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Tom Glaze, Justice.
This case involves a medical malpractice action against the appellee, Dr. John McAuley. The appellant, Darrell Phillips, was injured in a trucking accident near Clarksville and was transported to the Johnson County Regional Hospital emergency room where he was treated by Dr. McAuley. Phillips was treated for lacerations, the principal one being across the forehead. He also had chest and skull x-rays which were reviewed by Dr. McAuley and Dr. John W. King, a radiologist, who found the x-rays to be normal. Phillips was later discharged into the care of his personal physician.
Some six weeks after his discharge from the hospital, Phillips consulted another doctor who informed him that he had suffered a dislocation of the sixth and seventh cervical vertebrae in the neck. He subsequently filed suit alleging negligence against doctors McAuley, King, and the hospital, but before the date of trial, he voluntarily dismissed the hospital and Dr. King from the suit, leaving McAuley as the sole defendant. After a three day trial, the jury returned a verdict in favor of Dr. McAuley. Phillips’ sole assignment of error on appeal is that the trial court abused its- discretion in allowing Dr. King to testify as an expert witness when Dr. McAuley had failed to disclose King as a witness during pretrial discovery. We find no abuse of discretion, and therefore affirm.
Under the dictates of ARCP Rule 26(e)(2)(B), a party is under a duty to seasonably amend a prior response to discovery when he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. We recently applied this rule in Dunlap v. Buchanan, 293 Ark. 179, 735 S.W.2d 705 (1987), where the trial court allowed the introduction of rebuttal evidence that had not been listed in pretrial discovery. At the close of Dunlap’s case-in-chief, Buchanan supplemented his response by notifying Dunlap and the court that he would seek to introduce medical records not listed in the original response. We held that the court did not abuse its discretion in admitting the evidence since Buchanan’s response was truthful when made and the need to change the response was the result of trial developments.
In the instant case, twelve months before trial, Dr. McAuley asked Phillips by interrogatory for a list of witnesses and their expected testimony. Phillips listed, among others, a Dr. Shealy and responded that Dr. Shealy might testify that “Dr. McAuley either failed to order x-rays, failed to have x-rays taken when he found out x-rays were not taken, had x-rays taken and failed to diagnose properly or in some manner he deviated drastically from accepted medical practice by failing to have x-rays taken of the neck region of Darrell W. Phillips.” Phillips, in turn, asked Dr. McAuley for a list of his witnesses and their expected testimony. Dr. King’s name was not listed on Dr. McAuley’s response.
On the second day of trial, during the morning session, Phillips’ counsel called Dr. Shealy to the stand, and asked him to review the chest x-ray taken of Phillips on the day of his accident. Shealy viewed this film in the presence of the jury and testified that he could see the sixth and seventh cervical vertebrae and that there was a visible abnormality present. He concluded that this abnormality would have raised his suspicion and would have suggested the need for a cervical x-ray, and that the failure to have taken a cervical x-ray amounted to medical malpractice. That afternoon, counsel for Dr. McAuley stated on the record, and as notice to Phillips’ counsel, that a subpoena was being issued for Dr. King to be in court the next day as a rebuttal witness. Phillips’ counsel objected on the grounds that King had never been listed or disclosed as a witness. The court, in overruling Phillips’ objection, noted that Dr. Shealy, by his own admission, had never seen the chest x-ray that served as the basis of his opinion testimony until five days before trial. Thus, the court determined that Dr. Shealy’s testimony concerning the chest x-ray was new and permitted King to testify as a rebuttal witness.
There was clearly no knowing concealment involved in this case. In addition to Dr. Shealy’s admission concerning when he. first viewed the chest x-ray, he had stated in his earlier deposition (before having seen the chest x-ray) that he had all the information he needed to formulate an opinion. He further stated that if he changed his opinion in any manner or formed new opinions, he would inform McAuley’s counsel in writing. At trial, when counsel for Dr. McAuley inquired as to why he was not informed of this new opinion beforehand, Phillips’ trial counsel said, “I’ll stipulate, judge, that I let him know today.”
Thus, Dr. McAuley’s need to supplement the response was, under the circumstances described, seasonably made and obviously a result of trial developments. Accordingly, Dr. Shealy’s testimony was a proper subject for rebuttal. Rebuttal testimony must rebut the testimony advanced by the other side and should not consist of testimony which might have been advanced as proof in chief. Wilkins v. El Dorado & Wesson R.R., 282 Ark. 236, 668 S.W.2d 6 (1984). Here, Dr. McAuley initially had no reason to offer Dr. King as a witness since the only importance of the chest x-rays to McAuley — at least until Dr. Shealy’s testimony— was that they had been taken soley to detect whether Phillips was suffering from any problems related to his heart. After Shealy’s revelation at trial, McAuley was clearly allowed to call Dr. King to counter Shealy’s testimony — which King did by testifying that there was no abnormality present on the film and that the purpose of a chest x-ray is not to view the neck region.
Because we find the trial court did not abuse its discretion in permitting Dr. King’s rebuttal testimony, we affirm. | [
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■Smith, J.
This is a suit brought under the Federal Employers ’ Liability Act, to recover damages for the alleged negligent killing of appellee’s intestate. In the opinion on the former appeal, reported in 179 Ark. 1015, a narration of the facts will be found, with a statement of the law governing the case, and no useful purpose would be served by a review of either the law or the evidence, and only such portions of the testimony will be reviewed as are necessary to determine the questions raised on this appeal which were not decided on the first appeal.
It was there adjudged that the verdict and the judgment thereon were without substantial testimony to support them, and that decision is, of course, the law of this case; and the judgment recovered on the remand of the cause must be reversed unless additional substantial testimony was offered which did not appear in the first trial tending to show liability.
The suit was prosecuted upon the theory that deceased and W. O. Rhodes, who were both brakemen employed in the operation of one of appellant’s freight trains, were about to make a “kick switch.’’ The portion of the train, then in motion consisted of an engine, three cars and a caiboose, and both deceased and Bhodes were riding on the oabodse preparatory to making the kick, and deceased went from one end of the caboose to the other to uncouple it from the engine and the three cars, under the orders of the conductor in charge of the train, and, while so engaged, Bhodes, while standing on the steps of the caboose at the opposite end from deceased on the engineer ’s side, negligently, and without seeing deceased, and without giving him warning that he was about to do so, gave the engineer the kick signal, which resulted in the engineer kicking the caboose, and that this unexpected acceleration of the movement of the train caused deceased to lose his balance and fall between the caboose and the cars from which the caboose had been uncoupled, and to fall on and across the track, and before he could rescue himself from this perilous position he was run over and killed by the cars which were following the caboose.
The train was being pushed by the engine, with the caboose in front, and the testimony shows that the kick switch was made by accelerating the movement of the train, uncoupling- the caiboose from the portion of the train following- it, and then stopping- the engine, or reducing its. speed, so that the uncoupled caboose, of its own momentum, would run at a faster speed than the remainder of the train, and would thus' run to the point where it was desired to stop it, and that the caiboose would be stopped by another brakeman by means of the hand brake on the caboose.
The testimony shows that it was the duty of deceased to give the kick signal, pursuant to which the speed of the train would be accelerated and also to give the stop signal, which was the direction to the engineer to slow or stop the engine. This was true because deceased only was in position to know when the caboose had been uncoupled.
The testimony upon this question is not substantially different from that on the former appeal, which we held to be insufficient to show that there had 'been any negligence on the part of any other employee in making the kick switch or, if so, that this negligence had been the proximate .cause of the .injury, the plaintiff being unaided by any presumption of negligence in cases arising under the Federal statute under the authority of which the case was prosecuted.
The engineer testified at the trial from which this appeal comes that two brakemen (deceased and Rhodes) were engaged in giving the kick signal, and that he received this signal from both at about the same time, and that he obeyed the signal in the usual and ordinary manner, and that he gave the same testimony on the former trial. Both the engineer and Rhodes testified that there was no violent or unusual or unexpected movement of the train, and it is certain that deceased knew the movement of the train about to be made, for he performed the indispensable service of uncoupling the caboose, without which action the kick switch could net have been made, and iff deceased gave the signal for the kick switch it is immaterial that Rhodes also gave it at the same time. But, however this may be, there is no more testimony in the present record than there was in the former one that this was the proximate cause of deceased’s death, and this question is concluded by that decision.
It is insisted, however, that the present record presents the question of discovered peril, which was absent in the former record. In reply to this insistence, it may be said that the pleadings allege no such cause of action, and no instruction submitted that issue to the jury. Moreover, the testimony did not warrant the submission of that issue to the jury.
The undisputed testimony shows that all persons concerned understood perfectly the movement of the train which the conductor had ordered, what its purpose was, and how it was to be accomplished. It was deceased’s duty, after ordering the speed of the train to be accelerated by giving the kick signal, and after unooupl ing the caboose from the remainder of the train, to throw the switch to the side track, to open that track for the oars from which the caboose had been uncoupled to enter the side track, and it was necessary for him to go to the switch stand to discharge that duty. He could have done this iby leaving the caboose after uncoupling it and walking to the switch, qr he could have ridden the caboose until it had reached a point on the main track opposite the switch, and then have stepped off. It was largely because the testimony was silent on this question that we held on the former appeal that there was no sufficient showing, unaided by any presumption, that the negligence of Bhodes, if any, was the proximate cause of deceased’s death. The present record is equally silent. It is undisputed that all the employees knew that when the kick signal was given the speed of the train would b.e accelerated. This was the purpose of the signal, and that this speed would be continued until, in the judgment of 'the brakeman ordering the kick, sufficient momentum had been attained to carry the caboose to the place desired on the track where it was then running. When, this had been done, a stop signal would be given, which would direct the engineer to slow down or stop the engine. It was the duty of deceased to give this stop signal, and he never gave it. It was therefore not the duty of the engineer to stop the engine or slow down its movement in the absence of a stop signal, unless he had discovered that, from some cause — any cause — deceased was in a position of peril. It is not insisted that the engineer saw the deceased in a position of peril. The insistence is that the light made by the lantern which deceased carried (the time was between two and three a. m.) disappeared from the view of the engineer, and that this was itself, a signal for an emergency stop', and that if a stop of that kind had been made, deceased might not have been run down by the cars which were following the caboose at a slower speed. Without stopping to determine whether it would ordinarily have been the duty of the engineer to make an emergency stop upon the disappearance of deceased’s light, in view of the fact that the signal light of Rhodes had not disappeared from the view off the engineer, it may he said that the engineer stopped the train promptly when he received the stop signal from Rhodes, but deceased had then been run over by the trucks of the first car following after the caboose and those on the front end of the second one. Rhodes testified that he gave the stop signal because deceased had not done so, and that it was necessary to give this signal to perfect the kick, but that he did not then know where deceased was or what had become of him. The speed of the train was never more than ten or twelve miles an hour, and the engineer did not run more than two-car lengths between the time the first signal to make the kick was given and the time when Rhodes gave the stop signal. Between the giving of these signals deceased was killed, and the testimony does not show that the engineer knew, or had any reason to believe, that deceased was in peril during that interval. It is true his light had disappeared from the engineer’s view, but that of Rhodes had not. The engineer knew it was the deceased’s duty to throw the switch, and if he had got off the caboose for that purpose after giving the kick signal the light might then have disappeared from the engineer’s vision.
There was testimony to the effect that the ballast between the rails had been roughed up for a short distance near the place where deceased’s body was found, but if it be assumed that this was done by deceased’s body it was not shown how he got there, and he could not have been seen by the engineer because of the presence of the cars between the caboose and the engine.
There was, therefore, no issue of discovered peril in the case, even though that cause of action had been alleged — and it was not — nor was it, as we have said, submitted to the jury.
There appears, therefore, to be no additional substantial testimony not offered at the first trial, and, as we have held that it was not sufficient to carry the case to the jury, and as it further appears that the case has now been fully developed, the judgment will be reversed and the cause dismissed.
Humphreys, J., dissents. | [
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Per Curiam.
As pointed out in our original opinion, under § 9889 of the Digest all property assessed in this State shall be assessed by the duly authorized authorities according to its value on the first day of May. The record shows that appellee failed to assess its personal property, and that the clerk put the same on the tax roll as omitted property, and the assessor duly assessed the same under the provisions of 9906 and 9910 of the Digest. In making the assessment, however, the county assessor assessed the property in a lump sum of the value of $100,000. A part of this property was situated at that date on the Camp Pike Military Reservation, and was not subject to assessment by the State authorities. Surplus Trading Co. v. Cook, 281 U. S. 647, 50 S. Ct. 455, 74 L. ed. 625.
On the date of May 1, 1922, there was stored in the Terminal Warehouse in the city of Little Rock blankets of the estimated value of $20,000. These blankets should have been assessed by the county assessor. We are asked now to direct the chancery court to segregate these blankets from the others and make the assessment. It is not within the province of the courts to assess property. Under our Constitution and laws, the duty of assessing all property devolves upon the assessor, and no one else can perform that duty. Lyman v. Howe, 64 Ark. 436, 42 S. W. 830 ; and Walton v. Arkansas County, 153 Ark. 285, 239 S. W. 1054. Courts can only review the assessments made by the assessing officers and have no power under our Constitution and laws to make the assessments.
Therefore the decree of the chancery court will be reversed, and the cause will be remanded with directions to the chancery court to direct that the county assessor shall make an assessment of the blankets and other personal property of appellee which was situated in the Terminal Warehouse in the city of .Little Rock, Pulaski County, Arkansas, on the first Monday of May, 1922. In all other respects, the decree of the chancery court will be affirmed. | [
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Mehaeey, J.
This is an appeal from a decree of the Desha Chancery Court in favor of the appellee. In August, 1926, J. T. Carr entered into a contract with the State Highway Commission to- construct a road in Desha County 21.18 miles in length. The contractor executed a bond with the Maryland Casualty Company as surety for the faithful performance of the contract and the payment of all bills for labor and material entering into the construction of said road or used in the course of the per formalice of the work. The contractor did not get estimates as he claimed he should have gotten, and he was unable to pay bills for labor and material. He requested appellant to assist him, and on March 1, 1927, appellant let the contractor have $1,000 to meet his payroll on the road that he was building. On June 11, 1927, appellant indorsed note .of Frank Carr, son of the contractor, for $500, which he afterwards had to pay. This money was also borrowed to meet payrolls. On July 14, 1927, appellant let contractor have $3,000 to meet payrolls. On the same day, July 14, Carr gave appellant a note for $4,000 for the $1,000 advanced on March 1, and the $3,000 which appellant had let him have on July 14, but did not include the $500 above mentioned. There was written in the corner of the note: “This note is given as advanced money for road work.” Carr told them to pay it out for actual labor and material, and appellant testified that he was to take the place of the laborer on the payroll when they got the estimate. Carr was unable to complete the job, and on December 12, 1927, he made an assignment to the Maryland Casualty Company. The following is the assignment:
“assignment
“I, J. T. Carr, hereby assign to Charles F. Guild, representing the Maryland Casualty Company, all estimates, funds and moneys now due or hereafter becoming due. under contract for the construction of a gravel road from McGehee to Watson in Desha County, Arkansas, known as ‘Federal Aid Project No. 189-A,’ and authorize the State Highway Commission of the State of Arkansas to make out and deliver all future estimates and to pay all such sums due thereon under said contract to said Charles F. Guild. Dated this 12th day of December, 1927.”
This assignment was signed by J. T. Carr and witnessed by J. T. Harris. After this assignment the Maryland Casualty Company took over the contract and work and completed the construction of the road. Some time in the latter part of 1927, after consulting his attorney, appellant went to McGehee and had a conversation with J. T. C'arr and Charles F. Guild, the representative of the Maryland Casualty Company. Appellant went to Mc-Gehee to institute suit for his money if he-could not get some kind of promise. He was, according to his testimony, assured hy Carr and Guild that the job was in good shape, and they would pay all the indebtedness due the different ones. Carr is indebted to appellant in the sum of $4,400. The court entered judgment against J. T. Carr but held that the Maryland Casualty Company was not liable, and dismissed the complaint against it.
It is first contended by appellant that the surety company is liable under the assignment from Carr. We find nothing in the assignment to .justify this claim, and appellant has called our attention to. nothing upon which to base this claim.
Appellant next urges that the Maryland Casualty Company is liable under express agreement to pay appellant’s claim. The evidence on this question is in conflict, but, if appellant’s evidence was -not contradicted, it is not sufficient to sustain his contention. There is no evidence that appellant promised appellee that he would not bring suit if appellee would promise to paj". The evidence of appellant only tends to show that the job was in good shape and that he would get his money. Doubtless both C'arr and Guild thought that was true at that time. Nothing was done to induce appellant to postpone bringing suit. If appellee was liable, a promise would add nothing to the obligation or liability. If it was not liable, there was no consideration for the promise and therefore no liability growing out of the promise. Goode v. Ætna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6.
It is also claimed by appellant that the surety company is estopped by the representation of Guild. We do not find anything upon which to base estoppel. It is true that one by his conduct or statements may be estopped from asserting rights which might otherwise have ex isted; but, before he will be estopped, it must be shown that another has in good faith relied on such conduct or statements and has been thereby led to change his position for the worse. This court has many times held that contracts and bonds of this character should be construed most strongly against the surety company. That, however, does not mean that the bond or contract shall be construed so as to impose burdens not within terms of the bond. The main question to be determined is whether appellant, by advancing' money to the contractor in the manner he did, thereby become entitled to a lien or claim against the surety company. Of course, no one would claim that the surety company became liable for all of the contractor’s personal debts, but it is claimed that, because appellant advanced or loaned money to the contractor to meet the payroll of laborers and the money was used to pay for labor and material, the appellant thereby ¡became a subcontractor and is entitled to enforce his claim against the surety company. We do not agree with appellant in this contention. It makes no difference what the purpose was in lending’ the money, it was a loan from appellant to the contractor. The contractor used the money or most of it to pay for labor and material, but this did not make appellant a subcontractor, and he did not furnish either labor or material. The surety company was compelled to pay materialmen and laborers, and, as shown by the evidence, lost a large sum of money. It was not a volunteer but under its bond it became obligated to pay all bills for material and labor used in the work. ‘ ‘ That the equity of a surety on a bond given by the contractor, who by reason of the contractor’s default has been obliged to pay materialmen and laborers, is superior to that of a bank loaning money to the contractor, secured by assignments of amounts to become due, has been recognized by this court in Fidelity & Deposit Co. v. Merchtmts’ & Farmers’ Bank, 120 Ark. 519, 179 S. W. 1019. In that case the court quoted with approval from the case of Prairie State National Bank v. United States, 164 U. S. 227, 17 S. Ct. 142, the following: ‘That a stipulation in a building contract for the retention, until the completion of the work, of a certain portion of the consideration is as much for the indemnity of him who may be guarantor for the performance of the work as for him for whom the work is to be performed; that it raises an equity in the surety in the fund to be created; and that a disregard of such stipulation by the voluntary act of the creditor operates to release the sureties, is amply sustained by authority.’ American Bank & Trust Co. v. Langston, 180 Ark. 643, 22 S. W. (2d) 381 ; Southern Surety Co. v. J. R. Holden Land & Lbr. Co., 14 Fed. (2d) 411 ; People’s National Bank v. Southern Surety Co., 288 Pac. 827 ; First National Bank v. Omil, 176 Minn. 258, 223 N. W. 298.”
Many cases might be cited, but the question is settled by the decision of this court in cases above cited. It becomes unnecessary to decide other questions discussed by counsel.
The decree is affirmed. | [
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Jack Holt, Jr., Justice.
This is a petition for writ of
prohibition filed on behalf of Mark Turbyfill, a defendant charged with felony theft of property, seeking to prevent his trial from taking place. We' grant the writ.
With the filing of the charge against Turbyfill, the one year time period for a speedy trial began on July 22, 1991. Ark. R. Crim. P. 28.2(a). The state then had twelve months to bring Turbyfill to trial assuming there were no excludable periods under Ark. R. Crim. P. 28.3, or by July 21,1992. Ark. R. Crim. P. 28.1. Turbyfill argues that the resetting of the trial from its original date of June 30, 1992, to July 27, 1992, without appropriate orders or docket entries, violates the speedy trial rule because it falls outside the one year period to perfect trial. We agree.
The dates pertinent to the “speedy trial” issue are as follows:
July 22, 1991 Felony Theft of Property Charges Filed
March 19, 1992 Letter from Judge Cole setting original trial date for June 30, 1992
July 20, 1992 Letter from Judge Cole resetting trial date to July 27, 1992
July 23, 1992 Turbyfill’s Motion to Dismiss on speedy trial grounds
July 28, 1992 Order dated July 27 filed tolling time for speedy trial from July 27, 1992, until disposition of Motion to Dismiss and for reasonable time thereafter
October 20, 1992 Order filed denying Motion to Dismiss and setting trial for December 29, 1992
The parties entered of record the following stipulations:
1. On July 22,1991, the State of Arkansas filed felony theft of property charges against Mark Turbyfill under the above style. Mr. Turbyfill entered a not guilty plea in the presence of his attorney on August 3, 1991.
2. This case was first set for trial on June 30,1992. The defendant and his attorney appeared in the Circuit Court of Saline County, Arkansas, at 9 a.m., on June 30, 1992, ready for trial. On that date, that is, June 30,1992, the case of State of Arkansas v. Carl Meny was in progress, and continued through the next day, Wednesday, July 1,1992. On the morning of June 30,1992, when the defendant and his attorney appeared ready for trial, the case of State of Arkansas v. Mark Turbyfill, CR91 -246, was not called, no motion for a continuance was filed by the State, and neither the defendant nor his attorney was notified prior to that date of any continuance, conflict in scheduling, or request for continuance. No docket entry or order was entered at that time reflecting the removal of State of Arkansas v. Mark Turbyfill, CR91-246, from the trial docket. The Turbyfill case was reset for trial on July 27, 1992. The defendant filed a Motion to Dismiss for lack of a speedy trial on July 23, 1992. At no time between the filing of the charges on July 22, 1991, and the date of the filing of the Motion to dismiss for lack of a speedy trial, that is, July 23, 1992, did the defendant request a continuance.
These stipulations fulfill our requirement that Turbyfill show that he was not brought to trial within our one year limit, at which time the burden of proof shifted to the State to prove that the delay in bringing the defendant to trial was for good cause or was legally justified. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987); Williams v. State, 290 Ark. 286, 718 S.W.2d 935 (1986), cert. denied, 481 U.S. 1068 (1987).
On July 23, Turbyfill filed a Motion to Dismiss on speedy trial grounds. The trial court responded on October 20 with the following findings:
1. The changes [sic] were filed on July 22, 1991. Therefore the speedy trial time was at least through July 21, 1992.
2. This case was set for jury trial on June 30, 1992. This case was continued because another criminal case (State v. Meny) began on June 29, 1992 and did not end until July 1, 1992. Therefore, the delay was legally justified.
3. No order was entered or docket entry made in the present case noting the continuance. Both docket entries and judgments and trial records were made in State v. Meny showing the dates of that trial. The defendant in this case stipulates he was aware of the reason for the delay at the time of the delay. Therefore, an adequate official record of delay was made.
4. This case was re-set for trial on July 27, 1992. Therefore, the resetting was diligent and without undue delay. The lapse of time is justified.
Motion to dismiss is denied. The case is set for jury trial on December 29, 1992 at 9:00 a.m.
This Court will not grant a writ of prohibition unless it is clearly warranted. Leach v. State, 303 Ark. 309, 311, 796 S.W.2d 837, 838 (1990). Prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. Id. at 312, 796 S.W.2d at 838 (quoting Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988)). Arkansas R. Crim. P. 28.1 is jurisdictional inasmuch as it requires a defendant to be brought to trial within twelve months or be absolutely discharged pursuant to Ark. R. Crim. P. 30.1(a). Callender v. State, 263 Ark. 217, 219, 563 S.W.2d 467, 468 (1978). Further, a writ of prohibition is proper to prevent a court from exercising a power not authorized by law, and there is no other remedy available. Id. See Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991) (writ of prohibition granted where defendant’s right to speedy trial was violated).
We agree with Turbyfill that no proper continuance indicating the reasons for the delay was granted by the trial court at the original trial date and, under the facts of this case, his reliance on Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991), is well placed.
In Hicks, the trial court waited eight days after deciding to continue the case to note the continuance on its docket. In finding the trial court’s order untimely and contrary to the intent of Ark. R. Crim. P. 28.3(b) and 28.3(i), we stressed that, “a trial court should enter written orders or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify, to a day certain, the time covered by such excluded periods.” Hicks, 305 Ark. at 397, 808 S.W.2d at 351 (alternation in original). See McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989).
Here, the trial court’s error was even more serious.
The record before us does not provide any information as to the whereabouts of the judge assigned to this case on June 30, the date set for Turbyfill’s trial. At most, it appears that the Saline County .Circuit Court room was being utilized by another judge, who was serving on special assignment for the State of Arkansas v. Carl Meny, and that the Meny trial concluded July 1. Obviously, the trial judge to whom this case was assigned could have made appropriate docket entries either before the Meny trial reconvened on June 30 or at a recess in that trial. At the least, the trial court could have commenced Turbyfill’s trial on July 2, after the conclusion of the Meny trial, or, on that date made appropriate docket entries giving reasons for the delay and a date certain for a new trial. For the trial court to wait some twenty-eight days after Turbyfill appeared for trial before making any docket entry whatsoever does not satisfy the requirements of Ark. R. Crim. P. 28.3 and Hicks.
Turbyfill’s right to a speedy trial was violated. We grant the writ of prohibition. | [
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Hart, iC. J.,
(after stating the facts). According to the settled law of this State, it is the duty of the master to exercise ordinary care to provide his servants with a reasonably safe place in which to work and reasonably safe appliances with which to work. Woodson v. Prescott & Northwestern Ry. Co., 91 Ark. 388, 121 S. W. 273 ; and International Harvester Co. of America v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 310.
It is also well settled that, in order to warrant a finding* that negligence is the proximate cause of an injury, it must appear .that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Ultima Thule, Arkadelphia & Mississippi Rd. Co. v. Benton, 86 Ark. 289, 110 S. W. 1037 ; and Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A. (N. S.) 905.
In cases like this, the burden olf proof is upon the ' injured servant to show negligence on the part of the master or of a fellow-servant in the failure to perform, his duty to him as such fellow-servant which proximately caused or resulted in his injury. Cleaver v. Bert Johnson Orchards, Inc., 175 Ark. 223, 298 S. W. 1016.
This burden was not met by the plaintiff in the case at bar. It cannot be said that, even though the sliver which struck the plaintiff in the eye came from the iron pipe, when his fellow-servant threw down the block of wood on it, the master or fellow-servant was guilty of negligence. The work was .being done in the ordinary and customary way of doing such work, and there is nothing to show that it was not reasonably safe. According to the plaintiff’s own testimony, some of the laborers would bend down in placing the blocks on the iron pipe, and others would let them fall or throw them down on the pipe. It could not have been reasonably anticipated that the act of letting fall the block of wood on the iron pipe would cause a sliver to be knocked from the pipe and injure a fellow-laborer.
No testimony of any character was introduced tending to show that the pipe was made of defective material or that the way of distributing the blocks adopted by the defendant was not a safe way in which to do the work. According to the plaintiff’s own testimony, his injury was the result of an unfortunate accident for which no one was to blame. It was an unanticipated and unexpected occurrence which no reasonable person would have likely foreseen. It was an unavoidable accident and a complete defense against liability on the part of the defendant. Therefore, the peremptory instruction requested by appellant should have been given, and, for the error in not so doing, the judgment will be reversed; and, inasmuch as the cause of action seems to have been fully developed, it will be dismissed here. | [
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Ed. F. McFaddin, Justice.
The principal question posed by this litigation is the validity of a lease made by the City of Little Rock to the appellant, and covering-property known as Building No. 19 near the Municipal Airport. Intertwined are also other questions relating to actions, parties, municipal powers, estoppel, and laches.
The litigation — of which this appeal is the fruition— was initiated by a complaint filed in the Chancery Court on April 2, 1948, by W. S. Morgan, as a citizen and taxpayer of the City of Little Rock. Defendants were Arkansas Valley Compress & Warehouse Company (hereinafter called “Arkansas Valley”) and the City of Little Rock (hereinafter called “City”). The complaint alleged that on December 31, 1931, the City leased to White Brothers (now Arkansas Valley) certain lands and a warehouse thereon (hereinafter referred to as Building No. 19); that the lease was illegal and void; because of constructive fraud; that in 1936 the City and Arkansas Valley amended the original lease but the amendment was also void because of constructive fraud; that Building No. 19 was occupied in 1948 by IT. S. Time Corporation and the rental should be paid to the City of Little Bock. The prayer of the complaint was for the cancellation of the lease rights of Arkansas Valley and the receipt by the City of the rentals paid by U. S. Time Corporation.
The City, in its answer, denied that there was any actual fraud connected with the leasing of the property to Arkansas Valley, but admitted that the lease “was an attempted improvident agreement on the part of the City . . .”. The City prayed that the Court “grant the relief as prayed in the complaint.” Obviously, the effect of this pleading was to array the City on the side of the plaintiff; and this is further demonstrated by the fact that the City is one of the appellees. So we bypass the question of the plaintiff’s right to bring the suit. The defendant, Arkansas Valley, after various objections as to parties, etc., filed answer in which it denied all allegations as to fraud or improvidence; affirmatively stated that all contracts had been fairly and legally made; and denied that the City held the property as trustee for the public. By way of cross-complaint, Arkansas Valley claimed that when the Federal Government returned possession of the airport property to the City in 1948, the City failed and refused to return to Arkansas Valley a vacant strip of approximately 72 feet. To this cross-complaint the City pleaded the Statute of Frauds.
The cause was tried upon the issues joined. The evidence is voluminous, including 360 pages of testimony and 61 exhibits. The Chancery decree cancelled all rights of Arkansas Valley to Building No. 19, required Arkansas Valley to account to the City for rentals received after September, 1948, and allowed the City to continue receiving future rentals under the sublease to the U. S. Time Corporation. Arkansas Valley has appealed.
Numerous questions are presented in the excellent briefs, but we discuss only those questions essential to a determination of the issues:
I. The Evidence as to Fraud in the 1932 Lease and 1936 Amendment. Courts have always been reluctant to define “fraud” (either actual or constructive) lest man’s fertile mind invent a new scheme outside the definition but just as nefarious as previously denounced schemes. So most Courts have stated the elements of fraud rather than an all-inclusive definition. In Mid-Continent Co. v. Hill, 192 Ark. 667, 94 S. W. 2d 364, Mr. Justice Mehafey quoted from Black’s Law Dictionary as to the elements of fraud:
“Fraud consists of some deceitful practice or willful device resorted to with intent to deprive another of his right or in some manner do him an injury. ’ ’
To the same general effect see Bonvier’s Law Dictionary:
“Actual or positive fraud includes cases of the intentional and successful employment of any cunning, deception, or artifice, used to circumvent, cheat, or deceive another. 1 Story, Eq. Jur. § 186.”
It is not contended that there was any actual fraud in the transactions here involved. The complaint says the dealings were ‘ ‘ a constructive fraud on the rights of the citizens of Little Bock.” We come then to the matter of constructive fraud, which — while not defined — has been stated to consist of certain elements. In Levinson v. Treadway, 190 Ark. 201, 78 S. W. 2d 59, Mr. Justice Mehaefy said:
“Persons, in order to he guilty of legal or constructive fraud, or, as it is sometimes called, fraud at law, do not necessarily have to he guilty of moral wrong, hut a constructive fraud is a breach of either legal or equitable duty which, irrespective of moral guilt of the fraud feasor, the law declares fraudulent, because of its tendency to deceive others, to violate public or private confidence, or injure public interests. Neither actual dishonesty of purpose nor intent to deceive, is an essential element of constructive fraud. 26 C. J. 1016 and cases cited.”
Bouvier’s Law Dictionary says:
“Legal or constructive fraud includes such contracts or acts as, though not originating in any actual evil design or contrivance to perpetrate a fraud, yet by their tendency to deceive or mislead others, or to violate private or public confidence, are prohibited by law.”
In Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524, Mr. Justice Hart pointed out that in determining the question of fraud, all the surrounding circumstances are to be considered. Therefore, we examine the evidence in this case to see whether there was any constructive fraud in connection with the 1932 lease and the 1936 amendment.
Tlie testimony shows that because of World War I, the United States G-overnment owned property in Little Rock known as the “Airport Site” on the west side of which was located Building No. 19, a concrete building, approximately 800 feet long and 300 feet wide, and served by two railroad tracks. In 1929 the United States Government offered to lease to the City of Little Rock the entire airport property, including Building No. 19; but the City declined the offer chiefly because of the obligation of maintaining the building. The United States Government then advertised for bids. White Brothers made the best bid and in 1930 leased from the United States Government the entire airport property, including Building No. 19, for five years, with option to renew for five additional years. Under this lease, White Brothers agreed to pay the United States Government $2,400 per year, and also agreed to maintain Building No. 19 in good condition.
Some time after 1930 White Brothers organized the Arkansas Valley Compress and Warehouse Company (i. e., “Arkansas Valley”) which assumed all obligations of the lease; and White Brothers and Arkansas Valley, for the purpose of this statement of facts, are identical. In 1930, 1931, and 1932 Arkansas Valley spent, for improvements on and maintenance of Building No. 19, a sum of approximately $40,000, and the building was used as a cotton compress and warehouse until World "War II.
When Arkansas Valley became the owner of the lease in 1930, it had no need for any of the property, except Building No. 19 and some land contiguous, so Arkansas Valle} ' subleased the airport to the. City of Little Rock for an annual rental of $3,000 a year. It will be observed that the City had refused to lease all the property from the Federal Government because it did not want to be obligated to repair and maintain Building No. 19, but the City was willing to .pay $3,000 a year for the airport.
This arrangement between Arkansas Valley and the City continued until 1931 when the City and Arkansas Valley agreed — subject to approval of the United States Government — to a different arrangement which was considered, at that time, to be beneficial to both Arkansas Valley (because it obtained a longer lease than its original ten year lease) and the City (because it would be out less money for the lease of the airport). The United States Government acquiesced in the new agreement; and the result was that the City, on December 31, 1931, made “the 1932 lease” which is under attack in this suit. This lease provided: „
(a) — That Arkansas Valley would surrender its lease to the United States Government on all the airport property, including Building No. 19;
(b) — That the United States Government would then lease all the airport property, including Building No. 19, to the City of Little Rock for twenty-five years, with a renewal option for an additional twenty-five years;
(e) — That the City would pay the United States Government rental' of $1,200 per year for nine years, and $1.00 per year thereafter;
(d) — That the City would lease Building No. 19 and a 72 foot contiguous strip to Arkansas Valley for twenty-five years, with right of renewal for an additional twenty-five years; and that the rental paid by Arkansas Valley to the City would bo $600 per year for nine years and $1.00 per year thereafter; and
(e) — That Arkansas Valley, as lessee, “shall at its expense, repair and maintain in good condition and working order, and in a manner satisfactory to the Chief of the Air Corps, or other competent military authorities, Building No. 19 in its entirety, and the lessee shall at its expense put on Building No. 19 a new roof of the type now existing thereon whenever, in the opinion of the Sec retary of War, a new roof is required, all work hereunder to be done under the general supervision and subject to the approval of the competent military authorities. . . .”
Was there any constructive fraud in this lease? The City had been paying $3,000 a year for the airport, and through the beneficence of the Federal Government and the influence of the Arkansas Congressional Delegation, the City was enabled to reduce its annual rent payments on the airport to $600 per year for nine years, and $1.00 per year thereafter. The City certainly improved its position by this 1932 contract. It is now claimed that Building No. 19 had a much greater rental value in 1932 than the $600 per year that Arkansas Valley agreed to pay. That is questionable. Those who represented the City in 1932 and 1933, when all the banks were closed, said at that time that the City was materially benefiting itself by the 1932 agreement.
In all that the City did in executing the 1932 contract, there was a full observance of all legal requirements ; and, furthermore, there was the spotlight of publicity on all the negotiations and also on the final terms of the 1932 contract. Headline stories in Little Rock newspapers gave the terms of the 1932 agreement, and also its advantages to the City. These newspaper articles were introduced in evidence in this trial. We quote from one newspaper article which appeared under a headline of December 23,1931:
“Formal approval was given by the City Council to leases between the City and the War Department, and the City and White Brothers, a cotton firm, for part of the municipal airport property, at a meeting yesterday afternoon. . . . The leases, which will supplant the existing leases controlling the section of the airport owned by the Government, will become effective January 1, and it is expected they will save the City more than $30,000 over a period of nine years. The City will lease the property from the Government and will sublease part of a large warehouse to White Brothers for twenty-five years. The aldermen spent more than an hour studying the leases yesterday, and Mayor Knowlton said he was convinced the leases are as nearly perfect as possible. The Mayor has been working on the leases for several months. . . .”
The 1932 lease agreement was duly recorded, and continued to govern the parties, until some time in 1936, when a Bill was introduced in the United States Congress, by the terms of which the Government proposed to cancel the 1932 lease and transfer to the City of Little B.ock the title to all of the airport property, including Building No. 19; but in addition to the usual provision (giving the Government the right to resume possession of the property in the event of war or other national emergency), there was a further provision that prohibited the City from subleasing Building No. 19 or any other part of the airport property. The effect of this Bill would have been to impose on the City of Little Bock all the maintenance cost on Building No. 19, including the sprinkler system. Because of the provision against subleasing, the City and Arkansas Valley persuaded the Arkansas Congressional Delegation (which worked untiringly at all times) to have the pending Bill amended; and this was done, with the result that the City of Little Bock received a deed to all of the airport property and in addition, the City was given the right to sublease Building No. 19 to the Arkansas Valley. The deed from the United States Government to the City of Little Bock was dated July 15, 1936; and the new rental agreement between the City and Arkansas Valley provided that, beginning on that date, Arkansas Valley would pay the City as rent for Building No. 19 and the 72 foot contiguous strip the sum of $3,000 per year for 10 years and $2,500 per year thereafter. All other provisions in the 1932 lease continued in full force, including Arkansas Valley’s obligation to maintain and repair Building No. 19.
Thus by the 1936 amendment the City materially improved its position over the 1932 lease: instead of receiving only $600 per year for the remaining four years and $1.00 per year thereafter, the City was to receive as rent from Arkansas Valley $3,000 a year for ten years and $2,500 per year thereafter. But for the amendment sponsored by the Arkansas Delegation, at the request of the City and Arkansas Valley, the City could not have subleased Building’ No. 19. The full terms of the 1936 agreement were publicly stated in front page articles in local newspapers. Not only was there an absence of concealment: instead there was public acclaim to those who had represented the City.
We have given in considerable detail the facts and circumstances 'surrounding the 1932 and 1936 leases, because in none of these facts and circumstances do we detect the slightest evidence of any species of fraud. The evidence offered by the taxpayer in this case was to the effect that Building No. 19 had a much greater rental value in 1936 than $3,000 per year. Saying in 1949 that property had a greater rental value in 1936 (than the parties agreed to) is putting “hindsight in front of foresight.” The length of time of the lease may now seem improvident; but we cannot say, in the light of 1932 and 1936, that the City acted improvidently. Even so, mere improvidence is vastly different from constructive fraud; and we find an entire absence of any kind of fraud in the negotiations and contracts mentioned herein.
II. The Bight of the City to Cancel the Lease in the Absence of Fraud. The appellees, Morgan and the City, insist that — because of the length of time for which the property was leased, the cheap rental of only $3,000 a year, and the present rental of $58,000 per year — the City should have the right to cancel the lease of Arkansas Valley, so the City could receive the net rent from the U. S. Time Corporation. But these matters involve a consideration of the function in which the City acted in dealing with Arkansas Valley and the sanctity of contracts made by a City. The situation in the case at bar is strikingly similar to that in the reported case of Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319, which we now review:
In 1871 tlie Town of Searcy desired to have a railroad to run from Searcy and connect with the Cairo & Fulton Railroad (now Missouri Pacific system) at Ken-sett. So there was organized a corporation styled “The Searcy Branch Railroad Company” and the Town of Searcy paid for and owned all of the $20,000 of stock of that corporation. In 1877 the Town of Searcy sold the Searcy Branch Railroad to Yarnell for $500 cash and the further consideration that Yarnell would extend the railroad five miles, make substantial improvements, and continue operation. Yarnell performed the promised consideration and expended almost $30,000 in so doing. Then, in 1882, the Town of Searcy instituted suit to cancel the sale of the railroad to Yarnell, and claimed, inter alia, that Searcy had never consented to the sale and that Yarnell, “by reason of his position and influence, gained an undue advantage over the town, and that the town was powerless to assert her rights” until the filing of the suit in 1882. In denying the attempt of the Town of Searcy to cancel the 1877 sale to Yarnell, this Court said:
“. . . A municipal corporation may be the owner of two classes of property. One class includes all property essential to, or even convenient for, the proper exercise of municipal functions and corporate powers. The other class includes all property held for general convenience, pleasure, or profit. It is needless to inquire into the extent of the rights and powers which a municipal corporation has in and over property of the first-named of these classes. It may well be admitted that such an inquiry would involve grave doubts. But the Searcy Branch Railroad, and all its property and franchises, belonged to the second class, and our inquiry is solely as to that . . . ‘Powers granted for private advantages, though the public may also derive benefit therefrom, are to be regarded as exercised by the municipality as a private corporation;’ and ‘municipal corporations in their private character, as owners or occupiers of property, are regarded as individuals.’ . . . The contract of sale being otherwise fair and lawful, both parties having performed their respective parts, the plea of ultra vires cannot and ought not in equity and good conscience, to avail anything. See Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659; and Union National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188.”
The foregoing case clearly recognizes that a city (i. e., a municipal corporation) acts in two capacities (i. e. a governmental capacity and a proprietary capacity) ; and that when it enters into contracts involving, not the Government of its citizens, but only the convenience, pleasure, and profit of the people and the City, then the municipal corporation acts in its proprietary capacity. Other cases to the same effect are Fussell v. Forrest City, 145 Ark. 375, 224 S. W. 745, and Lester v. Walker, 177 Ark. 1097, 9 S. W. 2d 323. In McQuillin on “Municipal Corporations,” 3 Ed. Vol. 2, § 10.05, this statement appears:
“A municipal corporation has a two-fold character and dual powers, recognized by the federal courts the same as by state courts. The one is variously designated as public, governmental, political or legislative, in which the municipal corporation acts as an agency of the state. The other is variously designated as municipal, private, proprietary, or the like. Herein the former will be referred to as governmental and the latter as private. . . . Governmental powers and functions have been defined as those conferred on a municipal corporation as a local agency of prescribed and limited jurisdiction to be employed ih administering the affairs of the state and promoting the public welfare generally. . . . Private, often referred to as municipal or proprietary, functions and powers are those relating to the accomplishment of private corporate purposes in which the public is only indirectly concerned, and in which the municipal corporation, in their exercise, is regarded as a legal individual. Private functions are those granted for the specific benefit and advantage of the urban community embraced within the corporate boundaries. All functions of a municipal corporation not governmental are said to be strictly private. When acting as a private corporation a municipal corporation may claim its rights and immunities, and is subject to its liabilities.” (See also Dillon “Municipal Corporations,” 5 Ed. § 109, et seq.)
In the case at har the City of Little Bock, in its dealings concerning Building No. 19, was acting in a proprietary rather than a governmental capacity. The United States Congress, in authorizing the transfer of the property to the City of Little Bock in 1936, required that all the property be used “by the municipality for public purposes, except what is known as Building No. 19 thereon covered by existing lease. . . .” This quoted language constituted Congressional recognition of the fact that the City would use Building No. 19 in a proprietary, rather than a governmental capacity; and the clear effect of all of our cases is that when a situation exists, as in the ease at bar, the City, in leasing a building and collecting rent, acts in a proprietary and not a governmental capacity.
When a city makes contracts in its proprietary capacity, the city is bound the same as any private corporation or citizen would be. In Town of Searcy v. Yarnell, sufra, we quoted from Bailey v. Mayor of New Yorlt, 3 Hill 531, 38 Am. Dec. 669.
“ ‘Powers granted for private advantages, though the public may also derive benefit therefrom, are to be regarded as exercised by the municipality as a private corporation;’ and ‘Municipal corporations in their private character, as owners and occupiers of property, are regarded as individuals.’ ”
In 62 C. J. S. 246 this is stated as the general rule:
“In respect of its purely business relations as distinguished from those that are governmental, a municipal corporation is governed by the same rules,' and is held to the same standard of just dealing, that the law prescribes for private individuals or corporations, and is clothed with the same full measure of authority over its property that private corporations and individuals enjoy, . .
See, also, 37 Am. Jur. 729.
It is obvious that a private corporation or an individual could not avoid a contract, either on the claim that it was for a long time or that it was for what afterwards proved to be a small consideration. In 9 Am. Jur. 359 the rule is stated:
“Mere inadequacy of price, improvidence, surprise, or hardship, unaccompanied by any element of fraud, mistake, or illegality, or even impossibility of performance, will not, however, furnish basis for interposition of equity by way of cancellation or rescission. Moreover, if parties make contracts upon contingencies uncertain to both, with equal means of information, and there is no fraud, the courts cannot undertake to set such contracts aside. . . .”
And in 12 C. J. S. 970 this appears:
“In the absence of fraud or other inequitable factors a court of equity will not rescind a contract for inadequacy of consideration, improvidence, or hardship.” Some of the cases in which this. Court has refused to allow a municipality or a county to rescind a contract on the claim of inadequacy of consideration are: Little Rock Chamber of Commerce v. Pulaski Co., 113 Ark. 439, 168 S. W. 848, and Washington Co. v. Lynn Shelton Post, 201 Ark. 301, 144 S. W. 2d 20.
So in the case at bar, what is said to be an improvident contract in the light of present rental values, must nevertheless stand as a valid contract, else there would never be any sanctity to contracts made by a municipality when acting in a proprietary capacity. The appellees cite and rely on State v. Baxter, 50 Ark. 447, 8 S. W. 188; but that case is not applicable to the case at bar for several reasons, two of which are: (a) in State v. Baxter actual fraud was shown, whereas no fraud of any kind is shown in the case at bar; and (b) in State v. Baxter the County attempted to dispose of land that it held in trust for a County Court House site. The County, in holding that land, was acting in a governmental capacity, as distinct from a proprietary capacity.
It would unduly extend this opinion to cite and discuss the scores of cases listed in the excellent briefs in the case at bar. We conclude tbis section of tbe opinion by announcing our bolding that under tbe law and evidence in tbis case, tbe City is not entitled to cancel tbe Arkansas Yalley lease.
III. Arkansas Valley’s Gross-complaint. Contiguous to Building No. 19 there is a parcel of ground about 72 feet wide and several hundred feet long. Tbis ground was leased to Arkansas Yalley, along with Building No. 19. In 1943 tbe United States Government proposed to construct a large warehouse on tbis ground if tbe City would surrender title and possession of tbis 72 foot strip. Accordingly, Arkansas Valley released its interest in tbis strip to tbe City, conditioned that tbe City would deed tbe strip to tbe United States Government, and tbe building be constructed. Tbe release of tbe possession of tbe strip by Arkansas Yalley was thus conditional. Tbe City never deeded tbe property to tbe Government, and tbe proposed building was never constructed; but tbe City has refused to return tbe possession of tbe 72-foot strip to Arkansas Yalley. Tbe cross-complaint of Arkansas Valley was to regain possession of tbe 72-foot strip and against tbe cross-complaint tbe City of Little Bock pleaded tbe Statute of Frauds.
In passing on tbis cross-complaint tbe learned Chancellor stated:
“With reference to tbe cross-complaint filed by tbe defendant, asking that a strip of about 72 feet and of considerable length be returned to them, tbis strip was given to tbe Federal Government by both tbe City and tbe defendant with tbe idea that a large building might be constructed and tbis ground would be needed. Tbe building did not materialize and in tbe event tbe ruling of tbis court, in regard to tbe lease, should be reversed, tbe defendant, Arkansas Yalley Compress & Warehouse Company should regain tbe use of this strip of land.”
Since we are reversing tbe Chancery decree on tbe main question of tbe 1932 lease and 1936 amendment, it necessarily follows that Arkansas Yalley is entitled to repos session of the 72-foot strip; and a decree should be so entered by the Chancery Court.
IV. Negotiations for Increased Rentals. During World War II the United States Government took possession of all of the airport property, including Building No. 19, and constructed an additional (i. e. second) floor on a portion of Building No. 19. After the United States Government returned the airport property to the City, and the City returned Building No. 19 to Arkansas Valley the City began negotiations with Arkansas Valley for additional rent because of the enlargement of Building No. 19 by the United States Government. While these negotiations were being conducted, the appellee, Morgan, filed this taxpayer’s suit which necessarily suspended the correspondence. We presume that the negotiations will be resumed after this litigation is concluded; and we point out that nothing in this opinion is to be considered as an expression concerning the rights of either party in the matter of increased rentals because of enlargement of the building.
CONCLUSION
The decree of the Chancery Court is reversed and the cause remanded, with directions to enter a decree dismissing the complaint of the plaintiff and the prayer of the City, and awarding Arkansas Valley relief on its cross-complaint.
The complaint alleged that the said 1932 lease was illegal and void because:
“Plaintiff states that said lease was and is illegal and void, of no effect, and was not binding upon the City of Little Rock nor the citizens of said Citv of Little Rock including this plaintiff for the rea sons: (1) that the Board of Public Affairs had no power to execute said lease nor did the City of Little Bock have the power to lease properties obtained by it for public purposes for private use; (2) that the consideration therein stated was grossly inadequate to such an extent as to constitute a constructive fraud on the rights of this plaintiff and the citizens of the City of Little Rock; and (3) that the term of said lease was beyond the power of the City to grant and was for such an unreasonable length of time as to constitute an unconscionable and improvident disposition of the property rights of the City and the rights of this plaintiff and other citizens; and (4) that the effect of said attempted lease was that for a half century the City would abdicate its duty as trustee for the public and obligate itself to suspend for the same time all exercise of its legislative and administrative powers of Government as to this property, which was a constructive fraud upon the rights of the citizens of Little Bock.”
Among other statements, the decree recites:
“There is no criticism oi anybody for obtaining this lease, in the sense that there is no evidence of actual criminal fraud, but the grossly inadequate consideration which defendant, Arkansas Valley Compress & Warehouse Company, pays the City of Little Rock constitutes a constructive fraud upon every citizen of the City; the defendant, Arkansas Valley Compress & Warehouse Company, took an unconscionable advantage of the City officials of Little Rock, who were trustees of municipal properties, in the term of said lease, as well as the grossly inadequate consideration therefor, and this constitutes a constructive fraud upon each and every citizen and taxpayer of the City of Little Rock.
“The length of the lease from the City of Little Rock ... is fifty (50) years. This, in effect, alienates highly useful and valuable municipal property for half a century so that the citizens of Little Rock are deprived of their useful enjoyment thereof for an entire generation. City property should not be tied up for such a length of time, because the welfare of a community demands otherwise, and this is another reason why this lease should be set aside and held for naught.”
See 23 Am. Jur, 753.
In some places it is referred to as the War Department; in others the Bureau of Aeronautics; but, in all events, the property was that of the United States Government; and the various departments of the Federal Government are treated as the United States Government in this case.
This lease, as well as all other instruments executed by the United States Government and mentioned in this opinion, gave the Government the right to resume possession of all the property in the event of war, or other national emergency.
As previously stated, White Brothers and Arkansas Valley are considered identical in the statements herein.
See 49 Stat. at L. 1292, 74th Cong. Sess. II, Ch. 404, May 15, 1936. | [
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Jack Holt, Jr., Chief Justice.
Appellant Stephanie Bradley brought suit against appellees Thomas French and his mother Mildred French for the wrongful death of Ms. Bradley’s daughter Nicole. She alleged that a vehicle driven by Thomas French, who was intoxicated, collided with a car driven by Nicole, causing her death. Suit against Mildred French was based upon the theory of negligent entrustment. The trial court granted summary judgment on behalf of Ms. French pursuant to Ark. Code Ann. § 27-14-911 (1987). From that order comes this appeal. We dismiss the appeal because the order appealed from did not comply with ARCP Rule 54(b).
Rule 54(b) provides that when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the parties only upon an express determina tion that there is no just reason for delay and upon an express direction for the entry of judgment. Here, the order appealed from had no such determination or direction, and as far as can be discerned from the record, Thomas French remains a defendant. See Widmer v. Touhey, 297 Ark. 85, 759 S.W.2d 562 (1988); King v. Little Rock School District, 296 Ark. 552, 758 S.W.2d 708 (1988).
As the order appealed from did not comply with the requirements of the rule, it is not an appealable one. We are obliged to raise the point because it is a jurisdictional requirement. Widmer, supra.
Appeal dismissed. | [
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Per Curiam.
According to the pro se motion for belated appeal before us, petitioner Robert L. Barton filed a pro se petition for postconviction relief under Rule 37 in the trial court. It was denied. The trial court notified petitioner of the denial by letter dated April 28, 1982. The trial court also advised him by letter dated May 5,1982, that his next option was to proceed to the Supreme Court. Nevertheless, “through ignorance of the law,” he sought federal habeas corpus relief rather than filing a notice of appeal to this Court. When the federal court denied relief on the ground that he had failed to exhaust state remedies, he filed this motion for belated appeal.
The motion is denied. Just as a convicted defendant may waive his right to appeal by failure without good cause to file a notice of appeal, a petitioner whose Rule 37 petition is denied may also waive his right to appeal. Petitioner concedes that he was informed by the trial court that his next step was to proceed in the Supreme Court. He has shown no good reason for not doing so.
Motion denied. | [
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Per Curiam.
The Court of Appeals reversed appellant’s conviction of tampering with evidence. Masingill v. State, 7 Ark. App. 90, 644 S.W.2d 614 (1983). We granted the State’s petition to review that reversal. After carefully studying the issues presented and the record, we are of the view that the petition was granted under a misconception. Consequently, we dismiss the petition. As we have said, a denial of a petition for review does not imply approval or disapproval of the decision. Wilson v. City of Pine Bluff, 278 Ark. 65, 643 S.W.2d 569 (1983); Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662(1979).
Petition dismissed. | [
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Frank Holt, Justice.
The appellants were charged and convicted of operating a gambling house in violation of Ark. Stat. Ann. § 41-2001 (Repl. 1964). The jury assessed a one year penitentiary sentence for each of them. For reversal of the judgment, the appellants first contend there was no gambling conducted at appellant Flaherty’s home and, therefore, the evidence was insufficient to support a conviction for operating a gambling house.
The state adduced evidence that for approximately three weeks the police had observed Whipple driving Flaherty’s car during which tíme he was picking up and delivering parlay cards. The police, with a search warrant, went to Flaherty’s residence where they were invited in. The search warrant was exhibited and both appellants, the only occupants, were placed under arrest. The officers then discovered parlay cards, betting slips, racing forms, and a stack of football schedule sheets. For approximately one hour, an officer answered and tape recorded all incoming telephone calls. These calls were mostly from people placing bets on football games and horse racing. The callers would identify themselves either by first name or initials. Some would ask to speak to Earl (appellant Flaherty) and some would ask for Whip (appellant Whipple). During this hour two individuals appeared at the residence and upon police inquiry it was determined they had in their possession a weekly football schedule. As a result of the raid the police confiscated and introduced into evidence one telephone listed in Flaherty’s name and another in a relative’s name; a small indexed code book containing unidentified numbers; envelopes containing a large quantity of what appeared to be betting slips with “numbers” on them; numerous parlay cards and parlay card stubs; a roll of money wrapped with a rubber band ($1,174); a sack containing 121 weekly current football schedule sheets; racing forms; and an envelope with telephone bills. The appellants did not testify.
On appeal we review that evidence which is most favorable to the appellee with all reasonable inferences deducible therefrom and we must affirm if there is any substantial evidence to support the finding of the trier of the facts. Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973). In the case at bar, we are of the view that the evidence was amply substantial to sustain the findings of the jury.
The argument is further made that Flaherty’s home could not constitute a gambling house since he had lived for many years in a nice residential area and his neighbors testified they had observed no gambling activities about his premises. This was a fact question to be considered by the jury. Furthermore, in Liberto & Mothershed v. State, 248 Ark. 350, 451 S.W. 2d 464 (1970), we said “the keeping of a gambling house is not limited to a place where those engaged in gambling find shelter.”
Appellant next asserts that the admission of. the telephone recordings into evidence was error. The police officer placed a suction cup, dr recording device, on the mouthpiece of the telephone receiver. Whenever the phone rang the conversation was recorded. The portable cassette tape recorder was admitted into evidence and the recorded conversations, between the officer and the callers placing bets, were heard by the jury. The appellants contend that the recordings were inadmissible hearsay and in violation of the Federal Communications Act, 47 U.S.C. § 605, and further the introduction of the evidence denied appellants their Sixth Amendment right to confront witnesses against them. We cannot agree.
In Liberto & Mothershed v. State, supra, the officer answered incoming telephone callers placing bets. We approved the admissibility of the officer’s testimony as being permissible to show that the out-of-court statement “#*#is not hearsay if it is given in evidence for the purpose of proving that the statement was made, providing that the purpose is otherwise relevant in the case at trial. The statements here given were obviously relevant to show the use of the telephone numbers involved.” Similarly, in the case at bar, the officer could have testified as to the conversations he heard since such testimony is not introduced to support the truth of the matter asserted, but only to show that such statements were made. On the same basis, the tape recorded conversations were admissible.
Appellants also assert that the tape recording was inadmissible as being in violation of Federal Communications Act, 47 U.S.C. § 605. We examine this contention in the light of 18 U.S.C. § 2510, et. seq., which is the wire interception provision of the Omnibus Crime Control and Safe Streets Act. That section is the 1968 amendment to 47 U.S.C. § 605. In the case at bar, we consider § 2510, et. seq., controlling. The question then becomes whether the officer at the Flaherty residence improperly “intercepted” the communication in violation of 18 U.S.C. § 2511, which would render the contents of the communication inadmissible in a court of law as required by 18 U.S.C. §2515. “Intercept” is defined in § 2510 as meaning the “aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” The authorities are to the effect that testimony repeating the contents of police answered telephone calls during a valid search is admissible in evidence pursuant to either § 605 or § 2511.
In United States v. Pasha, 332 F. 2d 193 (7th Cir. 1964), a government agent was assigned to answer calls to an apartment during the search. The contents of those calls were testified to during defendant’s prosecution for failure to pay an occupational tax on gambling. The testimony was held relevant, not hearsay, and admissible as circumstantial evidence of the type of operations conducted on the premises. Further, the officer’s impersonation of defendant was held not to constitute an “interception” under 47 U.S.C. § 605. See, also, Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957).
The 1968 enactment of 18 U.S.C. § 2511 (2) (c) provides:
“It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”
As we construe this section, it cannot be said that the officer in the case at bar illegally intercepted the telephone communications.
A most recent case on this subject is State v. Vizzini, 115 N.J. Super. 97, 278 A. 2d 235 (1971). There the defendant was convicted of permitting his premises to be used to conduct a lottery. During a valid search of defendant’s home an induction coil (like the one used in the case at bar) was placed on the phone to record incoming calls. The callers placed bets. The defendant objected, as here, to the introduction of the tape at trial. The New Jersey court held that no interception had taken place, making the same distinction that was utilized in interpreting the old act 47 U.S.C. § 605, supra:
“Castellano’s [the police officer] acquisition of the contents of the telephonic communications resulted from his answering the telephone when it rang, not ‘through the use of any electronic, mechanical or other device.’
“In answering the telephone when it rang, he did not ‘intercept’ the telephone calls in violation of the federal act” (See Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957).)
Similarly, in the case at bar, the taped recordings were admissible since the incoming calls were not intercepted and recorded in violation of any federal act. We need not deal in fine distinctions as to the meaning of the word “intercept,” since 18 U.S.C. 2511 (2) (c), supra, clearly states that no illegal interception takes place when an officer is a party to the communication acting under color of law. The device on the telephone receiver recorded conversations the officer legally heard and could have testified to from memory.
Nor can we agree with appellants’ argument that presenting the taped conversations to the jury was a violation of their Sixth Amendment right to confront the witnesses against them. The officer, who took the incoming calls and recorded them, testified and was subjected to cross-examination. As previously discussed the tapes reproduced the voices of those placing bets and were admissible to show that such statements (calls) were made. We perceive no violation of the confrontation clause.
Appellants further contend that the trial court erred in refusing their instruction which would allow the jury to consider a conviction under Ark. Stat. Ann. § 41-2003 (Repl. 1964) (misdemeanor statute for keeping a gaming device). Appellants assert that they were entitled to this instruction because keeping a gaming device is a lesser included offense within the alleged offense of operating a gambling house.
The intricacies of lesser offenses in Arkansas were recently explored at length in Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), and need not be repeated here. There we said that in order to find error in the refusal of the trial court to give a requested lesser offense instruction it must appear that the offense in the requested instruction was one necessarily contained within the higher offense and the evidence showed the existence of all the elements of the lesser offense. So in Catón, supra, it was not error to refuse a shoplifting instruction where the information did not charge that the merchandise taken was offered for sale by a store or other mercantile establishment which are elements required by Ark. Stat. Ann. § 41-3939 (Repl. 1964). In Caton, supra, we further said:
“Unless the lower offense is necessarily included within the higher, there is no reason why the prosecuting attorney or the grand jury should not have the option of charging the more serious offense and ignoring the latter.”
In the instant case defendants were charged with operating a gambling house. The mere possession of gambling devices is not necessarily included within that offense. One could be criminally liable under the statute for allowing gambling in his house but have no gambling devices there (for example, matching coins, tossing pennies, betting on football games or horse races). Even if we were to find that the evidence seized here constituted gambling devices, since the information did not so charge and since the misdemeanor statute is not necessarily included in the felony statute, we hold the trial court did not err in refusing the instruction although it would not have constituted error to give it.
As was noted similarly in Caton, supra, we are not saying that there cannot be a conviction for possession of gambling devices based upon a charge of operating a gambling house. Such a conviction might be possible if the charge alleges the elements of the lesser offense and the evidence would support the conviction. Furthermore, a defendant can always request a bill of particulars to determine the specific acts alleged to constitute the particular offense. Ark. Stat. Ann. § 45-1006 and § 43-804 (Repl. 1964).
Appellants also contend that the trial court erred in refusing their instruction to the effect that every man’s house or place of residence is deemed in law as being his castle. Ark. Stat. Ann. § 41-2233 (Repl. 1964). This statute appears in the homicide section of Title 41 and is no doubt intended to emphasize the sanctity of the home in relation to self-defense and the retreat doctrine. The argument appellants present is novel. However, it is irrelevant because the conviction is based on substantial evidence which was lawfully seized. The trial court is not required to give abstract instructions which are not germane to a fact issue. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451 (1969). Neither can we agree that appellants’ counsel was erroneously stopped by the court from presenting the argument to the jury that one’s home is his castle with the right to have and read racing forms since the record does not include that part of the proceedings or any portion of the arguments to the jury.
Finally, appellants assert that the evidence taken from Flaherty’s home was based upon an illegal search. The search warrant was issued by the trial judge based upon an affidavit of a policeman and one by a deputy prosecuting attorney. At a hearing on a motion to suppress, the appellants adduced evidence from some witnesses who contradicted the statements made by the affiants. One of the affiants, the deputy prosecuting attorney, was called as a witness for the appellants. The deputy had stated in his affidavit that Flaherty was a known gambler. He testified at the hearing that to his knowledge neither appellant had ever been convicted of gambling and he had no personal knowledge of the cor rectness of the telephone bills attached to his affidavit. The appellee presented no witnesses and stood upon the affidavits. Appellants make the argument that there was no probable cause for the issuance of the search warrant. We cannot agree.
The officer’s affidavit was to the effect that he and another officer had made an “extensive investigation of gambling operations” locally; he had information that a local printing company “printed parlay cards which were being used for betting on college and professional football games;” he had information that Fla-herty had 1,250 pa, ’ ay cards printed weekly by the local printer and Whipple “was a runner for Flaherty;” Whipple was observed leaving Flaherty’s residence; Fla-herty’s car, driven by Whipple, had been followed and observed by him and another officer, stopping at Vctious places picking up and leaving parlay cards; and Whipple was seen by him leaving the printing company with parlay cards in his hand. The deputy prosecuting attorney’s affidavit was to the effect that during his four years as deputy he had “worked on several cases involving gambling activities” locally; the police had given him continuing reports about their investigation of local gambling activities; appellant Flaherty and his nephew, Billy Reeder, were co-defendants in 1969 on a charge of operating a gambling house; Flaherty was acquitted and Reeder was convicted, receiving a suspended sentence which was later revoked because of his continued gambling activities; that during the revocation hearing, there was evidence Flaherty and Reeder had maintained frequent telephone contacts with each other by intra-city or long distance calls; a charge of operating a gambling house against Flaherty in an adjoining county was dismissed because of a defective search warrant; and the current telephone records of Flaherty and Reeder reflected approximately 150 intra-city or long distance calls between them for about three months prior to the raid of Flaherty’s premises. These current phone records were made a part of the deputy prosecutor’s affidavit.
An affidavit based upon hearsay information can be a basis for the issuance of a valid search warrant. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725 (1960). There the court said:
“We have decided that, as hearsay alone does not render an affidavit insufficient **** so long as there was a substantial basis for crediting the hearsay.”
To the same effect is Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969); U. S. v. McClard, 333 F. Supp 158 (E. D. Ark. 1971); Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970).
The authorities, as succinctly reviewed in McClard, supra, are also to the effect that the affidavit for 'a search warrant is sufficient if it relates facts which are sufficient to persuade the examining court, acting as a reasonable person, to believe probable cause exists that a law violation is occurring on the premises to be searched. The' affidavit need not assert facts which establish conclusively or beyond a reasonable doubt that a violation of the law exists on the premises. Probable cause exists where knowledge of facts or circumstances is. imparted to the examining court sufficient to persuade an ordinarily prudent person to actually believe in good faith, as opposed to mere suspicion, that the facts asserted in the affidavit are true. The examining court has the right to give at least some credence and weight to an experienced law enforcement officer because of his expertise. The judicial determination by the examining court that probable cause exists for the issuance of a search warrant is entitled to considerable deference and weight by a reviewing court.
In the case at bar, the affidavits were based upon information acquired during an extensive and continuous investigation as well as upon personal observations of experienced law enforcement officials. We cannot agree that contradictory evidence adduced by appellants at the hearing on the motion to suppress vitiated the search warrant. See, Liberto v. State, supra. We hold that the affidavits constituted a substantial basis to support the examining court’s judicial determination that probable cause existed for the issuance of the search warrant.
Finding no error, the judgment is affirmed.
Affirmed. | [
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Steele Hays, Justice.
The only question to be decided is whether appellant Dorene Meisch Leatherwood is a pretermitted child under the will of her late father, Francis F. Meisch. Mrs. Leatherwood is the only child of Francis Meisch and Dorothy Meisch, who divorced in 1953. Francis Meisch died on December 29, 1985, survived by his widow, Inez Meisch, and by Mrs. Leatherwood.
Inez Meisch petitioned the probate court for the probate of a will dated February 9, 1973, naming Inez Meisch as executrix with Dorene Leatherwood as alternate. The will provided that if Inez Meisch survived, she would receive the entire estate — if not, then the estate would go to Dorene Leatherwood.
Subsequently, Mrs. Leatherwood objected to the 1973 will and offered two later wills — one dated October 29, 1980, and the other dated March 14,1984. The petition asked that the 1984 will be probated and that Mrs. Leatherwood be declared to be a pretermitted child under the 1984 will.
The 1984 will was admitted to probate as the last known will of Francis Meisch. It provided that Inez Meisch would serve as executrix and, if she survived, would receive the entire estate. If Mrs. Meisch did not survive, the entire estate was to be divided into two equal shares, “one of which shall be distributed to those persons who would constitute my heirs at law on the date of my death, and the other share distributable to those persons who would constitute the heirs at law of my said wife on the date of her death.” The will does not mention Mrs. Leatherwood by name.
Mrs. Leatherwood contends here, as she did before the probate court, that she is a pretermitted child within the language of Ark. Code Ann. § 28-39-407(b) (1987):
(b) PRETERMITTED CHILDREN: If, at the time of the execution of a will, there is a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.
The probate judge held that Mrs. Leatherwood came within a class mentioned in the will and was not, therefore, pretermitted. Mrs. Leatherwood has appealed and we affirm.
Our relevant cases can be summarized succintly — if the word “heir” or “heirs” is used by the testator in a colloquial sense to refer to children, or descendants, as opposed to a technical, legal sense, then the requirements of § 28-39-407(b) (1987) are met. Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946); Powell v. Hayes, 176 Ark. 660, 2 S.W.2d 974 (1928). Thus in Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986), we held the following language was a sufficient mention of children to uphold a will which excluded them:
I am mindful of the fact that I have willingly and intentionally omitted to provide for all my heirs or other relatives not specifically mentioned herein.
Similarly, in Petty v. Chaney, Ex’x, 281 Ark. 72, 661 S.W.2d 373 (1983), we held that a provision for “my wife and my descendants,” was sufficient.
Mrs. Leatherwood relies on the case of Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), which the concurring opinion finds indistinguishable from the case now before us. But how could it be said the words “heir” or “descendant” are used in a colloquial sense when they do not even appear? The probate judge found the wording in Robinson to be technical and we affirmed. Perhaps the difference is only one of degree, but most differences are, when closely examined. The language in Robinson provides that the estate would:
devolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution in the State of Missouri.
That is the terminology of the technician, the cant of the legal profession, not the words a layman might choose to refer colloquially to a child or to children.
While we review probate cases de novo, we cannot say the trial judge’s order was clearly erroneous and, accordingly, we affirm.
Holt, C.J., and Newbern, J., concur.
Purtle, J., dissents.
The 1980 will nominated Mrs. Leatherwood to be executrix and recited that if a pending divorce suit was finalized prior to the death of Francis Meisch, Inez would receive nothing, but if the death should occur before finalization, Inez would receive only her statutory interest as widow. The residue of the estate was bequeathed to Dorene Leatherwood. | [
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Ed. F. MoFaddin, Justice.
Appellant, Edgar McGar-rali, was tried on an information charging him with the murder of Franklin Holloway. The nncontradicted facts established that appellant was playing a game of pool with Billy Bridges; that Holloway, Lem McGarrah (appellant’s brother) and others were seated nearby and watching- the game; that conversation was passing between the participants and the onlookers; that just after appellant had made a good shot and won the game, Hoi- loway arose and took a step; and that appellant struck Holloway on the head with the pool cue, inflicting a skull fracture from which death ensued a few hours later.
It was the State’s theory that appellant inflicted the blow because of previous animosity and a declared intention to “get even.” It was the appellant’s theory that Holloway had a knife, or some weapon, in his pocket and was being aided by Lem McG-arrah; that the two were advancing on Edgar McGarrah to inflict injuries, and that appellant struck the blow in necessary self-defense. The jury’s verdict evidently adopted a middle ground theory, supported by the evidence, to the effect that Holloway arose to leave the pool hall and that Edgar McGarrah, in a sudden heat of passion, struck Holloway without provocation. From a conviction of voluntary manslaughter there is this appeal.
I. Continuance for Absent Witness. The information was filed on May 17, 1949. On October 10th the Court set the case to be tried on October 27th. Appellant had a subpoena issued for the witness Davis, and learned that he was in California. On October 12th appellant’s counsel at Fayetteville wrote the Prosecuting Attorney at Berryville, suggesting the taking of the deposition of Davis in California; but no interrogatories were enclosed in the letter. On October 20th the Prosecuting Attorney went to Fayetteville and, with appellant’s attorney, prepared the interrogatories which were forwarded to California. When the deposition had not been returned on October 27th, appellant moved for a continuance.
The motion was overruled; and we see no abuse of discretion committed by the Trial Court. The burden was on the appellant to exercise due diligence to obtain the testimony of the absent witness. Appellant had from May until October to get the deposition. Instead of writing a letter on October 12th (15 days before the trial), appellant could have had the interrogatories prepared and personally delivered to the Prosecuting Attorney. In short, we fail to find the exercise of due diligence by appellant, and so we refuse to say that the Trial Court abused its discretion in overruling the motion. See Jackson v. State, 94 Ark. 169, 126 S. W. 843; Miller v. State, 94 Ark. 538, 128 S. W. 353; Joiner v. State, 113 Ark. 112, 167 S. W. 492; and French v. State, 205 Ark. 386, 168 S. W. 2d 829.
II. Continuance on Account of Illness of Counsel. Appellant bad retained tbe law firm of Sullins & Perkins to represent bim. Mr. Sullins was ill at tbe time of tbe trial and continuance was sought for that reason. But Mr. Perkins ably represented tbe defendant; and sucb representation made continuance unnecessary. See Maloney v. State, 181 Ark. 1035, 27 S. W. 2d 94; Curtis v. State, 89 Ark. 394, 117 S. W. 521; and Holmes v. State, 144 Ark. 617, 224 S. W. 394.
TTT- Exclusion of Testimony. The defense offered to prove by Dr. Harrison that on one or two occasions tbe deceased, Franklin Holloway, had been brought to tbe Doctor in a delirious condition which tbe Doctor thought bad been occasioned by acute alcoholism; and that at sucb times tbe deceased was violent and bad to be restrained. Tbe Trial Court excluded tbe proffered testimony on tbe theory that tbe witness bad acquired bis information as a result of tbe confidential relationship of physician and patient. See James v. State, 161 Ark. 389, 256 S. W. 372. We prefer to sustain tbe exclusion of tbe proffered evidence, because it was irrelevant. Tbe defendant testified:
‘‘Q. Let me ask you this: did you think be was having a ‘spell’ that night?
“A. No, I didn’t have time to think anything.”
Since apprehension of Holloway having a “spell” was not tbe cause of tbe defendant striking tbe deceased, tbe evidence of “spells” was entirely irrelevant. We need not consider whether tbe evidence was competent against tbe objection that it was an effort to show general reputation by specific incidents.
Furthermore, tbe Court allowed other witnesses to testify as to tbe “spells” tbe deceased suffered, so tbe testimony of Dr. Harrison could only have been cumula tive; and the Trial Court has discretion to limit the number of witnesses whose evidence is cumulative. See Sheppard v. State, 120 Ark. 160, 179 S. W. 168, and Cole v. State, 156 Ark. 9, 245 S. W. 303.
IY. State’s Instruction No. 11. The Court gave this instruction:
“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.”
The appellant objected to this instruction, claiming that it shifted the burden of proof to the defense; and the appellant asked that these words be added at the end of the instruction:
“But the burden of proof is on the State in the whole case to convince you beyond a reasonable doubt of the guilt of the defendant.”
The instruction, as given, is in the exact language of the Statute (§ 41-2246, Ark. Stats. 1947); and such an instruction has been discussed by this Court in numerous cases, some of which are listed in the Annotation immediately following the Statute, and other cases are cited in Gaines v. State, 208 Ark. 293, 186 S. W. 2d 154. The refusal of the Trial Court to add the additional words requested is justified, because the Court, in other instructions, stated that the burden of proof was on the State. Instruction No. 4 advised the jury as to the presumption of innocence; Instruction No. 5 was on reasonable doubt; and Instruction No. 21 told the jury that the burden was on the State to convince the jury beyond a reasonable doubt that the defendant was guilty. In Thomas v. State, 85 Ark. 357, 108 S. W. 224, the same contention was made as here; and the Court’s opinion in that case, delivered by Mr. Justice Battle, is ruling in the case at bar.
V. Refusal to Instruct on Involuntary Manslaughter. The Court ruled that the evidence was insufficient to sustain a charge of first degree murder, and instructed the jury on second degree murder and voluntary manslaughter. The defendant requested an instruction on involuntary manslaughter and claims error because it was refused. Assuming, but not deciding, that the requested instruction was correctly and fully worded, and also conceding that an instruction on involuntary manslaughter should generally be given in a homicide case like the one at bar, nevertheless we hold that there was no error in refusing to give the instruction in this case. When an instruction on involuntary manslaughter should be given in a homicide case, is a question that has been considered in many of our cases, a few of which are:
Ringer v. State, 74 Ark. 262, 85 S. W. 410; Scott v. State, 75 Ark. 142, 86 S. W. 1004; Edwards v. State, 110 Ark. 590, 163 S. W. 155; McGough v. State, 119 Ark. 57, 177 S. W. 398; Black v. State, 171 Ark. 307, 284 S. W. 751; Deatherage v. State, 194 Ark. 513,108 S. W. 2d 904; Cook v. State, 196 Ark. 1133, 121 S. W. 2d 87; Bailey v. State, 206 Ark. 121,173 S. W. 2d 1010; and Hearn v. State, 212 Ark. 360, 205 S. W. 2d 477.
In Ringer v. State (supra), as well as in Scott v. State (supra), the accused killed a third party while attempting to defend himself against an assailant, whereas in the case at bar the accused killed the man whom he claimed was his assailant, so there was no mistake as to the victim. In Edwards v. State (supra) the accused threw at the deceased a small stick of wood (which the Court said was not calculated to produce death), whereas in the case at bar the accused struck the deceased on the head with the heavy end of a pool cue and with such force that the stick broke. In Deatherage v. State (supra) an officer shot a prisoner, and the question was the limit to which the officer could go in repelling an attack by a prisoner, whereas in the case at bar neither of the parties was an officer. The facts in the case at bar distinguish it from these four cases (i.e. Ringer, Edwards, Scott and Deatherage) and bring it within our holding in the McGrough, Black and Bailey cases, supra.
In Bailey v. State, 206 Ark. 121, 173 S. W. 2d 1010, we said:
“. . . We hold that the trial court was correct in refusing to charge on involuntary manslaughter. The defendant intended to shake the deceased off of the car, and he committed the homicide. Involuntary manslaughter applies where the homicide is unintentional. That cannot apply here. In McGough v. State, 119 Ark. 57, 177 S. W. 398, the appellant had committed a homicide and claimed that the jury should have been instructed on involuntary manslaughter. This court, speaking through Chief Justice McCulloch, said: ‘According to the undisputed testimony, the death of Ferguson resulted from the voluntary act of appellant in firing the gun at him. That being true, the question of involuntary manslaughter is not involved. Where death results from a voluntary act, and the killing was intentional and resulted from means calculated to produce death, the crime is voluntary manslaughter or some higher degree of criminal homicide. It is not involuntary manslaughter. Wharton on Homicide (3 Ed.), § 6.’
“That quotation finds full application here. The defendant, by his own voluntary act; committed the homicide, and, therefore, it could not be involuntary manslaughter. In Warren on Homicide (Permanent Edition), § 86, it is stated: ‘The killing is not unintentional where the defendant intentionally did an act, the natural consequence of which would endanger life, on the principle that one is presumed to intend the natural consequences of his act, although he intended only to disable the deceased.’ ”
In the case at bar the jury was told that if it believed the appellant acted in necessary self-defense, it would acquit him. The fact that the punishment assessed was five years — rather than the minimum of two years for voluntary manslaughter — shows the jury did not believe the theory of self-defense. If appellant did not act in self-defense, then he was guilty of voluntary manslaughter.
CONCLUSION
In addition to those assignments discussed, we have also examined all the other assignments in the motion for new trial, and find none justifying a reversal.
Affirmed.
See § 41-2299, Ark. Stat. (1947). | [
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Mehaeey, J.
In July, 1902, Gr. J. Owen, a farmer about fifty-three years old, and a citizen of Randolph County, was convicted and sentenced to a term of twenty years in the penitentiary for the murder of his son-in-law, Henry Hall. The killing was alleged to have occurred February 18, 1902. Just prior to Owen’s imprisonment he constituted 'Schoonover & Brown his attorneys in fact to rent his lands and collect the rents amounting to approximately $1,000 a year. He escaped from prison after having served about a year, and after his escape he would at intervals meet one of his attorneys and his tenant, J. M. Hurst, at some place named by him and receive his rents. This continued until June, 1923, when the last settlement was made, and since that time, so far as the evidence shows, he has never been seen. No communication has been received from him since about January 1,1925.
Mr. Owen had three children: Yergie and Hattie, children of his first marriage, and Rubye, appellant, only child of his second and last marriage.
He acquired the lands involved in this suit about the year 1884. He had been separated from his wife at that time about eight years, and his two daughters, Hattie and Yergie, then about eight and twelve years old, went to live with him on the farm.
On December 18, 1894, he conveyed by deed his land to. his two daughters, in consideration of the sum of one dollar and the further consideration of his natural love and affection for his daughters, Hattie and Vergie, three-fourths to Hattie and one-fourth to Yergie. He continued to farm and accumulate money, and at one time after that he had buried $4,000.
In May, 1896, Vergie conveyed her interest in the lands to Hattie. Still later Mr. Owen conveyed by deed another forty acres to Hattie in Randolph County and another forty acres in Clay County. Hattie thereby became the owner of 420 acres.
In 1899 Owen married again, and in 1900 the appellant, Rubye, was born.
In December, 1901, Hattie, who had married Henry Hall, conveyed to her father 120 acres of land which had formerly been deeded to her by her father in consideration of the sum of one dollar and the further consideration of the natural love and affection for the said O. J. Owen, father of the said Hattie Hall.
On the same date, December 27, 1901, Hattie conveyed by deed eighty acres of the land formerly deeded to her and Vergie, to her father for his natural life, and at his death to her sister, Vergie, in consideration of the sum of one dollar and the further consideration of the natural love and affection to her sister, Vergie Siebke, and her father, Gr. J. Owen. At the same time she conveyed back to her father the forty acres of Clay County land which he later sold.
Hattie then had 180 acres of land, Vergie a remainder in eighty acres of land which would be hers upon the death of her father, in addition to the one-fourth interest in the 340 acres of land which she had deeded to her sister, and this left Owen with 120 acres of land. Hattie paid Vergie $500 in cash for Vergie’s interest in 340 acres. This conveyance was in 1896.
In 1914 Vergie conveyed to Hattie her remainder in the eighty acres deeded to her in 1901. It is alleged that if Vergie had kept her land it would have been worth $8,000 in 1894, and that Hattie’s land in 1894 was worth $9,000. It is also alleged that the 120 acres of land which Owen owned at the time of his death was worth $12,000.
Schoonover and Brown hold $4,787.79, money belonging to the estate of Owen, and will receive in addition to this $660, making a total of $5,447.79 in cash.
This suit was begun by the appellant, Rubye Jackson, in the Randolph Chancery Court. She alleged that she and the defendants, Vergie Siebke and Hattie Richardson, were the only surviving children and heirs of Gr. J. Owen, who died intestate, seized and possessed of ■of 144 acres of land in Randolph County; that prior to Owen’s death he had placed his lands in the charge of Schoonover & Brown, that they had collected rents amounting to more than $4,000, which they had not accounted for. She further alleged that her father, during his lifetime, had made certain advancements to Vergie and Hattie, which advancement to each of them was of equal or greater value than the estate left. She asked that her sisters be required to account for the property received by them, and that the property be so divided that each child would get an equal share.
Hattie Richardson answered, admitting that the plaintiff, Vergie Siebke, and herself were the only heirs of Gr. J. Owen. She then described the property she possessed, stated that she was the owner by virtue of a warranty deed, that the land was deeded to her and her sister by her father, and denied that the lands conveyed to her and her sister by her father were advancements.
Vergie filed answer, adopting’ the answer of Hattie as her answer.
The conveyances mentioned above were introduced in evidence, and witnesses were introduced who testified as to the value of the property, and that Hattie and Vergie assisted their father in farming, doing the same kind of work that men do on a farm. There was also evidence introduced showing the educational advantages of Hattie and Vergie given them by their father. A copy of complaint was introduced showing that Gr. J. Owen had brought suit in the Randolph Chancery Court against Hattie and Henry Hall, Randolph County Bank, and Bank of Corning. The suit was never tried, but Hattie and her father made a settlement.
In the complaint by Owen against his daughter it was alleged that the deeds made to her were in trust, and that the daughters were to hold title during the time they remained unmarried, and that the grantor was to retain possession. It was alleged that, if either of the daughters married, she was to convey her interest to the other, and, if both of them married, then the land should be reconveyed to the father. There was no evidence offered tending to establish these facts, except the complaint which was filed by Owen.
Hattie Richardson testified that there were no such agreements made, and that her father got angry because she married Hall, and that this was the reason that h§ brought suit. This contention of Hattie is strengthened by the fact that her father afterwards was convicted of murdering her husband, Hall.
There was an intervention filed by Pearl Walley, claimed to be a grandchild of G. J. Owen, but the chancellor found that she was not his grandchild and dismissed her interventiob for want of equity.
And the chancellor stated in his decree that there was a large amount of testimony directed to the intervention as to whether or not Pearl Walley was the grandchild of G. J. Owen, Sr., but there was very little, if any, conflict as to the other proof in the case, a good portion of which is documentary evidence.
The chancellor stated in his decree that the evidence tending to prove that the death of G. J. Owen, Sr., was circumstantial. It appeared that in January, 1902, he killed his son-in-law, Henry Hall, the husband of Hattie; was convicted and sentenced to 20 years in the penitentiary, escaped and became a fugitive; but he had given Schoonover & Brown a power of attorney about the time of his conviction, and communicated with them periodically until the final meeting in 1923, and that since that time he had never been seen or communicated with; that if living now he would be eighty years of age, and the court therefore finds that the evidence is sufficient to prove the death of G. J. Owen.
The chancellor, however, required an indemnifying bond to run for five years to be given by the parties held entitled to the funds; that the bonds should be approved by the chancellor. The decree also recites that the final issue to be passed upon rests upon the answer to this question: “Was the deed executed by Gr. J. Owen in 1894, conveying' all his property, consisting of some 340 acres of land, to his only then heirs, three-fourths to Hattie and one-fourth to Yergie, intended by him to be an advancement?”
Then, after discussing the facts, the chancellor found that thé suit and settlement contradicts the idea of an advancement, and that, if the conveyance was intended as an advancement, the same could be revoked and rescinded, and a new agreement entered into during the lifetime of the parties, and the court held that the conveyance to Hattie and Yergie was not an advancement; to reverse this decree this appeal is prosecuted.
The court found that the evidence was sufficient to show that Gr. J. Owen was dead. "It is true, as stated by the chancellor, that the evidence was circumstantial; but, as found 'by the chancellor, he would, if living, be more than 80 years of age, and he has not been heard of in several years. If the evidence is sufficient to justify the finding that one is dead, courts will so find whether the evidence is direct or circumstantial. “A well connected train of circumstances is as cogent of the existence of a fact as any array of direct evidence, and frequently outweighs opposite direct testimony.” 23 C. J. 48.
This court, in discussing the scintilla rule, said: “While this rule is not to be ignored, it is equally well settled that any issue of fact in controversy may be established by circumstantial .evidence where the circumstances adduced in evidence are such that reasonable minds might draw different conclusions therefrom.” St. L. I. M. & S. R. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786 ; Paragould & M. R. Co. v. Smith, 93 Ark. 224, 124 S. W. 776 ; St. L. I. M. & S. R. Co. v. Owens, 103 Ark. 61, 145 S. W. 879 ; Mo. Pac. Rd. Co. v. Hull, ante p. 873.
"Of course, where circumstantial evidence is relied on "to establish any fact, the circumstances must agree with and support the hypothesis which they are adduced to prove and the circumstances themselves must he proved.
The finding* of the chancellor on this issue is supported by a preponderance of the evidence. The statute provides that under certain circumstances a person shall be presumed to be dead in any case in which his death may come in question unless proof be made that he was alive within that time. C. & M. Digest, § 4111.
In this case, however, there is something more than the presumption of death, there is proof of circumstances which we think justified the finding of the chancellor. He would be more than eighty years old; had been in the habit of calling on his attorney and tenant periodically to collect his rents; his rents had accumulated; and all these circumstances, together with his absence, are sufficient proof of his death.
Since the chancellor found that the circumstances showed Gr. J. Owen was dead, there was no reason for requiring an indemnifying bond. If proof of death had been made by direct evidence, of course no bond would have been required, and since a fact may be established by circumstantial evidence as well as by direct evidence, there was no occasion to require bond in this case.
The other question in the case is whether the conveyances by Gr. J. Owen in his lifetime to his daughters, Hattie and Vergie, were advancements or whether they were absolute gifts. It is argued that the settlement of the lawsuit establishes the fact that Owen contracted with these girls as a part consideration for the conveyance that they remain single, and they say, if that be true, the gift from the parent of the child must be absolute, and that the compromise is a part of the res gestae and therefore clearly admissible under the authorities. There is no evidence in the record about anything Owen did or said with reference to this settlement except what is contained in a complaint that was filed in court. The statements in this complaint contradict the terms of the deeds; the complaint was not sworn to; it was filed by the attorneys of G. J. Owen, who doubtless prepared the complaint, and there is no evidence that Owen himself ever saw it; so, if it is conceded to be competent and admissible, it would be very slight evidence under the circumstances. All it could possibly amount to is a statement by the attorneys of what they understood was the claim of Owen.
As against this evidence, there are the conveyances themselves and the testimony of Hattie Richardson, who testified that her father did not like the man she married, Henry Hall, and was angry because she married him, and that that is the reason he brought the suit, and there is no evidence other than the statements in the complaint to contradict Hattie Richardson. It is contended that Hattie and Vergie worked like slaves on these farms, and that that was the reason Owen conveyed' the land to them. This also contradicts the written instruments themselves.
If Owen had intended to convey the property to his daughters in payment for the work they had done, he doubtless would have so stated in the deeds, but the consideration was one dollar and natural love and affection.
It is entirely reasonable that the fact that his daughters did work and help him was the foundation, or at least increased his love and affection for them, but the conveyances did not mention the fact that the daughters had worked and assisted their father, but the only consideration mentioned was the one dollar and natural love and affection.
While it is true that his daughters performed labor and assisted their father, it is also true, as the record shows, that their father cared for them, maintained them, and educated them. There is nothing in the record to indicate that he cared more for these daughters than for the appellant, and she was deprived of the care and guidance of her father which the other daughters received.
The presumption is that the conveyances were intended as advancements, and we do not think there is sufficient evidence in the record to overcome this presumption.
Appellees quoted from 1 R. C. L. 665. The section quoted from, however, contains the following statement, among others: “The party asserting that it was the intention of the donor to make an advancement makes a prima fade case where he shows that the facts surrounding the supposed advancement are such that a presumption arises that the gift by the donor was an advancement. It then becomes necessary for the party claiming that the transaction was not an advancement to introduce evidence to overcome this presumption.”
In this State the presumption is that a conveyance or gift by the father to his daughters is an advancement. Eastham v. Powell, 51 Ark. 530, 11 S. W. 823.
“It was admitted that plaintiff bought the land and paid the purchase money therefor, and caused his vendors to convey it to the defendant; and the defendant is the son of plaintiff. In the absence of other evidence, the presumption from these facts is that the conveyance was intended to be an advancement and not a trust.” Robinson v. Robinson, 45 Ark. 481.
The court also said in the Robinson ease: “The evidence necessary to overcome the presumption of an advancement, in a case like this, and prove a resulting trust, must not only be distinct and credible, but preponderate.”
In another case decided by this court the evidence showed that the father conveyed to his son, who was a minor, and that after the son became of age and until he married he continued to reside with his father as a member of the latter’s family. The father testified that he had the deed made to his son because he was advised that the deed could be better defended in his son’s name, and that he had no intention of giving the land to his son, and one witness testified that a deed was exhibited to him, and it was stated that it was made as a deed of trust to avoid trouble about the title, and there was evidence tending to show that the son had not claimed to be the owner of the land until a short time before bringing the suit. The court said: “The presumption of the law is that the purchase of the land in controversy was by way of an advancement to the son. The proof does not overcome this presumption.” White v. White, 52 Ark. 188, 12 S. W. 201.
In the case of Goodwin v. Parnell, 69 Ark. 629, 65 S. W. 427, the court said: “The evidence adduced at the hearing of the cause clearly proved that the land conveyed to the defendant was a gift, but was conflicting as to the intention of the grantor to convey it as an advancement. * * *
“The conveyance of land by G. P. Goodwin to his son, Leon Goodwin, being voluntary, in the absence of evidence to the contrary, is presumed to be an advancement, the presumption being that a parent intends Ghat all his children shall equally share in his estate, not only in what remains at his death, but equally in all that came from him.’ The doctrine of advancement is invoked to effectuate this intention.”
