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Jack Holt, Jr., Chief Justice.
This appeal is from the trial court’s judgment discharging appellee Paul A. Maestri from liability on a promissory note held by the appellant, McIlroy Bank and Trust, following an extension of the note to which Maestri, an accommodation maker, did not consent. The trial court also determined that the extension materially altered the provisions of the note. McIlroy argues the court should have found that Maestri consented to the extension and that our Uniform Commercial Code requires that alterations of the note must have been not only material but also fraudulent.
We affirm because it is clear under our Uniform Commercial Code that Maestri was discharged once McIlroy extended the note a second time without Maestri’s consent. As such, it is unnecessary to consider the remaining points raised by the parties.
The promissory note in issue was executed on February 2, 1985. The amount of the note was $15,000.00, which was to be paid on demand. If no demand was made, payment was to be made after three months. The stated interest rate was thirteen percent (13%) per annum. The note identified appellant McIlroy as the lender and Danny Maestri as the borrower. In the lower right hand corner of the note two signatures appear — that of Danny Maestri and that of the appellee Paul Maestri.
Our first concern is the capacity in which Paul Maestri signed the note. The trial court correctly determined that Maestri signed as an accommodation maker. Ark. Code Ann. § 4-3-415 (1987) deals with the contract of an accommodation party. Subsection (3) provides:
As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof.
Under the facts before us, McIlroy was a holder, not a holder in due course. As such, oral proof of the accommodation status of Paul Maestri was permissible. Testimony by Danny Maestri and Paul Maestri clearly established that Paul Maestri signed the note only to lend his name to the borrower, Danny Maestri, so as to facilitate approval of the loan. We also find instructive the following language from Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987):
[T]he most significant element in determining whether a party to a note is an accommodation party is the intention of the parties . . . and where a person ‘receives no direct benefit from the execution of the paper it is likely that he will be regarded as an accommodation party.’
Our review of the record supports the trial court’s finding that Paul Maestri received no benefit from the proceeds of the note. In this regard, see White & Summers, Uniform Commercial Code, § 13-13 (2d ed. 1980).
In sum, Maestri signed as an accommodation maker. If he is liable on the note, it is only in the capacity in which he signed. Ark. Code Ann. § 4-3-414(2) (1987).
Our next concern is what effect extensions of the note had on Paul Maestri’s liability as an accommodation maker. On June 4, 1985, the maker of the note, Danny Maestri, signed an extension agreement extending the due date of the original note for a period of three months with interest on the remaining principal at 12.5 % per annum. Paul Maestri gave his consent to that extension by including his signature. A second extension agreement was signed by both Maestris on August 26,1985, which extended the note for an additional three months until November 27, 1985.
Sometime in November, Mcllroy’s loan officer, George Edwards, requested that Paul Maestri sign a third extension agreement. Maestri indicated that he did not want to extend his obligation on the note any further and that the bank should collect from the borrower, Danny Maestri. Later, a third extension agreement was executed between the bank and Danny Maestri extending the note for an additional three months without Paul Maestri’s signature agreement.
On April 29, 1986, a fourth extension agreement was executed by the bank and Danny Maestri, apparently without notice to Paul Maestri. This extension also provided that the note would be due on demand. However, if no demand was made, payment was to be in 23 installments of approximately $659.00 beginning on May 15, 1986, and ending on April 15,1988, with interest on the remaining principal at 11.50%. After Danny Maestri defaulted and filed in bankruptcy court, McIlroy brought suit against Paul Maestri.
The issue before us turns on the defenses which the accommodation maker, Paul Maestri, can assert against the holder of the note, McIlroy. Ark. Code Ann. § 4-3-606(1)(a) (1987) provides, in part:
The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
Without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument .... [Emphasis ours.]
The words “agrees to suspend the right to enforce” signify the granting of an extension of time for payment. Hence, the holder of the note, McIlroy, discharged any party to the instrument, including accommodation makers, to the extent that McIlroy granted an extension without the consent of the party or without an express reservation of rights. White & Summers, Uniform Commercial Code, § 13-14 (2d ed. 1980).
On the question of consent, Ark. Code Ann. § 4-3-118(f) (1987) provides:
Unless otherwise specified consent to extension authorizes a single extension for not longer than the original period. A consent to extension, expressed in the instrument, is binding on secondary parties and accommodation makers.
In other words, an express provision for consent in the McIlroy note would be binding on the accommodation maker, Paul Maestri, and would authorize one extension for a period not longer than the term of the original note, unless otherwise specified.
The note contains the following provision:
Obligations Independent — I understand that my obligation to pay this note is independent of the obligation of any other person who has also agreed to pay it. You may release any of us, release any security, waive any right you might have against any of us, extend new credit to any of us, renew this note, or all of the above, without affecting my obligation to pay the loan amount. [Emphasis ours.]
As against Paul Maestri, the language “renew this note” could be construed as consent, which in turn authorized a single extension in November 1985 for a term identical to that contained in the original note. However, we find nothing in the provisions of the note which would rebut the language of section 4-3-118(f) and lead to the conclusion that multiple extensions were authorized. Accordingly, Paul Maestri cannot be considered as having consented to an extension of the note in April 1986, and under sections 4-3-606(l)(a) and 4-3-118(f) he was discharged from liability on the note.
With reasoning not entirely clear, McIlroy argues that the language “renew this note, or all of the above” (emphasis added) amounts to consent to multiple extensions. The case of Gentry v. First American National Bank, 264 Ark. 796, 575 S.W.2d 152 (1979), is cited as support. McIlroy further contends that Paul Maestri’s conduct and signature agreement to the first two extensions operates to prevent his discharge on the note.
We find Mcllroy’s arguments as to course of conduct unpersuasive and not supported by the facts of record. Furthermore, our decision in Gentry v. First American National Bank is clearly distinguishable.
In Gentry, the language of the relevant agreement was as follows:
This guaranty is continuing, absolute and unconditional.. . . Liability hereunder is not affected or impaired by any surrender, compromise, settlement, release, renewal, extension, authorization, substitution, exchange, modification or other disposition .... [Emphasis ours.]
It was specifically recognized in Gentry that this language meant the guarantor’s liability was not affected by “renewals or extensions.” Id. at 799. No such language is before us now. See also In re Sanders, 75 B.R. 757 (Bkrtcy. W.D. Ark. 1987) (construing language identical to that contained in the McIlroy note).
Because we conclude that Paul Maestri was discharged under the provisions of Ark. Code Ann. §§ 4-3-606(1 )(a) and 4-3-118(f), we find it unnecessary to consider the remaining points raised by the parties.
Affirmed.
Glaze, J., concurs. | [
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David Newbern, Justice.
This is a medical malpractice case in which a directed verdict was entered in favor of the appellees, Dr. Robert Clark and Dr. Robert Bishop, at the conclusion of the plaintiffs evidence. Marvin Phillips, who was the plaintiff, has appealed. Mr. Phillips’s complaint was that the doctors had not properly cared for him after the surgery and that resulted in the necessity of further surgery and long-term medical care. We agree with the trial court’s assessment that an expert witness upon whose testimony Mr. Phillips’s case depended was not qualified to answer the questions he was asked. There was no other testimony sufficient to allow the case to go to the jury, and thus we affirm the judgment based on the directed verdict.
Mr. Phillips consulted Dr. Robert Bishop in Morrilton about severe stomach pain. Dr. Bishop told Phillips he needed a gallbladder operation and recommended a surgeon, Dr. Clark of Conway. Phillips had previously had stomach surgery, and that complicated the gallbladder operation which was performed by Dr. Clark on August 27, 1982. He was discharged from the hospital on September 18,1982, with a, presumably temporary, tube extending from the surgical incision for the purpose of draining excess bile.
Mr. Phillips testified he saw Dr. Clark once after the surgery and while he was still in the hospital. He told Dr. Clark his “stomach busted loose,” and Dr. Clark removed a stitch and remarked it would be two weeks “before [he could] go back in there.” Thereafter, Mr. Phillips did not see Dr. Clark. During two weeks following his discharge from the hospital Mr. Phillips went several times to the emergency room at the hospital. On several occasions, he was seen by Dr. Bishop who told him he would be all right. After the sutures were removed by Dr. Bishop, Mr. Phillips and his wife were concerned that the incision area had broken open. He was again seen by Dr. Bishop who told him to go home and that he would be all right. On the last trip to the hospital emergency room, October 1, 1982, Phillips testified that the wound was draining so much that he was “wet all over” and that his wife had to wrap him in towels because of drainage from the wound. A nurse told him the smell was bad and they needed to give him some antibiotics. Dr. Bishop told him to go home, “take a towel, keep it dried up and come back.”
Relatives convinced Phillips to go to Baptist Medical Center in Little Rock where he was admitted and treated by Dr. Jones, a surgeon. Dr. Jones testified that it was not until some three or four days after Mr. Phillips’ admission to Baptist Hospital that he became very ill with infection requiring further surgery and extensive treatment. Dr. Jones transferred Mr. Phillips to St. Vincent Hospital where the subsequent surgery was performed. Dr. Jones testified that he could think of nothing Dr. Bishop and Dr. Clark could have done for Mr. Phillips that they did not do. He did say, however, that after complicated gallbladder surgery he would personally see the patient. In response to the question, “You believe that would be standard, you’d uphold yours?” Dr. Jones answered, “Yes.”
In addition to Dr. Jones, Dr. Gilbert Evans testified on behalf of Mr. Phillips. Dr. Evans testified he graduated from the University of Arkansas School of Medicine in 1957. While he had never performed gallbladder surgery, he had assisted in such operations. He had been an anesthesiologist. He had been a general practitioner and prison doctor and had worked in detoxifying drug patients. He said he had followed the post operative care of gallbladder surgery patients, but since 1983 he had limited his practice to disability evaluations. At first, Dr. Evans testified he was not familiar with medical practice standards in rural Arkansas in 1982, but then he said he was. He testified the post operative care given Phillips violated “first grade hygiene” principles. He testified that “blood work” should have been done, but was not, during the two week period Phillips was at home after the gallbladder surgery. He also said the bile lost through the tube could have been fed back to the patient. Dr. Evans testified he based his knowledge of Mr. Phillips’s condition upon what Phillips had told him and that he refused to look at Mr. Phillips’s medical records because he did not wish to be distracted from what Mr. Phillips had told him and because he was not paid his fee of $350 to look at them.
Throughout Dr. Evans’s initial testimony, counsel for Dr. Clark and Dr. Bishop objected on the ground that there had been no showing that Dr. Evans was qualified to give an opinion with respect to the care afforded to Mr. Phillips by the defendants. The court did not then rule on the question whether Dr. Evans was qualified, but allowed Mr. Phillips’s counsel to ask further questions in an attempt to ascertain whether or not he was qualified. The following excerpt of the testimony is typical:
Q [by Mr. Phillips’s counsel] Dr. Evans, are you familiar with the standard of care for doctors in rural Arkansas, in the summer and fall of 1982?
A Yes.
MS. HENSLEY [counsel for Dr. Clark and Dr. Bishop]: Note my objection, the question was too broad and open.
THE COURT: That hasn’t qualified him yet.
Q [by Mr. Phillips’s counsel] You do know that this operation was a gallbladder operation.
A Initially, yes.
MS. HENSLEY: I have to object again, that’s not what it was.
THE COURT: I don’t know, he says, I thought, it was a gallbladder operation with complications. I don’t know whether we are dotting i’s and crossing t’s or not, that’s what I understood it to be. If I’m in error, we ought to know.
MS. HENSLEY: I think Dr. Evans stated earlier, there’s a big difference between a simple operation, where a gallbladder is removed, and an operation of the magnitude where there is a large mass, you have to redo ducts, all kinds of stuff. That’s my objection.
Q [by Mr. Phillips’s counsel] Dr. Evans, what we are talking about is the fourteen days after he was released from Conway County Hospital, in the summer of 1982.
Thereafter, in response to objections to Dr. Evans’s testimony, the court’s response was “Let’s see what he’s going to say.” The court did not make a ruling during Dr. Evans’s testimony on his qualifications to give his professional opinion.
During cross examination, Dr. Evans was asked to state all the things he thought Dr. Clark and Dr. Bishop had failed to do that they should have done for Mr. Phillips. His response was that they should have fed him and prayed for him. The reference to feeding the patient had to do with Dr. Evans’s contention that Mr. Phillips became malnourished after the gallbladder surgery, although he testified that no one knows what proper nutrition is.
At the conclusion of the case, the court granted directed verdicts as to punitive damages and as to Dr. Clark, and then, with reference to the motion for directed verdict in favor of Dr. Bishop, the court stated:
I have witnessed hundreds of trials and many malpractice cases, over the past twenty years, nearly twenty-one, and I don’t think I have ever seen any case, no matter what size or consequence, in which the evidence was [s]o incredible, unbelievable, as in this case. Dr. Evans is totally incredible, he smacks of a person who may be deranged, and I say that after considerable concern.
The only evidence that purports to show malpractice, professional evidence, was that of Dr. Evans, and, to be very candid, I don’t think it’s believable. He said, in his final statement, and I recall, when asked, “what did this doctor not do that he should have done,” and he said he should have fed him and prayed for him. That’s what he said, verbatim, and I just hold that’s of such inconsequential reply in this case, that I’m going to grant the motion for verdict. I am embarrassed about the case.
While the court did not say specifically that he was, at last, ruling on Dr. Evans’s qualifications to give expert testimony, we feel the court’s remarks may be taken as such a ruling. The court has broad discretion to determine whether one qualifies as an expert, and we will not reverse the determination absent an abuse of discretion. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980); United States Fidelity & Guaranty Co. v. Smith, 252 Ark. 556, 480 S.W.2d 129 (1972). Cf. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986). Given Dr. Evans’s equivocal testimony as to his qualifications and his equally equivocal statements as to what should have been done by the defendants, combined with his refusal or failure to review the relevant medical records in the case, we cannot say the court abused its discretion. We cannot say that this witness’s testimony would, in the words of A.R.E. 702, have assisted the trier of fact to understand the evidence.
Mr. Phillips does not contest the fact that this is the type of medical malpractice case in which expert testimony is required. We agree with the court that, absent Dr. Evans’s testimony there was nothing to support Mr. Phillips’s allegations.
Affirmed.
Purtle, J., dissents. | [
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Hart, O. J.
Willie Walker was convicted of murder in the first degree, charged to have been committed by killing Lena Walsh in Poinsett County, Arkansas, and his punishment was fixed by the jury at life imprisonment in the State Penitentiary. From the judgment rendered upon the verdict the defendant has appealed.
It is first insisted that the evidence is not legally sufficient to support the verdict. The record shows that about 12:00 o ’clock noon on December 12, 1929, the dead body of a woman was found a short distance from the Black Oak Road in Poinsett County between Marked Tree in Poinsett County and Earle in Crittenden County. The body was found about one hundred yards inside of the Poinsett County line. It was carried to an undertaking establishment at Marked Tree and kept there for forty-two days, during which time it was identified as the body of Lena Walsh by nine different persons including relatives, friends and acquaintances. There were four bullet holes in the right side of the body and one in the arm which caused a flesh wound. The bullets were from a thirty-two calibre pistol. The woman’s head was beaten into a pulp — looked like nail holes. The clothing was power burned.
One witness who lived close to the end of the bridg-e across St. Francis River at Marked Tree testified that she was awakened at about 10:30 o’clock on the night of December 11,1929, by the cries and moanings of a woman. Witness located the noise between her house and the river bank. She judged that the cries came from about two city blocks away. Other witnesses testified that at about the same hour on the same night they heard four or five pistol shots over in the direction of the river from Marked Tree. The inquest showed that the deceased had been shot four times. On the next day after the body was found, two little boys while playing- under the bridge at Marked Tree found a woman’s hat, wrap and a pistol wrapped up together. They were found in Poinsett County, Arkansas. It is about six miles from Marked Tree to the Crittenden County line. Another witness found the tip end of a pistol hammer in the cuff of the coat belonging to the dead woman. The hammers were broken from the pistol found by the boys and the tip end of the pistol hammer found in the cuff of the coat of the dead woman fitted on to the pistol. Another witness who had lent a pistol to the defendant a few days before the dead body was found testified that the pistol exhibited to him which had been found by the boys under the bridge looked like the pistol he had lent to the defendant.
The night marshal at Marked Tree testified that he had sold the defendant some gasoline about 4:00 o’clock on the morning of December 12, 1929, and that the defendant was driving a Studebaker sedan. Another witness testified that he ran a gasoline station at Wynne, Arkansas, and that the defendant, on the evening of December 11, 1929, bought gasoline from him and that at that time he was driving a Studebaker sedan.
Some time during the latter part of October, 1929, Lena Walsh bought a Studebaker sedan in Little Rock for $1,385, and at the time she was killed she owed a balance of $1,010 on the car. A day or two after the killing the defendant went to a cleaning plant in Greenville, Mississippi, and had a suit of clothes cleaned. There was blood on the left sleeve and front of the coat and on the left leg of the trousers. Later on the defendant was arrested in Arizona with a Studebaker sedan in his possession which had belonged to the deceased. The car was identified by several witnesses who worked at the place where the car was sold. The car was covered with mud and had several blood splotches on the inside of it when the defendant was arrested.
The defense of the defendant was that of an alibi, and he introduced evidence tending to support it. The evidence for the State tended to show that the deceased was brutually murdered by some one and the attendant circumstances warranted the jury in finding that the defend ant was the guilty person. Hogue v. State, 93 Ark. 316, 124 S. W. 783 ; Culbreath v. State, 96 Ark. 177, 131 S. W. 676 ; Davidson v. State, 108 Ark. 191, 158 S. W. 1103, Ann. Cas. 1915B, 436 ; Tillman v. State, 112 Ark. 236, 166 S. W. 582 ; and Weldon v. State, 168 Ark. 534, 270 S. W. 968.
It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict on the ground that the venue of the crime was not proved. Venue may be established like any other fact, and it is not necessary that there should be direct evidence that the offense was committed in the county charged in the indictment. It is sufficient, if, from all the facts and circumstances introduced in evidence, such conclusion may be fairly and reasonably inferred. Wilson v. State, 62 Ark. 497, 36 S. W. 842, 54 Am. St. Rep. 303 ; Nichols v. State, 102 Ark. 266, 143 S. W. 1071 ; Cranford v. State, 130 Ark. 101, 197 S. W. 19 ; Cuzic v. State, 152 Ark. 230, 237 S. W. 1094 ; Stribling v. State, 171 Ark. 184, 284 S. W. 38. The evidence showed that the body of the deceased was found ip Poinsett County. Witnesses who lived at Marked Tree, which was about six miles from the county line of Poinsett County, testified that they heard the cries and moans of a woman near the bridge across St. Francis River on the night preceding the finding of the body. The evidence showed that the defendant had been traveling with the deceased in that part of the State in her Studebaker sedan; he was found Avith the car and arrested in the State of Arizona. The jury was fully warranted in finding under these circumstances that the crime was committed in Poinsett 'County, Arkansas, where the body was found, and that the defendant hid the body in the woods and left in the car of the deceased to conceal his guilty participation in the homicide.
It is next insisted that the court erred in refusing to give an instruction on the defense of alibi relied upon by the defendant, which was requested by his attorney. The court gave an instruction on the defense of an alibi in accordance with the well-established principles of law decided by this court in the folloAving cases; Hawthorne v. State, 135 Ark 247, 204 S. W. 841 ; Haskins v. State, 148 Ark. 351, 230 S. W. 5 ; Doyle v. State, 166 Ark. 505, 266 S. W. 459. This court has uniformly and repeatedly, held that the trial court is not required to multiply instructions on the same point. We have carefully examined the record. It shows that, the case was submitted to the jury on competent evidence and upon instructions which fully and fairly covered the respective theories of the State and of the defendant. The judgment will therefore be affirmed. | [
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Per Curiam.
The petitioner Donald Key pleaded guilty to seven felony charges in Montgomery County and two felony charges in Polk County. He subsequently filed a timely petition pursuant to Ark. Code Ann. § 16-190-111 (1987) to “correct and reduce” the sentences. The petition was denied on February 12, 1988. A timely notice of appeal was not filed with the circuit clerk of either Montgomery or Polk County, and the petitioner now seeks a belated appeal.
In June petitioner sought to file in this court a petition for writ of mandamus seeking an order to compel the circuit clerks to take some action on a notice of appeal which he alleged had been timely filed. He submitted with the mandamus petition a copy of an unfilemarked notice of appeal which bore notations that a copy of it had been mailed to the circuit judge and the Arkansas Court of Appeals. It is not entirely clear from the motion for belated appeal whether the petitioner is now contending that he mailed the notice of appeal to the clerks, who did not receive it, or whether he mailed the notice of appeal to the judge only. The record, however, contains a letter to the clerks dated March 17, 1988, in which he said that he had mailed the notice of appeal to them. This letter which was not mailed until after the time for filing a timely notice of appeal had passed cannot be relied on as proof that the petitioner actually mailed the notice of appeal because he provides no other verification to establish that he in fact mailed the notice of appeal.
The dissent cites Houston v. Lack, 56 U.S.L.W. 4728 (June 24,1988), for the proposition that a notice of appeal is considered “filed” by a pro se prisoner under the federal rules of procedure when he delivers it to prison authorities for mailing. That case was no more than an interpretation of Federal Rules of Appellate Procedure 4(a)(1) which is inapplicable in this case.
There is a presumption that a letter mailed was received by the person to whom it was addressed. Skaggs v. State, 287 Ark. 256, 697 S.W.2d 913 (1985); Moore v. State, 285 Ark. 321, 686 S.W.2d 790 (1985). Petitioner’s bare assertion in the motion for belated appeal that he mailed a timely notice of appeal to the “circuit court” offers nothing to rebut that presumption.
The allegation that a notice of appeal has been mailed without some substantiation is not good cause to grant a belated appeal. Alexander v. State, 282 Ark. 216, 667 S.W.2d 366 (1984). As we said in Alexander v. State, supra, if it were, there would be no point in setting up rules of procedure since the procedural requirements could be circumvented by a simple claim that the petitioner’s failure to comply with the rules was caused by the post office. We also noted in Skaggs v. State, 287 Ark. at 261:
Since the litigant who mailed the item has the burden of proving that he mailed it, it is advisable for persons mailing notices of appeal or other material which must be filed within a designated period to use certified mail, return receipt requested. A return receipt would provide proof sufficient to establish the date of mailing and the place and date of receipt.
It may be that petitioner mailed a copy of the notice of appeal to the circuit judge, but the circuit judge was not obligated to determine whether the original notice of appeal was received by the clerks since the rules for appellate procedure require that a notice of appeal be filed with the circuit clerk. Ark. R. App. P. 3(a), Ark. Code Ann. Court Rules (1987). All litigants, including those who proceed pro se, must bear the responsibility for conforming to the rules or demonstrating good cause for not doing so. We have consistently held that ignorance of the rules of appellate procedure is not in itself good cause to grant a belated appeal. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); Grain v. State, 280 Ark. 161, 655 S.W.2d 425 (1983).
Motion denied.
Purtle, J., dissents. | [
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Hart, C. J.
This appeal is prosecuted by J. G-. Tucker to reverse a judgment dismissing his complaint in a contested election case.
J. Gr. Tucker and T. M. Meroney were rival candidates for the nomination of sheriff of Lincoln County in the Democratic primary election held on the 12th day of August, 1930'. The Democratic 'Central 'Committee duly canvassed the returns, and found that T. M. Meroney had received 932 votes and that J. Gr. Tucker had received 924 votes. The committee declared that T. M. Meroney had received a majority of the votes cast at the election, and the certificate of nomination was issued to him. The record shows that the collector did not file with the county clerk a list of poll taxpayers, duly authenticated by his affidavit as required by § 3740 of Crawford & Moses ’ Digest, and this fact is conceded by the contestant. The record also shows that 36 votes were cast in the manner provided in § 3777 of the Digest by persons who have attained the age of twenty-one years since the time of assessing taxes next preceding the election, and that of these votes twenty-six were cast for Tucker and ten for Meroney.
It is the contention of counsel for appellant that these were the only legal votes cast, and that, inasmuch as a majority of them were cast for Tucker, he should have been declared the nominee, and that the certificate of nomination should have been issued to him. We do not agree with contestant in this contention. The official returns of the election are quasi records, and are prima facie correct. The burden is upon the contestant to show by affirmative proof that they do not speak the truth. Powell v. Holman, 50 Ark. 85, 6 S. W. 505 ; Webb v. Bowden, 124 Ark. 244, 187 S. W. 461 ; and Craig v. Sims, 160 Ark. 269, 255 S. W. 1.
These returns may be impeached by any competent evidence showing that they are not true. In Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314, it was held that the requirement of § 3777 of the Digest that no person offering to vote in a primary election shall be allowed to. vote unless his name appears in the printed list of poll tax payers, required by § 3740, or unless he exhibits a poll tax receipt, or establishes that he has attained his majority since the last assessing time, is mandatory, and that its provisions must be substantially complied with. Bearing in mind that the official returns are quasi records and stand with all the force of presumptive regularity as held in the cases cited above until overcome by competent evidence, it will be readily seen that the contestant has not made out his case. All the ballots cast by the voters and returned by the proper officers are presumptively legal, and their verity is not impeached by showing that contestant received a majority of the votes cast by persons ‘who had become of age since the last assessing time. In order to succeed, he must prove that he received a majority of all the legal ballots cast at the election.
The next contention is that 203 illegal votes were cast at the election, and that, if they are thrown out, the contestant would have a majority of the legal votes cast at the election. The basis of this contention is that 203 votes were cast at the election by persons who had been assessed for poll taxes since the regular assessing time by the assessor under provisions of act 172 of the Acts of 1929 (Acts of 1929, Vol. 2, p. 841), and that such votes are illegal because these voters did not proceed as directed by § 3738 of the Digest by applying to the county clerk to have their names included in the list of voters of the collector as additions of omitted names. Appellant cannot prevail in this contention for two reasons. If it should be said that the act of 1929 referred to is inconsistent with and repugnant to § 3738 of the Digest, then § 3738 is repealed by implication and the '203 votes are legal because the names were added by the compliance of the assessor with the provisions of said act 172 of the Acts of 1929.
On the other hand, if it be said that the provisions of act 172 are not inconsistent with or repugnant to the provisions of § 3738 of the Digest, then both provisions stand and are supplementary to each other. Two methods would be provided for placing the names of the voters, omitted by the assessor in his regular period of time for assessing persons and property on the list to be authenticated by the collector under the provisions of § 3740 of the Digest. Under the act of 1929 above referred to, it became the duty of the assessor to place the names of omitted persons on the list to be furnished the collector; and under § 3748, if the assessor failed to perform this duty, the voter himself, under the provisions of § 3738, might still go before the county clerk and have his name placed on the list to be given to the collector.
Hence there is no evidence in the record that tends to impeach the returns -of the election and the certificate of nomination issued to appellee. Therefore the judgment will be affirmed. | [
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Carleton Harris, Chief Justice.
William Wayne Decker, appellant herein, was convicted in the Pulaski County Circuit Court of robbery allegedly occurring on January 21, 1970. The jury, under the Habitual Criminal Act, fixed his punishment at twenty-one years confinement in the Arkansas Department of Correction. Two days later, Decker was convicted in the same court of the crime of grand larceny and his punishment was fixed by the jury at thirty years confinement. No appeal was taken from the judgment in either case. Attorney J. H. Cottrell represented Decker in both cases through appointment by the court. Thereafter, Decker filed a petition for a Writ of Habeas Corpus in the Pulaski County Circuit Court, and that court, treating the petition as a Criminal Procedure Rule I Petition, appointed new counsel to represent Decker. On hearing, the trial judge denied any relief, and from the judgment so entered, Decker appealed to this court. Three points were asserted for reversal as follows:
I.
The alleged confession of appellant was improperly admitted into evidence.
II.
The appellant was not denied adequate representation of counsel at trial insofar as a key witness was not called.
III.
Appellant was denied his constitutional right to appeal his case.
The original cases were tried by an assigned judge, and following the Rule I hearing and before judgment was entered, the regularly presiding judge of the Pulaski County Circuit Court caused the record of the two trials to be transcribed for his use and information in determining the Rule I Petition. These transcripts were filed with this court along • with the record of the Rule I hearing. On April 16, 1973, this court entered an order which inter alia provides as follows:
“Inasmuch as the complete record is now available, it is the order of this court that this appeal (from the denial of relief under Criminal Procedure Rule I) be treated as an appeal from the original convictions, and the clerk of the court is directed to notify counsel for appellant that he may . present and brief any additional points wherein it is felt that the trial court committed reversible error. The clerk shall likewise notify the Attorney General to reply to appellant’s brief, said briefs to be submitted in compliance with Rule Eleven of this court.”
These briefs have now been filed and the case is ready for disposition. The following additional points for reversal have been raised.
IV.
Defendant’s requested instruction re alibi was improperly refused.
V.
Defendant’s motion for dismissal of grand larceny charge (No. 72070) on grounds of double jeopardy was improperly denied.
<J H-t
Defendant’s motion for a directed verdict was improperly denied. (No. 72070).
VII.
Defendant’s objection to reference of the robbery in the trial for grand larceny was improperly overruled.
VIII.
Defendant’s confession was improperly admitted in rebuttal. (No. 72070).
IX.
Defendant’s confession was inadmissible and improperly admitted because he was not properly advised of his constitutional rights.
Two other points are raised but they are repetitious of the first two points asserted in the Rule I hearing.
We proceed to a discussion of the contentions for reversal.
HH
This allegation refers only to the trial of Decker on the charge of grand larceny as the confession was not used in the robbery case. The record reveals that appellant was arrested on July 16, 1971 by a North Little Rock policeman, subsequently brought to the Little Rock Police Department, and questioned by City Detectives Larry Dill and Bill Johnson. Decker testified that he had been wounded before his arrest and was suffering from gunshot wounds through his foot, side, and arm, and that he had been taken to Memorial Hospital in North Little Rock where he was treated, taken the next day to Medical Center where the gunshot wounds were cleansed and he was given a prescription to kill the pain. He said that he was beaten and “slapped around” by the officers before signing a waiver ; that he was beaten with a pistol by Dill, and finally signed the rights waiver about 1:30 in the morning; subsequently he stated that it was about 10:00 P. M. Decker also said that he asked for an attorney but the request was denied. As for the statement made, appellant said that he signed his name on a blank sheet and initialed four blank pages, being told that the officers were getting a specimen of his signature. Decker’s statement is somewhat conflicting and accordingly confusing. Detective Dill testified that Decker was brought to the Littlé Rock Police Department and advised of his rights about 5:15 P.M.; that appellant stated he understood, and signed the waiver in the presence of the witness and Detectives Jones and Johnson. Dill stated that Decker was not beaten, threatened, nor mistreated in any manner; that the latter was entirely normal and aware of what he was doing when he signed the waiver. The witness said that when Decker would make a statement, the information given would be checked out and that, he was questioned, off and on, until approximately 1:45 A.M., at which time he made a complete statement which was reduced to writing by Dectective Jones. The witness then read the written statement to Decker who signed it at the bottom of the third pagé and initialed it at the top and bottom of the first and second- pages.
The court conducted a hearing in chambers on the question of whether the statement had been voluntarily given, and after hearing the evidence, ruled that it was admissible. In Mullins v. State, 240 Ark. 608, 401 S.W. 2d 9, this court, in passing on the same contention now raised by Decker, stated:
“All of appelfaht’s contentions as to the confession, including the advisement of his right to counsel, were examined by the trial court in its hearing in chambers. The conflicting testimony between appellant and the officers made a question of fact to be decided by the court pursuant to Act 489 of 1965. The court made a finding adverse to appellant and admitted appellant’s confession in evidence. We have concluded that there is substantial evidence in the record to support the trial court’s determination and said determination will not be disturbed here on appeal.”
We hold that there was substantial evidence to support this finding.
II.
Decker’s defense was based upon an alibi, i.e., he claimed to have been in Jackson, Mississippi at the home of a sister at the time the alleged crime occurred. However, when both the robbery and grand larceny cases were called, counsel for appellant announced that he was ready; no request was made for a continuance nor was there any contention that there was an important witness for the defense who could not be present. At the trial on the charge or robbery, Donald Decker, brother of appellant, testified that “around the 17th” (January, 1970), Decker, together with his wife and child, mother and father, went to Jackson, Mississippi to visit Decker’s sister and stayed five or six days.
At the trial on the charge of grand larceny, Effie Decker, mother of appellant, testified that she and her husband, appellant and his wife and baby, and David Bryant, all went to Jackson to visit her daughter and appellant’s sister, Charlene Graham, on January 17 and returned after staying there five days; that appellant was there the entire time, the family traveling in appellant’s automobile. David James Bryant, a cousin of appellant, also testified to those facts. The alleged error is based on the fact that the sister, Charlene Graham, who had in the meanwhile moved to California, was not present at either the robbery or grand larceny trials. In the Rule I hearing Mrs. Graham did testify, stating that the relatives heretofore mentioned came to her home on the 16 th or 17 th and remained there either five or six days. She said that appellant stayed there the entire period of time. The witness had since moved back from California to Little Rock.
We find no merit in this contention for several reasons. In the first place, no effort was made to obtain the witness and Decker himself testified that he really didn’t think it was necessary for her to be present since he had two other witnesses to. testify to the same facts. This apparently was a decision made by the appellant himself rather than by counsel. At any rate, no motion for continuance was made and Decker accordingly has waived any right to object. Not only that, but since the mother and other relatives did testify to the alibi, the evidence of the sister would only have been cumulative.
III.
As earlier stated, this appeal is being treated as an appeal from the original convictions.
IV.
This point relates to the alibi defense. In the robbery case, the trial court was requested to give an instruction offered by the defendant on the defense of alibi, which was refused; however, no error was committed for the jury was given an instruction (the court giving its own instruction), specifically mentioning the defense of alibi, and telling the jury that such a defense is as proper and legitimate if proved as any other and all the evidence bearing upon this point, along with all the evidence, should be carefully considered by the jury and “if the jury have a reasonable doubt as to whether the defendant was there when the crime was committed they should give the defendant the benefit of the doubt and find him not guilty.” This was a correct instruction and appellant can have no legitimate complaint that his own instruction was not given.
In the grand larceny case, no instruction was requested on this phase. We, of course, have held many times that where an accused desires an instruction on a particular issue not covered by the instructions given, he should request a correct instruction thereon and will not be heard to complain if he fails to do so. Lowmack v. State, 178 Ark. 928, 12 S.W. 2d 909.
V.
It is next asserted that the trial court committed error by failing to grant appellant’s motion for dismissal of the grand larceny charge on grounds of former jeopardy. To discuss this point, it is necessary that the background of the case be given. Alfred Williams, employed by Caldwell Oil Company in Little Rock, operated a service station. About 1:00 A.M. on January 21, Lawrence Hobbs, a regular customer, came into the station. About thirty or forty minutes later, two men came in looking for a set of jumper cables. While all were present, a truck driver came in to get change. After he left, the two men supposedly looking for jumper cables, pulled a knife and a gun and robbed the station, placing Hobbs and Williams in the rest room. After being placed in the rest room, they were again threatened, but each victim assured the robbers that they did not know the latter, stating, “I never seen you before.” The two heard a car start up. Hobbs testified:
“I heard something say, ‘Ugh’, like my car. You have to double clutch it to put it in low gear. So,' evidently, he didn’t know how to drive my car. I said, ‘Al, they got my car.’ And I was fixing to go out the door and Al pushed me back and we was peeping up under the crack in the door and we didn’t see no feet walking back and forth. So, he eased the door open and come on out. He was fixing to dial the police but the telephone wire was chopped loose. He took him a dime and went out on the outside to pay the phone and called the police.”
It is argued that all of the essential issues were litigated in the first trial for robbery, and that the grand larceny trial relitigated the same issue. Appellant chiefly relies upon the case of Turner v. Arkansas, 407 U.S. 366, where this was the question at issue. Turner had been tried for murder, it being alleged that he killed a man while robbing him. The jury returned an acquittal and Turner was then charged with robbery. He contended that a trial on this charge would constitute double jeopardy, but we disagreed. See Turner v. State, 248 Ark. 367, 452 S.W. 2d 317. A second appeal was taken from a trial court order denying the motion to dismiss the indictment for robbery, this time appellant presenting the complete transcript of the trial record in the murder charge. We held that our decision on the prior appeal was the law of the case. See Turner v. State, 251 Ark. 499, 473 S.W. 2d 904. In reversing, the United States Supreme Court said:
“In the present case, petitioner was not charged with robbery at the first trial, but the State has stipulated that the robbery and murder arose out of ‘the same set of facts, circumstances, and the same occasion.’ The crucial question, therefore, is what issues a general verdict of acquittal at the murder trial resolved. The jury was instructed that it must find petitioner guilty of first-degree murder if it found that he had killed the decedent Yates either with premeditation or unintentionally during the course of a robbery. The jury’s verdict thus necessarily means that it found petitioner not guilty of the killing. *** Had the jury found petitioner present at the crime scene, it would have been obligated to return a verdict of guilty of murder even if it believed that he had not actually pulled the trigger. The only logical conclusion is that the jury found him not present at the scene of the murder and robbery, a finding that negates the possibility of a constitutionally valid conviction for the robbery of Yates.”
In the case now before us, the circumstances are entirely different. The robbery of the service station and the stealing of the automobile were two separate crimes, and while to a degree related, certainly were not the same offense. The crime of robbery was over before the automobile was stolen. The proof offered in the robbery charge would not sustain the charge of stealing the automobile, and we accordingly find no merit in this alleged error.
It is then asserted that the evidence was insufficient to sustain the grand larceny conviction, the argument apparently being based on the fact that no one testified that he actually saw appellant and his companion take the car. Of course, circumstantial evidence is sufficient if the circumstances are such that no other reasonable hypothesis can be reached. Here, Hobbs had driven his car to the station. After the robbery, he was made to go into the rest room. His testimony quoted in the preceding point establishes that, because of a deficiency in the clutch, he recognized the sound of the car as it started off immediately after the men had warned the two victims to remain in the rest room. The car was gone when he returned. These circumstances cer-tinly presented a fact question for the jury, but in addition, Decker gave a written statement in which he said this car was used in the getaway.
VII.
It is next contended that references to the robbery were improperly admitted in the trial for grand larceny and that such testimony had a prejudicial effect. We do not agree. A logical explanation of the circumstances of the taking of the car could not have been given without testimony first being presented about the robbery; the jury would never have known why the two men were in the rest room together and afraid to come out unless the jury had also known that the two men were there by force and threats of what would happen if they did come out. Only one brief paragraph is allotted to this argument.
VIII.
It is then asserted that defendant’s confession was improperly admitted in rebuttal, and that the State should have offered its entire case when putting on its evidence. Thé statutes dealing with the manner of proceeding in a criminal case after the oath is given the'jury are Ark. Stat. Ann. §§ 45-2110 — 45-2114 (Repl. 1964). The first mentioned section provides that the prosecuting attorney shall make his opening statement; the next section provides that defendant or his counsel may then make a brief statement for the defense; the next section authorizes the state to offer evidence in support of its case; next, the defendant offers evidence in support of his defense, and § 43-2114 provides:
“The parties may then respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.”
In Lacy v. State, 240 Ark. 84, 398 S.W. 2d 508, it was contended that the court erred in permitting the prosecuting witness to testify on rebuttal relative to a jacket allegedly worn by the appellant. This court quoted the contention and stated its answer to that contention as follows:
. . the alleged victim, testified that her attacker had on a cream colored sweater and tight pants; she made no reference whatsoever about a coat or jacket. After the appellant and his witnesses had taken the stand and testified that on the night of November 12th, that appellant had worn a blue jacket, the trial court, over the objections and exception of appellant, permitted the prosecuting witness to testify on rebuttal to the effect that appellant was wearing a coat or a jacket.’
“Our statute (Ark. Stat. Ann. § 43-2114 (1947) says:
‘The parties may then respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.’
“This statute permits the Court, ‘for good reason, in furtherance of justice,’ to allow the State to reopen its case and offer new evidence. Even if the recalling of the prosecutrix to testify about the jacket which the defendant wore could be considered as new evidence, still the Court had a right to allow such to be offered; and the Court did not abuse judicial discretion in such ruling.”
See also Walker v. State, 100 Ark. 180, 139 S.W. 1139, where we said:
“Error of the court is assigned in permitting the State to introduce tesdmony not properly in rebuttal after defendant had rested his case. The statute (Kirby’s Digest, § 2378) authorizes the presentation of testimony in chief after the defendant has closed his case when that appears to be necessary ‘in furtherance of justice,’ and of that the trial court must be the judge. It rests within the sound discretion of trial courts to permit tesdmony to be adduced out of time, and the exercise of that discretion will not be distrubed by this court unless an abuse is shown.”
We hold the contention to be without merit.
► — I X
It is next argued that the confession was taken in the robbery case but was improperly used in trial for grand larceny, the brief on behalf of Decker stating, “There is no evidence he was advised he was a suspect for grand larceny.’’ The record reflects that Decker signed two “Rights Waivers” on July 16, one setting out that he had been advised that he was a suspect in an armed robbery and the other admitting that he had been advised that he was a suspect in a burglary and grand larceny case. It is not entirely clear whether the last mentioned waiver had reference to this particular instance of grand larceny, though it does appear that this is the case. Certainly, Decker knew that he was suspected of stealing the automobile at the service station since he included details in the written statement he signed. We find no prejudicial error.
The last two contentions deal with points raised in the Rule I hearing and have already been covered in this opinion.
Finding no reversible error, the judgment is affirmed. . .
It is so ordered.
See Decker v. State, 251 Ark. 28, 471 S.W. 2d 343.
This referred to the- “Miranda form’’, setting out constitutional rights, Decker acknowledging by signature that he had been explained these rights and told that any statement could be used against him.
The officer testified that actual interrogation consumed three or four hours.
This statute reads identically with § 43-2114. | [
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John I. Purtle, Justice.
Appellant was found guilty of attempted rape and burglary and of being an habitual criminal. He was sentenced to 50 years for attempted rape and 30 years for burglary. On appeal he argues: (1) that his fingerprints were illegally seized; (2) that the court erred in allowing the state to enumerate his prior felonies; and, (3) that the state was allowed to appeal to the passion and prejudice of the jury in closing argument. We do not agree with any of the points urged for reversal.
Appellant was being held on an unrelated charge when his fingerprints were taken for use in comparison to prints which had been found at the scene of an attempted rape and burglary. As a result of a “suspicion” that appellant may have been the party involved in the attempted rape and burglary, the police department took the fingerprints here in question. These prints turned out to be the link connecting appellant to the crime for which he was convicted and which is the subject of this appeal.
During the course of the trial the appellant elected to testify in his own behalf. On direct testimony he admitted that he was a convicted felon. On cross-examination the state, over appellant’s strenuous objection, was allowed to ask him if he had been convicted of nine felonies. The court required him to answer. He responded that he had. In closing argument the state, while arguing to the jury, stated, “We can’t continue in this community or any community to have these people commit crimes...” Counsel for appellant interrupted and objected to this argument. A motion for a mistrial was denied.
Appellant’s first argument relates to the taking of the fingerprints while he was in custody on an unrelated charge. We agree with appellant’s argument that fingerprints are protected by the Fourth Amendment and are subject to the provisions of the amendment. We abide by the holding in Wong Sun v. United States, 371 U.S. 471 (1963), subsequently followed by us in Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). In Scroggins, we held that it was the state’s burden to prove that the motel room which had been searched without a warrant was not subject to constitutional protection. We also held that the Fourth Amendment prohibited warrantless seizures of persons as well as prop erty and cited as authority therefor the case of Davis v. Mississippi, 394 U.S. 721 (1969). Our exact language on this subject in Scroggins was:
... it is elementary that the State must prove that a warrantless intrusion, in this case an arrest, was not in violation of the fourth amendment.
We do not have an illegal intrusion or seizure in the case before us. The appellant was legally in custody of the state and the giving of the fingerprints is a routine matter which is within the discretion of the police department. It is not illegal for an officer to have a suspicion, and the fact that the appellant was not an actual suspect at this time has no relationship to the allowable investigative procedures employed by police officials. Had appellant been picked up solely on suspicion, without probable cause, and his fingerprints taken, then we would have a different situation. See Davis v. Mississippi, supra.
The second argument for reversal is that the trial court erred in allowing the state to ask about several prior felony convictions. In this case the appellant took the stand and upon direct questioning admitted that he had been convicted of a felony. On cross-examination the trial court allowed the state to ask if he had not “been convicted of nine previous felonies.” Appellant argues that when he took the stand and admitted he had been convicted of a felony he had been impeached and the state should not be allowed to further impeach him. This argument is based upon Uniform Rules of Evidence, Rule 609. This rule has been considered by this court and the Court of Appeals many times. The wording of the statute is of no help in deciding whether the intention was to allow more than one conviction. The case of Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981) dealt with Rule 609 (a). In Jones we stated:
The Uniform Rule is specifically directed to the conviction’s probative value with respect only to credibility, because under both our common law and the Uniform Rules proof of an earlier crime is not admissible merely to bolster the prosecution’s case by show ing that the accused is a person of bad character, addicted to crime.
The rule grants the trial court discretionary power to determine whether the probative value of admitting evidence of a prior felony outweighs the prejudicial effect on an accused or a witness. We applied the provisions of the rule in Jones when we stated:
On the facts of this case the prejudicial effect of the previous conviction clearly outweighed its value as bearing on credibility. There may be instances in which proof of an earlier conviction for the same crime as that on trial may be admissible, but there are sometimes strong reasons for excluding such proof because of the pressure on lay jurors to believe that “if he did it before he probably did so this time.” [Cite omitted.] That is especially true in the case at bar, because sexual abuse of a child is a particularly shameful and outrageous crime.
In Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982), we were concerned with whether the crimes introduced at the trial were within the 10-year limitation of Rule 609. Appellant there did not question the introduction of multiple convictions. In Jones v. State, supra, the question was whether an earlier conviction could be considered under the discretionary powers of the trial court. The Court of Appeals considered this question in Williams v: State, 6 Ark. App. 410, 644 S.W.2d 608 (1982), and stated, we think correctly, that the probative value must be weighed against prejudicial effect on a case by case basis. We stated in both Jones and Smith that the probative value must be weighed against the prejudicial effect when evidence of prior convictions is admitted. We still hold this to be the rule. Only one prior conviction was considered in the case of Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978). We see nothing wrong with the holding in Campbell that the fact of conviction impaired the witness’s credibility. The state there did not go into the nature of the evidence surrounding the conviction for the prior crime. To have gone into the details of prior convictions would be to defeat both the purpose and plain wording of Rule 609. The state asked the appellant only one question: “How many felonies have you been convicted of?” The question in this form is not impermissible but would be better stated in words such as: “Were you convicted of the crime of burglary on a certain date?” The same question could have then been asked of each of the prior convictions. In this manner the j ury would be made aware of the number and nature of prior convictions while impermissible details remained undisclosed.
Appellant took the stand and admitted he had been convicted of a felony. He then insisted that he had been impeached. To allow either party to head off the testimony of the other in such a manner would not be in keeping with the standard of fairness with which a trial should be conducted. We do not believe that Rule 607 was intended to allow either party to prevent the other party from testing the credibility of a party or witness in such a manner. Therefore, we hold that when an accused, or a witness, takes the stand he may be asked on cross-examination how many times he has been convicted, within the applicable restrictions set forth under Rule 609.
Finally, appellant argues the state was improperly allowed to appeal to the passion and prejudice of the jury when the state’s attorney stated in closing argument: “We can’t continue in this community or any community to have these people commit crimes ...” Appellant objected to the statement and moved for a mistrial which was denied. The court stated to the jury: “The jury is well aware of what offenses the defendant has been charged with;” It is appellant’s contention that the statement by the state tended to focus the jury’s, attention to crime in general in the community. This may be true. However, this interpretation strains the plain wording of the statement. We are not able to see any prejudice to the appellant especially since the court issued an admonition to the jury. Appellant is correct when he says that the fundamental rules of trial practice as related to closing arguments must be confined to the question in issue and the evidence and reasonable inferences deducible therefrom which have been presented during the course of the trial. Simmons & Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961). Likewise, we agree with appellant that the state’s attorney acts in a quasi-judicial capacity and it is his duty to use fair, honorable, reasonable and lawful means to secure a conviction in a fair and impartial trial. We cannot see in this remark by the state’s attorney any improper inducement or conduct on the part of the prosecutor to secure an unfair trial against the appellant. Before a mistrial is granted it must appear that justice cannot be served by continuation of the trial. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). We would hardly expect the state to argue in favor of the appellant in its closing argument. Under the circumstances in this case we do not find the incident to have resulted in prejudicial error.
Affirmed. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Pope 'County for selling intoxicating liquors on or about the 20th day of February, 1930, and as a punishment for the crime was adjudged to serve a term of one year in the State Penitentiary.
From the judgment of conviction an appeal has been prosecuted to this court.
Appellant assigns as reversible error the insufficiency of the evidence to support the verdict and judgment.
Harvey Morgan and Gfuy Poynter, witnesses for the State, each testified to having purchased whiskey from appellant early in the year 1930. Other witnesses for the State testified to circumstances tending to show that appellant was engaged in the liquor selling business and had been for some time. It developed during the cross-examination of Morgan and Poynter that each had been inmates of the State Hospital for Nervous Diseases. It is argued on this account that their testimony was incompetent, and, when excluded from consideration, there is no other substantial testimony to support the verdict and judgment. Appellant did not object to the testimony nor move to exclude same from the consideration of the jury for incompetency. It is too late on appeal to' raise that question. In view of the fact that their positive testimony stands in the record unobjected to, it is unnecessary to determine whether the other incriminating circumstances are, standing alone, sufficient to sustain the verdict and judgment.
Appellant also1 assigns as reversible error the giving of instruction number 9 by the trial court, which is as follows:
“I am stating further to the jury that the defendant in this case may be convicted on any sale of liquor that you may find him guilty of that occurred within three years before the filing of this indictment. And upon the particular contention of the State that he sold liquor on a certain date to Harvey Morgan the defendant on that occasion contends that he was not here, and that he relies upon what is termed in law as an alibi, that is, that he was not at the place where the witness contends the liquor was sold—that he was away from home. He has introduced his own testimony and the testimony of other witnesses have been heard by you, and it is for you to say upon that particular charge whether or not he was at home. The burden is upon the defendant to show the truthfulness of his alibi by a preponderance of the testimony. If, however, the evidence upon the question of his alibi in that particular case, taken together with all of the other evidence, facts and circumstances in the whole case, convinces you beyond a reasonable doubt, the defendant is entitled to the benefit of the reasonable doubt.”
It is argued that the last paragraph in the instruction conflicts with the paragraph just above it. We see no conflict in the two paragraphs. The two paragraphs, when read together, mean that, although the burden rests upon a defendant to show the truthfulness of an alibi by a preponderance of the testimony, yet it would be the duty of the jury to acquit him if the evidence on the question of the alibi, taken together with all the other evidence in the case, created in their minds a reasonable doubt as to the guilt of appellant. The paragraphs are entirely harmonious. Appellant cites the case of Wells v. State, 102 Ark. 627, 145 S. W. 531, in support of his contention that the two paragraphs are in conflict. In that case the court ruled that two' instructions were in conflict because one of them told the jury that unless they found from the evidence that appellant had established an alibi it was their duty to convict him, whereas the other said that, if the proof on that subject was sufficient to raise in the minds of the jury a reasonable doubt as to guilt, then it was their duty to acquit. The court did not tell the jury in the instant case, as it did in the Wells case, to convict appellant unless they found from the evidence that he had established an alibi. The effect of the Wells case was to approve the instruction given in the instant case which was objected to.
No error appearing, the judgment is affirmed. | [
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CLIFF HOOFMAN, Judge.
11 After a jury trial, appellant, Kendell Clifton Nickelson, was convicted of aggravated robbery and theft of property, for which he was sentenced to a total of ninety years’ imprisonment. On appeal, Nickel-son argues that the trial court erred by (1) denying his motions for directed verdict on all charges; (2) failing to instruct the jury on robbery, a lesser-ineluded offense of aggravated robbery; and (3) failing to grant a mistrial when the prosecutor made improper remarks during closing argument. We affirm.
At trial, Crossett Sheriff David Johnson testified that shortly after 9 a.m. on July 1, 2010, his office received a 911 call reporting shots fired in the Crossett area. Minutes later, there was a second 911 call reporting an armed robbery at the First National Bank of Crossett (FNBC). The report about shots being fired turned out to be a murder, and the victim, Donna Woodberry, had been shot in the head. It was later discovered that Woodberry’s vehicle had been used in the robbery and that it had been left running at a church parking lot near FNBC.
Three suspects were identified after an investigation, and arrest warrants were issued for the suspects, including Nickelson. Approximately two weeks after the robbery, Nickelson turned himself in to the Fort Bend County, Texas Sheriffs Department. On his way back to Arkansas, Nick-elson was interviewed by Arkansas State Police Special Agents Scott Russell and Scott Woodard, as well as FBI Detective Chad Coulter. A recording of this interview was admitted into evidence and played for the jury, wherein Nickelson admitted participating in the aggravated robbery.
Nickelson explained in his statement that he had driven to Crossett from Shreveport, Louisiana, a couple of days prior to the robbery with Peter Harvey, an acquaintance who had offered him employment in his adult-entertainment-related businesses. Nickelson stated that they were allegedly going to pick up women in Crossett and bring them back to Shreveport to work in Harvey’s strip club. When they arrived in Crossett, Nickelson stated that they went to the home of Adrianna Green, who was a friend of Harvey. The next day, the three of them drove around town in Nickelson’s Cadillac Escalade, and Nickelson indicated that Harvey and Green were scouting out different banks that' would be easiest to rob, as well as getaway routes. According to Nickelson, he did not take them seriously at that time. They also went to Wal-Mart to buy groceries and to a sporting-goods store to purchase dark, long-sleeved shirts that were later used in the robbery. Nickelson spent the night at a motel that evening and drove back to Green’s house early the next morning. While Nickelson and Harvey waited outside in Nickelson’s vehicle, Green went inside Wal-Mart, where she purchased a list of items, including paintball masks, a gas can, zipties, and a stopwatch. According to Nickelson, the gas can was going to be used to set an explosion as a diversion while they robbed the bank, although they did not end up using it.
After purchasing the items, Nickelson stated that they dropped Green off at her home, then drove down the street to a nearby house, where Harvey instructed him to let him out and that he would meet him at his motel room. Nickelson said that it was his understanding that this was where the woman who they were going to bring back to Shreveport lived. Approximately twenty minutes later, Nickelson stated that Harvey met him at the motel driving a gold sedan and told him to follow him. Nickelson followed him to a church parking lot, where Harvey informed him that they were going to commit the robbery at that time and gave him a mask, a shirt, and gloves to wear. According to Nickelson, Harvey showed him his gun and told him that he was either going to do it or he would make him do it. Nickelson stated that he had been aware that Harvey carried a gun ever since they left Shreveport, because he had seen it tucked into Harvey’s pants whenever he got out of the car. The two men then drove to FNBC in the gold sedan and went inside the bank. Nickelson walked in first and went straight to a teller who was handling stacks of money. He stated that the teller was fighting him as he tried to get the money and that he hit her a couple of times in the face with his fist. Harvey was holding a gun to the head of another person in the bank while Nickelson collected the money, and they then left the bank and drove back to the nearby parking lot where Nickelson had left his Escalade running.
As Nickelson and Harvey drove out of town in the Escalade, leaving the gold sedan behind, Nickelson stated that Harvey kept his gun in his lap as a threat. When they had to stop at a convenience store for directions, Nickelson claimed that Harvey used a ziptie to bind his hands to the steering wheel so that he could not escape. They drove back to Louisiana, where Nickelson dropped Harvey off at his house. He stated that Harvey gave him $3000 and that he then went to visit his girlfriend and some family members. According to Nickelson, he did not find out about Woodberry’s murder until his family called him and told him that he was wanted for capital murder. Nickelson fled to Texas, where he eventually turned himself in. In his interview, he admitted that he had been part of the plan to rob the bank but claimed that he “punked out at the last minute” and that Harvey had forced him to do it.
Winnie Sue Smith, the FNBC bank manager, testified that on the morning of July 1, 2010, two masked men entered the bank and proceeded to rob it. Smith stated that the first male, who was noticeably smaller than the second male, went immediately to the teller area, where $20,000 in cash was sitting out until it could be placed in the ATM machine. The second male, who came in directly behind the other male and was armed with a gun, ran to her and the bank customer with whom she had been talking, Mike Carter, ordering them at gunpoint to lie face-down on the floor. Smith stated that the men stole $19,520 from the bank.
Mike Carter testified that, before he lay down on the floor, he witnessed the smaller man, Nickelson, run over to the teller area and start beating Kim Edwards, an FNBC bank teller. The larger man, Harvey, then put the gun to Carter’s head and yelled at him to get all the way down. After several minutes, Harvey yelled to Nickelson, “Let’s go, let’s go, let’s go,” and both men ran out the front door and drove off in a gold car. Carter stated that he was able to get the license number of the car before it drove away.
Edwards testified that she was preparing to stock the ATM machine that morning when she saw out the window two individuals wearing masks that were running toward the front door of the bank. She attempted to move the money out of sight underneath the counter but Nickel-son then came around the corner and hit her in the face with his fist, knocking her into her workspace. Edwards tried to push him away but Nickelson continued to hit her in the face. When she finally pushed him away and saw him picking up the money from the floor, he said, “Where is the rest of the money, bitch? Bitch, where is the rest of the money?” She stated that the men left after Harvey yelled at Nickelson, “Come on, let’s go, let’s go” and that she immediately called 911. Edwards testified that she had to have two surgeries to repair her broken nose.
Brandon Bryant, the loss-prevention manager of the Crossett Wal-Mart, testified that he was able to identify through their computer system the receipts from purchases of Nickelson, Harvey, and Green. A receipt from July 1, 2010, at around 7:30 a.m., showed purchases of two paintball masks, a gas can, cable ties, and a stopwatch that then led investigators to a particular segment of the security film where they were able to identify Green as the person who had purchased the items. The video also showed Nickelson’s Cadillac Escalade in the parking lot at the same time that Green was in the store.
Shelby Hughes, a criminal investigator with the Crossett Police Department, testified that he interviewed Green and obtained information through which Harvey and Nickelson became suspects in the bank robbery. He also obtained a second video from Wal-Mart from June 30, 2010, which showed all three suspects at the checkout line with groceries. After Green’s home was searched, a Wal-Mart bag was found containing the packaging of the paintball masks and the stopwatch, along with the receipt for all of the items purchased the morning of July 1.
Based on this information, an arrest warrant was issued for Nickelson on July 9, 2010, and he was initially charged with capital murder, kidnapping, aggravated robbery, and theft of property. The criminal information was later amended prior to trial to reduce the charges to first-degree murder, aggravated robbery, and theft of property. At the conclusion of the State’s case, Nickelson made motions for directed verdict on the first-degree murder and aggravated-robbery charges, which were denied by the trial court. These motions were renewed on the same bases at the conclusion of all of the evidence and were again denied by the trial court. Subsequent to deliberations, the jury deadlocked on the first-degree murder charge and a mistrial was declared on that count, which was later nol-prossed by the State. The jury found Nickelson guilty of aggravated robbery, for which he was sentenced to sixty years’ imprisonment, and theft of property, for which he received a thirty-year sentence. The jury recommended that the sentences run consecutively, for a total of ninety years’ imprisonment, and the trial court accepted that recommendation. A judgment and commitment order was entered on August 5, 2011, and Nick-elson timely appealed from this order.
On appeal, Nickelson first argues that the trial court erred in denying his motions for directed verdict on all of the charges. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 2010 Ark.App. 759, 2010 WL 4523758. On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The jury is free to believe all or part of a witness’s testimony, and this court does not weigh the credibility of witnesses on appeal, as that is a job for the fact-finder. Young v. State, 371 Ark. 393, 266 S.W.3d 744 (2007).
As charged by the State in this case, a person commits the offense of aggravated robbery if he commits robbery and is armed with a deadly weapon or represents by word or conduct that he is armed with a deadly weapon. Ark.Code Ann. § 5-12-103(a)(l)-(2) (Repl.2006). A person commits a robbery if, with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs physical force upon another person. Ark. Code Ann. § 5-12-102 (Repl.2006). “Theft of property” occurs when a person knowingly takes or exercises unauthorized control over the property of another person with the purpose of depriving the owner of the property and is a Class B felony when the value of the property |sis $2500 or more. Ark.Code Ann. § 5-36-106(a)(l), (b)(1)(A) (Repl.2006).
Pointing to his statement to police that he was coerced into committing the robbery of FNBC by Harvey’s threats, Nickelson contends that the evidence was insufficient to support his convictions for aggravated robbery and theft of property because he did not willingly or purposefully participate in the bank robbery and because the State failed to prove that he acted as an accomplice of Harvey. As the State asserts, Nickelson’s challenge to the sufficiency of the evidence supporting his theft-of-property conviction is not preserved for appellate review, as he failed to make a direeted-verdict motion regarding this particular charge. See Ark. R.Crim. P. 33.1(c) (2011) (stating that the failure to make a specific and timely motion for directed verdict or dismissal constitutes a waiver of any challenge to the sufficiency of the evidence regarding that offense on appeal); Young, supra. He did, however, address the aggravated-robbery charge in his directed-verdiet motions, and thus, his argument relating to this conviction is preserved for our review.
The jury was instructed on accomplice liability in accordance with AMI Crim.2d 401 as follows:
An accomplice is one who directly participates in the commission of an offense, or with the purpose of promoting or facilitating the commission of the offense: Solicits, advises, encourages or coerces the other person to commit the offense; or Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense.
Because Nickelson claimed that he did not willingly participate in the commission of the robbery, the jury was also instructed on the affirmative defense of duress, which stated that “he engaged in the conduct charged because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person that an individual of ordinary firmness in [Nickelson’s] situation would not have resisted.” AMI Crim.2d 606.
Due to his claim that he was under duress by Harvey, Nickelson argues that the jury was left to speculation and conjecture in determining his guilt on the aggravated-robbery charge. We disagree and find substantial evidence existed to support the jury’s decision to convict Nickelson of this offense. According to Nickelson’s own statement to police, he participated in the planning of the aggravated robbery by driving Green and Harvey around town on the day prior to the robbery in order to case possible bank targets, scout out the best routes out of town, and buy clothing intended to be worn during the robbery. The morning of the robbery, Nickelson stated that he drove back to Green’s house and took them to Wal-Mart, where Green purchased the paintball masks, zipties, gas can, and a stopwatch. Further, after dropping Green off at her house, Nickelson agreed to meet Harvey at the motel, then followed him to the church parking lot, where they got into the victim’s car that was used in the robbery. Nickelson also indicated that he was aware that Harvey carried a gun in his pants prior to the robbery. Therefore, by his own admission, there was sufficient evidence to find that Nickelson acted as an accomplice by participating in the planning of the bank robbery.
While Nickelson claims that he thought the prior planning for the robbery was simply idle talk by Harvey and Green, that he “punked out” when Harvey told him that they were actually about to commit the crime, and that he only followed through with it because Harvey threatened him with the gun, the jury chose not to believe this testimony, which it was entitled to do as the fact-finder, and we do not reverse on matters of credibility. Young, supra. Further, Nickelson admitted that Harvey did not actually point the gun at him but merely showed it to him, and the testimony of the eyewitnesses to the crime established that Nickelson immediately started beating the bank teller in the face when he entered FNBC and that he yelled, “Where is the money, bitch,” before stealing almost $20,000. While it is undisputed that Nickelson himself was not armed during the bank robbery, there was substantial evidence that he directly participated in and was an accomplice to the crime, and we affirm his convictions for both aggravated robbery and theft of property.
Nickelson also contends that the trial court erred when it denied his motion for a directed verdict on the first-degree murder charge, thereby allowing the prosecution to overcharge, and the jury to over-sentence, him. He argues that, because he was over-charged by the prosecutor, the jury was prejudiced and reached its verdict out of anger or compromise. We are unable to address this argument, however, because in order to appeal the denial of a direeted-verdict motion, the motion must challenge the crime for which the defendant was actually convicted. Ashley v. State, 358 Ark. 414, 191 S.W.3d 520 (2004). Here, the jury could not reach a unanimous verdict on the first-degree murder charge, and a mistrial was declared as to this offense; thus, even if this court were to determine that the trial court erred in denying the directed-verdict motion on this charge, Nickelson cannot demonstrate prejudice, as any possible error would be rendered harmless by the jury’s verdict. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996); Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). We therefore decline to review Nickelson’s challenge to the sufficiency of the evidence supporting the first-degree murder charge.
In his second point on appeal, Nickelson contends that the trial court erred by failing to instruct the jury on simple robbery, which is a lesser-included offense of aggravated robbery. As Nickel-son asserts, it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). Thus, we will affirm the trial court’s decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Id. Generally, a robbery instruction is required when the defendant is charged with aggravated robbery. Id. There is an exception to this rule, however, when the evidence is so conclusive as to show that only aggravated robbery could have taken place. Id.
Here, when Nickelson requested that the trial court give his proffered instruction on robbery, the State argued, and the trial court agreed, that there was no basis for giving the lesser-included offense in this case because there was no dispute that Harvey, Nickelson’s accomplice, possessed a gun during the bank robbery and that Nickelson was aware of this weapon. Nickelson claims, however, that there was insufficient proof presented by the State that he was an accomplice of Harvey, as he was under duress and did not willingly act as one. He asserts that the jury could thus have concluded that his actions toward the teller and his acceptance of some of the robbery proceeds could have made him guilty of only simple 1 i2robbery and theft of property.
We disagree with Nickelson’s argument on this point. The jury instruction on accomplice liability, as well as the instruction on the affirmative defense of duress, applied to all of the crimes charged. Nickelson’s theory of the ease was that he was not criminally responsible for the commission of any of these crimes because he was under duress and did not act willingly as Harvey’s accomplice. Where the defendant essentially argues that he did not commit any offense at all, there is no rational basis for the giving of lesser-included offenses. Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986); Nichols v. State, 69 Ark.App. 212, 11 S.W.3d 19 (2000). Likewise, where it is indisputable, as it was in the present case, that an armed robbery took place, it is not error for the trial court to refuse to give a lesser-included instruction on robbery. Young v. State, 283 Ark. 485, 678 S.W.2d 329 (1984). We therefore affirm on this point.
In Nickelson’s third and final point on appeal, he argues that the trial court erred by failing to grant a mistrial when the prosecutor made the following allegedly improper remarks during the State’s closing argument:
Some folks do what they want to do, they’re just not going to learn. They are going to do what they want to do. It’s about me. I need the money to pay these old fines and his back support for these children I dearly love. I need the money. Well, it’s not about you. It’s about the rest of us. Anyone else who might have the idea....
Nickelson then objected, arguing that the State was telling the jury to send a message with its verdict and that this was inappropriate. The State responded that general deterrence is an accepted argument, and the trial court overruled the objection, warning the State not to go further than general deterrence. The State continued its argument, requesting that the jury send a message to potential bank robbers by its verdict. Nickelson failed to object further or to ask for an admonition to the jury or a mistrial.
Nickelson contends on appeal that the trial court abused its discretion by not granting a mistrial. As the State asserts, however, he cannot now complain about this alleged error when he did not request a mistrial from the trial court. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982). A trial court is generally under no duty to sua sponte declare a mistrial. Floyd, swpra. Moreover, 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. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). A trial court is granted wide discretion in controlling trial counsel during closing arguments, and its ruling on an objection during closing argument, as well as its decision on whether to grant a mistrial, will not be reversed absent an abuse of discretion. Id.
While Nickelson recognizes his failure to request further relief, he argues that the trial court should have intervened and declared a mistrial on its own motion to correct what he deems was a serious error by allowing the State to make a
“golden rule” argument. Nickelson points to the exceptions to the requirement of a contemporaneous objection at the trial level that are set forth in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), one of which requires the trial court to intervene on its own motion to correct a serious error. No such serious error occurred during closing argument in this case, however. Nickelson is correct that “golden rule” arguments, which suggest to jurors that they place themselves in the position of a party or victim, have been held to be impermissible. See, e.g., King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). However, the statement made by the State here in its closing argument was not in fact a “golden rule” argument. Instead, as the trial court recognized, it was one of general deterrence, which is typically allowed, as the primary purpose of our sentencing statutes is to deter criminal conduct and foster respect for the law. See, e.g., Lee v. State, supra; Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). Contrary to Nickelson’s assertion, these “send a message” arguments have not been found to improperly appeal to jurors’ passions and are not reversible error. Lee, supra; Muldrew v. State, 331 Ark. 519, 963 S.W.2d 580 (1998). Therefore, the trial court did not abuse its discretion in overruling Nickelson’s objection during closing argument, and there was no serious error that required the trial court to intervene sua sponte and declare a mistrial.
Affirmed.
GLOVER and ABRAMSON, JJ., agree.
. The 2011 amendment rewrote much of this statute; however, the theft offense in this case occurred prior to the amendment and is subject to the version of the statute in effect at that time. | [
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WAYMOND M. BROWN, Judge.
| jThis case arises from a multi-vehicle accident in Greene County, Arkansas. The four appellees, who occupied one vehicle, sued two other motorists, appellants Bobbie Bruce and Ronnie Rice, for negligence, alleging that Bruce, Rice, and Rice’s employer, appellant Boyd Brothers Transportation Co., were responsible for appellees’ damages. Following a trial, the jury found no negligence on the part of Boyd Brothers and Rice and assigned 100% of the fault to Bruce. However, the jury awarded no damages to appellees. Appellees moved for a new trial on grounds that the verdict was too small and clearly against the preponderance of the evidence. The circuit court granted a new trial and appellants appeal from that order. We affirm.
|20n December 31, 2003, appellee Floyd Hancock was driving a Ford SUV with three passengers — his wife, appellee Marlene Hancock; his sister, appellee Patricia Runyan; and his nephew, appellee Wesley Runyan. The SUV was third in a line of northbound cars crossing the Cache River bridge on a two-lane highway. Just beyond the bridge, the first car in line stopped to turn left, awaiting the passage of oncoming traffic. The second car also stopped as did appellees’ SUV. The next vehicle in line, although there is some dispute as to this, was a red van occupied by a Mr. and Mrs. Jarrett, and it apparently came to a stop as well. Behind the stopped vehicles were a blue van driven by appellant Bobbie Bruce, and an eighteen-wheel log truck driven by appellant Ronnie Rice for Boyd Brothers Transportation Co. The Bruce and Rice vehicles did not stop in time and crashed into the line of cars.
The only detailed descriptions of the accident came from Bruce and Rice. Bruce testified that she never saw the Jarretts’ van and that she was behind appellees’ SUV at all pertinent times. She said that, when she was approximately two car lengths from appellees, she noticed that their vehicle had stopped, although she did not see any tail lights. Bruce stated that she slammed on her brakes and was immediately hit by Rice, who was tailgating her. She explained that Rice’s truck hit her once, causing her to collide with appellees’ SUV, then hit her again and knocked her into the bridge railing.
Rice gave a different account of the accident. He said that his vision was partially obscured by a line of trees as he rounded a curve heading for the bridge. According to him, he was approximately 100 feet away from the line of cars when he saw the Bruce vehicle | ¡¡crash into the rear of the Jarretts’ van, which was stopped behind appellees’ SUV. Rice testified that he hit his brakes and, once the oncoming lane was clear, steered his truck there in an attempt to avoid the accident. In doing so, Rice said, he clipped the rear of Bruce’s van with his right front fender, causing Bruce’s van to spin and the Jar-retts’ van to become airborne and go over the bridge railing. Rice denied tailgating Bruce and said that he would not merely have clipped the back corner of her van if he had been following her that closely. He blamed Bruce for causing the accident.
Appellees were unaware of what was happening behind them. They testified that they felt one or two slight bumps, followed by a much larger impact. Trooper Charles Rowe, who investigated the accident, testified that conditions were clear and dry and that appellees’ vehicle sustained significant damage in the rear. Rowe provided photographs of the scene, which showed that Bruce’s vehicle had come to rest with its back end against the back of appellees’ SUV; that the Jarretts’ van was in the ravine beside the bridge railing; and that there was damage to the front right fender of Rice’s truck.
Immediately following the accident, Marlene Hancock’s brother, Keith Blassin-gain, drove all of the appellees to the emergency room. Hospital personnel examined appellees and released them, but appellees later claimed that they developed various injuries. As a result, appellees brought this lawsuit against appellants. The parties tried the case to a jury in November 2007.
14At trial, witnesses testified to the events surrounding the accident, as set forth above. The parties also devoted considerable time to appellees’ claims for damages. The subject arose first during opening statements, where the Hancocks’ counsel asked the jury to award at least $250,000 and the Runyans’ counsel requested a lesser amount. The attorney for Rice and Boyd Brothers did not dismiss the likelihood of a damage award, stating that the Hancocks were “likely entitled to compensation, based on the damages that they can prove were caused by this accident” and that the Runyans were “obviously without fault” and “clearly entitled to compensation, once you determine who is responsible.”
During the presentation of evidence, Trooper Rowe testified that, according to his report, none of the appellees professed injury at the scene. Additionally, Ronnie Rice testified that he spoke to appellees at the scene and they indicated that they were fine. However, Keith Blassingain testified that, when he drove appellees to the emergency room, Floyd Hancock acted as though he was in “a lot of pain” and that Marlene Hancock was “very nervous and upset.”
Floyd testified that his lower back was burning and stinging when he arrived at the emergency room but that the doctors released him and told him that he was just sore. A day or two later, he said, he had back pain, swelling, trouble walking, and trouble getting out of bed. He returned to the emergency room, complaining of low back pain and tingling in his left thigh, and came home with crutches and Ibuprofen. Thereafter, Floyd stated, he suffered |fifrom back problems so severe that he could not keep up with his lawn care business or his rental properties, could not participate in his customary leisure activities, and often cried from the pain. His testimony was corroborated by Marlene and by a neighbor, Lisa Davies. Floyd subsequently underwent back surgery in March 2004 on the recommendation of Dr. Robert Abraham. Dr. Abraham testified that Floyd had a herniated disc, which most likely was caused by the accident. Floyd presented a claim for medical bills in the amount of $22,737.23.
Floyd acknowledged that fourteen months prior to the accident, he presented to another medical-care provider with low back pain and trouble walking, and that six months after the accident, he was in another car wreck. However, he stated that the prior back pain was treated, causing him no further problems, and that the latter accident caused pain that was different from what he experienced in the present accident. Marlene essentially corroborated Floyd’s testimony. Dr. Abraham, who had been unaware of Floyd’s prior back complaints, agreed that the records of those complaints reflected many of the same symptoms for which he treated Floyd after the accident. However, the doctor still opined that the accident was the likely cause of Floyd’s difficulties.
Marlene Hancock testified that she had chest tightness and shoulder pain after the accident and thought she was having a heart attack. She said that her blood pressure was elevated at the emergency room, which the records bore out, but that she was released. Marlene said that she later began experiencing pain in her right shoulder, for which she received massage therapy and chiropractic care. At trial, she testified that her right shoulder |fistill caused her pain, and she presented a claim for $6122.42 in medical bills and 82 hours in lost wages. Consistent with her claim, her January 2004 medical records showed complaints, of right shoulder pain. However, other medical records, from later in 2004, referenced her, left shoulder as the problem area.
Patricia Runyan testified that she had a mild tightness in her shoulders after the accident, for which she obtained muscle relaxers and Ibuprofen. She submitted a claim for $548.02 in medical bills and $478.29 in lost wages. Wesley Runyan testified that he injured his right hip in the crash and that he started hurting a few days after the accident. He said that he underwent physical therapy, then had a shot and felt better. Wesley testified that he missed time from work and had incurred approximately $5800 in medical bills.
During closing arguments, counsel for Bobbie Bruce stated, “There is no doubt that the Hancocks and the Runyans were injured. You can check that one off your list. You don’t need to figure out if they sustained damages. They have.” Counsel for Rice and Boyd Brothers disputed ap-pellees’ entitlement to the full amount of damages claimed but indicated that appel-lees might have sustained at least some injuries as a result of the accident.
After closing arguments and instructions, the court submitted the case to the jury on verdict interrogatories. Interrogatory # 1 asked jurors if they found, from a preponderance of the evidence, that “there was negligence upon the part of Bobbie Bruce which was a proximate cause of any damages.” The jurors answered “Yes.” Interrogatory #2 asked jurors if they found, from a preponderance of the evidence, that “there was negligence upon the |7part of Ronnie Rice, as employee of Boyd Brothers Transportation, which was a proximate cause of any damages.” The jurors answered “No.” In Interrogatory # 8, the jurors allotted 100% of the responsibility for the accident to Bruce. The last four interrogatories asked the jurors to “state the amount of damages which you find from a preponderance of the evidence were sustained by [each individual appel-lee] as the result of the occurrence.” On each interrogatory, the jurors answered zero dollars.
Following entry of judgment, appellees moved for a new trial, asserting that the amount of recovery was inadequate and that the verdict was clearly contrary to the preponderance of the evidence. Appellees argued that they undisputedly suffered at least some damages from the accident and that the jury’s finding that Bruce was solely at fault, while exonerating Rice, was at odds with the facts. The circuit court agreed and ordered a new trial “on both liability and damages.” Appellants brought this appeal.
The Arkansas Rules of Civil Procedure permit a circuit judge to order a new trial if there is an error in the assessment of the amount of recovery or if the jury’s verdict is clearly contrary to the preponderance of the evidence. Ark. R. Civ. P. 59(a)(5) and (6). When we review an order granting a new trial, our inquiry is whether the circuit court abused its discretion. Razorback Cab v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). The abuse of discretion must be “clear” or “manifest.” Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). A showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id. Abuse of discretion |smeans a discretion improvidently exercised, i.e., exercised thoughtlessly or without due consideration. Id.
Appellants argue that the circuit court should not have disturbed the jury’s verdict and that the court essentially substituted its view of the evidence for the jury’s. We note at the outset that appellants rely heavily on precedents involving the denial of a motion for a new trial. E.g., Dovers v. Stephenson Oil Co., 354 Ark. 695, 128 S.W.3d 805 (2003); Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997). Those cases employ a different standard of review, focusing on the sub-stantiality of the evidence in support of the jury’s verdict rather than on the circuit court’s exercise of discretion; as such, those cases do not provide authority in an appeal involving the grant of a new trial. See Hogan v. Holliday, 72 Ark.App. 67, 31 S.W.3d 875 (2000).
Having clarified our standard of review, we first address appellant Bruce’s argument that a new trial was not warranted because the jury could have found that appellees did not meet their burden of proving damages. It is true that the party asserting entitlement to damages has the burden of proving the claim. See generally Gen. Elec. Co. v. Gilbert, 76 Ark.App. 375, 65 S.W.3d 892 (2002). However, ap-pellees did not fail to meet that burden of proving damages, even if only a modest amount. If nothing else, their trip to the emergency room immediately following the accident was worthy of recompense by the responsible party or parties in this case. Moreover, appellees’ entitlement to some damages appeared to be a given considering appellants’ virtual concession in opening statements and closing arguments |9that appellees incurred some damages in the accident. Bruce’s counsel even went so far as to tell jurors that it was not necessary for them to deliberate the established fact of appellees’ injuries. A circuit court may consider concessions made in opening statements or closing arguments in deciding whether to grant a new trial. See generally Machost v. Simkins, 86 Ark. App. 47, 158 S.W.3d 726 (2004).
Bruce contends further that appellants successfully impeached appellees’ damage testimony. Bruce cites Marlene’s conflicting complaints of shoulder pain, Floyd’s pre-existing back problems and subsequent car accident, and Trooper Rowe’s statement that appellees did not claim injury at the scene. However, a plaintiffs lack of apparent injury at the scene does not prohibit a circuit court from setting aside a zero-dollar verdict, especially where the plaintiff sought medical evaluation and treatment soon after the accident. See Hogan, supra. Furthermore, while appellants might have discredited some of appellees’ damage claims, they did not discredit appellees’ entitlement to any damages. The contested issue at trial was the extent of appellees’ injuries rather than whether they had been injured at all. Under these circumstances, we cannot say that the circuit court manifestly abused its discretion in granting a new trial based on the lack of a damage award to appellees.
Bruce also argues that the jury may have determined that appellees were not injured by her negligence. However, regardless of the jury’s thinking on this point, the fact remains that the jury found that appellees sustained no damages as the result of the accident. As we have explained, the circuit court did not abuse its discretion in determining that an award of |inzero damages was an erroneous assessment under the circumstances of this case. See Tirado v. O’Hara, 70 Ark.App. 152, 15 S.W.3d 715 (2000) (affirming the grant of a new trial based on a fundamental error in the jury’s assessment of the plaintiffs damages).
Appellants Rice and Boyd Brothers argue that the circuit court should have upheld the jury’s verdict finding them not guilty of negligence. They cite Razorback Cab, supra, in which our supreme court reversed the grant of a new trial in a negligence case. Razorback Cab involved a plaintiff-bicyclist who was hit by a cab early one morning on a city street while it was still dark. There was evidence that the cyclist was wearing dark clothing, that his bicycle had no lights or visible rear reflectors, and that he simply could not be seen. In the cyclist’s suit against the cab company, the jury rendered a defendant’s verdict. The circuit court granted a new trial, stating that there was no evidence that the cab driver could not see the bicycle. Our supreme court reversed and held that the circuit court manifestly abused its discretion in substituting its view of the evidence for the jury’s. Razorback Cab is distinguishable from the present case. The circuit court’s exercise of discretion there was tainted by an utter disregard of the evidence, which could aptly be characterized as thoughtless or improvident. In the present case, the circuit court did not act thoughtlessly or improvidently. The court was faced with a situation in which two drivers failed to stop their vehicles in time to avoid the stationary cars in front of them. The court determined, after measured consideration, that the particular manner in which the jury rendered its verdict — apportioning all fault to one defendant while exonerating the other, followed by an Inaward of zero damages to plaintiffs who were not at fault — was clearly against the preponderance of the evidence. Given this set of circumstances, we cannot say that the circuit court abused its discretion in deciding to order a new trial. We therefore affirm the new trial order as to all parties. We hasten to add that our holding should not be taken as a comment on appellants’ negligence for purposes of re-trial. Our holding is that the abuse-of-discretion standard of review compels our affirmance in this case. See Honeycutt, supra; Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994).
Rice and Boyd Brothers also argue that appellees were not aggrieved by the jury’s verdict because appellees prevailed in their case against Bruce. We decline to hold that a zero-dollar verdict against one defendant alone constitutes “prevailing,” such that a plaintiff is deprived of standing to seek a new trial.
Based on the foregoing, we affirm the circuit court’s grant of a new trial.
Affirmed.
HART and GLADWIN, JJ., agree.
. Neither side presented testimony from an accident reconstructionist or from the Jar-retts.
. Property damage to the Hancock SUV was stipulated as $13,631.25. | [
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DAVID M. GLOVER, Judge.
| Appellant, Source Logistics, purchased a cargo-insurance policy and an unattended-truck/trailer endorsement from appel-lee, Lloyd’s of London. Thereafter, one of Source Logistics’ trailers was stolen from a warehouse parking lot. The trailer was later recovered by the police, with only a portion of the cargo missing; however, the owner refused to accept the remaining cargo because of the uncertainty of the food product’s safety after having been stolen. Source Logistics, therefore, submitted a claim to Lloyd’s for the cargo in the amount of $22,323.70. Lloyd’s denied the claim, basing its denial on the fact that the warehouse parking lot was not under constant surveillance and that Source Logistics did not lock and remove the keys from the stolen trailer. The case was presented to a jury, which returned a general verdict in favor of Lloyd’s. Source Logistics raises two points of appeal, challenging |?the trial court’s rulings on three jury instructions: 1) the trial court erred in giving jury instruction AMI Civ. 106A (Adverse Inference), and 2) the trial court erred in refusing to give proffered instructions AMI Civ. 2412(Contract Interpretation— General Rule — Ambiguity in Language) and AMI Civ. 2424 (Contract Interpretation — Construction Against One Who Drafted Contract). We affirm.
Standard of Review
In Williams v. First Unum Life Ins. Co., 358 Ark. 224, 229, 188 S.W.3d 908, 911 (2004), our supreme court explained:
We first address our standard of review. This court has consistently held that a party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. See, e.g., Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003). Moreover, this court will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id. Finally, we have said that it is not error for the trial court to refuse a proffered jury instruction, when the stated matter is correctly covered by other instructions. Id.
“A trial court abuses its discretion when it acts improvidently or arbitrarily in making a finding. See Bonds v. Lloyd, 259 Ark. 557, 535 S.W.2d 218 (1976). See generally Hogan v. Holliday, 72 Ark.App. 67, 31 S.W.3d 875 (2000), (holding that a trial court abuses its discretion by acting thoughtlessly and without due consideration).” Wal-Mart Stores, Inc. v. U.S. Fidelity & Guar. Co., 77 Ark.App. 217, 224, 76 S.W.3d 895, 900 (2002).
Factual History
Source Logistics, Inc., is a motor carrier located in Russellville, Arkansas. It transports frozen-food products from commercial warehouses to various prison facilities across the |scountry. Source Logistics purchased a truck-cargo insurance policy from Lloyd’s, which provided coverage for the period November 20, 2005, to November 20, 2006, and an unattended-truck/trailer endorsement.
Source Logistics purchased the unattended-truck/trailer endorsement because it routinely left several loaded trailers unattended at Commercial Distribution Center, a warehouse in Dallas, Texas. The trailer that was the subject of the insurance claim was left at this warehouse for loading on Friday, December 9, 2005. CDC employees loaded the trailer with cargo on Sunday morning, December 11, 2005, after which it was left unattended in accordance with a standing agreement between Source Logistics and CDC. Sometime during the night of December 11, or the early morning hours of December 12, the loaded Source Logistics trailer was stolen from the warehouse lot.
The parties stipulated that the cargo policy contained the following language:
INSURING AGREEMENT
In consideration of the premium paid hereon ... the Underwriters at Lloyds of London hereby agree to indemnify the insured, named in the Schedule, for all risks of physical loss or damage from an external cause to lawful cargo in, and, or on, a truck whilst in their care, custody or control in the ordinary course of transit, including loading and unloading .... This insurance being subject to all the provisions, exclusions, terms and conditions contained in the policy.
(Emphasis added.) In addition, the unattended-truck/trailer endorsement provided in pertinent part:
In consideration of the additional premium charged, it is hereby noted and agreed that, ... this policy is extended to include losses to cargo directly resulting from forcible and/or violent entry to unattended trucks, subject to such trucks having all their openings closed, securely locked and all keys removed. ...
|4No coverage is provided hereunder for loss of or damage to cargo in and/or on trailers or semi trailers which are de tached from power units, unless such trailers or semi trailers are
i) garaged in a building or
ii) parked in a fully enclosed yard which is securely closed and locked, or
iii) under constant surveillance, or
iv) on a guarded lot
AND
the trailer or semi trailer has all the openings closed and securely locked with keys removed and the period that the trailer or semi trailer is detached from the power unit does not exceed 72 consecutive hours (Sundays and holidays excluded) from the time of detachment from the covered truck or tractor.
(Emphasis added.) The italicized portions of the cargo policy and the endorsement are pertinent to the insurance claim asserted by Source Logistics and denied by Lloyd’s. Additional facts will be discussed as they pertain to each instruction.
The Giving of AMI Civ. 106A
For its first point of appeal, Source Logistics contends that the trial court abused its discretion in giving Jury Instruction AMI Civ. 106A, which provides:
Where relevant evidence is within the control of the party in whose interest it would naturally be to produce it, and that party fails to do so without satisfactory explanation, you may draw the inference that such evidence would have been unfavorable to that party.
The trial court restricted the use of the instruction to Source Logistics’ payroll records, which were not produced at trial. Source Logistics contends that its payroll information was not Irrelevant because it made no difference to the insurance claim whether or not it had a driver present during the loading of the trailer on Sunday morning. Lloyd’s counters that the instruction was appropriate because the un-produced payroll records were relevant to establish “care, custody, and control,” a condition precedent for coverage, and also because the payroll records went to the credibility of Tim Hill, Source Logistics’ president. We find no abuse of discretion in the trial court’s decision to give this instruction.
In Slaughter v. Capitol Supply Co., Inc., 2009 Ark. 221, 7, 306 S.W.3d 432, 436, our supreme court discussed AMI Civ. 106A:
We are cited to Saliba v. Saliba, 178 Ark. 250, 255-56, 11 S.W.2d 774, 776 (1928), where this court stated that an instruction similar to AMI 106A was proper where the defendant in a personal injury case arising from an automobile accident, who was driving the car, and who knew whether the injury was caused as alleged by putting the car in reverse, was present in court at the trial but did not testify. This court concluded in Saliba that the defendant’s testimony would not have been trivial or cumulative because the question was whether defendant’s car was put in reverse, and the defendant was the driver. Id. In Saliba, the plaintiff showed that the defendant had knowledge relevant to the cause and chose not to testify. La’Ronda conversely alleges that because Brenntag and Sherwood’s witnesses held positions of significant authority, they must have had significant knowledge. We note that Brenntag’s witness, its vice-president of production, and Sherwood’s witness, an in-house engineer, were deposed, and their depositions were introduced into evidence and read at trial. La’Ronda fails to show that the witnesses had knowledge beyond that revealed in their depositions. We also note that while La’Ronda argues that the “failure of a party present to testify at trial supports such an instruction,” neither witness she complains of was present at trial.
Instruction 106A provides that where relevant evidence is in the control of a party in whose natural interest it would be to produce it, and the party does not produce it, an inference may be found that the evidence was unfavorable. La’Ronda identifies no relevant evidence that was in the possession of the witnesses that they would have naturally been expected to produce that was not disclosed in their depositions. Rather, she asserts that the witnesses were beyond the subpoena power of the circuit court, and that, because the two witnesses were deposed before trial and did not appear at trial, an inference must arise that their cross-examination would have been unfavorable to appel-lees. No such inference arises under the | ^common law set out in Saliba, supra, or under AMI 106A. What gives rise to the inference is identified relevant evidence in the possession of a party in whose interest it is to produce it and who fails to do so without satisfactory explanation. Volunteer Transp., Inc. v. House, 357 Ark. 95, 101, 162 S.W.3d 456, 459 (2004); Cox v. Farrell, 292 Ark. 177, 182, 728 S.W.2d 954, 956 (1987). The circuit court did not abuse its discretion in refusing to instruct the jury on AMI 106A. See Williams v. First Unum Life Ins. Co., 358 Ark. 224, 188 S.W.3d 908 (2004).
(Emphasis added.) The “Note on Use” for AMI Civ. 106A provides: “This instruction should be used only after the court has made a determination that the evidence is sufficient to support such an inference.” The Slaughter case explains that there are three factors that give rise to the inference, making the instruction appropriate: 1) identified relevant evidence, 2) in the possession of a party in whose interest it is to produce it, 3) who fails to do so without satisfactory explanation.
Briefly, Source Logistics explains that Lloyd’s asked for only ten items in its February 14, 2006 reservation-of-rights letter, and that payroll records were not included; that during the September 2008 deposition of Tim Hill, he was asked by Lloyd’s if he could identify the driver who was on site during the Sunday morning loading of the truck/trailers; that Hill responded, “I should be able to”; and that in his subsequent trial testimony, Hill explained that, while he had thought that the payroll records would reveal the requested information, when he went back and looked through them, he could not determine specifically which driver was on site that morning. Source Logistics contends that under those circumstances, it was not proper for the jury to be able to draw a negative inference from the absence of the payroll records at trial.
|7As part of the AMI Civ. 106A discussion, the trial court asked, “My point is, if he was unable to determine whether the employee was present or not present from the payroll records, how then are the payroll records relevant to this instruction?” Lloyd’s responded that it was an issue of credibility for the jury. The court further stated: “I think you have to establish that the information was available in those records before we can go into the fact that there is an adverse [inference] that he didn’t bring those records in here today.” Lloyd’s attorney responded in part: “I know Mr. Hill is saying that T looked at the records and they are not helpful,’ but that’s the whole point. In order for that to be the end of the issue, the jury has to believe Mr. Hill. I believe that makes it a credibility issue for the jury to have to decide whether and how much weight to give his testimony now that it’s different than it was previously under oath.” Source Logistics’ attorney countered that that was why there was a credibility instruction and the jury could believe him or not. He also added that Lloyd’s adjusted the claim for six months and didn’t ask for those records.
The following colloquy then occurred:
[TRIAL Court]: The instruction says “when relevant evidence .... ” okay, I’m not going to dispute that it is relevant. It is within control of the party whose interest it would naturally be to produce it. Before it becomes relevant, I think you have to establish that this information is contained in those records.”
Attorney for Lloyd’s: I think the evidence goes both ways and I admit that it is not all in my favor, but it goes both ways and has changed, and what the jury has heard is that one answer was given during the deposition in September and a different answer is given now and they have an explanation for the change. A jury has to weigh that.
By the Court: What was the explanation?
| ^Attorney for Lloyd’s: That he went and looked at them and they weren’t available.
By the Court: I guess your argument is that it’s not satisfactory. Here’s what I’m going to do: with respect to the one issue on payroll records, I think a company would have the records in its office showing when an employee was on duty or not on duty at a particular point and time. With respect to the payroll records, I’m going to grant this instruction but you can only argue it with respect to that one issue. With respect to surveillance and logbooks, I’m going to deny the instruction.
(Emphasis added.)
In requesting this instruction, Lloyd’s relied upon the “care, custody, and control” language and argued its position that Source Logistics had not satisfied that prerequisite for coverage under the cargo policy. It is clear that the trial court wrestled with the three factors that would give rise to the inference provided in AMI 106A and concluded that the instruction was appropriate with respect to the payroll records. Lloyd’s convinced the trial court the payroll records were relevant to the position taken by it, even though Source Logistics did not regard them as relevant under its theory of the case. They were in Source Logistics’ possession and, in light of Lloyd’s’s contentions, it was in Source Logistics’ interest to produce the records and explain what the records did or did not show. With respect to the payroll records, the trial court did not accept as satisfactory Source Logistics’ explanation concerning the absence of those records. On this close question, we conclude that the trial court acted thoughtfully and with due consideration and that there was no abuse of discretion in allowing the instruction. We also note that even though Lloyd’s argued Tim Hill’s credibility as an alternative justification for giving the instruction, the trial court did not reach its decision on that basis.
\<flhe Refusal to Give AMI Civ. 2112 and 2121
For its remaining point of appeal, Source Logistics contends that the trial court abused its discretion in refusing to give the proffered instructions AMI Civ. 2412 (Contract Interpretation — General Rule — Ambiguity in Language) and 2424 (Contract Interpretation — Construction Against One Who Drafted Contract). The policy language at issue under this point is part of the unattended-truck/trailer endorsement, which required that the unattended trailer be 1) garaged in a building, 2) parked in an enclosed yard, 3) under constant surveillance, or 4) on a guarded lot; and that the trailer have all openings closed and securely locked with keys removed. Only the language involving “un der constant surveillance” and “securely locked with keys removed” is pertinent to this case. Source Logistics contends that this policy language is ambiguous and that the proffered instructions should have been given. Lloyd’s counters that this language is not ambiguous and the trial court was correct in refusing to give the proffered instructions. We find no basis for reversal.
The facts involved with each clause are essentially undisputed. Concerning the language “under constant surveillance,” Source Logistics had a lease agreement with Texas Video Security to provide video security and surveillance at the warehouse in question. According to Source Logistics, the agreement with Texas Video provided that it would provide security cameras, motion detectors, and monitoring service. The security system included three cameras, which were operational and recorded activity on the warehouse | inparking lot twenty-four hours a day, seven days a week. The surveillance video from the three security cameras was streamed 24/7 to a computer inside the Dallas warehouse, a computer at Texas Video Security, and a computer in the office of Source Logistics in Fort Worth, Texas. In addition, the Source Logistics manager could access the website and monitor the video feed from any location. Two motion sensors, monitoring both the north and south driveways, were part of the security system. If the motion-sensor beams were interrupted by a vehicle entering either driveway, one of the cameras was designed to automatically turn toward the area of the interrupted beam and focus on the source of the interruption. Moreover, a communication signal was automatically sent to Texas Video Security to alert them of the problem. Monitoring services were to be provided from 6 p.m. to 7 a.m. Mondays through Fridays, and twenty-four hours a day on Saturdays and Sundays, and the police were to be called and Source Logistics alerted of any unauthorized entries. On the night of the theft, Texas Video did not call or alert either the police or Source Logistics. Source Logistics took the position that their unattended trailers on the warehouse parking lot were “under constant surveillance” as a result of the described video security system and that this requirement for coverage was thereby satisfied. Lloyd’s disagreed.
Concerning the language, “securely locked with keys removed,” Source Logistics explained that the CDC warehouse employees loaded a trailer with cargo and then secured the trailer door by the use of a metal strip; the trailers were not secured with locks and keys.
Proffered AMI 24.12
The proffered instruction based on AMI 2412 provided:
^CONTRACT INTERPRETATION-GENERAL RULE-AMBIGUITY IN LANGUAGE
The parties dispute the meaning of the following language in their contract: UNATTENDED TRUCK ENDORSEMENT
No coverage is provided hereunder for loss or damage to cargo in a trailer which is detached from a power unit, unless:
a) garaged in a building; or
b) parked in a full enclosed yard which is securely closed and locked; or
c) the truck is under constant surveillance; or
d) on a guarded lot and
the trailer has all openings closed and securely locked with keys removed.
The parties also dispute the meaning of the following language in the insurance policy:
In consideration of the premium paid hereon ... the Underwriters at Lloyd’s of London hereby agree to indemnify the insured, named in the Schedule, for all risks of physical loss or damage from an external cause to lawful cargo in, and, or on, a truck whilst in their care, custody or control in the ordinary course of transit, including loading and unloading.... This insurance being subject to all the provisions, exclusions, terms and conditions contained in the policy.
It is your duty to interpret the contract to give effect to what the parties intended when they made their agreement. In determining the meaning of the language, you must take into consideration the language of the contract, the circumstances surrounding the making of the contract, the subject of the contract, the purpose of the contract, the situation and relation of the parties at the time the contract was made and the parties’ subsequent custom in the trade.
Proffered AMI 2121
The proffered instruction based on AMI 2424 provided:
^CONTRACT INTERPRETATION-CONSTRUCTION AGAINST ONE WHO DRAFTED CONTRACT
If you cannot decide the intention of the parties after considering the instructions that I have already given you concerning the interpretations of the ambiguous language in the insurance policy, then you should interpret the ambiguous language against the party who prepared the insurance policy.
The introduction to the AMI instructions concerning contract interpretation provides in pertinent part:
A jury should not be called upon to interpret a contract unless it contains an ambiguity. A provision in a contract is ambiguous when it is susceptible to two or more reasonable interpretations. If a provision of a contract is unambiguous, its construction is an issue of law for the trial court. However, if an ambiguity exists in the contract, the meaning of the ambiguous provision becomes an issue for the fact-finder. “The initial determination of the existence of an ambiguity in a contract rests with the trial court, and if an ambiguity exists, the meaning becomes a question of fact for the fact finder.” “Whether the language of the policy is ambiguous is a question of law to be resolved by the court.” Thus, the following instructions, with the exception of AMI 2123, should be given only when the court has made the initial determination of the existence of an ambiguity. AMI 2423 may be necessary in cases in which there is no alleged ambiguity. In addition, the use of these instructions should be tailored to the particular interpretation issue presented.
In Smith v. Prudential Property and Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000), the Supreme Court clarified the law regarding the interpretation of ambiguous contracts. The Court held that even when a contract is ambiguous, if the meaning of the ambiguity does not depend on disputed extrinsic evidence, the construction and legal effect of the contract remains a question of law. The Court expressly overruled Farm Bureau Mut. Ins. Co. v. Whitten, 51 Ark.App. 124, 911 S.W.2d 270 (1995), to the extent that Whitten held that when the terms of a written contract are ambiguous, its meaning is always a question of fact.
These instructions should not be given in cases involving the interpretation of ambiguous provisions of insurance contracts in which the insured had no opportunity to negotiate or change the terms of the contract, and the meaning of the ambiguity does not depend on disputed extrinsie evidence. The Arkansas Supreme Court and Court of Appeals have made it clear that in such cases, all ambiguities will be resolved in favor of the insured as a matter of law.
_jjjWhere ambiguity does depend on disputed extrinsic evidence, these instructions may be appropriate even pertaining to a contract of insurance.
(Emphasis added and selected citations omitted.) The “Note on Use” to AMI 2412 provides: “This instruction should be given only if the court has determined that the contract contains ambiguous language, and that the meaning of the ambiguous language depends upon disputed extrinsic evidence.”
During the discussion with the trial court regarding these two proffered instructions, Source Logistics argued that the following contract language was ambiguous: 1) constant surveillance, and 2) sealed locks. The trial court initially stated that “the policy says what it says, and with respect to locks, I don’t have a problem with ambiguity. But on the other part, I may have a problem under surveillance.” The colloquy continued:
ATTORNEY FOR Lloyd’s: I think the meaning is clear and unambiguous. The parties can argue whether the facts established the meaning or not.
By the Court: The way I understand it, if it is [susceptible] to two different meanings, it’s not how we surveil, okay? How his client got it done, you know, that’s a key issue in this case. But does surveillance mean two different things in this insurance agreement?
Attorney for Source Logistios: We say it does. He says I’ve got to have eyes on it twenty-four/seven and I say I’ve got to surveil it twenty-four/seven, I’ve got to have cameras on it. Does that mean cameras on it? Does it mean a person watching?
By the Court: That’s how you do it.
Attorney for Source Logistios: But that’s two different definitions of surveillance.
By the Court: I’m not going to grant 2424. I’m not going to give this instruction, so I guess I’m granting the defendant’s motion.
| ^Attorney for Source Logistics: Plaintiff proffers Instruction No. 1 [2412] and AMI 2424 and plaintiff proffers No. 2 [2424] and incorporate by reference my previous positions instead of stating it all over again.
Athough not as clear as we might hope, the above colloquy can be read to conclude that the trial court did not consider either of the challenged policy clauses to be ambiguous.
“Securely locked with keys removed”
We can quickly dispose of Source Logistics’ argument that the language, “securely locked with keys removed” is ambiguous because we agree with the trial court’s finding as a matter of law that this language is not ambiguous. Source Logistics acknowledges that neither locks nor keys were used to secure the loaded trailers, and the language is simply not susceptible to two or more reasonable interpretations under the circumstances of this case.
Moreover, Source Logistics’ argument that a separate document, dated February 3, 2006, and having a heading of “BISYS RISK MANAGEMENT SERVICES,” could somehow alter the policy language itself is simply not convincing. The doeu ment appears to be a questionnaire. The pertinent questions and responses concerning locks are: “Vehicle: cargo locks N/A door locks N/A sealed locks Yes.” It is upon these responses that Source Logistics relies to support its position that the endorsement language is ambiguous. We agree with Lloyd’s that the purpose and circumstances of this document were not made clear at trial, and the document was certainly not convincing to the trial court in reaching its decision concerning the asserted ambiguity of the endorsement language.
“Under constant surveillance”
| iSWe have more difficulty determining whether the trial court erred as a matter of law in deciding that the language, “under constant surveillance,” was not ambiguous. We hold that the trial court erred in this determination, but that the error was harmless. Under the terms of the endorsement, Source Logistics was only entitled to coverage if it satisfied both of the challenged requirements contained in the unattended-truck/trailer endorsement, ie., that the trailer was “under constant surveillance” AND that the “trailer has all the openings closed and securely locked with keys removed.” For the reasons previously discussed, we found no abuse of the trial court’s discretion in refusing to give the requested instructions concerning the “securely locked with keys removed” language. Consequently, even though we conclude that the trial court erred in holding that the “under constant surveillance” language was not ambiguous, the outcome would not change.
Affirmed.
ROBBINS and MARSHALL, JJ„ agree.
. By agreement of the parties, another instruction, which defined "care, custody, and control,” resolved the contention that the "care, custody, and control” language was ambiguous. | [
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DAVID M. GLOVER, Judge.
|! Elizabeth Johnson sustained an admittedly compensable neck injury on December 31, 2004, while working in retail sales for appellant Dillard’s, Inc. The injury occurred when a large metal display rack with a glass top that she and another employee were lifting slipped and fell on Johnson’s head. She was approximately forty-six years old at the time of the incident. She has received stipulated benefits related to the injury. In addition, however, she contended that she was entitled to a fifty-five percent whole-body anatomical-impairment rating, as opposed to the un-controverted ten percent; that she was permanently and totally disabled due to her compensable injury, or, alternatively, that she was entitled to wage-loss disability benefits; that her stroke and seizures, which started on |2June 29 or 30, 2006, were related to her compensable injury and resulting surgeries; and that she was entitled to psychiatric treatment related to her injury.
The ALJ denied appellee’s claims, finding that Johnson sustained an eleven-percent anatomical-impairment but that she was not entitled to any wage-loss disability benefits; that she did not prove her strokes and seizures were compensable consequences of her compensable injury; and that she did not prove psychiatric treatment was reasonably necessary. On appeal, the Commission reversed the ALJ’s decision.
Appellants, Dillard’s, Inc., and Fidelity & Guaranty Insurance Company, appeal from the Commission’s decision, which concluded that Johnson had proven 1) that she was entitled to a permanent impairment rating of twenty-six percent, including compensation for a seizure disorder and spinal stroke; 2) that psychiatric treatment was reasonably necessary in connection with her work-related injury; 3) that she was entitled to twenty-percent wage-loss-disability benefits; and 4) that appellee Second Injury Fund had no liability for the wage-loss-disability benefits award to Johnson. Johnson cross-appeals, contending that the Commission clearly erred in finding 1) that she sustained only a twenty-six percent anatomical impairment because she contends her impairment is greater than twenty-six percent to the body as a whole; 2) that she was entitled to only a twenty-percent wage-loss disability because she contends she was totally and permanently disabled; and 3) that the Second Injury Fund was not liable in this case. We affirm the Commission on direct appeal and on cross-appeal.
IsMedical Evidence
Elizabeth Johnson’s treatment was extended and extensive. She was treated in the emergency room on January 2, 2005, following the incident at work. Medical reports from that visit reported that she was positive for muscle spasms in her neck bilaterally and radiating down both arms with soreness of the left side and left arm in the triceps region; that her cervical spine x-ray showed degenerative changes with loss of disc height between C4 and C5; that there was no evidence of subluxation or malalignment in those areas; and that she was diagnosed with a cervical sprain and a scalp contusion. On April 27, 2005, she began treating with Dr. J. Michael Calhoun, a neurosurgeon, and a May 4, 2005 MRI of her cervical spine identified a prominent posterior osseous ridging with a moderate left paracentral-disc protrusion at C5-6 resulting in moderate to severe central-canal stenosis and prominent left anterolateral cord flattening as well as severe left foraminal narrowing; and a small left paracentral disc protrusion at C4-5 causing mild central-canal stenosis and mild left anterolateral cord flattening. Dr. Calhoun reported on that same day that Johnson’s MRI showed a large left C5-C6 disc herniation and that he thought her options were to try physical therapy again or surgery in the form of a C5-6 anterior cervical discectomy and fusion. On June 27, 2005, Dr. Calhoun performed a discec-tomy, foraminotomies, and arthrodesis at C5-6. The pre- and post-operative diagnosis was “Right C5-6 herniated nucleus pul-posus.” A secondary diagnosis was poorly controlled hypertension. Dr. Calhoun also reported that immediately after surgery, Johnson noticed difficulty with numbness and weakness primarily on her left side, and that she was |4significantly hypertensive “with blood pressures over 200 systolic,” which was controlled with medication.
On July 11, 2005, Dr. Calhoun reported to Dr. Michelle Ibsen that after surgery, Johnson “clearly has a myelopathy”; that she was hypertensive intra- and post-oper-atively; and that she “potentially could have suffered some cerebrovascular compromise of her spinal cord.”
On November 2, 2005, Johnson underwent a functional capacity evaluation, which concluded that “she did not put forth maximal effort on a consistent basis”; that the evaluation was therefore unreliable due to the inconsistencies noted within the report; and that overall, she demonstrated the ability to work at least at the “light” work category over the course of an eight-hour workday.
On May 9, 2006, Dr. Calhoun reported that Johnson awoke from her June 27, 2005 surgery for cervical-disc herniation with numbness and clumsiness in her hands; that she was noted to be unsteady on her feet; that it improved to some degree, but that she still had difficulty with fine-motor movements and disc coordination in her hands along with some unsteadiness on her feet and a tendency to fall. He also reported that he thought those symptoms would persist because the surgery had taken place almost a year earlier. He stated that “[i]t is thought that Mrs. Johnson suffered a ‘stroke’ of the spinal cord during the surgical procedure .... ”
On June 27, 2006, Dr. Calhoun operated on Johnson’s cervical spine a second time. He reported that her first surgery had occurred a year ago; that she had recently ^experienced worsening problems with her hands not functioning correctly and had difficulty ambulating; that a repeat MRI showed that a large osteophyte superior to the previous C5-6 diskectomy had formed; that there were some ischemic changes within the spinal cord; and that it was thought that she should undergo repeat surgery to remove her instrumentation and repeat corpectomies with repeat fusion. The pre-operative diagnosis was C5-6 cervical spinal stenosis, status post C5-6 fusion, and cervical myelopathy.
On June 30, 2006, Johnson received emergency treatment. The ER report provided that she presented complaining of passing out; that she had spinal-fusion surgery the previous week; that she had been on pain medication; that on the date of presentation, she had experienced dizziness when she bent over and stood up; that she felt hot and passed out; and that the family reported “she had some twitching and jerking of her arms, but no seizure-like activity,” made some snoring noise, and was completely unresponsive for about fifteen minutes. The physician’s diagnostic impression was syncope and hy-pokalemia. On that same date, Dr. David Martin noted that shortly after Johnson was admitted to the floor, the nursing staff witnessed her having a seizure; that she “was postictal for some time”; and that “the seizure lasted about two minutes.” Dr. Martin’s assessment was new onset seizure, hypertension, and recent spinal-fusion surgery of the cervical spine.
On the same date, June 30, 2006, Dr. Keith Schluterman reported that Johnson had presented “with two likely generalized tonic seizures today,” which were without clear recognized precipitant. He stated that he was concerned about staphylococcal meningitis, |fiand that she had been on Demerol, which could have lowered her seizure threshold. He said that her husband suspected some marijuana abuse, that there was no evidence of any stroke at that time, and that her CT scan did not find evidence of abscess. He recommended a lumbar puncture, medication, and an EEG. He interpreted the EEG report as being “essentially normal” in the awake and drowsy state, and that there were “no definitive epileptiform discharges, electrographic seizures or regions of focal slowing.” A June 30, 2006 CT of Johnson’s head was read as “Negative noncontrast head CT.” A July 5, 2006 MRI of her brain showed:
Small to moderate amount of periventri-cular and subcortical white matter FLAIR and T2 hyperintensities without correlate on other sequences and without enhancement are seen. Within the brain stem, at the level of the pons, there is also a central 1.1 centimeter area of similar abnormal FLAIR signal. No acute infaarct, hemorrhage, mass lesion, mass effect, abnormal extraaxial fluid collection, or hydrocephalus is identified. The vascular flow voids appear preserved bilaterally. Visualized portions of the orbits and paranasal sinuses are clear. Mesiotemporal lobes are normal.
IMPRESSION: Nonspecific periventri-cular and brain stem gliotic foci. Given the history of head trauma, this may be the etiology, although in the appropriate clinical setting, accelerated small vessel occlusive disease, demyelinating disease, osmotic demyelination, infection, migraines, vasoactive pharmaceuticals or sequelae of vasculitis may need to be considered.
On August 22, 2006, Dr. Calhoun reported to a claims representative that Johnson’s restrictions were not to lift or carry more than ten pounds, not to do any over-the-shoulder work, and not to hold her neck in a flexed or extended position for more than two minutes at a time. On January 24, 2007, Dr. Calhoun wrote to a claims representative that he had been asked to review the partial permanent impairment of the 17whoIe person given Johnson; that he understood she had been rated ten percent for the first surgery; and that he did not think he had rated her correctly on the second surgery. He continued:
Because she underwent a second operation, this would add 2% partial permanent impairment of the whole person as documented in Table 15.7 in the Guide to Permanent Impairment of the American Medical Association. Also, I neglected to include the fact that she has difficulty with her upper extremities in regard to dexterity. If this is taken into effect that she has difficulty with both of her upper extremities, as well as some balance problems, according to Table 13.7 of the AMA Guidelines, she is awarded a 89% whole person impairment as well. This would bring her most recent impairment to 41%.
Mrs. Johnson also suffers from anxiety and seizures. In reviewing the mental and behavioral disorder impairment tables, and because I am not usually asked to rate an impairment with regards to this, I can find no specific numbers to give this patient. She also has had some seizures which are secondary, I believe, to her second surgery. According to Table 13.3 in the impairment rating guide, she is awarded another 14% impairment of the whole person. Thus, her total impairment would be 39 + 2 + 14 for a total of 55% impairment of the whole person.
The parties stipulated that Johnson reached maximum medical improvement for her compensable neck injury on January 24, 2007. Dillard’s controverted benefits after February 14, 2007. On April 3, 2007, Johnson presented at the emergency room “after having a seizure this morning”; a family member reported Johnson shook, fell back, hit her head, and bit her tongue. It was further reported that Johnson had been “on narcotics and benzo-diazepines chronically for a year and her doctor stopped her ‘cold turkey’ 5 days ago.” The ER physician’s impression was that of “[sjeizure activity secondary to medication withdrawal.” An April 8, 2007 drug screen showed Johnson to be negative for any drugs of abuse, including marijuana.
|8On June 18, 2007, Dr. Reginald Rutherford performed an independent medical examination and reported in part that it was not possible to formulate an opinion concerning the etiology of Johnson’s seizures based on the supplied medical documentation; that CT and MRI studies of the brain did not demonstrate any evidence of traumatic brain injury; that “it is possible that her seizures represent toxic effect from medication for the first two seizures and medication withdrawal for the third seizure”; that the issue should be further addressed via an ambulatory EEG with Dr. Victor Biton; that “[i]f normal I would attribute these seizures to medication effect”; that if epileptiform activity is disclosed then remote effect of head trauma would be the most reasonable explanation and clearly would warrant ongoing use of anticonvulsant medication; and that “this would not be required if the ultimate conclusion is adverse medication effect[s] which would not pose a risk for future seizures.... ”
In a June 21, 2007 deposition, Dr. Calhoun testified about the June 2005 and June 2006 surgeries. He explained that prior to the second surgery, an MRI showed that Johnson had developed a bony spur that severely compromised her spinal cord; that as a result of the spur, he opined that her spinal cord had developed a “white spot,” meaning that part of her spinal cord was not receiving proper blood flow; and that the condition was causing the symptoms of numbness and weakness in the extremities. In response to a question about whether there was any objective medical evidence upon which he could 19relate Johnson’s upper-extremity numbness and dysfunction to a spinal stroke, as opposed to a bone spur, Dr. Calhoun explained:
Well, I mean, it’s got to be one of the two things. I don’t know. I mean, I think that clearly after her first surgery, there wasn’t a bone spur there. She clearly had some malfunction of her spinal cord then, so I mean, my thoughts are that at least part of her symptoms have to be coming from some kind of compromise of the spinal cord, blood flow or whatever during the first — during or after the first surgery. At least part of her symptoms have to be attributable to that.
He further explained that, because her condition had persisted, he considered it to be permanent. In June 27, 2007 correspondence with Johnson’s attorney, Dr. Calhoun acknowledged that he had “put the wrong table down” in his January 24, 2007 impairment rating for Johnson; that the accurate table was 13.17 of the AMA guidelines, which was the criteria for a rating impairment of two upper extremities; and that, “the entire 39% that I mentioned is due to the upper extremity difficulties.”
On July 25, 2007, Dr. Gary Souheaver evaluated Johnson and provided a neurop-sychology report, the summary of which provided in pertinent part:
In summary, the results of this extensive neuropsychological evaluation were abnormal. The pattern of scores was not specific to a traumatic brain injury residual. In fact, the pattern was from a probable negative response bias by the patient, which resulted in an artificial lowering of most IQ, memory and neu-ropsychological tests. Such poor test results would be expected for persons who are institutionalized, or who have been declared in need of 24-hour supervision such as nursing home placement. Clinically, and by history, such a description or classification would not be appropriate in this case. Given the history, it is extremely unlikely that the current test results are related at all to such a minor head injury as was described in the records of this case. I strongly suspect this patient’s symptoms are related to underlying personality and/or emotional factors, which interact with chronic pain and medications to produce the cluster of complaints and issues reported by Mrs. Johnson.
|inOn September 21, 2007, Dr. Rutherford provided the respondents with an independent medical examination, which provided in pertinent part:
I have received and reviewed the ambulatory EEG performed by Dr. Victor Biton and the independent psychological examination performed by Dr. Souheaver. Ambulatory EEG is negative for a seizure disorder. In this setting I would attribute Ms. Johnson’s seizures to adverse medication effect. She does not need to be on an anticonvulsant. Psychological testing as performed by Dr. Souheaver is consistent with somatization disorder which correlates with her FCE pertaining to non-valid profile. There is no evidence for traumatic brain injury.
