and judgment filed May 25, 2004, but it actually was a memorandum order signed on May 24, 2004 and filed on May 25, 2004. Then, a judgment and commitment order dated May 24, 2004, was filed on July 2, 2004. On September 10, 2004, petitioner was granted an extension of time for filing the record on appeal to December 21, 2004, which was four days before the expiration of seven months from the fifing of the memorandum order. The court reporter, by affidavit dated December 12, 2004, stated that she would be unable to complete the transcript by the December 21 deadline. The seven-month period in which to lodge the record in this case ended on December 27, 2004. Because petitioner has not complied with the provisions of Ark. R. App. P. - Civ. 5(b), this court denies the petition.
Under Rule 5(b), the trial court has authority to grant more than one extension of the time for fifing a record on appeal, providing that the order granting another extension is entered “before the expiration of the period . . . extended by a previous order.” However, Rule 5(b) provides that in no event shall the time be extended more than seven months from the date of the entry of the judgment. This court has consistently stated that it expects compliance with this rule so that unnecessary delays will be eliminated. Coggins v. Coggins, 353 Ark. 431, 108 S.W.3d 588 (2003).
In Murphy v. Dumas, 343 Ark. 608, 36 S.W.3d 351 (2001) (per curiam), this court observed that the following requirements must be met before the trial court can enter an order of extension: (1) the appellant must request the extension; (2) notice must be given to the appellee; (3) a hearing must be held on the request; and (4) the trial court must make findings to support an extension. Ark. R. App. P. - Civ. 5(b) was amended to incorporate the holding in Murphy, 343 Ark. 608, 36 S.W.3d 351, to allow an appellant to obtain relief from this court “if he or she cannot obtain an extension order prior to the applicable deadline.” Coggins, supra. (Addition to Reporter’s Notes, 2003 Amendment).
This court denies the writ because Camp has not made any showing that he was unable to obtain entry of an order from the trial court further extending the time to file the record. Camp has not alleged that he requested an order of extension beyond the December 21, 2004 deadline. Camp has failed to show that he was unable to obtain an additional order of extension in the trial court prior to seeking a writ of certiorari from this court.
This case is different from Coggins in that this is an appeal from a criminal conviction, whereas Coggins was an appeal from a divorce action. The direct appeal of a criminal conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his or her first appeal when counsel has failed to follow mandatory appellate rules. Holland v. State, 358 Ark. 366, 190 S.W.3d 904 (2004) (per curiam): Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994) (per curiam). This court instructs counsel to file an affidavit either accepting responsibility for failing to comply with Rule 5(b) or stating the reasons, if any, why counsel was unable to obtain a second order of extension before seeking a writ in this court.
This court notes that this same court reporter has had problems in providing records in other cases on appeal. However, trial counsel requesting the record is required to request a hearing before the trial court so the reason(s) for these extensions and delays can be explained. This would provide this court with relevant information regarding how to proceed, and the appealing party would have a clear direction regarding when he or she should file his or her extension requests with this court — a reasonable time after the trial court’s hearing required under Rule 5. Murphy v. Dumas, 343 Ark. 608, 36 S.W.3d 351 (2001).
Petition for writ of certiorari is denied.
Imber, J., concurs.
This court notes that the judgment and commitment order was filed on July 2,2004, and normally the seven-month period begins to run from the date of the entry of the judgment. However, the notice of appeal in this case states Camp appeals from the order and judgment rendered on May 24, 2004 and file-marked on May 25, 2004. Regardless, the petition would be denied. | [
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