The rule is well stated in R. C. L. as follows: “For the doctrine that a parent desires to distribute his estate equally among all his children is so strong that, in the absence of clear and convincing evidence to the contrary, it will be presumed that a parent who during his lifetime makes a substantial gift to a child intended such gift to be an advancement; and hence it is often stated that a gift to a child or an heir by an ancestor in his lifetime is prima facie an advancement. A transfer of land by a parent during his lifetime to a child will be presumed to constitute an advancement of a portion or the whole of that child’s share in the parent’s estate, where the consideration expressed is nominal, and natural love and affection.” R. O. L. 668.
The consideration expressed" in the deeds by Owen is nominal, that is one dollar and natural love and affection. No evidence in the record anywhere tends to show that it was not the intention of Owen to treat all his children alike, that is to so distribute his estate that his heirs would share equally.
Section 3485 of C. & M. Digest provides that, if an advancement is made, the value of such advancement shall be reckoned, and, if such advancement be equal or superior to the amount of share which such child would be entitled to receive of the real and personal estate of the deceased, then such child shall be excluded, etc.
Section 3487 of the Digest provides: “The value of any real or personal estate so advanced shall be deemed to be that, if any, which was acknowledged by the person receiving the same by any receipt, in writing, specifying the value; if no such written evidence exists, then such value shall be estimated according to its value at the time of advancing such money or property.”
The decree of the chancery court is reversed and remanded with directions to hear evidence, determine the value of the advancements, and also of the estate, and enter a decree disposing of the property, so that each, child will share equally.
Humphreys and M cHaney, J J., dissent. | [
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Steele Hays, Justice.
Dale Smart was convicted of sexual abuse in the first degree for fondling an eight year old girl on June 27, 1987, in violation of Ark. Code Ann. § 5-14-108 (1987). Smart was convicted and sentenced to seven years, suspended to four, on the condition that he obtain counseling.
On appeal Smart argues that the use of the victim’s hearsay statements pursuant to A.R.E. Rule 803(25) and the victim’s live testimony at trial is cumulative and prejudicial. Additionally, Smart argues that the witnesses testifying to the victim’s hearsay statements under A.R.E. Rule 803(25) were allowed to testify about matters other than the alleged sexual abuse incident. Finding no merit in the arguments, we affirm the trial court’s judgment.
The state’s proof was that Dale Smart and his wife had a babysitting arrangement with the Thackers. Veronica Thacker and some of her cousins stayed with the Smarts while their parents worked. On the evening of June 27, 1987, Dale Smart came in from work and after a drink of whiskey retired to his recliner. Smart then called Veronica over to the recliner where he placed her in his lap. While Veronica was in his lap, he proceeded to unbutton and unzip her pants, and fondled the eight year old girl. Smart’s wife was not in the house when this incident occurred, and upon her return to the house, Smart obtained assurances from Veronica that she would not tell anyone about what just occurred. The following morning Veronica reported the incident to her mother and later in the afternoon Veronica told Ms. Paula Breashers, a volunteer SCAN worker and family friend. A week later Veronica spoke with Ms. Helen White, Deputy Sheriff of Pope County, about the incident.
At trial pursuant to A.R.E. Rule 803(25) the state notified Smart that Veronica’s statements to her mother, Ms. Breashers, and Ms. White would be offered at trial. The trial judge determined that these statements possessed a reasonable likelihood of trustworthiness and admitted them into evidence at the trial. Not only were these hearsay statements offered at trial, but Veronica Thacker herself testified.
A.R.E. Rule 803(25)(A) states that:
a statement made by a child under ten years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, provided:
1. The Court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria . . .
A.R.E. Rule 803(25) provides an exception to the hearsay rule in cases of sexual crimes with children under ten years of age. While it is true that this exception was enacted to alleviate the trauma and distress of child victims by not requiring direct testimony from the child, there is nothing in this rule which prohibits a child from testifying. The appellant argues that when the legislature enacted this hearsay exception it meant to create “an either/or situation,” that is, the child may testify or the child’s hearsay statements to others may be introduced at trial, but not both. However, the rule does not state that either the statements or the live testimony may be admitted, nor does any commentary on this rule.
In Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988), we recently addressed this issue. The appellant was convicted of second degree battery inflicted upon a six year old. The child/victim’s hearsay statements as to the origin of his injuries were allowed under A.R.E. Rule 803(25), and the child also testified at trial. The appellant argued that the hearsay statements should have been excluded at trial because they were cumulative and prejudicial. We said:
Our court has held that the mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion.
Therefore, in this case the trial judge did not abuse his discretion in admitting both the hearsay statements of the victim and the live testimony.
The appellant argues that when hearsay statements of children are admitted under A.R.E. Rule 803(25) the rule permits only “a statement made by a child . . . concerning any act or offense . . .” (Our emphasis). The appellant asserts that the testimony of Ms. Helen White was not confined to the mere sexual act of fondling, but she was permitted to relate statements by the child as to how she felt the next day and how she described the incident to her mother. We find little of consequence in this testimony, certainly nothing that warrants reversal. Veronica said the incident made her “uncomfortable” and that she told her mother she had a stomach ache, not from anything she had eaten, but from something that had been done to her. Assuming, without deciding, that Rule 803(25) is as narrow as appellant contends, there is nothing in this proof that could be regarded as substantially affecting the rights of the appellant. A.R.E. Rule 103.
The dissenting opinion asserts that the majority “evades the question of the constitutionality of A.R.E. Rule 803(25)(A).” There are clear and cogent reasons. The argument was not raised in the trial court, nor was it argued on appeal. Either omission, according to literally hundreds of our cases, many of which are authored by the dissenting justice, obviates our dealing with issues that are not presented. If we undertook to answer arguments that were raised neither here nor in the trial court, the process of appellate review would doubtless collapse under its own weight. New principles of appeal and error are more widely followed or firmly entrenched than the rule that we do not address arguments not raised by the litigants.
The dissent discusses at some length the confrontation clause of the United States Constitution and is mystified by our failure to discuss Coy v. Iowa, _ U.S. __ (June 29, 1988). The same answer prevails. Beyond that, Veronica Thacker gave her testimony regarding the sexual abuse she had experienced at the hands of the appellant in open court while directly confronting the appellant. Just how the confrontation clause was breached in this case is not explained in the dissenting opinion.
AFFIRMED.
Newbern, J., concurs.
Purtle, J., dissents. | [
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PER CURIAM
Now on this day, the above styled cause comes on for hearing and is considered by the court on the pleading filed by respondent, Guy Hamilton Jones, Sr., on July 30, 1973, and the Reply filed to such pleading by the Supreme Court Committee on Professional Conduct on September 9, 1973.
Respondent, in his Response, avers that there are unique, extenuating and mitigating facts and circumstances that would bear on whether petitioner’s petition should be granted, and that he should be given the opportunity to present evidence to establish such circumstances.
After due consideration of the pleadings filed by both petitioner and respondent, it is the opinion of the court that the request of respondent should be granted, limited, however, as hereinafter set out. Under Paragraph 11, in Sub-sections A, C, and D, respondent mentions matters which relate only to the charges against him, and his conviction in the United States District Court for the District of Arkansas (Eastern District, Western Division), and these allegations, referring only to matters that have already been adjudicated and disposed of, are not considered proper subjects for further testimony. In other words, it is not the intent of this order to permit any evidence relating to the issues there concluded.
Respondent may offer evidence under Sub-sections B, E, F, G, H, I, and J, which might be deemed pertinent to the issue of mitigation.
It is, therefore, the order of this court that respondent, Guy Hamilton Jones, Sr., be permitted to offer evidence on the matters set out under the sub-sections hereto fore mentioned, but he is not permitted ot offer any evidence under Sub-sections A, C, and D.
For the purpose of conducting such a hearing, W. D. Murphy, an Attorney of Batesville, is hereby named as Master of this court and said Master is authorized and directed to take testimony offered by respondent, and to take testimony offered in opposition thereto by The Supreme Court Committee on Professional Conduct in an open and public hearing, each side to be represented by counsel who shall have the full right to examine and cross-examine as in any trial in a court of law or equity. Said hearing shall be conducted in a location or locations convenient to the Master, shall be reported by a competent reporter selected by the Master, and shall be concluded not later than sixty days from the entry of this order. At the conclusion of the hearing, said reporter shall transcribe the testimony and a record of same shall be filed with this court by the Master.
Thereafter, briefs shall be filed in accordance with Rules 7 and 9 of this court, respondent Guy Hamilton Jones, Sr., filing in accordance with Sub-section (a) of Rule 7, petitioner, The Supreme Court Committee on Professional Conduct, filing in accordance with (b), and respondent being permitted to file reply brief in accord with Sub-section (c).
Costs will be adjudged as in chancery court.
It is so ordered.
Justice Byrd would permit a proffer of what respondent wished to show under Sub-sections A, C, and D of Paragraph 11. | [
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David Newbern, Justice.
This case presents the question whether an appeal of an order denying a motion to dismiss for lack of a speedy trial may be taken from a municipal court to a circuit court as an interlocutory appeal. We hold that it may not.
The appellate authority of the circuit court with respect to appeals from municipal courts is to try the case appealed de novo. Ark. Code Ann. § 16-19-1105 (1987) [formerly Ark. Stat. Ann. § 26-1308]. While the statute speaks to appeals from decisions of justices of the peace, it applies to appeals from municipal court misdemeanor convictions. See Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975).
The circuit court remanded this case to the municipal court on the ground that the municipal court had not entered an appealable order. The appellant has attempted to appeal to this court the circuit court’s remand order. The record shows that no trial has occurred in the municipal court, no judgment has been entered, and thus there is nothing for the circuit court to try de novo. While the circuit court might have treated the attempted appeal as a request for a writ of prohibition, we know of no law requiring him to do so. The circuit court was correct.
Appeal dismissed. | [
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Darrell Hickman, Justice.
John Russell Lee was convicted of manufacturing a controlled substance and sentenced to 40 years imprisonment and a $75,000 fine.
Lee, a former Drew County resident, returned to Arkansas after living in California. He and his stepson, Allan Pavatt, spent the night of July 2, 1986 alone at Lee’s sister’s house in Collins, Arkansas. The state proved to the jury’s satisfaction that the men set up a laboratory in the bathroom of the house to manufacture methamphetamine. Evidently, a toxic glue was employed to repair a flask used in the manufacturing process. As the laboratory operated, poisonous fumes spread throughout the house. The fumes killed a cat and a gerbil. Lee and Pavatt were both hospitalized, and Pavatt died.
While investigating the cause of Pavatt’s death, the sheriff’s office searched the residence and discovered the laboratory. Several other items related to the manufacture of the drug were also found and confiscated. Lee was charged with manufacturing a controlled substance.
Lee makes six arguments on appeal, all of which we find meritless.
Two errors are alleged regarding the prosecutor’s closing argument: a comment on an item not in evidence and a comment on the appellant’s failure to testify. The appellant did not abstract the closing argument of the prosecuting attorney or the court’s rulings but only set them out in the argument section of his brief. See generally Blount v. Hughes, 292 Ark. 166, 728 S.W.2d 519 (1987).
We find the appellant’s failure to include the closing argument in his abstract of the record leaves us unable to deal with these issues. It is fundamental that the record on appeal is confined to that which is abstracted. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987); Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982). We held in Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986) that the appellant’s failure to abstract an opening statement precluded our consideration of any improper comments in the statement.
One of the arguments is meritless for another reason. The alleged comment on an item not in evidence involved a flask which the state contended had been transported by rental truck from California. The flask was introduced in evidence in a box with newspaper on the bottom. It was not clear whether the exhibit consisted of the flask alone, or of the newspaper and box as well.
In closing argument, the prosecutor referred to a statement by the appellant that he had been in California on a certain date. He then referred to the date on the newspaper to show the appellant was “still out in California on the date that that newspaper was printed, and we contend, was used to package. . . the items there.” The appellant objected saying the newspaper was never offered into evidence. But earlier in the closing argument, the prosecutor said the following:
There is something else that you should take into consideration. . . . You’ll notice that these flasks are packaged in boxes and that there’s newspaper in the bottom of the boxes. . . . The.newspaper is the . . . Los Angeles Times dated June 23, 1986, some ten days prior to the death of Allan Pavatt. We know that circumstantially we can show that that stuff came on that rental truck.
The appellant did not object to this earlier reference to the newspaper. An objection must be timely. Munnerlyn v. State, 293 Ark. 209, 736 S.W.2d 282 (1987). Here, the allegedly improper reference was already before the jury without objection.
It is argued that the trial judge should have allowed a defense character witness to explain what he knew about a conviction Lee had for theft. The appellant’s brother, Frankie Lee, testified Lee had a good reputation for truth and veracity. On cross-examination, he conceded he knew of a conviction for theft against Lee in Chicot County but said his opinion of Lee was unchanged because Lee was innocent of the charge. On redirect, the defense attempted to elicit more information about the conviction. The trial judge would not allow further discussion.
This is testimony by a character: witness.ifbF-thfc accused, governed by A.R.E. Rules 404 and 405. Should the trial judge have allowed the defense to explore further what the character witness knew? It was a discretionary decision by the judge. In Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982), we dealt with a defendant who wanted to explain tfab Circumstances of a prior conviction. We made this statement:
When a witness, as here, admits a previous conviction, he is not absolutely precluded from offering an explanation of the offense unless it tends to retry the case and demonstrate innocence. Again, this is an issue of relevancy, and the trial court is permitted a wide range of discretion. . . .
Although that case concerned a witness who was trying to explain his own conviction, the same standard should apply in this case. The issue is still one of relevancy. The witness said his brother was innocent. The trial court had the discretion to prevent a digression to retry that case.
Near the end of its case, the state moved to amend the information to allege that Lee acted “in complicity with Allan Pavatt.” The trial judge eventually granted the motion and instructed the jury on accomplice liability over the appellant’s objection. Again, we are hampered in our review because the information, jury instructions and some pertinent discussions by the court are not abstracted.
An information may be amended during trial if the nature or degree of the crime is not changed and if the defendant is not prejudiced through surprise. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982); Prokos v. State, 266 Ark. 50, 282 S.W.2d 36 (1979). There is no distinction between the criminal responsibility of an accomplice and a principal. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). So the nature or degree of the crime did not change.
The trial judge found the appellant was not prejudiced by the amendment, and we agree. We dealt with a similar situation in Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). The state asked for an accomplice liability instruction even though the appellant had not been charged as an accomplice. The appellant claimed surprise. We said that an allegation in the information that the accessory himself committed the crime is sufficient even though he only aided and abetted the offense. We also stated that, since there is no distinction between principal and accomplice liability, the appellant was not unfairly surprised.
There was sufficient evidence to warrant giving AMCI 401 on accomplice liability. Strong circumstantial evidence supported Lee’s complicity, if not his guilt as a principal. Lee and Pavatt were the only occupants of the house. The state proved Lee bought locks and other hardware used to set up and conceal the laboratory. Pavatt’s wife testified she saw Lee repairing a glass object that could have been used in the manufacturing process.
The appellant asked for a directed verdict on two grounds: the state had not proved the weight of the controlled substance and, since the substance was not in its final form and fit to be sold, there was only an attempt to manufacture. A directed verdict is a challenge to the sufficiency of the evidence. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).
The state used a crime laboratory analyst, Gary Sullivan, to prove the weight of the substance. The witness took a portion of the substance from a flask which he had confiscated at the scene, weighed it, then used it to determine the total weight in the flask, which he estimated was 38 pounds. The weight of the pure drug, not including by-products, was then calculated to be 660 grams. Similar testimony of samples has been approved. See Mullins v. State, 277 Ark. 93, 639 S.W.2d 514 (1982); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974).
The witness also testified that the substance in the flask could be identified as methamphetamine but “it was not down to the actual powdered out product, which is sold on the streets.” The substance does not have to be in a form to be sold before a “manufacture” occurs. The Controlled Substances Act defines manufacture as “the production, preparation, propagation, compounding, conversion, or processing of a controlled sub stance. . . .” Ark. Code Ann. § 5-64-101 (m) (1987). There is ample evidence that preparation and processing of the drug took place.
Affirmed.
Purtle, J., dissents.
The appellant claims the trial judge never granted the motion to amend the information. At first, the court took the motion under advisement, then denied it. But after further discussion, the court found that “amending the information will not subject the defendant to even the remote possibility of any greater punishment. ... It does not change the nature of the offense nor the manner in which the alleged offense was committed. I’m satisfied on those points. . . .” | [
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Humphreys, J.
This suit was instituted in the chancery court of Phillips County by appellant against appellee to recover twelve hundred dollars, the alleged value of a certificate olf insurance against total disability on account of ill health, issued by appellant to appellee on the 30th day of March, 1907, upon the alleged ground that said certificate of insurance was fraudulently canceled and declared void by appellee on December 12,1924.
Appellee filed an answer admitting the issuance of the certificate of insurance but interposing as defenses to the suit res judicata and fraud on the part of appellant in securing a reinstatement of said certificate in 1918 after forfeiture thereof for failure to pay monthly dues thereon.
The cause was submitted to the court upon the pleadings and testimony which resulted in a finding of the law and facts against appellant and a dismissal of his complaint for the want of equity, from which is this appeal.
The record reflects that on April 2, 1925, appellant brought suit against appellee in the circuit court of said county to recover $1,800 on the certificate of insurance for his total disability on account of ill health. Appellee filed an answer in that case setting up, among other defenses, that on December 12, 1924, it had canceled the certificate olf insurance and declared same void because in obtaining a reinstatement of. the certificate which had been forfeited in 1918 for failure to pay monthly dues thereon, appellant had obtained same upon false and fraudulent warranties concerning his health. After the pleadings had been made up in that case appellant, on his own motion, took a nonsuit with prejudice.
Appellant contends for a reversal of the decree upon the alleged ground that the trial court erroneously sustained appellee’s plea of res judicata, arguing that the plea was not applicable or appropriate for the reason that a totally different cause of action was set out in appellant’s complaint in the chancery court from that which was alleged and set out in the complaint in which he took a nonsuit with prejudice. The main issue joined in the instant case was whether it properly canceled the certificate of insurance on the 12th day of December, 1924, or whether it did so arbitrarily and without cause. This was the identical issue tendered by appellee in its answer to the suit which appellant brought in the circuit court of said county, and which was dismissed at his request with prejudice. It is true that an issue was tendered by appellant in his circuit court suit as to whether his disability was total and permanent under the terms of the certificate of insurance when read in connection with the constitution and by-laws of appellee, but it also involved the issue as to whether the certificate of insurance had been rightfully canceled which was the main issue involved in the instant suit. It was ruled by this court in the case of Robertson v. Evans, 180 Ark. 420, 21 S. W. (2d) 610, that:
“The test in determining- the plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit.”
It was also ruled by this court in the case of Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S. W. (2d) 327, that:
“The dismissal of a suit with prejudice is as conclusive of the rights of the parties as ilf the suit had been prosecuted to a final adjudication adverse to the plaintiff.”
We think the trial court correctly sustained appellee’s plea of res judicata.
In view of the fact that the plea of res judicata was correctly sustained, it becomes unnecessary to set out in this opinion the testimony relating to the defense of fraud in procuring the reinstatement of the certificate of insurance in 1918 after same had been forfeited for the nonpayment of monthly dues, or to determine that question.
No error appearing, the decree is affirmed. | [
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RITA W. GRUBER, Judge.
|,Appellant Larry Fenstermacher’s parental rights to his three daughters were terminated by order filed May 31, 2012, in Crawford County Circuit Court. He contends on appeal that there was insufficient evidence to support the court’s finding of grounds for termination. Although we agree that there is insufficient evidence to support the statutory ground stated in the court’s order, the court’s decision terminating appellant’s parental rights was not clearly erroneous under an alternate ground alleged in the termination petition, Therefore, we affirm,
^ Pac^s & Procedural History
The case began on August 25, 2010, when the Arkansas Department of Human ^Services (DHS) removed appellant’s three children — H.F., born July 23, 2003; S.F., born January 1, 2004; and N.F., born March 29, 2006 — from their mother’s custody. Appellant did not live with the children and their mother. The removal occurred after the Van Burén Police Department investigated a call that a three-year-old child was playing in a busy street alone. When the police arrived and attempted to ensure the child’s safety, they discovered that the child’s home contained open wiring, falling ceilings, clothing on the floor, dirty diapers, trash strewn throughout the home, and dirty dishes and rotting food on the counters. The police called DHS, which took appellant’s three children and four more of Ms. Huddle-ston-Clifton’s children into custody. The DHS worker noticed that there was little food in the house, that there were roaches in the kitchen, and that the children were extremely dirty and unkempt. Ms. Hud-dleston-Clifton tested positive for marijuana and admitted to its use.
The court entered an order for emergency custody on August 30, 2010, and found that probable cause to support removal existed in its probable-cause order entered on September 2, 2010. The court adjudicated the children dependent-neglected on September 30, 2010, and or dered that custody should be continued with DHS, stating the goal of reunification. In a review order entered on May 26, 2011, the court ordered appellant to
Attend and complete parenting classes; Submit to a drug and alcohol assessment and follow all recommendations;
Submit to random drug screens;
Obtain and maintain stable and gainful employment;
Participate in individual counseling as recommended by counselor or therapist; Participate in family counseling as recommended by counselor or therapist; and Comply with the case plan.
_jjThe court also found that DHS had made reasonable efforts to provide family services to achieve the goal of reunification. In a permanency-planning order entered on August 4, 2011, the court changed the goal to termination/adoption with respect to the children’s mother but stated that “the motion to change the goal to adoption as to ■ the fathers shall be taken under advisement at this time.” The court terminated Ms. Huddleston-Clifton’s parental rights in January 2012.
On March 5, 2012, DHS filed a petition to terminate appellant’s parental rights, alleging two statutory grounds: (1) the children had been adjudicated dependent-neglected and had continued to be out of the parent’s custody for twelve months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied; and (2) other factors arose subsequent to the filing of the original petition that demonstrate that return of the children to the parent’s custody is contrary to their 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 factors or rehabilitate the circumstances that prevent return of the children to his custody. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i), (vii) (Supp.2011).
II. Termination Hearing
At the termination hearing, Debbie Williams, the DHS family-service worker on this case, testified that the three girls had been in therapeutic care and were doing well. She said that H.F. had a diagnosis of “post-traumatic-stress syndrome, ADHD, neglect of a child, parent/child relationships”; N.F. had “anxiety disorder, attention deficit, pareni/child | Relationships and neglect of a child”; and S.F. had “adjustment disorder with mixed disturbance of emotions and conduct, neglect of a child, sexual abuse, alleged sexual abuse of a child victim and ADHD.” She opined that it was in the children’s best interest for appellant’s parental rights to be terminated.
Ms. Williams testified that, although appellant completed parenting classes and attended visitation with the children that was offered before he left Arkansas, it would be detrimental to the children to be placed in his custody. She said that he did not submit to a drug and alcohol assessment and that the one time he was drug tested, which occurred after he claimed that he had attended drug and alcohol treatment, he tested positive for marijuana. She testified that she attempted to get records from Ozark Guidance and Counseling, where appellant claimed to have been treated, but was unable to obtain any records. She also testified that appellant had continually moved around. Testimony at the hearing indicated that, since the case began, appellant had lived in Springdale, Arkansas; Battiest, Oklahoma; Van Burén, Arkansas; and four places in North Carolina. At the time of the termination hearing, he and his wife were living with his wife’s two teenage children in a three-bedroom, one-bath trailer in North Carolina. According to Ms. Williams, she had initiated an ICPC home study and had been told by the worker from North Carolina that it had been denied, although she had not received the report at the time of the termination hearing. Ms. Williams also testified that appellant’s wife had a “true finding in the State of Arkansas for allowing a child to have marijuana.” Finally, she testified that the children were adoptable.
| ¡Appellant testified that he had attended counseling at Ozark Guidance and Counseling when he lived in Springdale, Arkansas, including counseling for drug and alcohol abuse. He testified that he had a diagnosis of paranoid schizophrenia, which was diagnosed when he was a child, and that some of the counseling was also for this condition. He said that his paranoid schizophrenia was under control with medication at the time of the hearing. He testified that he did recall someone doing a home study, but he did not know why it would have been denied. He also said that he was not sure what were the medical diagnoses of H.F., S.F., and N.F.
Finally, appellant’s wife, Janet, testified that she had been married to appellant for four years. She testified that she was under a doctor’s care for degenerative disc disorder and had applied for social-security disability. With regard to appellant’s drug use, she testified that “her understanding” was that Ozark Guidance and Counseling had addressed drug and alcohol issues in his counseling for schizophrenia when they lived in Springdale. She said that, although appellant had used marijuana once a day until the last two months, he no longer needed it because his medication for schizophrenia had been changed. Finally, she said that she did not know the medical diagnoses of the girls, but she did know that they needed some counseling and medical treatment. And she testified that she would be able to transport the girls to appointments and other places because she had a driver’s license and she could get them wherever they needed to go.
III. Court’s Order
At the conclusion of the hearing, the court found by clear and convincing evidence |fithat the children had been adjudicated dependent-neglected and had been out of the parents’ custody for twelve months despite a meaningful effort by DHS to rehabilitate the parents and correct the conditions that caused removal. The court specifically found that appellant had failed to provide adequate and stable housing, did not have a driver’s license, had failed to complete drug and alcohol screening and treatment as ordered, and was unable to care for and provide for the special needs of his minor children. The court also found that it was in the best interest of the children to terminate parental rights and stated that it had specifically considered the likelihood that the children would be adopted and the potential harm to the children’s health and safety that would be caused by returning them to their parents’ custody. The court found that the parents had not complied with the case plan and had not remedied their conditions to allow the children to safely be placed in their custody.
IV. Standard of Review /Relevant Law
Termination-of-parental-rights cases are reviewed de novo. Hune v. Ark. Dep’t of Human Servs., 2010 Ark. App. 543, at 2, 2010 WL 2612681. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be estab lished. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, at 2, 2010 WL 2522197. 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, 248, 947 S.W.2d 761, 763 (1997). 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 |7mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 352, 201 S.W.3d 391, 399 (2005). Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 331, 255 S.W.3d 505, 507 (2007).
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark.Code Ann. § 9-27-341(b)(3)(A)®, (ii) (Supp.2011). Additionally, the trial court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark.Code Ann. § 9-27-341(b)(3)(B). However, proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, at 7, 374 S.W.3d 205, 209.
V. Discussion
Appellant does not contest the trial court’s finding that termination was in the children’s best interest, but argues that there was insufficient evidence to support the statutory ground that the trial court relied upon to terminate his parental rights — that is, that the | ^children had been adjudicated dependent-neglected and had continued to be out of the parent’s custody for twelve months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied. He contends that this ground does not pertain to him because the children were in their mother’s custody when they were removed and thus he was not responsible for the conditions that caused their removal; accordingly, he could not have remedied those conditions. See, e.g., Lewis v. Ark. Dep’t of Human Servs., 2012 Ark. App. 154, at 4, 391 S.W.3d 695, 698; K.C. v. Ark. Dep’t of Human Servs., 2010 Ark. App. 353, at 12, 374 S.W.3d 884, 891.
Although appellant is correct that one of the statutory grounds alleged in the petition and relied upon by the trial court does not apply to him, DHS alleged two statutory grounds in its petition for termination: Arkansas Code Annotated sections 9-27-341(b)(3)(B)(i) and (vii). We hold that the second ground alleged by DHS— often referred to as the subsequent-factors ground — was proved. In our de novo review, we may affirm the trial court’s termination if other grounds that were alleged in the petition for termination were proved even when the trial court found a statutory ground that was not. Bradbury v. Ark. Dep’t of Human Servs., 2012 Ark. App. 680, at 5-6, 424 S.W.3d 896, 899-900, 2012 WL 5954169; Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, at 9, 384 S.W.3d 7, 12.
In this case, the termination petition alleged that other factors arose subsequent to the filing of the original petition demonstrating that return of the children to the parent’s custody is contrary to their health, safety, or welfare and that, despite the offer of appropriate family |9services, the parent has manifested the incapacity or indifference to remedy the subsequent factors or rehabilitate his circumstances that prevent return of the children to his custody. See Ark.Code Ann. § 9-27-341(b)(3)(B)(vii). The court specifically found in its order that appellant had failed to provide adequate and stable housing, did not have a driver’s license, had failed to complete drug and alcohol screening and treatment as ordered, and was unable to care for and provide for the special needs of his minor children. Further, Ms. Williams testified that the only time appellant submitted to a drug screen, he tested positive for marijuana, and appellant’s wife testified that appellant had used marijuana once a day until two months before the termination hearing. Finally, appellant had lived in four cities and at least seven homes from the time the children were taken into DHS custody, and Ms. Williams testified that the home study on appellant’s home in North Carolina had been denied. Our de novo review convinces us that, under Ark.Code Ann. § 9-27-341 (b) (3) (B) (vii), the trial court’s decision to terminate appellant’s parental rights was not clearly erroneous.
Affirmed.
HARRISON and WYNNE, JJ., agree.
. In an earlier order, the court terminated the parental rights of the children’s mother, Christien Huddleston-Clifton. In the order appealed here, the court also terminated the parental rights of the fathers of two of Ms. Huddleston-CIifton’s other children. Mr. Fenstermacher is the only party who has appealed from the order. | [
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PAUL E. DANIELSON, Justice.
| petitioner Karl Roberts moves this court to reopen the proceedings and to reinvest the circuit court with jurisdiction to hear his postconviction petition pursuant to Arkansas Rule of Criminal Procedure 37.5 (2012). While Roberts previously waived his right to seek post-conviction relief, he now seeks to rescind that waiver and asserts that a mandatory review should be extended to postcon-viction proceedings in death cases; his prior waiver was invalid and involuntary; and a rejection of his attempt to rescind his waiver would violate “the solid footing doctrine.” We grant Roberts’s motion.
In May 2000, Roberts was convicted of capital murder and sentenced to the death penalty for the murder of twelve-year-old Andria Brewer. Following his conviction, Roberts filed a waiver of his right to appeal and postconviction review. A hearing was held on 12Roberts’s waiver on July 19, 2000, and the circuit court found that Roberts had the capacity to knowingly and intelligently waive his appeal rights. We conducted an automatic review of the entire record pursuant to State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999), and we affirmed Roberts’s waiver of his right to appeal, as well as his conviction and sentence. See Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003).
On May 20, 2003, the circuit court held a hearing pursuant to Ark. R.Crim. P. 37.5. At the hearing, Roberts appeared pro se and waived his right to seek postconviction relief. The circuit court concluded that Roberts had the capacity and was clearly competent to knowingly and intelligently do so, and it found so in its order. The State moved this court to review the record of Roberts’s waiver hearing, and this court granted the motion, affirming the circuit court’s findings. See State v. Roberts, 354 Ark. 399, 123 S.W.3d 881 (2003) (per curiam).
On January 6, 2004, Roberts moved for a stay of execution in the United States District Court for the Eastern District of Arkansas, which was granted. Roberts then filed, on July 16, 2004, a petition for writ of habeas corpus with the federal district court. However, in 2007, the federal district court stayed Roberts’s case and held it in abeyance, directing Roberts to seek relief in the state courts regarding all unexhausted claims, by February 1, 2008. See Roberts v. Norris, 526 F.Supp.2d 926 (E.D.Ark.2007).
On February 1, 2008, Roberts filed in the circuit court a petition for postconviction relief, which the circuit court denied without an evidentiary hearing. Roberts appealed from lathe circuit court’s order, and we dismissed the appeal without prejudice for lack of jurisdiction, holding that “where the ninety-day filing period under Rule 37.5(e) has expired and a waiver of postconviction relief has been affirmed by this court, a petitioner must file the appropriate motion to reopen postconviction proceedings before a Rule 37 petition can be brought in circuit court.” Roberts v. State, 2011 Ark. 502, at 9, 385 S.W.3d 792, 794. Roberts then filed on January 3, 2012, the instant motion to reopen the proceedings and to reinvest the circuit court with jurisdiction. We directed that the motion be submitted as a case, and a briefing schedule was established.
Roberts asserts several bases on which this court should reopen his postcon-viction proceedings and reinvest jurisdiction in the circuit court. Roberts first contends that this court should permit him to simply rescind his prior waiver, claiming that this court twice permitted previous appellants to pursue postconviction relief after a waiver of postconvietion review. He further contends, alternatively, that if the rescission of his waiver is insufficient to grant reopening, this court should grant his motion and establish a mandatory post-conviction proceeding and review for death-penalty defendants who waive their postconviction rights. Roberts also argues that his motion should be granted because his waiver of his postconviction rights was invalid. Finally, he claims that, because acceptance of his prior waiver violates what he deems “the solid footing doctrine,” this court should grant his motion to reopen the proceedings.
The State counters that Roberts’s attempt to rescind his waiver is untimely, averring that Roberts’s time in which to file a petition pursuant to Rule 37.5 has long since expired. |4It urges that Roberts’s case is distinguishable from other cases in which we have permitted the rescission of a waiver of postconviction rights, contending that a petitioner’s belated change of heart is not a sufficient ground on which to frustrate the finality of judgment. The State further rejects Roberts’s efforts to persuade this court to adopt and engage in mandatory postcon-viction review. The State maintains that the record supports a finding that Roberts’s waiver of postconviction relief was valid, in light of the full and fair hearings before the circuit court. Finally, the State contends, acceptance of Roberts’s waiver in no way violates what Roberts terms “the solid footing doctrine.” For these reasons, the State claims, Roberts’s motion to reopen the proceedings should be denied.
Roberts first avers that this court should grant his motion to reopen based simply on the fact that he has now rescinded his prior waiver of his postconviction rights. He points to this court’s decisions in the Greene and Robbins cases, claiming that in both instances, we allowed Greene and Robbins to rescind their previously affirmed waivers of postconviction review. Roberts’s reliance on these two lines of cases is misplaced, however, as both cases differ procedurally from Roberts’s.
In Greene’s case, this court did affirm the circuit court’s findings of his competency to waive his appellate and postconviction rights, which he waived on July 2, 1999. See State v. Greene, 338 Ark. 806, 1 S.W.3d 442 (1999) (per curiam). However, prior to that decision, we had vacated Greene’s sentence and remanded his case for resentencing. See Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). In his appeal from that resentencing, wherein we affirmed his sentence of death, it was noted in our supplemental opinion on denial of |firehearing that Greene had rescinded his waiver on December 2, 1999, which was after our affirmation of the waiver but prior to our hearing his appeal from resen-tencing. See Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001). Once Greene’s sentence of death was affirmed, he was permitted to seek postconviction relief, as set forth in Ark. R.Crim. P. 37.5(b) (2001). Thus, while Greene had rescinded his waiver, his postconviction petition, more importantly, was timely.
The same holds true in the Robbins line of cases. There, we granted, by formal order of January 14, 1999, the State’s motion for review seeking affirmation of Robbins’s waiver of postconviction relief. Upon the State’s motion for clarification of that order, we held that “[w]hen we granted the State’s motion for review ..., we implicitly upheld the trial court’s finding that Mr. Robbins knowingly and intelligently waived his right to appointment of an attorney under Rule 37.5.” State v. Robbins, 336 Ark. 377, 378, 985 S.W.2d 296, 297 (1999) (per curiam). We later recalled the mandate of January 14, 1999, on the motion of Robbins’s mother, who filed a next-friend petition seeking mandatory review of all death-penalty cases. See State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999) (per curiam). Following our automatic review of Robbins’s conviction and sentence, which were affirmed in State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000), Robbins petitioned this court to reopen his case, and we granted his motion for the reasons set forth in Robbins v. State, 353 Ark. 556, 114 6S.W.3d 217 (2003), and ordered the record supplemented. We subsequently affirmed Robbins’s death sentence. See Robbins v. State, 356 Ark. 225, 149 S.W.3d 871 (2004). Following our affirmance, Robbins filed a motion for clarification concerning his postconviction rights, and we granted the motion by letter order of April 8, 2004, stating that Robbins was “permitted to pursue post-conviction relief under Ark. R.Crim. P. 37.5.” Again, as was the case in Greene, Robbins’s previous waiver of postconviction relief was set aside by virtue of our recall of the affirmation-of-waiver mandate, but in addition, a postconviction petition was permitted under our rules following our affirmation of Robbins’s sentence. See Ark. R.Crim. P. 37.5(b) (2004).
In contrast, Roberts’s conviction and sentence were affirmed by this court in Roberts, 352 Ark. 489, 102 S.W.3d 482, wherein we also affirmed the circuit court’s finding that Roberts knowingly and intelligently waived his rights of appeal. In accordance with Ark. R.Crim. P. 37.5(b) (2003), the circuit court held a hearing, at which it found that Roberts waived his postconviction rights. See Roberts, 354 Ark. 399, 123 S.W.3d 881. This court then granted the State’s motion to review the proceedings and affirmed the circuit court’s findings. See id. While Roberts filed a petition for postconviction relief in the circuit court in 2008, which was denied, we dismissed his appeal from that denial without prejudice, holding that he was required to first file a petition to reopen his case with this court. See Roberts, 2011 Ark. 502, 385 S.W.3d 792. It is only now that Roberts attempts to rescind his waiver, and he claims that his waiver alone should serve as the basis for reopening his case. But it was not the mere rescission of waiver that permitted Greene and Robbins to file 17postconviction petitions, it was also the fact that in both of those cases, the parties were proeedurally permitted to file for postconviction relief under our rules. It is on this basis that Roberts’s case is distinguished from those of Greene and Robbins, and we hold that his rescission of waiver is not, by itself, a basis on which to reopen his case.
Because we reject Roberts’s notion that his rescission of waiver alone is a sufficient basis on which to grant his petition to reopen, the question thus becomes, what showing is required of Roberts for this court to grant his motion to reopen the proceedings. We have equated recalling a mandate to reopening a case. See Robbins, 353 Ark. 556, 114 S.W.3d 217. To establish the extraordinary circumstances that would warrant the recall of a mandate or the reopening of a case, we have recognized and enumerated certain factors to be considered, namely: (1) the presence of a defect in the appellate process, (2) a dismissal of proceedings in federal court because of unexhausted state-court claims, and (3) the appeal is a death case that requires heightened scrutiny. See id.; Wooten v. State, 2010 Ark. 467, 370 S.W.3d 475; Kemp v. State, 2009 Ark. 631, 2009 WL 4876473. We have further observed that we do not recall a mandate so that a petitioner whose initial postcon-viction proceedings were proeedurally sound may file a subsequent petition for relief; rather, the mandate is recalled in extraordinary cases, so that a petitioner whose first postconviction proceedings were proeedurally flawed may file a new petition and receive the procedural safeguards of Rule 37.5. See Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
It is clear that Roberts’s case meets two of the three factors established by this court for reopening a case. First, Roberts was sentenced to death, so his case is one requiring | ^heightened scrutiny. See, e.g., Williams v. State, 2011 Ark. 534, 2011 WL 6275536. Second, Roberts’s federal habe-as petition was stayed and held in abeyance by the federal district court in 2007 so that Roberts could seek relief in state court regarding any unexhausted claims, as permitted by Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). See Roberts, 526 F.Supp.2d 926. Such action by a federal court has been previously recognized by this court as fulfilling the second requirement. See Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006).
We turn then to whether Roberts has satisfied the criteria of demonstrating a defect in the appellate process. Roberts claims that because no relevant or contemporaneous mental evaluation was conduct ed at the time of his waiver of postconviction relief, his waiver was invalid. He asserts that a timely mental evaluation, for the specific purpose of assessing a death-row inmate’s competency to waive postcon-viction review, must be conducted before such a waiver.
In our state, a defendant sentenced to death will be able to forego a state appeal only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence. See Franz v. State, 296 Ark. 181, 754 S.W.2d 889 (1988), overruled on other grounds by State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). This same standard governs the waiver of rights to postconviction remedies following the affirmance of a death sentence. See Willett9 v. State, 337 Ark. 457, 989 S.W.2d 508 (1999) (per curiam). Furthermore, we have held that it is error to allow a waiver of postconviction relief without a competency examination to determine whether the defendant had the capacity to choose between life and death and to knowingly and intelligently waive all rights to post-conviction review of the death sentence. See id.
We have also recognized the necessity of a recent mental-health evaluation for defendants who wish to waive their appeal or postconviction rights. In State v. Newman, 355 Ark. 265, 132 S.W.3d 759 (2003) (per curiam), this court was presented with the State’s petition to review the record of Newman’s waiver-of-postconviction-relief hearing and to affirm the circuit court’s order, which found that Newman had knowingly, intelligently, and voluntarily waived his rights to postconviction relief. We noted the record’s reflection that Newman was under the influence of certain medication at the time of the hearing, and we remanded the matter to the circuit court for the purpose of obtaining a mental-health evaluation of Newman. We further observed that, while the record reflected an evaluation of Newman prior to his trial and that he was found competent to stand trial in June 2002, “[bjecause that evaluation is so remote in time from the waiver hearing, which occurred over one year later, we believe that a second evaluation is warranted.” Id. at 267, 132 S.W.3d at 760. Accordingly, we directed the circuit court to order the Arkansas State Hospital to conduct an evaluation of Newman for the purpose of determining his competence to proceed under Rule 37.5 and noted that once the evaluation was filed, a new hearing should be had|inand a new order entered. See id.
This court reviewed Roberts’s waiver of postconviction relief in Roberts, 354 Ark. 399, 123 S.W.3d 881. There, we noted our affirmance of Roberts’s conviction and sentence in Roberts, 352 Ark. 489, 102 S.W.3d 482, and that a hearing was subsequently had by the circuit court on May 20, 2003, pursuant to Ark. R.Crim. P. 37.5. We further observed that the circuit court, prior to finding that Roberts’s waiver of post-conviction relief was knowing and intelligent, reviewed the trial testimony of the following witnesses: “Charles Mallory, Ph. D., a staff psychologist with the Arkansas State Hospital; Reginald John Rutherford, M.D., a neurologist; Lee Archer, M.D., a staff member of the University of Arkansas for Medical Sciences; Mary M.C. Wetherby, Ph.D., a psychologist; and Danny Davis, former employer of Roberts.” Roberts, 354 Ark. at 400, 123 S.W.3d at 882. We noted that the circuit court had reviewed the transcript of other trial testimony relevant to Roberts’s competency, as well as the transcript of the posttrial hearing on July 19, 2000, at which Roberts waived his right of appeal. See id.
A review of Roberts’s record reveals, however, that the trial testimony of these individuals was based on evaluations completed years prior to the 2003 hearing at which Roberts waived his postconviction rights. Dr. Archer, a neurologist with the University of | nArkansas for Medical Sciences, testified that he met with Roberts on February 10, 2000, and Dr. Wetherby, a neuropsychologist, testified that she performed a neuropsychological evaluation of Roberts on September 10, 1999. Dr. Rutherford, a clinical neurologist, testified that he did not examine Roberts, but reviewed Dr. Wetherby’s evaluation and the forensic evaluation by the Arkansas State Hospital. And Dr. Mallory, a staff psychologist with the Forensic Services Unit of the Arkansas State Hospital, testified that he examined Roberts between August 9 and 12, 1999. It is clear, therefore, that these examinations were so remote in time from Roberts’s waiver-of-postconvietion-rights hearing in 2003 that a second evaluation was warranted in accord with our case law. See, e.g., Newman, 355 Ark. 265, 132 S.W.3d 759; Greene v. State, 327 Ark. 511, 939 S.W.2d 834 (1997) (per curiam).
Furthermore, a more recent evaluation was warranted in light of the fact that the 1999 evaluation conducted by the Arkansas State Hospital examined Roberts for only fitness to proceed, criminal responsibility, criminal culpability, and diagnosis of mental disease or illness. We have been clear that the standard for competency to stand trial is not the equivalent of competency to elect execution. See Willett, 337 Ark. 457, 989 S.W.2d 508; Greene, 327 Ark. 511, 939 S.W.2d 834; Franz, 296 Ark. 181, 754 S.W.2d 839. And, as already set forth, our standard for determining whether a defendant has voluntarily and intelligently waived his postconviction rights requires a judicial determination that the defendant has the capacity to choose between life and death and to knowingly and intelligently waive all rights to postconviction review. See Willett, 337 Ark. 457, 989 S.W.2d 508. It is clear from the instant record that Roberts was never examined for the purpose of making that inquiry.
|1gWe therefore hold that an evaluation, more recent in time and for the purpose of inquiring whether Roberts had the capacity to choose between life and death and to knowingly and intelligently waive all rights to postconviction relief, prior to Roberts’s waiver of postconviction rights was necessary to adequately determine Roberts’s competency to elect execution and waive his right to postconviction remedies. That this court neglected to identify the lack of such an evaluation when it reviewed the record of Roberts’s waiver-of-postconviction-rights hearing certainly constitutes a breakdown in the appellate process that warrants reopening his postconviction proceedings. We have previously stated that, while there is no constitutional right to a postconviction proceeding, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Wooten, 2010 Ark. 467, 370 S.W.3d 475. Moreover, there is no question that the death penalty is a unique punishment that demands unique attention to procedural safeguards. See Robbins, 353 Ark. 556, 114 S.W.3d 217. Where we failed to ensure that Roberts was indeed competent to waive his rights to postconviction relief, such extraordinary circumstances require this court to reopen the proceedings. Accordingly, we grant Roberts’s motion to reopen postconviction proceedings and reinvest the circuit court with jurisdiction under Ark. R.Crim. P. 37.5(b). Because we grant Roberts’s petition on the foregoing grounds, we need not address his remaining arguments.
Motion to reopen proceedings and reinvest the circuit court with jurisdiction granted.
. Also decided this same day are Roberts's motion to recall the mandatory-review mandate and a petition to reinvest the circuit court with jurisdiction to consider a petition for writ of error coram nobis, which were submitted simultaneously with the instant petition. See Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
. The stay of execution was extended and later stayed indefinitely on July 23, 2004.
. While Robbins, 337 Ark. at 228, 987 S.W.2d at 709, states our recall of the "December 22, 1998 mandate,” both the docket in the matter and Robbins, 336 Ark. 377, 985 S.W.2d 296, make clear that the State’s motion for review was filed December 22, 1998, and that we granted the motion on January 14, 1999, issuing the mandate the same day.
. The exhibits filed with the instant motion to reopen reflect that the federal district court entered an order December 12, 2011, in which it ordered that its " 'stay and abey’ order entered on December 13, 2007 (filing 56), is unchanged and will remain in full force and effect.” See Roberts v. Norris, 526 F.Supp.2d 926 (E.D.Ark.2011) (order extending "stay and abey”).
. It is worth noting that our decision recognizing the lack of a recent evaluation in Newman was delivered less than two months after our decision affirming Roberts's waiver of postconviction relief.
. The State avers that it was the 2000 hearing at which Roberts waived both his appeal and his postconviction rights; however, our decision affirming his conviction and sentence affirmed solely the waiver of his appellate rights. Any waiver of his postconviction rights was to be made following our affir-mance of his sentence in accord with Ark. R.Crim. P. 37.5(b). | [
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MOTION FOR RULE ON CLERK
PER CURIAM.
liAppellant Clay Breeden, by and through his attorney, Randy Rainwater, has filed a motion for rule on clerk. On September 15, 2009, the circuit court entered a judgment and commitment order after accepting Breeden’s guilty plea to possession of a schedule II controlled substance and possession with intent to use drug paraphernalia to manufacture methamphetamine. Breeden was sentenced to seventy-two months’ supervised probation. On September 11, 2012, the circuit court entered an order revoking Breeden’s probation, sentencing Breeden to sixty months’ imprisonment. Breeden timely filed his notice of appeal on October 8, 2012. Pursuant to Arkansas Rule Appellate Procedure-Criminal 4(b) (2012), Bree-den’s record was due by January 7, 2013; however, the record was not tendered to this court’s clerk until January 8, 2013.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party |2or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed ■ with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
The motion that is now before this court states:
Randy Rainwater was ill and away from work starting before Christmas 2012 and in the hospital from January 4, 2013 to January 11, 2013. That during this time the other public defender, Shane Ethridge, was instructed to file a motion for rule on the clerk. That Mr. Eth-ridge did not file it. I, Randy Rainwater, was still ill and out of the office until February 9, 2013 when allowed to return to work by the physicians and just discovered that the appeal was not done.
For the reasons set forth by Mr. Rainwater, we hold that good cause to grant the motion has been shown. We, therefore, grant Breeden’s motion for rule on clerk.
Motion granted. | [
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PER CURIAM.
1 petitioner Dewayne Boykins tendered to this court a pro se petition for writ of mandamus, alleging that the respondent circuit judge had not acted in a timely manner on a pro se motion for extension of time to lodge a record on appeal and a motion to proceed in forma pauperis on appeal. Now before us is petitioner’s motion for rule on clerk seeking to file the mandamus petition without the certified record required to file such an action.
Rule 6-1 (a) of this court provides that in cases in which the jurisdiction of this court is in fact appellate, although in form original, such as petitions for writs of prohibition, certiorari, or mandamus, the pleadings with certified exhibits from the trial court are treated as the record. Ark. Sup. Ct. R. 6-1 (a) (2012); Wright v. Griffen, 2012 Ark. 313, 2012 WL 3363256 (per curiam); Barnett v. Tabor, 2010 Ark. 22, 2010 WL 135320 (per curiam); Davis v. Dennis, 2009 Ark. 474, 2009 WL 3162959 (per curiam); Dillard v. Keith, 336 Ark. 521, 986 S.W.2d 100 (1999) (per curiam). This court cannot assume jurisdiction of the mandamus petition tendered by petitioner without a certified record. See Wright, 2012 Ark. 313, 2012 WL 3363256. Accordingly,-the motion is denied.
Motion denied. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant 40 Retail Corporation (40 Retail) appeals the order entered by the Johnson County Circuit Court granting appellee City of Clarksville’s (Clarksville) amended motion for summary judgment. For reversal, 40 Retail contends that the circuit court erred in ruling that principles of waiver and estoppel preclude its challenges to the validity and constitutionality of Clarksville’s ordinance regulating sexually oriented businesses. We agree and reverse and remand.
The material facts of this case are not in dispute. 40 Retail is an Arkansas corporation that operates a business known as the “X-Mart Adult Superstore” (X-Mart) located on South Rogers Street in Clarksville. On January 25, 2006, three weeks after X-Mart opened its doors, the Clarksville City Council enacted Ordinance 06-534 establishing licensing requirements and regulations for sexually oriented businesses. Under 06-534, X-Mart is classified as an “Adult Bookstore or Adult Videostore,” defined as a “commercial ^establishment that, as one of its principal purposes, offers for sale or rental books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations that are characterized by their emphasis upon the display of ‘specified sexual activities’ or ‘specified anatomical areas.’” The ordinance requires licensure and the payment-of fees, and it provides penalties of up to one year in jail and a $1,000 fine for each violation. Ordinance 06-534 also restricts the location of sexually oriented businesses to Clarks-ville’s industrial districts and provides that such establishments must be 750 feet from other sexually oriented businesses, businesses licensed to sell alcohol, houses of worship, day-care centers, public or private elementary or secondary schools, public bars, and residences. It also contains signage restrictions.
Ordinance 06-534 made provision for nonconforming businesses already in existence at the time of its passage. In this regard, the ordinance provides,
Notwithstanding anything to the contrary in the City of Clarksville’s Code, a nonconforming sexually oriented business, lawfully existing in all respects under law prior to the effective date of this ordinance, may continue to operate for three (3) years following that date in order to make a reasonable recoupment of its investment in its current location. At the conclusion of said three (3) years, the use will no longer be recognized as a lawful nonconforming use, provided that a nonconforming sexually oriented business may apply for one or more six-month extensions of the original three-year period upon a showing of financial hardship. An application for an initial extension based upon financial hardship (“hardship exception”) shall be made at least sixty (60) days before the conclusion of the aforementioned three-year (3-yr.) period. If a hardship extension is granted, subsequent applications or hardship extensions shall be made at least sixty (60) days before the conclusion of the nonconforming sexually oriented business’s current extension period.
The ordinance required applications for hardship extensions to include evidence of purchase and improvement costs, income earned and lost, depreciation, and costs of relocation.
IsX-Mart operated for three years as a nonconforming sexually oriented business, and once the three-year grace period ended, it applied for and received a single six-month hardship extension. This hardship extension expired on July 17, 2009, and 40 Retail did not apply for another extension. Thereafter, on September 14, 2009, Clarksville filed this action to enjoin the continuing operation of the store. It alleged that 40 Retail’s operation of X-Mart should be restrained because the hardship extension had expired and because the store did not comply with the provisions of the ordinance. In response, 40 Retail filed an answer and a counterclaim, in which it sought both declaratory and injunctive relief. In the counterclaim, 40 Retail alleged that the ordinance was invalid because it was not enacted in accordance with various statutory notice procedures. It also claimed that the ordinance violated the Arkansas Civil Rights Act and asserted that the ordinance was unconstitutional, both on its face and as applied, under the Arkansas Constitution. Specifically, 40 Retail urged that Clarksville had not and could not produce any evidence concerning the existence of adverse secondary effects arising from the store’s operation and could not demonstrate a nexus between its constitutionally protected freedom of expression-and any alleged negative secondary effects. In this same vein, it also asserted that the data and studies utilized by Clarksville when considering passage of the ordinance were “shoddy.” Further, 40 Retail | ^argued that the ordinance was unconstitutional as applied to a “take-out” only retail business. It also contended that the ordinance was unconstitutional because it did not provide a sufficient number of sites within city limits where an adult business would have a reasonable opportunity to operate. On additional constitutional grounds, 40 Retail contested the ordinance’s provision requiring applicants to appear in person when applying for a license. 40 Retail also challenged as unconstitutional the signage provisions prohibiting the - use of “photographs, silhouettes, drawings, or pictorial representations.”
Clarksville followed its answer to the counterclaim with an amended motion for summary judgment. It argued that the undisputed facts showed that X-Mart was currently operating in violation of the ordinance; that the enactment of the ordinance was not defective; and that the ordinance did not infringe upon 40 Retail’s rights of free expression. In addition, Clarksville asserted that 40 Retail was es-topped from challenging the ordinance because it had acquiesced to its provisions for three years and because it had applied for and accepted a hardship license. The circuit court held a hearing on the amended motion for summary judgment on December 7, 2011, at which the parties argued their respective positions. After receiving a supplemental brief from Clarksville, the circuit court granted the amended motion for summary judgment by an order dated January 5, 2012. In its decision, the court did not address the merits of 40 Retail’s challenges to the validity and constitutionality of the ordinance. Instead, citing Arkansas State Highway Commission v. Hightower, 238 Ark. 569, 383 S.W.2d 279 (1964), the court found that the doctrines of waiver and estoppel prohibited 40 Retail from challenging the ordinance because it sought and was granted a hardship license |sand because it had received the benefit of the ordinance’s amortization period.
For reversal of the circuit court’s decision, 40 Retail argues that the court erred by ruling that principles of waiver and estoppel preclude its challenges to the validity and constitutionality of the ordinance. It contends that these principles do not apply when the law imposes a burden rather than confers a benefit and that a waiver does not occur by submitting to a mandatory law that includes penalties for noncompliance. 40 Retail also argues, that, because one does not have to apply for a license in order to bring a facial challenge, it follows that a litigant does not waive his or her constitutional rights by submitting a license application.. Further,,noting that it was operating in a lawful manner before the ordinance was enacted, it maintains that there can be no estoppel when an applicant receives what he was already entitled to receive. Finally, it contends that its acceptance of benefits under one provision does not waive its right to contest other provisions of the law. Clarks-ville responds that the circuit court’s ruling is well-grounded in the law and that its decision should be sustained.
Summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548. Ordinarily, upon reviewing a circuit court’s decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist. May v. Akers-Lang, 2012 Ark. 7, 386 S.W.3d 378. However, in a case such as this one, which does not involve the question of whether factual issues exist but rather the application of legal rules, we simply determine |fiwhether appellee was entitled to judgment as a matter of law. Schultz v. Butterball, LLC, 2012 Ark. 163, 402 S.W.3d 61.
We begin our analysis with the decision in Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947), where the Supreme Court applied the principle of constitutional estoppel to hold that shareholders of a savings and loan association were estopped from challenging the legislation under which the association was created. The Court commented that “[i]t is an elementary rule of constitutional law that one may not retain the benefits of the Act while attacking the constitutionality of one of its important conditions.” Fahey, 332 U.S. at 255, 67 S.Ct. 1552. The Court also wrote: “It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions.” Id. at 256, 67 S.Ct. 1552. As the Court would later observe in a similar situation, a litigant “must take the bitter with the sweet.” Arnett v. Kennedy, 416 U.S. 134, 154, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).
This principle is ingrained in our own case law. In Arkansas State Highway Commission v. Hightower, 238 Ark. 569, 383 S.W.2d 279 (1964), the case relied upon by the circuit court, at issue was the validity of a minute order issued by the Highway Department regulating the construction of driveways accessing state highways. Hightower had applied for and received a permit to construct a driveway. The permit contained a condition requiring the construction of four islands in completing the project. Hightower claimed that this requirement was discriminatory because it was hot made applicable to existing driveways. We rejected the discrimination argument, but we also noted that Hightower was estopped from ^challenging the minute order because he had accepted the benefit of the permit along with its burdens and was thus in no position to attack the validity of the minute order.
More recently, in Arkansas State Highway & Transportation Department v. Kidder, 326 Ark 595, 933 S.W.2d 794 (1996), the Kidder brothers challenged the provisions of the Highway Beautification Act that prohibited rotating signs. Although the Act contained a grandfather clause that would have been applicable to them, they made no attempt within the time period allowed to obtain a permit that would have permitted them to keep their rotating sign. Instead, once the grace period expired, the Kidders obtained a permit that expressly contained the restriction that the sign could not rotate. Citing Hightower, supra, we held that they were estopped from challenging the Act because they had applied for and obtained a permit that contained the restriction. We affirmed that “[i]t is settled that one cannot accept the benefits of a permit and then challenge the conditions of the permit.” Kidder, 326 Ark. at 602, 933 S.W.2d at 797. See also, e.g., Searcy Cnty. v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968) (holding that an unsuccessful candidate was'es-topped from challenging the constitutionality of a filing fee because he paid the fee voluntarily and did not contest the fee until after the election); Johnson v. Darnell, 220 Ark. 625, 249 S.W.2d 5 (1952) (holding that a municipal judge who lost reelection could not challenge the constitu tionality of a newly enacted statute under which the election was held because he accepted the benefits of. the statute in the form of increased salary and participated in the election); City of W. Helena v. Patrick, 185 Ark. 71, 46 S.W.2d 36 (1932) (holding that a police chief appointed to a one-year term set by city ordinance was estopped from challenging the ordinance on the ground that |sit conflicted with a statute providing for a two-year term of office because of his silence and acquiescence in leaving office and his allowing the appointment of his successor without protest).
Courts in other jurisdictions have also held that the acceptance of benefits under a statute precludes an attack on the statute. For example, in Hightower, supra, we relied on the decision in St. Louis Public Service Company v. City of St. Louis, 302 S.W.2d 875 (Mo.1957). There, a bus company had held a license for a long period of time and had paid an operating fee pursuant to an ordinance that had been in effect for over twenty-five years. ' The bus company challenged the law requiring the payment of the fee. After summarizing a number of cases applying estoppel in varying contexts, the Supreme Court of Missouri applied the rule that “[a] person who obtains a license under a law ... and seeks for a time to enjoy the benefits thereof, cannot afterwards when the license is sought to be revoked, question the constitutionality of the Act under which he obtained the license.” St. Louis, 302 S.W.2d at 880 (citing Cofman v. Ousterhous, 40 N.D. 390, 168 N.W. 826 (1918)). So, too, in American Bond & Mortgage Company v. United States, 52 F.2d 318 (7th Cir.1931), the Seventh Circuit applied estoppel to forestall a constitutional challenge to an act of Congress. In that case, the Federal Radio Commission filed suit to enjoin the continuing operation of a radio station that had remained in business after the Commission had refused to renew the station’s license. The radio station argued that the Commission’s action was unconstitutional as a taking without just compensation. The court said, “Having sought and secured a government permit or license with attendant benefits, appellants obviously cannot later assert rights which were ^surrendered in order to secure the permit.” American Bond, 52 F.2d at 321. See also Robertson v. Federal Election Comm’n, 45 F.3d 486 (D.C.Cir.1995) (candidate who accepted matching funds was estopped from challenging constitutionality of the composition of the commission).
While the aeceptance-of-benefits rule of estoppel is firmly rooted, its application has not been uniform. Indeed, this court has recognized that the rule has numerous exceptions. Terry v. Thornton, 207 Ark. 1019, 183 S.W.2d 787 (1944). Moreover, since the decision in Fahey, supra, the Supreme Court has commented that the estoppel “doctrine has unquestionably been applied unevenly in the past, and observed as often as not in the breach.” Arnett, 416 U.S. at 153, 94 S.Ct. 1633. In Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988), the Court declined to apply the doctrine to preclude the parents’ challenge to fees charged for bus transportation. In defense of the constitutional challenge, the school district argued that the parents were estopped from challenging the fee because they had entered into two contracts for the provision of the services and had partially paid the fee. Noting its previous, decision in Fahey, supra, the Court found that the situation was not analogous because the holding in Fahey was based on the fact that the bank was a creature of statute. The Court said that “we doubt that plaintiffs are generally forbidden to challenge a statute simply because they are deriving some benefit from it.” Kadrmas, 487 U.S. at 456-57, 108 S.Ct. 2481. The Court considered the rule inapplicable because the statutory fee imposed a burden without conferring any appreciable benefit.
Further, in Begin v. Inhabitants of Town of Sabattus, 409 A.2d 1269 (Me.1979), the Supreme Judicial Court of Maine reversed the lower court’s ruling that a developer was | inestopped from contesting an ordinance under which he received a permit. The court noted that the estoppel doctrine has exceptions, such as where compliance is deemed involuntary in order to avoid penalties or adverse effects on business, and where an estoppel by acceptance of benefits does not prohibit an attack on a separable portion of a statute. After surveying decisions from other jurisdictions, the Begin court observed that “[tjhese cases seem to represent a shifting view of the proper balance of the equities, such that estoppel will infrequently be found to operate against one asserting his or her constitutional rights.” The court applied the separability exception but also stated,
... we support the modern trend urging courts to be circumspect in applying the estoppel principle. This is particularly so when the State, a regulatory agency, or a municipal subdivision, is seeking to estop one of its licenses or licensee applicants from challenging the constitutionality of the provisions affecting his or her conduct.
Begin, 409 A.2d at 1274.
Following its decision in American Bond, supra, the Seventh Circuit has commented that the estoppel doctrine is most appropriate when a party seeks to retain the benefits of a governmental act while attempting to invalidate its burdens. Brockert v. Skornicka, 711 F.2d 1376 (7th Cir.1983). In Brockert, the city had an ordinance requiring city employees to live within the city limits. It also made provision for the grant of a waiver, based on hardship. The employee in question had been granted several waivers, but subsequently was denied a waiver. He challenged the validity of the waiver provision, and in response the city argued that the employee was estopped from doing so because he had applied for and had received the benefit of previous waivers. The Seventh Circuit declined to apply the estoppel doctrine, |nmainly because the employee did not seek an unfair advantage from the city to do away with a corresponding burden.
Another view is found in Helbig v. Zoning Comm’n, 185 Conn. 294, 440 A.2d 940 (1981). There, the Zoning Commission found that Helbig’s operation of a commercial boat yard violated a zoning ordinance, and it instructed its compliance officer to seek out a warrant for Helbig’s arrest. The court declined to apply the estoppel doctrine to Helbig’s challenge to the ordinance where compliance was a mandatory duty and the failure to comply subjected Helbig to penalties.
Against this backdrop in the law, we must decide whether estoppel should be applied under the present circumstances. Although the principle is sound and might prove applicable in a proper case, we conclude that 40 Retail is not estopped from mounting its challenges to the ordinance. X-Mart was already in operation when the city council enacted the ordinance. Its passage provided no benefit to the store. On the contrary, it imposed significant burdens. Thus, unlike the litigants involved in our previous decisions of Hightower, supra, and Kidder, supra, 40 Retail is not seeking to retain the benefits of legislation while at the same time seeking to rid itself of its burdens. Compliance with the ordinance is mandatory, and vio lating the ordinance subjects the business owner to criminal sanctions. Consequently, it cannot be said that 40 Retail's acceptance of the temporary hardship extension was voluntary in any real sense. We are also cognizant of the modern trend spoken of in Begin, supra, supporting a relaxation of the estoppel doctrine in favor of reaching the merits of constitutional issues so as not to insulate mandatory legislation from attack. For these reasons, 112we hold that the circuit court erred in ruling that principles of waiver and estoppel prevent 40 Retail’s challenges to the ordinance. Accordingly, we reverse and remand for the circuit court to decide the merits of this case.
Reversed and remanded.
. By an order dated February 22, 2011, the circuit court struck 40 Retail’s answer and counterclaim, based on its failure to comply with discovery requests and its failure to attend two hearings set by court order. Following the entry of this order, Clarksville filed a motion for summary judgment, asserting that it was entitled to judgment as a matter of law due to 40 Retail’s default. On August 12, 2011, the circuit court granted 40 Retail’s motion to reconsider and rescinded the order striking the answer and counterclaim. | [
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DONALD L. CORBIN, Justice.
| Appellant State of Arkansas, Department of Career Education, Division of Rehabilitation Services (“ARS”) appeals an order of the Garland County Circuit Court in favor of Appellee Bob L. Means. On appeal, ARS asserts that the circuit court erred (1) in ruling that Means was a “public employee” as a matter of law; (2) in denying its motion for a directed verdict; (3) in failing to instruct the jury on mitigation of damages; and (4) in denying its motion for new trial or, alternatively, motion for remittitur. Pursuant to Ark. Sup. Ct. R. 1 — 2(b)(6) (2012), this court assumed jurisdiction of this appeal, as it involves an issue of statutory interpretation. We find no error and affirm.
ARS is a state agency charged with providing opportunities for Arkansans with disabilities to lead productive and independent lives. Means, a licensed psychologist, contracted with ARS to provide psychological and other services on a part-time basis. In 2004, Means contracted with ARS to provide counseling and psychotherapy to the students Land clients at the Hot Springs Rehabilitation Center (“HSRC”). According to Means, his contract was renewed approximately twelve times. His last contract, which ran from July 1, 2007, to June 30, 2009, was renewable for seven years by agreement of both parties.
In 2008, Means contacted the United States Office of the Inspector General (“OIG”) to report his observations that federal funds were being illegally used. According to his original complaint, seventy percent of ARS’s funds were from the federal government. The OIG subsequently requested Means to gather additional information. A few days later, Means received a phone call from Robert Trevino, commissioner for ARS, who informed Means that his services were being immediately terminated because ARS was implementing “a new counseling model.”
Thereafter, Means filed the instant action, pursuant to the Arkansas Whistle-Blower Act, alleging that he was terminated as a result of his report to the OIG. Means sought injunctive relief, reinstatement of his employment, benefits, and retirement-service credit, as well as compensation for lost wages and benefits. ARS responded with a motion to dismiss arguing, inter alia, that Means had failed to state a prima facie claim under the Whistle-Blower Act because he did not engage in the protected activity contemplated by the statute, nor did he report a claim to the “appropriate authority” as defined in the Act.
|sMeans subsequently amended his complaint, asserting that he also communicated the alleged waste to his supervisor, Debbie Coleman, the office of the Governor, a member of the State Senate, as well as the OIG. ARS again moved to dismiss the action, but the circuit court denied the motion by order entered March 4, 2010.
ARS moved for summary judgment on July 11, 2011, asserting that Means could not meet the elements to support a claim under the Whistle-Blower Act. Specifically, ARS argued that Means could not establish (1) that he was a “public employee,” (2) that he communicated the alleged waste to an “appropriate authority,” or (3) that ARS took an “adverse action” against him because of his whistle-blower communication. The circuit court denied the motion for summary judgment, finding that an independent contractor, such as Means, could bring a claim under the Whistle-Blower Act and that there were material questions of fact as to whether Means communicated the alleged waste to an appropriate authority and whether ARS terminated him as a result of such communication.
A jury trial was held on January 19-20, 2012. Means testified that he became concerned about a relationship between the HSRC and John Doe. Means stated that John Doe had completed his rehabilitation training but did not want to leave the center, even though placement was available for him. According to Means, once John Doe completed his training, he was no longer qualified for services at the center. But, despite this, Means stated that John Doe continued receiving expensive services, including housing, food, and | transportation. Means considered these expenditures to be illegal. Means further testified that he was aware of the acronym “PMS,” as used within the HSRC, to mean “politically mandated service.” According to Means, this meant that from somewhere up the chain of command, a decision was made to allow a person to stay as long as they wanted, without proper review or justification for doing so. Means testified that the day he received word to allow John Doe to stay as long as he wanted, he informed his immediate supervisor, Deborah Coleman, that it was illegal to allow him to stay. He stated that Coleman responded that it was wrong, but she did not know if it was illegal. According to Means, he began to research the matter and contacted several others to communicate his concern. He stated that he contacted his local senator, Terry Smith, as well as the Rehabilitation Services Administration in Washington, D.C., and the OIG.
On cross-examination, Means stated that his contract with ARS included language that he was an independent contractor, not an employee, and that ARS could not exercise any managerial responsibility over him. He also admitted that while he orally communicated his concern to Coleman, he did not provide any written documentation to her, although he did provide such documents to the Rehabilitation Services Administration and the Inspector General.
ARS moved for a directed verdict, arguing among other things, that Means could not prove his cause of action under the Whistle-Blower Act because he was not a public employee as required by the Act. ARS further argued that Means could not prove his claim because he did not report the alleged waste to an appropriate authority as required by the Act. |sThe circuit court denied the motions, and the case was submitted to the jury. The jury returned a verdict in favor of Means for $110,452.
At the conclusion of the trial, ARS moved for a new trial or, alternatively, remittitur. Therein, ARS argued that it was entitled to a new trial because the jury’s verdict constituted excessive damages resulting from the influence of passion or prejudice and constituted an error in the amount of recovery by the jury. More specifically, ARS argued that the jury erroneously awarded damages beyond the end date of the contract between the parties. The circuit court subsequently entered judgment in favor of Means on February 17, 2012, awarding damages of $110,452 and costs of $510. From that order comes the instant appeal.
ARS first argues that the circuit court erred in ruling that Means was a “public employee” as a matter of law and taking this factual question from the jury. Specifically, ARS asserts that the circuit court erred in denying its motion for summary judgment because Means could not establish a valid claim under the Whistle-Blower Act, as he was not a “public employee” as defined in Ark.Code Ann. § 21-1-602(4) (Supp.2011). Moreover, ARS argues that the circuit court erred in instructing the jury that Means was a “public employee” as a matter of law. Means responds, asserting that the circuit court correctly determined that he was a public employee for purposes of the Whistle-Blower Act and properly instructed the jury accordingly, as there was no question of fact in this regard.
Our standard of review for a denial of a directed-verdict motion is well settled:
[I]n reviewing the denial of a motion for [a directed verdict], we will reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Substantial evidence is that which goes beyond 1 (¡suspicion or conjecture and is sufficient to compel a conclusion one way or the other. It is not our place to try issues of fact; we simply review the record for substantial evidence to support the jury’s verdict. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. A motion for directed verdict should be denied when there is conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions.
Bedell v. Williams, 2012 Ark. 75, at 5, 386 S.W.3d 493, 498 (quoting Carter v. Cline, 2011 Ark. 474, at 10, 385 S.W.3d 745, 752).
Public employees who report violations of law or waste of public funds to the appropriate authorities are afforded protection under this state’s Whistle-Blower Act. Crawford Cnty. v. Jones, 365 Ark. 585, 232 S.W.3d 433 (2006). The Arkansas Whistle-Blower Act is codified at Ark. Code Ann. §§ 21-1-601 to -608 (Repl.2004 & Supp.2011). Section 21-1-603 provides in relevant part that
(a)(1) A public employer shall not take adverse action against a public employee because the public employee ... communicates in good faith to an appropriate authority:
(A) The existence of waste of public funds ... or ...
(B) A violation or suspected violation of a law, rule, or regulation adopted under the law of this state or a political subdivision of the state.
(2)The communication shall be made at a time and in a manner which gives the public employer reasonable notice of need to correct the waste or violation.
(b)(1) For purposes of subsection (a) of this section, a public employee communicates in good faith if there is a reasonable basis in fact for the communication of the existence of waste or of a violation.
(2) Good faith is lacking when the public employee does not have personal knowledge of a factual basis for the communication.
|7Ark.Code Ann. § 21-l-603(a)(l)-(b)(2). Although not defined in this section, “public employee” is defined in section 21-1-602(4) as “a person who performs a full or part-time service for wages, salary, or other renumeration for a public employer.”
In support of its argument that Means was not a “public employee,” ARS asserts that Means conceded at trial that he was an independent contractor and that ARS had no managerial authority over him. However, this argument is unpersuasive in light of the definition of “public employee” in section 21-1-602(4). Means is a person, and it is undisputed that he performed part-time services in exchange for wages from ARS, a public employer. Clearly, there was sufficient evidence that he was a public employee, and we cannot say that the circuit court erred in denying ARS’s motion for directed verdict.
In that same vein, we cannot say that the circuit court erred in instructing the jury as a matter of law that Means was a public employee. A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction. Allstate Ins. Co. v. Dodson, 2011 Ark. 19, 376 S.W.3d 414. Here, the circuit court interpreted the definition of “public employee” in accordance with the plain meaning of the statute. When a statute is clear, we give it its plain meaning. Voltage Vehicles v. Ark. Motor Vehicle Comm’n, 2012 Ark. 386, 424 S.W.3d 281. There was simply not a question of fact that should have been submitted to the jury for resolution.
ARS next argues that the circuit court erred in denying its motion for a directed verdict because Means presented no evidence that he reported his allegations to an “appropriate authority.” According to ARS, Means’s testimony that he reported the alleged |Rwaste to Deborah Coleman, his immediate supervisor, is insufficient because Coleman is not an “appropriate authority” under section 21-1-602(2)(A). Means counters that the State’s argument fails because, clearly, Coleman was an “appropriate authority” under the statute. Moreover, Means asserts that if the statute is interpreted in the manner advanced by the State, it will lead to an absurd result.
One of the prerequisites to bringing a claim under the Whistle-Blower Act is that an employee must communicate any alleged waste to an “appropriate authority.” Section 21-1-602(2)(A) provides that an “appropriate authority” includes
(i) A state, county, or municipal government department, agency, or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or waste; or
(ii) A member, officer, agent, investigator, auditor, representative or supervisory employee of the body, agency, or organization.
ARS argues that subsection (ii)’s reference to a “supervisory employee” does not encompass a supervisor of a whistle-blower within the whistle-blower’s agency. According to ARS, a “supervisory employee” within this definition refers to a supervisory employee within a state, county, or municipal government department, agency, or organization that has jurisdiction over law enforcement, regulatory violations, professional conduct, or waste. Thus, under ARS’s interpretation of the statute, Means should have communicated the alleged waste to the State’s auditor, the Arkansas Ethics Commission, any prosecuting attorney, or ARS’s commissioner or director.
I gin support of this argument, ARS relies on this court’s decision in Jones, 365 Ark. 585, 232 S.W.3d 433, wherein this court addressed the issue of an “appropriate authority” under the Whistle-Blower Act. In that case, Jones, who was a public employee, reported allegations of alleged waste to her immediate supervisor, who was the county assessor, and to members of the county’s quorum court. In reviewing the circuit court’s grant of a directed verdict in favor of Crawford County on the whistle-blower claim, this court stated that the issue to be resolved “[was] whether Jones’s actions of reporting alleged misdeeds to quorum court members constituted reporting to the ‘appropriate authorities.’ ” Id. at 596, 232 S.W.3d at 442. According to ARS, this court’s silence on the issue of whether Jones’s supervisor was an “appropriate authority” indicates that a whistle-blower’s supervisor does not constitute an “appropriate authority.” We disagree.
It is true that we did not analyze whether Jones’s supervisor was an “appropriate authority,” but we certainly never held that an immediate supervisor was not an “appropriate authority.” In fact, in addressing the issue, this court noted that in response to Crawford County’s motion for directed verdict, Jones “countered that she had presented evidence that she complained to members of the quorum court.” Id. at 595, 232 S.W.3d at 441. Thus, while we summarized Jones’s testimony that she told her supervisor and members of the quorum court about the alleged waste, we addressed the issue that was raised at the circuit court, namely that Jones had communicated allegations of waste to members of the quorum court. Thus, our decision in Jones is inapposite to the present case.
| inTurning back to the language of section 21-1-602(2)(A), we cannot interpret it in the manner advanced by ARS. It is a well-settled principle of statutory interpretation that this court first construes a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Wal-Mart Stores, Inc. v. D.A.N. Joint Venture III, L.P., 374 Ark. 489, 288 S.W.3d 627 (2008). When the language of a statute is plain and unambiguous, conveying a clear and definite meaning, the court does not resort to the rules of statutory construction. Id. Here, the plain language of the statute indicates that subsection (2)(A)(i) lists departments or agencies that qualify as an “appropriate authority.” At the end of that subsection appears the word “or.” Then subsection (2)(A)(ii) follows and lists persons who qualify as an “appropriate authority.” In its ordinary sense, the word “or” is a disjunctive particle that marks an alternative, generally corresponding to “either,” as “either this or that”; it is a connective that marks an alternative. Brown v. Kelton, 2011 Ark. 93, at 4-5, 380 S.W.3d 361, 364 (citing McCoy v. Walker, 317 Ark. 86, 89, 876 S.W.2d 252, 254 (1994)). Clearly, an “appropriate authority” may be one of those listed in subsection (2)(A)(i) or it may also include, as set forth in subsection (2)(A)(ii) a member, officer, agency, investigator, auditor, representative or supervisory employee of the body, agency, or organization for which a public employee works. This interpretation is consistent with the definition of “whistle-blower” set forth in section 21-1-602(8) as “a person who witnesses or has evidence of a waste or violation while employed with a public employer and who communicates in good faith or testifies,to the waste or violation, verbally or in writing, to one of the employee’s superiors.” To hold as ARS urges, that a public employee cannot report | n allegations of waste to an immediate supervisor would lead to an absurd result. This court has consistently held that it will not engage in statutory interpretations that defy common sense and produce absurd results. See, e.g., Sluder v. Steak & Ale of Little Rock, Inc., 361 Ark. 267, 206 S.W.3d 213 (2005). Finally, Means testified that he also reported the alleged waste to State Senator Terry Smith, who is an appropriate authority even under ARS’s suggested interpretation. Accordingly, we cannot say the circuit court erred in denying ARS’s motion for directed verdict on this ground.
Next, ARS argues that the circuit court erred in failing to instruct the jury on mitigation of damages. Specifically, ARS asserts that Means testified that he had not sought any employment after his contract had been terminated and the issue of whether he acted reasonably in minimizing, mitigating, or avoiding damages is a question of fact that should have been submitted to the jury. Means argues to the contrary that the circuit court properly refused ARS’s proffered instruction on mitigation of damages where there was no factual basis developed at trial to support such an instruction.
Under Arkansas law, a party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction. See Bedell, 2012 Ark. 75, 386 S.W.3d 493. We will not reverse a circuit court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id.
Here, ARS proffered the following non-model jury instruction:
I ^MITIGATION OF DAMAGES
IF IT BECOMES NECESSARY FOR YOU TO ASSESS DAMAGES, THEN IN FIXING THE AMOUNT OF MONEY WHICH WILL REASONABLY AND FAIRLY COMPENSATE BOB L. MEANS, YOU ARE TO CONSIDER THAT A PARTY CANNOT RECOVER DAMAGES RESULTING FROM CONSEQUENCES WHICH HE COULD REASONABLY HAVE AVOIDED BY REASONABLE CARE, EFFORT OR EXPENDITURE.
At the time ARS proffered this instruction, Means objected. The circuit court refused the instruction, stating,
I’m not go[ing] [to] give that. I’m go[ing] [to] show that proffered. As far as I’m concerned ... there’s been no proof that there is a job he failed to get. To say that he does not have a claim for damages because he may or may not have expended what a juror believes is reasonable efforts to get another job I think is entirely too speculative. There’s no — if there had been evidence in the record that here was a job, he was offered a job and he refused the job, I think that might justify that instruction. But just on — placing that burden that he also has to show that he tried to get a job diligently and didn’t, are — and was unable to, I don’t think that’s part of his burden of proof, and I think that’s what that mitigation instruction will do.
We cannot say that the circuit court abused its discretion in ruling as it did. The circuit court correctly acknowledged that it was ARS’s burden to prove matters relating to mitigation. See, e.g., Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992) (holding that a defendant must show that the plaintiff could have taken actions to mitigate damages and the amount of damages that might have been avoided by proper mitigation). Here, ARS failed to put forth any evidence regarding any opportunities Means may have had for further employment or any amount of damages he may have been able to avoid. While Means testified that he retired and did not apply for other jobs after his termination, he also stated that there were no jobs in his field as a rehabilitation psychologist in Garland County.
| isMeans further testified that he looked into a job at First Step School but discovered that he was not qualified. ARS put on no evidence to rebut this testimony. Thus, where there was no evidence to support giving the proffered instruction, the circuit court properly refused it.
ARS’s final point on appeal is that the circuit court erred in denying its motion for new trial or, alternatively, remitti-tur. According to ARS, a new trial was warranted because Means failed to establish a prima facie claim under the Whistle-Blower Act and because the circuit court failed to instruct the jury on mitigation of damages. Alternatively, ARS asserts that the damages award was excessive and not supported by substantial evidence. Means counters that ARS’s arguments are not preserved for appellate review. We agree with Means that this court cannot address the merits of these arguments but for a different reason.
In discussing this point in its brief to this court, ARS states, “The trial court denied the post-trial motion by letter which does not appear in the record, and the motion was deemed denied when the trial court entered a Judgment in favor of Appellee for the sum of $110,452 plus $510 in costs on February 17, 2012.” Thus, ARS gives the impression that there was no formal ruling on the posttrial motion and that it was deemed denied by virtue of the fact that the circuit court subsequently entered judgment in favor of Means. But, this statement by ARS conflicts with the record before us. In its notice of appeal, ARS stated that it was appealing from the February 17 judgment, as well as several intermediate orders, including “the Court’s February 15, 2012 Order titled ‘Motion for New Trial or Alternatively, Remittitur,’ in which the Court denied the Defendant’s post-trial Motion for New Trial or, alternatively, Remittitur.” Moreover, in a posttrial response to a motion for attorneys’ fees |14filed by Means, ARS stated, “Defendant notes that the Court has denied Defendant’s Motion for New Trial or Alternatively, Remittitur, by Order entered February 15, 2012. Defendant intends to appeal the Court’s February 15, [2012] order.”
Clearly, ARS was aware that there was an order entered denying its motion for new trial or, alternatively, re-mittitur, and that the order was not included in the record. Despite being aware of the order and its absence from the record, ARS purports to appeal from a “deemed denied” ruling on its posttrial motion. The motion could not have been deemed denied when the circuit court entered an actual order denying the motion. It is axiomatic that it is Appellant’s burden to bring up a record sufficient to demonstrate error by the trial court, and we do not consider matters outside of the record. Dodge v. Lee, 352 Ark. 235, 100 S.W.3d 707 (2003). Where the appellant fails to meet this burden, we are compelled to affirm the trial court. Id. Here, where ARS was aware that an order had been omitted from the record, failed to move to supplement the record, and tried to appeal from a deemed-denied ruling that never occurred, we will not address the merits of its arguments on this point.
Affirmed.
. From 1971 until 2004, Means, as a faculty member with the University of Arkansas, worked with ARS through funding from a grant program. When that funding ended, Means contracted with ARS to provide services at HSRC.
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COURTNEY HUDSON GOODSON, Justice.
1A jury in the Sebastian County Circuit Court found appellants Rickey Bruner, Sr., and Melissa Workman guilty of committing first-degree battery against their son, R.B., a violation of Arkansas Code Annotated section 5-13-201(a)(9) (Supp.2011), and a class Y felony. Ark.Code Ann. § 5-13-201(c)(2). As a consequence, the jury fixed Bruner’s sentence at a term of forty years in prison, and Workman received a sentence of life imprisonment. In this joint appeal, appellants are represented by different counsel who have filed separate briefs on their behalf. However, they urge the same three points for reversal: (1) the circuit court erred by excluding evidence of their mental condition, (2) the circuit court erred by failing to give an instruction on the lesser-included offense of third-degree battery, and (3) the circuit court erred in refusing to give a proffered jury instruction defining the phrase “manifesting extreme indifference to the value of human life.” Because Workman was sentenced to life in prison, 12our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(2). We affirm appellants’ convictions and sentences.
Factual Background
Although the sufficiency of the evidence is not challenged on appeal, a recitation of the facts is necessary to place the issues under review in context. To that end, the record reflects that on March 16, 2011, officers of the Fort Smith Police Department conducted a welfare check of R.B. at appellants’ home. R.B. was born on January 12, 2011, and was two months old at that time. The officers found him sitting in a car seat wrapped in a blanket in front of a space heater, although it was warm outside. Upon inspection, the officers saw that the child was severely emaciated. His eyes, cheeks, and fontanel were sunken in, and his skin hung loosely from his body. Officer Alan O’Mara testified that it “was probably the worst child or anything like that that I have ever seen,” and he described his reaction to the sight of the child as “traumatizing.” Bruner told O’Mara that R.B. had been to the doctor the previous week and that the doctor had told them that R.B. was small, but healthy. The officers immediately summoned an ambulance that transported R.B. to Sparks Regional Medical Center. Soon thereafter, the infant was airlifted to Arkansas Children’s Hospital in Little Rock.
. Detective James Melson testified that Bruner argued with him about calling an ambulance because Bruner disagreed that the child needed medical attention. Mel-son took a photograph of R.B., identified as State’s Exhibit 4. He stated that he took this photograph because it showed the child crying, but he said that R.B. was so weak that no noise had come ]3from his mouth. Melson also interviewed Bruner at the police station later that day. In their conversation, Bruner stated that Workman fed R.B. between two and three ounces of formula, four or five times a day, but that he was not always present at the feedings. He advised that Workman was primarily responsible for feeding the child, bathing him, and changing his diapers. Bruner said that he did not do those things because he was afraid that he would hurt the baby. Bruner related that he had noticed the condition of R.B.’s fontanel a couple of days earlier and that he had consulted his neighbors about it. He acknowledged that his son did not look like other children he had seen, and when asked why he did not call a doctor, Bruner replied that he did not want to get into an argument with Workman.
Detective Patricia Sullivan also spoke with Bruner that afternoon. She stated that Bruner told her that his son was fine, only a little dehydrated. Bruner said that R.B. had been eating every three or four hours and that he had noticed nothing unusual about the child; that he kept most of his food down; and that he would throw up every once in a while.
Detective Melson executed a search warrant for appellants’ home the next day. He found two makeshift dog pens in the home containing well-fed, healthy puppies, an older dog, and dog food. Melson said that plenty of adult food was in the house and that-the refrigerator was well stocked.
He located two cans of infant formula and two partial cases of infant formula, one of which was littered with rodent droppings. Melson found a child’s bottle in the bedroom, and the latex nipple appeared to have been gnawed on by mice.
John Taylor, the clinic coordinator for the Sebastian County Health Department, testified that appellants were accepted into the WIC program and approved to receive | ¿vouchers for infant formula for three months. Records showed that Workman received a voucher for formula on January 26, 2011, that she used on January 28, 2011. A second voucher was picked up on February 26, 2011, and cashed in four days later. Taylor testified that parents are educated about the nutritional needs of their child and that the health department offers guidance to parents if their child does not tolerate formula. He said there was no record of Workman contacting the office with questions about using a different kind of formula.
Glenda Simpson, an investigator with the Division of Child and Family Services, saw R.B. at the emergency room. She said that his fontanel was so large that she “could put her entire hand in his head.” Simpson testified that R.B. did not respond to voice or touch and that the child had no idea how to suck the nipple of a bottle. She stated that he “looked alien due to the amount of skin that was hanging off of his body and bones protruding everywhere.”
Detective Tammy Dernier also observed R.B. at the emergency room. She testified that one could see every rib and every bone in R.B.’s skull; that his skull was sunken; and that he acted as though he did not know what to do with a bottle. Dernier conducted an interview of Workman that afternoon. Workman told Dernier that R.B. had last seen the doctor the previous Monday and that she had called the doctor’s office every day about his not keeping food down but that she had not received a return call. Workman stated that there was nothing wrong with her child and that she would not lie about feeding him. She said to Dernier that sometimes she would feed R.B. three ounces of formula every two to Rthree hours but that she usually fed him every five to six hours after he woke up. Dernier testified that Workman did not ask how R.B. was doing and that she became emotional only at the prospect of going to jail.
Detective Michael McCoy also interviewed Workman on March 16, 2011. She told McCoy, “I don’t feed him, not like he really wants to be fed. If he’s crying, then I stick a bottle in his mouth, and if he don’t start sucking, I don’t give it to him.” When asked how often she fed R.B., Workman responded,
Once a day. And I’m not lying about that part. Usually every day when I have the formula. Here lately, I’ve been only feeding him once a week because I haven’t had the formula. We tried getting on food stamps, and I’m still waiting for the checks from WIC. I’ve only been feeding him once a week since the beginning of this month. Before that, I had WIC and I fed him twice a week. For the whole month. January, I fed him twice.
Anita DeSchryber, a registered nurse who works at the office of R.B.’s pediatrician, Dr. James Cheshier, testified that R.B. weighed seven pounds, seven ounces at birth. Dr. Cheshier examined R.B. on January 26 and February 24, 2011. On January 26, he weighed six pounds, twelve ounces, and DeSchryber testified that it was not unusual for a child to lose weight after birth. On February 24, R.B. weighed seven pounds, seven ounces. DeSchryber said that he looked good and was gaining weight but that he did have thrush, a yeast infection of the mouth. DeSchryber testified that Dr. Cheshier prescribed medication for this condition on February 4 and that the doctor renewed the prescription at the office visit on February 24. She said that thrush is a fairly common malady that can cause a baby to have difficulty eating. DeSchryber testified that parents generally call if that situation arises and that the problem is treatable. DeSchryber also testified that the office keeps records of parents’ calls and that the Ronly record of a call from either Workman or Bruner was on February 4, when Bruner called about R.B. having thrush.
Dr. Chester Carlson treated R.B. at the emergency room. He said that the child presented as an obviously very sick, lethargic, and limp baby. He also described the child as having an “alien-like appearance” and said that he was “skin and bones” without any fat or muscle. Carlson said that R.B. was cachetic and that he was in a condition called marasmus, meaning a wasting-away syndrome. He stated that the fontanel was abnormally depressed and that it was the largest he had ever seen in a two-month-old child. Carlson said that he could see the suture lines on R.B.’s skull due to lack of fat and that the skin covering his skull was so thin that “[i]f you poke on that [fontanel] you would poke right on the child’s brain.” He testified he had never seen a baby this emaciated and malnourished. Carlson expressed the view that the child was not simply dehydrated, “it [was] starved.” He further testified that R.B. was nearing renal failure and that his BUN scores indicated that the child had been breaking down his brown fat and muscles for sustenance. He also said that the child was hypothermic because he had cannibalized all his brown fat that provides insulation. Carlson offered the opinion that this had been going on for a while, perhaps a week or two, and that R.B. was dying and would have died in a matter of days without medical intervention. He also testified that re-feeding a child can cause death and that re-feeding a severely malnourished child has to be done carefully and slowly with constant monitoring. Carlson said that the parents could not have restored the child to good health without medical intervention.