Ms. Johnson has suffered injury to her cervical spinal cord as outlined in my IME. Fortunately her clinical examination is devoid of objective neurological abnormality and thus while imaging is abnormal clinically Ms. Johnson is not. An impairment rating in this setting is limited to that applicable to one level cervical spinal surgery with second revision surgery. This yields an impairment of 11% representing 9% for the initial surgery and 2% for second surgery drawn form Table 75, page 113 of the AMA 4th Edition “Guides to the Evaluation of Permanent Impairment.”
On December 11, 2007, Dr. Bradley Diner performed an independent psychiatric evaluation of Johnson, which provided in part:
[Johnson] required a second surgery for successful structural correction. There is some suggestion that her surgery was complicated by a vascular accident. Despite complaints of memory and functional deficit, neurologic and neuropsy-chologic evaluations are unremarkable for any residual brain injury.
Ms. Johnson is certainly depressed with neurovegetative symptoms and even some suicidal thoughts. There is no question that her chronic pain syndrome is at least partially explained by psychogenic factors. She has always experienced a significant degree of overlap between pain, anxiety, and depressive symptoms. Her current complaints far outweigh any objective physiologic data. This is consistent with depressive overlay.
I do not believe that Ms. Johnson is malingering, but rather, I think she experiences a significant amount of pain and distress. However, it is my belief that much of these complaints are the result of her psychiatric condition. I am also of the belief that some of her aner-gia, as well as cognitive complaints are the result of her pain | ^medications, and in the past, her alcohol intake has likely contributed to the same. It is certainly possible that her intake was at least a complication of abrupt withdrawal or intermittent intoxication.
As is noted above, Ms. Johnson has suffered depression for at least the last 16 years, and probably longer. She was marginally controlled with paroxetine and various anxiolytics, however, I doubt she was ever substantially symptom-free. Nonetheless, she was capable of working and maintaining her day-to-day functions. She currently complains of impairment in carrying out her daily living activities and depends on her mother and husband for support. She has little meaningful social contact or enjoyment.
Alternatively, I would place her impairment as outlined by the AMA Guidelines as Glass 3 (Moderate Impairment) indicating that her depression is compatible with “some, but not all” useful functioning. Her baseline was close to Class 2, suggesting that there has been some worsening of her condition secondary to her injury. With continued depression treatment, she may eventually recover back to Class 2.
Additional medical evidence will be discussed as it pertains to the points raised on direct and cross-appeal.
Standard of Review
In reviewing decisions from the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms if that decision is supported by substantial evidence. United Farms, Inc. v. Gist, 2009 Ark. App. 717, 874 S.W.3d 23, 2009 WL 4840206. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the reviewing court might have reached a different result from the Commission; if reasonable minds could reach the result 112found by the Commission, we must affirm the decision. Id. Also, when a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Flynn v. South west Catering Co., 2009 Ark. App. 641, 2009 WL 3153335.
Discussion
Appellants’ points on direct appeal, and Johnson’s points on cross-appeal, are essentially mirror images of each other. The parties have discussed the issues together, and for ease of discussion, we will also.
Impairment rating
For their first point of appeal, appellants contend that the Commission’s finding of a twenty-six percent impairment rating is not supported by substantial evidence because Johnson did not prove that her spinal stroke and seizure disorder were compensable injuries, and those injuries constituted fourteen percent of the total twenty-six percent rating. We disagree.
Concerning the spinal stroke, appellants contend that Johnson failed to present objective medical findings of the existence of a spinal stroke because Dr. Calhoun’s testimony was speculative at best, and that she also failed to prove a causal connection between the alleged spinal stroke and her surgery. Concerning the seizure disorder, | ^-¡appellants contend that the record lacks objective medical findings of the existence of a seizure disorder, noting the medical evidence finding normal EEGs and Dr. Souheaver’s statement that there were no indications of a lateralized or focal pattern, as would be associated with a stroke residual or seizure disorder, and his opinion that the claimant had not suffered a traumatic-brain injury or developed a resulting seizure disorder from her injury.
Any determination of the existence or extent of physical impairment must be supported by objective and measurable physical findings. Ark.Code Ann. § 11-9-704(c)(1)(B) (Repl.2002); Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003). The Commission is authorized to decide which portions of the medical evidence to credit and to translate this medical evidence into a finding of permanent impairment using the AMA Guides. Avaya, supra.
With respect to the Commission’s assessment of a twenty-six-percent impairment rating, the Commission noted that Dr. Calhoun had used the wrong edition of the Guides (5th ed.), but explained how fourteen percent was supportable under the correct edition’s (4th ed.) table:
The authorized Fourth Edition of the Guides contains Table 5, page 4/143, Impairments Related to Epilepsy, Seizures, and Convulsive Disorders. Table 5 assigns up to a 14% impairment for the following impairment description: “Paroxysmal disorder with predictable characteristics and unpredictable occurrence that does not limit usual activities but is a risk to the patient or limits performance of daily activities.”
114The Full Commission finds that the claimant sustained a 12% anatomical impairment accepted by the respondents in relation to the compensable surgeries and an additional 14% impairment as a result of the claimant’s documented seizure disorder. We find that the claimant’s seizure disorder was causally related to the claimant’s compensable injury and surgery. The claimant proved that she sustained a 26% anatomical impairment as a result of her compensable injury, surgeries performed by Dr. Calhoun, and causally-related seizure disorder. The claimant proved that the December 31, 2004 compensable injury was the major cause of her 26% anatomical impairment.
(Emphasis added.) Moreover, the Commission does not rely upon the “spinal stroke” in assessing the impairment rating, but rather the “seizure disorder.” In that regard, the Commission found that Johnson received emergency medical treatment for a seizure on June 30, 2006, and hospital personnel witnessed another seizure by her the same day; that Dr. Schluterman opined on June 30, 2006, that she had suffered from two likely seizures; that Dr. Calhoun opined on January 24, 2007, that her seizures were causally related to her second surgery; that an emergency physician opined on April 3, 2007, that her seizure activity was secondary to medication withdrawal; and that Dr. Rutherford independently concluded on September 21, 2007, that her seizures were attributed to adverse medication effect. The medical records relied upon by the Commission constitute objective medical findings that support the Commission’s determination regarding the compensability of Johnson’s injury.
Furthermore, according to the Guides’ table, the recorded episodes suffered by Johnson support a “Paroxysmal disorder [defined as a seizure or spasm—Borland’s Illustrated Medical Dictiona'ry (31st ed.) ] with predictable characteristics and unpredictable | ^occurrence that does not limit usual activities but is a risk to the patient or limits performance of daily activities.” Finally, with respect to appellants’ argument that Johnson did not prove that the seizure disorder was permanent, Dr. Calhoun testified that because her condition has persisted, he believed that it was permanent.
In short, reasonable minds might accept the evidence relied upon by the Commission as adequate to support the conclusion that Johnson suffered from a seizure disorder, entitling her to an additional fourteen-percent impairment rating, making the total rating twenty-six percent. We, therefore, affirm the Commission on direct appeal regarding this rating.
The Commission, however, rejected Dr. Calhoun’s higher whole-person impairment rating of thirty-nine percent. On cross-appeal, Johnson contends that the Commission’s decision in that regard is not supported by substantial evidence. We disagree. The Commission’s decision displayed a substantial basis for the denial of this relief, concluding that “the evidence in the present matter does not demonstrate that the claimant sustained any permanent impairment to either upper extremity as a result of her compensable neck injury and surgeries.” For example, Dr. Calhoun acknowledged that his conclusion concerning Johnson’s loss of dexterity in her upper extremities was based upon what she told him, and Dr. Rutherford found her fine dexterous hand movements to be symmetrical.
| psychiatric treatment
For their second point of appeal, appellants contend that the Commission’s finding that Johnson satisfied her burden of proving that her psychiatric treatment was reasonably necessary in connection with her work-related injury was not supported by substantial evidence. We disagree.
What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). In resolving this issue, the Commission stated:
In the present matter, the claimant does not contend that she sustained a mental injury or illness pursuant to Ark. Code Ann. Section 11-9-113. The claimant instead contends that psychiatric treatment is reasonably necessary in accordance with Ark.Code Ann. Section ll-9-508(a). The Full Commission finds that the claimant proved psychiatric treatment was reasonably necessary. Dr. Diner, a psychiatrist, independently opined on December 11, 2007, that the claimant’s condition was the result of her pain medication. The Full Commission finds that psychiatric treatment for claimant is reasonably necessary in connection with the claimant’s wide and varied symptoms following her compensable injury.
Appellants argue that “the evidence establishes only that Ms. Johnson has a psychological impairment that existed prior to, and independent of, her injury at Dillard’s. Ms. Johnson has failed to submit any medical evidence to prove that psychological treatment was reasonably necessary in connection with her work-related injury.” Johnson responds by noting that she had never denied having mental difficulties (anxiety and depression) in the past, but that prior to the injury she had been able to function in society. She argues that 117the compensable injury aggravated her mental problems and caused them to worsen significantly, interfering with her ability to maintain employment.
It is essentially undisputed that Johnson suffers from significant pain. Dr. Souheaver opined that pain makes depression worse and depression makes pain worse, creating “a merry-go-round of stress-related medical problems.” Moreover, as noted in Johnson’s brief, Dr. Diner also reported that Johnson’s psychiatric impairment was raised from a class-two level to a class-three level as a result of her compensable injury. Although appellants note that Johnson had taken a medical leave in 1995 for “multiple medical problems” and that she had suffered severe depression following a layoff from Leisure Arts in 1999, neither point supports a position that she was not able to function in society during those periods to the extent that would cause her to quit her job. As noted by Johnson, depression following a layoff is not the same as having to quit a job because of depression. In short, Dr. Diner’s assessment of the effects of appellant’s work-related injury on her mental health supports the Commission’s finding and reasonable minds could reach the result found by the Commission.
Wage-loss disability
For their third point of appeal, appellants contend that the Commission’s finding that Johnson proved entitlement to wage-loss disability in the amount of twenty percent is not supported by substantial evidence. We disagree.
11sAppellants’ primary argument under this point is based upon their contention that the “Commission’s incorrect finding that Ms. Johnson suffers from a permanent seizure disorder tainted its reasoning in evaluating her wage-loss benefits claim.” Their argument has previously been disposed of by our affirmance of the Commission on that issue.
Moreover, Arkansas Code Annotated section 11 — 9—522(b) provides:
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Workers’ Compensation 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 or her future earning capacity.
(Emphasis added.) The Commission explained its award of wage-loss benefits:
The claimant is now age 50 with only a high school education. The claimant’s work history consists primarily of clerical duties and unskilled labor. The claimant began working for the respondents in November 2003 and sustained a compensable injury in December 2004.
We conclude that the Commission’s accounting of these additional factors that can reasonably affect Johnson’s future earning capacity supports the twenty-percent award. ;
On cross-appeal, Johnson contends that the Commission’s rejection of her claim for permanent and total disability was not supported by substantial evidence. We disagree.
The Commission explained its decision not to award permanent and total disability benefits to Johnson by noting that she did not put forth maximal effort in the November 2005 functional capacity evaluation, that she could perform light-work duties for eight hours a day, and that there was no probative evidence of record or credible indication that [19she was permanently and totally disabled. This explanation displays a substantial basis for the Commission’s denial of this relief.
Second Injury Fund
As their fourth and final point of appeal, appellants contend in the alternative that the Commission erred in finding that the Second Injury Fund has no liability for wage-loss disability benefits awarded to Johnson. We disagree.
In Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 5, 746 S.W.2d 589, 541 (1988), our supreme court explained in pertinent part:
It is clear that liability of the Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compen-sable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compen-sable injury to produce the current disability status.
The Commission determined that the evidence did not establish that Johnson had a permanent partial disability or impairment prior to the compensable injury, which is the second of three hurdles that must be met. In addition, the Commission concluded that, even if the claimant did have a prior permanent partial disability or impairment, the record did not show that this disability or impairment combined with the recent compensable injury to produce the claimant’s current disability status.
We hold that the Commission’s decision is supported by substantial evidence. As the Commission explained in its opinion:
| ai[T]he evidence in the present matter does not show that the claimant had a permanent partial disability or impairment prior to the compensable injury. An MRI in March 2001, prior to the compensable injury in 2004, showed mild spondylosis in the claimant’s cervical spine. This condition did not arise to a prior disability or impairment. Nor did any of the pre-injury conditions described by Dr. Souheaver in July 2007, including left arm weakness, high blood pressure, or chronic depression, constitute a prior disability or impairment. Even if the claimant did have a prior permanent partial disability or impairment, the record does not show that this disability or impairment combined with the recent compensable injury to produce the claimant’s current disability status. The Second Injury Fund is not liable for wage-loss disability benefits in the present matter.
Affirmed on direct appeal and on cross-appeal.
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RITA W. GRUBER, Judge.
I iThis court handed down an opinion on April 14, 2010, affirming the trial court’s order adjudicating appellant Don Thorne’s children dependent-neglected. The same day, we issued an opinion affirming the trial court’s order adjudicating the children of Bethany Myers dependent-neglected, in part for the same reasons expressed in our decision affirming the order in Thorne’s case. Myers v. Arkansas Dep’t of Human Servs., 2010 Ark. App. 326, 2010 WL 1487230. Thorne and Myers filed petitions for rehearing alleging that this court’s decisions contained mistakes of law and fact. In response to Myers’s petition, we issued a substituted opinion correcting a nonmaterial mistake of fact and denying her petition. Myers v. Arkansas Dep’t of Human Servs., 2010 Ark. App. 444, 2010 WL 1997411. We correct the same error in this substituted opinion and deny Thorne’s petition.
This is one of four appeals decided today that involve children who were removed from the Tony Alamo Christian Ministries compound in Fouke, Arkansas, in November 2008. The circuit court heard the cases together in one adjudication hearing. Appellant, Don Thorne, is the father of three children placed in DHS’s custody. He challenges the circuit court’s order adjudicating them dependent-neglected. We affirm the court’s order.
In September 2008, DHS took emergency custody of six minor females who lived in Tony Alamo’s residence at the Fouke compound. DHS presented evidence that their parents were aware of beatings administered to the ministry’s children by adults; that some of the parents and other children witnessed the beatings; that the parents condoned the marriage of underage females to adult males and placed their daughters in the residence of Tony Alamo without parental supervision; that Alamo sexually abused one of the girls (M.B.l) and spent time in his bedroom with others; that the parents neglected to provide the children with proper medical care and education; and that they condoned extreme disciplinary measures for young children, such as fasting. On November 18, 2009, we affirmed the circuit courts orders adjudicating the girls dependent-neglected. See Broderick v. Ark. Dep’t of Human Servs., 2009 Ark. App. 771, 358 S.W.3d 909; Seago v. Ark. Dep’t of Human Servs., 2009 Ark. App. 767, 360 S.W.3d 733; Reid v. Ark. Dep’t of Human Servs., 2009 Ark. App. 784, 2009 WL 3855700.
|sThe evidence taken at the girls’ adjudication hearings led DHS to seek emergency custody of many more children in Fouke. The circuit court held an adjudication hearing that began on January 12, 2009, for the Reid, Seago, Broderick, On-drisek, Krantz, Thorne, Myers, Parrish, and Avila children. Many of the children sought by DHS, including some of the Thorne and Myers children, were hidden by their parents or other ministry adults. The court granted DHS’s motion for directed verdict as to the Reid, Seago, Bro-derick, and Ondrisek children because their siblings had already been adjudicated dependent-neglected. On February 17, 2010, we affirmed appeals from those adjudications because the appellants had raised their arguments for the first time on appeal. Today we affirm the orders adjudicating the children of the Thorne, Krantz, Myers, and Parrish families dependent-neglected.
Don Thorne is the father of a daughter, A.T.1, aged fourteen, and two sons, A.T.2, born in 1995, and A.T.3, aged twelve. From an earlier marriage, he is also the father of one of the other appellants, Sophia Parrish, aged twenty-three. He has been a member of the ministry since 1974, when he was nineteen. There was testimony that A.T.1 lived in Tony Alamo’s residence. Thorne works for the ministry and lives on its property in Fouke. At the time of the hearing, his wife, Luisa Corde-ro-Thorne, was in hiding with A.T.1 and A.T.3 with Thorne’s help. Although Thorne claimed to not know where they were, the circuit court held him in contempt until his wife brought the children back.
|4The witnesses at the adjudication hearing were G.P.l (the son of Carlos and Sophia Parish); Jessica Cooper (a former member of the ministry); M.B.l (a former member); Nicholas Broderick (a former member); S.B. (a former member); H.D. (a former member); Don Thorne; Sophia Parrish; Carlos Parrish; Bert Krantz; Debra Ondrisek; Miriam Krantz; Richard Ondrisek; Cindy Allen (a DHS supervisor); Brian Broderick; Alphonso Reid; Bethany Myers; Rebecca Avila; and Jose Avila. Nicholas, M.B.l, and S.B. are siblings of M.B.2, who was a subject of this hearing. Jessica Cooper is their aunt. Like Thorne, the Krantzes, the Parrishes, Bethany Myers, the Ondriseks, the Avilas, Brian Broderick, and Alphonso Reid are parents of some of the children with whom this hearing was concerned.
Jessica Cooper testified that she was born in the ministry in 1972 and married her husband when she was sixteen and he was twenty-seven. She said that the ministry is not a safe environment in which to rear children and testified at length about its communal lifestyle; its secrecy; the reporting system that encourages members to inform on each others’ transgressions; the imposition of fasting as punishment; and the restrictions on members’ contact with the outside world. She said that she left because she wanted her children to go to college and that it was not customary for girls to finish high school because they usually got married. She gave several examples of girls no older than sixteen who married grown men. She stated that, in the past, Tony Alamo had run the organization from prison; that he encouraged parents to give up their parental authority to him; that the parents adopted Alamo’s views and were blind to the risks to their children; and that children were often | <-,separated from their parents, as she was at the age of twelve. She described being in a group of children present when Justin Miller was given 140 licks with a three-feet-long paddle at Alamo’s direction; when it was over, blood seeped through his pants. She said that Alamo had spanked her with a board and had beaten others mercilessly, and she named numerous people whom she had seen beaten. Ms. Cooper said that, before she left the ministry, her son confided to her that he was thinking about suicide.
S.B. described being beaten at Alamo’s direction by one of his wives, Michelle Jones, when S.B. and her sisters M.B.l and A.B. were living at Alamo’s residence. She said that A.T.1 (Thorne’s daughter) and L.K. (one of the Krantzes’ daughters) were in the room during her beating. She also said that A.T.1 lived in Alamo’s home, which L.K. visited. She stated that Alamo had slapped her four or five times and that he had hit B.S. (Greg Seago’s daughter), C.R. (Alphonso Reid’s daughter, aged ten), and A.O. (the Ondriseks’ daughter). She also said that some girls were forced to fast. S.B. said that she was threatened with a spanking by John Kolbeck if she told anyone what happened at Alamo’s house. She testified that, in February or March 2008, she and the other girls at Alamo’s house, including A.T.1 and M.M., were forced by Alamo to participate in recording Tape No. 564, in which they denied being molested by him.
In detail, M.B.1 described the ministry’s secrecy and the members’ isolation from the outside world; Alamo’s teaching that the Bible permitted girls to marry at puberty; her sexual | fimolestation in the shower by Alamo when she was living in his home; her beating by John Kolbeck; Kolbeck’s beating of other children; Alamo’s living arrangements with adult women and girls as young as age eight; his time spent alone in his bedroom with the young girls; her participation in Tape 564 with N.M.l and M.M.; and being forced to help hold down S.B. (aged eleven or twelve) while Michelle Jones beat her. M.B.l said that she heard B.S. scream while John Kolbeck beat her and that Bethany Myers was one of the people who dragged B.S. to the beating. According to M.B.l, Myers’s daughters N.M.1 and M.M., while living in a separate residence with Myers, spent a significant amount of time in Alamo’s household. M.B.1 also said that two men in their twenties had asked her to marry them and that she had friends her age who had already married and had children and who hated their Uves. She stated that most older boys leave the ministry; that it is not safe for children; and that Alamo would continue to control the ministry while he was in jail. She said that the parents believe that Alamo is a prophet and do not question his authority.
Nicholas Broderick described witnessing John Kolbeck’s savage beating of Spencer Ondrisek, Phillip Avila, and A.O., while the Ondriseks were present and did nothing. He said that Kolbeck once slapped him, but did not beat him, because Nicholas stated that he was going to leave the ministry. He explained that it was normal for boys to drop out of school by the age of seventeen and that there were few boys in school above the tenth grade, after which he dropped out. He said that he was forced to fast a few times and experienced “diesel therapy” (being forced to ride with a driver of a ministry truck). He added that [ 7young girls were at risk of becoming child brides; that J.G. married a man in his thirties; and that R.S. married when she was fourteen.
H.D., aged seventeen, testified that she had left the ministry when she was twelve. She said that she was forced to fast for a week at the age of ten because she had failed to perform a chore after suffering a head injury in a fall. She stated that the fall caused her to lose consciousness, and when she came to, people were praying over her; no one, however, took her to a doctor. In fact, she did not think that ministry members were supposed to go to the hospital. She said that she had suffered memory loss and pain and swelling on the back of her head. She said that her sister had also been placed on a fast. H.D. described being present when J.G. was informed that she was going to get married at the age of twelve. She said that she and J.G. were playing with Barbies when J.G.’s mother received a phone call in which she learned that the marriage would occur; J.G. and her mother were upset, and J.G. cried. She said that J.G. had a typical wedding with a bridal dress and bridesmaids. H.D. stated that she was taught that it was permissible to lie to people outside the ministry.
Bethany Myers acknowledged violating the court’s order by not producing her children for DHS. She said that she had no idea where her husband and children were. The trial court held her in contempt and placed her in jail.
Don Thorne denied having any firsthand knowledge that John Kolbeck or anyone else had beaten the children or that children had been forced to fast. He admitted giving IsSophia away in marriage at the age of twelve. He claimed that the ministry no longer permitted young girls to marry but admitted that he had heard Alamo preach that the Bible condones polygamy and the marriage of girls at puberty. Thorne denied letting A.T.1 live at Alamo’s residence but admitted that she had stayed there for a couple of weeks. He was untroubled by Alamo’s using her to create Tape No. 564 without his permission. He acknowledged that his wife had told him that she had asked John Kolbeck to spank A.T.2 while Thorne was driving a truck for the ministry.
G.P.l, aged seven, testified that his father had spanked him and two of his younger sisters with a paddle that had their names on it. He said that both of his parents had slapped him on the face when he was six, leaving red marks, and that he was afraid of being spanked by John Kol-beck.
Sophia Parrish admitted slapping and “popping” G.P.l in the mouth on two occasions but denied leaving any marks. She admitted spanking him and G.P.2 with a paint stirrer or with her hand. After obviously lying under oath and being threatened with a perjury charge, Sophia returned to the stand and admitted that she had spanked G.P.l with a paddle; that she had married at twelve when Carlos was nineteen; that her father had walked her down the aisle; that she had sex with Carlos when she was twelve; and that she had given birth to a stillborn baby girl at the age of fourteen. Sophia stated that the Krantzes were at her wedding, which was widely celebrated by the members of the ministry. She affirmed that John Kol-beck had spanked A.T.2 at his mother’s request. Sophia said that she |3had completed only the sixth grade because she had not wanted to be pregnant while in school. She stated that her friends had also dropped out when they began having children, and she listed four other weddings of young girls that she had attended.
Carlos Parrish testified that he did not believe Nicholas and denied having witnessed any beatings. He stated that he had no intention of moving away from the ministry’s property.
Bert Krantz, who was fifty-seven years old at the time of the hearing, testified that he joined the ministry, in which he is a minister, in 1972, and that he works in disseminating Alamo’s recorded messages. He admitted that he was present at, and approved of, several weddings of young girls but said that the ministry had not permitted underage girls to marry in five or six years. He stated that, although the Bible condones the marriage of young girls at puberty, he would not permit his children to marry during their minority, nor would he let his children fast or be disciplined by anyone else. He stated that he had never witnessed any physical punishment. He acknowledged having heard Tape No. 564 but said that it had not concerned him. Bert said that he believed that Alamo is a prophet and that it would be a sin against God to leave the ministry. He denied letting Alamo run anything in his life, but he admitted that he does not drive because Alamo does not want him to do so.
Miriam Krantz, who is twenty years younger than her husband and is the custodian of the audiotapes, also said that no one else disciplined her children; that she was familiar with Tape No. 564; that she also believes that Alamo is a prophet; that she did not know | inthat Kolbeck had administered discipline; and that, when she attended Sophia’s wedding, she was aware that Sophia was twelve, but it did not concern her.
In the adjudication order, the circuit court found the children dependent-neglected and made extensive findings of fact. The court found that the Thornes had failed to protect their children against physical abuse; that they were aware of the pattern and practice of severe physical beatings; that they endorsed and facilitated illegal marriages of underage females to adult males; that they neglected the needs of their children by failing to assure that they received adequate education and by failing to register their children in an accredited school with certified teachers or providing legally approved home schooling. The court also found that the parents committed or permitted medical and physical abuse by requiring, condoning, and permitting dangerous, involuntary fasts imposed on children younger than fifteen, and by failing to have them properly immunized. The court further found that the parents were aware of multiple instances when Tony Alamo, through his direction to John Kolbeck or others, intentionally caused physical harm to Spencer Ondrisek, Philip Avila, and A.O. The court found that the parents were aware of Alamo’s pattern and practice of enforcing adherence to his will by brutal physical attacks. The court noted M.B.l’s molestation by Alamo at the age of thirteen. It further found that the parents were aware that Alamo claimed to be married to multiple wives and that they permitted and condoned the ministry’s practice of “diesel therapy.”
[, ¶ The court set the goal of reunification and gave the parents supervised visitation. Along with other requirements, it directed them to obtain stable employment and safe and stable housing, separate and apart from the Tony Alamo Christian Ministries and its members, and to maintain them for at least six months. The court directed Thorne to assist DHS in locating the children currently in hiding with his spouse. The court expressly found the testimony of M.B., Jessica Cooper, S.B., H.D., and Nicholas Broderick that beatings, forced fasting, underage marriages, educational neglect, and sexual abuse occurred credible and stated that there was a pattern and practice of such abuse. It deemed not credible the testimony of Carlos Parrish, Sophia Parrish, Thorne, Bert Krantz, and Miriam Krantz that those abuses did not occur.
Thorne first challenges the evidence supporting the adjudication of his children as dependent-neglected and contends that there was no evidence that they were mistreated in any way. He points out that there was no evidence that they were not immunized; although this is correct, it does not require reversal, in view of the overwhelming evidence of other threats to their well-being, which are discussed below. Thorne also asserts that the evidence does not support the trial court’s findings that he had educationally neglected his children, pointing out, correctly, that the Christian A Beka curriculum used by the ministry’s school is widely accepted, and that the state does not require private schools to be accredited or that their teachers be certified. Nevertheless, the evidence demonstrated that young girls frequently drop out of school long before completing high school and that the boys, who [12often are placed on diesel therapy, do not progress much further. In the ministry, getting a high school diploma is the exception, not the rule.
Thorne also asserts that the trial court did not judge his case separately from the others and thereby contravened Arkansas Code Annotated section 9-27-325(0(1) (Repl.2009), which requires adjudication hearings to be closed. We disagree. First, the trial court did close the hearing. Second, although the trial court’s adjudication orders used similar language, it was apparent that the court considered each case on its own. Third, that statute does not prevent the circuit court from hearing certain cases together when it is appropriate, and appellants have cited no authority to the contrary.
Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(l) (Repl.2009). Dependency-neglect allegations must be proven by a preponderance of the evidence. Ark.Code Ann. § 9-27-325(h)(2)(B) (Repl.2009). We will not reverse the circuit court’s findings unless they are clearly erroneous. Seago v. Ark. Dep’t of Human Servs., 2009 Ark. App. 767, 360 S.W.3d 733. In reviewing a dependency-neglect adjudication, we defer to the circuit court’s evaluation of the credibility of the witnesses. Id. The focus of an adjudication hearing is on the child, not the parent; at this stage of a proceeding, the juvenile code is concerned with whether the child is dependent-neglected. Id. An adjudication of dependency-neglect occurs without reference to which parent committed the acts or omissions leading to the | ^adjudication; the juvenile is simply dependent-neglected. Id.; Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007).
Arkansas Code Annotated section 9-27-303(18)(A) (Repl.2009) defines a “dependent-neglected juvenile” as any juvenile who is at substantial risk of serious harm as a result of abandonment, abuse, sexual abuse, sexual exploitation, or neglect. The definition of “neglect” in section 9-27-303(36)(A) includes acts or omissions of “a parent, guardian, custodian, foster parent, or any person who is entrusted with the juvenile’s care by a parent” that constitute:
(i) Failure or refusal to prevent the abuse of the juvenile when the person knows or has reasonable cause to know the juvenile is or has been abused;
(ii) Failure or refusal to provide the necessary food, clothing, shelter, and education required by law, ... or medical treatment necessary for the juvenile’s well-being ...;
(iii) Failure to take reasonable action to protect the juvenile from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of this condition was known or should have been known;
(iv) Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile, including failure to provide a shelter that does not pose a risk to the health or safety of the juvenile;
(v) Failure to provide for the juvenile’s care and maintenance, proper or necessary support, or medical, surgical, or other necessary care;
(vi) Failure, although able, to assume responsibility for the care and custody of the juvenile or to participate in a plan to assume the responsibility; or
(vii) Failure to appropriately supervise the juvenile that results in the juvenile’s being left alone at an inappropriate age or in inappropriate circumstances, creating a dangerous situation or a situation that puts the juvenile at risk of harm.
|14We reject Thorne’s argument that the circuit court erred in finding his children dependent-neglected because there was no evidence that they had personally suffered abuse. As we explained in our November 2009 Seago, Broderick, and Reid opinions, the General Assembly’s expressed purpose in the juvenile code is to protect dependent-neglected children and make their health and safety its paramount concern; a child may be adjudicated dependent-neglected even if he or she has not yet suffered abuse. Thorne, who lived and worked in this community for over three decades, was rearing his children in a secretive, communal environment that included sexual abuse of young girls, underage marriage, fasting, and beatings. Thorne admitted that his wife asked John Kolbeck to spank A.T.2 while he was absent and that he gave his twelve-year-old daughter in marriage to an adult man. A.T.1, who apparently lived in Alamo’s home, witnessed S.B.’s beating by Michelle Jones. Bethany Myers was one of the people who dragged B.S. to be beaten by Kolbeck. Additionally, Sophia Parrish admitted “popping” G.P.l on the mouth, as he had testified. Striking a child six years of age or younger on the face or head, with or without physical injury, is abuse. Ark. Code Ann. § 9-27-303(3)(A)(vii)(a). Thorne’s assertion that the evidence of corporal punishment should not be credited because there was no medical evidence is disingenuous in view of the testimony showing that the ministry discourages its members from seeking medical assistance.
Thorne’s second argument is that two provisions of the case plan violate his right to freely exercise his religion as protected by the United States and Arkansas Constitutions. The | ir,circuit court ordered Thorne to “obtain safe and stable housing separate and apart from the Tony Alamo Christian Ministries and its members, and maintain said housing for at least six months” and to “obtain stable employment separate and apart from the Tony Alamo Christian Ministries and its members and maintain said employment for at least six months.” Thorne contends that, in essence, the case plan makes him choose between his children and his church.
DHS and the attorney ad litem argue that Thorne failed to make this argument below and that the circuit court therefore never ruled on it. We disagree. Thorne’s lawyer raised the constitutional issue at the beginning of the hearing: “Your Honor, this case is purely a free exercise of religion case.” Thorne and other witnesses testified about the importance of communal living within the ministry. When asked whether living off ministry property would have an effect on his “Christian walk,” Thorne responded “[a]b-solutely.” The circuit court, in ruling from the bench on the dependency-neglect issues, recognized Thorne’s beliefs. “[T]he parents involved have very strong feelings and very strong convictions concerning their spiritual beliefs and how they wish to live.” And the court recognized the legal decision it faced.
[W]e have the intertwining of the allegations of the state concerning abuse in various forms and various forms of neglect coupled with the religious and spiritual beliefs of the mothers and fathers and families that are participants in this case. That right, as given to us as citizens of the United States, that is freedom of religion to believe as we eho[o]se I consider to be one of our most important rights and one that I, as a judge, believe that I am charged to protect within the law as within the facts.
| lfiThe circuit court’s order, finally, required Thorne to make substantial changes in his religious practices to pursue reunification with his children. Taking this record as a whole, we conclude that Thorne preserved the constitutional argument.
Every person’s right to make decisions of conscience about religious matters is protected by the Free Exercise Clause of the First Amendment to the United States Constitution and by an even more sweeping provision of the Arkansas Constitution. Article 2, section 24 of Arkansas’s Constitution provides, in part, that “[a]ll men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. ... No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience.... ” As another court stated the legal principle in another case involving this ministry, “[rjeligious and political beliefs, no matter how bizarre and nonconforming, are personal matters, and the courts are not instruments of orthodoxy charged with the responsibility of keeping citizens on the ideological straight and narrow.” Miller v. Tony and Susan Alamo Found., 748 F.Supp. 695, 698 (W.D.Ark.1990) (Morris S. Arnold, J.); see also West Virginia State Board of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). To judge the constitutional issue fairly, therefore, we must acknowledge and consider the circuit court’s unchallenged finding about the sincerity of Thorne’s religious beliefs. We do.
A parent’s right of conscience in religious matters, however, sometimes collides with state laws of general application promulgated for the protection of children and other citizens. There are familiar examples. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (a state may 117not compel Amish children to attend high school until age 16); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (a child-labor law was constitutional even though it kept a child from selling religious tracts as part of her faith); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (a state may not require students to attend public schools; a parent has the authority to provide, and his or her child has the right to receive, sectarian schooling with secular schooling). These fact-specific cases strive for a delicate balance, one that respects all the important interests involved: parents’ rights of conscience and of child-rearing and the state’s interest as parens patriae in protecting children.
Arkansas law recognizes this delicate balance. “Parents, of course, have a fundamental right to direct the care and upbringing of their children. But the State of Arkansas has an equally compelling interest in the protection of its children.” Porter v. Ark. Dep’t of Health & Human Servs., 374 Ark. 177, 185, 286 S.W.3d 686, 693 (2008) (internal citations omitted); see also Ark.Code Ann. § 9-27-102 (Repl.2009). And in child custody disputes, for example, a parent’s religiously motivated choices and actions are material if they affect a child’s well being. Hicks v. Cook, 103 Ark. App. 207, 212, 288 S.W.3d 244, 248 (2008). In some cases, the facts tip the balance in favor of protecting the child, and against the parent’s liberty— even in matters of conscience and religious conviction. E.g., Prince, 321 U.S. at 167, 64 S.Ct. 438.
This is one of those cases. As the circuit court found, the most pressing potential danger facing Thorne’s children was simply living on ministry property. The record is full |18of testimony about beatings, sexual abuse, underage marriages, and other problems, all of which victimized the children of families living on ministry property. In fashioning its case plan, the circuit court responded to the potential danger with a narrowly tailored solution— requiring Thorne to obtain housing separate and apart from the ministry. And because ministry life was communal in almost every respect, the court also required Thorne to obtain employment outside the ministry so he could earn the money to pay for this new housing arrangement and other living expenses. Here, as the circuit court implicitly concluded, the State’s interest in preventing potential harm to these children outweighed Thorne’s conscientious choice to live on ministry property, work for the ministry, and depend on the ministry for his family’s every need. We see no constitutional infirmity in the circuit court’s disposition order on this record. We therefore affirm on Thorne’s second point.
Affirmed.
GLADWIN, KINARD, GLOVER, BAKER, and BROWN, JJ., agree.
. See Miller v. Tony & Susan Alamo Found., 748 F.Supp. 695 (W.D.Ark.1990).
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JOHN B. ROBBINS, Judge.
I,This appeal involves an acrimonious dispute over the estate of Mack Henry Long, deceased. The probate proceedings were consolidated with a declaratory-judgment action involving the construction of a trust created by decedent. The Pulaski County Circuit Court denied a request by appellant Patsy Long, the ex-wife of decedent and executrix of his estate, to exhume his remains for reburial in a plot decedent owned with Long; allowed the claim against the estate filed by appellee Fredye Alford, decedent’s only child, for the expense of the funeral arranged by Alford; and appointed a successor trustee to administer a trust created by ^decedent. Long raises three points challenging those rulings. We affirm in part, reverse in part, and dismiss in part.
The decedent and Long were married for approximately seven years before they divorced in 1977. After their divorce, decedent and Long lived together for more than thirty years until decedent’s death on July 30, 2008. In 2005, decedent executed a will in which he referred to Long as his spouse. In his will, decedent bequeathed his entire estate to a revocable trust. The will nominated decedent’s brother Garland Hughes and Long to serve as co-administrators of his estate. Finally, the will provided that decedent had made arrangements for burial in a specific plot in Roselawn Memorial Garden in Pine Bluff. He directed that Long alone make all final arrangements.
[sOn January 6, 2009, Alford filed an amended claim against the estate in the amount of $11,675.63. This claim included, among other things, the expense of the funeral, the monument for decedent’s grave, veterinary expenses for the decedent’s dog, Bunny, and a monument for the dog’s grave.
Alford filed a petition seeking to have decedent’s estate administered intestate. The petition was filed on the day of decedent’s death. The circuit court appointed Alford as administratrix on the same day. On Long’s motion, the court revoked the letters of administration one week later on August 7, 2008. Long filed a petition seeking to admit the decedent’s will to probate on August 6, 2008. The will was admitted to probate and Long was appointed personal representative of the estate by order entered on December 4, 2008.
On January 20, 2009, Long filed a petition seeking to exhume the decedent’s body so that it could be reburied in a plot decedent owned with Long in the same cemetery in Pine Bluff. The petition ál- leged that Alford made the arrangements for decedent’s burial in disregard of decedent’s wishes. The petition cited Arkansas Code Annotated section 20-17-102 (Repl. 2005) as authority and sought to have the cost of exhumation and reburial paid from the trust.
In her response to the petition to exhume, Alford stated that, at the time of burial, she was unaware of the provision of her father’s will specifying where he was to be buried or that Long was to make the funeral arrangements. Alford also asserted that Long was estopped from seeking the exhumation of decedent’s body because she failed to bring the directive to the attention of either Alford or the funeral director until approximately six months after decedent’s death. In support of her response, Alford also submitted an affidavit from Vonda Gifford, the funeral director who made the arrangements for the decedent’s funeral, who stated that she had two telephone conversations with Long concerning the arrangements. In the first conversation, Gifford said that she advised Long that burial would be at Rose-lawn Cemetery. Gifford said that, in the second conversation, which was on the day of the funeral, |4Long advised her that she would not attend the graveside services. Gifford further stated that Long never advised her about the existence of decedent’s will or otherwise objected to the funeral arrangements or place of burial. In a second affidavit, Adam Robinson, the owner of the funeral home, testified that the cost of exhuming the body and moving it to another plot would be $8,272, not including the cost of moving the monument.
On March 10, 2009, the circuit court entered an order allowing Alford’s claim against the estate in the sum of $10,014.71. The claim as allowed included a reduced fee for the funeral home and the cost of Bunny’s veterinary treatment. The court disallowed a claim for the monument for the dog’s grave. The court took Long’s petition to exhume the body under advisement.
On March 13, 2009, the circuit court issued a letter opinion regarding Long’s request for exhumation. The court found that decedent complied with section 20-17-102(b). The court stated that, had decedent’s directive been known prior to burial, the court would have ordered that decedent be buried as he directed. However, the court found that only Long knew about the directive and did not bring it to the attention of either Alford or the funeral director. The court noted that there was a strong public policy against disinterment. The court also considered the factors set forth in Tozer v. Warden, 101 Ark.App. 396, 278 S.W.3d 134 (2008). The court concluded that the public policy against disinterment, the unanimous wishes of decedent’s family, Long’s failure to call attention to the directive before burial, and Long’s lack of any family relationship to decedent outweighed decedent’s directive. The court | ¡-.denied the request for exhumation. The court’s written order on the request for exhumation was entered on March 23, 2009. On March 25, 2009, Long filed her notice of appeal from both the order concerning the claim against the estate and the order on exhumation.
Our standard of review in probate cases is well settled. This court reviews probate proceedings de novo on the record, but it will not reverse the decision of the circuit court unless it is clearly erroneous. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).
We first address Alford’s argument that we lack appellate jurisdiction over Long’s first point concerning the request to exhume the decedent’s body. Alford bases her argument on Arkansas Code Annotated section 28-1-104 (Repl.2004), which sets forth the jurisdiction of the probate court. Section 28-1-104 does not list exhumation as one of the seven areas governed by the probate code. Because exhumation is not listed, this court, according to Alford, lacks authority to consider the exhumation issue. We disagree.
Probate orders, with two exceptions neither of which is applicable here, are ap-pealable pursuant to Ark.Code Ann. § 28-1-116(a) (Supp.2004) and Arkansas Rule of Appellate Procedure — Civil 2(a)(12), which incorporates this statute. See Sanford v. Murdoch, 374 Ark. 12, 285 S.W.3d 620 (2008). We hold that we have appellate jurisdiction because the personal representative petitioned the probate division of the circuit court, during administration of the decedent’s estate, to enforce a provision in the decedent’s will by ordering exhumation and reburial. We now proceed to the merits of the appeal.
In her first point, Long argues that the circuit court erred in failing to enforce decedent’s clear wishes as to his place of burial contained in his will. We agree.
The statute at issue, Arkansas Code Annotated section 20-17-102, provides in pertinent part:
(b)(1) An individual of sound mind and eighteen (18) or more years of age may execute at any time a declaration governing the final disposition of his or her bodily remains at his or her death, provided the disposition is in accordance with existing laws, rules, and practices for disposing of human remains.
(2) The declaration of final disposition executed under this section shall be signed by the declarant or another at the declarant’s direction and shall be witnessed by two (2) individuals.
|7(3) No additional consent of any other person is required if the declaration of final disposition contains a disposition authorized under this section and is otherwise valid under this section.
(c) No person having possession, charge, or control of the declarant’s human remains following the death of a person who has executed a declaration of final disposition shall knowingly dispose of the body in a manner inconsistent with the declaration.
Ark.Code Ann. § 20-17-102(b), (c).
The principal or fundamental rule in construing wills is to ascertain the in tent of the testator and give it effect. Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996 (1929). The circuit court found that decedent complied with the statute by including the directive as a part of his will. The court also found that Alford did not knowingly dispose of decedent’s remains in violation of his directive. However, the court declined to enforce that directive. Instead, the court also found that Long, as decedent’s designee, had waived her right to control the disposition of decedent’s remains by failing to promptly assert her right. However, in doing so the circuit court failed to recognize that the statute deals with two separate but related rights: the decedent’s right to control and specify the disposition of his or her remains, and the right of the person so designated.
IsLong may have waived her right to make disposition decisions at the time of death. But that waiver does not undermine the decedent’s right to decide the burial issue, which he did. Under the circumstances of this case, where decedent executed a directive that complied with section 20-17-102 and the existence of that directive was known prior to decedent’s death and burial, the failure to give the decedent’s directive controlling weight would create an illusory right. Our opinion today simply confirms the public policy of the state as set by the legislature in section 20-17-102. It is only when a decedent fails to make a directive during the course of his or her life that the right and obligation fall upon a survivor. Moreover, other courts have held that a decedent’s wishes concerning the ultimate disposition of his or her remains are entitled to consideration and should be carried out as far as possible. E.g., Cottingham v. McKee, 821 So.2d 169 (Ala.2001); Byrd v. Byrd, 488 So.2d 1134 (La.App.1986); Rosenblum v. New Mt. Sinai Cemetery Ass’n, 481 S.W.2d 593 (Mo.App.1972); Holland v. Metalious, 105 N.H. 290, 198 A.2d 654 (1964); Booth v. Huff, 273 A.D.2d 576, 708 N.Y.S.2d 757 (N.Y.App.Div.2000). Many of the cases are collected in Frank D. Wagner, Enforcement of preference expressed by decedent as to disposition of his body after death, 54 A.L.R.3d 1037 (1973). We therefore reverse the circuit court’s order denying exhumation and remand for entry of an order permitting Long to exhume decedent’s remains for reburial in accordance with his directive. The cost of compliance should be treated as an additional funeral expense.
|9In her second point, Long asserts that the circuit court erred in allowing Alford’s claim against the estate for approximately $10,000 for funeral expenses. Her argument is that the claim is unreasonable because Alford was responsible for decedent being buried in the wrong plot and decedent had already purchased a monument for the grave. Long seeks to have the amount of the claim reduced by the amount it would cost to exhume the decedent’s remains and bury them in the correct plot. However, we affirm the full amount of the funeral expenses awarded to Alford. The circuit court found, and there was evidence to support, that Alford acted in good faith in making the funeral arrangements and was unaware of the will’s directive concerning the decedent’s place of burial. We hold that the circuit court’s findings and determination on this issue were not clearly erroneous.
Affirmed in part; reversed in part; dismissed in part.
GLOVER and MARSHALL, JJ., agree.
. At oral argument, Long conceded that her third issue concerning the construction of the trust is not final for purposes of this appeal. We agree that the issue is not a final, appeal-able order. Therefore, we pretermit further discussion of the issue and dismiss that portion of the appeal without prejudice.
. The jurisdictional areas include (1) the administration, settlement, and distribution of estates of decedents; (2) the probate of wills; (3) the persons and estates of minors; (4) persons of unsound mind and their estates; (5) the determination of heirship or of adoption; (6) the restoration of lost wills and the construction of wills when incident to the administration of an estate; and (7) all such other matters as are provided by law.
. Section 28-1-116 provides in pertinent part:
(a) Appeal Permitted. Except as provided in subsection (b) of this section, a person aggrieved by an order of the circuit court in probate proceedings under the provisions of the Probate Code may obtain a review of the order by the Supreme Court or the Court of Appeals.
(b) Orders Which Are Not Appealable. There shall be no appeal from an order:
(1) Removing a fiduciary for failure to give a new bond or to render an account as required by the court; or
(2) Appointing a special administrator.
.Section 20-17-102 was amended in 2009, effective July 31, 2009. See Ark. Op. Att'y Gen. 2009-90 (June 1, 2009). Subsections (b) and (c) were essentially unchanged. The amendments specified the hierarchy of persons entitled to control the remains of a person who made a declaration as provided in this section, specified a list of factors a court was to consider in resolving disputes between persons sharing the right of control, and provided that the right to control could be waived. See Ark.Code Ann. § 20-17-102(d) through (f) (Supp.2009). Because the amend ed version of the statute was not in effect at the time of trial, we cite to and refer to the older version of the statute.
. Under these circumstances, the Tozer factors will, ordinarily, not apply because the deceased will be buried in accordance with his or her wishes.
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RITA W. GRUBER, Judge.
| ¶ Appellant Jamie Russenberger appeals from the trial court’s order dismissing her complaint against appellees Thomas Pest Control, Inc.; Marilyn Thomas Robison, individually; Marilyn Robison d/b/a Thomas Pest Control, Inc.; Bobby Hill, individually; Bobby Hill as “Operations Manager” of Thomas Pest Control, Inc.; and Western Surety Company. For simplicity, we will refer to the first five parties as the Thomas appellees. The principal issue on appeal is whether appellant alleged facts in the complaint sufficient to | ¡.support the doctrine of fraudulent concealment. Because we hold that the complaint does allege sufficient facts, we reverse the trial court’s order dismissing this case and remand for further proceedings. Appellant also appeals from the court’s order awarding attorney’s fees to the Thomas appel-lees. In light of our decision reversing the court’s order of dismissal, we also reverse its order awarding attorney’s fees.
In our review of a case in which a plaintiff claims that the trial court erred in granting a motion to dismiss pursuant to Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 441, 206 S.W.3d 837, 840 (2005). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs favor. Id. Our rules require fact pleading, and a eom- plaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id. Of particular import in this case, Arkansas law requires the complaint to contain facts sufficient to support the application of fraudulent concealment to toll the statute of limitations. Floyd v. Koenig, 101 Ark.App. 230, 231, 274 S.W.3d 339, 340 (2008). Finally, in testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Carlson v. Kelso Drafting and Design, Inc., 2010 Ark. App. 205, at 1-2, 374 S.W.3d 726.
I.
For appellant’s first point on appeal, we turn to the allegations in her complaint. Appellees filed a motion to dismiss appellant’s original complaint prompting appellant to file an amended complaint, which is at issue here. Appellant alleged the following in her |samended complaint. She bought a home in Little Rock on November 18, 2004. Before purchasing the home, appellant contracted with appellee Thomas Pest Control, Inc. (TPC) to perform an inspection of the property for active and previous termite damage. TPC was a licensed, bonded, pest-control company regulated by the State of Arkansas. TPC performed an inspection on October 29, 2004, and on November 11, 2004, TPC (through Operations Manager Bobby Hill) delivered to appellant a “Clearance Letter” and a “Termite Contract” based on its inspection. Neither TPC’s clearance letter nor the graph attached to the letter indicated any current or past damage or structural defects to the property. Relying on this clearance letter, appellant executed all necessary documents to purchase the home on November 18, 2004.
Appellant continued to contract annually with TPC from November 2004 through December 2009 to treat the property under the terms of the termite contract executed on November 11, 2004. Appellant alleged that she relied upon TPC’s professionalism and license to perform inspections and treatments and to promptly notify her of any occurrence of current or previous termite, insect, or other damage it discovered. TPC never notified her of any current or previous damage to the property during any of the annual inspections and treatments from 2004 through 2009.
Then, in January 2010, appellant hired a contractor to remodel her kitchen and add a laundry room to the rear of her home. During the preliminary stages of this work, the contractor discovered damage to the substructure and subflooring of the kitchen area and informed appellant that the floor needed to be removed in order to have adequate access to 1 ¿perform the repairs. During this process, the contractor discovered termite and other damage to the structure. Appellant requested TPC to inspect and treat the propérty under its contract. TPC informed appellant that there was existing insect and structural damage, including the termite damage that TPC was previously aware of (and that appellant alleges TPC intentionally concealed and hid from her), and that TPC would not treat the home due to problems of clearance under the structure. TPC informed appellant that it was her responsibility to have the understructure of the home excavated before TPC would treat the structure.
Appellant then filed a complaint against TPC at the Arkansas State Plant Board (Plant Board). The Plant Board’s inspector reported that TPC failed to comply with the laws, rules, and standards set forth by the Arkansas Legislature due to various substandard issues including access, wood debris, clearance, shelter tubes, outside grade, and an area that was not drilled and treated as would have been required when TPC originally treated the home in 2000. The Plant Board issued a “pink slip” to Thomas listing repairs that must be made to bring the structure up to state minimum requirements. The state inspector indicated that there was severe damage to the understructure of the home and that he found previous termite damage, other insect damage, and rot under the structure. Appellant alleged that this was the first indication to her that there was any substructure insect damage to her home. The Plant Board issued three “pink slips” before TPC finally complied and cleared the area under the structure so that the state inspector could adequately inspect the home for damage.
15Appellant filed a request under the Freedom of Information Act with the Plant Board and learned that TPC had submitted a clearance letter in 2003 for a previous owner that showed extensive damage to the substructure of appellant’s property in the form of active termites, other insects, mold, and fungi. Appellant also discovered that TPC had issued a “Termite Contract” to her on November 9, 2004 (dated two days before the date of the “Termite Contract” that TPC actually gave to her) based upon an inspection by Henry Thomas that was alleged to have occurred on October 29, 2004, the same date of the inspection in the termite contract that TPC provided to her. This November 9, 2004, contract — which was not provided to appellant — indicated current damage, past damage, and other structural defects to the structure. This contract also expressly stated that “TPC will repair damages caused by termites.” Appellant’s complaint alleged that this version was never delivered to her and that TPC and Bobby Hill “retained possession of this document and actively, intentionally, and with malice concealed the existence of this document” from her until 2010. The graph attached to the contract showed the damaged areas and structural defects. The areas and extent of damage reflected on the Plant Board’s graph from its 2010 inspection of appellant’s property exactly matched the graph TPC filed with its “Termite Contract” on November 9, 2004.
Appellant alleged that TPC fraudulently concealed from her and failed to divulge to her that there existed previous active termite damage to the structure before she purchased it. She also alleged that TPC intentionally, continually, and with malice actively concealed Rand failed to divulge this information to her at any time during the six years that it was paid to treat the property under the annual termite contracts. She alleged that TPC committed fraud in failing to properly inspect the property; in failing to list any damage to the property; and, with the sole intent to defraud her, in issuing a clearance letter to her and her lending institution that was false and misleading. She alleged that TPC continued to conceal this information through the issuance of annual clearance letters showing no damage and communicating annually that there had never been any damage to the structure. She contended that TPC had a duty to disclose the true condition of the property and its failure to do so constituted fraudulent concealment. She alleged that her reliance upon TPC and its professional license caused her damages as set forth more specifically in the complaint.
Appellant’s complaint also alleges breach of contract under the termite policy in November 2004 and the subsequent and annual fraudulent concealment of this breach. Appellant also alleged that Bobby Hill, as operator in charge of TPC and its license holder, and Marilyn Thomas Robi-son, as owner and president of TPC, failed to properly oversee the operations of TPC, insure the accuracy of the clearance letter to appellant, and properly train and educate TPC’s employees. She contended that these failures constituted negligence and that they fraudulently concealed this negligence. Finally, she alleged that Western Surety issued two bonds on behalf of TPC, which are held at the Plant Board, and that, pursuant to Ark.Code Ann. § IT — 37—210(a)(3)(B), “any person claiming against the bond may maintain an action at law against the licensee and the surety.”
In the Thomas appellees’ motion to dismiss, they contended that appellant’s claims 17were barred by the statutes of limitation because they all arise from acts that allegedly occurred over six years before appellant filed her complaint: the statute of limitations is five years for a breach-of-contract action and three years for both negligence and fraud. Appellant did not dispute this but alleged that the limitations periods were tolled by the doctrine of fraudulent concealment. The Thomas appellees argued that appellant did not plead sufficient facts to support the doctrine of fraudulent concealment to toll the statutes of limitation because the doctrine requires that the fraud be “furtively planned and secretly executed.” See Bomar v. Moser, 369 Ark. 128, 131, 251 S.W.3d 234, 241 (2007). They argued that appellant pleaded no facts evidencing this. Moreover, they claimed that appellant, not the Thomas appellees, owned and occupied the property. Therefore, they argued, they had no ability to conceal the damage from her and she had the ability to inspect her property for damage at any time. They also contended that the negligence claim against Ms. Robison should be dismissed because she did not become the president and owner of TPC until August 2010. Finally, Western Surety argued that appellant’s claim against it was not a recognized remedy at law and should be dismissed. The court entered an order stating only that the motion to dismiss of the Thomas appellees and Western Surety was granted; it provided no explanation for its decision. This appeal followed.
II.
Appellant argues on appeal that she pleaded facts sufficient to support the application of fraudulent concealment and that the statutes of limitation were tolled in this case. The statute of limitations generally begins to run when the allegedly wrongful acts occurred — in |sthis case, in 2004 when TPC inspected appellant’s home, found evidence of damage, and failed to disclose this fact to appellant. See Floyd v. Koenig, 101 Ark.App. 230, 233, 274 S.W.3d 339, 342 (2008). However, fraud suspends the running of the statute of limitations until the party having the cause of action discovers the fraud, or should have discovered it by the exercise of reasonable diligence. Delanno, Inc. v. Peace, 366 Ark. 542, 545, 237 S.W.3d 81, 84 (2006). In order to toll the statute of limitations, the fraud perpetrated must be concealed. Id. The general rule of fraudulent concealment requires “some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that conceals itself.” Id. (quoting Shelton v. Fiser, 340 Ark. 89, 96, 8 S.W.3d 557, 562 (2000)). Further, if the fraudulent concealment should have been discovered by the exercise of reasonable diligence, the suspension ceases as of the date it should have been so discovered. Id. at 546, 237 S.W.3d at 85.
The Thomas appellees argue that the supreme court’s decision in Delanno supports the trial court’s order dismissing appellant’s complaint. In Delanno, the plaintiffs attorney mistakenly represented to the plaintiff that he had obtained a tax-clearance letter absolving the plaintiff from tax liability for an asset purchase the attorney was handling. A year after the purchase, the state notified the plaintiff that he owed taxes. When the plaintiff contacted his attorney regarding the matter, the attorney told him that there was a tax-clearance letter on file, that he owed no taxes, and that the attorney would take care of the matter. Three years later, the parties discovered that the attorney had inadvertently filed the tax-clearance letter with the wrong tax-identification number and that, due to the oversight, the plaintiff owed 19back taxes. Absent the doctrine of fraudulent concealment to toll the statute of limitations, the plaintiffs legal-malpractice action was barred by the statute of limitations. The supreme court affirmed the trial court’s order granting summary judgment and finding no evidence of fraudulent concealment, holding that the plaintiff did not produce any evidence that the attorney’s inaccurate statements were “furtively planned and executed, or concealed.” Delanno, 366 Ark. at 547, 237 S.W.3d at 85-86. The supreme court also held that the plaintiff failed to exercise reasonable diligence. Three years before the mistake was discovered, the plaintiff was on notice that either the state or his attorney was incorrect, but he made no effort to contact the state to investigate the situation further.
This case is distinguishable from Delanno. First, Delanno involved a motion for summary judgment, not a motion to dismiss. The court in Delanno was concerned with the evidence offered by the plaintiff to prove fraudulent concealment. Here, we look only at the sufficiency of the allegations in the complaint. We have no discovery, no testimony, and no evidence to review. Whether appellant will eventually prove the allegations is not our concern in this appeal. Secondly, the mistake in Delanno was inadvertent. The attorney neither intended to use the wrong tax-identification number on the clearance letter filed with the state nor knew that he had done so until well after the fact. And the plaintiff in that case was on notice from the state that the state and his attorney were in conflict about whether he owed the taxes.
In the case at bar, appellant alleged that TPC — a licensed, bonded, pest-control company regulated by the State of Arkansas — inspected the property on October 29, 2004. hpShe alleged that TPC provided to her a clearance letter and termite contract dated November 11, 2004, stating that, based upon its inspection, there were no current or past damage or structural defects to the property. She alleged that she purchased the home in reliance upon this clearance letter and that she continued to contract annually with TPC from November 2004 through December 2009 to treat the property under the terms of the termite contract executed on November 11, 2004. TPC never notified her of any current or previous damage to the property during any of the annual inspections and treatments from 2004 through 2009. After hiring a contractor to remodel her home in 2010, appellant discovered another clearance letter directed to her that was filed with the Arkansas State Plant Board. This clearance letter and termite contract was dated November 9, 2004, two days before the clearance letter that TPC provided to her. She alleged that this document indicated current damage, past damage, and other structural defects to the structure. It also expressly stated that “TPC will repair damages caused by ter mites.” Appellant’s complaint stated that this version was never delivered to her and that TPC and Bobby Hill “retained possession of this document and actively, intentionally, and with malice concealed the existence of this document” from her until 2010. The attached graph showed the damaged areas and structural defects.
We note that the issue of fraudulent concealment is normally a question of fact that is not suited for dismissal by summary judgment or by a motion to dismiss. Floyd, 101 Ark.App. at 236, 274 S.W.3d at 343. In testing the sufficiency of appellant’s complaint, we view the facts in the light most favorable to the plaintiff; all reasonable inferences must be resolved in favor of the complaint; and the pleadings are to be liberally construed. Carlson, 2010 Ark. App. 205, at 1-2, 374 S.W.3d 726. Liberally construed, the facts alleged here do not suggest that the mistake in this case was inadvertent. Appellant alleged that TPC had knowledge of the termite damage before it provided a clearance letter to her in November 2004 assuring her that there was no damage. In spite of this fact, TPC continued to assure appellant every year through annual contracts that her property had no current or past termite damage or structural defects. With regard to the Thomas ap-pellees’ argument that appellant owned the home and should have, by the exercise of reasonable diligence, discovered the damage, we disagree. Appellant alleged that she did not discover the damage until she hired a contractor to remodel. The fact that the Arkansas Plant Board issued numerous “pink slips” to TPC because it was unable to inspect the property until it was adequately cleared by TPC suggests that the damage was difficult to see, even for a professional. Appellant hired TPC, a professional, to inspect, treat, and advise her regarding insect damage. Unlike the plaintiff in Delanno, appellant was not notified that the state, or anyone else, disputed TPC’s representations to her.
After our review of these allegations, we hold that appellant has alleged facts sufficient to support the application of fraudulent concealment and that the trial court erred in granting the motion to dismiss. With regard to the negligence count against Ms. Robison, the parties are arguing disputed facts about her involvement in TPC, the state of TPC’s corporate charter, and the events giving rise to appellant’s claims. While we express no opinion regarding the evidence necessary to prove her claim, appellant has alleged sufficient facts to survive a motion to dismiss.
_bIIL
We also reverse the court’s order dismissing appellant’s complaint against Western Surety. Appellant alleged that TPC furnished to the Arkansas State Plant Board a bond issued by Western Surety on TPC’s behalf. Under the Arkansas Pest Control Law, TPC is required to furnish a surety bond to the Arkansas State Plant Board. Ark.Code Ann. § 17-37-210 (Repl.2010). This bond is in favor of the State of Arkansas “for the benefit of any person damaged as the result of a violation of this subchapter by an operator licensed under this chapter and for the benefit of any person who, after entering into a contract with the licensee, is damaged by the failure of the licensee to properly perform the contract.” Ark.Code Ann. § 17-37-210(3)(A). A person claiming against the bond may maintain an action at law against the licensee and the surety. Ark.Code Ann. § 17 — 37—210(3)(B).
IV.
Finally, appellant contends that the court abused its discretion in awarding attorney’s fees to the Thomas appellees.
The Thomas appellees argued that they were entitled to fees pursuant to Ark.Code Ann. § 16-22-308, which authorizes the court to award fees to the prevailing party in a breach-of-contract action. In light of our decision reversing the court’s order dismissing appellant’s complaint, we reverse the court’s award of attorney’s fees.
Reversed and remanded.
MARTIN and BROWN, JJ., agree.
. The trial court also granted the motion to dismiss filed by defendant Daryl Little, Director of the Arkansas State Plant Board. Appellant did not appeal from that order.
. This Act is codified at Ark.Code Ann. §§ 25-19-101 et seq. | [
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DAVID M. GLOVER, Judge.
|,Daniel Weaver was tried by a jury and found guilty of the offense of rape. He was sentenced to serve 348 months in the Arkansas Department of Correction. For his sole point of appeal, he contends that the trial court erred in denying his motion to suppress his custodial statement because he was under the influence of marijuana at the time he was interviewed, and the sheriffs office should have conducted breath or blood tests to reveal that fact. We disagree and affirm.
At the suppression hearing, Ken Howard, an investigator/sergeant with the Crawford County Sheriffs Department, testified he assisted in an investigation concerning allegations that had been made against Daniel Weaver. As he explained, he went to Weaver’s grandmother’s house, where Weaver had been staying; Weaver drove up while Howard was there; and he asked Weaver to come to the sheriffs office. Howard told Weaver that ^allegations had been made against him, and he needed to answer some questions. Howard stated that Weaver drove his own vehicle to the sheriffs office. According to Howard, he read the Miranda rights form to Weaver, asked if he understood his rights, and Weaver said he did; Howard then asked Weaver to initial and sign the form, which he did. Howard explained that he specifically asked Weaver if he had taken any medication and if he was fully aware of what was going on, and Weaver denied taking anything and said that he was fully aware of everything that was going on.
Howard then engaged Weaver in a conversation about G.W., Weaver’s five-year-old niece, and asked Weaver if he had ever had her perform oral sex on him. Howard testified that Weaver initially denied doing so, but then admitted that he once put his penis in the child’s mouth while babysitting her.
Weaver’s counsel attempted on cross-examination to demonstrate that Howard should have realized Weaver was under the influence of marijuana at the time his statement was given, Howard testified that, at first, Weaver’s postare was pitchfed forward, that Weaver piade bye contact with him, and that Weaver directly engaged him. Howard acknowledged that Weaver was drinking a lot of water and that after admitting his conduct with G.W., Weaver’s posture chahged tq slouching shoulders and no longer engaging Howard directly or making eye contact. Howard stated he attributed the change in posture to Weaver feeling the pressiire of revealing the truth about his cqndttct with G.W., and that, in his experience, people who are not telling the truth have a dry mouth. At the conclusion of the hearing, the trial court denied the motion to suppress.
| ¡¡A custodial statement is presumed to be involuntary, and the State has the burden of proving by a preponderance of the evidence that the stateinent was voluntarily given and ktiqwingly and intelligently made. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). When ap appellant claims that his confession Was rendered involuntary because of his drug or alcohol consumption, the level of his comprehension is a factual mátter to be resolved by the trial court. Walden v. State, 2012 Ark. App. 307, 419 S.W.3d 739. The test of voluntariness of onp who claims intoxication at the time of waiving his rights and making a statement is Whether the individual was of sufficient mental capacity to know what he was saying — capable of realizing the meaning of his statement — and that he was not sufferihg from any hallucinations or delusions. Id. In ruling on the voluntariness of a confession, we review the trial court’s findings of fact for clear error, making an independent determination based on the totality of the circumstances. Id. Matters of credibility are for the trial court to detéfmipe. Id. We will only reverse if the trial court’s finding is clearly erroneous. Id.
Here, we find no such clear error in the trial court’s denial of Weaver’s motion to suppress his custodial statement. There was simply no evidence presented at the suppression hearing upon which the trial court could have reasonably based a finding that Weaver was impaired at the time he gave his statement.
Affirmed.
WALMSLEY and VAUGHT, JJ., agree. | [
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LARRY D. VAUGHT, Chief Judge.
| jAppellant Jasmine Cole appeals from the September 7, 2011 order of the Washington County Circuit Court terminating her parental rights to her son, JE, born September 16, 2008. On appeal she claims that the trial court’s termination order was not supported by clear and convincing evidence and should be reversed. We disagree and affirm.
The Arkansas Department of Human Services became involved in this case in late July 2010, based on allegations of physical abuse. The abuse was first noticed by JE’s babysitter, who observed severe bruising on the child’s body and feared that the child had been a victim of physical abuse. She reported the abuse to an officer stationed at her apartment complex, who notified appellee DHS.
In response to the babysitter’s inquiries as to how JE sustained the injuries, Cole reported that her boyfriend, Otis Wayne Lynch, became angry because the child (who was 1¿twenty-two months old) urinated on the floor, and Lynch hit the child with a belt. On July 29, 2010, DHS obtained emergency custody of the child, and the child was removed from Cole’s custody by DHS. The toddler’s injuries included a “busted blood vessel to the left eye, bruising to his temples and right eye, scratches and bruises to the arm and stomach, old and new bruises to the back, and severe bruising to the back of both legs.” According to the emergency petition, when confronted, Lynch admitted to beating the child and was arrested for second-degree battery. Cole was also charged with felony permitting abuse of her child.
In an order entered on September 29, 2010, the court adjudicated the child dependent neglected based on abuse, neglect, and Cole’s parental unfitness, which was predicated on her unwillingness to accept responsibility for the harm that JE suffered. The court noted testimony from the investigating police officer who stated that when he asked Cole how she had not noticed these severe injuries to her child, she responded that she “dressed him in the dark” and that her boyfriend “may have spanked” the child. The trial court specifically found the police officer’s testimony that the child sustained his injuries at the hands of his mother’s boyfriend to be credible. The trial court also noted that Cole continued to make excuses for the child’s injuries, stating that the child was clumsy and that she did not know how the child sustained his injuries, while claiming that there was nothing that could be done to prevent Lynch from injuring the child because he “just gets out of control.”
The trial court concluded by clear and convincing evidence that [Cole’s] boyfriend Otis (aka ‘Wayne”) beat and abused [JE] and caused non-accidental injuries, intentional | sinjuries — Mother knew about her boyfriend beating her child and did nothing to stop it and continued to allow the child to be left with Mom’s abusive boyfriend. Mother exposed child to aggravated circumstances, by failing to protect. The adjudication of JE as dependent neglected was not appealed.
On January 26, 2011, the trial court placed JE in the custody of his maternal great-grandmother, Velda Tyson. At the time of the placement, Cole had “partially” complied with her case plan; however, she had failed to provide proof of employment, had not participated in individual eounsel- ing, and had not resolved her pending criminal charges.
At the permanency-planning hearing on May 25, 2011, the case goal was changed from reunification to adoption. The court found that JE “would be in grave danger if placed with [Cole] today.” The court also found that Cole “seems so angry and needs individual counseling” but due to her own actions had not taken advantage of the free counseling the court ordered in September 2010. The court also found that Cole continued to fail to comprehend how she “failed her child, allowed him to be abused by her boyfriend, and she still fails to make [JE] a priority.” The court also found that Cole
has not complied with all the court orders and the case plan. Specifically, [Cole] is unfit; she has not been in individual counseling; she has only seen [JE] [three] times since January 29, 2011; she has been [in] jail on her criminal charges since our last hearing; [Cole] has only been employed since March and only had her own apartment since April. She is not maintaining sustainable, measurable progress in this case; she has never been in 100% compliance.
The permanency-planning order (and the findings contained in that order) were not appealed. The termination hearing took place on August 31, 2011, and was predicated on the fact that the child had been out of his mother’s care for more than twelve months and the mother |/ailed to correct the conditions that caused removal of the child. The court also found that termination of parental rights was in the child’s best interest. It is from this order that Cole currently appeals.
For reversal, Cole contends that the evidence was insufficient to support the trial court’s findings that she had not made sufficient progress in improving the conditions that caused removal of the child and a meaningful effort to rehabilitate the home and correct the conditions that caused removal. Cole also argues that there is no evidence to support the trial court’s conclusion that the termination of parental rights was in the best interest of the child.
We review termination of parental rights cases de novo. Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 344, 285 S.W.3d 277, 281-82 (2008). The grounds for termination of parental rights must be proved by clear and convincing evidence. Id., 285 S.W.3d at 281. When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. Id., 285 S.W.3d at 281-82. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id., 285 S.W.3d at 282.
The trial court based the termination of appellant’s parental rights on Ark.Code Ann. § 9-27-341 (Supp.2011), which provides, in pertinent part, that
(b)(1)(A) the circuit court may consider a petition to terminate parental rights if the court finds that there is an appropriate permanency placement plan for the juvenile.
|b(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(A)That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent, parents, or putative parent or parents; and
(B) Of one (1) or more of the following grounds:
(i) (a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months, and despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied y the parent.
The main focus of Cole’s argument on appeal is that she was due more time to continue working on the case plan and to demonstrate compliance. She argues that there should have been no rush to terminate her parental rights because JE was being cared for by a loving, competent family member, and he was thriving. Cole also argues that despite the trial court’s conclusion otherwise, she had continued to make excellent progress in complying with her case plan. She notes that she did begin individual therapy the month before the termination hearing.
Also, Cole explains that her limited visitation with JE was a result of geography, not lack of interest. She points the court’s attention to the fact that she lives in east Arkansas and the child lives with his grandmother in northwest Arkansas. She claims that she cannot live near her child because she is attending school (and making satisfactory progress) at a community college in east Arkansas and is gainfully employed in Forrest City. However, she offers no explanation as to why she cannot attend school and work in closer proximity to her | fichild. But otherwise, there is no question that she was making adequate progress in many areas of the case plan.
There is but one failure that belies her claim that the termination was premature and not in the child’s best interest, and goes to the underlying reason that her son was originally removed from her care — the fact that the child had been severely beaten at the hands of Cole’s boyfriend. The record in this ease shows that Cole has consistently refused to accept any responsibility or recognize the problem with placing JE in such a position (despite having served time for the underlying crime of failing to protect the child). Velda Tyson testified that Cole
has [had] a mean attitude throughout the case, [and is] angry toward me too. We get into it at least twice a week on the phone. When we talk.she doesn’t take any responsibility for the fact that her actions caused this. It’s everybody else’s fault.
Further, Tyson testified that Cole brings other people (including unknown men) with her when she visits the child. And, according to Tyson’s testimony, Cole still does not accept responsibility for the physical abuse that JE suffered at the hands of Lynch. Tyson stated that when she explains to Cole that JE is under DHS protection because Cole’s “boyfriend beat the tar out of [JE],” Cole responds, “I don’t know that. Daycare did it.” Tyson testified, “She’s still saying that daycare did it.”
The trial court made the following findings based on the testimony 1) Cole did not make an effort to see her child as often as Tyson would permit; 2) Cole brought other men with her to the few visits she made; 3) Cole still claims that the daycare center is responsible for abusing JE; and 4) Cole’s own grandmother (and the child’s guardian) observed that the “whole thing” has not “sunk into [Cole’s] head” and this makes for a harmful situation for |7JE. The court also noted testimony from Tyson that she would be willing to permanently care for the child.
The best-interest standard requires a consideration of the child’s likelihood of adoption and the potential harm from returning the child to the parent’s custody. Ark.Code Ann. § 9—27—341(b)(3). Additionally, the trial court is only required to find that there is a risk of harm; it is not required that a specific harm be identified. In re Adoption of K.M.C., 62 ArkApp. 95, 969 S.W.2d 197 (1998). Our supreme court has charged that the “harm analysis” should be conducted in broad terms. Bearden v. Ark Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).
Here, the trial court had sufficient evidence to support an order terminating Cole’s parental rights and a conclusion that the termination was in the child’s best interest. First, the child had been out of Cole’s home for over twelve months and there was evidence that he was adoptable. Second, Cole failed to comply with the case plan in its minute detail (e.g. counseling, visitation) but also in the most fundamental of ways—most alarmingly, Cole’s inability to recognize and accept the facts of the circumstances surrounding the severe abuse JE suffered and the role she played in that abuse. This failure alone supports a finding that returning the child to Cole presents a substantial risk of serious harm and is therefore not in the child’s best interest.
We have previously held that even full completion of a case plan is not determinative of the outcome of a petition to terminate parental rights. Wright v. Ark Dep’t of Human Servs., 83 Ark.App. 1, 115 S.W.3d 332 (2003). What matters is whether completion of the case plan achieved the intended result of making the parent capable of caring for the child— mere Incompliance with the directives of the court and DHS is not sufficient if the root cause of the problem is not dealt with. Lee v. Ark Dep’t of Human Servs., 102 Ark.App. 337, 345-46, 285 S.W.3d 277, 282-83 (2008).
Based on the fact that JE had remained in limbo for over one year, and Cole had yet to accept any meaningful responsibility for the abuse that JE was forced to suffer, the trial court did not err in its failure to allow Cole more time to progress. She had shown no progress in the single most crucial component of the case, demonstrating that she could protect and care for her son. As such, we see no clear error in the trial court’s order and affirm the termination of Cole’s parental rights.
Affirmed.
HART and ROBBINS, JJ., agree.
. As a result of Cole agreeing to a plea, the charge was dropped to misdemeanor endangering the welfare of a minor. | [
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JOSEPHINE LINKER HART, Judge.
hKevin and Deborah Crumpacker appeal from the grant of summary judgment in Franklin County Circuit Court in favor of their building contractor, Gary Reed Construction, Inc., and Gary Reed individually (hereinafter Reed). On appeal, the Crumpackers argue that the circuit court erred in granting summary judgment where there were issues of material fact concerning whether Reed breached the implied warranty of habitability for the house that he constructed for the Crumpackers. We agree and reverse and remand.
12Most of the key facts are not disputed. On June 29, 2003, the Crumpackers entered into an agreement with Reed for him to build them a new home for $150,000. Even prior to the Crumpackers moving into the new dwelling, they noticed that there were cracks in the brick veneer. In March 2004, they notified Reed of this problem. In May 2004, the Crumpackers moved into the residence. The problems worsened. Cracks appeared in the walls, windows could not be opened, and many doors could not be closed. Reed inspected the residence. Although Reed disputes whether it was at his direction, the Crum-packers attempted to alleviate the settling problem by installing a French drain, which they tied into the gutter system. However, the settling problem continued to worsen. In 2005, Reed poured concrete underneath the footings, but this attempted cure only seemed to add to the problem. Ultimately, a third party was hired by the Crumpackers to repair the settling problem. That company charged $26,550.
On March 29, 2007, the Crumpackers filed suit against Reed, alleging breach of contract and breach of the implied warranty of habitability. They sought reimbursement for the home repairs. Reed subsequently moved for summary judgment, asserting that the Crumpackers’ case was time-barred and that the Crum-packers “can point to no specific fact or set of facts, which would serve to establish liability on the part of either Defendant for their breach of the oral contract entered into between the parties.” Reed attached Kevin Crumpacker’s deposition in which he admitted that he did not know what “Reed did or failed |sto do that rendered [his] house uninhabitable or constituted an unworkman-like manner of doing whatever he did,” and that he had no evidence concerning what caused the settling problem.
The trial court found that the Crum-packers’ case was not time-barred; however, it granted summary judgment. The trial court specifically found that the motion should be granted because “the Plaintiffs’ Complaint and other documents considered in conjunction therewith fail to demonstrate that the Defendant did, or failed to do anything which led to the alleged defects in the Plaintiffs’ residence and the damages they have sustained, and accordingly there is a simple lack of proof of causation offered by the Plaintiffs.”
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Sykes v. Williams, 373 Ark. 236, 239-40, 283 S.W.3d 209, 213 (2008). We will reverse a grant of summary judgment when the trial court makes an erroneous conclusion of law. See Southeastern Distributing Co. v. Miller Brewing Co., 366 Ark. 560, 237 S.W.3d 63 (2006).
The Crumpackers argue that the trial court erred in finding that Reed was entitled to summary judgment as a matter of law because proof of causation is not an element of a claim for breach of contract or breach of implied warranty of habitability. We agree.
| ^Implied warranties of habitability, sound workmanship, and proper construction are given by operation of law and are intended to hold a builder-vendor to a standard of fairness. Bullington v. Palangio, 345 Ark. 320, 45 S.W.3d 834 (2001). Cause is a tort element that has no rele vance in a contract-based cause of action arising out of a guarantee of specific favorable results. See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996). In Graham Construction Company, Inc. v. Earl, 362 Ark. 220, 208 S.W.3d 106 (2005), the supreme court rejected the notion that a plaintiff in a breach-of-warranty case was obligated to prove how a defendant’s workmanship or materials had caused the damages. The Earl court stated that the plaintiff need only prove that the condition of the dwelling breached the warranty, and at that point, the burden shifted to the defendant builder to defend by proving “there was no warranty, that he was not responsible under the warranty due to defective materials or specifications supplied by the plaintiff, or for some other reason.” 362 Ark. at 229, 208 S.W.3d at 112.
Here, the Crumpackers presented evidence that the house that Reed built was defective. They also presented evidence that they sustained monetary damages as a result of those |fidefects. Nothing more was required of them to withstand a motion for summary judgment. Accordingly, we hold that the trial court erred in granting summary judgment in that Reed was not entitled to that relief as a matter of law.
Reversed and remanded.
PITTMAN, ROBBINS, and KINARD, JJ., agree.
GLADWIN and GRUBER, JJ., dissent.
. Although the Crumpackers list three separate points, the first point only sets forth the standard of review. Further, the second point ostensibly dealing with "breach of con tract" and the third point, which purports to specifically address Reed's alleged breach of the implied warranty of habitability, are essentially parts of the same argument inasmuch as the Crumpackers allege that Reed breached the contract because of the breach of the warranty of habitability. We thus will address these three points as a single argument.
. The dissent criticizes us for basing our decision “on a straight contract theory. ” We are compelled to do so, because those theories were the only ones set forth in the Crumpack-ers’ complaint. We can perhaps understand the dissent’s confusion inasmuch as certain elements in a breach-of-warranty case are virtually identical to a strict-liability case. See Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985). However, no matter how similar certain elements in a breach-of-warranty claim are to a cause of action alleging strict liability, they are not all the same. O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997). We do note that at least one commentator has stated that a cause of action for breach of warranty grew out of an action sounding in tort. J.B. Ames, History of As-sumpsit, 2 Harv. L.Rev. 1, 8 (1888). Nonetheless, the dissent is mistaken in its belief that elements of a case that sounds in ordinary negligence or professional malpractice should be grafted onto a case that, under today’s law, is firmly rooted in causes of action for breach of warranty and breach of contract. | [
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JOHN B. ROBBINS, Judge.
| Appellant Johnta Barber was convicted in a jury trial of aggravated robbery, kidnapping, aggravated assault, theft of property, unlawful discharge of a firearm from a vehicle, and fleeing. Mr. Barber was sentenced to a total of fifty-seven years in prison, and he now appeals.
Mr. Barber raises three points for reversal. First, he argues that the trial court erred in denying his motion to suppress his custodial statement on the basis that he was illegally arrested. Next, Mr. Barber contends that there was insufficient evidence to support the verdicts. Finally, he argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial. We affirm.
|2Pue to double-jeopardy concerns, we first are required to address appellant’s challenge to the sufficiency of the evidence supporting his convictions. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Bowker v. State, 363 Ark. 345, 214 S.W.3d 243 (2005). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in a light most favorable to the State, considering only that evidence that supports the verdict. Id.
The State’s theory in this case was that Mr. Barber acted in concert with Cornelius Page and James Walker in robbing a bank in Greenbrier on the morning of April 13, 2007. The State presented evidence that Mr. Page and Mr. Walker went inside the bank to get the money, and that Mr. Barber drove the getaway car.
One of the victims was bank employee Jana Crisler. Ms. Crisler arrived at work at about 7:45 a.m. that morning, and a man put a gun to her back and ordered her to open the door. Once inside the bank, Ms. Crisler turned off the alarm. A second man was holding a gun on bank employee Regina Lanfere. The men ordered the bank employees to open the vault, and once inside the vault one of the men began stuffing money into an orange duffel bag. Once he was finished loading the money, the man ordered Ms. Crisler and Ms. Lan-fere into the bathroom while holding them at gunpoint. The robber shut the bathroom door leaving the women sitting in the dark, and subsequently the women were ordered to relocate |3to the vault. A minute later, Ms. Crisler heard a scream and the men put bank employee Stephanie Un-gerank into the vault. Ms. Ungerank testified that when she entered the bank, two masked men grabbed her by her hair, beat her head into the floor, and beat her with a gun. Once inside the vault, Ms. Ungerank remained there because she was afraid she would be shot if she moved.
After the three women remained in the vault for a while, bank employee John Simmons entered the bank. Mr. Simmons knew something was wrong because the lights were off and things were in disarray, and he heard the women crying in the vault. Ms. Ungerank told him to lock the door to the bank, which he did. Then Ms. Ungerank advised Mr. Simmons to call 911, and she gave him a description of the vehicle she had seen in the parking lot. She described it as a maroon car with dark tinted windows, with out-of-state tags, possibly Illinois. When Mr. Simmons made the emergency call, he advised that Ms. Ungerank was certain that the tags were out-of-state.
Officer Dusty Kirkpatrick received information that morning to be on the lookout for a car matching the description provided. He observed a maroon car with dark tinted windows, with a Missouri license plate, traveling southbound on Highway 65 about a mile from Conway. The suspect car proceeded onto Interstate 40 eastbound, and Officer Kirkpatrick followed, never losing sight of the vehicle. Officer Greg Bray was patrolling eastbound traffic between Conway and Mayflower, and he joined the chase and initiated his blue lights.
|4Officer Bray testified that after he turned on his blue lights, the maroon car sped up to one hundred miles per hour. The car was passing vehicles on the left shoulder and struck an SUV being driven by Thomas Nabholz, causing the SUV to flip and resulting in injuries to Mr. Na-bholz. The suspect car took the Mayflower exit, speeding through town at eighty miles per hour and turning southbound on Highway 365.
During the chase, one of the suspect car’s tires went flat and it continued at high speeds on the rim. Six shots were fired out of the back glass on the passenger’s side of the car in the direction of Officer Bray’s patrol unit. The car eventually came to a stop at White City Road, where the three suspects emerged from the vehicle.
All of the suspects attempted to flee, but with the help of numerous police officers on the scene, Mr. Page and Mr. Walker were immediately apprehended. However, the driver of the car escaped into the woods. The driver was described as a black man wearing a brown jacket, and either pants or long shorts that were dark in color. Upon processing the scene, investigators found large sums of money in the car, on the apprehended suspects, and in the vicinity, which totaled more than $100,000. A handgun and orange duffel bag were found inside the car. It was discovered that there was a Florida license plate underneath the Missouri license plate, and that the car had been rented from Florida.
After the getaway driver escaped into the woods, there was a large-scale manhunt with fifty police officers, helicopters, and canines in pursuit. The search lasted about eight hours and was aided by a nearby citizen, Pam Fuller, who lives off of White City Road. Ms. Fuller |snoticed that there were a lot of police at the church by her house, and she dialed 911 and advised that she thought she saw the man they were looking for in her back yard. Ms. Fuller testified that the man was in a wooded area that was not an area where people go into, and that he was covered in mud and shivering.
Based on the information provided by Ms. Fuller, the police made contact with the suspect, who was later identified as Mr. Barber. Officer Jason Aaron found Mr. Barber lying face down in some mud and leaves, and Mr. Barber did not obey the officer’s commands. Officer Aaron kneeled down on Mr. Barber’s back and handcuffed him. Appellant was taken into custody, and he was found to be carrying a Florida identification card. Mr. Barber was wearing a muscle shirt and long shorts, and a muddy brown jacket was found about five feet from where he was apprehended. He was apprehended a few hundred yards from where the maroon car had come to rest.
After Mr. Barber was arrested and taken to the police station, Officer Doug Estes informed him of his Miranda rights and Mr. Barber agreed to give a statement. During the interview, Mr. Barber said that he lived in Orlando, Florida. When asked about his arrest, Mr. Barber stated that he was a transient walking in the woods, and he had a seizure and went to sleep. He claimed ignorance of any criminal activity. Officer Estes inquired as to how he got in the woods and asked, “Did you fall out of a spaceship?” Mr. Barber responded, “Yeah, that’s what happened. I want to talk to my lawyer.”
|fiIn this appeal, we first address Mr. Barber’s arguments pertaining to the sufficiency of the evidence. Mr. Barber challenges each of his six convictions on the basis that none were supported by substantial evidence.
In his brief, Mr. Barber challenges his convictions for aggravated robbery, kidnapping, and theft of property together. Arkansas Code Annotated section 5-12-103(a)(1) (Repl.2006) provides that a person commits aggravated robbery if he commits robbery and is armed with a deadly weapon. A person commits kidnapping if, without consent, the person restrains another person so as to substantially interfere with the other person’s liberty with the purpose of facilitating the commission of any felony or flight after the felony. Ark.Code Ann. § 5-ll-102(a)(3) (Repl.2006). A person commits theft of property if he knowingly takes or exercises unlawful control over the property of another person with the purpose of depriving the owner of the property. Ark.Code Ann. § 5-36-103(a)«) (Repl.2006).
In challenging the sufficiency of the evidence to support the above three convictions, Mr. Barber notes that none of the bank employees could identify any of the perpetrators. He further asserts that there was an absence of evidence that he entered the bank. While the State theorized that since Mr. Barber was the black male who was found in the vicinity of the maroon car, he was associated with the crimes, Mr. Barber posits that there was no evidence showing that he had any relationship to the events associated with the bank robbery. Because of a lack of evidence connecting him to the actions that occurred at the bank, Mr. Barber 17argues that his convictions for aggravated robbery, kidnapping, and theft of property must be reversed.
A person commits unlawful discharge of a firearm from a vehicle if he recklessly discharges a firearm from a vehicle in a manner that creates a substantial risk of physical injury to another person. Ark. Code Ann. § 5-74-107(b)(l) (Repl.2005). Mr. Barber challenges the sufficiency of the evidence to support that conviction on the basis that there was no evidence that he discharged a firearm from a vehicle or was even in a vehicle involved in the chase. Mr. Barber notes that the shots were fired through the rear window from the passenger’s side, that both Mr. Page and Mr. Walker tested positive for gunshot residue, and that Officer Bray testified that Mr. Barber was not the shooter.
Finally, Mr. Barber challenges the sufficiency of the evidence on his aggravated assault and fleeing convictions. Under Ark.Code Ann. § 5-13-204(a)(() (Repl. 2006), a person commits aggravated assault if, under circumstances manifesting extreme indifference to human life, he purposely engages in a conduct that creates a substantial danger of death or serious physical injury to another person. The fleeing statute, Ark.Code Ann. § 5-54-125 (Repl.2005), prohibits fleeing if a person knows his immediate arrest or detention is being attempted by a duly authorized law enforcement officer. Mr. Barber contends that each of these convictions must be reversed because there was no evidence that he was the driver of the fleeing vehicle that caused the accident with the SUV being driven by Mr. Nabholz.
|sWe hold that there was substantial evidence to support each of appellant’s convictions. Pursuant to Ark.Code Ann. § 5-2-402(2) (Repl.2006), a person is criminally liable for the conduct of another person if the person is an accomplice of another person in the commission of an offense. A person is an accomplice if, with the purpose of promoting or facilitating the commission of an offense, the person aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Ark.Code Ann. § 5-2-403(a)(2) (Repl.2006). In the present case, appellant was charged with committing crimes while acting in concert with two or more persons, and the theory of accomplice liability was implicated by the State’s evidence. The jury was instructed on accomplice liability without objection. In Wilson v. State, 365 Ark. 664, 666-67, 232 S.W.3d 455, 458 (2006), our supreme court wrote:
We have said that there is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Jefferson v. State, 359 Ark. 454, 198 S.W.3d 527 (2004). When two people assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). One cannot disclaim accomplice liability simply because he did not personally take part in every act that went to make up the crime as a whole. Id.
While the State did not prove that Mr. Barber actually entered the bank, it did provide substantial evidence that Mr. Barber was the driver of the getaway car, and thus was an accomplice of the two men who committed the aggravated robbery, kidnapping, and theft of property. And while Mr. Barber did not personally shoot at Officer Bray’s vehicle, his conduct of driving the fleeing vehicle while another person in the car fired the shots | fl sufficiently implicated him as an accomplice to unlawfully discharging a firearm from a vehicle.
Although Mr. Barber argues that there was insufficient evidence that he was the driver of the maroon car, we disagree. The evidence viewed in the light most favorable to the State showed that after the maroon car became disabled, two of the suspects were apprehended with large sums of money but the driver ran into the woods. A massive manhunt ensued, and based on a tip from a nearby citizen Mr. Barber was located face down, covered in mud, in a wooded location where people had no reason to be. Mr. Barber was unresponsive to the officer’s commands, and it was later determined that he was from Florida, where the getaway car had been rented. Just five feet from where he was apprehended, a brown jacket was found, which the driver had been identified as wearing when he fled from the vehicle. Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Simmons v. State, 2009 Ark.App. 705, 2009 WL 3460715. In the present case, there was circumstantial evidence that Mr. Barber knowingly participated in the criminal activity by driving the getaway car, and thus there was substantial evidence of his accomplice liability for aggravated robbery, kidnapping, theft of property, and unlawful discharge of a firearm from a vehicle.
As for his aggravated assault and fleeing convictions, there was substantial evidence to convict Mr. Barber as a principal. As we previously indicated, there was substantial evidence that he was driving the maroon car. After Officer Bray turned on his blue lights, Mr. Barber | ^accelerated to a speed of one hundred miles per hour and struck an SUV, causing it to flip and resulting in injuries to the driver. This conduct sufficiently satisfied the elements of aggravated assault and fleeing.
We next turn to Mr. Barber’s argument that the trial court erred in denying his motion to suppress his custodial statement on the basis that it was obtained as a result of an illegal arrest. Mr. Barber cites Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), where the Supreme Court held that the “fruit of the poisonous tree” doctrine provides that evidence obtained by the exploitation of a primary illegality must be excluded. Mr. Barber asserts that because the police had no reasonable cause to believe he had committed a felony, his arrest was unlawful and his custodial statement was the fruit of the poisonous tree.
Arkansas Rule of Criminal Procedure 4.1(a)(i) provides that a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony. In the case at bar, Mr. Barber argues that reasonable cause was lacking because at the time of his arrest there was no direct evidence that he had committed a robbery. Other than the fact that he was a black male found a few hundred yards from where the maroon car had stopped, appellant submits that there was no evidence that he had committed any of the offenses. Mr. Barber was not arrested until eight hours after the chase ended, and he did not possess any of the money stolen from the bank. Under these circumstances, appellant maintains that the officers lacked evidence to support their suspicion | nthat he was the third occupant of the vehicle, and that any statements he made to the police subsequent to his arrest should have been suppressed.
Reasonable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. McKenzie v. State, 69 Ark.App. 186, 12 S.W.3d 250 (2000). Reasonable, or probable, cause for a warrantless arrest exists when the facts and circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person to be arrested. Id. In assessing the existence of reasonable cause, the appellate court’s review is liberal rather than strict. Id. In reviewing a suppression challenge, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
We hold that the trial court did not err in concluding that the police officers had reasonable cause to arrest Mr. Barber without a warrant. The police were given information that a black man covered in mud and shivering was in a wooded area where people normally did not go. Upon investigating, the police found Mr. Barber lying face down in mud and leaves, lying motionless and ignoring directives from the police. He was wear ing long shorts, and five feet away was a brown jacket covered in mud. These items of clothing matched the description of those worn by the driver who had escaped into the woods. These facts and 112circumstances gave the officers reasonable cause to believe that Mr. Barber was the escaped driver who had engaged in multiple felonies earlier that day. Therefore, the trial court committed no error in denying appellant’s motion to suppress.
Mr. Barber’s remaining argument is that the trial court erred in denying his motion to dismiss on the basis that he was denied a speedy trial. Arkansas Rule of Criminal Procedure 28 governs speedy trial. Any defendant charged in circuit court shall have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months of the date of arrest. See Ark. R.Crim. P. 28.1(c) and 28.2(a). Certain periods of time are excluded in computing the time for trial. See Ark. R.Crim. P. 28.3.
In this case, Mr. Barber was arrested on April 13, 2007. He was not brought to trial until January 6, 2009. Mr. Barber concedes that there was an excludable period for purposes of calculating the time for speedy trial. In particular, an order was entered granting Mr. Barber’s motion for severance on April 15, 2008, and that order specifically stated that the time between the order and the trial date was charged against Mr. Barber for purposes of speedy trial. However, Mr. Barber argues that there were no other excludable periods. Because he was arrested on April 13, 2007, and the severance order was entered more than one year later on April 15, 2008, Mr. Barber contends that his right to a speedy trial was violated and that his convictions must be reversed and dismissed.
The appellate court reviews the excludability periods of time for speedy-trial calculation de novo. Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002). Once a defendant | ^demonstrates a prima facie case of a speedy-trial violation, specifically, that the trial will be held beyond the twelve-month speedy-trial period, the burden is on the State to show that the delay was the result of the defendant’s conduct or was otherwise justified. Id. In the instant case, Mr. Barber made a prima facie case of a speedy-trial violation, but the State has met its burden of identifying an additional time period charged against the defendant that put his trial within the required twelve-month period.
Rule 28.3(a) provides that the following periods shall be excluded in computing the time for trial:
The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.
The excludable period contemplated by this rule begins at the time the pretrial motion was made and includes those portions of delay attributable to the defendant until the motion is heard by the court and not more than thirty days thereafter. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).
Mr. Barber’s trial was originally scheduled for August 6, 2007, with a pretrial hearing set for July 13, 2007. On July 11, 2007, Mr. Barber filed his motion to suppress statement and also a motion to suppress physical evidence. By an order of continuance dated July 13, 2007, the trial court rescheduled the pretrial hearing for October 12, 2007, and rescheduled 114the trial for October 29, 2007. In accordance with Rule 28.3(a), the continuance order specifically charged the time between the order and the scheduled trial against Mr. Barber. Mr. Barber did not object to that period being charged against him, and a contemporaneous objection to an excluded period is necessary to preserve the argument in a subsequent speedy-trial motion. See Ferguson, supra. The delay was properly charged against appellant, he made no objection, and that excludable period put his trial within twelve months of his arrest as calculated under Rule 28. Therefore, appellant was afforded a speedy trial, and the trial court properly denied his motion to dismiss.
Affirmed.
GLOVER and MARSHALL, JJ., agree. | [
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ROBERT L. BROWN, Justice.
hOn appeal, the appellant, Southwestern Energy Production Company (“Southwestern Energy”), asks this court to affirm the circuit court’s order regarding Sections 8, 9, and 31; reverse the circuit court’s order regarding Sections 4 and 5; and modify the order to begin the suspension of drilling obligations from the date of the filing of the complaint. On cross-appeal, the Elkinses ask this court to reverse the circuit court’s order as to Sections 8 and 9 and affirm the order as to Sections 4 and 5. The Elkinses do not address the argument regarding the starting date of the suspension of the drilling operations. We affirm in part, reverse in part, and modify the circuit court’s order.
The underlying facts in this case are undisputed. On September 30, 2004, ap-pellees and cross-appellants, James Elkins and Ruby Elkins, husband and wife, entered into an Oil | ¡>and Gas Lease Agreement with Schonwald Land, Inc. (Schon-wald), which covered five sections of land in Conway County. The sections of land covered are identified as Sections 4, 5, 8, 9, and 31. The lease was subsequently assigned by Schonwald to Southwestern Energy. The lease term was two years with an option to extend the lease for an additional two years. The lease provision governing length of term is as follows:
Subject to the other provisions herein contained, this lease shall remain in full force for a term of two (2) years from this date (herein called “primary term”) and as long thereafter as oil and gas, or either of them, is produced from the above described land or drilling operations are continuously prosecuted as hereinafter provided. “Drilling Operations” includes operations for the drilling of a new well, the reworking, deepening or plugging back of a well or hole or other operations conducted in an effort to obtain or re-establish production of oil or gas; and drilling operations shall be considered to be “continuously prosecuted” if not more than 180 days shall elapse between the completion or abandonment of one well or hole and the commencement of drilling operations on another well or hole. If, at the expiration of the primary term of this lease, oil or gas is not being produced from the above described land but lessee is then engaged in drilling operations, this lease shall continue in force so long as drilling operations are continuously prosecuted; and if production of oil and gas results from any such drilling operations, this lease shall continue in full force so long as oil or gas shall be produced. If, after the expiration of the primary term of this lease, production from the above described land should cease, this lease shall not terminate if the lessee is then prosecuting drilling operations, or within 180 days after each such cessation of production commences drilling operations, and this lease shall remain in force so long as such operations are continuously prosecuted, and if production results therefrom, then as long thereafter as oil or gas is produced form the described land.
On August 18, 2006, Southwestern Energy sent a letter and check to the Elkinses exercising its right under the lease to extend the lease term for an additional two years. On December 7, 2006, the first well was completed on Section 31. On June 11, 2007, a second well was completed on Section 31. On May 20, 2009, the first well was completed on | ¡¡Section 9. On May 21, 2009, a second well was completed on Section 9 that also developed acreage for drilling purposes in Section 8. This was the last well completed on any of the sections at issue in this case.
On August 28, 2009, the Elkinses mailed a letter to Southwestern Energy, demanding release from the lease of all acreage except Section 31. After a reply letter from Southwestern Energy that informed the Elkinses of the development on Sections 8 and 9, another letter, dated September 4, 2009, was mailed to Southwestern Energy, demanding release of all acreage except Sections 9 and 31.
On October 13, 2009, the Elkinses filed a complaint against Southwestern Energy and Schonwald to remove the cloud on the title to Sections 4, 5, and 8. In their complaint, they asserted causes of action for fraud, trespass on minerals, constructive fraud, breach of contract, or alternatively, unjust enrichment and promissory estop-pel. Both parties filed motions for partial summary judgment with respect to Sections 4, 5, and 8.
The circuit court entered an order on April 7, 2010, and made the following findings:
1. All parties agree that there are no material issues of fact that remain to be resolved and that this case should be decided based upon application of A.C.A. § 15-73-201 to the stipulated facts.
2. The Court finds that production was commenced in Section 31 during the primary term of the lease agreement and remains subject to the terms of the original lease between the parties.
3. Although the Plaintiff argues that Section 9 should be released from the terms of the lease, the affidavit of Stephen L. Mahanay states that with a completion date of May 20, 2009, Southwestern Energy Company drilled, completed and produced gas |4from the Green Bay Packaging 8-17 # 2-9 well located in Section 9, Township 8 North, Range 17 West, in Conway County, Arkansas. The Plaintiff has put forth no evidence to contradict this affidavit. Therefore, the court finds that the completion of this well and production from it was within one year of the expiration of the primary term of the lease and is sufficient to extend the primary term of the lease as to all of Section 9.
4. The Plaintiff [has] also requested that their lands in Section 8 be released from the Defendants!’] lease. Again, the Defendants rely upon the affidavit [of] Stephen L. Mahanay to establish that the lands of the Plaintiff lying in Section 8 are still subject to the primary terms of the lease. This affidavit states that on May 21, 2009, Southwestern Energy Production Company drilled, completed and procured gas from the Green Bay Packing 8-17 # 1-9H8 well which developed acreage, including Section 8 acreage described in the Lease from a drill site located on the surface of Section 9 pursuant to an approval issued by the Arkansas Oil & Gas Commission. The Plaintiff has put forth no proof to rebut the affidavit of Mr. Mahanay. The Court therefore finds that the property of the Plaintiff located in Section 8 of the lease remains subject to the terms of the lease by the completion and production from said well.
5. The Court notes and examination of the preamble to Act 380 of 1983 reveals that it states:
“Whereas, many citizens of Arkansas are not well-versed in the finer points of complex oil and gas law, ...; and, Whereas the standard oil and gas lease contains in the habendum clause a provision that if production in paying quantities is had in any part of the lands covered by the lease that the lease term is extended with respect to all lands covered by the lease; and, Whereas, such clause unduly and unconscionably restricts the rights of the lessors of the nonproducing unexplored lands which restriction is against the public policy of encouraging the discovery and production of oil and gas:”
The Court finds that to allow acreage contained in sections in which there has not been production in paying quantities or development during the primary lease term or within one (1) year thereafter to remain subject to the lease by production or development in other sections contained in the lease defeats the purpose and intent of Act 330 of 1983. Therefore, the lands of the Plaintiff in Section[s] 4 and 5 are released from the lease agreement between the Plaintiffs and the Defendants.
| ¾6. The Court further finds that the Defendant’s drilling obligations under Ark.Code Ann. § 15-73-201 (Repl.) are suspended from the date of this opinion until such time as any appeal has been completed or the time for appeal has run.
After entering this order, the circuit court issued a Rule 54(b) certificate, finding that its interpretation of Arkansas Code Annotated section 15-73-201 was final, that the Elkinses’ claim of fraud against Schonwald remained unresolved but was subsidiary to the issue of statutory interpretation, that the determination of the statutory-construction issue will directly impact and most likely lead to the resolution of any unresolved issues in this case, and that there is no just reason for delay of the entry of final judgment for all purposes.
This court reviews issues of statutory construction de novo. Ryan & Co. AR, Inc. v. Weiss, 371 Ark. 43, 45, 263 S.W.3d 489, 491 (2007). It is for this court to decide what a statute means, and we are not bound by the circuit court’s interpretation. Id. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Miss. River Transmission Corp. v. Weiss, 347 Ark. 543, 550, 65 S.W.3d 867, 872-73 (2002). When the language of a statute is plain and unambiguous, there is no need to re sort to rules of statutory construction. Id. When the meaning is not clear, we look to the language of the statute, the ^subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id.
A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law. Mitchell v. Lincoln, 366 Ark. 592, 596, 237 S.W.3d 455, 458 (2006). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. at 597, 237 S.W.3d at 458. On appellate review, we determine if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 597, 237 S.W.3d at 459.
The primary issue in this case is the proper interpretation of Arkansas Code Annotated section 15-73-201, and more specifically, the interplay between subsections (a) and (b), which read as follows:
(a) The term of an oil and gas, or oil or gas, lease extended by production in quantities in lands in one (1) section or pooling unit in which there is production shall not be extended in lands in sections or pooling units under the lease where there has been no production or exploration.
(b) This section shall not apply when drilling operations have commenced on any part of lands in sections or pooling units under the lease within one (1) year after the |7expiration of the primary term, or within one (1) year after the completion of a well on any part of lands in sections or pooling units under the lease.
Ark.Code Ann. § 15-73-201(a), (b) (Repl. 2009).
This court recently interpreted subsections 15-73-201(a) and (b) in Snowden v. JRE Investments, Inc., 2010 Ark. 276, 370 S.W.3d 215. The facts of the Snowden case are remarkably similar to the facts in the instant case. The Snowden case also involved an oil and gas lease that was extended by drilling operations and production. Snowden, 2010 Ark. 276, 370 S.W.3d 215. The Snowdens owned the mineral interest in approximately 1250 acres of land that they leased by agreement on February 11, 2005, for a term of three years. The lease contained an extension provision stating that the lease “shall remain in force for a primary term of three (3) years and as long thereafter as oil, gas or other hydrocarbons are produced from said leased premises or from lands pooled therewith.” A separate provision provided:
Notwithstanding anything contained in this Lease to the contrary, it is expressly agreed that if the Lessee shall commence operations as provided herein at any time while this Lease is in force, this Lease shall remain in force and its terms shall continue so long as such operations are prosecuted, and if production results therefrom, then as long as production is maintained.
The lease also provided a definition for the term “operations” that included, but was not limited to,
[c]ommencing, construction of roadways, preparation of drillsite, drilling, testing, completing, recompleting, deepening, plugging baek[,] repressuring[,] pressuring[,] maintenance, cycling, secondary recovery operations, or the production of oil or gas, or the existence of a shut-in well capable of producing oil or gas.
The lease was assigned to Chesapeake on September 16, 2005.
| ^Chesapeake began drilling a well in Section 29 of the land. Several days later, on February 13, 2008, Chesapeake filed an Affidavit of Drilling Operations and Lease Extension, which extended the lease. On March 29, 2008, the first well was completed on Section 29. The last well was completed on Section 29 on September 9, 2008. Before that date, however, the Snowdens filed a complaint against Chesapeake and its predecessor on May 19, 2008. After a response, the defendants moved for summary judgment based on the lease terms and Arkansas Code Annotated section 15-73-201. The Snowdens filed a cross-motion for summary judgment. The circuit court entered its order and found that Arkansas Code Annotated section 15-73-201 was not ambiguous; that, pursuant to that section, the lease continued to be in effect as to all sections for one year subsequent to August 23, 2008; and that 15-73-201(b) requires drilling one well per year to avoid the effect of subsection (a).
This court noted on appeal that the Snowdens’ argument was whether the cir-euit court erred in interpreting Arkansas Code Annotated section 15-73-201. Because it was undisputed that Chesapeake commenced drilling on the Snowden’s property prior to the end of the term and continued drilling until the well was corn-pleted and producing, the question for this court was whether section 15-73-201 operates to limit extension of the lease to just [flSection 29 where production had occurred or whether the lease was extended as to all lands under the lease. Snowden, 2010 Ark. 276, 370 S.W.3d 215.
Regarding the interpretation of section 15-73-201, this court said:
Applying the plain language of the statute, we must affirm the circuit court’s grant of summary judgment in favor of Chesapeake.... The language of subsection (b) states that the section “shall not apply” where drilling has commenced on “any part of lands in sections or pooling units under the lease” within a year of the expiration of the primary term of the lease or within one year of the completion of a well on “any part of lands in sections or pooling units under the lease.” Here, Chesapeake drilled on the Snowdens’ land in Section 29 within a year after the expiration of the primary term, and it commenced drilling and completed two additional wells on Section 29 within that year, the last well being completed on September 9, 2009. Thus, pursuant to the statute’s plain language, the circuit court properly granted summary judgment in favor of Chesapeake. Subsection (a) of the statute would operate to sever Section 29 — the producing unit — from the Snowdens’ other leased acreage for the purposes of extending the lease. However, by commencing drilling within a year of the expiration of the primary term, the statute unambiguously states that subsection (a) did not apply to sever the producing section from non-producing units. Therefore, the lease was extended to all lands under the Snowdens’ lease, not just the producing section. Furthermore, Chesapeake completed its last well on September 9, 2009. Pursuant to subsection (b), Chesapeake had another year from that date to commence drilling on any section or pooling unit under the lease to continue to extend the lease to all leased lands, producing and non-producing, and prevent the operation of subsection (a), which would sever the lease as to non-producing sections or pooling units.
Id. at 9, 370 S.W.3d 215.
In the instant case, Southwestern Energy completed the two wells on Section 31 by June 11, 2007. That was well within the primary term of the lease, which expired September 30, 2008. The two wells on Section 9 were completed on May 20 and 21, 2009, which was within one year of the expiration of the primary term. The end of the primary term plus one year was September 30, 2009. Under this court’s interpretation announced in Snowden,
I ^Southwestern Energy had until one year after the expiration of the primary term to commence drilling on the lands under the lease. Furthermore, as this court said in Snowden, Southwestern Energy had one additional year from the date it completed its last well — May 21, 2009 — to commence drilling on any section or pooling unit under the lease to continue to extend the lease to all leased lands, producing and non-producing, and prevent the operation of subsection (a), which would sever the lease as to non-producing sections or pooling units. Accordingly, the lease was extended for the entire leased area under section 15-73-201(b) by the timely commencement of drilling operations and the completion of a well on Section 9.
Other than urging this court to adopt a statutory interpretation of 15 — 73—201(b) that is different from what we announced in Snowden, the Elkinses argue that their lease is different from the one analyzed in Snowden and, therefore, Snowden should not control this case. Their argument is unconvincing. The Elkinses claim that drilling operations are defined differently in their lease than the lease in Snowden. While not exactly arguing why this distinction makes a difference in this court’s interpretation and application of section 15-73-201, they are correct that there is a nominal difference between the two definitions. To reiterate, the lease in Snowden defined drilling operations as including, but not limited to,
[c]ommencing, construction of roadways, preparation of drillsite, drilling, testing, completing, recompleting, deepening, plugging back[,] repressuring[,] pressuring[,] maintenance, cycling, secondary recovery operations, or the production of oil or gas, or the existence of a shut-in well capable of producing oil or gas.
Snowden, 2010 Ark. 276, 370 S.W.3d 215. The lease in the instant case defines drilling operations as including operations for the “drilling of a new well, the reworking, deepening or plugging back of a well or hole or other operations conducted in an effort to obtain or re-establish production of oil or gas; ...” The drilling operations definition in the Elkinses’ lease is arguably more narrow than that in Snowden. That distinction, however, is to no avail because Southwestern Energy was clearly engaged in drilling operations (i.e. building and completing two new wells on Section 9) under either definition -within the one-year time frame permitted by section 15-73-201.
We hold that this case falls squarely -within our holding in Snowden and that Snowden is controlling. Southwestern Energy is entitled to develop all of the lands covered by the lease for one year after the expiration of the primary term, pursuant to Arkansas Code Annotated section 15-73-201(b). Furthermore, Southwestern Energy is entitled to continue developing all of the land under the lease for one year after the last well was completed.
Southwestern Energy, in addition, asks this court to modify the circuit court’s order suspending its drilling obligations. The circuit court suspended Southwestern Energy’s obligations as of the date of its order, April 22, 2010. Southwestern Energy maintains that the suspension should have begun the date the Elkinses filed their complaint, which was October 13, 2009. The Elkinses make no reply to this request by Southwestern Energy.
We agree -with Southwestern Energy that the circuit court should have suspended Southwestern Energy’s obligations as of the date the Elkinses filed their complaint, October |1213, 2009. In Snowden, this court determined that, pursuant to the equitable principle enunciated in Winn v. Collins, 207 Ark. 946, 183 S.W.2d 593 (1944), Chesapeake was entitled to the suspension of its obligations because the Snowdens attacked the validity of the lease by filing suit and could not thereafter complain that Chesapeake failed to fulfill its obligations under the lease during litigation of their claim. Snowden, 2010 Ark. 276, 370 S.W.3d 215. We held that the circuit court erred in denying Chesapeake’s request to suspend its drilling obligations under the lease during the pen-dency of litigation.
In the case at hand, the Elkinses attacked the validity of the lease by filing suit on October 13, 2009. Not to toll Southwestern Energy’s obligation to drill as of that date would create an impossible dilemma for Southwestern Energy: either use the contested lands and potentially expose itself to more liability or refrain from using the lands and lose its investment and the one-year window granted under section 15-73-201 for development.
Based on our Snowden decision, we affirm the circuit court’s order with regard to Sections 8, 9, and 31. However, under Snowden, we reverse the circuit court’s order with regard to Sections 4 and 5. As a final point, we modify the circuit court’s order to make the | ^suspension of Southwestern Energy’s drilling obligations effective as of October 13, 2009, when the El-kinses’ complaint was filed.
Affirmed in part. Reversed in part. Order modified.
DANIELSON and WILLS, JJ„ concur in part and dissent in part.
. Arkansas Rule of Civil Procedure 54(b)(1) (2010) permits a court to issue a certification directing the entry of final judgment with respect to fewer than all of the claims upon express determination, supported by specific factual findings, that there is no just reason fer delay. The circuit court in this case recognized that the fraud claim against Schon-wald remained unresolved but made specific findings to support the issuance of the certificate regarding the interpretation of Arkansas Code Annotated section 15-73-201.
. Chesapeake refers to Chesapeake Exploration, LLC, Chesapeake Exploration Limited Partnership, and Chesapeake Energy Corporation, collectively.
. This circuit court order held that the last well was completed on August 23, 2008, whereas Chesapeake provided undisputed evidence that the last well on Section 29 was completed on September 9, 2008, a contradiction this court noted.
. There have been no amendments or changes to Arkansas Code Annotated section 15-73-201 (Repl.2009) since our decision in Snowden.
. The equitable principle referred to in Winn is simply that a lessor who files suit against a lessee may extend the time for mining (or development of the land) under the lease because the period of time that the action was pending would not count against the lessee.
. Southwestern Energy asserts that it costs approximately 2 million dollars to build each well of the type used on the Elkinses' property- | [
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ROBERT J. GLADWIN, Chief Judge.
| Appellant Brenda Bohannon appeals the revocation of her probation by the Jefferson County Circuit Court, for which she was sentenced to eight years’ imprisonment in the Arkansas Department of Correction (ADC). She argues that the circuit court committed reversible error in revoking her probation without analyzing why she had failed to pay the court-ordered restitution. We affirm.
On or about November 17, 2004, the State filed a criminal information against appellant accusing her of violating the Arkansas Hot Check Law — (in amounts of less than $2500 but more than $200)— regarding multiple checks on Simmons First National Bank payable to various merchants — pursuant to Arkansas Code Annotated sections 5-37-301 to -307 (Repl. 2006). A judgment-and-disposition order was entered on September 20, 2006, listing appellant’s plea of guilty and her sentence of 120 hours’ community service, assessment |2of a number of different court costs and a fine, and an order to pay restitution of $5,520.36 at the rate of $113 per month.
On October 5, 2011, the State filed a petition to revoke alleging that appellant had violated the terms of her probation because she had not paid her $1,150 in court fines and was delinquent $4,351.72 in restitution. The recommendation of the probation officer was to extend probation. After various continuances and appointments, on July 16, 2013, the State filed a supplemental petition to revoke alleging that appellant had violated additional terms of her probated sentence, which included to failing maintain or provide proof of gainful employment, making false, misleading, and deceptive claims that she had complied with the terms and conditions of her probation, and failing to complete her court-ordered community-service hours.
At the hearing on the State’s petition, the circuit court found that appellant had made payments totaling $1,483.60 — which left her owing $5,236.72 of the $6,720.32 originally owed. The circuit court found that she had violated the terms and conditions of her probation by failing to pay and that her failure to make the payments was willful. The circuit court revoked her probation and sentenced her to a term of eight years in the ADC pursuant to a sentencing order filed October 1, 2013. Appellant filed a timely notice of appeal on October 24, 2013.
In order to revoke probation or a suspended imposition of sentence, the cir cuit court must find by a preponderance of the evidence that the defendant inexcusably violated a conditioh of the suspension or probation. Ark.Code Ann. § 16-93-308(d) (Supp.2011). |30n appellate review, the circuit court’s findings will be upheld unless they are clearly agairlst the preponderance of the evidencei Williams v. State, 2013 Ark. App. 592, at 1, 2013 WL 5745076. Where the alleged violation involves the failure to pay ordered amounts, after the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide a reasonable excuse for the failure to pay. Sanders v. State, 2012 Ark. App. 697, at 2-3, 2012 WL 6200377. It is the probationer’s obligation to justify his failure to pay, and this shifting of the burden of production provides arj opportunity to explain the reasons for nonpayment. Id. Despite the shifting of the burden of production, the State shoulders the ultimate burden of provihg that the defendant’s failure to pay was inexcusable. Scroggins v. State, 2012 Ark. App. 87, at 9, 389 S.W.3d 40, 45.
Appellant argues that the circuit court erred in revoking her probation, submitting that the circuit court should have granted the relief recbmmended by the probation officer — a coiitjnuatioh of her probation until she could pay the restitution. Appellant claims that the State’s case consisted of testimony that indicated that the relevant records were untrustworthy and that no one redlly knew what had happened over the five years of probation. She maintains that the ohly reliable proof presented was the print-out of what was owed, and she notes that the circuit court modified that when presented with proof that the print-out was incorrect.