17Pr. Karen Farst treated R.B. at Children’s Hospital, where he was placed in intensive care. She testified that R.B. was cachetic; that his bones were easily visible through the skin; and that he had no fat underneath the skin, which hung loosely from his body. His anterior fontanel was larger than usual and very sunken. Farst said that his appearance suggested more than dehydration. Her examination revealed no medical condition that would have caused him to become malnourished. Farst stated that R.B. was in great danger and that he would not have survived for more than a few more days without medical intervention. She also said that he was past the point where simply feeding him would have restored him to good health. In her medical opinion, the child’s malnourished condition was due to inadequate calorie intake resulting from care-giver neglect. Farst testified that R.B.’s condition was consistent with having been fed once per week for the last three weeks. She stated that R.B. was in the hospital from March 16 to March 28, 2011. Farst said that it took a week of rehydration and feeding him slowly before his body returned to a positive nutrition status where he could begin gaining weight. She testified that, in her experience, she had seen five children in as bad a condition as R.B. Of those five, three died.
Penny Jester, a child-development specialist, evaluated R.B. when he was six months old. She said that he was smaller than expected for a child that age. Jester said that R.B. was receiving physical therapy for gross motor skills; occupational therapy for the development of fine motor skills, and speech therapy. She said that he had progressed but was still behind for a child his age.
Laura Ward, R.B.’s legal guardian and potential adoptive parent, testified that she | ^brought him home from the hospital on March 28, 2011, and that she fed him every three hours around the clock. She said that he attended therapy sessions of some kind every day. Her impression was that the child would require years of therapy, not weeks or months.
Melissa Vanderhoof testified that she was the former caseworker assigned to appellants from Rogers County Child Welfare in Claremore, Oklahoma. She became involved with them when Workman’s daughter, OB., was taken into foster care due to environmental neglect. Workman’s parental rights were terminated as to this child; she did not appear at the termination hearing. C.B. had special needs, as she was afflicted with fetal-alcohol syndrome. Vanderhoof testified that the child was around eighteen months old when taken into custody and that she was not underweight or malnourished. She further testified that appellants took parenting classes and received certificates for completing the classes. Vanderhoof said that appellants fed that child in her presence on more than one occasion.
During Vanderhoofs cross-examination, Bruner introduced into evidence the records from the Oklahoma proceeding, which included psychological evaluations of Bruner and Workman. Vanderhoof recalled that Bruner functioned at a borderline level; that he read and performed arithmetic at a third-grade level; and that he spelled at a second-grade level. She noted that the records showed that he had memory issues, that he was subject to confusion, and that his abstract thinking was impaired. Vanderhoof acknowledged a report from the therapeutic foster parent dated March 30, 2009, stating,
I fully understand that Mr. Bruner and Ms. Workman want [C.B.] back and I |flam compassionate to that fact. However, my concern is whether they have the capacity, decision-making ability, stability, and resources to provide the physical, emotional, social, and economic needs of a child with her extensive issues and needs.
Vanderhoof stated that intellectual functioning is important to the care of a child to a certain point and that, if someone has a low intellectual level, their ability to make good decisions can be impaired.
During Workman’s cross-examination, Vanderhoof testified that Workman was receiving disability and that Workman told her that it was based on her intellectual delays and bipolar disorder. Vanderhoof felt that Workman had the emotional development of a “mid-teen.”
With regard to the records from the Oklahoma dependency-néglect proceeding, the report of Workman’s psychological evaluation noted that her parents also received disability income due to learning disabilities and intellectual limitations. The evaluator also reported that she had completed the eighth grade and left school due to “trouble learning and poor grades” and that she participated in special-education classes. Workman had also attempted suicide at age fifteen. The report issued from Bruner’s psychological evaluation disclosed that he could not name the first president of the United States and did not know the name of the current president; he thought George Washington was the president during World War II; and he could not name the two countries bordering the United States. The report also stated that it was unlikely that he could pass the GED exam and that he would be unable to persist in gainful employment. Bruner completed the Reynolds Intellectual Screening Test, which resulted in a score of 85, placing his intellectual functioning at a below-average range.
1 mBruner elected to testify at trial. He said that having the new baby was a joy but that Workman had assumed primary responsibility for taking care of the child. He said that he did not provide assistance because he was afraid that he would do something wrong. Bruner stated that he allowed Workman to care for the child during the day while he was working and that he trusted her and believed that she was doing the best she could. Bruner testified that the child was bundled up most of the time with a cap on his head. He said that he first.noticed that the top of R.B.’s head was sunken in a couple of days before his arrest. Bruner testified that the child’s head caused him concern and that he talked to his neighbors about it. He stated that he and Workman did not have an agreement to kill the child by not feeding him. However, Bruner agreed that a person would wither and die without eating.
Based on this evidence, the jury found appellants guilty as charged. As stated, Workman was sentenced to life in prison, while Bruner was sentenced to a term of forty years’ imprisonment. This appeal followed.
Exclusion of Appellants’ Psychological Evaluations
Appellants’ first argument on appeal involves an evidentiary issue. At trial, appellants sought to introduce the reports of their psychological evaluations that were conducted by Dr. Paul Deyoub. In the reports, Deyoub diagnosed both Workman and Bruner with Borderline Intellectual Functioning. He found ' that Workman had a full-scale I.Q of 71, while Bruner had an IQ of 77. Deyoub also expressed the opinion that neither of them was mentally retarded and that they did not have a mental disease or defect. Appellants asserted that the purpose of introducing the reports was to establish evidence of their IQs. While | n acknowledging that they were not asserting the affirmative defense of mental disease or defect, appellants argued to the circuit court that evidence of their below-average intelligence was admissible on the issue of whether they had the capacity to form the mental state necessary for the commission of first-degree battery. The circuit court ruled that the reports were not admissible for that purpose because appellants were not asserting the defense of mental disease or defect.
On appeal, appellants argue that the circuit court erred by refusing to admit the reports during the guilt phase of trial. Specifically, appellants contend that the reports should have been admitted to assist the jury in determining whether they acted “knowingly” in causing serious physical injury to the child, as required for the commission of first-degree battery under section 5-12-201(a)(9). They argue that the reports, along with other evidence, would have allowed the jury to find that their failure to recognize the child’s deteri oration was due to their low intellectual functioning. As authority, appellants rely on Arkansas Code Annotated section 5-2-303 (Repl.2006), and Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986).
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. The abuse-of-discretion standard “is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit 11?court act improvidently, thoughtlessly, or without due consideration.” Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004). Nor will we reverse absent a showing of prejudice. Gulley v. State, 2012 Ark. 368, 423 S.W.3d 569; Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002).
Arkansas Code Annotated section 5-2-303, formerly Arkansas Statutes Annotated section 41-602 (Repl.1977), provides,
Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether the defendant had the kind of culpable mental state required for the commission of the charged offense.
With reference to this statute, in Graham, supra, we found reversible error in the circuit court’s exclusion of lay testimony that Graham “goes to pieces” under pressure. Graham, 290 Ark. at 110, 717 S.W.2d at 204. We held that evidence of Graham’s mental condition, “[e]ven if it did not show mental disease or defect sufficient to constitute a defense,” was relevant on the issue of Graham’s culpable mental state. Id. at 110, 717 S.W.2d at 204 (quoting Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979)). Noting that lay testimony, given a proper foundation, was admissible on the accused’s mental and emotional condition, we held that it was prejudicial error to exclude the testimony.
Subsequently, in Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), we adopted the position that expert testimony on the ability of a defendant to form the specific intent necessary to commit the charged offense is not admissible. In so holding, we drew a distinction between psychiatric testimony concerning whether a defendant has the ability to conform his conduct to the requirements of the law as part of an insanity defense and 11stestimony on whether the defendant had or did not have the required specific intent to commit the crime. We said,
A general inability to conform one’s conduct to the requirements of the law due to mental defect or illness is the gauge for insanity. It is different from whether the defendant had the specific intent to kill another individual at a particular time. Whether Stewart was insane certainly is a matter for expert opinion. Whether he had the required intent to murder Ragland at that particular time was for the jury to decide.
Stewart, 316 Ark. at 159, 870 S.W.2d at 755. As we explained in DeGracia v. State, 321 Ark. 530, 532, 906 S.W.2d 278, 279 (1995),
The basis of our holding [in Stewart ] was that Rule 704 requires that expert opinion of the sort that “embraces an ultimate issue” must be “otherwise admissible.” To be otherwise admissible the evidence, according to Ark. R. Evid. 403, must be helpful to the jury and not tend to be confusing. We said in the Stewart case that the testimony in question was potentially misleading and confusing to the jury.
In Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000), it was argued that Stewart does not preclude the admission of expert testimony concerning a defendant’s inability to conform his conduct to the requirements of the law. We concluded, however, that the proposed testimony was not relevant for that purpose because Hinkston did not assert the affirmative defense of mental disease or defect.
In the case at bar, the circuit court’s ruling is consistent with our decisions in Stewart and Hinkston. ■ Appellants did not claim the insanity defense that they lacked the capacity to conform their conduct to the requirements of the law. Yet, their stated purpose for introducing the evidence was to prove that they lacked the ability to form the specific intent necessary for the commission of first-degree battery. The admission of evidence for that | upurpose is expressly prohibited by Stewart. We thus find no abuse of discretion in the circuit court’s ruling to deny appellants’ request to introduce the reports.
Moreover, the exclusion of the reports was harmless. Through the testimony of Melissa Vanderhoof and the records admitted from the Oklahoma dependency-neglect proceeding, appellants presented ample proof of their intellectual limitations. Therefore, even if the exclusion of the reports showing a particular IQ was error, it was harmless. Boyle v. State, 363 Ark. 356, 214 S.W.3d 250 (2005) (holding that the exclusion of testimony was harmless where the same evidence was introduced through other witnesses); Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998) (holding that evidentiary error is harmless if the same or similar evidence was otherwise introduced); Phillips v. State, 293 Ark. 588, 739 S.W.2d 688 (1987) (holding that exclusion of testimony concerning the mental competency of the defendant was harmless because it was cumulative of other testimony on the same issue).
Lesser-included Offense
Next, appellants claim error in the circuit court’s refusal to instruct the jury on the lesser-included offense of third-degree battery. They contend that there was evidence from which the jury could have found their conduct to be reckless, the mental state required for third-degree battery.
This court zealously protects the right of an accused to have the jury instructed on a lesser-included offense, and 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. Webb v. State, 2012 Ark. 64, 2012 WL 503885. Once an offense is determined to be a lesser-included offense, the | ^circuit court is obligated to instruct the jury on that offense only if there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser-included offense. Green v. State, 2012 Ark. 19, 386 S.W.3d 413. A circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510.
For purposes of this case, a person commits the offense of first-degree battery if he or she knowingly causes serious physical injury to a person four years of age or younger under circumstances manifesting extreme indifference to the value of human life. Ark.Code Ann. § 5-13-201(a)(9). A person acts knowingly with respect to his conduct or the attendant circumstances when he or she is aware that his conduct or the attendant circumstances exist, and he acts knowingly with respect to the result of his conduct when he or she is aware that it is practically certain that his conduct will cause the .result. Ark.Code Ann. § 5-2-202(2)(A) & (B) (Repl.2006).
A person commits battery in the third degree if the person recklessly causes physical injury to another person. Ark. Code Ann. § 5-13-203(a)(2) (Repl.2006). Pursuant to section 5-2-202(3), “recklessly” is defined as,
(A) A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
(B) The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation!)]
As indicated, first-degree battery and third-degree battery differ in terms of the requisite | ^mental states of “knowingly” and “recklessly.” However, the two offenses also differ with respect to the type of injury caused by the offender’s conduct. Under section 5-13-201(a)(9), first-degree battery involves serious physical injury, which is one that “creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-102(21) (Supp.2011). Pursuant to section 5-13-203, third-degree battery is a battery that results in physical injury, which means the impairment of physical condition; infliction of substantial pain; or the infliction of bruising, swelling, or a visible mark associated with physical trauma. Ark.Code Ann. § 5-1-102(14).
Our decision in Sbabo v. State, 264 Ark. 497, 572 S.W.2d 585 (1978), is instructive. There, Sbabo and Cockerel were convicted of first-degree battery for shooting a man on a golf course with a rifle. On appeal, they argued that the circuit court erred by not instructing the jury on third-degree battery. The victim in that case suffered a collapsed lung as a result of the gunshot wound. He was placed in intensive care and remained in the hospital for one week. On this evidence, we concluded that there was no rational basis for giving an instruction on the lesser-included offense of third-degree battery for recklessly causing physical injury because the evidence showed only that the victim sustained a serious physical injury involving a substantial risk of death.
Here, the testimony reveals that R.B. was severely malnourished to the point of 117starvation and that death would have occurred within days had he not received medical attention. R.B. remained in the hospital for twelve days, and he has required extensive therapy following his discharge from the hospital. The testimony also indicates that the effects he suffered from starvation will remain with him for years to come. Regardless of whether there was some evidence of reckless conduct, the physical injury sustained by R.B. can only be classified as serious. In keeping with our decision in Sbabo, the circuit court did not abuse its discretion by refus ing to instruct the jury on third-degree battery.
Extreme-indifference Instruction
As their final point on appeal, appellants contend that the circuit court erred by refusing to give their proffered instruction defining the phrase “manifesting extreme |, «indifference to the value of human life” with the instruction on first-degree battery. Citing Price v. State, 373 Ark. 435, 284 S.W.3d 462 (2008), and Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000), appellants proposed an instruction defining the phrase to mean “that the actions of the accused were such that they created as least some risk of death which evidenced a mental state on the part of the accused to engage in some life threatening activity against the victim.” Although the model instruction does not contain a definition of this phrase, appellants assert that the instruction should have included this definition because it is an accurate statement of the law.
Nonmodel instructions are to be given only when the trial court finds that the model instructions do not accurately state the law or do not contain a necessary instruction. Sipe v. State, 2012 Ark. App. 261, 404 S.W.3d 164. A circuit court is not required to give an instruction just because it is an accurate statement of the law. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984). Moreover, a court is not required to instruct in every possible manner. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980). Here, the circuit court instructed the jury in accordance with AMI Crim.2d 1301. In this instruction, the requisite mental state is clearly established by instructing the jury that guilt of first-degree battery requires proof that appellants acted knowingly. The model instruction defines the term “knowingly” as a state of mind in which a person is aware that it is practically certain that his conduct will cause such a result. The model instruction also includes a definition of serious physical injury as creating a substantial risk of death. Thus, the model instruction adequately conveyed the concept that is virtually identical to the non-model definition preferred by appellants. Because the model | ^instruction accurately states the law and includes all necessary elements, the circuit court did not abuse its discretion by declining appellants’ proffered instruction.
Compliance with Rule I-3(i)
In this case, Workman received a sentence of life in prison. Pursuant to Arkansas Supreme Court Rule 4-3(i), the record has been reviewed for all objections, motions, and requests that were decided ad versely to Workman, and no prejudicial error was found.
Affirmed.
BAKER, HART, and HOOFMAN, JJ., concur in part and dissent in part.
. C.B. is not Bruner’s biological child.
. Workman introduced into evidence the report of her psychological evaluation during the penalty phase of trial.
. In the opinion, we referenced the provisions of Ark. Stat. Ann. § 41-1603(a)-(c) (Repl.1977). Section 41-1603(b) is identical to the current section 5-13-203(a)(2).
. The statement in Justice Baker’s dissent that "the child needed only to be fed to be brought back to health” is grossly inaccurate. The testimony established that simply feeding the child would not have restored him to good health. On the contrary, re-feeding him could have proved lethal if done without medical intervention and close supervision. This attempt to minimize the child’s condition as involving anything less than serious physical injury is wholly unsupported by the record.
. The dissenting opinion authored by Justice Hoofman appears to rely on our holding in Sbabo that Cockerel was entitled to an instruction on the lesser-included offense of second-degree battery because there was evidence of reckless intent. However, his reliance on that holding is misplaced. The dissent ignores that the relevant provision of the second-degree battery statute provided that a person committed that offense if "he recklessly causes serious physical injury by means of a deadly weapon.” Ark. Stat. Ann. 41-1602(d) (Repl.1977). Because there was evidence of both reckless conduct and serious physical injury, we concluded that a second-degree battery instruction was appropriate. On the other hand, the Sbabo court plainly held that a third-degree battery instruction, which includes the element of physical injury, was not warranted because serious physical injury resulted, even though there was some evidence of reckless intent. That holding is controlling here, where the conduct caused serious physical injury and not mere physical injury. Based on principles of stare decisis, we are bound to follow prior case law. Hervey v. State, 2011 Ark. 113, 2011 WL 913203; Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006). | [
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COURTNEY HUDSON GOODSON, Justice.
|!Appellant Amanda Marie Scudder appeals the order entered by the Jackson County Circuit Court finding her in contempt and denying her motion to terminate the grandparent-visitation rights of appellee Raylinia Ramsey to P.S., Amanda’s daughter. The circuit court also awarded Raylinia $4,417.95 in attorney’s fees and costs. For reversal, Amanda contends that the circuit court erred by not terminating Raylinia’s grandparent-visitation rights upon Amanda’s adoption, by finding her in contempt, and by awarding attorney’s fees and costs to Raylinia. We granted Raylinia’s motion to transfer the appeal to this court from the court of appeals, as this case involves significant issues of statutory construction and an issue of first impression. Therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) & (6). We reverse the circuit court’s decision declining to terminate visitation; we affirm the finding of contempt; and we reverse and remand the award of attorney’s fees and costs.
_|¿Factual Background
Amanda is Raylinia’s adult biological daughter. The record reflects that their relationship has been punctuated by periods of estrangement. In 2006, when Amanda was fifteen years old, she left the home of Raylinia and her husband, and the Third Division of the Jackson County Circuit Court, Judge Kevin King presiding, placed Amanda in the custody of Shane O’B anion, Raylinia’s second cousin, and his wife, Melanie. Amanda and Raylinia had no contact with one another until Amanda graduated from high school. Subsequently, Amanda, who was unmarried at the time, gave birth to a daughter, P.S., on March 9, 2010. When the child was born, Amanda and Raylinia were enjoying a period of relative harmony, only to fall into discord six months later. In September 2010, Amanda petitioned the Jackson County Circuit Court for a protective order against Raylinia. This case was also assigned to Judge King, who ultimately entered an agreed, mutual-restraining order prohibiting Amanda and Raylinia from harassing and contacting one another.
On November 22, 2010, Raylinia filed a petition in the Circuit Court of Jackson County to establish grandparent visitation with P.S., pursuant to Arkansas Code Annotated section 9 — 13—103(b)(2) (Repl.2009). This matter was assigned to Judge Philip G. Smith in the Second Division. Judge Smith held a hearing on February 7, 2011, and by an order dated February 22, 2011, he granted Raylinia’s petition for grandparent visitation. Pursuant to the order, Raylinia was to exercise visitation while Amanda was at work on weekdays during the hours of 4:45 p.m. to 7:45 p.m. and on Saturdays from 8:15 a.m. to 1:15 p.m. and from 4:45 p.m. to 7:45 p.m. The order also provided that, if Amanda changed employment or altered | sher work schedule, visitation would take place on alternating weekends from Saturday at 9:00 a.m. to 5:00 p.m. on Sunday. Exchanges of the child were to occur at the Jackson County Sheriffs Office. Amanda chose not to appeal this order.
On February 23, 2011, Melanie and Shane O’Banion filed a petition in the Circuit Court of Jackson County seeking to adopt Amanda. The adoption petition was assigned to Judge King. On March 3, 2011, Raylinia filed a motion for contempt in the visitation action before Judge Smith, who scheduled a hearing on April 4, 2011. In this motion, Raylinia alleged that Amanda had denied visitation on two occasions. Upon Amanda’s motion, Judge Smith continued the contempt matter. It is undisputed that Raylinia was not made aware of the pending adoption.
On April 18, 2011, Judge King entered a decree for the adoption of Amanda by the O’Banions. It is also undisputed that Judge King had not been made aware of Raylinia’s visitation rights with P.S. at the time he granted the adoption. Three days after the adoption, Amanda filed a motion before Judge Smith to terminate Raylinia’s visitation rights with P.S. Amanda argued that Raylinia’s visitations rights with P.S. were derived from her relationship as a biological grandmother. She asserted that her adoption by the O’Banions severed this relationship and that Raylinia was no longer a grandparent entitled to visitation under section 9 — 13—103(b)(2).
On July 18, 2011, Judge Smith heard both Raylinia’s motion for contempt and Amanda’s motion to terminate visitation. At the hearing, Raylinia testified that Amanda had denied her visitation on Friday, February 25, 2011, because Amanda claimed that Raylinia did |4not have an appropriate car seat for the child. Rayli-nia stated that Amanda refused her offer to immediately purchase a new car seat and that Amanda would not allow her to borrow Amanda’s car seat. She said that Amanda also refused visitation on Saturday, February 26. Raylinia testified that she missed visitation the following Monday to attend a funeral, but she stated that Amanda did not permit visitation for the rest of that week. Raylinia said that the order allowed visitation while Amanda was working and that she observed Amanda’s vehicle at her place of employment during that week. Raylinia testified that, over the weekend, she and Amanda agreed that she would exercise visitation on alternating weekends from Saturday morning at 9:00 until Sunday evening at 5:00. She said that her visits had been consistent from that time forward and that she had also received one extra visit when Amanda asked her to keep P.S.
Raylinia further testified that Amanda frequently babysat for the O’Banions before she began living with them in 2006. She acknowledged that Amanda referred to them as “mom” and “dad” and that Amanda considered the O’Banions’ children as her siblings.
In her testimony, Amanda explained that she wanted the O’Banions to adopt her because they had taken care of her and had acted as her parents since age fifteen when Raylinia kicked her out of the house. She testified that extinguishing Raylinia’s rights as a grandparent of P.S. was not the full purpose for the adoption, but she admitted that it was one of the reasons for pursuing the adoption. Amanda stated that she no longer wanted a relationship with Raylinia and did not want Raylinia to be her mother. Amanda described their relationship as “rocky,” and she testified that they parted ways in September 2010 when 1,^Raylinia physically attacked her during an argument concerning Amanda’s removal of Raylinia from her Facebook page.
Amanda acknowledged that she did not allow Raylinia to visit with P.S. on February 25, 2011, because Raylinia’s car seat was too small. She believed that, based on the language of the order, Raylinia was not to have visitation the next day and the following week because her work schedule had changed. Amanda testified that, because of the change in her working hours, they agreed to weekend visitation as stated in the order. Amanda said that she had been compliant with the order ever since.
Melanie O’Banion testified that Amanda lived with her family through high school and that she left their home after a disagreement over a phone bill. Melanie said that she and her husband petitioned to adopt Amanda because they loved her and had acted as her parents, even after Amanda had moved out of their home. She testified that the adoption was “absolutely sincere” and that “she’s been mine since she was fifteen years old.” Melanie recalled that Raylinia told Judge King in 2006 that she did not want Amanda anymore. She spoke of Raylinia as being abrasive and hostile and said that Rayli-nia’s home had not been a happy place for Amanda.
After, the hearing, Judge Smith took both motions under advisement. A few days later, Raylinia’s counsel informed the court of his intent to file a petition to set aside the adoption. Consequently, Judge Smith delayed ruling on the motions for contempt and for termination of visitation rights, pending the outcome of the adoption matter. On October 24, 2011, Judge King set aside the adoption decree and held a hearing to give Raylinia the opportunity |fito be heard. That same day, Judge King entered an order granting the O’Banions’ petition to adopt Amanda. In the adoption decree, dated November 22, 2011, Judge King stated that he “gave due consideration to the effect that this Decree of Adoption will have on Raylinia Ramsey’s grandparent visitation rights with Amanda Scudder’s daughter.”
Thereafter, Judge Smith conducted a brief status hearing. On February 14, 2012, Judge Smith issued a memorandum opinion setting forth his decision. After recounting the facts, he held Amanda in contempt on two grounds. The judge found that Amanda had actively participated in the adoption for the purpose of avoiding compliance with the visitation order and that she also had unreasonably denied visitation because she disagreed with the court’s decision. As a result, Judge Smith sentenced Amanda to thirty days in jail, suspended upon her strict compliance with the visitation order. He also stated that he would award Raylinia costs and attorney’s fees. Further, Judge Smith denied Amanda’s motion to terminate visitation. In so ruling, the judge recognized that, pursuant to Arkansas Code Annotated section 9-9-215(a)(l) (Supp. 2011), the adoption terminated the legal relationships among Amanda and her biological relatives. In reference to Arkansas Code Annotated section 9-9-223 (Repl. 2009), he found that the adoption decree did not specifically terminate Raylinia’s visitation rights. Judge Smith then reasoned that Raylinia’s visitation rights were established by court order that preceded the adoption decree and that the adoption decree contained no finding terminating those rights. Thus, the judge ruled that the court-ordered visitation rights were not automatically terminated by the adoption.
Amanda filed a motion for reconsideration, challenging the circuit court’s findings and ^conclusions of law. On March 22, 2012, the circuit court entered its order incorporating the decision set out in its memorandum opinion. In this order, the court awarded Raylinia costs and attorney’s fees in the amount of $4,417.95, payable within 120 days. This appeal followed.
Termination of Visitation Rights
As her first point on appeal, Amanda contends that the circuit court erred by not terminating Raylinia’s grandparent-visitation rights. She asserts that Raylinia’s rights in P.S. were derivative of the mother-daughter relationship between her and Raylinia, and Amanda argues that the adoption decree severed all rights and legal relations between them, including Raylinia’s visitation rights. Amanda also asserts that the circuit court misapplied section 9-9-223. Further, she contends that the adoption and resulting severance of the biological mother-daughter relationship constitutes a material change in circumstances, and she argues that termination of Raylinia’s visitation rights was in the best interest of the child.
The issues raised on appeal require us to construe the relevant statutes. The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Broussard v. St. Edward Mercy Health Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385. The basic rule of statutory construction to which all interpretive guides must [ ¡¡yield is to give effect to the intent of the General Assembly. Falcon Cable Media LP v. Ark. Pub. Serv. Comm’n, 2012 Ark. 463, 425 S.W.3d 704. When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning. Voltage Vehicles v. Ark. Motor Vehicle Comm’n, 2012 Ark. 386, 424 S.W.3d 281.
This court has stated that any rights existing in grandparents must be derived from statutes. In re Adoption of Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000); Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997). Our grandparent-visitation statute provides in relevant part that a grandparent may petition a circuit court for reasonable visitation rights with respect to her grandchild if the child is illegitimate and the petitioner is the maternal grandparent of the illegitimate child. Ark.Code Ann. § 9-13-103(b)(2). Even as grandparent-visitation rights have been articulated by statutory expressions of public policy, so also have there been statutory declarations of public policy favoring the rights of an adoptive family over the interests of biological relatives. Vice, supra. With exceptions not applicable here, section 9-9-215(a)(l) provides that the effect of a final decree of adoption is to “terminate all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his or her former relatives for all purposes.” Additionally, a final decree creates “the relationship of 19parent and child between the petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner^]”
This court has made clear that a grandparent’s rights are derivative of his or her son’s or daughter’s parental rights. Suster v. Ark. Dep’t of Human Servs., 314 Ark. 92, 858 S.W.2d 122 (1993); see also Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006); Vice, supra. Based on this principle and section 9-9-215(a)(l), we have held that, when a natural parent consents to the adoption of a child by another person, the consenting parent’s relatives lose their legal rights to visitation because such rights are derivative of the consenting parent’s rights and likewise are terminated when parental rights are ended. Vice, supra. In commenting on the effect of an adoption, we have said that it is “unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring grandparents and other blood kin who are related to the child[.]” Wilson v. Wallace, 274 Ark. 48, 50, 622 S.W.2d 164, 166 (1981); see also Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978) (observing the strong public policy expressed in the adoption statutes to strengthen the relationship between an adopted child and his or her adoptive family and to terminate the previous family relationship). We have also held that, when a son’s or daughter’s parental rights in a child are terminated in a dependency-neglect proceeding, the derivative rights of the grandparent to visitation with the child are also extinguished. Suster, supra.
We have not had the opportunity to address the effect of an adoption on the visitation rights of a grandparent where, as here, the individual adopted is the adult daughter of the 110grandparent who enjoys visitation with the offspring of the daughter. Thus far, our cases have dealt with the more typical situation involving the severance of grandparent-visitation rights when parental rights are terminated or where the offspring of a parent is adopted. See Vice, supra; Suster, supra. However, section 9-9-215(a)(l) and our caselaw applying the statute portend that a grand parent’s visitation rights are also extinguished in the situation before us, as the rationale is the same. Here, the grandmother’s visitation rights are derived from her biological daughter because they spring from her relationship as the maternal grandmother of the child, pursuant to section 9-13-103(b)(2). Upon the daughter’s adoption, section 9-9-215(a)(l) effects the termination of “all legal relationships between the adopted individual and his or her biological relatives,” such that they are “strangers ... for all purposes.” This effect of an adoption “[includes ... the interpretation or construction of ... statutes[.]” Ark.Code Ann. § 9-9-215(a)(l). It must follow that the grandmother’s derivative rights of visitation are lost upon her daughter’s adoption. Simply put, the biological grandmother becomes a stranger who is no longer entitled to visitation under the grandparent-visitation statute as a result of adoption. That the visitation rights preceded the adoption is of no moment because the adoption severed that right by operation of law, just as in cases involving the termination of parental rights or the adoption of a parent’s offspring. See Suster, supra; Vice, supra.
The circuit court also reasoned that the court presiding over the adoption did not specifically terminate Raylinia’s visitation rights in the adoption decree. This statement made |nby the court stems from section 9-9-223, which provides as follows:
Except as provided in this subchapter with regard to parental rights, any rights to a child which a nonparental relative may derive through a parent or by court order may, if the best interests of the child so require, be terminated in connection with a proceeding for adoption or for termination of parental rights.
Contrary to the circuit court’s reasoning, this statute does not diminish the effect of an adoption on established visitation rights as provided in section 9-9-215. By its plain language, section 9-9-223 merely grants a court in an adoption proceeding the authority to terminate visitation rights granted by another court. However, we agree with Amanda that section 9-9-223 does not apply in this situation. The adoption code defines “child” as a son or daughter, whether by birth or by adoption. Ark. Code Ann. § 9-9-202(2) (Repl.2009). The “child” referred to in the statute is the adopted child, which is Amanda, not P.S. Because the visitation rights in this case involve P.S., the statute is not applicable here.
In accordance with section 9-9-215(a)(l), we hold that Amanda’s adoption terminated Raylinia’s visitation rights in P.S. Accordingly, the circuit court erred by continuing to recognize Raylinia’s visitation rights following the adoption. In light of this holding, we need not consider Amanda’s alternative argument that a material change in circumstances occurred such that continuing visitation was no longer in the child’s best interest.
Contempt and Attorney’s Fees
Amanda asserts that the circuit court erred in finding that she was in contempt of court 112and in imposing the sanctions of incarceration and attorney’s fees and costs. She contends that the court erred in finding that she willfully denied visitation, and she argues that she cannot be held in contempt for exercising her legal right to consent to an adoption. Further, she contends that the circuit court erred by awarding Raylinia attorney’s fees, in particular, fees for legal services rendered by her attorney in connection with the adoption case.
The disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt. Guffey v. Counts, 2009 Ark. 410, 2009 WL 2971752; Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). However, before one can be held in contempt for violating the court’s order, the order must be definite in its terms and clear as to what duties it imposes. Terry v. White, 374 Ark. 366, 288 S.W.3d 194 (2008); Omni Holding & Dev. Corp. v. C.A.G. Invs., Inc., 370 Ark. 220, 258 S.W.3d 374 (2007). Contempt is divided into criminal contempt and civil contempt. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). The purpose of criminal contempt is to preserve power, vindicate the dignity of the court, and punish for disobedience of the court’s order. Id. By comparison, civil contempt proceedings are instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders made for the benefit of those parties. Ark. Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998). The contempt in this case was civil, not criminal. The award of attorney’s fees and costs was for the benefit of Raylinia and was thus remedial in nature. Ark. Dep’t of Health & Human Servs. v. Briley, 366 Ark. 496, 237 S.W.3d 7 (2006). Although Amanda was sentenced to a term in jail, the contempt was nonetheless civil because she was provided the mechanism by which she could purge the contempt, i.e., | ^maintaining strict compliance with the visitation order. Id. The standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004).
Amanda maintains that the circuit court’s finding that she willfully denied visitation is contrary to the evidence. She asserts that she complied with the visitation order after the first week' and that she refused visitation only one time when Raylinia allegedly did not have an appropriate car seat. We find no merit in this argument. The order granted Rayli-nia visitation while Amanda was at work on weekdays from 4:45 p.m. to 7:45 p.m. The order permitted alteration of the schedule to weekend visitation should Amanda’s working hours change. The testimony established that Raylinia did not receive visitation on the Friday or Saturday after the visitation order was entered and that she was denied scheduled visits the following week. Although Amanda testified that her work schedule had changed, Raylinia testified that she observed Amanda’s car at work during the hours when visitation was to occur. In contempt proceedings, the judge determines the credibility of witnesses. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). Based on Raylinia’s testimony, which the circuit court found credible, we cannot say that the circuit court’s finding of contempt is clearly against the preponderance of the evidence. Because we affirm the circuit court’s finding of contempt on this basis, we need not decide whether the court erred by holding Amanda in contempt for participating in the adoption proceeding.
With regard to attorney’s fees, as a general rule, such fees are not allowed in the absence of a statute permitting their allowance. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 14(2007). However, we have recognized that it is within the inherent power of a court to allow attorney’s fees in certain matters not specifically cov ered by statute, including contempt proceedings. Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995), overruled mi other grounds by Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004); Feazell v. Feazell, 225 Ark. 611, 284 S.W.2d 117 (1955). The decision to award fees and the amount thereof are matters within the discretion of the circuit court. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699.
Here, the circuit court awarded Raylinia $4,417.45 in attorney’s fees and costs. We find no abuse of discretion in the decision to award fees. However, we agree with Amanda that a portion of the attorney’s fee cannot stand. A review of the time sheet shows that counsel included hours devoted to the adoption proceeding. As we noted, the circuit court has the authority to award fees in the contempt matter. However, that authority does not extend to fees incurred in separate litigation. Therefore, the circuit court abused its discretion in the amount of fees awarded, and we reverse and remand on that issue.
Affirmed in part; reversed in part; reversed and remanded in part.
HART, J., concurs in part and dissents in part.
. Citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), Amanda also raises the argument that the circuit court erred by failing to accord a presumption in favor of her request to cease visitation. However, she did not argue below that she was entitled to such a presumption in the proceeding to terminate established visitation rights. It is well settled that this court will not consider arguments raised for the first time on appeal. In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307.
. The exceptions include the spouse of the petitioner in a stepparent adoption. Ark. Code Ann. § 9-9-215(a)(1). The statute also grants visitation rights to parents of a biological parent who dies before the petition for adoption is filed. Id. In addition, sibling visitation in certain cases may continue following an adoption under the circumstances specified in section 9-9-215(c).
. Amanda maintains that this statute may be unconstitutional because it does not give a presumption in favor of a fit parent's rights. This argument was not raised below. It is well settled that this court will not address an issue raised for the first time on appeal, even a constitutional argument. Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822. | [
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LARRY D. VAUGHT, Judge.
| Appellant Janie Evins appeals the judgment entered by the Pulaski County Circuit Court on December 14, 2011. The judgment denied her renewed motion to dismiss the complaint of appellee Darlene Carvin; found that Evins breached the settlement agreement executed between the parties, ordered Evins to pay damages to Carvin in the amount of $166,231.31; and dismissed Evins’s counterclaim for offsets and credits. On appeal, Evins argues that the trial court erred in denying her motion to' dismiss. Alternatively, she argues that the trial court erred in dismissing her counterclaim. We agree with Ev-ins’s first point on appeal, therefore, we reverse and dismiss Carvin’s complaint. Accordingly, Evins’s alternative point on appeal is moot.
In 1997, Evins borrowed $142,000 from Carvin to purchase real property located at 809 West Grand in Garland County, Arkansas. Evins made some payments on the loan, but no note or mortgage was filed because the parties were unable to agree on the terms of the 12loan. On January 16, 2002, the parties entered into a settlement agreement, wherein Evins acknowledged the debt owed to Carvin and agreed to make monthly payments. The agreement also contained other requirements to be fulfilled by Evins in exchange for Carvin’s consent to withhold litigation.
On June 19, 2007, Carvin filed a complaint in the Garland County Circuit Court (first complaint), seeking to enforce the settlement agreement due to Evins’s alleged breach of the agreement. The first complaint was dismissed without prejudice on August 25, 2008, based on Carvin’s failure to prosecute the case.
On August 25, 2009, Carvin filed a second complaint in the Garland County Circuit Court (second complaint), restating the allegations made in the first complaint. Carvin again sought enforcement of the settlement agreement and requested damages for Evins’s breach of the agreement. This complaint was dismissed by the trial court on October 4, 2010, in an order that stated:
On this date there came to be heard [Evin’s] Renewed Motion to Dismiss due to [Carvin’s] failure to timely file a pretrial brief herein_ The Court ...
DOES FIND:
That an Order was entered herein on or about the 1st day of April 2010, requiring [Carvin] to file a Pre-Trial Brief on or before May 1, 2010. That [Carvin] failed to file such brief until September 30, 2010, less than four (4) business days prior to the scheduled trial in this matter.
[Carvin’s] complaint against [Carvin’s] is hereby dismissed without prejudice.
IsCarvin did not appeal the dismissal of the second complaint.
Carvin filed a third complaint against Evins on April 12, 2011, in the Pulaski County Circuit Court (third complaint), re stating the allegations made in the prior two complaints. In response, Evins filed a motion to dismiss, arguing that Carvin’s cause was barred because the Garland County Circuit Court’s dismissal of the second complaint operated as an adjudication on the merits pursuant to Arkansas Rule of Civil Procedure 41(b) (2012). Following a hearing on the motion, the Pulaski County Circuit Court denied it stating,
I think it’s undisputed that whether or not [the Garland County Circuit Court] dismissed [the second complaint] was purely discretionary. There wasn’t any requirement that he dismiss the case for lack of prosecution or anything of that nature. Because of that discretionary nature of this case, the fact that he took active steps to designate this dismissal as being without prejudice indicates to me that whatever sanction he was handing down for failure to comply with his order was intended by him to be without prejudice. I think had he simply dismissed the case without any positive actions, I would likely be dismissing this case.
The trial court’s order denying Evins’s motion to dismiss was entered on July 28, 2011.
Thereafter, Evins filed an answer, and the case proceeded to a bench trial on December 6, 2011. On the morning of trial, Evins renewed her motion to dismiss, which the trial court again denied. At the conclusion of trial, the court found that Evins had breached the settlement agreement, awarded Carvin $166,281.31, and dismissed Evins’s counterclaim. The trial court entered a judgment on December 14, 2011, detailing these findings and denying Evins’s renewed motion to dismiss. It is from this judgment that Evins appeals.
| ¿Before reaching the merits of Ev-ins’s appeal, we address jurisdictional and preservation issues raised by Carvin. The first argues that we lack jurisdiction because Evins’s notice of appeal is fatally defective, specifically, Carvin argues that the notice failed to “state that the appealing party abandons any pending but unresolved claim,” in violation of Ark. R.App. P.-Civ. 3(e)(vi) (2012), and it failed to “designate the judgment, decree, order or part thereof appealed from,” in violation of Ark. R.App. P.-Civ. 3(e)(ii) (2012). We disagree.
While the filing of a notice of appeal is jurisdictional, our supreme court has required only substantial compliance with the procedural steps set forth in Rule 3(e), Duncan v. Duncan, 2009 Ark. 565, at 4, 2009 WL 3786850, provided that the appel-lee has not been prejudiced by the failure to comply strictly with the rule. Rogers v. Tudor Ins. Co., 325 Ark. 226, 231, 925 S.W.2d 395, 397 (1996).
After reviewing the notice of appeal filed by Evins, we hold that she substantially complied with Rule 3(e). Her notice, which was timely filed, specified the party taking the appeal, designated the trial-court judgment from which she appealed, and stated that she ordered the transcript and made financial arrangements for it. Moreover, she ordered and paid for the transcript. Further, Carvin was not prejudiced by the omission of the statement that Evins abandoned any pending but unresolved claim because there were no pending but unresolved claims, Other than Carvin’s complaint, which was fully adjudicated in the judgment, the only other claim was Evins’s counterclaim, which was dis missed with prejudice by the trial court’s December 14, 2011 judgment.
| BWith regard to Carvin’s allegation that Evins’s notice of appeal is defective because she failed to designate the judgment, Carvin concedes that Evins’s notice of appeal referenced the trial court’s December 14, 2011 judgment that denied Evins’s renewed motion to dismiss. However, Car-vin contends that Evins should have designated in her notice of appeal the trial court’s preceding order of July 28, 2011, denying the motion to dismiss following the hearing on that motion. Again, we disagree.
Evins was not required to designate the order of July 28, 2011, in her notice of appeal. First, that order was not final. Rule 2 of the Arkansas Rules of Appellate Procedure — Civil (2012) lists the orders from which an appeal may be taken. Generally, an appealable order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Plunk v. State, 2012 Ark. 362, at 2-3, 2012 WL 4471186. Even though an issue on which a court renders a decision might be an important one, an appeal will be premature if the decision does not, from a practical standpoint, conclude the merits of the case. Id. at 3. Where a trial court denies a defendant’s motion to dismiss, we have held that the denial is not a final judgment from which an appeal may be taken, as the only matter disposed of by the order is that the case should proceed to trial, and those matters put in issue are not lost by continuing through a trial of the matter. Id; see also C.P. v. State, 2011 Ark. App. 415, at 2, 2011 WL 2140378 (“[W]e have long held that the denial of a motion to dismiss is not an appealable order”).
Secondly, an appeal from any final order also brings up for review any intermediate orders involving the merits and .necessarily affecting the judgment. Plunk, 2012 Ark. 362, at | fi3, 2012 WL 4471186 (citing Ark. R.App. P.-Civ. 2(b) (2012)). In pretrial motions, Evins renewed her motion to dismiss, which was denied by the trial court. The trial court’s final, appealable order of December 14, 2011, expressly stated that Evins’s orally renewed motion to dismiss was denied. Because the judgment included the denial of Evins’s motion to dismiss, and the intermediate order of July 28,2011 “necessarily affected the judgment,” Ev-ins’s notice of appeal properly designated the judgment from which she appealed.
As for Carvin’s preservation concern, she contends that because the December 14, 2011 judgment does not include the specific arguments made by Evins at the motion-to-dismiss hearing, those arguments are not preserved, and she is limited on appeal to the arguments made during her renewed motion to dismiss prior to trial. Carvin cites no authority for this proposition. There is no requirement that a trial court’s order denying a motion to dismiss specifically lists all the arguments made in support of the motion in order to preserve those arguments for appeal. The arguments are preserved by making them to the trial court, either orally in a hearing or written in briefs, not by having the trial court recite them in its order.
Having disposed of Carvin’s jurisdictional and preservation arguments, we address Evins’s first point on appeal, which is that the trial court erred in denying her motion to |7dismiss Carvin’s third complaint. More specifically, she argues that Carvin’s third complaint is barred as a matter of law because dismissal of Carvin’s second complaint operated as an adjudication on the merits pursuant to Arkansas Rule of Civil Procedure 41(b).
In Jonesboro Healthcare Center, LLC v. Eaton-Moery Environmental Services, Inc., our supreme court noted that generally, a Rule 41(b) dismissal is reviewed under the abuse-of-discretion standard. 2011 Ark. 501, at 3, 385 S.W.3d 797, 799 (citing Wolford v. St. Paul Fire & Marine Ins. Co., 331 Ark. 426, 435, 961 S.W.2d 743, 748 (1998)). However, our supreme court held that because it was construing a court rule, the appropriate appellate review was de novo. Id., 385 S.W.3d at 799. Our court is not bound by the trial court’s interpretation of a statute or court rule, but “in the absence of a showing that the trial court erred in its interpretation ... that interpretation will be accepted as correct on appeal.” Holliman v. Johnson, 2012 Ark. App. 354, at 5, 417 S.W.3d 222, 225.
When we construe a court rule, we use the same means and canons of construction that we use to interpret statutes. Jonesboro Healthcare Ctr., 2011 Ark. 501, at 3, 385 S.W.3d at 799. In considering the meaning and effect of a statute or rule, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id., 385 S.W.3d at 799. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. Id., 385 S.W.3d at 799. In ascertaining the drafter’s intent, we often examine the history of the statute or rule involved, as well as the contemporaneous conditions at the time of its enactment, the consequences of interpretation, |sand all other matters of common knowledge within the court’s jurisdiction. Id. at 3-4, 385 S.W.3d at 799.
Rule 41(b) provides:
(b) Involuntary Dismissal, In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket, A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
Ark. R. Civ. P. 41(b).
Carvin’s second complaint was dismissed for either want of prosecution or failure to comply with an order of the court. Giving the words of Rule 41(b) their ordinary and usually accepted meaning in common lan guage, dismissal of the second complaint was involuntary. Because Carvin’s first complaint was involuntarily dismissed for lack of prosecution, the dismissal of Car-vin’s second complaint operated, as a matter of law, as an adjudication on the lamerits. Accordingly, her third complaint was barred. Ark. R. Civ. P. 41(b). Thus, the trial court erred in denying Evins’s motion to dismiss the third complaint.
In an effort to avoid the application of Rule 41(b) to her case, Carvin asserts multiple arguments, none have merit. She argues that the trial court’s dismissal of the second complaint was based on authority other than Rule 41(b) and cites Carton v. Missouri Pac. R.R. Co., 295 Ark. 126, 747 S.W.2d 93 (1988). Carton is inapplicable, however, because it involved Rule 41(a) and voluntary dismissals involving subject-matter jurisdiction. Beyond citing Carton, Carvin fails to identify any “other authority” that served as the basis of the involuntary dismissal of the second complaint. We hold that this argument is unpersuasive under the circumstances of this case, where the trial court involuntarily dismissed the second complaint for either lack of prosecution or failure to comply with its scheduling order.
According to Carvin, another reason Rule 41(b) does not apply is because the trial court’s order dismissing the second complaint did not expressly state that dismissal was based on that rule. Carvin does not cite authority in support of this argument. And we note that Rule 41(b) does not require it. Next, Carvin argues that Rule 41(b) does not apply because dismissal of the second complaint was based on Evins’s motion, which is not eon-templated |10by the rule. We disagree. Rule 41(b) does not limit its applicability to sua sponte motions for dismissal by the trial court.
Carvin also asserts that Rule 41(b) cannot be applied in this case because she did not receive notice and an opportunity to show cause, required by Rule 41(b), why the second complaint should not be dismissed. The facts in this case do not support this argument as Carvin had notice and an opportunity to defend against the dismissal of the second complaint. The record discloses that Carvin had the opportunity to respond to two motions to dismiss filed by Evins the second complaint. Carvin was successful in defending against the first motion to dismiss because the trial court gave her an extension in which to file the pretrial brief.
Furthermore, our supreme court held that the failure to receive notice under Rule 41(b) did not render the dismissal of a plaintiffs second complaint for lack of prosecution void where he took no interest or action for over three years. Watson v. Connors, 372 Ark. 56, 61-62, 270 S.W.3d 826, 830-31 (2008); see also City of Little Rock v. McGeorge Contracting Co., Inc., 2010 Ark. App. 765, at 3-5, 377 S.W.3d 523, 526-27 (holding that lack of notice pursuant to Rule 41(b) did not void dismissal of the plaintiffs second complaint that was dismissed for failure to prosecute sixteen months after it was filed). In the case at bar, Carvin failed to prosecute the first two causes she filed against Evins. In both cases, more than a year passed with no discovery or depositions. In the second case, Carvin failed to file a pretrial brief that was ordered by the trial court. Carvin already had her first complaint dismissed for failure Into prosecute, so she was on notice that her second complaint might be dismissed for the same reason.
Carvin’s final argument is that applying Rule 41(b) and dismissing her second complaint with prejudice circumvents the clear intent of the ■ Garland County Circuit Court, which was to dismiss the second complaint without prejudice. The trial court agreed as it stated at the pretrial hearing on Evins’s renewed motion to dismiss:
It’s my recollection that the precedent that was presented to the judge was a precedent of a dismissal with prejudice, and he took his pen and wrote “without.” Jo he took the active step to change a precedent from with prejudice to without prejudice. And I don’t know one way or another whether or not he knew or didn’t know that it had been previously dismissed. So the motion to be dismissed will be denied.
However, the two-dismissal rule, as set forth in Rule 41(b), is not a matter within the trial court’s discretion. Once the Garland County Circuit Court involuntarily dismissed the second complaint for failure to prosecute or failure to comply with an order of the court, the dismissal operated as an adjudication on the merits. The Garland County Circuit Court’s .intent to dismiss Carvin’s second complaint without prejudice was not effective:
[T]he specification that a dismissal is “without prejudice” must not be inconsistent with.a governing statute or rule in the jurisdiction, for example, by statute or rule of court in many jurisdictions, a voluntary dismissal operates as a bar to another action on the same claim when filed by a plaintiff who has once dismissed in any court of the United States or any state an action based on or including that claim. In such circumstances, a notation in the record that a nonsuit or dismissal is “without prejudice,” or words to that effect, is not effective ’because the judgment operates as a bar as a matter of law.
Restatement (Second) of Judgments § 20(1) cmt. h (1982). While the Garland County Circuit Court was incorrect in stating that its dismissal of the second complaint was “without | ^prejudice,” that in no way barred the operation of Rule 41(b). If Carvin disagreed with the involuntary dismissal of her second complaint, her remedy was to appeal that dismissal. She did not.
In sum, we hold that the Garland County Circuit Court’s dismissal of Carvin’s second complaint was based on her failure to prosecute or her failure to comply with a court order as provided in Rule 41(b). Because Carvin’s first complaint had been previously dismissed, the second dismissal operated as an adjudication on the merits and barred Carvin’s third complaint as a matter of law. Accordingly, we hold that the trial court erred in denying Evins’s motion to dismiss Carvin’s third complaint. Therefore, we reverse and vacate the trial court’s judgment and dismiss this case. Our holding renders Evins’s second point on appeal moot.
Reversed and dismissed.
HARRISON and WOOD, JJ„ agree.
. The precedent dismissing the second complaint was prepared by Evins (a lawyer who represented herself) and provided that dismissal was with prejudice. However, the trial judge, in his handwriting, added the word "out,” which changed the order to read that the dismissal of the second complaint was without prejudice.
. This is Evins’s second appeal. In her first, the transcript of the motion-to-dismiss hearing was not in the record, thus, we remanded the case for Evins to supplement the record with the hearing transcript. Evins v. Carvin, 2012 Ark. App. 622, 2012 WL 5451954.
. See also Ark. R.App. P.-Civ. 3(a) (2012) (providing that an appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment).
. The December 14, 2011 judgment merely stated, "[Evins’s] orally renewed motion to dismiss is denied.”
. Our review of the record reveals that after the second complaint was filed in August 2009, Carvin was ordered by the trial court to file a pretrial brief, although the record does not disclose its original due date. On or about April 1, 2010, by order of the trial court, Carvin’s pretrial-brief deadline was extended to May 1, 2010. Carvin filed her pretrial brief on September 30, 2010. On October 4, 2010, Evins filed a renewed motion to dismiss, arguing that she received the pretrial brief on October 4, 2010, “some four months late” and two days prior to trial. Evins further alleged that Carvin failed to prosecute the case in any manner.
. This holding is entirely consistent with the stated purpose of Rule 41(b) “to allow the trial courts to clean up their dockets and get stale cases off the active docket.” Jonesboro Healthcare, 2011 Ark. 501, at 9-10, 385 S.W.3d at 802. Carvin's first complaint was on the docket without activity for fourteen months before it was dismissed for lack of prosecution. Carvin’s second case was inactive on the docket for more than thirteen months before it was dismissed for lack of prosecution or failure to comply with a court order. | [
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ROBERT J. GLADWIN, Chief Judge.
11Appellant Mary Weatherspoon seeks reversal of the July 19, 2012 order of the Pulaski County Circuit Court terminating her parental rights to her two minor children, T.N.l and T.N.2. She argues that there was insufficient evidence to support the circuit court’s finding that termination was in the best interest of the children.
We find no error and affirm the circuit court’s order.
The Arkansas Department of Human Services (DHS) became involved when T.N.2 reported to her school’s employees that her brother, T.N.l, had sexually abused her on January 14, 2011. After an investigation, DHS exercised a seventy-two-hour hold on T.N.2 on February 28, 2011. An order for emergency custody was granted by the circuit court on |2March 2, 2011. The circuit court subsequently adjudicated T.N.2 dependent-neglected as a result of appellant’s unfitness, neglect, and instability, and found it in T.N.2’s best interest to remain in the care of DHS on June 3, 2011. When adjudicating T.N.2, the circuit court took judicial notice of two prior dependency-neglect cases concerning T.N.2’s siblings, appellant’s five older children, D.W., J.W., T.N.l, R.S.l, and R.S.2. Appellant appealed the adjudication of T.N.2 as dependent-neglected to this court, see Weatherspoon v. Ark. Dep’t of Human Servs., 2012 Ark. App. 34, 2012 WL 76165; however, this court deferred to the circuit court’s superi- or opportunity to observe, witness, and evaluate the credibility of the parties and affirmed the decision of the circuit court.
Appellant participated in the DHS case plan and claims to have complied with most aspects of the case plan and relevant court orders. She was ordered to maintain stable housing and employment, remain drug and alcohol free, complete parenting classes, submit to a psychological evaluation, and follow any recommendations. She has had no positive drug screens. Appellant completed parenting classes and her psychological evaluation. She maintained significant contact with T.N.l and T.N.2 until her visitation was removed.
Five months after the review hearing, however, T.N.l was removed from appellant’s custody. A second dependency-neglect case began before the circuit court based on allegations that appellant was impeding reunification services in the case concerning T.N.2, and that T.N.l was attending school dirty, without appropriate clothing, and hungry. T.N.l was subsequently adjudicated dependent-neglected based on appellant’s conduct, including her history with DHS. The circuit court found that appellant had subjected her children to ^aggravated circumstances and that there was little likelihood that services to the family would result in reunification with the family based on the “full array of services” appellant had been offered in 2005 and in the case involving T.N.2. The goal of T.N.2’s case was set as termination of parental rights. On the same day T.N.l was adjudicated dependent-neglected, the circuit court held a permanency-planning hearing in T.N.2’s dependency-neglect case. The circuit court changed the goal in T.N.2’s case from reunification to termination of parental rights.
Three months later, a termination-of-parental-rights hearing was held. The first witness to testify was appellant’s current therapist, Letha Richardson. The therapist stated that appellant made only “slight progress” and still had issues that she needed to address. Richardson was not aware that appellant had previous therapy, and Richardson acknowledged never having spoken with that therapist, relying only on information that appellant supplied. Richardson was also unaware of the incident where appellant rammed her vehicle into another vehicle, and Richardson agreed that such information would be important relating to appellant’s treatment. Richardson opined that appellant needed to work on her depression issues and her inability to manage her emotions and deal with unforeseen circumstances, but she was unable to say how much longer appellant would need to be in therapy. Additionally, Richardson could not say if T.N.l and T.N.2 would be in danger if returned to appellant.
The next witness was appellant’s previous therapist, Sylvia Jones. She began seeing appellant on April 18, 2011, and discharged appellant on November 30, 2011, because | ^appellant completed the program. Jones worked with appellant on her anger and communication issues. Jones testified that appellant showed progress in anger management and learned techniques to deal with her anger. However, Jones was unaware of the assault charge that occurred prior to appellant’s discharge from therapy. Jones was not aware that appellant was arrested for “ramming her car into someone else and getting a tire iron and chasing them.” She conceded that she would not have discharged appellant from therapy had she known about this “major incident.” Jones stated that completion of counseling does not necessarily mean the person benefitted from the counseling. She also testified that there is nothing additional that could be offered to a person who has completed the program.
The DHS caseworker, Tammy Blount, testified that she did not see improvement in appellant’s communication with DHS. She explained that she did not think any additional services would make a difference. Despite all the services offered to appellant, Blount unequivocally stated that she did not believe the children would be safe with appellant.
The children’s father and appellant’s husband, Terrell Nichols, also testified. He stated that appellant, in the month prior to the termination, had -threatened and harassed him. As a result, he pressed charges and obtained a no-contact order.
Dr. Karen Boyd-Worley, who was qualified as an expert, also testified at the termination hearing. Dr. Worley is a psychologist and director of the Family Treatment Program, which is a clinic that provides mental-health treatment for sexually abused children and their families. Dr. Worley testified about the family’s participation in therapy for the sexual abuse between T.N.l and T.N.2. She explained that there was a family session with JjjT.N.l where he admitted he touched T.N.2 inappropriately, and that appellant was proud of T.N.l during that session. In a subsequent session, however, when T.N.l was apologizing to T.N.2, appellant was not engaged despite T.N.l’s request that she participate. Dr. Worley said appellant “kind-of turned her back to the children” and had stated to Dr. Worley that she was “really, really angry to think her child would be removed for such a silly thing, that it was not serious, and that he really hadn’t done it.” As a result, T.N.2 had a very difficult time with the session. After multiple instances where appellant did not seem engaged in the therapeutic process, Dr. Worley determined that it was not appropriate to have appellant in the sessions with T.N.l and T.N.2. Dr. Worley testified that appellant’s actions made it impossible to address the sexual-abuse issues with T.N.l and T.N.2, the joint sessions with appellant were destructive to the children, and they had “hit a stalemate.” She stated that appellant did not make progress and there was no additional therapy that could have been provided to help her. Dr. Worley agreed that appellant sabotaged the efforts to address the sexual-abuse issues and that appellant’s anger issues were a barrier. Dr. Worley believed the children would be at risk of harm if returned to appellant because it did not appear appellant would adequately supervise them or respond appropriately if there were any allegations of sexual abuse. Dr. Worley was also concerned about appellant’s anger issues and any violence the children would be exposed to. According to Dr. Worley, appellant likely understood the concepts she learned in her anger-management program but did not seem interested in implementing those concepts. Dr. Worley stated that appellant did not benefit from therapy |fiand she had “no confidence [appellant] would protect T.N.2 if she came again and reported some type of sexual abuse.”
Appellant also testified. At the time of the termination hearing, appellant had been on probation for three years. Appellant pled guilty to assault after she ran her vehicle into another vehicle. Her thirteen-year-old son was in the car during this incident. Appellant did not understand how the assault incident would raise a concern that she did not benefit from anger management, and she did- not believe the two things were related.
The circuit court terminated appellant’s parental rights on July 19, 2012, finding it in the best interest of T.N.l and T.Ñ.2 to terminate appellant’s parental rights and place the children for adoption. Appellant filed a timely notice of appeal on July 31, 2012.
Termination of a parent’s rights must be based on clear and convincing evidence that it is in the best interest of the children, considering the likelihood that the children will be adopted if the parent’s rights are terminated and the potential harm caused by returning the children to the custody of the parent. Latham v. Ark. Dep’t of Health & Human Servs., 99 Ark.App. 25, 256 S.W.3d 543 (2007); Ark.Code Ann. § 9-27-341(b)(3)(A). The court must also find one of the grounds outlined in Arkansas Code Annotated section 9 — 27—841(b)(3)(B) (Supp. 2011).
The rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Trout v. Ark. Dep’t of Human Servs., 84 Ark.App. 446, 146 S.W.3d 895 (2004). A circuit court’s order terminating parental rights must be based on findings proven by clear band convincing evidence pursuant to Arkansas Code Annotated section 9-27-341(b)(3). Clear and convincing evidence is defined as the degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Ullom v. Ark. Dep’t of Human Servs., 67 Ark. App. 77, 992 S.W.2d 813 (1999).
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Benedict v. Ark. Dep’t of Human Servs., 96 Ark.App. 395, 242 S.W.3d 305 (2006). A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proved by clear and convincing evidence. Causer v. Ark. Dep’t of Human Servs., 93 Ark.App. 483, 220 S.W.3d 270 (2005). On appeal, the appellate court will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Ullom, supra. 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. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006). This, however, does not mean that the appellate court is to act as a “super factfinder,” substituting its own judgment or second guessing the credibility determinations of the circuit court; the appellate court reverses only those cases where a definite mistake has occurred. Benedict, supra.
The circuit court in this case terminated appellant’s parental rights after finding that, with respect to T.N.l and T.N.2, despite reasonable services from DHS, appellant had not remedied the issues that caused removal or the subsequent issues that arose after removal, thus making it in the best interest of T.N.l and T.N.2 to sever the parental relationship under [¡^Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a). Appellant argues that the circuit court erred in finding that she is incapable of providing a safe and healthy environment and that it was in T.N.l’s and T.N.2’s best interest to sever their familial ties with appellant.
We disagree. Arkansas law requires that a best-interest finding be based upon a consideration of at least two factors: (1) the likelihood that, if parental rights are terminated, the juvenile will be adopted; and (2) the potential harm caused by “continuing contact with the parent-” Ark.Code Ann. § 9-27-341(b)(3)(A). It is the overall evidence, not proof of each factor, that must demonstrate that termination is in the child’s best interest. McFarland v. Ark. Dep’t of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005). The potential-harm evidence, moreover, must be viewed in a forward-looking manner and considered in broad terms. Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 285 S.W.3d 277 (2008).
Adoptability
Regarding adoptability, Wendy Childs, the DHS-assigned adoption specialist, opined that, if appellant’s parental rights were terminated, T.N.l and T.N.2 would be adopted. Moreover, appellant does not specifically challenge the finding that the children were adoptable; as such, this court is left to examine whether the circuit court’s finding that returning the children to appellant would subject them to potential harm is clearly erroneous. Based on Childs’s testimony, and because the circuit court considered the likelihood that the children would be adopted, we hold that this prong of the circuit court’s best-interest finding does not warrant reversal.
Potential Harm
When making the decision whether to terminate parental rights, the circuit court has a duty to look at the case as a whole and how the parent has discharged her parental duties, the substantial risk of serious harm the parent imposes, and whether the parent is unfit. In re Adoption of KM.C., 62 Ark.App. 95, 969 S.W.2d 197 (1998). This “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).
Appellant argues that this prong of the best-interest analysis was not proved because she completed portions of her case plan, had a safe home, and was ready to have her children returned to her care. Progress toward or even completion of the case plan is not a bar to termination of parental rights. Camarillo-Cox v. Ark Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Even full completion of the case plan is not determinative of the outcome of the termination proceeding. 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 a parent capable of caring for the child; mere compliance with the orders of the court and DHS is not sufficient if the roots of the parent’s deficiencies are not remedied. Lee, supra.
While appellant completed portions of the case plan, including anger-management classes, testimony indicated that the issue had not been resolved. Therapists Sylvia Jones and Letha Richardson, DHS caseworker, Tammy Blount, appellant’s husband, Terrell Nichols, and Dr. Karen Boyd-Worley, all testified regarding appellant’s anger-control problem, and 11flwe hold that the evidence supports the circuit court’s finding that the anger-control problem could expose the children to potential harm.
Finally, appellant argues that she cannot be an unfit parent because DHS closed the previous cases concerning appellant and her children and because DHS did not remove all of her children from her home. Appellant asserts that if she is seen as an appropriate parent for one child, she should be seen as an appropriate parent for all her children. Appellant did not make this particular argument to the circuit court; as such, it is not preserved and will not be considered. See Johnson v. Ark Dep’t of Human Servs., 2012 Ark. App. 537, 2012 WL 4478546.
Even if the argument had been preserved, when making its best-interest analysis, the circuit court must make an individual determination whether termination is in each child’s best interest and cannot treat the children as an amorphous group in which the best interest of one will meet the interests of all. Dominguez v. Ark Dep’t of Human Servs., 2009 Ark. App. 404, 2009 WL 1406284. This specific case only concerned appellant’s youngest two children, T.N.l and T.N.2. The circuit court acknowledged previous issues with appellant’s older children but did not think it could do anything for those children because they were older — approximately nineteen, seventeen, sixteen, and thirteen years old — and that “the die is cast with them.” The circuit court stated that T.N.l and T.N.2 were young and “still have a potential and they still have a future and it’s still important where they live and what household they’re in.” Additionally, T.N.l and T.N.2 suffered abuse, whereas there were never similar allegations regarding the older children. We hold that it was not reversible | n error for the circuit court to distinguish between T.N.l and T.N.2 and their older siblings when making its best-interest analysis. See Dominguez, supra.
Affirmed.
WYNNE and HIXSON, JJ., agree.
. We note that Jessica S. Yarbrough entered an appearance on behalf of appellant in this matter on January 25, 2013. | [
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WAYMOND M. BROWN, Judge.
| Appellant appeals from the circuit court’s divorce decree and the denial of his motion for a new trial. He argues on appeal that (1) the divorce decree was unlawful because it ordered him to buy corporate shares in a family business from appellee instead of distributing existing property and (2) appellee offered no competent evidence to prove that the business had a fair market value independent of the personal goodwill of appellant’s stepfather. We affirm.
Appellant and appellee were married in July 1996. The two separated in July 2006, and appellant sued for divorce in August 2006. Appellee filed a counterclaim on October 24, 2006. She also moved for temporary alimony on November 15, 2006, which was granted 12for the amount of $200 per week in an order dated January 30, 2007. During the course of the marriage, appellant and his two brothers each bought a third of the shares in their stepfather’s business, American Lenders Services Company, Inc. The company later came to be known as National Recovery Specialists, Inc. (NRS). Appellant and appellee stipulated that appellant owned a 99/300& interest in A.L.S.C.O.F.S., Inc., and NRS. Appellant and appellee entered into a property division agreement regarding all property except appellant’s interest in NRS. Trial was set for the purpose of determining the value of appellant’s stipulated interest in NRS.
At a pre-trial deposition, Joe Webb, a certified public accountant and expert witness for appellee, testified regarding his report showing a calculation of NRS as of December 31, 2010. He stated that a calculation is not intended to be relied upon by any third-party besides himself and his client. He testified that if he were doing a valuation of NRS, he would discuss general economic conditions, industry-specific risks as well as company-specific risks, a | .¡standard value for the shares, and goodwill. He testified that he did none of these things because his calculation, being based on an agreement between himself and appellee on the numbers to be used, did not require that he apply them. He testified that he dropped the Mergerstat average control premium of 29.6% to 10% because appellant appeared to have some control over cash flow, though he admitted that a buyer of 16.67% of his shares would not expect that control of cash flow would follow their purchase and might discount the value by 50%. He applied a 5% marketability discount though he testified that a buyer would look for a deep discount ranging from 80%-40%. He specifically stated that he “chose the discounts to apply, but [he] did not employ industry standards.”
At trial, Webb testified that he discounted the value of NRS by 10% and not the average Mergerstat value because the three shareholders all had control evidenced by the fact that they each took out money from the company. He did not apply a separate marketability discount, though he testified that the average marketability discount is 35%. He stated that marketability and lack of control are not distinguishable. He further discounted the value by 6%, which factored in the possible sale of HRSI to Capital One, an amount which he thought was high. He applied no personal goodwill discount for he believed Glynn Colquitt was not the owner of NRS and therefore could not hold personal goodwill.
Also testifying at trial was David Potts, a certified public accountant and expert witness for appellant. He testified that he prepared a fair market valuation of 33% of NRS complying with all industry standards. He used an income-based approach, instead of one of two other 14possible approaches because NRS is an operating business and he could not find enough sales of other comparable businesses. Potts found the value of 100% of NRS to be $3,028,000 under the income method. That meant appellant’s 33% interest was worth $1,008,324. He then applied a 30% discount for lack of control and a 35% discount for lack of marketability, which reduced the value of appellant’s 33% interest to $458,787. After rounding down to $458,000, he estimated that appellee’s 1/6 interest, half of appellant’s 1/3 interest, would be $229,000. He then discounted the goodwill of the company again, finding that enterprise goodwill was approximately only 50% with the other 50% being personal goodwill to appellant’s stepfather, Glynn Colquitt. After the discount, he valued appellee’s 1/6 interest to be worth no more than $115,000. He testified that his total valuation of the company was based on Glynn Colquitt remaining with the company.
Appellee testified that HSBC, NRS’s one client, had bought HRSI, which had bought Household Bank, the company that NRS initially started doing business with. She acknowledged that Capital One was acquiring HSBC, but she stated that NRS had kept the business with each prior change, presumably implying that the same would happen again. She asserted that compliance with HSBC requirements was extremely important and outweighed any personal relationship. Following ap-pellee’s testimony, all testimony was concluded and the court announced it would decide the issues after reviewing the evidence before it.
| Jn an order filed October 13, 2011, the court accepted the appellant and appellee’s stipulation that appellant owned a 99/300& interest in A.L.S.C.O.F.S., Inc., and NRS. In a letter filed the same day, the court found NRS to be valued at $3,028,000 as both parties agreed to that valuation. It found that, though Glynn Colquitt was the owner of record, it was not contested that appellant and his stepbrothers purchased an equitable interest in the company in 1996. It concluded that, considering all the testimony and exhibits on value, appel-lee’s interest in the business was worth $272,875. The court then ordered “alimony” in the amount of $11,370 per month for a period of twenty-four months due to the unequal property division. A divorce decree reflecting the court’s findings, as explained in the letter, was filed on December 8, 2011.
Appellant filed a timely motion for a new trial on December 22, 2011, objecting to the findings and the award of “alimony in gross” to pay for non-marital personal goodwill. In his brief supporting the motion, he further objected that the decision to award all shares to appellant was not supported by a factual finding as required by Ark.Code Ann. § 9-12-315(a)(l)(B). The motion was deemed denied on January 21, 2012, when the trial judge did not act on it. Appellant filed a timely notice of appeal on February 1, 2012.
Appellant filed a motion to remand the case on May 22, 2012, to complete the record. This court entered an order remanding the matter to the circuit court to settle the record on [ June 20, 2012. The circuit court entered an order on June 21, 2012, finally dismissing all claims by and against Ron Colquitt, Rod Colquitt, Glynn Colquitt, Betty Colquitt, RARO Investments, LLC, and A.L.S.C.O.F.S., Inc. a/k/a National Recovery Specialists, Inc., as third party defendants. The same order ratified the December 8, 2011 divorce decree as its final decree and denied appellant’s motion for a new trial on the record so that is was no longer simply deemed denied.
On June 22, 2012, appellant filed a second timely notice of appeal from the June 21, 2012 order and the December 8, 2011 divorce decree. This court remanded the matter for rebriefing because appellee’s brief was not in compliance with Arkansas Supreme Court Rule 4-2, which requires parties to refer to the appropriate page number in the abstract when citing testi mony and other abstracted material. Having submitted a sufficient supplemental abstract, brief and addendum, this court now addresses the merits.
On appeal, divorce cases are reviewed de novo . We give due deference to the circuit court’s superior position to determine the credibility of witnesses and the weight to be given their testimony. With respect to the division of properly in a divorce case, we review the circuit court’s findings of fact and affirm them unless they are clearly erroneous. The division |7of property itself is also reviewed, and the same standard applies. A finding is clearly erroneous ■ when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. In order to demonstrate that the circuit court’s ruling was erroneous, the appellant must show that the circuit court abused its discretion by making a decision that was arbitrary or groundless.
Appellant’s first argument is that the trial court entered an unlawful decree obliging appellant to buy corporate shares from appellee at their inferential value instead of simply distributing existing marital property. Arkansas Code Annotated section 9-12-315 provides in subsection (a) that all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. Arkansas Code Annotated section 9-12-315 provides in subsection (a)(4) that when stocks are involved:
the court shall designate in its final order or judgment the specific properly in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one (1) party on condition that one-half (1/2) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.
|sThe court has broad powers to distribute properly in order to achieve a distribution that is fair and equitable under the circumstances; it need not do so with mathematical precision.
Alimony and property divisions are complementary devices that a circuit court employs to make the dissolution of a marriage as equitable as possible. The purpose of alimony is to rectify the economic imbalance in earning power and standard of living of the parties to a divorce in light of the particular facts of each case. The overriding purpose of the property-division statute is to enable the court to make a division of properly that is fair and equitable under the circumstances.
This court has indicated that the characterization of installment payments made pursuant to an award in a divorce decree depends on the circumstances surrounding the award. In Snyder v. Snyder, the court looked to the facts in Stout v. Stout, and stated that:
the chancellor awarded the wife “alimony” in the amount of $300 per month for a period of one year. The court pointed out that an “award of alimony in a gross sum ¡payable in installments is contrary to its long established rule that alimony should not be a fixed sum but a continuing allowance payable at regular intervals.” The court then concluded that even though the decree referred to the award as alimony, the payments |9were not an award of alimony “in gross,” when all the circumstances were considered.
The circumstances in this matter are' that neither party requested or testified regarding alimony and the court below made no reference to any economic imbalances in its divorce decree. Like the “alimony” payments in Stout, the payments characterized as alimony here are actually periodic distributions of a court-ordered marital property division. Because the payments are not alimony, we do not address any of appellant’s arguments in support of his argument that the trial court entered an unlawful decree which deal with the court’s alleged error in awarding “alimony.”
While appellant argues that the divorce decree was unlawful because it ordered him to buy corporate shares in a family business from appellee instead of distributing existing property, no evidence was submitted by either party showing that appellee owned any shares. Neither party asserted, or presented any evidence, that appellee owned any interest in the company, only that she was owed 1/2 of appellant’s 1/3 interest as marital property. Both parties stipulated that appellant owned a 1/3 of the business, specifically a 99/300th interest. The stipulation asserts that appellant, alone, owns an interest. The court accepted this stipulation. The court’s decree simply required appellant to give appellee half the value of what he already owned.
| lftAppellant also argues that ap-pellee offered no competent evidence to support her burden that NRS had a “fair market value” independent of the personal goodwill of Colquitt. The valuation of goodwill is a question of fact that depends upon the particular circumstances. The strength or lack of strength of the evidence on which an expert’s opinion is based goes to the weight and credibility, rather than to the admissibility, of the opinion in evidence. Where the testimony shows a questionable basis for the opinion of the expert, the issue becomes one of credibility for the fact-finder, rather than a question of law. The fact-finder may accept or reject all or any part of the testimony of expert witnesses.
The court heard testimony from appel-lee’s expert witness as to a calculation that didn’t follow the industry standards, but instead applied discounts pursuant to his agreement with appellee. Still, appellee’s expert agreed with appellant’s expert that the value of 100% of the company was $8,028,000. Appellant’s expert witness testified to the company’s fair market value. Furthermore, appellee testified that compliance outweighed personal relationships and appellant testified that HSBC liked NRS because it could make HSBC’s desired changes more quickly than competitors. We find that the circuit court had competent evidence before it to | nshow the fair market value of appellee’s 1/6 interest in NRS; therefore we cannot say that the trial court’s valuation was clearly erroneous.
In any case, appellant was free to present evidence that might reduce the value of the company, such as documents to support his claim that HSBC, NRS’s one client, had reduced NRS’s number of assignments. Or he may have submitted evidence from HSBC that it was downsizing, as testified to by Potts, and that it would affect NRS. Appellant submitted no evidence tending to show that the value of the company was incorrect or that it needed to be reduced. While finding that the circuit court’s award was a division of property and not alimony, this court affirms as modified.
Affirmed as modified.
WALMSLEY and GLOVER, JJ., agree.
.Appellee also filed a third party complaint against Rodney Colquitt, Ron Colquitt, Betty Colquitt, and Glynn Colquitt on May 4, 2010. She filed a second third party complaint against RARO Investments, LLC, A.L.S.C.O.F.S., Inc., and National Recovery Specialists, Inc., on August 10, 2010.
. Based on tax returns, the company was actually owned by appellant, his two brothers and their mom. Appellant, according to tax returns, owned 32.67%, Rod Colquitt owned 32.67%, Ron Colquitt owned 32.66%, and Betty Colquitt owned 2% of the business.
. The trial was also for the purpose of determining whether appellant was behind in his payments of previously awarded temporary alimony. This issue is not before us on appeal.
. Webb's testimony from the pre-trial deposition was used in appellant's motion in limine to exclude Webb from testifying at trial.
. Appellant filed a motion in limine on October 7, 2011, to exclude testimony of appellee’s expert, Joe Webb, CPA. The record does not show an order from the court specifically addressing this motion, but Mr. Webb does testify at the trial, so we assume the motion was denied.
. Potts testified that the asset approach is most valid for non-operating businesses.
. Potts testified that the market approach requires sales of comparable businesses.
. In this same order, the court dismissed third party defendants A.L.S.C.O.F.S., Inc., National Recovery Specialists, Betty Colquitt and Glynn Colquitt from the action without prejudice. It specifically stated that the order did not cover RARO Investments, LLC, Ron Colquitt or Rodney Colquitt. Rodney Colquitt and RARO Investments, LLC, were dismissed from the action with prejudice in a separate order filed October 13, 2011.
. Russell v. Russell, 2012 Ark. App. 647, at 1, 2012 WL 5451806.
. Cummings v. Cummings, 104 Ark.App. 315, 323, 292 S.W.3d 819, 823 (2009) (citing Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005)).
. Id. at 324, 292 S.W.3d at 823-824.
. Id. at 324, 292 S.W.3d at 824.
. Hernandez v. Hernandez, 371 Ark. 323, 327, 265 S.W.3d 746, 749 (2007) (citing Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006)).
. Id.
. Id.
. Johnson v. Johnson, 2011 Ark. App. 276, at 8, 378 S.W.3d 889, 895; Ark.Code Ann. § 9-12-315(a)(1)(A) (Repl.2009).
. (Repl.2009).
. Johnson, 2011 Ark. App. 276 at 9, 378 S.W.3d at 895 (citing Coatney v. Coatney, 2010 Ark. App. 262, 377 S.W.3d 381).
. Cummings, 104 Ark.App. at 324, 292 S.W.3d at 825 (2009) (citing Cole, supra).
. Burns v. Burns, 2011 Ark. App. 312, at 4, 383 S.W.3d 458, 460 (citing Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988)).
. Wright v. Wright, 2010 Ark. App. 250; at 7, 377 S.W.3d 369, 374 (citing Hoover v. Hoover, 70 Ark.App. 215, 16 S.W.3d 560 (2000)).
. Snyder v. Snyder, 13 Ark.App. 311, 313, 683 S.W.2d 630, 631 (1985) (citing Stout v. Stout, 4 Ark.App. 266, 630 S.W.2d 53 (1982)).
. Id., 683 S.W.2d at 631-32.
. Appellee was employed by NRS at the time divorce proceedings were initiated by appellant, but was terminated four months later.
. Cole v. Cole, 89 Ark.App. 134, 140-141, 201 S.W.3d 21, 25 (2005) (citing Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987); Williams v. Williams, 82 Ark.App. 294, 108 S.W.3d 629 (2003)).
. Winn v. Winn Enters., Ltd. P’ship, 100 Ark. App. 134, 141, 265 S.W.3d 125, 129 (2007) (citing Killian v. Hill, 32 Ark.App. 25, 795 S.W.2d 369 (1990)).
. Id.
. Cole, 89 Ark.App. at 141, 201 S.W.3d at 25 (citing W. Union Tel. Co. v. Byrd, 197 Ark. 152, 122 S.W.2d 569 (1938)). | [
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WAYMOND M. BROWN, Judge.
1 ,The Office of Child Support Enforcement (OCSE) intervened in the child support matter between appellee and his ex-wife, appellant Denise F. Morbit, and argues that the circuit court abused its discretion and committed reversible error when it computed a final judgment because it did not include (1) a previous child and spousal support judgment, (2) post-judgment child support and spousal arrears, and (3) child support payments made after the modification was granted. We reverse and remand.
Appellee was divorced from his wife, appellant Denise F. Harper, by decree entered on February 3, 2006. An order filed July 13, 2007, contained a property-settlement agreement disposing of all issues regarding custody, visitation, child and spousal support, and division of | aaII property and financial obligations. Appellee was ordered to pay $741 in child support for the one minor child in appellant Mor-bit’s physical custody beginning March 15, 2007.
After a hearing held on November 26, 2007, the court entered an order on January 17, 2008. , In it, the court found that appellant Morbit was entitled to a judgment of $8,191.45 for child support and spousal support arrearage. The court also granted the appellant Morbit’s petition to increase appellee’s child support finding that the second minor child had returned to living with the appellant Mor-bit since at least August 1, 2007. The court also ordered appellee to pay $1,575 per month in child support, retroactive to September 10, 2007, the date on which the appellant Morbit filed her petition for increase in child support. Appellee was also ordered to pay an additional amount equal to 20% of the $1,575 toward arrears. Ap-pellee filed a motion to modify support on May 27, 2008, in an effort to decrease his child support due to one of his children turning eighteen and being near graduation from high |sschool. Appellant OCSE filed a motion to intervene in the matter on December 18, 2008, which was granted in an order filed on January 7, 2009.
After a hearing on February 2, 2009, in an order filed March 4, 2009, the court reduced appellee’s child support to $1,125 per month pending completion of a hearing on appellee’s motion to modify support. It appears that the court needed appellee’s 2008 tax returns, and so, though it set the lower amount, that amount was not imposed per the court’s request to wait until it received the 2008 tax returns. Therefore, appellee’s child support payment remained at $1,575. Again, he was ordered to pay an additional amount equal to 20% of the child support payment for the ar-rearage. The court further noted that it was impossible for it to make a determination as to the total amount of child support due until it addressed appellee’s motion to modify support, which was filed on May 27, 2008, because the motion claimed any modification would be effective as of the date of filing. Of noted importance is the order’s citation of the parties’ agreement that one of the minor children had turned eighteen and graduated from high school, thereby terminating appellee’s obligation for payment of child support for her as of June 1, 2008. Citing the parties’ failure to do so, appellee filed a motion asking the court to determine his current child support on December 28, 2010, He filed a second motion for the same purpose on April 7, 2011.
|4On March 15, 2012, the court held a hearing on appellee’s May 27, 2008 motion for modification of child support and appellant’s December 18, 2008 motion for citation for contempt in which it asked for arrearages and a judgment. In an order filed on March 30, 2012, the court found appellee’s average monthly income to be $5,769 based on his net income from all sources for the years 2008, 2009, and 2010. Accordingly, it found that his child support obligation would be modified beginning June 1, 2008, through June 1, 2011, to $865 per month. It stated that, at this rate, the total amount of child support owed for that period was $31,140. Because appellant’s records showed that appellee had paid $51,656, and appellee showed that he had paid an additional $1,500 in child support directly to appellant Morbit, the court found that the amount of child support paid by appellee amounted to $53,156. The court then deducted the $31,140 appellee owed in child support from the $53,156 he paid and found that appellee had overpaid $22,016. The court deducted this amount to from a separate a judgment in favor of appellant Morbit by that amount.
| .^Appellant filed a motion for relief from the March 30, 2012 order on April 3, 2012. An amended motion for relief from this order was filed on April 10, 2012. In its amended motion, appellant contended that the circuit court’s order (1) was incorrect regarding the amount of appellee’s arrear-age because it failed to include a judgment granted to appellant Morbit against appel-lee for $8,191.45; (2) did not account for appellee’s previously ordered spousal support obligation, which had not terminated until December 2008 when appellant Mor-bit remarried; and (3) did not account for appellee’s payments made after June 1, 2011. Pursuant to Rule 60(a) of the Arkansas Rules of Civil Procedure, appellant requested that the court amend its findings to account for those three issues. Appellant filed a timely notice of appeal on April 23, 2012.
Our standard of review for an appeal from a child-support order is de novo, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony.
Arkansas Rule of Civil Procedure 60 governs the circumstances in which a trial court may grant relief from a decree already entered. Rule 60(a) allows a trial court to modify or vacate a judgment for certain stated purposes within ninety days of its having been entered.
| (Appellant argues that the first piece of evidence that the court failed to include was a prior judgment of $8,191.45. The amount was awarded in the court’s order on January 17, 2008. Appellant cites Arkansas Code Annotated § 9-12-314 and Arkansas Code Annotated § 9-14-234 to support its contention that the judgment should be included. Under these two sections, which apply to modification of child support and arrearages, respectively, any order containing a provision regarding child support shall be a final judgment as to any installment or payment of money that has accrued until the time a proper motion is served on the court to set aside, alter or modify the order. These two sections also prohibit the court from setting aside, altering or modifying an order regarding accrued unpaid support prior to the filing of a motion.
At the beginning of the March 15, 2012 hearing, appellee’s attorney stated to the court that the judgment in favor of appellant Morbit against appellee in the amount of $8,191.45 “should be in play when we are establishing a total amount due.” Ap-pellee admitted that the court had previously found him $8,191.45 in arrears on November 7, 2007, and that in the event of an overpayment, it would apply to the arrearage. Despite this, this court makes no mention of whether the $8,191.45 has been applied to its calculation of appellee’s arrearage. Contrary to appellee’s assertion, appellant did not sit silently by and watch a mistake being 17made. The facts show that the circuit court stated in its letter opinion filed February 4, 2009, that child support, and therefore arrearages, could not be calculated until it had ruled on appellee’s motion to modify. While the March 15, 2012 hearing dealt with the motion to modify alone, the court set child support and arrearages in its order granting appellee’s motion to modify. Prior to receipt of the order, there would be no reason for appellant to believe that any arrearage amount would not be reduced by the $8,191.45 judgment. We remand to the trial court for a finding on whether the $8,191.45 judgment was applied toward the arrearage, and if it was not, to amend the arrearage amount to reflect a inclusion of the judgment amount.
Appellant argues that the second piece of evidence that the court failed to include was unpaid child support after the January 17, 2008 judgment, but prior to the June 1, 2008 modification. Appellee argues that no evidence was submitted by any of the parties, therefore appellant is attempting a “second bite at the apple” after having failed to argue this below. Our supreme court has stated that an issue must be presented to the circuit court at the earliest opportunity in order to preserve it for appeal. Any error argued on appeal must have first been directed to the circuit court’s attention in some appropriate manner, so that the court has an opportunity to address the issue. A party cannot wait until the outcome of a case to bring an error to the circuit court’s’s attention. Stated another way, a circuit court does not 18abuse its discretion by denying a posttrial motion seeking to raise an issue that was not raised at trial.
Both of appellee and appellant Denise Morbit put on evidence with regard to child support payments made from January to May 2008. Therefore, the court was on notice that it should include post judgment, pre-modification payments in its calculation of arrearages. Appellant is not requesting a second bite at the apple but is seeking clarification and correction of an alleged error.
Because the trial court did not rule on the matter from the bench, but in an order fifteen days later on March 30, 2012, appellant’s first opportunity to address the alleged error would have been in a post-order motion, which the appellant submitted, though we do not address that motion because this appeal is from the judgment itself. However, we do not need to address the post-judgment motion to find that the court erred in not including the January to May 2008 payments in its calculation of arrearages. It is clear from the court’s calculation in its March 30, 2012 order that the court included only payments from June 2008 to June 2011. It did so in error. We remand and order the court to include in its calculation of arrear-ages any and all payments made, and unpaid, by appellee between January and May of 2008.
We do not reach to the merits of appellant’s argument that the circuit court failed to include unpaid spousal support post judgment. While appellee’s May 27, 2008 motion | Requested modification of alimony, in addition to child support, he never got a final ruling as to modification of alimony before it was terminated automatically upon appellant Denise Morbit’s marriage on December 29, 2008. And though appellant OCSE cited appellee’s failure to pay spousal support, among other things, in its December 18, 2008 motion for cita tion, and the court found that appellee had made no spousal support payment between August 2008 and January 2009, appellant did not raise the issue of including unpaid spousal support payments in the court’s calculation of arrearages at the March 15, 2012 hearing. Because neither party discussed unpaid spousal support, the court did not address that issue as the court was not put on notice that either party wished to have it included. An issue must be presented to the circuit court at the earliest opportunity in order to preserve it for appeal. Because appellant did not raise this issue at the proper opportunity — the March 15, 2012 hearing — it is not preserved.
Appellant argues that the final piece of evidence that the court failed to include was payments made by appellee after June 1, 2011. Appellant argues that failure to include payments after June 1, 2011, will allow those payments to be counted twice, for any future calculation of arrearage by the court would set off those payments while appellant would have already counted them in this calculation of arrearage despite the fact that the court did not. While we see no reason for a future calculation of arrearage since both minor children have reached the age of majority and have graduated, we find that an accurate accounting of arrearages requires that the circuit court include these post June 1, 2011 payments. We | inremand and order the circuit court to adjust its calculation of arrearages to include payments made by appellee after June 1, 2011.
Furthermore, this court orders the circuit court to strongly consider the differences in its calculation of child support paid by appellee as compared to appellant’s calculation. We also order the circuit court to adjust its calculation of ar-rearages to include and account for the following:
• the unpaid child support payments for the months of August 2008 to January 2009 for which the court found appel-lee in contempt in its March 4, 2009 order; and
• any payments that the court attributed to appellee in its arrearage calculation for the June 1, 2008 to June 1, 2011 time period which were not in fact made.
For the foregoing reasons, we find that, the court erred in its calculation of appel-lee’s child support and arrearage. The court should have modified its order in accordance with Arkansas Rule of Civil Procedure 60.
Reversed and remanded.
WALMSLEY and GLOVER, JJ., agree.
. Appellant Morbit, formerly Denise F. Harper, remarried on December 29, 2008, during the pendency of child support proceedings.
. An addendum to this order was filed on July 19, 2007, awarding appellant Morbit Harper $2500 for various issues concerning support payments and other matters since the divorce decree.
. This hearing dealt with appellant Morbit’s petition for contempt and for increase in child support and appellee’s motion for citation of contempt due to the appellant Morbit’s failure to respond to discovery.
. A letter opinion addressing appellant’s petition for contempt and for increase in child support and appellee’s motion for citation of contempt for failure of the appellant to respond to discovery was issued on November 27, 2007. It was virtually identical to the later-entered order, except that it did not state the amount to be paid, opting instead to order that “the child support shall be determined based upon the Family Support Chart and the income of the plaintiff as determined at the time of the entry of the child support order dated July 13, 2007.” The July 13, 2007 order did not state appellee's income.
.The court did not itemize what amount of the $8,191.45 was for child support and what amount was for spousal support,
. The hearing dealt with OCSE’s petition for citation for contempt against appellee and appellee’s objection to wage assignment.
. A February 4, 2009 letter opinion, stating the same, had previously been issued addressing appellant OCSE’s December 18, 2008 motion for citation against appellee for failure to make his child support payment.
. A letter opinion detailing the same information had been previously filed on March 19, 2012.
. June 1, 2008, was the agreed upon date of the elder minor's emancipation.
. The parties' younger minor child, who’d previously turned eighteen years of age on July 25, 2010, graduated from high school in May 2011, thereby terminating any further obligation for appellee to continue paying child support.
. Though the court states that appellant OCSE's record show appellee paid $51,656, appellant's court liaison prepared an affidavit of arrearage, from which she testified, that showed appellee paid $65,644.52. However, the affidavit included payments from 2007 and 2012 as well.
. Wright v. Wright, 2010 Ark. App. 250, at 4, 377 S.W.3d 369, 372 (citing Hardy v. Wilbourne, 370 Ark. 359, 259 S.W.3d 405 (2007)).
. Linn v. Miller, 99 Ark.App. 407, 411, 261 S.W.3d 471, 474 (2007).
. Id.
. (Repl.2009).
. (Repl.2009).
. Ark.Code Ann. § 9-12-314(b); Ark.Code Ann. § 9-14-234(b).
. Ark.Code Ann. § 9-12-314(c); Ark.Code Ann. § 9-14-234(c).
. Horton v. Horton, 2011 Ark. App. 361, at 15, 384 S.W.3d 61, 70.
. Id.
. Id.
. Id.
. Dew v. Dew, 2012 Ark. App. 122, at 8, 390 S.W.3d 764, 769 (citing Horton, supra).
. According to the Arkansas Child Support Tracking System Payment History Report submitted by appellee, he made only 6 payments in 2008. | [
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KAREN R. BAKER, Justice.
| jThis case involves a question of Arkansas law certified to this court by the United States District Court for the Eastern District of Arkansas in accordance with Arkansas Supreme Court Rule 6-8 (2012). On October 11, 2012, we accepted the certified question in Lambert v. LQ Management, L.L.C., 2012 Ark. 391, 2012 WL 4848966(per curiam). The certified question is as follows:
By enacting Arkansas Code Annotated section 16-118-107, did the Arkansas General Assembly intend to revive the individual cause of action for common-law remedies for retaliation under Arkansas workers’ compensation law which it expressly annulled at Arkansas Code Annotated section 11-9-107?
We conclude that the answer is no.
On November 1, 2011, Petitioner, John R. Lambert, II, filed a complaint against Respondent, LQ Management, L.L.C. (“LQ Management”) in the Pulaski County Circuit Court alleging that he was terminated in retaliation for asserting his rights under the Arkansas workers’ compensation statutes. Lambert sought to recover damages under Ark.Code Ann. |2§ 16-118-107 (Supp.2011). On February 3, 2012, the case was removed to federal court. After removal, on February 10, 2012, LQ Management filed a motion to dismiss asserting that the claim for retaliation had been abolished under Ark.Code Ann. § 11-9-107 and therefore, Lambert failed to state a claim. Lambert responded that he was seeking relief allowed under Ark.Code Ann. § 16-118-107, the crime victims’ civil-liability statute for felonious conduct. On September 17, 2012, both parties jointly requested that the present question be certified to this court. After we accepted the certified question, both parties filed briefs, and the Arkansas State Chamber of Commerce and Associated Industries of Arkansas, Inc. (as amici curiae) filed a brief as well.
The certified question presents an issue of statutory construction. The two statutes at issue are Ark. Code Ann. § 11 — 9— 107 under the Workers’ Compensation Act, and § 16-118-107.
In 1993, the General Assembly passed Act 796 and made comprehensive revisions to the Workers’ Compensation Act. 1993 Ark. Acts 796; Ark.Code Ann. §§ 11-9-101 to -1001 (Repl.2012). Section 6 of Act 796 codified at Ark.Code Ann. § 11-9-107 provides,
(a)(1) Any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition of work of any individual on account of the individual’s claim for benefits under this chapter, or who in any manner obstructs or impedes the filing of claims for benefits under this chapter, shall be subject to a fine of up to ten thousand dollars ($10,000) as determined by the Workers’ Compensation Commission.
(c) The employer may also be guilty of a Class D felony.
|3(e) A purpose of this section is to preserve the exclusive remedy doctrine and specifically annul any case law inconsistent herewith, including, but not necessarily limited to: Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991); Mapco, Inc. v. Payne, 306 Ark. 198, 812 S.W.2d 483 (1991); and Thomas v. Valmac Industries, Inc., 306 Ark. 228, 812 S.W.2d 673 (1991).
Ark.Code Ann. § 11-9-107 (Repl.2012). ■
Subsection (e) provides that the remedies for willful discrimination under the workers’ compensation statutes are the exclusive remedy. See also Ark.Code Ann. § ll-9-105(a) Subsection (e) also explicitly annulled this court’s case law permitting the additional recovery of damages by individuals on account of discriminatory treatment by the employer for filing a workers’ compensation claim. Since section 11-9-107’s enactment in 1993, no changes have been made to the statute.
Four years later, in 1997, the General Assembly enacted Ark.Code Ann. § 16-118-107. This statute, “Civil Action by Crime Victim,” allows for the recovery of damages by victims of felonious conduct and provides,
(a)(1) Any person injured or damaged by reason of conduct of another person that would constitute a felony under Arkansas law may file a civil action to recover damages based on the conduct.
(e) The remedy provided in this section shall be in addition to any other remedies in law or equity.
(d) This section does not apply to offenses under § 5-28-101 et seq. or § 5-55-101 et seq.
Ark.Code Ann. § 16-118-107 (Supp.2011). Accordingly, Ark.Code Ann. §§ 5-28-101 et seq. (Supp.2011) (Abuse of Adults Act) and Ark.Code Ann. § 5-55-101 (Supp. 2011) (Fraud |4Against Government Act) are specifically excepted from Ark.Code Ann. § 16-118-107.
Lambert contends that Ark.Code Ann. § 16-118-107 allows him independent relief separate from Ark.Code Ann. § 11-9-107 and permits him to recover additional damages under Ark.Code Ann. § 16-118-107. Lambert asserts that by enacting Ark.Code Ann. § 16-118-107, the General Assembly provided additional remedies for willful violations of the workers’ compensation laws because interference with the filing of a workers’ compensation claim may constitute a Class D felony. As a result, he contends that the victims of a Class D felony arising from retaliation-related claims have the right to recover additional damages under Ark.Code Ann. § 16-118-107. Lambert further argues that in harmonizing the two statutes and reading the two together, Ark.Code Ann. § 11-9-107 provides that an employer’s conduct “may be a felony,” and Ark.Code Ann. § 16-118-107 allows for recovery of additional damages for such conduct. Finally, Lambert contends that this interpretation is clear because certain offenses are specifically excepted from suit under Ark. Code Ann. § 16-118-107, Ark.Code Ann. § 5-28-101 et seq., and § 5-55-101 et seq.; but, Ark.Code Ann. § 11-9-107 was not listed as an exception. Lambert asserts that if the General Assembly had intended for Ark.Code Ann. § 11-9-107 to be excepted from the recovery of additional damages under Ark. Code Ann. § 16 — 118— 107, it would have expressly done so.
LQ Management responds that § 6 of Act 796 annulled the common-law-retaliation cause of action and reaffirms the exclusive-remedy doctrine. It further asserts that the Act provides two remedies: to treat the retaliation as a crime, and to provide an administrative procedure where the employer could be fined. Ark.Code Ann. § ll-9-107(a)(l) & (c) (Repjj2012).6 However, LQ Management explains that these remedies under the Act are exclusive and that there are no additional remedies available. It further argues that the language of Ark.Code Ann. § 16-118-107 does not repeal or modify the exclusive-remedy doctrine or otherwise reinstate the common-law action of retaliation. LQ Management contends that the statutes address different subject matters and are not similar or related and cannot be harmonized. Finally, LQ Management responds that an “additional remedy” under Ark.Code Ann. § 16-118-107 cannot be harmonized with an exclusive remedy under Ark.Code Ann. § 11-9-107 because the General Assembly intended for the Workers’ Compensation Act to be an exclusive-remedy act.
In reviewing these statutes, the basic rule of statutory construction is to give effect to the intent of the legislature by giving words their usual and ordinary meaning. Ark. Soil & Water Conservation Comm’n v. City of Bentonville, 351 Ark. 289, 92 S.W.Sd 47 (2002). “When a statute is clear, it is given its plain meaning, and we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. In other words, if the language of the statute is plain and unambiguous, the analysis need go no further.” Yamaha Motor Corp., U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 52, 38 S.W.3d 356, 360 (2001). This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id., 38 S.W.3d 356, 360 (2001). Further, we must give effect to the specific statute over the general. Searcy Farm, Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 256 S.W.3d 496 (2007). “This court has long held that a general statute must yield to a | (¡specific statute involving a particular subject matter.” Comcast of Little Rock, Inc. v. Bradshaw, 2011 Ark. 431, at 9, 385 S.W.3d 137,142-43.
Additionally, we have outlined our statutory-construction rules regarding repeal by implication on numerous occasions. “A statute of a general nature does not repeal a more specific statute unless there is a plain, irreconcilable conflict between the two.” Winston v. Robinson, 270 Ark. 996, 1001, 606 S.W.2d 757, 760 (1980). Repeal by implication is recognized in only two situations: (1) where the statutes are in irreconcilable conflict, and (2) where the legislature takes up the whole subject anew, covering the entire subject matter of the earlier statute and adding provisions clearly showing that it was intended as a substitute for the former provision. Hobbs v. Baird, 2011 Ark. 261, 2011 WL 2412740.
Finally, we must strictly construe the workers’ compensation statutes. Ark. Code Ann. § ll-9-704(c)(3) (Repl.2012). “This court recognizes its duty to strictly construe workers’ compensation statutes pursuant to Ark.Code Ann. § 11 — 9— 704(c)(3) (Repl.1996). Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. The doctrine of strict construction requires this court to use the plain meaning of the language employed.” Hapney v. Rheem Mfg. Co., 341 Ark. 548, 553, 26 S.W.3d 771, 774 (2000) (internal citations omitted).
In reviewing the certified question, we hold that Ark.Code Ann. § 16-118-107 does not revive the individual cause of action for common-law remedies for retaliation under the Arkansas Workers’ Compensation Act. The language employed by the General Assembly in Ark. Code Ann. § 11-9-107 expressly annulled the common-law actions and remedies, and | Texplicitly states that the workers’ compensation law is the exclusive remedy. The language of Ark.Code Ann. § 11-9-107 is so plain and unambiguous that judicial construction is limited to the words that expressly state that the exclusive-remedy doctrine applies and that eliminated the common-law cause of action and remedies for retaliatory discharge for filing workers’ compensation claims. Additionally, Ark.Code Ann. § 11-9-107 is a specific statute, is directly on point, and therefore must control.
In 1997, after the enactment of our worker’s compensation statutes, we explained our interpretation of Ark.Code Ann. § 11-9-107 in addressing a civil-rights claim based on a workers’ compensation claim. Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 155 (1997). In Davis, we explained, “Section 11-9-107 ... provides for administrative and criminal penalties against an employer who engages in .discrimination. Section 11-9-107 was amended by the legislature in 1993 in order to preserve the exclusive remedy of the Workers’ Compensation Act by eliminating the common-law remedies for retaliatory or wrongful discharge. See section 11 — 9—107(e).” Id. at 555-56, 956 S.W.2d 155,160 (1997).
By passing Act 796 of 1993, the General Assembly was certain in its expressed intent that the workers’ compensation law was an exclusive remedy for an employee who had suffered injuries during the course of his or her employment. Ark. Code Ann. § 11-9-105 |s(a) states “The rights and remedies granted to an employee subject to the provisions of this chapter[,] [the Workers’ Compensation Act], on account of injury or death, shall be exclusive of all other rights and remedies of the employee.” Additionally, the General Assembly issued the following “Legislative Declaration,” codified at Ark.Code Ann. § 11-9-1001 (Repl.2012):
When, and if, the workers’ compensation statutes of this state need to be changed, the General Assembly acknowledges its responsibility to do so. It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act. In the future, if such things as ... the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.
The General Assembly has not amended the statute in any way to express a revival of the common-law remedies for retaliation, and therefore the exclusive-remedy provision of the Act precludes recovery under Ark.Code Ann. § 16-118-107.
Certified question answered.
. In support of our interpretation, we note that while not binding on this court, federal district courts in Arkansas have interpreted this statute in the same manner in which we have, finding that the employee’s common-law claim for wrongful discharge for retaliation for filing a workers’ compensation claim fails as a matter of law because Arkansas does not recognize such a claim. See Lipkins v. 3M Co., No. 4:08-CV-01512-WRW 2010 WL 3398426 (E.D.Ark. Aug. 26, 2010); Trotter v. Weyerhaeuser Corp., No. 08-CV-4005 2009 WL 1395441 (W.D.Ark. May 18, 2009). | [
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CLIFF HOOFMAN, Justice.
11 This case, which involves the mandatory imposition of a life sentence without parole on a juvenile defendant convicted of capital murder, comes to us on remand from the United States Supreme Court. In Whiteside v. State, 2011 Ark. 371, 383 S.W.3d 859, vacated, — U.S. -, 133 S.Ct. 65, 183 L.Ed.2d 708 (2012) (White-side I), this court affirmed Lemuel White-side’s convictions for capital murder and aggravated robbery. Therein, we also rejected Whiteside’s arguments that his sentence of life without parole violated his rights under the Eighth Amendment to the United States Constitution and article 2, section 9 of the Arkansas Constitution because he was a juvenile at the time of the offense; that the imposition of a mandatory life-without-parole sentence is void and illegal because it violated his statutory and constitutional right to a jury trial; and that the violation of his right to jury sentencing under Arkansas law also violated his due-process rights guaranteed by the Fourteenth Amendment of the United States Constitution. Whiteside filed a petition for a writ of certiorari to the 1 ^United States Supreme Court, which was granted. The Supreme Court vacated this court’s original judgment and has remanded the case for further consideration in light of its recent decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). This procedure is commonly referred to as a “GVR,” which stands for “grant certiorari, vacate the judgment below, and remand the case.” Lawrence ex. rel. Lawrence v. Chater, 516 U.S. 163, 165, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) (per curiam). Pursuant to the mandate from the Supreme Court, we now reconsider our decision in Whiteside I in light of Miller v. Alabama, supra.
The following is a brief recitation of the relevant facts presented in Whiteside I. Whiteside was charged with capital murder and aggravated robbery in connection with the robbery and death of James London on January 28, 2009. According to the evidence presented at trial, Whiteside, who was seventeen years old at the time of the offense, planned the robbery after learning that London was visiting his mother at the Whiteside family residence and had a significant amount of money in his possession from a tax refund. Whiteside gave another juvenile, Cambrin Barnes, a handgun, and the two juveniles |sattempted to rob London outside the residence. When London refused to give up his money and lunged toward Barnes, Barnes fired a single shot and killed London. Both juveniles were charged with capital-felony murder, although Barnes pleaded guilty to a lesser offense in return for a negotiated-sentence recommendation of forty years.
Whiteside proceeded to a jury trial and was convicted of both charges. He received a mandatory sentence of life imprisonment without parole for his capital-murder conviction pursuant to Ark.Code Ann. § 5-10-101(c) (Supp.2007) and a thirty-five-year sentence for his aggravated-robbery conviction. Whiteside’s sentence was also enhanced by fifteen years due to his use of a firearm during the robbery.
The relevant question in the current case is whether Whiteside’s mandatory sentence of life without parole under Ark. Code Ann. § 5-10-101 (c) is prohibited by the Supreme Court’s decision in Miller v. Alabama, supra. In Miller, the majority held that the Eighth Amendment to the United States Constitution prohibits a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders in homicide eases. Basing its decision on precedent reflecting its concern with proportionate punishment and with the distinctive attributes of youth offenders, the Supreme Court held that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the |4harshest possible penalty for juveniles.” Id. at 2475.
Both Whiteside and the State agree that the holding in Miller prohibits the mandatory life sentence without parole that Whiteside received in this case as a result of his capital-murder conviction. However, the State contends that any claim that Whiteside has pursuant to Miller is proee-durally barred because he did not raise the precise argument at issue here either at trial or on appeal, which is that his sentence violated the Eighth Amendment by virtue of its being mandatory.
We 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.
Furthermore, by its argument that we should not address Whiteside’s Miller claim, the [5State ignores precedent holding that when a Supreme Court decision results in a “new rule,” that rule applies to all criminal cases still pending on direct review. Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Because our decision in Whiteside I was vacated and remanded by the Supreme Court, Whiteside’s case is still in the direct-review process, and this court is thus required to apply the holding in Miller to his case.
Because both parties agree that there is currently no authorized sentence for a juvenile convicted of capital murder under Arkansas law subsequent to Roper and Miller, the next issue is how this court should proceed in correcting Whiteside’s sentence. Whiteside contends that we should modify his conviction to first-degree murder, sentencing him to the statutory minimum of ten years for that lesser offense, and cites multiple cases in which we have modified the judgment of the trial court on appeal. However, as the State contends, in all these cases, the modification was specifically directed at curing the error that this court concluded existed in that case. See, e.g., Hudgens v. State, 324 Ark. 169, 919 S.W.2d 939 (1996) (modifying sentence and reinstating original punishment when no new facts overcame presumption of vindictiveness in trial court’s increased sentencing following reversal); Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987) (reducing conviction from first-degree murder to second-degree murder where evidence was insufficient to sustain conviction on greater offense). Here, there is no issue with the sufficiency of the evidence supporting Whiteside’s capital-murder conviction, as we affirmed his conviction in Whiteside I. Rather, the only issue before us is the proper sentence to be imposed for this conviction. Thus, the eases cited by 1 (¡Whiteside are distinguishable from the present case, and we decline to modify his conviction for capital murder. See Buckley v. State, 349 Ark. 53, 63, 76 S.W.3d 825, 831 (2002) (holding that the jury should be permitted to decide a sentence in a case where a defendant’s conviction has been affirmed but only the sentence has been reversed).
The State asserts that this court should sever the unconstitutional language in Ark. Code Ann. § 5-10-101 (c) as applied to juveniles convicted of capital murder and that we should remand the case for White-side to be resentenced on his conviction under the sentencing range provided for a Class Y felony, in accordance with the remaining language in subsection (c). We agree with the State that this is the proper approach, as we adopted this procedure in another case involving the same issue, Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906, 2013 WL 1773087, which is being handed down this same date.
In Jackson, which was a companion case to Miller v. Alabama, supra, the Supreme Court reversed and remanded this court’s decision affirming the dismissal of Jackson’s petition for habeas corpus, in which he challenged on Eighth Amendment grounds his mandatory sentence of life in prison without the possibility of parole for his capital-murder conviction. Miller, — U.S. at-, 132 S.Ct. at 2475. On remand in Jackson, this court analyzed the language in our capital-murder statute, Ark.Code Ann. § 5-10-101, and held that the constitutional infirmity subsequent to the Miller decision was found only in subsection (c), which pertains to disposition. Jackson, 2013 Ark. at 4, 426 S.W.3d at 908. This subsection states,
(c)(1) Capital murder is punishable by death or life imprisonment without parole |7pursuant to §§ 5-4-601-5-4-605, 5-4-607, and 5-4-608.
(2) For any purpose other than disposition under §§ 5-4-101 — 5-4-104, 5-4-201 — 5-4-204, 5-4-301 — 5-4-308, 5-4-310, 5-4-311, 5-4-401 — 5-4-404, 5-4-501-5-4-504, 5-4-601 — 5-4-605, 5-A-607, and 5-4-608, capital murder is a Class Y felony.
Ark.Code Ann. § 5-10-101(c) (Repl.2007).
Citing both statutory and case law that authorize this court to sever statutory lan guage where appropriate to cure constitutional deficiencies, this court found that the offending language in subsection (c)(1), as well as the introductory clause in subsection (c)(2), could be struck without defeating the entirety of the capital-murder statute. Jackson, supra. Thus, as applied to juveniles, subsection (c) would read, “capital murder is a Class Y felony.” We held that this was consistent ■with the intent of the legislature, as the Arkansas Code specifically permits severance of provisions that are invalid or unconstitutional. See Ark.Code Ann. § 1-2-117, § 1-2-205 (Repl.2008). Thus, we held that Jackson’s sentence for capital murder should be vacated and that he should be resenteneed under the statutorily authorized sentence for a Class Y felony, which is ten to forty years or life under Ark. Code Ann. § 5-4-401(a)(l). Jackson, supra. We stated that this discretionary sentencing range is | ^acceptable under Miller, as long as on remand the jury is given the opportunity to take into account the offender’s “age, age-related characteristics, and the nature of his crime.” Id. at 6, 426 S.W.3d at 907. (quoting Miller, 132 S.Ct. at 2475).
In the present case, as in Jackson, we find that Whiteside’s capital-murder sentence should be reversed and remanded for resentencing under the discretionary range for a Class Y felony, as provided in Ark.Code Ann. § 5-4-401(a)(l) (Repl. 2006). We also direct that a sentencing hearing be held in which Whiteside may present for the jury’s consideration any mitigating evidence as provided in Miller.
We thus reject the State’s alternative argument that this court can sever the “without parole” language in Ark.Code Ann. § 5 — 10—101(c)(1), leaving Whiteside with a mandatory life sentence. As we noted in Jackson, this would not permit consideration by the jury of the required Miller evidence. Id. at 7, 426 S.W.3d at 910.
Whiteside argues that if this court remands for resentencing on his capital-murder conviction, he should also be entitled to resentencing on his aggravated-robbery conviction and its enhancement as well. He contends that Ark.Code Ann. § 16-97-101 (Repl.2006), requires “the jury,” and not two different juries, to impose punishment in a case. We agree with the State that there is no merit to this argument, as there is nothing in this statute that requires the same jury to resentence a defendant for each conviction even after the case has been remanded. In fact, if Whiteside’s argument was correct, then this statute would prohibit all remands for resentencing. We rejected such a strained reading of section 16-97-101 in Buckley v. State, supra, where we held that the defendant was not prejudiced merely because |fla new jury sentenced him after his original sentence was reversed and remanded. We also find no merit to Whiteside’s contention that, because aggravated robbery is an element-included offense of capital murder, that the jury’s punishment decision is necessarily a “unitary determination.” He cites no persuasive authority in support of his contention, and as the State asserts, Ark.Code Ann. § 5 — 1—110(d)(1)(A) (Supp.2007) expressly provides for the entry of separate convictions and sentences for these offenses. Whiteside’s sentence for aggravated robbery, as well as his sentence enhancement for the use of a firearm, is authorized by statute and is not affected by the decision in Miller. Thus, these sentences are still valid, and we remand only the sentence for his capital-murder conviction.
In his last argument, Whiteside reasserts his contention raised in Whiteside I that the imposition of a life sentence without parole violates the Eighth Amendment in the absence of proof of his intent to kill. He urges this court to now reconsider his argument in light of Miller. We decline to do so, as the majority’s decision in Miller did not address this particular issue and instead focused on the mandatory nature of the life sentence that the defendants in that case received. Moreover, as we stated in Jackson, it is premature to consider whether a life sentence would be permissible in this case given that such a sentence is only one of the possible options before the jury during resentencing. Jackson, 2013 Ark. at 9, 426 S.W.3d at 911. Thus, we reaffirm our decision in Whiteside I on all points raised by Whiteside in that appeal, with the exception of his sentence for capital murder. We reverse and remand Whiteside’s capital-murder sentence to the circuit court for resentencing within the discretionary statutory sentencing range for a Class Y felony, and we instruct the circuit court to hold a sentencing | in hearing where Whiteside can present Miller evidence for consideration.
Affirmed in part; reversed and remanded in part.
DANIELSON, J., concurs.
. Whiteside v. Arkansas, — U.S. -, 133 S.Ct. 65, 183 L.Ed.2d 708 (2012).
. In Lawrence, the Supreme Court stated that a GVR is appropriate "[wjhere intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a rede-termination may determine the ultimate outcome of the litigation.” Id. at 167, 116 S.Ct. 604.
.We note that Whiteside’s convictions for capital murder and aggravated robbery were properly affirmed in Whiteside I's on independent state-law grounds and are not at issue in this proceeding.
. Although Ark.Code Ann. § 5-10-101(c) authorizes a punishment of either life without parole or death for capital murder, the Supreme Court invalidated the death penalty for all juvenile offenders under the age of eighteen in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), thereby making it mandatory for the jury to impose a life sentence without parole on a juvenile convicted of capital murder in Arkansas.
. Although the decision in Jackson involved the 1997 version of the capital-murder statute, instead of the 2007 version that is applicable in Whiteside’s case, only the organization, not the relevant statutory language, in subsection (c) was amended.
. We also held in Jackson that the same severance analysis could be applied to Ark.Code Ann. § 5-4-104(b) and Ark.Code Ann. § 5-4-615, so that the penalty in those statutes would not apply to juvenile defendants convicted of capital murder under Ark.Code Ann. § 5-10-101. | [
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ROBERT J. GLADWIN, Chief Judge.
11Appellant Johnnie Foster appeals from the September 4, 2012 opinion of the Arkansas Workers’ Compensation Commission that affirmed and adopted the June 19, 2012 opinion of the Administrative Law Judge (ALJ) and found that she failed to prove by a preponderance of the evidence her entitlement to additional temporary-total-disability benefits (TTD), or to all related unpaid medical expenses and unpaid medically related travel expenses incurred with the University of Arkansas for Medical Sciences (UAMS). She argues that the Commission erred in finding that she did not meet her burden of proof and that the findings are contrary to law and not supported by substantial evidence. We affirm.
Appellant is a fifty-year-old woman who began working for appellee Tyson Poultry, Inc., in 1987. She worked there for six: years and then worked with other employers until she returned to appellee in April 2008. She worked on an assembly line where she was a shoulder cutter, cutting approximately thirty-six chickens per minute. It is undisputed that ^appellant sustained a compensable injury on or about September 23, 2008, specifically, a gradual-onset injury in the form of a repetitive-strain injury resulting in carpal tunnel syndrome and other related conditions.
Dr. David Rhodes performed a trigger-finger release to appellant’s thumb on November 4, 2009, and on December 2, 2009, median-nerve decompression surgery on her left upper extremity, Minimal TTD was paid, as appellant continued to work on lighter duty, primarily still on the line.
On January 6, 2010, Dr. Rhodes reported that appellant would reach maximum medical improvement (MMI) for carpal tunnel syndrome on February 3, 2010, with a ten-pound weight limit for the left upper extremity, On February 3, 2010, however, upon observation of swelling, Dr. Rhodes re-initiated treatment by way of oral steroids and steroid injections, subsequently, Dr. Rhodes reported the need to rule out reflex: sympathetic dystrophy (RSD) and referred appellant to Dr. Annette Meador.
Appellant ceased working on July 27, 2010, but it is disputed whether she abandoned her employment at that time. On August 6, 2010, Dr. Meador reported that RSD had resolved, appellant had reached MMI, and she had zero-percent impairment. Appellant had no medical treatment other than through her family physician for approximately eight months, with no treatment for the RSD, recurring carpal tunnel syndrome, or swelling and related pain. Appellant was terminated on November 29, 2010, on grounds of noncompliance with Family Medical Leave Act procedures required by appellee.
IsOn March 29, 2011, appellant presented to the emergency room at UAMS. From there, she was treated in the departments of orthopedics, neurosurgery, and rehabilitative medicine. Appellant was diagnosed with severe focal neuropathy of the left median nerve on April 20, 2011, diagnosed with de Quervain Tenosynovitis and recurrent carpal tunnel syndrome on August 8, 2011, and was ordered for physical/occupational therapy for three weeks as late as November 3, 2011.
During the course of treatment at UAMS, on August 2, 2011, appellant gave written notice to appellee that she was in need of additional medical treatment. Ap-pellee did not pay any additional benefits, claiming that the treatment was not performed by an authorized physician, and it is undisputed that appellant has not exercised her one-time change of physician, despite prompting by appellee.
The ALJ denied all benefits that were at issue, and the Commission affirmed and adopted the opinion of the ALJ by a two-to-one decision. This appeal followed.
In an appeal from the Commission, this court must determine whether the Commission’s decision was supported by substantial evidence by viewing the evidence and all reasonable inferences in the light most favorable to the Commission’s findings. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002). “Substantial evidence” has been defined as relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Cooper v. Hiland Dairy, 69 Ark.App. 200, 11 S.W.3d 5 (2000). This court may not reverse the Commission simply because it concludes that a different result was possible, that it would have reached a different conclusion if it were the trier of fact or heard |4the case de novo, or that the evidence would have supported a contrary finding. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 303, 40 S.W.3d 760, 766 (2001). Instead, the Commission’s decision must be affirmed if the court concludes that reasonable minds could reach the Commission’s decision, however, if the court is convinced that fair-minded persons with the same facts before them could not have reached the Commission’s conclusion, it may reverse. Id.
I. Denial of Additional TTD from July 29, 2010, to a Time Yet to be Determined
A claimant who suffers a scheduled injury is entitled to TTD during his healing period or until he returns to work. Ark.Code Ann. § ll-9-521(a) (Repl.2012); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The heal ing period is defined as that period for healing the injury, which continues until appellant is as far restored as the permanent nature of the injury will allow. Searcy Indus. Laundry, Inc. v. Ferren, 92 Ark.App. 65, 211 S.W.3d 11 (2005). The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Id.; Ark.Code Ann. § ll-9-521(a). See also Poulan, supra. In addition, the claimant’s “failure to return to work must be causally related to the injury.” Fendley v. Pea Ridge Sch. Dist., 97 Ark.App. 214, 216-17, 245 S.W.3d 676, 677-78 (2006).
Appellant submits that a claimant who returns to work, light duty or full duty, but does not continue to work because of termination, or physical inability to continue, is not necessarily precluded from further TTD simply because Arkansas Lode Annotated section ll-9-521(a) contains a provision stating that one of the ways TTD ends is when a claimant ^returns to work. Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 388 S.W.3d 16; Am. Railcar Indus. Inc. v. Gramling, 2010 Ark. App. 625, 2010 WL 3686561; Superior Indus. v. Thomaston, 72 Ark.App. 7, 32 S.W.3d 52 (2000). Further, she urges that Wheeler, cited in the ALJ opinion that was adopted by the Commission, does not stand for the proposition that TTD and the healing period necessarily end when a claimant returns to work.
Appellant challenges the Commission’s finding, in effect, that the August 6, 2010 report of MMI in Dr. Meador’s records is determinative, because a determination of MMI for appellant at that point conflicted with the overwhelming evidence to the contrary. We disagree and hold that the record supports the Commission’s finding that appellant was not entitled to TTD benefits. The Commission is not required to believe the testimony of a claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. See McMillan v. U.S. Motors, 59 Ark.App. 85, 953 S.W.2d 907 (1997). These matters of weight and credibility lie within the exclusive province of the Commission. Poulan, supra.
The Commission relied on the records of Drs. Rhodes and Meador indicating that appellee reached MMI by August 6, 2010. The evidence below does not support that appellant was still in a healing period two years after her original compensable injuries or that she had reentered a healing period. By August 6, 2010, she had been released from care by her authorized providers, and her continued complaints were too diffuse and unsupported by corroborating clinical findings to suggest otherwise. By the time appellant later sought unauthorized treatment at UAMS, her residual symptoms on the left side were ultimately | ^attributed to de Quervain’s Tenosynovitis, which her psychiatrist, Dr. William Doss, said could not be pinpointed to a particular cause and it would be difficult to say what could have caused it, given that appellant had not even been working for appellee for over a year by that point.
Appellant’s own testimony supports the Commission’s finding that she had reached the end of her healing period for her left upper extremity when she was released by Dr. Mead or on August 6, 2010. She testified that the unauthorized UAMS treatment did not improve significantly her symptoms because the doctor waited too long before he started treatment. She acknowledged that despite surgery, steroid injections in her arm two years ago, thirteen nerve-block, injections in her neck, physical therapy, and medication, nothing had improved her symptoms and that she was not sure what was next in terms of medical care.
Additionally, the evidence in the record supports the Commission’s finding that appellant abandoned her light-duty employment with appellee for reasons unrelated to her compensable hand injuries. Accordingly, the Commission’s decision that she is not entitled to additional TTD is not contrary to the evidence or to Arkansas law. Appellant argues that her employment was terminated because she could not return to the light-duty work that ap-pellee had made available to her, however, the finding of the State of Arkansas Department of Workforce Services, which she did not appeal or challenge, was that appellant left her work with appellee on November 29, 2010, “voluntarily without good cause connected with |7the work.” As such, substantial factual evidence supports the decision of the Commission, and we hold that no error occurred from the denial of additional TTD.
II. Denial of Medical Expenses Incurred at UAMS after August 2, 2011
The ALJ found, and the Commission affirmed, that none of appellant’s treatment at UAMS was compensable because appellant was not referred to UAMS by one of her authorized physicians, and she did not apply for a change of physician pursuant to the applicable rules in Arkansas Code Annotated section 11-9-514 (Repl.2012). It is undisputed that appellant elected to reserve her one-time right to change of physician to a later phase of the proceedings.
Section ll-9-514(b) of the statute provides, “Treatment or services furnished or prescribed by any physician other than the ones selected according to the foregoing, except emergency treatment, shall be at the Appellant’s expense.” Notwithstanding, appellant relies on section 11 — 9—514(f) which provides.
(f)When compensability is controverted, subsection (b) of this section shall not apply if:
(1) The employee requests medical assistance in writing prior to seeking the same as a result of an alleged compensa-ble injury,
(2) The employer refuses to refer the employee to a medical provider within forty-eight (48) hours after a written request as provided above,
(3) The alleged injury is later found to be a compensable injury, and
(4) The employer has not made a previous offer of medical treatment.
Appellant maintains that subsection (f) applies because, upon obtaining proof that she continued to suffer from the compen-sable injury, appellant gave written notice pursuant to subsection (f)(1). She maintains that the notice was accompanied by attached medical records stating the diagnosis and plans for treatment, including Dr. Pramod Nelluri’s |8recommendations, but appellee elected not to provide alternative treatment or the treatment recommended by the physicians at UAMS.
Contrary to appellant’s argument, the provisions of section 11 — 9—514(f) were not met in this case. Appellant and her counsel have acknowledged appellant’s ongoing right to utilize her one-time change of physician, but she has refused to exercise that right. Evidence indicates that appel-lee consistently has maintained that it would not challenge the valid exercise of the right to a one-time change of physician, but that it expected appellant not to seek unauthorized care in the meantime. There is no evidence to support that appellant made a claim for any specific medical benefit with any of her authorized doctors. We note that Lepel v. St. Vincent Health Services, 96 Ark.App. 330, 241 S.W.3d 784 (2006), cited by appellant, actually supports the Commission’s findings. This court, in Lepel affirmed the Commission’s finding that a claimant’s treatment with a neurosurgeon was unauthorized, because the claimant similarly failed to apply for a change of physician pursuant to section 11-9-514, and therefore, workers’ compensation benefits were not warranted under the facts. We hold that likewise in the instant case the Commission properly denied compensation for appellant’s treatment obtained at UAMS.
Affirmed.
WYNNE and HIXSON, JJ., agree. | [
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BRANDON J. HARRISON, Judge.
hThis workers’ compensation appeal concerns a bathroom break, a vehicle-safety inspection, and the credibility of the employee who said he was on his way to perform both when he was injured on the job. The employee, Donald Ragsdale, was hauling mail in an eighteen-wheeler on U.S. Highway 67 for his employer, LVL, Inc., when he was injured during a roadway accident. LVL appeals the Workers’ Compensation Commission’s decision to award benefits to Ragsdale. LVL disputes the credibility of some particular testimony that Ragsdale provided to the administrative law judge; LVL also says that, for various reasons, Ragsdale was not performing employment services that advanced its interests when he was injured. We affirm the Commission’s split decision that upheld the law judge’s decision to award Ragsdale medical expenses, temporary total-disability benefits, and attorney’s fees.
| ⅞Background
Ragsdale began working as a truck driver for LVL approximately seven years ago. His job was to transport U.S. mail between Newport, Arkansas and Chicago, Illinois. One day in January 2011, approximately two hours after leaving .Newport, Ragsdale began slowing his truck to turn into a truck-stop complex when another eighteen-wheeler hit his truck from behind. The parties have previously stipulated that an employee-employer relationship existed when the wreck occurred. The issue is whether Ragsdale was performing “employment services,” as the statutory phrase has been applied in the caselaw, when the wreck occurred so that he was entitled to seek and receive compensation for injuries to his left knee, right hip, and back.
The law judge held a hearing after the accident, and Ragsdale testified that it took him approximately eleven hours to drive from Newport to Chicago and that he normally left around 10:00 a.m. Rags-dale also said that, according to Department of Transportation regulations, he had to stop every two hours and do a walk-around to ensure the truck was safe to continue driving, and that he does stop every two hours to check the truck. He testified that he also made stops to get food or to go to the bathroom. Ragsdale further said that, on 6 January 2011, he had left Newport around 10:00 a.m. and that, shortly after noon, an eighteen-wheeler struck him from behind as he was slowing his rig to turn into a truck-stop complex at the Missouri-Arkansas state line. The tires on the tractor-trailer Rags-dale was driving had apparently not left the roadway when the accident first occurred; but Ragsdale said that after he was hit, his truck was knocked through the ditch and came back on the | ^shoulder of the road. When asked during the administrative hearing why he slowed down to exit the highway, Ragsdale stated that he was “pulling in to get cigarettes and use the bathroom. And then I do my walk-around on the truck and trailer, and then I get back in the truck, and I go to my next location.”
Ragsdale admitted that he told a Missouri State Trooper at the scene that he was only stopping to get cigarettes; Rags-dale later said that he did not think it was necessary to tell the trooper during the investigation everything he had planned to do during his stop. And Ragsdale apparently told a LVL dispatcher, soon after the wreck occurred, that he “had stopped to get cigarettes and got hit in the back-end by an 18-wheeler.” He also explained that the State Line Super Center was one of his regular stops on his Newport-to-Chicago route and that he stopped there “nine out of ten times.” Regarding his physical condition, Ragsdale said that, since the accident, he has not been able to work due to an injured right hip, left knee, and back.
On cross-examination during the hearing, Ragsdale clarified that he was attempting to turn into the State Line Super Center. He testified that he was going to the liquor store to get cigarettes because that store’s parking-lot area was less congested with traffic than was the truck stop’s, and the liquor store’s lot was easier to navigate in a big truck. Ragsdale acknowledged under cross-examination that he had previously stated in his deposition that he had attempted to pull into the store to do three things: get cigarettes, use the bathroom, and check his tires.
|4The state trooper who investigated the accident testified during his deposition that Ragsdale had told him that he was slowing to turn right into the liquor store parking lot to buy cigarettes. Ragsdale agreed under cross-examination that he only told the trooper that he “was stopping to get cigarettes” when the accident occurred. On re-direct, however, Ragsdale stated that during the anticipated stop he intended to do what he always did at this truck stop: use the bathroom, buy cigarettes, and check the truck’s tires and lug nuts.
The Commission’s Decision
The law judge issued an opinion, finding that, when the wreck occurred, Ragsdale was performing employment services as he slowed to turn off the road to take a restroom break and perform a safety check. The law judge then determined that Ragsdale had proven that he sustained a compensable injury and ordered LVL to pay medical expenses, temporary total-disability benefits, and attorney’s fees. Here is an excerpt from that opinion
This case turns on the credibility of the witness. I have observed the claimant on two different occasions and find him to be credible. He stated he did not understand the importance of listing everything he planned to do while he took a break and it is reasonable to take a restroom break after two hours of driving. This location was a place he routinely stopped to perform a safety check since it was required every two hours, and since it was a liquor store, he want ed to make sure the trooper knew he was not buying alcohol, but cigarettes.
LVL appealed to the Commission, which affirmed the law judge’s decision to award benefits. To LVL’s argument that Rags-dale was not performing employment services because he was stopping to get cigarettes, the Commission answered (with emphasis) that
the accident occurred while the claimant was still on U.S. 67 transporting mail from Newport to Chicago.... The Commission is bound to examine the activity the claimant was engaged in at the time of the accident in determining whether or not he was performing employment services, [internal citation | ^omitted].
The evidence in the present matter demonstrates that the claimant was performing employment services at the time of the motor vehicle accident, which occurred on January 6, 2011. The claimant was directly carrying out the employer’s purpose, i.e., transporting United States mail, at the time of the accident. Even if the accident did occur while the claimant was turning his vehicle into the driveway owned by State Line Liquor, the claimant testified, “I was pulling in to get cigarettes and use the bathroom.” Although the claimant apparently told Officer Dye that he only intended to purchase cigarettes, reasonable minds could find that the claimant was also stopping to use restroom facilities at a point in the 11-hour drive from Newport to Chicago.
The Commission affirmed the law judge’s decision to award benefits. One commissioner dissented from the majority opinion, finding that Ragsdale was not credible and that his post-accident testimony explaining why he intended to pull into the store was given “for the sole purpose of obtaining workers’ compensation benefits” and that Ragsdale’s “purpose in stopping that morning was purely personal in nature.”
Why the Commission’s Decision is Affirmed
LVL filed a timely notice of appeal to this court from the Commission’s decision. So we must now decide whether Ragsdale is entitled to benefits and provide supporting reasons to our conclusion. Our review power in this case is, however, limited given the applicable standard of review.
This Court views the evidence — and all reasonable inferences arising from it — in a light most favorable to the Commission’s decision. We must affirm its decision when it is supported by substantial evidence. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, at 5, 368 S.W.3d 64, 68. Substantial evidence is proof of the type and amount that reasonable Rminds could accept as being adequate to support the challenged conclusion. It does not matter, for appellate-review purposes, whether this court might have reached a different conclusion. To reverse, we must become convinced that fair-minded persons, with the same facts before them, could not have reasonably reached the Commission’s conclusions. Id. The highest legal hurdle for LVL is that questions concerning the credibility of witnesses and the weight to be given to their testimony are within the Commission’s exclusive province. Only the Commission may reconcile conflicting evidence and sift fact from fiction. Raulston v. Waste Management Inc., 2012 Ark. App. 272, at 7, 411 S.W.3d 711, 715 (“Matters of credibility are exclusively within the Commission’s domain[.]”). Consequently, the Commission was free to believe Ragsdale’s testimony or not.
Here, LVL contends that the Commission’s determination that Ragsdale was performing employment services when he was injured is flawed and otherwise inadequate to meet the substantial-evidence threshold. When reviewing whether an employee was performing employment services when an injury occurred, we ask this multi-faceted question: did the injury happen “within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indireetly[?]” Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 376-77, 284 S.W.3d 57, 61 (2008). This fact-bound question was for the Commission to decide. Given the material facts in this case, we hold that substantial evidence supports the Commission’s conclusion that Ragsdale’s injury occurred within the time and space boundaries of his employment and that he was directly or indirectly serving LVL’s business interests.
|7On appeal, LVL argues that “[t]he Full Commission mistakenly relied on a factors based test (as outlined in Matlock and its progeny) that has not been used in Arkansas since 2002.” We disagree. In fact, the Commission’s majority opinion cited Collins v. Excel Specialty Products, 347 Ark. 811, 69 S.W.3d 14 (2002) where our supreme court expressly declined to adopt the factors we had applied in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark.App. 322, 49 S.W.3d 126 (2001), and admonished that “[t]o automatically accept a personal-comfort activity as providing employment services would impermissibly broaden the requirements of Act 796.” Collins, 347 Ark. at 818, 69 S.W.3d at 19. The Commission properly identified the right vein of caselaw, stated the governing legal questions, and applied them to the facts.
LVL further argues that Rags-dale’s testimony on why he was going to turn into the truck-stop area was inconsistent and not credible. LVL contends that Ragsdale originally told the on-scene trooper that he was stopping for cigarettes, not that he was seeking to use a bathroom or safety check his truck. It was only after hiring an attorney, says LVL, that Ragsdale changed his story. LVL also asserts that Ragsdale’s original story — that he was stopping for cigarettes — cannot support an award of benefits under Arkansas law. Ragsdale counters that when the wreck occurred he was actively transporting mail from Newport to Chicago, just as his job duties required, and that his truck had not even left the roadway when his truck was struck from behind. He also notes that both the law judge and a majority of the Commission believed him when he said that was stopping to take a bathroom break and that he often stopped at the Super Center to conduct a safety check.
laTo support its argument that Ragsdale was not directly or indirectly serving LVL’s interests, LVL discusses many workers’-compensation cases. Many of the cases provide a helpful history of the law’s development in this general area, but none address a long-haul trucker’s bathroom-break and safety-check routines. The closest case is Kinnebrew v. Little John’s Truck, Inc., 66 Ark.App. 90, 989 S.W.2d 541 (1999), which involved a long-haul trucker and an injury that occurred when the driver slipped inside a truck stop’s shower stall. We held, as LVL points out, that the Commission did not err when it found that Kinnebrew was not performing employment services when he was hurt. But Kinnebrew’s material facts do not closely mirror this case. For a number of reasons — including that Kinne-brew was not hurt while in his truck and traveling on the road — this court determined that Kinnebrew’s injury occurred when he was “off duty.” Id. at 92, 989 S.W.2d at 543. Ragsdale was not off duty when he was injured. Our supreme court’s holding in Collins — that the claimant’s “restroom break was a necessary function [that] directly or indirectly advanced [an employer’s] interests” — also counsels us to affirm. Collins, 347 Ark. at 818, 69 S.W.3d at 19.
We come to our final point. Because we affirm the Commission’s finding that, to paraphrase our supreme court, Ragsdale was performing necessary functions that directly or indirectly advanced LVL’s interests, we do not need to pointedly address LVL’s argument that Ragsdale’s purpose for attempting to turn into the store was to buy cigarettes and that such an act was not an employment service that advanced the company’s interests. Doing so would require us to resolve an issue unnecessarily given that the Commission took as fact that, at a | ^minimum, Ragsdale was transporting mail for LVL when the accident occurred and that transporting mail for LVL was what Ragsdale did to earn a living.
Conclusion
A majority of the Commission believed Donald Ragsdale when he said that he was stopping his eighteen-wheeler at the State Line Super Center to use the restroom and perform a vehicle-safety check as he hauled mail from Newport to Chicago. We must accept the Commission’s credibility call. Further, given the caselaw on topic, we hold that Ragsdale’s intended restroom break and vehicle-safety check, on this record, were employment services that directly or indirectly advanced LVL, Inc.’s interests for the purpose of determining whether Ragsdale could obtain workers’ compensation benefits.
Affirmed.
WYNNE and GRUBER, JJ., agree. | [
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RHONDA K. WOOD, Judge.
11 John Hancock Mutual Life Insurance Company owns the timber rights to 179 acres in Hot Spring County. Its rights are recorded in a timber deed, which incorporates an underlying agreement of sale. Hancock’s rights to the timber were set to expire at the end of 2010. By December 2010, Hancock had yet to cut down any trees, then valued at $750,000. Hancock decided to extend the lease another year as provided in the agreement and deed. To that end, it researched the land records and discovered that Ricky and Christine Pope were the surface owners of the property.
li>Oii December 3, 2010, Hancock sent a notice letter and check to the Popes’ residence via Federal Express, notifying them of Hancock’s intent to extend the deed. The package was delivered on Monday, December 6, and Hancock filed a timber deed extension the next day. The check, written for $13,450, was never cashed. In March 2011, the Popes contacted Hancock and threatened to call law enforcement if it attempted to enter the property. According to the Popes, Hancock had no rights to the timber. As a result, Hancock brought suit for quiet title, declaratory judgment, and an injunction.
Both parties Sled motions for summary judgment. The court entered partial judgment in favor of Hancock, ruling the Popes had constructive notice of Hancock’s timber deed and agreement of sale, but reserved for trial whether Hancock’s mailing of the notice and check extended the deed. After a bench trial, the court ruled that Hancock made a good-faith attempt to notify the Popes of its intent to extend its rights under the timber deed and agreement. The court found that Hancock’s mailing of the check through Federal Express triggered the mailbox rule and that delivery of the check extended the deed’s term one more year. The Popes appeal both the partial summary judgment and final order.
On appeal, we address the following arguments: (1) the Popes are not bound by the agreement of sale referenced in the timber deed and, accordingly, Hancock has no rights to the timber; and (2) even if the Popes are bound by the agreement, (i) Hancock failed to provide proper notice of its intent to extend the lease and (ii) the court erred when it applied the mailbox rule. We reject these arguments and affirm the circuit court.
I. Whether the Popes are Bound by the Deed and Agreement
Is At the summary-judgment stage, the circuit court ruled that the Popes owned the property subject to Hancock’s timber rights. In reviewing a grant of summary judgment, we consider whether the moving party left a material question unanswered. Taylor v. Texas Gas Transmission, LLC, 2012 Ark. App. 625, 2012 WL 5452193. Summary judgment is proper if the moving party is entitled to judgment as a matter of law. Id. In this case, there is no factual dispute that the timber deed was recorded and the agreement of sale was not. The only question is whether the Popes were on notice given these undisputed facts. This is a legal question, and we review it de novo. Rice v. Welch Motor Co., 95 Ark.App. 100, 234 S.W.3d 327 (2006).
The Popes obtained title to the property by a special-warranty deed. That deed included a section called “Permitted Exceptions,” which said the conveyance was subject to
PLANTATION CONTRACTS: John Hancock Mutual Life Insurance Company. 179 acres. Contract length 12/29/95-12/29/2010. Recording Info— Book 107, Page 87. Retained access needed.
In addition, the recorded timber deed states that it is “subject and pursuant to the terms of that certain Agreement of Sale dated as of December 29, 1995 between Grantor and Grantee.” Finally, the deed reflects that its 15 year term is “[s]ubject to Grantee’s right to extend the Contract for an additional period of up to three (3) years as provided therein,”
A purchaser of land takes it with constructive notice of whatever appears in the conveyance that constitutes his chain of title. Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). Further, landowners are bound by restrictions that appear in a properly recorded deed in their chain of title even though the instrument conveying title does not contain the restrictions. Id. So, the Popes were on constructive notice of the timber deed because it was listed in their special warranty, deed. They are also bound by the restrictions contained in the timber deed, that is, Hancock’s rights to the timber.
Next, we consider whether the Popes are bound by the agreement referenced in. the timber deed. When a contract refers to another writing and makes the terms of that writing a part of the contract, the two documents become a single agreement between the parties and must be construed together. Ingersoll-Rand Co. v. El Dorado Chem. Co., 373 Ark. 226, 283 S.W.3d 191 (2008). Moreover, a specific reference in the deed to a contract is an incorporation, with the terms of the contract being made a part of the deed. See Estate of Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161 (1985). In order to incorporate a separate document by reference into a contract, the reference must be clear and unequivocal, and the terms of the incorporated document must be known or easily available to the contracting parties. Ingersollr-Rand, supra.
Here, the timber deed unequivocally incorporated the agreement of sale. The deed stated that all rights to the property were “subject and pursuant to the terms of that certain Agreement of Sale dated December 29, 1985 ... the terms of which are incorporated herein by reference.” The terms of that agreement are, therefore, made part of the timber deed. This is consistent with “the basic rule to be applied in the construction of deeds, as with other contracts, [which] is to ascertain and give effect to the real intention, of the parties.” Gibson v. Pickett, 256 Ark. 1035, 1039, 512 S.W.2d 532, 535 (1974).
| .^Moreover, Ricky Pope testified that before he purchased the property, he examined the timber deed and saw that it was subject to an agreement of sale; however, Ricky never obtained a copy of that agreement even though the deed contained the phone number and address of both the grantor (IP Timberlands) and the grantee (Hancock). A buyer of land is on notice if he or she is aware of such facts, and circumstances as would put a person of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of those prior interests. Bill’s Printing, Inc. v. Carder, 357 Ark. 242, 161 S.W.3d 803 (2004). The Popes cannot claim ignorance of the agreement when they failed to make a diligent inquiry into its terms. Therefore, because the agreement bound subsequent purchasers of the property and because the Popes were on notice of other interests, the Popes take the property subject to the timber deed and its incorporated agreement’s terms.
II. Whether Hancock Properly Extended the Deed’s Term
After the court granted partial summary judgment, the parties had a bench trial to determine whether Hancock’s sending the extension check via FedEx was sufficient to extend the timber deed another year. The court ruled that Hancock made a good-faith attempt to notify the Popes and that, under the mailbox rule, Hancock’s mailing of the check on December 3 operated to extend the deed.
lfiQuiet title actions have traditionally been reviewed de novo as equity actions. City of Cabot v. Brians, 93 Ark.App. 77, 216 S.W.3d 627 (2005). However, we will not reverse the circuit court’s findings in such actions unless the findings are clearly erroneous. Id. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been made. Id.
A. Breach of Contract
Under both the timber deed and agreement of sale, Hancock had the right to extend the timber deed. According to the agreement, “Hancock shall have the right ... to extend said initial term for three additional periods of one year each upon payment to Seller, on or before the expiration of said terms.” The timber deed contains similar language. The term was set to expire on December 29, 2010. Thus, Hancock had to notify the Popes of its intent to extend the term by December 29, 2010. Under the agreement of sale, notice was to be made as follows:
Any notices which may be required or are appropriate hereunder shall be in writing or by electronic means producing a written record (facsimile machine, telex, telecopies or telegraph), personally delivered or mail by Registered or Certified United States Mail, postage prepaid, return receipt requested, effective upon personal delivery, one day after mailing if by reputable overnight courier or three days after mail if by United States mail.
At trial, Trent Jernigan, Hancock’s real estate counsel, testified that he prepared the notice letter and check and sent both to the Popes via FedEx next day business delivery on Friday, December 3. Jernigan stated that “[w]e sent it on a Friday and we did not send it, because it was going to a residence, for Saturday delivery.” According to Jernigan, people at a residence are more likely to get packages on Monday instead of Saturday.
|7The Popes argue that Hancock violated the notice provision of the agreement of sale because Jernigan sent the letter and check via next business day delivery instead of overnight delivery. At the conclusion of the bench trial, the court rejected that argument and found no material breach. We agree.
When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach. Taylor v. George, 92 Ark.App. 264, 212 S.W.3d 17 (2005). As a general rule, the failure of one party to perform his contractual obligations releases the other party from his obligations. Id. Forfeitures, however, are not favored in the law, and a relatively minor failure of performance on the part of one party does not justify the other in seeking to escape any responsibility under the terms of the contract; for one party’s obligation to perform to be discharged, the other party’s breach must be material. Id. ■
In this case, the contract provided that notice should be sent via overnight carrier, but Hancock sent it next business day. It is unclear whether “overnight” was a delivery requirement or a description of the type of carrier. If it was a requirement, sending the package by next business day instead of overnight delivery would be a “relatively minor failure of performance” rather than a material breach. This is especially true because Hancock sent the notice two weeks before the deadline to extend would have expired, thus causing the Popes little to no prejudice. Regardless, if the court had found a material breach, Hancock would have lost $750,000 and the Popes would have received a huge windfall (they only paid $80,000 for the property). Both forfeitures and windfalls are Rstrongly disfavored. Thus, we find no error in the circuit court’s decision that Hancock had not materially breached the contract.
B. The Mailbox Rule
Finally, we address the circuit court’s application of the mailbox rule. Under the mailbox rule, a contract is completed when acceptance is placed in the mail. Equity Fire & Cas. Co. v. Traver, 330 Ark. 102, 953 S.W.2d 565 (1997). But the parties are free to modify this default rule in their agreement. See id. Here, the circuit court, applying the mailbox rule, found that Hancock extended the terms of the timber deed when it placed the letter and check in the hands of FedEx. The Popes argue that the mailbox rule does not apply if the carrier is FedEx.
First, the Popes never raised this argument to the trial court and it is not preserved. At trial, the Popes’ attorney contested the method of sending the notice, but he never argued that the mailbox rule is inapplicable when FedEx is the carrier. We will not consider arguments raised for the first time on appeal. Marlow v. United Sys. of Arkansas, Inc., 2013 Ark. App. 100, 2013 WL 542866. Moreover, a party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Id. The Popes’ argument at trial was that notice was non-compliant with the agreement, |flnot that the mailbox rule was inapplicable. Accordingly, we do not reach the merits of this argument on appeal.
Second, even if the argument is preserved, it is unclear why the mailbox rule should be applied in this case. It is a default rule of law that the parties are free to modify. See Equity Fire, supra. But the agreement of sale had a provision for the notice to extend the agreement that did not require acceptance. So when the court found that Hancock did not breach the contract by sending notice via FedEx next day rather than overnight, it implicitly found that Hancock had extended the deed’s term. We will affirm the trial court where it reaches the right result, even though it may have announced the wrong reason. Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998). Here, there was no need for the court to apply the mailbox rule when it already found that Hancock did not breach the notice provision of the agreement.
Affirmed.
HARRISON and VAUGHT, JJ., agree.
. IP Timberlands originally sold the timber rights to Hancock in December 1995.
. IP conveyed the surface rights to Sustainable Forests, LLC in December 1996. Sustainable Forests sold the land to Blue Sky Timber Properties, LLC in March 2003. Finally, Blue Sky sold the property to the Popes for $80,000 in July 2008. All of the deeds in the chain of title were properly recorded.
. As mentioned earlier, IP Timberlands was the grantor and Hancock was the grantee.
. Paragraph 5 of the agreement of sale, titled "Assignment; Sale of Premises by Seller,” provides that "[i]n the event that Seller at any time after Closing conveys any portion of the Premises, the party purchasing from Seller shall assume Seller’s, obligations hereunder with respect to that portion of the Premises.” Below, the Popes argued that they were not bound by the agreement because they did not purchase the premises directly from the "Seller,” IP Timberlands. The circuit court rejected that argument, and the Popes have not appealed it.
. See, e.g., Meers v. Tommy's Men's Store, Inc., 230 Ark. 49, 320 S.W.2d 770 (1959) ("Every effort should be made to interpret contracts favorably to their enforcement and to prevent forfeitures.”); Vereen v. Hargrove, 80 Ark.App. 385, 96 S.W.3d 762 (2003) ("Forfeitures ... are not favored in the law, and in order to be enforced, they must be plainly and unambiguously provided in the contract.”); Harvison v. Charles E. Davis & Assocs., Inc., 310 Ark. 104, 835 S.W.2d 284 (1992) ("Principles of equity would never award such a windfall, especially when presented with an opportunity to completely satisfy all interests in the property.”). | [
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PAUL E. DANIELSON, Justice.
|!Appellant Joseph Anthony Scamardo, Jr., appeals an order of the Sebastian County Circuit Court finding him guilty of sexual assault in the second degree and sentencing him to 144 months’ imprisonment in the Arkansas Department of Correction. Scamardo raises two arguments on appeal: (1) that the circuit court erred by forbidding him from introducing extrinsic evidence of a prior inconsistent statement by the victim, and (2) that the circuit court erred in allowing the victim’s father to testify regarding what she had told him about the incident on a prior occasion. We reverse and remand Scamardo’s conviction and sentence.
Because Scamardo does not challenge the sufficiency of the evidence against him, only a brief recitation of the facts is necessary. See, e.g., Riley v. State, 2012 Ark. 462, 2012 WL 6218479. The charges against Scamardo stemmed from the victim’s allegations that in 2008, over Labor Day 2weekend, she was sexually assaulted by her now stepfather, appellant “Joey” Scamardo. The victim testified at trial about having spent the night at her “Nannie and Poppyf’s]” (Scamardo’s parents) home in Fort Smith, Arkansas, along with her mother, her two brothers, her stepsister, and Scamardo. She testified that she and her stepsister slept in “a little blow up bed” and that her brothers slept in another bed. The following colloquy took place during her testimony at trial:
Q. Do you remember what you had been wearing to sleep that night?
A. I wore a nightgown and panties.
Q. All right. Can you tell us or tell the jury if something happened that night that you remember?
A. Can you please repeat the question.
Q. Yes. Can you tell us if something happened that night when you were sleeping in there on that bed?
A. Joey, he left his room and he touched me on my private area.
Q. All right. Where were you laying when this happened?
A. I was laying on my bed.
Q. On the bed, okay. Do you know what side of the bed or the mattress that you were on?
A. No.
Q. You said that Joey touched you. Where would he have been when he touched you?
A. I don’t—
Q. Where was he in relation to where you were laying when he touched you?
| sA. Where my legs were.
Q. By where your legs were, is that what you said?
A. (Nods head).
Q. Npw, you said on your privates. Can you kind of explain to the jury. You said you had panties on , and you had a nightgown on. Was this over your panties or underneath your panties?
A. Underneath.
Q. Underneath your panties, okay. Now, can you kind of explain how that happened if you had your panties on?
A. Joey, he1 had pulled them down.
Q. And touched you on your privates, you said?
A. (Nods head).
Q. I am going to go back to what I asked you to mark earlier and can you point out on here exactly where he touched you? Can you do that for me?
A. (Indication).
Q. That is the place that you have marked private?
A. (Nods head).
Q. Now, what did he touch you with?
A. His finger.
Q. His finger, okay. Do you know how long he touched you there with his finger?
A. A minute or five seconds, I don’t know.
Q. You don’t know how long it went on, okay. Do you, did he do anything with his finger when he touched you?
14A. Huh uh (witness shakes head).
Q. He just touched you there with his finger?
A. (Nods head).
Q. Did he say anything to you?
A. No.
Q. Did you say anything to him?
A. No.
Q. Why not?
A. I didn’t want him to know I was awake.
Q. You were trying to act like you were asleep?
A. (Nods head).
Q. Can you explain what it felt like on there, what his finger felt like on there?
A. It felt kind of wet and uncomfortable.
Q. Can you tell us, you had gone down there to go to sleep; right?
A. Yes, ma’am.
Q. The other kids were there, two were in the other bed. Were there any lights on in the room or in the house?
A. Well, the kitchen light was on.
Q. The kitchen light. Where is the kitchen in relation to this room that you were sleeping in?
A. It was just like the room is here and there is like a wall here, but the kitchen is right here and you kind of see the light.
Q. Is there an entryway or a doorway to this room where you were sleeping?
IsA. There is just an open hole in the wall.
Q. That is how you got into that room?
A. (Nods head).
Q. Is the kitchen back behind that?
A. (Nods head).
Q. What happened after he touched you?
A. I don’t know, I just heard my mom call and Joey, he went in the room and that’s all.
Q. He went in what room?
A. He went in his room with mom.
Q. In the bedroom with mom, okay. "What did you do after that?
A. Can you repeat the question?
Q. Yes, I’m sorry. What did you do after Joey walked back to the bedroom?
A. I tried to wipe it off, but I couldn’t. So I went to the bathroom and used toilet paper to wipe it off, it was uncomfortable.
Q. What were you wiping?
A. My private area.
Q. You were trying to wipe it off. What were you trying to wipe off?
A. Some wet stuff, it felt wet.
In addition to the victim’s testimony, her biological father testified that about a month after the incident, he was driving the victim to the court-ordered counseling that she began attending after his divorce from the victim’s mother when he noticed that the victim seemed |fimore withdrawn than usual. Her father testified that he spoke with her'about making sure to talk about everything she needed to. Her father stated that at that point she told him about Scamardo touching her and that she was very upset, visibly withdrawn, and she was crying. Based on that conversation, he told the counselor when he took her into the appointment, and he called the police. The next day he took her to the Children’s Safety Center in Springdale, where she was interviewed and underwent a medical exam.
The sexual-assault nurse examiner from the Children’s Safety Center, Sue Stockton, also testified about examining the victim. She testified that her findings from the exam of the victim were normal, which was actually consistent with what the victim said had happened because the allegation was touching. Stockton testified that when the allegations are touching, she does not expect to find anything. She admitted on cross-examination that she could not say anything had happened to the victim, but also could not say that nothing had happened based on her examination.
After the close of all the evidence, the jury found Scamardo guilty of sexual assault in the second degree as previously noted. Scamardo first appealed his conviction and sentence to the Arkansas Court of Appeals. See Scamardo v. State, 2012 Ark. App. 892, 2012 WL 2837805. The court of appeals reversed Scamardo’s conviction and sentence and remanded for a new trial. The State petitioned this court for review, and we granted that petition on September 6, 2012. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. See Fowler v. State, 2010 Ark. 431, 371 S.W.3d 677. We now turn to the merits.
Scamardo first argues that the testimony of Angelina Wales, the victim’s aunt, should |7not have been excluded because it was proper impeachment testimony under Ark. R. Evid. 613(b). The State contends that the circuit court properly prevented the evidence from being admitted under Ark. R. Evid. 608 and 801 and that a party should not get to use Rule 613 to circumvent basic evidentiary concerns of relevance, prejudice, and confusion. We conclude that the testimony was admissible under Rule 613(b).
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion. See Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. The abuse-of-discretion standard “is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration.” Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004). Nor will we reverse absent a showing of prejudice. See Gulley v. State, 2012 Ark. 368, 423 S.W.3d 569; Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002).
During Scamardo’s cross-examination of the victim, she was asked if she had ever told her mom in front of her Aunt Angelina that she was being made to lie. She testified that she never said that — that she never told them she was being made to lie. However, Scamardo attempted to introduce Angelina Wales’s testimony to the contrary. The circuit court found the aunt’s statement to be inadmissable hearsay. We disagree and reverse that finding.
Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (2012) (emphasis added). Here, the evidence was not offered to prove the truth of the matter asserted, that the victim was being made to lie. Rather, it | swas offered as impeachment evidence — to contradict the victim’s previous testimony on cross-examination that she never said that to her mother and to attempt to lessen her credibility.
Arkansas Rule of Evidence 613(b)(2012) provides in pertinent part:
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon[.]
Pursuant to Rule 613(b), three requirements must be met before extrinsic evidence of a prior inconsistent statement is admissible: (1) the witness must be given the opportunity to explain or deny the inconsistent statement; (2) the opposing party must be given the opportunity to explain or deny the witness’s inconsistent statement; and (3) the opposing party must be given the opportunity to interrogate the witness about the inconsistent statement. However, this court has held that when the witness admits to having made the prior inconsistent statement, Rule 613(b) does not allow introduction of extrinsic evidence of the prior statement to impeach the witness’s credibility. See Yankaway v. State, 366 Ark. 18, 233 S.W.3d 136 (2006); Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001).
On the other hand, where the witness, as was done in the instant case, is asked about a prior statement and either denies making it or fails to remember making it, extrinsic evidence of the prior statement is admissible. See Kennedy, supra. This court has concluded that im peachment of a witness by introducing extrinsic evidence of a prior inconsistent statement through the testimony of a second witness or through the admission of documentary evidence (regardless of whether the statement was given under oath) must be fallowed, otherwise Rule 613(b) would have no meaning. Kennedy, 344 Ark. at 447, 42 S.W.3d at 416.
Here, the testimony of Angelina Wales regarding the victim’s prior inconsistent statement should have been allowed into evidence as impeachment evidence in accord with Rule 613(b). Both sides had the opportunity to interrogate the victim about the statement, and she was given the opportunity to explain or deny. She clearly denied having made the statement.
Even when appellant has proved error, where the evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm. See Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001). However, we cannot say here that the evidence was so overwhelming as to Scamardo’s guilt or that the error was so slight. This is because the main evidence supporting Scamardo’s conviction was the victim’s testimony and her statements to third parties. Thus, the victim’s credibility was presumably a major consideration for the jury. For these reasons, we reverse and remand on this point.
Scamardo further argues that the circuit court erred by admitting hearsay evidence when it allowed the victim’s father to testify as to what she had told him about the incident approximately one month after it had occurred. The State avers that the circuit court did not err in allowing the evidence. Although we often do not address a second issue on appeal after holding to reverse and remand on the first issue presented, we will consider the second issue here because it is one likely to recur on retrial. See T.C. v. State, 2010 Ark. 240, 364 S.W.3d 53.
ImScamardo contends in his brief that the out-of-court statement by the victim to her father was not made shortly after the offense and was not admissible under the cases cited to the circuit court. That is correct. At trial, the State argued to the circuit court that the testimony should be found admissible under Bing v. State, 23 Ark.App. 19, 740 S.W.2d 156 (1987). In Bing, our court of appeals stated the following:
Statements by sex offense victims made to third parties shortly after the offense are admissible under any one of three theories. First, third parties may testify as to the victim’s “complaint of rape” which proves that the victim did not remain silent (details of the offense are not admissible). Next, testimony by third parties may involve an “excited utterance” by the victim. Finally, third parties may testify as to a “prior consistent statement” made by the victim so long as the victim is present at trial and subject to cross-examination, the victim’s credibility has been impeached, and introduction of the testimony otherwise complies with the applicable rules of evidence.
23 ArkApp. at 22, 740 S.W.2d at 157 (emphasis added) (internal citations omitted).
The circuit court applied the first of the three theories and found that the victim’s testimony was admissible to show that she did not remain silent. However, in the instant casé, the victim’s statement to her father was not until roughly one month after the incident. We conclude that the elapsed time period of one month was too long for the testimony in the instant case to be considered “shortly after the offense” as the type of testimony described in Bing. Therefore, the circuit court erred in admit ting the testimony pursuant to that case law.
The State, for the first time on appeal, additionally argues that the father’s testimony was not hearsay and, therefore, did not need to be admitted pursuant to a hearsay exception because it was offered to show the basis of his next actions rather than offered to prove the truth of the matter asserted. The State contends that the testimony was offered to show that | nthe victim made the statement, was upset, and what her father did in response to it — his contacting the authorities and his basis for doing so. However, this argument was not presented to the circuit court and was not the basis of the circuit court’s ruling. We will not consider arguments that are raised for the first time on appeal. See MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28.
For all of the above-stated reasons, we must reverse and remand for a new trial.
Reversed and remanded; Court of Appeals’ opinion vacated.
Special Justice BYRON FREELAND joins in this opinion.
HOOFMAN, J., not participating. | [
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BRANDON J. HARRISON, Judge.
hSherbbie Lambert appeals the Faulkner County Circuit Court’s decision to revoke her probation, which resulted in the court sentencing her to fifteen years in the Arkansas Department of Correction. Lambert raises two perceived errors: (1) the circuit court wrongly found that she had received the statutorily required notice of the terms and conditions of her probation, and (2) the circuit court mistakenly found that the State proved by a preponderance of the evidence that she had violated at least one condition of her probation. We affirm on both points.
Background
In a judgment-and-disposition order filed in January 2006, Lambert pled guilty to committing five felonies. The felonies involved two separate cases. In case number 2004-2684, Lambert pled guilty to possession of a controlled substance with intent to deliver and ^possession of drug paraphernalia. In case number 2005-807, she pled guilty to possession of a controlled substance with intent to deliver, maintaining a drug premises within one thousand feet of a drug-free zone, and possession of drug paraphernalia. Lambert received a suspended imposition of sentence for the two counts of possession of a controlled substance with intent to deliver and was sentenced to five years’ probation on each of the remaining counts. Lambert’s probation conditions were attached to the order and signed by the circuit judge.
In March 2006, the State sought a revocation warrant because Lambert had allegedly violated her probation in four ways: (1) failure to report for office visits as directed, (2) failure to report for group sessions as directed, (3) failure to report for drug tests as directed, and (4) failure to abstain from illegal drug use. A bench warrant was issued for Lambert’s arrest, and she was arrested in July 2011.
A revocation hearing was held in September 2011. At the hearing’s end, the court ruled that Lambert had violated the terms and conditions of her probation by not reporting to her probation officer, not attending group sessions, and not submitting to required drug testing. Then it pronounced its sentences. On the charge of possession of drug paraphernalia (case number 2004-2684), the court sentenced Lambert to seven-and-a-half years’ imprisonment. On the charges of possession of drug paraphernalia and maintaining a drug premises (case number 2005-807), the court imposed a sentence of seven-and-a-half years’ imprisonment and fifteen years’ imprisonment, respectively. All sentences were to run concurrently. The circuit court subsequently entered a judgment-and-commitment order Rfrom which Lambert has timely appealed.
Standard of Review
The State must prove, by a preponderance of the evidence, that Lambert received the statutorily required written notice of the terms and conditions of her probation. The State must also prove, by a preponderance of the evidence, that Lambert violated a condition of probation. Williams v. State, 351 Ark. 229, 233, 91 S.W.3d 68, 70 (2002). But it need only prove that a defendant violated one probationary term or condition before a circuit court may revoke probation. Rudd v. State, 76 Ark.App. 121, 124, 61 S.W.3d 885, 888 (2001). We will not reverse the circuit court’s findings unless they are clearly against the preponderance of the evidence. Williams, 351 Ark. at 234, 91 S.W.3d at 70. Evidence that would not support a criminal conviction in the first instance may be enough to revoke probation or a suspended sentence. Id., 91 S.W.3d at 70. Determining whether a preponderance of the evidence exists turns on questions of credibility and weight to be given to the testimony; so we defer to the circuit court’s superior position when it comes to assessing a witness’s believability. Id., 91 S.W.3d at 70-71.
A Preponderance of the Evidence Supports the Circuit Court’s Decision that Lambert Received Notice of Probationary Conditions as Required by Law
For her first point on appeal, Lambert says the State failed to prove that she received the statutorily required written notice of the terms and conditions of her probation. Therefore, Lambert argues, the court erred in revoking her probation. Arkansas Code Annotated section 5^4-303 provides that when a defendant is placed on probation, the court must “attach such conditions as are reasonably necessary to assist the defendant in leading a |4law-abiding life,” and the defendant must be given “a written statement explicitly setting forth the conditions under which he or she is being released.” Ark.Code Ann. § 5-4-303(a), (e) (Supp.2011).
During the revocation hearing, Lambert’s probation officer, Terry Rowlett, told the circuit court that Lambert had failed to report for an office visit that was scheduled on 20 March 2006. Rowlett also said that, on 8 March 2006, Lambert’s blood had tested positive for cocaine — and Lambert had also missed drug tests and group sessions that were scheduled on March 17, March 20, and March 22 of 2006. During Rowlett’s testimony, Lambert’s counsel moved to dismiss the State’s motion for revocation because it had not provided a document signed by Lambert acknowledging that she understood the probationary conditions. Counsel argued that, because there was no evidence that Lambert had acknowledged or knew about the terms and conditions of probation that she had allegedly violated, the court could not hold her responsible for violating them.
The circuit court denied the motion after directly asking Rowlett if the conditions of probation had been explained to Lambert, and Rowlett said, yes, the conditions of probation had been explained to Lambert on 30 January 2006. Here is the exchange as it appears in the record:
The Court: Let me ask a question. Were the conditions of probation ever explained to Ms. Lambert by you or anyone in your office?
Ms. Rowlett: Yes, Your Honor, they were.
The Court: When would that have been done?
Ms. Rowlett: It would have been done on January 30th.
| .¡During follow-up questioning, Rowlett said that she had reviewed the conditions of probation with Lambert, that Lambert indicated that she understood them, and that Lambert signed a copy of the conditions. Rowlett admitted, however, that she could not produce a signed copy of the conditions. She also testified that Lambert was given a copy of the terms and conditions of her probation.
Lambert argues that the conditions of probation introduced as evidence during the revocation hearing were signed by the circuit judge but not by her. And she asserts that “[n]ot one credible witness was called to attest to and verify that the appellant was provided with a copy of the order or that she signed the order.” Lambert cites Neely v. State, 7 Ark.App. 238, 647 S.W.2d 473 (1983), to support her argument. There, this court reversed the revocation of a suspended sentence because the State had failed to produce any proof that the defendant knew the conditions of his suspension. Lambert contends that we must reverse because her case is like Neely.
In response, the State concedes that a defendant must be given a written statement that expressly communicates the conditions of release. Ark.Code Ann. § 5-4-303(e). But it also says that the statute neither requires that a defendant sign a written acknowledgment that she received a written copy of the conditions, nor that it must introduce a signed acknowledgment into evidence during a revocation hearing. Pointing to Patterson v. State, 99 Ark.App. 136-A, 136-C, 257 S.W.3d 921, 923 (2007), the State argues that this court has previously rejected the acknowledgment-related argument that Lambert makes here. In Patterson, we held that no controlling legal authority requires the State to introduce a signed | ^acknowledgment that proves— through documents — that a defendant actually received a copy of the terms and conditions of probation. Id., 257 S.W.3d at 923.
Lambert replies that Patterson is distinguishable from this case because, there, the defendant said that he had not signed an “acknowledgment of receipt” of the conditions of his probation, and here Lambert says she did not sign the conditions of probation. She also contends that Patterson’s personal testimony during his revocation hearing did not refute his probation officer’s testimony. In contrast, as Lambert herself brings up in her brief, she did not testify during the revocation hearing.
The State is correct: it does not have to introduce into evidence a piece of paper, which the defendant has signed or initialed, that acknowledges she has in fact received written notice of the probationary terms and conditions. See Patterson, supra. We are not persuaded by Lambert’s attempt to distinguish Patterson.
Nor is this case like O’Neal v. State, 2010 Ark. App. 241, 2010 WL 816340, where we reversed a revocation because it was “undisputed” that defendant O’Neal “neither received a copy of his probation conditions nor signed or initialed them,” and he “did not meet with his probation officer face-to-face.” Id. at 1-2, 2010 WL 816340. This case is different in a meaningful way, because Rowlett testified that she explained the conditions of probation to Lambert (in a face-to-face meeting), that Lambert signed a copy of the conditions, and that Lambert received a written copy of the terms and conditions. Rowlett also testified that, for some time, Lambert had complied with the required conditions before going AWOL. This course of conduct is evidence that Lambert knew what she had to do and when she had to do it.
17However it is expressed, Lambert’s base position is that the State did not introduce sufficient evidence that she signed the conditions of probation and that Rowlett is “not credible related to the delivery of a copy of an unsigned Conditions of Probation form.” We disagree. The circuit court heard and credited testimony from Lambert’s probation officer that Lambert was advised of her probationary terms and conditions and given a written copy of those conditions. Therefore, the circuit court’s conclusion that Lambert received a written copy of the probation conditions is not clearly against the preponderance of evidence given that the court credited Rowlett’s testimony.
The Circuit Court Received Sufficient Evidence to Revoke
Lambert also argues that the court lacked sufficient evidence to conclude that she violated her probationary conditions. Lambert argues that although Rowlett testified that Lambert had failed to attend group sessions, Rowlett could not give the court the dates of the group sessions that Lambert had missed. Lambert also argues that no witness testified about the reliability of the testing of her urine sample that was found to be positive for cocaine; nor did the State establish, says Lambert, a proper chain of custody of the urine sample. Finally, Lambert again argues that the State did not introduce a signed copy of her conditions of probation and that “there is not one scintilla of proof that she had actual notice of or signed Rany form acknowledging or consenting to the conditions of probation.”
We disagree with Lambert’s view of the evidence regarding the alleged violations of her probation. As we have pointed out, the State put on proof that Lambert did not contact or report to her probation officer on 20 March 2006 as directed. Nor did she attend any group sessions, or submit to all the required drug tests, before the arrest warrant issued on 24 March 2006. The circuit court’s decision to im pose sentences in the two underlying criminal cases was sufficiently supported by the evidence once it believed Rowlett’s testimony that Lambert had violated at least one of the conditions. On the urine sample’s reliability, the circuit court did not revoke Lambert’s probation based on the positive drug test, so she was not prejudiced by the test results in any event.
Conclusion
We affirm the circuit court’s decision to revoke Lambert’s probation and to sentence her to a term of imprisonment.
Affirmed.
WYNNE and GRUBER, JJ, agree.
. Lambert’s abstract wrongly states that Row-lett said that she did not provide a written copy of the terms and conditions to Lambert. The record clearly states the opposite.
. Lambert also makes a two-sentence argument in her reply brief that a required, express condition of probation was not included in her conditions. We will not review this tardy argument. State v. McCormack, 343 Ark. 285, 291, 34 S.W.3d 735, 738-39 (2000). | [
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JIM HANNAH, Chief Justice.
| T Ricky Earl White appeals an order denying his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. White was convicted of first-degree murder and sentenced as a habitual offender to life imprisonment for the murder charge, and his sentence was enhanced by fifteen years for using a firearm to commit the murder pursuant to Arkansas Code Annotated section 16-89-120(a) (Supp.2007). His conviction and sentence were affirmed by this court. White v. State, 2009 Ark. 374, 326 S.W.3d 421. White asserts that the circuit court erred in denying his petition because his attorney, without consulting him, changed the trial strategy from arguing justification to arguing reasonable doubt that he was the killer, and at the same time, denied him his constitutional right to testify. We affirm the finding of the circuit court that White was wrongfully denied his right to testify and to pursue a justification defense. However, we also 1 .¿affirm the circuit court’s finding that had the defense of justification been pursued, and had White testified, there is no reasonable probability that the fact-finder would have reached a different outcome. On this basis, we affirm the circuit court’s denial of White’s Rule 37 petition.
This court does not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. 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 made. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id. We assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Id.
In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. We indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
In order to satisfy the second prong of the Strickland test, the petitioner must show that|scounsel’s deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Sartin, 2012 Ark. 155, 400 S.W.3d 694. This requires the petitioner to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
White asserts that he made an explicit demand to testify and that this right was denied him by his attorney, Sharon Kiel. Kiel testified at the hearing on White’s Rule 37 petition that she was aware that White wished to testify and that he wished to present a justification defense. She further testified that White made himself clear to her regarding his desire to testify and that his understanding on the morning of trial was that they would pursue a justification defense that would include his testimony. According to Kiel, on the morning of trial, without consulting White, she changed the trial plan to a defense of reasonable doubt that White was the killer. This meant White would not testify. Kiel testified that the decision was hers alone and that she took away his ability to testify. The circuit court found that “[pjetitioner should have been allowed to testify on his own behalf, [but the court] does not however find that his testimony would have changed the outcome of his trial.” The circuit court thus found that White failed to satisfy the second prong of the Strickland test. In other words, the circuit court found that White failed to show that there existed a reasonable |4probability that the fact-finder’s decision would have been different absent counsel’s errors. See Sartin, supra.
The trial record reveals that, in the early morning hours of February 2, 2008, Penze Wine was shot and killed in the parking lot of a recording studio in Southwest Little Rock. Gary Wilkins, a friend of Wine’s, testified that he, Wine, Carlos Pace, and Eugene Harris were at the recording studio on the night in question. Wilkins further testified that neither he nor anyone he was with had a firearm, that he looked out the door and saw Wine outside by Wine’s car, and that a white Cadillac was behind Wine’s car. According to Wilkins, he looked away and closed the door, but upon hearing “bam,” he looked back out and saw Wine on the ground, and White, who he knew as “Big Baby,” get in the white Cadillac and drive off. Pace testified that he was in Wine’s car with Wine when they struck White’s car upon backing out. According to Pace, he and Wine examined White’s car and found no damage, but Wine offered to pay for damages anyway. Pace testified that there was no argument, and the “[n]ext thing I know I heard a shot and saw Mr. Wine on the ground.” Pace testified that he, Wine, and White were the only persons present when Wine was shot. Pace identified White as the person who shot Wine and testified that after shooting Wine, White said nothing and drove off.
Proffered testimony of Wilkins showed that he had a conviction for possession of a controlled substance. Proffered testimony of Pace showed that he was on probation and had to abstain from consuming alcohol. Pace confirmed that the gathering at the studio was because Wine was about to leave and serve time in Arizona.
IfiAnita Ray testified, “I’ve known [White] to carry a .380 gun.” She further testified that the police seized one pistol but “I know that Ricky [White] carries a gun. He doesn’t leave the house without it.” She also testified, “I know he has a .380 and I knew he had it around the time of February 2nd.” Latonya Miller, who lived across the street from the recording studio, testified that she witnessed the shooting. She heard an argument or discussion outside and saw a white Cadillac, and two men. One of the men was facing away from her, and the other man one was facing her and holding up his hands. She then saw “fire” and one man fall and hit the ground. According to Miller, the other man got in the Cadillac and drove away. Miller recognized the Cadillac as White’s car and testified that she saw White in the parking lot on the night in question.
Testimony at trial revealed that a single .380 casing was retrieved from the scene and that a single .380 bullet killed Wine. Testimony of Dr. Stephen Erickson was proffered to show that at the time of his death, Wine had a trace amount of cocaine and an alcohol-blood level of .18 grams percent in his system.
White testified at the Rule 37 hearing that when he approached Wine’s vehicle, “some words were exchanged.” He testified further that he and “the passenger” had a prior conflict, and that gestures were used indicating that he (White) needed to get away from the car if he did not wish to be harmed. According to White, he overheard the passenger tell the driver to back up and hit his car. White testified that the driver did so, and he (White) jumped out of the way. According to White, at this point, the driver and passenger got out of the car and began to argue with him. White then testified that, “Mr. Wine produced a |figun and I grabbed him and we went to tussling and the gun went off and he got shot. And when he fell I got in my car and left.”
After reviewing the evidence offered, the circuit court denied White’s petition. White’s argument on appeal, in significant part, is based on his assertion that had he testified, the fact-finder’s decision would have been different. We first note that the circuit court did not find White’s testimony credible. It is well settled that this court defers to the trial court’s determination on matters of credibility in a Rule 37 appeal. See State v. Estrada, 2013 Ark. 89, 426 S.W.3d 405, 2013 WL 753061. Further, the circuit court concluded that, even if White had testified at trial, there was no reasonable probability that the outcome of the trial would have been different. A review of the record reveals that counsel’s decision to keep White from testifying was based on her concern that he would make a poor witness, that he presented as poorly educated, and that he would have been vulnerable under cross-examination. Counsel stated that, if White had testified, he would have been impeached with prior felonies, including one felony for firearm possession. The impeachment testimony would have bolstered the State’s case, given that the gun used in the shooting was never recovered. In addition, the testimony would have undercut White’s testimony that the victim was shot with his own gun after the two “went to tussling and the gun went off.”
Upon review of the entire evidence, we cannot say that we are left with a definite and firm conviction that the circuit court made a mistake when it found that White failed to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. We cannot say that the circuit court’s findings were clearly |7erroneous.
Affirmed.
BAKER and HART, JJ., dissent. | [
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DOUG MARTIN, Judge.
1 Appellant Nina Gutierrez appeals from the Lonoke County Circuit Court’s termination of her parental rights to her two sons, A.A. (DOB: 2-5-02) and A.G. (DOB: 1-31-06). Gutierrez argues that there was insufficient evidence to support the termination. We disagree and affirm.
On July 26, 2010, police executed a search warrant on Gutierrez’s home, and she and her boyfriend were arrested on charges of maintaining a drug premises, possession of marijuana with intent to deliver, and possession of drug paraphernalia. The children, A.A. and A.G., were taken into custody by the Arkansas Department of Human Services (DHS), and an order for emergency custody was entered July 28, 2010. On August 2, 2010, the trial court found probable cause that the emergency conditions necessitating the children’s removal | continued and that it was contrary to the children’s welfare to be returned to Gutierrez’s custody.
A.A. and A.G. were adjudicated dependent-neglected on September 7, 2010, based on the trial court’s finding that the children were in danger of severe child maltreatment due to marijuana being used and sold in Gutierrez’s home. The goal was reunification, and the trial court ordered DHS to develop a case plan and provide services to Gutierrez.
On November 29, 2010, a review order indicates that DHS had made reasonable efforts to provide the following services: visitation, counseling, medical care, foster care, PACE (Project for Adolescent and Child Evaluation) evaluation,' family social worker visits, parenting classes, random drug screens, transportation, referral for drug assessment, daycare, and comprehensive evaluation. The trial court found that Gutierrez had partially complied with the case plan but had not provided documentation of her attendance at Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings. Following a random drug screen on October 7, 2010, Gutierrez tested negative for all substances; however, on October 28, 2010, Gutierrez tested positive for methamphetamine.
Another review hearing was held on April 5, 2011, and the trial court found that, in addition to the services provided, DHS had made a referral for individual counseling, drug-and-alcohol assessment, and psychological evaluation. The trial court found that, while Gutierrez had attended visitation with her children, submitted to random drug screens, and maintained stable housing and employment, she had not completed a drug-and-alcohol assessment, attended individual counseling, undergone a psychological evaluation, or provided documentation from AA/NA meetings.
|aOn June 7, 2011, a review hearing was held, and the trial court found that Gutierrez had attended visitation, submitted to random drug screens, maintained stable housing and employment, undergone a psychological evaluation, and attended counseling and AA/NA meetings.
At a permanency planning hearing held on July-5, 2011, the trial court continued the goal of reunification. The trial court found that, although DHS had made a referral for a drug-and-alcohol assessment, an appointment date and time had not been received. The trial court also noted that .DHS had a difficult time administering random drug screens and thus ordered Gutierrez to submit to a hair-follicle drug test.
A review hearing was held on August 3, 2011, and the trial court found that Gutierrez had refused to submit to a hair-follicle drug test. Gutierrez was again ordered to submit to the test.
At the fifteen-month review hearing on September 6, 2011, the trial court found that Gutierrez had not complied with the case plan in that she still had not taken the hair-follicle drug test and only recently completed a drug-and-alcohol assessment. The trial court allowed Gutierrez another opportunity to take the hair-follicle drug test. Moreover, the trial court granted DHS’s request to give Gutierrez an additional thirty days to comply based on DHS’s report that the children were very attached to their mother.
On October 11, 2011, DHS and an attorney ad litem for the minor children filed a joint petition for termination of Gutierrez’s parental rights.
A second permanency planning hearing was held on October 14, 2011, and the trial court found that Gutierrez had not complied with the case plan, in that she tested positive for |4methamphetamine on a drug screen administered September 7, 2011, and, when Gutierrez finally submitted to the hair-follicle drug test on September 22, 2011, it was positive for methamphetamine. The trial court thus changed the goal of the case from reunification to adoption.
A termination hearing was held on January 31, 2012. Family service worker Lakisha Tatum was assigned to Gutierrez’s case in January 2011. Tatum conceded that DHS had gotten off to a bad start with Gutierrez’s drug-and-alcohol assessment. Gutierrez’s initial drug-and-alcohol assessment was scheduled to occur in December 2010, but it was canceled because Gutierrez had a court appearance. Tatum testified that she made a second referral for an assessment in March 2011 and that, although she later discovered that the assessment had been scheduled, Tatum did not receive notice. As a result, Gutierrez’s drug-and-alcohol assessment was not completed until August 24, 2011. With regard to the hair-follicle drug test, Tatum testified that Gutierrez refused the tests scheduled in July and August, citing concerns with the test about which she wanted to speak with her lawyer. When Gutierrez finally took the hair-follicle drug test on September 22, 2011, it was positive for methamphetamine. Tatum noted that, in January 2011 when she was assigned to the case, Gutierrez had also tested positive for methamphetamine. Tatum stated that, prior to the positive drug screen in September 2011, Gutierrez had unsupervised visitation on weekends and overnight visits with her children and that the case was proceeding toward a trial placement in Gutierrez’s home. Tatum testified that Gutierrez completed parenting classes, had a job working for her father, maintained stable housing, resolved her legal issues in that she had received probation, submitted to some random drug screens, and completed | ^individual counseling. Tatum testified that, although Gutierrez submitted to a psychological evaluation, she had not followed through with the recommendations. Tatum testified that Gutierrez had not continuously and regularly visited her children and had missed some visits. Tatum testified that there were times that Gutierrez appeared unannounced at the foster parents’ home on a different day than that on which she was scheduled to visit her children. According to Tatum, Gutierrez’s anger got in the way of her participating with the case plan, and Gutierrez did not show a genuine interest in complying until the very end when the goal was changed to adoption. While Tatum testified that it was her opinion that Gutierrez could care for her children at the time of the termination hearing, Tatum recommended termination of Gutierrez’s parental rights because the children needed permanency. Tatum testified that she did not believe there would be a problem finding adoptive parents for the children because they were “young, smart, intelligent, very lovable” but that, to her knowledge, no potential families had expressed interest in adopting them thus. far.
Wendy Founds, Gutierrez’s outpatient counselor at Little Rock Outreach, read a letter written by her supervisor Kelly Steed, a CADC (Certified Alcohol and Drug Counselor): “To whom it may concern: Ms. Nina Gutierrez entered into the ATR grant program on August 24, 2011. She was assessed for ADD on September 20, 2011. Ms. Gutierrez complied with the treatment plan to date. Client has had one relapse but has embraced recovery since that time. Ms. Gutierrez had participated fully in both her treatment and in her recovery community....” Founds testified that Gutierrez signed up for drug treatment on August 24, 2011, but that actual treatment was not available in Gutierrez’s area until September 20, 2011. According to Founds, the hair-follicle drug test was “kind of a reality opening-her-eyes-up Rtype situation” for Gutierrez. Founds testified that, while Gutierrez initially denied having a drug problem, in December 2011, Gutierrez said, ‘Who am I kidding that I don’t have a drug problem when my children that I love with all my heart are in custody and I just failed a hair follicle test?” Founds testified that Gutierrez had suffered a relapse during her treatment but that it was not uncommon among methamphetamine users. According to Founds, Gutierrez had missed two meetings, but they were excused absences. Founds stated that Gutierrez attended outpatient group meetings once a week but had been going twice a week for the previous three weeks. Founds testified that, since December, Gutierrez’s compliance level “has been absolutely 110 percent. I wish all of my clients were that way.” Founds testified that Gutierrez should continue outpatient treatment for the next thirty to forty-five days but should continue classes for two or three more years.
Gutierrez testified that she first used methamphetamine in November 2010, after her children had been taken into custody by DHS. Gutierrez further admitted using methamphetamine in December 2010, January 2011, August 2011, and three times in September 2011. Gutierrez testified that she was being honest about her drug usage, even though DHS could prove only two failed drug tests. Gutierrez stated that she should have taken the initial hair-follicle drug test because she was “clean” at that time. Gutierrez testified that she refused to take the test in July 2011 because she “hadn’t touched base” with her attorney about whether the test would show her previous marijuana use and refused the test in August 2012 because she was “dirty” by then. Gutierrez stated that she used 17methamphetamine because of pressure, stress, and bad decisions and because she did not address her original problem, which was marijuana. Gutierrez also claimed that she “screwed up” because she was “just dealing with the kids not being there.”