Appellant cites Arkansas Code Annotated section 5-4-205 (Supp.2011), which provides in relevant part:
(a)(1) A defendant who is found guilty or who enters a plea of guilty or nolo contendere to an offense may be ordered to pay restitution.
(f) (1) If the defendant is placed on probation or any form of conditional release, any restitution ordered under this section is a condition of the suspended imposition of sentence, probation, parole, or transfer.
(2) The court may revoke probation and any agency establishing a condition of release may revoke the conditional release if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order.
(3) In determining whether to revoke probation or conditional release, the court or releasing authority shall consider:
(A) The defendant’s employment status;
(B) The defendant’s earning ability;
(C) The defendant’s financial resources;
(D) The willfulness of the defendant’s failure to pay; and
(E) Any other special circumstances that may have a bearing on the defendant’s ability to pay.
Appellant argues that the five factors listed in subsection (f)(3) weigh heavily in fdvor of not revoking her probation. She notes that she had been intermittently employed and had been off work for health reasons. She earned $372 per week, before taxes in her present job, which she claims is barely above the current poverty level for a family of two. She claims that her reference to lacking transportation at one point in time indicated that she had no real financial resources. She urges that while there was no proof of willfulness, there was proof of confusion over what appellant actually owed and had actually paid. Appellant cites Phillips v. State, 101 Ark.App. 190, 272 S.W.3d 123 (2008), in support of her argument that the circuit court erred in focusing solely on the fact that appellant did not pay without considering the factors she presented as to why she did not do so. See also Hanna v. State, 2009 Ark. App. 809, 372 S.W.3d 375; Reese v. State, 2009 Ark. App. 678, 2009 WL 3384409.
|BWe disagree. Viewed in the light most favorable to the State, the following evidence supports the circuit court’s decision. It is undisputed that appellant entered a negotiated guilty plea to a C-felony violation of the statute, section 5-37-305(b)(2), pursuant to which appellant agreed to a sentence of sixty months’ probation, and to pay a $750 fine, $150 in court costs, a $50 sheriff fee, a $250 DNA fee, and a monthly $25 probation fee. See also Ark.Code Ann. § 5-4-201(a)(2) (Repl.2006). Appellant further agreed to make restitution under the plea agreement in the amount of $5,520.32. The amount of restitution was explained in a ledger annexed to the judgment-and-disposition order, which showed, check-by-check and merchant-by-merchant, the hot checks that appellant had pleaded guilty to writing.
At the hearing on the amended petition, the State established the amount of the fines appellant had agreed to pay pursuant to her plea agreement. Officer Blasius Awonsang testified that he had advised appellant in May 2011 that her fines and restitution accounts were delinquent, and that she responded by asserting that she had paid her obligations in full. Officer Awonsang also testified that he had advised appellant regarding her obligation to perform community service. In response to questions by the circuit judge, Officer Awonsang explained that appellant never presented him with receipts or other proof that she had made payments that were, for some reason, not credited to her fine and restitution balances.
Officer Tonya Lemons testified that she had notified appellant regarding her lack of payments and failure to perform community service in 2008. Officer Lemons also testified Rthat appellant reported for supervision in September 2008 with a bandaged hand, which appellant told her was because of a burn. Appellant told Officer Lemons that neither the burn nor the pain medication she was taking interfered with her ability to work.
Appellant testified at the hearing, first asserting that she was innocent of violating the statute, explaining, “I did not write any hot checks in 2004[,] but I did take a plea bargain.” Appellant acknowledged that she was confused about the amount of restitution she was required to pay and considered her restitution obligation to be $415.72, the amount stated on an unfiled “criminal charges” document. Appellant claimed that she was entitled to rely on the document, which was not filed of record and predated the filing of the information, as setting the amount of her ordered restitution, as opposed to the amount listed on her judgment-and-commitment order and in documents memorializing her plea negotiations. Appellant also testified that she had an undergraduate degree in computer science and a master’s degree in information management.
Appellant explained that she had paid a total of $1,483 during her five years of probation, and a payment-receipt history from the Jefferson County Sheriffs Office showing that amount of payment was entered into evidence without objection from the State. The payment ledger shows that appellant made from two to six payments per year, in amounts ranging from $5 to $329. She made a total of twenty-four payments during her sixty-month probationary period and made an average monthly payment of $24.73.
Appellant testified that she worked as an inspector at Tyson during the probationary period and also as a substitute teacher at the Pulaski County Special School District, starting |7in September 2010. Appellant claimed to have provided her probation officers with medical documentation regarding a heat stroke she suffered at some point during her probation, which she claimed sporadically kept her from working during that time. But, appellant brought no documentation regarding her injuries to the hearing, and no confirming documentation of any periods of illness or injury was introduced at the hearing. Appellant testified that she had been gainfully employed during the entire probationary period except from June to September 2010. She testified that she had obtained a new job three weeks before the hearing — at Flextronics assembling cellular telephones, with a wage of $9.30 per hour.
In revoking appellant’s probationary sentence, the circuit court found that she had paid $1,483.60 toward her fines and restitution, but that the remainder of the agreed-upon payments was outstanding. The circuit court noted that the amount of restitution and fines appellant agreed to pay was clearly explained in the judgment- and-disposition order she had signed, and it found that her failure to pay was willful.
Appellant’s attempt to analogize her position to that of the defendants in Phillips, supra, and Hanna, supra is unavailing. First, the testimony regarding Phillips’s and Hanna’s medical conditions, both of whom were unable to work and whose only sources of income were disability benefits, were both more conclusively established and more debilitating than appellant’s unsubstantiated testimony that she had been unable to work at certain times during the previous five years. Additionally, both Phillips’s and Hanna’s required restitution [ «payments accounted for a much higher portion of their incomes than appellant’s in this case. Finally, there is no indication in the record before us, as there was in Phillips and Hanna, that the circuit court either refused to, or thought it did not have to, consider appellant’s employment status, earning ability, resources, or willfulness to pay. We note that the statute does not require explicit findings of fact on those factors, and the evidence before us demonstrates that the circuit court heard more than sufficient testimony on those subjects to properly exercise its role as the finder of fact and make a determination of credibility with regard to appellant’s explanation for her nonpayment.
Appellant was admittedly capable of working, and the circuit court did not believe that she was making a sufficient effort to make payments. When considering the lower burden of proof in revocation proceedings and giving the proper deference to the superior position of the circuit court to determine questions of credibility and the weight to be given the evidence, we hold that the circuit court did not clearly err in finding that appellant willfully violated the condition of her probation requiring her to make payments as directed.
Affirmed.
PITTMAN and WHITEAKER, JJ., agree.
. Phillips's payments equaled nearly one-sixth of his income and Hanna’s nearly one third, as opposed to, at worst, less than one-tenth of appellant’s income in this case. | [
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PER CURIAM.
bln 2007, appellant Damont Ewells was found guilty by a jury of two counts of possession of a controlled substance with intent to deliver and sentenced as a habitual offender to an aggregate term of 756 months’ imprisonment. The Arkansas Court of Appeals affirmed. Ewells v. State, 2010 Ark. App. 43, 2010 WL 135217.
In 2010, appellant filed in the trial court a verified, timely pro se petition for post- conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007). The petition was denied. Appellant lodged an appeal here, which was disinissed on the grounds that it was clear from the record that appellant could not succeed on appeal if the appeal were permitted to go forward. Ewells v. State, 2010 Ark. 407, 2010 WL 4264502 (per curiam).
On January 16, 2014, appellant filed a second Rule 37.1 petition. The trial court dismissed it on the ground that it was not timely filed. Appellant lodged an appeal from the 12order, and he now seeks an extension of time to file his brief-in-chief and a copy of the record. We need not consider the grounds contained in the motions because the record reflects that the January 16, 2014 petition was indeed untimely filed. An appeal from ah order that denied a petition for postconviction relief will not be permitted to go forward when it is clear that the appellant could not prevail. Williams v. State, 2014 Ark. 70,2014 WL 585996 (per curiam).
Rule 37.2(b) provides that all grounds for relief available to a petitioner under the Rule must be raised in his or her original petition unless the original petition was denied without prejudice to filing a second petition. If a first petition under the Rule is denied without leave to proceed with a second petition, a petitioner under the Rule is barred front; submitting a subsequent petition. See Cooper v. State, 2014 Ark. 243, 2014 WL 2158142 (per curiam). Moreover, pursuant to Arkansas Rule of Criminal Procedure 37.2(c), when there was an appeal from a judgment of conviction, a petition for relief must be filed in the trial court within sixty days of the date that the mándate was issued by the appellate court. The time limitations imposed in Rule 37.2(c) are jurisdictional in náture, and, if the petition is not filed within that period, a trial court lacks jurisdiction to grant postconviction relief. Holliday v. State, 2013 Ark. 47, 2013 WL 485726 (per curiam). The January 16, 2014 petition was not filed within the sixty-day period; thus, the trial court had no jurisdiction to grant the relief sought. When the trial court lacks jurisdiction, the appellate court also lacks jurisdiction. Pruitt v. State, 2014 Ark. 258, 2014 WL 2465502 (per curiam).
Appellant urged the trial court in the January 16, 2014 petition to permit him to proceed again under the Rule on the ground that Martinez v. Ryan, — U.S.—, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S. —, 133 S.Ct. 524, 184 L.Ed.2d 337 (2012), permitted him to proceed again 13because he did not have the assistance of counsel when he filed his original petition for postconviction relief. The Martinez Court held that, when state law requires a prisoner to use a collateral attack rather than a direct appeal to raise a claim that his trial attorney was not effective under the Sixth Amendment, the prisoner’s failure to comply with state rules in bringing his collateral attack on the judgment will no longer bar a federal judge from granting habeas relief on that claim, if the prisoner had no attorney to represent him in the collateral proceeding or that attorney was ineffective and if the petition filed in the state court had a meritorious claim. In Trevino, the Court extended its holding in Martinez to cases in which a state’s procedural framework make it unlikely in a typical case that a defendant would have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.
Here, appellant’s Rule 37.1 petition was denied on jurisdictional grounds, not procedural grounds. Under Rule 37.1, in the form applicable to appellant’s case, once a trial court determines that a petition is untimely, the petition must be disposed of on jurisdictional grounds. See Nooner v. State, 2018 Ark. 317, 2013 WL 4774479 (per curiam). Accordingly, once the trial court concluded that appellant’s request for postconviction relief was untimely filed, it was bound to do no more than declare it untimely and not rule on the merits. Green v. State, 2013 Ark. 190, 2013 WL 1858861 (per curiam). Martinez does not require a trial court to rule on the merits of a petition when it lacks jurisdiction to do so. As the trial court did not have jurisdiction to act on the merits of the Rule 37.1 petition, this court does not have jurisdiction in the matter, and appellant could not prevail on appeal.
Appeal dismissed; motions moot. | [
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PHILLIP T. WHITEAKER, Judge.
11 Appellant David Tennant was convicted by the Benton County Circuit Court of one count of possession of drug paraphernalia, a Class D felony. Pursuant to Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals (2013), Ten-nant’s attorney has filed a motion to withdraw as counsel on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract, brief, and addendum purporting to list all adverse rulings and to explain why each adverse ruling is not a meritorious ground for reversal. Because our review of the record reveals an issue on which an appeal may not be wholly frivolous, we order re-briefing.
|2In the context of no-merit appeals, it is the duty of both counsel and this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous, in furtherance of the goal of protecting a defendant’s constitutional rights. Reed v. State, 2013 Ark. App. 432, at 3, 2013 WL 3282947; Wakeley v. State, 2012 Ark. App. 448, at 2-3, 2012 WL 3744705. A no-merit brief must contain an argument section that consists of a discussion of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Ark. Sup.Ct. R. 4-3(k)(1); Reed, 2013 Ark. App. 432, at 3-4. Our precedent requires full compliance with the rule. Reed, supra; Boen v. State, 2009 Ark. App. 535, 336 S.W.3d 883.
Tennant’s counsel’s no-merit brief appropriately discusses the sufficiency of the evidence supporting Tennant’s conviction. Counsel fails, however, to adequately address the one other adverse ruling that occurred during the bench trial.
Sergeant Scott Miller of the Siloam Springs Police Department testified that he was dispatched to a fight. When Miller arrived at the scene, he recognized, through numerous past dealings, two of the individuals involved in the fight: Collin Self and appellant Tennant. As Miller approached the car, he saw Self making “a lot of hurried movement action” and reaching down underneath the front seat of the vehicle in which he was sitting. There was also a lot of movement from the passenger-side back seat, where Tennant was sitting. Miller walked up to the car, identified everyone, and, while he was speaking to them, noticed the handle of a spoon and the plunger end of a syringe protruding from under the driver’s seat.
| sMiIler asked the occupants of the car about the fight, and they all gave consistent stories about what had happened. Miller then asked Self about the items Miller saw under the front seat. Self was not cooperative and would not answer any questions. Miller conducted a probable-cause search of the car based on the occupants’ behavior and his knowledge of Selfs and Tennant’s histories. The search revealed an uncapped syringe with a liquid substance in it, a spoon with a white-powdery residue, and a cotton ball under the seat. An empty package of syringes and three unused syringes were found inside a cooler bag, and a drink bottle half-full of a liquid and a “crystal-like substance” was also found in the vehicle.
Miller again asked the occupants of the car what they knew about the items he found in the search, and they all denied any knowledge of them. As Miller was speaking to Self, Tennant “began to yell at Mr. Self about owning it and own what is yours.” Self began yelling back at Ten-nant, and Miller decided to arrest them all for constructive possession of the items found in the car. Tennant, who was searched incident to the arrest, had a syringe end cap and a syringe in his pocket. Once everyone was taken to the police station and given their Miranda warnings, Tennant told Miller that he and the others had gotten together to get high on methamphetamine.
The adverse ruling occurred during Ten-nant’s cross-examination of Miller. Miller admitted that Tennant was not free to leave and had not been advised of his Miranda rights at the point when he and Self began to exchange comments about trying to get each other to take responsibility for ownership of the paraphernalia that Miller found. Counsel asked the 14court to strike Miller’s testimony about Tennant’s and Selfs statements made at the scene of the arrest, arguing that they “were in custody and had not been Miram dized at that point.”
The State responded that counsel’s objection “would have been ripe for a suppression hearing, not [at] trial.” The State also asked if it could seek clarification from Miller about whether Tennant’s and Selfs statements were spontaneous arguments between the two of them, or whether they were in response to questioning by Miller. Miller replied that the comments were
not prompted by myself or any of the other officers. They were all worried about going to jail, because I explained to them that if nobody is going to own this stuff then I have no choice but to arrest all of you for possession and that is when Mr. Tennant took it upon himself to start arguing with Mr. Self and Mr. Self replied back.
The court then denied counsel’s motion.
In his no-merit brief, counsel makes the following statement concerning this adverse ruling:
“Evidentiary rulings are left to the sound discretion of the trial judge.” Payton v. State, 2012 Ark. App. 37 [2012 WL 76169] (citing Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70). Therefore, the trial judge acted appropriately in denying the motion considering the weight of the evidence produced against the defendant.
Other than the evidentiary argument, counsel raises no constitutional or suppression arguments in the no-merit brief. It is not obvious to us, however, that there is no meritorious argument that could be made about this issue.
Miller admitted that Tennant was in custody but had not been given his Miranda warnings when he and Self began telling each other to “man up” and “own up” to the paraphernalia. Miller also testified that he told Tennant and Self that if no one “owned this |r,stuff,” he would arrest them all. In Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005), the supreme court noted that “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Hall, 361 Ark. at 389, 206 S.W.3d at 836 (quoting State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005), and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). We believe that counsel needs to address whether Tennant’s statements were, in fact, incriminating and whether Miller’s threat to arrest everyone was “reasonably likely to elicit an incriminating response.” Whether there would be merit to an argument on this issue remains to be seen. It is counsel’s burden, however, not this court’s, to address it. See Mace v. State, 2012 Ark. App. 42, at 3, 2012 WL 76157 (“While it is this court’s duty to fully examine the record to determine if an appeal would be wholly without merit, it is not our duty to do so with the purpose of instructing counsel what to include in a no-merit brief.”) (quoting Walton v. State, 94 Ark. App. 229, 232, 228 S.W.3d 524, 526 (2006)).
This court is bound to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark.App. 277, 47 S.W.3d 915 (2001). When an appeal is submitted to this court under Rule 4-3(k) and we believe that an issue is not wholly frivolous, we are required to deny appellant’s counsel’s motion to withdraw and order rebriefing in adversary form. Runion v. State, 2012 Ark.App. 30, 2012 WL 76156; Tucker v. State, 47 Ark.App. 96, 98, 885 S.W.2d 904, 905 (1994). Because counsel has failed to demonstrate that an appeal would be wholly frivolous, we order rebriefing.
1 r,Motion to withdraw denied; rebriefing ordered.
GRUBER and GLOVER, JJ., agree.
. Tennant has filed pro se points, and the State has filed a reply brief. Because we order rebriefing, we do not address Tennant’s pro se points at this time. | [
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PHILLIP T. WHITEAKER, Judge.
11 This case involves a dispute over the attempted purchase of a car and the interpretation of District Court Rule 9. Appellant Motor Cars of Nashville, Inc., appeals the order of the Pope County Circuit Court granting appellee Chris Chronister’s motion to dismiss Motor Cars’s appeal from Pope County District Court. At issue on appeal is whether the circuit court correctly required strict compliance with District Court Rule 9, which governs appeals from district court to circuit court. We find no error and dismiss the appeal.
Chronister attempted to purchase a car from Motor Cars on eBay; Motor Cars, however, sold the car to another bidder despite having asserted to Chronister that he could purchase the car for a given price. Chronister then filed suit against Motor Cars in Pope County District Court. The district court set the matter for trial, but the trial was continued |2at the request of Motor Cars. Motor Cars subsequently sought a second continuance, asserting that its corporate representative was out of the country and unavailable to appear at trial. The district court denied this second motion for continuance, and the trial remained on the docket. Prior to the trial, however, the parties both signed a consent judgment whereby Motor Cars agreed to pay Chronister $9,620, plus attorney’s fees and costs.
Motor Cars then attempted to appeal the district-court case to Pope County Circuit Court by filing a certified copy of the district-court docket sheet in circuit court. Although it filed the certified docket sheet, Motor Cars did not serve it on Chronister or his attorney by any form of mail that required a signed receipt. Because of the method of service, Chronister filed a motion to dismiss the appeal in circuit court. After a hearing, the circuit court granted Chronister’s motion to dismiss.
At issue in this appeal is the interpretation of Arkansas District Court Rule 9(b). That rule sets out the means by which an appeal is taken from district court. At the time Motor Cars attempted to take its appeal, the rule provided as follows:
A party may take an appeal from a district court by filing a certified copy of the district court’s docket sheet, which shows the awarding of judgment and all prior entries, with the clerk of the circuit court having jurisdiction over the matter. Neither a notice of appeal nor an order granting leave to appeal shall be required. The appealing party shall serve a copy of the certified docket sheet upon counsel for all other parties, and any party proceeding pro se, by any form of mail that requires a signed receipt.
1 .¡(Emphasis added.)
We review issues of statutory construction de novo, as it is for this court to determine what a statute or rule means. Johnson v. Dawson, 2010 Ark. 308, at 5, 365 S.W.3d 913, 916. In this respect, we are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id. Moreover, we construe court rules using the same means and canons of construction used to interpret statutes. Id. at 4, 365 S.W.3d at 915. The basic rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words the ordinary and usually accepted meaning in common language. Id. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis need go no further. Id. at 4-5, 365 S.W.3d at 916. When a statute is ambiguous, however, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. at 5, 365 S.W.3d at 916. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id.
As noted above, the service provision of Rule 9(b) is specifically at issue in this case. Motor Cars argues that “mailing in a particular form is not a jurisdictional requirement” for | perfecting an appeal from district court to circuit court. In support, it cites the Reporter’s Notes to the 2008 amendment to Rule 9, which state that the rule was amended “to eliminate several points of confusion and difficulty” in order to make it simpler to perfect an appeal from district court to circuit court. Motor Cars further cites the following portion of the Reporter’s Notes:
To ensure notice of the appeal to opposing parties, the appealing party must serve the docket sheet on all other parties by some form of mail that generates a signed receipt. This provision echoes the requirements of Arkansas Rule of Appellate Procedure — Civ. 3(f) about serving a notice of appeal. Rule of Civil Procedure 4 does not apply and service of process is not required.
Based on the language about “echoing” Rule 3(f), Motor Cars asserts that its failure to serve a copy of the docket sheet on Chronister or his counsel “by any form of mail that requires a signed receipt” is not fatal to its appeal. We disagree for two reasons: first, Rule 3(f) is different from Rule 9(b); and second, decisions from both our supreme court and this court require strict compliance with Rule 9(b).
We begin by noting that the language in Rule 3(f) is markedly distinguishable from that in Rule 9(b). Rule 3(f) provides as follows:
A copy of the notice of appeal or cross-appeal shall be served by counsel for appellant or cross-appellant upon counsel for all other parties by any form of mail which requires a signed receipt. If a party is not represented by counsel, notice shall be mailed to such party at his last known address. Failure to serve notice shall not affect the validity of the appeal.
15(Emphasis added.) As emphasized, Rule 3(f) specifically provides that failure to serve a copy of the notice of appeal from a circuit court ruling does not affect the validity of the appeal. Rule 9(b), governing appeals from district court, contains no such language.
Moreover, the appellate courts have been resolute in holding that the provisions of Rule 9(b) are jurisdictional, that strict compliance with that rule is necessary, and that “substantial compliance will not suffice.” Johnson, 2010 Ark. 308, at 8, 365 S.W.3d at 917; see also Duffy v. Little, 2011 Ark. 160, 2011 WL 1424203; Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003); Clark v. Pine Bluff Civ. Serv. Comm’n, 353 Ark. 810, 120 S.W.3d 541 (2003); J & M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481 (2001); Baldwin v. State, 74 Ark.App. 69, 45 S.W.3d 412 (2001) (specifically rejecting a “substantial compliance” approach to Rule 9 appeals).
In Howard v. Arkansas Cama Technology, 2012 Ark. App. 567, 2012 WL 4832271, this court held that the Howards failed to perfect their appeal to circuit court and affirmed the circuit court’s order dismissing their appeal. In Howard, the defect in the appeal to the circuit court was the Howards’ failure to serve a certified copy of their notice of appeal upon counsel for all other parties. Howard, 2012 Ark. App. 567, at 1-2, 2012 WL 4832271. On appeal, as in the instant case, the Howards cited the Reporter’s Notes’ reference to Arkansas Rule of Appellate Procedure-Civil 3(f), arguing that the failure to serve notice shall not affect the validity of the appeal. Id. at 3, 2012 WL 4832271. This court rejected their arguments, writing as follows:
ItjOur supreme court has been clear that compliance with Rule 9 must be strict; substantial compliance will not suffice. Johnson v. Dawson, 2010 Ark. 308, at 8, 365 S.W.3d 913, 917. Cf. Morgan v. Turner, 2010 Ark. 245, at 7, 368 S.W.3d 888, 893 (holding that failure to serve the notice of appeal by a form of mail requiring a signed receipt, pursuant to Ark. R.App. P.-Civ. 3(f), is not fatal to appeal ). Where a party fails to perfect an appeal from an inferior tribunal to a circuit court in the time and manner provided by law, the circuit court never acquires jurisdiction of the appeal. Id. In Johnson, supra, our supreme court held that by not filing a certified copy of the docket sheet from the district court proceedings, and instead filing a certified copy of the entire appeal transcript, Dawson failed to perfect his appeal.
Given that compliance with Rule 9 must be strict, we agfee with the circuit court’s interpretatioil of Rule 9_Ap-pellants failed to strictly comply with Rule 9 when they failed to serve notice of their appeal on counsel for the defendants.
Id. at 4-5, 2012 WL 4832271,
Despite the clear language in Howard requiring strict compliance with Rule 9(b), Motor Cars nonetheless suggests that subsequent supreme cpurt decisions — namely, Circle D Contractors, Inc. v. Bartlett, 2013 Ark. 131, 2013 WL 1279062, and Taylor v. Biba, 2014 Ark. 22, 2014 WL 260978-have abrogated or softened the court’s stance on this issue. Again, we disagree.
In Circle D Contractors, supra, the supreme court concluded that only substantial compliance was required with respect to Rule 9(c), which requires the party who was the 17plaintiff in district court to re-file a copy of the complaint in circuit court once an appeal is perfected. There, however, the supreme court (distinguished Rule 9(c) as being a procedural requirement, not a jurisdictional one. The court also noted that strict compliance with Rule 9(b) was still required. Circle D Contractors, 2013 Ark. 131, at 2, 2013 WL 1279062.
In Taylor, supra, the only question was whether the appellant had merely to file a certified copy of the docket sheet or had to ensure that the docket sheet contained an entry for every pleading. The supreme court held that “[t]he filing of the certified docket sheet is the definitive act that must be strictly performed to place jurisdiction in the circuit court.” Id. at 5, 2014 WL 260978. The question of the means and manner of service on the opposing party, however, was never raised as an issue in that case. We therefore do not read Taylor as relaxing the strict-compliance standard with respect to the service requirements of Rule 9(b).
Rather, we conclude that Howard is controlling on the issues raised in the instant case and that strict compliance with all parts of Rule 9(b) — including the provisions that specify the manner in which the docket sheet must be served on the opposing party — is required before a circuit court can acquire jurisdiction over an appeal from district court. Failure to strictly comply with any portion of the rule will cause an appeal to not be perfected. While this does lead to harsh results on occasion, see Johnson, 2010 Ark. 308, at 11-12, 365 S.W.3d at 919 (Brown, J., concurring), it is nonetheless the duty of counsel to perfect an appeal, id. at 10, 365 S.W.3d at 918, and to be aware of the rules of procedure.
Accordingly, because it is undisputed that Motor Cars failed to serve a certified copy of the docket sheet on Chronis-ter’s attorney by “any form of mail that requires a signed | sreceipt,” Motor Cars failed to strictly comply with the require ments of Rule 9(b). It therefore failed to perfect its appeal, and the circuit court thus did not err in granting Chronister’s motion to dismiss for lack of jurisdiction. Because the circuit court lacked jurisdiction, this court lacks it as well, and the appeal must be dismissed. Duffy v. Little, 2011 Ark. 160, at 4, 2011 WL 1424203. Moreover, because we lack jurisdiction, we do not address the additional arguments raised in Motor Cars’s brief.
Appeal dismissed.
GLADWIN, C.J., and PITTMAN, J., agree.
. Simultaneously with the filing of his motion to dismiss, Chronister also re-filed his complaint against Motor Cars in Pope County Circuit Court "out of an abundance of caution.” In an amended motion to dismiss, Chronister also alleged, in addition to Motor Cars’s failure to strictly comply with Rule 9(b), that the parties’ consent judgment es-topped Motor Cars from appealing the matter to circuit court.
. District Court Rule 9 was amended, effective July 1, 2014. In re Amendments to Rules of Civil Procedure; Rules of the Supreme Court; Rules of Appellate Procedure-Civil; District Court Rules; and Administrative Orders, 2014 Ark. 119 (per curiam). Motor Cars filed the certified copy of the district court docket sheet with the Pope County Circuit Court on August 23, 2013, and served Chron-ister on September 16, 2013, well prior to the amendment to the rule.
. See McNabb v. State, 367 Ark. 93, 238 S.W.3d 119 (2006).
. As noted above, the rule requires that the appealing party "shall serve a copy of the certified docket sheet upon counsel for all parties.” In Howard, the notice of the appeal was sent directly to the parties.
5. Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d 888, was an appeal from circuit court to the supreme court; the interpretation or application of District Court Rule 9(b) was not at issue in that case.
. In a concurring opinion, Judge Gruber acknowledged the Howards' argument that the failure of service was not jurisdictional and their reliance on the commenf in the Reporter’s Notes that Rule 9(b) "echoes the requirements” of Appellate Rule 3(f). She commented that if Rule 9(b) "is tb be an echo of the service requirements of Arkansas Rule of Appellate Procedure-Civil 3(f), then appellants’ argument would seem reasonable but for the fact that our courts have mandated strict compliance with Rule 9. The same cannot be said for Ark. R.App. P.-Civ. 3(f).” Howard, 2012 Ark.App. 567, at 6, 2012 WL 4832271 (Gruber, J., concurring) (emphasis added). | [
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PER CURIAM.
hln 1996, appellant Vincent James Hus-sey was convicted by a jury in the Drew County Circuit Court of capital murder and aggravated robbery and was sentenced to life imprisonment without parole. We affirmed. Hussey v. State, 332 Ark. 552, 966 S.W.2d 261 (1998).
In 2012, sixteen years after the judgment had been entered, appellant filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001, as amended by Act 2250 of 2005 and codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl.2006). In the petition, appellant asserted that he was actually innocent of the murder and sought DNA testing of blood on a red shirt. The petition was denied, and appellant filed a motion for reconsideration that was also denied. He now brings this appeal. We find no error and affirm.
Appellant and Derrick Harris were charged with shooting to death Jimmy Gathings, a used-car dealer. Appellant was identified at trial as one of two men who ran from Gathings’s office immediate ly after the shots had been fired. There was eyewitness testimony that the second man out of Gathings’s office was wearing a brown or tan flannel shirt with a red shirt | ^underneath and a blue or black toboggan on his head — the same clothing appellant had been wearing on the day Gathings was murdered. A serologist testified that the red shirt had blood stairis matching Gath-ings’s blood type.
In this appeal, appellant asserts that the trial court erred in denying his petition on the grounds that t)NA testing would prove that the blood on the red shirt was Harris’s blood from a cut on Harris’s hand and that the identification of appellafrt as the second man running from the building was wrong. For the first time in this appeal, he argues that he was not afforded DNA testing of the blood evidence at trial because his attorney was ineffective and contends that counsel’s failure to obtain DNA testing excuses the delay in bringing the request for the testing.
In appeals of postconvictipn proceedings, we will not reverse a circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Biggs v. State, 20‡4 Ark. Il4, 2014 WL 1096053 (per curiam). 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. Arkansas Code Annotated section 16-112-2Q5(a) provides that the court is not required to hold an evidentiary hearing if the petition, files, and records conclusively show that the petitioner is entitled to no relief. Because it is clear from tile petition as well as the order denying relief that appellant failed to rebut the presumption against timeliness pursuant to Arkansas Code Annotated section 16 — 112—202(10)(B), we find no error in the trial court’s order denying the requested relief without a hearing.
The Act in effect on the date that petitioner filed his petition provides that a -writ of 13habeas corpus can issue based on new scientific evidence proving a person actually innocent of the offense for which he was convicted. AricCode Ann. § 16-112-201; King v. State, 2013 Ark. 133, 2013 WL 1279079 (per curiam); Foster v. State, 2013 Ark. 61, 2013 WL 593296 (per curiam); Gamer v. State, 2012 Ark. 271, 2012 WL 2149760 (per curiam) (citing Strong v. State, 2010 Ark. 181, 372 S.W.3d 758 (per curiam)). Before a trial court can order testing under this statute, however, there are a number of predicate requirements that must be met. King, 2013 Ark. 133, 2013 WL 1279079; Foster, 2013 Ark. 61, 2013 WL 593296; Douthitt v. State, 366 Ark. 579, 237 S.W.3d 76 (2006) (per cu-riam); see Ark.Code Ann. §§ 16-112-201 to -203.
One of these predicate requirements is that the petition must be filed in a timely fasiiion. Ark.Code Ann. § 16-112-202(10). In 2005, the statute was amended to include a rebuttable presumption against timeliness for any petition filed more than thirty-six months after the entry of the judgment of conviction. Ark.Code Ann. § 16-112-202(10)(B). This presumption against timeliness may be rebutted by showing (1) that the petitioner was or is incompetent, and the incompetence substantially contributed to the delay; (2) that the evidence to be tested is newly discovered; (3) that the motion is not based solely upon the petitioner’s own assertion of innocence, and a denial of the motion would result in a manifest injustice; (4) that a new method of technology exists that is substantially more probative than was the testing available at the time of the conviction; or (5) for other good cause. Ark.Code Ann. § 16-112-202(10)(B)(i)-(v).
In the instant case, appellant filed his petition in the trial court sixteen years after the judgment-and-commitment order had been entered of record and approximately seven years after section 16-112-202 had been amended to include the 36-month time limitation. In neither his petition nor the motion for reconsideration filed after the petition was denied did appellant |4make any attempt to rebut the presumption against timeliness. Accordingly, he did not establish good cause for the lengthy delay. As to appellant’s assertion in his brief concerning ineffective assistance of counsel as a cause for his failure to file a timely petition, the argument was not raised in appellant’s petition or in the motion for reconsideration, and we will not consider issues on which the trial court has not had the opportunity to rule which are raised for the first time on appeal. Biggs, 2014 Ark. 114, 2014 WL 1096053; Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007).
Affirmed. | [
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LARRY D. VAUGHT, Judge.
|, The Washington County Circuit Court found appellant Courtney Tiller guilty of first-offense driving while intoxicated (DWI), and sentenced her to 365 days in the county jail, with credit for one day served and 364 days suspended, along with a $200 fine and $300 court costs. On appeal, Tiller argues that the trial court erred in denying her motions to suppress the results of three field sobriety tests (FST) and evidence of her refusal to take a breath test. We affirm.
At the suppression hearing, Springdale Police Officer Rusty Boyd testified that on October 23, 2012, he was on patrol during the evening shift when he observed a white Nissan Maxima cross the center line of the road several times. Officer Boyd signaled to the driver of the vehicle to pull over, at which time the officer made contact with Tiller. The officer testified that Tiller’s eyes were bloodshot and watery; her actions were lethargic and exaggerated; and 12her speech was slow and deliberate. He said that although she produced her license, she was not able to produce her proof of insurance or registration; however, he found the documents in her glove box. While Tiller denied that she had been drinking alcohol, she stated that she had taken a Celexa for depression about an hour prior to the stop. The officer testified that Celexa fell under the “CNS depressant category,” and that a person can be intoxicated on a CNS depressant.
Based on Tiller’s movements, speech, and consumption of a CNS depressant, Officer Boyd asked her to step out of her vehicle and advised her that he was going to administer three FST. He testified that Tiller demonstrated six of six indicators of impairment during the first test; six of eight indicators of impairment during the second test; and three of four indicators of impairment during the third test. Officer Boyd stated that based on his observations of Tiller before the testing and her failure of the tests, he believed that she was intoxicated and not able to safely operate her vehicle, which he concluded constituted probable cause sufficient to support her arrest for DWI. Officer Boyd transported Tiller to jail, where he read her the implied-eonsent form. Although she initialed the form, she refused to take the breath test. She was charged with first-offense DWI and violation of implied consent, and she was cited for driving left of center.
At the conclusion of Officer Boyd’s testimony, counsel for Tiller moved to suppress the results of the FST, arguing that Tiller’s Fourth Amendment rights had been violated because |sthe officer conducted a warrantless seizure without her consent. Without the FST results, argued Tiller’s counsel, there was a lack of probable cause to support the DWI arrest. The trial court denied the motion to suppress.
At the onset of the bench trial, counsel for Tiller renewed the motion to suppress the results of the FST, which the trial court denied. Counsel additionally moved to suppress evidence of Tiller’s refusal to take the breath test, arguing that she had the constitutional right to refuse the test because it was a warrantless search, it was not evidence of consciousness of guilt, and admission would violate Rule 403 of the Arkansas Rules of Evidence. The trial court denied this motion as well. Thereafter, the parties stipulated to Officer Boyd’s testimony from the suppression hearing, and the trial court found Tiller guilty of first-offense DWI. Tiller appeals, challenging the trial court’s denial of her motions to suppress.
When reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Fisher v. State, 2013 Ark. App. 301, at 3-4, 427 S.W.3d 743, 746. A finding is in clear error when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. at 4, 427 S.W.3d at 746. The court defers to the superiority of the trial court |4to evaluate the credibility of witnesses who testify at a suppression hearing. Id., 427 S.W.3d at 746.
Tiller’s first point on appeal — based on a Fourth Amendment violation — is that the trial court erred in denying her motion to suppress evidence of the FST results because the officer had no warrant to administer the tests and he failed to obtain her consent to testing. In Frette v. City of Springdale, our supreme court held that an officer’s actions in ordering the defendant out of his parked truck to investigate a DWI, which included FST, constituted a “seizure” under the Fourth Amendment. 331 Ark. 103, 108-09, 959 S.W.2d 734, 736 (1998) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). However, our supreme court further held that such a warrantless intrusion is permitted when the officer has reasonable suspicion under Rule 3.1 of the Arkansas Rules of Criminal Procedure to suspect that the occupant of a parked vehicle is about to commit a DWI. Frette, 331 Ark. at 109, 959 S.W.2d at 736-37 (citations omitted). Rule 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, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
Ark. R.Crim. P. 3.1 (2012). “Reasonable suspicion” means 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; i.e., a suspicion that is treasonable as opposed to an imaginary or purely conjectural suspicion. Frette, 331 Ark. at 109-10, 959 S.W.2d at 737 (citing Ark. R.Crim. P. 2.1). The justification for an investigative stop pursuant to these rules depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. Frette, 331 Ark. at 110, 959 S.W.2d at 737 (citations omitted).
In Fisher, 2013 Ark. App. 301, at 4, 427 S.W.3d at 746, the defendant moved to suppress evidence of FST (including a portable-breath test), administered at a sobriety checkpoint, contending it was seized from him without a warrant and without his consent. The trial court denied the motion to suppress. Our court affirmed on appeal, holding that before the officer administered the FST, he had reasonable suspicion that the defendant had been driving while intoxicated because the defendant had bloodshot and watery eyes, smelled of intoxicants, had been driving, and admitted that he had been drinking. Id. at 8, 427 S.W.3d at 748.
Likewise, in the case at bar, based on Rules 2.1 and 3.1, along with our holding in Fisher, we hold that there was no Fourth Amendment violation because Officer Boyd’s warrantless seizure (commanding Tiller to perform the FST) was based on his reasonable suspicion that she had committed the offense of DWI. The officer witnessed Tiller repeatedly cross the cen ter line in violation of Arkansas Code Annotated section 27-61-301 (Repl.2Q10). He observed that her eyes were bloddshot and watery; her actions were lethargic and exaggerated; and her speech was slow and deliberate. She was unable to produce her insurance or registration documentation, which he found in the glove box. Finally, Tiller admitted that she had taken a CNS depressant an hour prior to the stop, which, according to Officer Boyd, can intoxicate a person. Because | ^Officer Boyd’s warrantless seizüre was authorized under Rules 2.1 and 3.1, it was lawful and Tiller’s consent was not required. Accordingly, we affirm oh this point.
Furthermore, we hold that Officer Boyd had probable cause to arrest Tiller without consideration of the FST. A law-enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed the offense of driving a vehicle while under the influence of an intoxicating liquor or drug. Stewart v. State, 2010 Ark. App. 9, at 6, 373 S.W.3d 387, 391 (citing State v. Lester, 343 Ark. 662, 668, 38 S.W.3d 313, 316-17 (2001); Ark. R.Crim. P. 4.1(a)(ii)(C) (2009) ). Reasonable or probable cause for a war-rantless arrest exists when the facts ai}d circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person to be arrested. Stewart, 2010 Ark.App. 9, at 6-7, 373 S.W.3d at 391. The testimony of Officer Boyd, wherein he described his observations of Tiller leading up to the FST (as set forth above), gave rise to probable cause that she was driving while intoxicated. See also Fisher, 2013 Ark.App. 301, at 8, 427 S.W.3d at 749 (holding that an arrest was supported by probable cause where the officer testified that the defendant had been observed driving, had bloodshot, watery eyes, smelled of intoxicants, and admitted that he had been drinking); Hilton v. State, 80 Ark.App. 401, 406, 96 S.W.3d 757, 761 (2003) (holding that the smell of alcohol, bloodshot eyes, the admission of drinking, and the refusal to take PBT established probable 17cause). Because Tiller’s arrest was supported by probable cause, it was lawful, and consent for FST was not required.
Tiller’s second point on appeal is that the trial court erred in denying her motion to suppress evidence that she refused to consent to the breath test. While she concedes that there is a “long line of cases” in Arkansas holding that the refusal to take a blood-alcohol test is admissible as evidence of consciousness of guilt, she argues that those cases are distinguishable because they were not decided in light of a proper Fourth Amendment objection. Tiller’s Fourth Amendment objection is that a warrant was required before obtaining the chemical test from her and that exercising that right cannot be used against her. Tiller’s argument fails.
The collection and testing of a person’s blood, breath, or urine constitutes a search under the Fourth Amendment to the United States Constitution, requiring a warrant or an exception to the warrant requirement. Skinner v. Ry. Labor Execs.’Ass’n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). A warrant-less search or seizure is per se unreasonable, unless it falls under a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Arkansas implied-consent law is an exception to the warrant requirement. It provides that
(a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state is deemed to have given consent, subject to the provisions of § 5-65-203, to one (1) or more chemical tests of his or her blood, breath, saliva, or urine 18for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:
(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has an alcohol concentration of eight hundredths (0.08) or more in the person’s breath or blood.
Ark.Code Ann. § 5-65-202(a)(3) (Repl. 2005). Based on this statute, Tiller’s consent to testing was implied, and no warrant was required for the search. Accordingly, no Fourth Amendment violation occurred; therefore, we affirm on this point.
Tiller’s third and final argument is that the trial court erred in denying her motion to suppress evidence because the refusal to submit to the breath test is inadmissible under Rule 403 of the Arkansas Rules of Evidence. She argues that a
person’s refusal to insist that the prosecution obtain a search warrant is not probative of anything except that the person knows their constitutional rights. The prejudicial effect of that evidence greatly outweighs the probative value of this type of evidence.
Rule 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2012). Evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. Dimas-Martinez v. State, 2011 Ark. 515, at 24, 385 S.W.3d 238, 253. Nevertheless, the |9evidence should not be excluded under Rule 403 unless the defendant can show that the evidence lacks probative value in view of the risk of unfair prejudice. Id., 385 S.W.3d at 253. We review a trial court’s ruling under Rule 403 for an abuse of discretion. Id., 385 S.W.3d at 253.
A defendant’s refusal to take a breath test is independently relevant on the issue of intoxication and therefore is properly admitted as circumstantial evidence showing a consciousness of guilt. Medlock, 332 Ark. at 109, 964 S.W.2d at 198; Spicer, 32 Ark.App. at 212, 799 S.W.2d at 564. In light of the holding in Medlock and Spicer, we conclude that the trial court did not abuse its discretion in finding that the probative value of Tiller’s refusal to take the breath test was not substantially outweighed by the danger of unfair prejudice. Accordingly, we affirm the trial court’s denial of Tiller’s motion to suppress based on a Rule 403 violation.
Affirmed.
PITTMAN and WALMSLEY JJ., agree.
. Arkansas Code Annotated section 5-65-103(a) (Repl.2005) provides that it is unlawful and punishable for any person who is intoxicated to operate or be in actual physical control of a motor vehicle,
. Officer Boyd also testified that he believed that he had probable cause to arrest Tiller for DWI without the FST results but that he proceeded with the testing because it was "protocol.”
. Tiller’s counsel further argued that the State should be prohibited from introducing the FST results into evidence at trial to prove intoxication. The motion was denied by the trial court, and Tiller does not challenge that ruling on appeal.
. Rule 4.1(a)(ii)(C) provides that a law-enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a traffic offense involving driving a vehicle while under the influence of any intoxicating liquor or drug.
. Tiller distinguishes two cases, Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998), and Spicer v. State, 32 Ark.App. 209, 799 S.W.2d 562 (1990), pointing out that the admissibility of the refusal to submit to testing as evidence of consciousness of guilt was considered under Rule 404(b) of the Arkansas Rules bf Evidence. In those cases, it was held that the defendant’s refusal to take the test was independently relevant on the issue of intoxication and therefore was properly admitted as circumstantial evidence showing a consciousness of guilt. Medlock, 332 Ark. at 109, 964 S.W.2d at 198; Spicer, 32 Ark.App. at 212, 799 S.W.2d at 564.
. Tiller cites cases from other jurisdictions for support; however, the cases are inapplicable because they do not involve an implied-consent statute. Tiller did not challenge the constitutionality of Ark.Code Ann. § 5-65-202(a) before the trial court, and she does not raise that argument on appeal. | [
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WAYMOND M. BROWN, Judge.
|,Appellant appeals from the circuit court’s order revoking his probation and committing him to the Division of Youth Services (DYS) for an undetermined period of time. On appeal, appellant’s sole argument is that the circuit court erred in committing him to DYS’s custody because the reasons for the violation of probation were due to the extenuating circumstances created by those who had been assigned to assist him in his counseling. We affirm.
In an order entered on April 3, 2013, appellant, a juvenile, was adjudicated delinquent of sexual assault in the second degree and was placed on probation for twelve months. Among the terms and conditions of his probation was a condition that he and his family “cooperate with assessment and/or treatment services and follow all recommendations of Life Strate gies.” On June 14, 2013, the State filed a petition to revoke appellant’s probation on the ground that appellant had failed to get counseling with Life Strategies in violation of this condition of his probation.
12Puring the November 20, 2013 revocation hearing, appellant’s probation officer, Lewis Davis, testified that appellant had been non-compliant with the counseling requirement as he had missed all four group therapy sessions, attended two out of five individual counseling sessions, and attended three out of four family sessions. Davis stated that appellant told him that appellant’s absences were due to “transportation issues[,]” but he advised that appellant’s case manager offered to take appellant to and from his counseling appointments “occasionally.” He was unaware of whether the ease manager offered to provide transportation every time. Davis stated that he thought committing appellant to DYS was necessary because Davis thought appellant “would do better in an in-patient facility and the State [could] provide that.”
Appellant’s case manager, Terrell Jenkins, testified that appellant’s attendance at meetings set up by Jenkins for appellant was “sporadic.” Jenkins also testified that the only condition he was aware of that appellant was ordered to do, but which appellant refused to abide by, were “the terms with his therapist.”
Appellant’s therapist from Life Strategies, Anthony Pickering, testified that appellant attended “about half’ of his sessions. Pickering testified that appellant was “resistant on and off through treatment[,]” showing signs of growth and then regressing, “becoming verbally abusive and just resistant.” Pickering testified that “most” of the sessions appellant attended were at appellant’s house, thereby making transportation a non-issue. His issue with appellant was that appellant would not be at home at the times |aappellant “knew” were set for sessions. When Pickering discussed the issue with appellant “multiple times[,]” he told Pickering “counseling was stupid and he did not need it.” He noted that appellant did take responsibility for his actions “at times” while “at other times he would say he did not do anything.”
Appellant testified regarding the previous testimony on his noncompliance that “some of it is true but some of it is not true.” Appellant testified that while Pickering used to come see him, Pickering was late and had not shown up in the past couple of months. He stated that Pickering was supposed to be at his home by 1:00 p.m. and that he would leave if Pickering had not arrived by 1:15 p.m. Appellant denied that he had missed a majority of the appointments, but admitted that he “probably did miss half of them since July.” He said that Jenkins had helped him “a lot” and that he saw Jenkins “almost every day.” He asserted that he had not seen Davis since he was put on probation and that the other witnesses were “lying on him.” Finally, appellant asserted that he had phone numbers to reschedule appointments that he missed, but admitted only calling to reschedule a “couple of times[.]”
Following appellant’s testimony, the court found that appellant was in violation of his probation and committed him to DYS for a period of time to be determined by appellant’s cooperation. On November 21, 2013, the court entered a delinquency adjudication and DYS commitment order reflecting the same and ordering appellant to sex offender specific treatment. This timely appeal followed.
| ,j Under Arkansas Code Annotated section 9-27-339 (Supp.2011), a juvenile court may revoke a juvenile’s probation if it finds by a preponderance of the evidence that the juvenile violated the terms and conditions of probation. The State need only show that the appellant committed one violation in order to sustain a revocation. On appeal, the juvenile court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, appellate courts defer to the trial judge’s superior position to gauge these matters.
There was testimony from appellant’s therapist, case manager, and probation officer that appellant was not complying with the counseling condition of his probation. Appellant admitted that he missed multiple counseling appointments in spite of his admission that he picked the days for the sessions, thereby corroborating Pickering’s testimony that appellant knew when the sessions were. However, appellant asserts that his failure to comply is the fault of his therapist. While appellant offered an excuse for his violation, the trial judge was not required to believe him or excuse his failure to comply with the conditions of his probation. All testimony, including appellant’s, was that ^appellant was not complying with his counseling requirement; however, appellant admitted the same with qualification. Why he failed to comply stemmed from witness testimony that differed, and was therefore an issue of credibility. We defer to the fact-finder on issues of credibility. We find that the trial court’s findings are not clearly against the preponderance of the evidence.
Affirmed.
GLADWIN, C.J., and VAUGHT, J., agree.
. Sessions were set for 1:00 p.m. on Mondays and Wednesdays. Both appellant and his mother were aware of this schedule because they picked the days and times.
. M.L. v. State, 2013 Ark. App. 130, at 1, 2013 WL 765201 (citing R.W. v. State, 2010 Ark.App. 220, 2010 WL 724310).
. Id., at 2-3 (citing Brock v. State, 70 Ark.App. 107, 14 S.W.3d 908 (2000)).
. Id., at 3.
. Id. (citing Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002)).
. Ingram v. State, 2009 Ark. App. 729, at 7, 363 S.W.3d 6, 10 (citing Jones v. State, 52 Ark.App. 179, 916 S.W.2d 766 (1996)).
. Id. (citing McChristian v. State, 70 Ark.App. 514, 20 S.W.3d 461 (2000)). | [
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DONALD L. CORBIN, Justice.
1, Appellant Brian T. Jordan appeals the order of the Benton County Circuit Court convicting him of rape and sentencing him as a habitual offender to life imprisonment. Jordan raises two issues on appeal: (1) the circuit court erred in allowing highly prejudicial prior offenses into evidence in violation of Ark. R. Evid. 609; (2) he is entitled to a new trial because comments made by the circuit court to the jury and to the victim, in violation of Ark. R.Crim. P. 35.1, indicated that the circuit court was biased against him. Our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(a)(2) (2011). We find no error and affirm.
As Jordan does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. On February 27, 2010, the Benton County Sheriffs Department received a call that a seventy-five-year-old female had been sexually assaulted in her home. The victim, N.B., identified her attacker as Appellant, a former neighbor who had recently |2begun visiting her. Jordan was subsequently arrested and charged as being a habitual offender and with one count of rape in violation of Ark.Code Ann. § 5-14-108 (Supp.2011).
Before trial, Jordan filed a motion in limine seeking to prevent the introduction of his prior felonies, which included convictions for first-degree carnal abuse of a six-year-old child, arson, terroristic threatening, and failure to register as a sex offender. In his motion, Jordan asserted that any prior felony convictions were irrelevant and, thus, inadmissable under Ark. R. Evid. 401 and 402. Alternatively, Jordan argued that, even if the convictions were deemed relevant, their prejudicial effect outweighed their probative value and should have been excluded under Ark. R. Evid. 408, and constituted unfair evidence of bad character in violation of Ark. R. Evid. 404. The circuit court held a hearing on the motion. This hearing focused on the issue of the admissibility of the prior convictions pursuant to Rule 609 if Jordan chose to testify at trial. Jordan reiterated his argument that the prior convictions were too prejudicial to be brought in even for impeachment purposes. The State countered that the prior convictions were highly probative in a case such as this one that involved the word of the victim versus the word of Jordan, because Jordan’s credibility would be a central issue. At the conclusion of the hearing, the court announced that it was inclined to grant the motion in limine because of the potential for unfair prejudice but reserved ruling on the issue until the State filed a brief in response. Thereafter, on the day of trial, the circuit court ruled that the State would be allowed to impeach Jordan’s credibility with his prior convictions if he Lchose to testify at trial because credibility would be an issue because his defense was that the victim offered to pay him to have sex with her.
Jordan was tried before a Benton County jury on April 27-28, 2011. He did take the stand in his own defense. During his direct examination, Jordan admitted that he had four prior felony convictions. The jury found Jordan guilty and sentenced him as set forth above. He now brings the instant appeal.
As his first point on appeal, Jordan argues that the circuit court erred in allowing highly prejudicial prior offenses to be introduced into evidence in violation of Rule 609. Jordan bases his allegation of error on the contention that the circuit court did not balance the probative value of the evidence versus its prejudicial effect but instead adopted a bright-line rule in allowing the convictions into evidence. Jordan further argues that, even if the circuit court did engage in the proper analysis, it erred in concluding that the prior convictions were more probative than prejudicial. Finally, Jordan argues that the circuit court erred in allowing a far more in-depth inquiry into the convictions than Rule 609(a)(1) permits..
The State counters that Jordan’s argument is without merit because the circuit court correctly weighed the evidence and acted thoughtfully and entered its decision with care. Moreover, the State asserts that the circuit court correctly determined that the probative value of the prior convictions outweighed any unfair prejudice. Alternatively, the State argues that any error in admitting evidence of the prior conviction was harmless. Finally, the State avers that the specifics about the prior convictions were elicited by Jordan’s counsel during direct examination and, thus, Jordan cannot now complain of error that he invited.
|4This court has held that a circuit court has considerable discretion in determining whether the probative value of prior convictions outweighs their prejudicial effect under Rule 609, and that decision will not be reversed absent a manifest abuse of discretion. E.g., Ellis v. State, 2012 Ark. 65, 386 S.W.3d 485; Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). The admissibility of the prior convictions must be decided on a case-by-case basis. Id. When a defendant chooses to testify, this court has consistently permitted prior convictions to be used for impeachment purposes, even where those convictions are similar to the charge or charges before the court. Id. Factors to consider in making the probative prejudicial analysis include the impeachment value of the prior crime, the date of the conviction and the witness’s subsequent history, the similarity between the prior conviction and the crime charged, the importance of the defendant’s testimony, and the centrality of the credibility issue. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995).
Rule 609 governs impeachment of witnesses and provides in relevant part:
■ For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
Ark. R. Evid. 609(a) (2011). Jordan does not challenge the admissibility of evidence regarding his prior convictions for arson and terroristic threatening. Likewise, he does not challenge the timeliness of the convictions for carnal abuse and failure to register or that they were felonies punishable by more than one year of imprisonment. His challenge is that the ^circuit court did not conduct the proper Rule 609(a)(1) analysis or,- alternatively, erred in concluding that the probative value of the prior convictions outweighed their prejudicial effect.
We turn first to Jordan’s assertion that the circuit court failed to conduct the proper inquiry, and it is readily apparent that this argument is without merit. The record demonstrates that the circuit court properly balanced the probative value versus the prejudicial effect in considering Jordan’s assertion that the prior convictions were not admissible. In fact, in ruling that the State would be allowed to introduce the prior convictions, the court explained:
I agree with you that to admit — to allow the State to impeach Mr. Jordan with these priors, specifically the nature of the priors, would be highly prejudicial. Of course, any evidence they have they hope will be highly prejudicial in order to get a conviction. However — and I indicated the other day I thought that to allow the State to utilize this information would, in essence, destroy Mr. Jordan’s credibility. However, the case law supports the prosecutor one hundred percent. I’ve got to follow the law. This is a he said/she said on a serious charge of Rape, and the case law is clear. I’ve got to make a — I’ve got to make a balance here, I’ve got to make a balancing test, and where it’s a he said/she said on the case of this nature, the case law one hundred percent backs the prosecutor that they can go into the exact nature of the priors. It’s a credibility issue. The law specifically allows a person to be impeached with felony crimes when they testify. It’s Mr. Jordan’s choice to testify. But I’ve got to follow the law, Mr. Jordan, and I will.
(Mr. Jordan nodded head.)
The Court: So the, uh, in my opinion, when you consider that credibility plays such a heavy role in this, uh, in these issues, I think that I have to follow the law that says where that’s the case the State will be allowed to state the very nature and the specifics of the charge. And so I will.
As we explained in Ellis, 2012 Ark. 65, 886 S.W.3d 485, Rule 609 is satisfied as long as it is clear from the record that the circuit court determined that the probative value outweighed | fithe potential for unfair prejudice. That is precisely what the circuit court did in this case; therefore, Jordan’s argument on this point fails.
Now, we must turn to Jordan’s assertion that, even if the circuit court engaged in the proper inquiry, it still erred in concluding that the prior convictions were admissible. This court has previously discussed the propriety of a circuit court allowing the State to cross-examine a defendant, who chooses to take the stand in his own defense, about his prior felony convictions. In Turner, 325 Ark. 237, 926 S.W.2d 843, this court rejected an appellant’s argument that the allowance of such cross-examination was in error. In so doing, we noted that because the appellant had testified, his credibility was a central issue in the case and, viewed in that light, his prior convictions were extremely probative. Id. This court held, as a result, that the circuit court did not abuse its discretion in permitting inquiry into the prior convictions. Id. Furthermore, this court took the opportunity to overrule its prior decision in Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), where the court had held that the probative value of a prior rape conviction, similar in nature to the crime for which the appellant was standing trial, was scant as compared to the great potential for prejudice. Thus, the Turner court concluded that there was no justification for disallowing the use of crimes, even ones of a unique nature, for the purposes of attacking the credibility of a defendant who takes the stand. Id.
Here, it was undisputed that credibility was a central issue, as Jordan’s defense was that he did not rape N.B., rather that she offered him $100 to have sex with her. We recently reiterated that where the evidence in a case consists of witness or victim testimony and the 17testimony of the accused, we steadfastly hold that the accused’s credibility is critical; therefore, prior convictions are highly probative. Ellis, 2012 Ark. 65, 386 S.W.3d 485. Moreover, the convictions for carnal abuse of a child and failure to register, while sexually related offenses, differed from the offense charged here, rape of a seventy-five-year-old woman, thus lessening any potential prejudice. Accordingly, we cannot say that the circuit court abused its discretion in finding that the prior convictions were more probative than prejudicial and, thus, admissible pursuant to Rule 609.
We turn now to the issue of the introduction of the specific nature of Jordan’s prior convictions that he challenges on appeal. Prior to trial, Jordan filed a motion in limine asserting that the prior convictions were not admissible character evidence, pursuant to Rules 401, 402, 403, and 404. Then, in a hearing on the motion, counsel argued that the convictions were not admissible, even if Jordan chose to testify, pursuant to Rule 609 because their prejudicial effect outweighed their probative value. To the contrary, the State argued that not only were the convictions admissible but also the nature of the offenses was admissible. In ruling in favor of the State, the circuit court stated that the State would be allowed to delve into the nature of the offenses. Jordan never argued a contrary position or objected to the circuit court’s ruling regarding the admissibility of the nature of the offenses. Thus, Jordan’s argument on appeal that the circuit court erred in allowing the State to elicit specific information about the nature of the offenses is being raised for the first time on appeal. The general rule is that this court does not consider arguments raised for the first time on appeal. Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55. Even in a case in which a 1 Rsentence of life imprisonment has been imposed, the appellant is bound by the scope of the argument he or she made at the trial level. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. Accordingly, we are precluded from addressing this argument.
As his remaining point on appeal, Jordan argues that he did not receive a fair trial because the circuit court was biased and prejudiced against him as demonstrated by his violation of Ark. R.Crim. P. 35.1. Specifically, Jordan contends that the circuit court improperly praised the jury’s verdict and thanked the victim of the offense for being brave and for seeking justice. The State counters that Jordan did not properly object below and is thus precluded from raising this argument on appeal. Alternatively, the State argues that the circuit court’s comments did not violate either Rule 35.1 or any of the judicial canons.
Rule 35.1 governs “Judicial comment on verdict” and provides as follows:
While it is appropriate for the court to thank the jurors at the conclusion of a trial for their public service, such comments shall not include praise or criticism of their verdict.
Ark. R.Crim. P. 35.1 (2011). The comments now challenged by Jordan were made by the circuit court just prior to the court’s dismissal of the jury. The circuit court, in thanking the jurors for their service, stated as follows:
The Court: Ladies and gentlemen of the jury, I thank you for your service to this community. I’m satisfied that [N.B.] thanks you and appreciates your efforts. I think that even though this was a hard, tough case, rough subject matter, it also is — it shows you what the real world is made out of, and it shows you how brave a person such as [N.B.] has to be in order to get justice. And it was clear to everybody that, uh, and there’s no question at this time that she’s a very religious, upright person, raised a family well, and lived a good life and then suffered a terrible crime. But she showed courage to come in here and, uh, and give her story in a very detailed and, I thought, compelling manner. And so I appreciate your willingness to serve in this case.
| flIt is apparent from the record that at no time did Jordan object during the circuit court’s statements. We therefore agree with the State that Jordan’s Rule 35.1 argument is not preserved for our review. The law is well settled that to preserve an issue for appeal, a defendant must object at the first opportunity, and a motion for mistrial must likewise be made at the first opportunity. Vance v. State, 2011 Ark. 248, 383 S.W.3d 325. The reason behind this rule is that a circuit court should be given an opportunity to correct any error, perhaps before any prejudice occurs. Id. Because Jordan did not object at the time the circuit court made the statements to the jury, we will not address his argument on appeal.
The record in this case has been reviewed for reversible error pursuant to Ark. Sup.Ct. R. 4 — 3(i) (2011), and none has been found.
Affirmed.
. Jordan was also charged with one count of witness bribery and one count of intimidating a witness, but the State nol-prossed those charges. | [
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RITA W. GRUBER, Judge.
| T This workers’ compensation case involves appellant Grady Martin Jr.’s claims for a compensable neck injury. Appellee Jensen Construction Company initially accepted the compensability of the injury, which Martin sustained in September 1999 when he fell from a ladder onto rip-rap. Martin underwent separate cervical surgeries in January and December 2001, first at level C3^4 and then at C5-6. Jensen controverted benefits after the second surgery, and a hearing took place before an administrative law judge in 2003. The law judge issued an opinion that subsequently was appealed to the Workers’ Compensation Commission. In 2005 the Commission awarded Martin a twenty-five-percent wage-loss disability beyond his fifteen-percent anatomical impairment and found that he had proven | entitlement to medical treatment related to his compen-sable cervical injury, including the two surgeries. The Commission found that a lumbar MRI was not reasonably necessary in connection with the compensable injury, that Martin had not sustained a lumbar injury, and that he was not entitled to treatment for his lumbar spine as a com-pensable consequence of the cervical injury. The 2005 decision was not appealed to this court.
In February 2006 Martin underwent surgery at a third level of his cervical spine, C4-5. Litigation ensued when he claimed additional benefits, asserting that his physical condition had worsened since the time of the Commission’s decision in 2005. The parties stipulated at a 2008 hearing that the Commission’s 2005 decision was final and had become the law of the case. The administrative law judge found that Martin failed to prove that he was permanently disabled or was entitled to additional wage loss beyond the 2005 award. The Commission adopted and affirmed the law judge’s opinion in a decision of January 6, 2009.
The Commission refused in its 2009 decision to revisit its specific finding in 2005 that Martin had not sustained a compensa-ble lumbar injury, noting that it was res judicata and the law of the case. The Commission found that Martin had proven that medical treatment related to the cervical spine, including the third cervical surgery, was reasonable, necessary, and related to his compensable neck injuries; he had proven entitlement to an additional two percent whole-body anatomical impairment due to the third surgery; he had failed to prove that he was permanently and totally disabled; and he had failed to prove entitlement to additional wage-loss disability beyond that already awarded by the 2005 opinion. Martin now | ..¡appeals the Commission’s decision, raising two points. He contends that substantial evidence does not support the denial of his claims for permanent total disability or additional wage-loss disability benefits beyond the 2005 award. We discuss the two points as one, and we affirm.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Sivixay v. Danaher Tool Group, 2009 Ark. App. 786, 359 S.W.3d 433. When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Id. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Id.; see Ark.Code Ann. § 11-9-522(b)(1) (Repl.2002). Permanent total disability is the inability, because of com-pensable injury, to earn any meaningful wages in the same or other employment. See Ark.Code Ann. § 11-9-519(e)(1) (Repl. 2002).
The injured party bears the burden of proof in establishing entitlement to benefits under the Worker’s Compensation Act and must sustain that burden by a preponderance of the evidence. Dearman v. Deltic Timber Corp., 2010 Ark. App. 87, 377 S.W.3d 301. It is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). The evidence is viewed in the light most favorable to the Commission’s decision, and the decision will be ^affirmed when it is supported by substantial evidence. Ester v. Nat’l Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000).
At the time of the hearing, appellant was forty-eight years old with a ninth-grade education. He testified that before the third surgery, he felt as if he were becoming paralyzed: he required help in the shower because he could not use his hands to hold soap, he could hardly move his legs, and he had numbness from the neck down. He testified that the third surgery helped but the pain afterward increased, and it had been suggested that he needed a morphine pump. He said he was taking Excedrin three to four times a day and experienced excruciating pain daily. He said he could walk only seven to eight minutes at a time, had pain when standing or sitting too long, and had pain when he tried to perform housework or drive a vehicle. He testified that he had been determined permanently and totally disabled for purposes of social security.
Additionally, Martin testified that his neck was better, he felt better after his third surgery, and he had told his surgeon that the surgery was very, very helpful and that he was happy about it. He said that at the time of his 2003 hearing, drowsiness from a previous 1 r,medication had been a primary reason he had felt that he could not work. He testified that he no longer took the same medicine and no longer had the cane he had used at the first hearing. He also said he had gone fishing five times the previous month, could drive his car, and could use a self- propelled lawnmower, although it hurt him. He said that his lower back had gotten worse and worse, and so had his neck. Other problems he testified to were tiredness and weakness; pain inside his ears that affected his jaws and went to his hands, legs, and feet; pain all over his body almost every day; and nausea, vomi1> ing, heartburn, abdominal gas, and irritability.
A March 1, 2006 report by Martin’s surgeon, Dr. Lee M. Buono, stated that Martin could walk without a cane and that he and his wife were ecstatic with the results of the third surgery, which the doctor concluded was a “home run.” On April 3, 2006, Dr. Buono reported that Martin’s numbness and walking were “much better,” he was still doing quite well and was very happy with the surgery results, he was experiencing some swelling but no significant pain, and Mobic would be started for arthritis in his joints. On June 5, 2006, Dr. Buono reported that Martin was walking better since the surgery, the strength in his hands had improved, he would be given Lyrica and a muscle simulator for a muscle spasm in his neck, and overall he was “well healed ... and much improved.”
On September 6, 2006, Dr. Buono opined that the 2006 surgery was successful but that Martin was permanently disabled and unable to return to gainful employment because of neuropathy, spinal cord injury, cervical spondylosis, chronic pain, and resulting permanent | fidysfunctions in walking, balance, and fine-motor movement. Dr. James Michaels, who performed an impairment rating on April 13, 2007, also opined that appellant was permanently totally disabled.
Martin points to the opinions of Dr. Buono and Dr. Michaels, and he argues that the Commission misinterpreted the limited success of his third surgery. In light of his age, limited education, history of manual labor, lack of technical training or sedentary work, and physical limitations, he contends that he is permanently and totally disabled. He cites such cases as Hunter Wasson Pulpwood, v. Banks, 270 Ark. 404, 605 S.W.2d 753 (1980), and Whitlach v. Southland Land & Dev., 84 Ark.App. 399, 141 S.W.3d 916 (2004), where the claimants were determined to be totally and permanently disabled. The Hunter court affirmed the Commission’s determination, in part because of the Commission’s power to resolve conflicting medical evidence. The Whitlach court, noting factors such as severe side effects of necessary narcotic medication that was taken daily, an MRI showing significant post-surgical scarring around a nerve root, and the opinions of a vocational expert as well as the claimant’s doctors, found that reasonable minds could not come to the Commission’s conclusion that the claimant was less than totally and permanently disabled. We employ those same standards of review in the present case.
Noting Martin’s testimony and the three reports of Dr. Buono, the Commission concluded that “the only change in physical condition” related to Martin’s compensable cervical injuries was the fact that his cervical problems had “dramatically improved following |7his third cervical surgery.” The Commission wrote:
The records clearly show that the claimant’s third cervical surgery did exactly what it should have, it helped. Now the claimant is able to walk without the need for a cane and the medical records clearly show the claimant is vastly improved since the Full Commission rendered its [2005] opinion. If anything, the claimant should now be able to perform more duties than he could at the time of the last adjudication.
We find that the Commission’s opinion displays a substantial basis for denying Martin’s claims for permanent total disability or additional wage-loss benefits. The question before us is not whether the evidence would have supported findings contrary to those of the Workers’ Compensation Commission; rather, the decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. Caffey v. Sanyo Mfg. Corp., 85 Ark.App. 842, 154 S.W.3d 274 (2004). We are unable to say that reasonable minds could not reach this result, and we therefore affirm.
Affirmed.
VAUGHT, C.J., and ROBBINS and GLOVER, JJ., agree.
HART and KINARD, JJ., dissent. | [
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JOHN MAUZY PITTMAN, Judge.
Lin 2003, decedent Donald Grubbs transferred his individual retirement account (IRA) to Raymond James and Associates, Inc., naming appellant as the beneficiary to receive the residue in the event of his death. Decedent was hospitalized in May 2005 and died on June 9 of that year. On June 3, 2005, decedent summoned an attorney to the hospital, where decedent made and executed a last will and testament that did not mention the IRA account. This will left decedent’s entire estate to his mother, Shervena Grubbs, who was also named as executrix. In that capacity, Shervena Grubbs filed this action for an injunction freezing the assets of the IRA account based on her assertion that a note that she found in decedent’s Bible months after his death had the effect of changing the beneficiary designation in the IRA | ^account to make her the beneficiary. The trial court agreed and awarded her the account. Appellant asserts that the trial court clearly erred in so doing. We agree, and we reverse.
This case requires construction of three documents: a will, an IRA, and a handwritten note, which was assertedly found by Shervena Grubbs in a Bible some time after decedent’s death. The cardinal rule for the interpretation of wills and other testamentary documents is that the intent of the testator should be ascertained from the instrument itself and effect given to that intent. Rowland v. Faulkenbury, 47 Ark. App. 12, 883 S.W.2d 848 (1994). The purpose of construing a will is to arrive at the testator’s intention; however, that intention is not that which existed in his mind, but rather that which is expressed by the language of the instrument. Mills’ Heirs v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971).
An IRA constitutes a contract between the person who establishes the IRA for his or her retirement and the financial institution that acts as the custodian of the IRA. Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006). Like an insurance policy, an IRA includes designation of beneficiaries to receive the residue in the event of the retiree’s death. See id. The rules pertaining to the construction of contracts are well settled: In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Coleman v. Regions Bank, 364 Ark. 59, 216 S.W.3d 569 (2005). The intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id. When a written contract refers to another instrument and makes the terms of that instrument a part of the |3contract, the two are construed together as the agreement of the parties. Isbell v. Ed Ball Construction Co., 310 Ark. 81, 833 S.W.2d 370 (1992). When contracting parties express their intention in clear and unambiguous language in a written instrument, we must construe the written agreement according to the plain meaning of the language employed. However, where the meaning of a written contract is ambiguous, parol evidence is admissible to explain the writing. Coble v. Sexton, 71 Ark. App. 122, 27 S.W.3d 759 (2000). Ambiguities can be patent or latent. When, on its face, the reader can tell that something must be added to the written contract to determine the parties’ intent, the ambiguity is patent; a latent ambiguity, on the other hand, arises from undisclosed facts or uncertainties of the written instrument. Id.
There are no Arkansas cases dealing specifically with attempts to change IRA beneficiaries by will, but the cases involving insurance policy beneficiaries, cited by appellant, are analogous and instructive. It is generally held that, where a life insurance policy reserves to the insured the right to change the beneficiary but specifies the manner in which the change may be made, the change must be made in the manner and mode prescribed by the policy, and according to most courts any attempt to make such change by will is ineffectual. See generally Wanda Ellen Wakefield, Annotation, Effectiveness of Change of Named Beneficiaey of Life OR Accident INSURANCE Policy By Will, 25 A.L.R.4th 1164 (1992). However, Arkansas law is contrary to the general rule: Arkansas holds that a change of beneficiary can in fact be accomplished in a will so long as the language of the will is 14 sufficient to identify the insurance policy involved and an intent to change the beneficiary. Pedron v. Olds, 193 Ark. 1026, 105 S.W.2d 70 (1937); see also Allen v. First National Bank, 261 Ark. 230, 547 S.W.2d 118 (1977).
With these principles in mind, we now turn to the documents involved in the present case. Decedent’s IRA application and agreement with Raymond James and Associates, Inc., designated appellant as sole beneficiary of his IRA. Appellant was identified by name, social security number, and date of birth. The effect of this designation upon decedent’s estate and the method of changing beneficiaries were specified as follows:
I understand that if I designate “my will” or some variation thereof as my Beneficiary, that the Custodian shall interpret this term as my estate and that if I do not designate any Beneficiary, my Beneficiary shall also be deemed to be my estate. I understand that I may revoke this beneficiary designation at any time by completing and submitting a new beneficiary designation, which shall supercede all prior beneficiary designations. Such replacement designation shall be submitted on either a form provided by the Custodian for this purpose and/or in some other manner deemed acceptable to the Custodian.
Decedent’s last will, made and executed with the assistance of an attorney shortly before his death, expressly revoked any prior will and stated:
I hereby give, devise, and bequeath all of my estate and property, of every kind and nature, and wherever situated, to my mother, Shervena T. Grubbs, should she survive me.
This testamentary provision is unambiguous. As appellant argues, it is also inadequate to effect a change of beneficiary because the language is insufficient to identify the IRA account involved and an intent to change the beneficiary. See Allen, 261 Ark. 280, 547 S.W.2d 118. The trial court found, however, that decedent’s IRA beneficiary was changed from appellant to appellee by virtue of a note that appellee assertedly found in a Bible in decedent’s home after his death. This document, handwritten on a Nations Bank notepad, provided in its entirety as follows:
May 2005
My Will
I Donnie Grubbs want all of my estate All IRA and any SBC Telco and all other assets and worldly goods to go to my Mother Shervena Grubbs. Being of sound mind.
Donnie Grubbs
The trial judge recognized in his letter opinion that this handwritten note appears dubious. He was right. It was found by appellee, who was the only person who could benefit from its discovery. The plausibility of appellee’s account of this fortuitous discovery is not helped by the conflicts in the testimony at trial. Appel-lee testified that she found the note while at decedent’s house in the company of decedent’s former coworker, Mr. Tommy Moran, and that she immediately showed the note to Mr. Moran. However, Mr. Moran testified that appellee did not do so, and that he had never seen the document or known of its existence until the day of the trial.
Nevertheless, assuming that the note was authentic, and that it might properly be considered to contradict or vary the unambiguous terms of decedent’s IRA beneficiary designation or his last will, the trial court clearly erred in finding that it was an effective change of decedent’s IRA beneficiary. As appellant argues, if the note is regarded as a | ^holographic will, it was revoked by the express terms of decedent’s last will and by operation of law pursuant to Ark.Code Ann. § 28-25-109(a)(1) (Repl.2004). If the note is not regarded as a will, then the rule permitting change of beneficiaries in a will has no application to it, and appellee had the burden of proving that decedent intended for the note to be a change of beneficiaries and did everything reasonably possible to effectuate a change of beneficiary. Allen v. First National Bank, supra. In light of the undisputed evidence that decedent could and did summon an attorney to his bedside mere days before his death and thereby execute a valid and unambiguous last will, the trial court could not reasonably find that decedent did everything reasonably possible to change beneficiaries given his failure to employ similar efforts to communicate his intent to do so to the custodian of the IRA.
Reversed and remanded.
VAUGHT, C.J., and GLADWIN, GLOVER, and MARSHALL, JJ., agree.
HART, J., dissents. | [
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COURTNEY HUDSON HENRY, Judge.
| Appellant Kadrian Thompson appeals the order of the Pulaski County Circuit Court that terminated her parental rights to her daughter, K.T., who was born on October 2, 2007. For reversal, she argues that the trial court erred in finding that termination was in the child’s best interest and in finding that grounds existed to justify termination. We affirm.
The record reflects that appellant, a resident of Arkansas, gave birth to K.T. in Memphis, Tennessee, while on a trip to Tunica, Mississippi. Appellee, the Arkansas Department of Human Services (DHS), received a report that the child tested positive for cocaine at birth and that appellant tested positive for cocaine and marijuana at the time of delivery. On October 4, 2007, DHS personnel contacted appellant at her home in Little Rock and obtained her verbal agreement to come to the local DHS office. When appellant did not appear, the caseworker visited appellant’s home. Appellant became combative and [gverbally threatened the caseworker, who summoned the police for assistance. Appellant fled with the child before the police arrived. DHS obtained an emergency order to take custody of K.T., and the trial court found probable cause after affording appellant two hearings on the issue.
In the adjudication order dated December 12, 2007, the trial court found that K.T. was dependent-neglected and that returning her to appellant’s custody was not in her best interest. In reaching this conclusion, the trial court identified appellant’s long-term use of drugs as the core problem preventing appellant from maintaining custody. The court took note of its experience with appellant from past proceedings involving appellant’s now adult children. The court recalled that appellant had a history of noncompliance and of disobeying court directives. The court ordered appellant to submit to a psychological evaluation and to follow recommendations, to enter and complete inpatient drug treatment, to attend counseling, to undergo random drug screens, and to obtain employment and stable housing. In this order, Ron Mitchel was identified as KT.’s putative father. He declined services until paternity was established.
At a review hearing in April 2008, the court found that DHS had failed to make timely referrals for services. As a consequence, progress in the case was delayed by three months, and the court announced its inclination to allow appellant additional time to achieve reunification. The court stated, however, that it did not consider appellant’s chances of rehabilitation as promising, and the court cautioned that it may not allow additional time if appellant did notlaput forth a good-faith effort. The court continued its previous orders and further directed appellant to enter a drug-free halfway house following residential treatment and to undergo random drug screens at least once a month.
In the permanency planning order entered on July 29, 2008, the trial court found that appellant had refused drug screens and that she had declined to enter residential treatment. Appellant also had not obtained stable housing or employment, and the court found that appellant had failed to cooperate with DHS and had not taken any material steps to achieve reunification. Despite appellant’s lack of compliance, the court granted appellant additional time given the previous delay in services, noting that appellant had at least submitted to a psychological evaluation and had begun counseling. The court advised appellant that it would authorize the goal of the case plan to be changed to termination if appellant had not made significant progress by the next hearing.
The court held another permanency planning hearing in October 2008. In the order stemming from that hearing, the court found that there were no compelling reasons to continue the goal of reunification but that it would not change the goal to termination due to the initial lack of services. The court found that appellant maintained a hostile attitude and continued to refuse drug screens following residential treatment, despite warnings that any refusal would be considered a positive test. The court increased the number of random drug screens to twice a month and cautioned appellant that living a drug-free life included finding meaningful employment.
14After a hearing in January 2009, the trial court changed the goal of the case plan to the termination of appellant’s parental rights. In its findings, the court found that appellant continued to test positive for drugs and stated that it did not believe appellant’s claim that the caseworker had falsified the drug screens. The court noted that appellant had never held a job and that she was not responsible for her own housing and was dependent on others for support. The court stated that her dependency on others and absence of employment contributed to her lifestyle of cocaine abuse. The trial court ordered appellant to obtain her own housing rather than continue living with relatives, stating that appellant needed to live independently and drug free in order to demonstrate stability.
The trial court scheduled the termination hearing for April 14, 2009, but the court continued the hearing to June 9, 2009. Paula Smith, appellant’s former caseworker, testified that appellant completed a thirty-day inpatient program in September 2008 and an after-care program in November 2008 but that appellant continued to test positive for drugs. The last positive screen occurred on November 20, 2008. In 2009, all of appellant’s screens were negative, including the one taken on the day of the termination hearing. Smith testified that appellant had not maintained stable employment or housing throughout the proceedings. She said that appellant once lived on her own in a house for six months and that appellant’s last known residence was with her uncle in Wrights-ville. Smith testified that appellant quit one job after two days and that appellant said that she was working for Avon. Smith said, | ¡¡however, that appellant never provided any proof of earnings. Smith also stated that appellant reported that she was taking classes at Eastern College.
Juanita Lloyd-Thomas succeeded Smith as appellant’s caseworker in March 2009. She testified that appellant had provided no proof of attendance at NA meetings and that attendance was important in order to prevent a relapse. Lloyd-Thomas stated that, although appellant was argumentative, she had experienced no problems with appellant during visitations and that appellant and K.T. were bonded to one another. She said that appellant did not understand why she could not live with her uncle and that she had encouraged appellant to apply with a temporary agency while searching for full-time employment. Lloyd-Thomas testified that she did not believe that appellant was stable enough to provide for the needs of the child.
Sylvia Jones, appellant’s therapist, testified that she counseled appellant at least three times a month but that, since April 2009, she had not seen appellant as often. She worked with appellant regarding stress management and interpersonal skills. Jones felt that appellant had benefited from her services and that appellant had made progress. She said that appellant had been cooperative and that appellant reported that she was receiving medical-assistant training at a college.
Dr. Paul Deyoub, a forensic psychologist, conducted a psychological evaluation of appellant in March 2008. He offered a diagnosis of cocaine and cannabis dependency and an Axis II personality disorder that included elements of psychopathic deviancy and antisocial ^personality deviancy. Dr. Deyoub explained that a personality disorder meant that a person exhibits a pervasive pattern of maladjustment, hostility toward authority, disorderly conduct, poor work history, and relationship problems. He said that these tendencies are acquired over a lifetime and cannot be cured but could be treated with therapy geared toward holding the person responsible. Dr. Deyoub stressed that it was important for someone who was dependent on drugs and who had a personality disorder to maintain stable employment. He testified that having a job signifies that a person has abandoned her drug use because one cannot effectively work and abuse drugs. He further testified that persons with a personality disorder avoid conventional behavior and that having a job changes that pattern of avoidance. Dr. Deyoub stated that appellant’s prospects for overcoming her problems were poor at age thirty-six.
In its order terminating appellant’s parental rights, the trial court recounted the history of the case and gave little weight to appellant’s negative drug tests in recent months. Further, the court found that, even accepting her eleventh-hour period of sobriety, appellant had failed to establish stability in the areas of housing and income. The court credited Dr. Deyoub’s testimony outlining the need for appellant to demonstrate stability by maintaining employment, and the court noted the necessity of appellant to show that she could live independently of others. Finally, the trial court was not impressed with appellant’s purported enrollment in college in lieu of obtaining employment.
|7On appeal, appellant contends that the trial court erred in finding sufficient evidence of grounds to support termination and in finding, in terms of potential harm, that termination was in K.T.’s best interest. She discusses these issues as one point, stating that the evidence and her arguments relate to both matters. Specifically, appellant argues that she complied with many aspects of the case plan and that she made overwhelming progress in overcoming her addiction to drugs. She asserts that she maintained stable housing by living with her uncle and complains that it was not fair for the court to require her to live independently so late in the proceedings. Appellant contends that her lack of employment is not an acceptable basis for terminating her rights. Appellant also argues that the trial court overly emphasized her past transgressions. In addition, she points out that she regularly visited K.T. and that they shared a bond.
Pursuant to Arkansas Code Annotated section 9 — 27—341(b)(3)(A)(i) and (ii) (Repl. 2009), an order terminating parental rights must be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parents. In addition, the proof must establish at least one of several statutory grounds. Ark.Code Ann. § 9-27-341(b)(3)(B). One of those grounds is that the juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parents for twelve months and, despite a meaningful effort by the department to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by lathe parents. Ark.Code Ann. § 9-27-341 (b)(3)(B)(ii)(a.). Another ground is that other factors arose subsequent to the filing of the original petition for dependency-neglect which demonstrate that returning custody to the parents is contrary to the juvenile’s health, safety, and welfare and that, despite an offer of appropriate services, the parents have manifested the incapacity or indifference to remedy the subsequent factors. Ark.Code Ann. § 9-27-341 (b)(3) (B) (vii)(a.).
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Strickland v. Ark. Dep’t of Human Servs., 103 Ark.App. 193, 287 S.W.3d 633 (2008). Thus, the law places a heavy burden on a party seeking to terminate the parental relationship, and that party must prove facts warranting termination by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof which will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. On appeal, we do not reverse the trial court’s finding that the disputed fact was proved by clear and convincing evidence unless the court’s finding is clearly erroneous. Hall v. Ark. Dep’t of Human Servs., 101 Ark.App. 417, 278 S.W.3d 609 (2008). We give due regard to the trial court’s opportunity to judge the credibility of the witnesses. Id.
Our review of the record reflects that appellant was never more than in partial compliance with the case plan. As of the final permanency planning hearing, appellant had completed drug treatment, but she continued to use drugs. Although appellant maintained negative screenings afterward, at the time of the termination hearing, she still had not |9complied with the court’s directive that she live independently and obtain employment. In those respects, the court stressed the vital importance of compliance with those conditions as a necessary demonstration of stability and as proof that she had truly mended her ways. We perceive no error in the trial court ordering appellant to live on her own toward the end of the case. Appellant had ample opportunity, six months, to achieve that goal before the termination hearing took place. We also cannot find error in the trial court taking note of appellant’s history. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. In re Adoption of K.M.C., 62 Ark. App. 95, 969 S.W.2d 197 (1998). On the whole, we are not left with a definite and firm conviction that a mistake was made. Accordingly, we affirm the order terminating appellant’s parental rights.
Affirmed.
PITTMAN and BAKER, JJ., agree. | [
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ROBERT J. GLADWIN, Judge.
| T Deborah Landers appeals the order filed in Pulaski County Circuit Court on July 14, 2009, that affirmed the Arkansas State Board of Education’s (Board’s) decision to deny her waiver request for a certified teacher’s license. She contends that once her felony-theft conviction was expunged, her conviction could not be used by the Board to deny licensure. We disagree and affirm the circuit court’s order.
In 2006, Landers applied for teacher licensure from the Board, but the Board denied her application pursuant to Arkansas Code Annotated section 6-17-410(c) (Repl.2007), which provides that a license shall not be issued to any individual who has pled guilty or nolo contendere to or has been found guilty of any one of thirty-three enumerated disqualifying criminal offenses, one being theft of property. Landers pled nolo contendere to theft of property, a Class B felony, on August 25, 2005, in Faulkner County Circuit Court in | ^connection with the misappropriation of approximately $36,000 from the Faulkner County Conservation District. She was sentenced to sixty months’ probation and ordered to pay $36,808.22 in restitution.
On February 12, 2007, Landers requested a waiver from the Board pursuant to Arkansas Code Annotated section 6-17-410(f), which allows a waiver at the request of the applicant upon consideration of certain factors, including the age at which the crime or incident was committed; the circumstances surrounding the crime or incident; the length of time since the crime or incident; subsequent work history; employment references; character references; and other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel. The Board denied her request.
On June 21, 2007, Landers’s conviction was expunged pursuant to Arkansas Code Annotated sections 16-93-1207 (Supp. 2007) and 16-90-905 (Repl.2006). On May 12, 2008, she again appeared before the Board seeking a waiver, this time relying on the language in Arkansas Code Annotated section 16-90-902(b) (Repl.2006), claiming that because her theft-of-property conviction had been expunged, it could not be considered by the Board to deny licen-sure. The Board disagreed and again denied her request for a waiver. The Board’s order was filed on June 27, 2008, and Landers filed a petition for judicial review in Pulaski County Circuit Court. The circuit court affirmed the Board’s decision by order filed July 15, 2009. From that order, this appeal followed.
Judicial review of a decision by the Board is governed by the Administrative Procedure [-¡Act, codified at Arkansas Code Annotated sections 25-15-201 to -304 (Repl.2002 and Supp.2009). The appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Collie v. Ark. State Med. Bd., 370 Ark. 180, 258 S.W.3d 367 (2007); Batiste v. Ark. Dep’t of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005). Our review of administrative decisions is limited in scope. Williams v. Ark. State Bd. of Physical Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Pine Bluff for Safe Disposal v. Ark. Pollution Control & Ecol. Comm’n, 354 Ark. 563, 127 S.W.3d 509 (2003).
Landers maintains that before us is an issue of statutory construction, which this court reviews de novo, as it is for this court to decide what a statute means, and the court is not bound by the circuit court’s determination in that regard. Johnson v. Bonds Fertilizer, Inc., 365 Ark. 133, 226 S.W.3d 753 (2006). Strict construction requires that nothing be taken as intended that is not clearly expressed, and its doctrine is to use the plain meaning of the language employed. Am. Standard Travelers Indem. Co. v. Post, 78 Ark.App. 79, 77 S.W.3d 554 (2002). The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Teasley v. Hermann Companies, Inc., 92 Ark.App. 40, 211 S.W.3d 40 (2005). Statutes are to be construed such that no word is |4left void, superfluous, or insignificant. Estate of Slaughter v. City of Hampton, 102 Ark.App. 373, 285 S.W.3d 669 (2008). When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005).
Arkansas Code Annotated section 16-90-902(b) provides that, upon the entry of the uniform order to seal records of an individual, the individual’s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist. Landers claims that the decision of the Board to consider a properly expunged conviction is in direct violation of this statute. She contends that by the plain language of this statute, the conviction should not have been allowed to be used as a disqualifying offense under Arkansas Code Annotated section 6-17-410, which provides in pertinent part as follows:
(c) The state board shall not issue a first-time license nor renew an existing license and shall revoke any existing license not up for renewal of any person who has a true report in the Child Maltreatment Central Registry or has pled guilty or nolo contendere to or has been found guilty of any of the following offenses by any court in the State of Arkansas or of any similar offense by a court in another state or of any similar offense by a federal court: ...
(29) Felony theft as prohibited in §§ 5-36-103 — 5-36-106 and 5-36-202;
(d)(1) For the purposes of this subsection (d):
(A) “Cause” means any of the following: ...
(v) Having an expunged or a pardoned conviction for any sexual or physical abuse offense committed against a child or any offense in subsection (c) of this section.
| B Ark. Code Ann. § 6-17-410(c), (d)(l)(A)(v).
Landers argues that subsection (d)(l)(A)(v) above mentions a specific expunged conviction that can be used as a disqualifying offense — -an expunged conviction for any sexual or physical abuse committed against a child. She contends that because theft-of-property is not listed specifically here, that an expunged conviction for theft-of-property cannot be considered by the Board in her application for licen-sure.
She points out that the Board argued below that subsection (d)(l)(A)(v) included an expunged conviction for any of the enumerated offenses in subsection (e)— “[hjaving an expunged or a pardoned conviction for any sexual or physical abuse offense committed against a child or any offense in subsection (c) of this section.” Ark.Code Ann. § 6-17-410(d)(l)(A)(v). She contends that this issue has not been addressed by an appellate court and requires clarification. She argues that the language mentions an expunged conviction for two specific offenses — sexual or physical abuse offenses committed against a child — but does not clearly state “an expunged conviction” for any of the enumerated offenses.
Landers claims that the expunged convictions of sexual or physical abuse against a child may be used against someone applying for a teacher’s license, but those are the only expunged convictions that may be considered. The second part of subsection (d)(l)(A)(v) states “any offense in subsection (c) of this section.” Landers contends that, because her conviction for theft-of-property has been expunged, she has no longer committed any offense in subsection (c). She cites Jones v. Huckabee, 369 Ark. 42, 250 S.W.3d 241 (2007), for the proposition that Isthe only time section 16-90-902 does not allow the “clean slate” effect is when “specifically provided by law.” Id. at 46-47, 250 S.W.3d at 245.
Landers argues that section 6-17-410 differentiates between a conviction and an expunged or pardoned conviction on certain offenses, but not all. As this court does not look into the intent of the legislature on a provision when it is clear from the language of the statute what is meant, Landers asserts that the findings and conclusions of the lower court and the Board must be reversed. She contends that this statute, by its wording, conveys that some convictions are serious enough to warrant denial or revocation even with an expungement or pardon. Had the legislature meant an expunged offense for any of the items included in subsection 410(c), the language would state such, and not include an exception for two offenses and not the remaining thirty two.
Landers cites three Attorney General opinions relied upon by the Board, and she claims that all are inapplicable. See Op. Ark. Att’y Gen. No. 57 (2003); Op. Ark. Att’y Gen. No. 141 (2002); Op. Ark. Att’y Gen. No. 237 (1999). Landers contends that Op. Ark. Att’y Gen. No. 237 (1999) is inapplicable to the issue before this court because the question presented was whether the potential employee, who was currently serving a probationary sentence, would be allowed to conceal his conviction, which was not yet sealed under the applicable petition to seal and other statutory requirements. She argues that the other two opinions relate back to the 1999 opinion. She points out that the 1999 opinion does not take into account the effect of a valid order to seal being entered after the sentence is fully served. She |7claims that even though Op. Ark. Att’y Gen. No. 141 (2002) states that the Attorney General would reach the same conclusion if the person had a successful expungement; this conclusion is in direet contradiction to Arkansas Code Annotated section 16-90-902. She maintains that the Board’s reliance on an improper interpretation of the law is still an improper result.
The Board argues that it properly considered Landers’s expunged felony conviction to deny licensure. The Board claims that Landers’s insistence that she should have been treated by the Board as if the conviction never occurred is based on a misinterpretation of both Arkansas Code Annotated section 16-90-902, and Arkansas Code Annotated section 6-17-410.
Under section 16-90-902(a), an expunged record will not affect a person’s civil rights or liberties “unless otherwise specifically provided by law.” Pursuant to Jones, supra, an expunged criminal record can affect an individual’s civil rights or liberties if specifically provided by law. Section 6-17-410 is one such example. In subsection 410(c), licensure is not given to those who have pled guilty or nolo conten-dere to or have been found guilty of any one of thirty-three listed disqualifying offenses. By referencing both those who have pled guilty or nolo contendere in addition to those who have been found guilty, the General Assembly intended to include those whose records have been expunged as those ineligible for licensure due to criminal conduct. Had it simply prohibited individuals who had been convicted or found guilty of a disqualifying offense from receiving a teaching license, then section 16-90-902 would apply. However, the Board maintains, and we agree, that, when | ¡^construing section 6-17-410(e) just as it reads and giving meaning and effect to every word within the statute, it is clear that the General Assembly intended for all who have pled guilty or nolo contendere to a disqualifying offense to be prohibited from receiving a teaching license, regardless of whether the individual’s record has since been expunged.
Further, section 6 — 17—410(d)(l)(A)(v) defines various causes for which the Board may revoke or suspend an individual’s teaching license or place one’s teaching license on probation and specifically states one such cause as “[h]aving an expunged or a pardoned conviction for any sexual or physical abuse offense committed against a child or any offense in subsection (c) of this section.” Landers’s interpretation— that “expunged or pardoned conviction” only applies to “sexual or physical abuse offenses committed against a child” and not to “any offense in subsection (c)” — is an incomplete interpretation. The Board maintains that the phrase “expunged or pardoned conviction” relates to both “any sexual or physical abuse offense committed against a child,” and “any offense in subsection (c).” To interpret it as Landers insists would be to define cause as having “an expunged or pardoned conviction for any sexual or physical abuse offense committed against a child or having a conviction for any offense in subsection(c).” (Emphasis added.) Given the plain meaning of the statutory language, we find no abuse of discretion in the Board’s decision.
Finally, the Board contends that its decision to deny Landers’s application for licensure and request for a waiver is supported by substantial evidence. Landers requested a waiver from the Board pursuant to Arkansas Code Annotated section 6-17-410(f), which allows a 19waiver at the request of the applicant upon consideration of certain factors, including the age at which the crime or incident was committed; the circumstances surrounding the crime or incident; the length of time since the crime or incident; subsequent work history; employment references; character references; and other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel. The Board maintains that it considered all the evidence presented and expressed concern over Lander’s character due to her criminal conduct and lack of remorse. Further, the Board noted a lack of support from Landers’s employer, the superintendent of the Vilonia School District, and recognized that her proposed area of licensure, prekindergarten through grade four, is not a high-need area of certification. Based on the evidence presented, the Board’s, denial of Landers’s request for a waiver is supported by substantial evidence.
Affirmed.
KINARD and GLOVER, JJ., agree. | [
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M. MICHAEL KINARD, Judge.
| Jn this condemnation case, the Arkansas State Highway Commission (the Commission) appeals the circuit court’s order awarding appellee James R. Lewis III, Trustee of the Agreement for the Benefit of James R. Lewis III, a total of $190,000 plus interest for two tracts of real property. On appeal, the Commission argues that (1) the court abused its discretion by admitting a sale from Louise Wilson to Joe Drace into evidence as a comparable sale and (2) without that evidence, the jury’s verdict is not supported by substantial evidence. We affirm.
The two properties at issue lie along a highway in Crittenden County and Poin-sett County. On February 12, 2004, the Commission filed a declaration of taking in Crittenden County Circuit Court condemning real property referred to as Tract 16, Job |j.No- 110434, which consisted of 0.40 acres. The Commission estimated the amount of just compensation for the property at $17,025. On May 14, 2004, the Commission filed a complaint and declaration of taking in Poinsett County Circuit Court seeking to condemn 0.66 acres of land, Tract 6, for use in Job No. 100547 at the Highway 135 Interchange. The Commission estimated that $1200 was just compensation for the property. These two takings by the Commission were for the purpose of constructing a eontrolled-access facility.
Appellee disputed the Commission’s estimate of the just compensation for the properties. The two cases were consolidated in Poinsett County Circuit Court, and a jury trial was held to determine the value of the property taken. Eric Scruggs, a real-estate appraiser for the Arkansas State Highway and Transportation Department, testified regarding his appraisal reports on the properties at issue. Scruggs testified that his appraiser’s license, which he was not required by the highway department to have, was on inactive status due to the cost of keeping the license active. Without a current appraisal license, Scruggs agreed that he would not be able to perform an appraisal on a farm that was worth over $300,000, nor would he be able to perform an appraisal for |3anyone in the state other than the Arkansas State Highway and Transportation Department. Scruggs stated that he lived in Saline County and had never owned property in Crittenden County or Poinsett County.
. Scruggs appraised Tract 6 in 2004 and Tract 16 in 2008. Scruggs used the comparable-sales method to arrive at his opinion of value; he testified that factors he considers in determining comparables include location, size, highest and best use, access, frontage, and the time of the sale. According to Scruggs, access is more important than frontage when it comes to farmland. In his opinion, the highest and best use of the property in question was for agriculture. Although he acknowledged that all three tracts owned by appel-lee were used as part of one farming operation, he stated that he appraised the property in question without any consideration to the location of the farm headquarters. He did not consider the seventy acres located on the east side of the highway at all, and he made no adjustments for access to the farm headquarters. However, he did not dispute that before the taking and implementation of the highway department’s plans appellee had access to the highway and afterward it was a controlled-access highway. Scruggs stated that the comparables he used ranged from $1026 to $1800 per acre, and the more development as a farming unit — e.g., irrigation, precision leveling — the higher the value. The sale that Scruggs relied on most was a sale on Highway 77 for $1800 per acre. He testified that the property in question was completely unaffected by the taking of all access to it from Highway 63. That is, the |4value of both tracts of real property was $1800 per acre both before and after the condemnation. Tract 16 was part of an 83.99-acre tract; the 0.40 acres taken included a well that had a replacement cost of $16,300. According to Scruggs, the value of the tract was $151,200 before the taking and $150,450 after the taking, for a total of $17,050 when the well is taken into account. Scruggs testified that Tract 6 was part of a 137.66-acre tract, making its value $247,800 before the taking and $246,600 after the taking; the difference between the before and after value was $1200.
Glenn Eaton, a certified general appraiser with an active license, testified that his relevant experience included five years working for the Federal Land Bank, during which time he was trained and licensed to do farm and agricultural appraisals; managing and appraising Equitable AgriBusiness’s farm properties; farming; and buying and selling land, including farm land, in Poinsett, Crittenden, and Cross Counties for the last twenty-five years. Eaton stated that he was familiar with the market values of real estate in Poinsett County and northern Crittenden County, and in fact restricted his appraisal business to properties in eastern Arkansas because he did not like to appraise properties in areas with which he was not familiar.
Eaton testified that he appraised the property in question in this case and determined that its value before the taking was $1800 per acre and after the taking was $1100. He calculated that the diminution of value for all tracts was $190,000. Eaton testified that he properly considered the seventy-two acres on the east side of the !shighway, which Scruggs did not consider, because it had the same owner and was contiguous to the other tracts. After the taking and the implementation of a controlled-access highway, travel time between the three tracts increased substantially — from around two minutes to over an hour to get from Tract A to Tract C. Eaton testified that this increase would substantially impact the value and ease of management.
Eaton used the comparable-sales approach, including four comparable sales from the same sales brochure that the highway department used, and the income approach to arrive at his opinion of value. The sales Eaton used ranged from approximately $1050 per acre to $2400 per acre. The first comparable sale was twenty-two acres that sold for $1781 an acre; its highest and best use was agricultural, and it was located on Highway 77. Eaton did not put much weight on the second sale, which he adjusted down by $2000 an acre (from $4400) because of what he considered to be commercial development along the access road on the property. The third sale consisted of seventy acres of agricultural land that sold for $1800 an acre in 2001. Eaton testified that he believed this was the best indicator of value of the property in question prior to the government taking. The fourth sale was 9.7 acres that sold for $1855 per acre and was predominantly agricultural in use. Based on these four sales, Eaton determined that the value of appellee’s 280 acres, at $1800 per acre, was $504,000 before the taking.
| fiWhen Eaton was asked about a fifth sale that was included in his appraisal report, the Commission objected on the basis that the sale was not an arm’s length transaction. The court allowed appellee’s attorney to attempt to lay a foundation. In the fifth sale, Joe Drace, the long-time lessor of appellee’s land, purchased property from Louise Wilson in April 2005. Eaton testified that in his investigation he spoke to Drace and learned that there were no written contractual obligations between the buyer and seller, it was not a forced sale, and the property was not in foreclosure. Eaton stated that there was nothing to indicate that Drace got a better deal than anybody else would have gotten on the property. The Commission was then permitted to voir dire the witness. The voir dire examination established that before Ms. Wilson’s death, Drace informed her that he would like to have the first opportunity to buy her property if she ever wanted to sell it. After Ms. Wilson’s death, her family approached Drace and offered to sell it to him for $1100 an acre, which he accepted. To Eaton’s knowledge, the property was not placed on the open market for anyone to bid on. In Eaton’s opinion, this was an arm’s length transaction and represented the fair market value because “[i]t only takes a buyer and a seller to make a fair market.” Before Drace bought the property, he precision leveled it and “probably” put a well in, improvements for which he was not paid. Eaton stated that it is not uncommon for long-term tenants who have farmed land for twenty or thirty years to do those kinds of improvements for their landlords. The court 17overruled the Commission’s objection, holding that it was for the jury to decide whether this was an arm’s length transaction.
Eaton testified that this sale to Drace was indicative of the value of the property after the taking and reflected the lack of access. This was the only sale that he found in the area after the access to the highway was severed and the highway became controlled access. Eaton testified that the value he put on the property after the taking was $294,560 and the diminution of value indicated by the comparable-sales approach was $209,440. However, he also considered the income approach, for which he surveyed farmers and tenants regarding the rent in the area. Eaton explained to the jury his process of using an average rent of $100 per acre for a 280-acre tract with no impediment on access compared to $75 per acre for three different tracts — 72, 84, and 124 acres — that were not contiguous and required travel of eight to seventeen miles to get to them. Using the income approach, Eaton stated that the diminution of value was $166,667. Eaton stated that he gave more weight to the market approach, and his opinion of the overall diminution of value using both approaches is $190,000. On cross, it was brought out that the rent on appellee’s property (25% of crop) was the same as it had been for the past thirty years.
Also testifying were James Lewis and Joe Drace. Appellee Lewis agreed with his appraiser’s assessment valuing the two tracts at $190,000. After appellee’s testimony, he rested and the Commission moved for a directed verdict and asked that all evidence of 18the taken land’s value of $190,000 be stricken. The circuit court denied the motion. The Commission called Joe Drace, who testified that he had leased appellee’s land in exchange for one quarter of the crop since 1971. He still produced the same amount of crops, but doing so was a lot more difficult since the highway had been changed to controlled access. The terms of the lease had not changed, although Drace testified that he had thought about asking appellee for a change. As to his purchase of Ms. Wilson’s land, Drace testified that her daughter stated that she wanted $240,000 for the property, which was approximately $1100 per acre, and he had agreed to that price. He had no idea how she had arrived at that number.
The jury awarded $133,000 for Tract 6 and $57,000 for Tract 16, for a total judgment of $190,000. The Commis sion appeals, arguing that the Louise Wilson to Joe Drace sale was not an arm’s length transaction and that the court abused its discretion in allowing evidence of that sale.
Our supreme court has written:
A landowner who has his land condemned is entitled to just compensation. However, this does not mean that a landowner is entitled to be unjustly enriched at the expense of the public purse. [ ... ] In Young [v. Arkansas State Highway Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967) ], we wrote that “the difference between the market value of the whole tract before the taking, and the market value of that part which remains after the taking, less any enhancement peculiar to the lands” has long been the measure of damages in partial-taking cases.
Arkansas State Highway Comm’n v. Barker, 326 Ark. 403, 405, 931 S.W.2d 138, 140 (1996) (citations omitted). The question of whether the conditions surrounding 19another tract of land or its sale are sufficiently similar to the circumstances of the pending case and the land involved to admit evidence of its sale price as evidence of the value of the land in question rests largely in the discretion of the trial court; the ruling of the trial court on the question should be disturbed only for abuse of that discretion. Arkansas State Highway Comm’n v. N.W.A Realty Corp., 262 Ark. 440, 444-45, 557 S.W.2d 620, 622 (1977). The parties in this case do not dispute the measure of just compensation. The issue is whether the circuit court abused its discretion in allowing Eaton to testify regarding the sale from Ms. Wilson’s family to Joe Drace. This transaction was the basis of his determination of the fair-market value of appellee’s property after the taking under the comparable-sales approach. However, we note that there was other evidence supporting the $1100-per-acre value. The Commission’s own expert testified that the comparable sales he used in his appraisal began at $1026, which is right in line with the “after” figure arrived at by the jury. There was testimony from Eaton that the three tracts owned by ap-pellee should be considered a unit, and because of the severance of the unit the value of the land was impacted negatively.
Before concluding that the Wilson-Drace sale was not an arm’s length transaction, the Commission points to the following facts: Drace requested of Ms. Wilson before she died that he get the first opportunity to buy the property; after her death, her family offered to sell it to him for $1100 an acre; Drace had made certain improvements to the property without charge; and the fact that neither Eaton nor Drace had any knowledge |inof the property being “put on the market.” The Commission seems to argue that because the Wilson land was not “put on the market” — in the sense of being advertised for sale and offers from the general public being solicited — and the Wilson family possibly felt some sense of obligation to sell the land to Drace, the sale was not an arm’s length transaction. However, as Eaton and Drace testified, there was no evidence that the family was obligated to sell the property to Drace, and the family (the sellers) set the price. We have not found, nor does appellant cite, any authority for the proposition that the Wilson-Drace sale was not an arm’s length transaction as a matter of law. Therefore, the weight to be given Eaton’s testimony, considering his rebanee on the Wilson-Drace sale, was for the jury. Arkansas State Highway Comm’n v. Highfill, 250 Ark. 291, 293, 464 S.W.2d 784, 785 (1971) (“On the basis of disclosures made with reference to the respective tracts we are unable to say that they are not comparable as a matter of law. Consequently, the weight to be given Yarborough’s testimony was for the jury.”).
Affirmed.
VAUGHT, C.J., and GRUBER, J., agree.
. "A controlled-access facility may be broadly described as a superhighway which motorists can enter and leave only at designated interchanges, usually some miles apart.” Arkansas State Highway Comm’n v. Union Planters Nat'l Bank, 231 Ark. 907, 908, 333 S.W.2d 904, 906 (1960). See also Ark. Code Ann. §§ 27-68-102, 27-68-105(c).
. Actually, the higher-end sale was $4400 per acre, but Eaton deducted $2000 an acre because that property was located on an access road. | [
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RITA W. GRUBER, Judge.
| TThis quiet-title case involves competing claims to a narrow strip of land along the northeast bank of the Spring River at Hardy. The river is navigable and runs northwest to southeast. A common grant- or once held the land on both sides of the river; in 1931, it conveyed some land to L.L. Ward and Frances Ward, which was “[b]ounded on the east by the North and East Bank of Spring River....” The successors of the common grantor conveyed a tract on the other side of the river to Bridge North, Inc., which included a direction “to the Northerly Bank of Spring River; then run along said River Bank as follows: ... to the Southerly right-of-way line of Burlington-Northern Railroad; then leaving said river bank....” The common line, therefore, was the northeast bank of the Spring River.
Ijn 1956, L.L. Ward, Jr., acquired his parents’ property and recorded a plat of Rio Vista subdivision as drawn by W.D. Cobb. This plat indicated that the river and its islands were contained within Ward’s property. It also reflected a handwritten notation on a line drawn near the northeast bank of the river, which stated: “Top Bank of River Property Line of L.L. Ward, Jr.” Appellant Rio Vista, Inc., acquired Ward’s land from a successor, James Bobo, in 1975. The legal description in its warranty deed referred to the recorded plat. Bobo gave appellant a quitclaim deed in 1980, which stated “per plat of W.D. Cobb....”
In 1991, Bridge North subdivided its land on the other side of the river as Rio Vista III Addition. The platted lots reflected distances and pins set near, but not precisely on, the river bank. The plat included the legal description running to the northerly bank of the river, and then along the river bank. The bill of assurance provided that Lots 1-29 were “riverfront lots.” In two conveyances, appellees Jim Miles and Patricia Miles bought Lots 1, 2, 3, 4, and 5, Block 3, of Rio Vista III, in 2004 and 2005. Their deeds referred to the recorded plat. In July 2006, they filed this action against Rio Vista to quiet title to their lots, alleging that it had painted trees on their property along the river bank with purple paint. Appellees asserted that they are riparian owners of the land along the navigable river and that their southern property line is its ordinary high-water mark. Rio Vista counterclaimed for quiet title to the bed and banks of the river, and also asserted adverse possession and payment of taxes.
| :¾At trial, Jim Miles; Jane Clark, who owns a lot in Rio Vista III; and Jim Sitz, a surveyor, testified for appellees. Appellant presented the testimony of Hugh Monteith, James Harwood, and Neale Payne, who own property in Rio Vista; Kenneth Murphee, who owned property there from 1983 to 1995; and Ben Kittler, a surveyor. In the decree quieting title to appellees, the trial court noted that neither party could own the area below the ordinary high-water mark of the river because it is navigable. Using the definition of “ordinary high-water mark” set forth in St. Louis, Iron Mountain and Southern Railway Company v. Ramsey, 53 Ark. 314, 13 S.W. 931 (1890), the court ruled that Rio Vista did not own any property on the northeast bank of the river where it flows by appellees’ lots. Regarding appellant’s counterclaim, the court stated that the 1980 deed from Bobo, which interpreted the description in Ward’s deed to mean the “top of bank,” did not establish color of title to the disputed property. It also found that appellant failed to establish adverse possession. The court quieted title in appellant to its property on the “south bank of Spring River” within Block 10 above the ordinary high-water mark. Appellant then brought this appeal.
We traditionally review quiet title and boundary line actions de novo. Price v. Rylwell, LLC, 95 Ark.App. 228, 235 S.W.3d 908 (2006); Boyette v. Vogelpohl, 92 Ark.App. 436, 214 S.W.3d 874 (2005). We will not, however, reverse findings of fact unless they are clearly erroneous. Id. Further, whether possession is adverse to the true owner is a question of fact. White River Levee Dist. v. Reidhar, 76 Ark.App. 225, 61 S.W.3d 235 (2001). We will not reverse a trial court’s finding regarding adverse possession unless it is clearly erroneous. Id.
Appellant challenges the trial court’s finding that appellees’ riparian property line was the ordinary high-water mark of the river, and argues that the trial court disregarded the deeds of conveyance in appellees’ chain of title. For example, appellees’ 2004 deed transferred the lots “per recorded plat.” . Appellant asserts that the measurements and corner stakes shown on that plat indicated that appel-lees’ lots fell short of the river, and that the trial court ignored an established principle of surveying, that a deed’s references to a plat will give a true description. It also argues that the trial court erroneously reformed the deeds in appellees’ chain of title, even though appellees did not seek that relief and did not include their predecessors in title, who were necessary parties. We disagree with all of these contentions.
The only parties with an interest in this proceeding were before the court. The trial court did not reform appellees’ deeds, or those of their predecessors in title; it simply interpreted them. When interpreting a deed, the court gives pri mary consideration to the intent of the grantor. Winningham v. Harris, 64 Ark.App. 239, 981 S.W.2d 540 (1998). When the court is called upon to construe a deed, it will examine the deed from its four corners for the purpose of ascertaining that intent from the language employed. Id. As explained below, the trial court’s interpretation of the deeds involved in this case was correct.
| ¡Appellant argues that its eastern boundary was “the top of the bank,” as noted on Cobb’s plat, and that the trial court erred in finding that its deed from Bobo did not convey title to the land between the high-water mark of the river and the top of the northeast bank. We disagree. The experts testified that the handwritten notation was an interpretation of the boundary line, not a description of the property conveyed. Jim Sitz testified that none of the deeds in evidence supported appellant’s claim to the land between the high-water mark and the top of the northeast bank of the river. He said that the bank of the river is customarily the high-water mark and that he had never located a boundary as the top of the bank. There is no dispute that Newell platted the boundaries of Lots 1-5 as short of the high-water mark. Sitz, however, testified that the pins did not define appel-lees’ southern boundary, because he believed that they were offset and reflected a meander line, due to the difficulty of setting pins at the river’s edge. He opined that the high-water mark of the river constituted the actual southern boundary of appellees’ lots.
Additionally, even if the notation on Cobb’s plat was meant to describe what was conveyed, appellant’s grantor could not have conveyed the strip of land between the river bed and the top of the northeast bank if he did not already own that land. Parker v. Bowlan, 242 Ark. 192, 412 S.W.2d 597 (1967). In appellant’s chain of title, there is no conveyance beyond the northeast bank of the river; its claim is derived solely from Cobb’s notation on his plat, which contains no legal description. In fact, appellant’s expert, Kittler, testified that | fiCobb’s notation was an interpretation and that there was no deed in the chain of title to support it. He acknowledged that Cobb could not expand Ward’s land, if described in a deed as bounded by the north and east bank of the river, by drawing a plat. In reaching its decision, the trial court decided what property appellees’ and appellant’s grantors actually owned, and decided that appellees’, not appellant’s, predecessors had title to the land along the northeast bank; in doing so, it interpreted the deeds in keeping with long-established rules of property law.
The rights of the riparian landowner have been fixed as a rule of property for many years. The state holds in trust for the public those lands in the bed of all navigable waters below the ordinary high-water mark. Hayes v. State, 254 Ark. 680, 496 S.W.2d 872 (1973). The riparian owner holds all of the property rights above that line. Id. In St. Louis, I.M. & S. Railway Co., 53 Ark. at 322, 13 S.W. at 933, the supreme court set forth the acknowledged test for determining the location of the “ordinary high-water mark”:
In Howard v. Ingersoll, 13 How. 381 [14 L.Ed. 189], Mr. Justice Curtis gave a satisfactory definition of the bank and bed of a river. He says: “The banks of a river are those elevations of land which confine the waters, when they rise out of the bed; and the bed is that soil so usually covered by water as to be distinguishable from the banks by the character of the soil or vegetation, or both, produced by the common presence and action of flowing water. But neither the line of ordinary high-water mark, nor of ordinary low-water mark, nor of a middle state of water, can be assumed as the line dividing the bed from the banks. This line is to be found by examining the bed and banks, and ascertaining where the presence and action of water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself. Whether this line between the bed and the banks |7will be found above or below, or at a middle stage of water, must depend upon the character of the stream.... But in all cases the bed of a river is a natural object, and is to be sought for, not merely by the application of any abstract rules, but as other natural objects are sought for and found, by the distinctive appearances they present; the banks being fast land on which vegetation, appropriate to such lands in the particular locality, grows, wherever the bank is not too steep to permit such growth, and the bed being soil of a different character and having no vegetation, or only such as exists when commonly submerged in water.”
That appellees’ deeds referred to Newell’s plat did not limit their lots to a line short of the river bank. The plat contained the same language referring to the river bank as did the deed to Bridge North, which platted the property. The river was the natural monument, and it controlled, as Sitz testified. Arkansas law is clear that in deeds, quantity yields to course and distance, and course and distance to artificial and natural objects. Wyatt v. Arkansas Game & Fish Comm’n, 360 Ark. 507, 202 S.W.3d 513 (2005).
Appellant also contends that the trial court erred in rejecting its claim of adverse possession. To prove the common-law elements of adverse possession, a claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. White River Levee Dist. v. Reidhar, supra. It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Id. The statutory requirements for adverse possession were amended in 1995, requiring the party seeking adverse possession to show color of title and the payment |sof taxes to the land in dispute, or to contiguous land, in addition to all of the elements necessary under existing adverse possession. See Ark.Code Ann. § 18-11-106 (Supp.2009). Because appellant’s land was separated from appellees’ by the river, which belongs to the state, the parcels were not contiguous. See Patrick v. McSperitt, 64 Ark.App. 310, 983 S.W.2d 455 (1998). In Schrader v. Schrader, 81 Ark.App. 343, 101 S.W.3d 873 (2003), we held that, if the claimant’s action accrued before 1995, the effective year of the amendment, the requirement of payment of taxes was not necessary.
Appellant first argues that it established adverse possession because it paid taxes on Block 10 (not just a portion of it) from 1976 through 1984. When one cannot show a perfect title to unimproved and unenclosed land, he may establish a prima facie title by showing that he has color of title and that he has paid taxes on the property for seven consecutive years. Ark.Code Ann. § 18-11-102 (Repl.2003). The possession contemplated by this stat ute has the same effect as if the person paying the taxes had been in actual, adverse possession of the land for the full seven-year period. Appollos v. Int’l Paper Co., 34 Ark.App. 205, 808 S.W.2d 786 (1991). Appellant’s payment of taxes, however, was irrelevant because the trial court correctly ruled that appellant did not have color of title to the land in dispute. As the experts testified, the deeds in appellant’s chain of title did not purport to pass title to this strip of land. See Weast v. Hereinafter Described Lands, 33 Ark.App. 157, 803 S.W.2d 565 (1991).
| ^Appellant further argues that it established the common-law elements of adverse possession through the testimony of Monteith, Payne, Murphee, and especially Harwood, who said that he had posted the property as private and observed such posting by others from the early 1960s until 2005. Harwood, who is fifty-four, testified that he had posted the top of the bank every three or four years since he was thirteen, and that he blazed the trees in 2005. Monteith stated that “no trespassing” signs were posted about four times in the past thirty years; that none were posted in the 1990s; and that, within the past ten years, the lines were blazed only once, in 2005. Payne had no knowledge of such posting in the 1980s, and admitted that some of the Rio Vista III owners had built walkways down to boat docks on the river. Murphee could not recall the trees being painted after 1989.
Appellant presented no evidence that anyone on its behalf had cleared or maintained any of the disputed strip, or had otherwise communicated its claim to any of the Rio Vista III property owners. Jim Miles testified that he saw no evidence of any adverse claim before he bought his property, and that if he had, he would not have bought it. Jane Clark, who bought her lot in 2002, also said that she saw no evidence of an adverse claim. Although appellant did take some actions to demonstrate its claim to the property, the trial court did not consider them to be sufficiently visible, notorious, or distinct to vest title. Actual adverse possession is not proven by acts that are merely fitful. See Broadhead v. McEntire, 19 Ark.App. 259, 720 S.W.2d 313 (1986). In view of the deference we give to the trial court’s findings of fact, we also affirm on this point.
Affirmed.
VAUGHT, C.J., and KINARD, J., agree. | [
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JOHN B. ROBBINS, Judge.
[, The Fulton County Circuit Court terminated appellant Jennifer Emmert’s parental rights to her children A.N., J.N., Ke.E., and S.E., ages 8, 7, 6, and 5, respectively, on May 21, 2009. On June 9, 2009, the trial court terminated Mrs. Emmert’s parental rights to her six-month-old son, Ka.E. Mrs. Emmert has timely appealed from both termination orders.
Mrs. Emmert’s appellate counsel has filed a motion to withdraw and a no-merit brief pursuant to Linker-Flores v. Arkansas Dep’t of Human Sens., 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6 — 9(i) (2009). The brief explains why the termination decisions and the only other adverse ruling at the termination hearing cannot support a meritorious appeal. The clerk of this court mailed a copy of counsel’s motion and brief to Mrs. Emmert, informing her of her right to file pro se points for reversal. 12Mrs. Emmert has filed no pro se points. Be cause we agree that the appeal is wholly without merit, we affirm the termination orders and grant appellant’s counsel’s motion to withdraw.
This case originated on July 19, 2004, when appellee Arkansas Department of Human Services (DHS) took an emergency hold of S.E. due to medical neglect. The trial court subsequently entered an order of emergency custody placing S.E. with DHS, and on September 14, 2004, S.E. was found by the trial court to be dependent/neglected. Several months later, Mrs. Emmert and her husband, Gary Em-mert, regained custody of S.E. pursuant to an order of the trial court. The DHS case remained open, with orders that the Em-merts cooperate with DHS and comply with the case plan. Mr. Emmert is the father of appellant’s three youngest children, and while his parental rights were also ultimately terminated, he is not a party to this appeal.
On May 18, 2005, the trial court entered a review order finding that neither parent had substantially complied with the case plan. Throughout the next year, only partial compliance was obtained and the trial court entered progressively detailed orders, which included directions to maintain stable housing and employment. On April 26, 2006, the trial court entered an order of emergency custody removing A.N., J.N., Ke.E., and S.E. from Mrs. Emmert’s custody and placing the children with DHS. Emergency custody was awarded based on information that Mrs. Emmert had reported depression, frequent crying, and hearing voices that she could not quiet telling her, “can’t you make these kids shut up.” On May 16, 2006, the trial court entered an order adjudicating A.N., J.N., and Ke.E. | sdependent/neglected. In the adjudication order, the trial court found that neither parent had shown any willingness to be employed and provide income for the family, that the home environment had been unstable with the family moving from place to place, that Mrs. Emmert hears voices raising concerns that she might harm the children, and that the parents do not seem to be able to understand what is required of them to meet their children’s basic needs.
On December 1, 2006, the trial court permitted Mrs. Emmert to have visits with S.E. at her home at the discretion of DHS, with frequent DHS monitoring. Subsequent orders were entered wherein the trial court found that Mrs. Emmert was in noncompliance with the case plan and that the condition of the home was life-threatening to the children, citing examples such as knives and medications being left within reach of the children. The children remained in DHS custody, and on January 13, 2009, just seven weeks after Ka.E. was born, the trial court entered an order placing Ka.E. in emergency DHS custody. Emergency custody was premised on credible allegations that Mr. Emmert had sexually abused Mrs. Emmert’s five-year-old half-sister, and that Mrs. Emmert knew about the allegations but took no steps to protect her infant child. Ka.E. was adjudicated dependent/neglected on February 23, 2009.
On February 25, 2009, DHS filed a petition for termination of Mrs. Emmert’s rights to all five of her children. After a hearing held on March 20, 2009, the trial court issued its orders terminating Mrs. Emmert’s parental rights.
|4Adoption specialist Amanda Clark testified at the termination hearing. Ms. Clark gave the opinion that all five children are adoptable, and that thirteen families had been identified as candidates willing to adopt them. Mrs. Clark stated that there was a strong likelihood of successful placement.
Heather Robertson is a manager at a Bullseye store where Mrs. Emmert was briefly employed. Ms. Robertson indicated that Mrs. Emmert’s employment was terminated because she was caught stealing cigarettes from the store. Ms. Robertson further testified that Mrs. Emmert would cash a child-support check at the store every week, even when the children were not in her custody, and that the money was used for things such as liquor and lottery tickets.
Mrs. Emmert testified on her own behalf, and she admitted receiving child support when she was not entitled to it and to claiming her children as dependents on her tax return even though they had been in DHS custody the majority of the time. Mrs. Emmert indicated that she recently split with Mr. Emmert and has no plans to reunite with him because she wants to get her children back. Mrs. Emmert gave a sporadic history of employment at various places, and acknowledged difficulty keeping current on her utilities. She has lived in seven different homes since the DHS case was opened in 2004.
Ashley Johnson was the case worker assigned to Mrs. Emmert’s case. Ms. Johnson maintained that DHS had provided services and made reasonable efforts to return the children to their parents, and that she personally fought hard for the parents to keep their children. |fiHowever, she stated that Mrs. Emmert has not demonstrated a willingness to provide a stable home for the children on a consistent basis. Ms. Johnson stated that there were problems with the home containing dangerous objects, and that there was an ongoing problem with keeping utilities connected. Ms. Johnson testified that despite the efforts by DHS, Mrs. Emmert continues to make bad choices that put her children at risk. Ms. Johnson stated that she has nothing left to offer Mrs. Emmert, and thought that there are no services that are likely to reunify Mrs. Emmert with her children. She further stated that the children need permanency and that “enough is enough.” Ms. Johnson gave the opinion that the return of the children to Mrs. Emmert’s home would be contrary to their health, safety, and welfare, and she recommended termination of parental rights.
An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest. Ark.Code Ann. § 9-27-341(b)(3)(A) (Repl.2008). Factors to consider in determining best interest are the likelihood of adoption and potential harm caused by returning the child to the custody of the parent. Id. Additionally, DHS must prove at least one statutory ground for termination by clear and convincing evidence. Ark.Code Ann. § 9-27-341(b)(3)(B) (Repl.2008). The purpose of terminating a parent’s rights to his or her child is to provide permanency in the child’s life where returning the juvenile to the family home is contrary to the child’s health, safety, or welfare, and it appears that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. Ark.Code Ann. § 9-27-ft41(a)(3)fi (Repl.2008). We do not reverse a termination order unless the trial court’s findings were clearly erroneous. Meriweather v. Arkansas Dep’t of Health & Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007).
In the present case the trial court found termination of parental rights to be in the best interest of the children, considering the likelihood of adoption and potential harm of continuing contact with the parents. The trial court found multiple statutory grounds to support its termination order. In relation to the four older children, the trial court found that DHS met its burden of proof as to Ark.Code Ann. § 9-27-341(b)(3)(B)(i), which provides:
That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
With regard to all five children, the trial court made the following finding pursuant to § 9-27-341(b)(3)(B)(vii):
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
Finally, with regard to all five children, the trial court found that under § 9-27-341(b)(3)(B)(ix)(3), Mrs. Emmert subjected the juveniles to aggravated circumstances. Specifically, the trial court determined that there is little likelihood that services to the family would result in successful reunification pursuant to subsection (ix)(# )(B )(i).
|7In Mrs. Emmert’s counsel’s brief, she asserts that the trial court’s findings were not clearly erroneous and that there can be no meritorious argument challenging the sufficiency of the evidence to terminate Mrs. Emmert’s parental rights. We agree. The evidence demonstrated that all of the children are likely to be adopted and that their welfare and safety would be jeopardized if returned to their mother’s custody. This case has persisted for five years without successful reunification, and in the interest of permanency termination is in the best interest of the children.
Moreover, DHS adequately proved the statutory grounds as found by the trial court. There was ample evidence that despite meaningful DHS efforts, Mrs. Em-mert had failed to remedy the conditions that caused removal. Moreover, she has manifested the incapacity or indifference to remedy subsequent issues that arose in this case, which demonstrates that the return to her custody is contrary to the children’s welfare. In particular, Mrs. Emmert has consistently failed to maintain stable employment or housing, and her living conditions have endangered the children. Finally, consistent with the testimony of the case worker, there is little likelihood that continued services would result in successful reunification. For any and all of these reasons, the trial court was authorized to terminate Mrs. Emmert’s parental rights to promote the best interest of the children.
Mrs. Emmert’s counsel correctly asserts in her brief that, other than the terminations themselves, there was only one adverse ruling. During Mrs. Emmert’s testimony, DHS counsel asked her whether she was legally entitled to claim her children as dependents on her |R2008 tax return given that the children had been out of her custody for eight months during that year. Appellant’s counsel objected with the qualification, “unless he can show a foundation that she knows legally what she’s allowed and what she’s not allowed with the IRS.” The trial court allowed the question over appellant’s objection, and Mrs. Emmert testified that because she was paying child support she thought she could claim her children as dependents, but that after filing her return she later found out otherwise. As appellant’s counsel now asserts, the trial court’s action in allowing the question did not adversely affect Mrs. Emmert’s rights because her answer was that she made an innocent mistake and did not intentionally engage in any illegality. Moreover, the issue of the tax return was so minor in the face of the other evidence supporting termination as to render any possible error harmless.
Based on our review of the record and the brief presented to this court, we conclude that there has been full compliance with Rule 6 — 9(i) and that the appeal is without merit. Appellant’s counsel’s motion to be relieved is granted and the termination orders are affirmed.
Affirmed.
VAUGHT, C.J., and PITTMAN, J., agree. | [
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RITA W. GRUBER, Judge.
hln an order filed on August 25, 2009, the Craighead County Circuit Court terminated Jennifer Churchwell’s parental rights to her son, B.B., born December 2, 2007. The trial court found clear and convincing evidence that termination was in B.B.’s best interests, considering the likelihood that he would be adopted and the potential harm of returning him to his parents’ custody. Ark.Code Ann. § 9-27-341(b)(3)(A) (Repl.2008). It also found the following two grounds had been proven: (1) B.B. had been adjudicated dependent-neglected and had continued to be out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate Ms. Churehwell and correct the conditions that caused removal, those conditions had not been remedied; and (2) other factors |Ror issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that return of B.B. to Ms. Churchwell’s custody was contrary to his health, safety, or welfare. Ark.Code Ann. § 9 — 27—341(b)(3)(B)(i), (vii). We affirm.
A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Strickland v. Ark. Dep’t of Human Servs., 103 Ark.App. 193, 197, 287 S.W.3d 633, 637 (2008). The question this court must answer is whether the trial court clearly erred in finding that there was clear and convincing evidence of facts warranting the termination of parental rights. Hall v. Ark. Dep’t of Human Servs., 101 Ark.App. 417, 421, 278 S.W.3d 609, 613 (2008). Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722.
Pursuant to Ark.Code Ann. § 9-27-341(b)(3)(A), an order terminating parental rights must be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parents. The harm referred to in the termination statute is “potential” harm; the circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 344, 285 S.W.3d 277, 282 (2008). In addition, the proof must [¡¡establish at least one of several statutory grounds. Ark.Code Ann. § 9-27-341(b)(3)(B). This court gives a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Dowdy, supra.
Ms. Churchwell’s first point on appeal— involving the trial court’s concern with her abuse of prescription drugs — is twofold: (1) the trial court clearly erred in finding that there was clear and convincing evidence that B.B. would be subject to potential harm if returned to Ms. Churehwell; and (2) the trial court clearly erred in finding that there was clear and convincing evidence that Ms. Churchwell’s prescription drug use prevented her from being able to parent her child. The first part of Ms. Churchwell’s argument challenges the court’s best-interest finding. Arkansas Code Annotated section 9-27-341(b)(3)(A) requires the court to find that terminating parental rights is in the best interest of the child, considering the likelihood that the child will be adopted — which Ms. Churehwell does not challenge — and the potential harm caused by returning the child to the parent’s custody — which Ms. Churehwell does challenge. Specifically, she contends that the trial court’s reliance on her use of hydrocodone, for which she had a prescription, was clear error where there was no medical testimony that the drug was not a medical necessity or that it interfered with her ability to parent. The second part of Ms. Churchwell’s argument concerns one of the grounds found by the court to support termination: that is, B.B. was out of Ms. Churchwell’s custody for twelve months and, despite a meaningful effort by the department to rehabilitate Ms. Churchwell and correct the conditions that caused removal, those conditions were not | remedied.
A brief recitation of the facts in this case is helpful to understanding Ms. Church-well’s argument. The trial court entered an order for emergency custody of B.B. on December 11, 2007, after he and Ms. Churchwell tested positive for cocaine, benzodiazepine, and opiates at B.B.’s birth. Ms. Churchwell had a prescription for hy-drocodone to manage pain. It is unclear if the medicine was for general back pain or endometriosis, but she testified that her doctor prescribed ninety hydrocodone per month. B.B. was adjudicated dependent-neglected and the goal of the case was established as reunification. Ms. Church-well was ordered to comply with the court’s orders and case plan; obtain and maintain stable housing; obtain and maintain stable employment or sufficient income; remain drug free and submit to random drug screens; and submit to a drug and alcohol assessment and follow all recommendations.
On June 13, 2008, the court returned B.B. to Ms. Churchwell’s custody. Ms. Churchwell was living with her parents, the Bullocks. On July 28, 2008, Ms. Churchwell and her teenage daughter went to SAV-A-LOT with B.B., where Ms. Churchwell “blacked out” due to her drug consumption and was too impaired to care for B.B. Multiple drugs were found in her possession, and she was arrested for endangering the-welfare of a minor, felony possession of a controlled substance without a prescription, and public intoxication. Her daughter was also charged with public intoxication. Ms. Churchwell pleaded guilty to endangering the welfare of a minor and possession of a controlled substance without a ^prescription.
In October 2008, the court transferred temporary custody to the Bullocks while a formal home study was conducted. The Bullocks failed the home study and on November 3, 2008, the trial court returned B.B. to foster care. Despite repeated orders by the court for Ms. Churchwell to undergo a drug and alcohol assessment, she missed four scheduled appointments and did not undergo an assessment until November 4, 2008.
Ms. Churchwell submitted to more than a dozen drug screens between January and September 2008 and tested positive for opium with a prescription in all of these screens. In one screen she also tested positive for methamphetamine and in another she tested positive for methadone. Although DHS continued to supply the names of “medical-detox” facilities to Ms. Churchwell, she did not contact any of the facilities and failed to see her drug use as a problem. In response to DHS’s suggestions to address her addiction, Ms. Churchwell provided a letter from her doctor dated December 17, 2008, stating that “she needed to continue on Hydrocodone.” Finally, Ms. Churchwell failed to maintain any employment. In February 2009, Ms. Churchwell was sentenced to twelve months’ imprisonment for forgery.
On April 24, 2009, the court entered a permanency planning order changing the goal from reunification to termination of parental rights and adoption. Following a termination hearing on July 30, 2009, the court entered an order terminating Ms. Churchwell’s parental rights to B.B. on August 25, 2009.
| fiTurning to the first part of Ms. Churchwell’s argument, that the trial court clearly erred in finding that there was clear and convincing evidence that B.B. would be subject to potential harm if returned to Ms. Churchwell, we clarify what the court must find. The trial court must find that termination is in B.B.’s best interest, considering certain factors including the potential harm that return of B.B. to Ms. Churchwell’s custody could cause. Ark.Code Ann. § 9-27-B41 (b)(3)(A)(ii). There is no requirement, however, that every factor considered be established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that the termination is in the best interest of the child. McFarland v. Ark. Dep’t of Human Servs., 91 Ark.App. 323, 327, 210 S.W.3d 143, 147 (2005).
In this case, the court was concerned that Ms. Churchwell never accepted responsibility for having a problem with prescription medication or controlled substances and saw no problem with a prescription for ninety hydrocodone per month. The court noted that Ms. Church-well did not comply with its orders and took eleven months to complete a drug and alcohol assessment. Heather Clark, a DHS caseworker, testified at the hearing that Ms. Churchwell was usually not sober during supervised visitation with B.B. and that “her eyes were usually glazed somewhat, ... like she wasn’t cognitively all there. The visits, I guess, were a little bit chaotic.” She also testified that the room and B.B. were always a mess when the visit was over. Finally, Ms. Clark stated that Ms. Churchwell discussed her use of hydrocodone with her and did not grasp that it caused any impairment. The court also expressed concern that Ms. Churchwell had demonstrated that she could not remain drug free 17in an uncontrolled setting. The court also found that Ms. Churchwell did not have suitable housing when she was released from prison. Ms. Churchwell testified that she planned to live with her parents, who failed the home study. The court found that her parents’ home was not a suitable placement.
We will not reverse the trial court’s findings unless they are clearly erroneous. Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 621, 12 S.W.3d 204, 208 (2000). Moreover, we give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Dowdy, supra. Ms. Church-well had been unable to maintain steady employment, continued to test positive for prescribed and non-prescribed drugs, failed to see the impairment caused by these drugs as harmful to B.B. and thus refused to attempt “medical detox,” and failed to find suitable housing. Taking all of these facts into consideration, we hold that the trial court did not clearly err in finding that (1) termination of Ms. Church-well’s parental rights was in B.B.’s best interest and (2) despite a meaningful effort by the department to rehabilitate Ms. Churchwell and correct the conditions that caused removal those conditions have not been remedied.
Ms. Churchwell also challenges the second ground upon which her termination was based. She contends that the subsequent factors relied upon by the trial court in finding that issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of B.B. to Ms. Churchwell’s custody is contrary to his health, safety, or welfare, Ark.Code Ann. § 9-27-341(b)(3)(B)(vii), either existed at the time B.B. was initially removed from her custody or were not previously viewed as factors negating her | ¿parental fitness. Because only one ground is necessary to terminate parental rights, and we have upheld the trial court’s finding of the first ground, we need not address this argument. See Albright v. Ark. Dep’t of Human Servs., 97 Ark.App. 277, 248 S.W.3d 498 (2007).
Affirmed.
VAUGHT, C.J., and KINARD, J., agree.
. The court's order also terminated the parental rights of B.B.’s father, Danny Sparkman. Mr. Sparkman signed a consent to the termination and has not appealed the order. | [
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ROBERT J. GLADWIN, Judge.
11 This is the second time this case is before us, this time following the August 6, 2009 opinion of the Workers’ Compensation Commission (Commission). In Diggs v. Cattlemen’s Livestock Market, Inc., 2009 Ark. App. 249, 306 S.W.3d 20, we reversed the May 21, 2008 decision of the Commission denying additional benefits and remanded for a full examination of the relevant evidence presented. On remand, the Commission again reversed the original September 5, 2007 decision by the Administrative Law Judge (ALJ), finding that appellant Darrell W. Diggs did not prove he was entitled to additional medical treatment in the form of lower-back surgery, additional temporary-total-disability benefits, or attorney’s fees. Appellant contends that the Commission failed to follow this court’s instructions to make a full examination of the relevant evidence presented. We disagree and affirm.
|2We refer to the previous opinion of this court regarding the underlying facts of this case and note that the only new occurrence was the additional review of the relevant evidence by the Commission upon remand. In its August 6, 2009 opinion, the Commission included additional references to medical records and opinions provided by James Huffman, PA-C, Dr. John R. Pace, Dr. Scott W.F. Carle, Dr. Darin K. Wilboum, Dr. William E. Ackerman, Dr. Steven L. Cathey, and Dr. Reza Shahim in support of its reversal of the original award of additional benefits by the ALJ. Appellant filed a timely notice of appeal, and this appeal followed.
In appeals involving claims for workers’ compensation, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. See Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 866 Ark. 297, 285 S.W.3d 499 (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Dorris v. Townsends of Ark., Inc., 93 Ark.App. 208, 218 S.W.3d 351 (2005).
|sQuestions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Patterson v. Arkansas Dep’t of Health, 343 Ark. 255, 33 S.W.3d 151 (2000). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.
The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005). As our law currently stands, the Commission hears workers’ compensation claims de novo on the basis before the AL J pursuant to Ark.Code Ann. § 11—9—704(c)(2) (Repl.2002), and this court has stated that we defer to the Commission’s authority to disregard the testimony of any witness, even a claimant, as not credible. See Bray v. International Wire Group, 95 Ark.App. 206, 235 S.W.3d 548 (2006).
While the Commission may be insulated to a certain degree, it is not so insulated to render appellate review meaningless. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Likewise, the Commission may not arbitrarily disregard evidence in support of a claim. Id.
Although he acknowledges that the Commission recited additional parts of his medical history as related to this claim in its new opinion dated August 6, 2009, appellant submits that the Commission disregarded this court’s instructions to make a full examination of the relevant evidence presented. He maintains that the mere recitation of additional medical evidence is as far as the Commission went in its reexamination. The Commission broadly stated that they believe the opinions of Drs. Carle, Cathey, and Ackerman should carry greater weight than those of Drs. Pace and Shahim, which resulted in the denial of appellant’s claim for additional medical treatment and temporary-total-disability benefits from June 30, 2005, to a date yet to be determined. He charges that the medical evidence, while recited in great detail, is never examined or discussed by the Commission. Appellant sets out the following portions of the most recent opinion from the Commission:
The Full Commission finds that the claimant did not prove surgery as recommended by Dr. Shahim was reasonably necessary in connection with the January 20, 2005 compensable injury. The Full Commission has reviewed all of the medical examinations, treatments of record, and medical opinions concerning the claimant’s condition. The Full Commission has also reviewed each and every diagnostic test, including the February 16, 2005 MRI; the April 26, 2005 electrodiagnostic testing; the November 7, 2006 MRI; and the December 2006 lumbar myelogram. We find that the expert opinions of Dr. Ackerman and Dr. Cathey are entitled to significant weight. Dr. Pace did not expressly opine in his June 2006 deposition testimony that surgery would benefit the claimant. Dr. Pace actually recommended additional diagnostic testing and pain management treatment.
| f,We recognize that Dr. Shahim recommended at least one, possibly two surgeries in the form of decompression and fusion. It is within the Commission’s province to weigh all of the medical evidence and to determine what is most credible.
[T]he Full Commission finds that the opinions of Dr. Carle, Dr. Ackerman, and Dr. Cathey are entitled to significant evidentiary weight. We find that these doctors’ opinions are entitled to more probative weight than the opinions of Dr. Pace and Dr. Shahim. The Full Commission finds that the claimant did not prove that surgery as recommended by Dr. Shahim was reasonably necessary in connection with the claimant’s January 20, 2005 compensable injury.
Appellant maintains that the above-referenced statements by the Commission do not provide any articulated basis for the decision to grant more probative weight to the opinions of Drs. Carle, Ackerman, and Cathey over the opinions of appellant’s treating physicians. He contends that the Commission failed to provide any reasoned evaluation of the medical evidence, instead merely restating the broad reliance on the opinions of two disability physicians — neither of whom are neurosurgeons — and a one-time-only medical evaluation by a board-certified neurosurgeon over the opinions of two board-certified neurosurgeons who provided long-term care and treatment to appellant. Appellant also alleges that the Commission failed to address the clear inconsistency of supporting the opinions of Drs. Carle and Ackerman, who are not neurosurgeons, and Dr. Cath-ey, who performed a one-time examination of appellant while discrediting the additional medical treatment and surgical recommendations of Drs. Pace and Shahim— both board-certified neurosurgeons who were treating physicians of appellant.
Ijn summary, appellant submits that the Commission has made a decision that “flies in the face of reason” when one looks at the credentials of the physicians involved, particularly when viewed in conjunction with the fact that appellant has an obvious neurological problem. He urges that the Commission’s decision must be based on reasoned evidence such that it can pass the substantial-evidence standard of review. Appellant maintains that the current opinion cannot, as the Commission has provided no reasoning for its determination.
Appellees disagree and claim that the record clearly indicates that, upon remand, the Commission reviewed all of the evidence and testimony presented at the hearing, including the numerous medical reports cited by appellant in his most recent brief. They maintain that the Commission carried out its duty by evaluating the conflicting medical evidence and reaching the conclusion that appellant failed to establish entitlement to additional medical and indemnity benefits.
Appellees suggest that this court remanded the case based upon statements in the original decision of the Commission dealing with Dr. Pace’s reference that muscle atrophy served as the objective basis for his desire to perform spine surgery. On remand, the Commission reviewed the reports of Dr. Shahim, as well as the reports and testimony from Dr. Pace. Appellees assert that the Commission properly weighed the opinions of all five physicians involved in the claim and made the determination that the opinions of Drs. Ackerman, Carle, and Cathey carried greater weight than that of Drs. Pace and Shahim.
[7We agree with the appellees that this is a classic case of dueling doctors. The various physicians involved provided their opinions based upon their examinations and review of the medical evidence in the case. Appellees argue that the Commission properly resolved the conflicting medical evidence, and the fact that the Commission did not rule in appellant’s favor does not mean that the Commission “arbitrarily disregarded” evidence or strayed from its duty.
The three physicians heavily relied upon by the Commission all opined that appellant’s symptoms and complaints do not correlate with the MRI findings, and the only objective evidence to support a need for surgery that Dr. Pace could refer to was the perceived “muscle wasting” in appellant’s left calf. Dr. Shahim only opined as to his “suspicions” concerning what “most likely” caused appellant’s alleged problems and failed to identify any new objective problems that warranted surgery. Appellees urge that any difficulty appellant may have had working was not attributable to an acute, work-related injury at that point. They assert that he suffered a musculoskeletal injury superimposed over degenerative problems that predate his employment with appellee/em-ployer.
The primary issue at the hearing was appellant’s claim for entitlement to surgery originally recommended by Dr. Pace. Specifically, appellees point to medical records that indicate that appellant has suffered from problems in his left hip as early as July 2002, and the MRI results that indicate an ongoing degenerative process separate and apart from the strain/sprain he suffered while working for them. Additionally, the records indicate that 1 ^appellant received treatment for fairly severe lower-back problems in 2002 from a chiropractor named Dr. Hutson. Appellant has a recurring diagnosis of sacroiliac-joint pain, which causes chronic problems in his left leg and hip. Appellant acknowledged that he had not had any type of surgery or other interventional procedures to treat these chronic problems. He has also acknowledged that one of his legs is longer than the other, that he had been prescribed a heel lift to wear in his left shoe, and that he has bilateral clubbed feet. Appellant’s testimony at the hearing corroborated Dr. Carle’s report that he had “bilateral calf atrophy, secondary to peripheral musculoskeletal disorder in the form of talipes equinovarus (clubbed feet).”
The opinions of Drs. Cathey, Carle, and Ackerman detail the reasons why they did not think appellant was a good candidate for surgery. Appellees note Dr. Pace’s deposition testimony, in which he admitted that he was not aware of any difference in the length of appellant’s legs or any problems appellant had in his feet or legs; however, he also referred to the perceived “muscle wasting” in appellant’s left calf that he had not seen in March 2005. Ap-pellees point out that Dr. Pace’s notes from March 2005 fail to indicate that he examined or measured appellant’s calves at any time during his examinations of appellant during that time period. Dr. Pace did concede in his deposition that the difference in the length of appellant’s legs could definitely cause pain in his hips and sacroiliac joint. Appellees maintain that Dr. Pace’s opinions are based upon inaccurate or incomplete information, and that the Commission was right to rely more heavily on Dr. Cathey’s opinion.
| ¡¡Part of the justification for the remand was the perception that the Commission had mistakenly linked Dr. Pace’s erroneous factual assumptions to Dr. Shahim’s opinion. But, appellees note that appellant argued below that Drs. Pace and Shahim had made similar recommendations and that “both Dr. Shahim and Dr. Pace have noted muscle wasting of [a]ppel-lant’s left extremity. This is an objective sign of continued deterioration of [ajppel-lant’s condition.” Appellees submit that appellant has now abandoned what he argued was objective evidence of the need for surgery by claiming that Dr. Shahim’s surgical recommendation can stand alone. Evidence indicates that Dr. Shahim had been made aware of Dr. Pace’s recommendations since he had been provided with all of appellant’s prior medical records. Dr. Shahim did not note any new objective findings that had not previously shown up on appellant’s diagnostic studies except for an annular tear at L4-5 and L5-S1. Appel-lees assert that if Dr. Pace’s opinion is properly discounted, appellant is left simply with Dr. Shahim’s “suspicion” of what “most likely” contributed to appellant’s alleged problems. They maintain that the Commission evaluated those suspicions and compared them to the other unequivocal conflicting medical opinions in their determination of appellant’s claim.
Despite appellant’s continued challenge of the credentials of the physicians relied upon by the Commission, Drs. Ackerman, Cathey, and Carle, and his claim that this is not a case of dueling doctors because the doctors involved do not have equal qualifications and did not provide equal care or spend equal time with appellant, we hold that the Commission does appear to have weighed all the conflicting medical opinions in this case and, as is in their | ^province, decided which way to resolve that conflict. We disagree with appellant’s contention that the evidence fails to support the findings made by the Commission. This court is obligated to affirm if substantial evidence supports the Commission’s conclusions, and based upon our review, we hold that such evidence does exist. Appellant is not entitled to a reversal based on his disapproval of the Commission’s determination.
Affirmed.
KINARD and GLOVER, JJ., agree. | [
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ROBERT J. GLADWIN, Judge.
|)Appellant Maureen Screeton appeals the February 6, 2009 Pulaski County Circuit Court’s order granting appellees ASCO Vending, Inc., Gerald Scott, and Cynthia Scott summary judgment on their declaratory-judgment action. She claims on appeal that (1) the motion for summary judgment was not timely filed; (2) the extension agreements were invalid for lack of consideration; (3) collection of the promissory notes was not barred by laches or the expiration of any statute of limitations; (4) the parol-evidence rule was inapplicable to the calculation of the amount owed to her; (5) the evidence was insufficient to prove a novation; (6) the award of attorney’s fees was not authorized by law or supported by evidence. We affirm.
12Statement of Facts
Appellant and her then husband Mr. Arnold sold their business and the real property where it operated to appellees in 1990. Appellees signed five promissory notes. One of those notes was paid, and in 1997, the parties executed extension agreements to reduce the interest rate and the monthly payments of each of the remaining four notes. Appellees also claim that the extension agreements extended the payments, giving the Arnolds an extended time to receive income on the notes. The principal balances reflected by the original amortization schedules were posted to the extension agreements. The Arnolds’ accountant was instrumental in preparing the extension agreements. Both the accountant and Mr. Arnold are now deceased.
When appellees sold one parcel of the real property, they asked appellant to release her mortgage in exchange for payment of the amount as reflected on the extension agreement. When she refused, they placed the money in escrow and filed a declaratory-judgment action seeking a declaration that the amounts of the principal balances on each note as stated in the relevant extension agreements and ratified by all parties were correct and that they be awarded attorney’s fees. Appellant counterclaimed, alleging that she had not intended to release any portion of the indebtedness or accumulated interest when the extension agreements were signed in 1996. She claims there were errors in the extension agreements that were either mutual mistake or the fault of appellees. She claimed that the balances in the extension agreements were not properly calculated. She counterclaimed for breach of the agreement, claiming she was owed $128,817.67.
| ..¡Appellees filed a motion for summary judgment on November 12, 2008, asking that the extension agreements be enforced and that the trial court find that appellant is barred by the statute of limitations, doctrine of laches, and the parol-evidence rule from disputing the agreed-upon terms of the extension agreements signed December 1,1996.
The trial court granted summary judgment by order filed February 6, 2009, finding that
[t]he Defendant [appellant] failed to controvert that the outstanding principal balance of each of the four promissory notes as was set forth in an unambiguous manner in each of the four Extension Agreements dated Dec. 1, 1996, and failed to controvert that the Defendant [appellant] and her deceased spouse executed said Extension Agreements at that time.... The Defendant failed to controvert these facts and pursuant to the parol-evidence rule evidence cannot introduce parol evidence [sic] to change or alter a contract in writing. Lane v. Pfeiffer [Pfeifer], 262 [264] Ark. 162, 568 S.W.2d 212 (1978). There is substantive rule of law rather than a rule of evidence that a written agreement itself is the best evidence of then intention of the parties. Therefore, based on uncontro-verted facts the outstanding principal balance of each note as of Dec. 1,1996 is set forth in each of the Extension Agreements ... [those figures] cannot be altered by parol evidence.
The trial court further awarded appellees $5,000 in attorney’s fees. From the trial court’s order, this appeal timely followed.
Standard, of Review
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Gonzales v. City of DeWitt, 357 Ark. 10, 159 S.W.3d 298 (2004). On appellate review, we must determine whether summary judgment was proper based on whether the evidence presented by the moving party left a material fact unanswered. Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006). This court views the evidence in 14the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878, cert. denied, 537 U.S. 1003, 123 S.Ct. 509, 154 L.Ed.2d 400 (2002). Where there are no disputed material facts, our review must focus on the trial court’s application of the law to those undisputed facts. Parker v. S. Farm Bureau Cas. Ins. Co., 104 Ark. App. 301, 292 S.W.3d 311 (2009). When the facts are not at issue but possible inferences therefrom are, we will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).
Discussion
Consideration, Laches, and Novation
Appellant failed to obtain a ruling on three of her six points on appeal. Because appellant did not obtain a ruling on the points related to consideration, laches, and novation, we are precluded from considering them on appeal. See Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007).
Timeliness of Summary Judgment Motion
Appellant argues that appellees violated Arkansas Rule of Civil Procedure 56(a) (2009) because they failed to obtain leave of court to file a motion for summary judgment within forty-five days of the scheduled trial date. When this was pointed out to the trial court, it ruled that by scheduling a hearing on the motion, leave had been granted. Appellant admits that a reversal on procedural grounds would accomplish nothing, but seeks “guidance from this court” to clarify future interpretation of Rule 56, arguing that permission prior to filing |fithe motion should be obtained pursuant to the Rule. This court does not issue advisory opinions, Yu v. Metro. Fire Extinguisher Co., 94 Ark.App. 317, 230 S.W.3d 299 (2006); and, therefore, we decline to address this issue.
Parol Evidence
The central issue in this case is whether the principal balances reflected in the extension agreements supplant those balances reflected in the underlying promissory notes. Appellees contend that, because the extension agreements explicitly and unambiguously state the amount of each balance, the circuit court was correct in excluding parol evidence to contradict those amounts. See McIllwain v. Bank of Harrisburg, 18 Ark.App. 213, 713 S.W.2d 469 (1986). Appellant claims that appel-lees are actually claiming that a novation occurred. A novation is the substitution by mutual agreement of a new debt or obligation for an existing one. Mclllwain, supra. It must be shown that the creditor had an intent to replace the agreement, and the debtor has the burden of proof. Id. A novation must be supported by valid consideration. Sterling v. Sterling, 2 Ark. App. 168, 621 S.W.2d 1 (1981). Appellees point out that appellant did not preserve her argument regarding novation because she failed to obtain a ruling from the circuit court. We agree.
Next, appellees contend that the undisputed evidence demonstrates the parties’ intent that the obligations under the extension agreements be substituted for the obligations under the original promissory notes. The extension agreements stated the agreed-upon balance remaining on each loan and set forth the interest rate, the repayment term, and a monthly payment that would result in the payoff of the entire balance of the loan at the end of the prepayment term. In so doing, the exten-s^on agreements laid out the entirety of appellees’ repayment obligations and left nothing to be determined under the terms of the original promissory notes.
Appellant’s parol-evidence argument on appeal is not related to the extension agreements, but applied only as to the promissory notes. She claims that application of the parol-evidence rule to the extension agreements assumes that those agreements are valid and that they were intended to replace the promissory notes. She argues that appellees had the burden of proving the validity of the agreements, and that the parol-evidence rule does not apply to that issue. She further notes that the rule prohibits the introduction of extrinsic evidence to vary the terms of a written agreement, and claims that she was not seeking to offer parol evidence to vary the terms of the promissory notes. Thus, she claims that the trial court erred in its application of the rule. However, appellees correctly point out that appellant’s arguments do not relate to any ambiguity in the extension agreements, but she instead makes her arguments as to those agreements based upon consideration and novation, which we have held are not preserved.
Finally, each extension agreement contains the following statement:
WHEREAS, Mortgagors/Makers desire now to modify the terms of the original Promissory Note and Mortgage and execute this Agreement to evidence such modification, and the Mortgagees/Payees have agreed to a certain modification of terms of repayment of the indebtedness.
Followed by this statement in each agreement is a statement of the remaining principal balance. At the end of each agreement, all parties, including appellant, affixed their signatures.
17Appellees filed an action for declaratory judgment seeking to enforce the extension agreements. Appellant counterclaimed on the promissory notes. Appellees filed a motion for summary judgment, and the trial court ruled that parol evidence should not be allowed to alter the principal-balance amounts found in each extension agreement. We agree and accordingly affirm the grant of summary judgment.
Attorney’s Fees
Appellant claims that there is no authority for an award of attorney’s fees in a declaratory-judgment action and nothing to support it in the record. Appellees argue that appellant failed to preserve her argument regarding attorney’s fees because she failed to object to the circuit court’s award, thus failing to preserve the issue for appeal. See Farm Bureau Mut. Ins. Co. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996) (holding that objections to awards of attorney’s fees must be raised before the trial court at least by filing a motion to amend the judgment pursuant to Arkansas Rule of Civil Procedure 52(b) (2009)). Alternatively, appellees contend that the circuit court did not abuse its discretion in awarding attorney’s fees. See Stilley v. James, 347 Ark. 74, 60 S.W.3d 410 (2001) (Stilley II). Arkansas Code Annotated section 16-22-308 (Repl. 1999) provides for an award of attorney’s fees in actions for breach of contract. This case involved a contract action — either through appellant’s counterclaim or the fact that the declaratory-judgment action arose from appellant’s breach of contract. The ruling led to a monetary award of release of escrowed funds. The award of attorney’s fees was upheld despite the fact that the underlying action was one for declaratory judgment |sunder the Arkansas Declaratory Judgment Act in Stilley v. James, 345 Ark. 362, 48 S.W.3d 521 (2001) (Stilley I). Accordingly, we affirm the fee award.
Also, appellees claim that appellant did not argue that the amount of the fee awarded is unreasonable, instead, attacking only the lower court’s failure to make a record regarding the factors considered in determining the amount of fees. Under Running M Farms, Inc. v. Farm Bureau Mut. Ins. Co., 371 Ark. 308, 265 S.W.3d 740 (2007), the factors to consider for fee awards are (1) experience and ability of the attorney; (2) time and labor required to perform the service properly; (3) amount in controversy and result obtained. This was an involved case with several pleadings and depositions and an amount in controversy of about $60,000. Therefore, there was no abuse of discretion in awarding the fee.
Affirmed. ■
VAUGHT, C.J., HART, ROBBINS, GLOVER, and MARSHALL, JJ., agree.
GRUBER, HENRY, and BROWN, JJ., dissent. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Don Gray appeals the October 6, 2008 judgment entered against him in Franklin County as a result of a jury’s verdict in favor of appellees Bob Moreland and Moreland Aviation Enterprises, Inc. (Moreland). Gray had sued Moreland for breach of contract, alleging that he failed to pay Gray for painting and refinishing Moreland’s airplane. Moreland counterclaimed for damages, alleging breach of contract and breach of the implied warranty of merchantability or of fitness for a particular purpose. After the jury’s ver- diet in favor of Moreland, Gray filed a motion for new trial, which was denied. On appeal, Gray 1 ^contends that the trial court erred in denying his motion for new trial because the jury’s verdict in favor of Moreland was unsupported by any evidence as to the value of Moreland’s airplane — neither after it was repainted by Gray, nor after Gray’s job was redone. We affirm.
Facts
On June 7, 2006, the parties entered into an agreement by which Gray would repaint Moreland’s airplane for the sum of $9,470. Moreland paid a $3,000 deposit and left the airplane at Gray’s shop in Ozark, Arkansas. Moreland, who lives in Illinois, testified that he had a difficult time communicating with Gray by telephone, and usually talked with Gray’s secretary. He claimed that he arranged to pick up his airplane on July 25, 2006, at 8:00 a.m. He chartered an airplane to Ozark, but claimed that when he arrived at 8:00 a.m., no one was there.
He testified that around 9:00 or 9:30 a.m., Gray’s father arrived. When More-land was shown the airplane, he pointed out defects to Gray’s father, who called the paint shop. Moreland claimed that the defects included discolored paint, drips, runs, and inappropriate fasteners on the cowl. He also claimed that when they tried to run the airplane, it would not run well, so they spent the afternoon cleaning the plugs. While he and Gray’s father worked on the engine, the paint job was being touched up. He also testified that he reviewed the logbooks, which had been signed off by Gray and his father, which meant that the work on lathe airplane was completed.
Moreland testified that, after they got the plane running, it was his intention to test the airplane and land again. However, he said that he made the decision after he got in the air to go home because of the long day and his disappointment over the airplane. After arriving home, he sent Gray an e-mail explaining that he was going to have the work Gray had done evaluated. Moreland contended that the results of the evaluation indicated that the airplane had to be stripped and re-done. Gray responded that he would sue More-land. Moreland claimed that he then wrote Gray a letter offering Gray the opportunity to redo the paint job. When Gray refused, he took the airplane to get it repainted by Sky Harbour Aircraft in Goldenberg, Ontario. He paid $25,000 for the new paint job, and claimed that a regular paint job would have been $12,000 to $13,000, and the balance was for repairing the damage done by Gray. He then stated that the “value of the damage is approaching $7,000.”
Gray testified that Moreland’s airplane was in bad shape when he got it in June 2006. He said that Moreland called him two or three times a day, so he had his secretary talk with Moreland. He said that he did not know Moreland was scheduled to pick up the airplane on July 25, 2006, and that the airplane had not yet been finished. Gray explained in detail the process he goes through in refinishing an airplane, and said that he had not had time to complete this process when More-land arrived to pick up his plane. He said that when Moreland took off to test the airplane, he climbed too fast and too steeply for safety, and he became concerned. Gray asked his father to raise Moreland on the radio, and when that did 14not work, he called flight services in Little Rock and asked if they had an emergency locator or a beacon going off. They told him no and confirmed that Moreland had touched down in Byron, Illinois.
Gray also testified that he did not sign off on the logbook. He claimed that he filled out a form for his secretary to follow, and Moreland got the form from his secretary and placed it in the logbook. He denied ever giving Moreland the logbook entry because he does not give them to customers until he is paid.
The jury returned with a verdict denying Gray’s claim and granting Moreland’s counterclaim in the amount of $9,385. The trial court granted Moreland attorney’s fees in the amount of $12,420.14. Gray moved for a new trial on the grounds that the evidence did not support the jury verdict, and the trial court denied the motion. This appeal timely followed.
Standard of Review
When a motion for new trial is made on the ground that the verdict was clearly against the preponderance of the evidence, then the standard of review is whether substantial evidence supports the verdict. Machost v. Simkins, 86 Ark.App. 47, 158 S.W.3d 726 (2004) (citing Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997)). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or another, beyond mere speculation or conjecture. Id. “The verdict is given the benefit of all reasonable inferences permissible in accordance with the proof.” Id. at 55, 158 S.W.3d at 731.
|fi Discussion
Gray argued in his motion for new trial that, even though he does not agree with the jury’s conclusions, he concedes that the jury could properly find that he was not entitled to the value of his work pursuant to the agreement between him and More-land. However, he claimed that there was no basis in the evidence for Moreland to recover a money judgment against him. He argued that the evidence showed that Moreland agreed to pay Gray to paint the airplane and to pay him for his work. Gray contended that Moreland obtained the plane from him by subterfuge, and Moreland did not pay Gray for the work done. Therefore, Gray maintained that the judgment of the jury against him could not be supported by the evidence and should be set aside.
In his appellate brief, Gray contends that under the most generous acceptance of Moreland’s testimony and proof, it can only be established that he was dissatisfied with the work done by Gray and that his airplane was missing some rivets. Gray contends that that alone does not support a verdict for damages. He argues that the proper measure of damages is best analyzed under a bailment theory.
He argues that Bay Aviation Services Company v. Southland Aviation, Inc., 211 F.Supp. 125 (W.D.Ark.1962), sets forth the proper measurement of damages for the case at issue. There, the court found that when the owner of the aircraft entrusted it to a repair shop for service, the legal relationship of a bailment for mutual benefit was created. The court stated:
The general rule is stated in 8 C.J.S. Bailments § 55(2) e, at page 568, as follows:
|/Where an article is intrusted to a bail-ee for alterations or repairs any, by reason of deviation from the bailor’s instructions, of negligence, or of unskillful ness, the work is not properly performed, the bailor may sue for the breach of contract to repair, in which case the measure of his damages is the difference in the value of the article in its present condition and what it would have been worth if the work had been properly performed.’
See, Arkansas Machine & Boiler Works v. Moorhead, (1918), 136 Ark. 18, 205 S.W. 980, 1 A.L.R. 1652.
Bay Aviation, 211 F.Supp. at 140. Gray claims that there was an absolute failure of proof with regard to damages Moreland could have reasonably and properly claimed against him, as there was no proof as to the airplane’s value in its condition after Gray painted it and after Moreland had it repainted.
We note that Gray’s argument on appeal differs from that argued in his motion for new trial. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. BBAS, Inc. v. Marlin Leasing Corp., 104 Ark.App. 63, 289 S.W.3d 153 (2008).
However, we do not reach Gray’s argument on appeal for an additional reason revealed by the record in this case. During jury deliberations, the jury foreman requested by note of the trial court as follows: “I would like to know the dollar amount that each party is asking for.” Attorneys for both parties told the trial court that they did not have an objection to answering the question. The trial court sent back an answer to the jury foreman indicating that Bill Gray was not requesting any money from Moreland, that Don Gray was requesting |7$9,491 from More-land, and that Moreland was requesting $24,472.67 from Bill Gray and $9,385 from Don Gray. Both attorneys initialed the note containing this information, indicating that they had no objections and that it read as they agreed. The jury then returned with a verdict for Moreland against Don Gray in the amount of $9,385.
An appellant may not complain on appeal that the trial court erred if he induced, consented to, or acquiesced in the trial court’s position. Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001). Because Gray failed to object to the specific amount he now complains of, his argument is not preserved. Accordingly, we affirm.
Affirmed.
BROWN, J., agrees.
HART, J., concurs.
. Moreland also counterclaimed against Gray's father, Bill Gray, claiming negligence in the engine work he had performed on Moreland's airplane. The jury found that Bill Gray was not liable for any damages, and this finding is not on appeal.
. Although Gray's appellate brief indicates that the trial court denied the motion for new trial, there is no transcript of any hearing or order associated with the motion. Thus, we are left to conclude that the motion for new trial was deemed denied, as the trial court did not rule. | [
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JOSEPHINE LINKER HART, Judge.
I,Gary L. Lawhead appeals from an order of the Baxter County Circuit Court denying his petition to change primary custody of the child he fathered out of wedlock. On appeal, he argues that the trial court erred by (1) referring to Arkansas Code Annotated section 9-10-113 (Repl.2008) as a basis for its decision; (2) finding that he had provided no financial support for the child; (3) failing to find that there were material changes in circumstances requiring a change in custody that occurred since the previous custody order; and (4) there was no “justifiable basis” to grant appellee Mary Thompson Harris’s motion for a directed verdict at the close of his case. We affirm.
N.L. was born on October 3, 2000. On December 18, 2004, an agreement to establish paternity was entered. In it, the parties agreed that custody would be vested in Harris, subject to extremely liberal visitation, defined essentially as the time that Harris was at work. The |8parties also agreed to have DNA testing performed. An order, styled “Agreed Decree” was signed on December 21, 2004, but not filed for record until January 10, 2005. Meanwhile, on December 30, 2004, Lawhead filed a petition to change custody. Law-head filed yet another petition to change custody on April 11, 2005. By this time, the DNA test had established that Law-head was indeed the father. On December 29, 2005, Lawhead filed a motion for contempt, in part seeking to enjoin Harris from quitting her job due to the potential deleterious effect it would have on his visitation. Apparently, the custody petitions were resolved by yet another agreed order that was entered on January 3, 2006. Lawhead was awarded what was termed “joint custody,” but was in actuality merely visitation, inasmuch as Harris was given “primary care, custody and control of the minor child.”
Notwithstanding the January 3, 2006 order, the contempt petition went forward. A show-cause order was entered on January 20, 2006. A hearing was set for and held on April 11, 2006. On September 11, 2006, while a decision on the contempt petition was still pending, Lawhead filed a motion styled “EMERGENCY PETITION,” alleging that Harris had N.L. admitted to Vista Health in Fayetteville for treatment of “overly aggressive behavior.” The petition further complained that Harris spanked the child and “forced [him] to stay in his room against his will,” and asserted that Lawhead had not had contact with the child in two weeks. Also, appointment of an attorney ad litem was requested. On September 21, 2006, an order was entered that denied the contempt petition, but set a very detailed visitation schedule.
On September 25, 2006, Harris filed a motion styled “EMERGENCY PETITION TO | ¡/TERMINATE VISITATION.” In it, she alleged that Lawhead had “instructed N.L. that his bad behavior in school and at home would cause him to be able to come and live with his father sooner.” The petition prayed that the court terminate or allow only limited, supervised visitation. On October 23, 2006, the circuit judge who had handled the case recused, and all of the other circuit judges in the Fourteenth Judicial District did the same. On November 28, 2006, Lawhead filed another contempt petition. In this petition, Lawhead complained that Harris’s signed authorization to release N.L.’s medical information was not forwarded to his attorney quickly enough. The same day, Law-head filed another petition for change of custody. Harris then filed another petition for contempt on December 7, 2006, alleging that Lawhead was attempting parental alienation. On December 21, 2006, an attorney ad litem was appointed. On April 23, 2007, the case was heard and the parties agreed, at the behest of the attorney ad litem, that they would participate in family counseling and “defer to the counselor and his recommendations concerning visitation and other respects of the Order.” The order also set out a definite and detailed visitation schedule.
On April 29, 2008, Lawhead filed yet another petition to change custody. In his petition he recited that Larry Cantrell had been providing family counseling to the parties and the minor child and that Cantrell recommended that the child “spend more time with his father.” The petition also alleged that N.L. “indicated his desire to spend more time with his father.”
At the hearing on this petition to change custody, Lawhead testified that he was 56 years |4old, disabled, and living on SSI. He formerly worked as a carpenter, but was no longer working after having had multiple hip surgeries. He lives in a trailer on his mother’s eighty-acre farm. He complained of difficulty speaking with N.L. when he called on Tuesday and Thursday evenings and that Harris had missed some of the family counseling sessions. Law-head also complained that he had observed some bruises on N.L.’s lower back, buttocks, and arm. He claimed that he had “confronted” Harris about the bruises in a counseling session, but she denied that the bruises existed. Lawhead also complained about N.L.’s hygiene. He stated that six months prior to the hearing, N.L. frequently came to his visits with head lice. He claimed that when N.L. came for visits, he had dirty hair, long fingernails and toenails, and did not have socks or underwear. Lawhead also complained that Harris did not readily share information about N.L.’s school activities. He stated that he ate lunch at school with N.L. twice a week, and that was when he found out about N.L.’s extracurricular activities.
Lawhead asserted that the reason he filed his petition was because he desired “more time with his son.” He wanted to be more involved in N.L.’s “care giving,” which he defined as counseling, medical appointments, and school work. He stated that he wanted “half the time,” rather than every other weekend. Lawhead described a typical visit. When N.L. wakes, he watches cartoons while Lawhead makes the child’s breakfast. Then they “proceed to start feeding his animals and fish.” They then ride on a tractor to a big pond to feed catfish, deer, and turkey. The rest of the day is spent shopping, bowling, playing video games, or going to see a movie. Lawhead further testified that he had recently bought a computer for N.L. to use. |sHe admitted that Harris gave him extra visitation in the summer. He stated that they went camping several times.
Lawhead admitted that he did not pay child support for N.L. or for another child he had fathered, who was a year older than N.L. He also admitted that he did not provide insurance for the child, or pay any required co-pays, but asserted that he did buy his school lunch twice a week. He also claimed to have bought socks and underwear for N.L. He also admitted that he was not allowed to discuss the case with N.L., and while he claimed to not remember telling the child to tell the attorney ad litem that he “mostly want[s] to stay with his daddy,” he conceded that he “might have” told the child to “remind” him that he said that.
Larry Cantrell, the family counselor from the Pediatric Day Clinic, also testified in Lawhead’s case. He stated that he had been seeing N.L. on a regular basis since February 2007. Cantrell stated that N.L. loves both his parents and opined that the “parents’ inability to get along is the primary source of behavioral problems.” He stated that “personally” he thought that N.L. should spend more time with his father. However, he cited marked improvement in N.L.’s behavior over the past year, noting that his problems that manifested in 2006 had resolved in 2007 and 2008. Cantrell observed that “whatever is going on right now is working.” Further, he stated, “I do not see any change in circumstances that would require the Court to remove [N.L.] from his mother” and that he had “no evidence of harm or ill effect that has come to [N.L.] from living with his mother.” Cantrell stated that the family counseling did not succeed and that he was “not sure [he] would like to” provide additional | (¡sessions to Lawhead and Harris.
Lawhead concluded his case with the testimony of his mother, Ina Mae Shaw. She stated that N.L. loves his father and enjoys spending time with him. She confirmed that Lawhead and N.L. spend time riding on a tractor and feeding corn to the wildlife. She stated that N.L. was doing “better in school and things like that.”
At the close of Lawhead’s case, Harris moved for a directed verdict, arguing that there was no change of circumstances since the last custody order, entered in December 2007. She further asserted that there was not “one shred of evidence that [the current custody arrangement was] not working.” She noted that Lawhead had not been denied a single day of visitation, and in fact was given extra visitation, N.L. was “doing better in school,” and “everything is improving.” The trial court granted the motion.
In his findings from the bench, the trial judge summarized the lengthy procedural history of the parties’ custody dispute. He called it “outrageous” and told the parties to “Stop it. Stop it. Stop it.” He noted that they were tearing the child apart. He specifically found no material change of circumstances. The trial judge also noted that Lawhead had “not supported this child one dollar’s worth as a non-custodial parent in the payment of child support,” which failed to qualify him for receiving custody of his out-of-wedlock child. Law-head appealed.
On appeal from an order granting a directed verdict in a case that traditionally had |7sounded in equity, the court on appeal must decide specifically whether the plaintiff made out a prima facie case of entitlement to the relief requested. Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997). 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. Id.
Because they are inextricably intertwined, we will take up Lawhead’s first and second points together. He argues on appeal that the trial court erred by referring to Arkansas Code Annotated section 9-10-113 (Repl.2008) as a basis for its decision and in finding that he had provided no financial support for the child. We believe that this argument is of no moment because it was referred to by the trial court as an alternative basis for granting a directed verdict. Harris’s motion specifically asserted that Lawhead had not proved a material change in circumstances, and the trial court agreed. We note that it is so well settled as to be axiomatic that the trial court must first determine that a material change in circumstances has occurred since the last order of custody before it can even consider whether to change custody. Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.Sd 142 (2004).
We likewise take up Lawhead’s third and fourth points together. He argues that the trial judge erred in failing to find that there were material changes in circumstances requiring a change in custody that occurred since the previous custody order and that there was no “justifiable basis” to grant appellee Mary Thompson Harris’s motion for a directed verdict at the close of his ease. He asserts that Cantrell’s recommendation that N.L. “spend more time |swith his father” and Cantrell’s testimony that N.L. would like to do so, made granting the directed-verdict motion reversible error. We disagree.
Lawhead somewhat mischaracterizes Cantrell’s testimony. While it is true that he stated that he “personally” thought that N.L. should spend more time with his father, he also testified that there was marked improvement in N.L.’s behavior over the past year, saying specifically that “whatever is going on right now is working.” Moreover, he stated, “I do not see any change in circumstances that would require the Court to remove [N.L.] from his mother” and that he had “no evidence of harm or ill effect that has come to [N.L.] from living with his mother.”
Furthermore, in our review, we did not find that Lawhead made a prima facie case of a material change of circumstances. The child was situated in the same home and school and was doing “better” in that setting than he had been at the time the previous custody order was entered. The bruises that Lawhead claimed he saw were apparently either not there, or of no significance because their existence was denied by Harris and apparently discounted or disbelieved by Cantrell. Finally, we hold that Lawhead’s accusations that N.L.’s personal hygiene was being neglected do not constitute a material change of circumstances. We note that even N.L.’s alleged problems with head lice, by Lawhead’s own account, had apparently resolved six months before the hearing. While it is undoubtedly true that Lawhead desired to spend more time with his child, it is settled law that custody awards are not made or changed to punish, reward, or gratify the desires of either parent. Calhoun v. Calhoun, 84 Ark. App. 158, 138 S.W.3d 689 (2003).
Affirmed.
KINARD and HENRY, JJ., agree.
. The trial judge did not specifically mention that he was considering this proof in light of the requirements of Arkansas Code Annotated section 9-10-113 (Repl.2008). | [
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KAREN R. BAKER, Judge.
| Appellant, Angela Michelle Jackson, appeals the Nevada County Circuit Court’s adjudication of her daughter, K.J., dependent-neglected. On appeal, she argues that there was insufficient evidence to support the court’s determination that she failed to protect K.J. For the reasons set forth below, we affirm.
K.J., fourteen years of age, was taken into custody on an emergency basis on April 8, 2009, after a report was made to the Child Abuse Hotline that K.J. had disclosed to her counselors that she had been sexually abused by her stepfather, Chester Jackson. Specifically, K.J. told her counselors that Jackson had touched her inappropriately and had digitally penetrated her. According to K.J., the abuse occurred approximately two times a week for several months. The trial court entered an emergency order on April 13, 2009, granting custody of K.J. to the Department of Human Services. On April 15, 2009, the court found that there was probable cause that the emergency conditions Uwhich necessitated removal of K.J. from the custody of her mother continue so that it is necessary that K.J. remain in the custody of DHS, and it is contrary to the welfare of the child to be returned home. At that hearing, the court ordered that the parents undergo psychological evaluations, counseling and parenting classes, and also ordered that there be no contact between Mr. Jackson and K.J. In a May 26, 2009 placement order, the court granted temporary custody of K.J. to KJ.’s grandparents, Damon and Peggy Page.
On July 14, 2009, an adjudication hearing was held. At that hearing, investigator Shelia Halsell testified. She testified that she spoke with K.J. briefly about the allegations before visiting KJ.’s home to perform a safety assessment. At the home, Ms. Jackson appeared to be “very upset” and repeatedly told Halsell that KJ.’s allegations were not true. Ms. Jackson told Halsell that K.J. was “lying” and that K.J. and Mr. Jackson were “never alone together.” Halsell testified that based on her observation, KJ.’s grandmother, who was also present, did not believe KJ.’s allegations either. Halsell testified that K.J. was “upset” because she was being taken into DHS custody and that K.J. said things such as “I should never have told anybody.” Halsell testified that she specifically questioned K.J. as to whether she was ever alone with Mr. Jackson. K.J. told her that Jackson would watch her and her brother when her mother worked late. K.J. told Halsell that while her brother was in his room playing video games, Jackson would “feel of her breasts and stick his finger inside of her.” Halsell testified that K.J. had. neither recanted her story nor changed the details of her story.
Becky Reeves with the Arkansas State Police, Crimes Against Children Division, testified that upon receiving the hot-line report, she went directly to the Jackson residence. Ms. Jackson met |sher at the front door. Ms. Jackson said to Reeves that she knew why Reeves was there and told her that K.J. had lied about the accusations. Ms. Reeves said that Ms. Jackson then directed K.J. to go outside and “tell [Reeves] the truth.” Reeves asked K.J. to accompany her to her vehicle so that Reeves could ask her some questions in a more private setting. It was there that Reeves conducted the initial interview. Based on the accusations by KJ.’s mother that K.J. was lying, Reeves spoke with K.J. about being truthful. K.J. indicated to Reeves that she would tell the truth. The interview continued, and K.J. told her that after school, Jackson would care for her and her brother while her mother was still at work. K.J. said that beginning in July 2008, and continuing on multiple occasions, Jackson would sit beside her in the living room and “put his hand inside her clothing, her pants, underwear, and digitally penetrate her vagina.” This disclosure prompted Reeves to contact DCFS so that a safety plan could be implemented.
Reeves explained that as she interviewed K.J., Mr. Jackson paced around the vehicle. Reeves stated that K.J. was crying “very hard” during the interview and that “[i]t was very intimidating even to [her] and [she] was not the one being interviewed.” Reeves stated that she found the allegations to be true and found K.J. to be credible. Reeves spoke to KJ.’s counselor, who also said that she thought K.J. was being truthful in her allegations. On cross-examination, when asked if she had received any information that had caused her to doubt K.J.’s statement, Reeves testified that she had been told of some behavioral problems that K.J. was experiencing at school. She testified that in her experience, it was not uncommon for abused children to have behavior problems. Reeves was also told that K.J. was “low functioning” and that she had received mental health services. Also on cross-examination, Reeves testified that upon arriving at K.J.’s home to | interview her, Reeves learned that K.J. had had her cell phone taken away from her by her parents the night before. Reeves stated, however, that K.J. losing her cell phone privileges would not necessarily have had any impact on her investigation.
Linda Stokes is a Family Service Worker in Nevada County. She was assigned to this case. She prepared a report for the hearing and developed a case plan for the family. She testified that K.J. gave her the same information that she had given Ms. Reeves — that her stepfather had fondled her and molested her. She testified that DHS had provided the following services to the family: counseling, psychological evaluations, parenting classes, visitation between K.J. and her mother, and placement of K.J. with her grandmother. She testified that K.J. was doing well in her grandmother’s custody. There had been two incidents with K.J. while she lived with her grandmother. In one incident, K.J. slipped out of the house around two o’clock in the morning. Her grandmother found her standing at the end of a driveway with a boy. K.J. began screaming and saying to her grandmother that the boy had “hurt [her].” Ms. Stokes testified that K.J. did not tell her the truth about the incident with the boy and that K.J. was not completely honest about the situation; however, the dishonesty did not “change [her] opinion of [KJ.’s] original story.” In another incident, after K. J. was taken into foster care, Ms. Stokes received a call from KJ.’s foster parent, who told Stokes that K.J. had come home from school saying that her mother and stepfather had tried to take her from the school. When Stokes spoke to school officials the next day, officials informed her that KJ.’s mother and stepfather had not been to the school the previous day. As to the two incidents, Ms. Stokes said that “it’s not uncommon for the child to act out when they get removed from the home in situations like this. [KJ.’s] behavior didn’t give [her] any pause or |fidoubt about [K. J.’s] original story. I have no reason to believe that [K.J.] is not telling the truth.” On cross-examination, Ms. Stokes testified as to a couple of other occasions when K.J. had been in trouble. They included K.J. losing cellular-phone privileges for texting at midnight against her mother’s rules, suspension from school for lashing out at her teacher, and taking her stepfather’s cellular phone without his permission, which occurred the night before the allegations were exposed.
Tracey Sanchez, an employee at St. Joseph’s Cooper-Anthony, Mercy Child Advocacy Center, also interviewed K.J. During her interview with K.J., she disclosed to Ms. Sanchez the allegations made against her stepfather. Sanchez stated that KJ.’s story was consistent with what she told other officials. Ms. Sanchez explained that consistency in a child’s statements was the test used to determine if a child was being dishonest. During the interview, K.J. expressed to Sanchez that her mother did not believe her allegations against her stepfather. When asked why her mother did not believe her, K.J. said that her mother had accused her of lying in the past. K.J. admitted to having lied in the past, but denied having lied about anything similar to the situation at hand. Overall, Ms. Sanchez found K.J. to be consistent and confident in her story, not adding or taking anything away. On cross-examination, Ms. Sanchez said that she had to be focused and very specific with K.J. when asking her questions and found her to be a “little delayed for her age.” Specifically, she stated that K.J. was “not as equipped as [she] would find some thirteen-year-olds as far as with their narrative speech and being able to do some free recall.” Nonetheless, Sanchez stated that K.J. never hesitated or seemed to have to think about the answers she gave to the questions concerning the sexual abuse.
K.J.’s counselor, Johnna Quinn, testified that she saw K. J. every two weeks. Quinn testified |6that K.J. disclosed to her the allegations against her stepfather and that the information K.J. gave to Ms. Quinn was consistent with the information given to other officials. Ms. Quinn testified that it was not uncommon for children in this situation to have behavioral problems in school. Ms. Quinn spoke with K.J. about why her mother did not believe the accusations, and K.J. understood that because she had told lies in the past, that it was difficult for others to believe her. They discussed the fights between K.J. and her mother, and K.J. accepted responsibility for her part in the disagreements. Although K.J. had been untruthful with Ms. Quinn on occasion, that did not make Ms. Quinn doubt K.J.’s story about the abuse. Ms. Quinn also testified that K.J. was “on the lower range of functioning” and received special education services, which could result in an inability to comprehend the severity of the allegations she made. However, Ms. Quinn testified that she had questioned K.J. thoroughly enough that if K.J. had been lying, she would have caught her in that lie.
Another of KJ.’s counselors, Alena Steed, testified that K.J. initially began counseling because of conflicts with her sibling and fights with her mother. During her sessions with K.J., K.J. was open and honest about the allegations and about the fact that she had previously been untruthful in other situations with her mother. Ms. Steed testified that it was approximately three months before the allegations were disclosed that KJ.’s behavior “ratcheted up.” However, Ms. Steed testified that K.J. had not done or said anything that would make her doubt her story. After K.J. disclosed the accusations to Ms. Steed, Ms. Steed then spoke with KJ.’s mother. KJ.’s mother denied the allegations, and K.J. told Ms. Steed that “she knew her mother wasn’t going to believe her.”
K.J. was the next person to testify. The court questioned K.J. initially as to whether she |7understood what it meant to be truthful, to which K.J. responded “Yes, sir.” K.J. then testified about the incident in which she used Mr. Jackson’s cellular phone to send text messages late at night. K.J. stated that her mother caught her using the phone, was very angry with her, and went to the phone company to retrieve a printed copy of the text messages. K.J. admitted that the texting took place the evening before she reported the abuse to the school counselor. K.J. testified that at the time she told her counselor of the abuse, she had already told a couple of her friends about the abuse over the phone.
K.J. testified that the abuse began in July 2008. She stated that when she was sitting on the couch, her stepfather, whom she called “daddy,” would “come over there beside [her] and [she] would be wearing shorts or something and he’d put his hand down [her] pants and he’d start feeling of [her] and stuff like that. He was actually touching [her], he was in [her] clothes. He didn’t touch [her] anywhere other than down there. He didn’t touch [her] breasts.” She also testified that “[h]is hand went inside [her] underwear” and that “[h]e put his fingers inside [her] body sometimes.” He told her not to tell anyone about what happened. She stated that “[i]t happened a lot.” She testified that she did not tell her mother about the abuse because she was “too scared.” She also told the court that she had lied in the past, but mostly out of fear of getting in trouble. She stated that she was being truthful now.
Following KJ.’s testimony, her mother Angela Jackson testified. She stated that she and Mr. Jackson had been married for fourteen years and that he was the only father that K.J. had ever known. She stated that Mr. Jackson’s mother was usually at the home with the children when she was working. She testified that just before K.J. made the allegations against Mr. Jackson, K.J. had |8begun to have behavioral issues. For example, K.J. had been in trouble at school and had been suspended. K.J. had also been lying “more than usual.” She stated that K.J. was also in trouble for using Mr. Jackson’s cellular phone to text boys late at night. She described her relationship with K.J. as “tumultuous.”
Ms. Jackson testified that she learned of the allegations K.J. had made when Ms. Steed and Ms. Reeves arrived at her home. Ms. Jackson denied that she told K.J. to “go out and tell Ms. Becky that it didn’t happen.” She also denied that Mr. Jackson paced around the vehicle while Ms. Reeves interviewed K.J. She said that as K.J. was taken from the home after her interview with Ms. Reeves, K.J. kept saying that the allegations were not true, but Ms. Jackson did not know if anyone else heard K.J. make those statements. Ms. Jackson did not think K.J. was being truthful about the incident, and she did not believe that the abuse occurred. Ms. Jackson thought K.J. was angry with her and was trying to “get back at” her. She did not believe that Mr. Jackson posed any danger to K. J. in the home.
K.J.’s maternal grandmother, Peggy Page, testified that she was present when the investigators and counselors arrived at the Jackson home and were questioning K.J. Ms. Page testified that K.J. told her that Mr. Jackson had not done anything to her and that she said such things because Mr. and Ms. Jackson were paying more attention to her brother than to her. Ms. Page said that as K.J. was taken from the house, she hugged each of her family members, including Mr. Jackson, and told them she loved them.
Ms. Page explained that K.J. had “changed” a lot over the last year. Ms. Page described an occasion when K.J. snuck out of her house. Ms. Page found her, but when she found her, K.J. began | flScreaming, “Help me, help me, mamaw, he tried to hurt me.” K.J. told her grandmother that the boy she had been talking to had “slapped [her].” The boy denied hurting her. K.J. later told her grandmother that the boy had not tried to hurt her. Ms. Page testified that that was the only time she had trouble with K.J. and that things had improved since K.J. began living with her.
Joann Williams testified that the day the investigation began, she was called to K.J.’s home to transport K.J. from her house. She testified that when she first arrived, K.J. was very upset and “pretty hysterical.” Ms. Williams helped K.J. get her clothes and other things and carry them out to the car. She saw K.J. hug her family, and she said that she found it odd that K.J. also hugged Mr. Jackson. After K.J. put her things in Ms. Williams’s car, K.J. seemed to settle down and began to “joke around about things.” Ms. Williams did not hear K.J. tell anyone that the abuse did not happen.
Ms. Steed was called back to the stand. She testified that she did not see any relevance to the testimony that K.J. gave Mr. Jackson a hug before she left. Ms. Steed said that it was typical behavior for an abused person to continue to show love and affection toward the abuser. Ms. Steed then told the court of one occasion when K.J. called her on the phone. It was the night before the investigators arrived at the house. When Ms. Steed answered the phone, she heard Ms. Jackson say, “[K.J.] needs to speak to you.” K.J. got on the phone but would not say anything. Ms. Steed could hear Ms. Jackson in the background telling K.J. to tell Ms. Steed that the allegations were a lie. K.J. told Ms. Steed, however, that her mother made her place the call and that the allegations were true.
At the close of the evidence, the court adjudicated K.J. dependent-neglected based on the sexual abuse and the failure to protect. The order reflecting the court’s ruling was entered on July 11029, 2009. This appeal followed.
The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark. Code Ann. § 9-27-325(h)(2)(B) (Supp.2009); Brewer v. Ark. Dep’t of Human Servs., 71 Ark.App. 364, 43 S.W.3d 196 (2001). We review the circuit court’s findings of fact de novo, and will not set them aside unless they are clearly erroneous. Brewer, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Porter v. Ark. Dep’t of Health & Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008). With regard to testimonial evidence, the appellate court gives a high degree of deference to the circuit court, which is in a far superior position to observe the parties before it, and we defer to the trial judge’s evaluation of the credibility of witnesses. See Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 215, 40 S.W.3d 286, 292-93 (2001); Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Consequently, unless determined to be clearly erroneous, a trial court’s finding will be left undisturbed on appeal. Porter, 374 Ark. at 183, 286 S.W.3d at 692.
A dependent-neglected juvenile is any juvenile who is at substantial risk of serious harm as a result of certain acts or omissions, including neglect or parental unfitness, to the juvenile, a sibling, or another juvenile. Ark.Code Ann. § 9-27-303(18)(A) (Supp.2009). Neglect includes a parent’s acts or omissions that constitute failure to take reasonable action to protect the juvenile. See Ark.Code Ann. § 9-27-303(36)(A). Under subsection (36)(A)(iii), such failures include a parent’s failure to take reasonable action to protect the juvenile from sexual abuse when the existence of this condition was known or should have been known. The Code further defines “sexual abuse” to l1Tinclude sexual contact by a caretaker to a person younger than eighteen years of age. Ark.Code Ann. § 9-27-303(51)(C)(i). Subsection 52(A)(i) defines “sexual contact” to mean any act of sexual gratification involving touching, directly or through clothing, of the sex organs, buttocks, or anus of a juvenile or the breast of a female juvenile.
On appeal, appellant does not contend that there was insufficient evidence of sexual abuse against K.J. by the stepfather, nor does she suggest that sexual abuse of K.J. by her stepfather would not support the court’s determination that K.J. was dependent-neglected. Appellant’s contention, however, is that the trial court erred in finding that she failed to protect K.J. from the stepfather when appellant did not know nor should she have known about the abuse. Given the testimony presented, the issue is one of the weight and credibility of the testimony of appellant and of K.J. In reviewing a dependency-neglect adjudication, we defer to the circuit court’s evaluation of the credibility of the witnesses. Seago v. Ark. Dep’t of Human Servs., 2009 Ark.App. 767, 360 S.W.3d 733 (citing Brewer v. Ark. Dept. of Human Servs., 71 Ark.App. 364, 43 S.W.3d 196 (2001)). The trial court clearly found credible the child’s testimony. K.J. testified that while her mother was at work, Mr. Jackson sexually abused her by putting his hand “inside [her] underwear” and by putting his “fingers inside [her] body.” K.J. testified that the abuse had gone on for some time. Ms. Jackson, however, testified that she did not think K.J. was being truthful about the incident, that she did not believe that the abuse occurred, and that she did not believe that Mr. Jackson posed any danger to K.J. in the home. Given this testimony, we cannot say that the trial court’s determination that Ms. Jackson failed to protect K.J. from her stepfather was clearly against the preponderance of the evidence.
| ^Accordingly, we affirm.
PITTMAN and HENRY, JJ., agree. | [
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PAUL E. DANIELSON, Justice.
| Appellant Tasha Orr, individually and as court-appointed personal representative of the Estate of Melvin Woodson, Jr., deceased, appeals the circuit court’s order dismissing her complaint against appellees Stephen Hudson, M.D., and Timothy Calicott, M.D. (hereinafter “the doctors”), with prejudice. Our court of appeals previously affirmed in part and reversed and remanded in part. See Orr v. Calicott, 2009 Ark.App. 857, 372 S.W.Sd 843. However, the doctors petitioned this court for review, and we granted it. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Butcher v. Beatty, 2010 Ark. 130, 2010 WL 987048. Orr asserts four points on appeal: (1) that the circuit court erred in denying her motion to strike the doctors’ motion to dismiss and amended motion to dismiss; (2) that the circuit court erred in dismissing her lawsuit against the doctors; (3) that the circuit |2court erred in denying her motion for sanctions under Arkansas Rule of Civil Procedure 11; and (4) that the circuit court erred in denying her motion for default judgment. We affirm the circuit court’s order and vacate the opinion of the court of appeals.
In Orr v. Calicott, CA 05-594, 2006 WL 1165844 (Ark.App. May 3, 2006) (unpublished) (Orr I), the court of appeals affirmed the circuit court’s dismissal of Orr’s complaint for medical negligence and wrongful death, relating to the death of her infant son. The Lee County Circuit Court had, on the doctors’ motion, dismissed the complaint for lack of venue, and the court of appeals affirmed, holding that venue was appropriate only in Faulkner County. Orr subsequently filed a complaint for medical negligence and wrongful death in Faulkner County Circuit Court, and the doctors moved to dismiss. In their motion, they asserted, pursuant to this court’s decision in Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005), that On-waived her right to file her complaint when she chose to appeal the Lee County Circuit Court’s dismissal, rather than plead further.
Orr responded, and the circuit court held a hearing on the motion, as well as on motions filed by Orr to strike the doctors’ motion to dismiss, for default judgment, and for Rule 11 sanctions. The circuit court took the matter under advisement and later issued a letter opinion, in which it granted the doctors’ motion to dismiss and denied Orr’s motion |afor default judgment. It then entered its order of dismissal, in which it found:
1. Plaintiffs cause of action was dismissed for lack of proper venue in Lee County. The Plaintiff appealed that dismissal which the Arkansas Court of Appeals affirmed. Plaintiff then refiled her same cause of action in Faulkner County Circuit Court in this case within one year of the issuance of the mandate from the Court of Appeals.
2. The Defendants’ Motion to Dismiss is hereby granted. Arkansas law indicates that when a Plaintiff elects to appeal rather than to plead further when both options are available the option to plead further is waived. See Servewell Plumbing LLC v. Summit Contractors Inc., 362 Ark. 598, 210 S.W.3d 101 (2005); Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). On this issue the court finds misplaced the Plaintiffs reliance upon the case of West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994) and the writings of Newbern, David, Arkansas Civil Practice and Procedure (3d ed.2003) § 22-5 which state that when there is an appeal of a dismissal -without prejudice which is affirmed a new claim may be filed with one year of the appellate court mandate. The Court also finds misplaced the Plaintiffs reliance upon the Doctrine of Law of the Case and the other arguments cited in her brief and at the hearing.
3. Plaintiff has waived her right to plead further in this case. Accordingly, Defendants’ Motion to Dismiss is hereby granted. Plaintiffs Complaint in this case is hereby dismissed with prejudice.
4. Plaintiffs Motion for Default Judgment is hereby denied.
5. Plaintiffs Motion for Rule 11 Sanctions is hereby denied.
6. Plaintiffs Motion to Strike Defendants’ Motion to Dismiss and Amended Motion to Dismiss is hereby denied.
Orr now appeals.
I. Motion to Strike
For her first point on appeal, Orr argues that the circuit court erred in denying her motion to strike where the doctors raised the defense of “waiver” in their motions to dismiss, rather than in an answer. In reviewing the denial of a motion to strike, this court has used 14an abuse-of-discretion standard of review. See Rodgers v. McRaven’s Cherry Pickers, Inc., 302 Ark. 140, 788 S.W.2d 227 (1990). Here, our review of the record reveals that Orr filed her responses to the doctors’ motion to dismiss and amended motion to dismiss well before filing her motion to strike, which raises issues of timeliness and waiver. Cf. Ark. R. Civ. P. 12(f). Accordingly, we cannot say that the circuit court abused its discretion in denying Orr’s motion to strike.
II. Motion to Dismiss
Next, Orr argues that the circuit court erred in dismissing her complaint, asserting that because the court of appeals affirmed the Lee County Circuit Court’s dismissal without modification in Orr I, the Faulkner County Circuit Court was without the power to change or modify that decision by deeming the prior dismissal with prejudice. Along the same lines, Orr contends that because her initial suit was dismissed without prejudice, and the court of appeals affirmed that decision without modification in Orr I, she had the right to refile in Faulkner County. She maintains that this court’s decision in Servewell, supra, is inapplicable to her case because the court of appeals did not affirm with prejudice in Orr I as in Servewell. For these reasons, she claims that the circuit court erred in dismissing her complaint.
The doctors respond that when Orr chose to appeal the Lee County dismissal and the court of appeals affirmed, the dismissal was automatically converted into a dismissal with prejudice barring the claim forever, pursuant to Servewell. Alternatively, they aver that even if the dismissal of Orr’s Lee County complaint was without prejudice, and thus subject to the 1¡¡savings statute, Orr failed to commence a new action within one year after the prior dismissal.
In order to determine whether the circuit court erred in dismissing Orr’s complaint, we must, as an initial matter, determine the effect of the court of appeals’ affirmance in Orr I. In Servewell, this court, in clear and unmistakable terms, held that because Servewell appealed the circuit court’s grant of a motion to dismiss on venue grounds rather than plead further and this court affirmed, the affir-mance would not be “without prejudice.” 362 Ark. at 618, 210 S.W.3d at 113. In doing so, the court observed:
Arkansas law is well settled that, when a plaintiff elects to appeal rather than plead further where both options are available, then the option to plead further is waived in the event of affirmance by the appellate court. See, e.g., Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001) (should a plaintiff elect to appeal rather than plead further the option to plead further is waived in the event of affirmance by the appellate court); Hunt v. Riley, 322 Ark. 453, 909 S.W.2d 329 (1995). Here, Servewell could have taken a voluntary nonsuit prior to the trial court’s dismissal of its complaint and filed the matter in Florida in accordance with the forum-selection clause. Because it elected to appeal rather than to plead the case properly in Florida, there is no basis for granting its request to make our affirmance “without prejudice.”
Id. at 613, 210 S.W.3d at 112-13.
While Orr attempts to distinguish her case from other cases in which we have recognized this doctrine, her attempts fail. It is true that in the vast majority of cases in which we have so recognized, the prior dismissal was based upon Ark. R. Civ. P. 12(b)(6). See, e.g., Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324; Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 245 S.W.3d 115 (2006); Arkansas Dep’t of Envtl. Quality v. Brighton Corp., 352 Ark. 396, 102 S.W.3d 458 (2003). However, the Servewell matter was clearly one involving venue and was one in which we held the “appeal or plead further” doctrine [ (¡applicable. As such, it not only has been, but remains, the law on this matter.
Here, Orr filed a lawsuit, which was dismissed without prejudice for lack of venue. Accordingly, pursuant to Serve-well, she had the election to either plead further or to appeal that decision. See also Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993). Orr chose to appeal rather than to plead further, and the court of appeals affirmed the dismissal in Orr I; because that court affirmed, the dismissal was rendered with prejudice. See, e.g., Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001).
Orr disputes this conclusion, stating that the court of appeals’ opinion merely affirmed the circuit court’s dismissal and did not modify the dismissal to one with prejudice. However, we have previously rejected a similar argument. In Sluder, supra, we observed that when the Sluders chose to appeal the original dismissal of their complaint and this court affirmed that dismissal, it became a dismissal with prejudice; it was “irrelevant that the majority opinion did not specify as such.” 368 Ark. at 299, 245 S.W.3d at 118. The same holds true here. The mere fact that the court of appeals’ opinion in Orr I did not modify the circuit court’s dismissal |7to one with prejudice is irrelevant.
Having decided that the court of appeals’ affirmance in Orr I rendered the dismissal one with prejudice, we turn then to whether the Faulkner County Circuit Court’s dismissal of Orr’s second complaint was error. It was not.
Where a dismissal is with prejudice, it is conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff. See Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003). Stated another way, a dismissal of a cause of action with prejudice is a final adjudication on the merits. See Seaboard Fin. Co. v. Wright, 223 Ark. 351, 266 S.W.2d 70 (1954). The words “with prejudice,” when used in an order of dismissal, “have a definite and well known meaning; they indicate that the controversy is thereby concluded.” Crooked Creek, 352 Ark. at 470-71, 101 S.W.3d at 833 (quoting Harris v. Moye’s Estate, 211 Ark. 765, 767, 202 S.W.2d 360, 362 (1947)). Here, the court of appeals’ affirmance in Orr I rendered the Lee County Circuit Court’s dismissal a dismissal with prejudice, and it operated as an adjudication of the merits of Orr’s claims.
Res judicata means that “a thing or matter has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction.” Beebe v. Fountain Lake Sch. Dist., 365 Ark. 536, 544, 231 S.W.3d 628, 635 (2006) (quoting Hunt v. Perry, 355 Ark. 303, 310, 138 S.W.3d 656, 659 (2003)). The doctrine, through doctrines of merger or bar, precludes relitigation of a cause of action. See Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985). Res judicata consists of two facets, one being claim preclusion and |sthe other issue preclusion. See Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. Under claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action. See Skallerup v. City of Hot Springs, 2009 Ark. 276, 309 S.W.3d 196. Claim preclusion bars the relitigation of a subsequent suit when five elements are met: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. See Council of Co-Owners v. Glyneu, LLC, 867 Ark. 397, 240 S.W.3d 600 (2006).
All five elements were met in the instant case. First, as already noted, the dismissal with prejudice of Orr’s initial complaint operated as an adjudication of the merits on Orr’s claims. Second, the Lee County Circuit Court had jurisdiction over the first suit. Third, the doctors’ motion to dismiss for venue was a good-faith contest of Orr’s initial complaint. Fourth, both suits involved Orr’s claims for medical malpractice and wrongful death. And fifth, both suits involved the same parties. For these reasons, Orr was barred by the doctrine of res judicata from bringing suit against the doctors, and we hold that the circuit court did not err in granting the doctors’ motion to dismiss. In addition, because we so hold, it is clear to this court that the circuit court did not abuse its discretion in denying Orr’s motions for sanctions and default judgment. Accordingly, the circuit court’s order is affirmed, and we vacate the opinion of the court of appeals.
| sAffirmed; court of appeals’ opinion vacated.
WILLS, J., concurs in part and dissents in part.
. Alternatively, they argued that even if the dismissal was considered to be without prejudice, such that the savings statute would apply, Orr failed to file her complaint within one year of the dismissal and was barred.
. The circuit court entered an order of dismissal on February 14, 2008, but on February 28, 2008, Orr’s counsel filed a letter with the circuit court stating that he and the doctors’ counsel had submitted precedents for his signature. A second order of dismissal was then entered on March 10, 2008.
. At no point in her brief does Orr ask this court to overrule Servewell, nor will we do so. See, e.g., Czech v. Munson, 280 Ark. 219, 656 S.W.2d 696 (1983). Orr does, in her supplemental brief on appeal, claim that this court’s decision in Provence v. National Carriers, Inc., 2010 Ark. 27, 360 S.W.3d 725, is on point and refutes the doctors’ argument that Servewell controls. She contends that in Provence, this court affirmed, without prejudice, the circuit court’s dismissal based on venue. She is correct that this court did affirm the order. However, she is incorrect that we did so without prejudice. The opinion simply states that the circuit court’s order, which dismissed without prejudice, was affirmed. Merely be cause the opinion did not state whether our affirmance rendered the circuit court’s dismissal with prejudice in no way contravenes our decision in Servewell. Accordingly, Orr’s reliance on Provence is misplaced. | [
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DAVID M. GLOVER, Judge.
| jAppellant Benjamin Eagle was tried by a jury and found guilty of the offenses of insurance fraud and attempted theft. His sole point of appeal challenges the trial court’s denial of his motion to dismiss for lack of a speedy trial. We agree that Eagle was not tried within the speedy-trial time limits, and therefore reverse his conviction and dismiss this case.
Our supreme court explained in Burmingham v. State, 346 Ark. 78, 83-84, 57 S.W.3d 118, 122 (2001):
The basic rule regarding speedy trial is that any defendant in circuit court who is not brought to trial within twelve months from the date of his arrest is entitled to have the charges dismissed with an absolute bar to prosecution. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified. Once the defendant has made a prima facie showing of a violation of Rule 28.1, the State bears the burden of showing that there has been no violation, in that some of the time comprising the one-year period provided in the rule is to be excluded as “legally justified.” It is ^generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Under Rule 28.2 of the Arkansas Rules of Criminal Procedure, the speedy trial period commences to run “without demand by the defendant.”
(Citations omitted.)
Eagle was arrested on February 7, 2008, and tried on February 24, 2011, clearly beyond the 365-day period allowed to bring an accused to trial. Eagle thus demonstrated a prima facie case for violation of the speedy-trial rules and sought to have his case dismissed. The trial court denied his motion, concluding that the speedy-trial rules had not been violated. By the trial court’s calculations, the trial that had been scheduled for February 16, 2011, would have been held within the speedy-trial limitations. Because Eagle was tried 748 days beyond the 365-day time limit, it was necessary for the State to establish that 748 days were properly ex-cludable in calculating time under the speedy-trial rules. We have concluded that the State did not do so and that the trial court erred in its speedy-trial calculations.
Eagle contends that the trial court erred in denying his motion to dismiss and that the following three time periods are not excludable in calculating time: 1) from February 7, 2008, to September 30, 2008 (236 days); 2) from September 15, 2010, to January 3, 2011 (110 days); and 3) from January 18, 2011, to February 24, 2011 (38 days). As we discuss in the following sections, we agree that the first two time periods and all but eight days of the third time period must be included in counting the time running for trial. Because the | stotal number of days that must be counted against the State exceeds 365 days, we also agree with Eagle’s contention that his case should have been dismissed for violation of the speedy-trial rules.
I.The Period from February 7, 2008, to September 30, 2008 (236 days)
There is no dispute concerning the inclusion of this time period. The time for trial started running from the date of Eagle’s arrest on February 7, 2008. Ark. R.Crim. P. 28.2(a). From the date of his arrest until September 80, 2008, the record demonstrates no basis for the exclusion of any time. Accordingly, we conclude that the 236 days in this time period must be included in the time running for trial.
II. The Period from September 15, 2010, to January 3, 2011 (110 days)
and
III. The Period from January 18, 2011, to February 2⅛, 2011 (38 days)
The trial court stated in its February 15, 2011 order denying dismissal that it was excluding the period September 22, 2010, to February 16, 2011, because it represented “a delay necessitated by rescheduling the defendant’s trial due to the order of a mental competency examination of the defendant, to the next available trial date acceptable to the defendant.” Eagle contends that the time periods from September 15, 2010, to January 3, 2011, and from January 18, 2011, to February 24, 2011 are not excludable because the State did not demonstrate that he was responsible for any delay of trial during those periods.
14A. Starting the Speedy-trial Clock after a Competency Exam had been Ordered
There is no question that the running of time for speedy-trial purposes stopped at the time the trial court ordered a competency exam for Eagle. The trial court started the clock running again with the September 22, 2010 date of the hearing in which Eagle was pronounced fit for trial. Eagle counters that time began running again with the September 15, 2010 filing of the report on his competency, and we agree.
The period of time from the date an exam is ordered to the date the report is filed is properly excludable for speedy-trial purposes. Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004); Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Burming-ham, supra. Yet, the trial court did not restart the clock until September 22, 2010, the date that the hearing on Eagle’s competency was actually held and he was pronounced fit to proceed by the trial court. We recognize that there are cases in which other dates have been used to restart the clock; however, in the cases that we have examined, dates other than the report file date were used only in circumstances, for example, in which the competency report was not filed at all. See, e.g., Block v. State, 2010 Ark. App. 603, 377 S.W.3d 476. Consequently, we find the cases that restart the clock with the filing of the report more compelling under the circumstances of this case, and agree with Eagle that the clock | /¡started running again with the filing of the mental-evaluation report on September 15, 2010.
B. Periods of Delay Attributable to Eagle after September 15, 2010
Eagle acknowledges that the period of time from January 3, 2011, to January 18, 2011, should be excluded because it represents an agreed period of exclusion for him to respond to the State’s motion for an earlier trial date. He argues, however, that other than those fifteen days, the record does not prove or justify attributing to him any period of delay from September 15, 2010, to the date of trial on February 24, 2011. In support of his argument, he explains that at the September 22, 2010 hearing, when the trial court asked the case coordinator for a trial date, the first suggested trial date was January 22, 2011 — which “was four months down the road.” Eagle acknowledges that his counsel at that time reported to the trial court that “he was tied up” for the month of January, and that the trial date was then set for February 16, 2011. He argues, however, that
[n]othing in the record proves that this five-month period of “delay” was caused by the Defendant. “It is the State’s burden to show the delay was a result of the defendant’s conduct or otherwise justifiable by the excluded period recognized by the criminal rules.” [Citation omitted.] Simply put, nothing at the September 22, 2010 hearing indicates that the Defendant’s counsel could not have been available for trial two months later in November or around three months later in December. In other words, the trial court did not establish that the February trial date five months after the September hearing was the “next available trial date acceptable to the defendant” so that having to set the trial date for February was a five-month delay caused by the Defendant.
|fiIn making this argument, Eagle relies upon the multitude of cases explaining that a defendant is not required to bring himself to trial or to bang on the courthouse door to preserve his right to a speedy trial; that it is the court and prosecutors who must make sure the trial is within speedy-trial time limits. See, e.g., Swartz v. Piazza, 354 Ark. 334, 123 S.W.3d 877 (2003). In addition, the State has the burden of showing that any delay was a result of the defendant’s conduct or otherwise justifiable by the excluded periods recognized by our speedy-trial rules. See, e.g., Bowen v. State, 73 Ark.App. 240, 42 S.W.3d 579 (2001). He states, therefore, that it cannot be assumed that his counsel was not prepared to go to trial in the three-month time span before the January dates that were first offered by the trial court. Eagle further asserts that if the trial court had asked his counsel when he could first be available for trial and Eagle’s counsel had ruled out the next five months, then the trial court could have established that he had delayed the trial for those five months. Moreover, Eagle argues that if his counsel had been asked and then stated that he was available before January, but the trial court was not able to schedule a trial in that time frame, then it would have been necessary for the trial court to make a record that the continuance was based on a congested docket pursuant to Rule 28.3(b) of the Arkansas Rules of Criminal Procedure. Finally, Eagle argues that the State recognized the speedy-trial problems; that on December 29, 2010, it moved for an earlier trial date; and that at the hearing on its motion, the State conceded that the period of time following the September 15, 2010 filing of the mental-evaluation report was not excludable.
|7We agree that the State did not meet its burden of establishing that any period of time between September 15, 2010, and February 16, 2011, except for the undisputed exclusion of the fifteen days from January 3, 2011, to January 18, 2011, represented a delay attributable to Eagle or was otherwise justified by our speedy-trial rules. We note that in its brief, the State asserted that the filing of Eagle’s speedy-trial motion on October 22, 2010, tolled the speedy-trial time and that nothing beyond that date should be included in the speedy-trial calculations. The State relies on Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007), and Doby v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002), in making this assertion. We find those cases to be distinguishable from the circumstances presented here because the filing of the motions in those cases caused a delay in trial. As our court explained in Miller v. State, 100 Ark.App. 391, 392, 269 S.W.3d 400, 401 (2007), “[t]he State, however, did not demonstrate that any delay resulted from any of the pretrial motions. The words of Rule 28.8(a) make clear that actual delay is the criterion.” The Miller opinion goes on to explain:
The act of filing a pretrial motion does not toll the speedy-trial period. Some delay attributable to the defendant must actually result from the motion. If we were to hold otherwise, then the State could postpone a defendant’s trial for more than a year any time the State or the defendant filed any motion — even if the motion caused no delay. The circuit court’s reading of Rule 28.8 would urn dermine the State’s obligation to bring Miller to trial within twelve months of the date of his arrest absent the limited circumstances outlined in the Rule.
100 Ark.App. at 393, 269 S.W.3d at 401 (citations omitted). Likewise, the State did not demonstrate that the October 22, 2010 motion caused any delay in trying Eagle.
| sHowever, we do not agree with Eagle’s position that the eight-day period from February 16, 2011, to February 24, 2011, should be counted. As mentioned previously, the trial was scheduled to begin on February 16, 2011, but the State moved for a continuance because a key witness for the State had undergone a tonsillectomy the week before and suffered complications from bleeding. He was bedridden and unable to speak on the day set for trial. The trial court granted the continuance and reset the trial for February 24, 2011, which is when the trial actually took place. Rule 28.3(d)(1) of the Arkansas Rules of Criminal Procedure provides that the period of delay resulting from a request for a continuance by the prosecutor is excludable “if the continuance is granted because of the unavailability of evidence material to the State’s case, when due diligence has been exercised to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at a later date[.]” Here, the State explained that the witness was essential to its case and that he was prevented from appearing at the February 16, 2011 trial date because of complications from a tonsillectomy. It was reasonable to believe that he would be available in a week.
Accordingly, we have concluded that the 110 days from September 15, 2010, to January 3, 2011, and the thirty days from January 18, 2011, to February 16, 2011, should be counted against the State in our speedy-trial calculations. The eight days from February 16, 2011, to the February 24, 2011 trial date, however, should be excluded.
IV. Summary of Calculations
hAs discussed previously in this opinion, the following periods of time should be included in calculating the time for speedy trial in this case because the State has not demonstrated an acceptable basis for their exclusion: 1) 236 days from February 7, 2008, to September 30, 2008; 2) 110 days from September 15, 2010, to January 3, 2011; and 3) thirty days from January 18, 2011, to February 16, 2011. These three time periods total 376 days, which is eleven days beyond the 365 days in which the State was allowed to bring Eagle to trial. Because the State did not do so, we are forced to reverse Eagle’s conviction and dismiss this case with a bar to future prosecution on these charges.
Reversed and dismissed.
VAUGHT, C.J., and GRUBER, J., agree. | [
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PER CURIAM.
|TIn 2003, a jury found petitioner DeLarron Keith Washington guilty of residential burglary, aggravated robbery, and first-degree battery and sentenced him to an aggregate term of 480 months’ imprisonment. The Arkansas Court of Appeals affirmed. Washington v. State, CR-04-18, 2004 WL 2397846 (Ark.App. Oct. 27, 2004) (unpublished) (original case no. CACR 04-18) (Washington I). Petitioner then filed in this court a pro se petition in which he requested permission to proceed in the trial court with a petition for writ of error coram nobis based on a claim of ineffective assistance of counsel. The petition was denied. Washington v. State, CR-04-18, 2008 WL 1970959 (Ark. May 8, 2008) (unpublished per curiam) (original case no. CACR 04-18) (Washington II). Petitioner has now filed a second petition in this court entitled “Petitioner’s Pro Se Petition to Recall the Mandate, Reinvest Jurisdiction to Allow Writ of Error Coram Nobis, Habeas Corpus, Quo Warranto, Evidentia-ry Hearing, Etc.” We construe the petition as a request that jurisdiction be reinvested in the trial court so that petitioner may proceed with a petition for writ of error coram nobis.
A petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam); Burks v. State, 2013 Ark. 188, 2013 WL 1858857 (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cromeans, 2013 Ark. 273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465, 2012 WL 6218480 (per curiam). We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. McFerrin v. State, 2012 Ark. 305, 2012 WL 3366058 (per curiam); Cloird v. State, 2011 Ark. 303, 2011 WL 3135958 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541, 2011 WL 6275431 (per curiam). Coram-nobis proceedings are |sattended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771; Carter v. State, 2012 Ark. 186, 2012 WL 1435672 (per curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).
In the first petition, petitioner alleged that counsel representing him at trial was not a licensed attorney, that counsel’s license was suspended at the time of petitioner’s trial, and that petitioner was therefore without counsel and deprived of a fair trial. Petitioner further asserted that the trial court and the prosecutor were aware of counsel’s suspension, although petitioner was not. We concluded that petitioner’s claim was, in effect, a claim that counsel was ineffective because his license was suspended at the time of trial, and we denied the petition because a claim of ineffective assistance of counsel is not a ground to grant a writ of error coram nobis. Washington II, slip op. at 2-3.
Now, in his second petition, petitioner again raises the claim that he was denied effective assistance of counsel because his trial attorney’s license had been suspended at the time of trial. Petitioner also again alleges that the trial court and the prosecutor were aware of the suspension at the time of trial. While petitioner alleges that the trial judge violated his oath of office by permitting counsel to represent him while his license was suspended, the allegation appears to be made in support of his claim that he is entitled to relief because he has not been allowed to present his claim of ineffective assistance. Claims of ineffective assistance of counsel are not cognizable in error-coram-nobis proceedings. Burgie v. State, 2013 Ark. 356, 2013 WL 5434695 (per curiam); Cromeans, 2013 Ark. 273. Accordingly, as with petitioner’s prior petition based on a claim of ineffective assistance of counsel, we find no ground to grant the relief sought based on | .petitioner’s repeated assertion that he was denied effective assistance of counsel.
To the extent that {petitioner is attempting to argue that, based On Trevino v. Thaler, 569 U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), he is entitled to raise an allegation of ineffective assistance of counsel and related claims, his reliance on Trevino is misplaced. Trevino does not require this court to expand the scope of a coram-nobis proceeding to allow for issuance of a writ of errbr coram nobis to permit a collateral challenge to a judgment of conviction based on a claim of ineffective assistance of counsel. Jarrett v. State, 2014 Ark. 272, 2014 WL 2566093 (per curiam). Again, a coram-nobis proceeding is an exceedingly narrow remedy that requires a showing of facts that were extrinsic to the record that would have prevented rendition of the judgment at trial. Id. Petitioner’s claim that he has nqt been afforded an adequate opportunity to present claims of ineffective assistahce pf counsel is not within the scope of such a proceeding. See id. We decline to refashion the writ to afford petitioner a hemedy. See id.; Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852 (holding that claims of ineffective assistance of counsel ate beyond the scope of a coram-nobis proceeding); Zulpo v. State, 2014 Ark. 14, 2014 WL 197837 (per curiam) (holding that the sccipe óf a coram-nobis proceeding would not be expanded to include an argument outside the four categories recognized as being within the purview of a coram-nobis proceeding).
Petitioner’s next claim is based on the assertion that the victim was not able to identify him at trial. This allfegation amounts to an argument that the evidence was not sufficient to |Rsustain the judgment-and-commitment order- The issue of the sufficiency of the evidence is not cognizable in a coram-nobis proceeding. Sims v. State, 2012 Ark. 458, 2012 WL 6061927 (per curiam); Smith v. State, 2012 Ark. 403, 2012 WL 5304089 (per curiam). The sufficiency of the evidence is a matter to be addressed at trial. McDaniels v. State, 2012 Ark. 465, 2012 WL 6218480 (per curiam); Sims, 2012 Ark. 458.
Finally, petitioner claims that, because his trial attorney admitted to a drug addiction and had his license suspended, he is entitled to “have all records, files, docket sheets, etc. ... recalled” and to receive “postconviction relief.” We treat petitioner’s request as a request to recall the direct-appeal mandate and find no good cause to do so. To warrant recall of the mandate, a petitioner must show an “error in the appellate process,” meaning an error that this court made or overlooked while reviewing a case in which the death sentence was imposed. Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233 (citing Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004)). We have been consistent in considering motions to recall the mandate in criminal cases only where the death penalty has been imposed. Id. While petitioner does not cite Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006) in support of his request to recall the mandate, we note that Lee is distinguishable from the instant case because Lee was a death-penalty case in which the petitioner’s post-conviction proceedings were determined to be procedurally flawed based on a record replete with examples of his postconviction attorney not functioning at the level of qualified or competent counsel required by Arkansas Rule of Criminal Procedure 37.5. Here, petitioner’s claim of ineffective assistance of counsel is not sufficient to demonstrate any error in the appellate process to warrant recalling the direct-appeal mandate.
Petition denied.
. As with the first such petition, the petition was assigned the same docket number as the direct appeal in the case.
. While the petition summarily refers to habe-as-corpus relief and the style of the petition refers to other forms of relief, the petition does not include any cognizable claim or convincing argument for such relief. Moreover, as we stated in our prior decision addressing petitioner's first petition to reinvest jurisdiction, petitioner must file a petition for writ of habeas corpus directly in the Circuit court in the county in which the prisoner is held in custody. Washington II. | [
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JOHN MAUZY PITTMAN, Judge.
11 This is an appeal from an order of dismissal based on the trial court’s conclusion that appellants’ action was time-barred by Ark.Cdde Ann. section 16-56-112(a) (Repl.2005). Appellants argue that the trial court erred in dismissing their action because there was a genuine issue of material fact. In addition, they ask us to judicially modify the statute to create an exception in cases such as theirs. We affirm.
In reviewing a trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Martin v. Equitable Life Assurance Society, 344 Ark. 177, 40 S.W.3d 733 (2001). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings |2are to be liberally construed. Id. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.
The essential facts are not in dispute. Appellants had a custom home built. The general contractor and designer of the home was Wayne Kelso. Pursuant to appellants’ request, a concrete-tile roof was installed. The various appellee Kelso firms were engaged in the construction of the home. Kelso hired Travis Pendarvis, d/b/a Best Roofing Company, to install the roof. Construction was completed in 2002. Leaking was noticed by appellants after the first rain following occupancy. The Kelso firms told appellants that the defects could be repaired, and they, together with Pendarvis, made repeated attempts to repair the roof from the time of occupancy in 2002 until March 2006, when broken roof tiles were replaced. At that time, appellants believed that the roof had been successfully repaired but, upon discovering further leakage in November 2007, they again contacted Wayne Kelso and demanded that the roof be fixed. On January 18, 2007, the Kelsos said that the leaks were caused by product defects rather than faulty design or installation. In August 2007, appellants contracted with another firm to replace the roof; it was then, they later alleged, that they learned of the construction and installation defects for which they brought suit on February 29, 2008. Appellees moved to dismiss based on Ark. R. Civ. P. 12(b)(6). After a hearing on August 4, 2008, the trial court held that the cause was time-barred by Ark.Code Ann. section 16-56-112(a), and granted the motion to dismiss.
Section 16-56-112(a) provides that: |sNo action in contract, whether oral or written, sealed or unsealed, to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repair of any improvement to real property or for injury to real or personal property caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.
Except for cases involving personal injury, the only exception to the application of this statute is found in subsection (d), which states that the limitation prescribed by section 16-56-112 shall not apply in the event of fraudulent concealment of the deficiency. The defense of fraudulent concealment requires a fact question related to some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).
Appellants argue that the trial court erred in dismissing their complaint because they pled facts sufficient to create a fact question as to fraudulent concealment. We disagree. Here, appellants were, by their own admission, aware that there was a construction or installation defect in 2002, yet they did not file their lawsuit until 2008. There is nothing alleged that would constitute a furtive, secret, positive act of fraud. In fact, appellants candidly state in their complaint that one of the Kelso appellees actually suggested as early as March 2006 that appellants would need to file suit against the Kelso firms to resolve the problem but that appellants did not wish to do so. Although appellants were told by the builders that they should not walk on the concrete roof tiles because they would break, appellants do not allege |4that the tiles could in fact be walked on without breakage and, in any event, nothing prevented them from using ladders or other means to inspect the work. In fact, that is what they ultimately did. The dissenting judge’s position is that representations that repair is possible, combined with continued attempts to repair, are sufficient facts to support allegations of fraudulent concealment, even when the builder suggests that it may be necessary for the homeowner to sue them to resolve the problem. We think it preposterous to assert that these allegations are sufficient to support a finding of a secretly executed and furtive plan to defraud. To hold that this is all that was required would be to adopt the repair doctrine discussed and rejected infra, We think such an invitation to sue is incompatible with a secretly executed and furtive plan to defraud, and we hold that appellants failed to present a material allegation of fact regarding the defense of fraudulent concealment.
Appellants also urge us to adopt a “repair doctrine” that would have the effect of tolling the statute during the period that appellees attempted repairs and representations were made that the repairs would cure the defects. With respect to a statute of limitation, Arkansas has long recognized that:
[Wjhile the statute of limitations ordinarily begins to run against an action for breach of warranty upon the sale and delivery of a chattel which does not comply with the warranty, yet the statute is tolled so long as the vendor insists that the defect can be repaired and is attempting to do so.
Louisville Silo & Tank Co. v. Thweatt, 174 Ark. 437, 442, 295 S.W. 710, 712 (1927). A similar “repair doctrine” is recognized in several foreign jurisdictions. See, e.g., Gustine Uniontown Associates, Ltd. v. Anthony Crane Rental, Inc., L.P., 577 Pa. 14, 842 A.2d 334 (2004). 1 ¿Therefore, the question is not whether such a doctrine should be adopted in Arkansas, but is instead whether it should apply to the time-bar established by Ark.Code Ann. section 16-56-112(a) (Repl.2005).
In Curry v. Thornsberry, supra, our supreme court noted that section 16-56-112 is not a mere statute of limitation but instead a statute of repose, the effect of which is to entirely cut off a cause of action after the statutory period elapses. The Curry court further declared that the legislature intended, in enacting this statute, to create a comprehensive statute protecting persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit. Therefore, if the breach or injury occurs immediately after the completion of the improvement, representations and attempts to repair may toll the three-year statute of limitations set out in Ark.Code Ann. section 16-56-105(3), but for no longer than the five-year period provided in section 16-56-112(a). See East Poinsett County School v. Union Standard, 304 Ark. 32, 800 S.W.2d 415 (1990). Given the legislative intent and the supreme court’s consistent refusal to graft judicially created exceptions onto the statute of repose, we decline appellants’ invitation to amend the statute by judicial fiat.
Affirmed.
GLADWIN, KINARD, and GLOVER, JJ., agree.
BAKER and BROWN, JJ., dissent. | [
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KAREN R. BAKER, Justice.
|TOn June 16, 1995, a Crittenden County jury convicted appellee, Ulonzo Gordon, of capital murder and sentenced him to mandatory life without the possibility of parole. We affirmed his conviction, as well as the sentences and convictions of his two code-fendants in Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996), overruled on other grounds by MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). Gordon subsequently filed a Rule 37 petition seeking postconviction relief which the circuit court denied. We affirmed the circuit court in Gordon v. State, No. CR-96-878, 1997 WL 583031 (Ark. Sept. 18, 1997) (unpublished opinion).
On June 24, 2013, Gordon filed a petition for writ of habeas corpus pursuant to Ark. Code Ann. § 16-112-118(b)(l)(A)-(B) (Repl.2006), alleging that he was being held without lawful authority pursuant to Miller v. Alabama, — .U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and asserting that his sentence to life imprisonment was illegal because he was a juvenile at the |2time of the offense. Gordon further asserted that the Crittenden County Circuit Clerk entered the wrong birth date on his judgment and commitment order having stated that his birthday was August 18, 1976. However, Gordon claimed that his birthday was August 18, 1977, which would make Gordon seventeen years old and a juvenile at the time of the offense. Gordon attached as an exhibit to his petition a certified copy of his birth certificate, which reflected that his birth date was August 18,1977.
Gordon cites Miller as his basis for relief, wherein the United States Supreme Court held that the mandatory life-without-the-possibility-of-parole sentence was unconstitutional as to juveniles. In Miller, the Supreme Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.... Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, — U.S. at —, 132 S.Ct. at 2469 (internal quotations and citations omitted). In Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906, on remand to this court, we severed the language of our capital-murder statute as it applies to juveniles to remove the mandatory sentencing of life without parole, granted Jackson’s writ of habeas corpus, and remanded Jackson’s case to the circuit court for resentencing to comply with Miller. Based on these cases, Gordon asserts that his sentence was illegal on its face.
In his petition, Gordon contended that at the time of the offense, January 28, 1995, pursuant to Ark.Code Ann. § 5-4-601 (Repl.2006), capital murder was punishable only by | ¡¡either life imprisonment or death. Thus, Gordon asserted that his life sentence was mandatorily imposed and in violation of Miller. Further, Gordon asserted that because Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), declared the death penalty an unconstitutional sentence for juveniles convicted of any crime, the remaining sentence, life imprisonment without the possibility of parole, was mandatorily imposed. Gordon further contended that based on Roper, life without parole was the only sentence available for a juvenile convicted of capital murder in Arkansas and was mandatorily imposed on him. Gordon asserted that the circuit court should vacate his sentence as unconstitutional and remand it for resentencing pursuant to Ark. Code Ann. § 16-112-117 (Repl.2006).
On July 29, 2013, appellant, Ray Hobbs, Director of the Arkansas Department of Correction (hereinafter “the State”) responded to Gordon’s petition with a “Memorandum in Opposition to the Petition.” Citing the habeas statutes, the State asserted that it was not required to file a responsive pleading, “a return,” unless the circuit court first found that the petition “show[s], by affidavit or other evidence, probable cause to believe [the petitioner] is detained without lawful authority.” Although the State maintained that it was not required to file a formal return until the formal probable-cause determination was made, the State “offered this memorandum of authorities to assist the court in that determination.” The State responded that Gordon’s petition should be denied for two reasons. First, because “Gordon’s Miller claim is ... that his sentence was imposed on him by an illegal procedure, ... a mandatory punishment scheme, his claim is not cognizable under the state habeas-corpus statute.” Second, the State responded that even if Gordon’s claim was cognizable, he is still |4not entitled to relief because Miller did not apply retroactively.
On August 7, 2013, the circuit court entered a letter opinion, which stated in pertinent part:
The Court has received a Petition for Writ of Habeas Corpus on behalf of Ulonzo Gordon. It appears that Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), is applica ble. Accordingly; Whiteside v. State, 2013 Ark. 176, 426 S.W.3d 917, and Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906, require this Court to grant the Petition of Ulonzo Gordon for habe-as relief.
On August 23, 2013, the circuit court granted Gordon’s petition and vacated and set aside Gordon’s sentence. The order stated in pertinent part:
The Court finds that the grant of the writ is compelled by the decision of the United States Supreme Court in Miller v. Alabama/Jackson v. Hobbs [— U.S. —], 132 S.Ct. 2455 [183 L.Ed.2d 407] (2012), and of the Arkansas Supreme Court in Jackson v. Norris, 2013 Ark. 175 [426 S.W.3d 906]. Petitioner Gordon’s sentence of life imprisonment without parole is hereby vacated and set aside.
The writ having been granted, the Circuit Court of Crittenden County is hereby reinvested with jurisdiction to conduct resentencing proceedings. Accordingly, matters surrounding the issuance of summons and Respondent’s Motion to Quash are moot.
On September 9, 2013, the State filed a motion for reconsideration, asserting that the circuit court’s order was inconsistent with the procedure prescribed in the habe-as corpus statute. The State contended that the order was inconsistent because if the circuit court believed that Gordon had demonstrated probable cause to believe that Gordon may be unlawfully detained, the circuit court should “do no more than issue the writ requiring [the State] to submit a return so that material facts can be ascertained as to the lawfulness ... of [Gordon’s] custody. In other words, granting the writ at this stage means only that [the State] should file a return, and, if [the State] disputes the lawfulness of [Gordon’s] custody, the Court |ashould conduct a hearing to ascertain material facts.” The circuit court did not rule on the motion for reconsideration and it was deemed denied.
The State now brings this appeal and presents three issues for review: (1) the circuit court erred in granting Gordon’s habeas petition because the petition failed to demonstrate probable cause to believe he is detained without lawful authority, as claims under Miller are not cognizable under the habeas corpus statute; (2) the circuit court erred in granting Gordon’s habeas petition because the petition failed to demonstrate probable cause to believe he is detained without lawful authority, as Miller does not apply retroactively; and (3) the circuit court’s writ was invalid pursuant to Ark.Code Ann. §§ 16-112-103 to -108.
On review, we “will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. 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. Reynolds v. State, 341 Ark. 387, 18 S.W.3d 331 (2000).” Flores v. State, 350 Ark. 198, 206, 85 S.W.3d 896, 901 (2002).
For its first point on appeal, the State asserts that Gordon’s claim is not cognizable in a habeas proceeding because Gordon’s sentencing argument is based on an illegal manner or manner-of-imposition claim and not cognizable in habeas. Citing to Goins v. Norris, 2012 Ark. 192, 2012 WL 1548067, the State contends that this court has made a distinction between the facial invalidity of a judgment from a claim that a sentence was imposed in an illegal manner. The State asserts that Gordon’s Miller claim is based on the manner in which the sentence was | (¡imposed, not an allegation that the sentence was illegal on its face; therefore, the claim is not cognizable in habeas.
Gordon responds that his claim is cognizable as his case is identical to Jackson and relief is appropriate. Gordon further responds that there are no other remedies available to correct his unconstitutional mandatory life sentence as error coram nobis and Rule 37 proceedings are not available. Citing Ark.Code Ann. § 16-112-108, Gordon also contends that a sentence that is illegal on its face may be evidenced by “affidavit or other evidence,” arguing that a blind reliance on the face of the judgment would be an absurdity and that further inquiry into the exact nature of the sentence is required.
The State replied that habeas relief is a very narrow remedy and that Gordon’s claim is simply not cognizable in habeas. The State further contends that Gordon’s claim would expand the scope of remedies under current habeas law and would require the court to go to the record to grant relief which is a “textbook example of a claim that is not cognizable under the ha-beas-corpus statute.” Finally, the State replies that Gordon ignores the other forum available to him for relief — federal habeas corpus relief.