According to Gutierrez, she began attending group AA/NA meetings in August 2010 but they did not help in the beginning; however, she stated that “the more you go, the more it works.” Gutierrez testified that she was going to group meetings twice a week but that now she goes to six out of seven meetings per week. As a condition of her probation in January 2011, Gutierrez attended “ACTS” classes, a program for drug dependency, but “kind of dropped it” when she found Little Rock Outreach, which she thought was a better program and more convenient. Gutierrez testified that she contacted Little Rock Outreach after she failed the hair-follicle drug test and sought help when “I realized what was on the line and what I was jeopardizing.” Gutierrez testified that she did not seek help before because she did not realize she had a drug problem. Gutierrez testified that Little Rock Outreach had helped her and was “a good thing” and that she probably would have “been in better shape” had she received a drug-and-alcohol assessment before August 2011. Gutierrez testified that, regardless of the assessment, she was receiving help with her drug addiction before September 2011. Gutierrez testified that she was not motivated to attend meetings for her drug addiction until the goal of the case was changed to adoption. Gutierrez testified that she was now making better choices and that “my kids come first.”
At the conclusion of the hearing, the trial court terminated Gutierrez’s parental rights, noting that Gutierrez began taking methamphetamine after she had received increased visitation with her children and that Gutierrez admitted that she did not take the case seriously |suntil the case had progressed to termination of her parental rights. The judge ruled that “[t]he eleventh hour is too late.”
In the order terminating Gutierrez’s parental rights entered March 7, 2012, the trial court found that Gutierrez had failed to fully participate in and was not compliant with the case plan and did not abide by the court’s orders. The trial court granted the joint petition for termination on the ground
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 by the parent.
Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp.2011). The trial court specifically found that, “The conditions which caused the juveniles to come into care have not been remedied. Nina Gutierrez did not admit that she had a problem with drugs until the very end of the case, at the end of the 12 months. It was not until then that she was [sic] started the treatment and counseling that should have begun at the beginning of this case.” The trial court concluded that termination of parental rights was in the children’s best interest, considering the potential harm they faced if returned to Gutierrez’s custody. Specifically, the trial court found that Gutierrez was “not a fit and proper parent” and “does not have an appropriate lifestyle.” The trial court further found that the children were very likely to be adopted, based on the credible testimony of the caseworker. Gutierrez filed a timely notice of appeal.
Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wright v. Ark.Dep’t of Human Servs., 83 Ark.App. 1, 115 S.W.3d 332 (2003). Nevertheless, parental rights will not be enforced to the detriment or destruction of the health | fland well-being of the child. Id. We review cases involving the termination of parental rights de novo. Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 526, 385 S.W.3d 373. Pursuant to Arkansas Code Annotated section 9-27—341(b)(3), the facts warranting termination of parental rights must be proved by clear and convincing evidence. Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Wright, supra. 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. Anderson, supra. 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. Hopkins v. Ark. Dep’t of Human Servs., 79 Ark.App. 1, 83 S.W.3d 418 (2002). We have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Cobbs v. Ark. Dep’t of Human Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004).
The termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. Welch v. Ark. Dep’t of Human Servs., 2010 Ark.App. 798, 378 S.W.3d 290. The first step requires consideration of whether the termination of parental rights is in the child’s best interest. Ark.Code Ann. § 9-27-341(b)(3)(A). This includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to |inthe parent. Ark.Code Ann. § 9 — 27—341(b)(3)(A)(i), (ii). The second step requires proof of one or more of the statutory grounds for termination. Ark.Code Ann. § 9-27-341(b)(3)(B).
Gutierrez first challenges the grounds supporting the termination of her parental rights. Gutierrez contends that, while she admittedly “messed up” in the middle of the case, she had remedied the conditions that caused removal, “as much as anyone addicted to drugs can.” Gutierrez argues that her compliance overall was remarkable and that the only problem was her initial denial that she had a drug problem, “which was only an issue from about June 2011 to August of that same year.” Gutierrez argues that, in the six-month period prior to the termination hearing, she was in full compliance. Gutierrez maintains that “this is a family for which there is still hope” and that the trial court was speculating that she would fail in her recovery efforts. 'Gutierrez asserts that, in the face of all her other accomplishments, her decision to use methamphetamine again was simply a lapse in judgment. We cannot agree.
Considering that Gutierrez admitted using methamphetamine three times in September 2011, her drug problem was indeed still “an issue” and she was not in full compliance with the case plan for six months prior to the termination hearing in January 2012. In any event, section (a)(4)(A) provides that a parent’s resumption of contact or overtures toward participating in the case plan or following the orders of the court following the permanency planning hearing and preceding the termination of parental rights hearing is an insufficient reason to not terminate parental rights. Gutierrez had two perma nency planning hearings, the first on July 5, 2011, and the second on October 14, 2011. The termination hearing was held on.January 31, 2012, and Gutierrez admitted that she did not take the case seriously until after the goal had been changed to adoption following the second permanency planning hearing.
| n Nevertheless, the court shall rely upon the record of the parent’s compliance in the entire dependency-neglect case and evidence presented at the termination hearing in making its decision whether it is in the juvenile’s best interest to terminate parental rights. Ark.Code Ann. § 9-27-341(a)(4)(B). The evidence before the trial court was that Gutierrez’s children came into DHS custody due to her arrest for drug-related offenses. Gutierrez’s drug problem began with marijuana and, after her children had been removed from her custody for several months, Gutierrez chose to use methamphetamine, which only exacerbated her existing drug problem. DHS did not arrange for Gutierrez’s drug assessment until August 2011, but Gutierrez admits in her brief that she resisted DHS’s prior efforts to complete the assessment and does not argue on appeal that DHS failed to provide appropriate services to address her drug addiction. In fact, Gutierrez testified that she had received help for her drug addiction. Although Gutierrez appeared to be getting her life in order by the time of the termination hearing, we cannot say that the trial court, in considering Gutierrez’s overall compliance with the case plan and court orders, clearly erred in finding sufficient grounds for termination of Gutierrez’s parental rights.
Next, Gutierrez argues that the trial court erred in its best-interest analysis. Our appellate courts have noted that, in considering the best interest of the child, there is no requirement 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 termination is in the best interest of the child. Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, 385 S.W.3d 285.
112Regarding adoptability, Gutierrez argues that the caseworker who testified that the children were adoptable was not an adoption specialist and that no potential family had expressed any interest in adopting the children. To the extent Gutierrez challenges Tatum’s qualifications to assess the likelihood that the children would be adopted, we note that this court has previously held that testimony from a caseworker or an adoption specialist that the children were adoptable is sufficient. Thompson v. Ark. Dep’t of Human Servs., 2012 Ark. App. 124, 2012 WL 386762. Tatum testified that, while no potential adoptive parents had been identified thus far, she saw no impediment to finding the two boys a home because they were both “young, smart, intelligent, very lovable.” The trial court properly considered this evidence in concluding that the children were “very likely to be adopted.”
With respect to potential harm, Gutierrez argues that her lifestyle had clearly changed since the children were removed from her custody. Gutierrez ■ notes that Tatum testified that Gutierrez was capable of caring for her children. According to Gutierrez, there were no other issues signaling any potential harm to her children, such as inadequate housing or income, poor parenting skills, inappropriate visits, or poor care of the children.
The circuit court is not required to affirmatively identify a potential harm or to find that actual harm would result if the child were returned to the parent; rather, the potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Anderson, su pra. Gutierrez began using methamphetamine after her children were taken into custody by DHS and continued abusing drugs for over twelve months during the course of the case plan. As noted above, Gutierrez admittedly did not take the dependency-neglect case and her drug addiction seriously until after the goal of the case was changed from reunification 11sto adoption. While it is true that Tatum testified that she believed Gutierrez was capable of caring for her children at the time of the termination hearing, Tatum also recommended to the court that Gutierrez’s parental rights be terminated because the children needed permanency. The trial court properly considered the potential harm to these children in light of this evidence.
Under these circumstances, we cannot say that the trial court clearly erred in its determination that it was in the children’s best interest to terminate Gutierrez’s parental rights.
Affirmed.
VAUGHT, C.J., and GLOVER, J., agree.
. The trial court also terminated the parental rights of the boys' father, but he is not a party to this appeal.
. Citing information obtained from the internet, Gutierrez alleges in her brief that methamphetamine can be detected in urine up to six days after use, while a hair-follicle drug test can measure methamphetamine usage up to ninety days. | [
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DOUG MARTIN, Judge.
| ,This is the third time this case has come before the Arkansas Court of Appeals. A Hot Spring County jury found appellant Timothy Wells guilty of attempting to commit first-degree murder and two counts of committing terroristic acts. Wells was sentenced as a habitual offender to forty-five years’ imprisonment for attempted first-degree murder and twenty-five years’ imprisonment on each count of committing a terroristic act. Wells also received a twelve-year enhancement on each conviction for the commission of a felony using a firearm. The trial court ordered that the sentences run consecutively, for a total of 131 years’ imprisonment. Wells makes several arguments on appeal: (1) the trial court erred in denying his motions for directed verdict; (2) the trial court erred in denying a motion to suppress his statement; (3) the trial court erred in admitting evidence of a subsequent murder pursuant to |2Ark. R. Evid. 404(b); (4) the trial court erred in admitting hearsay. We affirm Wells’s convictions.
Robin Halbert, the 911 Director for Hot Spring County, testified that he received a call regarding a shooting on Spruce Street in Malvern on February 12, 2010. A recording of the call was played for the jury, and the victim can be heard screaming that an unidentified black male shot at him when he opened the door of his residence.
Gustavo Cervantes Rodriguez testified that, on February 12, 2010, at approximately 3:00 a.m., there was a knock on the door of his trailer, where he, his wife, and their three children were sleeping. Not realizing the time and thinking he had overslept, Rodriguez opened the door about five or six inches. Rodriguez heard Wells say, “Hey, man.” Rodriguez then “saw fire coming out of the barrel” of a gun Wells had pointed at him. Rodriguez immediately slammed the door, and Wells fired two more shots into the trailer. Rodriguez testified that he did not get a good description of the person that shot at him because “[i]t all happened way too fast.” Rodriguez testified that he did not know of any reason why someone would attempt to kill him and insisted that he had done nothing to offend anyone.
At that point, the trial court noted that the prosecutor and defense counsel stipulated that three bullets and one shell casing were properly submitted to the crime lab in relation to the shooting of Rodriguez on February 12, 2010. The parties also stipulated that one bullet and one shell casing connected to a homicide that occurred in Hot Springs on February 13, 2010, were properly collected and transported to the crime lab for forensic evaluation. The | c.trial court then instructed the jury that evidence of other alleged crimes, wrongs, or acts was being offered as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident but that whether any of the alleged crimes, wrongs, or acts were committed was for the jury to determine.
Rebecca Mullin, a firearm and tool-mark analyst at the Arkansas State Crime Lab, testified that the shell casings from the shooting in Malvern and the homicide in Hot Springs had been loaded into and extracted from the same firearm. Mullin further testified that the bullets from both crime scenes had been fired through the barrel of the same firearm. Mullin also testified that she examined a gun found in connection with the Hot Springs murder but that the results were inconclusive as to whether the bullets and shell casing from the incident in Malvern had been fired from that particular gun. Mullin explained that inconclusive results meant that she could not confirm the weapon was used in Rodriguez’s case but could not eliminate that possibility.
Corporal Dan Ussery with the Malvern Police Department testified that he responded to the scene of the shooting on Spruce Street. He processed the scene and took photographs. He noted bullet holes in the front door of the Rodriguez residence. Ussery testified that the bullet holes and trajectory marks were consistent with a door having been opened and slammed. Ussery testified that an intact bullet was found in a back bedroom about three inches from the head of Rodriguez’s one-year-old child. Ussery testified to damage from bullets on the corner of a couch and on a piece of wood paneling inside the trailer.
14Sergeant Curtis Kyle with the Malvern Police Department testified that a shoe print was left in the snow at the corner of Rodriguez’s trailer. According to Kyle, the print was distinctive as to tread pattern and had four circles on the heel impression.
David Hughes, an inmate at the Grimes Unit prison in Newport, testified with respect to Wells: “I been knowing him all my life.” Hughes testified that his birthday was February 10, and that, on the day following his birthday in 2010, Wells bought him a shirt and a pair of Nike “Shox” athletic shoes at Hibbett Sports in Malvern. Wells had bought some clothing for himself as well, including a pair of Nike shoes that were “a little different” from Hughes’s. Hughes and Wells went to a club that Friday night, and Wells left his new shoes in Hughes’s room. Hughes testified that the shoes he later wore to a police interview belonged to Wells, and Hughes explained that he and Wells often wore each other’s clothes and shoes.
Corporal Sonny Hall with the Malvern Police Department testified that Hughes was not a suspect in the attempted murder in Malvern but that the police questioned him with regard to a homicide in Hot Springs. Hall testified that Hughes came to a police interview wearing a pair of Nike shoes. Hall asked Hughes about the shoes and was told that they belonged to Wells. Hall testified that Hughes told him that, since Wells was incarcerated, he decided to wear Wells’s shoes because Wells did not need them any longer.
Corporal Brian Johnson with the Mal-vern Police Department testified that the shoes worn by Hughes appeared to match the shoe print found in the snow near Rodriguez’s trailer. Johnson conceded that his experience in comparing shoe prints was from his training with CID (Criminal Investigation Division).
| ^Shannon Shepherd, senior special agent with the Arkansas State Police, testified that he interviewed Wells on February 17, 2010. Shepherd stated that, prior to questioning, he advised Wells of his Miranda rights, that Wells wrote his initials beside each right, and that Wells signed the bottom of the rights form. Shepherd testified that he and Sergeant Davis then conducted an interview with Wells. Shepherd testified that, after Davis typed Wells’s statement, Wells read the statement, initialed each paragraph, and signed at the bottom. Shepherd then read the document containing Wells’s confession:
On 2-17-10 at approximately 2030 hours I, Sgt. Davis, and Sr. Special Agent Shannon Shepherd (ASP) interviewed Timothy Allen Wells (DOB 10-13-86). I advised Mr. Wells of his Miranda Rights using the Hot Springs Police Department’s Standard Rights Form. Mr. Wells advised that he understood both verbally and in writing. The following was his statement:
Man, I lost my mind the other day in Hot Springs. I blanked out. I’m bipolar and sometimes I flip out and go in a rage. I remember going in that building and a man and lady started screaming at me. My bi-polar acted up and I just shot. Any body could have been hurt that day in Hot Springs. I was ready to go in [sic] a rampage. Jason said that he couldn’t believe the way I was acting. I remember going to the Liquor store to cash the check. I was OK there. I remember going to Hot Springs and parking the car. I remember getting out and running into the little building. Jason was yelling at me and I told him to shut the fuck up and I just kept going. In the store, these Arabian. or Indian people were yelling at me and I just shot. They were inside the building. That day anyone could have got hurt. I was ready to kill somebody or kill myself. [Redacted] I didn’t know the lady in Hot Springs had died. I threw the gun out the passenger’s side window between Mal-vern and Hot Springs. It was between the Reynolds plant and before the Rainbow Mart. As far as the Mexican dude, I did that deal. I lost my mind. I didn’t even know that dude. I woke up the next day and I was like, what did I do. A judge just won’t understand. It was cold that day and I was walking and I got cold. I walked up to the door, knocked on it, the Mexican dude opened the door, and I shot. I shot for no reason, because I was on that rampage. I don’t remember how many times I shot. I’m glad they stopped me, I need some help.
| (¡Sergeant Mark Davis with the Hot Springs Police Department testified that he was investigating the murder of Ms. Patel in Hot Springs and that he went to Malvern to interview Wells because Spe cial Agent Shepherd and the.Malvern Police Department had developed Wells as a suspect in the Hot Springs homicide. Davis testified that, because Shepherd had established a rapport with Wells, Shepherd questioned Wells while Davis took handwritten notes. Davis testified that, following the interview, Wells reviewed the notes, and Davis immediately typed the notes on a computer at the jail. Wells read the typed document, initialed each paragraph, and signed at the bottom.
The State rested its case, and Wells moved for a directed verdict on all three counts. The trial court denied the motions, and the jury returned with guilty verdicts. In the sentencing phase, Patricia Taylor, Wells’s mother, testified that Wells was only twenty-four years old and that he was “a good kid” but had been hanging out with older guys. Taylor testified that Wells had a history of mental illness, was diagnosed with bipolar disorder, suffered depression, and was at times suicidal. Taylor stated that, beginning' in ninth grade, Wells “self medicate[d]” with alcohol, Xanax, and cocaine.
Denial of Directed-Verdict Motions
Wells argues that the trial court erred in denying his directed-verdict motions. A motion for a directed verdict is a challenge to the suffíciéncy of the evidence. Arnett v. State, 358 Ark. 165, 122 S.W.3d 484 (2003). The test for such motions is whether the verdict is 17supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. Moreover, we have held that the credibility of witnesses is a matter for the jury’s consideration. Id.
Arkansas Code Annotated section 5 — 10—102(a)(2) (Repl.2006) provides that a person commits first-degree murder if, with the purpose of causing the death of another person, the person causes the death of another person. A person commits criminal attempt if the person purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause a particular result. Ark.Code Ann. § 5-3-201(b) (Repl.2006). A person acts purposely with respect to his conduct or a result of his conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result. Ark.Code Ann. § 5-2-202(1) (Repl.2006).
Wells argues that he did not intend to shoot Rodriguez because he did not know Rodriguez personally; rather, he simply shot at anyone who opened the door of the trailer. A criminal defendant’s intent or state of mind is seldom apparent. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). One’s intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances. Id. Because intent cannot be proved by direct evidence, the fact-finder is allowed to draw upon common knowledge and experience to infer it from the circumstances. Jones v. State, 2009 Ark. App. 135, 2009 WL 464966. Due to the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends |sthe natural and probable consequences of his acts. Id. Wells knocked on Rodriguez’s door and fired a gun at Rodriguez when he opened the door. The jury could reasonably infer from these facts that Wells purposely engaged in conduct that constituted a substantial step in a course of conduct known to cause death to another person, regardless of that person’s identity. We hold that substantial evidence supports Wells’s conviction for attempted first-degree murder.
“[A] person commits a terroristic act if, while not in the commission of a lawful act, the person shoots at an oecupia-ble structure with the purpose to cause injury to a person or damage to property.” Ark.Code Ann. § 5-13-310(a)(2) (Supp. 2009)
Wells contends that he did not shoot at an occupiable structure; rather, he shot at Rodriguez. The evidence showed that, after initially shooting at Rodriguez, Wells fired his weapon two more times as Rodriguez was in the process of shutting his door. The natural and probable consequences of Wells’s action in continuing to shoot as the door was closing resulted in the bullets striking Rodriguez’s trailer, even though Wells aimed at Rodriguez with the purpose of causing personal injury. Accordingly, we hold that substantial evidence supports Wells’s convictions for committing a terroristic act.
Denial of Motion to Suppress Custodial Statement
Wells argues that the trial court erred in not suppressing his incriminating statement to Shepherd and Davis. Statements arising from custodial interrogation are presumed to be involuntary. Britt v. State, 83 Ark.App. 117, 118 S.W.3d 140 (2003). The burden is thus on the State to prove that a defendant knowingly and intelligently waived his privilege against self-incrimination and his right to an attorney and that he voluntarily made the statement. Id. | aIn order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Relevant factors to consider in determining whether a confession was involuntary are the age, education, and intelligence of the accused; the lack of advice as to constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of mental or physical punishment. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). On appeal from the denial of a motion to suppress, we make an independent review based on the totality of the circumstances, but we defer to the trial court’s superior position to determine the issue of the credibility of witnesses who testify to the circumstances of a defendant’s custodial statement, and we will not reverse the trial court’s findings of historical fact unless they are found to be clearly erroneous. Britt, supra.
At the suppression hearing, Shepherd testified that he interviewed Wells twice in connection with a homicide in Malvern. After these interviews, Shepherd became aware of a similar homicide that took place in Hot Springs on the day prior to the homicide in Malvern. Shepherd then interviewed Wells for a third time with Sergeant Davis present. Shepherd explained that the interview was not videotaped because the Hot Spring County jail did not have any recording equipment available. Shepherd testified that Wells did not appear to be under the influence of any intoxicating substance at the time he gave the Imstatement and did not appear to be “operating under any kind of emotional disturbance.” According to Shepherd, Wells cried and told him about the homicide in Hot Springs. Shepherd asked Wells if there was anything else he wanted to “clear up,” and Wells told him about shooting at a Hispanic male in Malvern, who was later identified as Rodriguez.
Davis testified that Shepherd contacted him because a homicide in Malvern was similar to one that Davis was investigating in Hot Springs. Davis said that, prior to Wells’s third interview with police, he advised Wells of his Miranda rights. Davis testified that he read each right to Wells, and Wells read along with Davis. Davis asked whether Wells understood each right, and Wells indicated that he did by placing his initials beside each right. Wells then signed the Miranda-ñghts form. Davis testified that, following Wells’s confession, Davis allowed Wells to review the notes made during the interview, and Wells said, “that’s great.” Davis then typed the confession. After Davis corrected “a grammatical error” at Wells’s request, Wells initialed and signed the typed statement. Davis testified that he believed that Wells’s confession was completely voluntary.
Following the suppression hearing, the trial court found that Wells’s statement was “knowing, voluntary, intelligent, un-coerced,” and thus denied Wells’s motion to suppress the statement.
On appeal, instead of making an argument, Wells simply recites facts that he seems to suggest are relevant factors in determining whether his custodial statement was voluntary. | nWells points out that Shepherd interviewed him three times; Shepherd was a trained interviewer; Wells was emotional and crying during the interview; the interview at which Wells confessed was not taped; and Davis “completed a handwritten statement from making notes” that was signed by Wells.
To the extent Wells’s argument is preserved, Wells was twenty-four years old at the time of his confession. Even at such a young age, Wells was no stranger to the criminal-justice system, in that he had five prior felony convictions. Both Shepherd and Davis testified that they advised Wells of his Miranda rights by reading each one to him and that Wells placed his initials beside each right, indicating that he understood. Although Shepherd testified that he interviewed Wells a total of three times, the first two interviews pertained to a homicide in Malvern. Shepherd interviewed Wells only once in connection with the homicide in Hot Springs, at which time Wells gave the statement at issue, and Shepherd described the third interview as “relatively short.” Wells reviewed Davis’s handwritten notes, and after Davis had typed the statement, Wells was given yet another opportunity to read his statement. Wells was intelligent enough to recognize a purported grammatical error and, after the correction, Wells placed his initials beside each paragraph demonstrating his approval of the contents. These factors indicate that Wells’s statement was voluntary. Finally, Wells cites no authority requiring video- or audio-taped confessions. See United States v. Williams, 429 F.3d 767 (8th |12Cir.20Q5) (declining to fashion rule mandating use of tape-recording equipment during custodial interrogations). Considering the totality of the circumstances, we hold that the trial court did not clearly err in denying Wells’s motion to suppress his custodial statement.
Admission of Rule WMb) Evidence
A hearing was held on February 16, 2011, to address the State’s motion to admit evidence regarding the homicide in Hot Springs pursuant to Ark. R. Evid. 404(b). Arkansas Rule of Evidence 404(b) (2012), provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The State argued that evidence of the homicide was admissible as evidence of other crimes, wrongs, or acts because the shell casing and bullet at the homicide matched those found at the scene of the attempted murder of Rodriguez. Also, the State argued that the evidence was relevant in connection with other facts in the chain of evidence. Wells objected, but at the conclusion of the arguments, the judge ruled that the evidence “fits almost precisely within 404(b)” because evidence of the Hot Springs homicide showed design, intent, identity, and absence of mistake or accident in the attempted murder of Rodriguez. In ruling the evidence admissible, the judge found it to be “absolutely direct and independently relevant evidence.”
In analyzing the admission of evidence under Rule 404(b), our supreme court has stated that such evidence is not admissible simply to show a prior bad act. Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005). To be admissible, the evidence must be independently | ^relevant, which means it must have a tendency to make the existence of a fact of consequence to the determination of the case more or less probable. Id. Our supreme court has held that evidence is indisputably relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Id. Evidence admitted pursuant to Rule 404(b) must prove to not be too separated in time, making the evidence unduly remote. Smith v. State, 2010 Ark. 75, 364 S.W.3d 443. The trial judge 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 case. Id. Our supreme court has held that evidence may be relevant in connection with other facts to form a link in the chain of evidence necessary to support a party’s contention. Id. Furthermore, testimony can be relevant if it provides the necessary context for other evidence. Id. It is well settled that the admission or rejection of evidence is left to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Davis, supra.
Wells argues that the trial court erred in admitting evidence of the Hot Springs homicide. In the argument section of his brief on appeal, defense counsel cites the standard of review and Ark. R. Evid. 403 but merely cut and pasted his oral argument from the pretrial hearing:
Appellant argued that the part where he talks about the shooting in Mot Springs should not be admissible under 404b due to the fact that he’s not been convicted of that crime and that it’s happened after this crime and it’s too prejudicial because once the jury hears that a murder has been committed somewhere else and they link him up to the murder, they’re not really going to pay any attention to any of the rest of [the] evidence here because it’s going to put nothing, nothing — puts fear in a jury or sticks in their mind as much as a murder will and that makes it too prejudicial for it to come in on the case where this is just a shooting. It’s not a murder here and they will have a tendency to just where well, if you murder somebody over there and we link that 1Mup to here, they will automatically go the way-or he’s guilty over here. That washed all the analysis or any judging the credibility of the evidence they present here, in the jury’s minds is going to completely shut down on him. That will prevent my client from having a fair trial and a fair determination of the issues in this trial, violate his due process rights, and Your Honor, just to be frank about it, it’s just plain unfair. They, have evidence here that they can put on that will carry their case if the jury believes it, it will just be unfair to let them put in a murder on my client in this ease over here with no murder to let them do that. That will violate his constitutional rights. They haven’t specified which one is admissible which one they’re trying to show motive, intent, plan, absence of mistake or accident. They don’t specify any one of them, they just want it to go in under something. So that’s not fair because they have enough evidence here, if the jury believes it....
Admission of evidence about the Hot Springs homicide was unquestionably prejudicial to Wells. Although Wells argued that this evidence was “too prejudicial,” which is essentially a Rule 403 argument, the argument is not preserved for review. To preserve a point for appellate review, a party must obtain a ruling from the circuit court. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. The burden of obtaining a ruling on an objection or motion is upon the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Id. Because Wells failed to obtain a ruling on the Rule 403 argument, we will not address it.
As for Wells’s argument that the trial court erred in admitting evidence of the Hot Springs homicide because the homicide did not occur prior to the attempted murder of Rodriguez, we note that the trial court remarked, “Makes no difference.” We agree with the trial court’s ruling. This court has recognized that Rule 404(b) also applies to evidence of subsequent bad acts by an appellant. Fitting v. State, 94 Ark.App. 283,-229 S.W.3d 568 (2006). The trial court did not abuse its discretion in admitting evidence of a homicide that occurred approximately fifteen hours after the attempted murder of Rodriguez.
We will not consider any further arguments that can be extracted from defense counsel’s statements at the pretrial hearing. We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Villagran v. State, 2011 Ark. App. 769, 2011 WL 6189475.
Before we move to Wells’s next argument, we note that Wells requested a limiting instruction with regard to the Rule 404(b) evidence at the pretrial hearing, and the trial court gave the following instruction prior to Muhin’s and during Shepherd’s trial testimony:
[E]vidence of other alleged crimes, wrongs, or acts of a Defendant may not be considered by you to prove the character of a Defendant in order to show that he acted in conformity therewith. This evidence is not to be considered to establish a particular trait of character that he may have, nor is it to be considered to show that he acted similarly or accordingly on the day of the incident. This evidence is merely offered as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. Whether any other alleged crimes, wrongs, [or] acts have been committed, is for you to determine.
For the reasons set forth above, and given this limiting instruction, we cannot say that the trial court abused its discretion in admitting evidence of the homicide in Hot Springs pursuant to Rule 404(b).
Hearsay Objection
Finally, Wells argues that the trial court erred in overruling his objection to hearsay when Ussery testified as to what Rodriguez had told him. Hearsay is a statement, other than the one made by the declarant while testifying at trial, offered in evidence to prove the truth |1fiof the matter asserted. Ark. R. Evid. 801(c) (20Í2). A trial court’s ruling on the admissibility of evidence is entitled to great weight and will not be reversed absent an abuse of discretion. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003).
At trial, Ussery testified that the bullet holes or trajectory marks were consistent with Rodriguez’s statement that he shut the door as Wells began shooting. The trial court overruled the objection and remarked that the testimony was “just formulated opinion.” We agree. A witness not testifying as an expert may provide testimony in the form of opinions and inferences if those opinions and inferences are rationally based on the perception of that witness and are- helpful to a clear understanding of the witness’s testimony or a determination of a fact in issue. Ark. R. Evid. 701 (2012). Ussery was merely offering his opinion that the evidence at the scene was consistent with the victim’s account of how Wells fired the gun at him and then into the door as it was being shut. We cannot say that the trial court abused its discretion in admitting Usser/s testimony. In any event, Ussery’s testimony was merely cumulative to Rodriguez’s testimony describing the actions he took upon being shot at by Wells. Goss v. State, 2011 Ark. App. 304, 2011 WL 1571462 (holding that, even if hearsay evidence is erroneously admitted, reversal is not required if the hearsay evidence is cumulative to other evidence admitted without objection).
Affirmed.
VAUGHT, C.J., and GLOVER, J„ agree.
. Wells v. State, 2012 Ark. App. 348, 2012 WL 1719184 (remanding for rebriefing to include omitted directed-verdict motions): Wells v. State, 2012 Ark. App. 151, 2012 WL 474190 (remanding for rebriefing to cure deficiencies and include interpreter’s transcript of 911 call).
. The record indicates that the homicide in Hot Springs occurred at 6:30 p.m. on February 12, 2010, and not February 13, 2010.
. At a competency hearing prior to trial, the prosecutor and defense counsel advised the judge that Wells was evaluated by two psychiatrists, one at the behest of the State and the other for the defense. Both psychiatrists opined that Wells did not suffer any mental disease or defect and was competent to stand trial. The trial court made a specific finding in that regard.
. The trial court learned at the suppression hearing that Wells was a suspect in the murder of Mr. Northcutt in Malvern. At trial, however, the jury did not hear evidence regarding the Malvern homicide. Witnesses made no specific mention of it, and Wells’s reference to it in his custodial statement was redacted. The trial court instructed the jury that the redacted portion of Wells’s statement was not relevant to the current proceedings.
. Wells cites Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000), for the proposition that this court should consider certain factors in looking at the vulnerability of the defendant. We note that, in Bisbee, the standard of review provided that the reviewing court makes an independent determination based upon the totality of the circumstances, "with all doubts resolved in favor of individual rights and safeguards.” Bisbee, 341 Ark. at 511-12, 17 S.W.3d at 480. Bisbee, however, was specifically overruled by Grillot, supra, at which time our supreme court clarified the correct standard of review: "We make an independent determination based upon the totality of the circumstances.” Grillot, 353 Ark. at 310, 107 S.W.3d at 145.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).
. Arkansas Rule of Evidence 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. | [
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DONALD L. CORBIN, Justice.
|, Appellant, Nationwide Mutual Fire Insurance Company, appeals the order of the Crawford County Circuit Court granting summary judgment to Appellee, Citizens Bank & Trust Company, on Appellee’s complaint for wrongful denial of its claim as a named mortgagee and additional insured on a dwelling fire policy. Appellant contends that the circuit court erred as a matter of law because Appellant’s rescission of the fire policy due to the insureds’ fraud voided ab initio the policy. The Arkansas Court of Appeals certified this case to us as one involving an issue of first impression that is of significant public interest; jurisdiction is therefore properly in this court pursuant to Arkansas Supreme Court Rule 1—2(b)(1), (b)(4), and (d)(2) (2013). We find no error in the circuit court’s order granting summary judgment to Appellee, and we affirm.
This case was decided on cross-motions for summary judgment, and the parties stipulated jointly to the following facts. Danny Ludwick completed an application and ^supplemental application for insurance coverage from Appellant on a home located in Van Burén, Arkansas. Appellant relied on the information in the application and supplemental application, and issued a policy insuring the dwelling and its contents for the period May 6, 2009, through May 6, 2010. The policy in question named Appellee as the “First Mortgagee” and contained a standard mortgage clause. The dwelling was destroyed by fire on December 16, 2009, and Appellee had a valid mortgage on the dwelling at the time of the application and at the time of the fire.
The parties jointly stipulated further to the following facts. During Appellant’s in vestigation of the fire, Appellant learned of two previous fire losses sustained by Danny and Tracy Ludwiek that were not disclosed on their application and supplemental application for insurance. Appellant’s underwriting department determined that, according to Appellant’s underwriting guidelines, Appellant would not have issued the policy in question if the two undisclosed fire losses had been disclosed at the time the Ludwicks submitted their application. Based on the material misrepresentations in the application and supplemental application, Appellant voided the policy back to its inception and refunded the premiums paid by the Ludwicks.
The parties jointly stipulated still further to the following. Appellee submitted a timely claim to Appellant. Appellant denied Appellee’s claim, not on the basis of a policy exclusion, but on the basis that the policy was void back to its inception.
As noted, the parties filed cross-motions for summary judgment on the foregoing joint stipulation of facts. Appellant contended in its motion that its rescission of the policy voided | sthe policy ab initio and thereby extinguished not only the Lud-wicks’ interest but also Appellee’s interest as mortgagee. In support of its motion, Appellant offered the affidavit of Rodney Boles, who had conducted an investigation on behalf of Appellant of the Ludwicks’ claim regarding their fire loss on December 16, 2009. Boles averred that “[a] data base search was conducted for prior losses associated with the Ludwicks,” which revealed that “the Ludwicks made a fire claim with Farm Bureau on December 16, 2009.... [and] with Allstate on February 19, 2007.” Boles also averred that, pursuant to his requests from the Van Burén Rural Fire District No. 6, he learned that “[tjhree prior fire reports, in addition to the report on the current claim by the Ludwicks ... indicated fires occurred on February 18, 2007, February 16, 2008, April 21, 2009, and December 16, 2009.” Boles opined that, based on his investigation, he determined there had been a total of three prior undisclosed fire losses.
Also in support if its motion, Appellant offered the affidavit of Mason Green, an authorized underwriter for Appellant. Green averred that at the time of application, the Ludwicks had disclosed one prior fire loss to an “outside shop” only that occurred in 2007. Green further averred that Appellant relied on the accuracy of this information when it issued the policy, and that if all the prior fire losses had been disclosed, the policy would not have been issued.
The circuit court entered its order, without explanation, granting Appellee’s motion and denying Appellant’s motion. This appeal followed.
Summary judgment may only be granted when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548. Ordinarily, on a summary-judgment appeal, when determining if there are genuine issues of material fact in dispute, we would view the evidence in the light most favorable to the party resisting the motion, and resolve any doubts and inferences against the moving party. Id.; Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. However, when, as here, the parties agree on the facts, we simply determine whether the appellee was entitled to summary judgment as a matter of law. Hobbs, 2012 Ark. 293, 412 S.W.3d 844; Barton Land Servs., Inc. v. SEECO, Inc., 2013 Ark. 231, 428 S.W.3d 430. As to the issues of law presented, our review is de novo. Hobbs, 2012 Ark. 293, 412 S.W.3d 844.
For reversal, Appellant contends that the circuit court erred in granting summary judgment to Appellee because, when Appellant properly rescinded the policy, the policy was void ab initio; therefore, there was no policy in which Appellee had an interest. Stated another way, Appellant contends that, after proper rescission, the policy was void ab initio as if the policy never existed, and Appellee cannot rely on a provision in a policy that no longer exists. Citing Black’s Law Dictionary 1568 (7th ed.1999), Appellant relies on the following definition of “void ab initio:” “null from the beginning, as from the first moment when a contract is entered into.” If the policy is void and a nullity, contends Appellant, Appellee can have no interest in it.
The law is clear that Appellant had a common-law right to rescind its policy on the basis of the material misrepresentation or omission of prior fire losses. See Ferrell v. Columbia Mut. Cas. Ins. Co., 306 Ark. 533, 537, 816 S.W.2d 593, 595 (1991) (citing Old Colony Life Ins. Co. v. Fetzer, 176 Ark. 361, 3 S.W.2d 46 (1928) (“It is undisputed that at common law an insurance company could retroactively rescind coverage because of fraud or material misrepresentation.”)). Appellant emphasizes that rescission of a contract and cancellation of a contract are two distinct remedies based on different grounds. Appellant cites the following:
Rescission of a contract and cancellation of a contract are two distinct remedies, based on different grounds, 17 G.J. Couch, Couch Cyclopedia of Insurance Law, §§ 67:33, 67:54 (R.A. Anderson, ed., 2d rev. ed.1983). Cancellation takes effect only prospectively, while rescission voids the contract ab initio.
Ferrell, 306 Ark. at 537, 816 S.W.2d at 595.
Appellee does not dispute Appellant’s right to rescind the Ludwicks’ policy. Rather, Appellee responds that because Appellant wrongly denied Appellee’s claim (not the Ludwicks’ claim) for the policy proceeds, the circuit court properly granted summary judgment to Appellee. Ap-pellee’s response is premised on the parties’ clear and unambiguous stipulation that the mortgage clause in the policy is a standard mortgage clause. Appellee cites Arkansas case law holding that a standard mortgage clause serves as a separate contract between the mortgagee and the insurer, see, e.g., Farmers Home Mut. Fire Ins. Co. v. Bank of Pocahontas, 355 Ark. 19, 129 S.W.3d 832 (2003), and argues in response that Appellee’s separate contract with Appellant was not defeated by the rescission of Appellant’s contract with the Ludwicks. Appellee relies on this court’s previous observation:
Both this court and the court of appeals have held that, generally, a standard mortgage clause serves as a separate contract between the mortgagee and the insurer, as if the mortgagee had independently applied for insurance. Dalrymple v. Royal-Globe Ins. Co., 280 Ark. 514, 659 S.W.2d 938 (1983); Columbia Mut. Ins. Co. v. Home Mut. Fire Ins. Co., 74 Ark.App. 166, 47 S.W.3d 909 (2001). Thus, the rights of a named mortgagee in an insurance Impolicy are not affected by any act of the insured, including improper and negligent acts. Dalrymple, supra.
Farmers Home Mut. Fire Ins. Co., 355 Ark. at 24, 129 S.W.3d at 835 (emphasis added). Appellee cites us to an insurance treatise that recognizes the Arkansas rule as the general rule:
Under the standard or union mortgage clause, an independent or separate contract or undertaking exists between the mortgagee and the insurer, which cannot be defeated by improper or negligent acts of the mortgagor, whether done or permitted prior or subsequently to, or at the time of, the issuance of the policy.
The means of accomplishing this protection is some form of language that the insurance with respect to the mortgagee shall not be invalidated by the mortgagor’s acts or neglect. The words “any acts” as used in a standard mortgage clause do not refer merely to acts prohibited by the contract or to a failure to comply with the terms of the contract, but literally embrace any act of the mortgagor.
4 Couch on Insurance § 65:48 (3d ed.) (footnotes omitted).
We acknowledge Appellant’s argument in reply that rescission voids a policy regardless of whether the policy’s mortgage clause is a standard mortgage clause. Appellant’s position is that by its very terms, the mortgage clause relates only to denials of claims, cancellation, and nonre-newals. Appellant’s position, however, overlooks the effect of our law treating the mortgagee as having an independent contract unaffected by the acts of the insured.
We conclude that, under the foregoing Arkansas law, as stated in Farmers Home Mutual Fire Insurance Co., 355 Ark. at 24, 129 S.W.3d at 835, the standard mortgage clause serves as a separate contract between Appellant and Appellee “as if the [Appellee] had independently applied for insurance.” Because Arkansas law views Appellee’s contract as independent of the Ludwicks’ contract, we conclude that Appellant’s rescission of the Ludwicks’ policy based on the acts of the Ludwicks does not affect Appellee’s independent contract with Appellant.
|7We note that our conclusion today is consistent with the long-settled law of our neighboring state, Oklahoma. The Oklahoma Supreme Court has held that a “mortgagee’s contract was completely independent of the insured’s rights and would be valid even though the insurance policy was void ab initio.” Okla. State Union of Farmers’ Educ. & Co-op. Union of Am. v. Folsom, 325 P.2d 1053, 1056 (Okla.1958) (citing W. Assur. Co. v. Hughes, 179 Okla. 254, 66 P.2d 1056 (1936)).
Alternatively, Appellant argues that if Appellee is entitled to rely on the policy, then Appellee is bound by the terms and conditions of the policy, which, according to Appellant have not been satisfied here. Specifically, Appellant points to the policy language on “concealment or fraud.” Finally, Appellant argues alternatively and additionally that it did not “deny” the Ludwicks’ claim; therefore, the terms and conditions of the policy relating to denial of claims do not apply here.
Appellant’s first alternative argument fails for essentially the same reason its primary argument failed, which is that Appellant overlooks the independence of the two contracts. That is, Appellee’s right to recover the proceeds as mortgagee is not as an insured person under the Ludwicks’ policy, but as a person or mortgagee protected under the separate and independent contract. Appellant’s second alternative argument also fails for the same reason. Appellee’s contract of insurance with Appellant as mortgagee is independent of the Ludwicks’ contract with Appellant and is not affected by any acts of the Ludwicks. Therefore, Appellee’s right to the proceeds is not dependent upon satisfaction of the terms of the Ludwicks’ policy on denial of the Ludwicks’ claim.
Lin sum, the undisputed facts are that the policy at issue contained a standard mortgage clause, which according to Arkansas law, operates as an independent contract between an insurance company and a named mortgagee. Farmers Home Mut. Fire Ins. Co., 355 Ark. 19, 129 S.W.3d 832. That independent contract with the mortgagee cannot be defeated by any act of the insured. Id. Thus, even though an insurance company is entitled to common-law rescission of its insured’s policy based on the insured’s fraud or misrepresentation, those fraudulent acts and the rescission of the policy have no effect on the independent contract with the mortgagee. Accordingly, and because there is no dispute that Appellee made a timely claim for payment here, we conclude that the summary judgment in favor of Appel-lee is correct as a matter of law.
Affirmed. | [
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PER CURIAM.
I;Joe Louis Kelley, Jr., asserts that the Arkansas Department of Correction (“ADC”) has failed to comply with this court’s decision in Kelley v. Norris, 2012 Ark. 86, 2012 WL 664273. In Kelley, the ADC was ordered to modify its records to show that Kelley began serving his sentence imposed by Pulaski County Circuit Court, Fourth Division (terroristic act), and his sentence imposed by Pulaski County Circuit Court, Second Division (forgery) concurrently on the same date. This court further ordered that upon his return to the ADC from the United |2States Bureau of Prisons on a federal sentence, Kelley was to serve whatever remained of the sentence he would have served in the ADC had the ADC run his state sentences concurrently as required. The ADC asserts that Kelley “has served no time on his State sentences” and that time served is “dead time.” This specific argument was presented by the ADC in its petition for rehearing in Kelley and rejected by this court.
The ADC is ordered to comply with this court’s decision in Kelley. The ADC shall calculate the time Kelley has left to serve on his concurrent state sentences by subtracting from the total concurrent five-year term the amount of time Kelley has been confined by the State of Arkansas on the terroristic act and forgery convictions. The parties shall appear before this court at 9:00 a.m. on November 29, 2012, to confirm that the ADC has complied with this court’s order.
. In this present matter, Kelley filed a Petition For Writ of Mandamus or Alternative Relief For Enforcement of the Supreme Court’s Order. The ADC asserts that the relief sought is not available by way of a petition for writ of mandamus; however, this court need not reach that issue because Kelley asserts that the ADC has failed to comply with this court’s order and mandate issued in Kelley v. Norris, 2012 Ark. 86, 2012 WL 664273. A court has inherent power to enforce its orders. See Ark. Dep’t of Human Servs. v. Clark, 305 Ark. 561, 566, 810 S.W.2d 331, 334 (1991).
. We note that in Kelley v. Norris, 2012 Ark. 86, 2012 WL 664273, the ADC and its counsel made representations to this court that Kelley had served time in the ADC on the Second Division forgery sentence. | [
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CLIFF HOOFMAN, Justice.
| ¶ This case involves an original petition filed by Jeffrey Lee Haynes seeking readmission to the Arkansas Bar pursuant to Rule XIII(G) of the Arkansas Rules Governing Admission to the Bar after the Arkansas State Board of Law Examiners (Board) concluded that he was eligible for readmission. We grant the petition.
Haynes was licensed to practice law in Arkansas in September 1995 and continued a solo practice until early 1999, when he abandoned his law practice due to emotional and physical problems stemming from a car accident in 1998 that resulted in his wife’s death and in serious injuries to him. In September 1999, Haynes was arrested and charged with the Class C felony offenses of possession of methamphetamine and possession of drug paraphernalia. On August 4, 2000, Haynes entered a negotiated plea of nolo contendere to the charges and was sentenced to twelve months’ incarceration in a regional punishment facility and 108 months’ suspended imposition of sentence (SIS). The terms of his plea |2agreement further provided that Haynes agreed not to attempt to regain his law license within the period of his nine-year SIS. Haynes then voluntarily petitioned to surrender his license to practice law, and this court accepted the surrender on October 12, 2000.
On April 22, 2011, Haynes filed an application with the Board seeking readmission to the Bar of Arkansas. The Chair of the Board concluded that she was unable to determine whether Haynes was eligible for readmission, and Haynes requested an evi-dentiary hearing on the petition in order to establish a record for a vote of the entire Board.
At a hearing held before three members of the Board on January 21, 2012, Haynes admitted that he had pled nolo contendere to two felonies, which are serious crimes preventing readmission to the bar under Ark. Sup.Ct. P. Regulating Profl Conduct § 24(B)(2), unless the offenses are ones for which the culpable mental state is negligence or recklessness. Haynes claimed that his mental state at the time he committed the crimes at issue was that of recklessness because he was suffering from overwhelming grief and depression subsequent to his wife’s death that resulted in his drug use. He contended that he did not have the faculties to make a guided decision at that point in his life, nor did he have the capability to act knowingly or purposely. He further mentioned that part of the reason that he had entered into a plea agreement was that two of his children, who were present when the contraband was found, had been charged with possession in connection with the 1999 incident and that these charges were dropped pursuant to the plea bargain.
Subsequent to the surrender of his law license, Haynes testified that he had served his sentence at the regional punishment facility, had completed a drug-and-aleohol rehabilitation | sprogram at the facility, and had then moved to Texas, where he lived with his brother and had successfully completed the conditions of his suspended sentence. Haynes testified that he quit using illicit drugs even before he began serving his sentence and that he has remained sober since that time. He indicated that he has been working as a paralegal in Houston and that he wishes to regain his Arkansas law license so that he may also obtain a license in Texas. Haynes expressed great remorse for his previous actions and the effect that it had on his family. He mentioned numerous personal tragedies that had occurred to his family since his release from prison but testified that he had attended grief counseling with his daughter and has been able to assist his family during the hard times without turning to drugs. Haynes also provided several letters of recommendation in support of his application for readmission, all of which spoke to his dedication to his family, his willingness to assist others in need, his honesty, and his work ethic. The letters further stated that Haynes had been thoroughly rehabilitated, that he deserved a second chance, and that he would be an asset to the legal community.
Following the hearing, the Board, by a vote of seven to four, concluded that Haynes was eligible for readmission to the Bar of Arkansas. On July 25, 2012, the Board entered findings of fact and conclusions of law in support of its decision, finding that Haynes’s conduct related to his two felony convictions fell within the exception contained in Ark. Sup.Ct. P. Regulating Profl Conduct § 24(B)(2), because he acted negligently or recklessly in his commission of the offenses. The majority of the Board also found that Haynes had been rehabilitated and that he had shown by a preponderance of the evidence his present mental Rand emotional stability and good moral character. Haynes has now timely petitioned this court for readmission under Rule XIII of the Rules Governing Admission to the Bar, which states that, upon a recommendation of readmission by the Board, the matter shall be “referred to the Arkansas Supreme Court for disposition at its discretion.”
This court has the express authority to regulate the practice of law under amendment 28 to the Arkansas Constitution, and the purpose of this amendment is to protect the public and maintain the integrity of the courts and the honor of the profession. In re Madden, 2012 Ark. 279, 423 S.W.3d 39. We have also recognized our inherent power to discipline an attorney. Id. Once a lawyer has lost his or her license to practice law, whether through surrender or disbarment, there is a presumption against readmission, and the lawyer has the burden of proof at the readmission hearing. Id. The overriding considerations on the question of readmission are the public interest and the integrity of the bar and the courts, giving due consideration to the rehabilitation of the petitioner in regard to good moral character and mental and emotional stability. Id.
We review findings of fact by the State Board of Law Examiners under the clearly erroneous standard. Redden v. Ark. State Bd. of Law Exam’rs, 371 Ark. 584, 269 S.W.3d 359 (2007). A finding is clearly erroneous when, even though there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.
In his petition, Haynes argues that this court should agree with the Board’s finding that his conduct falls within the exception contained in Ark. Sup.Ct. P. Regulating Profl | ^Conduct § 24(B)(2) (2012). Section 24 provides as follows:
A. No attorney who has been disbarred or surrendered his or her law license in this State shall thereafter be readmitted to the Bar of Arkansas except upon application made to the State Board of Law Examiners in accordance with the Rules Governing Admission To The Bar, or any successor rules, and the approval of the Arkansas Supreme Court.
B. Provided, however, that application for readmission to the Bar of Arkansas shall not be allowed in any of the following circumstances:
(1) Less than five (5) years has elapsed since the effective date of the order of disbarment or surrender;
(2) The disbarment or surrender resulted from conviction of a Serious Crime in any jurisdiction other than commission of an offense for which the culpable mental state was that of negligence or recklessness; or
(3) Any of the grounds found to be the basis of a disbarment or any grounds presented in a voluntary surrender of law license are of the character and nature of conduct that reflects adversely on the individual’s honesty or trustworthiness, whether or not the conviction of any criminal offense occurred.
A “Serious Crime” is defined as “any felony or any lesser crime.... ” Ark. Sup.Ct. P. Regulating Profl Conduct § 2(J) (2012).
As Haynes contends, neither of the statutes under which he was charged, Ark. Code Ann. §§ 5-64-401 and 5-64-403(c)(l)(A)(i) (Repl.2005), provides a culpable mental state for the offenses. According to Ark.Code Ann. § 5-2-203(b) (Repl.2006), “[ejxcept as provided in § 5-2-204(b) and (c), if the statute defining an offense does not prescribe a culpable mental state a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.” 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 the attendant circumstances exist. Ark.Code Ann. § 5-2-202(2)(A) (Repl.2006). However, a person acts “recklessly” with respect to attendant circumstances or a result of his or her | (¡conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. Ark. Code Ann. § 5-2-202(3) (Repl.2006).
A majority of the Board agreed with Haynes that his culpable mental state at the time of the commission of the offenses was reckless and that he was therefore not prevented from being readmitted to the Bar under Ark. Sup.Ct. P. Regulating Profl Conduct § 24(B)(2). We agree.
The drug-and-paraphernalia-possession statutes under which Haynes was charged do not require a specific mental state, and thus, a showing of a purposeful, knowing, or reckless mental state is sufficient under Ark.Code Ann. § 5-2-203(b) to sustain a conviction. As the Board discussed at the hearing, any of these three mental states can apply to the offenses in this case, and the uncontradicted evidence presented by Haynes demonstrated that he entered his plea of nolo contendere on the basis of a reckless mental state during the commission of the crimes. As further evidence that the applicable mental state in this case was that of recklessness, the Board further noted that the plea agreement signed by Haynes stated that he would be allowed to attempt to regain his law license only after his nine-year SIS had expired, instead of the five-year limitation contained in the rules, and that this negotiated provision would not have been included and approved by the prosecutor and the trial court had all of the parties not understood that Haynes would in fact be eligible to reapply. After hearing all the evidence presented by Haynes in support of his petition for readmission, the Board found that Haynes’s conduct fell within the exception to Ark. Sup.Ct. P. Regulating Prof 117Conduct § 24(B)(2), and we cannot say that this finding was clearly erroneous.
We also agree with the Board’s conclusion that Haynes has been rehabilitated and that he has successfully established his present mental and emotional stability and good moral character by a preponderance of the evidence. Haynes testified that he quit using drugs before he began his period of incarceration and that he has maintained his sobriety since that time. He successfully completed his suspended sentence, and he has also remained gainfully employed in the legal profession for the past ten years. Thus, we find that Haynes’s petition to be readmitted to the Bar of Arkansas should be granted.
Petition granted.
DANIELSON, J., concurs.
HANNAH, C.J., dissents.
. This case is distinguishable from our decision in In Re Madden, supra, in which we denied the petition for readmission to the bar, because the felony offense in Madden, misprision of a felony, required an affirmative act of concealment and therefore did not fall within the exception to Ark. Sup.Ct. P. Regulating Prof'l Conduct § 24(B)(2) as it was not an offense for which the culpable mental state was that of negligence or recklessness. | [
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KENNETH S. HIXSON, Judge.
| Appellant Laura Barron-Gonzalez was convicted by a jury of first-degree forgery, a Class B felony, and was sentenced to thirteen years in prison. Arkansas Code Annotated section 5-37-201 (Supp.2011) provides, in relevant part:
(a) A person forges a written instrument if, with purpose to defraud, the person makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act.
(b) A person commits forgery in the first degree if he or she forges a written instrument that is:
(1) Money, a security, a postage or revenue stamp, or other instrument issued by a government^]
On appeal from her forgery conviction, Ms. Barron-Gonzalez argues that the trial court lacked jurisdiction to try her because the applicable statute of limitations had expired; that there was insufficient evidence to support the verdict; and that the trial court erred in allowing inadmissible hearsay. We affirm.
12Christy Franklin is the human-resources manager at Mission Plastics in Nashville, Arkansas. Ms. Franklin testified that the appellant was employed at Mission Plastics from July 2, 2008, until she was terminated on February 4, 2012. According to Ms. Franklin, for the entire time the appellant worked there she held herself out to be a woman named “Regina Guzman.”
Ms. Franklin testified that when the appellant applied for employment, the appellant presented a driver’s license and social security card bearing the name of Regina Guzman. The appellant’s photograph was on the Regina Guzman driver’s license. The appellant was also required to fill out a federal 1-9 form listing her residency status, as well as a federal W-4 form for tax purposes. On each of these documents the appellant signed her name as Regina Guzman and gave the social security number listed on the social security card she provided. During her employment, the appellant filled out vacation slips and received paychecks under the name of Regina Guzman. Over appellant’s hearsay objection, Ms. Franklin was permitted to testify that she was contacted at work by a person purporting to be Regina Guzman.
Officer Larry Marion of the Nashville Police Department investigated this case. Over appellant’s hearsay objection, Officer Larry Marion testified that the investiga tion began after he received a phone call from the real Regina Guzman complaining that someone had been using her name, social security number, and date of birth. Officer Larry Marion went to Mission Plastics to investigate a report of possible identity theft. Officer Marion told the supervisor that he wanted to see Regina Guzman. The supervisor brought a female to Officer Marion. Officer Larry Marion testified that he asked appellant her name and she said it was | ¿‘Regina Guzman.” The appellant spoke little English, so they went into a conference room and had a woman named Uve interpret for them. According to Officer Larry Marion, appellant subsequently acknowledged that her real name was Laura Barron, and that she was not Regina Guzman. This testimony was introduced over appellant’s objection that it was hearsay testimony through the interpreter.
Officer Larry Marion transported the appellant to the Howard County jail. Officer Amy Marion was also involved in the investigation. Over appellant’s hearsay objection, she testified that the investigation started because the real Regina Guzman filed a complaint. Officer Amy Marion testified that she spoke with the appellant at the police station later on January 19, 2012, and that Theresa Jones was the interpreter. Officer Amy Marion presented appellant with a Miranda waiver-of-rights form written in English and Spanish. The Miranda waiver-of-rights form was explained to the appellant by Theresa Jones. The Miranda form bears the initials “LBG” (Laura Barron-Gonzalez) written beside each question pertaining to the rights of the accused, indicating that appellant understood her rights. Officer Amy Marion stated that she signed the form and that she witnessed appellant sign the form as Laura Barron-Gonzalez. The interpreter also signed the form. Officer Amy Marion said that appellant identified herself on that form and in all other police records as Laura Barron-Gonzalez. According to Officer Amy Marion, after signing the waiver-of-rights form, Ms. Barron-Gonzalez requested an attorney and did not give a statement.
Although Ms. Barron-Gonzalez challenges the sufficiency of the evidence supporting her conviction as her second point on appeal, we determine challenges to the sufficiency of |4the evidence before addressing other points on appeal. See Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55. On appeal, we view the evidence in the light most favorable to the verdict. Clayton v. State, 2011 Ark. App. 692, 2011 WL 5563189. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. 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. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. McClard v. State, 2012 Ark. App. 573, 2012 WL 4832293. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide, and the jury’s determination will not be disturbed unless the jury reached its verdict using speculation and conjecture. Id. In a sufficiency-of-the-evidence query, we examine all of the evidence including evidence allegedly admitted erroneously. Jefferson v. State, 86 Ark.App. 325, 185 S.W.3d 114 (2004).
In challenging the sufficiency of the evidence supporting her first-degree forgery conviction, Ms. Barron-Gonzalez argues that there was no substantial evidence that (1) she acted with the intent to defraud, (2) a written instrument was forged, or (3) her acts were unauthorized. Appellant cites Johnson v. State, 236 Ark. 917, 370 S.W.2d 610 (1963), where the supreme court said that, if a person has permission to sign another’s name to the instrument in question, there can be no forgery. Ms. Barron-Gonzalez asserts that the State presented no person named Regina Guzman who claimed to be defrauded, and thus failed to prove that Regina Guzman did not authorize the acts. She claims that under these facts the Instate failed to prove any intent to defraud or any unauthorized acts. She further contends that none of the documents presented by the State fell under the definition of an instrument that is money, a security, or postage or revenue stamp, or other instrument issued by a government, which is a requirement for a first-degree forgery conviction.
Appellant’s argument that none of the documents were prohibited instruments for purposes of the first-degree-forgery provision is easily dispensed with because this particular challenge to the sufficiency of the evidence was not raised when she made her directed-verdict motion to the trial court. In order to preserve a challenge to the sufficiency of the evidence, the specific argument must have been raised below. See Baker v. State, 2010 Ark. App. 843, 2010 WL 5129959. Moreover, even had this argument been preserved it would be of no avail because a driver’s license, social security card, and the forms signed by Ms. Barron-Gonzalez in applying for the job are all instruments issued by the government.
Appellant has preserved her arguments that the State failed to prove that she had the intent to defraud or that her acts were unauthorized. We, however, conclude that those elements were supported by substantial evidence. A criminal defendant’s state of mind rarely can be proved by direct evidence and must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Because of the obvious difficulty in ascertaining a defendant’s intent, a presumption exists that a person intends the natural and probable consequences of her acts. Anderson v. State, 2009 Ark. App. 804, 372 S.W.3d 385. In Anderson, we held that the State was not required, in a prosecution for forgery based on the appellants’ possession and use of forged checks and a fake credit card, to | ^present the account owners’ testimony that they had not authorized the appellants to possess and use their checks and credit card.
In the present case, the evidence showed that Ms. Barron-Gonzalez applied for a job using another woman’s name and documents. Her photograph was imprinted on the Regina Guzman driver’s license. She signed the name Regina Guzman on the 1-9 and W-4 forms required for her application. She received payroll checks from Mission Plastics for more than three and a half years under the name and social security number of Regina Guzman. The human-resources manager, Ms. Franklin, testified that Mission Plastics never received any type of authorization or signed document stating that appellant could use the name Regina Guzman. In January 2012, the Nashville Police Department began its investigation after receiving information from a woman named Regina Guzman that someone was using her name and social security number. When confronted with this investigation appellant initially lied and said she was Regina Guzman, but she later admitted that she was Laura Barron, and she signed her name as Laura Barron-Gonzales on the Miranda waiver-of-rights form. Viewing these facts in the light most favorable to the State, we hold that a jury could reasonably conclude beyond speculation and conjecture that the appellant intended to defraud and was not authorized to use Regina Guzman’s name and personal information. Therefore, we hold that Ms. Barron-Gonzalez’s first-degree-forgery conviction was supported by substantial evidence.
We next address appellant’s argument that the trial court lacked jurisdiction to try her because the charges were brought outside of the time required by law. Although this |7argument was not raised below, an argument regarding the statute of limitations in a criminal case is jurisdictional and not subject to waiver. Scott v. State, 69 Ark.App. 121, 10 S.W.3d 476 (2000).
A prosecution for a Class B felony shall be commenced within three years of the commission of the offense. Ark.Code Ann. § 5 — 1—109(b)(2) (Supp. 2011). Subsection (e)(1) of this statute provides:
(e)(1) For the purposes of this section, an offense is committed either when:
(A) Every element occurs; or
(B) If a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time the course of conduct or the defendant’s complicity in the course of conduct is terminated.
In a criminal prosecution, the State must prove beyond a reasonable doubt that the statute of limitations has not expired. See Ark.Code Ann. § 5-l-lll(a)(4) (Repl. 2006). When a statute-of-limitations issue is reviewed on appeal, the appellate court views the evidence in the light most favorable to the State. Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006).
Ms. Barron-Gonzalez contends that the statute of limitations expired in this case because her alleged wrongful acts all occurred in July 2008 when she was applying for employment, and the criminal information was not filed until more than, three years later on January 25, 2012. She asserts that the 1-9 and W-4 forms were both signed on July 2, 2008, and that there was no evidence she possessed Regina Guzman’s driver’s license or social security card at any time beyond that date. Because no illegal acts were allegedly shown to have occurred within three years preceding the filing of the charges, Ms. Barron-Gonzalez submits that the trial court lacked jurisdiction and that her conviction must be reversed.
1 RViewing the evidence in the light most favorable to the State, we hold that prosecution against appellant was not barred by the statute of limitations. Arkansas Code Annotated section 5-1-109(c)(1) (Supp.2011) provides:
(c) If the period prescribed in subsection (b) of this section has expired, a prosecution may nevertheless be commenced for:
(1) Any offense involving either fraud or breach of a fiduciary obligation, within one (1) year after the offense is discovered or should reasonably have been discovered by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself or herself not a party to the offense[.]
In this case the offense involved fraud because, for the entire time the appellant worked for Mission Plastics, she misrepresented her identity as Regina Guzman. Appellant’s fraudulent conduct was consummated each time she received a paycheck under a false name. The forgery offense was not discovered until Officer Larry Marion received a phone call from the real Regina Guzman complaining that someone had been using her name and social security number. After receiving the call, Officer Larry Marion confronted appellant with the allegations on January 19, 2012, and the charges were filed six days later. Appellant’s fraud suspended the statute of limitations until the offense was discovered and the police began their investigation in January 2012. The charges were timely filed within one year in compliance with the provisions of subsection (c)(1).
Appellant’s remaining argument is that the trial court erred in pérmitting hearsay testimony. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). Under Rule 802, hearsay is inadmissible unless an exception applies.
|nIn the present case, Ms. Barron-Gonzalez contends that inadmissible hearsay evidence presented in this case was the only testimony showing that she was not Regina Guzman. Appellant complains that the only evidence indicating that she was Laura Barron-Gonzalez was through Detective Larry Marion’s hearsay testimony regarding what a translator named Uve had said to him. Ms. Barron-Gonzalez also assigns error to the trial court’s decision permitting Officer Larry Marion to repeat hearsay from someone purporting to be Regina Guzman, who had allegedly identified herself and told the officer that someone was using her identity and social security number. Appellant complains that neither Uve nor Regina Guzman testified at trial, and thus she was unable to cross-examine either of them about their prejudicial statements.
The decision to admit or. exclude evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). An abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Id. Moreover, an appellate court will not reverse a- trial court’s evi-dentiary ruling absent a showing of prejudice. Harris v. State, 366 Ark. 190, 234 S.W.3d 273 (2006).
We hold that the trial court did not abuse its discretion in admitting the contested testimony. With regard to the translator’s statement to the officer wherein appellant identified herself as Laura Barron-Gonzalez, it has generally been held that an interpreter is viewed as an agent of the defendant; thus, the translation is attributable to the defendant as her own | inadmission and is properly characterized not as hearsay, but as an admission by a party opponent. See United States v. Sanchez-Godinez, 444 F.3d 957 (8th Cir.2006);. Ark. R. Evid. 801(d)(2). Moreover, even had any error occurred in admitting the statement of the translator regarding appellant’s identity, it did not prejudice appellant because she identified herself as Laura Barron-Gonzalez when she signed her name on the Miranda waiver-of-rights form. With regard to Officer Larry Marion’s testimony about his telephone contact with the real Regina Guzman, there was no abuse of discretion in permitting this testimony because an out-of-court statement is not hearsay if it is offered to show the basis of an officer’s actions. See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). Here, Officer Larry Marion’s testimony was admissible to explain what prompted his investigation of the appellant and not for the truth of the matter asserted.
Affirmed.
GLADWIN, C.J., and WYNNE, J„ agree. | [
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JOSEPHINE LINKER HART, Justice.
| ¶ Alfonso Villanueva entered a conditional plea of guilty to the charge of driving without a driver’s license for which he was sentenced to two days’ home confinement and required to pay a $60 fine and court costs. Pursuant to Arkansas Rule of Criminal Procedure 24.3, Villanueva reserved the right to appeal the circuit court’s denial of his motion to suppress evidence found in what he claims was an illegal stop. For reversal of the circuit court’s decision, Villanueva argues that (1) the stop was unlawful because no Arkansas law makes it illegal to operate a vehicle with a cracked windshield and (2) the traffic stop was based entirely on “profiling” and thus violated Arkansas statutory and constitutional law. We affirm.
We assumed jurisdiction from the court of appeals because this case involves issues of first impression, clarification of the law, and construction of Acts of the General Assembly. Ark. Sup.Ct. R. 1-2(b)(Z), (5), & (6) (2012). When we review a circuit court’s ^denial of a motion to suppress evidence, we conduct an independent inquiry based on the totality of the circumstances, evaluating findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause. Hinojosa v. State, 2009 Ark. 301, 319 S.W.3d 258. We give due weight to inferences drawn by the circuit court, and we will reverse the circuit court only if the ruling is clearly against the preponderance of the evidence. Id. We also defer to the trial court’s superior position to judge the credibility of witnesses. Id.
In Villanueva’s suppression motion, he asserted that law enforcement lacked probable cause to stop his vehicle. He also challenged Arkansas Code Annotated section 27-32-101 (Repl.2008) as being unconstitutional but abandoned the constitutional issue prior to the circuit court considering the issue.
At Villanueva’s suppression hearing, Officer Jacob Baker Whorton, a fourteen-year veteran of the Springdale Police Department, testified that while on duty during the day shift of October 4, 2011, he noticed a car, driven by Villanueva, with a windshield crack that went all the way across the windshield. He stopped Villanueva for operating an unsafe motor vehicle. Officer Whorton stated that he believed that driving with a cracked windshield violated Arkansas Code Annotated section 27-32-101, although, on the witness stand, he admitted that he was not sure if the statute had the word “windshield” in it. Officer Whorton testified that he thought the cracked windshield was unsafe because it compromised the structural integrity of the vehicle and partially obscured the driver’s view.
Villanueva was unable to produce a driver’s license, but he did produce a Mexican | ^identification card. Dispatch confirmed that there was no driver’s license listed in Villanueva’s name. Officer Whorton cited Villanueva for driving without a license and had the vehicle towed in accordance with his department’s policies. He admitted that he did not cite Villanueva for driving with a cracked windshield. Villa-nueva concluded his case by submitting a picture of the cracked windshield into evidence.
After the hearing, the trial court found that there was “absolutely no evidence” that Villanueva’s stop was pretextual. It also found that there was no evidence that the stop was the result of “profiling” based on race or national origin. After the trial court announced its ruling from the bench, Villanueva entered his conditional plea. He timely filed a notice of appeal.
Villanueva first argues that the stop was unlawful because no Arkansas law makes it illegal to operate a vehicle with a cracked windshield. He urges this court to hold that a traffic stop based solely on a cracked windshield is, as a matter of law, an illegal stop. Villanueva contends that windshields are not mentioned in section 27-32-101 and suggests that the statute only relates to mechanical defects. He seeks to bolster this argument by examining other statutes that mention windshields, Arkansas Code Annotated section 27-37-301 (Repl.2008), which requires that Arkansas motor vehicles be equipped with safety glass, and Arkansas Code Annotated section 27-37-302 (Repl.2008), which proscribes driving a vehicle with nontransparent material on the glass that obstructs the operator’s view, asserting that these statutes are similarly not helpful to the State. Further, he urges us to find persuasive an Alabama case, J.D.I. v. State, 77 So.3d 610 (Ala.Crim.App.2011), where Rthe Alabama Court of Criminal Appeals declared that a' traffic stop of a juvenile who was operating a motor vehicle with a cracked windshield was improper because it involved a mistaken interpretation of Alabama law. We find this argument unpersuasive.
Villanueva’s assertion that, as a matter of law, a traffic stop initiated solely because of a cracked windshield should be declared illegal was not raised to the trial court. We will not consider arguments for the first time on appeal that were not advanced below as part of the motion to suppress. Decay v. State, 2009 Ark. 566, 352 S.W.3d 319. Villanueva has preserved his argument that driving with a cracked windshield did hot violate section 27-32-101 because a cracked windshield was not a “mechanical defect,” which we agree with, as far as it goes. Villanueva, however, fails to note that section 27-32-101(a)(1) also requires a vehicle’s “equipment” to be “in good working order.” A windshield, while not “mechanical,” is nonetheless “equipment.” As we noted in Ragland v. Dumas, 292 Ark. 515, 520, 732 S.W.2d 118, 120 (1987), equipment is “an exceedingly elastic term, the meaning of which depends on context.” Although hitherto not addressed in Arkansas, other jurisdictions routinely refer to operating a vehicle with a cracked windshield as an “equipment violations” in the context of traffic stops predicated on perceived violation of the state’s general motor vehicle safety statute. See Vaughan v. State, 279 Ga.App. 485, 631 S.E.2d 497 (2006); State v. Jones, 711 N.W.2d 732 (Iowa Ct.App.2006); State v. Kinser, 141 Idaho 557, 112 P.3d 845 (Ct.App.2005); State v. Miller, 659 N.W.2d 275 (Minn.Ct.App.2003); State v. Kadelak, 280 NJ.Super. 349, 655 A.2d 461 (Ct.App.Div.1995). Moreover, section 27-32-101(a)(2)(A), which states: “Any law enforcement officer haying reason to believe that a |svehicle may have safety defects shall have cause to stop the vehicle and inspect for safety defects,” indicates that section 27-32-101 concerns more than just “mechanical” deficiencies. We hold that under the facts, of this case, a windshield with a crack running from roof post to roof post across the driver’s field of vision is the type of “safety defect” contemplated by section 27-32-101(a)(2)(A).
At the suppression hearing, Officer Whorton opined, without objection, that a windshield crack of the magnitude he observed in Villanueva’s vehicle made the car unsafe because it compromised the structural integrity of the vehicle and impaired the vision of the driver. According to Officer Whorton, that was the reason why he made the traffic stop. In reviewing a trial court’s determination that there was probable cause to make a traffic stop, our inquiry is whether there are “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Hinojosa, 2009 Ark. 301, at 5, 319 S.W.3d at 262. We cannot say that the trial court clearly erred in crediting Officer Whorton’s testimony and finding that the traffic stop was proper.
Finally, Villanueva’s reliance on, J.D.I. v. State, supra, is misplaced. While both the traffic stops in the case at bar and in the Alabama case involved vehicles with cracked windshields, the arresting officers were acting pursuant to much different statutes. The Alabama statute at issue provided that a windshield must be “unobstructed,” while the Arkansas statute at issue related to “safety defects.” The Alabama court held that the windshield crack did not constitute a visual obstruction under the Alabama statute, which |f,meant that the traffic stop was based on a mistake of Alabama law. J.D.I. v. State, 77 So.3d at 616. Officer Whorton’s assessment that Villanueva’s cracked windshield constituted a safety defect was not a mistake of Arkansas law.
Villanueva next argues that the traffic stop was based entirely on “profiling” and was thus illegal under Arkansas statutory and constitutional law. He contends that “common sense” dictates that the “real” reason for the traffic stop was that Villanueva was Hispanic. He asserts that “no reasonable person could possibly conclude Officer Whorton sincerely believed [his] windshield was unsafe.” He directs this court’s attention to the picture of the windshield. We find this argument unpersuasive.
Villanueva does not refer this court to any testimony by Officer Whorton or anyone else suggesting that the stop was based on profiling. Villanueva has placed nothing in the record, except for his surname, that would indicate that he is Hispanic, and he has given us no reason to think that his surname would have been known to Officer Whorton prior to the stop. Thus, his argument is flawed.
Further, as noted previously, the trial court credited Officer Whorton’s testimony. While our review is de novo, we defer to the superior position of the trial judge in determining a witness’s credibility. Hi-nojosa, supra. The picture of the windshield, which shows that the crack runs completely across the vehicle from roof post to roof post, does appear to be in a position that would obstruct the driver’s vision and impair the structural integrity of the vehicle. We have said that we will not disregard the testimony of a witness whose credibility was credited by the trier of fact unless it can be said with assurance that 17it was “inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.” Leach v. State, 2012 Ark. 179, 402 S.W.3d 517. Under this standard, we have no reason to question Officer Whor-ton’s credibility. Accordingly, we affirm.
HANNAH, C.J., concurs.
CORBIN and DANIELSON, JJ., dissent. | [
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KENNETH S. HIXSON, Judge.
| ¶ This is a child custody case involving a minor child, S.E., who was born on June 23, 2007. The child’s mother is appellant Whitney Winn, and her father is Jesse Epperson. Whitney and Jesse were married on August 2, 2007, and divorced on August 23, 2010. Two days after their divorce, Whitney married her current husband. The appellees are Arline Bonds and Danny Bonds. Arline is Whitney’s former stepgrandmother, and Danny is Arline’s current husband. Whitney appeals from a temporary order entered by the Pulaski County Circuit Court on April 15, 2011, and an amended order entered on September 12, 2011, wherein Arline was awarded custody of S.E., and Whitney was granted visitation.
|2In this appeal, Whitney raises two arguments. First, she argues that the trial court erred in allowing Arline to intervene in the Pulaski County proceedings. Next, she contends that the trial court erred in awarding Arline temporary custody of S.E. pending the custody hearing that resulted in the final custody order. We affirm.
This appeal involves complicated facts and procedural history. S.E. was born on June 23, 2007. The parents, Whitney and Jesse Epperson, were married on August 2, 2007. By February 2010, Whitney and Jesse were separated. S.E. was approximately two and a half years of age. Whitney was having financial problems and turned over custody of S.E. to Arline, who lived in Van Burén County. On July 28, 2010, shortly before Whitney’s divorce, Arline filed a Petition for Temporary Guardianship for the minor child in the Van Burén County Circuit Court. The Van Burén County Circuit Court entered a 90-day ex parte order appointing Arline temporary guardian of S.E. Whitney was divorced on August 23, 2010, in Pulaski County. Within the 90-day temporary-guardian period, a hearing was scheduled for the Petition for Temporary Guardianship in Van Burén County Circuit Court. The hearing was held on September 20, 2010. Arline appeared at the hearing but Whitney did not, having filed an answer. The Van Burén County Circuit Court recognized a potential jurisdictional conflict with the Pulaski County Circuit Court wherein Whitney obtained her divorce, and custody of S.E. was, at least, mentioned. The Van Burén County Circuit Court entered an order continuing the existing 90-day temporary guardianship in Arline and invited either party to petition the Circuit Court of Pulaski County to determine if the Pulaski County court had asserted jurisdiction over S.E. The Van Burén County Circuit Court ^subsequently entered an order closing and terminating the temporary guardianship proceedings on November 5, 2010.
In the meantime, Whitney filed her complaint for divorce pro se in Pulaski County Circuit Court on August 2, 2010. Unfortunately, in her complaint and in the proposed precedent, Whitney alleged that there were no minor children born of the marriage. However, upon inquiry by the trial court during the divorce proceedings, ■Whitney explained that there was one child born before the marriage and that custody of the child was with Whitney’s grandmother. As a result of this revelation, the trial court struck through the language in the proposed precedent, which stated “there were no children born during this marriage” and interlineated “there was one child bom before marriage, S.E. Custody of the child is with the plaintiffs grandmother.” That interlineation is the conception of much of the confusion and disagreement in this appeal. The divorce decree, with the interlineation, was entered on August 23, 2010.
On October 4, 2010, Whitney filed in Pulaski County a motion to modify or clarify the divorce decree, alleging that Arline was never a party to the divorce action and that during the divorce proceedings the minor child was merely staying with the grandmother. Whitney requested a modification or clarification granting her custody. This motion was served on Whitney’s husband, Jesse Epperson, but was not served on Arline, who was not a party to the Pulaski County divorce action. Taking the lead from the Van Burén County Circuit Court, on October 21, 2010, Arline filed a motion in the Pulaski County divorce case requesting that |4the Pulaski County Circuit Court enter an order finding that Van Burén County Circuit Court had jurisdiction for all purposes relating to the minor child.
While the record is unclear regarding the substance of the hearing on the matter, on October 26, 2010, the Pulaski County Circuit Court determined that it did not object to the Van Burén County Circuit Court retaining jurisdiction of the minor child. This order was not filed until November 1, 2010. The record does not contain any information on when this order was filed or forwarded to the Van Burén County Circuit Clerk, if at all. On November 5, 2010, unaware that the Pulaski County Circuit Clerk had no objection to its jurisdiction, the Van Burén County Circuit Court entered an order closing and terminating the temporary guardianship at the close of the 90-day period, thus divesting Van Burén County Circuit Court of any jurisdiction.
On November 5, 2010, the day the temporary guardianship in Van Burén County was terminated, Whitney picked up S.E. from Arline and returned to Little Rock. On November 16, 2010, Arline contacted the LRPD to recover S.E. from Whitney. Pursuant to the “interlineation” language of the original divorce decree which stated “custody was with grandmother,” the LRPD assisted Arline, and S.E. was returned to Arline. Three days later, on November 19, 2010, Whitney asked for an immediate emergency temporary guardianship hearing pending the final hearing in Pulaski County.
On November 24, 2010, Arline (who was still not a party to the Pulaski County divorce action) responded to Whitney’s motion for emergency hearing, noting the interlineated language in the divorce decree that custody of the child was with her. Arline |5asked that Whitney’s motion for emergency hearing be dismissed, and Arline asserted that she was uncomfortable with S.E. being removed by Whitney from her home on an unsupervised basis at that time.
A hearing was held in Pulaski County Circuit Court on December 20, 2010. The trial court announced that the case was set for a custody hearing, but that due to a thirty-minute time constraint it would decide only the issue of emergency custody. Over Whitney’s objection, the trial court granted Arline’s oral motion to intervene in the ease.
In summary, Whitney testified that she lived in Little Rock with her husband, who was in the Air Force. Whitney believed that it was in S.E.’s best interest to be returned to her custody, and she requested an immediate order to that effect. Arline testified that it was in the best interest of the child to remain with her.
At the conclusion of the hearing, the trial court found that an emergency did not exist and denied Whitney’s motion for temporary guardianship and left the “custody” of the minor child with Arline pending the hearing on final custody. The corresponding order was not entered until April 15, 2011. The order states that Arline, as current custodian of the child, was permitted to intervene in the matter; that Whitney was allowed visitation; and that Whitney failed to demonstrate that any emergency existed to justify emergency relief. A custody hearing was subsequently scheduled and held on July 8 and 11, 2011.
The testimony from the July 2011 custody hearing was not designated as part of the record on appeal. However, appellant’s partial designation included selected comments from the trial court at the hearing. The trial court stated that its original divorce decree entered on 16August 23, 2010, did not constitute an award of custody, and that it was treating the current hearing as an initial custody determination.
The trial court entered an order on August 19, 2011, and a similar amended order on September 12, 2011. In the amended order, the trial court granted custody of S.E. to Arline. The trial court awarded specific visitation to Whitney, and noted that the parties had the right to petition for a review of custody one year from the date of the hearing.
In this appeal, Whitney first argues that the trial court erred in allowing Arline to intervene in the Pulaski County divorce action. Whitney concedes that Arline stood in loco parentis to S.E. at one time, but maintains that this relationship ended after the Van Burén County guardianship was terminated on November 5, 2010. Whitney submits that the only remedy available to Arline would have been to seek a permanent guardianship in the Van Bu-rén County proceedings before that case closed. Whitney submits that Arline had unclean hands, is a stranger to the child, and lacked standing to intervene in the divorce action. Moreover, appellant asserts that because no written motion to intervene was filed, there was a lack of compliance with Ark. R. Civ. P. 24(c), which provides in relevant part:
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefore and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.
We review a trial court’s decision permitting a party to intervene for an abuse of discretion. Bradford v. Bradford, 52 Ark.App. 81, 915 S.W.2d 723 (1996). Under the circumstances presented in this case, we hold that the trial court did not abuse its discretion in allowing Arline to intervene.
|7Our appellate courts have held that, in proceedings involving minor children, persons who stood in loco parentis to the children may have standing to intervene. See Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005); Pippinger v. Benson, 2011 Ark. App. 442, 384 S.W.3d 614. In the present case, not only did Arline stand in loco parentis to S.E., but she also had physical custody of S.E. at the time of the divorce and at the time she was permitted to intervene. Arline’s physical custody originated at Whitney’s request ten months before the December 20, 2010 hearing, she was subsequently awarded a temporary guardianship in Van Burén County Circuit Court, and her custody of S.E. was also documented in the Pulaski County divorce decree.
In loco parentis refers to a person who has fully put herself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who actually discharges those obligations. Daniel v. Spivey, 2012 Ark. 39, 386 S.W.3d 424. In making a determination as to whether a nonparent stands in loco parentis, courts consider the totality of the circumstances and do not lightly infer the intent of the person seeking to be considered as standing in loco parentis. Id. While the length of time a person spends with a child is not determinative, it is a significant factor in considering whether that person intended to assume parental obligations or has performed parental duties. Id. With these considerations in mind, we conclude that Arline’s custody of, and close relationship with, S.E. was sufficient indicia upon which to confer standing to intervene in the case.
Nor do we agree with appellant’s argument that the lack of a written motion defeated Arline’s intervention. In response to appellant’s argument that there had been noncompliance |8with Rule 24(c), the trial court allowed the pleadings to conform to the proof and permitted Arline to intervene and dispute custody. In Bradford, supra, we said that although Rule 24(c) requires a party seeking intervention to state in a separate pleading the claim or defense to be advanced, when there is no surprise or substantial prejudice, the court can, and often does, treat the pleadings as amended to conform to the proof. In this case, it was clear from her written response to Whitney’s motion for an emergency hearing that Arline was seeking to intervene for the purpose of retaining custody of S.E. The absence of a separate written motion resulted in no surprise or prejudice to Whitney, and the trial court properly exercised its discretion in granting Arline’s oral motion to intervene.
Whitney’s remaining argument is that the trial court erred in granting temporary custody of S.E. to Arline on December 20, 2010, pending what was later described as “the initial custody hearing” to be held in July 2011. She cites Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), where the Supreme Court held that the Due Process Clause of the Fourteenth Amendment protects the fundamental rights of parents to make decisions concerning the care, custody, and control of their children. Appellant also relies on Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), which held that a fit parent is given a presumption that she is acting in her child’s best interests. In Camp v. McNair, 93 Ark.App. 190, 217 S.W.3d 155 (2005), this court explained that substantive law prefers a parent over a grandparent or other third persons unless the parent is incompetent or unfit.
Whitney asserts that she is a fit parent and correctly notes that the trial court did not find otherwise. She further submits that none of her actions or inactions rose to the level of [^manifest indifference to the welfare of the child. See Dunham v. Doyle, 84 Ark.App. 36, 129 S.W.3d 304 (2003). Whitney contends that she was acting in S.E.’s best interest when she sought emergency temporary custody at the December 20, 2010 hearing and should have then been given the natural-parent preference, and she assigns error to the trial court’s decision to instead give temporary custody to Arline.
We conclude that any error in the temporary order arising from the December 20, 2010 hearing is now moot. The trial court made it clear at the temporary hearing that it was only deciding whether emergency custody would be placed with Whitney, and that a final custody hearing would come later. A subsequent two-day hearing was held, and on September 12, 2011, the trial court awarded custody to Arline. Whitney does not challenge that “final” custody termination on appeal; she challenges only the temporary custody decision.
In Vairo v. Vairo, 27 Ark.App. 231, 769 S.W.2d 423 (1989), we held that a temporary order is terminated upon entry of a subsequent permanent order. Thus, the appellant herein is challenging an order that was terminated and is no longer in effect. Whitney does not contest the final award of custody to Arline, and that award will be unaffected by any decision rendered with regard to the temporary-custody order. See Vairo, supra. It is the duty of the courts to decide actual controversies that can be carried into effect, but not to give opinions upon controversies that cannot be executed or cannot have any practical effect in settling the rights of the parties. See Kirk v. North Little Rock Special Sch. Dist., 174 Ark. 943, 298 S.W. 212 (1927). The rights of the parties in this case were settled by the final order of custody, |inthe provisions of which Whitney does not now contest. Any decision on the merits of the temporary- custody order would have no practical effect. Therefore, we need not address Whitney’s challenge to the temporary-custody award.
Affirmed.
HARRISON and VAUGHT, JJ., agree.
. For purposes of simplification the appellant, Whitney Winn, is referred to herein as "Whitney”; the appellees, Arline Bonds and Danny Bonds, are referred to herein as "Arline”; and the minor child, S.E., is referred to herein as "S.E.” | [
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JIM HANNAH, Chief Justice.
| ] Marlin Dval Stevenson appeals a conviction for first-degree murder and sentence of life imprisonment. On appeal, he alleges that the circuit court (1) erred in denying his directed-verdict motion, (2) erred in denying his motion to suppress his statement, (8) abused its discretion in denying his motion for mistrial when the State disclosed Stevenson had invoked his right to counsel, (4) abused its discretion in denying his motions to exclude prior bad acts, and (5) abused its discretion in failing to exclude the plaster cast of the knife impression taken from a knife box. We find no error and affirm the conviction of first-degree murder and sentence of life imprisonment. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2)(2012).
On the evening of August 17, 2011, Michael Fox was stabbed, and he died soon afterward. According to the testimony of Deputy Medical Examiner Dr. Steven Erickson, Fox suffered three stab wounds, one above the collarbone that cut his external jugular vein, |2one that severed his brachial artery on his arm, and one to the back of his chest wall that cut through the left side of one lung. Dr. Erickson testified that the primary cause of death was blood loss and a collapsed lung.
The following facts were adduced from the testimony at trial. On August 17, 2011, Stevenson was living with Fox and Fox’s mother, Christina Atchley. Two of Atchley’s grandchildren lived in the home as well. When Stevenson left the home that evening, Fox told Atchley that Stevenson had been smoking “weed” in the home while she was at work. When Stevenson returned to the home, Atchley spoke with Stevenson regarding Fox’s concerns. After their conversation, Stevenson went outside and stated, “I’m gonna to show everybody I’m not a pussy anymore, I’m tired of this.” He came back into the house and went briefly into the bedroom that he and Atchley shared before again going outside. Atchley thought he had gone into the bedroom to get cigarettes. She testified, “[I]t seems like a few seconds later [Fox] opens the door and says, ‘Mom, I have been stabbed.’ ” Atchley testified that, after she put her grandchildren in a bedroom, she went outside and “all I could see — it was like a blur of [Stevenson] running towards the back of the house. And he didn’t say anything or [sic] anything. He just took off.” Atchley attempted to call 911, but she was too upset. Fox then called 911. Atchley testified that, a couple of months earlier, she had seen a knife that Stevenson kept in a box beneath the bed. However, she did not see Stevenson retrieve the knife box or knife that evening.
Paragould Police Officer Tim Erickson took Fox’s 911 call. He testified that Fox reported that he had been stabbed, and when asked who stabbed him, he stated, “Marlin | ¡¡Stevenson.” Mario Rios testified that on the night of August 17, 2011, Stevenson came to his house “out of breath” and “confused,” stating that he needed to talk. According to Rios, Stevenson said “he was in a fight with Christina’s son and stated that, T think I stuck him.’ ” Shane Pogue testified that he was living with Rios and was present in the home when Stevenson was there on August 17. Pogue testified that there was “a blood spot on the bottom” of Stevenson’s grey shirt and that Stevenson “told me he had been in an altercation and stabbed somebody ... in the shoulder blade.” Pogue testified that when Stevenson came out of the bedroom, he had changed clothes. Rios testified that his fiancee washed Stevenson’s clothes. Pogue went to the police department where he spoke with Paragould Lieutenant Mike Addison.
Addison proceeded to Atchley’s house. He stated that he found a knife box on the floor in the bedroom. The knife box had a form where the knife fit in the box. He further stated that he found the lid to the knife box in the bedroom. The knife used to stab Fox was never found.
Evidence taken from Stevenson and the crime scene was analyzed. Kevin Soatag, of the Arkansas State Crime Lab testified that blood was found on Stevenson’s right shoe, a spot “the size of the end of your pinkie.”
In a statement to Addison, Stevenson admitted that he and Fox had fought, but stated, “I didn’t stick him. I didn’t have no knife.” Stevenson admitted that the knife box was in the dresser drawer but alleged that he had sold the knife two months earlier and kept the box to use as a “stash box.” He denied opening the dresser drawer. Stevenson’s statement also [4provided the following information:
Addison: Ok. Well, where’d you get the knife from?
Stevenson: I don’t even know, I, I don’t remember nothin like that as far as stabbin him. I’m serious.
Stevenson: .... I don’t remember havin a knife in my hand....
Addison: Or you didn’t have a knife.
Stevenson: I don’t remember.
Stevenson: .... I don’t know if I picked up the knife or not....
Addison: If it wadn’t [sic] a knife, did you pick up some other kind of instrument a pair of scissors or anything like that?
Stevenson: I don’t know....
Stevenson: .... it might have been a piece of metal....
Stevenson: .... I don’t remember pickin up nothing and stabbin him with it....
Stevenson:.... if I stab him with so-mera [sic] I had to pick it up outside and I don’t remember pickin up noth-in ...
Stevenson: ... I probably did stick him, but I don’t remember.
_]⅛ • • •
Stevenson: I didn’t say I may, I told H-Town I might have.
Stevenson: .... when I got to 412 I didn’t have nothin in my hand and I, you know if I did I dropped it.
Stevenson’s argument at trial was that someone other than him had stabbed and killed Fox. Stevenson moved for a directed verdict, stating as follows:
Your Honor, at the close of the State’s evidence. The defense will ask the Court not to submit the case to the jury, and to find that viewing the evidence in the light most favorable to the State that there is no basis on which the jury could find that my client is guilty of First Degree Murder. They have not presented any eyewitness testimony. They have not presented any murder weapon. And aside from the fact that he died by circumstances that they cannot otherwise attribute, they have offered no proof that my client is responsi ble for the death. We would ask for a directed verdict.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Anderson v. State, 2011 Ark. 461, at 3, 385 S.W.3d 214, 217. This court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id., 385 S.W.3d at 218. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id., 385 S.W.3d at 218. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id., 385 S.W.3d at 218.
A person commits first-degree murder if “[w]ith a purpose of causing the death of another person, the person causes the death of another person.” Ark.Code Ann. § 5-10-102(a)(2) (Repl.2006). “A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that | ^nature or to cause the result.” Ark.Code Ann. § 5-2-202 (Repl.2006).