At issue is whether Gordon’s claim is cognizable in habeas corpus proceedings. We turn to our habeas law to review the circumstances under which habeas relief is cognizable. First, Ark.Code Ann. § 16-112-103 (Repl.2006), provides in pertinent part:
(a)(1) The writ of habeas corpus shall be granted ... to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority, is imprisoned when by law he or she is entitled to bail, or who has alleged actual innocence of the offense or offenses for which the person was convicted.
17Our case law interpreting the habeas statutes provides: “[A] writ of ha-beas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause.” Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994). Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause to believe” he is illegally detained. Ark.Code Ann. § 16-112-103. See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989); see also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).
In Simpson v. Sheriff of Dallas County, 333 Ark. 277, 968 S.W.2d 614 (1998), we explained:
Chief Justice John Marshall once referred to the writ of habeas corpus as the “great writ,” Ex parte Bollman [8 U.S. 757, 4 Cranch 75, 95, 2 L.Ed. 554 (1807), and the writ “has been for centuries esteemed the best and only sufficient defence of personal freedom.” Ex parte Yerger /75 U.S. 857, 8 Wall. 85, 95, 19 L.Ed. 332 (1868). Justice George Rose Smith observed nearly fifty years ago that the “extraordinary remedy” of the writ of habeas corpus may “be invoked when no other effective means of relief is at hand.” Haller v. Ratcliffe, 215 Ark. 628, 629, 221 S.W.2d 886, 887 (1949).
Id. at 283-84, 968 S.W.2d at 617-18.
In Jackson, supra, upon remand from the United States Supreme Court, we is sued a writ of habeas corpus to correct Jackson’s illegal sentence based on Miller. Subsequent to Jackson, in Whiteside v. State, we addressed Whiteside’s Miller claim on direct review and dismissed the State’s argument that Whiteside’s argument was not preserved for review and explained:
|sWe disagree that Whiteside failed to properly preserve this issue, as he argued, both at trial and in Whiteside I, that a life sentence without parole under the circumstances of his case was unusual, excessive, and in violation of his rights under the Eighth Amendment to the United States Constitution. However, regardless of whether Whiteside properly preserved his Miller claim, we agree with his assertion that the imposition of a void or illegal sentence is subject to challenge at any time. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). Sentencing in Arkansas is entirely a matter of statute, and where the law does not authorize the particular sentence imposed by a trial court, the sentence is unauthorized and illegal. State v. Joslin, 364 Ark. 545, 222 S.W.3d 168 (2006). According to the Supreme Court’s decision in Miller, the mandatory life-without-parole sentence that Whiteside received pursuant to Ark. Code Ann. § 5-10-101(c) is illegal under the Eighth Amendment to the United States Constitution. Thus, because the issue in this case involves a void or illegal sentence, it can be addressed for the first time on appeal. Thomas, supra.
2013 Ark. 176, at 2, 426 S.W.3d 917, 919.
Finally, in Murry v. Hobbs, 2013 Ark. 64, 2013 WL 593365 (per curiam), Murry filed a petition for writ of habeas corpus asserting that his sentence was illegal under Miller. We declined to issue a writ of habeas corpus holding that “[bjecause [Murry’s] life sentence was not mandatory, but was instead chosen from a range of possible punishments, he cannot demonstrate that his sentence is illegal under Miller.” Id. at 4. We did not hold that the petition for writ of habeas corpus was not cognizable in habeas proceedings; rather, we dismissed the petition on the merits. See also Smith v. State, 2014 Ark. 204 (citing Jackson and Murry in affirming the circuit court’s denial of the merits of Smith’s petition for writ of habeas corpus seeking relief pursuant to Miller).
Here, Gordon asserts that based on Miller and because he was a juvenile when he was sentenced, his sentence is illegal. Based on our discussion above, we hold that Gordon’s claim is cognizable in habeas proceedings because we have previously held that such claims are cognizable and are appropriate for the writ of habeas corpus. Therefore, we do not find merit lain the State’s argument that Gordon’s claim is not cognizable in habeas.
We turn next to the State’s assertion that the circuit court failed to issue the writ in compliance with Ark.Code Ann. §§ 16-112-103 to -108 (Repl.2006). Specifically, the State contends that pursuant to Ark.Code Ann. § 16-112-101, the prescribed protocol in granting a petition for writ of habeas corpus is mandatory, not discretionary, and must be followed. The State further contends that the “writ is a mechanism by which a prisoner who has demonstrated probable cause is brought before the court in order for the warden to justify the challenged confinement.” Finally, the State asserts that instead of transferring Gordon’s case for resentenc-ing, the circuit court should have ordered the State to file a “return,” justify the confinement, and address the issue of Gordon’s accurate age. In sum, the State asserts that the circuit court bypassed the mandated procedures, failed to issue the writ to the State, and erroneously granted relief from the underlying commitment.
Gordon responds that there is no material fact in dispute and no need for the circuit court to conduct a trial of the writ as to material facts. Gordon further responds that by filing a response to Gordon’s petition, the State was undisputedly served with the summons and petition, and received adequate notice. Thus, the service of the summons, the petition and the response “fulfilled the purpose of the ‘return’ requirement in the habeas statute.” Gordon also asserts that even if the statutes were not followed, the State has failed to demonstrate undue hardship or injury. Finally, Gordon responds that the principles of judicial economy and efficiency support his position.
Arkansas Code sections 16-112-101 to-208 govern Gordon’s petition and provide the | ^procedure for habeas corpus applications. Ark.Code Ann. § 16-112-101 provides that “the writ of habeas corpus shall be issued, served, and tried in the manner prescribed in this chapter, Title 16, Practice Procedure and Court.” (Emphasis added). Next, Ark.Code Ann. § 16 — 112—103(a)(1) provides that “[t]he writ of habeas corpus shall be granted ... to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority.” In interpreting a statute, we construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Walden v. State, 2014 Ark. 193, at 4, 483 S.W.3d 864, 867-68. The word “shall” has been consistently construed by this court to mean mandatory compliance. Aikens v. State, 368 Ark. 641, 249 S.W.3d 788 (2007) (citing Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201,114 S.W.3d 189 (2003)).
We have interpreted these statutes and explained that,
[t]he great object of the writ is the liberation of those who may be imprisoned without sufficient cause, and to deliver from unlawful custody... .[I]ts object is to require the person who answers it to show upon what authority he detains the prisoner.
State ex rel. Ark. Indus. Co. v. Neel, 48 Ark. 283, 289, 3 S.W. 631, 633 (1887).
Here, the record demonstrates that the circuit court issued the writ; however, the circuit court did not make a finding of probable cause to issue the writ as prescribed in Ark.Code Ann. § 16-112-103(a)(i)- Although the circuit court may have implicitly found that Gordon’s petition evidenced probable cause to issue the writ, the record demonstrates that a probable cause finding was not made. The habeas procedures make clear that the circuit court must first make this probable-cause finding prior to moving forward with the remaining | nhabeas procedures.
Accordingly, pursuant to our discussion above, a determination of whether probable cause is shown must be made for the circuit court to issue the writ. Therefore, we remand the matter to the circuit court for such finding and any further proceedings required by our habeas statutes. Because we have reversed and remanded on this point, we do not reach the remaining point on appeal.
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BILL H. WALMSLEY, Judge.
11A Hot Spring County jury found appellant Tom Buck Steele guilty of twenty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child. On two counts, the jury sentenced Steele on each count to the maximum sentence of ten years’ imprisonment and a $10,000 fine. On each of the other eighteen counts, the jury sentenced him to eight years and a $2,000 fine. The trial court ran the sentences consecutively for an aggregate term of 164 years’ imprisonment and a fine totaling $56,000. On appeal, Steele argues that (1) the trial court erred in denying his motions for directed verdict, (2) the trial court erred in permitting reference to his possession of other pornographic images for which he was not charged, (3) the trial court violated constitutional principles and abused its discretion in ordering consecutive sentences of imprisonment, and (4) the trial court erred in refusing to give the jury an instruction on alternative sentencing. We affirm.
| ¡.Agent Wes Baxter in the Cyber Crimes Division of the Attorney General’s Office testified that the National Center for Missing and Exploited Children has identified hundreds of thousands of images of known child pornography and assigned them a SHA (secure hash algorithm) value, similar to a serial number or fingerprint. Through a peer-to-peer sharing network called Shareaza, Baxter located files with these SHA values on what was later determined to be Steele’s computer. Baxter downloaded two of those files onto his own computer to confirm that they contained images of child pornography. On September 15, 2011, Baxter determined that the IP address associated with the computer containing child pornography was registered to Steele at his home address in Malvern. Baxter then obtained a search warrant, which was executed on October 19, 2011. Baxter, along with local law-enforcement officers, entered Steele’s residence and found two computers sitting side by side on a desk in Steele’s bedroom. A Sony computer sat next to a newer Dell computer, which was hooked up to a monitor, keyboard, and mouse.
In his statement to police, Steele acknowledged that he owned both computers in his home. Steele told law-enforcement officers that his nine-year-old son lived with him. He said that others had lived with him in the past but that it had been at least six months since another adult lived with him. Steele said that his ex-wife had a key to his home because of their son. Steele initially stated that no one had access to his Sony computer but then stated that unidentified individuals, and probably his adult son, knew his passwords. When asked about the possibility that his adult son had been looking at child pornography over the past year, Steele said that “[t]here’s no way.” Steele was familiar with Shareaza. According to Steele, he laused only the Dell computer and not the Sony, which he described as “just a spare old computer.” Steele could not remember the last time anyone had used the Sony computer, but he then recalled that approximately one month earlier he had updated the antivirus software on the Sony computer. Steele also told officers that he worked in nuclear medicine at a hospital, that his hours were 6:30 a.m. to 3:30 p.m. every day, and that he had not recently taken any time off from work.
Special Agent Jeff Shackelford, the Director of Forensic Services for the Attorney General’s Office, testified as an expert in computer-forensic analysis. He testified that only the Sony computer contained images of child pornography. That computer also contained pictures of Steele, email accounts, and browser history, including website information for Steele’s son’s elementary school, which was last accessed on May 27, 2011. According to Shackelford, the Sony computer was password protected, whereas the Dell computer was not. Shackelford stated that there were forty-four search terms entered into Shareaza on the Sony computer and that forty-three of those terms were indicative of child-pornography searches. Shackel-ford stated that he found nearly 100 files of suspected child pornography. Eighteen files were located in the Shareaza folder, sixty-six files were located in the documents-and-settings folder, and the remainder were found in the recycle bin. Shack-elford testified that the Sony computer had a paid subscription to Norton antivirus software dating back several years. Shackelford testified that if a person was downloading files off of a sharing network like Shareaza, it would be important to have antivirus protection because of the possibility of obtaining malicious files.
| ¿Gail Drobena, the Senior Human Resources Manager at Mercy Hospital in Hot Springs where Steele worked, testified to relevant dates and times in 2010 and 2011 from time sheets showing when Steele had clocked in and out at work. She was questioned about two dates in particular, October 5 and 6 of 2011, which was shortly before the search warrant was executed at Steele’s residence. Drobena testified that Steele had clocked out at 3:12 p.m. on October 5 and that he was not scheduled to work on October 6. Shackelford testified earlier that he had compared Steele’s time sheets with the dates and times that the ninety-eight files of child pornography were created and last accessed and that not a single folder was opened at a time when Steele was confirmed to have been at work. When specifically questioned about the images associated with the twenty counts against Steele, Shackelford indicated that many had last been accessed on the afternoon of October 5 and throughout the day on October 6, 2011.
Defense counsel moved for directed verdicts on each count, arguing that the State had failed to sustain its burden of proof ■because neither agent could identify Steele as the person who created, modified, accessed, or downloaded the pornographic images onto the computer. The trial court denied the motions.
Angela Arbuckle, Steele’s ex-wife, testified that Steele had full custody of their son because she had a drug problem in the past. Arbuckle stated that she had a key to Steele’s house and was permitted to use Steele’s computer. She testified that Steele insisted that no one but he and their nine-year-old son was permitted to use the newer Dell computer but that she knew the passwords for the Sony computer. Ar-buckle testified that, unbeknownst to IsSteele, she had taken her boyfriend and an acquaintance to Steele’s home and allowed them access to Steele’s Sony computer while Steele was at work. When shown a picture of the two computers sitting side by side on the desk in Steele’s bedroom, Arbuckle could not identify the Sony computer. Arbuckle further testified that Steele had “a lot of people,” including an adult son and daughter, living at his home off and on but that she was not certain of the dates.
Steele’s former father-in-law testified that, on the afternoon of October 5 through October 6, Steele was with him and his girlfriend in Missouri. He stated that it was Steele’s first motorcycle trip.
The girlfriend confirmed that the visit took place on those dates at her home in Missouri.
Steele took the stand in his own defense. He testified that he “had no idea” how child pornography got on his Sony computer. According to Steele, Shareaza was installed by someone else and was used only for downloading music. He testified that since 2005 “literally tons” of people had access to the Sony computer. Steele stated that his adult son had moved out in April or May 2011 but that the son had a key and was at his house “constantly.” Steele testified that his employer had scheduled October 6 as the date on which a new system was to be installed on the machine he worked with and that, when questioned by agents on October 19, he simply did not recall taking the motorcycle trip to Missouri.
I. Sufficiency of the Evidence
A direeted-verdict motion is a challenge to the sufficiency of the evidence. LeFever v. State, 91 Ark.App. 86, 208 S.W.3d 812 (2005). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in Rthe light most favorable to the State. Id. The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Witness credibility is an issue for the fact-finder, who is free to believe all or a portion of any witness’s testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. Id. “A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct.” Walley v. State, 353 Ark. 586, 594, 112 S.W.3d 349, 353 (2003). Because a criminal defendant’s intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. Feuget v. State, 2012 Ark. App. 182, 394 S.W.3d 310.
A person commits the offense of distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child if the person knowingly possesses or views through any means, including on the internet, any photograph, film, videotape, computer program or file, computer-generated image, video game, or any other reproduction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct. Ark.Code Ann. § 5-27-602(a)(2) (Repl.2006). It is a Class C felony for the first offense. Ark.Code Ann. § 5-27-602(b)(l). For a Class C felony, the sentence shall not be less than three years nor more than ten years. Ark. Code Ann. § 5-4-401(a)(4).
Steele argues that the jury only speculated that he knowingly possessed child pornography. He points out that other people had access to his Sony computer and that at least one other person had the passwords. Steele contends that, given the joint access, the State |7had to prove something more to connect him to the computer. He likens his ease to United States v. Moreland, 665 F.3d 137 (5th Cir. 2011), in which the defendant’s conviction for knowingly possessing child pornography was reversed and dismissed based on insufficient evidence to support the conviction because several persons had access to the computer on which the images were found. Moreland, however, is distinguishable in that at least three adults, including the defendant’s father, lived in the home; there was evidence that the defendant’s father, who was said to be “obsessed” with pornography, often used the home computers at night when everyone else was asleep; a police officer, who was not qualified as an expert in computer forensics, was able to recover deleted images but not dates and time stamps; and there was evidence that the defendant’s father had destroyed the hard drive of his own computer after police had seized the defendant’s home computers.
In cases involving constructive possession of child pornography on a computer, where joint access is alleged, the Eighth Circuit has required “ownership, dominion or control over the [pornographic material] itself, or dominion over the premises in which the [pornographic material] is concealed.” See, e.g., United States v. Acosta, 619 F.3d 956, 961 (8th Cir.2010) (alteration in original) (citation omitted). Although there was some conflicting evidence of joint access to the Sony computer, the jury was not required to believe such testimony. Even assuming that there was joint access, the evidence was sufficient to show that Steele exercised dominion and control over the Sony computer.
The Sony computer belonged to Steele, and the IP address was registered to Steele. The computer was kept in his bedroom and was readily accessible by switching cords with |8the Dell computer. The computer held personal pictures, private email accounts, and browser history showing website information related to his son’s elementary school. Steele said that he had recently updated the antivirus software on the Sony computer. This evidence tended to connect Steele himself to the Sony computer and demonstrated that he exercised dominion and control over the computer that held nearly 100 images of child pornography in three separate locations.
In addition to being password protected, as noted above, the Sony computer was protected with antivirus software. The ev idence showed that such protection was important with file sharing but would have been unnecessary for an old computer that Steele did not use. There was testimony that there were no viruses on the Sony computer that could account for the presence of the child pornography.
Steele acknowledged that he knew about Shareaza, and the evidence showed that, out of forty-four search terms entered on Shareaza, forty-three pertained to child pornography. Although Steele claimed that the program was strictly for downloading music, evidence showed that there was only one music search term.
Steele further argues that his alibi witnesses verified that he was elsewhere on October 5 and 6 when the images were last accessed; however, the jury was not required to believe those witnesses. Moreover, Arbuckle testified that she and her companions accessed the Sony computer only at times when Steele was at work. The evidence showed that not a single file was created or accessed at a time when Steele was confirmed to have been at work. We hold that substantial evidence supports Steele’s convictions.
li)II. Rule WMb) Evidence
At trial, the court permitted the State to introduce, over Steele’s objections, testimony that the Sony computer contained nearly eighty images of child pornography, for which Steele was not charged with possessing. Steele objected to the Rule 404(b) evidence on the basis of Ark. R. Evid. 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Arkansas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove character, but the evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Trial courts are afforded wide discretion in evidentiary rulings; specifically, a trial court’s ruling on issues relating to admission of evidence under Rules 401, 403, and 404(b) is entitled to great weight and will not be reversed absent an abuse of discretion. Anderson v. State, 2009 Ark. App. 804, 372 S.W.3d 385.
On appeal, Steele contends that the trial court abused its discretion in admitting such testimony when he was “accused only of downloading and possessing the material, not creating it.” Steele was not required to have created the pornographic material himself in order to be found guilty of an offense under Ark.Code Ann. § 5-27-602(a)(2). Simple possession will suffice.
Steele consistently denied knowing anything about the child pornography on his Sony computer. The jury could have reasonably concluded that, given the number of images on the computer and the access times, it was unlikely that Steele could not have known about | inthem. The evidence was relevant to show knowledge, intent, and absence of mistake or accident and was thus properly admitted under Rule 404(b). We cannot say that the trial court abused its discretion in allowing the State to prove its case as conclusively as possible by referring to the total number of images found on Steele’s computer. See Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008).
III. Consecutive Sentences
When multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense, the sentences shall run concurrently unless, upon recommendation of the jury or the court’s own motion, the court orders the sentences to run consecutively. Ark.Code Ann. § 5-4-403(a) (Repl.2006). It is well established that the question of whether sentences should run consecutively or concurrently lies solely within the province of the trial court. Throneberry v. State, 2009 Ark. 507, 342 S.W.3d 269. The exercise of that discretion will not be altered on appeal unless it is clearly shown to have been abused. Id. The appellant assumes a heavy burden of demonstrating that the trial judge failed to give due consideration to the exercise of his discretion in the matter of consecutive sentences. Id.
Our supreme court has held that if the sentence fixed by the trial court is within the legislative limits, we are not free to reduce it even though we might consider it to be unduly harsh. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001). There are three extremely narrow exceptions: (1) where the punishment resulted from passion or prejudice, (2) where it was a clear abuse of the jury’s discretion, or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Id.
h¡Steele argues that the length of his sentence amounted to cruel and unusual punishment, especially considering that he was a nonviolent first offender who merely possessed contraband images. Steele argues that the trial court erred in treating the possession of images from the internet — “a quintessential hands-off offense”— as something for which a life sentence was appropriate.
The constitutional prohibition against cruel and unusual punishment is directed toward the kind of punishment imposed, not its duration. Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). The fact that punishment is severe does not make it cruel or unusual, nor does the imposition of the maximum sentence for an offense. Id. Ordering sentences to run consecutively is not cruel or unusual punishment, and our supreme-court has rejected the argument that the cumulative effect of consecutive sentences can render the punishment cruel or unusual. Id. Thus, we hold that the trial court’s imposition of consecutive sentences totaling 164 years’ imprisonment was not cruel and unusual punishment.
Next, Steele maintains that the judge’s remarks from the bench indicated that the consecutive sentences resulted from passion or prejudice and that' the length of the sentence is wholly disproportionate to the nature of the offense. Steele further argues that the trial judge’s comments about his decision to run the sentences consecutively indicate that he did so because of what he perceived to be the jurors’ reactions to the images of child pornography.
While Steele was sentenced to consecutive terms of imprisonment at the conclusion of the trial, the trial court later held a hearing on Steele’s motion to reconsider sentencing. 112There is no indication that the trial court failed to consider factors urged by defense counsel, including that Steele was a nonviolent first offender, had no criminal history, was sixty-one years old, and was raising a young son. Each sentence was within the statutory range of punishment, and none of the narrow exceptions noted above apply. While the trial court did refer to the jurors’ reactions to the images, it nevertheless exercised its discretion in noting that there were twenty counts and that each child depicted in those images was a victim of “egregious” abuse. The trial court concluded that possession of each image deserved its own punishment. Under these circumstances, we cannot say that the trial court abused its discretion in running the sentences consecutively.
IV. Alternative-Sentencing Instruction
Arkansas Code Annotated section 16-97-101(4) (Repl.2006) provides that the court, in its discretion, may instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify. The jury, in its discretion, may make a recommendation as to an alternative sentence; however, this recommendation shall not be binding on the court. Ark.Code Ann. § 16-97-101(4). The decision to allow alternative sentencing is reviewed for an abuse of discretion. Hoodenpyle v. State, 2013 Ark. App. 375, 428 S.W.3d 547. This standard of review is a high threshold, and it requires that a trial court act improvidently, thoughtlessly, or without due consideration. Id. The mechanical imposition of the jury’s recommended sentences or an unwavering court policy refusing to instruct the jury on alternative sentences with respect to certain offenses is not an exercise of discretion. Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002).
| iSSteele argues that the legislature has specifically provided that the offense for which he was found guilty is eligible for probation, yet the trial court rejected his proffered alternative-sentencing instruction based on the “sexual nature” of the offense and the fact that some jurors cried over what they saw depicted in the images.
The trial court exercised its discretion by citing specific reasons for finding that an instruction on alternative sentencing was inappropriate, including the jurors’ reactions to the images. Further, the trial court reasoned that the jury convicted Steele on all twenty counts and sentenced him to much more than the minimum punishment. The trial court concluded that it was unlikely that the jury would have recommended probation for Steele’s possession of child pornography. Given the ultimate sentence imposed, it was also unlikely that the trial court would have accepted a non-binding recommendation of probation. We cannot say that the trial court abused its discretion in refusing to give the instruction.
Affirmed.
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DONALD L. CORBIN, Associate Justice.
_JjAppellant, Vance Thompson as executor as trustee of the H. Ripley Thompson Revocable Trust (“the Trust”), appeals the order of the Woodruff County Circuit Court finding that Appellee Anne L. Thompson’s election to take against the will of her husband, the Decedent, H. Ripley Thompson (“Ripley” or “the Decedent”), was valid and that, because the Decedent’s intent in creating the Trust was to deprive Appellee of her elective share in her husband’s estate (“the Estate”), the assets held by the Trust must be included in his Estate for purposes of determining her elective share. Appellant presents four points for reversal, with the central issues being whether the circuit court erred in finding that the Decedent intended to deprive Appellee of her elective-spousal share and whether the assets of the inter vivos revocable Trust should therefore be included in the Decedent’s Estate for purposes of calculating Appellee’s elective-spousal share. Because these issues need clarification or development of the law, jurisdiction of this appeal is properly in this court ^pursuant to Arkansas Supreme Court Rule 1 — 2(b)(5) (2013). We cannot say that the circuit court’s findings were clearly erroneous, and we affirm.
Appellee initiated the present lawsuit on June 2, 2011, by filing a complaint in the Woodruff County Circuit Court against Appellant, as Trustee, asserting a cause of action for imposition of a constructive trust over the Trust assets. She later filed an amended complaint in October 2011. In that amended complaint, Appellee alleged that she had married the Decedent on July-15, 2001, that they had remained husband and wife until his death on February 20, 2010, and that, because the Decedent had no children, she was his sole heir. She also alleged that she previously had a successful career as a registered nurse, but that she had left her career at her husband’s request because he had promised to take care of her. Appellee attached to her amended complaint her deceased husband’s will, dated May 29, 2009 (“the 2009 Will”), that had been admitted to probate and to which she had filed a petition to set aside and an election to take against. She also attached to her amended complaint the last Restatement of the H. Ripley Thompson Revocable Trust, also dated May 29, 2009 (the 2009 Trust), which stated it was an amendment to a trust first made in 2002, and which had first been amended in 2004. In addition, Appellee attached as an exhibit to her amended complaint the petition she had filed in probate court to have the 2009 Will and the 2009 Trust (collectively “the 2009 Will and Trust”) set aside on grounds of incapacity and undue influence, or alternatively, to elect to take against the 2009 Will. For her cause of action in her amended complaint, Appellee sought the imposition of a constructive trust on the 2009 Trust assets for her elective share; alternatively, she sought a declaration that the 2009 Will |sand Trust were invalid as a result of undue influence and lack of testamentary capacity. Appellee also sought attorney’s fees pursuant to Arkansas Code Annotated section 28-73-1004 (Repl.2012).
In addition to the 2009 Will and Trust, Appellee also attached as exhibits to her amended complaint her husband’s previous will, dated June 14, 2004 (“the 2004 Will”), the original Trust declaration, dated September 19, 2002 (“the 2002 Trust”), and the first amendments to the 2002 Trust, dated June 14, 2004 (“the 2004 Trust”). According to the facts alleged in the amended complaint, upon the Decedent’s death, the property of the Trust was all personalty and valued in excess of $5.8 million, while the inventory of the Estate showed all personalty valued at $230,471. Appellee alleged that, pursuant to Arkansas Code Annotated section 28-39-401(b)(1), her elective share of the Estate should be calculated as one-half of the total of the estate assets plus the Trust assets, or $3,015,209.
The circuit court held a three-day hearing on the complaint, which began on October 30-31, 2012, and was continued to November 8, 2012. The circuit court entered an order on May 9, 2013, stating that the probate case and the civil case had been consolidated for trial and finding that, because the Decedent had intended to deprive Appellee of her marital rights to property when he executed the 2009 Will and Trust, the Trust assets would be included as part of the Estate for the limited purpose of calculating Appellee’s elective share.
The circuit court’s thorough order included, among others, the following specific findings of fact. “The principal asset owned by [the Decedent] was his shares in the M.D. |/Thompson and Son Co[mpany]. This family owned company owns very substantial assets including farm land and banking interests. M.D. Thompson was [the Decedent’s] father. [The Decedent] had two brothers ... and two sisters.” During the course of the marriage, the Decedent executed a series of pour-over wills and inter vivos revocable trusts in 2002, 2004, and 2009. The first will and trust were created on September 19, 2002, and on that same date, the Decedent signed a bill of sale “in which he transferred an extensive amount of stocks, investment accounts, and 409.09 shares of M.D. Thompson & Son Co. common stock from his individual name to the Trust. This indicates that [the Decedent] owned the stock prior to the transfer to the Trust.” The Decedent was the grantor and the trustee of the Trust, and he retained the power to revoke or amend the Trust during his lifetime.
The circuit court’s findings continued as follows. Early in 2008, Appellee was diagnosed with breast cancer. In mid-2008, the home in which Appellee and Decedent were living in Heber Springs was contaminated with mold, and they left the home while remediation took place. They agreed that the Decedent would return to his home in McCrory and Appellee would go to Memphis to sell some real properly she owned there. While in Memphis, Ap-pellee suffered a stroke in October 2008. She returned to the home in Heber Springs in December 2008. By 2008, the Decedent’s health was precarious, and he had a medical history of heart disease, type-2 diabetes, and dementia, as well as other health-related complications. He was hospitalized for dehydration in February 2009, and upon discharge, Appellant took the Decedent to either an assisted-living facility or a nursing home. | aThe Decedent executed the 2009 Will and Trust while he was in the nursing home, where he remained until his death in 2010.
As noted, for reasons discussed in detail later herein, the circuit court’s order concluded that in making his 2009 Will and Trust, the Decedent intended to deprive Appellee of her marital rights to his property. The order also found that Appellee’s election to take against the will was valid and thus directed that the assets of the Trust be used to calculate Appellee’s elective share. The circuit court stated in its order that, because it had ruled that the Trust was an attempt to deprive Ap-pellee of her elective share, there was no need for the court to address the issues of whether the 2009 Will had been executed under undue influence, whether the Decedent died intestate, or whether the 2004 Will and 2004 Trust had become operative. This appeal followed.
Appellant asserts four points for reversal of the circuit court’s order. First, Appellant contends that the elective share of a surviving spouse is limited to property owned by the deceased spouse at the time of his or her death, and the circuit court therefore erred in interpreting Arkansas Code Annotated section 28-39-401(a) (Repl.2012) to include the assets of the Trust in the Decedent’s Estate. Second, Appellant contends that the evidence does not support the finding that Appellee was defrauded of her statutory rights to the Decedent’s property. Third, Appellant contends that Appellee failed to prove fraud on her marital rights. Fourth, Appellant contends alternatively that, if it is found that the Decedent intended to defraud Appellee of her marital rights, then the Trust property must be distributed according to the terms of the 2004 Trust.
IfiThe construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity. Anna Flippin Long Trust v. Holk, 315 Ark. 112, 864 S.W.2d 869 (1993). Subsequent to the passage of amendment 80 to the Arkansas Constitution, circuit court jurisdiction now includes all matters previously cognizable by circuit, chancery, probate, and juvenile court. First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005) (citing amendment 80, § 19(B)(1); Ark. Sup.Ct. Admin. Order No. 14, § 1(a), (b); and In re Implem. of Amend. 80, 345 Ark. App’x 664 (2001)). This court has traditionally reviewed matters that sounded in equity de novo on the record with respect to factual questions and legal questions. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. We have stated repeatedly that we will not reverse a finding by a trial court in an equity case unless the finding was clearly erroneous. Id. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all the evidence is left with a definite and firm conviction that a mistake has been committed. Id. We also give due deference to the superior position of the chancellor or circuit court to view and judge the credibility of the witnesses. Id. These common-law principles continue to apply after the adoption of amendment 80 to the Arkansas Constitution. Id.
Appellant’s first argument for reversal of the circuit court’s order is that the circuit court erred in ruling that the property owned by the Trust at the time of the Decedent’s death should be subject to Ap-pellee’s elective share because the Decedent did not own the Trust property at the time of his death. Appellant argues that the circuit court’s ruling violates the 17GeneraI Assembly’s statutory scheme for the creation and administration of trusts, Arkansas Code Annotated sections 28-73-101 to -1106 (Repl.2012) (the Arkansas Trust Code), and renders invalid other provisions for the transfer of property upon death that are outside the Arkansas Probate Code. He maintains the general proposition that, upon a settlor’s death, title to property held in an inter vivos revocable trust becomes irrevocable, such that, regardless of the nature of the rights retained over the assets by the settlor during his lifetime, the properly ceases to be owned by the settlor upon his death and is removed from his or her estate.
Our review of the circuit court’s order reveals that the court understood correctly the concept of an inter vivos revocable trust, because the circuit court did not rule that the Trust was invalid for all purposes or that the assets of the Trust would be included in the Decedent’s Estate for all purposes. Rather, the circuit court ruled that the assets of the Trust would be included in the Estate only for the limited purpose of calculating Appellee’s elective share. This ruling was expressly linked to the circuit court’s finding that the Decedent had intended to deprive Appellee of her marital share. Simply, Appellant reads much more into the court’s ruling than is actually there. Moreover, Appellant’s first point for reversal completely overlooks the issue of the effect of the alleged fraud on a spouse’s marital rights.
The circuit court expressly acknowledged in its order that “[tjhere has been no dispute that the H. Ripley Thompson Revocable Trust became irrevocable upon Ripley’s death.” The circuit court’s order also acknowledged that Appellant “does not dispute that [Appellee] is the surviving spouse of Ripley and that she is entitled to her elective share of the Estate.” |sThe issue between the parties, as the order observed, is whether the assets of the Trust should be included in the Estate when determining Appellee’s elective share. The circuit court ultimately concluded that the assets of the Trust would be included in the Decedent’s Estate for the limited purpose of calculating Appel-lee’s elective share due to the fact that the Decedent’s intent in amending the Trust in 2009 was to deprive Appellee of her marital rights to his property. For the reasons explained below, we cannot say that this finding was clearly erroneous.
Arkansas law gives a surviving spouse the right to elect to take a share of the estate of his or her deceased spouse against the will of the deceased. Ark.Code Ann. § 28-39-401. This elective share is the equivalent of the spouse’s dower or curtesy rights, as well as any homestead rights and statutory allowances. See section 28 — 39—401(b)(1), (2). The statute provides in pertinent part as follows:
28-39-⅛01. Rights of surviving spouse — Limitations.
(a) When a married person dies testate as to all or any part of his or her estate, the surviving spouse shall have the right to take against the will if the surviving spouse has been married to the decedent continuously for a period in excess of one (1) year.
(b) In the event of such an election, the rights of the surviving spouse in the estate of the deceased spouse shall be limited to the following:
(1) The surviving spouse, if a woman, shall receive dower in the deceased husband’s real estate and personal property as if he had died intestate. The dower shall be additional to her homestead rights and statutory allowances; and
(2) The surviving spouse, if a man, shall receive a curtesy interest in the real and personal property of the deceased spouse to the same extent as if she had died intestate. The curtesy interest shall be additional to his homestead rights and statutory allowances ....
li)Ark.Code Ann. § 28-39-401(a)-(b)(2).
Citing Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993), the circuit court in the present case correctly observed in its order that a surviving spouse’s elective-share interest can vest only in property that the deceased spouse owned at the time of death. However, as the circuit court went on to observe, “fraud practiced upon the surviving spouse can, under certain circumstances, result in property being held by a constructive trust.” This too was an accurate statement of the law by the circuit court, as stated by this court almost a century ago:
The general rule is that if a man or woman convey away his or her property for the purpose of depriving the intended husband or wife of the legal rights and benefits arising from such marriage, equity will avoid such conveyance, or compel the person taking it to hold the property in trust for or subject to the rights of the defrauded husband or wife.
West v. West, 120 Ark. 500, 504, 179 S.W. 1017,1018 (1915).
As noted, Arkansas law is well settled that the surviving spouse’s elective interest can vest only in property that the deceased spouse owned at the time of death. Gregory, 315 Ark. 187, 866 S.W.2d 379. And, as the circuit court observed in this case, the parties did not dispute that the Trust had become irrevocable upon the Decedent’s death. Thus, generally speaking, in the absence of fraud, the assets of the Trust would have remained assets of the Trust after the Decedent’s death. That is not the case here, however, as the circuit court found that the Decedent did have the intent to defraud his spouse’s marital right to property. As the foregoing citation to West demonstrates, even before the use of inter vivos revocable 1 mtrusts became commonplace, Arkansas law had long recognized the effect of fraud on a surviving spouse’s marital rights, and our equity courts had long provided a remedy to surviving spouses for fraud on their marital rights. This court has made clear the following:
This court has recognized that the surviving spouse’s right to an elective share is inviolate. This is true despite our acknowledgment that a spouse’s decision to elect to take against the will at times rebuffs the testator’s testamentary wishes. The elective share provisions are designed to strike a balance between a testator’s right to control the distribution of his or her properly for life, while preserving the State’s interest in protecting the surviving spouse.
Hamilton v. Hamilton, 317 Ark. 572, 578, 879 S.W.2d 416, 419 (1994) (citations omitted).
As clearly stated in Hamilton, this court has zealously protected a spouse’s marital rights in properly, even when a spouse’s assertion of those rights is contrary to a testator’s right to control the distribution of his property upon his death. However, while Arkansas law has long recognized the concept of fraud on a surviving spouse’s marital rights to property and an elective share, the question whether the assets of an inter vivos revocable trust are subject to the elective claims of a defrauded surviving spouse is an issue that has not been developed by this court. We develop this area of the law later in this opinion. Suffice it to say here that, for purposes of addressing Appellant’s first point, the circuit court’s finding that the Trust assets were to be considered part of the Estate for the limited purpose of calculating Ap-pellee’s elective share was expressly linked to the finding of fraud on Appellee’s marital rights and was not a broad ruling that invalidated the Trust entirely or directed that the Trust assets be included in the Estate for all purposes. Appellant’s first point for reversal paints too broad a Inpicture of the circuit court’s ruling and ignores the effect of the allegation of fraud on Appellee’s marital rights; therefore, it is wholly without merit.
As his second point for reversal, Appellant challenges the circuit court’s finding that the Decedent intended to defraud Appellee of her statutory rights to his property. The only Arkansas case addressing such an issue is Richards v. Worthen Bank & Trust Co., 261 Ark. 890, 552 S.W.2d 228 (1977). In Richards, this court addressed the argument that the creation of an inter vivos revocable trust amounted to fraud on a surviving spouse’s marital rights:
Appellant also argues that the inter vi-vos trust is an illusory scheme or device to defeat the appellant’s marital rights even though no “evil” intent existed. It is true that appellant will immediately receive less from the trust proceeds than if the trust were ruled invalid. However, this is not the test to be applied in determining if a trust is a fraud as to appellant’s marital rights. The important consideration is the settlor’s intent. Potter v. Winter, 280 S.W.2d 27 (Mo.1955); Sherill [Sherrill] v. Mallicote [57 Tenn.App. 241], 417 S.W.2d 798 (Tenn.Ct.App.1967); Rose v. St. Louis Union Trust Co. /43 Ill.2d 312], 253 N.E.2d 417 (111.1969); and In re Steck’s Estate [275 Wis. 290], 81 N.W.2d 729 (Wis.1957). Here the settlor was attempting to make adequate arrangements for the care of his wife, whose health was apparently failing. In addition to the provisions of the inter vivos trust, previously recited, Garland’s will left his home to his wife for her life with the remainder to her sister provided she lived with appellant and cared for her for a certain length of time following his demise. The residue of his property went into a testamentary trust from which, after one year, appellant was to receive $300 per month income and additional funds from the principal and earnings of the trust were to be distributed to appellant if necessary for her care. Any assets left in the trust following appellant’s death would be distributed to certain named relatives of each of them. Here it is apparent that Garland’s inter vivos trust was not a scheme or device to defeat his wife’s marital rights. To the contrary, it appears to be an additional provident method of assuring her future care and support. The chancellor was correct in ruling that the trust was not a scheme to defraud appellant of any property rights.
Richards, 261 Ark. at 893-94, 552 S.W.2d at 230-31. Thus, in Richards, this court held that the settlor’s intent is the appropriate and applicable test to be used when determining whether an inter vivos revocable trust constitutes a fraud on a surviving spouse’s marital rights to | ^property. Accordingly, that is the test to be applied in the present case, and that is the test the circuit court correctly used here.
In addition to Richards, the circuit court relied on Karsenty v. Schoukroun, 406 Md. 469, 959 A.2d 1147 (2008), for the proposition that the settlor’s intent should be evaluated on a case-by-case basis considering all relevant facts and circumstances. We are of the view that the circuit court’s reliance on Karsenty for this proposition was consistent with the views expressed in the cases from other jurisdictions cited by this court in Richards. See, e.g., Potter v. Winter, 280 S.W.2d 27 (Mo.1955) (“[I]n treating with plaintiff-appellant’s contention of fraud, we are concerned only with the husband-grantor’s intent. And in determining his intent we may consider and weigh all of the facts and circumstances in evidence.”); see also Sherrill v. Mallicote, 57 Tenn.App. 241, 417 S.W.2d 798, 802 (1967) (“In cases of this type there can be no fixed rule of determining when a transfer or gift is fraudulent to a wife; each case must be determined on its own facts and circumstances.”); see also In re Steck’s Estate, 275 Wis. 290, 81 N.W.2d 729 (1957).
The fact that the widow received less at his death under the trust than she would have if he had disposed of all his personal property by will is not in itself indicative of fraud on her.... “[T]he amount of proof necessary to stamp such a transfer as fraudulent depends in every instance upon the particular facts existing in each case.”
Steck’s Estate, 81 N.W.2d at 734 (quoting Sederlund v. Sederlund, 176 Wis. 627, 187 N.W. 750, 752 (1922)).
In the present case, the circuit court applied the intent test adopted in Richards, discussed some of the factors considered by the Maryland court in Kar-senty, and concluded quite clearly and unequivocally that, in this case, the Decedent’s “intent, as the Grantor of the 11S2009 H. Ripley Revocable Trust was to defraud [Appellee] and deny her statutory rights, pursuant to Arkansas Code Annotated § 28-39-401(a) to the property held by the 2009 Trust.”
The circuit court went on to state the bases for that opinion. The circuit court first noted that the 2002 Trust and the 2004 Trust provided Appellee with income for life from the Trust’s net income, gave her the right to invade the principal for extraordinary expenses, and gave her annual withdrawal rights of $5,000 or 5% of the net fair-market value of the principal on the date of withdrawal. In contrast, the circuit court observed, the 2009 Trust provided nothing to Appellee except the $100,000 bequest, but only if she did not contest the 2009 Will and Trust. The circuit court acknowledged the finding of the Richards court that the grantor in that case clearly made provisions for his wife that were consistent with his ability to provide for her given the size of his estate. With that in mind, the circuit court in the present case observed that the Decedent’s property was valued at more than $6 mil lion and that a “$100,000.00 bequest if she does not contest the Will and Trust falls woefully short of providing for his wife upon his death.”
The circuit court observed in its order that while Appellee and the Decedent lived together, he showered her with gifts of great value, including cash, and that while they were living together he ensured that she would be provided for after his death through his 2002 and 2004 Wills and Trusts. The circuit court further observed that it was not until they were separated, and after she had filed for separate maintenance, that he redrafted his 2009 Will and Trust “in order to leave her basically nothing.” The circuit court thus found that in the early 114years of the marriage, the Decedent provided for Appellee quite well and had no intent to deprive her of her marital rights to his property, but that in the latter years of the marriage, the Decedent stopped providing for Appellee to the extent that she “felt impelled to file for separate maintenance.” The circuit court found that the Decedent’s intent to deprive Appellee of her marital rights manifested sometime in 2008 when his health had begun to deteriorate and the parties were no longer living together.
The circuit court noted other indicators of the Decedent’s intent to deprive Appel-lee of her marital rights to his property, such as the change in Appellee’s status as trustee. In the 2002 Trust and the 2004 Trust, Appellee was to be a co-trustee; but, with the 2009 amendment, the Decedent and Vance Thompson were named as co-trustees; Appellee was not. Because Appellee was removed from all participation in the 2009 Trust, the circuit court concluded that “[c]learly, [the Decedent’s] intent was to deprive her of her statutory rights to his property.” The circuit court pointed out still further indicators of the Decedent’s intent, such as the fact that the 2009 Will and Trust had been executed while he was in a nursing home and that less than a year had passed between the execution of the 2009 Will and Trust and the Decedent’s death. The circuit court also noted the fact that the Decedent gave Appellee copies of the 2002 Will and Trust, as well as copies of the 2004 Will and Trust, but did not give her a copy of the 2009 Will and Trust. The circuit court found that this was further evidence of the Decedent’s intent to deprive Appellee of her statutory rights to his property and to keep her uninformed of his actions and intentions.
11sThe circuit court’s ultimate conclusion was that “[the Decedent’s] intent was to deprive [Appellee] from receiving from his testamentary estate,” and therefore that her “election to take against the 2009 Will and Trust ... [was] valid” and that “the assets transferred to the Trust by [the Decedent] must be included in the calculations to determine [Appellee]’s elective share.
The circuit court stated multiple bases for its finding that the Decedent intended to deprive Appellee of her marital rights to his property. There is substantial testimony at the hearing to support these findings, but we need not recite such testimony because, as the circuit court so carefully pointed out in its order, the Decedent’s intent to deprive Appellee of her marital rights in his property is evident on the face of the Will and Trust documents. Based on all the facts and circumstances considered by the circuit court, we cannot say the finding that the Decedent intended to deprive Appellee of her marital rights in his property by transferring his property to the 2009 Trust was clearly erroneous.
In reaching our conclusion, we are mindful of Appellant’s citation to Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984), for the proposition that a spouse is under no obligation to provide anything to his or her spouse. However, what Appellant overlooks about the Dahlmann case is its recognition of a remedy if a spouse does not provide for his or her surviving spouse by permitting the surviving spouse to elect to take against the will. This court stated as follows:
A spouse has the right to make a will which excludes a surviving spouse or provides for a bequest or devise in lieu of dower. That a surviving spouse may take against a will prevents any injustice that might result from the spouse’s exercise of that right.
11 Estate of Dahlmann, 282 Ark. at 298, 668 S.W.2d at 521. Thus, while it is true that, as Appellant argues, a testator can devise his property however he chooses and can exclude or disinherit his spouse, the testator’s choices do not prevent the surviving spouse from gaining his or her elective share.
Likewise, we are mindful of Appellant’s argument that the Decedent made substantial inter vivos gifts to Appellee that should be considered in lieu of her elective share. The circuit court carefully considered these gifts and observed that Appellant’s argument did not take into consideration that some of these gifts had been made while the 2002 Will and Trust and the 2004 Will and Trust were in effect and certainly well before the 2009 Will and Trust took effect. Accordingly, the circuit court ruled that these inter vivos gifts should not be considered in lieu of any statutory testamentary requirements because they were not understood to be of a testamentary nature when they were given, regardless of any express statement to the contrary in the 2009 Will and Trust. Our review of the gifts reveals that they had been given in 2001, 2006, and 2008, well before the 2009 Will and Trust were executed. Therefore, we cannot say that the circuit court was clearly erroneous in finding that these inter vivos gifts should not be considered in lieu of Appellee’s elective share.
As his third point for reversal, Appellant contends that, in order to prove that the Decedent’s actions in amending the Trust in 2009 constituted a fraud on her marital rights, Appellee was required to meet the elements of a fraud claim with evidentiary proof, and that she failed to do so. This argument is without merit for several reasons.
|17First, Appellant cites no authority for the proposition that “fraud on marital rights” as that phrase is used in the estate-planning context is to be analyzed under the traditional test for common-law fraud. Indeed, we are of the view that this court rejected that idea in Richards when we adopted the test of the settlor’s intent to be used in determining if an inter vivos revocable trust is purposed to deprive a spouse of his or her marital rights to property. Second, the circuit court in this case did not apply the test for common-law fraud and made no ruling with respect to the elements of common-law fraud. Finally, we note that other courts have expressly rejected the idea that “fraud on marital rights” in this context is akin to common-law fraud. See, e.g., Karsenty, 959 A.2d 1147, 1173 (quoting White v. Sargent, 875 A.2d 658, 666 (D.C.2005)) (“[FJraud in the classic sense” is not at issue and a court should instead look for an “improper circumvention of the marital rights of the surviving spouse.”). Thus, consistent with our adoption of the settlor’s intent test in Richards, we conclude that Appellee was not required to prove the elements of common-law fraud.
As his fourth and final point for reversal, Appellant challenges the circuit court’s ruling that Appellee be allowed to take her elective share from the 2009 Will and Trust and that this elective share would include the assets the Decedent had transferred to the Trust. Appellant argues that in so ruling, the circuit court determined that it was not necessary to decide whether the Decedent died intestate or whether the 2004 Will and Trust were revived; instead, argues Appellant, it fashioned a new form of relief and erroneously augmented the Decedent’s Estate. In support of his argument, Appellant points out that the General Assembly did not adopt as part of the Arkansas Probate Code, Arkansas Code Annotated | ,s§§ 28-1-101 et seq., the concept of an augmented estate that would include trust property or other nonprobate transfers of a decedent. Appellant maintains that the proper remedy would be to set aside or invalidate, as fraudulent, the 2009 Trust and distribute the Trust assets according to the terms of the 2004 Trust.
As previously noted, this court in Richards adopted the test of the settlor’s intent to determine whether an inter vivos trust amounted to a fraudulent scheme to defeat a surviving spouse’s marital rights to property and concluded on the facts there presented that no such intent to deprive the spouse of her marital rights existed. Because the Richards court did not find an intent to deprive the spouse of her elective share, the court did not go on to consider what the effect of such an intent would be if it had been determined to exist. Accordingly, that is the area of law for this court to develop in this case.
The circuit court ruled that the effect of the Decedent’s intent to defraud Appellee of her marital rights was that the assets of the Trust would be included in the Estate for the limited purpose of calculating her elective share. Such a ruling leaves the Trust intact for all other purposes. This is a desirable result, we think, because the inter vivos trust may well have accomplished other lawful goals of the Decedent as settlor. This result is therefore consistent with the Arkansas Trust Code and the Arkansas Probate Code. We are of the view that this is the better rule of law than to invalidate the Trust entirely. Accordingly, we hold that once a circuit court determines that a settlor had the intent of depriving his or her spouse of marital-property rights when creating or amending an inter vivos revocable trust, the effect of that intent is to have the trust assets included in the settlor’s estate for the limited purpose |1sof calculating the surviving spouse’s elective share. The intent to defeat the marital rights or the elective share will not invalidate any other lawful purpose of the trust.
We are confident that we have reached the better rule of law after reviewing the cases from other jurisdictions this court cited, with approval, in Richards. In particular, we note the observation made by the Supreme Court of Illinois that “the Missouri cases have held unequivocally that merely because a trust is deemed void as to the widow’s right does not necessarily make it void as to the rights of other beneficiaries.” Rose v. St. Louis Union Trust Co., 48 Ill.2d 812, 253 N.E.2d 417, 419 (1969). We see no reason to call into question the validity of all inter vivos revocable trusts by holding that a settlor’s intent to defeat his or her surviving spouse’s elective share will invalidate an inter vivos revocable trust entirely. We therefore affirm the circuit court’s well-reasoned finding that when a settlor creates an inter vivos revocable trust with the intent to deprive his or her surviving spouse of marital rights to property, then the trust assets will be included in the settlor’s probate estate for the limited purpose of calculating the elective share. We so hold.
We have considered Appellant’s four arguments for reversal of the circuit court’s order, and we cannot say that the circuit was clearly erroneous in any respect. Accordingly, we affirm the order appealed.
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KENNETH S. HIXSON, Judge.
| jAppellant Daniel Ford appeals the September 2013 order of the Yell County Circuit Court that terminated his parental rights to his medically fragile four-year-old daughter, AP, born in August 2009. Ford argues that the trial court clearly erred in finding that there was clear and convincing evidence (1) that termination of his parental rights was in AP’s best interest and (2) that DHS established the “other factors or issues” ground. The biological mother does not appeal the trial court’s termination of her parental rights. The Department of Human Services (“DHS”) and the child’s attorney ad litem filed a joint appel-lee brief, asserting that termination of Ford’s parental rights to AP was correct and should be affirmed. After conducting a de novo review, we are not left with a distinct and firm impression that a mistake was made in this instance. We affirm the trial court’s findings as not clearly erroneous.
|2We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark.Code Ann. § 9-27-341 (Supp. 2013); M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). In making a “best interest” determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted, and (2) the potential of harm to the child if custody is returned to a parent. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. Adoptability is not an essential element but is rather a factor that the trial court must consider. Id. Likewise, the potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in broad terms. Id. It is the “best interest” finding that must be supported by clear and convincing evidence. Id.
Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Credibility determinations are left to the fact-finder, here the trial court. Moiser v. Ark. Dep’t of Human Servs., 95 Ark.App. 32, 233 S.W.3d 172 (2006).
|sThe intent behind the termination-of-parental-rights statute is to provide permanency in a child’s life when it is not possible to return the child to the family home because it is contrary to the child’s health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2013). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); Cole v. Ark. Dep’t of Human Servs., 2012 Ark. App. 203, 394 S.W.3d 318; Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. A parent’s past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160.
With this legal framework, we examine the course of events in this DHS case. Other than the few weeks in the hospital following her birth, AP was in DHS custody her whole life. AP was born to a homeless, unstable mother in Little Rock, Arkansas, at the UAMS hospital. AP was transferred to Arkansas Children’s Hospital to meet her medical needs. AP was born with microencephaly (a consequence of gestational exposure to a virus known as “CMV”), ventriculomegaly, an underdeveloped brain, a defect in the corpus callosum, and scoliosis. DHS took emergency custody of AP in late August 2009, when AP was due to be discharged from Children’s Hospital. AP was then transferred to Arkansas Pediatric Facility (“APF”) in North Little Rock, Arkansas, which provides constant nursing and rehabilitative care for children such as AP.
|4AP was adjudicated dependent-neglected in October 2009 based on the mother’s instability, her history with DHS, her homelessness, and the child’s serious needs. The goal was set as reunification. Testimony indicated that Ford, who lived in an apartment in Springdale with his mother, was the father of AP. He was not married to the biological mother.
The case was set for review in January 2010, after which Ford was ordered to complete parenting classes, submit to a psychological evaluation, cooperate with DHS, and attend anger-management classes. The case was set for another review in May 2010. The biological mother had absented herself and never appeared before the trial court in this case at any point.
By May 2010, Ford was found to be in compliance with the case plan and court orders, but AP was less than a year old and remained in very fragile condition. A permanency-planning hearing was set for August 2010, after which DHS retained custody of AP.
A fifteen-month-review hearing was conducted in November 2010. Ford had visited AP at the North Little Rock nursing facility on Saturday afternoons, but he was ordered to cooperate with DHS and not sleep during visits. Another permanency-planning hearing was conducted in June 2011, AP remained too medically fragile for Ford to care for her. Review and permanency-planning hearings were con ducted in December 2011, May 2012, and November 2012. Over those months, the trial court recognized that Ford loved his daughter and had continued to exercise some Saturday afternoon visits with her.
In May 2013, the trial court changed the permanency goal to adoption or guardianship, permitting DHS to file a petition to terminate parental rights. DHS filed its petition in July |fi2013, asserting that Ford did not understand the severity of AP’s medical issues or was indifferent to those issues, and that AP’s health and safety would be in danger if Ford had custody and took her home, as was his desire. This “other factors or issues” ground cited by DHS is found at Ark.Code Ann. § 9-27-341(b)(S)(B)(vii)fa):
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
The hearing on DHS’s petition was conducted in August 2013. The evidence established that AP’s profound developmental delays and medical needs required specialized around-the-clock care. At four years old, AP cannot walk, speak, or perform any self-care and is unlikely to develop those abilities. Her communication is limited to smiling or crying. She functions on the level of an infant. AP requires a wheelchair for mobility, which she cannot get in or out of or operate. AP requires an aspirator for respiratory support and a feeding tube for nutritional support. AP receives occupational, physical, and speech therapy. She will require future orthopedic surgeries to ease discomfort in her spine and extremities.
The evidence also established that Ford, a young man in his early twenties, lived with his mother, Lorie Ford, in an apartment in Springdale, Arkansas. Ford also had custody of his almost-two-year-old son from another relationship. Ford stated that he had worked for about a year at a local poultry plant in the hatching department, and before that, he took “odd and end jobs.” He did not have a driver’s license; he said his mother took him to work or he walked to work, which was down the street from their apartment.
| sFord came to Little Rock to visit AP every other weekend in the first few years of AP’s life, but in the last year, he visited her only three times. Ford testified that he thought he and his mother could care for AP in their home. He said that former medical staff at the nursing facility told him that AP could live at home, and he believed he could handle it. Ford stated that he worked all day long, but his mother would be home, and he thought he could take care of AP at night because, “I don’t get no sleep anyway.” Ford testified that he had no concrete plan for AP’s care, but that he wanted custody so that he could take her home and get everything set up for her. He stated, “I see people in Springdale all the time with kids with holes in their throat and all kinds of problems with their kids and they got all the help they could possibly need.” He believed that he could get nurses from a Fayetteville facility to come to his home to help periodically. Ford stated that he did not have any other witnesses on his behalf, other than his mother, because no one else thought he would get custody of AP. Ford testified that he had a letter reciting that he could care for AP, but he did not bring it to court. Ford stated that if there was a second medical opinion that AP needed to stay in a nursing facility, then he would abide by that opinion. Otherwise, he wanted AP at home.
Ford’s mother testified that she was willing to be AP’s guardian, but that she would take AP out of the nursing facility if she thought they were not providing appropriate care. She said that she did not know what AP’s medical conditions were, but she thought that AP should come home, in part because she thought that AP was being neglected at the North Little Rock facility.
|7Terri Lovin, an administrator at the Arkansas Pediatric Facility, testified that she had been involved with AP’s care throughout her stay there. She described AP’s medical diagnoses and profound developmental delays and stated that AP was “totally dependent for all of her activities of daily living” on direct-care staff and always would require twenty-four-hour care. She said that AP needed a team of nurses, doctors, therapists, and direct-care staff, and that AP’s future held many doctor’s visits and orthopedic surgeries. Lo-vin opined that it would be very difficult to find constant in-home nursing care where Ford lived. Lovin said that despite the offer of training to Ford and his mother on how to safely feed AP, they did not demonstrate mastery of those skills. She was concerned about Ford’s unrealistic expectations of AP, recalling him saying that AP did not crawl and walk because she was “lazy” or not exposed to children who could. Lovin said that Ford could not properly care for AP in his home, although Ford thought he could.
DHS supervisor and case worker Marie Lawrence testified that the goal of this case changed to adoption or guardianship when Ford’s stated intent was to take AP home, against all advice that this was unwise and unsafe. Lawrence opined that AP was adoptable in spite of her severe medical and developmental needs, and she knew of three similar adoptions that had taken place, although it would be a challenge. On DHS’s behalf, Lawrence urged termination of parental rights to give AP that opportunity, with adoption being preferred over guardianship. She stated that DHS policy required that AP not linger in DHS custody. The child’s attorney ad litem agreed with DHS’s recommendation to terminate Ford’s parental rights.
| sThe trial judge remarked from the bench that, after four years and despite the provision of rehabilitative services, Ford did not comprehend that he could not just take AP 'home. Ford left the courtroom in an emotional outburst. Subsequently, the trial court entered an order terminating Ford’s parental rights. In that order, the trial court found that Ford demonstrated a lack of understanding as to the severity of his daughter’s medical conditions accompanied by a belief that he could care for AP in his home against all medical evidence. This was the basis for the “other factors” ground that applied to Ford. The order recited that it would be in AP’s best interest to terminate parental rights, the trial court having considered the testimony about the likelihood that AP would be adopted despite the severity of her medical diagnosis and the potential harm to AP if custody was given to Ford. The order also provided that Ford and his mother would be permitted continued visitation with AP if they behaved appropriately. Ford appealed this order.
Ford contends that the trial court’s finding that the “other factors or issues” ground was established is clearly erroneous because Ford only “hoped” he could bring AP home some day. Ford adds that AP is unlikely to ever be adopted or to leave the medical facility, rendering termi nation of his parental rights not in the child’s best interest.
This is an unfortunate and unique case. Ford’s incapacity to understand the level of AP’s needs and his failure to prepare for her needs meant that his parental rights had to give way to the child’s need for permanency and safety. See J.T. v. Ark Dep’t of Human Servs., supra. Ford’s testimony reflected an apparent intent to take AP out of the nursing facility and to his home as soon as he had the right to do so. Termination of parental rights is an extreme |flremedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Pine v. Ark. Dep’t of Human Servs., supra. Because we are not left with a distinct and firm impression that a mistake was made, we affirm the trial court’s order.
Affirmed.
HARRISON and BROWN, JJ., agree. | [
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DAVID M. GLOVER, Judge.
_JjLecia Templeton sustained a compen-sable back injury on July 12, 2010, while working for Dollar General; reached the end of her healing period on September 27, 2011; and was awarded a fifteen-percent anatomical impairment rating in connection with that injury. She subsequent ly sought wage-loss disability in addition to her anatomical loss. The Arkansas Death and Permanent Total Disability Trust Fund deferred to the outcome of the litigation. Following a hearing, the ALJ denied her claim. The Arkansas Workers’ Compensation Commission affirmed and adopted the ALJ’s decision, and this appeal followed.
Templeton raises two points of appeal: 1) the Commission’s conclusion that the modified employment offered by Dollar General constituted a bona fide offer of employment is not supported by substantial evidence, and 2) she proved by a preponderance of the credible evidence that she is permanently and totally disabled as a result of her admittedly compensable |2injuries; alternatively, she proved by a preponderance of the credible evidence that she is entitled to wage-loss disability. We affirm.
Hearing Before ALJ
At the hearing before the ALJ, substantial testimony was given, primarily by Templeton. She testified that she worked for Dollar General a total of four years; she was hired as a cashier and later promoted to a management position called a third key. She explained her job duties as third key included stocking merchandise, overseeing employees, and doing paper work. According to her, the paperwork took approximately one hour out of her eight- to nine-hour work day. She testified she was fifty-one years old; she graduated from high school but had no other special training or education; and she had worked in retail for the past thirty years, which was the only type of work she had ever done.
Templeton explained that she had three back surgeries. She testified as follows. She underwent the third surgery because her back was getting worse and the pain had increased to the point she could not handle it; her leg stayed swollen much of the time; and she lost strength in her lower back and could not walk, sit, or stand for long periods of time. When her leg “went out,” she would fall if she did not have something to lean on. Her third surgery provided relief, but she continued to have symptoms. Her right leg sometimes involuntarily drew up, curling from the toe to the hip and staying that way for ten to fifteen minutes and she could not do anything until it stops. Dr. Ricca released her with a fifteen-percent-impairment rating, which Dollar General accepted and paid weekly. Dr. Ricca’s restrictions for her were that she be allowed to sit, stand, and lie down as needed.
IsTempIeton offered this further testimony. She was currently able to lift five to seven pounds; she can lift a carton of milk but feels a strain in her back when she does; the heaviest item she has lifted since her injury was ten pounds; she can lift a trash bag full of trash; she can bend some but not completely; she can sit for fifteen to twenty-five minutes without standing up and, if she sits longer, her right leg starts to go numb and she gets a pinching, burning pain in her back; standing stretches her leg and back and relieves some of the discomfort; and she can stand for fifteen to twenty-five minutes but if she stands for too long, her right leg goes out; and she has fallen twice but tripped more often.
She testified that she has a brace to keep her toes up; can walk approximately a block to a block and a half; walking further causes her back and leg to go out; she does not sleep well at night because she has cramping and drawing in her back and leg; a good day for her is when her pain level is at four; on good days, she will wash some dishes and do some dusting; on a bad day, her pain level is at seven or eight and she does not engage in any activities; four out of seven days are bad; she can no longer do yard work and gardening, which she used to enjoy; she can no longer ride horses; she feeds and brushes her two horses at times but nothing else; she can sit on the ground and pick vegetables; she can no longer go shopping with her seventeen-year-old daughter; and she can no longer coach softball.
As Templeton explained, when she attempted to return to work after the third surgery, with the same restrictions as before, she stocked shelves and was given an office chair with no arms to sit in and stock inventory from a shopping cart; the cart items were level with her knees or chest when she was sitting in the chair; to take an item out and put in on the shelf, |4she would have to turn and twist around and either bend down or reach up (even though her doctor restricted her from twisting and bending); the repeated twisting and bending caused her discomfort; getting up and down to move the chair and cart caused pain in her leg; the shelves were six-and-one-half feet tall, and she was asked to stock the top shelves but she could not because of the reaching and stretching involved; and no employee was assigned to help her with the cart, but she received help when she asked for it.
It was Templeton’s additional testimony that Dollar General discussed with her the possibility of working as a cashier, but she said that some of the items she would have been required to scan weighed more than ten pounds and she would have to twist and bend frequently. She said she would have had to stretch to reach the register keys while sitting. She testified that normally only two employees were on duty during any given shift, but that when she returned to work after her third surgery, Dollar General brought in a third employee because she was not able to perform the duties an employee would be required to perform — “essentially paying a third employee just to accommodate having me there.”
Templeton testified that part of her work restrictions was that she be allowed to lie down when necessary. She said Dollar General did not allow her to he down in the store (there were discussions about providing her a place to lie down on a cot near the cashier, but it was a very public area and it was never done); lying down in her truck was embarrassing; and she would usually lie down every two to three hours. She said she was scheduled to work four to six hours a day, but sometimes she could not work a full day because of her back | ¡¡troubles. Also, she stated that some of the store managers were irritated by the fact that her work was restricted.
She explained she ultimately resigned her employment because she felt she had done all she could physically; she had lost function in her right leg; she felt belittled; she thought if she kept working, it would result in . additional surgeries; however, she feels her back is stronger since quitting because she is no longer forced to twist and bend; her condition got worse between her third surgery and when she resigned; and she is not aware of any job at Dollar General she thinks she would be able to do.
On cross-examination, Templeton acknowledged her work experience: she had owned a business from 1989 to 2003 that sold candles and decorative household items; to conduct that business, she had learned how to sell things on eBay; she did some bookkeeping for her husband’s construction business from 1982 until 1999, when her husband went on social-security disability; and she also previously worked as a manager for Walmart, supervising twenty employees. She confirmed that her last surgery was in April 2011 and that it made her back stable and helped with the pain. She acknowledged that Dollar General allowed her to lie down in her truck as needed and that Dollar General brought in an additional employee to do the work she was unable to do on her shift. She also acknowledged that she had stated in her deposition the work she was doing when she left Dollar General was within her restrictions, Dollar General continued to provide sedentary duty for her, and that if she had not resigned lRshe would still be working there. She stated that she currently receives a monthly award from Social Security Disability, has no intention of going to work, and has applied for no jobs.
Templeton acknowledged that in August 2009, she went to her family doctor and complained of back pain caused by muscle strain; she was prescribed Lorcet at that time; she was then working for Walmart; she had the prescription refilled in October 2009; her records noted chronic lumbar pain through 2009; in 2010, she complained of anxiety due to chronic pain; she again noted chronic lumbar pain in February 2010; and she resigned from Dollar General on December 10, 2011.
On redirect, Templeton explained that prior to July 12, 2010, she did not have any physical problems that affected her ability to work; she did not miss any time from work because of previous back problems; she would no longer be able to run the sort of business she had had because there was a lot of heavy lifting involved; her husband has back and neck problems; she could not perform bookkeeping duties because the medicine she takes makes her feel “spaced out” and unfocused; her Walmart job was not sedentary; and Dollar General never provided her any guarantee that they would continue to provide sedentary work for her.
Michael Templeton, Lecia’s husband, testified on her behalf. He has observed a tremendous difference in her physical function since her injury; she gets up during the night because of her pain and leg twitches; she moans and groans all night; there are things she is unable to do now; there has been a loss of consortium; her mind seems weak and tired; and her problems seem to affect her emotionally and psychologically, as well as physically.
17Tracy Voigt, Dollar General district-sales manager, testified by telephonic deposition. Her testimony basically consisted of explaining what Dollar General did to accommodate Lecia’s work restrictions.
The ALJ noted that Dr. Ricca referred Templeton for a functional-capacity evaluation, which determined that she had significant functional limitations but that, overall, she was able to perform sedentary work as defined by Department of Labor guidelines.
Standard of Review
In reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission’s findings, and the decision will be affirmed if it is supported by substantial evidence. Dismute v. Potlatch Corp., 2014 Ark. App. 176, 2014 WL 988922. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. When a claim is denied due to the claimant’s failure to prove entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires this court to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Id. Where there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id. Questions of weight and credibility are within the sole province of the Commission, which is not required to believe the testimony of the claimant or of any other -witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief Sykes v. King Ready Mix, Inc., 2011 Ark. App. 271, 2011 WL 1425033. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the Issame facts before them could not have reached the conclusions arrived at by the Commission. Id.
Discussion
For her first point of appeal, Templeton contends that the Commission’s finding that the modified employment offered by Dollar General was a bona fide offer is not supported by substantial evidence. For her second point of appeal, she challenges the Commission’s decision, contending alternatively that she had proved she was either permanently and totally disabled or that she was entitled to wage-loss disability benefits. These issues are intertwined and can best be discussed together.
Permanent and total disability means the inability, because of compensa-ble injury or occupational disease, to earn any meaningful wages in the same or other employment. Gibson v. Wal-Mart Assoc., Inc., 2012 Ark. App. 560, 2012 WL 4832269; Ark.Code Ann. § 11-9-519 (Repl.2012). When a claimant has been assigned an anatomical-impairment rating to the body as a whole, the Commission has the authority to increase the disability rating, and it can find a claimant totally and permanently disabled based upon wage-loss factors. Gibson, supra. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Id. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, including the claimant’s age, education, and work experience. Id. The claimant carries the burden of proving an inability to earn any meaningful wages in the same or other employment. Id,. The claimant’s motivation to return to work, or lack thereof, is a factor that can be considered |9when determining an employee’s future earning capacity. Meadows v. Tyson Foods, Inc., 2013 Ark. App. 182, 2013 WL 1007714.
Arkansas Code Annotated section 11-9-522 (Repl.2012) provides in pertinent part:
(b)(1) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Workers’ Compensation 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 or her future earning capacity.
(2) However, so long as an employee, subsequent to his or her injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his or her average weekly wage at the time of the accident, he or she 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.
Arkansas Code Annotated section 11 — 9— 526 (Repl.2012) further provides:
If any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers’ Compensation Commission, the refusal is justifiable.
The ALJ’s major conclusion, affirmed and adopted by the Commission, was that the “claimant has failed to prove, by a preponderance of the credible evidence, that she is entitled to any wage-loss disability in excess of the fifteen percent (15%) whole body impairment which respondents have accepted and were in the process of paying.” In discussing the wage-loss issue generally, the ALJ commented, “Although there may exist a factual dispute concerning whether or not the claimant refused suitable employment offered to her by the employer pursuant to Ark.Code Ann. § 11-9-526, in my opinion, a preponderance of the evidence reflects that the claimant voluntarily terminated her employment and elected not to | inreturn to the job market and is, therefore, not entitled to wage-loss disability.” Later in his discussion, the ALJ acknowledged that he found the accommodations made by the employer to be extremely unusual and “that the claimant may have even felt humiliated by her immediate manager’s actions, [but] it is undisputed that the claimant ultimately voluntarily resigned her job with the employer herein.” The ALJ further noted that at the time she voluntarily quit, she was earning wages equal to those she earned at the time of her injury. He concluded that she was still capable of obtaining other employment at minimum or entry-level wages, which was the level of wages she earned at the time of her injury. He found her to be credible and candid in conceding that she was not interested in pursuing employment, but that her lack of motivation in pursuing employment was a clear impediment to assessing her wage-loss disability. He concluded that she had failed to establish that she was entitled to wage-loss disability.
Templeton acknowledged before the ALJ that she had stated in her deposition that the work she was doing when she left Dollar General was within her restrictions; that Dollar General would have continued to provide sedentary duties to her; that if she had not quit, she would still be working there; that they allowed her to go to her truck and lie down as needed; and that they had an additional employee on her shift to perform the work Templeton could not. She also acknowledged she had no intention of looking for employment.
In short, Templeton was only fifty-one years old; she had extensive experience in retail sales; and she also had experience in bookkeeping and in running her own business. All of her work experience could be categorized as rather sedentary. The functional-capacity Revaluation concluded that despite her significant limitations, she was still capable of performing sedentary tasks. Further, she readily acknowledged a total lack of motivation to obtain employment. Reasonable minds could reach the same conclusion reached by the Commission that Templeton failed to prove she was entitled to any wage-loss disability in excess of the fifteen-percent whole body impairment already awarded. We therefore hold that the Commission demonstrated a substantial basis for its denial of Templeton’s claim for wage-loss disability and affirm its decision.
Affirmed.
GLADWIN, C.J., and HIXSON, J., agree. | [
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KAREN R. BAKER, Justice.
_|jOn July 19, 2007, a Sharp County jury convicted appellant, Steven Victor Wertz, of two counts of capital murder and sentenced him to death. We affirmed his conviction and sentence in Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008). The relevant facts as we recounted in Wertz’s direct appeal are as follows:
On the morning of December 31,1986, Kathy and Terry Watts were found dead in their Ash Flat home by Kathy’s mother, Judy Bone. Ms. Bone found their almost one-year-old son, alive, near his father’s body. During the investigation into the Wattses’ deaths, it was discovered that a child-custody matter regarding another child was ongoing between Terry Watts and Wertz’s then-wife, Belinda. Ultimately, Wertz became the primary suspect, and, the same day that the bodies were discovered, investigators traveled to Oklahoma, where the Wertzes resided, to inquire.
At that time, Wertz told investigators that he and Jamie Snyder, Jr., the son of a friend, spent the night at Wertz’s home on December 30, 1986. Wertz claimed that he had been sick that evening and that he had gone to the Tinker Air Force Base clinic the next day for treatment, which records corroborated. It appears from the record that, despite having suspects, police neither arrested nor charged anyone in connection with the murders until much later.
| sin spring 2001, David Huffmaster of the Sharp County Sheriffs Department began to review the case file on the Wattses’ murders after being contacted by Kathy Watts’s sister, Chris Lindner, at a school function. In spring 2002, Huffmaster essentially reopened the case and, over the course of the next few years, conducted interviews of some of the persons previously interviewed and involved in the original investigation. Huffmaster’s interviews of both Belinda Stewart, who had been married to Wertz at the time of the crimes, but had since divorced him and remarried, and Jamie Snyder, Jr., yielded statements that led to an arrest warrant being issued for Wertz on April 27, 2006. On April 28, 2006, a felony information was filed, charging Wertz with two counts of capital murder.
Id. at 258-59, 287 S.W.Bd at 530-33.
On January 16, 2009, Wertz filed his Rule 37.5 petition in the Sharp County Circuit Court alleging that his retained trial counsel’s, Greg Bryant’s, performance was constitutionally deficient and asserting twenty-three allegations of ineffective assistance of counsel. On April 9-10, 2012, the circuit court conducted a hearing. On May 17, 2012, the circuit court denied Wertz’s petition. Wertz now brings this appeal and presents two issues for review: (1) the circuit court erred in denying Wertz’s Rule 37 petition because Wertz received ineffective assistance of counsel in the guilt phase of his trial; and (2) the circuit court erred in denying Wertz’s Rule 37 petition because Wertz received ineffective assistance of counsel in the sentencing phase of his trial.
“On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. 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., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1-2, 430|j¡S.W.3d 759, 761.
Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claims of ineffective assistance of counsel are reviewed under the following standard:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show 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 defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.
Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assis tance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. See id. Therefore, Wertz must first show that counsel’s performance fell below an objective standard of reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id. Wertz must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if Wertz fails to demonstrate prejudice as to an alleged error. Kelley v. State, |42011 Ark. 504, 2011 WL 5995530.
Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision of trial counsel to call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Moten v. State, 2013 Ark. 503 (per curiam). In order to demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Finally, “[w]hen assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Huls v. State, [301 Ark. 572, 785 S.W.2d 467 (1990)]; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).” Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996).
Points on Appeal
I.Ineffective Assistance of Counsel: Guilt Phase
IflFor his first point on appeal, Wertz makes several arguments regarding ineffective assistance of counsel at the guilt phase. Specifically, Wertz asserts that Bryant should not have worked alone, but should have retained a second attorney to assistance him in handling Wertz’s case as prescribed by the American Bar Association (hereinafter ABA) guidelines. Further, Wertz asserts that Bryant took $35,000 from Wertz that was intended for the express use of hiring a second attorney, Jeff Rosenzweig. Wertz contends that because Bryant failed to retain co-counsel and failed to retain necessary services, Bryant was constitutionally deficient on seven subpoints:
1. Bryant failed to review the physical evidence held by the State.
2. Bryant failed to retain a forensic investigator to review the physical evidence.
3. Bryant failed to retain and have a forensic pathologist to review the autopsy results.
4. Bryant failed to properly prepare and present evidence on the “time and distance” argument.
5. Bryant failed to investigate Wertz’s contention that the footprint on the door of the home was too small to be Wertz’s shoe.
6. Bryant failed to interview the following witnesses who had knowledge relevant to Wertz’s defense: Mark Sealey (crime scene technician), Jeff Quails (Sharp County coroner at the time of the murders), Jamie Snyder’s ex wife, and countless individuals Wertz knew over his lifetime who should have been called.
7. Bryant failed to spend sufficient time with Wertz to prepare him to testify at trial and enable him to understand the nature of the trial process.
Pretrial Investigation
Wertz’s first three subpoints assert that Bryant’s pretrial investigation was deficient. First, Bryant did not properly investigate the physical evidence. Second, Bryant did not hire |fia forensic investigator to examine the physical evidence including the shotgun, the shoe print, the victim’s front door, shot gun shells, and the shot gun pattern on the front door. Third, Bryant did not retain a forensic pathologist to review the autopsy reports. Wertz asserts that because Bryant did not perform an adequate investigation including retaining forensic experts, Wertz was prejudiced. The State responds that Wertz has failed to demonstrate that Bryant’s representation was deficient and asserts that Wertz’s claims are conelusory.
In reviewing an assertion of ineffective assistance of counsel based on failure to investigate, a petitioner must describe how a more searching pretrial investigation would have changed the results of his trial. Fernandez v. State, 2011 Ark. 418, 384 S.W.3d 520. There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and the burden is entirely on the claimant to pro-
vide facts that affirmatively support his claims of prejudice. Shipman v. State, 2010 Ark. 499, 2010 WL 5185781 (per cu-riam). Neither conelusory statements nor allegations without factual substantiation are sufficient to overcome the presumption and cannot provide a basis of postconviction relief. Id. General assertions that counsel did not aggressively prepare for trial are not sufficient to establish an ineffective-assistance-of-counsel claim. Id.
We now turn to the circuit court’s order denying Wertz’s claim regarding Bryant’s pretrial investigation. The circuit court’s order stated:
The court finds this allegation [of lack of investigation] is a conelusory statement by petitioner and as such, cannot be the basis of postconviction relief. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). There was testimony petitioner spent time with the lead investigator going over evidence in Sharp County as well as having evidence reviewed by the State Crime Lab.
_li • • •
Petitioner is making conelusory statements without offering any proof and as such, cannot be the basis of post-conviction relief. Sparkman, supra. Petitioner’s allegations here are highly questionable, even assuming such an analysis was possible. Petitioner claims an expert should have been retained to test a shotgun (which was found in 1987), which no longer existed at the time of petitioner’s arrest.
Petitioner has asserted that defense counsel failed to procure an independent medical examiner to rebut the testimony of Dr. Charles Kokes concerning lividity and time of death of Kathy Watts. This allegation is conelusory and not supported by any proof demonstrating that an independent medical examiner would have rebutted the testimony of Dr. Kokes or how the proceedings would have been different had such a. witness been called. As such, this allegation fails and cannot be the basis for post-conviction relief. Sparkman, supra.
Here, Wertz contends the circuit court erred and claims that had Bryant retained these forensic experts, Bryant would have discovered exculpatory evidence.
However, the record demonstrates that Wertz made only general assertions that do not provide sufficient factual substantiation for his claims of prejudice. Wertz has made conclusory allegations and has failed to demonstrate that a more searching investigation would have changed the results of his trial. In reviewing the circuit court’s order, we find no error as to this claim.
“Time and Distance” Defense
Wertz’s fourth subpoint of error during the guilt phase alleges that Bryant rendered ineffective assistance of counsel when Bryant failed to present evidence of an alternative “time and distance” argument that would demonstrate the physical impossibility that he committed the crimes. Wertz contends that Bryant performed a “shoddy investigation” and failed to adequately investigate the route, weather conditions, and vehicle driven from Guthrie, [sOklahoma to Ash Flat, Arkansas. Further, Wertz contends that if Bryant had been properly prepared for trial, Bryant would have been able to demonstrate that the trip could not have taken place during the time frame the State asserted and that the State’s timeline and Wertz’s co-defendant’s, Snyder’s, timeline were inconsistent.
The State responds that the circuit court should be affirmed because Bryant reasonably presented evidence of Wertz’s “time and distance” defense as well as through the cross-examination of multiple witnesses and his own witnesses.
In denying Wertz’s claim, the circuit court held that
[t]he weather conditions on or about the time of the murders was in evidence at trial. Bryant, while not having a representative from the actual car manufacturer, put on testimony that the one-way trip from Oklahoma to Ash Flat trip took two tanks of gasoline. Consequently, the court further finds Bryant acted reasonably in the interviews and made reasonable efforts in attempting to locate and interview witnesses whose testimony was potentially exculpatory.
Wertz asserts that the circuit court erred. To prevail, Wertz must describe how a more searching pretrial investigation would have changed the results of his trial. Fernandez v. State, 2011 Ark. 418, 384 S.W.3d 520. Here, the record demonstrates that Bryant cross-examined the following witnesses about the time of death of the victims which went to discredit the State’s timeline: Arkansas State Police Sergeant Steve Huddleston, former Sharp County Chief Deputy Dennis Burton, and Joe Stidman, a reserve officer with the Sharp County Sheriffs Office. Huddle-ston, Burton, and Stidman all testified regarding their involvement in the investigation, the Polaroid pictures of the crime scene, and the arrival time of Mark Sealey, the medical examiner technician, who came to retrieve the bodies. Additionally, Dr. Charles Kokes testified about the estimated time of death and the Polaroid pictures that were taken |9at the scene. Bryant cross-examined each of these witnesses regarding the timeline that Wertz argues was not adequately addressed at trial. Additionally, Bryant presented his own witness, Tyson Spradlin, his associate and assistant, regarding the time it took to travel from Ash Flat, Arkansas, to Guthrie, Oklahoma. Spradlin testified about the make and model of his car, the gas used, the fastest route, and the time it took him to travel. Accordingly, Bryant put evidence before the jury refuting the State’s timeline of the case. Based on our standard of review, we cannot say the circuit court clearly erred.
Boot/Footprint
For his fifth subpoint of error alleging ineffective assistance of counsel during the guilt phase of the trial, Wertz asserts that Bryant was ineffective for failing to investigate that the footprint on the Wattses’s door used in the State’s prosecution could not have been his footprint because it was too small and the pattern did not match the soles of his boots. The circuit court held that
[t]he allegation of deficient conduct by not calling an expert with regard to a shoe print not matching the size of petitioner fails because the circumstances regarding the evidence was before the jury.
At trial, during his cross-examination of Huffmaster, Wertz established that he wore a size 13 shoe and the footprint found was a size 9. Here, the record from the Rule 37 hearing demonstrates that Wertz has failed to present evidence to support his claim and that he makes conclusory allegations. In reviewing the circuit court’s ruling on this claim, we find no error.
Failure to Interview Witnesses
| inWertz’s sixth subpoint of error in the guilt phase is that he received ineffective assistance of counsel when Bryant failed to present the following witnesses: Mark Sealey, Jeff Quails, Jamie Snyder’s ex-wife (the accomplice’s ex-wife), and countless
individuals whom Wertz knew. The circuit court denied Wertz’s argument on this point and held,
According to the testimony at the evi-dentiary hearing, Bryant was not able to locate Mark Sealey, however, the substance of his testimony regarding his opinion as to time of death was put before the jury. Additional testimony concerning the coroner’s report was also presented at the evidentiary hearing, however, the report corroborated Dr. Kokes’ estimated time of death.
Petitioner alleges that trial counsel failed to adequately investigate the physical evidence held by the State of Arkansas, theorizing that an adequate investigation would have disclosed that items of physical evidence were exculpatory to the guilt of petitioner and that physical evidence could have been used by defense counsel to attack the credibility of the State’s chief investigator, the alleged accomplice James Snyder, Jr. and petitioner’s ex-wife, Belinda Wertz, whose testimony was adverse to petitioner. The court finds this allegation is a conclusory statement by petitioner and as such, cannot be the basis of postcon-viction relief. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). There was testimony petitioner spent time with the lead investigator going over evidence in Sharp County as well as having evidence reviewed by the State Crime Lab.
In reviewing this claim, “[i]t is incumbent on ... [Wertz] ... to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence.” Shipman, 2010 Ark. 499, at 4, 2010 WL 5185781. In order to demonstrate prejudice, Wertz was required to establish that there was a reasonable probability that, had counsel performed further investiga tion and presented the witness, the outcome of the trial would have been different. Hickey, 2013 Ark. 237, 428 S.W.3d 446. At the Rule 37 hearing, Wertz did not call any of these witnesses or submit affidavits with their testimony. Thus, Wertz asserts no more than conclusory statements in this regard, and In we affirm the circuit court on this claim.
Failure to Prepare Wertz
For his final allegation of ineffective assistance of counsel at the guilt phase, Wertz claims that Bryant failed to spend sufficient time with Wertz to prepare him to testify and enable him to understand the trial process. An attorney’s advice to his or her client is not grounds for an ineffective-assistance-of-counsel claim. Whether a defendant testifies is not a basis for postconviction relief. Dansby v. State, 347 Ark. 674, 679, 66 S.W.3d 585, 588 (2002). Further, the accused has the right to choose whether to testify on his own behalf. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). Counsel may only advise the accused in making the decision, and the decision to testify is purely one of strategy. Id. Therefore, we affirm the denial of Wertz’s claim on this point.
Based on the discussion above, we do not find that the circuit court erred. Wertz did not provide support for his con-clusory claims that counsel was ineffective. Likewise, there has been no showing that Bryant committed any specific error that prejudiced the defense because Wertz did not specify with facts how the defense was prejudiced. As discussed infra, based on Strickland, Wertz must show that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt and that the decision reached would have been different absent the errors. In reviewing the record before us and Wertz’s argument, we are unpersuaded that Wertz has met his burden, and we affirm the circuit court’s denial of this claim.
II. Ineffective Assistance of Counsel: Sentencing Phase
112For his second point on appeal, Wertz contends that the circuit court erred when it denied Wertz’s claim that he received ineffective assistance of counsel during the sentencing phase of his trial because Bryant did not adequately investigate and present mitigation evidence. Citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000); and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), Wertz asserts that Bryant had an absolute duty to fully investigate all possible mitigating circumstances despite Wertz’s instructions. Wertz contends that this failure to investigate fulfills both prongs of Strickland — deficient performance and prejudice — and urges this court to reverse the circuit court.
The State responds that Wertz mischar-acterizes Bryant’s performance and testimony at the Rule 37 hearing, as Bryant did investigate and present mitigation evidence. Further, the State responds that Wertz’s argument is without merit because the record demonstrates that Wertz specifically instructed Bryant to not investigate and present mitigation evidence. Finally, the State asserts that we should affirm the circuit court because Wertz has failed to demonstrate prejudice.
In reviewing an assertion of ineffective assistance of counsel for the failure to call a certain witness, the objective is to determine whether the failure resulted in actual prejudice that denied the petitioner a fair trial. Moten v. State, 2013 Ark. 503 (per curiam). The decision to call or not to call a particular witness is largely a matter of professional judgment. The fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Further, in reviewing an assertion of ineffective assistance of counsel based on counsel’s failure |1sto investigate and present mitigation evidence, the failure to conduct any investigation will not pass the constitutional standard we require; however, reasonable strategic choices do not rise to the level of satisfying Strickland. See Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). In Sanford we held that, the attorney’s “failure to investigate caused the jury not to have before it all the available significant mitigating evidence” and further held that such failure raised “a reasonable probability that the result of the sentencing proceeding would have been different if competent counsel had presented and explained the significance of all the available evidence.” Id. 342 Ark. at 34, 25 S.W.3d at 422 (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).
Finally, in order to satisfy Strickland, Wertz must meet both prongs, deficient performance and prejudice. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. See Stiggers v. State, 2014 Ark. 184, 433 S.W.3d 252(internal citations omitted). Prejudice must be established by demonstrating that there is reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. With these standards in mind, we turn to the circuit court’s order and its denial of Wertz’s claim on his second point:
Petitioner alleges Bryant failed to interview witnesses who could have provided mitigating evidence for the petitioner at the punishment stage of the trial. As stated by the court in the court’s Findings of Facts and Conclusions of Law 3 above, the court finds that Bryant may have been deficient in his representation of his client in the mitigation stage of his trial by not calling at least one other witness, not a family member, who could have testified as to a good trait of petitioner. The court finds that this omission did not prejudice the petitioner to the extent that the decision reached by the jury would have been different.
|14To review the circuit court’s order and correctly determine this issue, we must look at all the evidence adduced at trial and at the Rule 37 hearing. Howard v. State, 367 Ark. 18, 238 S.W.3d 24.
At trial, during the sentencing phase, Bryant presented two mitigation witnesses: Steve Huddleston and Wertz’s wife, Judy Wertz. First, Huddleston testified that Wertz may not have known that the victims’ one-year old baby was in the house at the time of the murders, in an attempt to convince jurors that one of the aggravators had not been met. Second, Bryant called Judy and she testified regarding their courtship; that Wertz married her as she had been a widow; and Wertz was religious, was a hard worker, treated people personally and professionally with respect, provided a stable and loving home, was a grandfather to her three grandchildren who lived next door to them in Florida, and was interested in music.
At the Rule 37 hearing, Bryant testified that Wertz did not give him names of individuals to call as mitigation witnesses and was not forthcoming with personal information or his life history. Bryant further testified that through his handling of the case, he discovered friends and coworkers of Wertz’s, but assessed that none of them would have provided favorable testimony for Wertz. Additionally, Bryant testified that he contacted Wertz’s children. Wertz’s son was not willing to testify on Wertz’s behalf and Wertz’s daughter attended the trial, but once she arrived she changed her mind and was not interested in testifying on his behalf. Bryant also stated that Wertz’s brother would not have been favorable on Wertz’s behalf. Further, Judy Wertz’s daughter was not willing to testify on Wertz’s behalf. Finally, Bryant testified that Wertz instructed Bryant to not investigate or present 1^mitigation evidence and also that Wertz did not want to take the stand in either the guilt or the sentencing phase. Bryant also testified that Wertz had told Bryant he would rather be executed than spend the remainder of his life in jail.
Also at the Rule 37 hearing, Wertz testified that he did not instruct Bryant to not put on or investigate mitigation evidence and also testified that Bryant never explained the mitigation process to him. Wertz further testified that Bryant did not keep him informed. Judy testified that she understood that Rosenzweig was going to handle the mitigation but |1fiwas not aware that there were two different phases at trial.
Additionally, at the Rule 37 hearing, in addition to the two mitigation witnesses at trial, Wertz presented testimony from three additional witnesses: Ed Briggs, Stacy Worthington Chism, and Teri Chambers. First, Briggs testified that he had known Wertz for over thirty years, that the two had met in Vietnam, and that Briggs relied on Wertz in the field in Vietnam. Briggs also testified to a story about Wertz protecting a child and making sure he was safe after an ambush. Several years later, the two were both employed as police officers together, and Briggs testified about Wertz having helped him and fellow officers on the scene of a traffic stop when he called for assistance.
Second, Chism testified that she was a mitigation specialist with the Arkansas Public Defender’s Commission and, in preparation for Wertz’s Rule 37 hearing, investigated Wertz’s history. She testified regarding the investigation that she would have performed at trial including but not limited to, family history, Wertz’s first wife, Wertz’s children, military experience, work history, mental retardation, psychological evaluation, school history, former teachers, and photos of his family history. Chism also testified regarding photos she had discovered during her investigation including, but not limited to, Wertz as a child, Wertz with his children, Wertz with his first wife, Wertz in Vietnam, Wertz with his current wife, Judy, and newspaper clippings from when Wertz was a swimmer in high school. The photos were introduced into evidence.
Third, Chambers, an attorney with the Arkansas Public Defender Commission, Capital Conflicts Office, testified as to the ABA Guidelines regarding the investigation of mitigation | ,7evidence. She testified about the importance of investigating a defendant’s history and presenting that information to the jury.
Turning to Wertz’s argument on appeal, Wertz asserts that his ease is analogous to Sanford, alleges that Bryant abdicated his duty to investigate, and argues that the outcome would have been different if the jury had been fully informed of the various mitigating factors. However, this argument is flawed for two reasons. First, unlike the record in Sanford, the record in this case demonstrates that Bryant presented some mitigation evidence. In Sanford, at the Rule 37 hearing, Sanford’s counsel
largely conceded that he did little in putting on proof of mitigation during the penalty phase, and that the reasons may have been because he was ‘quite disappointed’ in the jury’s guilty verdicts, and ‘he was tired.’ In fact, while he was well aware that, during the penalty phase, the prosecutor painted Sanford as a remorseless, heartless, cold-blooded person, [Sanford’s counsel] guessed “he did not do anything” to counter the State’s presentation in the penalty phase. Moreover, when asked by the trial court if he intended to ask for AMCI1009 — the capital murder, mitigation instruction based on mental retardation — Howard responded, Tes, Your Honor, I had not even ... thought about it, but I am quite sure I am going to offer that.’
From the colloquy between the trial court and counsel, it became obvious that, although he could have offered additional evidence at the penalty stage, [Sanford’s counsel] had made no plans to offer any more evidence except the testimony of Sanford’s parents. [Sanford’s counsel] admitted he made no effort to obtain Sanford’s school records, jail records, medical records, or family history. While he had a social worker available to him, Howard never considered asking the worker to assist him in developing mitigation.
Id., at 32, 25 S.W.3d at 421.
Here, Bryant did present mitigation evidence. Accordingly, Wertz’s case is 1 ^distinguishable from the Sanford case.
Second, we do not find Wertz’s case analogous to Sanford because at Wertz’s Rule 37 hearing, Wertz failed to present potential mitigation evidence that would have likely caused the jury to reach a different result. At the Rule 37 in Sanford, extensive mitigation evidence was presented that had been omitted from Sanford’s trial:
Sanford’s school records showed Sanford had been in special education, and had been considered mildly mentally retarded during much of his time in school. Sanford was shown to have a good record with only one disciplinary incident. His medical history reflects he almost suffocated to death as a child when a load of cotton seed fell on him; Sanford’s mother opined Sanford acted a “bit slower” after the cotton-seed incident. Later he suffered a blow to the head with, a two-by-four wielded by his sister. Proof also available, but not investigated by [Sanford’s counsel], showed siblings and other family members to be either slow or retarded.
Id., 342 Ark. at 33, 25 S.W.3d at 421.
In contrast, at Wertz’s Rule 37 hearing, little potential mitigating testimony was presented. Wertz presented three mitigation witnesses that did not testify at the first trial, Briggs, Chism and Chambers, and the record fails to demonstrate that there was a reasonable probability that the jury would have reached a different result based on this Rule 37 testimony. Briggs stated that he would have testified regarding his relationship with Wertz, Wertz’s military service, and redeeming personal qualities through personal stories. However, the record also demonstrates that Wertz had lied about military service and recognition, even forging military records, and if Briggs had testified, then the State would have been able to cross-examine him about Wertz’s dishonesty.
Further, although Chism testified about how she would conduct her mitigation investigation and the evidence she had discovered about Wertz, including the introduced |13photos, this testimony did not amount to specific mitigation evidence demonstrating that Wertz was prejudiced. Chism testified regarding the family history, the cousins, the work history, and the “50 years of life that were not covered by the testimony of Judy Wertz” but did not present any specific evidence that would likely change the outcome. Finally, Chambers did not provide any testimony specific to Wertz; rather, she only discussed the ABA guidelines and the investigation that should have been conducted.
Here, this is not a situation where counsel totally failed to investigate and put forth mitigation evidence as in Sanford. Bryant produced two mitigation witnesses who testified about Wertz’s general good character, his work ethic, his love for and involvement with his family, and the fact that Wertz was not aware that the victims’s one-year old son was at the scene when the murders took place. Also, despite whether counsel was deficient on investigating and presenting sufficient mitigation, Wertz’s case is distinguishable from Sanford’s case because, Wertz has failed to present specific evidence to demonstrate prejudice arose and demonstrate a reasonable probability that the information uncovered with further investigation would have changed the outcome.
We next turn to Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), which the Sanford decision relied heavily upon. Wertz’s case is also distinguishable from Williams. In Williams, the evidence was much more substantial than in the present case:
| gpExisting documents in Williams dramatically described mistreatment, abuse, and neglect during [the appellant’s] early childhood, as well as testimony that he was ‘borderline mentally retarded,’ had suffered repeated head injuries, and might have mental impairments organic in origin. Other omitted evidence showed that the appellant did not advance beyond sixth grade in school, his parents had been imprisoned for the criminal neglect of the appellant and his siblings, he had been severely and repeatedly beaten by his father, he was in the custody of the social services bureau for two years during which he had a stint in an abusive foster home, and he was returned to the custody of his parents after they were released from prison. In addition, the appellant had received commendations in prison for helping to crack a prison drug ring and for returning a guard’s missing wallet, and prison guards were willing to testify that he was among the inmates least likely to act in a violent or dangerous way.
Williams v. State, 347 Ark. 371, 379, 64 S.W.3d 709, 716 (2002) (citing Williams v. Taylor, 529 U.S. at 370, 120 S.Ct. 1495).
Also, in support of his claim, Wertz refers us to the United States Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). However, Wertz’s case is also distinguishable from Wiggins. In Wiggins, the mitigating evidence counsel failed to discover was “powerful”:
Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care. The time Wiggins spent homeless, along with his diminished mental capacities, further augment his mitigation case.
Wiggins, 539 U.S. at 534, 123 S.Ct. 2527.
The Supreme Court held that “[g]iven 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, 123 S.Ct. 2527.
Having reviewed Wertz’s ineffective-assistance-of-counsel claim regarding the investigation of mitigation evidence, we find no merit in Wertz’s argument. Wertz contends, |aiwith no factual substantiation, the outcome would have been different if Bryant had investigated and presented mitigation evidence. “When a defendant challenges a death sentence, the question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Hill v. Lockhart, 28 F.3d 832 (8th Cir.1994) (citing Strickland v. Washington, supra).” Williams v. State, 347 Ark. 371, 379, 64 S.W.3d 709, 716. Wertz has failed to meet this burden, and based on our standard of review, we find no error and affirm.
Affirmed.
Special Justice ANDREW FULKERSON and HART, J., concur in part and dissent in part.
GOODSON, J., not participating.
. We note that Wertz's waiver is contained in the trial record:
Defense Counsel: Judge, there are two things I want to put on the record. The first one is that early on into this-my representation of Mr. Wertz he instructed me not to conduct a mitigation investigation. And I don’t think it’s necessary that I go on record as to the reasons why.
The Court: It's up to him.
Mr. Bryant: He instructed me not to go into any mitigating events anyway but there— as opposed to an investigation which— that encompasses the whole different matter and the other thing, Your Honor is that Mr. Wertz, both at the guilt phase and now at the penalty phase has decided not to take the witness stand.
The Court: Is that correct?
Defendant: Sir, what?
The Court: Is that correct?
Defendant: Yes.
. At the Rule 37 hearing, the State introduced a psychologist’s report as the witness was ill and unable to attend the hearing. The report provided that Wertz did not display any significant psychiatric symptoms, including PTSD. The report also stated that Wertz had no previous history for any significant psychiatric impairments. Finally, the report stated that Wertz would likely not make a good witness on his own behalf. | [
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KENNETH S. HIXSON, Judge.
| ¶ Appellant Delmar G. Osborn appeals from an amended order whereby the trial court, among other things, issued an injunction enjoining Mr. Osborn from interfering with or obstructing an easement in favor of the appellees, Donna L. Cole Ten-nison and her husband Carious Tennison. The roadway at issue runs southbound across appellant’s property and forks into two roads known as the “A” road and “B” road, which both access the Tennison property.
In this appeal, Mr. Osborn argues that the trial court clearly erred in finding that the A road was part of the easement, and further erred by authorizing the appellees to modify the gate on the A road. Mr. Osborn also argues that the easement in this case is personal to only appellee Donna Tennison. We affirm.
|2In 1985, Mr. Osborn and his wife owned property in Marion County and conveyed a parcel of land to Donna Cole (now Tennison) and her parents, as joint tenants with right of survivorship. The conveyance included the following easement across the Osborns’ property:
A private road and utility easement for ingress and egress over and across the road as it now exists extending from county road known as Jimmie’s Creek Road in Section 12, across the North half of Section 13 and into the Southwest quarter of Section 13, all in Township 19 North, Range 16 West, which easement is for the exclusive use of Grantors and Grantees only.
The warranty deed provided that the conveyance was to Ms. Tennison and her parents, and “unto their heirs and assigns forever.”
In 1992, Mr. Osborn and his wife deeded their interest in their properly to Mr. Osborn’s two daughters, with the conveyance being subject to all existing easements. Mr. Osborn retained a life estate in the property, and his wife has since died. Mr. Osborn’s daughters and their husbands have acknowledged that the Tennisons have an easement running through the property.
In 1993, Donna married Carious Tenni-son. Donna’s father is now deceased, and her mother has deeded to Donna her interest in their property. Donna has permitted Carious to use the easement for farming operations.
The litigation in this case was initiated when the Tennisons filed a complaint against Mr. Osborn on April 13, 2012. In their complaint, the Tennisons alleged that Mr. Osborn had obstructed the roadways included in Donna’s easement by the use of gates and locks, and that he had also blocked their use of the roads with trees and other debris, which | -¡interrupted the Tennisons’ farming operations. The Ten-nisons asked for an injunction against Mr. Osborn restraining him from interfering with or obstructing the roadways, and for permission to construct a gate large enough to permit farming equipment ingress and egress.
On May 10, 2012, Mr. Osborn filed an answer denying the material allegations in the Tennisons’ complaint. On May 21, 2012, Mr. Osborn filed a counterclaim asking that the easement be terminated. In his counterclaim, Mr. Osborn alleged that the easement at issue was personal in nature and only to be used by the grantors and grantees, and that it was understood that the grantees would use the road because it was the only access to their property. Mr. Osborn alleged that since the sale was consummated in 1985, several other roads have been used by the Tenni-sons to access their properly and thus the purpose of the easement had ended. Mr. Osborn also alleged that the 1985 warranty deed was drafted at the behest of Donna Tennison and her parents, and that any ambiguity in the easement should be construed against the drafters. Finally, Mr. Osborn asserted that Carious Tennison and his agents were in violation of the easement because the easement gave no authority for him or his agents to traverse the properly.
Donna Tennison testified at the bench trial held on September 25, 2012. She testified that after she and her parents acquired their properly from the Osborns in 1985 it was used for cattle farming. Mrs. Tennison stated that they used both the A road and the B road to access their land, and she thought that both of these roads were included in the easement.
Mrs. Tennison described the A road as the more important road because it was used to access the location of their cattle. Mrs. Tennison stated that the B road is a steep road that | ¿accessed a stone quarry. She indicated that the B road is difficult to use and is unsuitable for hay or cattle trucks.
Mrs. Tennison testified that within a few years of the conveyance in 1985, Mr. Osborn built a fence between the parties’ properties. Gates were later constructed on both the A road and B road, but the gate at the A road is only four feet wide and is too narrow to drive a truck through.
Mrs. Tennison testified that since marrying Carious Tennison in 1993, she has given him permission to use the roads to assist in farming the property. Mrs. Ten-nison has also given others involved in their farming operation permission to use the roads.
Carious Tennison testified that for the past two years Mr. Osborn has engaged in a campaign of blocking their access to the roads by changing the locks and barricading the roads with debris. This resulted in Mr. Tennison filing police complaints against Mr. Osborn and ultimately the filing of this lawsuit.
Mr. Tennison indicated that the B road is too steep for a large truck, and that they can only bring eight bales of hay at a time on a 16-foot flatbed. He stated that if they could use the A road, their large trucks could drive directly to the barn and save them several days of extra work. He said that he would like to place a larger gate at the location where the A road connects the two properties.
Mr. Tennison testified that he spoke to Mr. Osborn’s two daughters, who present ly own the adjoining properly, and they told him that they thought he had the right to use the | stwo roads. The daughters presented a plat showing both the A road and B road as part of the easement.
Mr. Osborn testified that the easement consists only of the quarry road (the B road), and does not include the A road. Mr. Osborn acknowledged that Mrs. Ten-nison had the right to use the B road, but he stated that nobody else was authorized to use the easement. Mr. Osborn agreed that the A road is a good road and is much better to use than the B road.
The trial court entered an order on February 15, 2013, which contained a description of the easement and included the following findings:
8. That Delmar G. Osborn has obstructed the roadways referenced above, to which the Plaintiffs are entitled to use, has attempted to obstruct by use of gates and locks the free use of said roads including efforts by Delmar G. Osborn to place trees or other debris in the roadways blocking the free use of said roads.
9. That this has interrupted the farming operation of Donna L. Cole/Tennison and her husband Carious Tennison and caused both inconvenience and economic damage.
10. That an injunction should be issued against Delmar G. Osborn, also known as George Osborn, from interfering with or obstructing the roadways described above and as noted hereinafter.
11. That the road noted on Exhibit “A” of the attachment to the Complaint references Cole/Tennison easement, including both the A prong and B prong, were roads in existence at the time of conveyance from Delmar G. Osborn and Frances A. Osborn to Marvin L. Cole and Quintelle R. Cole, husband and wife, and Donna L. Cole, as joint tenants dated August 28, 1985 and that said roadway shall not be interfered with by Delmar G. Osborn, except that he and the Plaintiffs shall be allowed to place their own individual locks on a chain on gates at point of entry of said roadway from the County road and at the gate located at the common boundary between the Plaintiffs and Defendant.
12. That the Plaintiffs and their per-mittees, including employees, shall be allowed to use said roadway and the Defendant shall be enjoined from interfering with said use.
13. That each party will ensure to leave the gates closed when not in use in order to ensure that livestock would not be free to escape from the enclosures of the respective parties and neither party shall in any way damage or obstruct the individual | filocks of the other party, thereby ensuring privacy and security mutually between the parties as to their lands.
14. That the Plaintiffs shall be allowed to install and maintain a gate of sufficient width to allow trucks and trailers large enough to carry hay and large bales of hay at points of intersection with the Cole/Tennison easement, both A prong and B prong, at their own expense.
On March 25, 2013, the trial court entered an amended order that contained all of the findings in the original order, and inserted the following three paragraphs:
10. Defendant filed a Counterclaim. In said Counterclaim, Defendant alleged that the easement should only be restricted to the heirs and assigns of the original parties to the contract, Defendant, his wife, Marvin Cole, Quintelle Cole and Donna Cole, now Tennison. Plaintiffs respond, pointing to the lan guage of the deed at issue, stating that the deed was binding on the heirs and assigns of the parties. Defendant replies that the contradictory language in the deed creates an ambiguity that should be construed against the drafter, namely, the Plaintiffs. The Court finds that, in essence, Defendant is asking the Court to strike the heirs and assigns language from the deed. The Court will not blue line the deed in question as Arkansas law binds the Court to give full effect to all language in the deed. The Court is sympathetic to Defendant’s argument, but it must fail.
11. Defendant further argues in his pleadings that the Court should terminate the easement as Plaintiffs have numerous other ways to reach the property. Defendant further argues that the original easement was offered because that was Plaintiffs only access to the property. Plaintiffs respond that they have the deeded easement, they are entitled to it and there should be no termination. The termination of an easement is governed by Sluyter v. Hale Fireworks Partnership, 370 Ark. 511, 262 S.W.3d 154 (2007). Since the parties did not agree to terminate the easement, merge the easement and/or the easement to Plaintiffs was not prescripted, the Court can find no basis to terminate the easement. The Court will state again that it is sympathetic to the argument of the Defendant. Defendant believes he was helping a neighbor years ago and the need to help may no longer be there. However, the agreement/deed signed between parties and the conduct of the parties since the deed at issue, leads the Court to believe that the elements necessary to terminate the easement are not present.
12. At trial, it was alleged that the easement in question had two roads, an “A” road and a “B” road. The “B” road is the one in more frequent use. Plaintiffs and their witnesses testified both forks, “A” and “B” were used. Defendant hotly contested this point stating that the “A” road was never part of the original deal and offering into evidence a Google map print of the area showing the “A” road going only to his house, not to Plaintiffs property. Further, Defendant vigorously argues that he would not allow Plaintiffs two access points across his property, especially the 17“A” road that crosses his property where he runs his cattle. Further, over objection of the Plaintiffs, the court received testimony from Defendant, that, if the “A” road was included in the deed, the road was abandoned due to long periods of non-use. Finally, Defendant argues that the deed in question states the Plaintiffs were to receive a road and not roads and that to state otherwise goes against the plain language of the Deed. The Court viewed the property, including the “A” road. The initial portion of the “A” road follows the path of the maps introduced at trial, including Plaintiffs topo map that shows both “A” prong and “B” prong. It appears, from the Court’s viewing, that both prongs of the “A” and “B” roads were in use at some time in the past by the Plaintiffs and were not abandoned. Both branches “A” and “B” are declared to be existing roads and easements in favor of the Plaintiffs, their heirs and assigns.
The final paragraph of the amended order provides, “This amended order is made to reflect certain findings of fact and conclusions of law which supplement the order previously entered on February 15, 2013 filed herein.”
Before considering the arguments raised by Mr. Osborn in this appeal, we must first consider whether we have jurisdiction. In the Tennisons’ brief, the appel- lees argue that we lack jurisdiction and the appeal must be dismissed because Mr. Osborn failed to file a notice of appeal within thirty days of the original order entered on February 15, 2013. We, however, disagree with the appellees and conclude that we have jurisdiction to hear this appeal.
Rule 4(a) of the Arkansas Rules of Appellate Procedure-Civil provides that a notice of appeal shall be filed within thirty days of entry of judgment. Rule 4(b) provides for an extension of the thirty-day period in certain circumstances:
Upon timely filing in the circuit court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for | ¿¡filing notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion ■within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
In this case the trial court entered an order on February 15, 2013, which ordered Mr. Osborn to refrain from interfering with or obstructing the A road or B road. However, that order did not specifically address the claims made by Mr. Osborn in his counterclaim, and therefore, the February 15 order was not a final order. The trial court’s amended order entered on March 25, 2013, made additional findings rejecting the claims in Mr. Osborn’s counterclaim and confirming the existence of the easement in favor of the Tennisons, their heirs and assigns. The trial court clearly had jurisdiction to enter the amended order. Also on March 25, 2013, Mr. Osborn filed a motion for new trial, which was deemed denied by operation of law on April 24, 2013. Mr. Osborn filed his notice of appeal on May 23, 2013, which was within thirty days of the deemed-denial date and therefore timely.
Mr. Osborn’s first argument on appeal is that the trial court erred in finding that the A road was part of the easement. Although Mr. Osborn alleged below that the A road was never part of the easement granted to Mrs. Tennison in 1985, he does not argue that on appeal. Instead, Mr. Osborn now argues on appeal that although the A road was part of the original granted easement, the easement over the A road had been abandoned through years of nonuse.
The appellees assert in their brief that this argument has been waived because it was not raised below. However, we conclude otherwise. Although Mr. Osborn did not raise the | tissue of abandonment and termination of the easement in his pleadings, he elicited testimony about the issue at trial. Moreover, the trial court evidently allowed the pleadings to conform to the proof because, in paragraph twelve of the amended order, the trial court specifically addressed this claim and found that neither the A road nor the B road had been abandoned and declared both roads to be easements in favor of the Tennisons. Therefore, we will address this argument on appeal.
We review cases that traditionally sound in equity de novo on the record, but we will not reverse a finding of fact by the trial court unless it is clearly erroneous. Acuna v. Watkins, 2012 Ark. App. 564, 423 S.W.3d 670. A finding is clearly erroneous when, although there is evidence to support it, on the entire evidence we are left with a definite and firm conviction that a mistake has been committed. Id. In reviewing a trial court’s findings, we give due deference to the trial court’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.
In his brief, Mr. Osborn cites Sluyter v. Hale Fireworks Partnership, 370 Ark. 511, 262 S.W.3d 154 (2007), where it was stated that an easement can terminate either by expiring in accordance with the intent of the parties manifested in the creating transaction, or by being extinguished by the course of events subsequent to its creation. In Johnson v. Ramsay, 76 Ark.App. 485, 492, 67 S.W.3d 598, 602 (2002), we wrote:
An easement may be lost by abandonment. Abandonment will be established where the owner of the easement does or permits to be done any act inconsistent with its future enjoyment. Mere non-use does not constitute abandonment. Rather, the easement owner must relinquish or give up his rights with the intent of never resuming or claiming his right or interest. To abandon means to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern | inin. Whether abandonment exists in any given case depends on the particular circumstances, (citations omitted).
There was testimony by the appel-lees demonstrating that the easement over the A road had been used by the grantees in the past and had not been abandoned. Mrs. Tennison testified that she and her parents had used the A road for five or six years to access their cattle, but that they began using the B road after Mr. Osborn placed the narrow gate at the A road that constricted the opening in the fence to such a degree that large trucks could not utilize the A road to access their properly. In Mr. Tennison’s testimony, he testified that since 1993 he had used the A road to drive up to the gate during winter weather when the B road was too steep to use. He stated that about four or five years ago Mr. Osborn told them that they could place a larger gate on the A road, but that Mr. Osborn later changed his mind. There was also testimony that the A road remained in good shape, and Mr. Tennison indicated that they would use the road in their farming operations if they were permitted to install a wider gate. Mere non-use does not constitute abandonment, Johnson, supra, and on this record we cannot say that the trial court clearly erred in finding that the A road had not been abandoned. Therefore, we affirm the trial court’s finding that the A road was included in the easement.
Mr. Osborn next argues that the trial court erred in authorizing the Tenni-sons to modify the gate on the A road. Mr. Osborn also contends that this remedy was barred by Arkansas Code Annotated section 18-61-101 (Repl.2003), which is the seven-year statute of limitations for maintaining an action in law or equity for any lands. However, pursuant to Rule 8(c) of the Arkansas Rules of Civil Procedure, the statute of limitations is an affirmative defense that must be pleaded, and if not, the defense is waived. In this case lnMr. Osborn never raised the statute of limitations as a defense below, and therefore that issue is waived on appeal.
Moreover, the trial court did not clearly err in permitting the Tennisons to install a gate wide enough to use for their farming operations. The general rule regarding the obstruction by fences or gates of such private easements by the owner of the servient estate is that a fence may not be erected so as to entirely obstruct the way, but that unless it is expressly stipulated or it appears from the terms of the grant or the surrounding circumstances that the way shall be an open one, without gates, the owner of the servient estate may erect gates across the way if they are so located, constructed or maintained as not unreasonably to interfere with the right of passage, when they are necessary for the preservation and proper and efficient use of lands constituting the servient estate. Jordan v. Guinn & Etheridge, 253 Ark. 315, 485 S.W.2d 715 (1972). In this case Mr. Osborn had the right to maintain a fence between the parties’ property, so long as the gate on the A road was constructed in a way so as to not interfere with the appellees’ use of their right of passage. The gate constructed by Mr. Osborn was only four feet wide, and we hold that the trial court did not err in permitting the Tennisons to construct a wider gate so they can use the A road as access to farm their properly.
Mr. Osborn’s remaining argument is that the easement in this case was personal to Mrs. Tennison because it was established for the exclusive use of the grantors and grantees only. Mr. Osborn concedes that Ms. Tennison’s personal right to use the easement extends to her invitees. See Bean v. Johnson, 279 Ark. 111, 649 S.W.2d 171 (1988). However, he 112contends that, by the express language in the warranty deed, the easement does not run with the land and cannot transfer to Ms. Tennison’s heirs.
When interpreting a deed, the court gives primary consideration to the intent of the grantor. Winningham v. Harris, 64 Ark.App. 239, 981 S.W.2d 540 (1998). When the court is called on to construe a deed, we will examine a deed from its four corners for the purpose of ascertaining that intent from the language employed. Id. The intent of the grantor should be garnered solely from the language in the deed unless the language of the instrument is ambiguous, uncertain, or doubtful. Bennett v. Henderson, 281 Ark. 222, 663 S.W.2d 180 (1984).
An appurtenant easement runs with the land and serves a parcel of land known as the dominant tenement, while the parcel of land on which the easement is imposed is known as the servient tenement. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995). In this case the trial court found from the language employed in the warranty deed that the easement ran with the land, and this finding was not erroneous. The warranty deed described the properly and the easement conveyed to Ms. Tennison and her parents, followed by this language: “To have and to hold the same unto said GRANTEES and their heirs and assigns forever, with all appurtenances thereunto belonging.” This language makes it clear that the easement was being conveyed to the grantees and their heirs and assigns, as found by the trial court.
Affirmed.
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ROBERT J. GLADWIN, Chief Judge.
| lAppellant Cleveland Wright appeals his convictions by a Pulaski County jury of first-degree domestic battering, fleeing, and possession of cocaine, for which he was sentenced to a term of 780 months in the Arkansas Department of Correction. On appeal, he argues that a police officer’s testimony violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. We find merit in appellant’s argument but hold that the circuit court’s error was harmless and affirm his convictions.
Appellant was married to Ronique Wright, and they lived in an apartment with their children in Jacksonville, Arkansas. Early in the morning on February 22, 2012, Ms. Wright, bleeding from serious knife wounds and “fading in and out,” went to the apartment of her neighbor, Pamela Livings. Ms. Livings called 911, and Ms. Wright provided law-enforcement officers with a description of appellant’s vehicle. Officers subsequently located and pursued a vehicle matching the description on Pike Avenue in North Little Rock. | ^Appellant led the officers through North Little Rock and Sherwood, driving sixty miles-per-hour on city streets and running through stop signs and red lights. He turned onto Highway 161 and increased his speed to ninety and ninety-five miles-per-hour, at one point passing a stopped school bus with flashing lights. He finally stopped after pulling into a driveway along Highway 161.