The circuit court denied the motion based on Fox’s statement to 911 that Stevenson had stabbed him and Pogue’s testimony that Stevenson had told him that he (Stevenson) had stabbed someone. Atch-ley saw Stevenson fleeing the scene. Stevenson admitted to Rios that he had stabbed Atchley’s son. Stevenson admitted to Pogue that he had stabbed someone. Blood was seen on Stevenson’s shirt, and blood was found on his shoe. In his statement to Addison, Stevenson admitted that he might have stabbed Fox. There was evidence that Stevenson had kept a knife in his bedroom. He was seen going into the bedroom before the fight. A knife box and lid were found on the floor, implying that Stevenson went into the bedroom and got his knife. Substantial evidence supports the verdict, and there was no error in denying the directed-verdict motion.
Stevenson next asserts that the circuit court erred in denying his motion to suppress his statement because he had invoked the right to an attorney. After his arrest, Stevenson was taken to an interrogation room where he asserted his right to an attorney, and the interrogation was terminated. Addison testified as follows regarding a declaratory statement he made while taking Stevenson to a cell after terminating the interview upon Stevenson’s invocation of the right to counsel:
As we were walking down the hall toward the holding cell, -I made a statement that if you decide you ever want to talk to us, you would have to request that ... He asked me a question ... He would just have to fill out a written request and send it to us ... He said he would rather just go ahead and get this over with and talk to me now. He didn’t want to have to go through that aspect of writin’ a letter.
Stevenson cites this court to Edwards v. Arizona, 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] (1981), arguing that the 17circuit court should have suppressed his statement, because the statement was made after he had invoked his right to counsel. In that case, the United States Supreme Court stated as follows:
[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not sub ject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
Id. at 484-85, 101 S.Ct. 1880 (1981). The Court in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) also discussed interrogation in this context:
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, 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. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
Id. at 300-02, 100 S.Ct. 1682 (emphasis in original) (footnotes omitted). See also Osburn v. State, 2009 Ark. 390, 326 S.W.3d 771.
In the ease before this court, Stevenson invoked his right to counsel. When Addison | stold Stevenson that any further contact with law enforcement would only be upon written request, Stevenson said to Addison that “he would rather just go aheád and get this over with and talk to me now. He didn’t want to have to go through that aspect of writin’ a letter.” While this statement is in response to the declaratory statement by Addison regarding how to contact the police, Addison’s statement was not during interrogation and was not a statement that would reasonably elicit an incriminating response. Stevenson expressed a desire to go ahead with the interview, and that he wished to speak with law-enforcement officers. The circuit court’s denial of Stevenson’s motion to suppress was not clearly against the preponderance of the evidence and we affirm its decision.
Stevenson also asserts that the circuit court erred in denying his motion for mistrial. A mistrial is a drastic remedy that should be granted only when justice cannot be served by continuing the trial. Jones v. State, 2012 Ark. 38, at 3, 388 S.W.3d 411, 413. A circuit court’s decision whether to grant a mistrial will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Id., 388 S.W.3d at 413. Stevenson alleges that a mistrial was required because the State told the jury in opening statement that he had invoked the right to counsel. In relevant part, the State’s opening statement was as follows:
Lieutenant Addison questions, as he should, the suspect. Lieutenant Addison was very careful to [ejnsure the defendant was aware of his rights. He has a right to a lawyer. He has a right not to give any statement. He made sure he was aware of those rights. And then the defendant initially said I want to talk to a lawyer.
Stevenson’s attorney asked permission to approach the bench and stated to the circuit court that “[t]he court excluded the first statement or any reference to it. The prosecutor has just provoked a mistrial by inadmissible commenting on what is clearly prejudicial.” The circuit |scourt denied the mistrial and gave a curative instruction.
A review of the record reveals that the circuit court ruled that the audio and the video recording of the first interview in which Stevenson invoked the right to counsel “wouldn’t be played at trial.” Stevenson confirms this in his argument on appeal, asserting that, “[djuring the pre-trial hearing on the Appellant’s Motion to Suppress, the trial court, in its ruling, stated that statement one would not be played at trial.”
Both Stevenson and the State rely on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The issue in Doyle was “whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest.” Id. at 611, 96 S.Ct. 2240 (footnote omitted). The Court in Doyle stated:
The warnings mandated by that case [Miranda], as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444 [94 S.Ct. 2357, 41 L.Ed.2d 182] (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, supra, 422 U.S. [171], at 177 [95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) ]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penally, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.
Id. at 617-18, 96 S.Ct. 2240 (footnotes omitted). The Court in Doyle held that “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. 2240 (footnote | inomitted). This court similarly held in Jarreau v. State, 291 Ark. 60, 722 S.W.2d 565 (1987), and Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982).
The State cites this court to Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986). Strikingly similar to the present case, in Holden the prosecution stated in opening statement as follows:
The defendant is arrested and he is read his Miranda rights, and during the course of those rights as they are read to him he states, I want a lawyer. So Officer Howard of the Arkansas State Police folds his papers up, and he says all right, there will be no more questions. Officer Howard stopped asking questions.
Holden, 290 Ark. at 461, 721 S.W.2d at 615. In Holden, “[t]he specific legal argument on appeal is that it was a comment on the defendant’s right to remain silent which can be prejudicial error.” Id. at 462, 721 S.W.2d at 615. This court stated that the “legal issue to us is whether this was a comment on the right of a defendant to remain silent or whether it was a prejudicial comment requiring a mistrial.” Id., 721 S.W.2d at 616. We concluded that the case was not exactly the same as in Doyle. “There was no direct reference by the state to the defendant’s silence or emphasis that the defendant refused to make a statement, which is the error addressed in Doyle.” Id., 721 S.W.2d at 616.
In Holden, as in the present case, the defense moved for a mistrial, asserting that the attention of the jury was focused on invocation of the constitutional right to a lawyer. The defense argued that “this could lead the jury to believe the defendant was trying to hide something.” Holden, 290 Ark. at 462, 721 S.W.2d at 615. We noted that “[t]he state simply mentioned what was said immediately before Holden asked two questions which were admitted.” Id., 721 S.W.2d at 616. As in the present case, in Holden,
| nit was not cross-examination emphasizing Holden’s silence to the jury. While Holden’s exercise of his constitutional right to a lawyer was mentioned, it was not a calculated reference to Holden’s silence. The appellant has cited no case holding such a statement is of such a prejudicial nature that it will prevent a fair trial.
Holden, 290 Ark. at 462, 721 S.W.2d at 616. In Holden, as in the present case, “[n]o mention was made during the trial about the silence of the defendant, or the fact that he had asked for a lawyer.” Id. at 464, 721 S.W.2d at 616. Here, a curative instruction was given at the time of the comment in the State’s opening statement, and no mention was made during trial about Stevenson’s silence or assertion of the right, to counsel. Unlike the situation in Doyle, Stevenson was not cross-examined regarding his assertion of the right to remain silent, and there was no attempt to impeach Stevenson’s account at trial with the assertion of his Miranda rights. Under Doyle, “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” Doyle, 426 U.S. at 619, 96 S.Ct. 2240. But Stevenson offers no convincing authority for his argument that the mention in opening statement that a defendant invoked the right to counsel and then retracted that assertion and spoke to law enforcement constitutes a violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We cannot say that the circuit court erred in refusing to grant a mistrial. See Holden.
Stevenson next argues that the circuit court abused its discretion in admitting evidence of prior crimes under Arkansas Rule of Evidence 404(b), which provides as follows:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
| 12“The test for establishing motive, intent, or plan is whether the prior bad act has independent relevance.” Fells v. State, 362 Ark. 77, 84, 207 S.W.3d 498, 503 (2005).
At issue are two prior crimes involving Stevenson’s use of a knife. To sustain the charge of first-degree murder under the facts of this case, the State had to prove that with the purpose of killing another person, Stevenson killed another person. See ArkCode Ann. § 5-10-102(a)(2). Dr. Erickson testified that one stab wound severed Fox’s external jugular vein. Dr. Erickson characterized this as “a very serious stab wound.” Another stab wound severed Fox’s brachial artery and nerves in his arm that rendered the arm useless. The third stab wound pierced Fox’s lung, causing it to collapse. The question asked of the jury was whether Stevenson committed the stabbing with the purpose of causing Fox’s death. The manner in which the wounds were administered was lethal and quickly caused Fox’s death. From the evidence of the two prior crimes involving Stevenson’s use of a knife, the jury could infer that, based on Stevenson’s skill with a knife, the wounds were intentionally inflicted in the manner they were, and in the place they were, for the purpose of causing death. The evidence was relevant to prove the elements of the charged crime of first-degree murder, and the prior crimes, independent of revealing other crimes, were relevant to prove intent in the charged crime and were therefore admissible.
Stevenson finally argues that the circuit court abused its discretion by admitting a cast of the knife form found in the seized knife box. Within the knife box was a form into which the knife fit when the knife was placed in the box. The State had a casting made to show the shape of the knife that the box held. Stevenson admitted that at one time, he had stored a | dimite in the box, but he asserted that he had sold it. Atchley had seen the knife prior to the evening Fox was killed and testified that it had been kept in the bedroom she and Stevenson occupied. Atch-ley testified that, shortly after stating he would assure no one thought he was a “pussy,” Stevenson left and then returned to the bedroom for a few moments before going outside where Fox was stabbed. Addison found the dresser drawer open, the knife-box bottom and the box lid on the bathroom floor, consistent with Stevenson’s grabbing the knife and dropping the box as he hurriedly ran outside with it. Dr. Erickson testified that the wounds were not inconsistent with Exhibit 75, the cast of the knife. Absent an abuse of discretion, the circuit court’s decision on admission of evidence will not be reversed. See Riley v. State, 2012 Ark. 462, 2012 WL 6218479. We find no abuse of discretion.
In compliance with Arkansas Supreme Court Rule 43(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Stevenson, and no prejudicial error has been found.
Affirmed.
BAKER AND HART, JJ., dissent. | [
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CLIFF HOOFMAN, Justice.
|! Appellant Phillip Holloway appeals from the circuit court’s denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure B7.1. He argues that his trial counsel was ineffective (1) for failing to preserve for appeal allegations of police and prosecutorial misconduct, (2) for failing to properly object to several issues related to lesser-included offenses, and (3) for failing to object to a portion of the medical examiner’s testimony. We affirm.
On July 25, 2008, Holloway was charged with first-degree murder in connection with the death of his wife, Erma Holloway. The jury convicted Holloway of second-degree murder and sentenced him to thirty years’ imprisonment. The Arkansas Court of Appeals affirmed the judgment in Holloway v. State, 2010 Ark. App. 767, 379 S.W.3d 696. Holloway filed a timely Rule 37.1 petition, which was denied by the circuit court on May 17, 2011, without a hearing. Holloway also filed a motion for reconsideration, asserting that the circuit ¡¡¡court had failed to rule on certain issues raised in his petition. The motion for reconsideration was denied on July 14, 2011, and Holloway filed a timely notice of appeal from this order, as well as the order denying his petition.
A summary of the evidence presented at Holloway’s trial in support of his conviction is helpful in understanding the issues presented on appeal. On the morning of July 23, 2008, law enforcement officers responded to a 911 call made by Holloway’s friend, who reported that he and Holloway had found Erma’s body in a pond located on Holloway’s farm. When the officers arrived at the scene, Holloway was sitting at the edge of the pond, holding Erma’s body. The officers noticed that Erma had abrasions to her head, nose, lip area, right elbow, and legs, and that she had dried blood underneath her nose and above her lip.
When Holloway was questioned about the events leading up to his wife’s death, he stated that he and Erma, who did not live together, had gotten into an argument the night before and that because they had been drinking, he did not want to let her drive home. Holloway stated that he took Erma’s keys from her, and he eventually admitted that he had gotten into a physical struggle with her as she attempted to leave, grabbing her and slinging her backward into a recliner, which tipped over. Holloway further admitted that he had kicked Erma on the hips and on the side while she was lying on the floor and claimed that she had also kicked him. At that point, Holloway stated that his phone rang and that his neighbor asked for permission to fish in Holloway’s pond, which he granted. According to Holloway, while he was on the phone, Erma found a second set of keys and drove away from the residence. Holloway stated that he saw gravel flying as she drove away and then saw from her Rear’s taillights that she had stopped down the road. He got into his all-terrain vehicle to go look for her and stated that he did not find anything. He then claimed that he called her residence several times that evening, but she did not answer. The next morning, Holloway was working on his farm with his friend when he noticed Erma’s body floating in the pond.
In his interview with police, Holloway acknowledged that he had been convicted of domestic battery against Erma in 2005, after he had beaten her repeatedly with a belt, and that he served one year in jail for this crime. However, he continued to assert that he had nothing to do with Erma’s death, claiming that she had driven away the night before he found her body in the pond.
Police officers searched Holloway’s properly and noticed a path of vehicle tracks heading into the pond. A dive team then located and retrieved Erma’s vehicle, and a video recording of the retrieval was admitted into evidence. Both divers testified that neither the doors nor the windows of the car were open when they located it in the murky water, although one of the divers explained that he initially mistook an open wheel well for a door until he realized that the front of the car was actually facing toward the shore of the pond. The officers present during the search also testified that the vehicle’s doors and windows were closed when it was towed from the water, and the gearsh-ifter was in the neutral position. During a search of Holloway’s residence, a drop of blood was found underneath the recliner, and blood was also recovered from a rug in front of the recliner. Testing indicated that this blood was Erma’s. One of the officers also testified that he noticed a strong odor of bleach in the residence, and rags were located in and around the washing machine, which had rust |4stains on them despite having been bleached.
In addition to the officers’ testimony, the State presented evidence from a certified automotive technician who examined Erma’s vehicle and concluded that there was a ninety-five-percent chance that the engine was not running when it hit the water. Dr. Frank Peretti, the medical examiner who performed an autopsy on Erma, testified that she had a broken nose, two black eyes, broken ribs, injuries to her neck, and bruising over her entire body. He testified that there was a violent struggle and ruled that Erma’s death was a homicide resulting from blunt-force trauma. Dr. Peretti concluded that Erma did not drown because her lungs did not exhibit the classic signs of drowning such as heavy lungs, froth, and edema.
In Holloway’s direct appeal, substantial evidence was found to support his second-degree-murder conviction, although his claims, related to police and prosecutorial misconduct, lesser-included offenses, inconsistent jury-verdict forms, and a portion of Dr. Peretti’s testimony, were held not to be preserved for appeal. Holloway, 2010 Ark. App. 767, at 9-12, 379 S.W.3d at 702-03. In his Rule 37.1 petition, Holloway asserted that his trial counsel was ineffective for failing to preserve these issues, and he now presents these same arguments on appeal from the denial of his petition.
A circuit court’s denial of a Rule 37 petition will not be reversed unless the court’s findings are clearly erroneous. Lockhart v. State, 2011 Ark. 461, 2011 WL 4491035. In an appeal from a denial of postconviction relief based on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court clearly erred in holding that |ficounseI’s performance was not ineffective. Lockhart, 2011 Ark. 461, at 2, 2011 WL 4491035. Under the Strickland test, the petitioner must show that counsel’s performance was deficient and also that counsel’s deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 With respect to the prejudice requirement, a petitioner must demonstrate that there is a reasonable probability that the factfin- der’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the trial. Id. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of counsel that, when viewed from counsel’s perspective at the time of trial, could not have been the result of professional judgment. Id. The burden is also entirely on appellant to provide facts affirmatively supporting the claims of prejudice. Id.
For his first point on appeal, Holloway argues that trial counsel’s failure to preserve for appeal his allegations of police and prosecutorial misconduct constituted ineffective assistance of counsel because this misconduct would have entitled him to a reversal of his convictions. Holloway argued in his Rule 37 petition that the law enforcement officers who conducted the investigation into Erma’s death failed to note in any of their reports that there was evidence to indicate that either the driver’s side door or window of the vehicle was open. Specifically, Holloway claimed that none of the officers reported that one of the divers had initially believed that the driver’s window was open; that Sheriff Carpenter’s report omitted |fithe fact that he saw water spilling out from the driver’s side door; and that all the officers stated that the passenger compartment was securely closed in their affidavits in support of the search warrants, despite close-up pictures of the driver’s side door showing that this door was not “shut flush” like the other doors. Holloway thus contended that the police and the prosecution presented false evidence on “the linchpin of the State’s case,” which was the condition of the car, and that he was entitled to a reversal on this basis had his trial counsel properly preserved the argument. He also argued that no pictures were found to show that the gearshifter was in the neutral position when the car was pulled from the pond, despite the officers’ assertions that it had been photographed. Holloway claimed that the metadata from the cellphone camera used to take pictures of the car that day indicated that there were nine photos taken and that one image was apparently missing. He argued that this demonstrated that the prosecution had withheld or destroyed exculpatory evidence.
In its order denying postconviction relief, the circuit court noted that trial counsel had thoroughly presented and argued these matters to the jury and that these issues thus became a part of the weight or sufficiency of the evidence. The court found that the outcome of the trial was clearly within the parameters of the charges and the evidence presented and that this allegation in Holloway’s petition was without merit. In his motion for reconsideration, Holloway claimed that the circuit court failed to rule on his specific allegations, instead basing its ruling on the sufficiency of the evidence. Holloway also argued that the court did not specify the parts of the file that it relied on in reaching its conclusion. In the circuit court’s order denying Holloway’s motion for reconsideration, the court expounded on its previous |7ruling on the issue, noting that the Strickland test for ineffective assistance of counsel requires a showing that the claimant was deprived of a fair trial. Because these allegations of misconduct were “repeatedly presented to the jury from the beginning of jury selection until the end of closing arguments,” the court found that it was within the jury’s purview to accept or reject these allegations and that Holloway had not shown that he had been prejudiced by counsel’s failure to properly preserve the matter for appeal. The court also listed numerous pages of the transcript on which it relied in its finding.
While Holloway continues to assert on appeal that the circuit court failed to properly address his allegations on this issue and instead discussed only the sufficiency of the evidence, we agree with the circuit court that all these allegations of misconduct were in fact thoroughly presented to the jury by trial counsel, primarily through cross-examination of the State’s witnesses regarding the condition of the vehicle, but also through the testimony and evidence presented by the defense’s own experts, such as his accident-reconstruction and mechanical experts. As the State contends in its brief, Holloway has failed to affirmatively show that the police or the prosecution either knowingly presented false evidence or withheld exculpatory evidence; instead, the evidence relating to these allegations of misconduct was conflicting and in essence challenged the credibility of the State’s witnesses. In order to satisfy the Strickland test, Holloway must demonstrate that there is a reasonable probability that the outcome of the trial would have been different without counsel’s errors. Lowe, supra. Because the jury was adequately apprised of these allegations of misconduct, but did not give credit to them, Holloway was unable to meet his burden of proving prejudice from counsel’s errors, and the |scircuit court’s finding on this issue was not clearly erroneous.
In his petition, Holloway also raised several arguments pertaining to counsel’s failure to properly preserve for appeal issues involving lesser-included offenses. He first argued that the circuit court clearly erred by rejecting his claim of ineffective assistance due to his counsel’s failure to preserve an objection to the jury being instructed on all lesser-included offenses to the charged offense of first-degree murder. “While his trial counsel did originally argue to the circuit court that Holloway did not wish to have the jury instructed on the lesser-included offenses of second-degree murder, manslaughter, and negligent homicide because he was asserting total innocence, the appellate court held that counsel had withdrawn the objection after he failed to further object when the State argued that there was a rational basis to submit instructions on these offenses. Citing Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), Holloway asserted that there was no rational basis for the lesser-included offenses in this case given his defense and that, had his counsel properly preserved an objection, he would be entitled to a dismissal of his conviction.
It is reversible error for a circuit court not to give a lesser-included instruction when there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002); State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); Ark.Code Ann. § 5-l-110(c) (Supp.2011). In Jones, we interpreted Ark.Code Ann. § 5-l-110(c) and held that this statute does not delegate the decision regarding the propriety of a lesser-included instruction to the defendant but instead requires that the trial court determine whether an instruction on a | Slesser-included offense should be given. Thus, we reversed the trial court’s refusal to give jury instructions on the lesser-included offenses of second-degree murder and manslaughter based solely on the court’s reasoning that it was the defense’s right “to gamble” and not to request lesser-included offenses. Id. at 45556, 903 S.W.2d at 173. We distinguished our holding in Doby, supra, as the defendant in Doby asserted that he was entirely innocent of any crime, whereas the defendant in' Jones did not deny shooting the victim but instead presented a defense based on justification. Id.
In this case, the circuit court found that there was no merit to Holloway’s contention because there was a rational basis for the lesser-ineluded instructions based on the evidence presented at trial. While Holloway denied killing Erma, he admitted that he had engaged in a physical struggle with 'her in his attempt to stop her from leaving the house and that she may have hit her head when he shoved her into the recliner and it tipped over. He then claimed that she sped off in her vehicle and that it must have ended up in the pond. While Dr. Peretti testified that he believed that the cause of death was blunt-force trauma, not drowning, he also stated that the cause of death could have been a cardiac arrhythmia. In addition, the jury heard evidence from both parties’ experts of a possible phenomenon called “dry drowning.” Thus, even under Holloway’s version of events, there was a rational basis for the jury to convict him of the lesser-ineluded offenses to first-degree murder as there was at least some evidence from which the jury could have found that he acted with less than an intentional mental state in causing the death of his wife, and this case can therefore be distinguished from the situation in Doby. Because Holloway cannot show prejudice from counsel’s failure to | ^preserve this issue for appeal, the circuit court’s finding on this issue is not clearly erroneous.
In his second argument relating to lesser-included offenses, Holloway contends that his trial counsel was ineffective for failing to preserve his objection to the second-degree-murder instruction because Ark.Code Ann. § 5 — 10—103(a)(1) (Repl. 2006), which provides that a defendant commits second-degree murder by knowingly causing the victim’s death under circumstances manifesting an extreme indifference to the value of human life, is not a lesser-ineluded offense of first-degree murder as defined in Ark.Code Ann. § 5-10-102(a)(2) (Repl.2006), which states that a defendant commits first-degree murder if, with the purpose of causing the death of another person, he causes the death of another person. “Purposely” is defined in Ark.Code Ann. § 5-2-202(1) (Repl.2006), which provides that a “person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Holloway argues that the language “circumstances manifesting extreme indifference to the value of human life” in the second-degree-murder instruction adds an extra element not present in the greater offense of first-degree murder and that counsel should have objected on this basis.
As the State responds, however, this court has previously rejected this argument in McCoy v. State, 847 Ark. 913, 924, 69 S.W.3d 430, 437 (2002), where we held that the definition of “purposely” encompasses the culpable mental state óf acting knowingly with extreme indifference, which requires deliberate conduct with a knowledge or awareness that one’s actions are practically certain to bring about the prohibited result. We stated that the combination of knowledge and extreme indifference “requires proof that the defendant acted |nwith more than mere knowledge, but less than purposeful intent.” Id. We held that second-degree murder under Ark.Code Ann. § 5-10-103(a)(1) is therefore a lesser-ineluded offense of first-degree murder under section 5-10-102(a)(2), as it differs from the greater offense only to the extent that it requires a lesser kind of culpable mental state. Id. Although Holloway relies on our holding in Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999), as support for his argument, we distinguished this case in McCoy, stating that the holding in Byrd is limited to a situation where the defendant is charged with first-degree murder by knowingly causing the death of a person fourteen years of age or younger. Because that is not the situation here, Holloway’s argument that his trial counsel was ineffective for not preserving the issue is without merit, and the circuit court did not clearly err in denying his Rule 37 petition on this basis.
For his final argument pertaining to lesser-included offenses, Holloway contends that his trial counsel was ineffective for failing to timely object to the inconsistent verdict forms by the jury. The jury in this case completed the verdict form finding Holloway guilty of second-degree murder. However, the jury also completed the verdict forms finding Holloway not guilty of first-degree murder, manslaughter, and negligent homicide, even though it had been instructed not to consider the lesser-included offenses unless it first found him not guilty of the greater offense. Because his trial counsel failed to move for a mistrial at the earliest opportunity, the court of appeals declined to address the issue, finding that it was not preserved. Holloway, 2010 Ark. App. 767, at 11, 379 S.W.3d at 702-03.
We agree with the circuit court that even a timely mistrial motion based on | ^inconsistent verdict forms would have been without merit here, as we have previously upheld the denial of a motion for mistrial under very similar circumstances in Ray v. State, 342 Ark. 180, 27 S.W.3d 384 (2000). In Ray, the jury returned verdict forms finding the defendant guilty of first-degree murder and not guilty of capital and second-degree murder, despite instructions from the trial court to complete only one of the verdict forms provided. We stated that this was not an inconsistency in the verdict forms, as we have generally found an “inconsistency” only where there is a logical impossibility or improbability implicit in the jury’s findings as between jointly charged defendants. Id. at 183, 27 S.W.3d at 385-86. We held that the intent of the jury to convict the defendant of first-degree murder was clear and that even though the jury erred in returning all three forms instead of one form as instructed, there was no inconsistency and any error was harmless. Id.
Similarly, in the present case, it was clear that the jury intended to find Holloway guilty of second-degree murder, and there was no inconsistency in the verdict forms. Because any error by the jury in completing all the verdict forms was harmless, the circuit court did not clearly err in denying Holloway postconviction relief on this issue.
In his final point on appeal, Holloway argues that his trial counsel was ineffective for failing to object to Dr. Peretti’s testimony about what happens when a vehicle is submerged in water. As Dr. Per-etti was testifying at trial about his conclusion that drowning was not Erma’s cause of death, Holloway’s counsel objected to any opinions by Dr. Peretti about what happens when a car goes into water, arguing that this would exceed the scope of his expertise. The circuit court ruled that Dr. Peretti’s testimony would be “limited to how he utilized his 113knowledge and experience in relation to making this decision regarding cause of death. If any of that information relates to what he utilized in making his decision, I think he can say that, because he is an expert in forensic[s].” Dr. Peretti went on to testify to the following:
[Deputy Prosecutc®]: Did you use your 20 years of experience in forensic pathology and the facts you knew about this case and the condition of the body in making your determination as to the manner of death?
[Dr. Peretti]: Yes.
[Deputy Prosecutor]: Okay. What impact would the fact that the car was pulled from the pond with windows up and the doors closed, what impact does that information have upon your analysis?
[Dr. Peretti]: Well, it — well, it’s telling me, based on if those facts are true, I was trying to explain, you know, why I came to that conclusion about the car being in the water. Can I continue?
[Deputy Prosecutor]: As long as you base it on your experience that you have had and that you applied in this case?
[Dr. Peretti]: A lot of cases I have seen here in Arkansas, when, when cars go into water, [a] vast majority of the bodies are recovered inside the vehicle, because it is very difficult to get out of the vehicle. And the reason for that is: In order to open the door in a vehicle, you have to have equalized pressure. So, the car would have to fill up with water, okay. So, you would have to remain in the car, be calm, let the car fill up with water, and then open the door, okay, to get out of the vehicle. Second, once the door is opened and the car is in the water, you can’t close it. You can’t close the door, because of the pressure; the doors stay open.
Because Holloway’s trial counsel failed to further object to Dr. Peretti’s testimony, the appellate court held that any argument that Dr. Peretti exceeded the scope of permissible expert testimony was waived for appeal. Holloway, 2010 Ark. App. 767, at 12, 379 S.W.3d at 703. Holloway argued in his Rule 37 petition that he was prejudiced by counsel’s failure to properly preserve the issue because this inadmissible testimony by Dr. Peretti on the | ^condition of the vehicle and the ability of Erma to exit the vehicle once submerged in water was the operative question in the case.
In its order denying Holloway’s petition, the circuit court found that Dr. Peretti did not exceed the scope of his expertise because his testimony was clearly based on his twenty years of experience in forensic pathology, the facts he knew about the case, the condition of the body, and the cases he had seen in Arkansas where cars containing a body go into the water. The court noted that Dr. Peretti had stated that he was “not an expert on cars going into water,” but that he was an expert on cause and manner of death and the interpretation of scenes based on his years of personal experience. The circuit court found that Dr. Peretti’s testimony remained at all times within the realm of his expertise, and we agree. Dr. Peretti’s testimony was confined to his knowledge and experience in determining cause of death and was in response to a line of questions demonstrating how he ruled out drowning as a cause of Erma’s death. As the State argues, merely because an expert opinion embraces the ultimate issue in the case does not render it objectionable. See Johnson v. State, 292 Ark. 632, 639, 732 S.W.2d 817, 821 (1987). Further, even assuming that Dr. Peretti’s testimony on this issue was erroneously admitted, it was cumulative to the testimony of the accident-reconstruction expert, Don Johnston, who stated that it would have been very difficult to open the vehicle door until it had completely filled up with water and that at that point, the door could be opened but could not be closed. Prejudice cannot be demonstrated where erroneously admitted evidence is merely cumulative to other evidence that was properly admitted. Wright v. State, 368 Ark. 629, 249 S.W.3d 133 (2007). Thus, the circuit court’s ruling on this issue 115was not clearly erroneous.
Because Holloway failed to meet his burden of demonstrating that his trial counsel’s performance was deficient and that he was prejudiced by this deficient performance to the extent that he was deprived of a fair trial, the circuit court did not clearly err in denying his petition for postconviction relief without a hearing, and we affirm.
Affirmed.
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KAREN R. BAKER, Justice.
| Appellant, Tevin A. Bradley, was convicted by a Pulaski County Circuit Court jury of capital felony murder and aggravated robbery, with a firearm enhance ment on each count. Bradley was sentenced to life imprisonment without the possibility of parole for the murder, forty years for the aggravated robbery, and zero months for the enhancements. This court has jurisdiction pursuant to Ark. Sup.Ct. R. 1 — 2(a)(2) (2012).
Bradley’s case arises from an aggravated robbery and theft of marijuana at the home of Evon Henderson where Evon Henderson was killed. On January 2, 2011, Bradley and Veeders Nelson, Bradley’s co-defendant, went to Evon Henderson’s home to purchase marijuana from Byron Lawrence. Lawrence was in a small room in the back of the Henderson home and testified that he had a trash bag with approximately four pounds of marijuana in it in the middle of the floor. Ed Henderson was in the room with Lawrence as the robbery occurred. Evon Henderson was in kitchen, which was adjacent to the room where the robbery was transpiring. Evon Henderson shut a door that adjoined the two |2rooms. Nelson testified that when Evon Henderson shut the door, the door slammed, and Nelson fired a shot through the door. The bullet went through the door to the other side and hit Evon Henderson in the back as she walked away from the door. She took a few steps, collapsed and died. Nelson testified at trial and admitted to firing the gun that shot and killed Evon Henderson. Nelson also testified that he and Bradley both fled the scene, and Bradley grabbed the bag of marijuana from the floor. They ran out and jumped in Bradley’s green Pontiac and were both on the run for a period of time. Nelson testified that when they fled, Bradley waited outside the Henderson home for him. Bradley testified that when he fled the scene he was not aware that anyone had been hurt. Nelson and Bradley both evaded law enforcement for some time, spending some of the time on the run together, and some on their own. The record demonstrates that Nelson surrendered after twenty-four days on the run, and Bradley ultimately surrendered after approximately forty-seven days on the run having fled to various hotels and family members’ homes. On March 1, 2011, Bradley surrendered to the local police. Nelson negotiated a plea and received a thirty-year sentence for first-degree murder for the death of Evon Henderson.
Bradley raises three points on appeal: (1) Bradley cannot be convicted of theft of contraband (marijuana) because it is a crime to possess the contraband, therefore the state’s case fails as a matter of law; (2) the evidence does not support that Bradley participated as an accomplice in the murder of the victim; and (3) the circuit court erred when it prohibited Bradley from informing the jury that he would automatically be sentenced to life without parole if they found him guilty of the offense.
| ⅞1. Sufficiency of the Evidence: Accomplice Liability
Although Bradley’s sufficiency argument is his second argument on appeal, we address it first due to double-jeopardy concerns. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). Bradley argues that the evidence presented at trial does not support his accomplice convictions. The State responds that Bradley preserved only a portion of the accomplice argument, specifically preserving the issue of whether Bradley “solicited” or “encouraged” Nelson in the commission of the aggravated robbery that resulted in the death of Evon Henderson. Further, the State responds that even if preserved, the record supports his convictions.
When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be con victed based on the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” Ark.Code Ann. § 16 — 89—111 (e)(1)(A) (Repl. 2005). Furthermore, “corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark.Code Ann. § 16-89-111(e)(1)(B). It must be evidence of a substantive nature because it must be directed toward proving the connection of the accused with a crime and not toward corroborating the accomplice testimony. Taylor v. State, 2011 Ark. 10, 370 S.W.3d 503. The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The test is whether, if the testimony of the | ¿accomplice is completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Taylor, 2011 Ark. 10, 370 S.W.3d 503. “Circumstantial evidence may constitute substantial evidence to support a conviction.” Dixon v. State, 2011 Ark. 450, at 9, 385 S.W.3d 164, 171. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. Additionally, the acts, conduct, and declarations of the accused, before or after the crime, may furnish necessary corroboration. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). Further, flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt and may be considered as corroboration of evidence tending to establish guilt. Id.
Our accomplice-liability statute, Arkansas Code Annotated section 5-2-403, provides that
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to commit the offense;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.
(b) When causing a particular result is an element of an offense, a person is an accomplice of another person in the commission of that offense if, acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the particular result;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or lsengaging in the conduct causing the particular result; or
(3) Having a legal duty to prevent the conduct causing the particular result, fails to make a proper effort to prevent the conduct causing the particular result.
Ark.Code Ann. § 5-2-403(a)(l)-(2), (b)(1)-(2) (Repl.2006). Accordingly, one can be an accomplice if he 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. Id.
“Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Under the accomplice-liability statute, a defendant may properly be found guilty not only of his own conduct, but also that conduct of his accomplice; when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both.” Clark v. State, 358 Ark. 469, 476, 192 S.W.3d 248, 253 (2004). There is no distinction between principals and accomplices with regard to criminal liability. Id.
Here, Bradley asserts that the State failed to demonstrate that he was an accomplice to the underlying felony, aggravated robbery, and murder of Evon Henderson. We have held that the required intent when a person is killed in the course of committing a felony, here aggravated robbery, is the intent to commit the felony, and not the intent to commit murder. See Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). Therefore, the elements required for Bradley to be convicted of felony capital murder were that he committed aggravated robbery, and, in the course of or in flight from such robbery, caused the death of a person under circumstances manifesting extreme indifference to the value of human life. See Ark. (Code,, Ann. § 5-10-101 (Repl.2006).
For aggravated robbery, the first required element is the commission of the robbery itself. Ark.Code Ann. § 5-12-103 (Repl.2006). In addition, that person must have also either (1) been armed with a deadly weapon, (2) represented by words or conduct that they were armed with a deadly weapon, or (3) inflicted or attempted to inflict death or serious physical injury upon another. Id.
Turning to the facts of Bradley’s case, we must review the evidence presented at trial. Nelson testified that the night before the incident occurred, he spent the night at Valtorian Bateman’s house, which is located on the same properly as Evon Henderson’s. Nelson testified that, through the window of Bateman’s home, he saw Bradley visiting with Lawrence outside the Henderson home. Bradley came back to the Bateman house to talk to Nelson, and explained to Nelson that Lawrence had five pounds of marijuana. Nelson further testified that he had purchased marijuana from Lawrence on prior occasions. Nelson testified that Bradley stated he wanted to rob Lawrence, and Nelson agreed to go with him. Nelson testified that Bradley gave him a loaded .45 revolver that he took to the Henderson home, and that Bradley took a .22; however, Nelson was unsure if Bradley’s gun was loaded, and the two walked to the Henderson home together. Ed Henderson let them into the Henderson home, and the two men pretended to buy some marijuana from Lawrence. Nelson testified that there was a trash bag on the floor filled with marijuana. Ed Henderson gave Nelson some marijuana to roll into a cigar, Nelson passed the cigar to Bradley, and then Nelson pulled out the gun. Nelson testified that when he pulled his gun out, Ed Henderson jumped up saying |7“not [Bradley], not [Bradley], not [Bradley].” The door adjacent to the room where the robbery was occurring slammed, and the gun went off, firing through the door and killing Ms. Henderson.
Nelson testified that, after the gun fired, he ran out of the Henderson home to Bradley’s car, where Bradley was waiting on him. Nelson also testified that Bradley had grabbed the trash bag of marijuana and brought it to the car. Nelson then testified that the two hid out, and that he spent approximately half of his twenty-four days on the run with Bradley. Nelson testified that he stayed with Bradley at three different hotels, and that at one point Bradley was wearing a wig with a female hair style to disguise himself. Nelson also identified the photos of the scene with scales and marijuana remnants on the floor. Nelson further testified that after fleeing the scene, he received a phone call that Evon Henderson had died. Nelson identified Bradley in court and also testified that he had told the police several false stories before telling the truth about the robbery.
In addition to Nelson’s testimony, the State presented the testimony of two eyewitnesses to the robbery. First, Byron Lawrence testified that on January 2, 2011, Bradley had seen Lawrence purchase several pounds of marijuana from another person and head into the Henderson home with the marijuana. He testified that he was sitting outside the Henderson home in his car with an individual interested in buying marijuana from him when Bradley approached the car and looked in the car to see what was going on. A few minutes later, Bradley walked away, and Lawrence went into the Henderson home with approximately four pounds of marijuana. Lawrence then testified that he put the bag of | ^marijuana in the middle of the floor and finished the transaction. A few minutes after going in the house, Bradley and Nelson arrived and acted as though they were interested in purchasing some marijuana. Lawrence testified that Nelson pulled the gun, and Lawrence told the two men, Bradley and Nelson, to take the marijuana and leave. Lawrence testified that Bradley asked him what was in his pockets, and Lawrence testified that he had nothing in his pockets. According to Lawrence, Bradley demanded that Lawrence empty out his pockets, money, and “to give it up.” Lawrence testified that Nelson had the gun in is face and that he did not know if Bradley had a gun. He then testified that he heard the door slam shut, and the gun went off. Lawrence testified that Nelson took off running, Bradley grabbed the bag of marijuana from the floor, and then “they was gone.” He also testified that it was a surprise Bradley was involved because “he was family” and Lawrence had known him his whole life and also identified Bradley at trial.
Ed Henderson also testified as an eyewitness for the State. He testified that on the day of the incident he was living with his sister, Evon Henderson, in the back room of her house. He also testified that he was in the room with Lawrence where the robbery occurred. He also testified that Lawrence had received a trash bag filled with a large amount of marijuana that day. Henderson testified that Nelson and Bradley came over to the house, and Nelson pulled a gun and said “this is a robbery.” Henderson testified that he responded “[Bradley] what is this here. I don’t believe this,” and Bradley responded “We don’t want you, Ed. We want your nephew.” Henderson also testified that after Nelson fired the shot through the door, Bradley grabbed the bag of marijuana and ran out of the door with it. Henderson testified that |9Bradley stated, “This is what we want, man.” He picked up the marijuana off the floor in one of the unzipped bags, and then said “this is what we want right here.” Henderson also identified Bradley in court.
In addition, the State also presented testimony from Officer Robert Garrett of the Pulaski County Sheriffs Department, who testified he was in charge of the crime scene and found the victim dead, lying face down on the kitchen floor. He also testi fied that there was marijuana spread on the floor where the incident allegedly occurred, as if someone was loading it into something and some fell. Garrett testified that the other investigators at the scene developed Bradley as a suspect and a description of Bradley and his car was broadcast to other law-enforcement agencies and television stations. Flyers were also distributed with Bradley’s photo on them. Bradley’s vehicle was found within the next week near a hotel. Garrett testified that Nelson corroborated that the two had stayed at the hotel during their attempt to evade authorities. At one point during the search, Garrett testified, a witness saw Bradley disguised in a wig and dress.
Finally, Bradley who testified in his own defense, denied knowledge of a robbery plan or involvement in a plan, and also denied having a weapon with him or making demands on Lawrence or Henderson during the robbery. Bradley testified that he took Nelson to the Henderson home that day to purchase marijuana from Lawrence, a known drug dealer. He further testified that as Nelson and Lawrence were negotiating over the purchase price, Nelson pulled out a gun. Bradley testified that he told Ed Henderson that “this have nothing to do with you or me, Unc, just sit down, [and] you know, he got a gun, you know — just |ingive him what he want, you know, nobody would get hurt.” Bradley testified he was aware Lawrence was a drug dealer and that marijuana would be available for purchase; he testified there was a large bag filled with marijuana on the floor. He further testified that he did not stay to see if someone had been shot, but that he immediately fled because he was scared for his life, and not because he had done anything wrong. Bradley also testified that he did not call the police to notify them of the incident, nor did he turn himself in after he knew authorities were looking for him.
After reviewing the record, we hold that there was substantial evidence to support Bradley’s convictions. Here, there is sufficient evidence to support Bradley’s conviction of the underlying felony, aggravated robbery, after eliminating the accomplice testimony of Nelson. Other corroborating evidence presented at trial demonstrates that Bradley and Nelson (1) had the purpose of committing theft with the use of physical force, (2) were armed with a deadly weapon, and (3) caused the death of the victim. See Ark.Code Ann. § 5-12-103. The State offered proof that Bradley led Nelson to the Henderson home, and that Bradley participated in the aggravated robbery. The State also offered proof that Bradley immediately fled with the bag of marijuana and drove away with Nelson. Additionally, after the robbery and murder, the State offered proof that Bradley evaded law enforcement for nearly two months. Both Lawrence’s and Henderson’s testimony corroborated that Bradley was an accomplice to the aggravated robbery. Both testified that Bradley had a long-standing family relationship with them, and that Bradley led Nelson to the Henderson home that day to purchase marijuana or pretended to be interested in purchasing marijuana. Both | n corroborated that Lawrence was a known drug dealer and had large a amount of marijuana arrive the day of the incident. Both witnesses also corroborated that the robbery occurred and that a weapon was used. Moreover, Bradley’s own testimony corroborated that he took Nelson to the Henderson home that day to purchase marijuana, knew there was a large amount of marijuana at the home, and that the robbery occurred. He further admitted a gun was used during the robbery, to fleeing after the gun was fired, and to continuing to flee and evade law enforcement for over two months, while never contacting law enforcement.
In sum, the evidence supports a conclusion that Evon Henderson’s death occurred during the commission of an aggravated robbery under circumstances manifesting extreme indifference to the value of human life. Therefore, we hold that his convictions are supported by sufficient evidence.
II. Theft of Contraband
For his next point on appeal, Bradley asserts that he cannot be convicted of theft of marijuana because it is illegal to possess marijuana. Accordingly, he contends that if he cannot be convicted of the underlying theft, robbery, and aggravated robbery, then he cannot be convicted of capital felony murder. Bradley argues that it is a crime to possess contraband, i.e., marijuana and, as a matter of law, the State cannot prove that he committed the underlying theft because one cannot legally exercise ownership over contraband. Bradley asserts that the facts in his case, do not fall within the parameters of the theft and robbery statutes, thereby invalidating his convictions. Bradley contends that this issue is both an issue of law and an issue of sufficiency of the evidence.
112The State responds that Bradley’s argument is one of sufficiency of the evidence. The State further responds that Bradley failed to preserve the issue, and Ark. Sup.Ct. R. 4 — 3(i) does not mandate a review of the sufficiency of the evidence. We agree with the State that the argument presents an issue of the sufficiency of the evidence.
When “reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in a light most favorable to the State and considers only the evidence that supports the verdict.” Gillard v. State, 366 Ark. 217, 221, 234 S.W.3d 310, 313 (2006). We will affirm a conviction if substantial evidence exists to support it. Id. “Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture.” Id. at 221, 234 S.W.3d at 313.
However, Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides that to preserve a challenge to the sufficiency of the evidence in a jury trial, a motion for directed verdict must be made at the close of the State’s evidence, and at the close of all of the evidence. Ark. R.Crim. P. 33.1(a) (2012); Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008). Failure to present a specific argument in a directed-verdict motion will constitute a failure to abide by Rule 33.1, resulting in a failure to preserve the issue for appellate review. Ark. R.Crim. P. 33.1(c) (2012). “The rationale behind this rule is that ‘when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.’ Without a circuit court ruling on a specific motion, there is nothing for this court to review.” 13Maxwell v. State, 373 Ark. 553, 559, 285 S.W.3d 195, 200 (2008). A general motion merely asserting that the State failed to prove its case is inadequate to preserve the sufficiency of the evidence argument for appellate review. Rounsaville v. State, 2009 Ark. 479, at 7, 346 S.W.3d 289, 293.
At trial, Bradley made a general motion for directed verdict but did not raise the specific issue that the theft of contraband cannot support a theft or robbery conviction. At the close of the guilt phase, defense counsel made the following motion for a directed verdict:
I would like to make a motion for a directed verdict, Your Honor. That the State hasn’t met its burden in proving that my client committed a capital murder. And most definitely so far, Your Honor, I think that the only thing can actually be determined that Mrs. Henderson is indeed deceased.
There was something that went on out there but I don’t think the felony met any type of standards as to actually a felony being perpetrated to make this capital murder case, Your Honor. I don’t think there’s a — there’s enough evidence to make that charge, Your Honor. And there’s definitely not enough evidence to even say that my client — the State is alleging that my client didn’t actually — didn’t kill Ms. Henderson because he didn’t.
And I don’t think there’s been enough evidence to say he even solicited. From all the testimony we heard today there’s nothing even say he solicited Mister — or encouraged or anyway had Mr. Nelson to commit the murder on his behalf or commit the aggravated robbery, Your Honor.
So we don’t think that the State has met its burden and we would request that would be the basis of our motion for a directed verdict.
Here, after examining Bradley’s motion for directed verdict, it is clear that Bradley failed to make a specific objection to preserve his point on appeal. Further, the record fails to demonstrate that Bradley raised this issue at any point during his trial. Accordingly, in the absence of an appropriate objection in the trial court, the issue is not properly preserved for 114appeal. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Therefore, we do not reach the merits of Bradley’s argument.
III. Sentencing
For his final point on appeal, Bradley asserts that the circuit court erred when it prohibited defense counsel from informing the jury that Bradley would be automatically sentenced to life without parole if convicted of capital felony murder. Bradley argues that Arkansas’s “truth-in-sentencing” provision was violated because the jury was not so informed. He further argues that his sentence is erroneous because there is a disparity between his sentence and his co-defendant’s lesser sentence. The State responds that Bradley failed to preserve his “truth-in-sentencing” arguments, and even if preserved, Bradley’s argument is without merit.
At trial the State waived the death penalty, which resulted in an automatic sentence of life imprisonment -without the possibility of parole for Bradley. Ark.Code Ann. § 5 — 10—101(c)(1) (Repl.2006); Ark. Code Ann. § 5-4-602(3)(B)(ii) (Repl.2006). Bradley asserts on appeal that he should have been able to tell the jury that his case was a “life without parole” case, and the jury was not informed of its sentencing power as provided in Arkansas’ truth-in-sentencing provision. Bradley essentially argues that he should have been able to inform the jury before they convicted him, in the guilt phase, that a conviction in his case would result in an automatic life-imprisonment sentence.
The record reflects that Bradley failed to preserve this issue for appeal, as he did not raise this issue until after the guilt phase was over. Failure to object at the first opportunity 11swaives any right to raise the point on appeal. Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994). Because he did not make a timely objection below, this court cannot reach the issue. Further, Bradley argues that his sentence is erroneous because there is a disparity between his sentence and his co-defen dant’s lesser sentence. However, Bradley did not raise this issue below either, and we have held that “[wjhat sentence another defendant has received is not relevant evidence as to guilt, innocence, or punishment.” Robinson v. State, 278 Ark. 516, 517, 648 S.W.2d 444, 444(1983).
Finally, Bradley asserts that even if his argument is not preserved this court can reach the merits and grant relief under Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Wicks sets forth exceptions to the contemporaneous-objection rule that occur when (1) a 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 itself; (2) a trial court errs at a time when defense counsel has no knowledge of the error and thus no opportunity to object; (3) a trial court should intervene on its own motion to correct a serious error; and (4) the admission or exclusion of evidence affects a defendant’s substantial rights. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007). Having reviewed the record, we do not find that any of the Wicks exceptions apply to Bradley’s case.
In compliance with Ark. Sup.Ct. R. 4-3(i), the record has been examined for all objections, motions, and requests made by either, party that were decided adversely to Bradley, and no prejudicial error has been found.
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DONALD L. CORBIN, Justice.
11Appellant, Brandi Kersten, appeals the order of the Ashley County Circuit Court denying class-action certification of her counterclaim for unjust enrichment and violation of various state statutes prohibiting deceptive and unlawful business practices against Appellee, State Farm Mutual Automobile Insurance Company. The general allegation of the counterclaim is that State Farm was unjustly enriched after engaging in a deceptive and unlawful business practice intended to collect unadjudi-cated, potential subrogation claims as debts. Jurisdiction of this interlocutory appeal is properly in this court pursuant to Ark. R.App. P.-Civ. 2(a)(9) (2012) and Ark. Sup.Ct. R. l-2(a)(8) (2012). We conclude that on the record here presented, the circuit court acted prematurely and without due consideration of the law and therefore abused its discretion in denying class certification at the pleading stage of this particular case. We reverse and remand for further proceedings.
We take this opportunity at the outset to reiterate that it is indeed possible for class-action cases to be dismissed at the pleading stage prior to class certification, for example on |2an Ark. R. Civ. P. 12(b)(6) motion to dismiss for failure to state facts upon which relief can be granted. Speights v. Stewart Title Guar. Co., 358 Ark. 59,186 S.W.Sd 715 (2004) (supplemental opinion on denial of reh’g). However, while such a determination is permissible in some cases depending on the facts, it is of course not necessarily permissible in all cases. Foremost Ins. Co. v. Miller Cnty. Cir. CL, 2010 Ark. 116, 361 S.W.3d 805. Indeed, “[t]he propriety of class action status can seldom be determined on the basis of the pleadings alone.” Walker v. World Tire Corp., 563 F.2d 918, 921 (8th Cir.1977). And although Rule 23(b) allows a circuit court to “determine by order” whether a case will be maintained as a class action “[a]t an early practicable time after the commencement of an action,” we agree with the recent observation that dismissal of class allegations at the pleading stage should be done rarely and that the better course is to allow an appropriate period of discovery. Ark. R. Civ. P. 23(b) (2012); see Guzman v. Bridgepoint Educ, Inc., No. 11CV69 WQH (WVG), 2013 WL 593431 (S.D.Cal. Feb. 13, 2013).
The present litigation commenced on June 29, 2011, when State Farm filed a complaint for negligence against Kersten alleging that she was at fault in an automobile accident with State Farm’s insured that occurred on August 8, 2010, on Highway 133 in Crossett, Arkansas. On August 15, 2011, Kersten filed a counterclaim against State Farm alleging that State Farm was unjustly enriched as a result of having engaged in the deceptive and unlawful business practice of causing collection-style letters to be mailed in an attempt to collect unadjudicated, potential subrogation claims as debts. Kersten asserted her counterclaim individually and alleged that State Farm caused the McHughes Law Firm to send |sa letter that referred to State Farm as a creditor and referenced a balance due of $2,969.59 on Kersten’s account. Kersten further alleged that this letter made no mention at all of a subrogation claim or an unadjudi-cated tort claim. Kersten also asserted her counterclaim on behalf of persons similarly situated. Her counterclaim identified two putative classes: a class of similarly situated residents of Arkansas, and a class of similarly situated residents of seventeen states identified as having consumer-protection statutes similar to the Arkansas Deceptive Trade Practices Act (ADTPA).
Prior to filing an answer to the counterclaim, on September 30, 2011, State Farm filed a combined motion to dismiss the counterclaim and the motion to strike the class allegations. State Farm moved to dismiss the counterclaim in its entirety with prejudice, arguing in its brief in sup port that count one of the counterclaim concerning the deceptive trade practice should be dismissed pursuant to Rule 12(b)(6) because the ADTPA does not apply either to insurance activities or to the practice of law, and because the counterclaim was not pleaded with the particularity required by Ark. R. Civ. P. 9(b) for allegations of fraud. Also in its brief in support, State Farm contended that count two of the counterclaim dealing with unjust enrichment should have been dismissed with prejudice because it failed to allege that Kersten conferred any benefit on State Farm. Finally, in its brief in support, State Farm argued that the class allegations should be struck pursuant to Ark. R. Civ. P. 12(f) because it was clear from the counterclaim that Rule 23’s requirements of commonality, typicality, and predominance could not be met.
|4In January 2012, the circuit court held a hearing on State Farm’s motion to dismiss and motion to strike. As requested, Kersten and State Farm filed additional briefs with the circuit court. On May 29, 2012, the circuit court entered the order appealed in this case. The particular language used in the order is essential to resolution of this appeal, and the order is therefore quoted below in its entirety:
ORDER OF DISMISSAL
The Court dismisses Kersten’s counter-claim against the Plaintiff insofar as it relates to the McHughes Law Firm and the Court further finds that Ker-sten’s request for class certification should be denied for the reasons stated in State Farm’s motion. Thus far, Ker-sten’s attorney has not responded to the Court’s February 16, 2012, letter asking Kersten to submit by affidavit support for her damage claim. The Court wanted to see if Kersten’s damage claim either had any factual basis both for purposes of class certification and going forward with her personal claim against State Farm. Kersten’s failure to submit an affidavit as the Court requested certainly furnishes the Court ample reason to be skeptical that Kersten herself would be a typical class member or an appropriate class member. The Court at this point will allow Kersten’s personal claim against State Farm to remain, but denies her request for class certification.
Kersten’s personal claim is set for pretrial on July 13, 2012, at 10:00 a.m. in the Ashley County Courthouse, Hamburg, Arkansas.
The Clerk shall mail a copy of this Order to all attorneys of record.
ORDERED this 25th day of May, 2012.
Although the circuit court’s order is titled “Order of Dismissal,” the only dismissal granted in the body of the order is the counterclaim “insofar as it relates to the McHughes Law Firm.” As the McHughes Law Firm was not a party to this lawsuit, the order’s dismissal as to the McHughes Law Firm has no effect. There is no other dismissal granted in the order, as the court was clear to point out that it would “allow Kersten’s personal claim against State Farm to remain, but denie[d] her request for class certification.” We therefore agree with 1 ¿Kersten that the ruling allowing her personal claim to proceed is tantamount to a denial of State Farm’s motion to dismiss. For purposes of this interlocutory appeal then, we are left with the circuit court’s ruling that Kersten’s “request for class certification should be denied for the reasons stated in State Farm’s motion.” Thus, the order being appealed in this case is not a dismissal of the claims for deceptive trade practice and unjust enrichment, and it is not a finding that the class allegations should be struck. Rather, the order is an outright denial of class certification, which, as previously noted, is appealable to this court as an interlocutory appeal pursuant to Rules 2(a)(9) and l-2(a)(8).
The order appealed clearly states that class certification was denied “for the reasons stated in State Farm’s motion.” The “reasons stated in State Farm’s motion” were that the Rule 23 factors of typicality, commonality, and predominance had not been sufficiently alleged or established. For reversal, Kersten contends that the circuit court abused its discretion in denying class certification at the pleading phase of this case, and she advances five separate arguments as to how the abuse of discretion occurred; but the argument that resolves this appeal and requires reversal is the one that corresponds to the basis on which the circuit court denied class certification, namely the Rule 23 factors of commonality, predominance, and typicality.
State Farm argued in its motion to strike the class allegations that, because the consumer-protection laws of the seventeen states identified in the counterclaim as substantially similar to the ADTPA were not in fact substantially similar, the counterclaim did not allege a common, predominate question of law. According to State Farm, because the state statutes |fidiffer with respect to their exemptions for the practice of law and for insurance activities, the application of these various state-consumer-protection laws would constitute preliminary individual issues that would defeat the predominance requirement. State Farm argued further in its motion that Kersten’s injury was not typical of the putative class because she did not allege that she conferred a benefit on State Farm by remitting payment of the amount sought in the letter. Kersten argues on appeal that the circuit court erred in adopting State Farm’s arguments as correct because they are not consistent with case law from this court.
We agree. We first consider the typicality requirement. This court recently addressed this requirement and reiterated that the focus of the typicality requirement is on the conduct of the alleged wrongdoer giving rise to the claim rather than on the injury sustained from the conduct. This court stated as follows:
The typicality requirement is stated in Rule 23(a): “One or more members of a class may sue or be sued as representative parties on behalf of all only if ... (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Ark. R. Civ. P. 23(a). The typicality requirement is satisfied if the class representative’s claim arises from the same wrong allegedly committed against the members of the class. FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008). Thus, a representative’s “claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the representative’s] claims are based on the same legal theory.” Id. at 476, 277 S.W.3d at 584 (quoting Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 274, 954 S.W.2d 898, 904 (1997) (citing Herbert B. Newberg, Newberg on Class Actions § 3.13, at 166-67 (2d ed.1985))). Moreover, “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.” Id. at 476, 277 S.W.3d at 584. Thus, when analyzing the factor of typicality, this court focuses upon the defendant’s conduct and not on the injuries or damages suffered by the plaintiffs. Id.
DIRECTV, Inc. v. Murray, 2012 Ark. 366, at 13-14, 423 S.W.3d 555, 564.
17Kersten’s counterclaim alleges that she received a collection — style letter issued at State Farm’s request that represented an unadjudicated, potential subrogation claim as a debt she owed to State Farm as her creditor. The counterclaim thus alleged that State Farm’s acts and business practices in connection with these purported collection efforts were deceptive in violation of the law. Likewise, the counterclaim alleged upon information and belief that State Farm engaged in similar deceptive and unlawful conduct with respect to the proposed class. The counterclaim then named two putative classes, a multistate class and an Arkansas class, “who have been subject to State Farm’s deceptive acts and business practices in an attempt to recover on its unliquidated, potential tort claim and who remanded payment or incurred other expenses as a result of [State Farm’s] deceptive acts and business practices.” Kersten alleged that she incurred monthly expenses associated with hiring a credit — monitoring service. We conclude that these allegations, at this early stage of the pleading phase, sufficiently plead a course of State Farm’s conduct that is typical of both Kersten and the class. And we conclude that the circuit court therefore abused its discretion in adopting the flawed reasoning State Farm asserted in its motion as to the typicality requirement being subject to determination according to the injuries sustained by the alleged wrongful conduct.
We next consider the requirements of commonality and predominance. Rule 23(a)(2) requires in pertinent part that a representative party may sue on behalf of a class only if there are “questions of law or fact common to the class.”
Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting IsQnly individual members.” All questions of law or fact raised in the litigation need not be common. Faigin v. Diamante, 2012 Ark. 8, 386 S.W.3d 372. The test for satisfaction of the commonality requirement is that there need be only a single issue of law or fact common to all members of the class. Id. “When the party opposing the class has engaged in some conduct afflicting a group that gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.” Id. at 5, 386 S.W.3d at 376. The starting point in examining the predominance requirement is whether a common wrong has been alleged against the defendant, or in this case the counter-defendant, State Farm. See ChartOne, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008). If a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement of Rule 23 is satisfied even if the circuit court must subsequently determine individual damage issues in bifurcated proceedings. Id.
The common questions alleged in Kersten’s counterclaim are as follows:
(a) whether Counter-Defendant’s business practice of sending or causing to be sent collection style letters which characterized its unadjudicat-ed insurance subrogation claim as a liquidated debt which must be immediately paid is deceptive, unfair and/or unconscionable and violates the ADTPA;
(b) whether Counter-Defendant’s business practice of sending or causing to be sent collection style letters which characterized its unadjudicat-ed insurance subrogation claim as a liquidated debt which must be immediately paid is deceptive, unfair and/or unconscionable and violates the consumer protection statutes of the Multi-State Class states;
(c) whether Claimant and the proposed Classes are entitled to recover actual damages as a result of Counter-Defendant’s deceptive, unfair and/or | ^unconscionable business practices, and if so, the proper measuring of such damages;
(d) whether Counter-Defendant has been unjustly enriched by its deceptive acts and practices;
(e) whether Counter-Defendant[’]s acts and business practices, set forth herein negatively impact the public interest; and
(f) whether Claimant and the proposed Classes are entitled to injunctive relief or other equitable relief, and if so, the nature and scope of such relief.
Given that at least the first two of these alleged common questions are premised on State Farm’s conduct in causing to be sent to the class these letters characterizing the unadjudicated, potential subrogation claim as a liquidated debt, it is clear that the counterclaim alleges “some conduct afflicting a group that gives rise to a cause of action.” Diamante, 2012 Ark. 8, at 5, 386 S.W.3d 372, 376. Our law is now well settled that the mere fact that individual issues and defenses may be raised by the defendant cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing that must be resolved for all class members. DIRECTV, 2012 Ark. 366, 423 S.W.3d 555 (citing FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008)). We conclude that the counterclaim sufficiently pleads a common question so as to survive a denial of class certification at this stage of the case. We note that our conclusion with respect to receipt of these collection-style letters is consistent with Savino v. Computer Credit, Inc., 173 F.R.D. 346 (E.D.N.Y.1997), aff'd in part and vacated in part, 164 F.3d 81 (2d Cir.1998) |in(citing cases finding that commonality was satisfied when class members asserted a claim under the Fair Debt Collection Act and were sent collection letters with similar characteristics).
As for State Farm’s argument that the laws of the seventeen states are not substantially similar and therefore defeat commonality and predominance, we note that this court has previously rejected the argument that the potential application of the law of thirty-nine states relative to novation would splinter a class action into individual lawsuits such that the requirements of commonality and predominance would be defeated. Sec. Benefit Life Ins. Co. v. Graham, 306 Ark. 39, 810 S.W.2d 943 (1991). In addition, this court has relied on Graham to affirm class certification in a case where the application of laws from various states may have been required in determining the allegations of breach of express warranty, breach of implied warranty, a violation of the Magnu-son-Moss Warranty Act, unjust enrichment, fraudulent concealment, damages, and restitution. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). We conclude, therefore, that by alleging the preliminary common conduct of State Farm in causing the collection-style letters to be sent, the counterclaim here has sufficiently alleged a preliminary, common question so as to survive a predominance challenge at this stage of the pleadings, even in light of the multistate class.
In addition, this court has recognized that a bifurcated process of certifying a class to resolve preliminary, common issues and then decertifying or dividing the class into subclasses is consistent with Rule 23. DIRECTV, 2012 Ark. 366, at 18, 423 S.W.3d 555, 566 (quoting Farmers Union Mut. Ins. Co. v. Robertson, 2010 Ark. 241, at 17, 370 S.W.3d 179, 189) (“We J^adhere to our well-settled precedent that allows class actions to be certified first when there are predominating threshold issues of liability common to the class, even though there may be individualized issues that come later requiring either the creation of subclasses or decertification altogether.”). Thus, if, as the case develops below, the circuit court sees that a common question of law or fact does indeed exist and it would be beneficial to first certify a class action and then later either create subclasses or decertify, that may well occur and may be consistent with Rule 23, but that possibility does not defeat class certification at this stage. See id. We note that our conclusion is consistent with that of at least one other jurisdiction:
However, at this time, on State Farm’s motion to strike and dismiss, it does not appear beyond doubt that Plaintiffs cannot establish an actionable class action lawsuit. See Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir.1997). For example, Plaintiffs could possibly limit the multi-state class action to only include those states without conflicts of law, or possibly create a manageable number of sub-classes. Currently, it is unclear what state laws will be involved, or what claims will ultimately remain after the completion of class discovery.
Rios v. State Farm Fire & Cas. Co., 469 F.Supp.2d 727, 741 (S.D.Iowa 2007).
In summary, we conclude that the circuit court acted without due consideration of this court’s foregoing case law on typicality, commonality, and predominance and therefore abused its discretion in prematurely denying class certification at the early pleading stage of this case. We therefore reverse and remand for further proceedings to be directed at the circuit court’s discretion according to Rule 23.
We are mindful that the circuit court did not engage in an analysis of all six Rule 23 factors required for class-action certification, and we cannot, therefore, do as Ker-sten requests | l2and conclude for the first time on appeal that she has made a prima facie showing of all six factors. In addition, because the circuit court denied class certification outright rather than granted the motion to strike class allegations, there is no need to address Kersten’s argument that the circuit court failed to apply the proper standard under Rule 12(f) to the motion to strike. Finally, our reversal on the circuit court’s stated grounds renders it unnecessary to address Kersten’s remaining arguments, including the timeliness of her affidavit.
Reversed and remanded. | [
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JOHN MAUZY PITTMAN, Judge.
11 This is a case involving the mineral rights to 220 acres of property in Van Burén County. The appellants are the Longing Family Revocable Living Trust and Longing Hunting Club, LLC (collectively, the Longings), and they own title to the surface of the property. The Longings filed a declaratory-judgment action against appellees Danny Snowden, Sheila Snow-den, Cenark Oil & Gas Company, and Tri. Con Investment, LLC, ^requesting a judgment against the defendants for title in the minerals. Other parties were brought in by means of amended complaints, cross-complaints, and third-party complaints. After a bench trial, the Van Burén County Circuit Court entered an order in favor of the defendants, thus denying the Longings’ claim to the mineral rights. We affirm.
Background and Procedural History
In March 1994, the Snowdens acquired title to the surface and an undivided one-half interest in the minerals of a 220-acre tract in Van Burén County. In August 1994, the Snowdens conveyed by warranty deed all of their mineral interests to Ce-nark, a company they controlled. In August 1995, they conveyed the surface estate to Tri.Con by warranty deed. This deed did not contain a mineral reservation. In 2000, Tri.Con conveyed the land to the Longing Trust by general warranty deed. In June 2003, the Longing Trust executed an oil-and-gas lease to New Century Production, and in March 2004, the Longing Trust conveyed the property to Danny G. Longing, who, in turn, quitclaimed the land to the Longing Hunting Club, LLC.
Cenark conveyed its mineral interest in the property back to the Snowdens in November 2004. In February 2005, the Snowdens executed an oil-and-gas lease to JRE Investments. This lease involved several tracts of land, totaling approximately 1,500 acres. In January 2005, New Century assigned its oil and gas lease to SEECO. JRE assigned its interest in the lease from the Snowdens to Chesapeake Exploration, LLC, in September 2005. Chesapeake assigned its interest under the lease to BP America Production Company |sin September 2008. In May 2006, the Snowdens conveyed their mineral interests to JayJon, Inc.
In December 2008, the Longings filed this suit, claiming title to all the minerals by virtue of the after-acquired title statute, ArkCode Ann. § 18-12-601 (Repl.2003), and the mineral deed from Cenark to the Snowdens in 2004. They named the Snow-dens, Cenark, and Tri.Con as defendants. The Longings asserted that by application of the doctrine of after-acquired title and estoppel by deed, title to the minerals passed from the Snowdens to the Longings immediately upon recording the 2004 mineral deed from Cenark to the Snowdens. Contemporaneously with the filing of the complaint, the Longings also filed a notice of lis pendens.
In their answer, the Snowdens, Cenark, and Jayjon contended it was not their intent to convey the mineral interest and that the deeds should be reformed, but their prayer for relief did not ask for reformation. Chesapeake and BP answered, counterclaimed to quiet title and have the Longings’ lease declared null and void, and cross-claimed against the Snow-dens for breach of warranty of title. The Snowdens filed a cross-complaint against Tri.Con asking for reformation of their deed.
On December 6, 2010, the Longings filed a motion to dismiss the Snowdens’ cross-complaint against TrLCon on the basis that the Snowdens had not obtained service of the cross-complaint within 120 days. On December 17, 2010, the Longings filed a motion | .¡seeking to voluntarily dismiss their claims against TrLCon. The circuit court granted the two motions by separate orders entered on January 6, 2011.
The Snowdens sought and were granted permission to file a third-party complaint against Tri.Con. The third-party complaint sought to reform the deed between the Snowdens and Tri.Con on the basis of mutual mistake.
The Circuit Court’s Ruling
The case was tried to the circuit court on March 9, 2011. The court entered its written order on February 9, 2012. The court noted that its decision and inquiry was limited by this court’s then-recent decision in Mauldin v. Snowden, 2011 Ark. App. 630, 386 S.W.3d 560, which involved many of the same parties, conveyances, and transactions as in the present case. The court found that neither the Snowdens nor Tri.Con intended to transfer the mineral interest in the August 1995 transaction because the Snowdens did not own the mineral rights at that time, and that any interest conveyed was by mutual mistake and the deed should be reformed to reflect reservation of the mineral interest. Therefore, the court concluded that the doctrine of after-acquired title did not apply. The court also affirmed the oil-and- gas lease from the Snowdens to Chesapeake. The court then went on to summarily dismiss all of the Longings’ other claims and arguments.
The Longings filed their notice of appeal on March 8, 2012. On March 9, 2012, they filed a motion to reconsider, arguing that the claim for reformation was barred by the statute of limitations. The Longings explicitly stated that the purpose of the motion was to ensure that their limitations arguments were preserved for appeal. The circuit court denied their ^motion by order entered on March 30, 2012. An amended notice of appeal was filed on April 10, 2012.
Standard of Review
The standard of review on appeal in reformation cases is de novo. Stalter v. Gibson, 2010 Ark. App. 801, 379 S.W.3d 710. But, we do not reverse unless the circuit court’s findings were clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all of the evidence, is left with a definite and firm conviction that a mistake has been committed. L & L Energy Co. v. Chesapeake Exploration, LLC, 2010 Ark. App. 422, 379 S.W.3d 42. Disputed facts and determinations of credibility are within the province of the fact-finder. Id. A circuit court’s conclusions of law, however, are given no deference on appeal. Id.
Discussion
The circuit court did not err in granting reformation of the Snowden-Tri. Con deed. Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence the agreement. Lawrence v. Barnes, 2010 Ark. App. 231, 374 S.W.3d 224; Lambert v. Quinn, 32 Ark.App. 184, 798 S.W.2d 448 (1990). A mutual mistake is one that is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. Lawrence, supra.
IsThe Longings assert that there is no mutual mistake because the Snowdens acted unilaterally in having the mineral rights conveyed back to them by Cenark in 2004. We disagree because the mutual mistake necessitating reformation occurred in the 1995 transaction between the Snowdens and Tri.Con because that deed failed to properly include a reservation of the mineral interest. Danny Snowden and Jim Hawks, one of the co-owners of Tri. Con, both testified that they did not intend for the minerals to be included in the August 1995 conveyance by which Tri.Con acquired the property. Snowden also testified that no consideration was paid for the mineral rights and that he had continued to pay the taxes on the mineral rights. Hawks also testified that he was more interested in the timber rights than the mineral rights at the time of the conveyance. Whether a mutual mistake warranting reformation has occurred is a question of fact. Stalter, supra; Lambert, supra. We cannot say that the circuit court was clearly erroneous in finding that a mutual mistake had occurred. There was, contrary to the Longings’ argument, no need to reform all of the deeds and conveyances subsequent to the Snowden conveyance to Tri.Con because, once that deed was reformed, there was no evidence that any of the deeds were not as intended by the parties to those deeds. In other words, there was no evidence of any other mistake in the chain of title. Because of the reformation, there were no mineral inter ests to pass under the after-acquired title statute. Mauldin, supra.
l7There is no merit in the Longings’ fourth argument that their filing of a notice of lis pendens somehow bars the assertion of the equitable remedy of reformation. The Longings cite no authority for the proposition that a notice of lis pendens precludes the assertion of any proper defenses to that litigation. It has been repeatedly held that we will not consider arguments unsupported by convincing argument or sufficient citation to legal authority. Omni Holding and Development Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). Moreover, the purpose of the lis pendens statute is simply to provide constructive notice that a lawsuit affecting title to real property has been filed. Ashworth v. Hankins, 241 Ark. 629, 408 S.W.2d 871 (1966); Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943). The notice under the statute does not establish any lien, or have any application as between the parties, but gives effect to the rights ultimately established by a judgment in the case. Elliott v. Elliott, 252 Ark. 966, 482 S.W.2d 123 (1972). Because the notice does not have any application between the parties, the mere filing of a notice was ineffective to create any vested rights that would preclude the assertion of a claim for reformation.
The Longings argue as part of their fifth and sixth points that the circuit court erred because reformation was not pled against them. The short answer is that the Snowdens did raise the issue in their answer to the Longings’ complaint. Reformation of an instrument may be properly pled in an answer or in a cross-complaint. See Realty Investment Co. v. Higgins, 192 Ark. 423, 91 S.W.2d 1030 (1936); Wiegel v. Moreno-Burkham Construction. Co. 153 Ark. 564, 240 S.W. 732 (1922). Also, Danny Snowden testified that he was asking the court to reform the deed to show that the mineral rights were reserved. There was no | ^objection to this testimony. Under Arkansas Rule of Civil Procedure 15(b), where evidence is introduced without objection on an issue not raised in the pleadings, the pleadings will be deemed to be amended to conform to the proof. See Neste Polyester, Inc. v. Burnett, 92 Ark.App. 413, 214 S.W.3d 882 (2005). Reformation may also be a preliminary step for further relief. Hampton School District No. 1 v. Phillips, 251 Ark. 90, 470 S.W.2d 934 (1971); Martin v. Hempstead County Levee District No. 1, 98 Ark. 23, 135 S.W. 453 (1911). Here, reformation was a preliminary step to the circuit court’s ultimate determination of the Longings’ complaint for declaratory judgment, which the Longings have recognized.
Relatedly, the Longings also assert that the Snowdens’ failure to include a prayer for reformation in their answer is fatal. However, the Arkansas Supreme Court has held that no specific prayer for reformation is necessary. Troupe v. Ancrum, 146 Ark. 36, 225 S.W. 9 (1920). A court of equity may fashion any reasonable remedy justified by the proof. See Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992); Keith v. Barrow-Hicks Extensions of Water Improvement District No. 85, 275 Ark. 28, 626 S.W.2d 951 (1982); Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W.2d 466 (1974).
According to the Longings, Tri. Con is not a proper party because it was dissolved many years prior to this action being filed. This is of no significance because, although dissolved, Tri-Con’s corporate existence could continue indefinitely for the limited purpose of defending the third-party complaint filed by the Snow-dens because the transaction occurred before Tri.Con’s dissolution. See Ark.Code Ann. §§ 4-26-1103 to -1104 (corporations), 4-32-903 (limited liability companies) (Repl.2001).
IflThe Longings’ arguments as to the statute of limitations, laches, and waiver barring the action for reformation likewise fail. They cannot assert those affirmative defenses because they filed the original complaint for declaratory judgment; as such, they were not responding to a complaint, counterclaim, or cross-complaint, and therefore cannot assert affirmative defenses. Kulbeth v. Purdom, 305 Ark. 19, 22, 805 S.W.2d 622, 623 (1991).
Affirmed.
GLADWIN, C.J., and WALMSLEY, J., agree.
. Danny Snowden died on October 20, 2011, after the entry of the judgment and filing of the notice of appeal. The Longings filed motions for revivor and for substitution of Sheila Snowden as personal representative of Danny Snowden’s estate. The circuit court granted the motion for revivor on March 14, 2012, and on April 2, 2012, entered an order substituting Sheila Snowden in her capacity as personal representative of Danny Snowden’s estate as a defendant.
. The Longings later amended their complaint to add Chesapeake, Jayjon, and BP as defendants.
. The Cenark conveyance of the mineral interest back to the Snowdens, which the Longings assert triggered the application of the after-acquired title statute, was the same document the plaintiffs in Mauldin contended triggered the application of the doctrine in that case. Likewise, the Snowdens’ conveyance of the mineral interest to JayJon, Inc., was also involved in Mauldin. | [
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CLIFF HOOFMAN, Justice.
11 Petitioner Daniel Pedraza is charged with capital murder, and the State is seeking the death penalty. Pedraza has filed a petition for writ of certiorari asking this court to order the Drew County Circuit Court to grant a continuance of his trial. Because Pedraza requests extraordinary relief, our jurisdiction is pursuant to Arkansas Supreme Court Rule 12(a)(3). We deny the petition.
On March 2, 2012, Pedraza, without counsel, made his first appearance in the Drew County Circuit Court and was held without bond pending charges of capital murder. He was charged with capital murder as provided in Arkansas Code Annotated section 5-10-101 (Supp.2011) and permitting the abuse of a minor as provided in Arkansas Code Annotated section 5-27-221 (Repl.2006) by felony information on March 20, 2012. Pedraza appeared in circuit court for formal arraignment on April 2, 2012. Steve Porch, a local public defender, was ^appointed by the court to represent Pedraza. At that hearing, he entered a plea of not guilty and requested a jury trial. The court gave Porch until April 18 to identify death-qualified co-counsel, and it scheduled an omnibus hearing for May 7. The court informed the parties that it would “endeavor to try this at the end of the summer.”
On April 9, 2012, Jeff Rosenzweig, appointed by the Arkansas Public Defender Commission, entered his appearance as lead counsel for Pedraza. Thereafter, Porch inquired of the court as to whether both he and Rosenzweig needed to be at all pretrial hearings. The court, by letter, informed the parties that both death-qualified defense attorneys were required to be present at all stages of the proceedings. On April 20, 2012, Porch filed a motion to substitute Patrick Benca as counsel, and Benca filed an entry of appearance.
At the May 7 hearing, Rosenzweig and Benca appeared on behalf of Pedraza and asked the court to continue the omnibus hearing for thirty days. The court granted that request and set the next court date for June 11. At the June 11, 2012 hearing, the defense informed the court that it had received the autopsy report and a sizeable amount of discovery from the State within the last week. Although the defense did not anticipate arguing that Pedraza was incompetent to proceed with trial or that he had a mental disease or defect that would impact the issue of culpability, it asked for two months to allow an expert to examine Pedraza for mitigation purposes. The court declined this request and ordered the defense to identify experts, including those for purposes of mitigation, and the substance of their testimony | ¡¡within thirty days. Additionally, the court set a trial date of October 15, 2012, with the expectation that the trial would take two weeks. Rosenzweig indicated that he had another trial tentatively scheduled for the first two weeks of October, to which the court responded that its setting was first over a tentative scheduling and “would prevail.” Thereafter, Benca stated that he had a two-week death-penalty trial scheduled to begin October 8 in Benton County. The court noted that it “would love to have [Benca] in this courtroom, but they’ll have to find someone else.” Rosenzweig objected on the basis that Benca had indicated he had a conflict and that it would be inappropriate to substitute another attorney at the last minute. The court noted that it would wait to see if an actual conflict occurred and that it would possibly contact the circuit judge in Benton County to discuss scheduling matters.
The court entered a written order on June 13, 2012, setting the case for jury trial on October 15, 2012, and setting a pretrial hearing for July 10. The order noted that if the trial date was inconvenient to witnesses or counsel, the court was to be promptly notified and the case would be reset for October 22, 2012. Benca sent a letter to the court stating that his October 8 trial was likely to proceed and requesting that the court consider the alter nate October 22 date. On June 21, 2012, the court entered an amended order setting the trial for October 22, 2012, to accommodate Benca’s conflict. Benca sent another letter to the court on June 26, 2012, asking the court to consider continuing the trial until the first part of 2013. Benca informed the court that he would like to stay on the case but that due to his other scheduled trial in October 2012, he could not effectively represent Pedraza if a continuance was not granted. A letter from the court, filed of record on July 2, 2012, stated,
|/This Court, based upon this record, has no reason to believe that Mr. Pedraza’s defense would be prejudiced by trying his case as scheduled. Normally cases do not get better with age.
On July 6, 2012, Pedraza filed a notice of objection to trial setting and motion for continuance, arguing that Benca never consulted with lead counsel prior to accepting the October 22 date; that Benca’s two-week trial in Benton County, scheduled immediately prior to the October 22 setting, would severely limit his participation in advance of Pedraza’s trial; and that due to the complexity of the case and the fact that discovery was not yet completed, it would be nearly impossible to go to trial in October. On that same date, George “Birc” Morledge filed a motion to be substituted as counsel to relieve Benca. Because Morledge would not admit that the substitution would not cause a delay in the October 22 trial setting, the court refused to relieve Benca and substitute Morledge. On July 20, 2012, Pedraza filed a renewal of his motion to substitute counsel, clarifying that Morledge would have no actual conflict with the October 22 trial setting but that the defense as a whole would not have enough time to adequately prepare.
On September 10, 2012, Pedraza was again before the court at a pretrial hearing. The court granted the motion to substitute Morledge for Benca. Defense counsel again requested a continuance, citing trouble obtaining all of Pedraza’s military records. Defense counsel asserted that Pedraza had spent a year in combat in Iraq with the National Guard and that those records were necessary for mitigation purposes. After hearing argument of counsel, the court ordered Pedraza’s mitigation investigator, Tyler Green, to take the stand and testify about what steps he had taken to acquire the military records. Rosenzweig asked that Green’s testimony be taken ex parte, as Green is a member of the defense team, but the court denied | sthat request. Green testified that he had acquired some of Pedraza’s military records from the Crossett National Guard Armory but that he had been unsuccessful in obtaining Pedraza’s military medical records. The court denied the motion for a continuance without prejudice.
On September 27, 2012, Pedraza filed a renewal of his motion for continuance under seal. He argued that the October 22 trial date was six months from his first court appearance wherein he was represented by counsel; that at least a year was necessary to prepare for trial due to the complexity of the case; that his case in particular posed specific issues necessitating a continuance, because of his status as a Mexican national, the cultural and language barriers involved, and the fact that the majority of his family, including his mother and father, did not speak English and lived in Mexico; that the defense had been hampered by personnel issues regarding who would serve as counsel; that investigation into Post Traumatic Stress Disorder (PTSD) as a possible mitigator was hampered without access to Pedraza’s military medical records; and that the Arkansas State Crime Lab had still not provided all relevant discovery to the defense.
Pedraza maintained that despite diligent efforts, his defense counsel needed additional time to prepare, that significant work remained to be completed, and that under no circumstances could the defense be prepared to effectively represent Pe-draza for a trial on October 22. He asked that he be given more time to develop mitigation through evaluation by mental-health experts. Moreover, Pedraza asserted that once his defense team had identified witnesses for mitigation purposes, including family members who lived in Mexico, it would take at least four months to secure the proper documentation and approval to have those family members travel to Arkansas to testify. Attached to the motion were several affidavits and declarations in support of granting a continuance, including a letter from the | fiConsul General of Mexico; a declaration from a Texas criminal-defense attorney who tried death-penalty cases; an affidavit of Dr. James Walker, a clinical neuropsychologist and forensic psychologist, who stated that he had begun an evaluation of Pedraza but that his work was not yet finished and would take additional time; a declaration of another physician; and an affidavit of Alicia Amezcua-Rodriguez, a mitigation investigator with experience in capital cases involving Mexican nationals. Pedraza asked the court to grant a reasonable continuance for his defense team to complete its investigation and to prepare for trial.
The court entered an order on September 27, 2012, finding that there was no sound legal reason not to allow the State to review and respond to the motion for continuance that had been filed under seal. However, the court withheld one declaration “for the time being” but noted that nothing in it revealed information not already known to all counsel. The court found that nothing presented by Pedraza supported a “threshold finding that a continuance would furnish a reasonable possibility that mitigators would be uncovered.” Specifically, the court found that the defense had “furnished no facts establishing [Pedraza] has spent any significant part of his life in Mexico” such that an investigation there would be necessary.
Another hearing was held on the renewed motion for continuance on October 1, 2012. The court informed the defense that it would need to supplement its previous motion with facts in the record to establish that the continuance was being sought to pursue the reasonable possibility of helpful discovery, such as mitigation. Specifically, the court asked for evidence as to whether PTSD was a viable mitigation pursuit. The court focused on whether Pedraza could prove that he was in the military, that he had served in Iraq, and that he had |7not withheld authorization for the release of military information to impede his own defense. The defense presented evidence of Pedraza’s military service and asked to be able to present additional evidence ex parte so as not to violate attorney-client privilege. The court denied the motion to hear additional evidence ex parte, found that Pedraza had failed to make the requisite factual showing, and concluded the hearing.
Thereafter, Pedraza filed a notice of appeal and intention to seek a writ of certio-rari. He filed the instant petition on October 5, 2012. We took the petition as a case, ordered briefing on the petition, and stayed the trial so that we could consider Pedraza’s arguments.
In support of his petition, Pedraza acknowledges that the relief he requests, for this court to order a circuit court to grant a continuance, is unprecedented. Howev er, Pedraza maintains that because of the special circumstances of this case — a complex death-penalty case slated for trial merely six months after the defendant was afforded the benefit of counsel — this court should grant relief. He contends that the circuit court clearly abused its discretion in denying a continuance under the circumstances and that the remedy of appeal would be inadequate. Pedraza asserts that a failure to provide sufficient time to prepare for trial in a death case implicates the rights of due process under the Fourteenth Amendment, effective assistance of counsel under the Sixth Amendment, and his rights pursuant to the Eighth Amendment. Pedraza maintains that the circuit court’s denial of a continuance is more egregious in this particular case, due to cultural and language barriers and the difficulty acquiring Pedraza’s military records. Ultimately, Pedraza asks this court to grant his petition and provide guidelines for the circuit court in using its discretion.
|sThere are two requirements that must be satisfied in order for this court to grant a writ of certiorari. Ark. Pub. Defender Comm’n v. Pulaski Cnty. Circuit Court, 2010 Ark. 224, 365 S.W.3d 193. The first requirement for a writ of certiorari is that there can be no other adequate remedy but for the writ of certio-rari. Id. Second, a writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Id. Cer-tiorari is not to be used “to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority.” Allen v. Circuit Court of Pulaski Cnty., 2009 Ark. 167, at 11, 303 S.W.3d 70, 76. This court has held that the writ of certiorari may not be used as a substitute for an appeal and that this court cannot review cases in a piecemeal fashion. Conner v. Simes, 355 Ark. 422, 429, 139 S.W.3d 476, 480 (2003).
Here, Pedraza is asking this court to issue the writ ordering the circuit court to allow the defense more time to prepare for trial. Under our rules of criminal procedure, a circuit court shall grant a continuance only upon a showing of good cause and only for as long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. Ark. R.Crim. P. 27.3 (2011). Ordinarily, when we review the denial of a continuance on appeal, we apply an abuse-of-discretion standard and require a showing of prejudice by the defendant. Green v. State, 2012 Ark. 19, 386 S.W.3d 413. Moreover, when a motion to continue is based on a lack of time to prepare, we consider the totality of the circumstances. Id.
|gWe conclude that Pedraza is not entitled to a writ of certiorari in this instance because he clearly has another adequate remedy at law, an appeal. This court has addressed the denial of a continuance on appeal in capital cases on many occasions, including those where a sentence of death has been imposed. See Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007); Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); see also Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979) (holding that the trial court abused its discretion in not granting a continuance so that the defendant could acquire records and testimony regarding his mental state). Moreover, certiorari is not a vehicle to review matters that are within the trial court’s discretionary authority. Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008). Because a trial court’s decision whether to grant a motion for continuance is a matter well within the court’s jurisdiction and discretion, a writ of certiorari cannot lie to correct any perceived error in the court’s ruling.
Nevertheless, Pedraza maintains that the remedy of appeal is not adequate because if he is forced to trial before his defense is properly prepared, he will suffer irreparable harm. Specifically, he asserts that both direct testimony by defense witnesses and cross-examination of State witnesses during the first trial, which may be flawed by lack of information or a full understanding of the case, could be admissible in any retrial under Arkansas Rule of Evidence 801(d)(1) (2012). However, the concern posited by Pedraza applies to every criminal case reversed on appeal and remanded for retrial. Here, had Pedraza been forced to trial on October 22, 2012, been convicted, and then appealed the denial of his motion for continuance, this court would have addressed whether the circuit court abused its discretion | inin denying the continuance. Because Pedraza cannot demonstrate that he is without an adequate remedy in this case, we must deny his petition for writ of certiorari.
Notwithstanding, this court has repeatedly acknowledged that “death is different.” See Wertz v. State, 373 Ark. 260, 283 S.W.3d 549 (2008) (per curiam); Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003); Am. Civil Liberties Union of Ark, Inc. v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), overruled on other grounds by State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). Consequently, defense counsel have an obligation to conduct a thorough investigation into issues relating to both guilt and penalty, including investigation “to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Wiggins v. Smith, 539 U.S. 510, 524,123 S.Ct. 2527,156 L.Ed.2d 471 (2003) (citing with approval the ABA Guidelines for the Appointment and Performance of the Counsel in Death Penalty Cases); see also Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Thus, in light of the unique demands of cases involving the death penalty, we ask the Supreme Court Committee on Criminal Practice to consider whether changes should be made to Arkansas Rule of Criminal Procedure 27.3.
Writ of certiorari denied.
HART, J., concurs.
. Tim Leonard, a non-death-qualified attorney, requested to sit as a third counsel on the case. He formally filed his entry of appearance on May 1, 2012.
. This declaration was left sealed by the circuit court. | [
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JOSEPHINE LINKER HART, Justice.
11This court affirmed Kuntrell Jackson’s capital-murder and aggravated-robbery convictions and his sentence of life imprisonment without parole. Jackson v. State, 359 Ark. 87, 194 S.W.3d 757 (2004). This court subsequently affirmed the Jefferson County Circuit Court’s denial of Jackson’s petition for writ of habeas corpus, concluding that even though he was only fourteen years old at the time he committed the crimes, Jackson’s mandatory sentence of life imprisonment without parole did not violate the Eighth and Fourteenth Amendments to the United States Constitution. Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103, cert. granted, — U.S. -, 132 S.Ct. 548, 181 L.Ed.2d 395 (2011), rev’d and remanded sub nom. Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). After granting certiorari, the United States Supreme Court Lheld that Arkansas’s sentencing scheme violated the Eighth Amendment’s prohibition on “cruel and unusual punishments” because it imposed upon Jackson a mandatory sentence of life without parole despite his having been under the age of eighteen at the time he committed the crime of capital murder. Miller v. Alabama,-U.S.-,-, 132 S.Ct. 2455, 2460,183 L.Ed.2d 407 (2012).
On remand from the United States Supreme Court, we reverse the denial of the petition for writ of habeas corpus and issue the writ. We further remand the case to the Jefferson County Circuit Court with instructions that the case be transferred to the Mississippi County Circuit Court. We also instruct that a sentencing hearing be held in the Mississippi County Circuit Court where Jackson may present for consideration evidence that would include that of his “age, age-related characteristics, and the nature of’ his crime. Id. at-, 132 S.Ct. at 2475. Further, we instruct that his sentence must fall within the statutory discretionary sentencing range for a Class Y felony.
Jackson was convicted of capital murder. Arkansas Code Annotated section 5-10-101 (Repl.1997) provides in full as follows:
(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, vehicular piracy, robbery, burglary, a felony violation of the Uniform Controlled Substances Act, §§ 5-64-101-5-64-608, involving an actual delivery of a controlled substance, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(2) Acting alone or with one (1) or more other persons, he commits or attempts to commit arson, and in the course of and in furtherance of the felony or in immediate ^flight therefrom, he or an accomplice causes the death of any person; or
(3) With the premeditated and deliberated purpose of causing the death of any law enforcement officer, jailer, prison official, fire fighter, judge or other court official, probation officer, parole officer, any military personnel, or teacher or school employee, when such person is acting in the line of duty, he causes the death of any person; or
(4) With the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person; or
(5) With the premeditated and deliberated purpose of causing the death of the holder of any public office filled by election or appointment or a candidate for public office, he causes the death of any person; or
(6) While incarcerated in the Department of Correction or the Department of Community Punishment, he purposely causes the death of another person after premeditation and deliberation; or
(7) Pursuant to an agreement that he cause the death of another person in return for anything of value, he causes the death of any person; or
(8) He enters into an agreement whereby one person is to cause the death of another person in return for anything of value, and the person hired, pursuant to the agreement, causes the death of any person; or
(9) Under circumstances manifesting extreme indifference to the value of human life, he knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed, provided that the defendant was eighteen (18) years of age or older at the time the murder was committed. It shall be an affirmative defense to any prosecution under this subdivision (a)(9) arising from the failure of the parent, guardian, or person standing in loco par-entis to provide specified medical or surgical treatment, that the parent, guardian, or person standing in loco parentis relied solely on spiritual treatment through prayer in accordance with the tenets and practices of an established church or religious denomination of which he is a member; or
(10) He purposely discharges a firearm from a vehicle at a person, or at a vehicle, conveyance, or a residential or commercial occupiable structure he knows or has good reason to believe to be occupied by a person, and thereby causes the death of another person under circumstances manifesting extreme indifference to the value of human life.