Dr. Robert Haley Shaw, a surgeon at Baptist Health Medical Center in North Little Rock, examined and operated on Ms. Wright. He determined that she had thirty lacerations, including a stab wound in her abdomen large enough for her intestine to protrude through the abdominal wall. She also had wounds on her chest, including one near the aorta, multiple wounds on her left arm and left hand, as well as a collapsed left lung.
On April 12, 2013, the State filed an amended, three-count felony information against appellant in which the State alleged that on or about February 22, 2012, appellant committed the following criminal offenses: (1) Class B felony first-degree domestic battering; (2) Class D felony fleeing; and (3) Class D felony possession of cocaine. In the information, the State requested that any sentence of imprisonment imposed on appellant for having committed first-degree domestic battering be enhanced pursuant to Arkansas Code Annotated section 5-4-702(a) (Supp.2011), because he committed the offense in the presence of a child, his and Ms. Wright’s minor son, R.J. The State also alleged in the information that appellant was a habitual offender with four or more prior felony convictions, as defined in Arkansas Code Annotated section 5-4-501(b) (Supp.2011).
Appellant’s jury trial was held on April 16-17, 2013. The jury found him guilty of having committed first-degree domestic battering in the presence of a child, felony fleeing, |3and cocaine possession. The jury sentenced appellant as a habitual offender, and the circuit court imposed the four consecutive sentences of imprisonment, which resulted in an aggregate sentence of sixty-five years pursuant to a sentencing order entered on April 22, 2013. Appellant filed a timely notice of appeal on May 16, 2013.
Appellant argues that the circuit court erred in denying an objection made by his counsel on the basis of the Confrontation Clause of the Sixth and Fourteenth Amendments to the United States Constitution. In a criminal prosecution in a state court, the defendant has a Sixth Amendment right to confront the witnesses against him. Chambers v. State, 2012 Ark. 407, 424 S.W.3d 296. A defendant’s Sixth Amendment right to confront the State’s witnesses is applicable to the states as a matter of the Fourteenth Amendment because it is essential to a fair trial. Id. at 2, 424 S.W.3d at 298 (citing Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). For questions of constitutional interpretation, this court employs a de novo standard of review. Chambers, supra.
Appellant argues that the circuit judge erred in denying his Sixth and Fourteenth Amendments Confrontation Clause-based objection to State’s witness Jacksonville Police Officer John Alberson’s repeating statements made to him out of court by the victim, Ms. Wright, which included the statement that she and her husband had argued at their apartment. His attorney made a timely objection during the direct examination of Officer Alberson as follows:
Officer Alberson: With regard to what I do remember about Ronique Wright, what was her condition when I first saw her, she was bleeding from multiple puncture wounds. She had[,] I could tell[,] stab wounds in her hands, her mouth, around her neck area. She did have a shirt on but it was, I mean, she was just covered in blood.
|4She was in and out of a panic state. She was able to tell me what had happened[,] but I had her sit down.
I grabbed a white plastic lawn chair and actually had her sit down until the ambulance arrived on scene. And I got as much information from her as I possibly could on the suspect.
Deputy Prosecuting Attorney: Let’s talk about that for a minute. With regard to what information did she give you about the suspect?
Defense Counsel: May we approach, please?
The Court: Yes.
(Counsel approached the bench for a conversation with the circuit judge, out of hearing of the jury, as follows:) Defense Counsel: Judge, it sounds like they’re going to offer testimony from Ms. Ronique Wright that was told to this officer. I have two objections on that. One is hearsay. Also, the other is that it violates the Confrontation Clause of the Sixth Amendment of the U.S. Constitution, also the Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ] case that supports it that this is testimony.
These were questions asked by this officer of Ms. Ronique Wright for the purpose of developing a case and prosecuting this case. And because of that and because I have no way of cross-examining her since she is not present here today, this violates the Sixth Amendment’s confrontation clause and it is also rank hearsay.
Deputy Prosecuting Attorney: My first argument, Judge, is that exception to hearsay under [Arkansas Rule of Evidence] 803, you have present sense impression and also excited utterance. It would qualify — these statements would qualify under that.
And secondly, this is based on what she told him about the defendant and the car, the description of the car. A broadcast is put out. So that’s also basis of action.
Defense Counsel: These are all testimonial in nature, Judge. Disallowed without her being present.
Deputy Prosecuting Attorney: Why they’re looking for the car, I mean, because she gave them that description. The Court: I will allow it.
| s(Then, in open court:)
Officer Alberson: With regard to what information did she give me about the person that did this to her, she advised me her and her husband had got into an argument at their apartment, which was actually across the parking lot, apartment 5B, I do believe, was their apartment. And that they had a son in the room, that was in the living room. Defense Counsel: Judge, if we could approach.
(Counsel again approached the bench for a conversation with the circuit judge, out of hearing of the jury, as follows:) Defense Counsel: Judge, I have a continuing objection. I thought we just discussed this that he was going to give a description of the car that he obtained from her. Because we’re not going in to the circumstances of this case. That’s clearly testimony that he has elicited. This is — the testimony they offer that it violates the Confrontation Clause, Judge.
Deputy Prosecuting Attorney: Is the Court — has the Court made a ruling with respect to the hearsay exception? The Court: Right.
Deputy Prosecuting Attorney: I mean, she has been stabbed and she’s trying to relay this information to the officer. Defense Counsel: Keep your voice down.
Deputy Prosecuting Attorney: Is it a hearsay — so can I continue?
The Court: I say that’s an exception. You may continue.
Defense Counsel: Judge, this is not a hearsay argument.
The Court: Okay.
Defense Counsel: This is a Sixth Amendment Confrontation Clause argument under the Crawford case.
The Court: That’s denied. That’s denied. Have a seat. Thank you.
| ^Appellant claims that Officer Alber-son’s on-scene questioning of the victim, Ms. Wright, was not conducted to address an on-going emergency. There are multiple United States Supreme Court cases that analyze the Confrontation Clause issue appellant presents to this court. The most recent is Michigan v. Bryant, — U.S. —, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), where the Supreme Court discussed the relevant line of cases and further analyzed the legal principles governing “testimonial” hearsay, which the Supreme Court discussed in Crawford, swpra, and later in Davis v. Washington and Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (consolidated for purposes of appeal). In Crawford, the Supreme Court introduced the concept of testimonial hearsay and held that if the out-of-court declarant is unavailable to testify at trial and if the defendant has not had a prior opportunity to cross-examine the declarant, the Confrontation Clause prohibits the introduction at trial of the de-clarant’s out-of-court statements.
In Davis and Hammon, the Supreme Court further developed the concept of testimonial hearsay to “determine more precisely which police interrogations produce testimony” and therefore implicate a Confrontation Clause bar. Davis and Hammon, 547 U.S. at 822, 126 S.Ct. 2266. The Supreme Court made clear that not all those questioned by the police are witnesses and not all interrogations by law-enforcement officers are subject to the Confrontation Clause. See Bryant, 131 S.Ct. at 1153. Similar to the instant case, Davis and Hammon were both domestic-violence cases. In Davis, the victim made the statements at issue to a 911 operator during a domestic disturbance with her former boyfriend. She told the operator, “‘He’s here jumpin’ on me again,’” and, “ ‘He’s usin’ his fists.’ ” 547 U.S. at 817,126 S.Ct. 2266. The operator then asked the victim for the perpetrator’s first and last names and middle initial, and at that point in the conversation the victim reported that he had fled in a car. Id. |7at 818, 126 S.Ct. 2266. As in this .case, the victim did not appear at the trial, and the State introduced the recording of her conversation with the 911 operator. Id.
In Hammon, police responded to a domestic-disturbance call at the home of the victim and perpetrator, who were married, where the victim was found alone on the front porch. She appeared “‘somewhat frightened,’ ” but told them “ ‘nothing was the matter.’ ” Bryant, 131 S.Ct. at 1154 (quoting Hammon v. State, 829 N.E.2d 444, 446-47 (Ind.2005)). The victim gave the police permission to enter the house, where they noticed a gas heater with the glass front shattered on the floor. One officer remained in the kitchen with the perpetrator, while another officer talked to the victim in the living room about what had happened. Id. The perpetrator tried several times to participate in the victim’s conversation with officers, and he became angry when the police required him to stay away from her. Id. Officers asked the victim to All out and sign a battery affidavit, in which she provided a detailed description of the altercation. Id. The victim did not appear at the trial, and the officers who spoke with her testified as to her statements and authenticated the affidavit. Id. The circuit court admitted the affidavit as a present-sense impression and admitted the oral statements as excited utterances under state hearsay rules. Id. The Indiana Supreme Court affirmed Ham-mon’s conviction, holding that the victim’s oral statements were not testimonial and that the admission of the affidavit, although erroneous because the affidavit was testimonial, was harmless. See Hammon v. State, 829 N.E.2d at 458-59.
The Supreme Court consolidated the cases, expanded the meaning of “testimonial” first analyzed in Crawford, and discussed the concept of an ongoing emergency:
| ^Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They áre testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Bryant, 131 S.Ct. at 1154 (quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266). The Supreme Court went on to hold that the statements at issue in Davis were non-testimonial, but the statements in Ham-mon were testimonial. Id. The Supreme Court distinguished the statements in Davis from the testimonial statements in Crawford on several grounds, including that (1) the victim in Davis was speaking about events as they were actually happening, rather than describing past events; (2) there was an ongoing emergency that the elicited statements were necessary to resolve; and (3) the statements were not formal. Davis, 547 U.S. at 827, 126 S.Ct. 2266.
In Hammon, however, the Supreme Court specifically held that “[i]t is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct.” Id. at 829, 126 S.Ct. 2266. There was not an emergency in progress, and the officer questioning the victim was not seeking to determine what was currently happening, but rather what had already occurred. See id. at 830, 126 S.Ct. 2266. The Supreme Court held that it was more formal because officers interrogated the victim in a room separate from her husband, the perpetrator, where, “some time after the events described were over,” she “deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed.” Id. The Supreme Court held that because the victim’s statements “were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation,” id. at 832, 126 S.Ct. 2266, they were testimonial.
|9In the case before us, appellant’s counsel made a Crawford-based objection to Officer Alberson’s repeating in-court statements made to him out of court by Ms. Wright, who was appellant’s spouse. The record before us indicates that Ms. Wright was not available to testify at appellant’s trial, and appellant had not had a previous opportunity to cross-examine her.
Appellant asserts that the facts of the Supreme Court’s most recent case analyzing testimonial hearsay in the context of a police officer’s on-the-scene questioning of a victim of a crime, Bryant, supra, has facts similar to this case. In Bryant, a police officer, responding to a radio dispatch, found a man lying on a gas station parking lot, having been shot in the abdomen. The victim subsequently died of his wounds; however, before he was removed from the crime scene, officers were able to speak with him for about ten minutes. Id. During that discussion, the victim was able to tell officers that Richard Bryant had shot him, where the shooting had occurred, and at what time. Id. At Mr. Bryant’s trial, officers were allowed to repeat in court what the victim had told them about the incident.
In Bryant, a majority of the Supreme Court held that the officers’ repetition in court of the victim’s out-of-court statements were not testimonial hearsay and were not, therefore, prohibited from introduction into evidence by the Sixth and Fourteenth Amendments’ Confrontation Clause. Much of the opinion is an overview of the prior decisions in Crawford, Davis, and Hammon regarding testimonial hearsay in a similar situation. The Supreme Court reiterates that its position on the testimonial-hearsay issue is that the appropriate analysis is intensely fact-driven and must be decided on a case-by-case basis.
The Supreme Court in Bryant held that answers that police officers get from a victim of a crime at the scene are not testimonial hearsay if they are later repeated in court by the | inofficers when the primary purpose of the police officers’ on-the-scene questioning of the victim is to enable the police to meet an ongoing emergency. The Supreme Court noted specifically that the circumstances of the encounter between officers and the victim provide the context for determining why officers questioned the victim, and that the circumstances are to be viewed objectively. Bryant, 131 S.Ct. at 1156. The Supreme Court held that “the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation.” Id. at 1160. The Supreme Court noted the informality of the police questioning of Mr. Bryant, but concluded that “informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent.” Id. Moreover, the Supreme Court explicitly stated,
The existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist the police in addressing an ongoing emergency lack the testimonial purpose that would subject them to the requirement of confrontation. As the context of this case brings into sharp relief, the existence and duration in an emergency depend on the type and scope of danger posed to the victim, the police, and the public.
Id. at 1162. The Bryant Court then summarized the nature of the situation the police faced in that particular case as follows,
For their part, the police responded to a call that a man had been shot. [T]hey did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime occurred. The questions they asked — “what had happened, who shot him, and where the shooting occurred” — were the exact type of questions necessary to allow the police to assess the situation, the threat to their own safety and possible danger to the potential victim, and to the public.
Id. at 1165-66 (internal citations omitted).
| nA close examination of the questioning by Officer Alberson of Ms. Wright, as well as her answers, demonstrate that Officer Alberson was not, objectively, facing an ongoing emergency that posed a danger either to the public at large, or specifically to Ms. Wright or himself. Officer Alber-son testified that he questioned Ms. Wright to get “as much information from her as I [possibly] could on the suspect.” She told Officer Alberson that she and her husband “had got into an argument.” It is important to note that the Supreme Court in Bryant stated, “Domestic violence cases like Davis and Hammon often have a narrower zone of potential victims than cases involving threats to public safety.” Bryant, 131 S.Ct. at 1158. Officer Alber-son testified that he had been dispatched to a “stabbing” — information that informed Officer Alberson, before he encountered Ms. Wright, that she was not the victim of a shooting rampage. In Bryant, the Supreme Court indicated that the presence of a firearm, as opposed to another sort of weapon, such as the fists of a domestic abuser, contributed to an objective sense that no ongoing emergency was present. Id. at 1158-59, 1163-64. Additionally, Officer Alberson also testified that Ms. Wright had told him that appellant “had left the area.” This information would support Officer Alberson’s objectively reasonable belief that he did not face an ongoing emergency while questioning Ms. Wright.
We hold that this situation was more akin to Hammon, in that none of the information gathered by Officer Alberson in questioning Ms. Wright would have led an objectively reasonable person to conclude that he was confronting an ongoing emergency during his encounter with Ms. Wright.
|12The nature of the crime committed against Ms. Wright was undisputedly one of domestic violence. The offense was not committed by a stranger, but rather by her husband, appellant. It is also undisputed that by the time Officer Alberson questioned Ms. Wright, appellant had fled the scene. The information Officer Alber-son obtained would have suggested to an objectively reasonable person that appellant did not pose an ongoing threat to the public, to Ms. Wright, or to the police. Because Ms. Wright’s out-of-court statements to Officer Alberson were not made in the context of an ongoing emergency, we hold that they were testimonial hearsay when repeated in court by Officer Alber-son and the circuit court erred in denying appellant’s CVaw/ord-based Confrontation Clause objection to the admissibility of Ms. Wright’s out-of-court statements.
That said, we affirm appellant’s convictions, holding that the error by the circuit court was harmless beyond a reasonable doubt, and appellant can show no prejudice. The information conveyed by Officer Alberson was not challenged by appellant and was also presented through other witness testimony independent of Officer Alberson’s testimony.
Beyond the mere assertion of the right to confront witnesses, appellant must also demonstrate prejudice by the denial of examination of the witness or that such a request would have availed him anything. See Miller v. State, 2010 Ark. 1, 362 S.W.3d 264. A Confrontation Clause violation is subject to harmless-error analysis, meaning harmless beyond a reasonable doubt. Hughes v. State, 2012 Ark. App. 586, at 5-6, 2012 WL 5327700. This court has held that whether the denial of the right to confront a witness is harmless beyond a reasonable doubt depends on numerous factors, including (1) the importance of the witness’s testimony in the State’s case; (2) whether the testimony was cumulative; (3) the presence or absence of |!.-¡evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the State’s case. Id.
Ms. Wright did not appear or testify at appellant’s trial; however, R.J., the son of appellant and Ms. Wright, who was seven years old at the time of trial, testified that he was in the living room when he saw appellant stab Ms. Wright with a knife in the kitchen. During his direct examination, the prosecutor asked Officer Alberson what information Ms. Wright gave him about the person who had stabbed her. Officer Alberson testified as follows:
She advised me her and her husband had got into an argument at their apartment, which was actually across the parking lot, apartment 5B, I do believe, was their apartment. And that they had a son in the room, that was in the living room.
On appeal, appellant challenges only Officer Alberson’s testimony that Ms. Wright and appellant had had an argument in their apartment while their son was in the living room.
Appellant has never disputed the facts related by Officer Alberson, that he and Ms. Wright had argued in the presence of their son. It should be noted that Officer Alberson’s account of what Ms. Wright told him did not include any assertion by her that appellant had stabbed her. Rather, it was their son, R.J., who testified independently of Officer Alberson’s testimony that he saw appellant stab Ms. Wright. Later in appellant’s trial, Sergeant Robert Washington of the Jacksonville Police Department testified that he observed appellant at the jail and heard appellant tell other arrestees that he was there because he had stabbed his wife after she had first stabbed him. He explained that appellant also told the other arrestees that he had led the police on a high-speed chase and had swallowed a large amount of cocaine.
|14In reviewing the factors listed above for determining whether the denial of the right to confront a witness is harmless beyond a reasonable doubt, we hold that Officer Alberson’s testimony — that a marital argument took place in front of appellant and Ms. Wright’s son — was not required to prove the State’s case. That testimony was cumulative to both R.J.’s graphic testimony that he saw appellant stab Ms. Wright and Sergeant Washington’s testimony that he heard appellant tell others that he had stabbed his wife. The admission of Officer Alberson’s testimony was harmless beyond a reasonable doubt because it did not put the jury in possession of any fact that was not otherwise admitted without objection. Because appellant has failed to show how Officer Al-berson’s testimony could possibly have contributed to the jury’s verdict, he has failed to show any prejudice, and any error was harmless beyond a reasonable doubt.
Affirmed.
WOOD and BROWN, JJ., agree. | [
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ROBIN F. WYNNE, Judge.
11 Harold “Bud” Ward appeals from an order of the Pulaski County Circuit Court in which the circuit court found him in contempt for failing to obey prior orders. He argues on appeal that the order constitutes an improper modification of the divorce decree, that appellee Linda Ward (Tutton) failed to prove contempt, and that she failed to reserve the issue of attorney’s fees. We affirm.
The parties were divorced via a decree entered on June 29, 2011. The parties’ property included several different businesses. Appellee was awarded Ward’s Turf, Incorporated. Appellee was also awarded ownership of Bud Ward’s Antique Cars. However, the marketable assets of that company were ordered to be sold at public auction with the proceeds to be divided between the parties. Appellant was awarded Bud Ward’s Collector Cars. Appellee was awarded a parcel of commercial real estate in Little Rock that was 12encumbered by two separate mortgages. Appellee was ordered to pay the first mortgage and appellant was ordered to pay the second mortgage. Appellant was awarded the marital home and ordered to pay the mortgage on that property. Ap-pellee was awarded a lien on the marital home equal to the amount of the second mortgage on the commercial property. Both parties were awarded certain personal property. Appellant was ordered to pay alimony.
Appellee filed a motion for contempt on June 30, 2011, the day after the decree had been entered. In the motion, she alleged that appellant had failed to pay alimony and had failed to make payments on the second mortgage on the commercial property. She also alleged that he had sold a jukebox owned by the antique-car business in violation of the circuit court’s restraining order. The circuit court entered an order on August 10, 2011, in which it found appellant in contempt for willfully failing to pay the loan and ordered him incarcerated. The circuit court set a $5000 bond, which was ordered to be released to appel-lee when paid. Appellant paid the bond, and the funds were released to appellee. All other contempt issues were reserved.
The circuit court entered another order finding appellant in contempt and imposing sanctions on September 2, 2011. In the order, the circuit court found that appellant was in willful contempt for failing to pay his obligations as ordered in the decree. Appellant was ordered to deliver the properly listed in two exhibits submitted by appellee to her by 5:00 p.m. on September 2, 2011. The remaining issues were taken under advisement by the circuit court. The order also granted appel-lee permission to file a written fee petition upon entry of the circuit court’s decision regarding the outstanding issues. Appel-lee’s attorney | ^advised the circuit court, in a letter filed on September 7, 2011, that, although appellant returned some of the items listed, he did not return all of the items, and some of the items he returned had been damaged while in his possession.
Appellant filed a motion to compel enforcement of divorce decree and for contempt citation on November 14, 2011. In the motion, appellant alleged that appellee refused to agree to an auctioneer and a time to auction off the assets of the antique-car business. He also alleged that appellee sold certain assets of the business without giving him his share of the proceeds. He also requested that appellee be held in contempt for failing to give him his toolboxes, a lifetime-achievement trophy, and a bicycle. Appellee filed a motion for contempt on November 16, 2011, in which she alleged that appellant failed to return property and make payments as ordered.
A hearing on the motions filed on November 14, 2011, and November 16, 2011, was held on May 17 and 18, 2012. Appel-lee testified that her property that was returned damaged by appellant had been in good condition when she left it with him. According to her, the truck that was returned had a dent on the driver’s side, a broken windshield, chipped paint, a dented fender, and ruined upholstery. Mike Jas-so with Sally’s Body Shop estimated the repairs for damage to the truck’s interior to be $4000. Appellee had to put new batteries in the truck and have work performed on the engine after it was returned. The trailer that was returned had a flat tire. Appellee had to get duplicate titles to the truck and trailer because appellant would not return the original titles. Some of the items in the trailer had not been tied down. Several model cars had been haphazardly thrown into a box on the trailer and |4were rendered worthless. Not all the model cars were returned. Several other items of appellee’s properly from the business had not been returned. Appellee’s golf cart had been damaged by exposure to the elements while in appellant’s possession. The upholstery was discolored and in poor condition. Appellee testified that it had previously always been kept inside a building. A neon Cadillac emblem was returned damaged. Appellee stated that none of her items from the marital home had been returned to her. Appellant failed to pay appellee the proceeds from the jukebox he sold. According to appellee, the properly returned to her by appellant was not worth anything approaching what she had expected to receive through an auction.
Appellee testified that the payments on the second mortgage on the commercial property were continually two months behind. Real estate taxes on the marital home for 2009 and 2010 had not been paid by appellant. Appellee testified that the amount of unpaid taxes was $8,173.30. According to appellee, appellant had failed to keep the mortgage on the marital residence current. Appellee expressed concern over what she characterized as the “deterioration” of the outside of the marital home since the divorce and stated that appellant had failed to perform routine maintenance on the home.
Appellee testified that the auction was never performed because appellant would not choose an auctioneer and insisted on performing the auction himself. Appellant denied interfering with the auction. Ap-pellee stated that she saw appellant purchase several vehicles at an auction on September 24, 2011. She estimated that he spent approximately $57,000 for cars that day. Appellant testified that the money had come from friends. Appellee testified | .¡¡that she knew appellant had been to several other auctions, although she did not know how much he had spent. Appellee stated that, after appellant had paid the $5000 bond, she paid approximately $3900 to bring the note on the commercial property current and gave the remainder to her attorney for fees. Appellant testified that he understood that the entire $5000 would be given to the bank. Appellee denied selling anything since the decree had been entered.
Michael Fisher, the executive vice president and chief lending officer with National Bank of Arkansas, testified that the parties have loans that are secured by the commercial property in Little Rock. Mr. Fisher stated that, at the time of the hearing, seven payments had been made on the second mortgage since August 2011. No payment was made in September 2011. Prior to a payment that was made the day before the hearing, the second mortgage had been in default for more than thirty days. The loan remained thirteen or fourteen days past due, despite the payment. Due to foreclosure proceedings that had been started in 2011, the bank ordered an appraisal in August 2011 that cost $2200.
Jacqueline Tutton, appellee’s daughter-in-law, testified that she saw the items that were delivered to appellee by appellant on September 2, 2011, and they had not been handled carefully. She stated that appellant historically took good care of things and kept them clean and maintained. Mrs. Tutton stated that the model cars looked as though someone had taken them and thrown them in boxes in a manner that would not have been acceptable to appellant if the models were to be displayed in his shop. Kevin Tutton, appel-lee’s son, agreed that appellant historically took great care with his properly. He stated that quite a few of the | (¡model cars were broken and scratched. He stated that the damage to the truck was not present when appellant took the truck.
Appellant testified that the dents in the truck were caused by a tire blowout in 2009. He stated that the truck was in good condition when he gave it to appellee. He also testified that other items that she alleged had been damaged were not and that items she claimed had not been returned to her had been sold prior to the divorce. Appellant denied damaging any of the model cars. He testified that appel-lee refused to return his tools, trophy, and bicycle. Appellant admitted having certain items that belonged to appellee in the home, but he indicated that he was afraid to meet her anywhere to give them to her. He also admitted failing to deliver certain items on September 2, 2011, and explained that the trailer was full.
The circuit court entered its order on August 20, 2012. In the order, the circuit court found that appellant had failed to pay the second mortgage on the commercial property, causing the mortgage to be in default, past due, or “slow paid” continu ally since the entry of the previous order. The circuit court specifically found that appellant had the ability to pay and that his failure to do so was willful and intentional contempt of the court’s orders. The circuit court also found that appellant had failed to comply with prior orders by failing to return property to appellee, returning property to appellee in a damaged condition, thwarting efforts to auction property, and failing to pay real estate taxes on the marital home. The circuit court awarded the parties the property from the antique-car business that each had in his or her possession, due to appellant’s failure to return property for auction and causing damage and loss of value to property. Appellant was awarded the proceeds from the sale of 17the jukebox. The marital home was ordered to be sold, with the proceeds applied to the outstanding mortgages. Appellant was ordered to pay any balance remaining on the indebtedness after application of the proceeds from the sale. The amount paid to appellee’s attorney out of the $5000 bond was applied as a credit against attorney’s fees claimed by appellee, and appellee was awarded attorney’s fees in the amount of $12,810.
Appellant appeals from an order finding him in contempt and imposing sanctions as a consequence of the contempt. Contempt is divided into criminal contempt and civil contempt. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Id. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. Because appellant was held in civil contempt, we apply our standard of review for civil contempt, which is whether the finding of the circuit court is clearly against the preponderance of the evidence. Id.
Citing Arkansas Rule of Civil Procedure 60, appellant first argues that the circuit court’s order constitutes an impermissible modification of the divorce decree because it gave all the assets of the antique-car business to appellee. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order, or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk. Ark. R. Civ. P. 60(a) (2013). In this case, the circuit court did not make a modification to correct error or mistake or to prevent the miscarriage 18of justice. Instead, the circuit court imposed a sanction as a remedy for the contempt. Thus, appellant’s reliance on Rule 60(a) is misplaced. To the extent that appellant may also be arguing in this point on appeal that the sanction for the contempt was excessive, the trial court may, in its wide discretion, choose to assign much, little, or no punishment at all for a contempt citation. Davenport v. Uselton, 2013 Ark. App. 344, 2013 WL 2278089.
Next, appellant argues that appel-lee failed to prove that he willfully failed to pay the mortgage. Appellant contends that appellee should have applied the entire $5000 bond to the mortgage on the commercial property and, if she had done so, the mortgage would not have been past due. Appellee testified that she paid a sufficient sum out of the $5000 to bring the mortgage current. The circuit court ordered only that the bond be paid to her. Although it may have intended to do so, the court never ordered her to pay the full $5000 to the bank, and appellant was given a credit for the amount paid to appellee’s attorney. Appellant was not held in contempt because the full $5000 was not paid to the bank; he was held in contempt because he failed to keep the note current after appellee had applied the proceeds from the bond. Although he argues in his brief that there was no evidence that he failed to pay the note, he is mistaken. There was testimony from appellee and an employee of National Bank of Arkansas that the account on the second mortgage had been past due and “slow paid” since the bond had been paid. This testimony is sufficient for the circuit court to reasonably conclude that appellant willfully failed to make payments as ordered, and the circuit court’s finding of contempt is not clearly against a preponderance of the evidence.
Appellant also argues that appellee failed to prove that he willfully refused to return | ^property. Appellant admitted at the hearing that he had items belonging to appellee that he had not returned. Although he attempted to explain this failure in his testimony, the circuit court indicated expressly in its order that it did not find his testimony credible. In addition to the items that had not been returned, the circuit court found that appellant was in contempt for damaging certain items of property before returning them to appellee. Again, there was conflicting testimony as to whether appellant had damaged the property, and the trial court resolved the conflict in favor of appellee. The evidence submitted at the hearing is sufficient for the circuit court to have concluded by a preponderance of the evidence that appellant committed contempt by willfully failing to return properly to appellee and returning property in damaged condition.
Appellant also appears to argue that the only proper remedy for the contempt was a fine and that the sanction imposed by the circuit court bore no relation to the contempt. In contempt cases, the trial court has discretion to fashion the punishment to fit the circumstances. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). In this case, the circuit court had previously ordered that appellant be jailed, and it imposed a $5000 bond. That did not stop the contemptuous behavior by appellant. In light of this, the circuit court fashioned a remedy that it felt would be effective in obtaining compliance by appellant. As noted above, a trial court has wide discretion in determining the severity of the punishment for contempt. Davenport, supra. Given the circumstances, including appellant’s repeated, ongoing failures to abide by the circuit court’s orders, we hold that the circuit court did not abuse its discretion in fashioning the contempt sanction imposed.
|,(¡Appellant's final argument is that ap-pellee failed to reserve the issue of attorney’s fees. The August 10, 2011 order expressly reserves the issue of attorney’s fees. The September 2, 2011 order specifically states that appellee may petition for fees upon entry of an order disposing of the remaining contempt issues. Appellant’s assertion that fees should only be awarded from September 2, 2011, forward is without merit, as the August 10, 2011 order reserves the fee issue, and appellee continually asked for attorney’s fees in her various motions for contempt, placing appellant on notice that fees were being sought. Further, a circuit court has the inherent power to award attorney’s fees in domestic-relations proceedings, and whether it should award fees and the amount thereof are matters within its discretion. Friend v. Friend, 2010 Ark. App. 525, 376 S.W.3d 519. It was proper for the circuit court to award attorney’s fees to appellee in this case, and it did not abuse its discretion in doing so.
Affirmed.
WHITEAKER and VAUGHT, JJ„ agree. | [
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BRANDON J. HARRISON, Judge.
I. Introduction
11 Christopher W. Allen appeals the Arkansas Board of Review’s denial of unemployment benefits. Allen applied for unemployment benefits to the Arkansas Department of Workforce Services, and the Department denied his claim. Allen appealed the denial to the Arkansas Appeal Tribunal, and a Tribunal hearing officer held a telephone hearing in December 2012. The Tribunal denied Allen benefits pursuant to Ark.Code Ann. § 11 — 10—513(a)(1) (Repl.2012) after finding that he quit work due to the “travel-ling distance” between his home in Cabot, Arkansas and his work with Langston Bag in West Memphis, Arkansas. Allen appealed the Tribunal’s decision to the Board, and the Board affirmed. Allen here appeals the Board’s final order, arguing that he is entitled to benefits because he left his work for good cause. Substantial evidence supports the Board’s decision, so we affirm the Board’s denial of unemployment benefits to Allen.
| ⅞11. Tribunal Hearing Testimony
Langston Bag hired Allen to train others to operate some equipment that Allen knew well, but with which Langston Bag was largely unfamiliar. Langston Bag employed Allen for almost a year — from October 2011 to October 2012. Langston Bag agreed to give Allen a $10,000 bonus for the first six months of the job to help defray Allen’s travel expenses. Allen lived in Cabot, Arkansas and drove to Langston Bag in West Memphis, Arkansas every day — an approximately 270 mile round trip. About six months into the job, which was around the time his bonus ran out, Allen began to have significant travel-related problems. Specifically, he could no longer afford the cost of gasoline, and his car stopped working. Family issues complicated things too; Allen said, for example, that he had to care for his wife who had back surgery. Allen borrowed a car from his parents, borrowed gas money, and continued to commute to West Memphis. He asked his supervisors for help with travel time and expenses, and two supervisors gave Allen a onetime gift of money to help with gas costs. When asked by the hearing officer whether Allen knew that he would not be receiving a bonus after the six-month time, Allen said: “I hadn’t looked that far ahead.”
In October 2012, about a week before Allen quit, Langston Bag put Allen on a point system for attendance. It was disputed whether Allen was reprimanded for missing a day of work during his last week of employment.
Wayne Croom, who testified for Lang-ston Bag, said that the company decided to move Allen to a different position because there was an issue with his performance. Croom explained that Langston Bag hired Allen to train people on “highly skilled ^technical computerized machines” and during the second six months Allen worked there Langston Bag “felt like it wasn’t going the way we needed it to go [with Allen.]” That’s when, according to Croom, Edward Langston, Langston Bag’s general manager, discussed a “new structured plan” for Allen to become a bottom-er-machine operator instead of a trainer. Allen told the hearing officer that Edward Langston called him into Langston’s office and told him to go home for the day and that Langston Bag would call him if they came up with another job or position. Allen testified that he “never went back.”
In addition to the testimony, the hearing officer received as evidence this October 11 email from Edward Langston to Wayne Croom:
Ronnie & I just met with Chris. He displayed his usual, loafing demeanor in the meeting, but he did express a desire to work 4 10-hour days a week and to operate a bottomer. I explained that we would be making a decision to either (a) develop a new, structured plan for him, or (b) sever ties. I told him to not come in tomorrow, but to await a phone call from us tomorrow afternoon with our decision. I would like to pursue option (a), with us establishing a simpler, structured set of responsibilities and expectations. Here is what I think we should communicate when you and I call him;
1. Chris is to report to work Monday thru Thursday for the standard 1-hour bottomer day shift.
2. His new job function will be Bot-tomer Operator.
4. He will be held [to] the standard point system.
A “Consultation” dated 15 October 2012 was also received as evidence during the hearing, which states:
Edward Langston and Ronnie Reece Shift Manager met with Chris Thursday 10-11-12 to discuss Chris’[s] disposition. During the meeting Chris was given (2) options — # 1 Operate a Bottomer 4 (10) hour days weekly and # 2: We would develop a new, structured plan for him in his current capacity. Chris was asked to leave for the day and not to return to work until Edward and I had discussed Chris’s disposition. On Sunday 10-14-12 Chris and I discussed the above (2) options and I asked him to call me RMonday 10-15-12 to let us know whether he would accept either of the above terms. As of Wednesday 10-17-12 Chris had not called to discuss his disposition. Due to this fact he has voluntarily resigned from Langston Co. Inc. effective 10-17-12.
III. The Board’s Decision
The Board made the following factual findings and conclusions of law:
In the present case, the claimant abandoned the job when he did not contact the plant manager, after being instructed to do so, to advise if he was interested in continuing to work for the employer. During the last week of em ployment the claimant missed work. The general manager called the claimant into the office to advise that the claimant was missing too much work. The claimant apparently explained he was having trouble getting to work because the two hour one-way commute from Cabot to West Memphis was too expensive and tiresome. The general manager said that the employer would consider other work options and contact the claimant.
The plant manager testified that the claimant was subsequently contacted and offered a new position operating a machine. The general manager told the claimant to consider the offer and let the employer know. On Sunday October 14, 2012, the plant manager telephoned the claimant to ask what the claimant decided. The plant manager recalled that the claimant had not decided. He instructed the claimant to contact him the next day with a decision. The plant manager never heard from the claimant again. He concluded that the claimant quit the job.
The claimant noted that he did not accept the change because the employer was going to put him on a point system for attendance purposes. Because of the commute distance, and the gasoline expense for the commute, the claimant did not believe the new position would be acceptable.
The evidence presented does not support a finding that the claimant had good cause connected with the work to leave the work. The claimant accepted the job in West Memphis on the condition that he would receive a bonus after six months of work. He received that bonus, but there was no agreement as to another bonus or to a gasoline allowance after that six month bonus was paid. When the claimant felt that he was no longer being compensated for his commute from Cabot to West Memphis he decided he could not afford the commute. He quit by declining to accept the change in job positions.
IgUnder the facts presented, the Board does not find that the claimant established by a preponderance of the evidence that he left the work for a reason that would be considered good cause connected with the work to be eligible for unemployment insurance benefits.
IV. Analysis
This court affirms the Board of Review when its decision is supported by substantial evidence. Garrett v. Dir., Dep’t of Workforce Servs., 2014 Ark. 50, 2014 WL 495124. Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences in the light most favorable to the Board’s findings. Id. Even if the evidence could support a different decision, our review asks whether the Board could have reasonably reached its decision based on the evidence presented. Id.
Arkansas Code Annotated Section ll-10-513(a)(l) (Repl.2012) provides that “an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.” When a claimant has voluntarily quit work and is seeking unemployment-insurance benefits, the claimant must show by a preponderance of the evidence that he or she had good cause connected with the work for quitting. Davis v. Dir., Dep’t of Workforce Servs., 2013 Ark. App. 515, 2013 WL 5272928. Good cause is that which would reasonably impel the average able-bodied, qualified worker to give up employment and de pends on the facts and circumstances in a case. Id.; see also Magee v. Dir., Arkansas Employment Security Dep’t, 75 Ark. App. 115, 55 S.W.3d 321 (2001). The term “good cause” can also mean a justifiable reason for not accepting the particular job offered. Hiner v. Dir., Ark. Employment Sec. Dep’t, 61 Ark.App. 139, 143, 965 S.W.2d 785, 787 (1998). |fiAn employee’s refusal to continue employment must not be arbitrary or capricious; and the reason must be connected with the work itself. Id.
Allen argues that he did not voluntarily leave work after Langston Bag discontinued travel assistance, that he had good cause to terminate his employment when he was reassigned to a different position, and that the Board lacked substantial evidence to rule against him.
Regarding his argument that he did not voluntarily leave his employment, Allen cites Missouri v. Dir., Employment Security Dep’t, 84 Ark.App. 172, 137 S.W.3d 436 (2003). There, the claimant had no car and depended on public bus transportation to and from work. We held that reasonable minds could not find that Missouri quit his work given the lack of transportation; instead, Missouri was discharged when the plant manager suddenly decided to discontinue the employer’s practice of providing a substitute worker for Saturday overtime work when Missouri did not have access to public transportation to get to work. Id. at 176, 137 S.W.3d at 439. Allen says his case is like Missouri because Langston Bag suddenly decided to discontinue its practice of helping him with travel expenses, making his departure involuntary or, alternatively, voluntary with good cause.
We disagree. Substantial evidence supports the Board’s finding that Allen abandoned his job when he did not contact the plant manager, after being instructed to do so, to tell the company if he wanted to continue working for Langston Bag. The Consultation sheet and Croom’s testimony support this point. Allen testified that he “had no choice but to quit” and that he “never went back.” But the Board’s finding that Allen quit voluntarily is supported by substantial evidence.
|7The more pressing issue is whether Langston Bag’s decision not to extend its practice of helping Allen with travel expenses with a bonus created good cause for Allen to quit. The Board found that Allen and Langston Bag had no agreement that another bonus or gasoline allowance would issue after Langston Bag paid Allen the initial six-month bonus. When asked by the hearing officer whether Allen knew that he would not be receiving a bonus after six months to help with travelling costs, Allen replied, “I hadn’t looked that far ahead.” We find that, here, unlike in Missouri, there was no sudden policy shift by the employer. What is more, Allen had access to private transportation at all times — Missouri, on the other hand, relied on a public-bus schedule.
Langston Bag honored its promise to pay the $10,000 bonus but decided to not help Allen further with the commuting costs after the bonus was spent. When viewed favorably to the Board, the evidence suggests that, when Allen was hired, he might not receive reimbursement beyond the initial bonus. We hold that substantial evidence exists to support the Board’s finding that Allen’s unreimbursed commuting costs was not a good cause to quit his employment.
For Allen’s second point — that he had good cause to terminate his employment when he was reassigned to a different position — he cites Lewis v. Dir., Employment Security Dep’t, 84 Ark.App. 381, 141 S.W.3d 896 (2004). In Lewis, we concluded:
Appellant had worked for Ace for nearly twenty years. After five years of complaining to all levels of management about being reassigned to a position that, in his experience, caused him to lose pay, after offering to assist with training other employees, and after having management violate its own seniority rules and take virtually no action to provide a permanent remedy, appellant quit. We agree with appellant that his circumstances would reasonably impel an average, able-bodied, qualified worker to give up his or her employment. Id. at 387,141 S.W.3d at 900.
|RThis case is different from Lewis. Unlike in Lewis, here we have no evidence that Allen complained to management about a loss of pay in the new position or that the new position would be more dangerous than his job as a trainer. In fact, no party produced evidence on whether the pay was higher, lower, or the same for the new position that Langston Bag offered Allen. Further, Allen did not raise the issue of danger below, so we will not consider it here. Hiner, supra. As for the attendance-related point system, the Board stated this as one reason why Allen did not accept the change of position and, we believe, could have reasonably determined that Allen’s dissatisfaction with the attendance policy did not amount to good cause. In sum, substantial evidence supports the Board’s conclusion that Allen did not prove he had good cause to end his employment with Langston Bag when he had the option to be reassigned.
For his final argument, Allen cites Ballard v. Dir., Dep’t of Workforce Servs., 2012 Ark. App. 371, 2012 WL 1943622, for the proposition that the Board lacked substantial evidence to rale against him. In Ballard, an employee quit because he could no longer work as a travelling salesman after his car was repossessed. We held that Ballard had good cause for quitting his work because his employer had not paid him for several weeks of work, Ballard’s lack of a paycheck led directly to his car being repossessed, and the job required Ballard to provide his own transportation as a small-business resale representative. Id.
Allen argues that, like Keith Ballard, he lost his vehicle due to his work conditions and was forced to borrow a vehicle from his parents. Allen also argues that, as in Ballard, the Board in this case focused on a superficial reason for denying benefits— that Allen could no longer afford the commute — instead of focusing on the real issue, which was that 19“he was strung along by reassurances from management that ‘better arrangements’ would be made in the future.” We are not persuaded. Langston Bag paid Allen for the work he did. The extent to which Langston Bag’s promised to extend a bonus or supplement Allen’s commuting cost was disputed at the hearing, and we defer to the Commission’s resolution of disputed facts when the record supports the final decision.
Affirmed.
WYNNE and GLOVER, JJ., agree. | [
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WAYMOND M. BROWN, Judge.
| Appellant appeals from his convictions for sexual assault in the second degree and residential burglary. On appeal, appellant argues that (1) there was insufficient evidence to convict him of either residential burglary or sexual assault in the second degree; and (2) pursuant to Wicks v. State, errors were committed at trial that were of such a character as to affect his substantial rights to a fair process and to affect the structure of the trial such that the court should have raised the issue sua sponte, despite the lack of a contemporaneous objection at trial. We affirm.
On July 22, 2012, the appellant entered the home of a female neighbor. While there, the appellant fondled her while she was sleeping. The victim was awakened by the appellant’s touching and told him to leave. The victim’s minor son had been awake and lying next to her throughout the incident, although he pretended to be asleep. After she 12was sure that appellant had left the premises, she went to her mother’s home across the street and called the police.
A criminal information was filed on August 29, 2012, charging the appellant with residential burglary and sexual assault in the second degree. The trial began on March 29, 2013.
The victim testified that she was married, but had a boyfriend as she and her husband were separated; had lived in the same place since June 2009; and lived across the street from the appellant, who was her mother’s neighbor. She stated that the appellant had been to her apartment “a couple of times” with mutual friends, but their relationship was “in passing” and not a “real friendship conversation type thing” as he “creeped [her] out.”
The victim testified that she and her son were sleeping on a mattress in the living room on the morning of July 22, 2012. She advised that her daughter was spending the night across the street with her mother and that she left the back door unlocked so they could easily get into the apartment in the morning. She asserted that she woke up to the appellant touching her breast “over my clothes” and her vagina “under both the underwear and pajamas.” She said she yelled at him to “get the hell out my house”; that he left eventually; and that she then took her son to her mother’s home and called 911 after she was sure he had left. When the police arrived, they took her report and she showed them where he had gone. She admitted that she did not know her son had seen ^anything until the next day. Finally, she stated that there was not a “situation of hanging about and drinking and come and go as you please” at her home.
After being questioned and found competent by the court, the victim’s son testified that he was sleeping with his mom on the night of the incident when the appellant came into the apartment and touched his mom while she was sleeping. He stated that he was about to go get some water when the appellant entered the apartment, so he pretended he was asleep until the appellant left. He testified that his mother woke up when the appellant started touching her and told the appellant to get out though he did not remember her exact words. He initially stated that he had not seen the appellant before the night of the incident though he eventually admitted that he had.
Officer Billy Collins testified that he was dispatched on the night of the incident and found the victim “very shaky, crying and visibly upset.” She had advised him that the appellant had run into an apartment. Officer Collins stated that he and another officer attempted to make contact with the appellant, but were not able to do so due to a language barrier between themselves and the man, not the appellant, who answered the door; they could not get consent to enter. He stated that they never made physical or verbal contact with the appellant, although they did see a scooter matching the victim’s description in the apartment. He testified that the victim “seemed very [believable] to me but you just never know.”
Officer Mario Garcia testified that he spoke Spanish fluently; that about “thirty or forty percent” of his job was translating for fellow officers during interviews and out in the |4field; and that his translating in this case “was certainly not the first time.” He testified that he accompanied Officer Torkelson to make contact at the appellant’s apartment later on that day and that he assisted during the interview, both at the residence and at the police department, as a translator. He testified to his belief, after reviewing the audio of the interview, that his translation was accurate both as to questions and answers.
Officer Garcia then testified that the appellant told the officers that he had been with the victim prior to going to a bar where he became intoxicated. The appellant told Officer Garcia that he had left the bar when it closed and was heading back home, but had stopped at the victim’s apartment upon noticing that the door was open. He admitted to the officers that he had let himself into the victim’s home and told her “I need you.” When questioned further, the appellant had explained that “I need you” meant he wanted to have sex with her.
He testified that the appellant had admitted that he and the victim were not on good terms, though he could not remember why, and mentioned that he had been in her home before though the number of times changed. He stated the appellant characterized his understanding of the victim as having a “loose reputation.”
The State then rested, and the appellant moved to dismiss the case. The court denied the motion. For its case, the appellant put on one witness who was disclosed to the State by email at 9:20 pm on March 28, 2013. Maria Nieves-Parara, a friend of the appellant, testified that the appellant and the victim were friends and would get together |5more than once a week, mostly on weekends. She testified that her husband had visited the victim the day before the trial to ask her to “look into her conscience and not say anything that wasn’t true”; she denied that she or her husband had asked the victim to drop the charges. She stated that she had heard that the appellant and the victim were mad at each other though she didn’t know if it was true. She asserted that the victim always leaves her door open, but averred that the appellant would have been wrong if he had entered the victim’s house without her permission in the middle of the night. Finally she admitted that she could not say for certain whether anything happened or not between the victim and the appellant.
The appellant renewed his motion to dismiss; it was denied. The court then found the appellant guilty of residential burglary and sexual assault in the second degree, for which he was sentenced to ten years’ and twenty years’ imprisonment, respectively, in the Arkansas Department of Correction. This timely appeal followed.
I. Sufficiency
Appellant’s first argument is that there was insufficient evidence to support his conviction of either residential burglary or sexual assault. Before considering the merits of this point on appeal, this court must first determine whether the issue was properly preserved for appellate review. Rule 33.1 of the Arkansas Rules of Criminal Procedure governs motions to dismiss in bench trials and provides in relevant part as follows:
|fi(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required ... will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal.
Accordingly, in order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion to dismiss, both at the close of the State’s evidence and at the end of all the evidence, which advises the trial court of the exact element of the crime that the State has failed to prove. The reason underlying our requirement that specific grounds be stated and that the absent proof be pinpointed is that it gives the trial court the option of either granting the motion, or, if justice requires, allowing the State to reopen its case and supply the missing proof. We will not consider arguments that are |7raised for the first time on appeal, and a party is bound on appeal by the nature and scope of the objections and arguments presented at trial.
Appellant’s counsel moved to dismiss the matter before the trial court and followed that request with a litany of facts, the purpose of which appeared to be to attack the victim’s credibility by insinuating that the relationship between the victim and the appellant was more than the victim admitted. She stated that the victim was “of questionable morals” and noted that there was no sign of forced entry and no DNA evidence. Following this recitation, counsel asked the court to dismiss both the residential burglary charge and the sexual assault charge. This was not sufficient to advise the court of any deficiency in the State’s case. Appellant’s counsel failed to assert that any specific element of either charge had not been proven.
As part of his insufficiency argument, appellant now argues that (1) the State’s evidence did not prove that the victim was “physically helpless” or that the appellant committed a forcible compulsion on the victim as required for sexual assault in the second degree; and (2) the State’s evidence did not prove the purpose element of residential burglary. Appellant did not make either of these arguments when making the motion to dismiss the case below; therefore, these arguments are proeedurally barred.
a. Competency of Minor
In his sufficiency argument, appellant also argues that the victim’s son, a minor, was not competent to testify, or rather should have been disqualified from testifying, due to |sthe court’s failure to require the witness to state his knowledge of the consequences of false swearing. Appellant made this argument below, however minimal the argument was; therefore, it is preserved. In Warner v. State, this court stated the following regarding competency:
The question of the competency of a witness is a matter lying within the sound discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. Any witness is presumed to be competent unless proven otherwise. The party alleging that a witness is incompetent has the burden of persuasion. The issue of the competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony.
A witness’s competency may be established by the following criteria: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt, or heard. As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony.
Child witnesses are treated no differently than adults in determining competency. The age of a child is not determinative of competency. We apply the same presumption and standards in deciding the capacity of a child witness to testify as are applied in determining the competency of any witness.
| aBefore the trial court, the following colloquy ensued between the witness and the prosecutor:
Q: [I.B.], can you — can you answer me yes or no? Do you know that it’s the right thing to do to tell the truth?
A: Yes.
Q: Okay. And it’s the wrong thing to do to tell a lie? Will you get into trouble if you tell a lie?
A: Yeah.
Q: Okay. Is that wrong to tell a lie?
A: Yeah.
Q: Okay. And do you know that it’s important to tell the truth today?
A: Yeah.
Q: Okay. Are you going to tell the truth here?
A: [Nodding head up and down.]
Q: What’s your favorite sport?
A: Soccer.
Q: Soccer? Okay. Do you have a favorite soccer team?
A: Barcelona.
Q: Barcelona? Okay. What kind of colors does Barcelona wear on their uniforms?
A: Black and — black and purple.
Q: Black and purple? Okay.
IioA: And blue.
Q: Okay. Now, [LB.], if I — if I told you today that — if I said today, Isaac, I’m— I’m not standing here wearing a suit, I’m standing here wearing a uniform for the Barcelona soccer team; would that be real or not real?
A: Not real.
Q: Not real, because I’m not wearing a Barcelona uniform am I? Okay. So if I said I was wearing a Barcelona uniform today, that — would that be the truth— A: No.
Q: — or would that be a lie?
A: Alie.
Q: It would be a lie.
Q: And [LB.], do you understand that — today that you are just like if— like I have to tell the truth about what kind of clothes I’m wearing today, okay? You have to tell the truth about what we ask you, do you understand that?
A: Yeah.
Q: Okay. And do you promise that you’re going to tell the truth today when we ask you questions?
A: Yeah.
The prosecutor then began his questioning, but was interrupted by appellant’s counsel who still had reservations regarding the witness’s competency. The following colloquy then ensued between the court, the prosecutor, and appellant’s counsel:
Ms. Ashley: I’m sorry to belay [sic] a point, but I think he needs to say what might happen if he doesn’t tell the truth today. I mean, I don’t know if he actually said that, as far as telling it in here, he said it with Ms. Barnes. Do you feel like—
| nMr. Smith: I don’t think we covered that witnesses, I don’t—
The Court: I don’t think that’s required, as long as he’s making a commitment to tell the truth.
Mr. Smith: I would just put on—
The Court: And — has demonstrated an understanding of the difference between the truth and a lie, which he has.
Ms. Ashley: Okay.
Mr. Smith: And that’s — I would just put that on the record that I think he had committed to that and has demonstrated an understanding of the difference between the two.
Appellant argues that the court’s failure to require any statement of the child’s knowledge of the consequences of false swearing should have either disqualified the witness or required that he be found incompetent. However, it was not necessary for the witness to specifically state that he understood the consequences of false swearing. The witness demon strated a clear understanding of the difference between the truth and a lie and testified to his commitment to telling the truth.
After being accepted as competent to testify by the court, the witness testified that he remembered the night of the incident from the previous summer because he was sleeping beside his mother, the victim, when he saw the appellant touch his mom. He testified to being about to go get some water when the appellant came into the apartment, but then pretending he was asleep until the appellant left the house. He testified that his mother was asleep when she was awakened by the appellant’s touching her, and then she 112told the appellant to get out. Though the witness’s answer changed regarding whether he had seen the appellant prior to the incident on the night of July 21, 2012, he was clear about the events of that night.
It was up to the trial court to determine whether the witness had a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts; therefore, we cannot find clear abuse in the court’s decision permitting the witness to testify.
II. Wicks
In his second point on appeal, appellant argues that Officer Garcia should not have been permitted to testify regarding appellant’s statement because he was not a certified court translator. Because he admits that no contemporaneous objection was raised below, he seeks this court’s review under Wicks v. State. Wicks presents four narrow exceptions to the contemporaneous-objection rule: (1) when the trial court in a death-penalty case fails to bring to the jury’s attention a matter essential to its consideration of the death penalty; (2) when defense counsel has no knowledge of the error and thus no opportunity to object; (3) when the error is so flagrant and highly prejudicial in character that the trial court should intervene on its own motion to correct the error; and (4) when |1sthe admission or exclusion of evidence affects a defendant’s substantial rights. A Wicks exception will not apply absent a flagrant error so egregious that the circuit court should have acted on its own initiative. Our case law is clear that Wicks presents only narrow exceptions that are to be rarely applied. Appellant argues that this court should conduct plain-error review of his claims under the third and fourth exceptions to the contemporaneous-objection requirement
The third Wicks exception deals with a court’s duty to intervene, even without an objection, to correct a serious error. In Wicks, our supreme court said:
A third exception is a mere possibility, for it has not yet occurred in any case. That relates to the trial court’s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial.
The supreme court has held that the third exception is limited to only those errors affecting the very structure of the criminal trial, such as the fundamental right to a trial by jury, the presumption of innocence, and the State’s burden of proof.
1 uThe offending action was Officer Garcia’s testimony to statements made to him by the appellant, in spite of the appellant’s decision not to testify pursuant to his constitutional right to remain silent. This action is similar to that taken in Chunestudy v. State, where the officer who took Chunestudy’s statement after Mirandizing him was allowed to testify regarding Chunestudy’s statement, in spite of Chun-estudy’s decision to exercise his right to remain silent. In that case, the supreme court held that the officer’s testimony did not fall within the purview of the third Wicks exception, and so, we hold the same here.
The fourth Wicks exception deals with the admission or exclusion of evidence that affected the defendant’s substantial rights. The fourth Wicks exception has its roots in Arkansas Rule of Evidence 103(d), which provides that “[njothing in this rule precludes taking notice of errors affecting substantial rights, although they were not brought to the attention of the court.” Our supreme court has warned against relying on this exception, stating that it “is negative, not imposing an affirmative duty, and at most applies only to a ruling which admits or excludes evidence.” Because this issue deals with evidentiary rulings by the trial court, which are subject to an abuse-of-discretion standard, such rulings 11fi“simply must be raised below before this court will consider them on appeal.” In Mathis, the offending action was testimony from the Lonoke County Dispatcher to statements the victim made to her during a 911 call that contradicted to the victim’s testimony on the stand at trial. This is similar to our case where a statement made out of court was testified to in court by someone other than the speaker. In Mathis, this court declined to apply the fourth Wicks exception, and we decline to apply it now. Therefore, because neither the third nor the fourth Wicks exceptions apply, and the argument was not raised below, it is not preserved.
Even if it is assumed that the fourth Wicks exception applies in the present case and that the issue of whether Officer Garcia’s testimony can be considered on appeal despite appellant’s failure to contemporaneously object, any conclusion that appellant’s Fifth Amendment rights were violated is subject to a harmless-error analysis. In Vankirk v. State, our supreme court explained that:
Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witnesses] testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-1 ^examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
In light of the victim’s testimony that the appellant touched her breasts on top of her shirt and touched her vagina under both her pants and underwear, which is sufficient to support conviction, the testimony of Officer Garcia would constitute harmless error.
Affirmed.
WALMSLEY and WOOD, JJ., agree.
. 270 Ark. 781, 606 S.W.2d 366 (1980).
. The boyfriend was not home during the incident; he was in Colorado for work.
. The victim had told the officers that she had seen the appellant pushing a scooter prior to their arrival.
. Appellant's counsel had erroneously believed the witness's name was "Ms. Angel.” She did not know "Ms. Angel's” first name.
. T.C. v. State, 2010 Ark. 240, at 7, 364 S.W.3d 53, 59 (citing Maxwell v. State, 359 Ark. 335, 197 S.W.3d 442 (2004)).
. (2013).
. Holt v. State, 2011 Ark. 391, at 7, 384 S.W.3d 498, 504 (citing Carey v. State, 365 Ark. 379, 230 S.W.3d 553 (2006)).
. Id. (citing Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004)).
. Reed v. State, 2011 Ark. App. 352, at 11, 383 S.W.3d 881, 887 (citing Whitson v. State, 314 Ark. 458, 466, 863 S.W.2d 794, 798 (1993); and Simmons v. State, 90 Ark.App. 273, 278, 205 S.W.3d 194, 197(2005)).
. 93 Ark.App. 233, 218 S.W.3d 330 (2005) (citations omitted).
. Modlin v. State, 353 Ark. 94, 98, 110 S.W.3d 727, 729 (2003) (citing Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982)).
.Id. (citing Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993)).
. There is no other mention of a "Ms. Barnes” in the record.
. Modlin, supra, 353 Ark. at 100, 110 S.W.3d at 731 (2003) (citing Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002)).
. Appellant also argues, again, that the victim's nine-year-old son was not competent to testify. Because we have already addressed this argument, we do not address it here.
. 270 Ark. 781, 606 S.W.2d 366 (1980).
. Mahomes v. State, 2013 Ark. App. 215, at 8-9, 427 S.W.3d 123, 129 (citing J.S. v. State, 2009 Ark. App. 710, 372 S.W.3d 370).
. Weathers v. Ark. Dep’t of Human Servs., 2014 Ark. App. 142, at 11, 433 S.W.3d 271, 277 (citing Pratt v. Ark. Dep’t of Human Servs., 2012 Ark. App. 399, at 13, 413 S.W.3d 261, 263).
. Lard v. State, 2014 Ark. 1, at 27, 431 S.W.3d at 268 (citing Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55).
. Id., 2014 Ark. at 26-27, 431 S.W.3d at 268 (citing Wicks, 270 Ark. at 786, 606 S.W.2d at 369-70) (citations omitted).
. Id., 2014 Ark. at 27, 431 S.W.3d at 268 (citing White v. State, 2012 Ark. 221, 408 S.W.3d 720).
. 2012 Ark. 222, 408 S.W.3d 55.
. Halliday v. State, 2011 Ark. App. 544, at 10, 386 S.W.3d 51, 57 (citing Ark. R. Evid. 103(d) (2010)).
. Id. (citing Buckley v. State, 349 Ark. 53, 65-67, 76 S.W.3d 825, 833 (2002) (quoting Wicks, 270 Ark. at 786, 606 S.W.2d at 370)).
. Mathis v. State, 2012 Ark. App. 285, at 8, 423 S.W.3d 91, 96 (citing Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005) (quoting Buckley v. State, 349 Ark. 53, 66, 76 S.W.3d 825, 833 (2002))).
. Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891.
. Mahomes v. State, 2013 Ark. App. at 9, 427 S.W.3d at 129.
. White v. State, 2012 Ark. 221, at 6, 408 S.W.3d 720, 724 (citing Vankirk, 2011 Ark. 428, at 11, 385 S.W.3d at 151 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986))).
. Castrellon v. State, 2013 Ark. App. 408, at 4-5, 428 S.W.3d 607, 611 (citing Colburn v. State, 2010 Ark. App. 587, 2010 WL 3582441) (the victim’s testimony need not be corroborated for the victim’s testimony alone is enough for a conviction.) | [
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JIM HANNAH, Chief Justice.
11Appellants, Bank of the Ozarks, Inc., and Bank of the Ozarks (the “Bank”) appeal the denial of a motion to compel arbitration of a class-action complaint filed by appellees, Robert Walker, Ann B. Hines, and Judith Belk. The circuit court denied the motion on the ground that the arbitration provision in the account agreement between the Bank and the appellees was unconscionable. The Bank originally appealed to the court of appeals, which reversed and remanded for entry of an order compelling arbitration. See Bank of the Ozarks, Inc. v. Walker, 2013 Ark. App. 517, 2013 WL 5273028. Appellees petitioned this court for review, and we granted the petition. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. E.g., Garrett v. Dir., Dep’t of Workforce Servs., 2014 Ark. 50, at 1, 2014 WL 495124. On appeal, the Bank contends that the arbitration provision is enforceable and, therefore, the circuit court erred in denying its motion to compel arbitration. We reverse and ] 2remand the circuit court’s order and vacate the opinion of the court of appeals.
Appellees filed a class-action complaint against the Bank, asserting claims for breach of contract and breach of the covenant of good faith and fair dealing, unconscionability, conversion, unjust enrichment, and violations of the Arkansas Deceptive Trade Practices Act arising from the Bank’s alleged practice of manipulating and reordering customers’ checking-account debit transactions to maximize the number of overdrafts and, thus, the amount of overdraft fees charged to each customer. Appellees alleged that the Bank provided them and all members of the proposed class with an account agreement and attached to their complaint a document entitled “Consumer Deposit Account Agreement” (“Deposit Agreement”). Appellees alleged that the Deposit Agreement was a “representative copy” of the account agreement provided to them by the Bank and that it did not adequately disclose the Bank’s improper manipulation of transactions of overdraft-assessment practices. The Deposit Agreement included, inter alia, the following provisions:
ORDER OF PAYMENT. You understand that when two or more checks are presented for payment on the same day, the law allows us to pay them in any order. For now, we have chosen to pay them in serial number within transaction code order. We can, in good faith, choose a different order of payment after giving you any legally required notice.
OVERDRAFTS. We do not have to let you overdraw the account. If we ever do, that does not mean we must continue to do so. You do not expect any notice of an overdraft beyond any normal periodic statement.
In response to the complaint, the Bank filed a motion to dismiss, or alternatively, a motion to stay the proceedings and compel arbitration pursuant to the Federal Arbitration Act (the “FAA”). The Bank contended that the circuit court should compel arbitration ^because the Deposit Agreement attached to appellees’ complaint contained the following arbitration provision:
ARBITRATION. You or we may require that any controversy or claim relating to this agreement, or breach of it, be resolved through arbitration administered by the American Arbitration Association under its commercial rules. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction.
In addition, the Bank attached to its response other exhibits, including the checking-account signature cards of appellees and two versions of account agreements. In response to the Bank’s motion, appel-lees contended that the circuit court should not compel arbitration because (1) the Bank had waived its right to arbitration by filing a comprehensive motion to dismiss; (2) not all of the Bank’s account agreements contain an agreement to arbitrate and, thus, the circuit court may not compel arbitration where there is no agreement to arbitrate; and (3) the arbitration provision is unconscionable pursuant to Arkansas law and unenforceable in light of the American Arbitration Association’s moratorium on arbitrations involving consumer-finance matters. The Bank responded, contending that it had not waived its right to arbitration because it had asserted that right in its first responsive pleading. In a surreply, appellees contended that the Deposit Agreement did not mandate arbitration because “it expressly provided for jurisdiction of this matter in the circuit court.” In support, the appel-lees cited the following provisions:
LAW, JURISDICTION, AND VENUE. The laws of Arkansas govern this agreement. The courts of that state have jurisdiction of any dispute in connection with this agreement. You agree that venue will be proper in the courts in the county Land city of our office where you signed or delivered this agreement.
WAIVER OF JURY TRIAL. You waive your right to a jury trial in any dispute with us. Such disputes may be tried before a judge only.
After a hearing and consideration of the pleadings filed, the circuit court ruled that the arbitration provision was unconscionable and thus unenforceable. Accordingly, the circuit court denied the Bank’s motion to stay proceedings and compel arbitration. The Bank now brings this interlocutory appeal.
An order denying a motion to compel arbitration is immediately appealable under Arkansas Rule of Appellate Procedure — Civil 2(a)(12) (2013). This court reviews an order denying a motion to compel de novo on the record, determining the issue as a matter of law. E.g., Gruma Corp. v. Morrison, 2010 Ark. 151, at 4, 362 S.W.3d 898, 901.
Although an arbitration provision is subject to the FAA, courts look to state contract law to decide whether the parties’ agreement is valid. E.g., DIRECTV, Inc. v. Murray, 2012 Ark. 366, at 3, 423 S.W.3d 555, 559. In Arkansas, the same rules of construction apply to arbitration agreements as apply to agreements in general. E.g., Alltel Corp. v. Sumner, 360 Ark. 573, 576, 203 S.W.3d 77, 79 (2005). Thus, the essential elements for an enforceable arbitration agreement are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. Id., 203 S.W.3d at 79.
A threshold inquiry is whether a valid agreement to arbitrate exists; that is, whether |flthere has been mutual agreement, with notice as to the terms and subsequent assent. Id., 203 S.W.3d at 80. We keep in mind two legal principles when deciding whether a valid contract was entered into: (1) a court cannot make a contract for the parties but can only construe and enforce the contract that they have made; and if there is no meeting of the minds, there is no contract; and (2) it is well settled that in order to make a contract there must be a meeting of the minds as to all terms, using objective indicators. Id., 203 S.W.3d at 80. If the court finds that a valid agreement to arbitrate exists, then the court must determine whether the dispute falls within the scope of the arbitration agreement. E.g., HPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408, at 6, 424 S.W.3d 304, 308. Even if a court finds that an arbitration agreement exists and that the dispute falls within the scope of the arbitration agreement, the court may still declare an arbitration agreement unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.” See, e.g., BDO Seidman, LLP v. SSW Holding Co., 2012 Ark. 1, at 14, 386 S.W.3d 361, 370 (quoting Federal Arbitration Act, 9 U.S.C. § 2). “Thus, generally applicable contract defenses, such as fraud, duress, or unconscionability may be applied to invalidate arbitration agreements.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996).
In the instant case, although the parties disputed the existence of a valid arbitration agreement, the circuit court failed to make any findings regarding whether such an agreement existed. Rather, the circuit court denied the Bank’s motion to compel based on appellees’ defense of unconscion-ability. As previously noted, appellees denied the existence of a valid arbitration agreement in their response to the motion to compel and in their Rsurreply. Moreover, at the hearing, counsel for appellees argued:
I’d like to point out to the Court that while it’s true that we attach something called the deposit agreement to the account, something that’s an exemplar of what we believe our clients had, I want to point out, and I’m not sure ultimately what impact this will have, Your Honor, it’s not executed, no one signed it, and, indeed, I can’t know today, because I haven’t had discovery, to know what the bank’s practice was with respect to these so-called deposit agreements. Did they place them in front of the new customer at the bank and say, “Mr. Walker, or Ms. Hines, please sign this?”
If that occurred, which would make it enforceable as between the parties who were signators to it, they haven’t produced that, and we don’t have that. If you look at each of the documents they’ve attached to their motion, they— and I’m not even sure what they are. They may be exemplars or they may be somebody else’s.
If you look at exhibit three of their— to their motion, which is the deposit agreement which they say applies here, it doesn’t contain the signature of any of our clients and, indeed, it has someone else’s name, a Stephanie — I don’t have it just in front of me, but if Your Honor would look at exhibit three, you will see that it contains someone else’s name, not a signature, but it’s actually typed in into one of the corners of the document with what appears to be an account number.
[W]e don’t even know with absolute certainty, which form of the contract, the so-called agreement, is applicable to each of the plaintiffs here. As you can imagine, when you have a banking relationship with a bank that may span a decade, the likelihood of your retaining the initial papers that were given to you nine or ten years ago and having them today is remote, number one.
Number two, there may be — in fact, we’ve already seen that there are different versions of this so-called agreement. What the Court respectfully I think has to do under Arkansas Rules of Civil Procedure is take the document that we’ve attached to our complaint and to use that as a basis to understand the breach of contract assertion that we’ve made here.
The Bank takes the position that the circuit court implicitly, if not expressly, found that there was a valid arbitration agreement. Without such a finding, however, we can only speculate about whether the circuit court considered this issue. It is possible that the circuit court assumed the existence of an arbitration agreement without deciding the issue. | ./Accordingly, we reverse and remand to the circuit court to determine, in the first instance, whether there is a valid agreement to arbitrate between the parties. If the circuit court finds that there is a valid agreement to arbitrate, then it must determine whether the dispute falls within the scope of the agreement. If the court finds that the dispute falls within the scope of the agreement, then it may consider whether appel-lees have a defense that may be applied to invalidate the agreement.
Reversed and remanded; court of appeals’ opinion vacated.
BAKER, GOODSON, and HOOFMAN, JJ., dissent.
. These account agreements were not the same as the Deposit Agreement attached to appellees' complaint.
. In addition, the circuit court granted in part and denied in part the Bank’s motion to dismiss, but those rulings are not relevant in this interlocutory appeal.
. The parties agree that Arkansas contract law applies in this case. | [
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PAUL E. DANIELSON, J.
|,Appellant Tracy Dean Jeffries appeals his conviction of two counts of rape and the two consecutive life sentences he received as a result of the conviction. Jef- fries raises three points on appeal: (1) the circuit court erred by denying his motion for directed verdict; (2) the State’s burden of proof was impermissibly lowered; and (3) the circuit court erred by not excluding certain evidence pursuant to Rule 404(b) of the Arkansas Rules of Evidence. After reviewing the record, we find no error and affirm.
Z.B., who was ten years old at the time of trial, testified that he was friends with some of Jeffries’s family, particularly Jef-fries’s grandson, D.J. Z.B. would often spend the night with D.J. and others at Jeffries’s residence. Z.B. recalled that, on several occasions, Jeffries would suck Z.B.’s penis while he was there visiting. Z.B. would wake up in Jeffries’s room, and Jeffries would be sucking his penis. Z.B. testified that, on one occasion, Jeffries anally raped 12him and on another, Jeffries tried to make Z.B. suck Jeffries’s penis, but Z.B. threw up making the attempt. Z.B. never reported to anyone what Jef-fries was doing to him because he was scared and because Jeffries had told him that something bad would happen if he told.
While Z.B.’s parents considered Jeffries a good friend of their family, Robert Moore, who was Z.B.’s soon-to-be stepfather at the time of trial, testified that he grew suspicious of Jeffries when he found text messages from Jeffries to Moore’s eleven-year-old daughter and when Jef-fries began to talk inappropriately about other young girls. Moore discussed this suspicion with Z.B.’s mother, Dathena Roots. Roots then approached Z.B. and asked him if Jeffries had ever done anything to make him uncomfortable. Roots testified that Z.B.’s eyes grew teary, and he disclosed what Jeffries had been doing. Roots immediately reported it to the authorities.
On July 6, 2012, the State charged Jef-fries by felony information with two counts of rape, in violation of Arkansas Code Annotated section 5-14-103, based on the allegation that he had engaged in sexual intercourse or deviate sexual activity with a person less than fourteen years of age by committing oral sex on a juvenile and by committing anal sex on a juvenile. Prior to trial, Jeffries filed a motion in limine, arguing to exclude evidence of prior convictions, his prior sex-offender status, and any mention of prior criminal history. The State then moved to admit certain evidence pursuant to the pedophile exception. The State argued that testimony from D.J., Jeffries’s minor grandson, as well as testimony from an older niece and nephew of Jeffries, C.C. and G.B., would illustrate Jeffries’s proclivity to engage in similar acts of sexual activity with children and, therefore, should be admissible. Following | sa hearing, the circuit court found that the testimony of D.J., C.C., and G.B. would be admissible regarding their allegations of Jeffries’s prior sexual acts with them.
On March 13, 2013, the case proceeded to trial. At the conclusion of the State’s case-in-chief, Jeffries moved for directed verdict, which was denied. Jeffries did not present any witnesses and rested his case. At the conclusion of the trial, the jury found Jeffries guilty on both counts of rape and sentenced him to life imprisonment for each count to be served consecutively. The circuit court subsequently entered a judgment and commitment order reflecting the jury’s conviction and sentence. Jeffries timely filed a no- tice of appeal and now brings his appeal from the circuit court’s order.
Jeffries contends that the circuit court erred in denying his motion for directed verdict on the charges of rape. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. See id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. See id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. See id.
14A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age. See Ark.Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013). “Sexual intercourse” means “penetration, however slight, of the labia ma-jora by a penis.” Ark. Code Ann. § 5-14-101(11) (Repl.2013). “Deviate sexual activity” is defined as “any act of sexual gratification” involving “[t]he penetration, however slight, of the anus or mouth of a person by the penis of another person.” Ark.Code Ann. § 5-14-101(l)(A) (Repl. 2013).
As previously noted, the victim here, Z.B., testified that Jeffries forced him to submit to oral sex on several occasions and had also penetrated him anally. In addition, the jury heard testimony from Jef-fries’s minor grandson, as well as Jeffries’s older niece and nephew, that Jeffries had performed similar acts on them and in a similar fashion. Additionally, D.J. testified that he had seen Z.B. alone in the bedroom with Jeffries one night and that Jeffries was doing something similar to Z.B. as Jeffries had done to him; although, D.J. did admit that because it was dark in the room, he could not see fully what they were doing.
While Jeffries argues that Z.B. was not old enough to provide credible testimony to constitute substantial evidence, the argument is not well taken. First, Jeffries never challenged the victim’s competency to testify at trial. Furthermore, this court has repeatedly held that a rape victim’s uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. See Breeden v. State, 2013 Ark. 145, 427 S.W.3d 5; see also Jones v. State, 300 Ark. 565, 780 S.W.2d 556 (1989). A rape victim’s testimony need not be corroborated, and scientific evidence is not required. lsSee Breeden, 2013 Ark. 145, 427 S.W.3d 5. Moreover, it is the function of the jury, and not the reviewing court, to evaluate the credibility of witnesses and to resolve any inconsistencies in the evidence. See id. Substantial evidence was presented to the jury in the instant case to support Jeffries’s convictions of rape, and we affirm.
For his second point on appeal, Jeffries argues that he was deprived of a fair trial because the State lowered the required burden of proof during voir dire. The State avers that this argument has no merit because the circuit court did not abuse its discretion in conducting voir dire and the jury was ultimately instructed with a correct statement of the State’s burden. We agree with the State.
The course and conduct of voir dire examination of the veniremen is primarily within the circuit court’s discretion and an appellant must show that the court abused that discretion. See Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). This court will presume that the jury followed the court’s instruction on the proper burden of proof. See id.
A review of the voir dire proceedings reveals that the circuit court did not entertain all of Jeffries’s objections to comments by the State relating to the burden of proof. However, the circuit court did admonish the jury to disregard one question presented by the State when the court believed that the State had not correctly phrased the proper burden. It also appears that the circuit court had to keep Jeffries’s counsel from deviating from the correct burden in his statements to the jury. The circuit court interjected and gave the following instruction to the venire members:
There are elements that I will read to you of each one of these offenses. Those | f,elements are mandatory for the State to prove beyond a reasonable doubt. Those elements are presented to you in facts. You will receive the facts from the witness stand and exhibits that are introduced into evidence per my instructions. You will apply those facts to the elements of the crime and decide from there whether the State has proved beyond a reasonable doubt. I do not want you confused by the arguments made in voir dire by the attorneys.
Additionally, at the close of the case, the empaneled jurors were more specifically instructed before deliberations. The court read instructions to the jury on the specific charges, and the jury was informed that the State had to prove each element of the offense charged beyond a reasonable doubt. One of the instructions defined reasonable doubt. The instructions read to the jury had been first reviewed by both the State and by Jeffries’s counsel, and there were no objections. We cannot say after our review of the record that the circuit court abused its discretion in how it conducted voir dire, or that the State was allowed to lower its burden of proof.
Lastly, Jeffries argues that the testimony of D.J., C.C., and G.B. should have been excluded because it was irrelevant as to his guilt or innocence in the instant case, as well as highly prejudicial. The State argues, as it did below, that the evidence was admissible under the pedophile exception to Rule 404(b) of the Arkansas Rules of Evidence. Jeffries provides no argument that the pedophile exception did not apply to the evidence. We find no error in the circuit court’s admission of the testimony.
This court’s precedent on the pedophile exception to Rule 404(b) is as follows:
The admission or rejection of evidence under Rule 404(b) is within the sound discretion of the circuit court, and it will not be reversed absent a manifest abuse of discretion. E.g., Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). According to Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove |7the character of a person in order to show that he acted in conformity therewith.” Such evidence is permissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ark. R. Evid. 404(b). This court’s precedent has recognized a “pedophile exception” to this rule, whereby evidence of similar acts with the same or other children is allowed to show a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. E.g., Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). For the pedophile exception to apply, we require that there be a suffi cient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. E.g., White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). There must also be an “intimate relationship” between the perpetrator and the victim of the prior act. Id.
Hendrix v. State, 2011 Ark. 122, at 7-8, 2011 WL 1177219. The rationale for the pedophile exception is that such evidence helps to prove the depraved sexual instinct of the accused. See Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005); Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). Evidence admitted pursuant to Rule 404(b) must not be too separated in time, making the evidence unduly remote. See Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006). The circuit court is given sound discretion over the matter of remoteness and will be overturned only when it is clear that the questioned evidence has no connection with any issue in the present case. See id.
As previously noted, D.J., C.C., and G.B. all testified that Jeffries had been sexually inappropriate with them as minors when they were in his care. Both D.J. and G.B. testified that Jeffries would force oral sex on them, and D.J. testified that Jeffries also raped him anally. D.J. stated that the rapes would occur during both the day and the night, but that nobody else would be home when it occurred during the day. G.B. testified that every time he was raped, he would be asleep and wake up as Jeffries was performing oral sex on him against his |swill. C.C. testified that she had also been asleep when Jeffries took advantage of her. She stated that she awoke to Jeffries squeezing her breasts hard and digitally penetrating her vagina. This evidence not only illustrates Jeffries’s depraved sexual instinct for minors, but also demonstrates his method for finding the opportunity to make sexual contact with them.
Clearly, the evidence is relevant and falls within the pedophile exception to Rule 404(b). Moreover, Jeffries failed to demonstrate error pursuant to Rule 403 because the probative value of establishing similarities between the rapes of D.J., G.B., and C.C. with that of the victim here, Z.B., outweighed any alleged prejudice. Therefore, we defer to the circuit court’s broad discretion, and we cannot say it abused that discretion. See, e.g., Broum v. State, 2012 Ark. 399, 424 S.W.3d 288.
Arkansas Supreme Court Rule í-3(i)
In the instant case, Jeffries received two sentences of life in prison. Pursuant to Arkansas Supreme Court Rule 4 — 3(i) (2013), the record has been reviewed for all objections, motions, and requests that were decided adversely to Jeffries, and no prejudicial error has been found.
Affirmed.
. Jeffries did not renew his motion for a directed verdict after resting his case. However, as applicable here, renewal of a directed-verdict motion is not required to preserve a sufficiency challenge on appeal when the defense rests without presenting any evidence. See Williamson v. State, 2009 Ark. 568, 350 S.W.3d 787. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Sebastian County Circuit Court, Greenwood Division. Appellant, David Hart, sued appellee, Larry Bridges, alleging that appellee, a principal for the Greenwood School District, had offered him a teaching job, which he accepted, and that, in reliance upon appellee’s promise of a job, he had incurred financial obligations and suffered mental anguish and distress. Appellee moved for and was granted summary judgment. From the order granting summary judgment comes this appeal. We reverse and remand.
Appellant was employed by the Ozark School District in the 1986-87 school year, and appellee was a junior high school principal for the Greenwood School District. At the end of that school year, the Ozark School District terminated appellant’s employment because of his failure to obtain proper certification. Shortly thereafter, he applied for employment with the Greenwood School District and was interviewed by appellee for a position teaching eighth grade science and math. The Greenwood School Board instructed appellee to select an applicant and have the applicant sign an employment contract to be presented for review and approval at the July 1987 school board meeting. Appellee obtained appellant’s signature on a contract and, at the July 1987 meeting, presented it to the school board with his recommendation that appellant be hired. Because of his failure to pass the National Teachers’ Exam and his difficulties with obtaining certification, the school board refused to approve appellant and did not sign the contract.
On February 7, 1989, appellant sued appellee and stated that appellee had offered appellant a job with the school district, which he had accepted, and that, in reliance upon appellee’s promise of a job, appellant purchased an automobile, incurred other financial obligations, and suffered mental anguish and distress. The school district was not included as a defendant in the lawsuit. In his answer, appellee stated that he had not offered appellant a job; that he had no authority to do so; and that teacher contracts can be approved only by the school board.
In his answers to appellee’s requests for admission, appellant admitted that he never received a written contract signed by appellee or any member of the Greenwood School Board.
On May 26,1989, appellee moved for summary judgment on the grounds that he was merely the agent of a disclosed principal (the Greenwood School District) and lacked the power to employ teachers and only written contracts for the employment of teachers are enforceable. The affidavits of appellee, Kenny Bell, a member of the Greenwood School Board, and Gail Martin, president of the Greenwood School Board, were attached to the motion.
In his affidavit, appellee stated:
2. In May of 1987, Mr. Steve Perdue resigned as teacher of Eighth Grade Science and Math at the Raymond E. Wells School.
3. Thereafter, I began reviewing applications and conducted several interviews for the purpose of hiring a replacement for Mr. Perdue.
4. That I interviewed five applicants, including Mr. Dan Lokey and Mr. David Hart.
5. That, however, Mr. Dan Lokey was my first choice and Mr. Hart was my second.
6. That on June 4,1987,1 recommended Mr. Lokey to the Board, and he was approved and hired. Shortly, thereafter, Mr. Lokey informed me that this family had a change in their plans and that he would have to turn down the job.
7. That during the June, 1987, Board meeting, and because of the urgency to get a teacher hired, the Board instructed me to select another applicant, have this applicant sign a proposed employment contract with the District, and present this applicant and his proposed contract at the July, 1987, meeting for the review and approval by the Board.
8. I was not instructed or authorized to hire an applicant, but merely told to obtain his signature on a proposed contract, which would then be reviewed and approved by the Board before it became effective.
9. In early July, 1987,1 met, again, with David Hart. At this meeting, I explained these circumstances to Mr. Hart and I explained to him that I would recommend his hiring to the Board. I did tell Mr. Hart that I was confident that the Board would hire him, and asked him to sign the proposed employment contract so that the contract would be prepared and signed, awaiting Board approval and their signatures.
10. At no time did I ever tell Mr. Hart that he was hired by either me or the School District, or that I had any authority to hire him. Furthermore, I never signed the proposed contract or any other document purporting to be an employment contract with the School District.
11. At the July, 1987 meeting of the Greenwood School Board, I recommended that they hire David Hart and presented his proposed contract. However, the members of the board were unwilling to approve Mr. Hart or sign the proposed contract because of difficulties with Mr. Hart’s certification and his failure to pass the National Teachers’ Exam.
In his response to appellee’s motion for summary judgment, appellant argued that he had not sued appellee for breach of an employment contract but that appellee had misled him into believing that he had a job with the school district. Appellant also argued that a school board is not prohibited from delegating the power to hire teachers to an agent and that appellant reasonably believed that appellee had this power. Appellant attached his affidavit wherein he stated that, during his interview, appellee told him that he had authority to hire a teacher; that appellee had offered him a job; that appellee told him to report for work on August 25, 1987; and that, because appellee had believed he would be employed by the district, he had bought a new car and entered summer school classes to complete his certification requirements.
On June 20, 1989, the Sebastian County Circuit Court entered summary judgment for appellee. In his findings, the circuit judge stated:
2. The Plaintiff alleges that he was misled by the defendant, an agent of the School District, that he had authority to hire the plaintiff as a teacher, the plaintiff relied upon the representations of the defendant, and this reliance caused him resulting damage for mental auguish, lost earnings from the promised contract, and financial loss he incurred in purchasing an automobile and expenses for further education.
3. The Plaintiff did not have a written contract (Ark. Code Ann. Section 6-17-919 (2)) and the offer of a teaching position by the defendant and accepted by the plaintiff was never approved by the Board of Directors of the Greenwood School District. Ark. Code Ann. Section 6-13-620(3)
4. As a matter of law, the plaintiff, an experienced teacher, could not have reasonably been misled by the statements of the defendant (agent) in excess of the authority given to him by the School District (Principal) that he could hire the defendant to teach at Greenwood in view of the fact that he should reasonably have known under the facts and circumstances that he had to have a written Contract approved by the Greenwood School District Board for it to be an enforceable Contract.
5. Therefore, the Plaintiff, in view of Ark. Code Ann. Sections 6-17-919(2) and 6-13-620(3), could not have justifiably relied upon defendants’ representations and as a result sustain damages. (AMI 405)
On appeal, appellant emphasizes that he has not based this lawsuit upon the contract with the school district into which he thought he had entered, but upon appellee’s breach of promise. Appellant contends that appellee’s false representations that he had authority to hire appellant and that appellant would have a job with the school district are the bases for this suit. Appellant argues that, even though he had no enforceable contract with the school district, appellee is liable for his damages because an agent who contracts in the name of his principal without authority may be personally liable to the other party.
Summary judgment is an extreme remedy and should be granted only when it is clear that there is no issue of fact to be decided. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 35, 665 S.W.2d 904, 906 (1984). The object of summary judgment is not to determine any issue of fact, but to determine whether there is an issue of fact to be tried; if there is any doubt, the motion should be denied. Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 280, 657 S.W.2d 536, 537 (1983). Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Township Builders, Inc. v. Kraus Constr. Co., 286 Ark. 487, 490, 696 S.W.2d 308, 309 (1985). Once the moving party makes a prima facie showing of entitlement to summary judgment, the party opposing summary judgment must meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 301, 601 S.W.2d 826, 827 (1980).
We agree with appellee that appellant had no enforceable contract with the school district. We agree with appellant, however, that the statutes relied upon by appellee simply do not address the issue here, and do not bar appellant from bringing an action against appellee. Arkansas Code Annotated Sections 6-13-620(3) (Supp. 1989) and 6-17-919 (1987) provide that teachers’ contracts are to be in writing and that these contracts shall be made with the school board. Arkansas Code Annotated Section 6-17-302(c) (1987) provides that public school principals shall “submit recommendations to the superintendent regarding the appointment, assignment, promotion, transfer, and dismissal of all personnel assigned to the attendance area.” This code section also makes it clear that the principal is under the supervision of the school board.
In Morton v. Hampton School Dist. No. 1, 16 Ark. App. 264, 266, 700 S.W.2d 373, 375 (1985), we affirmed the trial, court’s finding that, in order to be enforceable, a teacher’s contract must be in writing and signed by the secretary and president of the school board or a majority of the members of the board. In that case, a principal had sued the school district for its failure to renew his contract. In our decision in Morton, we relied upon Johnson v. Wert, 225 Ark. 91, 279 S.W.2d 274 (1955). In Johnson, the school board had voted to give Johnson, its superintendent, a two-year contract, but before it was prepared, a school board member asked Johnson to resign. In Johnson’s breach of contract suit, the supreme court affirmed the trial court’s directed verdict for the school board and stated:
In Bald Knob Special School Dist. v. McDonald, 171 Ark. 72, 283 S.W. 22, we held the requirement of a similar statute that employment be by written contract to be mandatory and not merely directory as appellant contends. This holding conforms to the general rule that compliance with the formal requisites prescribed by statute is essential to the validity of a teacher’s or superintendent’s contract except insofar as the statutory requirements are directory only. 78 C.J.S., Schools and School Districts, Section 189.
It is also well settled that in order to be entitled to recover compensation, a teacher must have been appointed or elected to the position for which it is sought, and have a valid contract for his services. 78 C.J.S., Schools and School Districts, Section 218c.
225 Ark. at 95, 279 S.W.2d at 276. Accord Corbin v. Special School Dist. of Ft. Smith, 250 Ark. 357, 365, 465 S.W.2d 342, 346 (1971); Marr v. School Dist. No. 27, 107 Ark. 305, 308, 154 S.W. 944 (1913).
Our inquiry cannot end with a review of the statutes and cases dealing with teachers’ contracts, however. Appellant is correct in his assertion that, generally, an agent who contracts in the name of his principal without authority, so that the principal is not bound, may be personally liable to the other contracting party. See Lasater v. Crutchfield, 92 Ark. 535, 538, 123 S.W. 394, 395 (1909). In such cases, the law may imply a contract between the injured party and the agent upon the agent’s implied warranty of his authority. Dale v. Donaldson Lumber Co., 48 Ark. 188, 192, 2 S.W. 703, 704 (1886). In Clements v. Citizens’ Bank of Booneville, 177 Ark. 1085, 9 S.W.2d 569 (1928), the Arkansas Supreme Court discussed this issue:
“Whether the agent can be held liable upon the contract itself which he has, without authority, assumed to make, is a question which has been much discussed and upon which the cases cannot be entirely reconciled. It would seem, however, that this question is one which must be determined largely by the circumstances of each case. Where the promise is made in the name of a principal who might have authorized it and as his contract, the better opinion is that the agent cannot be held liable upon it, but only in an action based upon the deceit, or upon the contract of warranty or indemnity, even in the case of a written contract, where the assumed relation of agency appears upon the face of it. Some courts have indeed manifested a disposition in this latter case to reject the words referring to the alleged principal as mere surplus-age, and to hold the agent liable upon the remainder as upon his own contract. This, however, as has been well said, is rather to make a new contract for the parties than to construe the one which they have made for themselves.” Mechem on Agency, 2d edition, vol. 1, 1023-4.
“The proper remedy against an agent by a third party, with whom the agent has dealt, where the agent acts without, or in excess of, his authority, is an action of assumpsit upon his expressed or implied warranty of authority, or, in a proper case, an action of trespass on the case for fraud and deceit, and in some jurisdictions the latter is held to be the only remedy in such cases.” 2 C.J. 892.
“Some of the authorities hold that, in all written contracts, except specialties, if the pretended agent has so worded the instrument as to make it appear that he is acting for or on behalf of another, and not himself having no authority to do so — he binds himself personally, and .will be liable in an action on the contract itself, for the reason that he must have intended to bind some one; and, if he was unauthorized to bind the principal, he is estopped to deny that he intended to bind himself, as in that case no one whatever would be bound. But the objection to this doctrine is that it would require the court to make a new contract for the parties, or one into which they have not themselves entered; and the courts now generally repudiate it. While the decisions are not uniform, the great weight of modern authority is that the agent is not personally bound on the contract itself, and cannot be held liable in an action thereon.” LeRoy v. Jacobosky, 136 N.C. 443, 48 S.E. 796, 67 L.R.A. 977.
In discussing the liability of agents under circumstances like this, the Wisconsin court said:
“This whole doctrine proceeds upon a plain principle of justice; for every person so acting for another, by a natural, if not a necessary, implication, holds himself out as having competent authority to do the act, and he thereby draws the other party into a reciprocal engagement. If he has no such authority, and acts bona fide, still he does a wrong to the other party; and, if that wrong produces injury to the latter, owing to his confidence in the truth of an express or implied assertion of authority by the agent, it is perfectly just that he who makes such assertion should be personally responsible for the consequences, rather than that the injury should be borne by the other party who has been misled by it. * * * Later and better considered opinion seems to be that the liability, when the contract is made in the name of his principal, rests upon implied warranty of authority to make it, and the remedy is by an action for its breach.” Oliver v. Morawetz, 97 Wis. 332, 72 N.W. Rep. 877. And the Supreme Court of Oregon has said:
“Though the agent who has exceeded his authority cannot be sued on the contract itself, as a party thereto, unless it contains apt words to charge him, an action may be maintained against him on his implied promise that he had authority to bind the principal. * * * This promise is not a part of the agreement supposed to have been entered into with the principal, but independent thereof, and tantamount to an implied warranty that, if a third party will enter into a contract with the agent on behalf of his principal, he will indemnify such party against any loss that he may sustain, if it shall be ascertained that he does not possess the measure of authority which he assumes. Such warranty being impliedly given, it cannot be said that in enforcing it the court makes a new contract for the agent and a third party.” Anderson v. Adams, 43 Ore. 621, 74 Pacific Rep. 215.
“As we have seen, the authorities have been conflicting as to whether the agent could be held liable on the instrument, the weight of authority being in the negative.” Haupt v. Vint, 68 W. Va. 657, 70 S.E. 702, 34 L.R.A. (N.S.) 518.
The authorities seem to be unanimous in holding that the agent, under such circumstances, is liable, and almost unanimous in holding that an action cannot be maintained on the contract itself, but on an implied promise on the part of the agent that he has the authority to make the contract.
177 Ark. at 1088-90, 9 S.W.2d at 570-71. Accord Hill v. First Nat’l Bank of Malvern, 129 Ark. 265, 268-69, 195 S. W. 678, 680 (1917).
Here, the circuit judge granted summary judgment to appellee on the ground that appellant could not reasonably have been misled by appellee, since appellant should have known that he could not have an enforceable contract unless it was in writing and approved by the school board. It is true “that all persons who deal with school officers are presumed to have knowledge of the extent of their powers.” Ark. Nat’l Bank v. School Dist. No. 99, 152 Ark. 507, 511, 238 S.W. 630, 631 (1922). Nevertheless, Arkansas recognizes the liability of an agent for contracts created outside his authority for a disclosed principal. Appellant argues that the statutes dealing with teachers’ contracts simply do not apply to this situation, and we agree. It cannot be held as a matter of law that these statutes absolutely bar an action against a school principal for damages allegedly caused by his actions in excess of his authority.
We therefore cannot agree with the circuit judge that no material issue of fact remains for trial. In Dickson v. Delhi Seed Co., 26 Ark. App. 83, 93, 760 S.W.2d 382, 388 (1988), we stated that “[i]t is well settled that whether estoppel is applicable is an issue of fact to be decided by the trier of fact,” and held that summary dismissal of the complaint was not appropriate because a question of fact existed. There is no question that the parties in the case at bar disagree as to whether appellee misrepresented his authority and that appellant was to be hired. Additionally, whether appellant relied on appellee’s representations, whether appellant’s acts in reliance were foreseeable by appellee, and whether appellant acted reasonably in justifiable reliance on appellee’s representations are all issues of fact to be decided by the trier of fact. We therefore hold that the trial court erred in granting summary judgment for appellee.
Reversed and remanded.
Cracraft and Cooper, JJ., agree. | [
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Judith Rogers, Judge.
This appeal is from an order of the Washington County Probate Court admitting a lost will of Mrs. Sidra Thomas to probate. On February 26, 1988, Mrs. Thomas died and was survived by her husband, appellee, and her son, Bobby Thomas, appellant herein. In November 1988, appellee filed a petition seeking to have a copy of a will that had been executed by Mrs. Thomas in 1986 probated and to be appointed as her executor. Mrs. Thomas’ 1986 will provided that, upon her death, all her property was to pass to appellee, unless appellee had predeceased her, in which event her property was to pass to her son, appellant. Appellant objected to the copy of the 1986 will being probated and contended Mrs. Thomas died intestate. By an order dated June 5, 1989, the probate judge found the unsigned and undated will, sworn by attesting witnesses to have been executed May 1, 1986, should be admitted to probate as the lost will of Mrs. Thomas.
The single issue presented here is whether the probate judge erred in finding that appellee presented sufficient evidence to rebut the presumption that a will was revoked by the testator if the will was accessible to the testator and cannot be found after the testator’s death. We hold the probate judge’s finding that the evidence was sufficient to overcome this presumption is not clearly erroneous and affirm.
Arkansas Code Annotated Section 28-40-302 (1987) provides:
No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the provisions are clearly and distinctly proved by at least two (2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness, and:
(1) The will is proved to have been in existence at the time of the death of the testator; or
(2) The will is shown to have been fraudulently destroyed in the lifetime of the testator.
There is a presumption that a testator destroyed a will executed by him during his lifetime, with the intention of revoking the same, if the testator retained custody of the will or had access to it, and the will cannot be found after the testator’s death. Wharton v. Moss, 267 Ark. 723, 725, 594 S.W.2d 856, 857 (Ark. App. 1979). See also Rose v. Hunnicutt, 166 Ark. 134, 137, 265 S.W. 651, 652 (1924). The presumption a will is revoked is two-pronged, and in order to overcome this presumption, the proponent must first prove the execution of the lost will by the testator and then prove the will was not revoked by the testator. Wharton, 267 Ark. at 725, 594 S.W.2d at 857.
It is undisputed that Mrs. Thomas executed the 1986 will prior to her death; however, appellant asserts the evidence is insufficient to find the will was in existence at the time of Mrs. Thomas’ death. The burden was upon appellee to prove by a preponderance of the evidence that she did not revoke it during her lifetime. Garrett v. Butler, 229 Ark. 653, 657-58, 317 S.W.2d 283, 285 (1958).
Appellee testified that he and his wife went to their lawyer’s office in 1986 to make out their wills and that, after they signed these wills, they took the originals home with them and placed them in a pasteboard box in his wife’s bedroom, where they kept other documents. He testified that he never saw his wife’s will again or looked for it until his son, appellant, asked to see it sometime after his wife’s death and that, when they went to look for it, it was gone. Appellee testified that he was certain his wife had not revoked her will because, during their fifty-four years of marriage, he and his wife had worked together one hundred percent, they had discussed everything, and that she would not have done anything, including destroying her will, without first discussing it with him.
In Garrett v. Butler, supra, the appellant sought to have the probate judge’s decision, admitting a lost will to probate, reversed, contending the appellee had not overcome the presumption that the lost will had been revoked. The supreme court responded:
After careful consideration of the weight to be given to the facts and circumstances in this case as set forth above, we cannot say the trial court’s finding is against the weight of the evidence. The proof is clear that Rev. Garrett made the will in question, and that he had good reasons for making appellee his chief beneficiary; that nothing occurred to change or alter those reasons; that he indicated to disinterested witness shortly before his death he expected appellee to have some control over his affairs after his death and; that there is a total absence of any testimony he tried or wanted to make any change in or revoke his will. There are also in the record other circumstances which the trial court had a right to consider. During Rev. Garrett’s last illness many people had the opportunity to handle and destroy or misplace the will. One of these was the appellant, George Garrett, who was an interested party and who failed to testify.
Garrett, 229 Ark. at 657, 317 S.W.2d at 285.
Facts similar to those in Garrett exist in the case at bar. In trying to explain how his wife’s will might have disappeared, appellee stated that, after his wife’s death, his niece and appellant’s wife came and cleaned his house without his permission and he did not know everything that went on. He stated the house was in perfect order at his wife’s death “but after she passed away, I don’t know what they went to carrying the stuff off.” He testified that appellant and his wife lived across the street from him and had a key to his house and they would come in and out of the house all the time. He also testified that, since his wife’s death, he has discovered some Indianhead pennies, silver dollars, $2.00 bills, and pocketknives, which she had been keeping, are missing. As in Garrett, supra, appellant here is an interested party, had the opportunity to destroy Mrs. Thomas’ will, and failed to testify.
It was not necessary for the trial judge to determine what became of Mrs. Thomas’ will; it was enough that he found that it was not revoked or cancelled by her. Garrett, 229 Ark. at 657, 317 S.W.2d at 285; Bradway v. Thompson, 139 Ark. 542, 561, 214 S.W. 27, 33 (1919). At the conclusion of trial, the probate judge stated that he believed appellee was attempting to be “just as honest as the day is long,” and that he was convinced that, had Mrs. Thomas destroyed her will, she would have told the appellee about it. The judge also stated that he found appellee’s testimony, that it was not unusual for the will to be missing because some other items were missing, to be true because there was no evidence to rebut appellee’s testimony and because he found the appellee to be an honest man.
Probate cases are tried de novo on appeal, and this court does not reverse the findings of the probate judge unless they are clearly erroneous, giving due deference to his superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Baerlocker v. Highsmith, 292 Ark. 373, 374-75, 730 S.W.2d 237, 238 (1987).
Based upon the evidence, we find that the probate judge’s conclusion that appellee overcame the presumption that Mrs. Thomas revoked her will by a preponderance of the evidence is not clearly erroneous.
Affirmed.
Mayfield and Jennings, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, John David Gallagher,was tried beforeajuryon May 19,1988,for theoffenseof driving while intoxicated. The jury was unable to reach a verdict and the trial court declared a mistrial. On November 23, 1988, the matter was retried with the same result. On January 6,1989, appellant filed a motion to dismiss on the ground that to try him a third time when two previous jury trials had resulted in “hung juries” would subject him to double jeopardy in violation of the Constitution of the United States and the Constitution of the State of Arkansas. The trial court denied the motion and this appeal followed.
Appellant’s only argument on appeal is that his motion to dismiss on double jeopardy grounds should have been granted. Appellant contends that a retrial is prohibited because the appellee failed to present constitutionally sufficient evidence at the first or second trials to warrant a conviction, and that under the ruling in Burks v. United States, 437 U.S. 1 (1978), the court should not be able to try him again by presenting substantially the same evidence.
The answer to appellant’s argument is found in Richardson v. United States, 468 U.S. 317 (1984). In Richardson a jury acquitted the petitioner of one of several counts against him, but was unable to agree as to the remaining counts. The trial court declared a mistrial as to the remaining counts and set them for retrial. Richardson moved to bar his retrial, alleging a second trial would subject him to double jeopardy because evidence sufficient to convict on the remaining counts had not been presented at the first trial. The motion was denied and Richardson appealed.
The United States Supreme Court found the claim unavailing because the protection of the Double Jeopardy Clause applies only if there has been some event, such as an acquittal, which terminates the original jeopardy. The Court stated:
[Wjehold. . .that the failure of the jury to reach a verdict is not an event which terminates jeopardy. Our holding in Burks established only that an appellate court’s finding of insufficient evidence to convict on appeal from a judgment of conviction is for double jeopardy purposes, the equivalent of an acquittal; it obviously did not establish . . .that a hung jury is the equivalent of an acquittal. . . . [W]e reaffirm the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficieny of the evidence at petitioner’s first trial, he has no valid double jeopardy claim to prevent his retrial.
468 U.S. at 325-26.
Article 2, Section 8 of the Arkansas Constitution provides in pertinent part:
[N]o person, for the same offense, shall be twice put in jeopardy of life or liberty; but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had may, in its discretion, discharge the jury, and commit or bail the accused for trial at the same or the next term of said court.
Although appellant cites no Arkansas cases on the issue presented in this case, the appellee cites the case of Beard, Morrison & Cook v. State, 277 Ark. 35, 639 S.W.2d 52 (1982), which held that the double jeopardy rights of the appellants in that case would not be violated if they were required to again stand trial after the court had declared a mistrial when the jury at the first trial had reported it was “hopelessly deadlocked.”
The appellant in the instant case has presented nothing to suggest that the above quoted provision of the Arkansas Constitution is not in harmony and agreement with the rule set out in Richardson v. United States, supra.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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John E. Jennings, Judge.
This is an appeal from a jury verdict in the Washington County Circuit Court. Appellant, the City of Fayetteville, Arkansas, contends that the trial court erred in denying its motion for a new trial. Appellee, Joanna Bibb, contends on cross-appeal that the court erroneously denied her motion for attorney’s fees. We affirm on direct appeal, but reverse and remand on cross-appeal.
Appellee went to work for the city in June of 1971. For the next fifteen years, she worked in various capacities for appellant until she was terminated on October 20,1986. Her position at the time of her termination was that of business manager, at an annual salary of $21,961.00. She then brought this action seeking compensation for almost 2,000 hours of “compensatory time” earned between January of 1979 and her termination for time worked over and above a normal forty hour work week. There is no dispute that appellee legitimately worked the hours claimed.
Appellant moved for summary judgment, contending that there were no material issues of fact and that it was entitled to judgment as a matter of law. The trial court denied the motion, the case proceeded to jury trial, and the jury returned a verdict in favor of appellee for $20,779.44, which represented her hourly rate of pay at termination multiplied by the compensatory hours claimed.
Summary judgment is an extreme remedy and should only be granted when it is clear there is no issue of fact to be litigated. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984). The object of a summary judgment is not to try the issues but rather to determine whether there are issues to be tried; if there is any doubt whatever, it should be denied. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). Nevertheless, if a movant makes a prima facie case with its motion for summary judgment, with accompanying evidence, then the burden shifts to the other party, and that party must then come forward with proof to demonstrate that there is a genuine dispute on an issue of material fact. McDonald v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987). Finally, even if the trial court is convinced that the moving party is entitled to summary judgment, it has discretion to deny the motion. Karnes v. Trumbo, 28 Ark. App. 34, 770 S.W.2d 199 (1989); McLain v. Meier, 612 F.2d 349 (8th Cir. 1979).
Appellant argues that the trial court erred in refusing to grant summary judgment. Appellant contends that appellee, in order to recover money payment in lieu of her accumulated “comp time,” must show that “such payment is authorized by legislative enactment or other proper authority,” citing Riepe v. City of Independence, 525 S.W.2d 622, 624 (Mo. App. 1975); Koudelka v. Village of Woodridge, 413 N.E.2d 1381 (Ill. App. 1980); Rusk v. Whitmire, 541 P.2d 1097 (Nev. 1975); Pootel v. City and County of San Francisco, 270 P.2d 553 (Cal. App. 1954). A more complete statement of the general rule is found in Koudelka: “Generally, municipal employees are not entitled to compensation for overtime work in the absence of a valid contract or law authorizing it. Allowance of compensatory time off for extra hours worked does not necessarily authorize the payment of money in lieu thereof.” 413 N.E.2d at 1382, citing 4 McQuillan, Municipal Corporations, § 12.194a (3d ed. 1979).
Appellant presented two affidavits in support of its motion for summary judgment. The affidavits of Judy Huffaker, appellant’s budget coordinator, and Scott Linebaugh, assistant city manager, stated that under the appellant’s personnel policies appellee was not entitled to “overtime” pay, which they contend appellee was claiming. The affidavit filed by appellee stated that she understood from before and during her employment with appellant that she would be entitled to compensatory time for hours worked in excess of forty hours per week, and that she would be able to take that time off from work with pay while employed or would be paid the value of that time in the event of termination. It also stated that other city employees had been paid for accrued compensatory time upon termination of city employment. We think the appellee’s affidavit was sufficient to raise an issue of fact as to whether the parties agreed that she would be paid for “comp time” on termination and that, in any event, the trial judge did not abuse his discretion in denying the motion.
Appellant also claims it was error for the trial judge to deny its motion for a new trial, because the evidence was not sufficient. “When a trial judge denies a motion for a new trial, the only issue on appeal is whether the verdict is supported by substantial evidence.” Millsaps v. Rhinehart, 276 Ark. 147, 634 S.W.2d 98 (1982). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). Bibb testified that the primary basis for her understanding that she was entitled to payment for unused comp time was the city personnel policy handbook which she received at the time of her employment. She testified that the handbook stated that employees would be compensated for accumulated unused comp time. Various employees’ handbooks issued during the time Bibb worked for the city were introduced into evidence, together with other records relating to the city’s compensatory time policy. She also testified that her understanding was based in part on conversations with her immediate superior and direction she had received to keep detailed records relating to compensatory time. There was evidence that other employees similarly situated to Bibb were paid for unused comp time at termination. Donald Grimes, the city manager at the time of Ms. Bibb’s termination, testified that an employee who has accumulated a large number of comp time hours should be paid for those hours on termination. David Mackey, the purchasing, budget, and personnel officer from 1970 to 1978, testified that he had some responsibility for developing the policy on comp time and that it was his understanding that an employee who was terminated would be paid for unused comp time. This evidence was sufficient to raise a question of fact for the jury as to whether there was an agreement to pay for unused compensatory time on termination and constitutes substantial evidence to support the jury’s verdict.
Just minutes before the trial began, appellant moved to amend its answer to allege a three year statute of limitations as an affirmative defense. The trial court denied the motion. During instruction conference, after the close of all the proof, the court on its own motion reversed its earlier decision and permitted the amendment, reasoning that no prejudice could result to the appellee because the city “doesn’t have a good statute of limitations defense on the merits.” The court then refused the city’s proffered instruction, which would have limited recovery to “comp time hours” earned during the three years immediately preceding the date the complaint was filed.
Appellant contends that it was error to refuse the instruction. We do not agree. Assuming that it was appropriate for the court to permit the amendment in these circumstances, Ark. Code Ann. § 16-56-105 (1987) requires that suit be brought within three years “after the cause of action accrues.” See Smith v. Milam, 195 Ark. 157, 110 S.W.2d 1062 (1937). Here, the appellee’s cause of action did not accrue until her termination. Even if appellant were correct that appellee was limited to recovery only for compensatory time earned during the three years prior to termination, the proffered instruction tied recovery to the date of filing suit and was therefore an incorrect statement of law. The court was correct in refusing the instruction.
On cross-appeal, appellee contends that the trial court erred in refusing to consider an award of attorney’s fees under Ark. Code Ann. § 16-22-308 (Supp. 1987). That code section, originally enacted as Act 519 of 1987 provides:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotia ble instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, 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 fee to be assessed by the court and collected as costs.
The trial court declined to consider an award of attorney’s fees for two reasons: (1) that the language of the statute did not apply to the case at bar, and (2) that the act had not gone into effect when the action was commenced. On the first point, we think that the present action can be fairly said to fall under the category of a “civil action to recover on” a “contract” “for labor or services.” The correct resolution of the second point turns on whether the statute in question is characterized as “substantive” or “procedural.” See generally Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). In Fowler, we quoted with approval the following language from Dargel v. Henderson, 200 F.2d 564 (Emer. Ct. App. 1952):
We think that this conclusion is in accord with the settled rule that changes in procedural or remedial law are generally to be regarded as immediately applicable to existing causes of action and not merely to those which may accrue in the future unless a contrary intent is expressed in the statute.
In Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962), the court said:
The rule by which statutes are construed to operate prospectively does not ordinarily apply to procedural or remedial legislation. “The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an . existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature.” State ex rel. Moose v. Kansas City & M.RY. & B. Co., 117 Ark. 606, 174 S.W. 248 [(1914)].
Traditionally a statute would be characterized as “substantive” if it was found to have effected “vested rights.” See, e.g., Fosters. Graves, 168 Ark. 1033, 275 S.W. 653 (1925). In Forrest City Machine Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981), the supreme court used a “vested rights” analysis while noting that that doctrine “is not the only determinative factor and is not always followed in deciding whether to apply a law retroactively.” Aderhold, 273 Ark. at 41. This court has also analyzed the problem in terms of vested rights. See, e.g., Arkansas State Police v. Welch, 28 Ark. App. 234, 772 S.W.2d 620 (1989); Driscoll v. Oklahoma Gas & Elec. Co., 28 Ark. App. 352, 775 S.W.2d 84 (1989). The best argument to be made against the retrospective application of the attorney’s fee statute here is that the attorney’s fees statutes “deals not with the procedure for enforcing a remedy . . . but rather with the substance of the remedy itself,” i.e., it provides for the award of an attorney’s fee where none could be awarded before. See Welch, supra, 28 Ark. App. at 237. We reject the argument.
Arkansas Code Annotated § 16-22-308 provides for attorney’s fees which may be assessed by the court to be “collected as costs.” In Aluminum Co. of America v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982), we held that a change in the attorney’s fees provisions of the workers’ compensation act should be given retrospective application. In Stith v. Pinkert, 217 Ark. 871, 234 S.W.2d 45 (1950) the court said:
Practice and procedure include the mode of proceeding in the formal steps by which a legal right is enforced. Those words comprehend writs, summonses, and other methods of notice to parties as well as pleadings, rules of evidence and costs.
(Emphasis added.)
Courts of other states which have considered the specific issue raised here have held that statutes providing for attorney’s fees to be taxed as costs are to be given retrospective application. Cox v. American Fidelity Assurance Co., 581 P.2d 1325 (Okla. App. 1977); People v. Wagner, 91 Ill. App. 3rd 254, 414 N.E.2d 773 (1980), rev’d on other grounds 89 Ill. 2d 308, 433 N.E.2d 267 (1982); Jones v. Kelley, 602 S.W.2d 573 (Tex. Civ. App. 1980), aff'd as modified 614 S.W.2d 95 (Tex. 1981). In Cox the court said:
The general rule that statutes will be given prospective operation only does not apply to statutes effecting procedure. Taxing of attorney’s fees as costs relates to a mode of procedure. (Citations omitted.)
We agree.
Appellee does not claim an absolute entitlement to attorney’s fees, but recognizes that under the Code provision the award of attorney’s fees is a matter addressed to the sound discretion of the trial court. We remand the case to the trial court for a determination on this issue.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
Cracraft and Mayfield, JJ., agree.
Act 800 of 1989 amended this section by adding the words “or breach of contract” immediately following the language “or for labor or services.” The amendment is not material to the question presented here. | [
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Melvin Mayfield, Judge.
The appellees in this case, Don Worsham and Mike Statler, are residents of Arkansas. They filed separate lawsuits against appellants for breach of express and implied warranties, the selling of unreasonably dangerous cattle in a defective condition, and for knowingly bring in (or causing to be brought) diseased cattle into the state of Arkansas. The cases were consolidated for trial. Appellants, who are residents of Missouri, argued that Missouri law controlled the implied warranty issue. Before trial, appellants filed a motion to strike appellees’ claims for damages for breach of implied warranty, because under Missouri law, a written warranty was necessary to maintain such a claim involving livestock. The trial judge denied this motion. At trial, appellants again argued that Missouri law controlled on the implied warranty issue. This objection was overruled, and the jury was instructed on the law of Arkansas. The case was submitted on interrogatories covering the separate theories of implied warranty, strict products liability, and statutory liability. The answer to each interrogatory was favorable to the appellees, and judgments were entered for them in the amounts found by the jury.
On appeal, appellants argue that: (1) the trial court erred in not applying Missouri law to each of the theories relied upon by the appellees, and (2) that the trial court erred in denying appellants’ challenge to a juror for cause. With regard to the theory of strict liability for supplying cattle in a defective condition which rendered them unreasonably dangerous, and the statutory liability under Ark. Code Ann. Section 2-40-101 (c) for bringing, or causing to be brought, cattle into Arkansas knowing them to be suffering from a contagious or infectious disease, the appellees correctly point out that the appellants have failed to preserve objections for appeal on these theories. Appellants did object to the giving of instructions using Arkansas law on the implied warranty theory but' made no such objection to the application of Arkansas law to the other claims, and we do not consider arguments on appeal if they were not raised in the trial court. Ark. Burial Ass’n v. Dixon Funeral Home, Inc., 25 Ark. App. 18, 24, 751 S.W.2d 356, 359 (1988).
In W. M. Bashlin Co. v. Smith, 211 Ark. 406, 643 S.W.2d 526 (1982), the jury verdict was submitted on interrogatories concerning two grounds for recovery: (1) defective product liability, and (2) negligence. The court said:
We have recognized that more than one theory of liability may properly be used in matters involving products liability. AMI 1012 provides first for a finding of a defect in the product and second that there was negligence on the part of the supplier. The plaintiff need not bear the burden of proving both theories of liability, it is enough that he prove either.
277 Ark. at 414. And in E. I. DuPont de Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983), the jury returned a general verdict which could be sustained under both strict product liability and warranty theories. In affirming the trial court’s judgment, the Arkansas Supreme Court said there was substantial evidence to sustain the jury’s verdict under either theory. Therefore, we think the instant case must be affirmed under either the products liability or statutory liability theories, regardless of the warranty theory. The abstract simply does not show that any alleged error on the first two theories was preserved for appeal, and the only theory for recovery that is contested on appeal is the one based on breach of warranty. However, if we do need to examine the implied warranty issue, we find that the case should also be affirmed on that theory.
We find no Arkansas case clearly in point on the issue of the application of Arkansas law to the claims based upon breach of implied warranty. Arkansas Code Annotated Section 4-1-105(1) (1987) provides as follows:
Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation, the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement, this subtitle applies to transactions bearing an appropriate relation to this state.
Comments 2 and 3 to Ark. Stat. Ann. Section 85-1-105 (Add. 1961) (now Ark. Code Ann. Section 4-1-105 (1987)) state:
2. Where there is no agreement as to the governing law, the Act is applicable to any transaction having an “appropriate” relation to any state which enacts it. Of course the Act applies to any transaction which takes place in its entirety in a state which has enacted the Act. But the mere fact that suit is brought in a state does not make it appropriate to apply the substantive law of that state. Cases where a relation to the enacting state is not “appropriate” include, for example, those where the parties have clearly contracted on the basis of some other law, as where the law of the place of contracting and the law of the place of contemplated performance are the same and are contrary to the law under the Code.
3. Where a transaction has significant contacts with a state which has enacted the Act and also with other jurisdictions, the question what relation is “appropriate” is left to judicial decision. In deciding that question, the court is not strictly bound by precedents established in other contexts. Thus a conflict-of-laws decision refusing to apply a purely local statute or rule of law to a particular multistate transaction may not be valid precedent for refusal to apply the Code in an analogous situation. Application of the Code in such circumstances may be justified by its comprehensiveness, by the policy of uniformity, and by the fact that it is in large part a reformulation and restatement of the law merchant and of the understanding of a business community which transcends state and even national boundaries. Compare Global Commerce Corp. v. Clark-Babbitt Industries, Inc., 239 F.2d 716, 719 (2d Cir. 1956). In particular, where a transaction is governed in large part by the Code, application of another law to some detail of performance because of an accident of geography may violate the commercial understanding of the parties.