(b) It is an affirmative defense to any prosecution under subdivision (a)(1) of this 14section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.
(c) Capital murder is punishable by death or life imprisonment without pa- • role pursuant to §§ 5-4-601-5-4-605, 5-4-607, and 5-4-608. For all purposes other than disposition under §§ 5-4-101-5-4-104, 5-4-201-5-4-204, 5-4-301-5-4-308, 5-4-310, 5-4-311, 5-4-401-5-4-404, 5-4-501-5-4-504, 5-4-505 [repealed], 5-4-601-5-4-605, 5-4-607, and 5-4-608, capital murder is a Class Y felony.
Thus, the statute provides for a mandatory sentence for persons convicted of capital murder of either death or life without parole. See also Ark.Code Ann. § 5-4-104(b) (Repl.1997) (providing that “[a] defendant convicted of capital murder ... shall be sentenced to death or life imprisonment without parole”); Ark.Code Ann. § 5-4-615 (Repl.1997) (providing that “[a] person convicted of a capital offense shall be punished by death by lethal injection or by life imprisonment without parole”). In this instance, Jackson was ineligible for the death penalty. Miller, — U.S. at -, 132 S.Ct. at 2461 n. 1 (citing Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion)). There are no provisions in the capital-murder statute providing a lesser sentence for persons under the age of eighteen.
In Miller, the United States Supreme Court stated that “[b]y removing youth from the balance,” Arkansas’s mandatory sentencing scheme for capital murder “prohibits] a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionally punishes a juvenile offender.” Id. at-, 132 S.Ct. at 2466. The Court explained that “[s]uch mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.” Id. at-, 132 S.Ct. at 2467.
|sIn recapping its analysis, the Court wrote as follows:
Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompeteneies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
Id. at -, 132 S.Ct. at 2468 (citations omitted). In Jackson’s particular case, the Court observed that Jackson’s conviction was based on an “aiding-and-abetting theory” and that “his age could well have affected his calculation of the risk” posed by his friend’s possession of a weapon. Id. at -, 132 S.Ct. at 2468. The Court also noted “Jackson’s family background and immersion in violence.” Id. at-, 132 S.Ct. at 2468. The Court concluded that the “Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,” because by “making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id. at -, 132 S.Ct. at 2469.
The Court observed that given “children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penally will be uncommon.” Id. at-, 132 S.Ct. at 2469.
Nevertheless, the Court did “not foreclose a sentencer’s ability to make that judgment in homicide cases,” but it did “require it to take into account how children are different, and how those differences counsel |fiagainst irrevocably sentencing them to a lifetime in prison.” Id. at-, 132 S.Ct. at 2469.
The Court held that “[b]y requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.” Id. at -, 132 S.Ct. at 2475.
The Court reversed and remanded the case “for further proceedings not inconsistent with this opinion.” Id. at-, 132 S.Ct. at 2475.
We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case. See Yates v. Aiken, 484 U.S. 211, 218, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988). Given the holding in Miller, we reverse the denial of the petition for writ of habeas corpus, issue the writ, and remand to the Jefferson County Circuit Court with instructions that the case be transferred to the Mississippi County Circuit Court. See Waddle v. Sargent, 313 Ark. 539, 545, 855 S.W.2d 919, 922 (1993) (issuing the writ in a Lincoln County habeas corpus case and placing the prisoner in the custody of Faulkner County law enforcement to be held on a capital-murder charge); see also Ark.Code Ann. § 16-112-102(a)(l) (Repl.2006) (granting power to this court to issue writ); Ark. Code Ann. § 16-112-115 (Repl.2006) (permitting the “judge before whom writ is returned” to “make such order as may be proper”).
We must, however, address the proper sentencing procedure for the Mississippi |7County Circuit Court to follow on resen-tencing. While the State suggests that Jackson, through severance of language from various statutes, may be sentenced by this court to a mandatory sentence of life imprisonment with the possibility of parole, the imposition of that sentence by this court would not allow for consideration of Miller evidence. Furthermore, given the constitutional infirmities of our capital-murder statute as it pertains to juveniles, we must also determine whether the portions of the statute giving rise to the infirmities can be severed without defeating the entirety of the statute. Hobbs v. Jones, 2012 Ark. 293, at 16-17, 412 S.W.3d 844, 855-56. Determining whether the infirmities are fatal to the entire legislation requires that we look to whether a single purpose is meant to be accomplished by the act and whether the sections of the act are interrelated and dependent upon each other. Id., 412 S.W.3d at 855-56.
In considering the capital-murder statute quoted above as it pertains to juveniles, we observe that substantial portions of subsection (c) must be severed. In sum, we must delete the entirety of the first sentence, which provides that “[c]apital murder is punishable by death or life imprisonment without parole pursuant to §§ 5-4-601-5-4-605, 5-4-607, and 5-4-608.” Furthermore, we must sever most of the second sentence, which provides that “[f]or all purposes other than disposition under §§ 5-4-101-5-4-104, 5-4-201-5-4-204, 5 — 4-301-5-4-308, 5^-310, 5-4-311, 5-4-401-5-4-404, 5-4-501-5-4-504, 5-4-505 [repealed], 5-4-601-5-4-605, 5-4-607, and 5 — 4—608, capital murder is a Class Y felony.” Nevertheless, we may sever that sentence so that, for juveniles convicted of capital murder, all that remains fyis that “capital murder is a Class Y felony.”
This severance will not defeat the statute. The purpose of subsection (c) was to provide a penalty for capital murder. Severing language from subsection (c) so that capital murder is a Class Y felony still serves that purpose by providing a penalty for the crime. Moreover, the remaining subsections of the capital-murder statute are not dependent upon the severed language, as subsection (a) of the statute addresses the elements of the crime, and subsection (b) addresses an affirmative defense. Accordingly, we hold that severing that language from the capital-murder statute cures the constitutional infirmities when the statute is applied to juveniles, and the severance of that language is not fatal as the statute’s purpose is still accomplished, and the remaining subsections of the statute are not interrelated and dependent. Similarly, we may sever the other statutes quoted above that indicate that the penally for capital murder is death or life imprisonment, without the severance proving fatal to the capital-murder statute. See Ark.Code Ann. § 5^ — 104(b); Ark. Code Ann. § 5^1-615.
Moreover, this severance is in keeping with the intent of the statutory rules of construction of the Arkansas Code, as the Code specifically permits severance of provisions that are invalid or unconstitutional. See Ark.Code Ann. § 1-2-117 (Repl.2008) (providing that if a portion of the Code is “declared or adjudged to be invalid or unconstitutional,” then “such declaration or adjudication shall not affect the remaining portions of this Code which shall remain in full force and effect as if the portion so declared or adjudged invalid or unconstitutional was not originally a part of this Code”); Ark.Code Ann. § 1-2-205 (Replffl)08)fl (providing that the “provisions of each and every act ... are declared to be severable” and that “the invalidity of any provision of that act shall not affect other provisions of the act which can be given effect without the invalid provision”).
We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration. We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony. For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life. Ark.Code Ann. § 5-4-401(a)(l) (Repl. 1997).
Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.
Denial of petition for writ of habeas corpus reversed; writ of habeas corpus issued; remanded to the Jefferson County Circuit Court with instructions.
. While Larry Norris, Director, Arkansas Department of Correction, is the nominal party, we will identify the appellee as the “State.” | [
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ROBERT J. GLADWIN, Chief Judge.
[[Appellant Shirley Walker files this pro se appeal from the August 30, 2012 Arkansas Workers’ Compensation Commission’s opinion reversing the April 26, 2012 opinion of the Administrative Law Judge (ALJ) and finding that she failed to prove by a preponderance of the evidence her entitlement to additional medical treatment under the care of Dr. Kevin Collins. Appellant asserts that the Commission unreasonably determined that she failed to prove that additional treatment for her July 2000 lumbar-spine injury was reasonable and necessary. We affirm.
On July 15, 2000, appellant sustained a compensable injury when she was assisting a patient from a wheelchair. Appellant initially was seen by her primary-care physician, Dr. William Joseph, who referred her to Dr. John Wilson at Ortho Arkansas. Appellant was [ 2diagnosed with a lumbar strain and associated spasms, determined to have no permanent injury, and released to normal activities after three weeks.
On October 10, 2000, appellant complained of chronic back pain and was referred to Dr. Collins. From late 2000 through 2005, she saw a number of physicians and received a variety of treatments. By 2005, the medical consensus was that appellant’s remaining pain and symptoms were the result of degenerative changes.
On July 19, 2005, appellant once again saw Dr. Collins, who noted that appellant was at maximum medical improvement and assigned her an eleven-percent physical-impairment rating to the body as a whole on July 19, 2005, which appellees accepted. Appellant did not undergo any additional treatment with Dr. Collins until six years later in 2011.
In 2010, appellant petitioned the Commission for a continued athletic-club membership and mileage reimbursement, which was granted. During those hearings, appellant testified that the athletic-club membership was necessary because it alleviated her pain in lieu of pain medication. Appellant left appellee’s employment and worked for over ten years at the Arkansas State Hospital. She acknowledged that she worked twelve-hour shifts in direct-patient care. Appellant testified that she was unable to take pain medication because of her work. Appellant was awarded the continued gym membership and mileage reimbursement based on the assertion that she would be going to the gym so that she would not have to take pain medication and could remain alert at work.
However, fit was discovered that appellant was terminated for sleeping on the job, which she attributed to her prescription-drug use. Twelve years after the initial work injury, |sappellant requested additional medical treatment and another extension of her gym membership. Appellant refused to undergo the offered independent medical examination suggested as a compromise by appellees. Due to appellant’s refusal, the records in this case were reviewed by Dr. Earl Peeples for an opinion. Dr. Peeples opined that the best thing for appellant would be to resume activities, including gainful employment. He further stated that continued medication and treatment by Dr. Collins was both unnecessary and not related to the twelve-year-old injury.
Appellant presented no rebuttal opinion or documentation. After a review of the record and briefs of the parties, the Commission denied appellant’s claim in its November 5, 2010 opinion. Appellant subsequently sought additional medical benefits in the form of continuing treatment from Dr. Collins. The ALJ held in her opinion of April 26, 2012, that the Commission’s November 5, 2010 opinion is the law of the case and that appellant proved by a preponderance of the evidence her entitlement to additional medical treatment under the care of Dr. Collins. Appellee, United Cerebral Palsy, appealed the decision of the ALJ to the Commission, and that decision was reversed on August 30, 2012. This appeal followed.
In reviewing a decision of the Workers’ Compensation Commission, an appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms those findings if they are supported by substantial evidence, which is evidence a reasonable person might accept as adequate to support a conclusion. Johnson v. Latex Constr. Co., 94 Ark.App. 431, 232 S.W.3d 504 (2006). The issue on appeal is not whether there is evidence that could support a different finding. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
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. Johnson, supra. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Id.
Employers are required to promptly provide medical services that are reasonably necessary for treatment of compensable injuries. Ark.Code Ann. § ll-9-508(a) (Repl.2012). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. White Consol. Indus, v. Galloway, 74 Ark.App. 13, 45 S.W.3d 396 (2001). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, the Commission analyzes both the proposed procedure and the condition it sought to remedy.
Appellant asks this court to reevaluate the evidence presented below and hold in her favor. After analyzing the medical records of other physicians, Dr. Peeples opined that there was “no traumatic anatomy that has been identified in Ms. Walker.” Appellant argues that this opinion contradicts the previously accepted on-the-job injury to her back. Appellant claims that Dr. Peeples cannot undermine the law of the case by now stating after the fact | sthat appellant has no work-related injury and that “incidental anatomy unrelated to the incident has been identified and treated without good justification.” Appellant notes that Dr. Cathey refused to opine whether the findings were not incidental to a work-related injury. Appellant contends that Dr. Peeples misstated the law when he said that causation had to be established by objective, identifiable anatomic trauma. Objective medical evidence is necessary to establish the existence and extent of an injury but is not essential to establish the causal relationship between the injury and a work-related accident in a workers’ compensation case. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
Appellant notes that her primary physicians, Dr. Collins and Dr. Mocek, opined that she needed pain management for a back condition that the Commission previously found compensable. Dr. Collins also recommended that appellant continue on her medications, see him every three months, and continue undergoing an exercise program at the North Little Rock Athletic Club to help strengthen her back. She acknowledges that the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Whaley v. Hardee’s, 51 Ark.App. 166, 912 S.W.2d 14 (1995); Henson v. Club Prods., 22 Ark.App. 136, 736 S.W.2d 290 (1987).
We decline to re-evaluate the evidence in appellant’s favor, and we hold that substantial evidence supports the Commission’s findings. Upon reviewing the medical | ¿records and medical opinions presented in this case, the Commission determined that appellant’s recent back pain and complaints were the result of a degenerative condition and not the 2000 work injury. The Commission found as follows:
[T]he weight of medical evidence in this claim, including numerous diagnostic studies and the credible medical opinions of multiple specialists, indicates that the claimant’s current symptoms are the exclusive result of degenerative disc disease for which prescription medications and even gym membership are not reasonably necessary to treat.... [I]t is incomprehensible how reasonable minds could conclude that she is currently entitled to medical treatment in any way, shape, or form for a compensable lumbar strain that occurred well over a decade ago and from which she has long since healed.
The Commission’s opinion noted a number of specific notations of “substantial evidence” to support its determination, including that “it has been the conclusion of each of [appellant’s] physicians that she suffers from degenerative disc disease ... that will only get worse with time.” The Commission continued that, “even Dr. Mo-cek [who was presented on appellant’s behalf] admitted that [appellant’s] herniation was ‘most likely degenerative’ in etiology.”
The Commission also highlighted that, “while it has been accepted that the claimant reached maximum medical improvement in 2009, the record indicates that it was the opinion of several physicians ... that her back strain healed long before that time.” The Commission also looked to the treatment appellant was seeking and determined that “all of [appellant’s] current medical treatment, including her gym membership, appears to be geared toward the maintenance and management of her unrelated arthritis, as opposed to an acute injury that has long-since healed.” In sum, the Commission reviewed the records and held that “the 17weight of the medical evidence demonstrates that [appellant] suffers from degenerative disc disease that is clearly unrelated to her compensable injury from twelve years prior.”
Appellant’s argument relies almost exclusively on her own subjective recounting of her pain and symptoms and the alleged conflicts between various doctors’ testimony. The Commission has already rendered weight and credibility determinations on that evidence, and those determinations are not subject to appellate review. Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Cottage Cafe, Inc. v. Collette, 94 Ark.App. 72, 226 S.W.3d 27 (2006).
The Commission found that appellant’s testimony on pain and symptoms “on the whole is inconsistent and contradictory with regard to her alleged need for medical treatment.” As an example, appellant continues to argue that she still has “chronic pain” and “spasms.” A review of the medical records reveals that the last documented “spasms” by a medical provider was the September 26, 2000 note of Dr. John Wilson. At that time, Dr. Wilson only noted these as “mild,” and he returned appellant to normal activities within three weeks and then returned her to regular work. Dr. Wilson also determined that there was no objective support for a permanent-partial-disability rating.
Dr. Cathey’s neurological examination was negative, and he found no sign of lumbar radiculopathy and could not identify any muscle spasms or restriction of movement. Dr. Cathey noted that, “interestingly, Ms. Walker complained bitterly of low back pain with |srotation of the shoulders and compression of the head. These maneuvers ordinarily do no [sic] produce pain even in acute situations and are typically categorized as ‘hysterical signs.’ ” Dr. Cathey also noted, “I anticipate Ms. Walker will always have a perception of chronic lower back pain.”
The notes of Dr. Mocek and those of appellant’s own chosen physician, Dr. Collins, also fail to document any “spasms.” It was only Dr. Mocek’s June 1, 2010 note from appellant’s last visit in which he indicated that “she returns for follow up of the pain that she has in the low back and she complains of ‘spasms’ all over her body.” This information report by appellant is inconsistent with Dr. Mocek’s examination results from that date, which made no mention of any discovered or diagnosed “spasms,” much less those that appellant claimed existed “all over her body.” Likewise, at her April 4 and July 7, 2011 visits, Dr. Collins did not find or mention anything other than “tenderness.”
Further, in considering appellant’s conflicting testimony, the Commission found “it evident that she was perhaps prepared to say anything at the 2010 hearing that would allow her to continue in a long-held gym membership with all of its perks and benefits that she might not otherwise be able to keep.... ” The Commission determined that, to the extent there were conflicts in the medical evidence, greater weight was to be given to appellees’ proof. Specifically, the Commission held, “We assign more weight to Dr. Peeples’ recent opinion that no additional medical testing or treatment is necessary for the claimant’s relatively minor back strain of 2000 over any medical opinion that might state otherwise.”
Affirmed.
WYNNE and HIXSON, JJ„ agree.
. Appellees stipulated to continuing the exercise program at the North Little Rock Athletic Club, which appellant claims is an acknowledgment that she still has symptoms from the effects of the on-the-job injury. | [
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BRANDON J. HARRISON, Judge.
|TCherrelle Campbell appeals the termination of her parental rights regarding two of her children: T.C., born 4 July 2008; and L.C., born 2 July 2009. Campbell’s counsel has filed a no-merit brief pursuant to Linker-Flores v. Ark. Dep’t of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004) and Ark. Sup.Ct. R. 6-9(i) (2012), asserting that there are no issues of arguable merit to support an appeal and requesting to be relieved as counsel. Campbell was notified of her right to file pro se points for reversal pursuant to Ark. Sup. Ct. R. 6 — 9(i)(3), and she did so. Because there was sufficient evidence to support the circuit court’s decision to terminate Campbell’s parental rights, and there are no issues of arguable merit arising from adverse rulings during the termination hearing, we grant counsel’s motion to withdraw and |j>affirm the circuit court’s termination order.
This case began on 23 September 2011, when the Division of Children & Family Services (DCFS) received a call requesting a safety assessment for two minor children, T.C. and L.C. This request was made after the Child Abuse Hotline received a report regarding the death of the children’s three-month-old sibling, A.C., who died on 16 August 2011. According to the medical examiner, cocaine was found in A.C.’s system, and it was a contributing factor in his death. The children’s mother, appellant Cherrelle Campbell, was the primary suspect in the child’s death. The day that the request for a safety assessment was made, DCFS contacted the family and informed them that T.C. and L.C. were going to be taken into custody pending the outcome of the investigation into A.C.’s death. DCFS exercised a seventy-two-hour hold on the children and placed them in a temporary foster home.
On 26 September 2011, the Arkansas Department of Human Services (DHS) filed a petition in the Pulaski County Circuit Court seeking emergency custody of T.C. and L.C. DHS also asked that the children be adjudicated dependent-neglected. Attached to the petition was the affidavit of Cora Wilson, a DHS employee, who explained the events that caused DHS to take custody of the children, including the circumstances of A.C.’s death. That same day, the court entered an ex parte order that granted custody of the children to DHS and found probable cause to believe that the children were dependent-neglected.
After a probable-cause hearing on 3 October 2011, the court entered an order finding that probable cause existed to issue the ex parte order for emergency custody and that probable cause still existed for the continuation of the emergency order. The court ordered |3that the children re main in DHS’s custody. On IB January 2012, an adjudication-and-disposition order was entered. The court found, by a preponderance of the evidence, that the children were dependent-neglected because they were at substantial risk of serious harm due to neglect. This Ending was based on a determination that the petition’s allegations and DHS’s affidavit were true. The court also noted that Campbell had stipulated that DHS could prove the allegations. The court set the goal of the ease as reunification and approved a case plan that allowed Campbell supervised visitation and ordered Campbell to, among other things, attend and participate in individual and family counseling, refrain from using illegal drugs and alcohol, submit to a drug and alcohol assessment and follow the recommendations of that assessment, submit to weekly drug screens, complete parenting classes, and obtain stable housing and employment.
A review hearing was held on 14 March 2012. Campbell did not attend. After the hearing, the court entered an order finding that reunification was no longer an appropriate case-plan goal. Regarding Campbell’s conduct, the court made these findings:
Mother has failed to comply with the case plan and court orders. Specifically, she currently has criminal charges pending for forgery. DHS does not have a current address for her and she has not visited since January 5, 2012, nor provided any support for the juveniles. The mother is not participating one bit or done anything to correct the things that caused the juveniles to come into care. She has made no progress towards alleviating or mitigating the causes of the juveniles’ removal from the home.
In late April 2012, DHS filed an amended petition to terminate Campbell’s parental rights. In the petition, DHS alleged three grounds for termination under statutory provisions for (1) | germination of parental rights if the parent has abandoned the juvenile; (2) termination of parental rights if the court has found the juvenile or a sibling dependent-neglected as a result of neglect that could endanger the life of the child; and (3) termination due to other factors that arose after the original petition for dependency-neglect that demonstrate a return of the child is contrary to his health, safety, or welfare. Ark.Code Ann. § 9-27-341(b)(3)(B)(iv), (vi) & (vii) (Supp.2011).
Testimony During the Termination Hearing
Campbell testified that the last time she contacted DHS was in April 2012, when she informed it that she was moving in with her mother, who lived in West Helena. Campbell explained that she had stopped visiting her children because she was being drug-tested weekly, and she knew she would test positive for marijuana. She did say, however, that it had been approximately six months since she had used any illegal drugs.
Campbell admitted that she had pending criminal charges for forgery and endangerment of a minor. On the forgery charge, she stated that she could receive a sentence of three to ten years’ imprisonment, but that she had been offered three years’ probation. She testified that she had started a drug-treatment program in Hot Springs but did not complete it. She also said that she believed she could complete drug treatment, obtain a psychological evaluation, and complete any counsel ing by September, which would be one year from the time that the children were placed in foster care. Campbell acknowledged that she had not complied with “the system” but also said that she had been doing what she needed to do to get her children back by not using drugs or hanging out with “those crowds.”
| sCampbell testified that her mother wanted the children to be placed with her, that her mother had always been willing to participate in the case, and that she wanted her mother to be considered as a permanent custodian for her children. Campbell asserted that she had a stable home with her mother and a job at a restaurant.
Campbell also said that she had never intended to abandon her children, nor had she been asked to pay support for them and not done so. She testified that she gave her mother-in-law, who had custody of the children, $200 in February 2012, and that she had not been asked to provide anything else for the children. She testified that her mother-in-law was good with her children and treated them fairly, but that she believed it would be in the children’s best interest for her mother to have custody because she lived with her mother, too.
Campbell acknowledged that she was present at the staff meeting that developed the case plan for her case, and she knew what she was supposed to be doing according to the case plan. She admitted, however, that she had not established and maintained employment that would allow her to be self-sufficient, had not followed all the court orders and services listed in the ease plan, had not been assessed for individual therapy, and had stopped visiting her children when she was told she would be drug-tested. She also admitted that she could have had a supervised visit with her children on Christmas Day had she tested clean on December 22, but she did not show up for that drug test because she knew she would not pass. Campbell also conceded that she had not maintained stable housing since her children had been placed in foster care and that she had stayed in six different places since September 2011.
Comerá Farmer, the caseworker assigned to this case since it was opened, testified that |Bbetween the time that the children were adjudicated dependent-neglected and the review hearing on 14 March 2012, DHS had offered Campbell a psychological evaluation, in-patient drug treatment, therapy services, parenting classes, supervised visitation, transportation assistance, a referral for drug-and-alcohol assessment, and random drug screens. She testified that DHS had made reasonable efforts to provide services and that the court made a finding that DHS had made reasonable efforts to provide services. Farmer also stated that the court made a finding that Campbell had not participated in services that DHS offered and that she had not complied with the court orders. Farmer explained that the court changed the goal of the case to adoption because the parents were not making meaningful efforts to participate in court-ordered services to achieve the goal of reunification.
Farmer also testified that, after the March 14 review hearing, she had no contact with Campbell until April 23, when she and Campbell spoke on the phone and Campbell informed her that she had moved to Phillips County. Farmer stated that Campbell did not ask about services but wanted the kids to be placed with her mother. Farmer testified that the parents were cooperative when the case first started, but that after the children were placed with Ms. Avance (the children’s paternal grandmother), the parents became less receptive to services the department offered. Farmer also said that the parents appeared to be unmotivated and failed to follow through with the services provided, and she believed it was in the children’s best interest to terminate Campbell’s parental rights because she had made only minimal to partial progress toward achieving the goal of reunification and had minimal visitation with the children.
^Monica Spencer, the adoption specialist assigned to T.C. and L.C., said that the children had some developmental delays but that they were receiving services for those delays and that the delays would not keep the children from being adopted. She testified that there were families available to adopt the children and that one family in particular had been identified and qualified as an adoptive placement. According to Spencer, adoption was very likely.
Yvonne Corbin, Campbell’s mother, asked the court to give her permanent custody of the children. She testified that she knew the children had been put into foster care in September, but that she and Ms. Avance had agreed that it would be easier for Ms. Avance to get custody of the children. Therefore, Corbin testified, she did not complete and return the packet of information she received from DHS that would have allowed her home to be considered as a possible placement for the children. Corbin stated that she believed Ms. Avance had been taking good care of her grandchildren but that it would be better for the children to be with her because Campbell would get to see them. Corbin testified that she was willing and able to keep the children until they both turned eighteen if needed.
Ella Avance said, among other things, that she was the foster parent of T.C. and L.C. and that they had been in her home since October 2011. She testified that both of the children were “getting taller and bigger and they’re just doing great.” She also testified that the only money she had ever received from the children’s parents was a one-time payment of $200 from each parent. When asked by the court, Avance confirmed that she would like to have the children in her home permanently, either as their guardian or as their adoptive parent.
Is The Circuit Court’s Ruling
After hearing closing arguments from the parties, the court announced its findings. It found that DHS had not proven the grounds for termination due to (1) abandonment, or (2) a juvenile or sibling dependent-neglected as a result of neglect that could endanger the life of the child. The court did rule, however, that there was “absolutely more than enough evidence” to terminate Campbell’s parental rights given other factors that arose after the original petition for dependency-neglect had been filed, which demonstrated that returning the children to Campbell would be contrary to their health, safety, or welfare. Here is how the circuit court viewed the evidence:
[Njeither parent has done what is required of them and the subsequent factors are they’ve proven that they don’t intend to do anything. Mom has completed parenting classes, that’s the only thing that she’s completed.... Has not had the random drug screens required — I don’t even know the list, but has not completed the psychological evaluation, has not completed the residential substance abuse treatment, has not visited her children as required, has not maintained stable housing and employment. Just the list goes endless. And Mom and Dad are not fit and proper parents.... And it’s concerning to me that these children have two parents who could have ... had they started services and taken advantage of them from the beginning, they could have completed a bunch of them by now. Could possibly have had the children back home. Yet we’re way down the road to termination. And the goal has been adoption for a period of time. And so nothing has indicated that either one of these parents have — has done a thing to show that they could rehabilitate their services — their circumstances, so the children can not be returned. These children need permanency, they need structure, they need safety, they need stability.
The court also found that the children would be harmed if returned to their parents, that DHS has made reasonable efforts to provide appropriate services for the parents and has an appropriate plan for the children’s placement, and that it was very likely that the children would be adopted. The court reiterated that “it’s more than clear and convincing evidence, 19more than ample evidence” for termination. The court entered an order terminating Campbell’s parental rights on 23 July 2012, and she timely appealed to this court.
Standard of Review
A circuit court’s order that terminates parental rights must be based on findings proven by clear and convincing evidence. Ark.Code Ann. § 9 — 27—341(b)(8) (Supp. 2011); Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is proof that will produce, in the fact-finder, a firm conviction on the allegation sought to be established. Dinkins, 344 Ark. 207, 40 S.W.3d 286. We will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Id., 40 S.W.3d 286. 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., 40 S.W.3d 286. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit judge to assess the witnesses’ credibility. Id., 40 S.W.3d 286.
The No-Merit Brief and Sufficiency of the Evidence
In her no-merit brief, Campbell’s counsel contends that clear and convincing evidence supports the termination and that the termination would be in the children’s best interest. Counsel notes Campbell’s continued drug use, which caused Campbell to stop visiting her children; her failure to complete drug treatment; her lack of stable housing and employment; her failure to complete a psychological evaluation or enter counseling; and her pending felony charges, which might result in prison time. Regarding the best interest of the children and the 110potential harm they may face if returned to Campbell, counsel cites Campbell’s failure to obtain drug treatment — a particularly relevant point given that illegal drug use was a contributing factor in the death of the children’s sibling, A.C.
We agree that the circuit court had ample evidence upon which to find that it was in T.C. and L.C.’s best interest for Campbell’s parental rights to be terminated. Campbell failed to comply with the case plan. These factors arose after the original petition for dependency-neglect was filed, and they show that returning the children to Campbell would be contrary to their health, safety, or welfare. The factors were proven by clear and convincing evidence. We therefore agree that a challenge to the sufficiency of the evidence supporting the court’s termination order presents no meritorious grounds for appeal.
Three Additional Adverse Rulings
In addition to the sufficiency of the evidence, the circuit court made three adverse rulings regarding Campbell’s case during the termination hearing. During Campbell’s testimony, her attorney attempted to enter into evidence purported pay stubs from Campbell’s restaurant job. The attorney ad litem objected on hearsay grounds and also noted that the pay stubs contained no identification of, or reference to, any business provider. DHS’s counsel joined in the objection and stated that there was no identifying information as to where the pay stubs came from. The court sustained the objection and did not admit the pay stubs into evidence. The pay stubs were not proffered into evidence, and to challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so as to permit review of the court’s decision. Vasquez v. Ark Dep’t of Human Servs., 2009 Ark. App. 575, 337 S.W.3d 552.JilThus, the circuit court’s exclusion of the pay stubs does not constitute a meritorious ground for appeal.
The second adverse ruling occurred when the court allowed Farmer to state whether, in her opinion, a parent’s failure to visit her children for six months constituted abandonment. Campbell’s attorney objected on relevancy grounds, and the attorney ad litem clarified that she was not asking for a legal opinion but was only seeking Farmer’s perception as a caseworker. The court acknowledged that determining abandonment under the legal definition was within the court’s purview but ruled that Farmer could state her perception of whether such behavior was abandonment. Here, Campbell’s counsel argues, and we agree, that because abandonment was not a basis for the termination order, Campbell was not prejudiced by this ruling. So, this ruling presents no meritorious grounds for appeal.
The third adverse ruling also occurred during Farmer’s testimony, when the attorney ad litem asked Farmer how the bond between the children and then-parents was affected by the children not seeing their parents for six months. Campbell’s attorney objected that Farmer was “not a psychologist for a child, she’s not licensed and trained in that area, and I don’t know if she can testify to what would happen to a bond.” The court ruled that, based on Farmer’s experience and observations as a caseworker, Farmer could answer the question. Here, Campbell’s counsel argues that Farmer was essentially an expert witness under Ark. R. Evid. 702 and that the court did not err in letting her testify, based on her experience and training, on how the parent-child bond can be affected. We agree that the court did not abuse its discretion in allowing this testimony. This ruling therefore presents no meritorious grounds |12for appeal.
Campbell’s Pro Se Points
Finally, in Campbell’s pro se points for reversal, she asserts that she has a good support system through her family, that she has become a full-time employee at BPS Industries, and that she is generally “going in the right direction” and rebuilding her life. We have reviewed Campbell’s pro se arguments. They do not present any reason for us to reverse.
Conclusion
After carefully examining the record and counsel’s well-presented brief, we find that she has complied with the requirements established by the Arkansas Supreme Court for no-merit termination cases and hold that the appeal is wholly without merit. The circuit court’s decision to terminate Campbell’s parental rights was not clearly erroneous. We therefore grant the motion to withdraw and affirm the order terminating Campbell’s parental rights.
Affirmed; motion to withdraw granted.
WYNNE and GRUBER, JJ., agree.
. The father’s parental rights were also terminated as to these children, but he is not a party in this appeal.
. The original petition, filed 11 April 2012, had incorrectly stated the date of the termination hearing. | [
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KENNETH S. HIXSON, Judge.
bln this case, Bradley and Carrie Spencer separately appeal the Sebastian County Circuit Court’s termination of their parental rights to their four children: three daughters, A.S., born September 23, 1999; H.S., born February 2, 2002; and T.S., born March 12, 2004; and a son, B.S., born September 10, 2006. On appeal, Bradley Spencer argues that there is insufficient evidence to' support the circuit court’s order. Counsel for Carrie Spencer has filed a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). Carrie Spencer has also belatedly filed pro se points for reversal. We affirm the termination of parental rights of both parents.
_[aBackground and Procedural History
This case began on February 19, 2010, when the Department of Human Services (DHS) exercised a seventy-two-hour hold and took the minor children into custody following the arrest of Bradley Spencer on drug charges. There were allegations of environmental neglect and inadequate supervision by Carrie Spencer, as well as the possibility of her arrest on the drug charges. DHS filed its petition for emergency custody on February 22, 2010. An ex parte order granting custody of the children to DHS was also entered on February 22, 2010. The court later found probable cause for éntry of the emergency order.
At the adjudication hearing, the circuit court found the children to be dependent-neglected based on the arrest of Bradley Spencer on drug charges and the children being in the home at the time of the criminal activity. .The court placed custody of the children with Deborah Wofford, their maternal grandmother. The parents were ordered to, among other things, obtain and maintain appropriate housing, sufficient income, and transportation; complete parenting classes; submit to random drug screens, including hair-follicle testing; submit to a psychological evaluation and complete any counseling recommended; submit to a drug-and-alcohol assessment and complete any treatment recommended; comply with the terms and conditions of any criminal sentence; and visit regularly.
A few weeks later, on June 21, 2010, DHS filed a motion for emergency change of custody on the basis that the police had found B.S. walking alone in the street in the direction of his grandmother’s home. The case worker and police found that all four children were with their mother, unsupervised, despite being in the temporary legal custody of their |agrandmother. Later that day, the grandmother refused to disclose the location of two of the children and was arrested. The children were returned to DHS’s custody after a finding that it was not in the best interest of the children to remain with their grandmother.
Over the next two years, there were several review hearings and two perma nency-planning hearings; the children remained with DHS. The court found that each parent had partially complied with the case plan; however, significant problems remained. Carrie Spencer continued to test positive for drugs and had not found any employment, and Bradley Spencer lacked suitable housing. The court returned custody of A.S. to Carrie Spencer on a trial basis. However, this placement failed because Carrie Spencer continued to test positive for drugs and failed to comply with the court’s order that she obtain employment, despite having a college degree. The court subsequently changed the goal of the case to termination of parental rights and adoption.
DHS filed its petition seeking the termination of the parental rights of both parents on April 18, 2012. The petition alleged two grounds: that twelve months had passed and the parents had failed to remedy the cause for removal, see Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2009); and that subsequent issues had arisen since removal warranting termination. See ,Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
The case proceeded to a termination hearing on June 29, 2012. The circuit court ruled from the bench and granted the petition for termination. The court found that DHS had proved one ground for termination in that the children had been adjudicated dependent-neglected; that they had remained out of the parents’ custody for more than twelve |4months; that DHS had made meaningful efforts to provide rehabilitative services; and that, despite those efforts, the conditions that caused removal had not been remedied. The court also found that the children were adoptable and that termination of parental rights was in their best interest.
The court addressed each parent’s situation separately. First, the court found that while Bradley Spencer had partially complied with the case plan, he did not want counseling. The court noted that he had only been in his apartment for approximately one month, and that the two-bedroom apartment had no bedding for his children. The court noted that Bradley Spencer’s priorities were misplaced because he moved his girlfriend and her child into the apartment, instead of obtaining a suitable home for his own children.
As for Carrie Spencer, the court noted her lack of credibility. The court found that she had stable housing, albeit paid for by her family. She had also completed residential drug treatment, completed a psychological evaluation, visited on a regular basis, and had her own transportation. The court further noted that Carrie Spencer had only recently obtained employment and had been living off the support of family members. The court found that she had not been able to overcome her drug addiction, including testing positive within the past week. The court also found that the children would be at risk of harm, both psychologically and physically, if returned to either parent. This appeal followed.
Standard of Review
We review termination-of-parental-rights cases de novo. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007). In cases where the issue |sis one of termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Trout v. Ark. Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004). Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well being of the child and must give way to the best interest of the child, when the natural parents seriously fail to provide reasonable care for their minor children. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Pursuant to Arkansas Code. Annotated section 9-27-341(b)(3),' an order terminating parental rights must be based upon clear and convincing evidence, i.e., proof that will produce in the fact-fínder a firm conviction as to the verity of the allegation sought to be established. Camarillo-Cox, supra. We do not reverse a termination order unless the circuit court’s findings are clearly erroneous. Id. A finding is clearly erroneous when the appellate court is, on the entire evidence, left with a definite and firm conviction that a mistake has been made. Id. In deciding whether a finding is clearly erroneous, we give great deference to the superior opportunity of the circuit court to observe the parties and judge the credibility of witnesses. Id.
Bradley Spencer’s Appeal
The termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). The first step requires proof of one or more of the statutory grounds for termination. Ark.Code Ann. |(i § 9-27-341(b)(3)(B). Spencer does not challenge the circuit court’s findings that DHS proved grounds for termination.
The second step requires consideration of whether the termination of parental rights is in the children’s best interest. Ark.Code Ann. § 927341(b)(3)(A). This includes consideration of the likelihood that the children will be adopted and the potential harm caused by returning custody of the children to the parent. The court, however, does not have to determine that every factor considered be established by clear and convincing evidence. Instead, after considering all the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918; McFarland v. Ark. Dep’t of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005).
In his appeal, Bradley Spencer argues that there was insufficient evidence to support the circuit court’s order terminating his parental rights. For the first part of his argument, Spencer asserts that the circuit court did not properly consider whether DHS had an appropriate permanency plan for the children because the children were placed in three different foster homes. While Robbie McKay, the DHS case worker, testified that the children were placed in three different foster homes, she also testified that they were adoptable and that DHS was looking for parents wanting to adopt the children as a sibling group. McKay did not anticipate any problems finding an adoptive home for these children. This, indicated that DHS had a proper permanency plan for the children. See M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997).
17Spencer next argues that the circuit court failed to give special weight to the progress he made during the pendency of this case. It is true that Spencer had made some progress and partially complied with the case plan in that he had resolved his criminal charges, obtained employment and transportation, and tested negative on his drug screens. However, even completion of a case plan is not determinative; what matters is whether completion of the case plan achieved the intended result of making the parent capable of caring for his child. See Wright v. Ark. Dep’t of Human Servs., 83 Ark.App. 1, 7, 115 S.W.3d 332, 335 (2003). Here, the circuit court found that Spencer had failed to maintain stable housing and had only recently moved into a two-bedroom apartment with his girlfriend and her child. He also lacked sufficient bedding for his own children. Spencer could not tell the case worker where his children would sleep if they were returned to his custody. A stable home is one of a child’s most basic needs, Latham v. Ark. Dep’t of Health & Human Servs., 99 Ark.App. 25, 256 S.W.3d 543 (2007), and the failure to secure safe and appropriate housing of one’s own is contrary to the child’s well-being and best interest. Carroll v. Ark. Dep’t of Human Servs., 85 Ark.App. 255, 148 S.W.3d 780 (2004). The court also found that Spencer had not completed the counseling sessions as ordered. The failure to consistently attend counseling sessions to address the issues resulting in the children’s removal is a factor that shows indifference and will support termination of a parent’s rights. See Jefferson v. Ark. Dep’t of Human Servs., 356 Ark. 647, 158 S.W.3d 129 (2004).
Spencer also argues that the circuit court erred in failing to protect his rights in some unspecified manner. We have said that
|s[t]he rights of parents are not proprietary and are subject to their related duty to care for and protect the child and the law secures their preferential rights only so long as they discharge their obligations. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark.App.1980); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Kirk v. Jones, [178 Ark. 583, 12 S.W.2d 879 (1928)]; State v. Grisby, [38 Ark. 406 (1882) ].The unfitness for which this preferential right to custody may be forfeited can result from a parental failure to discharge any of the correlated duties of parenthood. In Grisby it was stated that this preference for natural parents is based on a presumption that they will take care of their children, bring them up properly and treat them with kindness and affection, and when that presumption has been dissipated chancery will interfere and place the child where those parental duties will be discharged by another.
Jones v.Jones, 13 Ark.App. 102, 108, 680 S.W.2d 118, 121 (1984). Moreover, the intent of the juvenile code is to provide permanency in a juvenile’s life and the evidence must be viewed from the juvenile’s perspective. See Ark.Code Ann. § 9-27-341(a)(3). Robbie McKay testified that two of the children, A.S. and B.S., were in counseling, in part, dealing with the children’s need for permanency because the case had lasted for over two years.
We cannot say that the circuit court was clearly erroneous in finding that termination of Bradley Spencer’s parental rights was in the children’s best interest.
Carrie Spencer’s Appeal
As mentioned at the beginning, counsel for Carrie Spencer filed a no-merit brief pursuant to Linker-Flores, supra. Linker-Flores and its progeny require a review of the sufficiency of the evidence, as well as a discussion of any other rulings made at trial that were adverse to Carrie Spencer. Counsel has complied with the procedure set out in Linker-Flores.
It is undisputed that the children had been adjudicated dependent-neglected and remained out of the parents’ custody for more than twelve months and, despite meaningful efforts by DHS to provide rehabilitative services, the conditions that caused removal had not Ubeen remedied. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a). Only one ground is necessary to terminate parental rights. Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 285 S.W.3d 277 (2008). The fact that A.S. was placed in her mother’s custody for a period of time does not represent a barrier to termination. It is not necessary that the twelve-month period immediately precede the filing of the petition for termination of parental rights,, or that it be for- twelve consecutive months. Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(b). Therefore, DHS proved at least one ground for termination.
In addition to the discussion of the children’s adoptability and their need for permanency in the best-interest-analysis portion of Bradley Spencer’s appeal, Carrie Spencer admitted that she lied to the court and to DHS concerning her drug usage. She also admitted to falsifying a drug screen. She tested positive on six of thirteen drug tests, including one the day before the termination hearing. A parent’s continuing drug use shows an indifference to remedying the problem plaguing the family and is not in the best interest of the children. Carroll, supra.
There was also testimony concerning Spencer’s failure to secure employment until April 30, 2012. The case worker expressed skepticism that Spencer would keep the job for very long. The circuit court noted that, despite being ordered to obtain employment, Spencer had relied on others for her support and did not obtain employment until shortly before the termination hearing. A parent’s failure to secure stable employment and her indifference to remedying the situation are contrary to the children’s health, safety, and well-being and |insupport termination of her parental rights. Trout v. Ark. Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004); Carroll, supra.
Carrie Spencer submitted pro se points more than a week after they were due. However, these points do not warrant reversal. Spencer disputes the underlying basis for DHS removing the children in the first place and relies on an administrative proceeding where an administrative law judge determined that Spencer’s name not be added to the child-maltreatment registry. Spencer testified, however, that at the time the children were removed, both she and her husband were using methamphetamines. She also admitted that there were firearms in the household, as alleged in the original probable-cause affidavit. This provides no basis for reversal of the termination order.
Spencer next raises questions concerning whether the children are adoptable. She notes that the children are older, ages thirteen, ten, eight, and six. She also states that the eldest child, A.S., has medical conditions (heart-related and kidney-related) that may make it more difficult for her to be adopted. Robbie McKay briefly noted that some of the children had unspecified medical issues, but she did not see that as being a barrier to adoption. Spencer also notes that it is harder finding adoptive homes for four children as a unit. Spencer further suggests that her mother has been willing for all of the children to be placed in her home, either on a temporary or permanent basis. However, this is the same grandmother that allowed Spencer to have all four children together, during which time one of the children wandered away from home. The circuit court was only required to consider whether the children are adoptable as part of its best-interest analysis. Reid, supra. Moreover, the |n information Spencer notes in her points concerning the children was before the circuit court. We, therefore, grant counsel’s motion to withdraw and affirm the circuit court’s termination order as to Carrie Spencer.
Affirmed; motion to withdraw granted.
WOOD and BROWN, JJ., agree. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellants Hotfoot Logistics, LLC, and Freight Ambulance, LLC, appeal from a Pulaski County Circuit Court order granting motions to dismiss filed by appellees, Shipping Point Marketing, Inc. (SPM); Louis Fishgold, SPM’s president; and David Fishgold, the president of Western Brokerage, Inc. (collectively “the Fish-golds”), based on a lack of personal jurisdiction. For reversal, appellants argue that the circuit court erred in granting appellees’ motions to dismiss and a motion for attorney’s fees. We have jurisdiction pursuant to Arkansas Supreme Court Rule l-2(a)(7) (2012), as this case presents a subsequent appeal. We reverse and remand.
This case originally involved four independent shippers: (1) SPM, located in Phoenix, Arizona; (2) BoniPak Produce, Inc., located in Santa Maria, California; (3) Salyer American Fresh Foods, Inc., located in Salinas, California; and (4) Taylor Farms California, Inc., also | ¡.located in Salinas, California. On November 25, 2008, these shippers engaged Western Brokerage, a transportation broker in Phoenix, Arizona, to arrange for the transportation of produce from Yuma, Arizona, to Scranton, Pennsylvania, and Albany, New York. Subsequently, Western Brokerage requested carriers by posting a notice on Internet Truck Stock, an Internet load board used by the trucking industry to solicit trucking business. Responding to Western Brokerage’s solicitation, Hotfoot, an Arkansas trucking company based in Little Rock, agreed to transport multiple loads for $5,700. According to Hotfoot, it obtains most of its freight contracts via the Internet load boards, and the majority of its freight contracts are one-time transactions. Hotfoot then engaged one of its dedicated carriers, Freight Ambulance, an Arkansas company based in Cabot, to deliver the produce to Pennsylvania and New York.
Freight Ambulance picked up the freight from four locations in Yuma, Arizona, for the shippers. Specifically, Freight Ambulance picked up a load from Dole/Skyview Cooker in Yuma on behalf of SPM for delivery to Eastern Produce in Scranton, Pennsylvania. Western Brokerage then faxed a six-page rate-confirmation contract to Hotfoot’s home office in Little Rock. The rate-confirmation contract listed, among other things, the carrier rate for the cargo, as well as a description of the vegetable products to be picked up from each shipper. In this contract, Western Brokerage promised to pay Hotfoot $5,700 for transporting the loads. A Hotfoot representative signed the document and returned the rate confirmation to Western Brokerage by fax.
Freight Ambulance delivered a portion of the produce to Albany, New York, on IsNovember 29, 2008, and delivered the balance of the load to Scranton, Pennsylvania, on November 30, 2008. Freight Ambulance returned the bills of lading to Little Rock, where Hotfoot prepared the invoice for the freight charges. After these deliveries, Hotfoot made a demand on Western Brokerage for the payment of the unpaid balance but was unsuccessful in its collection efforts. Western Brokerage had closed its business, and Hotfoot shifted its efforts to collect the freight charges toward the shippers, who claimed they had already paid Western Brokerage. SPM claimed to have no knowledge of Western Brokerage’s whereabouts, although the two companies allegedly shared facilities in Phoenix, Arizona, and the Fishgolds were the presidents of the respective companies.
Appellants originally filed suit in the Pulaski County District Court, but the case was later transferred to the Pulaski County Circuit Court. On April 14, 2010, Hotfoot filed an amended complaint against SPM, the other independent shippers, and Western Brokerage for breach of contract. In its complaint, Hotfoot alleged one count of breach of contract against the shippers for payment of the freight charges in the amount of $5,700; one count of breach of contract against Western Brokerage in the amount of $5,700; and one count of fraud against the Fishgolds for conspiring to commit fraud against Hotfoot to arrange the load and then refuse payment. Appellees filed motions to dismiss, and the circuit court granted them for lack of personal jurisdiction. Subsequently, ap-pellees filed a motion for attorney’s fees, which the circuit court granted. An appeal followed. In Hotfoot Logistics, LLC v. Shipping Point Marketing, Inc., 2013 Ark. 72, 2013 WL 655203, we dismissed the appeal without prejudice for lack of a final order. On July 13, 2012, the circuit court entered a final order dismissing all separate |4appellees, and from that order, appellants timely filed their notice of appeal. On appeal, appellants limit their arguments to SPM and the Fishgolds.
For their first point on appeal, appellants argue that the circuit court erred in granting SPM’s motion to dismiss for lack of personal jurisdiction. Specifically, appellants claim that SPM, an Arizona shipper, contracted with Hotfoot, an Arkansas trucking company, thereby subjecting itself to personal jurisdiction in Arkansas for the purpose of collecting unpaid freight charges. In response, appellees argue that appellants failed to allege sufficient facts to establish that appellees purpose fully availed themselves of the privilege of conducting business in Arkansas. Appel-lees maintain that they had no contacts with Arkansas and that any contract between SPM and Hotfoot did not establish any contacts between Arkansas and appel-lees.
As a preliminary matter, while the parties treat this case as an appeal from an order granting a motion to dismiss, we note that six exhibits were attached to appellants’ amended complaint. These exhibits included Western Brokerage’s rate-confirmation contract, an affidavit of David Lasater, Hotfoot’s vice president, and four bill-of-lading contracts. The circuit court’s order of dismissal reads that its findings were “[biased upon the pleadings and all other things and matters properly before the Court[.]” (Emphasis added.) It is well settled that when a circuit court considers matters outside the pleadings, appellate courts will treat a motion to dismiss as one for summary judgment. Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817. Because it is clear to this court that the circuit court considered exhibits outside the pleadings in making its ruling, the court’s dismissal is converted to one for summary judgment. Id.
| ¿Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Kyzar v. City of W. Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). Summary judgment is not proper where the evidence reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Id.
We now turn to the issue of personal jurisdiction. Arkansas courts have personal jurisdiction over all persons and corporations, and of all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment to the United States Constitution. Ark.Code Ann. § 16-4-101(A)-(B) (Repl.2010). In our recent case of Yanmar Co., Ltd. v. Slater, 2012 Ark. 36, 386 S.W.3d 439, we outlined the requirements of personal jurisdiction in Arkansas as follows:
The seminal case on the issue of personal jurisdiction is International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), wherein the United States Supreme Court first articulated the minimum-contacts test as a way to establish jurisdiction over a defendant not physically present in the state. The touchstone principle announced by the Court in International Shoe is that due process requires “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The Court in International Shoe looked to the nature of the contacts that the nonresident defendant had with the forum state, explaining that attention must be paid to the “quality and nature” of those contacts, and also to whether that defendant | (¡through those contacts enjoyed the “benefits and protection” of the laws of the foreign state. Id. at 319, 66 S.Ct. 154. The Court further acknowledged that there may be situations in which a nonresident-defendant’s contacts with a forum state may be so substantial and continuous as to justify jurisdiction over that defendant, even though the cause of action is “entirely distinct from those activities.” Id. at 318, 66 S.Ct. 154.
The Supreme Court has revisited the law on personal jurisdiction since the holding in International Shoe. Notably, the Court held in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), that a nonresident defendant’s contacts with a forum state must be sufficient to cause the defendant to “reasonably anticipate being haled into court there.” “This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). And, of significance to the instant case, the Supreme Court in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), explained the distinction between the two types of personal jurisdiction: general and specific. There, the Court stated that when a cause of action arises out of or is related to a defendant’s specific contacts -with the forum state, the exercise of personal jurisdiction is one of specific jurisdiction. Id. However, if the exercise of jurisdiction arises in a case not stemming from the defendant’s contacts with the forum state, the exercise of personal jurisdiction is one of general jurisdiction. Id. When general jurisdiction is in question, a defendant may be subject to the forum state’s exercise of personal jurisdiction if generally its contacts with the state are continuous, systematic, and substantial. Id.
Yanmar, 2012 Ark. 36, at 5-7, 386 S.W.3d at 444.
A finding of personal jurisdiction requires that there be some act by which the defendant purposefully avails himself or herself of the privilege of conducting business in the forum state. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). More significantly, a single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Nelms v. Morgan Portable Bld. Corp., 305 Ark. 284, 808 S.W.2d 314 |7(1991). Whether the “minimum contacts” requirement has been satisfied is a question of fact. Wisconsin Brick & Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981).
The case of SD Leasing, Inc. v. Al Spain & Assocs., 277 Ark. 178, 640 S.W.2d 451 (1982), illustrates how a single contract and a substantial connection to our state can confer personal jurisdiction over the contracting parties. In SD Leasing, the appellee, a Florida corporation, defaulted on a non-cancelable lease agreement between it and the appellant, SD Leasing, Inc., an Arkansas corporation. As a result, the appellant filed suit in Arkansas to recover the balance due. The trial court ultimately granted the appellee’s motion to dismiss for lack of personal jurisdiction. However, we reversed on the basis that sufficient minimum contacts existed to meet due-process requirements for personal jurisdiction of the nonresident appellee. We held that the contacts were sufficient where (1) the lease, although executed in Florida, was mailed to the appellant in Arkansas where it was reviewed, ap proved, and accepted; (2) the appellee mailed its monthly payments directly to appellant in Arkansas, as well as two memos informing the appellant it was going out of business; (3) the lease agreement specifically provided that the lease “shall be governed by and construed under the laws of the State of Arkansas”; and (4) the lease provided that, in the event of default, the lessee would consent to and be subject to the jurisdiction of the courts of the state of Arkansas to enforce the terms of the lease. Id. at 180-81, 640 S.W.2d at 452.
Further, we cite with approval the court of appeals’ decision of Twin Springs Group, Inc. v. Karibuni, Ltd., 2009 Ark. App. 649, 344 S.W.3d 100. In Twin Springs, the court of appeals 18held that the trial court erred in granting summary judgment because there was evidence to show that a contract was initiated by ap-pellees; that it was negotiated and executed on behalf of appellee Karibuni by appel-lee Mellow while he was in Arkansas; and that the contract provided for an Arkansas corporation to ship Arkansas poultry to appellees in Bermuda. The court of appeals held that, should this evidence be believed, the Arkansas court’s exercise of jurisdiction over appellees would not violate due process, and that the trial court therefore erred in granting summary judgment. Id. at 4, 344 S.W.3d at 103.
On appeal, appellants primarily make a specific-jurisdiction argument surrounding Hotfoot’s arrangement of a one-time delivery of the freight from Arizona to Pennsylvania and New York. Appellants claim that a bill-of-lading contract is a single contract by which an Arkansas court may exercise personal jurisdiction over the appellees. Thus, the key issue in this case is whether a genuine issue of material fact arises regarding Hotfoot’s contract and any substantial connection that it may have with the state of Arkansas.
A bill of lading operates as both a receipt and a contract. Ark. W. Ry. Co. v. Robson, 171 Ark. 698, 285 S.W. 372 (1926); St. Louis, Iron Mountain & S. Ry. Co. v. Citizens’ Bank of Little Rock, 87 Ark. 26,112 S.W. 154 (1908). Contracts or bills of lading on which a party is named as a consignee bind that party to the agreement. BDL Int’l v. Sodetal USA, Inc., 377 F.Supp.2d 518 (D.S.C.2005). In Lomanco, Inc. v. Missouri Pacific Railroad Company, 566 F.Supp. 846 (E.D.Ark.1983), the Arkansas federal district court ruled that it did not have personal jurisdiction over the defendants when one was a citizen of New York and the other |flwas a British corporation located in Hong Kong, and neither of them had any connection with the state of Arkansas or had engaged in business in Arkansas. The district court reasoned that the defendants were not parties to the bill of lading, nor had they entered into a contract with one another. Id.
However, unlike Lomanco, the parties in the case at bar are parties to the bill-of-lading contract. Here, the record includes one specific bill-of-lading contract for a shipment from Arizona to Pennsylvania for the transport of Dole food products. In that particular bill-of-lading contract, SPM is listed as the consignee and Hotfoot as the carrier. The contract states, “Carrier ARRANGED FOR BY CONSIGNEE^] DESTINATION Soranton, PA Eastern[.]” Justin Pierce signed the contract, acknowledging the “consignee’s receipt.” In a similar bill-of-lading with BoniPak, Pierce signed the contract next to a line entitled “Driver’s Name” and listed the trucking company as “Hot Foot Express.” Pierce, who traveled from Arkansas to make a cross-country trip from Arizona to Pennsylvania and New York, then returned the bill of lading to Arkansas, where Hotfoot used it to prepare its invoice for payment. Thus, this evidence may suggest a substantial connection between the contract and Arkansas as the forum state. McGee, supra. To that end, SPM may have purposefully availed itself of the Arkansas courts. Given the context of summary judgment, this single bill-of-lading contract, for which SPM is the consignee, raises a question of fact regarding specific, personal jurisdiction over SPM. See SD Leasing, Inc., supra.
Further, we note that SPM arranged for Western Brokerage to transport its products, |Tnand as a result, Western Brokerage faxed a six-page rate-confirmation contract to Hotfoot’s home office in Little Rock after Hotfoot answered Western Brokerage’s solicitation for carriers. In its rate-confirmation contract, Western Brokerage promised to pay Hotfoot $5,700 for transporting the loads, and a Hotfoot representative signed the document and returned the contract to Western Brokerage by fax. While Western Brokerage has been dismissed from the case at bar, a question of fact remains as to whether this rate-confirmation contract confers personal jurisdiction over David Fishgold as its president. Therefore, given our standard of review regarding summary judgment, we conclude that Hotfoot offered to the circuit court proof of a genuine issue of material fact by submitting (1) its bill-of-lading contract, (2) its rate-confirmation contract, and (3) its amended complaint and exhibits regarding the freight delivery as a substantial connection to Arkansas as the forum state. For these reasons, we hold that the circuit court erred in granting SPM’s motion to dismiss appellants’ complaint. Accordingly, we reverse and remand for the factual development of the foregoing issues.
For their second point on appeal, appellants allege that the circuit court erred in granting the Fishgolds’ motions to dismiss appellants’ complaint. In their brief, appellants state, “David Fishgold and Louis N. Fishgold conspired to deprive Hotfoot of its earned freight charges. These freight charges were due as a result of a completed contract subject to Arkansas jurisdiction.” In their amended complaint, appellants alleged one count of fraud against the Fishgolds, stating that SPM refused payment on the ground that it had already paid In Western Brokerage; that SPM denied knowledge of Western Brokerage’s location, denied knowledge of their personnel, and refused Hotfoot in its attempts to locate and collect from Western Brokerage; and that the Fishgolds conspired to commit fraud against Hotfoot by constructing the load and then refusing payment. Here, in light of Hotfoot’s allegation of fraud, certain questions of genuine issues of material fact exist surrounding the personal jurisdiction of the Fishgolds. See Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (holding that when a defendant directs intentional, tortious actions at a resident in a forum, the defendant may reasonably anticipate being haled into the forum to answer for its conduct). Thus, we hold that the circuit court erred in granting summary judgment as to the Fishgolds. Accordingly, we reverse and remand on this point as well.
For the third point on appeal, appellants argue that the circuit court erred in granting appellees’ joint motion for attorney’s fees. A decision to grant or deny a motion for attorney’s fees will not be set aside absent an abuse of discretion by the circuit court. Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, 363 S.W.3d 321. Because of the circuit judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing parties’ counsel, we recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, 378 S.W.3d 135. Here, the circuit court granted appellees’ motion for attorney’s fees and awarded $7,404 in fees to appellees on the motion to dismiss. Because we reverse and remand on the preceding points, we also reverse the circuit court’s ruling on appellees’ motion for attorney’s hafees and remand for further proceedings.
Reversed and remanded. | [
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ROBIN F. WYNNE, Judge.
| Mamie Colter Martin appeals from his conviction on a charge of rape by a Garland County jury. On appeal, he argues that the trial court erred by (1) denying his motion to suppress evidence seized from his residence, (2) allowing into evidence a videotape of an interview of the victim, (3) allowing certain photographs into evidence, (4) denying his motion for a mistrial, and (5) denying his motions for a directed verdict. We affirm.
Appellant was charged with raping his stepdaughter, M.B., who was eight years old at the time of the alleged offense. Prior to trial, he filed a motion to suppress in which he argued that evidence seized from his home should be suppressed because the search warrant lacked any reference to the time frame during which the alleged rape may have occurred. After a hearing on the motion, the trial court entered an order in which it found that it could infer a time frame from the four corners of the affidavit submitted in sup port of the request |2for the search warrant and denied the motion.
At trial, Tab Tucker, the school counsel- or at Cutter Morning Star Elementary School, testified that on May 20, 2010, M.B., who was a first-grader at the school, came to him and told him that she “had a concern about her daddy and S-E-X.” Mr. Tucker reported the information that M.B. disclosed to him. Appellant and M.B.’s mother, Felecia Martin, were called to the school, and Mr. Tucker testified that appellant did not have an emotional reaction to the disclosure made by M.B.
M.B., who was ten years old at the time of trial, testified that appellant dropped her off at school on the morning of May 20, 2010, and told her to put on a skirt with no panties under it when she got home from school and to wait upstairs. Using anatomical dolls, M.B. testified that appellant put his penis in her mouth. She further testified that he raped her anally and vaginally. According to M.B., appellant would show her pictures of naked girls and boys and would make her watch movies depicting people engaged in sex acts. M.B. was cross-examined by appellant’s counsel. M.B. stated that she had seen appellant drinking and that he would have alcohol lying about the house.
Corporal Angela Graybeal with the Garland County Sheriffs Department testified that M.B. disclosed that appellant and Felecia Martin kept adult movies and sex toys in their upstairs bedroom. During Cpl. Graybeal’s testimony, the State introduced several photographs showing the exterior of the home, the condition of the living room and upstairs bedroom at the time the search warrant was executed, pornographic DVDs and VHS recordings seized from the bedroom, sex toys seized from the bedroom, as well as a Ispornographic drawing and pornographic magazines seized from the bedroom. Appellant objected to the admission of certain photos, arguing that they were cumulative. The trial court overruled his objections.
Marcie Herman, a nurse examiner with the Cooper Anthony Mercy Child Advocacy Center, testified that she examined M.B. on May 21, 2010. According to Ms. Herman, M.B. complained of rectal pain with defecation, which Herman stated would be unusual in an eight year old unless the child had a history of constipation. M.B. had no such history. Ms. Herman stated that, while there were no acute injuries seen during the examination, the vaginal exam was highly suspicious for past penetrating trauma. She further stated that, in her opinion, the injuries she saw were not consistent with an accidental injury but were consistent with a penis penetrating M.B.’s vagina. M.B.’s rectal exam was consistent with her having had an object placed in her rectum.
Aaron Triplett, a forensic interviewer and child advocate with the Cooper Anthony Mercy Child Advocacy Center, testified that he interviewed M.B. on May 20, 2010. During Mr. Triplett’s testimony, the State moved to introduce a video copy of his interview with M.B. Appellant objected, arguing that the interview was hearsay and that he could not “cross-examine an interview.” The trial court overruled appellant’s objections, ruling that the admission of the video would not violate the Confrontation Clause and that the contents of the video were not hearsay because the State was introducing the video to show the jury how M.B. looked, acted, and spoke at the time of the interview. The video was played for the jury. Appellant’s counsel cross-examined Mr. Triplett; M.B. was not recalled for further |4cross-examina-tion.
At the close of the State’s case, appellant moved for a directed verdict, arguing that the State had not made a prima facie case of rape. The trial court denied the motion. Appellant testified and denied the allegations against him. He also testified that he could not say whether M.B. may have encountered a fall or injury during the period of time, prior to her disclosure, that she was living with her grandparents. At the close of all of the evidence, appellant renewed his motion for directed verdict, which was denied. During the State’s rebuttal closing argument, appellant objected to a statement made by the prosecutor and moved for a mistrial. The trial court overruled his objection and allowed the statement. Appellant never requested an admonition to the jury.
The jury found appellant guilty on the charge of rape. The trial court sentenced him to thirty-five years’ imprisonment. This appeal followed.
Although it is appellant’s final point on appeal, this court must address sufficiency-of-the-evidence arguments first due to double-jeopardy concerns. Sipe v. State, 2012 Ark. App. 261, 404 S.W.3d 164. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. 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. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Id. This court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Id.
|,.Appellant's argument regarding the sufficiency of the evidence lacks merit. M.B. testified that appellant raped her anally and vaginally and that he forced her to perform oral sex. The uncorroborated testimony of a rape victim, including a child, standing alone can constitute sufficient evidence to support a conviction, and any evaluation as to the credibility of the witness is a matter for the finder of fact. Mashburn v. State, 2012 Ark. App. 621, 2012 WL 5440015. Thus, M.B.’s testimony alone is substantial evidence of rape. The trial court did not err by denying motions for a directed verdict.
Appellant argues that the trial court erred by denying his motion to suppress because the affidavit in support of the request for a search warrant does not contain a sufficient time element. The trial court found that it could determine the time frame from the four corners of the document. We review a trial court’s denial of a motion to suppress evidence de novo based on the totality of the circumstances, recognizing that the trial court has a superior opportunity to determine the credibility of witnesses and reversing findings of historical fact only if they are clearly erroneous. Briggs v. State, 2012 Ark. App. 692, 2012 WL 6197090.
The affidavit states that M.B. disclosed to a teacher and principal on May 20, 2010, that appellant wanted her to “put on her skirt without any panties and come to the room where he touches her and will put things up her butt.” The affidavit relates that appellant would show M.B. pictures of naked people and would watch movies with her while abusing her. The affidavit further describes the items subject to the search and states that the property was now being concealed at appellant’s address. In George v. State, 358 Ark. 269, 189 S.W.3d 28 (2004), the affidavit at issue contained only the date that a report was received that a fourteen-tyear-old6 saw nude photos of other underage girls in the appellant’s home. The supreme court held that, based on the affidavit, the magistrate was able to make a practical, common-sense decision that there was a fair probability that the appellant possessed the materials listed in the warrant. Likewise, in this case, the affidavit contains the date the report was received, indicates that appellant was engaged in an ongoing course of criminal sexual conduct, which was to continue that afternoon, and states that the items sought were in appellant’s residence. We hold that the trial court did not err in making the practical, common-sense determination that the items listed in the search warrant were in appellant’s residence. The trial court did not err by denying appellant’s motion to suppress.
Appellant next argues that the trial court erred in admitting the videotaped interview of M.B. conducted on May 20, 2010, because the video constitutes inadmissible hearsay. The trial court ruled that the video was admissible because the State was introducing it to show the differences between M.B.’s appearance and speech at the time of the interview and her testimony at trial. We hold that, under these circumstances, the admission of the video by the trial court was an error. However, this does not end our analysis on this point. It is well settled that evidentia-ry rulings are subject to harmless-error analysis, and we are bound to affirm if the error is harmless beyond a reasonable doubt. Williams v. State, 2012 Ark. App. 310, 2012 WL 1522309. M.B. testified at trial and was cross-examined by appellant. She was subject to being recalled for cross-examination after the video was played, although appellant chose not to do so. The availability of a declarant for cross-examination renders harmless any error caused by the admission of hearsay. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164 (citing Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995)). Thus, the error committed by the trial court in admitting the video was harmless. In addition, our review of the video shows that the statements made by M.B. during the interview were largely cumulative of her testimony at trial. Even if hearsay evidence is erroneously admitted at trial, reversal is not required if the hearsay evidence is cumulative to other evidence admitted without objection. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996).
Appellant’s next argument is that the trial court erred in admitting cumulative and inflammatory photographs of pornographic materials. The admission of photographs is a matter left to the sound discretion of the trial court, and we will not reverse absent an abuse of discretion. Plessy v. State, 2012 Ark. App. 74, 388 S.W.3d 509. When photographs are helpful to explain testimony, they ordinarily are admissible. Id. The mere fact that a photograph is inflammatory or gruesome is not, standing alone, sufficient reason to exclude it. Id. Our review of the photographic exhibits admitted at trial revealed that the photographs objected to by appellant included the ones that showed people engaged in the very sex acts M.B. testified appellant forced her to perform and photographs of magazines containing the type of pictures M.B. testified that appellant made her view. The photos were admissible because they corroborated M.B.’s testimony. See Simmons v. State, 95 Ark.App. 114, 234 S.W.3d 321 (2006). We hold that the trial court did not abuse its discretion by allowing the disputed photographs into evidence.
Appellant’s remaining point on appeal is that the trial court erred by denying his motion for a mistrial. During the State’s rebuttal closing argument, the prosecutor made the | sfollowing statement: “But, you know, [appellant’s counsel] talks on and on about what other possibilities. He could’ve talked to the Sheriffs Depart ment. He could’ve talked to the police.” Appellant immediately objected and asked for a mistrial, arguing that the statement was an improper comment on appellant’s Fifth Amendment right not to incriminate himself. The trial court stated that it was overruling the objection and would allow the statement. No admonition to the jury was requested and none was given.
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. Nickelson v. State, 2012 Ark. App. 363, 417 S.W.3d 214. 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.
Appellant asserts that the remark by the prosecutor was an improper comment on his post-arrest, post-Miranda silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Appellant’s argument has two major flaws. First, it is not clear that the prosecutor’s comment violates Doyle. In his closing argument, appellant’s counsel alleged that no one had looked into the possibility that something happened to M.B. while she was living with her grandparents. It is plausible that the prosecutor’s statement was aimed at questioning why, if appellant had suspicions that something happened to M.B. while she was at her grandparents’ home, he never voiced those suspicions. There is no indication from the statement itself that the prosecutor was referring to post-arrest, post-Miranda silence by 19appellant. Second, our supreme court has held that a limiting instruction will suffice to cure a Doyle violation where, as here, the possible prejudice could have been cured by an admonition to the jury. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). Appellant never requested an admonition, so none was given. When there is doubt as to whether the trial court abused its discretion, a failure to request an admonition will negate a mistrial motion. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). We hold that the trial court did not abuse its discretion by denying appellant’s motion for a mistrial.
Affirmed.
GLADWIN, C.J., and HIXSON, J., agree. | [
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PER CURIAM.
| jA Pulaski County jury convicted appel-lee Juan Estrada of one count of rape and one count of first-degree sexual abuse, and appellee was sentenced to life imprisonment and ten years’ imprisonment, respectively. We affirmed. Estrada v. State, 2011 Ark. 3, 376 S.W.3d 395. Subsequently, appellee filed in the circuit court a timely, verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011), alleging several claims of ineffective assistance of counsel.
A hearing was held on the petition, and the circuit court entered an order granting appellee a new trial based on one ground of ineffective assistance as to the rape conviction and two grounds of ineffective assistance as to the sexual-abuse conviction. It is from this order that the appel lant State has filed the instant appeal. Because we determine that the circuit court’s decision was not clearly erroneous, we affirm.
As an initial matter, we reiterate that there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State; the former is a matter of right, whereas the latter is not derived from either the United States or 12Arkansas Constitution, nor is it a matter of right, but is granted pursuant to Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal (2011). See State v. Threadgill, 2011 Ark. 91, 382 S.W.3d 657 (citing State v. Boyette, 362 Ark. 27, 207 S.W.3d 488 (2005)). We have held, however, that the State is entitled to appeal from a circuit court’s grant of a Rule 37.1 petition, because such postconviction proceedings under Rule 37.1 are civil in nature. State v. Robinson, 2011 Ark. 90, 2011 WL 737152. When an appeal involves neither a direct nor an interlocutory appeal following a prosecution, but is an appeal arising from a collateral proceeding, the appeal is civil in nature, and the State is not required to satisfy Rule 3.
This court will not reverse a circuit court’s decision granting postconviction relief unless it is clearly erroneous. See State v. Brown, 2009 Ark. 202, 307 S.W.3d 587. In an appeal from a grant of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was ineffective. See generally Charland v. State, 2012 Ark. 246, 2012 WL 1950251. 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. Brown, 2009 Ark. 202, 307 S.W.3d 587. The State may meet this burden by establishing either that trial counsel’s performance was not deficient or that there was not a reasonable probability that, but for the deficient performance, the outcome of the trial would have been different. See id.; see also State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). With that standard in mind, we address each of the State’s points | o,on appeal in turn.
The Rape Conviction
Appellee was convicted of the rape of C.O., a minor, under Arkansas Code Annotated section 5-14-103(a)(4) (Repl.1997). In his petition for postconviction relief regarding the rape conviction, appellee argued, and the circuit court agreed, that trial counsel had been ineffective in failing to use the victim’s recorded statements to police to impeach her credibility.
At trial, then-fifteen-year-old C.O. testified that her mother and appellee’s wife were sisters, that appellee’s daughter often served as a babysitter when C.O. was younger, and that C.O. was left alone with appellee at times. She further testified that, around the time that she was four years old, appellee would often touch her “private areas,” masturbate in front of her, penetrate her vagina with his penis, and kiss her on the mouth and neck “every time [she] was alone with him.” She also testified that her family moved to Texas when she was five years old, but that, when they came back to Arkansas for Thanksgiving in 2001 when she was seven years old, appellant again had sexual intercourse with her when she was left alone with him.
Detective Julie Rose of the North Little Rock Police Department also testified at the trial. Detective Rose stated that she had interviewed C.O. multiple times during the investigation of appellee. While C.O. had made recorded statements to Det. Rose regarding the Thanksgiving 2001 allegation, trial counsel did not ask Det. Rose about these statements, and the jury was never informed that the statements existed. Notably, in the recorded statements, C.O. asserted more than once that her grandparents were asleep downstairs during [4the incident, despite the fact that C.O.’s grandmother had died in 2000. Transcripts of these recorded statements were in the prosecutor’s file, but they were not introduced at trial or used to impeach C.O.’s credibility.
At the Rule 37.1 hearing, trial counsel testified that she was aware that C.O.’s grandmother had died in 2000, and she did not have a tactical reason for not using the statements to impeach CO. Counsel admitted that the statements would have been good for impeachment purposes, and she testified that there was “definitely a time line problem” with C.O.’s allegations.
In its order granting postconviction relief, the circuit court determined that trial counsel’s failure to use the statements to impeach C.O.’s credibility amounted to deficient performance. Specifically, the circuit court stated, “[T]rial counsel failed to use this inconsistency to cast doubt on C.O.’s recollection of the events, and thereby impeach her credibility.” Regarding the prejudice prong of Strickland, the circuit court held that the failure to use the statements “was an error that but for its commission, there is a reasonable probability that the outcome of the proceeding would have been different on that offense.”
On appeal, the State argues that this decision was clearly erroneous because the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense, particularly in cases of sexual crimes against children. See Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009). Moreover, the State contends that providing for a margin of error |5in the timing given by a victim’s testimony produces no prejudice to a defendant who denies the charges as fabrications. See Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992). Finally, the State contends that, because C.O. testified that there were several rapes over a period of years, it is unreasonable for the circuit court to conclude that inconsistency around the date of the 2001 allegation would have impeached C.O.’s credibility such that the jury would have disregarded all her testimony.
The State’s argument fails on two counts. First, we have held that, where there is no physical evidence, and the only evidence against a defendant in an allegation of sexual crimes against a minor is the testimony of the victim, the victim’s credibility is highly relevant; trial counsel’s failure to impeach that credibility may amount to ineffective assistance when evidence exists that would cast doubt on the defendant’s guilt. See Dillard, 338 Ark. 571, 998 S.W.2d 750 (citing Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995)). In this case, as in Dillard and Wicoff, the only evidence of appellee’s guilt was the testimony of C.O., and trial counsel knew that the “trial was going to come down to a swearing match between appellee” and the victim. Dillard, 338 Ark. 571, 998 S.W.2d 750. Thus, we cannot say that the circuit court was clearly erroneous in finding that trial counsel’s failure to use C.O.’s statement as impeachment evidence amounted to ineffective assistance.
Secondly, the State’s argument ignores our long-standing rule that we defer to the circuit court’s determination on matters of credibility in a Rule 37.1 appeal. See State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007) (citing Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001)). J^Here, the circuit court rejected many of appel-lee’s allegations of ineffective assistance, but it found that, had counsel impeached C.O.’s credibility with her statements to Det. Rose, there is a reasonable probability that the outcome would have been different. Indeed, this was the only ground on which the circuit court found that post-conviction relief was warranted as to the rape conviction. Clearly, then, the circuit court determined that, considering the totality of the evidence presented, this specific bit of evidence could have swayed the jury’s verdict had it been presented. We defer to the circuit court regarding matters of credibility, and, as such, we cannot say that the court’s decision was clearly erroneous. Barrett, 371 Ark. 91, 263 S.W.3d 542.
The Sexual-Abuse Conviction
Appellee was convicted of first-degree sexual abuse under Arkansas Code Annotated section 5-14-108 (Repl.1997). That statute, as was in effect at the time of appellee’s conviction, made it a Class C felony for anyone eighteen years of age or older to engage in sexual conduct with another person who is younger that fourteen years of age and is not the person’s spouse.
At trial, then-eighteen-year-old C.P. testified on direct examination that, in December 1999, she and her family came from Texas to Arkansas to see a relative’s new baby. On that trip, C.P. testified that she was sleeping on appellee’s couch one night when he laid down 17behind her, that he began rubbing on her vagina over the top of her clothes, that he pulled her pants and underwear down and rubbed his penis against her vagina without penetration. Finally, C.P. testified that appellee stopped when someone came into the house and, when the third person left, appellee went back upstairs and left C.P. alone.
On cross-examination, C.P. testified that she did not tell anyone about this incident until after C.O. told her about appellee’s behavior, that she had told Det. Rose that her brother was asleep in the room when the incident occurred, and that she had also told the detective that she was not initially sure when the incident occurred. On re-direct, C.P. stated that she was previously confused about when the incident had occurred, but that she was certain that the event had occurred during that December 1999 trip.
During the Rule 37.1 hearing, trial counsel testified that she was aware that the sexual-abuse charge against appellee was alleged to have occurred between June 4, 1998, and June 4, 1999; that she realized during trial that the December 1999 date was well outside this alleged range; that she failed to object to C.P.’s testimony regarding a date that was outside the dates in the felony information because she felt that the jury was predisposed to believe C.P.’s testimony regardless; that, if there were witnesses in Texas who could have placed appellee there in December 1999, that would have been helpful; and that she was unaware of any such witnesses. Appellee’s sister, Liria Ramirez, testified that appellee came to Texas in November 1999 and was there through December “pretty much” every year between 1994 and 2004 due to his seasonal work as a painter. Ramirez also testified that trial counsel had not spoken to [ sher prior to the trial. Appellee’s other sister, Martha Diaz, corroborated Ramirez’s story, testifying that she had picked up appel-lee in Texarkana in November of 1999 and taken him back to Texas, where he remained until the “latter part of January, close to February” of 2000.
Additionally, conflicting testimony was given during the Rule 37.1 hearing regarding whether trial counsel had ever been provided with Ramirez’s and Diaz’s names. Trial counsel testified that she was aware of some witnesses who could place appellee in Texas in December 2000, but that she did not inquire as to whether any witnesses could place him there at other times.
In its order, the circuit court found that trial counsel had been ineffective in failing to inquire as to whether any witnesses could place appellee in Texas in December of other years alleged in the charging information and that, had she so inquired, it is likely that she would have discovered the existence of Ramirez and Diaz and the testimony that they would have given regarding appellee’s whereabouts in December 1999. This failure to investigate, coupled with counsel’s failure to object to the testimony that placed the incident outside the range in the felony information, prejudiced appellee because, but for those errors, there is a reasonable probability that the outcome would have been different on the sexual-abuse charge.
On appeal, the State argues that C.P. testified on re-direct that she could not remember the exact date of the offense, so any testimony by Diaz and Ramirez would not have mattered, as the jury could give C.P. a margin of error for her recollection and convict appellee of the sexual-abuse charge. This argument is without merit.
|9The State misconstrues C.P.’s testimony regarding confusion about the date of the alleged crime. On direct examination, C.P. testified that it occurred on or about December 9, 1999, which was when her sister gave birth. On cross-examination, C.P. admitted to initially telling police that the incident occurred on a different date, when her grandfather was sick, which C.P. chalked up to being “probably confused about the dates because it was all in the winter.” During the State’s redirect examination, C.P. explicitly stated that, after she had talked about the incident more and thought about the situation, she “realized that it was actually the trip — that it was my sister that was giving birth — the trip that it happened up here.” She then stated that there was “no doubt in [her] mind” as to when or where this took place. She affirmed this specific date on recross-examination, stating that she “determined that this happened on a trip when my sister had her baby after talking to Mr. Jones,” and she again affirmed the date on redirect before being released as a witness.
Clearly, the testimony elicited by the State on direct examination and both rounds of re-direct examination focused on nailing down the December 9, 1999 date as the correct date for the crime and on explaining why C.P. initially got the date wrong. Given this, along with C.P.’s own statements that she had “no doubt” that December 9, 1999, was the correct date, we cannot say that the circuit court was clearly erroneous in determining that testimony from two witnesses that directly contradicted C.P.’s testimony and the State’s assertions would not have a reasonable probability of changing the outcome on this charge.
Based on our well-established standard of review under Strickland, we hold that the 1 incircuit court was not clearly erroneous in its rulings on both of appellee’s convictions. Accordingly, we affirm the circuit court’s grant of new trial based on ineffective assistance of counsel.
Affirmed.
. At trial, C.O. did not testify that her grandparents were sleeping downstairs when the 2001 incident occurred.
. That statute was repealed by Act 1738 of 2001, and first-degree sexual abuse is now codified as second-degree sexual assault at Arkansas Code Annotated section 5-14-125 (Supp.2003). | [
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DAVID M. GLOVER, Judge.
|TSt. Edward Mercy Medical Center and its carrier, Sister of Mercy Health System, appeal from the Workers’ Compensation Commission’s decision, which found that Jimmie Howard was entitled to additional medical services related to his admittedly compensable work injury and temporary-total disability benefits from November 16, 2010, through February 7, 2011, without any off-set for vacation pay. We affirm.
Background
The basic facts of this case are essentially undisputed, were set forth by the Administrative Law Judge, and were adopted by the Commission. Jimmie Howard began working for St. Edward Mercy Medical Center in May 2000. On August 18, 2010, he sustained an admittedly compen-sable injury while lifting a work table, experiencing low-back pain that radiated down his left leg. There was no dispute about the medical services ^provided to him through November 15, 2010. Instead, the dispute arose over surgery performed by Dr. Jorge Alvernia on November 16, 2010, and temporary-total disability benefits for the period November 16, 2010, to February 7, 2011, when Howard returned to work.
Howard testified that he suffered a great deal of pain in his lower back and legs from the time of the work injury until the surgical intervention. He attributed his condition resulting in surgery to his work accident because he never had a problem before then. He was off work for ten weeks following the surgery, during which time he drew the amount of his salary in vacation benefits, and his medical bills were paid by his regular health insurance.
The ALJ summarized the medical evidence as follows:
Dr. Nowlin’s review of x-rays dated August 30, 2010, reveal that the claimant had.
Grade I spondylolisthesis at L5-S1. Bulging of uncovered disc into the left exit foraman producing a moderate foraminal stenosis at this level. On the right side, there is a severe fora-minal stenosis at L5-S1 related spur formation. 1 his may potentially compromise the exiting right L5 root.
The claimant was then referred to Dr. Alvernia, and seen on September 15, 2010. Dr. Alvernia noted the claimant’s pain and recommended treatment with medicine and a brace for six weeks. Dr. Alvernia noted the claimant’s continued pain on October 18, 2010. A CT of the lumbar spine revealed.
1. Bilateral spondylolisthesis, grade 1 spondylolisthesis L5 on SI.
2. There is an uncovered disc at L5-S1 secondary to spondylolisthesis. There is a right lateral neural for-aminal spur and disc bulge at L5-S1 and there is a left lateral broad-based bulge of disc narrowing the left neural foramen at L5-Sl.
|s3. Left renal calcification incidently noted, probably small renal calculus.
The CT report also revealed that the CT findings were “similar or perhaps more pronounced than on prior MRI 8/30/10.” Dr. Alvernia noted in his report of November 3, 2010 that “on lumbar CT and MRI presence or L5 SI spondylolisthe-sis with associated bilateral pars interar-ticularis defect.” The doctor notes, at this point, he discussed treatment options with the claimant and the claimant decided to proceed with surgery.
Additionally, on November 11, 2010, Dr. Alvernia in response to written questions from the workers’ compensation insurance provider listed the following:
1.Bilateral spondylolisthesis L5-S1 is the origin of his symptoms.
— Bilateral SI radiculopathy.
— Back pain.
— Neurological claudication.
2. The origin of his spondylolisthesis is a combination of degenerative process with trauma at some point.
3. Way to fix: the spondylolisthesis is through surgery.
The claimant had surgery on November 16, 2010. Dr. Alvernia’s notes regarding his follow up with the claimant, consistently reveal the claimant is “doing great” with no back pain.
In preparation for the hearing on October 18, 2011, the deposition of Dr. Alvernia was taken. He testified that, because of the radiation of the pain and the severity of the pain and associated findings on a lumbar MRI, he made a diagnosis of “L5-S1 was disc herniation, was degenerative spondylolisthesis on grade one.” He added that [it] is hard to tell if spondylolisthesis is induced from trauma or a degenerative condition, but that it could be aggravated by lifting a heavy object. He added that the claimant had an underlying degenerative condition in his back but that he would not have recommended surgery if the condition had not become symptomatic. He continued that the symptoms caused the need for surgery and that the job related accident contributed to the need for surgery. The doctor also testified that he considered the recommended surgery reasonably necessary from a medical standpoint. Dr. Alvernia confirmed that the claimant returned to work on February 7, 2011, after being off work for surgery and recovery for ten weeks. He|4added that he considered ten weeks a reasonable amount of time to be off work, considering the Rind of surgery that the claimant had received.
(Record & exhibit citations omitted.)
Standard of Review
We review a decision of the Workers’ Compensation Commission to determine whether there is substantial evidence to support it. Crosby v. Eaton Corp., 2012 Ark. App. 565, 2012 WL 4831821. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Id. It is the Commission’s province to weigh the evidence and determine what is most credible. Id. The Commission is the ultimate arbiter of weight and credibility. Towler v. Tyson Poultry, Inc., 2012 Ark. App. 546, 423 S.W.3d 664. The issue on appeal is not whether we would have reached a different result or whether the evidence would have supported a contrary conclusion, we will affirm if reasonable minds could reach the Commission’s conclusion. Crosby, supra.
The question of the correct interpretation and application of an Arkansas statute is a question of law, which we decide de novo. Stewart v. Arkansas Glass Container, 2010 Ark. 198, 366 S.W.3d 358. It is for this court to decide what a statute means. Id. In deciding what a statute means, the interpretation of a statute by the agency charged with its execution is highly persuasive, and, while not binding on this court, will not be overturned unless it is clearly wrong. Arkansas Elec. Energy Consumers, Inc. v. Arkansas Pub. Serv. Comm’n, 2012 Ark. App. 264, 410 S.W.3d 47. When we construe the workers’ compensation statutes, we must strictly construe them. Stewart, supra. Strict construction is 1 Bnarrow construction and requires that nothing be taken as intended that is not clearly expressed. Id. The doctrine of strict construction requires this court to use the plain meaning of the language employed. Id.
Discussion
For their first point of appeal, appellants challenge the Commission’s interpretation and application of Arkansas Code Annotated section ll-9-807(b) (Repl. 2012). Appellants contend that Howard is not entitled to temporary-total disability benefits as a matter of law because he received his full wages during the period of recovery from surgery. They take the position that they are entitled to an offset because Howard used his vacation to cover his time off from work. We disagree.
We note that neither party has provided us with an Arkansas appellate case that addresses this issue, likewise, our research has not revealed one. Appellants direct our attention to a 2011 ALJ opinion, Winkley v. St. Edward Mercy Medical Center, Claim No. G006579 (May 6, 2011), that was affirmed and adopted by the Commission, but from which no appeal was taken to our court. Thus, we are faced with an issue of first impression and two seemingly conflicting. Commission decisions.
Arkansas Code Annotated section 11-9-807(b) provides, “(b) If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period.” “Wages” is defined in pertinent part as
|fithe money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer and includes the amount of tips required to be reported by the employer ... or the amount of actual tips reported, whichever amount is greater!.]
Ark.Code Ann. § 11-9-102(19) (Repl.2012).
In making their argument to us, appellants isolate and emphasize the word “rate” contained in the definition of wages, contending that “the definition of wages is synonymous with an employee’s pay rate,” and concluding that “[i]n light of this definition, the meaning of ‘full wages’ in Ark. Code Ann. § 11 — 9—807(b) must refer to a situation where the employee receives payments at the same rate at which he would have received had he worked.” Appellants contend that, because Howard’s vacation pay was the same rate as his regular pay, he received “full wages” during his period of disability. However, we think isolating the word “rate” in this manner distorts the plain meaning of the language employed in section ll-9-807(b). Instead, the entire phrase defining wages as “the money rate at which the service rendered is recompensed,” from section 11-9-102(19), must be examined in order to determine the plain meaning of section ll-9-807(b). In doing so, we hold that “full wages” under ll-9-807(b) refers to the money rate paid to recompense services rendered and that vacation pay is that sum received as an employee benefit when no services are rendered. As generally explained in Larson’s treatise on Workers’ Compensation Law, “A second type of payment for which credit is usually disallowed is any kind of sick pay or vacation pay of which it can be said that the claimant’s [ 7entitlement to the payment is based on past service rather than on, the injury as such.” 4 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 82.06[3] (2012). That is the situation presented here.
For their second point of appeal, appellants contend that substantial evidence does not support the Commission’s finding that Howard is entitled to the additional medical treatment provided by Dr. Alvernia because the treatment was not reasonably necessary in connection with appellee’s compensable injury. We disagree.
The additional medical treatment that was disputed by appellants was the back surgery and related treatment performed by Dr. Alvernia. Howard’s counsel summarizes the issue facing us as, “The real issue in this case is whether the job-related injury caused a previously asymptomatic condition to become symptomatic and whether that symptomotology resulted in a need for the surgery that Dr. Alvernia performed in November of 2010.”
The ALJ concluded that Howard had provided sufficient evidence to prove that his request for additional medical services was reasonably and necessarily related to his compensable injury sustained on August 18, 2010, explaining that Dr. Alvernia testified in his deposition that Howard had a degenerative back condition (spon-dylolisthesis) that had not been symptomatic prior to the work incident and that heavy lifting — such as that which caused the initial injury — could aggravate the preexisting spondylolisthesis. Dr. Alver-nia explained that it was hard to tell if spondylolisthesis is induced from trauma or a [^degenerative condition, but that it could be aggravated by lifting a heavy object. He recognized that the claimant had an underlying degenerative condition in his back but further stated that he would not have recommended surgery if the condition had not become symptomatic. The doctor therefore concluded that the symptoms caused the need for surgery and that the job-related accident contributed to the need for surgery. Dr. Alvernia explained that if a person became symptomatic within twenty-four hours of a traumatic event, it would be likely that the trauma caused the onset of the symptoms, such as in Howard’s case. The doctor finally testified that he considered the recommended surgery reasonably necessary from a medical standpoint. The ALJ credited the testimony of Dr. Alvernia, which was the judge’s prerogative.
It is the Commission’s duty, not ours, to make credibility determinations, to weigh the evidence, and to resolve conflicts in the medical testimony. Lankford v. Crossland Constr. Co., 2011 Ark. App. 416, 2011 WL 2141396. A covered employer is required by statute to provide an employee with such medical services as may be reasonably necessary in connection with the work-related injury. Id. The injured employee has the burden of proving by a preponderance of the evidence that the additional medical treatment requested was reasonable and necessary. Id. What constitutes reasonable and necessary is a question of fact for the Commission. Id. We conclude that reasonable minds could reach the Commission’s conclusion, and we affirm the award of additional medical benefits.
19As their final point of appeal, appellants contend that substantial evidence does not support the Commission’s finding that Howard is entitled to temporary-total disability benefits from November 16, 2010, through February 7, 2011, because the disability was the result of surgery that was unrelated to appellee’s compensable injury. We disagree.
Dr. Alvernia stated that ten weeks was a reasonable amount of time to be off work under the circumstances. Because we have concluded that the Commission’s decision under the preceding second point of appeal was supported by substantial evidence, it is clear that we must also affirm the award of temporary-total disability benefits for the period November 16, 2010, through February 7, 2011.
Affirmed.
VAUGHT, C.J., and ABRAMSON, J., agree.