The trial court apparently believed that the transactions in the case at bar were “transactions bearing an appropriate relation to this state.” Clearly, there was no agreement by the parties as to which state’s law would govern.
In Wallis v. Mrs. Smith’s Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977), the Arkansas Supreme Court was presented with an issue involving the proper choice of law in a tort case resulting from a motor vehicle accident, and the court expressed approval of Dr. Robert Leflar’s “choice-influencing considerations,” which are: (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interests; and (5) application of the better rule of law. See also R. Leflar, L. McDougal, & R. Felix, American Conflicts Law Section 95, at 279 (4th ed. 1986). In Wallis, the supreme court reversed the trial court’s application of Missouri’s contributory negligence statute, because it found that Arkansas’ comparative fault statute is a better rule of law. The supreme court stated:
This State’s governmental interest in its citizens is best served by application of our comparative fault statute rather than Missouri’s contributory negligence law. As expressed in Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1968), probably the truest governmental interest the forum has is “in the fair and efficient administration of justice,” and in our opinion application of our statute better achieves that result.
261 Ark. at 632, 550 S.W.2d at 458.
Arkansas Code Annotated Section 2-40-101 (c) (1987) provides:
Any person who shall bring in, or cause to be brought in, to the state any animal suffering from a contagious or infectious disease or that has been exposed to the contagion or infection of any disease, knowing it to have been so diseased or to have been so exposed, shall be guilty of a misdemeanor. Upon conviction, an offender shall be fined in any sum not to exceed five hundred dollars ($500). He shall, moreover, be liable for damages to others due to infection from the animal.
Thus, it is clear that Arkansas has a state interest in preventing the bringing of diseased livestock into this state.
In the treatise American Conflicts Law, the authors state:
[S]ome choice-of-law statutes have been intelligently framed, with deliberate and foresighted planning of anticipated consequences. Section 1-105(1) of the Uniform Commercial Code is an example. It reads:
Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement this Act applies to transactions bearing an appropriate relation to this state.
Then certain areas of the new law are excepted, and more specific choices of law are laid down for them. The two ideas that are basic to the main part of this enactment are (1) parties should be free to plan their transactions with reference to what relevant law is to govern them, and (2) if they have not so planned a given transaction, the “better law” (which has an appropriate relation to the transaction) should govern it. The Uniform Commercial Code constitutes the best and most carefully formulated body of commercial law available anywhere, and this is good reason for making it the governing law.
R. Leflar, L. McDougal & R. Felix, American Conflicts Law Section 101, at 286-87 (4th ed. 1986).
Appellants rely on McMillen v. Winona Nat’l & Savings Bank, 279 Ark. 16, 648 S.W.2d 460 (1983). That case is distinguishable from the case at bar, because in McMillen, the documents recited that Minnesota law would govern. The court stated:
The trial court held that Minnesota law should apply and we agree. The principal significant contracts [sic] were in Minnesota. Standard Leasing Corp. v. Schmidt Aviation, Inc., 264 Ark. 851, 576 S.W.2d 181 (1979). More important, Brooks, the central figure and moving force in this whole transaction, initiated the entire arrangement. He contacted the Minnesota seller, told them financing would have to be arranged through them, and it was entirely at his behest that the matter had any contact at all with Arkansas. This makes the situation different from one where an out-of-state seller initiates contacts in Arkansas. See Tri-State Equipment Co. v. Tedder, 272 Ark. 408, 614 S.W.2d 938 (1981); Standard Leasing Corp. v. Schmidt Aviation, Inc., supra; Lyles v. Union Planters National Bank, 239 Ark. 738, 393 S.W.2d 867 (1965). The documents, reciting that Minnesota law would govern, were mailed to Brooks’ lawyer in Arkansas, signed in Arkansas by the buyers, and then signed in Minnesota by the seller.
What contact did the Winona bank have with Arkansas? None at all. Did a Minnesota company initiate a sale to an Arkansan? No. Did the parties intend for Arkansas law to apply? Certainly there is no evidence of it, except those facts recited and Brooks’ testimony that that was his intent. Brooks, of course, was the key to the matter and he sought to buy equipment financed by an out-of-state bank. The fact the contract was actually signed in Arkansas, and the investors never went to Minnesota cannot overcome the opposite facts: That Winona did not seek out the investors, and neither did it ever come to Arkansas; and that the contract expressly provided Minnesota law would govern, [citations omitted]
Although the trial court’s finding in such cases is not always critical, it has to be given some weight because a fact question did exist and the trial court found the facts to be in favor of Winona. We will not reverse that finding unless it is clearly contrary to the preponderance of the evidence. Tri-State Equipment Co. v. Tedder, supra.
279 Ark. at 18-19, 648 S.W.2d at 462.
Appellants also rely on Tri-State Equip. Co. v. Tedder, 272 Ark. 408, 614 S.W.2d 938 (1981). In Tri-State, the Arkansas Supreme Court agreed with the trial court that the contract in question was an Arkansas contract and void under Arkansas’ usury law in spite of the fact that the agreement stated that it would be governed by Tennessee law. In that case, the supreme court noted that all negotiations surrounding the transaction were conducted in Arkansas: the equipment was ordered and delivered, the contract was signed, the trial of the machinery and approval occurred, and the sales tax was paid in Arkansas. The court stated:
From the evidence presented, the chancellor could certainly conclude that in spite of a provision to the contrary, the contract was an Arkansas contract and should be governed by Arkansas law. We will not reverse the findings of the chancellor unless they are clearly contrary to the preponderance of the evidence.
272 Ark. at 410, 614 S.W.2d at 940.
Appellants also rely on Myers v. Council Mfg. Corp., 276 F. Supp. 541 (W.D. Ark. 1967), where the district court held that Arkansas law applied to the issue of whether there must be privity for the purchaser to maintain an action for breach of implied warranty. In Myers, the purchaser was a resident of Washington but negotiated with a local salesman and distributor for the purchase of equipment manufactured in Arkansas; the contract of sale was consummated in Arkansas upon acceptance of the purchase order and delivery of the equipment to a carrier, f.o.b. Arkansas. In its decision, the district court relied upon the 1959 edition of Dr. Leflar’s treatise. Appellees contend that appellants’ reliance on Myers is misplaced because Myers does not hold what constitutes an “appropriate relation” under Section 4-1-105(1) in the warranty context. Additionally, Myers was decided in 1967, before the Arkansas Supreme Court enunciated in Wallis its adoption of Dr. Leflar’s “choice-influencing considerations.”
Appellants point to the fact that appellees went to the state of Missouri to purchase the dairy cattle; they negotiated the purchase with appellants in Missouri; and the sales were consummated in Missouri. They also rely on the fact that, after the disease problem was identified, appellees went to Missouri to discuss the problems with appellants. It is appellants’ contention that all of the principal significant contacts between the parties occurred in Missouri.
Appellees argue, however, that Arkansas’ own governmental interest in protecting its citizens and livestock from the spread of infectious disease warrants a finding that the transactions in question bear an appropriate relation to this state. They point out that both plaintiffs were residents of the state of Arkansas; the injuries and damages sustained occurred in Arkansas; the suit was filed in Arkansas; and at least some of the cattle were delivered by appellants or their agents to the appellees in Arkansas. We agree with the appellees’ argument and, under the factual circumstances and the considerations expressed in the Wallis case, supra, we cannot say that the trial court erred in applying the law of Arkansas to the transactions in this case.
For their second point on appeal, appellants argue that the trial court erred in denying appellants’ challenge to a juror for cause. Appellants contend the juror should have been excused for cause because she had a business relationship with appellee Worsham for about five years prior to trial. On voir dire, she informed the court that she had prepared Worsham’s income tax returns but stated that she did not believe their prior business relationship would influence her decision in any way. Appellants moved to strike this juror for implied bias due to the employer-employee or master-servant relationship. They also argued that she was privy to Worsham’s income tax and financial records, which might be relied upon to establish damages. Appellees countered that the juror did not fall in the employer-employee or master-servant categories and that the income tax returns would not be introduced into evidence. The trial court denied the challenge for cause. We first point out that appellants’ abstract does not show that appellants exhausted their peremptory challenges, and under the decision of Mason v. Loving, 251 Ark. 356, 359, 473 S.W.2d 169 (1971), we are not required to examine this contention on its merits. We also point out that there is no argument made by appellants in regard to the amount of the jury verdicts; therefore, we do not find any merit in the suggestion that this juror was privy to Worsham’s income tax information.
Arkansas Code Annotated Section 16-33-304(b)(2) (1987) provides in pertinent part:
(2) Particular causes of challenge are actual and implied bias.
(A) Actual bias is the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court, in the exercise of a sound discretion, that he cannot try the case impartially and without prejudice to the substantial rights of the party challenging.
(B) A challenge for implied bias may be taken in the case of the juror;
(i) Being related by consanguinity, or affinity, or stands in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, employer and employed on wages, or is a member of the family of the defendant or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted. . . .
The qualification of a juror is within the sound judicial discretion of the trial court, who has an opportunity to observe the veniremen that this court does not have, and the trial court will not be reversed unless the appellant demonstrates an abuse of discretion. Hobbs v. State, 277 Ark. 271, 274, 641 S.W.2d 9, 11 (1982); Henslee v. State, 251 Ark. 125, 127, 471 S.W.2d 352, 354 (1971); Rumping v. Ark. Nat’l Bank, 121 Ark. 202, 211, 180 S.W. 749, 752 (1915). The fact that a juror has done business with one of the litigating parties does not ipso facto disqualify him as a prospective juror. Walker v. State, 237 Ark. 34, 37, 371 S.W.2d 135, 137 (1963). In Rumping, supra, the supreme court stated:
The mere fact that the juror was indebted to one of the parties did not necessarily disqualify him. Jurors who are accepted by the court as men of sufficient intelligence to decide upon questions of fact, are expected to forget their friendships for one of the parties even though that friendly feeling should be based on past favors, [citation omitted]
121 Ark. at 211, 180 S.W. at 752.
Appellants rely on Caldarera v. Giles, 235 Ark. 418, 360 S.W.2d 767 (1962), in arguing that the trial court erred in not excusing the juror challenged for cause in the present case. Caldarera is distinguishable. In that case, the juror withheld information that he had a pecuniary interest in the proceeds from the verdict in the case.
In the case at bar, the juror clearly did not fall into the employer-employee or master-servant relationship, from which bias will be implied. Additionally, appellants failed to demonstrate actual bias on her part. We find no error in the trial court’s refusal to strike this juror.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Emma B. Smith, was charged by information with first degree murder in connection with the stabbing death of Savannah Hester. After a bench trial, the appellant was found guilty of second degree murder, a violation of Ark. Code Ann. § 5-10-103(a)(l) (Supp. 1989), and was sentenced to a twenty year term of imprisonment. On appeal, the appellant challenges the sufficiency of the evidence with regard to her second degree murder conviction, and further contends that she was justified in employing the use of deadly force against the victim. We disagree and affirm.
The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). A defendant’s intention, being a subjective matter, is ordinarily not subject to proof by direct evidence, but must rather be established by circumstantial evidence. Taylor v. State, 28 Ark. App. 146, 771 S.W.2d 318 (1989).
A person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103(a)(l) (Supp. 1989). 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. Further, a person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. See Ark. Code Ann. § 5-2-202(2) (1987). Under this statute, the state had to prove that appellant acted with an awareness of her conduct, the relevant attendant circumstances and that her conduct was practically certain to cause the death of the victim. Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985).
In her challenge to the sufficiency of the evidence, appellant does not deny that she stabbed Ms. Hester, which resulted in her death. Instead she contends that the evidence supports a finding of guilt only to the offense of manslaughter, based on the premise that she caused Ms. Hester’s death “while under the influence of extreme emotional disturbance for which there is reasonable excuse.” See Ark. Code Ann. § 5-10-104(a)(l) (1987).
Dr. Bennet G. Preston, a forensic pathologist, testified that Ms. Hester had been stabbed four times and had died as a result of these multiple stab wounds. A witness for the state, Everett Mack, related that he saw the two women arguing on appellant’s front porch. He said that Ms. Hester did hit the appellant, but that she was stabbed by the appellant after Ms. Hester had turned to leave the porch. Mack also said that Ms. Hester was unarmed. Officer Greg Siegler of the Little Rock Police Department testified that after he had advised appellant of her rights, she told him she had stabbed Ms. Hester because Hester had tried to take her drink. Officer Siegler also stated that he found no weapon near the body.
In her defense, the appellant claimed that the killing was justified. The appellant presented testimony that she was an old, disabled woman who was frequently teased and subjected to abuse by members of the community, and who had been the victim of previous robberies. Appellant testified that Ms. Hester had pulled at her purse and had hit her, and that she was frightened by the strange behavior exhibited by Ms. Hester when the incident occurred.
Arkansas Code Annotated § 5-2-607(a)(2) (1987) provides that a person is justified in using deadly force upon another person if he reasonably believes that the other person is using or is about to use unlawful deadly force. The statute requires that there be a reasonable belief that the situation necessitates the defensive force employed, and the defense is available only to one who acts reasonably. Barker v. State, 21 Ark. App. 56, 728 S.W.2d 204 (1987). The defense of justification, being largely a matter of the defendant’s intent, is essentially a question of fact to be decided by the trier of fact, in this case the trial court, which was not required to believe the testimony of the appellant. See Taylor v. State, supra.
Viewing the testimony in the light most favorable to the state, and considering the number and extent of the wounds inflicted upon the victim, the fact that the victim was unarmed and leaving when she was stabbed, the appellant’s statement given to Officer Siegler, and that the appellant was apparently uninjured, we cannot say that there is no substantial evidence to support the trial court’s finding that appellant was guilty of second degree murder.
In its brief, the state has asked us to overturn our recent decision in Doby v. State, 28 Ark. App. 23, 770 S.W.2d 666 (1989), stating that it is a departure from the rule announced in Williams v. State, 24 Ark. App. 118, 748 S.W.2d 355 (1988). The state then maintains that we need not address the merits of the issue presented as it is being raised for the first time on appeal because the appellant failed to move for a directed verdict at trial.
Citing Ark. R. Crim. P. 36.21 (b), in Doby we held that a defendant is not required to request a directed verdict in a bench trial to preserve the question of the sufficiency of the evidence on appeal. Rule 36.21 was amended to include subsection (b) by the supreme court’s Per Curiam of January 25, 1988, with an effective date of March 1,1988. The Reporter’s Note states that the amendment was designed to bring the criminal rules in alignment with the civil rules of procedure. Under the civil rules, specifically Ark. R. Civ. P. 50(a), in a non-jury trial it is not necessary to move for a directed verdict in order to preserve the question of the sufficiency of the evidence. See Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985); Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982). In Bass v. Koller, supra, the court stated:
This is the first time we have been called upon to rule as to whether Rule 50(a) is applicable to a non-jury trial. We are of the opinion that the rule means exactly what it says. Prior to the adoption of this rule there was a requirement that the matters stated in Rule 50(e) applied both to a jury and non-jury trial. Therefore, we hold that the rule applies only to trials held before a jury. In specifically stating that the rule applies to a jury trial, the rule by implication excludes cases tried to the court without a jury. Therefore, the doctrine of expressio unius est exclusio alterius applies. We hold that the appellants did not waive the right to question the sufficiency of the evidence in this case.
Id. at 96, 632 S.W.2d at 412. Similarly, Rule 36.21(b) speaks only in terms of trials held before a jury; thus the maxim expressio unius est exclusio alterius is equally applicable here. Contrary to the state’s suggestion, even if this court agreed with the state’s position, after March 1, 1988, this argument is no longer available. Therefore, we reaffirm our decision in Doby, supra, with regard to this issue.
AFFIRMED.
Cooper and Jennings, JJ., agree.
We note that the trial in Williams v. State, supra, was held a year before the effective date of the amendment to Rule 36.21, while the trial in Doby v. State was held after the effective date. | [
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James R. Cooper, Judge.
This appeal results from the action of the Arkansas Real Estate Commission revoking the appellant’s real estate license and awarding Les Huff and Nathan Huff damages in the total amount of $8,286.40, jointly. The appellant alleges that the circuit court erred in dismissing his petition for review and raises four points on appeal. We find the decision of the commission was supported by substantial evidence and affirm.
The Arkansas Real Estate Commission, on the complaint of Les Huff and on its own motion, charged the appellant with violation of the Arkansas Real Estate License Laws and commission regulations based upon certain misrepresentations in selling Sugar Mountain Estates. In January 1982, and in April 1982, Les Huff, Nathan Huff, and Michael Deane contracted through Tom Sinclair, salesman for Rocking EZ Real Estate Agency, to purchase four parcels of land from Sugar Mountain Estates. Sugar Mountain Estates was a partnership owned by the appellant, Robert Eckels, and by George Wattles. The appellant is also Rocking EZ Real Estate Agency’s principal broker. The real estate sales and escrow agreements entered into by the parties provided in part:
IV. SELLER COVENANTS: Seller covenants and agrees:
A. That Seller has a title insurance policy and the policy contains only the usual and customáry exceptions as to unrecorded liens, or future taxes, and, subject to lien on the entire tract on which the tract described in Section 1 of this contract and on which tract the Escrow Agent has a release deed on file which the Escrow Agent is authorized to deliver to the Buyer upon Buyer’s payment in full of this contract.
B. To execute and deposit with Eckels, Inc. Escrow Agent, a warranty deed conveying a good and marketable title to said lands unto Buyer free of all liens and encumbrances subject and except the following [not applicable].
Despite the language in the agreements representing that the escrow agent had a release deed on file and the agreement that the seller would deposit a warranty deed with the escrow agent, none of these documents were available at the time the Huffs and Deane purchased their lots in January and April of 1982. The appellant had been in the process of acquiring the property comprising Sugar Mountain Estate from Morgan Maxfield; however, Mr. Maxfield had died in September 1981 without having conveyed title to the property to the appellant. The Huffs and Deane, unaware that the deeds and title insurance policies provided for by the agreements were unavailable, began making their payments under these agreements to the appellant. Subsequently, Les Huff was notified to make all future payments to George Wattles pursuant to a decree entered by the Carroll County Chancery Court on November 15,1983, which awarded the appellant’s undivided one-half interest in Sugar Mountain Estates to Mr. Wattles. Appellee Huff continued making his payments under the agreement to Wattles for approximately three more years.
On May 30,1984, Mr. Maxfield’s estate sued for foreclosure on the property comprising Sugar Mountain Estates and was granted a judgment of $ 10,519.49, plus costs and attorney’s fees, in a decree of foreclosure on July 10,1984. Les Huff and Nathan Huff then filed a complaint in Carroll County Chancery Court against the following persons:
SUGAR MOUNTAIN ESTATES, a Partnership; ROBERT L. ECKELS a/k/a LEWIS ECKELS, GEORGE M. WATTLES and MARGARET L. WATTLES, Husband and Wife, individually and partners and SUGAR MOUNTAIN ESTATES: VO WELL AND ATCHLEY, Attorneys at Law, a Partnership, as Escrow Agents and Agents for SUGAR MOUNTAIN ESTATES and GEORGE M. WATTLES and MARGARET L. WATTLES.
The complaint is not included in the record of this case, but an order in the record, dated July 23,1986, states that the plaintiffs had not obtained service upon defendants George Wattles, Margaret Wattles, and Sugar Mountain Estates, and service was therefore insufficient to obtain personal jurisdiction on these defendants. The order states that the court declined to dismiss the Huffs’ complaint. The appellant states in his brief that the Huffs subsequently took a non-suit against the defendants.
A disciplinary hearing was held before the Arkansas Real Estate Commission on June 6, 1988, and the commission determined that the appellant had violated the real estate license laws and commission regulations by making certain misrepresentations; specifically, that release deeds were being held by the escrow agent; and by not obtaining the release deeds and warranty deeds as the agreements provided. The commission concluded that the appellant’s conduct was improper, fraudulent, or dishonest and violated Ark. Code Ann. Section 17-35-309(10) (1987) and that the appellant was unfit to act as a real estate broker. The commission voted to immediately revoke the appellant’s license and awarded Les Huff and Nathan Huff $8,286.40, jointly. The appellant petitioned the circuit court for review and, after review, the decision of the commission was affirmed.
In reviewing the actions of the Arkansas Real Estate Commission, the circuit court’s review of the evidence is limited to a determination of whether there was substantial evidence to support the action taken and, on appeal to this court, our review is similarly limited to a determination of whether the action of the commission is supported by substantial evidence. Arkansas Real Estate Comm’n v. Hale, 12 Ark. App. 229, 232-33, 674 S.W.2d 507, 509 (1984); see also Arkansas Real Estate Comm’n v. Harrison, 266 Ark. 339, 343, 585 S.W.2d 34, 36 (1979). Substantial evidence has been defined as valid, legal and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and force the mind to pass beyond conjecture. Arkansas Real Estate Comm’n v. Hale, 12 Ark. App. at 233, 674 S.W.2d at 509.
The appellant first argues that the appellee Arkansas Real Estate Commission did not have jurisdiction to discipline him regarding his transaction with Les Huff. He contends that, because he was not acting in the capacity of a real estate broker, but was selling property which he owned, he is exempted from the requirements of the commission’s laws. Arkansas Code Annotated Section 17-35-101 (1987) defines a “Real estate broker” for the purposes of showing who is required to be licensed under the Real Estate License Law. Section 17-35-102 (d) (1987) exempts from these requirements an owner who personally sells or leases his own property.
In Black v. Arkansas Real Estate Comm’n, 275 Ark. 55, 626 S.W.2d 954 (1982), the Supreme Court held that, in certain situations, the Arkansas Real Estate Commission has the authority to act on complaints filed against a broker, even though the transaction complained of does not require the broker to be licensed. There, the appellant realtor appealed an action of the commission suspending his license for six months, contending the commission did not have jurisdiction to suspend his license because he was selling his own property and that his actions were therefore exempt from regulation by the commission. In upholding the commission’s exercise of jurisdiction, the Court held that it was clear that the appellant had committed acts which would be in violation of the licensing statute, if the acts the appellant performed required a real estate license. The remaining issue was whether the commission had the authority to govern licensed salesmen and brokers who were acting on matters which do not require a license. The Court concluded that in certain situations the commission has such authority, stating:
[T]he Commission admits that appellant was not acting as a salesman or broker at the time he sold the lots in question. The Commission’s order is based primarily upon a claim of his making substantial misrepresentation or false promises concerning the building of the road in the subdivision and the reliance of the purchasers that appellant’s actions were sanctioned by the Real Estate Commission. These are grounds which may give rise to revocation or suspension and need not be made while the person is in fact acting as a broker or salesman.
One of the purposes set forth in the act is to “safeguard the interests of the public.” We have held that statutes enacted for the benefit of the public should be liberally construed to effectuate the purpose of the act. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968).
In the present case it is obvious that appellant could have performed these very same transactions had he possessed no license at all. However, since the transactions dealt with real estate and most of the sales were initiated in his real estate office where his broker’s license was prominently displayed, we think the purchasers were entitled to rely upon appellant to act in the manner in which a broker or salesman should act. Almost every purchaser of a lot in this subdivision indicated they relied upon the fact that appellant was a real estate broker. There is, of course, substantial evidence to support the finding of the Commission that appellant misrepresented matters and made false promises.
275 Ark. at 59-61, 626 S.W.2d at 957.
This Court followed the Black holding in Arkansas Real Estate Comm’n v. Hale, 12 Ark. App. 229, 232, 674 S.W.2d 507, 509 (1984), when we sustained the commission’s order suspending the broker licenses of the appellees. The appellees had contended that, because they were not employed by the buyers, they were under no duty to deal fairly with all the parties to a transaction involving dealings with land which the appellees purported to own. We responded:
[I]n Black v. Arkansas Real Estate Commission, 275 Ark. 55, 626 S.W.2d 954 (1982), the Arkansas Supreme Court held that where a broker sells his own land but conducts the transaction in his real estate office where his license is prominently displayed, the Commission has the authority to discipline him although he is performing acts which do not require a license. Here, the appellees took out the advertisement under the name of their real estate company and executed the offer and acceptance in their office, where, by law, they must display their licenses. It is clear from the Edgars’ testimony, they were relying upon the appellees knowledge as real estate brokers in purchasing the land without consulting an attorney or another person knowledgeable in such matters.
Arkansas Real Estate Comm’n v. Hale, 12 Ark. App. at 232, 674 S.W.2d 509.
Relying upon our holding in Hale, the appellant here asserts that, before the commission could discipline him, the commission had to prove that, in purchasing his property, not only did Les Huff rely on the fact that appellant was licensed as a real estate broker, but also that the sale took place in his real estate office. The appellant, however, is reading our decision too literally. In Hale, we followed the holding in Black, supra. It is clear from reading Black that the fact that the transaction took place in the broker’s office was merely evidence to be considered in determining whether the injured parties relied on the seller’s status as a broker. That fact was not held to be a prerequisite to proving reliance.
In the case at bar, Les Huff admitted that the transaction was not closed in the appellant’s real estate office and that he never met the appellant. He stated that the salesman with whom he did business, Tom Sinclair, told him the appellant was the person behind Rocking EZ Real Estate and that he assumed the appellant and Eckels, Inc., were the same thing. He further testified that, in agreeing to the purchase, he relied on the fact that the appellant was a licensed broker, owned the property being sold, and was acting as the escrow agent. We hold that there was sufficient evidence of Les Huff’s reliance on the appellant’s status as a broker in entering into the purchase agreement, and we sustain the commission’s exercise of jurisdiction.
For his second point, the appellant contends that the com mission erred in awarding damages to Nathan Huff because he was not a party before the commission. The proceeding was commenced when the appellees, Les Huff and the Arkansas Real Estate Commission, charged the appellant with violation of the Arkansas Real Estate License Law. After the commission met and determined to revoke the appellant’s license, a Recovery Fund Hearing was held pursuant to Ark. Code Ann. Section 17-35-401 (1987), et seq. The purpose of this hearing is to determine if an aggrieved party has suffered any damages as the result of a licensee’s violation of a provision and, if the commission finds damages have been sustained, to direct the licensee to pay such damages to the aggrieved party or parties.
During the recovery fund proceeding, Les Huff testified that he, his cousin, Nathan Huff, and Michael Deane purchased the four parcels from Sugar Mountain Estates and pooled their money to make the installment payments on this property. He stated that they conducted their purchase as a partnership, but that the partnership had essentially been dissolved and he was the only one carrying it on. A bill of sale from Michael Deane was admitted into evidence, conveying all of his interest in Sugar Mountain Estates to Les Huff. Les Huff also introduced into evidence an affidavit signed by Nathan Huff, which gave him permission and authority to represent Nathan Huffs claim against the appellant before the commission. The appellant objected to anyone being made an additional party; however, his objection was not ruled upon. As noted earlier, in its Recovery Fund Order, the commission awarded damages of $8,286.40 to Les Huff and Nathan Huff, jointly.
The appellant relies on Ark. Code Ann. Section 16-61-112(a) (1987), which requires that the assignor be made a party as plaintiff or defendant when the assignment is not authorized by statute, in asserting that Nathan Huff was a necessary party to the appellees’ complaint before the commission. While the appellant is correct that Nathan Huff would have been a necessary party in a suit for damages in circuit court, the appellees’ action here involves a complaint before the Arkansas Real Estate Commission, which is governed by the rules of the Arkansas Administrative Procedures Act.
Arkansas Code Annotated Section 17-35-309 (1987), provides that the commission may, upon its own motion, investigate the actions of any real estate broker, and section 17-35-310 (Supp. 1989) provides that, before a license can be suspended, the commission shall set the matter for a hearing and afford the applicant or licensee an opportunity to be heard in person or by counsel and to offer oral testimony, affidavit, or depositions in reference thereto. These statutes allow the commission to charge a broker with violations of the real estate laws and do not require that a complaint must first be filed by an injured person. Moreover, section 17-35-406(a) (Supp. 1989) provides that “[i]n any disciplinary hearing before the commission . . . the commission shall then determine the amount of damages, if any, suffered by the aggrieved party or parties . . . [and] then direct the licensee to pay that amount to the aggrieved party or parties.” (Emphasis added.) This section does not require the injured party to first file a complaint with the commission before the party is entitled to damages.
The Arkansas Supreme Court stated in Black v. Real Estate Comm’n, 275 Ark. at 59, 626 S.W.2d at 957, that one of the stated purposes of the act is to safeguard the interests of the public, “[and] that statutes enacted for the benefit of the public should be liberally construed to effectuate the purpose of the Act.” Based on its interpretation of Section 17-35-406, the commission awarded Nathan Huff damages jointly with Les Huff; we do not find this award to be clearly erroneous. The interpretation of a statute by an administrative agency, while not conclusive, is highly persuasive and should not be overturned unless it is clearly wrong. Arkansas Contractors Licensing Bd. v. Butler Construction Co., 295 Ark. 223, 225, 748 S.W.2d 129, 130 (1988).
We also disagree with the appellant’s argument that Nathan Huffs claim was barred by the statute of limitations because he did not file his affidavit with the commission until more than five years after he signed the purchase agreements. See Ark. Code Ann. Section 16-56-111 (1987). The period of limitations for contracts runs from the point at which the cause of action accrues, rather than from the date of the agreement. Rice v. McKinley, 267 Ark. 659, 662, 590 S.W.2d 305, 307 (Ark. App. 1979). The question here is when did the cause of action accrue.
[W]here . . . the parties have entered into an agreement which requires a series of mutual acts, some unilateral, some bilateral in character and have left the time of those acts open-ended, and where one contrives to receive the benefits of the agreement, and make lease payments annually thereunder, the cause of action does not accrue until one party has by word or conduct indicated to the other a repudiation of the agreement.
267 Ark. at 663, 590 S.W.2d at 308. In the case at bar, it appears that the earliest event which would have alerted Nathan Huff that his agreement was being breached by the appellant, setting in motion the statute of limitations, was when he received notice that an order of the Carroll County Chancery Court had awarded all of the appellant’s interest in Sugar Mountain Estates to George Wattles. This order was not entered by the court until November 15, 1983, and was within five years of the date that Nathan Huffs affidavit was filed with the commission.
The appellant asserts for his third point that the doctrine of election of remedies barred the appellee Les Huff from filing a complaint before the commission. The appellant contends that, when Les Huff filed a complaint against him and the other defendants in chancery court, he elected a certain remedy and the fact that he subsequently took a non-suit to this proceeding does not prevent the doctrine of election of remedies from barring his complaint before the commission. “[I]f a plaintiff files an action to enforce one remedy and dismisses it without prejudice, he is thereafter barred from pursuing an action seeking enforcement of an inconsistent remedy.” Talley v. Blackmon, 271 Ark. 494, 496, 609 S.W.2d 113, 115 (Ark. App. 1980); see also Roy v. Notestine, 216 Ark. 447, 451, 226 S.W.2d 66, 68 (1950).
We are unable to address the merits of this argument because the complaint Les Huff filed in chancery court against the appellant is not a part of the record in this case. The burden is upon the appellant to bring up a record sufficient to demonstrate that there was error below. McLeroy v. Waller, 21 Ark. App. 292, 296, 731 S.W.2d 789, 791 (1987); Ark. R. Civ. P. 6.
For his final point, the appellant contends that there is no nexus between his violation of the Arkansas Real Estate License Laws and the loss sustained by Les Huff and Nathan Huff. The appellant argues that the violations the commission found he committed were not the direct cause of Les Huffs and Nathan Huffs damages, and furthermore, the Huffs waived their right to proceed against him when they began making their payments to George Wattles, pursuant to the chancery court order awarding all of the appellant’s interest in Sugar Mountain Estates to Mr. Wattles.
Waiver has been defined as the voluntary abandonment or surrender by a capable person of a right known to him to exist, with the intent that he shall forever be deprived of its benefits, and it may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 1039, 479 S.W.2d 518, 521 (1972). The Supreme Court in Dodge went on to state that:
[I]n order to invoke the rule of waiver in such cases the affirmance of the contract must be equivalent to ratification and that it is essential that it be shown that the defrauded party intentionally condoned the fraud, affirmed the contract and abandoned his right to recover damages for loss resulting from the fraud.
Id. at 1040, 479 S.W.2d at 521.
There is no evidence in the record that Les Huff or Nathan Huff knew that the warranty deeds or release deeds were not being held in escrow at the time they began making payments to Mr. Wattles pursuant to the court order. Les Huff testified that he entered into the agreement with the appellant based on the language in the agreement covenanting that the escrow agent, Eckels, Inc., had a release deed on file from the mortgagee and that the seller agreed to place a warranty deed in escrow conveying good and marketable title. Les Huff stated that Rocking EZ Real Estate’s agent, Tom Sinclair, assured him that the release deeds and warranty deeds were available. Les Huff admitted that he never asked to see these release deeds or the title insurance policies and that no representations were made to him concerning these documents prior to his purchase except for the written language in the agreement, which he read before signing. Tom Sinclair stated that he realized after he sold the property that the appellant did not have the release deeds, and it was shortly afterward that he filed all the escrow agreements with the circuit court and quit the appellant’s employment. Mr. Sinclair stated that he was selling the property on behalf of Sugar Mountain Estates and that the appellant was the owner. He also stated that he made sure the purchasers read the agreements before they were signed.
Arkansas Code Annotated Section 17-35-406 (Supp. 1989) provides that, in order to award damages under the recovery fund, the commission shall first determine if a violation has occurred and, if so, then determine the amount of damages. The commission found that the appellant made substantial misrepresentations to Les Huíf and Nathan Huff when he provided in the sales and escrow agreements that the escrow agent, Eckels, Inc., had the release deeds from the mortgage holder and the warranty deeds signed by the appellant and that, as a result of these misrepresentations, Les Huff and Nathan Huff were damaged jointly in the amount of $8,286.40. The findings of the commission are supported by substantial evidence and, therefore, we affirm. Arkansas Real Estate Comm’n v. Hale, 12 Ark. App. at 232-33, 674 S.W.2d at 509.
Affirmed.
Corbin, C.J., and Rogers, J., agree. | [
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John E. Jennings, Judge.
This eminent domain case was tried to a jury on September 20,1988. The jury returned a verdict in favor of the landowners for $130,000.00. According to appellant, a post-trial hearing was held on the issue of the proper interest rate in “November or December” of 1988. On December 15, 1988, the court signed and filed a judgment in the case. On January 25, 1989, appellant filed a motion to set aside the judgment and on February 3, 1989, appellant filed a motion to extend its time for appeal under Rule 4(a) of the Arkansas Rules of Appellate Procedure.
The trial court held a hearing on the post-trial motions and denied them. The argument on appeal is that the trial court abused its discretion in refusing to extend the time for filing the notice of appeal. We find no error and affirm.
Prior to 1986, the trial court had no authority to extend the time for filing the notice of appeal. See Reporter’s Notes to Rule 4, paragraph 3. In 1986, the Supreme Court amended Rule 4(a) of the Rules of Appellate Procedure to provide, in part:
Except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. . . . Upon a showing of failure to receive notice of entry of the judgment, decree or order from which appeal is sought, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed sixty (60) days from the expiration of the time otherwise prescribed by these rules.
The amendment is explained in a Reporter’s Note:
Rule 4(a) is amended to empower the trial court to extend the time for filing a notice of appeal when the party has not received notice of the entry of the judgment or order from which he seeks to appeal. The amendment represents a narrow exception to the rule that the filing of a notice of appeal is jurisdictional and, unless timely filed, there can be no appeal. The change was deemed necessary to ensure fairness when counsel has not received notice of the entry of the judgment or other appealable order. Although under longstanding Arkansas custom opposing counsel have been given an opportunity to approve a judgment or order prepared by opposing counsel, circumstances have arisen where counsel did not receive that opportunity and did not otherwise receive notice that a judgment had been entered.
(Citations omitted.)
In an affidavit filed with the motion to extend appeal time, counsel for appellant stated that he did not receive a copy of the “entered judgment” and “a search of the files has failed to locate the judgment.” At the post-trial hearing the court heard the testimony of Debbie Beech, a Baxter County Clerk. She testified that the trial judge brought her the judgment together with a postage-prepaid highway department envelope. She testified that the judge asked her to file the judgment and mail copies. She said that she put a copy of the judgment in the envelope and placed it in the outgoing-postage box in the courthouse. She also testified that she always sees to it that both attorneys are notified when a judgment is entered. In a discussion with the court and opposing counsel, the attorney for the appellant said, “It’s entirely possible that it got opened up at the Highway Department. I have no idea.”
At the conclusion of the hearing, the court said, “I’m not convinced a copy wasn’t mailed and I don’t have any assurance here that the Highway Commission did not receive it.”
The trial court clearly found that there had been no “showing of failure to receive notice of entry of the judgment,” and that finding of fact is adequately supported by the record. Under the language of the rule, as amended, such a showing is a prerequisite to the trial court’s exercise of discretion to extend the time for appeal. Absent such a showing, the trial court does not have discretionary authority to extend the appeal time. In the case at bar, because the trial court found adversely to appellant on the factual issue of receipt of the judgment, the court lacked authority to extend the time for filing of a notice of appeal.
At the post-trial hearing, the trial judge expressed his opinion that the appeal was without merit and indicated his disapproval of the apparent policy of the appellant to appeal every case in which it has received an adverse decision. Appellant argues that these statements evidence án abuse of discretion, but as we have said, once the court determined that there had not been a showing of failure to receive notice, the court was without discretion to extend the time for appeal.
Appellant also contends that the trial judge abused his discretion in not setting the judgment aside. Because this contention is not supported by persuasive authority or convincing argument, we need not address it. Wye Community Club, Inc. v. Harmon, 26 Ark. App. 247, 764 S.W.2d 55 (1989).
Affirmed.
Cooper and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
The appellees in this workers’ compensation case are the widow and the surviving child of Gary Koon, who was killed on September 15,1986, while employed as a log truck driver by the appellant lumber company. The decedent’s death was accepted as compensable. At a hearing held on June 21,1988, the appellees contended that the decedent’s death was caused in substantial part by a safety violation and that a 25 % penalty therefore should attach to all benefits paid in the claim. The appellees also contended that the decedent’s average wage was $200.00 per week. The administrative law judge found in favor of the appellees on both issues and awarded benefits based on those findings. On de novo review, the Commission adopted the findings and conclusions of the administrative law judge. From that decision, comes this appeal.
For reversal, the appellants contend that the Commission erred in finding that the decedent’s death was caused in substantial part by the employer’s safety violation, and in finding that the decedent’s weekly wage was $200.00 per week. We affirm.
We first address the Commission’s finding that the decedent’s death was caused in substantial part by his employer’s violation of a safety provision, thereby giving rise to a 25% increase in compensation under Ark. Code Ann. § 11-9-503 (1987). The asserted safety violation involved Arkansas Department of Labor Code Part 4, Rule 5(d), which requires that:
All trucks transporting logs and/or lumber over the highways of the State shall be equipped with four standards, at least the height of the load. . . .
The record shows that “standards” are vertical stakes positioned along the length of a logging trailer so as to cradle and contain the load. The appellants do not contend that Rule 5(b) was not violated: they concede in their reply brief that the logs on the decedent’s truck were stacked above the standards and that this constituted a violation of Rule 5(d). Instead, they argue that the evidence was insufficient to support a finding that the decedent’s death was caused in substantial part by a safety violation because (1) the truck was not on a highway when the accident occurred; (2) there was evidence that the decedent was not required to unload the truck; and (3) there was evidence-that the decedent had failed to take safety precautions which could have prevented the accident.
We find no merit to the appellant’s first argument. Although the decedent’s truck was not on the highway at the time of the accident, there was testimony that the truck was one which did operate on state highways, and the decedent’s pay records indicate that he had been hauling logs from the DeWitt Refuge to Forrest City. Moreover, we think that Rule 5(d) clearly pertains to the safety of employees: Rule 5(a), (b), (c), and (d) deal with devices intended to prevent logs from falling off trucks, and Rule 5(e) and (f) require that the grade and condition of truck roads be such as to insure safe operation. Finally, the appellants concede in their reply brief that Rule 5(d) was violated.
Next, the appellants contend that the evidence shows that the decedent had begun to unload the truck when the accident occurred, and that Rule 5(d) is not applicable once the unloading process begins. However, the administrative law judge’s opinion, adopted by the Commission, does not contain a finding that the decedent was unloading the truck when he was killed. Instead, the opinion merely notes that “it is unknown exactly what the claimant was doing at the time of his death.” Although it appears from the evidence that the decedent had removed a binder and cable which helped secure the logs to the truck, Don Douglas, also an employee of the appellant logging company, testified that the removal of these devices was the driver’s responsibility. Mr. Douglas also testified that log trucks were unloaded with a front-end loader, and there is no evidence that a front-end loader was found in the vicinity of the accident. We think that the Commission could reasonably conclude on this record that the decedent was merely carrying out his responsibility of removing the binder and cable when he was killed. We find no error on this point.
The appellants next contend that the evidence showed that the sole cause of the accident was the decedent’s violation of three safety precautions, which they list as follows: (a) improper use of the binder; (b) pulling the cable over the top of the logs so as to draw the logs toward him, and (c) standing too close to the truck.
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 we must affirm if there is any substantial evidence to support them. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). We may reverse the Commission’s decision only when we are convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 (1985). Here, the Commission found that the decedent would not have been killed had the standards been of the proper height. Mr. Douglas testified that he had been employed by the appellant logging company on and off for seven years. He stated that he was assigned to the decedent’s truck on the morning after the decedent was killed; that the truck had not been moved since the accident; that, with the exception of the logs which had fallen, the truck was still loaded; that the logs were stacked above the standards; and that one of the standards was approximately two feet too short. He also testified that it would be impossible for the logs to fall off the side of the truck if the load was below the standards, and he opined that the logs which fell off the truck in the accident came over the short standard. Given this testimony we think that reasonable minds could conclude that the decedent’s death was caused, in substantial part, because the standards were not of the height which Rule 5(d) requires, and we hold that the Commission did not err in so finding.
The appellants next argue that the Commission erred in finding that the decedent’s weekly wage was $200.00 per week. Arkansas Code Annotated § 11-9-518(a)(1) (1987) provides that:
Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.
In the case at bar the appellant employer filed an employee wage report with the Commission stating that the decedent’s pay was based on regular wages, not piece work; that the decedent was paid $5.00 per hour; and that the decedent worked 40 hours per week. The record also contains a wage log for the decedent indicating that his regular scheduled workweek was 40 hours. The Commission found that the decedent’s average weekly wage was $200.00. The appellants contend that the Commission erred in so finding, and that the average weekly wage should have been computed on the actual wages received by the decedent during the ten days he was employed by the appellant logging company.
In Gill v. Arkansas Forest Products, Inc., 255 Ark. 951, 504 S.W.2d 357 (1974), the Arkansas Supreme Court was faced with a similar case involving the accidental death of a worker employed in the timber industry. Noting that there was no guarantee of a full workweek for timber industry employees because the work was subject to weather conditions and the timber supply, the Court held that the Commission properly computed weekly wages on the basis of a 40-hour week in which work was available. The case at bar is distinguishable from Ryan v. NAPA, 266 Ark. 802, 586 S.W.2d 6 (Ark. App. 1979), where the Court of Appeals held that there was substantial evidence to support the Commission’s finding that the claimant was a part-time employee and was not required to work in excess of her normal four hours per day. The question in the case at bar is not whether the evidence would support a finding contrary to that made by the Commission, but whether there is substantial evidence to support the finding the Commission actually made. Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W.2d 397 (1977). We hold that there is substantial evidence to support the Commission’s finding that the decedent’s average weekly wage was $200.00 per week, and we affirm.
Affirmed.
Corbin, C.J., and Cracraft, J., agree.
Under prior law, the increase in compensation for injuries arising from safety violations was payable to the Second Injury Fund, whereas under current law the increase in compensation is payable to the claimant. Compare Ark. Code Ann. § 11 -9-503 (1987) and Ark. Stat. Ann. § 81-1310(d) (Repl. 1976). | [
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Melvin Mayfield, Judge.
Appellant, Paul T. Ryan, Jr., was tried by the court without a jury and convicted of first offense driving while intoxicated. On appeal, he challenges the sufficiency of the evidence.
At trial, Baxter County Deputy Sheriff Michael Redmond testified that at approximately 1:30 a.m. on March 27, 1988, he was called to the scene of a one-vehicle accident on State Highway 101. When he arrived, he was informed that the driver had been taken to the hospital in a private vehicle. At the scene, he found a 1977 Chevrolet pickup truck in a ditch twenty-one feet from the pavement. The truck appeared to have rolled over, the front window was out and there was debris scattered around the area which appeared to have come from the bed of the pickup. A check of the vehicle license determined that the vehicle belonged to appellant, Paul Ryan, Jr.
According to Deputy Redmond, after he finished investigating the scene of the accident, he went to the hospital where he found the appellant, who was being treated in one of the emergency rooms. The deputy testified that he arrived at the hospital at 2:32 a.m.; that appellant had no visible injuries, but his speech was slurred and there was a heavy odor of intoxicating beverages about him. Redmond said appellant admitted he had been driving the truck but said he could not remember how the accident happened. The deputy testified that he advised appellant of his rights under the implied consent law, and appellant consented to have blood drawn for a blood alcohol test.
On cross-examination Deputy Redmond admitted that, although in his opinion appellant was extremely intoxicated at that time, he did not charge appellant with DWI until approximately three weeks later when he received the result of the blood test. Because of evidentiary problems, the result of the test was not admitted into evidence at the trial.
Baxter County Deputy Sheriff John Booker testified that he was en route to the scene of the accident when he received word that the driver in the accident had been taken to the hospital. He said he then went to the Baxter County Hospital, arrived at 2:00 a.m. and located appellant in an emergency room. He said appellant was sound asleep on a gurney; that he did not attempt to talk to appellant; and that there was a strong odor of intoxicating beverages in the room, coming from the appellant.
On appeal, the appellant argues that without the result of the blood alcohol test, the evidence was insufficient to sustain the conviction. He contends that the only evidence of DWI was the testimony that he had an odor of alcohol about him and that his speech was slurred. He maintains the fact that he had an automobile accident cannot be used as evidence of intoxication because it could have just as easily been caused by a tire blowing out. Appellant emphasizes that he was not charged with DWI until three weeks after the accident and insists that this shows there was not even probable cause to arrest him until the result of the blood test was received.
Appellee submits that we should affirm on the basis that appellant failed to preserve his argument for appeal because he failed to move for a directed verdict or otherwise challenge the sufficiency of the evidence in the trial court. In Doby v. State, 28 Ark. App. 23, 770 S.W.2d 666 (1989), we cited Ark. R. Crim. P. 36.21(b) as authority for the statement that “a defendant is not required to request a directed verdict in a bench trial to preserve the sufficiency of the evidence,” and we recently reaffirmed our position on this issue in Smith v. State, 30 Ark. App. 111, 783 S.W.2d 72 (1990).
Before determining the sufficiency of the evidence, we must also consider another argument which appellee submits. The state contends that we should consider the result of the blood test in reaching our decision on sufficiency because Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), requires us to consider all the evidence on appeal, even that which was inadmissible at trial. We believe appellee is misreading Harris. That case holds that when considering an appeal in which sufficiency of the evidence is an issue and there are also arguments that certain evidence introduced during trial was inadmissible, we deal with the sufficiency question first, considering all the evidence, even that which we may later hold was erroneously admitted at trial. This does not mean, however, that on appeal we can consider evidence which the trial court excluded.
We now come to the issue of whether the evidence is sufficient to sustain the conviction. On appeal in criminal cases, whether tried by a judge or jury, we review the evidence in the light most favorable to the state and affirm if there is any substantial evidence to support the trial court’s judgment. Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986); Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). Substantial evidence is evidence 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. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). Because evidence is circumstantial does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred. Johnson v. State, 7 Ark. App. 172, 646 S.W.2d 22 (1983); Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982).
The evidence, when considered in the light most favorable to the state, showed that appellant was involved in a one-vehicle accident; he had a strong odor of alcohol about his person; and his speech was slurred. The deputy sheriff who questioned appellant testified that shortly after the accident appellant appeared to be “very drunk, very intoxicated.” A careful review of the record convinces us, without considering the result of the blood test, that there is substantial evidence to sustain appellant’s conviction.
Affirmed.
Jennings and Rogers, JJ., agree. | [
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John E. Jennings, Judge.
The appellees, Tom and Judy Hendershot, were divorced in 1983, and Judy was awarded primary custody of their child, Chancy. In 1989 the appellant, Virginia Hendershot, Chancy’s great-aunt, filed a “Petition to Intervene and Other Relief’ seeking to intervene in the divorce case and asking for court-ordered visitation with her grandnephew. Both of the child’s parents opposed the petition and filed a motion to dismiss. After a hearing, the chancellor granted the motion. The argument on appeal is that this was error. We disagree and affirm.
Although the appellant’s claim was styled as a petition to intervene it was, in actuality, an independent action seeking court ordered visitation rights. The appellees’ divorce action had been terminated by a final order some six years before this petition was filed. The petition did not seek custody, did not allege that appellant had previously had legal custody of Chancy, and did not allege that either parent was unfit. It did allege that appellant had, “for the most part, raised” the defendant, Tom Hendershot; that she had cared for her grandnephew, Chancy, for extended periods of time; that she “figures significantly in the life” of the child; that she stands “in loco parentis” with the child; and that it would be in the child’s best interest that she be allowed to visit him. Appellant also alleged that Judy Hendershot had not permitted her to visit with the child for the past four weeks.
At the hearing on the motion to dismiss, counsel for the appellant was permitted by the court to make a statement as to what additional matters she thought that she could prove. While appellant’s counsel characterizes her statement as “testimony,” it is apparent that the trial court treated it as additional allegations and, in effect, permitted amendment of the pleadings under Ark. R. Civ. P. Rule 15, even though appellant made no specific request that the complaint be amended. The additional allegations made by appellant were: that she was an accountant, practicing in DeQueen, Arkansas; that Tom Hendershot had lived with the appellant from age eleven or twelve until he went to college; that she was at the hospital when Chancy was born; that the child had spent four Christmases with her; that she had voluntarily kept Chancy for a period of nine months in 1988 while Judy Hendershot went to Texarkana; and that she had spent thousands of dollars on the child.
The issue is whether a great-aunt may maintain an independent action for visitation with her grandnephew, when she has never had legal custody of the child, over the objections of both parents, neither of whom are alleged to be unfit to have custody of the child. To decide this issue it is necessary to examine our law relating to the visitation rights of grandparents. In Veazey v. Stewart, 251 Ark. 334, 472 S.W.2d 102 (1971)), the court stated that “under the general law there is no right of visitation enforceable by injunction in favor of a grandparent with respect to a grandchild when a natural parent having custody resists or objects.” In Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981), the court said “at common law, a grandparent could not maintain an action for visitation rights to a grandchild except as a party to a custody proceeding.” In Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), an adoption case, the supreme court discussed the reason behind the rule:
What the appellants ask us to do through this line of argument is to recognize some form of inherent ‘grandpa-rental rights’ beyond those previously bestowed. This we decline to do, not out of disregard for the genuine relational ties which naturally exist between grandparents and grandchildren, but rather for the reason that the sanctity of the relationship between the parent and the child must be the overriding concern. To create new, enforceable rights in grandparents could lead to results that would burden rather than enhance the welfare of children.
In 1975 the New Jersey Supreme Court in Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199 (1975), said that “[t]he courts have been substantially unanimous in denying a grandparent visitation privileges with grandchildren when the custodial parent objects.” The court found five reasons cited in the cases for such a rule:
(1) Ordinarily the parents’ obligation to allow the grandparent to visit the child is moral, and not legal.
(2) The judicial enforcement of grandparent visitation rights would divide proper parental authority, thereby hindering it.
(3) The best interests of the child are not furthered by forcing the child into the midst of a conflict of authority and ill feelings between the parent and grandparent.
(4) Where there is a conflict as between grandparent and parent, the parent alone should be the judge, without having to account to anyone for the motives in denying the grandparent visitation.
(5) The ties of nature are the only efficacious means of restoring normal family relations and not the coercive measures which follow judicial intervention.
See also Brummer & Looney, Grandparent Rights in Custody, Adoption and Visitation Cases, 39 Ark. L. Rev. 259, 263 (1985).
Because of the position taken by most courts, the legislatures of all fifty states have now enacted statutes which permit the granting of visitation rights to grandparents. See Fernandez, Grandparent Access: A Model Statute, 6 Yale L. & Pol’y Rev. 109 (1988). In Arkansas the first legislation regarding grandparent visitation was Act 320 of 1975 which authorized the chancellor to grant such visitation rights in connection with a divorce or custody proceeding. That act was repealed by more comprehensive legislation, Act 403 of 1985, which was subsequently amended by Act 17 of 1987, and is now codified at Ark. Code Ann. § 9-13-103. The code section provides that chancery courts are authorized to grant grandparents and great-grandparents reasonable visitation rights if such an order would be in the best interest of the child. The section applies only when the marital relationship between the child’s parents has been severed by death, divorce, or legal separation. The section also contains a provision authorizing the court to award attorney’s fees and costs against the petitioner if it finds the petition “not well-founded.”
If, as the supreme court has held, there is no common law right to grandparent visitation, it must logically follow that a great-aunt would have no such right. The legislature has seen fit to change the rule by statute to allow such rights to grandparents and great-grandparents, under certain circumstances and with specific protective provisions for the parents. The statute is clear and cannot be read to include the appellant. Nor can we agree with appellant’s argument that, because she helped raise Tom Hendershot, she should be treated as a grandparent under the statute. When the language of the statute is clear it is our duty to apply it as it is written. Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987).
In reaching our conclusion we have also examined In re Custody of D.M.M., 137 Wis.2d 375, 404 N.W.2d 530 (1987), a case which appears on its face to support the appellant’s position, even though it is not binding precedent for us. There the Wisconsin Supreme Court held that a statute authorizing trial courts to order visitation for grandparents and great-grandparents did not preclude a petition for visitation rights filed by a great-aunt. The case is distinguishable on two grounds: first, the great-aunt in that case had had legal custody for six years; and second, under prior Wisconsin case law such an action was not prohibited. See Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882 (1971).
We are persuaded that the trial court was correct in granting the motion to dismiss.
Affirmed.
Cooper and Rogers, JJ., agree.
To take a different view would mean that the trial court was obliged to decide the motion to dismiss based solely on the complaint as filed. See Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985). | [
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David Newbern, Justice.
This is the second appeal resulting from a default judgment holding the appellant, Sphere Drake Insurance Company (Sphere Drake), liable to the Bank of Wilson on a casualty insurance claim. In the first appeal we approved the default judgment to the extent it determined Sphere Drake liable on the policy in question but reversed and remanded because the Trial Court had precipitously awarded damages. Sphere Drake Ins. Co. v. Bank of Wilson, 307 Ark. 122, 817 S.W.2d 870 (1991). The Trial Court considered the damages issue on remand and entered an award. It was held, over Sphere Drake’s objection, that the Bank could have the benefit of the valued policy law and thus was entitled to the face amount of the policy but not to exceed the value of the indebtedness secured by the insured property rather than being entitled only to recover up to the value of the insured property. We affirm the Trial Court’s award.
Edward and Rachel Carr purchased a building for $13,000. They sold it to relatives named Conway for $36,000. The Conways gave the Carrs a deed of trust to secure payment of the purchase price. The Carrs assigned the deed of trust to the Bank to secure certain loans from the Bank to them. The Conways insured the building with Sphere Drake for $55,000, and the Bank was named as an insured “mortgagee” on the policy. The building burned, and the Bank filed its claim with Sphere Drake for the amount of the Carrs’ indebtedness to the Bank. Sphere Drake refused to pay, and the Bank sued. Sphere Drake defended on the theory that the Carrs and the Conways burned the building to collect the insurance proceeds thus defrauding Sphere Drake.
The default judgment came about as the result of Sphere Drake’s failure to comply with an order compelling discovery. On the first appeal we said the judgment “should have provided only that [Sphere Drake] was liable to the Bank on the insurance policy,” but should not have awarded damages as it did. It is thus clear that whatever defense Sphere Drake may have had on the basis of fraud is no longer available to it as the basic liability issue is foreclosed. Sphere Drake is liable to the Bank “on the insurance policy.” The sole issue now is whether the Bank was entitled only to recover the value of the lost building or the amount owed to it by the Carrs up to the policy limit.
The parties stipulated that the principal balance of the loan was $20,388.83, interest was $9,873.85, and that the statutory 12% penalty for unwarranted failure to pay the claim would amount to $2,446. Sphere Drake also agreed to pay attorney’s fees of $10,000 and judgment was entered for these sums.
Sphere Drake first argues the statute does not apply for the benefit of the mortgagee when the insurer has been defrauded. The second argument is that the fraud of an insured party is imputable to the mortgagee. Third, the valued policy statute does not apply for the benefit of a mortgagee who is not the named insured and who did not purchase the policy, thus a mortgagee may not collect more than the actual value of the mortgaged property.
1. Law of the case
We rej ect the first two arguments as the fraud issue has been determined adversely to Sphere Drake by the default judgment. As we made clear in B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992):
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 plaintiffs cause of action.
Sphere Drake’s liability to the Bank under the policy is now law of the case, foreclosing arguments which would defeat the cause of action. This includes the argument which presumes the existence of fraud and the argument that fraud should be imputed to the mortgagee.
2. The valued policy law
The valued policy law is found at Ark. Code Ann. § 23-88-101 (1987):
(a) A fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered to be a liquidated demand and against the company taking the risk, for the full amount stated in the policy, or the full amount upon which the company charges, collects, or receives a premium.
(b) However, the provisions of this section shall not apply to personal property.
Identical language in a prior codification, Ark.Stat.Ann. § 66-515, was addressed in Tedford v. Security State Fire Ins. Co., 224 Ark. 1047, 278 S.W.2d 89 (1955), as follows:
Statutes of this sort are passed for the purpose of avoiding the uncertainty of determining the value after the fire. The manifest policy of the statute is to guard against over-insurance of the property. The agents or the company have the opportunity to inspect the property fully before taking the insurance and fixing the amount of the premiums. It is the valuation fixed in advance by the parties by way of liquidated damages in case of a total loss by fire of the property insured without the fault of the insurer.
***
Since the enactment of the statute in 1889 this Court has consistently held that it cannot be evaded by contrary policy stipulations. In E.O. Barnett Bros. v. Western Assurance Co., 143 Ark. 358, 220 S.W. 465, the Court said the valued policy statute “becomes a part of every policy of insurance on real property in this State, the same as if it were actually written in the policy.”
Sphere Drake does not question the validity of the assignment of the deed of trust from the Carrs to the Bank. It is clear that, although the Bank was not technically a “mortgagee” as stated on the policy, it was in the same position as a mortgagee.
While we know of no case directly on point decided by this Court, Sphere Drake has given us no reason to hold that a secured party who qualifies as an insured is not entitled to the benefit of the statutory provision. In 15 Couch on Insurance 2d, § 54:221, it is stated that, “In the absence of a controlling regulation or stipulation to the contrary, a mortgagee, in case of a total loss, is entitled to recover the whole amount insured, provided it does not exceed that which, at the time of the loss, was due upon the mortgage.” See Fireman’s Fund Ins. v. Jackson Hill Marina, 704 S.W.2d 131 (Tex.App. 12 Dist. 1986); Cooper v. Alford, 446 So.2d 1093 (Fla.App. 1 Dist. 1984); Fuller v. Stonewall Cas. Co. of W. Va., 304 S.E.2d 347 (W.Va. 1983); Helmer v. Texas Farmers Ins. Co., 632 S.W.2d 194 (Tex.App. 1982).
We have found no general rule in cases which have considered both the questions of the effect of a valued policy statute and the extent of a mortgagee’s entitlement to recovery, but in Great American Ins. Co. v. Smith, 172 So.2d 558 (Miss. 1965), both issues were raised. The Supreme Court of Mississippi concluded a mortgagee was protected by a valued policy law and entitled to recover the full value of the policy up to the extent of the indebtedness.
Section 23-88-101 does not specify for whose benefit it was enacted. It does not limit its effect to claims filed by a party holding legal title to insured property. It speaks rather in terms of certainty through creating a “liquidated demand” which is to be “for the full amount stated in the policy, or the full amount upon which the company charges, collects, or receives a premium.” Given the policy objectives of the statute which we discussed in the Tedford case, we find no good reason why anyone who qualifies as an insured under the policy should be limited contrary to those objectives. An exception, of course, might exist when there is some illegality or fraud in the issuance of the policy, an issue which is foreclosed in this case.
Affirmed.
Brown, J., not participating. | [
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Humphreys, J.
This suit was brought by appellee against appellant in the Third Division of the circuit court of Pulaski County to recover weekly salary installments which had accrued and not been paid up to the date of the institution of the suit and which would accrue up to the date of the trial thereof, under and by virtue of a written contract of employment entered into by appellee and the Little Rock Amusement Company, on the 30th day of July, 1925, which obligation on the part of the Little Rock Amusement Company had been assumed by appellant.
Although the contract was set out in haec .verba, the following paragraph thereof was made the basis of the suit:
“Little Rock (meaning Little Rock Amusement Company) agrees to employ Kempner either as vice presiden! or, at its option, in other executive capacity, for the period between the date of this contract and November 1, 1939, and Kempner agrees to accept said employment and to give to Little Rock and its affairs such of his time, attention and service as it requests of him. Little Rock agrees to pay Kempner in' return for said services salary at the rate of eight thousand dollars a year from the date hereof to November 1, 1939, said salary to be paid in weekly installments of one hundred fifty-three dollars and eighty-five cents ($153.86) each.”
Appellant filed an answer admitting the assumption of the obligations of the Little Rock Amusement Company under the alleged contract, but pleading as a defense to the payment of the salary therein provided for appellee that he failed to perform the executive duties requested of him by it.
The cause was submitted upon the pleadings, testimony and instructions of the court resulting in a verdict and consequent judgment of $9,428.65 against appellant, from which is this appeal.
Appellant contends for a reversal of the judgment upon several grounds, the main contention being that the trial court admitted parol testimony relative to negotiations leading up to the execution of the contract, as well as prior contracts between appellee and the Little Rock Amusement Company and others, to explain what duties appellee should perform for appellant under the written paragraph of the contract set out above. The trial court admitted the evidence upon the theory that the paragraph in question was ambiguous as to the nature and character of the services to he rendered by appellee to appellant in order to earn the salary.
It is the settled rule in this State that parol evidence of conversations and negotiations leading up to the execution of a contract, as well as the relation of the parties thereto and the attendant circumstances to explain and aid in the interpretation of uncertainties and ambiguities contained in writing mav be admitted. Jones v. Lewis, 89 Ark. 368, 117 S. W. 561 ; Wood v. Kelsey, 90 Ark. 272, 119 S. W. 258 ; Wilkes v. Stacy, 113 Ark. 556, 169 S. W. 796 ; Seelig v. Phillips County, 129 Ark. 473, 196 S. W. 456 ; Brown & Hackney v. Daubs, 139 Ark. 53, 213 S. W. 4. Of course, the converse rule is true that parol testimony will not be admitted to explain provisions in the contract which do not háve double meanings and are not susceptible of two interpretations. American Southern Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50.
We are unable to discover any ambiguity in the contract as to the nature and character of services appellee bound himself to perform. In just so many words he obligated himself in payment of a stated salary for a definite period to perform any executive function the company would request him to perform. Executive functions have relation to the management of all or some part of a business and imply activity. An executive officer or employee is one who assumes command or control and directs the course of the business, or some part thereof, and who outlines the duties and directs the work of subordinate employees. Such functions are easily and readily distinguishable from routine work and ordinary labor required in the conduct of a business. It was the duty of appellee, under the wording of the contract, to perform any executive function connected with the picture show business which appellant should call upon him to perform. Appellee cannot be heard to say, as he attempted to do in the trial of the cause, that his duties were to be perfunctory or nominal, and that his position was to be that of a sinecure.
'Conversations, letters and other negotiations leading up to the execution of the contract in question, and independent contracts made by appellee with the Little Rock Amusement Company and others relative to the conduct of the picture show business were inadmissible, as the contract with reference to the duties he obligated himself to perform were certain and unambiguous. Not only did the trial court err in admitting irrelevant and incompetent testimony upon-the issue joined in the pleadings, but also erred in sending the cause to the jury to determine the nature and character of services to be performed by appellee under the contract. The trial court told the jury that the contract was ambiguous and directed them to interpret its meaning with respect to the kind of services appellee was to perform; whereas, he should have instructed them that it was the duty of appellee to- perform any services of an executive nature connected with the picture show business when requested to do so, and that he could not recover if he failed or refused to perform such duties. The jury should have been instructed that appellee could not recover his weekly salary unless he performed the excutive service connected with the picture show business which appellant called upon him to do.
The judgment is therefore reversed, and the cause is remanded for a new trial.
Hart, O. J., and McHaney, J., dissent. | [
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Steele Hays, Justice.
Appellant was convicted of rape on April 19, 1982, and the jury recommended a sentence of forty years in the Department of Correction. After presenting the testimony of the seventy-six year old victim, the State rested and appellant moved for a directed verdict, claiming the proof of penetration was insufficient. The court denied the directed verdict and granted a motion by the State to reopen its case. The victim and her daughter then gave testimony which the appellant concedes was sufficient to support the charge.
On appeal, appellant argues a single point for reversal: The court erred in permitting the State to reopen its case after the appellant had moved for a directed verdict. Appellant recognizes the trial court’s broad discretion in permitting the prosecution to reopen a case after it has rested, but argues surprise and that the State should not have the advantage of having a weakness in its case pointed out by the defense.
We have affirmed the action of the trial court on many occasions when it has allowed the State to reopen its case after it has rested. It is within the trial court’s sound discretion in furtherance of justice to permit the State to present witnesses after resting, where a reopening does not work to the defendant’s prejudice through surprise or otherwise when the disadvantage cannot be overcome. See Rochester v. State, 250 Ark. 758, 467 S.W.2d 182 (1971). Here, while appellant claims surprise, he fails to demonstrate it. The victim’s testimony after she was recalled was nothing more than a fuller explanation of the defendant’s actions during the assault. Too, the appellant was aware through discovery that the victim’s daughter was to be a witness, and what the nature of her testimony might be. The advanced age of the victim and her difficulty in giving embarrassing details no doubt influenced the court in reopening the case. We find no abuse of discretion under the circumstances.
With reference to the argument that the State should not have weaknesses in the prosecution pointed out by the defense, we regard it as inconsequential whether alleged flaws are recognized first by the State or by the defendant. The appellant gives no explanation of how this is prejudicial to the defense and we can find none. We discussed prejudice under similar circumstances in McClendon v. State, 254 Ark. 902, 496 S.W.2d 428 (1973) when we responded to a claim that the defendant was prejudiced and disadvantaged:
It is difficult to perceive how the testimony complained of was a surprise or prejudicial when it could have been presented in the State’s original case. McClendon at 903.
The appellant also argues that during a one and one-half hour recess while his motion for a directed verdict was under advisement, appellant told the court and the prosecution that the defense would not put on any evidence, but would stand on its motion. Though it is not clear what difference it might have made, the record confirms none of this. (T. p. 55-61). It shows only that when the State rested the defendant asked to make a motion away from the jury. The court announced a fifteen minute recess and asked the jury to remain in the jury room. Counsel then argued whether the evidence was sufficient and the judge said he would take the matter under advisement while the defendant’s case was presented. There was no objection to this procedure, nor any suggestion that the defense would stand on the motion. The State then moved to reopen which the judge granted with the comment that he believed the defendant was not surprised and it would serve the ends of justice to allow the State to reopen. We believe he was fully justified under the circumstances.
The judgment on the sentence is affirmed. | [
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Carleton Harris, Chief Justice.
William Earl Fields, appellant herein, age 25, stationed at the Air Base in Blytheville, was charged on three separate instances of knowingly and intentionally exposing his private parts to several minor children under the age of 16 years, and on trial was found guilty by a jury on all three charges, receiving a sentence of six months on one, one year on another, and one and one-half years on the third. The trial court directed that these sentences run consecutively and judgment was so entered. From that judgment, appellant brings this appeal. For reversal, eleven points are asserted, which we proceed to discuss in the order listed.
I.
The trial court erred so many times that it was impossible for defendant-appellant Fields to obtain a fair and impartial trial.
The trial court erred when it ruled that the case be tried in Division 2 of the Second Judicial District when it should have been tried in Division 1.
J — J
The trial court erred when it limited defendant-appellant Fields and his counsel in the time in which he could file additional pleadings.
IV.
The trial court erred when it denied defendant-appellant Fields’ Motion to Quash Venire or Jury Panel.
V.
The trial court erred when it failed to disqualify itself after testimony of defendant-appellant Fields and of his father.
VI.
The trial court erred when it failed to prohibit the testimony of a minor who had no understanding of the obligation of an oath.
VII.
The trial court erred when it failed to prohibit the testimony relating to prior alleged similar acts of defendant Fields in March 1972.
VIII.
The trial court erred when it allowed to remain in evidence State’s Exhibit 1, the football jersey, because it was obtained under a faulty search warrant.
IX.
The trial court erred when it denied defendant’s offered Instruction No. 3.
X.
The trial court erred when it denied the defendant’s offers of evidence because this proffered evidence did relate to degree of punishment the jury might assess against Fields if it found him guilty.
XI.
The trial court erred when it allowed the State to discuss in the presence of the jury the refusal of defendant to sign printed form concerning his constitutional rights.
I.
This point is what is known as a “scatter-load”, based on the other alleged errors, and need not be discussed separately.
II.
Appellant asserts that error was committed because his case was tried in Division 2 of the Second Judicial District when it should have been tried in Division 1. In support of this allegation, appellant relies upon Ark. Stat. Ann. § 22-322.12 (Supp. 1971). This contention was first made before the court on the day before trial when a motion was filed to release appellant on bond, the objection to the trial during the civil term was made, and a continuance was requested until April 2, 1973, when the First Division Court would be trying criminal cases. It is argued that the record does not reflect that Judge Harrison, in Division 2, entered an order assigning these cases on the criminal docket of Division 1 to his division for trial. This contention refers to Arjc. Stat. Ann. § 22-322.3 (Repl. 1962) which requires a written order by the court before the clerk could assign cases. That provision, however, was superseded by § 22-322.12 which requires an “appropriate” order for the reassignment of a case from one docket to another. The standard for the assignment is that the arrangement is found to be best for the dispatch of business. When the pretrial hearing was held on January 2, no complaint was raised about the dates set for trial, nor was there any complaint about the court that would try the case. Therefore, it would not appear that there was any prej udice because of the clerical methods employed by the court in making the transfer; nor does there appear to be any abuse of discretion on the part of the court, for the record discloses that Division 1 conducted the preliminary handling of the case at a time when Judge Harrison was the presiding judge of the Criminal Division, and was thus actually in a better position to continue with the disposition of the case. We pointed out in Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342, that one of the main purposes of Act 505 of 1965 (creating the several divisions, designating one as “Criminal” and the other two as “Civil”) was to permit- the' transfer of civil or criminal cases in order that litigation would be disposed of more expeditiously. We fail to see how appellant suffered prejudice because of the transfer, and it might also be mentioned that Ark. Stat. Ann. § 22-322.7 (Repl. 1962) provides that it “shall not be reversible error that any case is tried in the division to which it has not been especially assigned***.” Also, see Blackstead Mercantile Co. v. Bond, 104 Ark. 45, 148 S.W. 262.
III.
Two of these charges were filed in the month of July, 1972, and the third was filed in September of that year. A pretrial conference was set for, and held, on January 2, 1973, at which time the case was set for trial for January 16, 1973. Although the length of time mentioned was more than adequate for the filing of motions, and although a pretrial conference was held on January 2, it was not until January 15, one day before the time set for trial, that counsel for appellant announced that he had other pleadings to file. The court told counsel that he would not entertain any pleadings the next morning, and gave counsel until 11:00 A.M. to file whatever he desired to file, the time period amounting to about an hour. It is vigorously argued that this limitation was unreasonable, and requires a reversal.
Of course, under some circumstances, the period of time allotted would quickly be considered unreasonable, but as previously pointed out, adequate time had already been afforded for the filing of any pleadings. Within the hour, counsel returned and filed a Motion to Quash the Jury Panel. In oral argument, counsel candidly admitted that at the time he said that he would file more pleadings, he had no particular pleading in mind, but simply intended to study the matter further and determine what pleadings he did care to file. He seemed rather surprised that he was not permitted to file additional pleadings up until the time the trial started; however, we can take judicial notice that many trial courts, as a matter of precluding continuances after witnesses have been notified to appear, and as a matter of preventing disruption of the orderly process, have rules limiting the time that additional motions may be filed before the date of trial. This is not a matter relating to a sudden occurrence of some unexpected event that made necessary the filing of an additional motion. We find no merit in this contention.
IV.
This was the motion that was filed the day before the trial and it asserts that the “Jury Panel or Venire does not have any colored persons on it. It is a well-known fact that between 25% to 30% of the registered voters of the Chickasawba District of Mississippi County, Arkansas, are colored. This failure to have colored persons on the venire is in violation of the constitutional rights of this defendant.”
In the first place, let it be pointed out that the United States Supreme Court has never said that the failure to have members of the black race on a particular panel, is discriminatory; rather their holdings have been based on systematic exclusion of members of that race from the jury panel.
In Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, the court rejected an argument that every distinct voice in the community has a right to be represented on every jury, stating:
“All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. [Citing cases].”
In Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, the court said:
“Although a Negro defendant is not entitled to a jury containing members of his race, a State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.”
In the case now before us, there is no evidence of systematic discrimination and remarks of counsel clearly indicate that his contention is that there were no black persons on the panel at the time of this trial. Counsel offered the testimony of the Deputy Circuit Court Clerk to the effect that there was only one Negro on the panel for the term of court beginning the first of January, 1973, and that person had been excused for the term. However, the deputy clerk testified that members of the Negro race had served as jurors in 1972 and, to her knowledge, for at least six to eight prior years. In Peters v. Kiff, supra, the Supreme Court held that since discrimination in jury selection will not be presumed, a defendant carries the burden of proving such discrimination, but once a prima facie case, or strong inference of race discrimination in jury selection has been presented, the burden shifts to the state to overcome the presumption. Appellant offered only the evidence mentioned; he was not refused the right to offer additional testimony, and the evidence offered certainly was not sufficient to establish a prima facie case, or raise a presumption of discrimination.
V.
Appellant and his father testified in chambers that they believed Judge Harrison was biased and should disqualify himself in the case. Appellant, in reply to a question from his counsel, stated that he was present when the judge “turned down your motion for continuance, he stated that — when he turned down your motion to lower the bond to $5,000 — he said ‘You were out on bond before and you committed two other criminal acts *** to me that in his eyes I am already guilty.’ ”
Appellant’s father testified:
“On two occasions when I talked to the Judge in front of you [Mr. Fendler] and Mr. Partlow and the two clerks, I asked if anything could be done at all that would get him medical treatment rather than be put in the pen, and he stated that when he was in the pen, he could get medical help. On two occasions he made this statement, and the statement he made this morning, so far as he was concerned, my son is already guilty.”
Let it first be pointed out that, according to the record, on October 9, 1972, formal arraignment was waived and a plea of not guilty by reason of insanity had been entered; likewise, a motion had been made to commit appellant to the State Hospital for thirty days observation and examination, which had been granted, and Judge Harrison had signed the order of commitment. In addition, at the pretrial hearing on January 2, counsel for appellant had acquainted the court with his efforts to get appellant into a mental hospital, stating that his client needed psychiatric treatment, having a nervous disorder related to sex. So — the remark of the court certainly did not indicate any prejudice. Be that as it may, it must be remembered that all remarks herein mentioned were made prior to the commencement of the trial, and outside the hearing of any members of the jury panel. In Walker v. State, 241 Ark. 300, 408 S.W. 2d 905, the trial court made remarks considerably stronger than those in the present instance, but we held no showing of disqualifying prejudice had been shown, pointing out that the fact that a trial judge may have a personal opinion as to the merits of the case does not make the trial court so biased and prejudiced as to require his disqualification, and commenting that the “mischief occurs when the trial court communicates to the jury by word or deed a personal bias, prejudice or animus toward the accused, causing the accused to be denied a fair and impartial trial.” It is mentioned that statements by a trial court, in no way communicated to the trial jury, could not constitute bias or prejudice requiring disqualification. We find no merit in this contention.
VI.
Wayne Porter, a ten-year-old boy, testified as to the charge occurring on July 21, being in the company of Donna Pipkin, age 15, Lisa Bigham, age 8, and Vickie Carner, age 14. When asked if he understood that he was under oath, the boy replied, “I didn’t know that until you just now told me.” He stated that he realized that he was supposed to tell the truth but when first asked if he knew what would happen if he didn’t tell the truth, he replied, “Well, not really.” He said that he knew that it would be bad if he didn’t tell the truth and stated in reply to what would happen if an untruth were told, “I imagine I would get punished for it.” At the suggestion of counsel for appellant through a leading question, Wayne testified that he meant he would get a spanking from his Mother and Dad. He stated that he did not attend Sunday School and Church. Over objections, the court permitted Wayne to testify. The next morning, in chambers, before the trial resumed, the court asked counsel for appellant if he desired to renew his motion as to this witness and upon being told that counsel still desired to so move, the record reveals the following:
"The Court is going to strike the testimony of the witness, Wayne Porter, giving to this defendant something which the Court really doesn’t feel he is entitled to, but in order to ensure to the defendant an absolutely and completely fair trial in every respect, and so that no question can be raised whatsoever about the competency of any testimony, and in view of the fart that this request has been made, it will be honored and the jury will be admonished to disregard it.
"MR. FENDLER: At this time on behalf of the defendant, Judge Harrison, I am moving the Court to declare a mistrial on these cases because the testimony was given over my objection as defense counsel. My motion at that time should have been granted and at this time is prejudicial to my case and will cause a very bad effect on the jury. I am making a motion for mistrial at this time. In the alternative, if you don’t grant my motion for mistrial, then I would request the strongest admonition to the jury; you will very strongly tell them to get it out of your mind once you have heard it, but since Mr. Fendler asked it be denied yesterday and the motion was overruled; and no reference to be made to it in the arguments.
“COURT: In view of the rulings of the Court, you were not entitled to it initially. Of course, the Court is of the same feeling you are not entitled to it now, but the Court, as I stated, in order to give to you and this defendant every avenue that might be available to present for the defendant in an effort to see and ensure an absolutely fair trial, this is the only reason the Court brings this up at this tim^, and if this is the attitude of the defendant, and he doesn’t care to have this granted except and on condition a mistrial be granted, that will be denied, and we will continue with the trial.
“MR. FENDLER: Note my exceptions.
“COURT: The ruling will remain as initially made.”
Taking the matter from the outset, the actual point for reversal is that Wayne “had no understanding of the obligation of an oath”, and appellant principally relies upon the cases of Crosby v. State, 93 Ark. 156, 124 S.W. 781, and Hudson v. State, 207 Ark. 18, 179 S.W. 2d 165. In the first, this court held, that in understanding the nature of an oath, the child must be under the immediate sense of his responsibility to God with a conscientious sense of the wickedness of falsehood. In the last cited opinion, Hudson was convicted of murdering his wife. The daughter of the deceased, an eight-year-old girl named Pauline, testified and it was contended that this little girl was not competent to testify. The opinion reveals the following facts:
“Counsel for appellant cross-examined Pauline in respect of qualification and asked : ‘Did you hold up your hand today when they called the names of all those folks back in the courtroom?’ (2) ‘Do you know what an oath is?’ (3) ‘When (the Circuit Clerk) asked you if you agreed to tell the truth, the whole truth, and nothing but the truth, did you know what he was asking?’ To each question a negative answer was given. The little girl asserted that she knew the difference between right and wrong, but did not know what happened to one who did wrong; but she knew about God, and if she did wrong she knew He would do something about it. She later said: ‘He will kill you.’ She knew what the truth was, but when asked to define it replied, ‘I don’t know.’ ”
The court then held her testimony admissible “having had her attention called to a Supreme Being who rewards or punishes in a manner she thinks she understands [and] assents to the proposition that the testimony given will not be false.” We then commented:
“The distinction is one of definition, rather than understanding. It is the exceptional person who, when called to testify, knows what punishment will result from perjury; nor is Pauline to be held incompetent because she did not know what the Circuit Clerk meant when he asked her if she agreed ‘to tell the truth, the whole truth, and nothing but the truth.’ That she did not hold up a hand when ‘they called the names of all those folks back in the courtroom’ is not of controlling importance. She was interrogated by the Judge, who impressed upon her full solemnity of the situation in so far as her degree of maturity permitted.”
Over the years, these holdings have been somewhat modified and the Crosby case is mentioned in our last case on this subject, Allen v. State, 253 Ark. 732, 488 S.W. 2d 712. There, Allen was charged with the rape of an eight-year-old girl, convicted, and sentenced to life imprisonment. On appeal, inter alia, appellant contended that the trial court abused its discretion in permitting this little girl to testify. On this point, this court said:
“As to the requirement of understanding the nature and effect of the oath, we said in Crosby v. State, 93 Ark. 156, 124 S.W. 781, that the child must be under an immediate sense of his responsibility to God with a conscientious sense of the wickedness of falsehood. But this court has found no abuse of discretion in the trial court’s determination of competency where the child realizes that he is obliged to tell the truth and that he will be punished for not doing so, i.e., that he will be punished for not telling the truth because telling falsehoods results in punishment. In Crosby, the witness did not know what the consequences of his failure to testify truthfully would be and was not asked anything from which it could be inferred that he had a sufficient sense of the danger and wickedness of false swearing or that he comprehended and appreciated the sanctity and obligation of an oath. In DeVoe v. State, 193 Ark. 3, 97 S.W. 2d 75, we had this to say regarding an eight-year-old prosecutrix in a rape case:
'As to her competency, it may be said, first, that her competency was peculiarly within the trial court’s discretion, and the trial court’s ruling on the question will not be disturbed unless there was a gross abuse of discretion ***. The witness in the present case was eight years old, appeared to be intelligent, to understand what was meant by an oath, and she testified intelligently. We are of the opinion that the trial court did not abuse its discretion in permitting the witness to testify.’
“We cannot say that there was an abuse of the judge’s discretion in this case. Our view in this regard is bolstered by the apparent intelligence of the witness disclosed by her testimony and the responsiveness of her answers to the questions propounded to her.”
Actually, in Allen the record does not reveal that anything at all was said about an oath, and in qualifying the witness, no questions were asked relative to whether the prosecuting witness understood the obligation of an oath. In the case presently before us, Wayne did testify that he realized that he should tell the truth and that he would likely be punished for not doing so, and he also stated that the taking of the oath had been explained to him. No such evidence as this last appears in Allen. Further, questioning indicated normal intelligence for one that age. He mentioned his friends, how far away they lived from his home, what the children were doing at the time of the occurrence testified about, and he gave a clear description of what the party who exposed himself was doing when he observed him. His identification of appel lant was weak, and it appeared that he was reluctant to disagree with counsel on cross-examination. Yet, a reading of the record very definitely leaves the impression that the little boy was endeavoring to tell the truth.
Apparently, the court subsequently, as a matter of avoiding any possible error, made the offer heretofore set out to strike the testimony. As shown by the record, counsel for appellant moved for a mistrial, with an alternative request, that if this be denied, that the "strongest admonition” be given to the jury. It would appear that the court did not hear the alternative for the judge then said that if counsel did not care to have the motion to strike granted “except and on condition a mis-trial be granted, that will be denied and we will continue with the trial.” Counsel did not further pursue the matter other than to say "Note my exceptions”, and did not call to the attention of the court that he had made an alternate request, and it certainly appears, if he were insistent on the alternative that this would have been done. At any rate, the court consistently stated that it considered the little boy competent, and we are of the view that, certainly under our most recent case, no abuse of discretion was shown.
It might be well to also point out that nine other children testified to the acts committed by appellant; that three others, including a fourteen and fifteen-year-old girl, testified to this particular act, and the testimony was only cumulative. Without any hesitation, under the circumstances herein, we would say that, if error was committed, it could not have been prejudicial. In other words, in viewing all of the testimony herein and considering its overwhelming nature, we think unquestionably that the removal of Wayne’s testimony from the case would not have affected the jury verdict.
VII.
This alleged error refers to the testimony of Sandra Mitchell, 13 years of age, and Teresa Shoemaker, 13 years of age, both of these little girls testifying that Fields deliberately exposed himself to them in March, 1972. This was not one of the offenses charged, but was offered by the state as a matter of showing the intent of appellant. The statute itself, Ark. Stat. Ann. § 11-1127 (Repl. 1964), reads:
“It shall be unlawful for any person with lascivious intent to knowingly and intentionally expose his or her private parts or genital organs to any other person, male or female, under the age of sixteen (16) years.”
It is thus apparent that intent is an integral part of the offense, and the evidence mentioned was offered for this purpose. These two children testified to practically the same acts on the part of appellant as had been allegedly committed before the other children, and we think the evidence was admissible. In Ward v. State, 236 Ark. 878, 370 S.W. 2d 425, appellant was charged with fondling a male child under the age of 14 years in violation of § 41-1128. There, evidence of a similar offense committed several years before was offered by the state, and on appeal, was approved by this court. We pointed out that a different rule, as to evidence reflecting intent, applies to unnatural sex cases and quoted from an earlier case. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804, and cases cited therein. The alleged offense, here offered in testimony, had only occurred a few months before the instances of similar conduct with which appellant was charged, and we think unquestionably, under our cases, that this was competent testimony. The court’s instruction-lb told the jury that evidence of the similar offense was admitted solely for the purpose of showing appellant’s intent, motive, habits, and practices, and could only be considered for that purpose.
VIII.
Sandra Mitchell, Teresa Shoemaker and Sherry Richardson all stated that the person who exposed himself was wearing a maroon and white football jersey; the first two said that it -bore the number 67, and the last men tioned that it bore the number 7 8, though she said that she was not sure about the number.
Officer Robbie Cox, Chief of Police at Blytheville, obtained a search warrant, the affidavit for the warrant stating that Cox had reason to believe that at Barracks 612, No. 3, Blytheville Air Force Base, there was concealed one maroon football jersey with the numerals 67 which Fields was wearing at the time of the alleged incident. The facts tending to establish the grounds for issuance were listed as statements from Teresa Shoemaker and Sandra Mitchell, who had been interviewed separately. Appellant objected to the exhibit, pointing out that the affidavit listed a maroon football jersey, and the officer came back with a white football jersey. The jersey, offered in evidence, is white with a maroon number 67 on both front and back. It was pointed out by the court that when this jersey was offered in evidence, no objection was offered until after the state had finished its examination and the witness had been taken on cross-examination. Aside from that, however, we find no merit in the contention of error. Cox testified that the. description of the jersey as maroon, was either his error or that of a typist because he did receive the information from the little girls that the jersey was maroon and white, and with the numerals 67. Appellant cites the old case of State v. Nejin, 74 So. 103 (1917), where the Louisiana Superior Court said that "Where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other.” This same language is used in Lea v. State, 181 S.W. 2d 351 (1944) and Cagle v. State, 180 S.W. 2d 928 (1944). Nejin, however, also points out that the language "particularly describing the place to be searched and the persons or things to be seized” is to be reasonably interpreted and does not necessarily mean a minute and detailed description of the property to be seized. In the Tennessee case of Poole v. State, 467 S.W. 2d 826 (1971), the defendants insisted that the property for which a search had been made, was not adequately described with particularity, the description being “one electric heater, one orange colored ice jug, 16 gauge shotgun, shells, 22 shells and so forth.” In rejecting this contention, the Court of Criminal Appeals of Tennessee said:
“We think, as did the trial judge, that these items were about as particularly described as such commodities can be. Such merchandise is difficult to describe. It may be said that the heater should be described as a ‘G.E.’ or a ‘Westinghouse’, it could also be argued there are thousands of G.E. heaters and thousands of Westinghouse heaters. Shotgun shells might be described as Remington, Western or Winchester or by name of the manufacturers, still it could be argued there are untold numbers of Winchester, Remington or ‘Peters’ shotgun shells 12’s 16’s and 20’s.”
A somewhat comparable situation existed in the Arkansas case of Easley v. State, 249 Ark. 405, 459 S.W. 2d 410. There it was contended that the description of the property to be searched was insufficient, the search warrant stating that the property sought was concealed in “the house occupied by Bud Easley in or near Hiwasse in the County of Benton.” In rejecting the contention, this court said:
“A search warrant is directed to the officer who is to make the search and Easley does not contend that the officers searched the wrong house under the warrant. Common sense dictates that the constitutional requirement that a search warrant contain a particular description of the property to be searched, is designed and intended to aid the officers in locating the right property to be searched, as well as to protect innocent property owners from unreasonable searches and seizures and prevent officers from searching the wrong property.”
Here, the testimony reflects that the information given was correct, but that a mistake was made in the affidavit. After all, what was the most important part of the description relative to identifying the property? Unquestionably, it was the number 67. This was a particular, specific description, and we think, in accord with the authority quoted, would have prevented the officers from taking the wrong property. Of course, by necessity, a football jersey bearing numerals, would have to be of two colors, in order that the numbers could be identified. We conclude that the contention is without merit.
IX.
Appellant’s Offered Instruction No. 3 was AMI Civil Instruction 102, which provides,
“In considering the evidence in this case you are not required to set aside your common knowledge but you have a right to consider all of the evidence in the light of your own experiences and observations in the affairs of life.”
In considering this point, it might be stated at the outset that we are puzzled as to the purpose in offering this instruction. What would be the experiences and observations of members of the jury as related to the evidence offered in this case? What would be the “common knowledge” referred to? At any rate, it certainly appears that the requested instruction is abstract and we cannot see where it is at all germane to the factual issues being tried. It is not error to refuse to give an abstract instruction. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451. For that matter, the instruction, at most, could only have been cautionary, and we have held that the giving or refusing of a cautionary instruction lies within the sound discretion of the trial court. Baxter v. State, 227 Ark. 215, 298 S.W. 2d 47.
X.
The evidence referred to under this point was competent, says appellant, because it related to the degree of punishment the jury might assess against Fields if it found him guilty. It will be recalled that Fields first entered a plea of not guilty by reason of insanity, but subsequently changed that plea to “not guilty’’. There is a great deal of difference in the proof that would be relevant under these two pleas. Of course, under the first plea, there is an admission of guilt of the act charged, but one contends that because of a defective mental condition and the inability to determine right from wrong, such defendant is not responsible for his act. Under this plea, evidence of a psychiatrist would, of course, be most pertinent, and evidence of irrational acts would be admissible, but the plea of “not guilty’’ simply means that a defendant is saying, “I didn’t do it!” Appellant offered the evidence of Dr. Joe E. Hutchison, Psychiatrist at the Arkansas State Hospital in Little Rock, Dr. Hutchison being one of the staff who observed appellant during his thirty-day stay in the hospital for observation. The doctor explained the tests that are given, stated that the function of the staff was to determine “whether there is enough ego or personality disintegration which would disable the accused, make them irresponsible or mentally incompetent”, and testified that Fields probably was not mentally ill to the degree of legal irresponsibility. Counsel then asked if the doctor thought Fields was amenable to therapy and the court suggested that further hearing be conducted out of the presence of the jury. In chambers, Dr. Hutchison said that, speaking personally, he felt that Fields would be one of the most favorable candidates for therapy. He described this therapy as “Psychotherapy. Group psychotherapy treatment, and also they call it behavorial modification, which specifically would be deconditioning. *** If he had the right type of therapy, in my personal opinion his prognosis would be good.” The doctor said that Fields had a superior I.Q.; that is, between 130 and 140. Finally, counsel asked Dr. Hutchison if “in your observation as a psychiatrist for years, and particularly in the State Hospital, what do you think is going to happen to him if he is sent to the penitentiary or given any confinement?” The court, after objection, held this question, as well as the doctor’s other testimony, to be incompetent because no defense of insanity had been interposed, and stated that further questions along that line would not be permitted. Counsel then made his offer of what the witness would state as follows: '
“Judge, if he were allowed to answer, this witness would say that sending this man to the penitentiary would destroy him; that it would be the worst possible thing that could happen, having him confined. This man needs to be treated as an outpatient and not even as an inpatient in an institution, and that if he were treated as an outpatient, with the proper type of psychiatrists handling this that knew these problems, that very likely, most likely, there will be a complete recovery.”
Counsel then referred to lay witnesses, persons who had known appellant for a number of years, stating that these persons would all testify that in their opinion, even a short stay in the penitentiary would “destroy” appellant. It was stipulated by the state that those particular people would give the answer stated.
The court acted properly in refusing appellant’s request to present this evidence. The effect upon an individual of being sent to the penitentiary has nothing to do with one’s guilt or innocence on the charge being tried. Unfortunately, it may well be that many young people who are sent to the penitentiary are not “helped”, i.e., made better citizens by virtue of having been there. We daresay that this same contention could be raised by divers persons who have violated the law, but, in determining guilt or innocence, such testimony is entirely and completely irrelevant.
Of course, evidence of good reputation in the community is admissible, and the trial court not only permitted this type of evidence, but also permitted witnesses to mention specific acts of good conduct. For instance, Lt. George Bolton, III, located at the Blytheville Air Force Base and working in Personnel, testified that the records did not reflect any type of military disciplinary action taken against Fields during his service and the witness was permitted to read a portion of the last Airman Proficiency Report on Fields, and also commented from the report that “Staff Sgt. Fields was selected as pride man of the month for June, 1972 in the A.G.E. Branch.” The witness further read under “Educational and Training Accomplishments” from a report dated between December 3, 1970 and December 2, 1971, “Staff Sgt. Fields is an outstanding Airman. He has demonstrated his willingness to get ahead by having enrolled in off-base college courses during his off duty hours.”
Col. William C. Brewer, Deputy Commander for Maintenance for the 97 th Bomb Wing at the Air Force Base, testified in a similar vein.
Numerous other witnesses, some of whom had known appellant for many years, testified as to his generally good reputation, including his former Scoutmaster, a former District Executive of the Boy Scouts of America, and one of his school teachers. His father, Chief Switchman for Southwestern Bell Telephone Company in that area, testified in detail about the boy’s civic activities, the numerous honors that he had been awarded, and various other similar favorable facts. A hearing was then conducted out of chambers as to evidence appellant desired to offer through the father that the latter had contacted a psychologist and psychiatrist in Memphis, and made arrangements for appellant to have psychiatric treatment. As previously stated, this last was inadmissible evidence. Appellant also offered testimony, which was rejected by the court, of the parents of one of the little girls, that they did not desire to prosecute, considering the defendant to be sick.
Appellant vigorously argues that testimony of the various people relating to the effect of sending appellant to the penitentiary was admissible, but we cannot agree. Of course, had appellant entered a plea of guilty, extraneous factors could have been presented as a matter of aiding the court in determining the proper sentence. A sentencing court is entitled to receive reports of a probation officer, and any other evidence that might be helpful in this respect, but, in determining guilt or innocence, this evidence is not proper for a jury.
XI.
Officer Mike Richardson of the Blytheville Police Department was asked, following the arrest of Fields, if the latter was advised of his constitutional rights. The witness answered in the affirmative and said that any person arrested is given a form that explains those rights. He testified that Fields was given such a form and then started to state what the form reflected when counsel for appellant objected, saying, “Judge, I would object to this, whatever the form is, to show he signed it, would be the best evidence; not what this witness says.” Counsel then demanded that the signed form be shown. The prosecuting attorney thereupon stated that the defendant had refused to sign the form and counsel objected. In chambers, it was contended that appellant had been prejudiced by the statement made in the presence of the jury that the form had not been signed. We do not agree. No confession was given by appellant, nor was any evidence offered that he had admitted any charge or circumstance; in fact, there was no testimony as to anything that appellant might have said. It is difficult to say how the failure to sign the rights form could have been prejudicial. The refusal to sign frequently occurs, and it certainly is not any sort of admission of guilt; at most, it could only be argued that failure to sign demonstrates that one has not been told his rights before making a statement — and since no statement was here involved, there could have been no prejudice. In oral argument, counsel stated that it would cause the jury to think that appellant was “non-cooperative” with the officers, but we fail to see the significance. It might be said that, in chambers, the prosecuting attorney mentioned that he thought the refusal to deny the charge was an admission against interest and that he intended to argue that to the jury. If the state had made such an argument to the jury, prejudicial error would have resulted, but this was not permitted and was not done. The incident did not constitute error. Of course, counsel brought the matter up himself in asking the officer to present a signed form. More than that, however, the court instructed the jury to disregard the questions relative to advising the defendant as “to his rights and the form that was presented to the defendant.” Counsel expressed his appreciation to the court for this admonishment and the matter thus rested.
Appellant was diligently represented and it appears that every possible defense to the charge was presented on trial. In this opinion, we have discussed these contentions at length and found them to be without merit. The matter mentioned in Point X, and which is so fervently argued by counsel, is one that properly addresses itself to the Executive Branch of Government.
Finding no reversible error, the judgment is affirmed.
It is so ordered.
Byrd, J., dissents.
Fogleman, J., not participating.
“The Circuit Court Clerks of each of the courts in the several counties shall keep and maintain two (2) separate dockets, one (1) for criminal cases and one (1) for civil cases, and each case filed shall be entered in the proper docket. The Judge of the First Division shall preside over cases assigned to the Criminal Docket and the Judge of the Second and Third Divisions shall preside over cases assigned to the Civil Docket. During each term of either division of the Circuit Court, the presiding Judge, by appropriate orders, may assign the first instance, or reassign, any case, Criminal or Civil, from one docket to the other as may be found best for the dispatch of business. The Judges of the three (3) Divisions will alternate in the holding of courts in the three (3) divisions so that each judge will hold approximately one-third (1/3) of the first division (criminal) terms in each county of the district, and two-thirds (2/3) of the second and third division (civil) terms in each, county of the district.”
The compiler also comments, “This section is deemed to be superseded by § 22-322.12 effective January 1, 1967.”
Judge Harrison had conducted the hearing when appellant was sent to the State Hospital for observation.
Appellant says that his consent was necessary for he was not seeking a speedy trial. We do not agree. In Standards Relating to a Speedy Trial promulgated by the American Bar Association Project on Minimum Standards for Criminal Justice, Section 1.1 [Approved Draft, 1968], it is pointed out that the principles set out in the report deal primarily with the protection of the defendant, but that the public too is interested in a speedy trial. "From the point of view of the public, a speedy trial is necessary to preserve the means of proving the charge, to maximize the deterrent effect of prosecution and conviction, and to avoid, in some cases, an extended period of pretrial freedom by the defendant during which time he may flee, commit other crimes, or intimidate witnesses.”
This case came from the same Chickasawba District where two divisions were then in existence.
From the record:
“This Court is not going to entertain any pleadings in the morning, Mr. Fendler. If you have any, you have to get them in and get them filed before noon today. You have had since July ‘72 to file your pleadings, and to get ready for trial. You announced ready for trial on the 2nd of January. You then told the Court you wanted to plead the defendant guilty because he was guilty. You then had a conference and came back and told the Court that you didn’t want to plead him guilty, and then I was informed again Friday or Saturday that you had informed the prosecuting attorney again that he was guilty and you were going to plead him guilty this morning, and then this morning you appear with this motion, and say he is not guilty, and you want a trial, so the matter will be for trial in the morning.”
In Peters v. Kiff, 407 U.S. 493, 33 L. Ed. 2d 83, the Supreme Court pointed out that the right to seek relief because of discrimination against members of a particular race in the selection of juries is not limited to a criminal defendant of that particular race, but may be exercised by a defendant of any race where jury members of any other race have been arbitrarily excluded.
The United States District Court for the Eastern District of Arkansas, Pine Bluff Division, concurred in this view, stating:
“But, as pointed out by the Supreme Court, latent, subjective prejudice of that sort is not enough to require a judge to disqualify himself in a jury case.” See Walker v. Bishop, 295 F. Supp. 767, 773.
“(5) Amplifying this line of examination, the following questions were asked and answers given: ‘Q. What do you mean by that? A. Tell the truth. Q. Tell the truth? A. Yes, sir. Q. And if you didn't tell the truth, what would happen to you? If you are not telling me the truth about what I am asking you, what is going to happen to you? A. I don’t know ... Q. As far as you know, there wouldn’t anything happen to you if you didn’t tell (those men over there) the truth. Is that right? A. Yes, sir.’
(6) Question: ‘Pauline, you say you know the difference between right and wrong? A. Yes, sir. Q. You have been taught that at home, and in Sunday School? A. Yes, sir. Q. Is it right or wrong to tell a story? A. It’s right. Q. It is right? A. It’s wrong. Q. What happens to you if you tell a story? A. The bad man will get yoü. Q. Where did you learn that? A. Nowhere. Q. Now, do you know what swearing is? A. No, sir. Q. Would you swear something is so that is not so? A. No, sir. Q. If you were to sit here today in that chair and tell these people a story, or something . . . that wasn’t true, what would happen to you? A. The bad man would get me. Q. Would that be right, or wrong, for you to do that? A. It would be wrong.’ ”
Sandra was one of those to whom Fields allegedly exposed himself on July 17 and Teresa was also present on that occasion but did not view the act, Teresa, upon observing the car, hollering “Run”.
On another similar occasion, Vicki Camer obtained the license number of the automobile.
The word "o£” does not follow “all” in AMI Instruction 102, and the requested instruction transposed the words "observations” and “experiences.”
From the report:
“Staff Sgt. Fields is a personable and conscientious individual. He strives for perfection in everything. He is dependable, self-confident, and is con tinually striving to improve his performance in his job knowledge. He has a deep sense of responsibility and is loyal to both his subordinates and superiors alike.”
As pointed out in the American Bar Association Minimum Standards for Criminal Justice as Relating to Sentencing Alternatives and Procedures, Section 1.1 (b), p. 46:
“It is also clear that sentencing by the jury is inconsistent with the principle that the sentencing decision should be based upon complete information about the defendant himself as well as his offense. Much of the information most helpful at the sentencing stage is properly inadmissible on the question of guilt, and to admit it only on the question of sentence is highly prejudicial.if the jury is to consider both questions at the same time.' Separation of the questions, on the other hand, involves separate trials, a time consuming and costly venture that presents little gain in compensation.” [Our emphasis].
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Tom Glaze, Justice.
This is an appeal from the special chancellor’s finding that appellee’s unliquidated personal injury claim under the Federal Employers’ Liability Act (FELA) was not marital property under Ark. Code Ann. § 9-12-315(b)(6) (Supp. 1987). In her appeal, the appellant relies on our earlier opinion in Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988), in arguing that the chancellor’s finding is erroneous. We agree to the extent that part of the appellee’s claim should be considered marital property, and therefore reverse and remand.
The parties were married on May 6, 1980, and they separated sometime in May of 1985. Appellee injured his back while working for Missouri Pacific Railroad in July of 1986, and filed a claim under the FELA. The appellee filed a complaint for divorce on May 5, 1987. At the divorce hearing on August 21, 1987, Bob Monroe, the claims manager for the railroad, testified that negotiations had not begun yet on the claim, because time was needed for the medical condition to stabilize. The chancellor issued the decree of divorce on January 6, 1988, finding, among other things, that the appellant was not entitled to any of the benefits to be received from the appellee’s FELA claim because those benefits were not marital property.
Appellant’s reliance on Bunt is well founded. There, in a four-to-three decision, this court addressed a similar fact situation, and held that a spouse’s personal injury claim which has not, as yet, been made the subject of a complaint or offer of settlement at the time of the divorce is still considered marital property as that term is defined in Ark. Code Ann. § 9-12-315(b) (1987). Bunt, 294 Ark. 507, 744 S.W.2d 718. Thus, it would appear that this court’s decision in Bunt is controlling and supports the appellant’s view that appellee’s unliquidated personal injury claim is marital property and is distributable as such. The legislature, however, amended our marital property provision by enacting Act 676 of 1987, which took effect after the Bunt decision. Act 676, compiled as Ark. Code Ann. § 9-12-315(b)(6) (Supp. 1987), excludes certain benefits and portions or elements of personal injury claims from marital property and that Act reads in pertinent part as follows:
(b) For the purpose of this section “marital property” means all property acquired by either spouse subsequent to the marriage except:
* * *
(6) Benefits received or to be received from a workers’ compensation or personal injury claim when those benefits are for any degree of permanent disability or future medical expenses. (Emphasis added.)
Appellant argues that all of appellee’s personal injury claim should be considered marital property under the Bunt holding, because Act 676 took effect after the date of appellee’s injury. We cannot agree. This court has previously held that an act that is effective at the time of the divorce decree is applicable law pertaining to the division of property. See Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981); Noble v. Noble, 270 Ark. 602, 605 S.W.2d 453 (1980). Because Act 676 was clearly in effect at the time the divorce decree was entered, the chancellor was required to consider the Act when he decided the parties’ marital property interests.
Next, the appellant argues that the appellee’s FELA claim is not covered by the exception, since it is not a workers’ compensation claim. While the appellant is certainly correct that a FELA claim is not one for workers’ compensation, Act 676 clearly provides that it applies to certain benefits received from a personal injury claim. Appellee’s FELA claim certainly arises out of bodily injuries he sustained as a railroad employee; therefore, the language under Act 676 is obviously controlling.
Although Act 676 had passed but was not effective when Bunt was decided, we did note that the General Assembly, through that Act, excepted from marital property only those benefits from an unliquidated personal injury claim that would be for any degree of permanent disability or future medical expenses. With these specific benefits excepted, the remaining benefits or elements of damage from one’s personal injury claim are subject to division as marital property pursuant to Ark. Code Ann. § 9-12-315 (a) (1) (A).
In anticipating that a part of appellee’s FELA claim might be found distributable, appellee requests that we hold, on de novo review, that appellant still be denied any such benefits. While this court has the authority in an equity case to decide a case on de novo appeal, we find the record before us insufficient to do so. Therefore we must remand this cause to the trial court for further proceedings and findings necessary to determine the benefits, if any, from appellee’s FELA claim that must be considered as marital property and distributed in accordance with § 9-12-315(a)(1)(A) and (B).
Hickman and Purtle, JJ., dissent.
Since Act 676 contained no emergency clause, it became effective on July 20,1987, or ninety days after the legislature adjourned. | [
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George Rose Smith, Justice.
This is the second bastardy proceeding filed in the county court by Janine Sipa, a resident of Jonesboro, against Charles Kirk Howard, a resident of Crestview, Florida. The first proceeding was brought under the Uniform Interstate and International Procedure Act, Ark. Stat. Ann., Title 27, Ch. 25 (Repl. 1979), and was dismissed because the fathering of an illegitimate child is not a tortious act within the substantive jurisdiction contemplated by that act. Howard v. County Court of Craighead County, 272 Ark. 205, 613 S.W.2d 386 (1981).
The second complaint was then filed in the county court under Act 119 of 1963, which provides that “[a]ny cause of acton arising out of acts done in this State by an individual in this State . . . may be sued upon in this State, although the defendant has left this State,” with a provision for service of process on the Secretary of State. Ark. Stat. Ann. § 27-339.1 (Repl. 1979), construed in Bunker v. Bunker, 261 Ark. 851, 552 S. W.2d 641 (1977), noted in 31 Ark. L. Rev. 541 (1977). Howard’s motion to dismiss for want of personal jurisdiction was denied. This appeal is from the ensuing refusal of the circuit court to prohibit the maintenance of the proceeding in the county court.
Our decision turns upon the sufficiency of the mother’s complaint in the county court. When an issue of jurisdiction arises under a broad long-arm statute such as Section 27-339.1, “the plaintiff must first establish the validity of his substantive cause of action.” Leflar, American Conflicts Law, p. 68 (3d ed., 1977). The complaint must allege facts bringing the case within the long-arm statute and must state a prima facie cause of action. See Texair Flyers v. District Court, 180 Colo. 432, 506 P.2d 367 (1973); Wuertz v. Garvey, 287 Minn. 353, 178 N.W.2d 630 (1970); United States Dental Inst. v. American Assn. of Orthodontists, 396 F. Supp. 565 (D.C. Ill., 1975). Conclusory allegations do not suffice. Nacci v. Volkswagen of America, 297 A.2d 638 (Del. Super. Ct., 1972).
In the present case the complaint alleges that the mother and her child reside in Jonesboro, that at the time of the child’s birth in 1969 the defendant was a resident of Jonesboro, and that the defendant “is the father of this child.” The complaint is fatally deficient in its failure to allege at least that the act of coition occurred in Arkansas, such an allegation being essential to bring the proceeding within Act 119 of 1963, encompassing causes of action “arising out of acts done in this State.” Here no such act is alleged. The county court should have quashed the service, a new service of process being required when the complaint is amended to state a cause of action for the first time. Arbaugh v. West, 127 Ark. 98, 192 S.W. 171 (1917).
The appellant’s plea of res judicata is without merit, for in the first case we merely held, without reaching the merits, that the cause of action was not within the Uniform Act. Nor is there any merit in the plea of limitations as a complete bar to the proceeding. Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d93 (1981).
Reversed and remanded for further proceedings. | [
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Hart, C. J.,
(after stating the facts). In the absence of a bill of exceptions and since the recitation in the judgment is that the difference between the value of the automobile at the date of the commencement of the suit and at the date of the trial is $125, the presumption is that the evidence adduced at the trial sustained the finding of the circuit court and warranted the judgment rendered if within the issues raised by the pleadings. Strode v. Holland, 150 Ark. 122, 233 S. W. 1073 ; McKinney v. First National Bank of Batesville, 152 Ark. 403, 238 S. W. 629 ; Coblentz & Logsden v. L. D. Powell Company, 148 Ark. 151, 229 S. W. 25 ; Commercial Credit Co. v. Stanley, 164 Ark. 473, 262 S. W. 318 ; and Abrams v. Hoff, 174 Ark. 144, 294 S. W. 389.
In the application olf this well settled rule, it cannot be said that there is any error apparent from the face of the record. • The complaint filed by the plaintiff shows that it sought to recover possession of a Chevrolet truck of the value of $93.35 and damages for its detention in the sum of $93.35. There was a judgment in favor of the plaintiff in the circuit court for the sum of $147.16, and it must be presumed that there was evidence sufficient to sustain the judgment.
The record also recites that there was a judgment in favor of the plaintiff against G. T. Williamson in the sum of $125. The record shows that G. T. Williamson, at the commencement of the suit, signed a bond for the defendant in which they covenanted to perform the judgment of the court in the action. The judgment rendered against Williamson expressly recites that there was evidence tending to show that the automobile was of the value of $125 at the time of the bringing of the suit and the exe cution of the bond for the retention of the automobile, and that it was of no value at the time of the trial. As we have already seen the judgment -of the court was for the sum of $147.16, which must be presumed to be for the value of the automobile and the damages for its detention. Williamson, having- signed the delivery bond in which he covenanted to perform the judgment of the court, must be held liable for the value of the automobile to the extent that it was necessary to perform the judgment- of the court because his action in signing the bond enabled the defendant to keep- the automobile and use it until it became worthless. The condition of the bond was that the signers thereof would perform the judgment of the court, which was for the value of the car at the time of the commencement of the suit and the damages for the detention of it. The defendant could not retain the oar and use it and then return it in its worthless condition in satisfaction of the judgment. It cannot be said that the value of the purchase price of the car was all the amount for which the surety would be held liable because the suit was for the possession of the car and damages for its. detention. Indulging the presumption that the evidence was sufficient to sustain the judgment of the court in favor of the plaintiff against the defendant, it must be presumed that the $125 was the value of the car at the time of the commencement of the suit for which judgment was rendered against Williamson, was for the value of the car and the damages for its detention. See Commercial Investment Trust v. Forman, 178 Ark. 695, 10 S. W. (2d) 897 ; Love v. Hoff, 179 Ark. 381, 16 S. W. (2d) 12 ; Commercial Investment Co. v. Miles, 181 Ark. 1177, 25 .S. W. (2d) 3.
Therefore, the judgment will be affirmed. | [
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Butler, J.
One Harris brought suit against the Old American Insurance Company in the municipal court of Pulaski County, where, from a judgment adverse to it, the defendant insurance company appealed to the circuit court and executed a bond superseding the .judgment, as prescribed by § 6513 of the Digest, the appellant here executing said bond as surety.
In the circuit court the verdict was directed for defendant insurance company from Avhich an appeal was prosecuted to this court where the judgment Avas reversed and the cause remanded for a new trial. Harris v. Old American Insurance Co., 180 Ark. 1167, 21 S. W. (2d) 856.
On the trial anew, there Avas a verdict against the defendant, and on motion, a judgment was there rendered against it and against the surety, Loyd W. Judd. Said surety has prosecuted this appeal (from that judgment and here contends, ‘ ‘ First, that the court had no right to render a judgment of $400 against the appellant on a summary proceeding on May 12, 1920; second, that the appellant, IT. S. Harris, in 'Series 4, No. 1274, or his assignee, W. N. Wilson, should have exhausted their remedies under the law to enforce the judgment reversed by the Supreme Court, and had no legal right to resort to a summary judgment on the appeal bond from the municipal court to the circuit court.”
Neither of the contentions of the appellant can be sustained. The bond executed by the appellant was for a sum sufficient to secure the payment of the judgment and the costs, and there is no showing made that the judgment rendered against the original defendant and the surety was in excess of the sum nominated in the bond. By executing the appeal bond, appellant made himself a party to' the proceeding and was therefore constructively'present at every step of the litigation, and must be deemed to have had notice of all the orders made and must be held to have assented to' and have assumed all the obligations imposed by law upon a party signing as surety in such cases, one off which was, as provided by § -6531 of the Digest that where on the appeal the judgment should be against his principal, judgment also should be rendered against him as the surety on the appeal bond. The undertaking on the part of the surety was a continuing’ obligation extending throughout the entire process of the litigation, his liability becoming consummate upon final decision against his principal.
“A provision frequently required and inserted in appeal bonds is one stipulating for the payment of the judgment, if affirmed. In the absence of other considerations, it is obvious on general principles that it is the final decision determining* the rights of the parties which must be deemed to have been within the contemplation of the sureties, and they are liable for the payment of the judgment if finally affirmed although it was first reversed and then on a rehearing affirmed.” 2 R. C. L., p. 312, § 269.
This court, in the case of White v. Prigmore, 29 Ark. 208, quoted with approval from Davidson v. Farrell, 8 Minn. 258, where in construing' a statute similar to ours, that court said: “A law does nothing more than to provide the form and manner in which the agreement entered into by the surety shall be enforced. And the surety, in becoming a party to the bond, under the laiw as it then existed, assents to and adopts those provisions for the enforcement of the contract he has entered into with the obligee of the bond. * * * The law has declared what liability the surety assumes in signing such bond, to-wit: that a judgment against his principal shall also warrant a judgment against him. In effect, it is making the judgment against his principal conclusive evidence of the liability of both upon the bond; and the surety, becoming voluntarily a party to the bond under the law, must be held to have assented to assume all the obligations imposed by the law then in force upon a party holding that relation.
Therefore, there is nothing in the appellant’s contention that the appellee should be required to exhaust his remedy against the principal before moving for judgment against him. Sincel this case originated in a municipal court created by act No. 87 df the Acts of 1915, §§ 6513 and 6531 of the Digest apply to this proceeding under the expressed provision of act 87, supra; and appellant’s rights as against his principal are fully protected by § 6532 and § 6533 of the Digest. It follows that the decree of the court below was correct, and it is therefore affirmed. | [
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Per Curiam.
We ordered Barry Watkins, counsel for the appellant, to appear Monday, March 22, 1993, to show cause why he should not be held in contempt. See Register v. State, 312 Ark. 261, 852 S.W.2d 308 (1993). The State had moved to dismiss due to failure of the appellant, Register, to file a brief due August 24, 1992.
Mr. Watkins appeared, admitted he had not filed the brief for Register by the filing date, and pleaded guilty to contempt. At his appearance in response to the show cause order Mr. Watkins stated he was ready to tender a brief. The brief was tendered, and it has now been accepted. The State’s motion to dismiss the appeal had been denied. Register v. State, 312 Ark. 260, 852 S.W.2d 308 (1993). Mr. Watkins is held in contempt of this Court and fined $250.00. | [
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Minor W. Millwee, Justice.
Jack Perkins and James Engene Harris were jointly charged by information with the crime of murder in the second degree in the death of a 15-year old girl, Velma Ruth Bohannon. They were jointly tried and convicted of involuntary manslaughter and their punishment fixed at three years in the penitentiary. Jack Perkins has appealed.
There is little dispute in the evidence which, in the light most favorable to the state, tends to show the following facts: In July, 1949, Velma Ruth Bohannon resided with her parents in the Ham Town Community near Mulberry, Arkansas. Appellant and Harris appeared at the Bohannon home in appellant’s truck on the afternoon of July 13, 1949, and Harris made an engagement to take Velma Ruth to the picture show. The young men returned about 7:00 p. m., picked up Velma Ruth and drove to the home of another girl who refused to accompany the party. The three then drove to a place in Ozark, where appellant and Harris drank some beer and procured a bottle of wine. They then drove to appellant’s home where they parked the truck. Appellant went into his house leaving Harris with the girl. A quarrel resulted when Harris attempted to have sexual intercourse with Velma Ruth. Harris then left the girl and went into the house where he reported the quarrel to appellant and told him to take the girl home. After Harris assured appellant that he did not love the girl, appellant indicated his intention of having sexual relations with her.
Appellant overtook the girl on the road. She refused to ride in the cab with him but got on the running board on the right-hand side. Appellant drove a short distance to Highway 64 and the girl still refused to get in the truck. Appellant then accelerated the speed of the truck in order to frighten or force the child to get into the cab. Instead of taking the dirt road that led to tlie girl’s home, appellant drove past the point where the road enters Highway 64 toward the town of Mulberry. After driving about a mile past the intersection, he discovered that the girl was not on the truck. •
Appellant reported the incident to Harris and they went to the Bohannon home shortly after midnight and asked Mrs. Bohannon if the girl had come in. When the girl’s mother replied in the negative, Harris stated that Velma Ruth left them at a cafe. Appellant and Harris then drove back to the highway and after a short search, the motor of the truck would not start. Appellant then went to sleep in the truck and Harris went home.
Velma Ruth’s body was found by her mother about five o ’clock the next morning on the shoulder of Highway 64 about an eighth of a mile east of the point where the Ham Town road intersects the paved highway. An autopsy revealed that the girl had suffered a broken neck, concussion of the brain and cuts and abrasions about the face apparently caused when she jumped, or was thrown, from the truck.' There was other evidence that appellant and Harris were intoxicated on the night in question and that the girl’s body had been moved to the place where it was found in some high grass about six feet from the paved highway. At the time of the trial appellant was 27 years of age while Harris gave his age as 18.
The young men were arrested the following day and both made statements to investigating officers which were later reduced to writing and introduced in evidence at the trial. About the only material difference in the statements introduced and the testimony of Harris at the trial is that, in his testimony, he denied having intercourse with the girl.
It is first contended that prejudicial error resulted in the court’s refusal to grant appellant’s motion for a separate trial. Whether defendants jointly charged with a felony, less than capital, may be tried separately or jointly is a matter that rests in the sound discretion of the trial court under our statute (Ark. Stats., 1947, § 43-1802). We have held that a denial of a separate trial was not an abuse of such discretion where the confession of one defendant, not admissible against a co-defendant, was introduced in evidence but the jury was instructed that it could not be considered as evidence against the co-defendant. Bennett and Soliman v. State, 201 Ark. 237, 144 S. W. 2d 476, 131 A. L. R. 908; Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503.
Appellant is critical of the rulé announced in the cases cited above and says it should not be applied where acts of immorality are involved. It is insisted that the statements and confession of Harris contain admissions of moral depravity prejudicial .to appellant and without which there would be insufficient evidence to sustain a conviction. We cannot agree with this contention but find the statements and admissions of appellant sufficient to sustain his conviction when considered with other facts and circumstances in evidence, exclusive of the admissions of his co-defendant. The trial court strictly complied with the rule followed in the Bennett and Nolan cases, supra, in the instructions given in the instant case, and we find no abuse of discretion in denying appellant’s motion for severance.
It is next insisted that the court erred in overruling appellant’s motion for a continuance based on a report of the State Hospital for Nervous Diseases where appellant remained for 30 days examination and observation as to his sanity. The motion was filed on November 28, 1949, the date of the trial. In the hospital report, dated October 15, 1949, the examining physician gave it as his opinion that appellant was sane at the time of examination and on the date of the alleged offense, but further stated that it was unlikely that he would be capable of adequately testifying in his defense and recommended that the charges against him be dropped, and that he be advised to seek hospitalization for his nervous, condition. Appellant offered no evidence in support of the motion except the hospital report.
Appellant relies on the cases of Taffe v. State, 23 Ark. 34, and State v. Helm, 69 Ark. 167, 61 S. W. 915, which, hold that a defendant should not be forced to trial while he is of unsound mind. In Martin v. State, 194 Ark. 711, 109 S. W. 676, we held there was no abuse of discretion in overruling a motion for a continuance where there was a dispute in the medical evidence as to whether the defendant was physically able to stand trial and cooperate in his defense. There was evidence that the defendant was nervous and had been ill for several weeks before the trial. The court said: “We are unable to say from the evidence adduced that the trial court abused his discretion in overruling the motion for continuance. The evidence was conflicting between the physicians, and the appellant was present where the court could observe him. He remained in court during the trial, and there is nothing in the record to indicate that his condition was affected by doing so. This court recently said that the question of a continuance rests in the sound discretion of the trial court, and that its action will not be disturbed, on appeal, except where there is a clear abuse of discretion which amounts to a denial of justice. Adams v. State, 176 Ark. 916, 5 S. W. 2d 946; Smith v. State, 192 Ark. 967, 96 S. W. 2d 1.” See, also, Gook v. State, 155 Ark. 106, 244 S. W. 735; Burford v. State, 184 Ark. 193, 41 S. W. 2d 751.
It is held generally that the mere fact that an accused is nervous, or very excitable, is not sufficient grounds for a continuance. 22 C. J. S., Criminal Law, § 45. See, also, Nix v. State, 20 Okla. Crim. 37, 202 Pac. 1042, 26 A. L. R. 1053; Pope v. State, 42 Ga. App. 680, 157 S. E. 211; State v. Lee, 58 S. C. 335, 36 S. E. 706. It is noted that appellant was placed on trial 43 days after his discharge from the State Hospital. The state of his nervous condition at that time was not shown. He was in court throughout the trial and the court was in position to observe his actions and evaluate his ability to cooperate with counsel in his defense. After the motion for continuance had been denied, and during the course of the trial, a physician testified on behalf of appellant that he had known appellant for 20 years and treated him a few times for nervous indigestion; and that appel lant was “quite nervous,” as disclosed by bis military service hospital record. The doctor would express no opinion as to appellant’s mental competency. It is not the duty or responsibility of the State Hospital authorities to say whether charges against one whom they have found to be sane should be dropped. This is a matter for the courts to determine. There is no evidence of insanity and we are unable to say that the court’s action in overruling the motion for continuance amounted to an abuse of discretion under the circumstances.
Appellant also argues that the court erred in overruling his motion for a bill of particulars. Ark. Stats., 1947, § 43-804, provides that a bill of particulars shall state the act relied upon by the state “in sufficient details as formerly required by an indictment.” Upon the filing of the motion, the prosecuting attorney informed the court that the information filed contained all the facts of which the prosecuting attorney had knowledge. The information alleges the unlawful, felonious, willful and malicious killing of the girl “in some way and manner and by some means, instruments and weapons to the prosecuting attorney unknown. . . .” An indictment in similar language was held sufficient by this court in the early case of Edmonds v. State, 34 Ark. 720. We conclude that the information was sufficient under the statute.
It is next insisted that the court erred in overruling appellant’s motion to strike the allegation from the information that defendants caused the girl’s death while contributing to her delinquency. We cannot agree with appellant’s contention that there is an absence of proof that he contributed to the girl’s delinquency. An indictment containing a similar charge was approved in Parsons v. State, 212 Ark. 371, 205 S. W. 2d 860.
The trial court overruled appellant’s challenge of the prospective juror Pettingill for cause and he was peremptorily challenged by appellant. The record does not disclose whether appellant exhausted his peremptory challenges and the assignment of error in the motion for new trial does not so allege. We have held that where the record fails to show that the defendant exhausted his peremptory challenges, the objection is unavailing in the appellate court. Mabry v. State, 50 Ark. 492, 8 S. W. 823; Smith v. State, 205 Ark. 833, 170 S. W. 2d 1001. Moreover, the voir dire examination of Pettingill does not warrant the conclusion that he was disqualified. He apparently waived his exemption from jury service on account of his profession as a minister. He was a friend of the deceased’s father and also was acquainted with appellant’s father but stated that he would not be embarrassed by these relationships and would try the case solely on the law and evidence. He had talked to a young man who was present when the girl’s body was removed to a doctor’s office, but the nature of such conversation was not disclosed and the person talked to was not a witness in the case. He had no conviction concerning the guilt or innocence of the appellant but stated that there might be proof that would cause him to recall the previous conversation with'the young man.
Error is also urged in the admission in evidence of two photographs of the deceased. The photographs were taken where the body, which was lying face down, was found but after it had been turned over. The pictures reveal the nature of the bruises and abrasions on the girl’s forehead, nose and chin. We have repeatedly held such photographs admissible to show the character and nature of the wounds inflicted on the deceased. Nicholas v. State, 182 Ark. 309, 31 S. W. 2d 527; Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621. The fact that appellant was convicted of the lowest degree of homicide demonstrates that the photographs were not of such nature as to inflame the passions of the jury. Garrett v. State, 171 Ark. 297, 284 S. W. 734.
Appellant next contends that prejudicial error resulted in the admission in evidence of his statements and written confession. It is argued that the written statement was taken in violation of the due process clauses of the state and federal constitutions in that it was procured while appellant was in jail under arrest without a war rant, before be bad been taken before a magistrate and without being advised of bis constitutional rights. The sheriff testified that appellant was arrested and taken to jail abont 11 o’clock on the morning after the killing and at that time freely and voluntarily detailed what happened the night before. There was no evidence of threats, promises or continuous questioning to obtain the statement which was reduced to writing two or three days later. Appellant was advised by the deputy prosecuting attorney that he did not have to make a written statement and that it might be used against him. The failure to take the accused before a magistrate or to serve a warrant of arrest prior to the making of a confession does not render it inadmissible where the jury finds it to have been made voluntarily. State v. Browning, 206 Ark. 791, 178 S. W. 2d 77; Palmer v. State, 213 Ark. 956, 214 S. W. 2d 372. The facts surrounding the confessions involved here are different from those set out in the following cases relied upon by appellant: Watts v. Indiana, 338 U. S. 49, 69 S. Ct. 1347; Turner v. Pennsylvania, 338 U. S. 62, 69 S. Ct. 1352; Harris v. South Carolina, 338 U. S. 68, 69 S. Ct. 1354. The fact that the statements were made to officers while appellant was confined under arrest was a circumstance to be considered on the question of volun-tariness which was submitted to the jury under proper instructions. State v. Browning, supra.
Numerous assignments of error relate to the giving and refusal to give certain instructions. Particular objection is urged against the giving of Instructions Nos. 4, 7 and 8 requested by the state on the grounds that they are repetitious, unduly emphasize certain circumstances and are not based on any evidence. It would unduly prolong this opinion to set out and discuss each of the instructions. While there is some repetition, each instruction presents a theory relied upon by the state not included in the other and we cannot say that the recitals therein so unduly emphasize certain facts as to result in prejudicial error. The jury was warranted in concluding from the facts and circumstances in evidence that the girl met her death when she either jumped, or was thrown, from the truck operated by appellant while he was contributing to her delinquency and attempting to have improper relations with her. These issues were submitted to the jury in the challenged instructions and the evidence is sufficient to sustain the conviction for involuntary manslaughter.
We have examined other assignments in the motion for new trial and find no prejudicial error in the record. The judgment is, therefore, affirmed. | [
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Robert H. Dudley, Justice.
Appellant, Carl Hegwood, appeals from a conviction for the rape of a person under the age of eleven years. We affirm the conviction.
Criminal charges were brought against appellant, and trial was scheduled to begin on February 2, 1988. After talking with the victim’s psychologist, the prosecutor determined that it would be difficult for the nine-year-old child to testify at trial. On January 25, 1988, the prosecutor notified appellant’s attorney that he intended to take videotaped testimony from the child on January 30,1988. Appellant contends that the trial court erred in admitting the videotaped deposition of the victim because appellant had not been given twenty (20) days notice prior to the taking of the deposition.
Appellant bases his twenty-day notice argument on Ark. Code Ann. § 16-44-117(a)(2) (1987). The short answer to this argument is that the statute is not applicable to this case. First, Ark. Code Ann. § 16-44-117 has been superseded by AR.CP Rule 27. See In re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986). Second, ARCP Rule 27(a) applies in situations where the petitioner expects to be a party to an action, but is presently unable to bring it. The procedures set out in Rule 27 (a) allow the petitioner to preserve testimony that is critical to his case so that it will be available when the petitioner is able to bring an action. Here, criminal charges had been brought, and the matter was proceeding to trial. Appellant’s reliance upon Ark. Code Ann. § 16-44-117 is simply misplaced for neither it nor Rule 27(a) is applicable here. Further, the applicable statute, Ark. Code Ann. § 16-44-203 (1987), provides that, “upon motion of the prosecuting attorney and after notice to the opposing counsel, the court, may, for good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of seventeen (17) years.” We find no error in the trial court’s determination that the notice given to appellant was adequate.
Alternatively, appellant argues that the trial court erred in permitting the State to introduce the videotaped deposition and also to call the child to testify in person. Appellant made no objection on this basis below, and he is therefore precluded from raising the issue for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Affirmed. | [
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Butler, J.
The appellant entered into a contract with the appellees to purchase from them certain lands at an agreed price upon the tender of a deed which would convey a marketable title free of liens. The appellant refused to accept the deed.and pay for the lands on the ground that the title of the appellees was “not a good and sufficient title.” Appellees thereupon brought suit for a specific performance of the contract, and the only question here presented for our determination is whether the title offered was such as the appellant contracted for.
Dr. H. P. Dooley was the owner of the lands in controversy in his lifetime. He was a childless widower, having a number of living brothers and sisters, who were very old people. He also had a number of nephews and nieces, children of brothers and sisters who were dead. All the children of his living brothers and sisters and all the children of his deceased brothers and sisters were adults during the lifetime of Dr. Dooley and at the time of the execution of a will by Dr. Dooley shortly before his death. By this will Dr. Dooley attempted to create a trust for the benefit of one brother and three sisters by which they were to- receive the income from certain funds, which funds were to he distributed and equally divided after their deaths among Dr. Dooley’s nephews and nieces then living, some of these being the children of the brother and sisters named in the will as beneficiaries and others being the children of deceased brothers and sisters. W. G. Dooley and his heirs were mentioned in the will to whom nothing- was devised for reasons stated therein. After the death of Dr. Dooley his will was duly probated, and a bill was filed in the chancery court seeking a construction of said will, the brother and three sisters then living and all the children of the deceased brothers and sisters being parties plaintiff and the trustees being the parties defendant. On a trial of the case the court found that the trust attempted to be created failed “because the settlor imposed an impossible condition that prevented the execution of the trust,” either by the trustees or by judicial action of any court, and because under the terms of the will no title vested in the trustees, and the said will was void. The court further found that the complainants were the heirs at law of Dr. H. P. Dooley, deceased, ordered that the trustees be discharged, and that the property of the testator be distributed among the complainants in the proportion and in the manner set out in the decree. There was no appeal -from that decision of the court.
The appellees in the case at bar set out in their complaint the decree of the court above mentioned, alleging that they are the heirs at law of H. P. Dooley, deceased, and that the title offered complied with the contract. The appellant answered and contended that the decree of the chancery court was erroneous, that the trust attempted to be created by Dr. Dooley was valid and enforceable, that the will was and is valid, and that the decree invalidating the will is subject to collateral attack by any of the ultimate beneficiaries under the will, not parties to that proceeding.
The following stipulation was entered into by the attorneys for appellant and appellees, to-wit: ‘ ‘ That.the title of Dr. H. P. Dooley to the lands involved in this action was- absolute at the time of his death and free from all liens; that 'George M. Dooley was a brother of EL P. Dooley and Mrs. Mollie Horney and Mrs. Ida B. McCain are the sisters of H. P. Dooley (these were the brother and sisters named in the will to whom the life estate was devised) and are now living and have children now living who are the nephews and nieces of H. P. ■ Dooley, deceased, and said nephews and nieces are not .named as parties in the action lately pending in the St. .Francis Chancery Court brought 'by the heirs at law of H. P. Dooley, deceased, against the trustees named in the will of the said Dr. H. P. Dooley to avoid the said will and abrogate and annul the trust attempted to be created thereby, being case No. 5228; and said children are not parties to the present suit except T. W. Horney, son of Mrs. Mollie Elorney, who was a deféndant as trustee in the said suit to void the will. ’ ’
The complainants in this ease proceed on the theory that the will is invalid, and was so held by the chancery court, and that they as heirs of Dr. Dooley have good title to the lands involved. They concede that no person •is bound by a judgment or decree except those who are parties or stand in privity with others who were parties, and further, that the children of George M. Dooley, a brother, and of Mrs. Mollie Horney, Mrs. Laura-Mallory ' and Mrs. Ida B. McCain, sisters, were not named as parties plaintiff or defendant in the action to construe the will. They insist that these nephews and nieces, as called by counsel “ultimate beneficiaries,” were virtually represented by the trustees who were parties defendant, and come within the exception of the general rule that all persons concluded by a decree -must have been parties tó the suit, and to sustain this view quote from 15 R. O. L. 1026, par. 500, which in effect declares the rule to be that the doctrine of virtual representation, by which persons may be bound by a judgment although not parties to the suit, is on the theory that they are sufficiently represented by those who are parties on the record, and that they will fairly represent the interests of all standing in like character and responsibility, and a judgment against them will have the effect of res judicata against all who were thus represented.
In the construction of wills the exception to the general rule has no application where the ultimate beneficiary is in being, as he, or they, do not stand in privity to those to whom the present estate is devised, although they may be their children because their claim is not based on, nor comes through, any right of the parent, but by virtue' of the will, and, being in esse, they are necessary parties and not having been made such are not bound by the decree (20 R. C. L. p. 670-71, Curd v. Finch, 142 N. C. 149, 54 S. E. 1009), and, if it was erroneous, they might in another proceeding have the same annulled in so far as their rights were affected.
If, however, the will is indeed invalid, and the decree binding on the ultimate beneficiaries, on the doctrine of virtual representation, as contended for by appellees, they are in no better situation in this case because there is no proof or admission that they are the sole heirs of Dr. EL P. Dooley, but there is a strong intimation that they are not. W. G. Dooley and his heirs mentioned in the will and excluded from its benefits for the reasons therein stated are presumably some- relation to Dr. Dooley, deceased; first, because they are of the same name, and, second, because they are mentioned in the will by name, and these persons are not accounted for. They were not parties to the contract or to this proceeding, and, in the absence of a showing to the contrary, they must be presumed to be still living. The complainants are, therefore, in this dilemma: if the validity of the will may be again brought in question by the ultimate beneficiaries, the children of the brother and three sisters named in the will, (and it can be), the title offered the appellant would be subject to whatever construction might be given the will in another proceeding, and the rights of the ultimate beneficiaries there established; and, as these were not parties to the contract herein involved nor to this suit, the title would be questionable. If the ultimate beneficiaries were concluded by the decree of the court holding the will void, the title would still not be a merchantable one, because it is apparent that some of the heirs of H. P. Dooley are not parties to this proceeding, and their title would not be conveyed by the deed of appellees.
A title to land may be such that it might not be successfully assailed, and yet not be a merchantable title, for by that term more is implied than a good title; it must be one that can be held without reasonable apprehension of its being assailed and one which can readily be transferred in the market. Hinton v. Martin, 151 Ark. 343, 236 S. W. 267 ; Dalton v. Lybarger, 152 Ark. 195, 237 S. W. 694.
. We are of the opinion that under the condition of the title it would not be such that the purchaser could take without reasonable apprehension of its being assailed, nor do we think he could readily sell it on the market because of the fear that at some future time the ultimate beneficiaries in the will of P. Gf. Dooley or his heirs, not parties to the contract, might appear and assert some claim to the property. Under the rule announced we therefore hold there was no merchantable title tendered, and that the decree of the court below must be reversed and the cause remanded with directions to dismiss the plaintiffs’ complaint.
Mr. Justice Smith not participating. | [
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Per Curiam.
Jerry Ellis was convicted of kidnaping and sentenced to a term of 5 years and of aggravated robbery and sentenced to a term of 30 years. His attorney, Marion A. Humphrey, gave notice of appeal, but did not file the record within the period allowed. His attorney has admitted that the late filing of the record was a mistake on his part. The error is good cause to grant the motion for a rule on the Clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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John I. Purtle, Justice.
In an action brought by appellee against appellant wherein each party claimed ownership of three joint savings accounts the trial court granted summary judgment in favor of appellee. Appellant contends the trial court erred in holding that there were no genuine issues of material facts to be determined and that any interest of the appellant could only be based upon an oral or nuncupative will of the decedent, which was unenforceable as a matter of law. We agree with the decision of the trial court to grant summary judgment in favor of the appellee.
In 1979 Lula Boyd Jackson, decedent, established three separate savings accounts in the names of Edna Ivey and herself. Lula Boyd Jackson died on June 18, 1980, leaving one living relative, Francis Gardner Bray. Appellee filed a complaint in January 1981, in which he sought a determination that the proceeds of the three accounts were property of the estate of Lula Boyd Jackson. Appellee asserted he was the sole heir of decedent and therefore the accounts belonged to him. Appellant answered and alleged that it was her understanding that she was to pay all of the decedent’s expenses out of the joint accounts and that any remaining balance would be divided equally between appellant and the estate of Lula Boyd Jackson. It was admitted that the accounts were established to enable the appellant to pay the bills and funeral expenses of the decedent and that decedent retained possession of the check book and certificates of deposit. In her deposition appellant again stated it was her understanding that she was to pay all of decedent’s bills and funeral expenses and then divide the balance between herself and the appellee as sole heir of decedent.
The trial court granted appellee’s motion for summary judgment. The court found that the joint accounts were opened for the sole purpose of allowing the appellant to pay the bills and funeral expenses for decedent. The court also found that the decedent had no intent to establish or create a right of survivorship in the appellant and that such rights in this case could be based only on an oral or nuncupative will which was not legally enforceable. Finally the court held that appellant had failed to establish her claim by clear and convincing evidence and therefore the proceeds of the three accounts were to be paid into the estate of the decedent.
Appellant first argues there were genuine issues of material facts to be determined by the court. The record reveals that there was no disagreement concerning the facts surrounding the establishment of the joint accounts nor the intended purpose for such accounts. The request for admissions and the deposition of the appellant clearly admitted the accounts were established for the payment of decedent’s debts and funeral expenses. Appellant now insists that her answers to the request for admissions and her statements in deposition did not exclude other hypotheses. In response to this appellee asks that we consider the legal maxim expressio unius est exclusio alterius. We think it is proper to apply this maxim in the present case as we did in Cook v. Ark.-Mo. Power Corp., 209 Ark. 750, 192 S.W.2d 210 (1946). If appellant had other arguments she should have presented them to the trial court. It was her duty to show there was a genuine issue of the material facts after the appellee had made a prima facie showing of his entitlement to a summary judgment. Cummings Inc. v. Check Inn, 271 Ark. 596, 609 S.W.2d 66 (1980). We will not reverse the chancellor unless his ruling was clearly against a preponderance of the evidence. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981).
Appellant next argues that the court erred in holding the appellant failed to sustain her burden of proof to establish a valid interest in the accounts by clear and convincing evidence. Appellant’s argument under this theory is to the effect that the accounts established created a right of survivorship in the appellant. We are unable to determine whether such accounts were valid survivorship accounts because the accounts, or certificates, were not abstracted as required by the rules of this court. Stull, Adm’x. v. Ragsdale, 273 Ark. 277, 620 S.W.2d 264 (1981). The appellant did not argue the right of survivorship in the trial court but instead relied upon creation of a trust account theory. Arguments presented the first time on appeal are not considered by this court. Sanders v. Neuman Drilling Co., 273 Ark. 416, 619 S.W.2d 674 (1981).
Affirmed. | [
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Tom Glaze, Justice.
This case involves grandparents’ petition for visitation rights with their five-year-old granddaughter, who is in legal and physical custody of her mother, the grandparents’ former daughter-in-law. The appellees-grandparents, who are residents of Izard County, filed their petition in Baxter County, where the appellant-mother resided. Appellant moved to dismiss the appellees’ petition, contending the Baxter County Chancery Court did not have venue because the Pope County Chancery Court, which granted her a divorce and awarded her custody of her daughter, had retained jurisdiction of matters involving custody and visitation. The chancellor denied appellant’s motion, finding the appellees were not required to file their petition in the Pope County Chancery Court that decided the divorce action between the appellant and her former husband (appellees’ son). In addition, the Baxter County chancellor held that, under Ark. Code Ann. § 9-13-103 (Supp. 1987), appellees were entitled to bring their own separate action to obtain visitation rights with their granddaughter and that, pursuant to Ark. Code Ann. § 16-60-116(1987), venue for such action was in Baxter County, since she resided in that county when this action was filed. We agree.
Appellant argues that because the Pope County Chancery Court previously had entered its decree, awarding appellant the custody of her daughter, venue was thereby established in that court for any subsequent enforcement or related purposes regarding custody or visitation. In this connection, Ark. Code Ann. § 9-12-320 (1987) allows the chancery court that originally heard and decided a divorce proceeding to transfer venue to the court of a new chancery district only when both parties to the divorce proceeding consent to such a change and the new chancery court agrees to accept the case. However, venue, under that statute, refers only to those subsequent proceedings involving the two divorced parties and fails to embrace actions filed by third parties such as grandparents.
Here, the appellees sought visitation of their granddaughter pursuant to Ark. Code Ann. § 9-13-103 (Supp. 1987), which in pertinent part provides:
(a)(1) Upon petition by a person properly before it, the chancery court of this state may grant grandparents . . . reasonable visitation rights with respect to their grandchild ... at any time, if the marital relationship between the parents of the child has been severed by death, divorce or legal separation.
(2) The visitation rights may only be granted when the court determines that such an order would be in the best interests and welfare of the minor.
* * *
(c) The provisions of subsections (a) and (b) of this section shall only be applicable in situations in which there is a severed marital relationship between the parents of the natural or adoptive children by either death, divorce, or legal separation.
Under the language of § 9-13-103(a)(l) and (c), grandparents are afforded the separate right to file for visitation rights with their grandchildren in situations where the child’s parents are divorced, legally separated or when a parent has died. Section 9-13-103 contains no restrictive language that would require grandparents to file their visitation action in a divorce action filed previously by the child’s parents. In fact, § 9-12-320, the venue statute concerning subsequent proceedings in divorce actions, would be wholly inapplicable where the grandparents’ action is precipitated because their son or daughter died and the surviving, but not divorced, parent denied them access to their grandchild.
In the instant case, neither of the child’s parents resided in Pope County when the grandparents filed this action and apparently the child’s father has asserted no interest in exercising or enforcing his visitation rights. Under these circumstances, the Baxter County Chancery Court clearly had venue of the grandparents’ action pursuant to Ark. Code Ann. § 16-60-116 (1987) which allowed the action to be brought where the appellant was residing. Therefore, we affirm.
In conclusion, we note that the appellant and her daughter had been residing in Baxter County for one year when this action was commenced, and we are confident that the best interests of the child were considered and evaluated by the Baxter County chancellor. Nonetheless, we can easily envision a potential conflict when two chancery district courts have concurrent venue concerning separate visitation actions involving the same child or children. The General Assembly certainly may wish to address this potential area of concern so as to avoid the inevitable conflicts or problems that are sure to surface in this sensitive area of the law.
We note that another statute, Ark. Code Ann. § 9-13-102 (1987), took effect in 1981 and permits an adult or minor child to petition for visitation with his or her brother or sister when the parents have denied such access. | [
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Steele Hays, Justice.
On February 2, 1982, the Pulaski County voters approved a countywide sales tax. Subsequently, the Pulaski County Quorum Court passed Ordinance 82-OR-12 imposing both a sales and use tax on residents. Pulaski County began collecting this tax on April 1, 1982, and pursuant to state law distributed the tax collections, per capita, to the several municipalities in the county.
In Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986), we held that the use tax portion of the county ordinance constituted an illegal exaction, remanding the case to chancery court to determine a remedy. After a number of hearings the chancellor issued a proposed judgment, to which the City of Jacksonville objected based in part on the allowance of interest on the judgment against the municipal defendants.
The chancellor issued a judgment on July 23, 1987, determining the specific amounts of money owed to James Ragan and all similarly situated taxpayers by Pulaski County, and by the cities of Little Rock, North Little Rock, Jacksonville, and Sherwood. In this judgment no interest was allocated against Pulaski County because of Ark. Code Ann. § 16-65-114(b) (1987), which prohibits recovery of interest on any county indebtedness. Since cities are not excepted under this statute, the cities of Little Rock, Jacksonville, North Little Rock and Sherwood were assessed both pre- and postjudgment interest.
No appeal was taken from the judgment, but on October 20, 1987, the City of Little Rock filed a motion to amend the judgment under ARCP Rule 60(b) in order “to prevent the miscarriage of justice.” On March 14, 1988, the chancellor denied the motion, and from this ruling the City of Little Rock has appealed, citing ARCP Rule 60(b) in support of its contention that the alleged error in the lower court constitutes a miscarriage of justice as the term is used in Rule 60(b):
To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk. [Our emphasis.]
We do not reach the merits of the argument because we have held frequently that the trial court loses the power to act under Rule 60(b) after ninety days from the filing of the judgment, decree or order with the clerk. Diebold and First National Bank of Wynne v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987); Mullen v. Couch, 288 Ark. 231, 703 S.W.2d 866 (1986); Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985); McGibbony v. McGibbony, 12 Ark. App. 141, 671 S.W.2d 212 (1984); Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983); Southern Farm Bur. Cas. Ins. Co. v. Robinson, 238 Ark. 159, 379 S.W.2d 8 (1964); Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961); King & Houston v. State Bank, 9 Ark. 185 (1848). Here, while appellant’s motion was filed on the 89th day and thus was timely, any power by the court to act on the motion lapsed with the expiration of the ninety days.
In Cigna Ins. Co v. Brisson, 294 Ark. 504, 746 S.W.2d 558 [Supplemental Opinion on Rehearing (1988)], confronted with the exact situation now presented, we wrote:
When the circuit court failed to modify or vacate its June 4 order within ninety days, it lost all power to act under ARCP Rule 60(b). Hayden v. Hayden, 291 Ark. App. 582, 726 S.W.2d 287 (1987); Board of Equalization, Washington County v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W.2d 211 (1972).
In St. Louis and N.A. Ry. Co. v. Bratton, 93 Ark. 234, 124 S.W. 752 (1920), we pointed out there is no authority after the term of court has expired for a trial court to revise a judgment. The term of court was later changed to ninety days and is now incorporated in ARCP Rule 60(b).
The order appealed from is
AFFIRMED. | [
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Conley Byrd, Justice.
Appellant Mary Jo Burchfield individually and as administratrix of the estate of Jane Smith, deceased, brought this wrongful death action against appellees Thomas F. Carroll, Ronnie Colbert and Royal Crown Bottling Company, a/k/a Basil Snyder Bottling Company, Inc. After the witnesses on the liability issue had completed their testimony, the trial court directed a verdict in favor of the Royal Crown Bottling Company and its truck driver Ronnie Colbert. After a discussion with counsel a directed verdict was also entered as to appellee Carroll. For reversal appellant contends:
“I. The trial court abused its discretion in directing a verdict for appellees and deprived the appellants of a determination of the facts by a jury when there was sufficient and substantial factual evidence submitted by appellants on which a jury could have found negligence and damages against appellees.
II. The trial court abused its discretion in directing a verdict for appellees before the close of appellants case in chief.”
Appellee Colbert being called as an adverse witness testified that upon entering the residential area of Gravel Ridge on Highway No. 107, he observed, about a quarter of a mile away, two elderly women proceed from their house toward the highway apparently for the purpose of crossing it. He began slowing down because he didn’t know what they were going to do. About the time he brought his truck to a stop and turned on his. flasher lights the two ladies started across the road. One of the ladies went on across but the other one, appellant’s dece dent, turned and went back to the side of the road and then again started across. Appellee Carroll’s automobile struck appellant’s decedent before she got across the road. Although Colbert here testified that he was only stopped for a moment before the woman was struck, he admitted that when -asked on a deposition if he was stopped for less than two minutes that he had stated that it was less than two minutes. Colbert admits that he had not seen Carroll in his rear view mirror prior to the time the woman was struck.
Carroll testified that he had been following behind the Royal Crown truck in a 1963 Comet for some time, and that, when the truck started slowing down on the straight stretch of the highway, he pulled out to pass it at the first opportunity. Admittedly, Carroll did not see the two women prior to the time he pulled out to pass. He says that when he pulled out to pass, the truck had not completely stopped. When he saw the first woman go across the road, he applied his brakes and then speeded up before he saw the other woman that he hit. He estimated his speed at the time of impact at less than 45 miles per hour. He also testified that he did not see the flasher lights on the truck.
Appellant’s principal reliance for reversal is based upon the proposition that Colbert by stopping the truck under the circumstances was in violation of Ark. Stat. Ann. § 75-647 (Repl. 1957), providing as follows:
“(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 300 feet in each direction upon such highway.
(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or im proved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.”
We find no merit to appellant’s contention. In the first place the evidence shows that the collision occurred in a residential district. In the next place the statute does not apply to stops arising out of the exigencies of traffic. See American Bus Lines, Inc. v. Merritt, 221 Ark. 596, 254 S.W. 2d 963 (1953).
After, the trial court had directed the verdict for Colbert and the Royal Crown Bottling Company, Carroll’s attorney .then made a motion for a directed verdict. Counsel for appellant then made what we consider to be a practical decision and told the court: “Judge, if you are going to dismiss (the Bottling Company and its driver) you might as well grant (Carroll’s) motion, too.” Upon this record we do not believe that appellant is entitled to a reversal as to Carroll unless we should also find that the trial court erred in granting a, directed verdict as to the Bottling Company and its driver.
Appellant now contends that the trial court erred in granting the directed verdict before all of her.proof was in. In the trial she conceded that she had called all of her witnesses on the liability issue.and did not raise the objection now urged. Thus, not having raised the objection in the trial court it comes too late on appeal.
Affirmed.
We take the statement to mean that a judgment against'Carroll-would Háv.e no value. By proceeding in this manner appellant saved the expense of proving . her damages. ' .. ... | [
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Jack Holt, Jr., Chief Justice.
This case is before us on a petition for writ of prohibition. The petitioner, Eugene Reynolds d/b/a Renny’s Bail Bonds, claims that the Arkansas County Circuit Court has erroneously ordered forfeiture of a bond written by Reynolds and directed that he be held in contempt and jailed for failure to pay the bond. Reynolds contends the only bond written by him in this matter was to the Saline County Circuit Court and he is under no obligation to the Arkansas County Circuit Court. We deny the writ because the record contains none of the documents necessary to our resolution of the issues presented.
We have often recited the rule that parties seeking relief in this court must bring up a record sufficient to show the trial court has erred. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). Here, the record contains neither the final order forfeiting bond nor the order holding petitioner in contempt, both of which form the basis for Reynolds’ petition for writ of prohibition. While petitioner’s brief abstracts such orders, they are not in the record. Also, Reynolds has not favored us with a copy of the bond at issue.
This court will not reverse based upon unsubstantiated allegations contained in the abstract on appeal or in the pleadings. Based upon the record before us, we have no alternative but to deny the relief requested.
Writ denied. | [
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Butler, J.
This suit originated in an action by the First National Bank of Fayetteville against Kate Fugitt, E. C. Fugitt, J. H. McIlroy, and J. H. McIlroy as trustee. The Fugitts had executed to the bank a note securing a debt of $17,000, one note for $15,000 and two notes for $1,000 each. These last two notes had been assigned by the bank without recourse to McIlroy with the understanding, that they were inferior to the lien of the mortgage on the $15,000 note. After this transaction the Fugitts ¡borrowed more money from McIlroy who was representing himself and others and to secure the same executed a second mortgage. The Fugitts conveyed to McIlroy as trustee by warranty deed the property contained in the two mortgages aforesaid, the property being identical in each of the mortgages, and contemporaneous with the deed there was a contract between McIlroy as trustee and the Fugitts by which the Fugitts were to repurchase the property. The Fugitts were to pay $250 a month and a sufficient sum in- addition to be deposited in what was called a sinking fund to take care of the taxes and insurance, and upon the payment of a stipulated sum McIlroy was to reconvey the property to the Fugitts.
As subsequently found by the chancellor, the deed made to McIlroy was in effect a mortgage, and the lease contract mentioned above was in reality the method by which the indebtedness owing by the Fngitts to McIlroy was to be repaid. There was a decree of foreclosure of the mortgage made by the Fugitts to the bank and the rights of McIlroy as second mortgagee were ascertained and the balance of the indebtedness owing to him by the Fugitts adjudged. The property conveyed by the mortgages was ordered sold by the commissioner appointed for that purpose, and at the sale the appellee, George Appleby, purchased the property for the sum of $20,000. A number of persons intervened seeking a share of the fund arising from the commissioner’s sale. After paying the sum due the bank there was a surplus which was not sufficient to pay McIlroy, who was adjudged to be the second mortgagee. '
The property was included in a number of local improvement districts lying within the city of Fayetteville, and the mortgaged property was delinquent for the assessments levied against it in the several districts, which, at the time of the decree, amounted to the sum of $1,011.12. The court, in its order distributing the fund remaining after the satisfaction of the debt to the bank, ordered that the commissioner pay these delinquent assessments and that the residue be paid to McIlroy, which, after the assessments were paid, lacked $1,994.45 of the amount necessary to pay McIlroy’s debt. It is from the order directing the commissioner to pay out of the proceeds the past due municipal improvement assessments that this appeal has been prosecuted, the parties in interest to this appeal being McIlroy on the one hand and Appleby on the other, and, if the order of the court below is sustained, Appleby will acquire the lands free from the incumbrance of the special assessments, while, if the order was erroneous, McIlroy will receive an additional $1,011.12 to be applied to his debt against the Fugitts.
To support the order of distribution made, Appleby insists first that it was the duty of McIlroy as second mortgagee in possession and receiving rents from the property to have paid the local assessments, especially as he says that it was the contention of McIlroy throughout the litigation that he was in fact the owner of the property by reason of his deed from Fugitt dated August 1, 1928, and as such entitled to the fund remaining after the satisfaction of the bank’s debt, as it was shown that McIlroy received through payments from Fugitt sums amounting to $4,000—more than sufficient to pay the taxes and assessments on the property. To sustain this contention, he cites the cases of Cotton v. White, 131 Ark. 273, 199 S. W. 116 ; Security Mortgage Co. v. Harrison, 176 Ark. 423, 3 S. W. (2d) 59 ; and Flower v. Bricker, 178 Ark. 764, 12 S. W. (2d) 394.
In the case of Cotton v. White, supra, the court said : “One in possession of lands and receiving the rents and profits thereof under claim of ownership will not be permitted to strengthen his title by allowing the lands to forfeit for taxes and purchase it at a tax sale.” In Security Mortgage Co. v. Harrison, supra, the following language is used: “Of course, where one is in possession receiving rents and profits from mortgaged property, he has money to pay the taxes, and it has been held that under such circumstances he owes the duty to pay the taxes”; and, in the case of Flower v. Bricker, supra, it was held that under the peculiar circumstances of that case the second mortgagee who had purchased the title of the mortgagor on paying the taxes could not be subrog’ated to the State’s lien so as to obtain a lien paramount to the first mortgagee, for the court held that as between the second mortgagee and the first mortgagee under the facts in that case it was the duty of the second mortgagee to pay the taxes.
To-support the principles above announced, the cases of Frierson, etc., v. Branch, 30 Ark. 453 ; Jacks v. Dyer, 31 Ark. 334 ; Guynn v. McCauley, 32 Ark. 97 ; and Ross v. Frick Co., 73 Ark. 45, 83 S. W. 343, are cited by the court in the cases supra. We have made a careful examination of the cases referred to in appellee’s brief and the cases cited by the court, supra, and are of the opinion that they do not support the contention of the appellee here made. The effect of these decisions is simply that, where several claim title or have an interest in lands, one cannot strengthen his title by allowing the lands to forfeit and buy them in at a tax sale when he himself is in possession or is receiving the profits arising from the lands sufficient to discharge the tax burdens. The rule in those cases does not inure to the benefit of a stranger to the title, as he had no interest in the property which might be adversely affected by any action, or failure to act, on' the part of another who had claimed an interest in the lands. In the case at bar it would be immaterial, in so far as the rights of Appleby are concerned, whether McIlroy’s claim to the surplus fund arose from the ownership of the title or as second mortgagee, for there was no duty resting upon any one to do anything for his benefit. His relationship to the property began at the time of his purchase at the judicial sale, and his rights must be governed by the rules applicable to such purchasers.
It is the general rule that purchasers of land at judicial sales take only such interest as that of the owner whose title is foreclosed and subject to all the liens resting thereon, including the lien for unpaid taxes. He takes subject to the rule caveat emptor. Guynn v. McCauley, 32 Ark. 112 ; Black v. Walton, 32 Ark. 321 ; 35 C. J. 78, § 121 ; Farmers’ & Planters’ Bank v. Martin, 61 Am. Dec. 350, 7 Md. 342 ; Creps v. Baird, 3 Ohio State 277 ; 42 C. J. § 1909 ; Pate v. Peace, ante p. 618 ; Cook v. Panich, ante p. 982. In this State taxes on real estate are not personal obligations of the owner, but liens which follow the land, and under the rule of caveat emptor the purchaser at a judicial sale would take the land burdened therewith. It is contended, however, that this rule has been changed by statute, of which § 10,056 of the Digest is a part, and which provides that ‘ ‘ whenever any land so held by tenants in common shall be sold upon proceedings in parti tion, or shall he taken by the election of any of the parties to snch proceedings, or whenever any real estate shall be sold at judicial sale or by administrators, executors, guardians or trustees, the court shall order the taxes and penalties and the interest thereon against such lands to be discharged out of the proceeds of such sale or election.” This section is the authority cited for the action of the court in making the distribution in the instant case and was a part of act No. 114 of the Acts of 1883. It is obvious from an examination of the entire act that its purpose was to provide for the assessment and collection of State revenues. This was a comprehensive and complete statute, its purpose being definitely and precisely stated in its title, namely, “An Act to Revise and Amend the Revenue Laws of Arkansas.” Therefore it is clear that the language quoted above, § 166 of that act, and the reference made to the taxes, “taxes, penalties and interest thereon,” referred to the general revenues of the State and not to assessments for local improvements. It is the rule in this State, and that most, generally followed by courts of the other States and of the United States, that where the word “taxes” is used in a statute, it is construed to have reference to taxation for general purposes and not to local assessments. Lewis v. Delinquent Lands, ante p. 858, and cases therein cited. As there was no expression in the statute under consideration by which any intention on the part of the Legislature could be inferred to make it apply to improvement district assessments, the general rule of construction would exclude such taxes, for, as is stated in Miners’ Bank of Joplin v. Churchill, 156 Ark. 191, 245 S. W. 829, this statute is in derogation of the common law and must therefore be strictly construed. Placing this construction upon it, it becomes apparent that the learned chancellor erred in ordering the local assessments paid out of the fund in court. K|
It is insisted by the appellee that the act of 1883, supra, was lifted out of the statutes of the ¡State of Ohio and that we must adopt the construction placed upon it by the courts of the state from which it is borrowed. Appellee cites the case of Macldey v. Whitmore, 61 Ohio St. 587, and interprets that decision as authority for his contention that assessments for local improvements come within the terms of that part of the act which is now § 10,056 of our Digest. Without determining whether the appellee has correctly interpreted that decision, it suffices to say that that case was not decided until the year 1900 and we adopt only the construction placed on the statute at or before the time of its adoption- and not the construction placed upon it thereafter, and if the import of Mackley v. Whitmore, supra, is that contended for, it would then be in .conflict with the rule heretofore stated. Moreover, this court has construed the statute under consideration in the light of the then existing decisions of the Ohio courts, and as the rule announced conforms to the general rule as to the construction of taxes and taxation as used in revenue statutes, we now adhere to the principle there laid down. In Miners’ Bank of Joplin v. Churchill, supra, we said: “In the cases cited the Ohio court construed the statute to mean that all taxes due and unpaid up to the date of the sale’should be paid out of the proceeds of the sale and should be paid by the commissioner when so ordered by the court.
“It is also decided by the court that the statute, being in derogation of the common la-w, should be strictly construed, and that it did not embrace redemption from tax sale, but only embraced the discharge of tax liens due the State. In a later case it was decided by the court that the statute did not include local improvement assessments.”
Appellee contends that the court in that case misunderstood and wrongly interpreted the holding of the Ohio court, but, if so, the conclusion was justified by the general rule that “an assessment of benefits for local improvements has never been regarded as a tax or termed such in legislative proceedings in our public or private laws, or in popular -intercourse,” and * * * “assessments ■upon real estate for local improvements have no connection whatever with the general taxing powers mentioned.”
It follows that the judgment of the court below must be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion. | [
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Steele Hays, Justice.
When officers of the Union County Sheriffs Department attempted to serve a warrant for the arrest of Daniel Wilson, Wilson refused to submit to arrest and was wounded in a shoot-out with the deputies. An ambulance was called and Wilson was taken to the Warner Brown Hospital in El Dorado where medical services costing $9,724 were rendered.
Eventually the hospital filed suit against Wilson and the county for the amount claimed. Union County moved for summary judgment, contending that its only responsibility was to transport Wilson to a facility where medical services were available, and, having done that, the county was under no further obligation. City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983).
The hospital also moved for summary judgment and the trial court took the motions under advisement. Judgment was later awarded to Warner Brown Hospital against Union County and the county has appealed upon the contention there are material issues of fact remaining and, therefore, it was error tó grant summary judgment. The county also asserts that the trial court’s conclusions of law were clearly erroneous. We reject the arguments and affirm the judgment.
The remaining issues of fact asserted by Union County have to do with the conditions surrounding the delivery of Wilson to the hospital. It is contended that there should be a determination, for example, of whether the decision to bring him there was that of police officials or was solely that of the ambulance driver. It is also argued that there are issues concerning whether Wilson’s condition was negligently caused by the county through the use of excessive force. We reject these contentions because they were not made before the trial court, and we need not consider them for the first time on appeal. Sun Gas Liquids Co. v. Helena National Bank, 276 Ark. 173, 633 S.W.2d 38 (1982).
As to the second point, appellant argues that there is no law imposing liability on Union County for the medical services furnished by the hospital, hence, for the trial court to rule as a matter of law for the hospital was clearly erroneous. We disagree. From the affidavits filed in support of the motions for summary judgment the following facts can be taken as undisputed: that Wilson was wounded by deputies of the Sheriff of Union County as they attempted to arrest Wilson for aggravated assault; that the ambulance which transported Wilson to Warner Brown Hospital was called by the deputies; that Union County had on numerous previous occasions utilized Warner Brown for emergency medical treatment of prisoners and had paid for such medical services; that Union County owned and operated a medical facility in El Dorado (Union Medical Center) capable of providing medical care to county prisoners. Those circumstances were sufficient for the trial court to hold, as it did, that Union County had an obligation to furnish emergency medical care to Wilson and a corresponding duty to pay for such care.
The appellant points out that the trial court did not rely on any of our statutes dealing with payment of costs of services to persons held in county jails. For example, Ark. Code Ann. § 12-41-504 (1987), provides that the quorum court in each county shall prescribe the method and procedure for finding and keeping prisoners confined in the county jail “and shall provide for payment for food and services.” Section 12-41-505 provides that every person committed to the common jail for “any criminal offense or misdemeanor,” if convicted, shall pay the expenses of carrying such person to jail and for his support while he remains there. The provision subjects property of a prisoner to payment of such expenses. Section 16-92-105 (1987), provides that if sufficient property belonging to the defendant cannot be found to pay costs and fees, they shall be paid by the county, or, if the charges are dismissed by the prosecuting attorney, the costs shall be paid by the county. Here, the trial court reserved for later adjudication any rights of the county against Wilson under these statutes.
The county argues that Wilson was not yet a prisoner of the county, within the language of these enactments. However, we think it unnecessary to reach that question in order to affirm the judgment. The county presumes its obligation under City of Revere v. Massachusetts General Hospital, supra, extended no farther than to deliver Wilson to a facility where medical treatment was available. But the trial court, correctly we believe, construed Revere as imposing an obligation on the governmental entity to supply the necessary treatment and if it can obtain such treatment only by paying for it, then it must do so. That, in fact, is exactly what the decision states:
If, of course, the governmental entity can obtain the medical care needed for a detainee only by paying for it, then it must pay. There are, however, other means by which the entity could meet its obligation. Many hospitals are subject to federal or state laws that require them to provide care to indigents. Hospitals receiving federal grant money from the Hill-Burton Act, for example, must supply a reasonable amount of free care to indigents. See 42 USC § 291c(e) [42 USCS § 291c(e)]. In the Commonwealth of Massachusetts now, any hospital with an emergency facility must provide emergency services regardless of the patient’s ability to pay. Mass Gen Laws Ann, ch 111, § 70E(k) (West), added by 1979 Mass Acts, ch 214, and amended by 1979 Mass Acts, ch 720. Refusal to provide treatment would subject the hospital to malpractice liability. § 70E. The governmental entity also may be able to satisfy its duty by operating its own hospital, or, possibly, by imposing on the willingness of hospitals and physicians to treat the sick regardless of the individual patient’s ability to pay.
In short, the injured detainee’s constitutional right is to receive the needed medical treatment; how the city of Revere obtains such treatment is not a federal constitutional question. It is not even certain that mandating government reimbursement of hospitals that treat injured persons in police custody would have the effect of increasing the availability or quality of care. Although such a requirement would serve to eliminate any reluctance on the part of private hospitals to provide treatment, it also might encourage police to take injured detainees to public hospitals, rather than private ones, regardless of their relative distances or ability to furnish particular services. (Revere, at p. 245).
We conclude that on the facts of this case, the trial court did not err in awarding judgment to the hospital and, accordingly, we affirm.
A guardian ad litem was appointed for Wilson upon a finding that he was incompetent. | [
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J. Fred Jonés, Justice.
Billy W. Bowen, a 12 year old minor, by his father and next friend Robert L. Bowen, brings this appeal from a judgment of the Pulaski County Circuit Court entered on a jury verdict for personal injury damages in the amount of $5,100. Young Bowen assigns five points for reversal as follows:
“The verdict of the jury and judgment of the Court is contrary to both the law and the evidence.
The verdict is a nullity, and legal judgment could not, and was not, entered thereon.
The trial court erred in accepting the verdict and refusing to order the jury.to further deliberate.
The case should be reversed, because the jury failed to return a verdict for Robert L. Bowen for the Doctors, Hospital and Medical bills expended for Billy Bowen.
It is clear tire jury' intended for the plaintiffs to recover more money than the $3100.00, and it was without authority to compensate in the form of attorney’s fees, as the jury attempted to do, and the error could not be corrected by the trial court in the manner in which it attempted to do.”
Young Bowen sustained rather severe injuries when his bicycle collided with an automobile owned by Miss Carpenter and being driven from a parking lot by Mr. Saxton. Young Bowen enumerated his injuries in his complaint and by amendment alleged that he had incurred medical and surgical expenses in the amount of $1,910.39 and would incur further medical expenses in the amount of approximately $2,250. The complaint prayed total damages in the amount of $50,000. The answer admitted that an accident occurred on the date involved but alleged that any injuries and resulting damages suffered by young Bowen were occasioned, or contributed to, by his own negligence. The case was submitted to the jury on general verdict forms. The jury found for young Bowen and used the form originally prepared as follows:
“We, the jury, find for the plaintiffs and assess their damages as follows:
Robert Bowen $_
Billy Bowen $_”
This form as returned by the jury reads as follows:
“We, the jury, find for the plaintiffs and assess their damages as follows:
Robert Bowen $_
Billy Bowen $3100.00, plus costs and lawyer’s fees.”
The trial court entered judgment on the verdict for young Bowen in the amount of $3,100 and court costs.
It was stipulated by the parties that after the foreman of the jury returned the above verdict and before the jury was discharged, the plaintiff’s attorney objected to the verdict and requested that the jury be instructed by the court to retire and reconsider its verdict; that the objection and request were made in chambers outside the hearing of the jury and were overruled by the court, after which the jury was discharged.
The parties agree that attorney’s fees were not prayed for in the complaint or recoverable in a tort action of this nature. The appellant argues, however, that the verdict for attorney’s fees was fatal to a valid verdict upon which judgment could be rendered and the trial court erred in returning judgment for the $3,100 plus court costs with the elimination of the attorney’s fee provision of the verdict. The appellees agree that the attorney’s fee part of the verdict was a nullity but argue that the trial court correctly eliminated that item as a mere surplusage, and was correct in entering judgment for the $3,100 damages plus court costs. We agree with the appellees.
The appellant argues that it was clearly the jury’s intention to award attorney’s fees in addition to the damages young Bowen had sustained and we agree, but the simple fact is that an attorney’s fee is not an element of damage in a case of this nature. The jury was clearly instructed as to what did constitute the elements of damage in this case and it had no authority to add an attorney’s fee to the damages so found. The appellant’s request for reconsideration by the jury would have, in effect, required the jury to return a verdict increasing the amount of damages they had found in sufficient amount to cover a reasonable attorney’s fee. We are of the opinion, and so hold, that the trial court was correct in treating the attorney’s fee portion of the verdict as surplusage and entering judgment for the amount of damages found by the jury.
The appellant argues that the case should be reversed because the jury failed to return a verdict in favor of Robert L. Bowen, the father of Billy, for the doctors, hospital and medical bills expended for young Billy. The answer to that contention lies in the fact that the father did not sue as a separate party plaintiff for the amount he had expended in medical expenses for his son. He alleged that the plaintiff (Billy W. Bowen) had suffered serious permanent and disfiguring injuries to his person and had incurred medical and surgical expenses in a definite amount of $1,910.39, and would incur further medical expenses in the approximate amount of $2,250.
The court gave the plaintiff’s requested instruction No. 17, AMI 2213, which reads in part as follows:
“If you decide for Billy Bowen on the question of liability against any party he is suing, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages which you find were proximately caused by the negligence of Mr. Sax-ton or Miss Carpenter. . . .
B. The reasonable expense of any necessary medical care and treatment received and the present value of such expense reasonably certain to be required in the future.”
Under this, plaintiff’s instruction No. 17, the jury was simply told to find the amount of damages sustained by young Bowen, and all the elements of damages they were to consider were clearly spelled out in the instruction. We have no way of determining, and it is not within our province or that of the trial court to attempt to determine, how the jury arrived at its verdict of $3,100. The explanation why the verdict was not in a greater amount might well lie in defendant’s instruction No 4, AMI 2102, given to the jury without objection. This instruction reads in part as follows:
“If you should find that the occurrence was proxi-mateW caused by negligence of both plaintiff and defendants, then you must compare the percentages of their negligence.
If the negligence of plaintiffs is of less degree than the negligence of defendants, then plaintiffs are entitled to recover any damages which you may find they have sustained as a result of the occurrence after you have reduced them in proportion to the degree of their own negligence..
On (he other hand, if defendants were not negligent or if the negligence of plaintiffs is equal to or greater in degree than the negligence of defendants, then plaintiffs are not entitled to recover any damages.”
As to the evidence of comparative negligence considered by the jury, we quote briefly from the appellant’s abstract. Young Bowen testified:
“I was on my righthand side of the road as close to the cars as I could get when he popped out in front of me and we collided, and I don’t know anything else after that. I was riding my bike in the Jacksonville Shopping Center. I do not recall seeing Mr. Saxton’s car.”
One of the defendants, Mary Carpenter, testified as abstracted by the appellant:
“I knew there was going to be a collision as soon as I saw the bike. Right when I saw the bike it happened. The bike hit the car. He was not looking at me. He had his head down. He was over close to the rear of the parked cars.”
Mr. Saxton, the driver of the automobile, testified, as abstracted by the appellant:
“I was heading east and was going probably 5 miles an hour, and I started to make the lefthand turn and I looked up and I saw the line of cars and I saw a young boy on a bike pedaling, leaning forward with his head down. He looked up like this, (indicating) and then hit the car.”
The judgment is affirmed. | [
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McHaney, J.
The appellee brought this action to foreclose a mortgage on a large tract of land in Chicot County, Arkansas, known as Sunnyside Plantation. On the 21st day of July, 1026, the appellant executed its note- for $225,000, secured by a mortgage on said plantation, to become due on the 21st day of July, 1931, and bearing interest at the rate of 6 per cent, per annum, payable semi-annually, from date until maturity, and thereafter at the rate olf ten per cent, per annum. Said note contains this provision: “If default is made in the payment of any interest hereon, the lawful owner may declare the whole principal and accrued interest then unpaid upon the note due, and may at once proceed to collect the same.” The mortgage given to secure said note contains a like provision as that quoted above, and a further provision as follows: ‘ ‘Said party of the first part (appellant) hereby agrees to pay all taxes and assessments levied upon said premises or upon the interest of the party of the second part therein, or upon this mortgage or the money secured hereby, when the same becomes due, -without regard to any law heretofore enacted or hereafter to be enacted imposing payment of the whole or any part thereof, upon the party olf the second part ; * * * and, if not so paid, the said party of the second part, or the legal holder or holders of the indebtedness herein secured, may, without notice, declare the whole sum of money herein secured due and payable at once, or may elect to pay such taxes, assessments and insurance premiums; and the amount so paid shall be a lien on the premises aforesaid and be secured by this mortgage, and collected in the same manner as the principal debt hereby secured with interest thereon at the rate of 10 per cent, per annum.” The fifth paragraph of the mortgage provides: “Said party of the first part hereby agrees that if default be made in the payment of taxes, assessments, insurance premiums, or any of the installments olf interest on the indebtedness herein secured before the maturity of the debt, that the party of the second part shall, at its option, have the right to take possession of all the property * * * and the party of the second, part, or the legal holder or holders of the indebtedness herein secured, may at its or their election, as hereinafter provided, mature the whole of said indebtedness and proceed to foreclose this instrument.”
Thereafter, appellant permitted the taxes for 1926 and 1927. to become delinquent, and permitted certain levee and drainage taxes on special assessments in levee and drainage districts to become delinquent, which the appellee paid, and elected to declare the whole amount of the indebtedness due and payable, and did so by filing this suit on April 28, 1928. On a trial of the case, the chancery court held that the appellee was entitled to recover interest on the balance of the principal indebtedness of $225,000' and taxes paid at 10 per cent, per annum from the date of the filing of the suit to the date of the decree, which was January 8, 1930, and that the total amount of the .judgment then entered should bear interest thereafter at 10 per cent, per annum. The decree in this regard reads: “ The plaintiff is entitled to interest at 10 per cent, on principal from the date this suit was filed, and judgment is rendered on that basis.”
The only question presented by this appeal, for our determination, is whether the interest should be figured on the basis of 6 per cent, or 10 per cent, from the date the suit was filed until the date of the decree.
Did the mortgagor contract to pay a higher rate of interest on the principal indebtedness prior to the maturity date of the note, July 21, 1931, in the event default was made in the payment of interest or taxes and the whole indebtedness declared due under the power given in the note and mortgage? After a careful consideration of all the oases cited by counsel on both sides, we have reached the conclusion that there was no agreement to this effect. The note provides that it shall bear interest at 6 per cent, per annum, payable semi-annually, from date until maturity, July 21, 1931. It further provides that interest and principal not paid when due shall bear interest at 10 per cent, per annum. It further provides that: “If default is made in the payment of any interest herein the lawful owner may declare the whole principal and the accrued interest then unpaid, due, and at once proceed to collect the same.” The mortgage makes a similar provision with reference to taxes and assessments, that is, if the mortgagor fails to pay same, the mortgagee or holder of the note may pay same, and shall be a sum secured by the mortgage, which shall bear interest thereafter at 10' per cent, per annum, and may also declare the whole indebtedness due and payable. These, in substance, are the terms and conditions of both the note and the mortgage. Neither the note nor the mortgage provides that, in the event default is made in the payment of interest or taxes, and the holder exercises his power to declare the whole amount due and payable, the principal indebtedness shall thereafter, that is, from that date, bear interest at the rate of 10 per cent, per annum. To hold, as the court did in this case, that appellee is entitled to collect 10 per cent, interest from the date he declared the whole amount due and payable, by reason of the default in the payment of taxes, that is, the date of filing suit, is to read, a provision into the contract which is not there. The parties might have so stipulated, if they had seen proper to do so. But they did not. On the contrary, they provided in express terms that the principal indebtedness should bear interest at 6 per cent., payable semi-annually, from July 21, 1926, to July 21, 1931, and thereafter it is provided that the principal indebtedness shall bear interest at 10' per cent, per annum. It was. agreed that interest not paid at maturity and taxes paid by appellee should thereafter bear interest at 10 per cent. The failure to provide in the contract that the principal indebtedness should bear 10 per cent, interest per annum from its accelerated maturity negatives the idea that the parties so intended. This court has many times held that an agreement which contains a stipulation for interest at the rate of 10 per cent, per annum from date, without the words “until paid,” bears only 6 per cent, interest, the legal rate, after maturity, and a judgment thereafter rendered bears a like rate of interest. Pettigrew v. Summers, 32 Ark. 571 ; Woodruff v. Webb, 32 Ark. 612 ; Gardner v. Barnett, 36 Ark. 476 ; Johnson v. Myer, 54 Ark. 437, 16 S. W. 121. It has also been held several times that a provision in a note for a higher rate of interest after maturity is valid, where the increased rate after maturity did not exceed the maximum rate allowed by the constitution, article 19, § 13. Bed Bud Realty Co. v. South, 153 Ark. 380, 241 S. W. 21, and cases there cited. In the case last cited the court said: “The notes executed by the corporation to the insurance company bore interest on the principal sum at the rate of 7 per cent, per annum, and contained a provision that, if not paid at maturity, they were to bear interest at the rate of 10 per cent, per annum payable annually until paid. The coupon interest notes also contained a similar provision. Judgment was rendered in favor of the insurance company against the corporation for the principal sum with interest calculated as stipulated in the notes, the judgment to bear interest at the rate of 10 per cent, per annum from the date thereof. Parties may contract for the payment of interest in this State ‘not exceeding 10 per cent; per annum on money due or to become due. ’ Art. 19, § 13, 'Constitution. Section 7353, Crawford & Moses. So long as the parties contract for a rate of interest that does not exceed the maximum rate allowed by the law1, their contracts will be enforced as written. * * * The great weight of authority is to the effect that such contractual increased rate after maturity is regarded as a liquidation of damages for failure to promptly pay, and not as a penalty. 22 Oyc., § 1526.”
Counsel for appellee seek to sustain the decree of the lower court on the authority of Red Bud Realty Co. v. South, supra, but we fail to find any support for appellee in that case. The question at issue here was not there decided. So far as the opinion in that case shows, the notes were all past due according to their terms, as nothing is said by the court about an acceleration clause in either the notes or the mortgage, or that the notes had been declared due and payable by reason of any default. The question at issue here was not there decided, and, so far as we have been able to find, has never been decided by this court. It has been decided by other courts. In Farmers’ Loan and Trust Co. v. Northern Pac. R. R. Co., 94 Fed. 454, the question was whether the interest should be cast at 5 per cent, as provided for in the bonds, or 6 per cent, the lawful rate, after the bonds had been declared due under an accelerating clause in the mortgage. The bonds were dated December 2, 1889, and became due and payable on December 1, 1989, “'and interest thereon in the meantime at the rate of-5 per cent, per annum, * * * semi-annually, on the first day of June and on the first day of December in each year,” with coupons attached. By a provision in the trust deed or mortgage it was provided that, if default be made in the payment of interest or of any coupon for a period of one year, at the election of the trustee, the principal of all the bonds secured by the instruments should become immediately due and payable. Default was made in the payment of certain interest coupons, the trustee declared the whole amount due and payable, and the question before the court was whether the contract rate of interest continued after default and election by the trustee, or whether the legal rate of 6 per cent, should control. The court said: “Here the obligor by its bond agreed to pay a certain sum of money on December 1,1989, a period of 100 years from the date of its obligation, and to pay interest upon its debt in the meantime, that is, until December 1, 1989, at the rate of 5 per cent, per annum. It attached to each obligation coupons representing the semi-annual interest at that rate and for that period of time. The stipulation of the trust deed which authorizes the trustee a,t its election to mature the principal upion default in the payment of interest does not purport to abrogate the rate of interest which the obligor agreed to pay during the stated period. The exercise of the election matured the principal, bnt left untouched the stipulation for interest. The rate was agreed upon by the parties to the contract, and was to continue during a stated period of time; and that rate should govern during that period of time, notwithstanding that by the election of the trustee the principal was matured at an earlier date than that specified in the contract. If the stipulated rate was greater than the legal rate, could the trustee, after election to mature the principal, be required to. receive only the legal rate of interest? I think it logically follows, from the principle declared by the Supreme Court, that in such case the contract rate would govern, because the parties have agreed upon the rate for the period up to the time specified in the contract as the date of the maturity of the debt. And so-, e converso, the trustee having exercised the election to mature the debt before the stipulated period of maturity, no one pursuing the debtor under such election can claim other benefit than to secure present payment of that which, without default of the debtor, could not be enforced until the period stipulated in the contract. If, after default and election to mature the debt, the creditor should receive his interest, or a court of equity should relieve from the default, the contract would remain intact in, all its provisions. I am satisfied that the deflault by the debtor and the election by the trustee did not change the stipulation of the contract with respect to the rate of interest, and that the contract rate .continued after the debt was matured by the election of this trustee.”
While the exact question here presented was not in that case, we think the argument made by the learned judge unanswerable.
In Conn. Mutual Life Ins. Co. v. Westerhoff, 58 Neb. 379, 78 N. W. 724, on rehearing, 79 N. W. 731, it was held that a stipulation that the note shall bear a higher, although lawful, rate from a default in the payment of interest, is unenforceable; at least, before the maturity of the note, and that this “ attached something additional to the amount which was to be paid for the use of the principal sum, not because of' any default directly in its payment, but for default in payment of a sum or the sums to be given for its use. The amount to be paid for the use of the principal sum had been definitely fixed, and set forth in terms in both note and mortgage, and the additional amount to be borne because of default in payment of interest was * * # of the nature of a penalty, and will not be enforced.”
Appellee cites and relies upon the case of Ohio Investment Co. v. Brown, 89 Kan. 66, 130 Pac. 665, and says that it is a case on all fours with the case at bar. We do not think so. The clause in the principal note upon which the opinion was based reads as follows: “This note and these coupons are to draw 10 per cent, interest per annum after due or after default of any interest payment, and are secured by a mortgage of even date herewith, on real estate.” That is a wholly different clause from the one now under consideration, because there is no provision in this note or in this mortgage that the principal note shall bear 10 per cent, interest “after default.” The court correctly held in that case that interest should be computed on the principal note at 10 per cent, after the default had been declared by the bringing of the action.
We have been unable to find any case which, in our judgment, supports appellee’s contentions. Being a case of first impression in this State, we are prone to follow the decisions off other courts on the same question, but in so doing we are not holding that parties may not lawfully contract to pay any legal rate of interest on the principal indebtedness after default has 'been made and declared in accordance with a proper accelerating clause.
The decree of the chancery court is therefore reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Holt, J.
April 5, 1949, the electorate of the City of El Dorado, by proper procedure (Ark. Stats. 1947, § 19-307) voted to annex certain contiguous territory. 1,014 voted for annexation and 277 against. Thereafter, August 17th, the City petitioned the County Court to make the order of annexation. September 21st, appellants, as Remonstrants, appeared in the County Court, and after a hearing, the Court denied the City’s petition for annexation. On appeal by the City to the Circuit Court, there was a finding in favor of annexation in accordance with the City’s petition, and judgment accordingly.
This appeal followed.
For reversal, appellants first contend that the burden of proof was on the City of El Dorado and that the evidence was not sufficient to support the judgment.
The rule is well settled since the early case of Dodson e.t al. v. Mayor and Town Council, Fort Smith, 33 Ark. 508, that the vote of the municipality makes a prima facie case as to the propriety of annexations. There, this court said: “By force of the statute the annexation follows the vote of the city, and the proper formal steps prescribed to be taken in the County Court, unless there be a complaint filed against it and sustained. The vote of the town makes a prima facie case as to the propriety of the annexation. The onus of showing cause against it sufficient to satisfy the judgment of the County Judge, was upon the remonstrants.”
This holding has been consistently followed by this Court. Walher v. City of Pine Bluff, 214 Ark. 127, 214 S. W. 2d 510; Burton v. City of Fort Smith, 214 Ark. 516, 216 S. W. 2d 884; City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 438.
We have also consistently held that the findings of the Circuit Court, on appeal, in annexation cases, have the same weight as the verdict of a jury and therefore we must affirm the Court’s judgment if we find any substantial evidence in support thereof, Walker v. City of Pine Bluff, and other cases above.
The correct rule in determining whether contiguous territory should be annexed was clearly set forth in Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, 16 S. W. 291, in this language: ‘ ‘ That city limits may reasonably and properly be extended so as to take in contiguous lands, .(1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water systems, or to supply places for the abode or business of its residents, or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear that such value was enhanced on account of their adaptability to town use.
“2. We conclude further that city limits should not be so extended as to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses.”
We have never deviated from this rule in subsequent opinions. See City of Newport v. Owens and Walker v. City of Pine Bluff, supra.
The Circuit Court, after hearing a large number of witnesses, found: “The first witness testifying for the city was Frank Burnside. He is an engineer, thoroughly capable and thoroughly respected in this county.' He has been the County Surveyor for a long time at public request. Mr. Burnside went over every area and every tract of ground entirely around the city that is involved in this hearing. He has spent twenty-five years of his life in work of that kind. He testified that there is no piece of ground involved in this area that is not adaptable for city purposes.
“He was followed by the City Engineer, who testified that he is a man of ten years’ experience in such work. That all of this property can be furnished with sewer system.
“He was followed by Ex-Mayor Boclenhamer * * *, a man thoroughly capable and thoroughly experienced in real estate matters, and he testified with the .exception of two small tracts in the Southeast corner, he is familiar with all the property involved in this lawsuit, and it is all adaptable to city uses. He also testified that El Do-rado is a growing city and that there is need for expansion for El Dorado’s normal growth. * *
“I believe from the evidence that all of the property involved is adaptable to city uses, that there is need for expansion and that the prayer for annexation should be granted, and it is so ordered.”
This testimony is substantial and sufficient to support the judgment.
We do not detail the testimony since to do so would serve no useful purpose. It suffices to say, as indicated, that the testimony of the three witnesses, Mr. Burnside, the City Engineer, and Ex-Mayor Bodenhamer, was substantial and warranted the findings and judgment of the Circuit Court.
Appellants next argue that § 19-307, above, is unconstitutional and say: “Appellants do not contend, and do not want to be understood as contending, that the Legislature could not enact a law under which territory could be brought into a municipality without the consent of a majority of tire electors therein, but simply contend that the Legislature has not done so. Appellants do contend, however, that the Legislating cannot enact a law placing the burden of proof on the inhabitants of a territory sought to be annexed, to show that the territory should not be annexed.”
The answer to this argument is found in Dodson et al. v. Mayor and Town Council, Fort Smith, above, wherein § 19-307 above (Act Mar. 9,1875, No. 1, § 84, p. 1; C. & M. Dig., § 7468; Pope’s Dig., § 9501), was construed. It was there held that by force of the statute, annexation must be determined by the vote of the electorate within the town or city.
Appellants argue that we should overrule the Dodson case, but this we decline to do. We hold, therefore, that under the provisions of § 19-307, above, contiguous territory may be brought into a municipality on the vote of a majority of the electors within the municipality only and that said section is constitutional.
Next appellants question the sufficiency of the plat which the City filed with its petition and say: The plat filed fails to show areas that are platted, and shows other areas as platted that actually are not platted; it fails to show roads, and shows other roads or streets that actually do not exist. ”
We think this contention without merit. Engineer, Frank Burnside, testified positively that the “map is specifically and generally correct.” The Circuit Court, therefore, had before it substantial evidence upon which to base its findings, that, the plat or map in evidence was sufficient.
Appellants next contend that “the Circuit Court could not properly enter a judgment .incorporating the territory in the city, but could only reverse the County Court and remand to that Court for compliance with the provisions of the above statutes.”
The effect of our holding in the case of Batesville v. Ball, 100 Ark. 496, 140 S. W. 712, is against this conten- tiom We tliere said: “Wlieu a cause is appealed from the county court to the circuit court, the latter court obtains jurisdiction over the matter to the same extent as if it had been originally brought in that court, and it must proceed to fully try and determine the cause. It does not pass upon the question as to whether or not the county court has committed error in any of its rulings, either of law or of fact, but it must try the cause upon its-merits, both of law and of fact, just as if it had been originally brought in the circuit court. It does not either affirm or reverse the findings or judgment of the county court, but tries the cause alone upon its merits, and determines the same by the exercise of its own discretion and judgment. It must come to a final determination of the matter, and enter a final judgment thereon. After such final judgment has been made by it, it can then order the same back to the county court with directions to,enter such judgment as it has made; but it has no authority to remand the cause with power to the county court to proceed further therein as it may determine. ’ ’
Here, the Circuit Court made a final determination of the question of annexation and entered a final judgment thereon as it was required to do. If it has not already done so, the trial court should order its final judgment “back to the County Court with directions to enter such judgment, etc. ’ ’
As pointed out in the above case, the Circuit Court has no authority to remand the cause to the County Court for any further proceedings that that court might determine.
Finally, appellants contend that the petition for annexation was not filed by the City in the County Court within a reasonable time after the election. We cannot agree. It appears that the City waited approximately four months and twelve days before filing its petition in the County Court.
Appellants point to no statute in this State on annexation specifying the time within which a municipality must file its annexation petition after the question has received a favorable vote from the electorate. In such circumstances, tlie general rule that where no statute of limitation is provided, the law contemplates that the petition (in question here) must be filed within á reasonable time, applies. Appellants have failed to show any such changed conditions since the election as would materially affect their rights as Remonstrants. We hold that the delay pointed out here, in the circumstances, was not-unreasonable, that the petition was filed by the City and the County Court within a reasonable time and that appellants have failed to show any abuse of the trial court’s discretion in so holding.
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George Rose Smith, J.
This is an original action in which the plaintiffs question the sufficiency of a petition for an initiated act to be popularly known as “A Statewide Prohibition Act. ’ ’ When the petition was filed with the defendant Hall, Secretary of State, he caused it to be examined and found that it contains 53,224 valid signatures. He accordingly declared the petition to be sufficient, as only 19,945 signatures are necessary to equal the required eight per cent of the total vote for governor in the most recent general election. Ark. Const., Amendment 7. The plaintiffs then brought this action to enjoin Hall from certifying the ballot title to the various county election officials. The Temperance League of Arkansas had sponsored the proposed act and intervened to defend the validity of its petition.
The petition is composed of about 1,700 separate sheets, each verified by the affidavit of the canvasser who circulated it. The plaintiffs assert in their complaint that 1,290 of these sheets must be rejected in their entirety, because on each one there is at least one instance of a husband’s having signed his wife’s name in addition to his own, or vice versa. It is admitted by all the parties that if these 1,290 sheets are entirely void the rest of the petition does not contain the necessary 19,945 names. After filing the suit the plaintiffs began taking testimony to prove their assertions, but it soon became apparent that in hundreds of instances a person had in fact signed the name of his spouse as well as his own. The defendant and the intervener thereupon ended the taking of this testimony by stipulating that each of the 1,290 sheets does contain a signature not written by the petitioner himself, as alleged in the complaint. It is hardly necessary to say that we scrutinize a stipulation of this kind with great care. All those who signed the petition have a direct interest in the case, and the handful of parties to the action cannot be permitted to nullify the petition by an imprudent stipulation. Nevertheless an examination of this petition discloses that both names of a great many married couples are in the same handwriting, and we see no reason not to approve a stipulation that was evidently made in good faith to eliminate extensive and laborious proof.
The plaintiffs, relying mainly on some language in Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547, contend that all the names on these 1,290 sheets must be disregarded, since the canvassers necessarily made false statements in their affidavits verifying the genuineness of the signatures. On the other hand the defendant and the intervener rely upon a later case, also styled Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884, to support their contention that it is not enough for the plaintiffs to show that a single signature on a sheet is not genuine; the plaintiffs must go farther and prove that the canvasser has been guilty of conscious and deliberate fraud.
It is perhaps possible to reconcile the holdings in the two Sturdy cases on the basis of their particular facts, but in a matter of undoubted public interest we think it desirable to eliminate any uncertainty that these opinions may have created. We are unanimously of the opinion that the later Sturdy case states the law correctly ; that is, one who attacks a petition cannot destroy the verity of the circulator’s affidavit merely by proving that at least one signature is not genuine. The plaintiff must also adduce proof to show that the falsity of the canvasser’s affidavit was conscious rather than inadvertent.
Here the plaintiffs have been content merely to show that in 1,290 instances one person signed the name of his spouse. We need not decide whether such a showing is alone sufficient to make a prima facie case of fraud, for the intervener has gone forward with the evidence by taking the depositions of 962 of the canvassers whose sheets are questioned. Their testimony completely negatives the suggestion that they were motivated by improper purposes in making affidavits that are not strictly true. In many instances both the husband and wife were present and one asked the other to sign for the two. In other cases the challenged signature had already been written before the canvasser realized what was being done. There is hardly an indication of actual fraud in the great volume of testimony that has been submitted. Under our earlier decisions we must of course reject the 1,290 illegal signatures, as well as the entire sheet in those rare instances when a finding of intentional wrongdoing is justified, but even then the number of valid signatures is still far more than twice what is needed.
Another objection to the petition is based on the intervener’s failure to comply with the statutory requirement that there be filed with the Secretary of State a certified poll tax list for each county in which signatures have been obtained. Ark. Stats. 1947, § 2-206. This requirement is not contained in Amendment 7, but the Amendment does state that laws may be passed to facilitate its operation, even though the Amendment is declared to be self-executing. We think the requirement in question is valid, since the filing of the poll books is not a burdensome condition and manifestly aids the Secretary of State and this court in determining whether enough qualified electors have signed the petition. Hence the Secretary of State should have required the poll books to be filed. Instead, he accepted the petition and without the books certified that the petition was sufficient. If the plaintiffs were now attacking the petition on the ground that an examination of the poll books discloses that not enough qualified electors have signed the petition, then the absence of the books might be a reason for rejecting the petition. But that is not the basis for attack in this case. The case was not tried on the theory that anyone who signed this petition is not a qualified elector. The purpose of the statute is to facilitate the exercise of the power of initiative, and for that reason alone the act is constitutional. It would altogether distort the intention of the Legislature to hold that the people should not be allowed to vote on a measure merely because the books were not filed in an instance where their presence or absence is wholly immaterial.
The plaintiffs make other attacks on the petition, bnt they may be answered in a few words. The Constitution directs that the petition be filed “not less than four months” before the election. This election is to be held on November 7, and it is argued that the filing of the petition on July 7 was one day too late. That result can be reached only by excluding both the first and the last.day, and would involve saying that January 1 is less than a month before February 1. The law does not care about fractions of a day, however, and we have consistently held that only one of the two days need be excluded. State v. Hunter, 134 Ark. 443, 204 S. W. 308, and see Ark. Stats., 27-130. It is also urged that each canvasser’s affidavit should have set out the names of those who signed the sheet, but in Terral v. Ark. Power & Light Co., 137 Ark. 523, 210 S. W. 139, we held this to be unnecessary.
The act’s popular name, A Statewide Prohibition Act, is said to be misleading because the measure would permit every person to possess not more than one quart of intoxicating liquor. The Constitution makes no reference to a popular name; this is merely a legislative device (Ark. Stats., § 2-208) that is evidently useful in making it easy for voters to discuss a measure before the election. It seems too clear for argument that the popular name need not have the same detailed information as is required for the formal ballot title, else there would be no difference between the two. This act does prohibit the manufacture or sale of intoxicating liquor, and that is prohibition as the term is generally understood. There are of course exceptions to complete prohibition, as the use of alcoholic beverages for medicinal or religious purposes, but the popular name certainly cannot include them all.
Finally, it is argued that the ballot title was not filed with the State Board of Election Commissioners. The title appears on each of the 1,700 sheets, and they were filed with the Secretary of State, who is a member of the board in question. Under our holding in Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331, this is a substantial compliance with the Constitution.
The petition for an injunction is denied. | [
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Kirby, J.
This appeal challenges the validity of an ordinance of the city of Siloam Springs requiring all sellers of bread not resident within the city, and transporting same by vehicle of any Irind about the streets to pay an inspection fee of $2.
Appellant was convicted in the municipal court for violation of the ordinance, and, upon appeal to the circuit court upon a hearing upon the agreed statement of facts with a copy of the ordinance attached, was again convicted and from such judgment prosecutes this appeal.
Appellant is a salesman of the Shipley Baking Company engaged in the manufacture and making of bread, cakes and pies in the city of Fayetteville, Washington County, under the supervision and rules of the State Board of Health, County Health Officer of Washington County and the Board, of Health of the city of Fayetteville. It transports the products from its plant at Fayetteville among other places in the State to the city of Siloam Springs, Arkansas, for sale there. Its driver, appellant, takes the bread and pastries delivered to him at the bakery at Fayetteville in a closed vehicle or truck to the city of Siloam Springs, and sells and delivers wholesale to its various customers, merchants, restaurants and grocery stores for resale to the ultimate consumers. Pursuing his usual custom on the 10th day of December, 1929, he made sales of goods to merchants and restaurants receiving pay therefor without paying the inspection fee required by the city ordinance or receiving a certificate of inspection as provided in said ordinance 326 of the city of Siloam Springs, approved September 26, 1929. He was convicted in the municipal court and appealed to the circuit court.
The ordinance introduced in evidence No. 326, according to its title provides for the inspection of “ * * * bread, pastries, cakes, etc. * * *” and section 1, defines the term “vehicle” to mean wagon, automobile, auto truck and any other vehicle and the words “food or foods” to mean “* * * bread, pastries, cakes, etc. • • Section 2 makes it unlawful for any person or corpora tion not having an established place of 'business in the city, without complying with the provisions of the ordinance, to sell or offer for sale in the city of Siloam Springs for use as foods either directly to the consumer or to the retailer and wholesaler for resale any bread, pastries, cakes,- “when the same are brought into the city of Siloam Springs and transported upon the streets of said city in a wagon, automobile or other vehicle.” Section 3 requires the person bringing into the city and selling over the streets the specified goods or fruits to submit same for inspection to the chairman of the board of health of the city or some member of the board or to some officer designated for the purpose “the vehicle in which said foods are being transported and the foods therein,” inspection being made at the city hall, and, if the food is found not suitable or in proper condition to be used as food, it is so certified, and, if he finds no objection upon inspection to the condition of the food and the vehicle, he shall so certify and deliver a certificate in writing to the person in charge of the foods who may sell the same at will. If the officer certifies the vehicle to be in an unfit condition and the foods unfit for human consumption, it is made unlawful to offer same for sale or sell same either directly or indirectly.
Section 4 of the ordinance requires persons bringing food regularly into the city shall submit the vehicle and foods transported for inspection at least once a week, prescribing a charge of $2 for each certificate of inspection to be collected by the inspector and paid into the treasury of the city to the credit of food inspection fund out of which appropriations are made to pay the expenses of the inspector. Sections 5, 6 and 7 make it a misdemeanor to offer for sale any food condemned on inspection, to fail or refuse to submit food or vehicle for inspection as required by the ordinance, and to sell any food without having the same and the vehicle in which same is contained or transported inspected as provided with a fine for offenses not to exceed $25.
Appellant insists tliat the ordinance is void, being beyond the authority of the city to make, that it is discriminatory and in effect but an unauthorized revenue measure.
Under act 96 of 1913, §§ 5125-5162, C. & M. Digest, a State Board of Health is created and given general supervision and control of all matters pertaining to the health of the citizens of the State. Power is given said State Board to make all necessary and reasonable rules and regulations of a general nature for the protection.of the public health “and for the general amelioration off the sanitary and hygenic condition of the State.” Such regulations are required to be printed and promulgated and distributed. The board is required to equip and maintain a laboratory for making analysis of foods and drugs for the purpose of enforcing the pure food and drug act. The expenses legally incurred by the board, for protecting the people outside of the cities and towns are to be paid for by the counties where incurred, and out of the treasury oif the cities and towns in which work is done.
Any one violating the law or any of the orders, rules or regulations made in pursuance thereof is guilty of a misdemeanor punishable by a fine of not less than $10 or more than $100 or by imprisonment, etc. Section 5153, C. & M. Digest, provides for appointment and the qualifications and duties of the county health officers, salaries to be fixed by the county judge and payable out of the county treasury. Section 5154, C. & M. Digest, provides the method of establishing boards of health in cities and towns and the qualifications of members. If a city health officer is not named by the local authorities in the act, then the State Board of Health has the power to appoint one. Section 5159, C. & M. Digest, defines the duties of the city health officer. Section 5160 prescribes the method of compensation. The State Board of Health has prescribed and promulgated rules and regulations, (sections 194-208, rules and regulations of the State Board of Health of Arkansas, promulgated November, 1928, regulating the operation of bakeries). Sections 194 and 208 read as follows: ‘ ‘ Every place used as a bakery shall be kept in a clean and sanitary condition as to its floors, sidewalks,, ceilings, woodwork, fixtures, furniture, tools, machinery and utensils.”
“All bread offered or intended for sale shall be suitably wrapped, each loaf separately, in paraffin or other clean paper, in such a manner as to completely protect the bread from dust, dirt, flies or any vermin, said wrapping to 'be done at the shop' or plant where said product is made.” ,
The city of Siloam Springs is not given power to require the inspection of bakeries nor the regulation of the sale of their products, all such power being conferred upon the State Board of Health under said act 96 of 1913. It is conceded that the products of the plant or bakery sold or offered for sale by appellant “are produced and manufactured under the supervision and rules of the State Board of Health, the county health officer of Washington County and the Board of Health of the city of Fayetteville,” both as to the condition of the plant and the method of wrapping and sealing each separate item of its products and the rules and regulations of the State, and city boards in the manufacturing and handling of its products are at all times fully complied with. Before the beginning of this prosecution the city unsuccessfully attempted to penalize the defendant by collecting from him or his company a tax of the nature of a license or occupation tax. The ordinance complained of only attempts to levy a charge for inspection of breads, cakes and pies transported over the streets of the city for sale in vehicles, wagons or automobiles, and does not prevent the shipping of such products by train, nor does it require an inspection thereof. The products were carried in a closed truck or automobile from the place of their manufacture under the rules and supervision of the State and city boards of health in the city of the location of the manufacturing plant, wrapped and sealed as required by the regulations of such boards. There could certainly be no further protection to the health of the inhabitants of the city of Siloam Springs, where the bread and cakes were delivered to the purchasers for resale to the public, by another inspection by the city under the provisions of this ordinance, and if such were the case there could be no reason for discrimination against the seller of these products so transported, requiring this second inspection thereof, which is not required of the same kind of products transported and delivered by railroad carriers. Neither is there any good reason for requiring a weekly inspection of the oar or vehicle and the products transported which are allowed to be sold and delivered daily. Such provision clearly indicates that it is an arbitrary one, and that necessity does not really exist for the inspection prescribed, .since it is required of only one delivery out of seven, and brands it rather as an unrecognized method for raising revenue since the inspection charges would amount to $104 per year at the very least, and appears to be imposed rather as a discrimination against merchants and bakers not living in the city.
Power has been given to the State Board of Health for making all necessary rules and regulations for the protection of the peoples of the counties and cities, the regulations have been made by such boards and appellant’s employer having manufactured and sealed its products under the inspection and in accordance with the rules and regulations prescribed by the State and city •boards of health in the city of the manufacture of its products could not be required to pay for the inspection for the sale of its products so manufactured in other towns and cities of the State, in the absence of a showing of the necessity therefor and power in such city to prescribe such, regulation and require, such inspection. All necessary power having- been given to the State Board of Health for the regulation and operation of bakeries in the manufacture and sealing of their products for sale and delivery, any power upon the part of cities and towns of the 'State to regulate the sale of such products in their limits upon an inspection made and charged for will not be implied as incident to the power granted, and, since none has been expressly granted, none can be held to exist. The city was without power to make such ordinance and charge, and it is void and of no effect.
The judgment is accordingly reversed, and the cause dismissed. | [
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Per Curiam.
Grace Prager, widow, and -Irene Prager Bourdier and John D. Prager, children and sole heirs at law of Charles J. A. Prager, deceased, filed in this court a petition for certiorari to quash a judgment of the Garland Chancery Court reviving a mortgage foreclosure proceeding by Afton Williams Wootton et al., against Charles J. A. Prager; and a transcript of the record of the proceedings in the chancery court is tendered with the petition.
It appears from the face of the record tendered that Afton Williams Wootton and E. H. Wootton, trustee, brought suit in the Garland Chancery Court against Charles J. A. Prager and Grace Prager, his wife, to foreclose a mortgage on real estate situated in Hot Springs, Garland County, Arkansas. The suit was filed on February 4, 1928, and summons was duly served on the defendants on February 6,1928. The record further shows that on February 6,1929, which was an adjourned day of the December, 1928, term of the Garland Chancery Court there was the following order in the case:
‘ ‘ On this day comes the defendants by their solicitor, O. H. Sumpter, Esquire, and suggests the death of the defendant, Charles J. A. Prager.”
•On January 28, 1930, the attorneys for the plaintiff filed in said cause in said court a motion to revive the suit in the name of Grace Prager, Irene Prager Bourdier, and J ames D. Prager, widow and heirs at law of Charles J. A. Prager, deceased; and for grounds state that Charles J. A. Prager died on January 26, 1929, and that no person has qualified as his personal representative, and that the action concerns only the right of the heirs of said Charles J. A. Prager to the property described in the complaint. The records of the chancery court show the filing of the motion to revive the cause in the names of Grace Prager, Irene Prager Bourdier and James D. Prager, widow and heirs of Charles J. A. Prager, deceased. On the 11th day of February, 1930, Irene Prager Bourdier and James D. Prager filed separate responses in which it was claimed that the right to revive the action had expired by limitation. On the 11th day of March, 1930, which was an adjourned day of the December term of 1929 of said chancery court, it was adjudged and decreed that the suit be revived in the names of the defendants, Grace Prager, Irene Prager Bourdier, and James D. Prager, widow and heirs of Charles J. A. Prager, deceased.
The chancellor proceeded upon the theory that the revivor must be had under § 1062 of the Digest, and that the suit could not be revived against the heirs of the defendant until one year had elapsed after the death of the defendant, no person having qualified as his personal representative. In this construction of the statute, the chancellor was wrong, for no part of the action survived against the personal representative of the defendant. The rule is that the heirs or devisees of a mortgagor, who dies the owner of the fee, are necessary parties in a suit to foreclose the mortgage. Hence, in a suit to foreclose, the heirs at law of the deceased mortgagor should be made defendants, or some excuse for not making them defendants, should be shown in the complaint ; as that the mortgagor conveyed his estate in the mortgaged lands before his death, or that it was sold under execution, or that after his death his interest in the lands was sold under an order of the probate court, etc. Simms v. Richardson & May, 32 Ark. 297 ; and Pillow v. Sentelle & Company) 39 Ark. 61.
Of course, the personal representative of a deceased mortgagor is a proper party in a mortgage foreclosure suit of real estate, for the lands of a decedent are assets in the hands of his personal representative for the payment of his debts, if needed for that purpose, and he would be a proper party in order to work out the rights of the creditors of the decedent. The heirs, however, are indispensable parties for the reason that, upon the death of the ancestor, the title vests in the heirs, and they can only be divested of their equity of redemption in the mortgage property in a proceeding to which they are made parties.
This view was recognized by the court in State Fair Association v. Terry, 74 Ark. 149, 63 S. W. 65, where it was said: “Upon the death of a party, the title to his real estate passes at once to his heirs (subject, of course, to the rights of creditors to be worked out through the administrator) ; and the administrator cannot represent them in court. They are necessary parties where the title to real estate is involved, and the court should, of its own motion, refuse to proceed until they are brought in. ’ ’
The sections of our statute on the revival of actions is a part of our Civil Code, and are to be construed together. State Fair Assn. v. Townsend, 69 Ark. 215, 63 S. W. 65.
In Putman v. Putman, 4 Pick. (Mass.) it was held that where a bill in equity to redeem mortgaged premises is abated by the death of the complainant, his heirs may revive the suit.
In Sutherland v. Rose, 47 Barb. (N. Y.) 144, it was held that on the death of a mortgagor in an action by him for the cancellation and satisfaction of the mortgage, the heirs, and not the personal representative, are the proper parties to continue the action, as the heirs alone have an interest in the satisfaction of the mortgage and in the right to redeem.
In the application of these principles of law, we are of the opinion that § 1063 of the Digest applies wherein it is provided that “upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees.”
In Ex parte Gilbert, 93 Ark. 307, 124 S. W. 762, it was held that when the defendant in an action for unlawful detainer dies, the action should be revived against his heirs and not against a special administrator; and, until such revivor, there can be no adjudication concerning the land.
In Mayers v. Lark, 113 Ark. 207, 168 S. W. 1093, Ann. Cas. 1915C, 1094, where the title to land was involved, it was held that an order of revivor in the name of a special administrator was improper and that the revivor should be in the name of the heirs. See also Temple v. Gulp 106 Ark. 22, 150 S. W. 867 ; Dupree v. Smith, 150 Ark. 80, 233 S. W. 812 ; Thompson v. Lee, 174 Ark. 865, 206 S. W. 706 ; Blake v. Thompson, 176 Ark. 840, 4 S. W. (2d) 514 ; and Hill v. Brittain, 178 Ark. 784, 12 S. W. (2d) 869.
In the latter case, it was held that on defendant’s death pending a suit to recover on certain notes and to foreclose a mortgage of land securing them, the action for the indebtedness survived against his administrator, and the action to subject the land to the payment of the indebtedness survived against his heirs.
In the case at bar, no revivor was sought of the action for the indebtedness, and a revivor was duly sought on the foreclosure of the mortgage against the land. The court has uniformly held that the statute is mandatory in its terms, and the revivor, to be effective, must be ap plied for within the time prescribed by statute. Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833 ; Cole v. Hall, 85 Ark. 144, 107 S. W. 175 ; Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491 ; and Bank of Des Arc v. Moody, 110 Ark. 39, 161 S. W. 134.
Under § 1065 of the Digest, an order to revive an action against the representatives or successor of a defendant should not be made without the consent of such representatives or successor, unless in one year from the time it could have been made, since the power to revive without consent ceases at the time limited by this statute; and, since no revivor was sought on the action on the notes, and since the revivor was sought only to subject the land to the payment of the indebtedness, it must have been made within the time it could have first been made.
It is true that in Hill v. Brittain, supra, the court said that the mortgagee lost his right to a lien under the mortgage by failing to revive the suit to foreclose the mortgage against the heirs of the deceased mortgagor within one year from the death of the mortgager; but it was evidently meant by the language used that the right to revive accrued at the death of the mortgag'or, and that the revivor must be had within one year from the time it could have been first made by the court. This view is in accord with the language used in § 1065, which was cited by the judge who wrote the opinion. This is also in accord with the rule announced in Dupree v. Smith, 150 Ark. 80, 233 S. W. 812, in which the opinion was written • by the same judge. In that case the court held that, in an action involving the title to land, the cause should be revived after the death of one of the litigants in the name of his heirs. In that case the court also held that the provisions of § 1065 were mandatory, and that this section was controlling. In construing this section, the court said that the cause could have been revived against the heirs upon proper notice the first day court was in session after the death of M. M. H. Dupree, and the cause could not have been revived against them without their consent after the expiration of one year from the time the order of revivor might have first been 'made.
That case was an action of ejectment, and the court in the course of the opinion further said: “The right to revive against the administrator was contingent upon the right to revive against the heirs, for the reason that the cause of action involved the title to real estate, and the right to recover rents against the estate of M. M. H. Dupree, deceased, was dependent upon the title of the real estate being adjudged to appellee (plaintiff), which could not be done without the necessary parties before the court. The causes of action were not severable so that appellee might revive and prosecute his suit for rents against the administrator of the estate of M. M. H. Dupree. The consent of the administrator to a revivor availed nothing.” Plence it was held that the court erred in overruling the motion of the heirs of M. M. H. Dupree to dismiss the proceedings.
In Thompson v. Lee, 174 Ark. 868, 296 S. W. 706, it was held that the heirs of a deceased defendant are necessary parties, after his death, when the action affects the title to or for the recovery of real property, and that the cause could not be revived against them after the expiration of one year from the time the order of revival might first have been made.
Again, in Blake v. Thompson, 176 Ark. 841, 4 S. W. (2d) 574, it was held that, where a suit to cancel a trustee’s deed and for an accounting of rents and profits was improperly revived against the executor of the grantee on the latter’s death in 1922, and the heirs were not made parties until 1927, under § 1063 and 1065 of the Digest, the cause of action was barred.
Our cases hold that the order of revivor must be made by the court, and the court may act upon the suggestion of the death of the defendant by his counsel as was done in this ease, or upon motion of the plaintiff and proof of death of the defendant. This brings us to a consideration of whether the time fixed by statute for revivor against the heirs of the defendant had expired.
This being an application for a writ of certiorari, tbe order reviving the suit against the heirs of the original defendant as defendants cannot be quashed unless it is void upon the face of the record. The reason is that the record imports absolute verity, and in certiorari the record alone is the subject of consideration, and so far as it extends, is conclusive. Hilger v. J. R. Watkins Medical Co., 139 Ark. 400, 214 S. W. 49 ; and Martin v. Hargrove, 149 Ark. 383, 232 S. W. 596.
The record shows that the defendant, Charles J. A. Prager, died January 26, 1929. On February 6, 1929, counsel for the defendant filed in open court a suggestion of the death of the defendant, Charles J. A. Prager, and this was entered of record. A motion of the plaintiff to revive the cause was filed on January 28, 1930, and an order of revivor against the heirs of the original defendant was entered of record on the same day. The record does not show that the plaintiff knew of the death of the defendant, Charles J. A. Prager, before, a suggestion of his death was entered upon the records of the court on February 6, 1929. A motion to revive against the heirs of said defendant was made and entered of record on 'January 28, 1930, which was within one year after the record shows that his death was suggested, which, as disclosed by the record, was as soon as an order of revivor could have been made against the heirs of said defendant.
This was the construction placed upon the statute by the court of appeals of the Indian Territory in Bell v. Eddy, 2 Ind. T. 312, 51 S. W. 959. In that case the court said that, where the record shows that the plaintiff had failed to revive his action against the representative or successor of the original defendants within one year after the date of their deaths were suggested of record, it was the duty of the court to dismiss the complaint on motion of the substituted defendants. In this connection, we call attention to the decision of State Fair Association v. Townsend, 69 Ark. 216, 63 S. W. 65, where it was held that the word “representatives,”' as used in the statute, was intended to include both the heirs and administrator or executor of a plaintiff or defendant who has died pending the action. In that case, which was a suit by the mortgagor to redeem from a mortgage, the mortgagee died during the pendency of the action, and the suit was properly revived against both the administrator and the heirs because, if the redemption was had, the administrator would take the money and account for it in due course of administration. Hence the revivor was had under § 1062 because a part of the action survived against the personal representative of the mortgagee, who had died during the pendency of the action to redeem. In that case the court said that the action cannot be revived against either the heirs or personal representatives unless within one year from the time it could have been first made.
The case is different when the mortgagor'dies during the pendency of a suit to f oreclose. His heirs immediately succeed to his .interest in the lands, and the revivor must be had under § 1063, for the action concerns only the rights of the defendant to the land. Therefore the petition for a writ of certiorari must be denied. | [
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Kirby, J.,
(after stating the facts). No error is alleged to have been committed by the trial court in the {first phase of the case, and the verdict of the jury is conclusive df that issue.
There was much testimony introduced, but it was shown that the potatoes delivered to appellant were “certified” indicating there had been four inspections of them before delivery, and others testified that the potatoes were examined upon being unloaded from the car and appeared to be in good condition, there being no evidence of their having become overheated or injured from cold. 'The appellant, himself, admitted that the potatoes were of good and uniform size and appeared to be in good condition when received by him.
The testimony upon the part of appellees by farmers of long experience conduces to show that the season of 19¡27 was so unusually wet at planting time as to cause most of the potatoes planted in appellant’s vicinity to rot in the ground and bring about almost a total failure of the potato crop. The weather bureau records were introduced in addition to the other testimony showing the unusual and excessive rainfall in March and April of that year. Appellant claimed to have commenced planting the potatoes on the 17th day of March, and the report showed it had rained on 7 preceding days of that month a total of 5.79 inches and 2.14 inches fell on the l'2th; and that the rainfall of 12 days in April from the 1st to the 16th was a total of 10.80 inches.
Some of the testimony of the witnesses, the operators of farms, as to the cause of the failure of the potatoes to sprout was objected to, but after a careful examination. of the record we are convinced that no error was committed in the introduction thereof, the witnesses all. shotwing themselves to be experienced in farming and the raising of potatoes and acquainted with the conditions surrounding the planting of the crop in April, 1927. The verdict is amply supported by the evidence, a decided preponderance of it in our opinion justifying the jury’s finding, while the burden was upon appellant to establish his defense.
We find no error in the record, and the judgment is . affirmed. | [
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Conley Byrd, Justice.
This appeal arises out of a property division made in a divorce decree between appel lant Glenn D. McEndree and appellee Flora B. McEn-dree. For reversal appellant contends:
“I. Appellee did not proye that she was a partner in this business and never made any showing that any of the property was in her name and the court erred in awarding her more than a dower interest in and to the property.
II. Monies furnished by Charles S. McEndree Brother of Glenn D. McEndree found their way into the one-half of the net proceeds of the estate awarded to Mrs. McEndree and the court disallowed any credit for sums owed by Glenn D. McEndree to Charles S. Mc-Endree and those sums should have been deducted in determining her interest, if any.
III. The court erred in making a distribution of the assets without receiving from the receiver a full accounting on which to base such distribution.”
I. We find no merit in the first contention. Appellee testified that they acquired the property in question and lived in a house trailer until they constructed their house. When they moved into the house they rented the house trailer and accumulated nine or ten more trailers which they rented. She stated that she helped in the operation of the trailer park. Appellant at first admitted that he and appellee owned the Tanglewood Mobile Manor Trailer Park and that after they moved into their house they started acquiring the other trailers. However, he testified that the other trailers were acquired from the accumulated rentals from a trailer owned by his brother. As we view the testimony, the issue before the trial court was one of credibility, and we cannot say that the chancellor’s findings were against a preponderance of the evidence.
II. We cannot say that the trial court, in dividing the property, erred in disallowing credit for monies allegedly furnished by appellant’s brother. In the first place it is difficult to follow appellant’s testimony to determine how much or what part of the brother’s money found its way into -the trailer park. In the next place appellee denied any knowledge of any money belonging to the brother going into the business. Furthermore, the proof shows that between the time of the filing of the complaint for divorce and the service of the summons appellant removed certain funds from the parties’ savings accounts and mortgaged the trailers for $10,000 and that those funds have not been accounted for by appellant. When appellant’s testimony is considered in light of his conduct, we cannot say that the chancellor’s finding that the debt to appellant’s brother was the sole and separate obligation of appellant is contrary to a preponderance of the evidence.
III. We find no merit in the contention that the trial court erred in making a distribution of the assets without a full accounting from the receiver. We do not find an abstract of the order of distribution. Furthermore, the receiver is not a party to the appeal.
Appellee’s attorneys are awarded an additional fee of $1,000 for their services on appeal.
Affirmed.
Holt, J., not participating. | [
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Conley Byrd, Justice.
Prior to May 19, 1969, Linnie B. Hill, Willie Gene Laster, Emmett Tucker and Allie B. Wilson were tenants in common of the NWM NWM Sec. 26, T. 85, R 5 W in Lincoln County. On that date Allie B. Wilson executed a quitclaim deed to Emmett Tucker. The deed was properly recorded. Emmett Tucker started trying to sell the property and ran some advertisements in the local paper. Sometime during 1970, Tucker entered into an oral contract with Albert Matthews to sell him the enure 40 acres. June 4, 1970, appellants Claud H. Holthoff and Evelyn Holthoff acquired the undivided one-fourth interest of Linnie B. Hill. On January 20, 1971, appellants acquired a quitclaim deed from Allie B. Wilson paying therefor a consideration of $2,000. In August 1971, the appellants filed a partition suit making appellees Tucker and Willie Gene Laster parties. Thereafter, appellee Matthews intervened. In the trial court appellees denied appellants’ claimed ownership of the Allie B. Wilson interest citing the prior 1969 deed to Tucker. Appellants countered with the contention that the 1969 deed was executed fraudulently and without consideration. The chancellor in a written opinion determined that appellants were not the owners of the Allie B. Wilson interest. For reversal it is contended:
“POINT I. The court incorrectly placed the burden of persuasion as to fraud in the procurement and as to the existence of a constructive trust upon appellants when a confidential relationship was shown to exist.
POINT II. The court erred in holding that the law in Arkansas does not give a third party any right to seek cancellation of a deed valid on its face.”
Allie B. Wilson testified that at the time of the conveyance to her brother Emmett J. Tucker she was in debt to him for some liens he had satisfied on the property. After some equivocation as to her brother’s conduct (■i.e. whether he held it for investment purposes), Allie Wilson stated that she had never complained about the way her brother had handled this transaction and that she was not complaining now.
We do not reach appellants’ contention that they, as third parties, have standing to seek cancellation of the deed from Wilson to Tucker, because even if we should assume that they have the requisite standing still they cannot prevail. The deed was of record and according to Ark. Stat. Ann. § 16-114 was constructive notice of the conveyance. Furthermore, under the allegations here made the deed was not void but at most would only be voidable. Under these circumstances the appellants’ claim to the title as against Tucker could never exceed those of Allie B. Wilson. The testimony of Allie B. Wilson was certainly sufficient to show by a preponderance that the deed was executed to Tucker for a valid consideration and that she was not now repudiating its validity. Under these circumstances Allie B. Wilson could not set aside the conveyance, Heskett & Hale v. Bryant, 247 Ark. 790, 447 S.W. 2d 849 (1969). The appellants’ claim being no greater than Wilson’s is subject to the same limitation.
Affirmed. | [
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Carleton Harris, Chief Justice.
Gregory Allen Spencer was convicted in the Pulaski County Circuit Court of the crime of first degree rape, the jury fixing his punishment at life imprisonment in the Arkansas Department of Correction, and from the judgment entered in accordance with that verdict, appellant brings this appeal. For reversal, two points are asserted; first, that the trial court erred in refusing to give appellant’s Requested Instruction No. 2, and second, that the evidence was insufficient to support the verdict. For convenience, the second point will be first discussed.
Carolyn Jean May, 17 years of age, testified that she left her home at 1515 Cumberland in Little Rock about 5:00 A.M. to walk to her mother’s home in Highland Court several miles away. At 14th and High Streets, appellant and a friend of his were engaged in conversation and she talked with them. Appellant’s friend walked across to a liquor store, purportedly to buy cigarettes, and the witness stated that subsequently Spencer placed a knife to her throat and told her that if she did as he said, he wouldn’t hurt her in any 'way. Mrs. May stated she was -scared, shaking, and begging him to take the knife away from her throat, and that he told her to put her arms around him and do as he said. They then went to his apartment where she stated that she was raped. When interrogated as Jo whether she tried to escape, she said that she looked out of the window^, saw that the roof was too high, and slanted, and that while Spencer did not have the knife on her at the time, she was fearful that he would draw it again. Spencer was living with another girl, Angie Lee Roberts; after the alleged rape, Mrs. May told appellant that she had to go to the bathroom, and in the bathroom she asked Angie to help her get away, but the latter refused, stating that she was afraid and “they would all come up missing”. At that time Spencer came to the door and inquired what was taking so long. Spencer then went to the store to get cigarettes and returned to the Spencer apartment where appellant, Mrs. May, Angie Lee Roberts, and Larry Metz (the person' who had been with Spencer on the street) played cards. The witness stated that they all then went to a store to buy cold drinks, and that she tried to “motion” someone in the store in order to convey her predicament, but could not get .anybody’s attention. After returning from the store, they went across the street to the apartment of Metz. There, Mrs. May, according to her testimony, still looking for an opportunity to escape, stated that her feet were cold and she wanted her shoes (which were still at the Spencer apartment). Appellant, at first, was unwilling to let her go, and kept whispering to Angie. Finally, he agreed and the two girls then started to the Spencer apartment but before reaching it, the witness talked Angie into letting her go.
There was corroboration of some of this evidence by Angie Lee Roberts. She said there was a window in the bathroom, but it was too small to go through, and that when she had first arrived at the apartment, Larry had told her not to go upstairs. She said that Spencer told her not to let Mrs. May go; that the prosecutrix had begged, but that she (Angie) was afraid of Spencer. She • said she had told Mrs. May not to say anything when they went into the store and that she heard Spencer tell Larry Metz, “Watch her.” She testified that Spencer told her “not to let her [Mrs. May] go at all ### to hold her to keep her from going.” She was then asked what happened after she let the prosecutrix leave, and she stated that Spencer was very angry and that the two of them circled several blocks looking for her; that on their return to the apartment, Spencer “tore into me”, striking her for permitting Mrs. May to leave.
Spencer admitted intercourse, but said it was voluntary on the part of Mrs. May. Appellant, of course, argues that there was no rape, Mrs. May consenting, and it is vigorously contended that she had opportunities to mention her predicament to others (at the store and on the street) and that this establishes that no rape was committed. We do not agree. The matters mentioned, of course, were facts to be argued to the jury, -including the failure to make outcry, but the jury was the sole judge of the credibility of the witnesses and it was within its province to believe or disbelieve the witnesses, and to determine whether Mrs. May was acting under-duress and fear during the period of time that she was with the appellant and the others. In other words, there is no evidence in the case that establishes, as a matter of law, that no rape was committed. If the jury believed Mrs. May, the testimony was sufficient for conviction. We have said many times that corroboration is not necessary in a rape case. Harrison v. State, 222 Ark. 773, 262 S.W.2d 907, and cases cited therein. For that matter, as previously pointed out, there was, to a degree, corroboration of the testimony of the witness by Angie Roberts.
Appellant offered the following instruction:
“You are instructed that force is an essential element in any crime of Rape and- it must be committed forcibly and against the will of the female. It is not the persistence with which the party accused intended to prosecute his alleged illegal design, but the force actually used that is the element in the crime of Rape.
“Before you can find this defendant guilty of the crime of Rape, you must find that the prosecutrix was actually under the influence of such alleged force at the time the act was committed. If there is a reasonable doubt, then you must acquit the defendant.”
The court refused to give this instruction, stating that it was incorrect. We agree. The phrase, “It is not the persistence with which the party accused intended to prosecute his alleged illegal design, but the force actually used that is the element in the crime of Rape” is incorrect, for this implies that the force must take place at the moment of the criminal act. As long ago as 1878, this court, in Bradley v. State, 32 Ark. 704, said:
“It is often a matter of great difficulty in trials for rape, and of assaults with intent to commit rape, to determine whether the act complained of was done with or without force, and whether with or without the consent of the party complaining, and this arises from the peculiar character and surroundings of the offense charged.
“Force is an essential element in the crime of rape. The term is general, and in its application the quantum of force is not to be taken into consideration, provided the act be consummated against the will of the female[Our emphasis.]
Aside from that, appellant’s theory was completely covered by other instructions given by the court. For instance, appellant’s Requested Instruction No. 1, which was given, states:
“You are instructed that before you can find this defendant guilty of the crime of Rape, you must first be convinced beyond a reasonable doubt that there was in fact forcible compulsion upon the alleged victim, and that the said alleged act of sexual intercourse was without her consent.
“If you should find that there was no forcible compulsion on the part of the defendant, then you should find the defendant not guilty.”
Appellant’s Requested Instruction No. 3, given, reads as follows:
“While it is not essential that the prosecutrix make an outcry either before or after the alleged act is committed, you are instructed that the failure of the prosecutrix to make an outcry or to make it known to other persons or strangers that she has been the victim of a Rape, should be considered together with all facts and circumstances as tending to show a want pf resistance.”
Appellant’s Requested Instruction No. 4, also given, told the jury that it had a right to consider the subsequent silence of the prosecutrix as bearing on the question of whether or not she consented to the act of intercourse.
The State’s Requested Instruction No. 1 was amended after objection of appellant, and given as follows:
“The defendant in this case is accused of the crime of Rape in the First Degree. First Degree Rape is the carnal knowledge of a female forcibly and against her will. A male is guilty of rape in the first degree when he engages in sexual intercourse with a female by forcible compulsion;
“If you find beyond a reasonable doubt that the defendant in this County and State, sometime before the filing of this information, did have carnal knowledge or actually penetrated the private parts of the proseeudng witness with his private parts, and that this was done by forcible compulsion and against her will, he is guilty of First Degree Rape.
“Now with regard to the force used, it may be violence or it may be putting the woman in fear, physically or mentally. In other words, the test is— was it against the will of the party upon whom the act was committed.”
These instructions certainly covered the law relative to the offense charged and there can be no legitimate complaint that the jury was not properly instructed.
Affirmed. | [
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Frank Holt, Justice.
Appellant issued its policy insuring the deceased, William Gilkey, against loss of life, limb, or sight resulting from violent external and accidental means. His mother, the appellee, was made the beneficiary of the policy. The insured was fatally injured by a tractor he was driving on a public highway when he was thrown or fell from it. He was enroute to his home after using it for farming purposes. The policy provides a $1,000 coverage for accidental death in four instances. The only relevant section, and the one in controversy, provides coverage when death occurs:
As a result of a collision of or other accident to any automobile, taxicab, bus, truck, wagon or buggy inside of which the insured is riding or driving on a public highway ....
Both parties moved for a summary judgment based upon the pleadings, the insurance contract and a stipulation of facts. Both motions were denied and the case then proceeded to trial. Appellant presented no evidence and its motion for a directed verdict, which was overruled, is not an issue on appeal. A jury awarded the policy benefits to the appellee. Appellant first contends for reversal that the trial court erred in denying appellant’s motion for summary judgment because there existed no genuine issue as to any material fact and, therefore, appellant was entitled to judgment as a matter of law.
A sufficient answer to this contention is that the denial of a motion for a summary judgment is not reviewable on appeal when, as here, the cause then proceeds to trial on its merits. Deposit Guaranty v. River Valley, 247 Ark. 226, 444 S.W. 2d 880 (1969), and Ross v. McDaniel, 252 Ark. 253, 478 S.W. 2d 430 (1972). See also Widmer v. Fort Smith Veh. & Mach. Co., 244 Ark. 971, 429 S.W. 2d 63 (1968).
Appellant next contends that the trial court, “upon denial of appellant’s motion for summary judgment, erred in failing to determine, and to set out, the facts about which there was no genuine issue or controversy” as required by Ark. Stat. Ann. § 29-211 (d) (Repl. 1962). This statute requires the court to make an order specifying the facts that appear to be without substantial controversy and, upon trial, the specified facts shall be deemed established and the trial conducted accordingly. Appellant relies upon Young, Adm’r v. Dodson, 239 Ark. 143, 388 S.W. 2d 94 (1965). The case at bar proceeded to trial without any request for such an order or an objection by appellant as to the asserted non-compliance with the procedural requirements of the statute. Although, there was a stipulation of facts, it appears the appellant did not ask that the stipulation be presented to the jury to avoid the necessity of testimony by the appellee upon the agreed facts. In fact, it appears appellant acquiesced in the procedure and thoroughly cross-examined the witnesses. Although formal exception to the action of the court is no longer required, it is necessary to make known to the court the action desired or make objection to the court’s action and the grounds therefor. § 27-1762. A matter to which no objection is made during the trial is not reviewable on appeal. Sherman, Adm’x v. Mountaire, 243 Ark. 301, 419 S.W. 2d 619 (1967). In the circumstances, we do not perceive any prejudicial effect is demonstrated by appellant.
Appellant next asserts that the trial court “erred in failing o give appellant’s requested jury instruction No. 3 and due to such failure, the jury was not instructed on the law applicable to the situation before the court.” Appellant’s proffered instruction reads:
You are instructed that the word ‘automobile’ is defined to be taken in its ordinary and popular acceptation, which is a motor driven vehicle having four wheels, a body, sides and top, suitable and intended for the conveyance of persons.
Appellant’s instruction was based verbatim on the definition of an automobilé in Neighbors v. Life and Casualty Ins. Co. of Tenn., 182 Ark. 356, 31 S.W. 2d 418 (1930), where the policy in question provided coverage for in juries effected solely by external, violent and accidental means where the same were caused ‘‘by the collision of or by any accident to any private horse drawn vehicle or private motor driven automobile in which the insured is riding or driving.” There we said:
.... in a contract where the word ‘automobile’ is used it is to be taken in its ordinary and popular acceptation, which is a motor driven vehicle having four wheels, a body, sides and top, suitable and intended for the conveyance of persons, and does not include such a vehicle as a motorcycle.
We observe that both parties focus their arguments upon the issue as to whether a tractor is an automobile within the meaning of this policy. We realize that insurance contracts must be so interpreted as to resolve all reasonable doubts in favor of the insured. First Pyramid Life Ins. Co. v. Thornton, 250 Ark. 727, 467 S.W. 2d 381 (1971). However, as Neighbors, supra, indicates, we will not allow an unreasonable meaning and in that case we established the acceptable definitional boundaries. Since the trial court judge is under a duty to instruct as to the law applicable in the case, it was error not to give the instruction.
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