. (There, the ALJ concluded that payments received under a paid-leave program during the claimant’s period of alleged disability constituted “full wages” under § 11 — 9—807(b).) | [
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JIM GUNTER, Justice.
| Appellant was convicted of driving while intoxicated (DWI) and following too close and now appeals his conviction for DWG, arguing that the circuit court erred in allowing testimony regarding the administration and results of his breathalyzer test because the person who calibrated the machine was not made available to testify, which violated appellant’s Confrontation Clause rights. We have granted a petition for review in this case; therefore, we have jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(e). We affirm.
On April 9, 2010, Sergeant Jeff Lane of the Benton Police Department initiated a traffic stop on a vehicle driven by appellant after observing the vehicle following too close to an eighteen-wheeler. Lane detected an odor of intoxicants and observed that appellant’s eyes were bloodshot and his speech was slurred. After performing a series of field-sobriety tests, Lane called Officer Steven Beck, a member of the DWI task force, to take custody of appellant. Beck transported appellant to the Benton Police Department, where another officer [2read appellant his statement of rights. Beck then administered two blood-alcohol tests using the BAC Da-tamaster; the first test showed a result of .105, and the second test showed a result of .108. Appellant was later found guilty of DWI and following too close in the Saline County District Court. Appellant was fined $150 for following too close and $1100 for DWI. In addition, appellant was sentenced to one day in jail with a one-day credit and given a thirty-day suspended sentence. Appellant timely appealed to the Saline County Circuit Court.
On April 19, 2011, appellant filed a motion for discovery requesting, inter alia,
the presence of, and gives notice of his intent and desire to cross-examine the BAC operator, any person employed by law enforcement who was in anyway associated with the calibration, certification or operation of the BAC Datamaster, and any person from the Department of Health blood alcohol program, who was in any way associated with the calibration, certification or operation of the BAC Datamaster used in determining the Defendant’s blood alcohol concentration in accordance with A.C.A. § 5-65-206(d)(2).
A bench trial was held on June 23, 2011. During the testimony of Officer Beck, appellant objected to the introduction of certificates from the Arkansas Department of Health that certified that the BAC Data-master was properly certified and calibrated. Appellant argued that the certificates were testimonial hearsay and that their admission would be a violation of the confrontation clause according to Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Appellant asserted that, in his motion for discovery, he had requested the presence of all persons from the Arkansas Department of Health who were associated with calibrating or certifying the BAC Data-master, and because the State had not provided for those persons to be in attendance, the certificates and test results from the BAC Datamaster should not be |sadmitted. In response, the State argued that the certificates were not testimonial in nature and that Melendez-Diaz did not apply to nontestimonial equipment records of this type.
Appellant then argued that while the applicable Arkansas statute requires the defense to subpoena any analyst it wishes to cross-examine, the Supreme Court in Melendez-Diaz declared that the State could not force a defendant to subpoena a State’s witness. The State disagreed and argued that the Court said the states were free to implement procedural requirements to this right of confrontation. The court overruled appellant’s objection and ruled that the statute was constitutional and that “the case law that has been cited by each of the parties does not necessarily apply to the situation involved here with these certificates.” The State proceeded to introduce, inter alia, an Operator Certificate for Breath Testing issued to Officer Beck, an Instrument Certificate for the BAC Data-master in question showing that the machine had been certified on April 1, 2010, and the ticket printout from the BAC Da-tamaster showing the results of appellant’s breathalyzer test.
After the close of the evidence, and the renewal of appellant’s objections, the court found appellant guilty of following too close and DWI. In a judgment filed June 28, 2011, appellant was sentenced to pay costs of $800 and to pay a fine of $930. Appellant appealed to the court of appeals, which affirmed the circuit court in Chambers v. State, 2012 Ark. App. 383, 2012 WL 2129334. Appellant then petitioned this court for review, which was granted on August 14, 2012. When we grant review of a decision by the court of appeals, we review the case as though the appeal had originally been filed in this court. Hudak-Lee v. Baxter Cnty. Reg’l Hosp., 2011 Ark. 31, 378 S.W.3d 77.
On appeal, appellant again asserts that the circuit court erred in allowing testimony regarding the administration and results of the breathalyzer test. This court has said that trial courts have broad discretion in evidentiary rulings and that a trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Travis v. State, 371 Ark. 621, 269 S.W.3d 341(2007). Questions of constitutional interpretation are subject to a de novo standard of review. Vankirk v. State, 2011. Ark. 428, 385 S.W.3d 144.
The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause guarantees a defendant’s right to confront those “who ‘bear testimony’ ” against him. Id. at 51, 124 S.Ct. 1354. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. • Id. at 54, 124 S.Ct. 1354. The Crawford opinion described the class of testimonial statements covered by the Confrontation Clause as follows:
Various formulations of this core class of “testimonial” statements exist: “ex • parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecuto-rially,”; “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,”; “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later |fitrial[.]”
Id. at 51-52, 124 S.Ct. 1354 (internal citations omitted).
Two recent United States Supreme Court cases have dealt with the effect of the Crawford decision with respect to scientific reports. In Melendez-Diaz, supra, the prosecution introduced affidavits reporting the results of forensic analysis, which confirmed that the substance seized by the police and connected to the defendant was cocaine. The Supreme Court held that the affidavits were testimonial in nature, as they had been created for the sole purpose of providing evidence against the defendant and were “functionally identical to live, in-court testimony.” Id. at 310-11, 129 S.Ct. 2527. Thus, the affiants were witnesses subject to the defendant’s right of confrontation, and without a showing that the analysts were unavailable to testily at trial and that the defendant had a prior opportunity to cross-examine them, the defendant was entitled to cross-examine the analysts at trial. ' The Court also rejected the claim that no Confrontation Clause violation had occurred because the defendant had the ability to subpoena the analysts:
. Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affi-ants if he chooses.
Melendez-Diaz, 557 U.S. at 324-25, 129 S.Ct. 2527.
Most recently, in Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the |fidefendant was charged with DWI, and the principal evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was above the legal limit. At trial, however, the prosecution did not call as a witness the analyst who performed the test and signed the report; instead, the prosecution called another analyst who was familiar with the testing procedures but had not participated in testing the defendant’s blood sample. The New Mexico Supreme Court held that the defendant’s confrontation rights were not violated, but the Supreme Court reversed and held that a scientific report could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation. The Court also reiterated that an analyst’s certification prepared in connection with a criminal investigation or prosecution is testimonial and therefore within the compass of the Confrontation Clause. Id. at 2713-14.
On appeal, appellant first asserts that the Arkansas appellate courts have held that the State must make the person who calibrates the machine available for cross-examination upon reasonable notice given to the prosecutor, citing Johnson v. State, 17 Ark.App. 82, 703 S.W.2d 475 (1986), and Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990). In Johnson, the court of appeals held that the State did not have a duty to produce the person who calibrated the chemical-analysis machine when not requested to do so by the defense, and in Smith, this court adopted the rationale in Johnson and held-that Ark.Code Ann. § 5-65-206(d)(l) (1987) requires only that the person who calibrates the machine, and the person who operates it, be made available for cross-examination by the defense upon reasonable notice to the prosecutor. |7Appellant contends that, in the present case, his motion for discovery gave proper notice of his desire and intent to cross-examine all persons responsible for the calibration and certification of the BAC Datamaster. However, the flaw in appellant’s argument is that both Johnson and Smith were decided based on a previous version of the statute; § 5-65-206(d) was amended in 2001, and the amended version eliminated the requirement that the persons involved with calibration be made available by the State if notice was given by the defense. See Act of Mar. 5, 2001, No. 561, § 12, 2001 Ark. Acts 2241, 2252. Thus, appellant’s reliance on these cases is misplaced and unavailing.
Next, citing Melendez-Diaz, appellant argues that both the Operator Certificate and Instrument Certificate introduced at trial were testimonial affidavits and should not have been admitted. In response, the State contends that the certificates were nontestimonial and thus the admission of the certificates did not violate appellant’s right to confrontation. The State argues that the certificates were properly admitted under Ark.Code Ann. § 5-65-206(d)(1)(A), which provides that
a record or report of a certification, rule, evidence analysis, or other document pertaining to work performed by the Office of Alcohol Testing of the Department of Health under the authority of this chapter shall be received as competent evidence as to the matters contained in the record or report in a court of this state, subject to the applicable rules of criminal procedure when duly attested to by the Director of the Office of Alcohol Testing of the Department of Health or his or her assistant, in the form of an original signature or by certification of a copy.
In addition, Ark.Code Ann. § 5-65-206(d)(2) provides that the instrument performing the chemical analysis shall have been duly certified at least one time in the last three months ^preceding arrest and that the operator of the instrument shall have been properly trained and certified. Thus, the certificates were admitted to establish Officer Beck’s authority to perform the breathalyzer test and the accuracy of the machine and not to provide testimonial evidence at the trial. The State also asserts that the majority of states that have considered maintenance or calibration records such as these have found them to be nontestimonial in nature. See, e.g., Matthies v. State, 85 So.3d 838 (Miss.2012) (holding that records pertaining to intoxi-lyzer inspection, maintenance, or calibration are nontestimonial in nature, and thus, their admission into evidence is not viola-tive of the Confrontation Clause of the Sixth Amendment, and also providing string cite to other jurisdictions with similar holdings).
The State also construes appellant’s argument as challenging the test results that were admitted and argues that, while the results were testimonial, they were properly admitted because the officer who performed the test, Officer Beck, was present and cross-examined, which comports with the requirements of the Confrontation Clause. However, after a thorough examination of appellant’s argument on appeal, it does not appear that he has developed any argument pertaining to the admission of the BAC results; therefore, we hold that this argument has been abandoned on appeal. See State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007) (arguments raised below but not on appeal are considered abandoned).
Returning to the argument that is presented on appeal, namely that the two certificates were testimonial and admitted in error, we hold that the certificates were nontestimonial in nature and thus no Confrontation Clause violation occurred. Unlike the documents inj^Melendez-Diaz and Bullcoming, the certifications in this case were not created for the purpose of providing evidence against any particular defendant or in the furtherance of the prosecution of a defendant. Many other state courts have reached this same result; for example, when addressing this same issue, the Massachusetts Supreme Court held that certification records of a breathalyzer machine were nontestimonial and their admission into evidence without the testimony of the person who performed the certification did not violate the Confrontation Clause. See Commonwealth v. Zeininger, 459 Mass. 775, 947 N.E.2d 1060 (2011). The court held that certification records of the breathalyzer machine were not within the various definitions of “testimonial” set forth in Crawford, and the court explained:
Whereas certificates of drug analysis were offered as direct proof of an element of the offense charged, Melendez-Diaz, supra at 2532, the OAT [office of alcohol testing] certification records bear only on the admissibility or credibility of the evidence. The OAT certification records are offered, first, as proof that the Commonwealth has met a foundational predicate to admissibility of the breathalyzer test results and, then, either through direct testimony or by implication, as evidence bolstering the reliability of those results.... We agree with the Court of Appeals of Oregon, which concluded that such records “bear a more attenuated relationship to conviction: They support one fact (the accuracy of the machine) that, in turn, supports another fact that can establish guilt (blood alcohol level).” State v. Bergin, [231 Or.App. 36] at 41, 217 P.3d 1087 [(2009)]. Indeed, it appears that the Supreme Court has already acknowledged this attenuation, stating in Melendez-Diaz, supra at 2532 n. 1: “Contrary to the dissent’s suggestion ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.... [Documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”
Further, the OAT certification records were made “for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial,” the distinction the Supreme Court forged between business records traditionally admissible absent confrontation and testimonial records subject to confrontation. Melendez-Diaz, supra at 2539-2540. See Crawford, supra at 56, 124 S.Ct. 1354 TheJjjOAT certification records are maintained in the routine administration of the affairs of an administrative agency tasked with quality control, not with supplying evidence “taken for use at trial.” Michigan v. Bryant, - U.S. -, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011) (“objective of the Confrontation Clause” is to provide opportunity to cross-examine when statements are “taken for use at trial”).
In comparison to a chemist who authors certificates of drug analysis, a technician certifying a breathalyzer machine has no “particular prosecutorial use in mind.” State v. Bergin, supra. The certificate of analysis is particularized and performed in aid of a prosecution seeking to prove the commission of a past act and, thus, resembles the type of “ex parte in-court testimony or its functional equivalent” at the nucleus of the confrontation clause. Crawford, supra at 51, 52, 124 S.Ct. 1354. That the OAT certification records are generalized and performed prospectively in primary aid of the administration of a regulatory program makes all the difference.
Zeininger, 947 N.E.2d at 1069-70. We adopt this reasoning and hold that calibration records of a breathalyzer machine are not testimonial, and thus the admission of those records without the testimony of the person who performed the calibration does not violate the Confrontation Clause.
Finally, appellant again argues that under Melendez-Diaz, he was not required to subpoena the person who performed the calibration. Arkansas Code Annotated section 5-65-206(d)(3) provides that “[n]othing in this section is deemed to abrogate a defendant’s right to confront the person who performs the calibration test or check on the instrument, the operator of the instrument, or a representative of the office,” and the testimony of the appropriate analyst or official may be compelled by the issuance of a proper subpoena by the party who wishes to call the analyst as a witness. Id. § 5 — 65—206(d)(4). What appellant fails to recognize, however, is that the Supreme Court’s holding on this issue was predicated on its earlier holding that the reports in that case were testimonial. Because the reports were Intestimonial, the prosecution had a duty to provide the appropriate witness to introduce the report into evidence, and that duty could not be shifted to the defendant through his ability to subpoena the witness. However, in the present case, because the certificates were not testimonial, the State had no duty to provide the person who performed the certification of the BAC Datamaster as a witness, and if appellant wished to cross-examine that person, he could have subpoenaed that person pursuant to Ark. Code Ann. § 5-65-206(d)(4). Thus, we find no basis for reversal on this point and affirm.
Affirmed; Court of Appeals opinion vacated.
DANIELSON, J., concurs. | [
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KAREN R. BAKER, Justice.
_JjThis appeal stems from litigation between Arloe Designs, LLC (Arloe) and Arkansas Capital Corporation (ACC) and National Bank of Arkansas (NBA). We affirm.
Arloe is an Arkansas business owned and operated by Marshal L. Jacobs. It specializes in the design, refurbishing, manufacture, and installation of aircraft interiors for small aircraft. In 2007, Jacobs put together a proposal to expand Arloe’s operation to include exterior aircraft paint and servicing. In order to expand his operation, Jacobs proposed to build a 4900 square foot building at the North Little Rock Municipal Airport. In order to facilitate financing, Jacobs offered to provide a cash-equity infusion and a $100,000 bond as additional collateral.
Arloe contends that ACC and NBA were to work together in a joint venture to procure the loan for Arloe. ACC is an Arkansas nonprofit set up to secure niche funding for Arkansas Small businesses. ACC prepared a document styled “loan proposal” that did not include the requirement of the bond as collateral. This document specifically stated that it L“did not constitute a contractual commitment of ACC to make a loan on these or any other terms.”
NBA sent a letter to Arloe on August 20, 2007, which stated that NBA had approved financing for the construction of the building. However, the letter stated that the approval was subject to several conditions, including the assignment of the lease from the North Little Rock Airport Commission and that the lease must be transferrable. Arloe entered into a 30-year lease for the new hangar in October, 2007. The terms of the lease prohibited the lease from being assigned.
Arloe asserts that on October 25, 2007, Jacobs was informed that NBA would not close the loan without the bond as collateral. Arloe did not give the bond as collateral, and so the loan was not closed.
Arloe filed suit against ACC and NBA, alleging that ACC’s and NBA’s actions were a breach of contract, violated the ADTPA, were negligent, and that Arloe had reasonably relied on the promise of NBA and ACC to its detriment. Arloe claimed damages equal to the lost profits it would have received had the loan been given and had it been able to expand its business as planned.
ACC and NBA filed motions for summary judgment, asserting that Arloe’s claims failed as a matter of law because it could not prove with reasonable certainty that the expansion of its business would have made a profit, because there was no contract, that there was no actionable claim for negligence because NBA and ACC owed no duty to Arloe, and because the ADTPA did not apply. The circuit court granted NBA and ACC’s motions for ^summary judgment as to all but Arloe’s promissory estoppel claim, and limited damages for that claim to the money that Arloe had spent in reliance on the claimed promise. The circuit court also granted NBA and ACC’s motion in limine to ex- elude the testimony of Steven Schroeder. Arloe had proffered the expert testimony of Steven Schroeder to show that Arloe’s proposed expansion would have been profitable.
At trial, the jury found that Arloe had not proved that either NBA or ACC had made a promise to loan Arloe money. Ar-loe brought this timely appeal and asserts five points on appeal: (1) that the circuit court erred in granting summary judgment on Arloe’s breach-of-contract claim; (2) that the circuit court erred in granting summary judgment on Arloe’s negligence claim; (3) that the circuit court erred in granting summary judgment on Arloe’s ADTPA claim; (4) that the circuit court erred in limiting damages on Arloe’s promissory estoppel claim; and (5) that the circuit court erred in finding that Arloe’s lost profit damages were barred. We have jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(b)(5).
Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Tillman v. Raytheon Co., 2013 Ark. 474, 430 S.W.3d 698 Once the moving party has established a prima facie case of entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in the light most favorable to the party 14against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Id.
For its first point on appeal, Arloe contends that the circuit court erred in granting summary judgment on its breach-of-contract claim. Arloe asserts that ACC and NBA did breach their contract, and that there is a material question of fact that an enforceable contract existed. We disagree.
In Williamson v. Sanofi Winthrop Pharmaceuticals, Inc., 347 Ark. 89, 60 S.W.3d 428 (2001), we said “it is well settled that in order to make a contract there must be a meeting of the minds on all terms, using objective indicators.” This court employs an objective test for determining mutual assent. See Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003). The proposal ACC sent to Arloe specifically states that it “IS NOT INTENDED TO AND DOES NOT CREATE A LEGALLY BINDING COMMITMENT OR OBLIGATION.” Further, just above the signature line on page 8 of the proposal, it states “The undersigned understands that this letter does not constitute a contractual commitment of ACC to make a loan on these or any other terms, and any representation to the contrary is hereby expressly disclaimed.” Here, the objective indicators show that ACC did not assent to an contract to lend money to Arloe. Therefore there is no question that this document did not create a legally binding contract to lend.
The circuit court found that the August 20, 2007 letter constituted evidence that NBA had approved financing for the building. However, this approval was subject to several |sconditions, including that the lease be transferrable. It is uncontested that the lease Arloe entered into was not transferrable. Because an express condition of the approval was not met, there was no contract. See Carter v. Cline, 2011 Ark. 474, 385 S.W.3d 745.
Arloe formed no contract with either ACC or NBA, therefore the circuit court did not err in granting summary judgment against Arloe for its breach-of-contract claim.
For its second point on appeal, Arloe asserts that the circuit court erred in granting ACC and NBA’s motion for summary judgment on its negligence claim. The circuit court found that ACC and NBA owed no duty of care to Arloe. The question of the duty owed to the plaintiff alleging negligence is always one of law and never one for the jury. D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254 (2002). If the court finds that no duty of care is owed, the negligence count is decided as a matter of law. Id.
Arloe contends that the issue before this court is whether a bank owes a duty to borrowers on a loan transaction. Arloe asserts that a duty can arise either from a contract or a relationship, and that the duty here arose from the parties’ relationship. In order for a duty of care to exist between a bank and a potential borrower, the relationship between the bank and the borrower must be either fiduciary or special in nature, beyond a routine debt- or-creditor relationship. See Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997).
Arloe was not a borrower on a loan transaction, because no contract to lend was formed, as shown above. Arloe has also brought forward no evidence to show that there was a special or fiduciary relationship between it and either ACC or NBA. In fact, the circuit court specifically found that Arloe and ACC and NBA entered into arms-length negotiations | sfor a commercial loan which did not come to fruition and that there was no evidence to indicate that there was a relationship of special trust and confidence. Therefore, the circuit court did not err in granting summary judgment against Arloe for its negligence claim.
For its third point on appeal, Ar-loe asserts that the circuit court erred in granting summary judgment on it’s claims under the ADTPA. The circuit court ruled that the ADTPA did not apply as a matter of law. Arkansas Code Annotated section 4-88-101 (Repl.2011) states:
This chapter does not apply to:
(3) Actions or transactions permitted under laws administered by the Insurance Commissioner, the Securities Commissioner, the State Highway Commission, the Bank Commissioner, or other regulatory body or officer acting under statutory authority of this state or the United States, unless a director of these divisions specifically requests the Attorney General to implement the powers of this chapter.
ACC is an Arkansas nonprofit and is subject to the supervision, examination, and control of the Arkansas State Bank Commissioner and the Arkansas State Board of Finance. NBA is a national bank and is regulated by the Office of the Comptroller of Currency and the Federal Deposit Insurance Commission. Because both ACC and NBA are regulated by a regulatory body acting under statutory authority of Arkansas or of the United States, their actions and transactions are not subject to claims that can be brought under the ADTPA unless a specific request has been made to the Attorney General. Arloe has not provided any evidence that such a request has been made. Therefore, we hold that the circuit court did not err in dismissing Arloe’s claims under the ADTPA.
For its next point on appeal, Arloe asserts that the circuit court erred in limiting its 17recovery on its promissory estop-pel claim. However, this point is moot. The interrogatories given to the jury stated:
Do you find that Arloe Designs, LLC has proven that Arkansas Capital Corporation made a promise to loan money to Arloe Designs, LLC?
and
Do you find that Arloe Designs, LLC has proven that National Bank of Arkansas made a promise to loan money to Arloe Designs, LLC?
The jury answered no to both of these interrogatories. Because the jury found that there was no promise for Arloe to rely on to its detriment, Arloe could not have received any damages from this claim.
For its final point on appeal, Arloe asserts that the circuit court erred in ruling that its lost-profit damages were not recoverable. In general, damages recoverable for breach of contract are those damages that would place the injured party in the same position as if the contract had not been breached. Optical Partners, Inc. v. Dang, 2011 Ark. 156, 381 S.W.3d 46. Damages must arise from the wrongful acts of the breaching party. Id. Consequential damages are defined as “[s]ueh damage, loss or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act.” Id. (quoting Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 604-05, 864 S.W.2d 817, 825 (1993)). Lost profits are recognized as a type of consequential damages. Id. Although recovery will not be denied merely because the amount of damages is hard to determine, damages must not be left to speculation and conjecture. Id.
The circuit court found that Ar-loe’s lost-profit damages were not recoverable because | sthe lost profit damages were too speculative. The circuit court further found that Arloe’s claims were barred by the new-business rule applied by this court in Marvell Light & Ice Co. v. Gen. Elec. Co., 162 Ark. 467, 259 S.W. 741 (1924). The new-business rule prohibits a new, never before operational business from recovering anticipated profits, as such damages are too remote, speculative, and uncertain to support a judgment for their loss. Arloe contends that the new-business rule should no longer be the law in Arkansas and asks that we overrule Marvell. We do not reach this point, however, as Arloe’s assertions are moot.
In order for Arloe to claim lost-profit damages, it must first demonstrate that ACC and NBA committed a wrongful act. It has not done so. Summary judgment was granted as to each of Arloe’s claims, leaving no cause of action to show that ACC and NBA committed a wrongful act under which Arloe can claim consequential damages.
Based on the discussion above, we hold that Arloe’s claims that the circuit court erred in denying it recovery for lost profit damages and limiting its damages on its promissory-estoppel claim are moot. We affirm the circuit court’s finding that summary judgment was proper in regard to Arloe’s breach-of-contract, negligence, and ADTPA claims.
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PER CURIAM.
|TIn accordance with section 2(D)(3) of amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, the Honorable J. Leon Holmes of the United States District Court for the Eastern District of Arkansas, Northern Division, has filed a motion and certification order with our clerk on January 14, 2014. The certifying court requests that we answer questions of law that may be determinative of a cause now pending in the certifying court, because it appears that there is no controlling precedent in the decisions of the Supreme Court of Arkansas.
After a review of the certifying court’s analysis and explanation of the need for this court to answer the questions of law presently pending in that court, we accept certification of the following questions:
1. Whether an entity that purchases delinquent accounts and then retains a [licensed Arkansas lawyer to collect on the delinquent accounts and file lawsuits on its behalf in Arkansas is “attemptfing] to collect,” thus meeting the definition of “collection agency,” pursuant to Arkansas Code Annotated section 17-24-1101?
2. Whether an entity that purchases delinquent accounts and then retains a licensed Arkansas lawyer to collect on the delinquent accounts and file lawsuits on its behalf in Arkansas is “attempting] to collect” and, thus, is required to be licensed by the Arkansas State Board of Collection Agencies pursuant to Arkansas Code Annotated section 17-24-301(4)?
This per curiam order constitutes notice of our acceptance of the certification of these questions of law. For purposes of the pending proceeding in this court, the following requirements are imposed:
A. Time limits will be calculated from the date of this per curiam order accepting certification. The plaintiff in the underlying action, Patty E. Simpson, is designated as the moving party and will be denoted as the “Petitioner,” and her brief is due thirty days from the date of this per curiam. The defendant, Cavalry SPV 1, LLC, shall be denoted as the “Respondent,” and its brief shall be due thirty days after the filing of Petitioner’s brief. Petitioner may file a reply brief within fifteen days after Respondent’s brief has been filed.
B. The briefs shall comply with this court’s rules as in other cases except for the briefs’ content. Only the following items required in Arkansas Supreme Court Rule 4-2(a) shall be included:
(3) Points on appeal which shall correspond to the certified questions of law to be answered in the federal district court’s certification order.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the facts relevant to the certified questions of law as stated in the federal district court’s certification order.
(7) Argument.
(8) Addendum.
|;(9) Cover for briefs.
C. Oral argument will be permitted only if this court concludes that it will be helpful for presentation of the issues.
D. Arkansas Supreme Court Rule 4-6 with respect to amicus curiae briefs will apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioner and the Respondent.
Pursuant to Arkansas Supreme Court Rule 6—8(d), we request that the parties include in an addendum the following pleadings: the complaint; the answer, if any; the motion to dismiss; and any responses, replies, and briefs in support thereof. In addition, if the parties believe that any additional pleadings will be useful to our understanding of the legal issues presented, those pleadings should be included as well.
Certified questions accepted. | [
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DONALD L. CORBIN, Justice.
|! Appellant Diane Koniecki Ausman, on behalf of the Estate of Daniel Herman Ausman, deceased (the Estate), appeals the order of the Baxter County Circuit Court dismissing with prejudice its complaint against Appellee Hiram Shaddox Geriatric Center. On appeal, the Estate argues that it was error to dismiss its complaint because Ark. R. Civ. P. 25 (2012) simply required an administrator to be substituted within ninety days after a death is suggested upon the record. As this case presents an issue of first impression, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(b)(1) (2012). We find no error and affirm.
This case stems from the death of Daniel Herman Ausman, who was a patient at Hiram Shaddox from August 22, 2007, until the time of his death on August 25, 2007. Originally, Mrs. Ausman, acting individually and on behalf of Mr. Ausman’s estate, filed a complaint Ragainst Hiram Shaddox and Dr. Tim Paden on August 24, 2009. Therein, Ausman sought damages based on the following causes of action: medical negligence, negligence, gross negligence, violations of the Arkansas Long Term Care Resident’s Right Act, and civil liability for conduct constituting felony neglect of an endangered or impaired adult.
Shortly after the suit was filed, on December 16, 2009, Mrs. Ausman passed away. The attorneys representing Mrs. Ausman did not learn of her death until May 2011, when they attempted to contact her to discuss the upcoming trial. As a result, counsel for Mrs. Ausman filed a motion for continuance, stating that trial was scheduled to begin on July 11, 2011, and time was needed to address estate issues resulting from Mrs. Ausman’s passing.
On July 7, 2011, Hiram Shaddox filed a motion to strike Mrs. Ausman’s complaint for failure to revive it pursuant to the revivor statutes codified at Ark.Code Ann. §§ 16-62-108 to -109 (Repl.2005). Hiram Shaddox argued therein that Mrs. Aus-man’s counsel was required to comply with the dictates of section 16-62-108 and Rule 25, governing the substitution of parties, and because they failed to do so, the complaint should be struck and an order dismissing Hiram Shaddox entered. Hiram Shaddox based its argument on the one-year limitation found in section 16-62-108. Counsel for Mrs. Ausman replied, arguing that section 16-62-108 had been superseded by Rule 25 and, as such, an order substituting one of Mrs. Ausman’s heirs, within ninety days from the date of suggestion of death upon the record, was sufficient to revive the claim.
| ¡¡Thereafter, on July 22, 2011, a suggestion of death upon the record and a motion to substitute James A. Klass, Mrs. Aus-man’s son, as special administrator of Mr. Ausman’s estate, was filed. A hearing on the motion to strike and the motion to substitute was held on September 27, 2011. At that hearing, counsel for Mrs. Ausman argued that the motion to strike should be dismissed because the revivor statutes had never before been applied to a case where a special administrator died during the pendency of the action. He further argued that this case presented a pure issue of substitution of parties pursuant to Rule 25. Counsel for Hiram Shaddox argued that section 1662109 clearly addressed the situation where a personal representative’s powers have ceased for a period of time and, thus, where the statutory time frame in section 16-62-108 had not been superseded by Rule 25, it applied to the case at bar. At the conclusion of the hearing, the circuit court took the matter under advisement.
The circuit court entered an order granting the motion to strike and dismissing the complaint with prejudice on November 7, 2011. In its order, the circuit court found that, pursuant to this court’s opinion in Deaver v. Faucon Properties, Inc., 367 Ark. 288, 239 S.W.3d 525 (2006), Rule 25 superseded the procedure for revivor set forth in Ark.Code Ann. § 16-62-105. But, the court also found that the statute of limitations provided for in section 16-62-108 remained in effect. Thus, because the Estate failed to revive the action within one year from the date of Mrs. Ausman’s death, the court granted the motion to strike, denied the motion for substitution, and dismissed the complaint with prejudice. A timely notice of appeal followed.
I/The issue to be decided in this case is whether the one-year statute of limitations found in section 16-62-108 is applicable where a special administrator of an estate dies during the pendency of litigation or whether the matter is simply governed by Rule 25’s requirement for substitution of parties. On appeal, the Estate argues that the circuit court erroneously relied on sections 16-62-108 and 16-62-109 in ruling that the Estate failed to properly revive the action. Moreover, the Estate argues that this case is materially distinguishable from the facts in Deaver, 367 Ark. 288, 239 S.W.3d 525, and Nix v. St. Edward Mercy Medical Center, 342 Ark. 650, 30 S.W.3d 746 (2000), because in this case it was not the injured party who originally brought suit who passed away; rather, it was a noninjured special administrator who passed away while litigation was pending. Thus, according to the Estate, when Mrs. Ausman died, the Estate’s claims did not necessitate revival under sections 16-62-108 and 16-62-109, and filing a timely motion for substitution pursuant to Rule 25 was all that was necessary.
Hiram Shaddox counters that the circuit court properly struck the complaint and dismissed the case where the Estate failed to file a suggestion of death upon the record or a motion for substitution within one year from the date of Mrs. Ausman’s death because this court has held that the one-year limitation in section 16-62-108 was not superseded by Rule 25. Moreover, Appellees assert that the language of section 16-62-109 clearly indicates that the requirements imposed by the revivor statutes apply in the situation of the death of a personal representative.
We review issues of statutory construction de novo; it is for this court to decide what a statute means. Kimbrell v. McCleskey, 2012 Ark. 443, 424 S.W.3d 844. We are not bound | ¿by the decision of the circuit court; 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. See id. The cardinal rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701. When the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no need to resort to rules of statutory interpretation. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781.
Section 16-62-108 provides, in pertinent part:
An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith. However, an order to so revive the action shall not be made without the consent of the defendant after the expiration of one (1) year from the time when the order might first have been made.
Section 16-62-109 provides:
When it appears to the court by affidavit that either party to an action has been dead, or, where he or she sues or issued as a personal representative, that his or her powers have ceased for a period so long that the action cannot be revived in the names of his or her representatives or successor without the consent of both parties, it shall order the action to be stricken from the docket.
It is these statutes that Hiram Shaddox asserts govern the facts of this case. But, we must consider these statutes in light of the requirement of Rule 25 governing substitution of parties. That rule provides in relevant part:
(a) Death. (1) If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party, and such substitution may be ordered without notice or upon such notice as the Court | fimay require. Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by the service upon the parties of a statement of the fact of death, the action may be dismissed as to the deceased party.
(2) Upon the death of a plaintiff the proper party for substitution shall be his personal representative or, where the claim has passed to his heirs or to his devisees, the heirs or devisees may be substituted for the deceased party....
(3) Upon the death of any party the Court before which such litigation is pending may, upon the motion of any party, appoint a special administrator who shall be substituted for the deceased party. The powers of such special administrator shall extend only to the prosecution and defense of the litigation wherein he is appointed....
(e) Limitation of Rule. The provisions of this rule shall in no way allow a claim to be maintained which is otherwise barred by limitations or non-claim, nor shall the provisions of this rule be determinative of whether or not a claim for or against a deceased party survives his death.
This is not the first time this court has addressed the issue of whether Rule 25 applies to the exclusion of sections 16-62-108 and 16-62-109, although it is the first time we have addressed the issue where the deceased party was serving as a special administrator.
This court held in Nix, 342 Ark. 650, 30 S.W.3d 746, that section 16-62-108 was not superseded by Rule 25, and the appellant’s failure to timely revive the action mandated its dismissal pursuant to section 16-62-109. The issue in that case was whether Rule 25 permitted the appellant to substitute himself as a party beyond the statutory time limitation set forth in section 16-62-108 and achieve a dismissal without prejudice. In concluding that Rule 25 did not permit such a substitution, this court explained as follows:
The Reporter’s Notes to Rule 25 offer guidance to resolve the matter before us. For example, the Notes explain that the purpose of Rule 25 is “to permit the 17action to be prosecuted by or against those who are, following the death of a party, either the real party in interest or a representative thereof.” The comments to subsection (e), captioned “Limitation of Rule,” indicate that Ark. R. Civ. P. 25(e) represents an attempt to limit the rule’s effect to the determination of who may be substituted as a party but “not to enlarge the time during which a claim may be prosecuted.” Additionally, the comments acknowledge that subsection (e) is not intended to determine which claims survive the death of a party.
Writing in the Arkansas Law Review, former Justice David Newbern of the Arkansas Supreme Court addressed the import of the subsection (e) limitation. He pointed out that part (e) was not found in the federal counterpart to Ark. R. Civ. P. 25. Intentionally included in our rules, subsection (e) “makes it clear that the rule is not intended to extend the statute of limitations or to permit a claim which is otherwise barred by law. Nor is the rule intended to deal with survival of actions.” Walter Cox & David Newbern, New Civil Procedure: The Court that Came in from the Code, 38 Ark. L.Rev. 40 (1979). Given the expressed intent that Rule 25 does not represent a means to extend otherwise applicable statutes of limitation, we cannot say that it operates here to extend appellant’s rights by permitting a dismissal without prejudice.
Id. at 653, 30 S.W.3d at 748.
Our holding in Nix was again addressed in Deaver, 367 Ark. 288, 239 S.W.3d 525. There, Faye Deaver and her son filed a breach-of-contract and negligence complaint against various defendants. While the case was pending, Mrs. Deaver died, and a motion was filed pursuant to Rule 25 for the appointment of a special administrator and for an order substituting the administrator for Mrs. Deaver as a party plaintiff. The trial court entered an order granting those requests but later dismissed the complaint on the defendants’ motion because an order of revival had not been obtained pursuant to section 16-62-108. In addressing the issue of whether the order entered pursuant to Rule 25 was sufficient to revive an action under the revivor statute, this court noted that the revival of an action is a matter of procedure, as the term “revivor” is a procedure used upon the death of a party to a legal | ^proceeding in which a new party is substituted to proceed with the prosecution or defense of the claim. Id. This court ruled that the law governing the procedure for obtaining an order of revivor is primarily found in Rule 25 and that the order entered by the trial court appointing a special administrator and substituting the administrator in Mrs. Deaver’s stead was sufficient to revive the action. Id. But, this court in Deaver further explained as follows:
The case at bar does not concern section 108’s time limitation. It is clear from the record that the court’s order pursuant to Rule 25 was entered well within one year of Faye Deaver’s death. The issue before us is whether the circuit court’s order pursuant to Rule 25— which order did not contain the word revivor — was sufficient to revive this action. We hold that it was. Revivor is a procedure used upon the death of a party to a legal proceeding in which a new party is substituted to proceed with the prosecution or defense of the claim. While Rule 25 does not specifically refer to an “order to revive,” this rule has governed the method for obtaining an order of substitution upon the death of a party since 1986, when we held that the Arkansas Rules of Civil Procedure superseded the revivor procedures set forth in Ark.Code Ann. § 16-62-105. Rule 25 does not determine whether a cause [of] action survives the death of a party, permit a claim which is otherwise barred by law, or extend the statute of limitations. See Nix, 342 Ark. at 653, 30 S.W.3d at 748. It simply governs the procedure for obtaining a substitution of a party upon a party’s death where the cause of action survives, the claims in the action are otherwise permitted by law, and the motion is made within the time limits prescribed in Ark.Code Ann. § 16-62-108. Id. at 295, 239 S.W.3d at 531. Thus, both Deaver and Nix make it clear that while Rule 25 governs the procedure for substituting a party, the statute of limitations found in section 16-62-108 remains in effect.
The Estate is correct in stating that the present situation is distinguishable from Deaver and Nix insomuch as neither of those cases dealt with the issue of revivor following the death of a personal representative. Thus, we must determine whether compliance with Rule 25 is sufficient when the death at issue is a personal representative and not the injured party. We |ahold that such compliance alone is not sufficient. The one-year limitation set forth in section 16-62-108 is applicable to the facts of this case. The fact that Mrs. Ausman was a special administrator is a distinction without a difference.
Arkansas law provides that every action is to be prosecuted in the name of the real party in interest. Ark. R. Civ. P. 17(a) (2012). A real party in interest is considered to be the person or corporation who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery. Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001). We explained in Recinos v. Zelk, 369 Ark. 7, 250 S.W.3d 221 (2007) that the person appointed as the special administrator was the only person who had a right to discharge a claim. Thus, in this case, Mrs. Ausman was the real party in interest and her death abated the action, necessitating its revivor. The procedure for such revi-vor is set forth in Rule 25, but, as we have explained and as set forth in subsection (e) of Rule 25, the limitations provision of section 16-62-108 remains applicable. Accordingly, the Estate’s failure to move for substitution within one year from the time of Mrs. Ausman’s death prevents the revi-vor of the action, and the circuit court properly granted the motion to strike, thereby dismissing the action with prejudice.
The conclusion that the revivor statutes apply in a case where a special administrator dies during the pendency of the litigation is further bolstered by a review of the language in section 16-62-109 regarding a special administrator’s powers ceasing “for a period so long that the action cannot be revived.” This reference further solidifies the conclusion that the time j inlimitation- in section 16-62-108 applies, regardless of whether it is the injured party who dies or a special administrator.
We note that the Estate asserts that this court should not strictly construe section 16-62-108 because to do so deprives the Estate from bringing its claim. Moreover, the Estate argues that if this court strictly construes section 16-62-108 to apply in this case, we should hold that the one-year time limitation begins to run once the procedural prerequisite that is mandated by Rule 25 takes place, i.e., once the suggestion of death upon the record is made. These arguments, however, are being raised for the first time on appeal. It is axiomatic that this court will not consider arguments raised for the first time on appeal. Boellner v. Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745.
Affirmed.
HART, J., not participating.
. A voluntary nonsuit was taken as to Dr. Paden, and he is not a party to the instant suit. Moreover, no one disputes that Mrs. Ausman’s individual claim is no longer viable. | [
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PER CURIAM.
|,On recommendation of the Supreme Court Committee on Professional Conduct, and in lieu of facing disciplinary proceedings for serious misconduct, we hereby accept the voluntary surrender of the law license of Holly C. Stevens to practice law in the State of Arkansas. Ms. Stevens’s name shall be removed from the registry of attorneys licensed by the State of Arkansas, and she is barred and enjoined from engaging in the practice of law in this state.
It is so ordered. | [
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PHILLIP T. WHITEAKER, Judge.
[The appellant, Carmen Albarran, appeals the order of the Benton County Circuit Court finding him in contempt. We affirm.
This appeal is related to our recent decision in Albarran v. Liberty Healthcare Mgmt., 2013 Ark. App. 598, 2013 WL 5745122 (docketed in this court as CV-13-90). Albarran was involved in a car accident and sought treatment for his injuries from Dr. Rick Looper at the Accident and Injury Treatment Center, which was a “d/ b/a” for the appellee, Liberty Healthcare Management. Dr. Looper submitted a $3,710 bill to Albarran’s health insurer, which paid $637.43 toward Dr. Looper’s bill. Albarran eventually settled his motor-vehicle-accident claims with the tort-feasor’s liability insurer for $30,000. The insurer, however, wrote two |2separate checks: one to Albarran for $26,290, and the other one to Albarran and the Accident and Injury Treatment Center for $3,710, based upon a lien allegedly claimed by Liberty.
Albarran filed a petition for declaratory judgment against his health-insurance carrier and Liberty, seeking to have Liberty’s alleged lien declared invalid. Al-barran subsequently settled and dismissed his claim with his health-insurance carrier. Liberty filed a motion to dismiss the petition, denying that it had any ownership or authority over the “d/b/a” of “Accident and Injury Treatment Center” and disclaiming any interest in the proceeds of Albarran’s settlement. The circuit court entered an order on October 11, 2012, granting Liberty’s motion to dismiss and awarding attorney’s fees of $4,410 to Liberty, to be paid within thirty days. Albarran filed a notice of appeal from that order.
Because the order did not dispose of all outstanding claims by all parties, the court subsequently certified the case as proper for appeal pursuant to Arkansas Rule of Civil Procedure 54(b). Albarran, however, never filed a notice of appeal from the later order, and this court dismissed his appeal for failing to file a timely notice of appeal from a final, appealable order. Albarran, 2013 Ark. App. 598, at 4-5, 2013 WL 5745122.
Albarran did not pay Liberty’s attorney’s fees within the thirty days provided by the circuit court’s order. He did, however, file a motion in circuit court to stay collection of the award of attorney’s fees pending his initial appeal, but he did not post a supersedeas bond. He argued that he could not pay the fee out of the proceeds of his tort settlement because, given the current lawsuit, he was unable to liquidate the settlement at that time. The circuit | «court denied the motion. Liberty attempted to informally collect its fee. When no payment was received, it filed a motion for contempt. Three days after the circuit court set the matter for a hearing, Albarran filed a response to Liberty’s motion in which he asserted that he had filed his appellate transcript in CV-13-90, thus depriving the circuit court of jurisdiction to act.
The circuit court held a hearing on Liberty’s motion in early March 2018. The court found that Albarran was in willful and malicious violation of the court’s order due to his failure to comply with the order directing him to pay attorney’s fees. In doing so, the court noted that there had been no testimony or evidence at the hearing demonstrating Albarran’s inability to comply with the court’s order. The court orally granted Liberty a body attachment for the Benton County Sheriff to take Al-barran into custody to bring him before the court to see if there was any reason for his failure to comply with the court’s order, if he did not comply on or before April 4, 2018. The court also awarded Liberty an additional $350 in attorney’s fees for having to appear at the hearing. Albarran filed a timely notice of appeal following the entry of the circuit court’s written order.
The standard of review in contempt cases depends on the kind of contempt that is at issue. Contempt is divided into criminal contempt and civil contempt. Ivy v. Keith, 351 Ark. 269, 279, 92 S.W.3d 671, 677 (2002). Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Johnson v. Johnson, 343 Ark. 186, 197, 33 S.W.3d 492, 499 (2000). 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 civil contempt is designed to coerce compliance with the court’s order, the civil contem-nor may free himself or herself by complying with the order. See Fitzhugh v. State, 296 Ark. 137, 139, 752 S.W.2d 275, 276 (1988). This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.” Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v. S.E.C., 330 U.S. 585, 593, 67 S.Ct. 918, 91 L.Ed. 1117 (1947)). Here, the parties agree that the contempt citation imposed by the circuit court was civil in nature, because Albar-ran had the ability to avoid the court’s sanctions by paying Liberty’s attorney’s fees.
Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Ingle v. Ingle, 2013 Ark. App. 660, 2013 WL 5964771; Applegate v. Applegate, 101 Ark.App. 289, 275 S.W.3d 682 (2008). In our review, we defer to the superior position of the circuit judge to determine the credibility of witnesses and the weight to be given their testimony. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15.
In order to establish civil contempt, there must be willful disobedience of a valid order of a court. Ingle, supra. However, before one can be held in contempt for violating the court’s order, the order must be definite in its terms and clear as to what duties it imposes. Id. Here, the circuit court’s order that Albar-ran was found in contempt for violating was definite in its hterms and clear as to what duties it imposed. Albarran was ordered to pay Liberty’s attorney’s fees of $4,410 within thirty days of the date of the order. Likewise, there is no question of Albarran’s noncompliance with the order: he was ordered to pay within thirty days, and he concedes a failure to do so despite knowing that such failure could constitute contemptuous behavior.
Noncompliance with a court’s order is not in and of itself contemptuous. The noncompliance must constitute willful disobedience for a finding of contempt. Albarran argues that he did not willfully disobey the court’s order because he did not have the ability to comply. A court’s power to institute civil contempt in order to acquire compliance with its orders is a long-standing rule of law, but it may not be exercised where the alleged contemnor is without the ability to comply. Ingle, supra (citing Aswell v. Aswell, 88 Ark.App. 115, 195 S.W.3d 365 (2004)). The court is empowered to punish the defendant by imprisonment for willful obstinacy where it shall appear that he had the means with which to comply with the decree, but it should not imprison him where he shows that he has not the pecuniary ability to comply with the decree and is in such ill health that he cannot earn enough money to do so. Id. (citing Griffith v. Griffith, 225 Ark. 487, 283 S.W.2d 340 (1955)).
Albarran acknowledges that, as a civil contemnor, he theoretically holds the keys to his own prison. He argues, however, that “reality makes it clear there are no keys available” to him because he does not have the ability to pay the judgment in a lump sum to free himself of the contempt. He therefore maintains that the court’s imposition of contempt sanctions on him “will ... be a sentence to debtor’s prison.”
hOur supreme court has rejected the “debtor’s prison” argument. In Harrison v. Harrison, 239 Ark. 756, 394 S.W.2d 128 (1965), the court wrote as follows:
It is first contended on behalf of the petitioner that imprisonment for debt in a civil action is the effect of the order of commitment, and that this is forbidden by the Constitution. Article 2, § 16, Const. 1874.
There are some courts which hold, in view of constitutional provisions forbidding imprisonment for debt, that disobedience of an order for payment of money under a judgment or decree cannot be punished as a contempt; but, according to the decided weight of authority, an order directing the payment of specific funds adjudged to be in the possession or control of the person at the time of the trial may be enforced by contempt proceeding, and punishment may be inflicted for disobedience of the order. [Citations omitted.]
In one of the cases cited above the Supreme Court of Minnesota said: “In the case at bar the imprisonment is for the contempt in refusing to obey an order of the court. It is true that the order relates to the debt evidenced by the judgment against the estate; but this in no way alters the fact that the imprisonment is for the contempt, not for the debt. And the contempt does not consist in the relator’s neglect or refusal to pay the debt, but in his disobedience of the order directing him to hand over certain property to the receiver. The fact that the property in question is to be handed over for the purpose of being applied to the payment of the judgment is in no way important. The commitment is, nevertheless, in no proper sense imprisonment for debt.”
Harrison, 239 Ark. at 759, 394 S.W.2d at 130 (quoting Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906)).
To the extent that Albarran argues that a circuit court may not use imprisonment as a punishment for civil contempt where the contemnor has failed to pay the other party’s attorney’s fees, he cites no authority in support of his position. To the contrary, caselaw indicates that imprisonment may be an appropriate sanction in such circumstances. See, e.g., Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007) (noting, without criticism, circuit court’s order that, if appellant failed to abide by the conditions imposed by the court, which | included payment of attorney’s fees by a given date, he would be incarcerated for an additional fourteen days); Williams v. Ramsey, 101 Ark.App. 61, 270 S.W.3d 345 (2007) (ten-day period of incarceration fell within the category of civil contempt because it was designed to coerce appellant to pay attorney’s fees that he had been previously ordered to pay).
We therefore find no merit to Al-barran’s argument. This court has noted that judicial sanctions in civil-contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained. Pinnacle Point Props., LLC v. Metropolitan Nat’l Bank, 2012 Ark. App. 268, 2012 WL 1328995 (citing United States v. United Mine Workers of Am., 330 U.S. 258, 303-04, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). It has long been the rule in Arkansas that, in certain cases, a process for contempt may be used to effect civil remedies, the result of which is to make the innocent party whole from the consequences of contemptuous conduct. Id. (citing Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004); Walker v. Fuller, 29 Ark. 448, 469 (1874); Butler v. Comer, 57 Ark.App. 117, 942 S.W.2d 278 (1997)). Here, the court noted that there had been no testimony or evidence at the hearing demonstrating Albarran’s inability to comply with the court’s order, and the court found him in contempt but gave him another thirty days to comply; failing that, Al-barran was to be brought to court to explain his inability to pay before he would be jailed. Albarran has consistently refused to | spay the attorney’s fees that the court ordered him to pay. The circuit court properly utilized the process available to it to coerce Albarran’s compliance. We therefore find no error in the circuit court’s decision.
As a final point, Albarran also argues that the circuit court lacked jurisdiction to impose contempt sanctions in March 2013 because he lodged his record on appeal in CV-13-90 with this court in January 2013. See, e.g., Maxwell v. State, 2012 Ark. 251, 2012 WL 1950253 (the filing of the transcript in an appellate court deprives a trial court of jurisdiction). The supreme court, however, has noted that even though the record may have been lodged with the appellate court, where no supersedeas bond has been filed, the trial court retains jurisdiction to enforce its orders. See Kearney v. Butt, 224 Ark. 94, 271 S.W.2d 771 (1954); East v. East, 148 Ark. 143, 229 S.W. 5 (1921). Because Al-barran failed to post a supersedeas bond (and all of his motions for stay pending appeal were denied, both by the circuit court and this court), his argument lacks merit.
Affirmed.
VAUGHT and BROWN, JJ., agree.
. Albarran also filed a motion in this court to stay the circuit court’s order during the pen-dency of CV-13-90 but, again, did not post a supersedeas bond; that motion was denied as well.
. Albarran lodged the record with this court on January 25, 2012, nine days after Liberty filed its motion for contempt.
. We acknowledge Albarran’s citation to Chetram v. Singh, 937 So.2d 716 (Fla.App.2006), for the proposition that, where jail is the sanction for civil contempt, the court must grant the contemnor an opportunity to establish inability to pay before he can be incarcerated. That, however, is precisely what the circuit court's order here did. In the event that Albarran did not pay the attorney's fees within thirty days, he was to be brought to court to put on proof of his inability to pay— proof that Albarran failed to introduce at the contempt hearing. | [
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KAREN R. BAKER, Justice.
| ¶ This case involves the contest of several detachments and annexations of land from the city of Rockport (“Rockport”) to the city of Malvern (“Malvern”). We have jurisdiction over this matter as it is an issue of first impression involving the interpretation of an act of the General Assembly. Ark. R. Sup.Ct. 1 — 2(b)(1) & (6)(2012). Rockport appeals from an order of the circuit court granting Malvern’s motion to dismiss, asserting that the circuit court erred in granting the motion because Malvern was required to annex the properly by ordinance, the land annexed did not compose one area, and the land annexed was not contiguous to Malvern. We affirm.
Landowners in Rockport requested that their land be detached from Rockport and |2annexed into Malvern pursuant to Arkansas Code Annotated section 14-40-2002 (Supp.2011) because the landowners were not receiving municipal services from Rockport. Malvern annexed the properties by resolutions, which were not read aloud three times prior to passage and were never published. Each resolution annexed several different properties, which were not contiguous to each other. Each annexed property was also separated from Malvern by a Rockport city street. Rockport filed three separate cases contesting the four annexations of property into Malvern, which were consolidated into one matter on August 19, 2008.
The circuit court conducted a bench trial in the consolidated case on August 25, 2011. At the close of evidence presented by Rockport, Malvern moved to dismiss. The circuit court took the motion under advisement and requested briefs. The circuit court granted the motion by order filed December 29, 2011. In the order, the circuit court found that the properties were contiguous, and that Malvern had substantially complied with Arkansas Code Annotated section 14-40-2002. Rockport brings this appeal from that order.
Rockport asserts on appeal that Mal-vern’s annexation of the properties at issue is void and that the circuit court erred in finding that Malvern had substantially complied with Arkansas Code Annotated section 14-40-2002. Specifically, Rockport asserts that the lands were not annexed by ordinance as required by Arkansas Code Annotated section 14-40-2004, or, alternatively, that the resolutions Malvern used to annex the land were general and permanent, and were required to be read on three separate days and published. Further, Rockport asserts that the annexations were invalid because the lands annexed did not | ¡¡compose one area and that the circuit court erred in finding that the lands were contiguous.
Malvern cross-appeals, asserting that the circuit court erred in not dismissing the case after it granted Malvern’s motion to dismiss defendants Gene Beason, Brenda Beason, Loy Porterfield and Joan Port-erfield for improper service. Malvern argues that these defendants were required parties under Arkansas Code Annotated section 16-lll-106(a), part of the Declaratory Judgment Act.
While Malvern styled its motion as one for directed verdict, because the underlying matter was resolved at a bench trial, we treat the motion as one for dismissal. Ark. R. Civ. P. 50(a) (2012); Baptist Health v. Murphy, 2010 Ark. 358, 378 S.W.3d 269. Our standard of review for the granting of a motion to dismiss where, as here, there is no material question of fact, is to simply determine whether Mal-vern was entitled to judgment as a matter of law. See Murphy, 2010 Ark. 358, 373 S.W.3d 269. We review issues of statutory construction de novo, as it is for this court to determine what a statute means. City of Rockport v. City of Malvern, 2010 Ark. 449, 374 S.W.3d 660. 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.
Ordinance
For its first point on appeal, Rock-port asserts that Malvern’s annexations of the properties into Malvern are rendered invalid because the law requires that annexation be completed through ordinance. We disagree.
The landowners requested annexation into Malvern pursuant to Arkansas Code 14Annotated section 14 — 40-2002. It is undisputed that Malvern annexed the properties at issue through resolutions, not by ordinance, and that the resolutions were not read three times or published. Arkansas Code Annotated section 14-40-2002(b)(3)(A) states, “The land shall be annexed into the other municipality if, after a request by the.landowner or landowners, the governing body of the municipality into which annexation is sought indicates by ordinance, resolution, or motion its commitment to make services available and approves the request for annexation.” When a statute is clear, we give it its plain meaning. Voltage Vehicles v. Arkansas Motor Vehicle Comm’n, 2012 Ark. 386, 424 S.W.3d 281. The statute clearly contemplates allowing annexation by resolution.
Rockport alleges that Arkansas Code Annotated section 14-40-2004 requires that annexation be by ordinance. Arkansas Code .Annotated section 14-40-2004(c) states, “At any time, but in no event later than twenty (20) days, after the adoption of the ordinance bringing the subject property into the annexing jurisdiction.” Rockport asserts that because the General Assembly did not allow for any means of annexing property other than by ordinance, only ordinances may be used. We do not find Rockport’s argument persuasive. Arkansas Code Annotated section 14-40-2004 sets out the procedure to obtain a hearing in circuit court over the annexed property; it does not relate to the procedure of the actual annexation. A general statute must yield to a specific statute involving a particular subject matter. Bakalekos v. Furlow, 2011 Ark. 505, 410 S.W.3d 564. Arkansas Code Annotated section 14-40-2002 sets out the specific procedure for the annexation of properly- into an adjoining municipality by request, and includes a provision for doing so by resolution. Arkansas Code | .-.Annotated section 14-40-2004(c)’s reference to “ordinance” is a general reference, and so must yield to the language allowing annexation by resolution in Arkansas Code Annotated section 14^40-2002.
Further, Rockport contends that the annexations are invalid because the resolutions were not published or fully and distinctly read on three different days. Arkansas Code Annotated section 14-55-206(a)(1)(A) (Supp.2011) provides that any bylaw or ordinance '“of a general and permanent nature ... shall be published in some newspaper printed in the municipality.” Arkansas Code Annotated section 14-55-202 (Repl.1998) states, “[a]ll bylaws and ordinances of a general or permanent nature shall be fully and distinctly read on three (3) different days.” However, publication and reading of ordinances or resolutions is not required under these statutes unless they are of a general and permanent nature. Adams v. Sims, 238 Ark. 696, 385 S.W.2d 13 (1964).
In Adams, we held that if resolutions are provided in the statute as a way to accomplish the act, reading and publication are not required where the resolutions are not of a general and permanent nature. Id. Here, Arkansas Code Annotated section 14-40-2002, provides that resolutions may be used to annex property in cases such as this. The resolution is not general. A general resolution is one which is general and uniform in its application. Id. We held in Adams that the resolution at issue there was not general because its effects did not encompass the whole town. Id. Here, the resolution encompasses only the annexed areas, and not the entire town of Malvern. Therefore, the resolution is not general.
A resolution is deemed permanent if it endures until repealed. Id. Arkansas Code | (Annotated section 14-40-2002(b)(3)(B)(iii) provides that if the requested services are not provided, accepted, and in place within twelve months, or substantial steps are not taken to do so, then the detachment and annexation of the land shall be void and all property will be returned to the original jurisdiction. Since the statute includes within itself a method by which the resolution can be terminated without repeal, the resolution is not permanent.
Because the law clearly provides that a resolution is an appropriate way to approve the request for annexation and because the resolutions in question were not general and permanent, we do not find error in the circuit court’s interpretation of Arkansas Code Annotated section 14-40-2002.
One Area
For its second point on appeal, Rockport alleges that the annexations of property into Malvern are invalid because the lands annexed by Malvern do not.compose one area as required by statute. We disagree with Rockport’s interpretation of the statute.
Arkansas Code Annotated section 14-40-2002(b) sets out the procedure for requesting annexation into a new municipality. Subsection (1) requires the landowner to file a statement asserting that, among other things, “[a]ll the land in the request must compose one (1) area that is contiguous to the other municipality.” Rockport argues that the property annexed in this case did not compose one area.
|7The portion of Arkansas Code Annotated section 14-40-2002(b) relied upon by Rockport sets out the duties of the landowner in requesting annexation. The landowner must state that his or her land to be annexed composes one area. However, the statute does not provide that a municipality cannot annex the land of several separate landowners at one time. Ark.Code Ann. § 14-40-2002. We hold that the circuit court did not err in finding that Malvern substantially complied with Arkansas Code Annotated section 14-40-2002.
Contiguity
For its final point on appeal, Rockport asserts that Malvern’s annexations of the properties into Malvern are rendered invalid because the land at issue is not contiguous to Malvern. Rockport argues that the lands annexed are not contiguous to Malvern because Rockport city streets separate them from Malvern.
For land to be annexed into a municipality, it must be contiguous to that municipality. Ark.Code Ann. § 14-40-2002(b)(1)(B). An owner retains fee title in the land beneath the street and all rights to the land not inconsistent with the public use to which the property is dedicated. Freeze v. Jones, 260 Ark. 193, 539 S.W.2d 425 (1976). In other words, the donation of land to the city does not grant the city fee title in the land, but confers to the public an easement over the land. Because a city street does not break contiguity for purposes of annexation, the circuit court did not err in finding that the lands were contiguous to Malvern.
Rockport asserts that the circuit court’s findings are in conflict with prior holdings of this court. We disagree. Rockport cites Wood v. El Dorado for its contention that fee title is |Rlost when streets are dedicated to public use on an accepted plat. 237 Ark. 681, 375 S.W.2d 363 (1964). The reasoning in Wood and the authority cited for its holding make clear that the public property is an easement, and not a conveyance of fee title. In each case cited in Wood, the suit is in regard to the owner of the property attempting to keep the public from his property through fencing or suing in trespass. See Brown v. Land, Inc., 236 Ark. 15, 364 S.W.2d 659 (1963); Mebane v. City of Wynne, 127 Ark. 364, 192 S.W. 221 (1917); and Brewer v. City of Pine Bluff, 80 Ark. 489, 97 S.W. 1034 (1906).
Here, the owners of the annexed lands held fee title and all rights to the land not inconsistent with the public use of the street. Thus, we hold that the circuit court did not err in finding that the land was contiguous to Malvern.
Conclusion
Having found no error in the findings of ■the circuit court, we affirm the grant of Malvern’s motion to dismiss. Because we affirm the circuit court’s order granting Malvern’s motion to dismiss, Malvern’s cross-appeal is moot and we do not address it. As a general rule, this court will not review issues that are moot. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. Mountain Pure, LLC v. Little Rock Wastewater Util., 2011 Ark. 258, 383 S.W.3d 347. A case becomes moot when any judgment rendered would have no practical legal effect upon a then-] 9existing controversy. Id.
Affirmed.
. Gene Beason, Brenda Beason, Loy Porter-field, Joan Porterfield, Elizabeth Chennault, Don Chennault, Carthel L. Clark, Janie Clark, the Joint Family Trust of Gerald and Jo Ella Skinner, the Pierce Family Trust, Glenda Treadway, J.H. Williamson, Daria Williamson, Joseph Connelley, Joanne Connelley, Horn & Sowell Properties, Dennis Holcomb, Larry Langley, Kathy Langley, Tim Cranford, and Chris Cranford.
. We note that this court has reviewed two other annexation cases between Rockport and Malvern. See City of Rockport v. City of Malvern, 356 Ark. 393, 155 S.W.3d 9 (2004); City of Rockport v. City of Malvern, 2010 Ark. 449, 374 S.W.3d 660. In both cases, Malvern used resolutions to annex the land at the request of Rockport citizens. Rockport did not assert that annexation by ordinance was required in either case.
. Rockport makes a one-sentence argument in its brief that it met the requirements under Arkansas Code Annotated section 14-40-2002 to prevent the landowners’ detachment from Rockport. However, we will not address arguments that are presented without citation to authority or convincing argument. See Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004). | [
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DONALD L. CORBIN, Justice.
| petitioner, the Board of Trustees of the University of Arkansas (the “Board”), seeks the extraordinary writs of mandamus, prohibition, and certiorari directed to Respondent, the Circuit Court of Crawford County, the Honorable Michael Medlock, Judge, to stop the court from proceeding further on an amended complaint for wrongful discharge styled Mike Burcham v. The University of Arkansas Fort Smith by and Through the Board of Trustees of the University of Arkansas; Paul B. Beran, UAFS Chancellor; and Mark Horn, UAFS Vice Chancellor, No. 17CV-2011-480-1. The Board petitions for these extraordinary writs following the circuit court’s denial of its motion to dismiss based on lack of venue, sovereign immunity, lack of service, and failure to state a claim upon which relief can be granted. We allowed this petition for extraordinary writs to be taken as a case only on the issue of venue. We also decide today, in a separate interlocutory appeal pursuant to Ark. R.App. P.-Civ. 2(a)(10) (2013), the issue of sovereign immunity. See Bd. of Trustees v. Burcham, 2014 Ark. 61, 2014 WL 585981. Jurisdiction of this petition for extraordinary writs is properly in this court pursuant to Ark. Sup.Ct. R. 1—2(a)(3) (2013).
Our decision delivered today in the companion interlocutory appeal that the Board is entitled to sovereign immunity renders the instant petition for extraordinary writs moot. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159. Generally, the appellate courts of this state do not review issues that are moot, because to do so would be to render advisory opinions, which this court will not do. Id.
Sovereign immunity is jurisdictional immunity from suit, and where sovereign immunity is applicable, the trial court acquires no jurisdiction. Grine v. Bd. of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999). As a general rule, venue is procedural, not jurisdictional; thus, when a trial court lacks proper venue, it still has the power to render a valid judgment. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). This court has previously explained the distinction between venue and jurisdiction, with venue meaning the place, that is, the county or district wherein a cause is to be tried; and jurisdiction meaning, not the place of trial, but the power of the court to hear and determine a cause, including the power to enforce its judgment. Gland-O-Lac Co. v. Franklin Cnty. Cir. Ct., 230 Ark. 919, 327 S.W.2d 558 (1959). Thus, the jurisdictional issue of sovereign immunity and whether it was waived should be addressed prior to the procedural issue of venue. See Ark. Dep’t of Cmty. Correction v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731 (addressing sovereign immunity first andRnot ruling on venue when both sovereign immunity and venue were challenged in the same appeal).
Because we have today concluded in the companion interlocutory appeal that the Board is indeed entitled to sovereign immunity, the case against the Board has been dismissed. Bd. of Trustees v. Burcham, 2014 Ark. 61, 2014 WL 585981. Following the dismissal based on sovereign immunity, there is no longer any existing legal controversy within which a justiciable issue is presented for our determination. The instant petition for extraordinary ■writs based on lack of venue is therefore moot. Accordingly, we refrain from issuing an advisory opinion on the venue question here presented.
Petition moot.
Special Justice A. VAUGHAN HANKINS joins in this opinion.
GOODSON, J., not participating. | [
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DONALD L. CORBIN, Justice.
| Appellant James Lee Brown appeals from orders of the Pulaski County Circuit Court finding that Appellee Janice Marie Lee was entitled to an offset or credit and allowing her to file a satisfaction of judgment. On appeal, Brown argues that (1) the circuit court erred in allowing Lee to file a satisfaction of judgment, (2) the circuit court erred in not sustaining his objection to the satisfaction of judgment, (3) the satisfaction of judgment that was filed was void and should be set aside, (4) there was no authority for the circuit court to grant an offset, (5) the circuit court’s order and its findings of fact and conclusions of law were factually erroneous, and (6) he was entitled to court costs. As this appeal rais es potential issues of first impression and statutory interpretation, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(b)(1) & (6) (2012). We find no error and affirm.
|?The record reflects the following pertinent facts! Brown and his wife, Roseleen Brown, were involved in an automobile collision with Lee on January 14, 2004. The Browns initially filed a complaint against Lee and State Farm Insurance, the Browns’ insurance carrier. With regard to their claim against State Farm, the Browns asserted that Lee’s policy limits were inadequate to compensate them for their damages, and they sought recovery under the underinsured-motorist (“UIM”) coverage provided for in their State Farm policy. Shortly after commencement of the action, State Farm was dismissed, as a defendant. The Browns filed an amended complaint against State Farm, again alleging that they were entitled to payment of UIM benefits. Again, State Farm was dismissed and, thereafter, the Browns brought an action against State Farm’s insurer in federal district court. See Brown v. State Farm Mut. Auto. Ins. Co., No. 4:09CV00781 JLH, 2010 WL 330236 (E.D.Ark. Jan. 28, 2010). The district court dismissed the action, without prejudice, on the basis that the Browns had failed to state a claim for which relief could be granted.
A nonsuit was also taken with regard to the Browns’ claim against Lee. Thus, the only action remaining from the 2004 complaint was State Farm’s cross-claim against Lee. Then, Lin 2010, the Browns filed a second action against Lee, asserting a claim for negligence. This action was consolidated with the pending 2004 action.
During the pendency of the litigation, Lee’s insurer, Safeco, offered the policy limits of $50,000 to settle the case. The Browns notified State Farm of the tentative settlement, and State Farm elected to pay the Browns $60,000, $10,000 of which was an advance under Brown’s UIM coverage, and the other $50,000 represented the liability limits of Lee’s liability insurance with Safeco.
Safeco subsequently paid its $50,000 liability limits into the registry of the court. State Farm moved to have this money distributed to it, asserting that it had previously substituted $50,000 of its own UIM coverage for Lee’s liability limits in order to protect its right of subrogation against Lee. State Farm further noted in its motion that the Browns’ claim against State Farm for UIM coverage was rejected by the federal district court, and that they had twice nonsuited their UIM claims in state court, thus rendering Brown’s claim for UIM benefits res judicata, pursuant to Ark. R. Civ. P. 41(a)(2) (2012). Brown filed a response, agreeing that State Farm was entitled to the distribution, specifically stating that State Farm tendered the $50,000 in order to preserve its subrogation rights. Brown denied, however, the res judicata allegations and the assertion that it no longer had a claim for UIM benefits against State Farm. State Farm filed a response, pointing out that the Browns had no complaint or prayer for relief pending against State Farm in the consolidated cases.
| ¿Thereafter, the circuit court entered an order distributing the funds to State Farm:
The Court finds that after the conclusion by trial, judgment or dismissal of the Plaintiffs James Lee Brown and Rose-leen Brown’s claims against Janice Marie Lee set forth in the Complaint filed in the 2010 case before its consolidation, that the payment of theses monies will be considered partial satisfaction of up and -to Fifty Thousand Dollars ($50,-000.00) on any judgment entered in James or Roseleen Brown’s favor on their Complaint against Janice Marie Lee.
This amount was distributed to State Farm to reimburse it for the $50,000 payment made to Appellant. State Farm then dismissed its cross-claim against Lee.
The Browns’ negligence action against Lee was tried before a jury on August 10-11, 2011. The jury found that Brown suffered damages of $58,614, but further found that he was forty percent at fault in this case, thereby reducing his award of damages to $32,168.40.
, After the trial ended, Lee filed a motion for offset or credit, asserting that she was entitled to the credit as a result of the $50,000 in policy limits paid to the Browns. In so moving, Lee pointed to the circuit court’s prior order of distribution, wherein it stated that the $50,000 would be considered partial satisfaction of any judgment the Browns might obtain. Lee further argued that she was entitled to an offset for the $90,000 paid by the settling defendants, but recognized that issue was likely moot because of the $50,000 payment of policy limits. Lee also filed a motion for entry of satisfaction of judgment.
At the request of the circuit court, the Browns filed a brief in response to the motions filed by Lee. Therein, they argued that the motions should be denied because Lee (1) cited no authority demonstrating an entitlement to an offset, (2) took inconsistent positions regarding any entitlement to an offset, and (8) was not entitled to any offset or any | .^contribution under the Uniform Contribution Among Tortfeasors Act (“UCATA”). Brown also requested that the circuit court enter findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52 (2012).
The circuit court entered an order on November 10, 2011, finding that Lee was entitled to an offset because of the previous tender of $50,000 in policy limits and that Lee was entitled to prepare and have filed a satisfaction of judgment. In its findings of fact and conclusions of law, the circuit court noted that “[djuring the pen-dency of the litigation State Farm, the defendant’s liability insurance carrier tendered the defendant’s policy limits in the amount of $50,000 to the plaintiffs” and because the jury awarded the Browns damages of $32,168.40, Lée was entitled to an offset and satisfaction of judgment. A satisfaction of judgment was filed by Lee on November 18, 2011. Brown filed an objection to it on November 28, 2011, arguing that it was improper to enter the satisfaction of judgment because he planned to appeal and because he had no opportunity to object to the satisfaction of judgment. This appeal followed.
As his first point on appeal, Brown argues that the circuit court erred in permitting Lee to file a satisfaction of judgment in this case. Specifically, Brown asserts that the $50,000 paid to him by State Farm, an amount equal to the limits of Lee’s liability insurance, was a payment made pursuant to the contract of UIM coverage. Thus, according to Brown, this payment, as- part of the UIM coverage, was a payment of insurance between Brown and State Farm and not part of the tort recovery. Brown now claims that he has never received any payment in this case from Lee or her insurance carrier, such that it would satisfy the judgment | fiin this case. Lee counters that this argument is without merit, as the circuit court correctly allowed her to enter a satisfaction of judgment where State Farm had paid the $50,000 policy limits to Brown.
In advancing his argument, Brown asserts that the appropriate standard of review to be employed is de novo because this court is called upon to interpret Ark. Code Ann. § 23-89-209(d) (Repl.2004), the statute governing UIM coverage. This court need not determine the appropriate standard of review, however, because we are precluded from addressing Brown’s argument that the $50,000 payment was made pursuant to his underinsurance coverage. This argument is being raised for the first time on appeal. The record clearly reveals that after Lee moved for an offset and for entry of satisfaction of judgment, Brown raised objections on two different occasions. First, the circuit court ordered each side to brief the .issue of Lee’s motions. In his brief, Brown argued that the motions should be denied because of Lee’s failure to cite to any supporting authority, because she took ■ inconsistent positions and because she was not entitled to any offset or any contribution under the UCATA.
Then, on November 28, 2011, Brown filed an “Objection to Satisfaction of Judgment” therein arguing that (1) he intended to bring an appeal and, thus, a satisfaction of judgment could not be entered; (2) his attorney did not have the opportunity to object to the satisfaction of judgment. Appellant never argued to the circuit court that the $50,000 paid to him by State Farm was anything other than Lee’s policy limits, paid by State Farm to preserve its statutory right of subrogation. In fact, when the circuit court entered the order 17granting State Farm’s request that the funds be distributed to it, the circuit court specifically stated that the $50,000 paid by State Farm would represent partial satisfaction of any judgment obtained by Brown. Brown never objected to this order, nor did he raise any argument that the $50,000 payment he received from State Farm was payment under his UIM coverage.
It is axiomatic that this court will not consider arguments raised for the first time on appeal. Boellner v. Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745. Moreover, a party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Id. Accordingly, we are precluded from addressing the merits of this argument on appeal.
Likewise, Brown’s next two arguments on appeal are not preserved for our review. As his second point on appeal, Brown argues that the circuit court erred in allowing the satisfaction of judgment and not sustaining his objection of November 28,- 2011. In raising this argument, Brown states that he “argues as to this point the same reasoning discussed above.” For his third point, Brown argues that the satisfaction of judgment filed with a certificate of service of November 18, 2011, is void and should be set aside. Again, Brown reiterates that the satisfaction of judgment was improper wherei neither Lee nor her insurer ever made a payment to Brown. Because both of these arguments are being raised for the first time on appeal, we will not consider the merits of either argument. See Boellner, 2011 Ark. 83, 378 S.W.3d 745.
IsNext, Brown asserts that the circuit court’s November 10, 2011 order was factually erroneous. He further argues that the circuit court lacked authority to grant an offset in favor of Lee. In advancing these arguments, Brown points to a statement in the circuit court’s order wherein the circuit court incorrectly stated that the “defendant’s insurance company has previously tendered $50,000 tó the plaintiffs and that the defendant is entitled to an offset in such amount.” Brown is correct that this statement by the circuit court was in error, where the record demonstrates that the $50,000 paid to Brown was from his own insurer, State Farm. Brown does not claim, however, that he is entitled to have the order set aside on this basis alone. And, in fact, this argument does not provide a basis for reversing the circuit court’s order. The misstatement by the circuit court that it was the defendant’s insurance company that paid the $50,000 instead of the plaintiffs own insurance company does nothing to change the legal position of Brown. The effect of the order is the same; namely, that Brown was paid the policy limits of Lee’s policy.
Arkansas Rule of Civil Procedure 60 and case law extending back over 150 years give circuit courts the authority to correct a clerical mistake in an order at any time with a nunc pro tunc order, used to make the record speak now what was actually done then. See Ark. R. Civ. P. 60(b) (2012); Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999); Bridwell v. Davis, 206 Ark. 445, 175 S.W.2d 992 (1943). A circuit court is permitted to enter a nunc pro tunc order when the record is being made to reflect that which occurred but was not recorded due |3to a misprision of the clerk. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). This court has defined a true clerical error, one that may be corrected by a nunc pro tunc order, as “essentially one that arises not from an exercise of the court’s judicial discretion but from a mistake on the part of its officers (or perhaps someone else).” Francis v. Protective Life Ins. Co., 371 Ark. 285, 293, 265 S.W.3d 117, 123 (2007) (quoting Luches v. Luches, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978)). In Francis, this court explained that a handwritten entry of an interest rate of six percent on a judgment, which was changed to ten percent, was a true clerical error. Likewise, the circuit court’s reference of State Farm as Lee’s insurance carrier, rather than Brown’s carrier, is a clerical error that may be corrected by a nunc pro tunc order.
Next, we turn to the subpoints raised by Brown to support his conclusion that the circuit court lacked authority to grant an offset. For the reasons explained below, there is no merit to Brown’s contention that the order of the circuit court should be reversed. First, Brown argues that Lee was not entitled to an offset on the basis that she cited to no authority supporting her request for one. In this regard, Brown cites to this court’s decision in Ganey v. Kawasaki Motors Corp., 366 Ark. 238, 234 S.W.3d 838 (2006), for support.' Ganey, however, stands for the proposition that this court -will not consider arguments that are unsupported by authority. There is no such requirement in the circuit court. The circuit court is called upon to determine whether Lee sufficiently proved that she was entitled to assert the equitable defense of an offset. See, e.g., Douglas v. Adams Trucking Co., 345 Ark. 203, 46 S.W.3d 512 (2001), and here the circuit court found she sufficiently proved it.
| inNext, Brown asserts that Lee took inconsistent positions regarding her entitlement to any offset. In support, Brown points to Lee’s motion and “Amended Mo tion for Leave to File Third Party Complaint” as proof of her inconsistent position. We fail to see any inconsistency. The record reflects that prior to trial Lee moved to join the settled defendants for the purposes of apportionment only. Lee’s motions were denied. Then, after trial, Lee moved for the offset based on the fact that State Farm had already paid her policy limits to Brown. This is simply not inconsistent, and Appellant’s argument to the contrary fails.
Brown further contends that Lee was not entitled to any offset under the UCATA. As Lee points out, however, the UCATA is not triggered in this case as Lee was the only defendant at trial. More importantly, the circuit court, in entering its findings of fact and conclusions of law on the issues, specifically held that Lee was entitled to an offset based on the payment of the $50,000 by State Farm to Brown. Nothing in the circuit court’s order suggested that the offset was based on the settlement between Brown and the settling defendants. Accordingly, there is no merit to this argument.
As his final point on appeal, Brown argues that the circuit court erred in depriving him of court costs, as he successfully obtained a judgment against Lee, and a prevailing party is entitled to costs pursuant to Ark. R. Civ. P. 54(d) (2012). Brown further asserts that the November 10, 2011 judgment states that “plaintiffs James Lee Brown and Roseleen Brown have and recover judgment from and against Janice Marie Lee in the amount of $32,168.40 ... together with allowable costs.” Thus, according to Brown, this statement in the judgment is in conflict with the decision to allow Lee to file a satisfaction of judgment, Inthereby foreclosing his right to court costs. Lee responds that Brown never raised the issue of court costs below and is therefore precluded from doing so on appeal. Further, Lee argues that Brown was more than compensated in light of the fact that he received $50,000 in policy limits, despite the jury awarding him only $32,168.40.
Lee is correct that Brown never raised the issue of court costs to the circuit court. In fact, after the entry of judgment, Brown took no action on the allowance of court costs. He never filed any motion or affidavit with the court detailing his costs. Moreover, he never, in the two times he objected to the offset and satisfaction of judgment, raised the issue that he was entitled to court costs such that the court should not enter a satisfaction of judgment. Thus, Brown cannot now argue that he was entitled to costs such that entry of the satisfaction of judgment was in error. Boellner, 2011 Ark. 83, 378 S.W.3d 745.
Affirmed.
. Mrs. Brown was originally a plaintiff in this case but is not a party to the present appeal.
. In the original complaint, the Browns also named as defendants General Motors, the manufacturer of the truck Brown was driving at the time of the accident; and two parts manufacturers, Autoliv, Inc., and Hamlin, Inc. Brown reached a settlement with GM and the parts manufacturers, and they were subsequently dismissed from the case.
. Brown actually raises this argument in two different points on appeal, but we need ad dress the issue only once. | [
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Tom Glaze, Justice.
This case involves certain sewer and water “tap and access fees” the City of Marion has charged appellees, as developers of residential land in and around the city. Marion has experienced a considerable growth in population since 1975, and this influx of new people has resulted in the city exceeding the design capacity of both its water and sewer systems. Between July of 1988 and August of 1990, the city enacted a series of ordinances that placed “tapping fees” on builders or lot owners connecting on to the city’s existing water and sewer systems and required “access fees” from any person or entity connecting to the city’s transmission lines. These fees only apply to new development. The ordinances, as amended, provide that the funds collected from these respective fees must be placed in separate accounts designed as the “water expansion account” and “sewer expansion account,” and used solely to expand the city’s water and sewer systems.
The appellees brought suit challenging the constitutionality of the city’s ordinances as well as their validity under state law. The chancellor held the ordinances invalid, finding that the fees assessed under the city’s ordinances amounted to a general revenue raising scheme and therefore “taxes,” that had not been approved by the vote of the people as required under Ark. Code Ann. § 26-73-103 (1987). The city appeals the chancellor’s decision.
We first point out, as did the chancellor below, that a municipality’s ordinance levying a tax is not valid until the tax is adopted by the voters of the city at a special or general election. § 26-73-103. Here the City of Marion held no election to authorize a tax to expand the city’s water and sewer systems, presumably because the city believed it could underwrite the costs of such expansions by charging tapping and access fees (sometimes called impact fees) to persons who would benefit from such extensions.
The distinction between a tax and a fee is that government imposes a tax for general revenue purposes, but a fee is imposed in the government’s exercise of its police powers. City of North Little Rock v. Graham, 278 Ark. 547, 647 S.W.2d 452 (1983). An example of a fee charged in the exercise of a city’s police power is found in Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). There, the court held that an “annual sanitation charge” of $4.00 per business and residence which was to pay for fogging the city with insecticide three times a year was a fee, not a tax, for services to be rendered. On the other hand, the Graham court considered the validity of a North Little Rock ordinance which imposed a $3.00 per month “public safety fee” on the water bill of each household, business and apartment resident for the purpose of increasing the salaries of the city policemen and firemen and held such a fee was in actuality a tax because the so-called fee was for the cost of maintaining a traditional governmental function and services already in effect and not for a special service as was the case in the Holman case. 278 Ark. at 549, 647 S.W.2d at 453. As is illustrated by the Graham decision, this court in determining whether a governmental charge, assessment or fee is a tax is not bound by how the enactment or levy labels it. See also City of Hot Springs v. Vapors, 298 Ark. 444, 769 S.W.2d 1 (1989); cf. Rainwater v. Haynes, 244 Ark. 1191, 428 S.W.2d 254 (1968).
In this case, the chancellor reviewed considerable legal authority leading him to the general conclusion that a governmental levy or fee, in order not to be denominated a tax, must be fair and reasonable and bear a reasonable relationship to the benefits conferred on those receiving the services. We agree with the chancellor’s conclusion, which seems to be the prevailing rule in other jurisdictions. However, the rule’s application is not always an easy one for the courts. See Bldg. Ind. Ass’n of S. Cal. v. City of Oxnard, 198 Cal. Rptr. 63 (Cal. App. 2 Dist. 1984) (a growth requirement capital fee applicable to new development held a tax because the fee was designed to collect revenues to benefit the community as a whole); Contractors & Builders Ass’n v. City of Dunedin, 329 So.2d 314 (Fla. 1976) (connection fees to expand water and sewage systems held a tax because the use of the money collected was not limited to the costs of expansion); Eastern Diversified v. Montgomery County, 570 A. 850 (Md. 1990) (development impact fees to raise funds to finance construction of roads held a tax because funds benefited general public); Amherst Builders Assn v. City of Amherst, 61 Ohio St.2d 345, 402 N.E.2d 1181 (1980) (sewer tap-in or connection fees of $400 for single family homes of new users upheld as valid fee, not a tax); but see State Ex Rel. Waterbury Development v. Witten, 58 Ohio App.2d 17, 387 N.E.2d 1380 (1977) (water tap-in fee of $720 held a tax because it exceeded cost of service provided new users); Hayes v. City of Albany, 490 P.2d 1018 (Or. App. 1971) (sewer connection fee of $255 for a single family dwelling for construction and expansion of sewer system held valid because proceeds must be used directly in development and maintenance of sewer system); Haugen v. Gleason, 359 P.2d 108 (Or. 1961) (land acquisition fee held tax because the use of money produced no direct benefit or relationship to the new division); Hillis Homes, Inc. v. Snohomish County, 97 Wash.2d 804, 650 P.2d 193 (1982) (development fees imposed on new residential subdivisions constituted taxes because the primary purpose was to raise money not regulate land subdivision).
In the present case, the chancellor found that the City of Marion had demonstrated that the costs or fees were fair and equitable, reasonably related to the benefits conferred on the appellees (developers and builders), and are restricted to future use for expansion of the water and sewer systems. Nonetheless, the chancellor still opined the access and tapping fees constituted unauthorized taxes because the fee amounts provided in the city ordinances exceeded the direct cost of the services to be provided to new users and the funds raised were designated for future improvements traditionally provided and underwritten by the city. We must disagree with the chancellor.
Under the City of Marion ordinances, sewer and water fees total $950.00 for each single family unit. While $150.00 of this amount is required to tap-in to the sewer system, the actual cost of tapping-in is about fifteen or twenty dollars. The chancellor held, and appellees argue on appeal, that because the fees imposed by the city exceed the services provided, the fees are in actuality taxes. Such a conclusion ignores the fact that the tapping and access fees established by Marion are for the raising of funds to pay for the extension of existing water and sewer systems to developments where new users reside. Raising such expansion capital by setting connection charges, which do not exceed a pro rata share of reasonably anticipated costs of expansion, is permissible where expansion is reasonably required, if the use of the money is limited to meeting the cost of that extension. Contractors & Builders Ass'n, 329 So.2d 314; see also Amherst Builders Assn, 61 Ohio St. 345, 402 N.E.2d 1181.
Here, the city’s expert witness, John Sheahen, testified that he determined an appropriate level of fees to developers that justified the projected costs of water and sewer facilities needed to serve future customers. He said that the projected costs for extending the water system would require $805.00 per single family unit and sewer costs would require $808.00 per unit. Obviously, the city’s combined water and sewer connection fees, $950.00, imposed on builders and developers for new users is considerably less than the costs projected by Sheahen — $1,613.00 per single family unit. Such evidence certainly supports the chancellor’s finding that the city’s fees are reasonably related to the benefits conferred on the appellees, and in our de novo review of the record, we also conclude the fee amounts established by the city are more than reasonable.
Of major importance, we point out that the city ordinances require the tapping and access fees to be segregated and placed into accounts to be used solely and exclusively to expand the capacity of the city’s water and sewer systems. In other words, these funds will be used directly.to benefit the new users and for no other purposes. Graham, 278 Ark. 547, 647 S.W.2d 452; Contractors & Builders Ass’n, 329 So.2d 314; Amherst Builders Assn, 61 Ohio 345, 402 N.E.2d 1181. This fund restriction distinguishes this case from those situations where municipalities have imposed fees to underwrite the costs of a special service to a new development but instead the monies benefited the general public. Id.
While appellees make little mention of it in their argument, they do touch on the idea that Marion’s ordinances violate the equal protection clause because these city enactments treat appellees differently than non-resident users located in five areas surrounding Marion. These non-residents use approximately 25 % of the city’s present water and sewer capacity. The chancellor did not reach this constitutional issue below, and we do not feel obliged to do more than to say Marion’s ordinances are presumed constitutional. Thus, it is appellees’ burden in these circumstances to show the ordinances are not rationally related to achieving a legitimate government objective. See Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Arkansas law permits cities under certain circumstances to contract with nonresident users to provide water and sewer services. Ark. Code Ann. § 14-234- 111 (1987). Marion has done so for years — though it also has expressed these users will now face possible impact fees at the end of their respective agreements. In any event, the city justifies its present disparate treatment of these five users because it incurs no operation or maintenance expense for these customers’ systems. Based on the record and argument before us, we are unable to accept appellees’ suggestion that the city’s ordinances violate the equal protection clause.
In conclusion, appellees attempt to challenge on cross-appeal certain provisions in city ordinance 123, and contend these provisions could force appellees to donate land for parks as a condition for having a subdivision approved. The chancellor rejected appellees’ argument below, but the record reflects appellees filed no appeal from that ruling. Therefore, we must dismiss appellees’ cross-appeal as the record fails to show a notice of cross-appeal was ever filed. Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993).
For the above reasons, we reverse this cause on direct appeal and dismiss appellees’ cross-appeal. | [
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Robert H. Dudley, Justice.
Appellant was found guilty of capital murder and sentenced to life in prison without parole. He appeals and, in his only point of appeal, argues that the trial court erred in refusing to suppress his confession. We affirm the ruling of the trial court on the point. Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, under which the Attorney General must “brief. . . any other points that appear to. . . involve prejudicial error,” the State additionally questions whether the trial court’s ruling admitting the confession into evidence violated A.R.Cr.P. Rules 2.2 and 2.3. We hold the ruling of the trial court did not constitute reversible error. Since appellant was sentenced to life in prison without parole, an examination has been made of all objections decided adversely to appellant pursuant to Rule 11(f), and, pursuant to that review, there was no prejudicial error in the trial. Accordingly, we affirm the judgment of conviction.
Since the sufficiency of the evidence is not questioned, we set out only the evidence that is necessary to understand the issues on appeal. On Sunday, April 7, 1991, at 11 a.m., Mary Croom’s corpse was discovered at her home on East Sixth Street in Little Rock. It was obvious that she had been murdered because the corpse had forty stab wounds, and a large butcher knife with a white handle remained impaled in the corpse’s torso. The police immediately began to check the neighborhood for information. The victim’s sister, Bertha Jackson, thought a television set and some meat were missing from the victim’s home. O.D. Kirkland stated that on the previous Tuesday he took the victim shopping, and she purchased a ham. When they returned to his house from the grocery store, the victim asked to borrow his hacksaw and white-handled butcher knife so that she could go to her home and cut up the ham. Appellant, who was standing nearby, offered to assist her in cutting up the ham. The two left together to go to the victim’s home with the hacksaw and white-handled butcher knife to cut up the ham. O.D. Kirkland also told the detective that two days later, on Thursday, appellant came back by his house and sold him some meat and offered to sell him a television set.
The two detectives investigating the murder were told that appellant could be found at his grandmother’s house. They went there, and while they were there, appellant phoned his grandmother. One of the detectives spoke to him and told him that they wanted to ask him some questions. Appellant responded that he was at work, but they could come to his place of employment and talk to him. The detectives drove to appellant’s place of employment, found him, and asked if he would come to the police station to answer some questions. Appellant was not placed under arrest at the time, but neither of the detectives told appellant that he did not have to go with them. They got to the police station at about 3:00 or 3:30 in the afternoon, which was only four hours after the corpse had been found.
At the police station appellant was given a Miranda warning. He said he understood his rights and he waived them. He did not appear to the officers to be intoxicated, and they testified that at the time he appeared to be aware of his rights and the consequences of his decision to abandon them. While a subsequent test of his intelligence quotient measured 80, or comparatively low, he had completed high school. He was twenty-seven years of age, could read and write, and was familiar with the process since he had four prior convictions. He signed a waiver-of-rights form at 3:40 p.m. He told the detectives that they could find some evidence at 1512 Hangar Street in Little Rock. The detectives left the station to go to the address, but were never able to find such an address. While they were gone they left appellant unrestrained in an unlocked interview room. They did not tell appellant he was free to leave. The detectives returned to the station in about an hour, and appellant was still waiting in the interview room. About an hour later, at 5:45, appellant was reminded of his rights, but they were not repeated verbatim, and was asked if he understood his rights. He responded that he did and that he had signed the waiver form. Appellant then confessed to the murder and said he committed it so that he might take something of value from the victim’s house and sell it in order to buy drugs. The confession was made within seven hours of the discovery of the corpse.
Appellant argues that the trial court erred in refusing to suppress the confession because the police did not “reMirandize" him at the time the confession was taken. The argument is without merit for two reasons. First, factually, while a new rights form and waiver-of-rights form were not executed at 5:45, the time of the confession, appellant was reminded of those rights and asked if he understood those rights. He responded that he did. Second, legally, there is no requirement that Miranda warnings be repeated each time a suspect is questioned. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied, 111 S. Ct. 1123 (1990).
Appellant also argues that his confession should have been suppressed because it was not knowingly and intelligently given since a test of his intelligence quotient revealed a low intellect. In determining whether a suspect made a knowing and intelligent abandonment of his Fifth Amendment privilege and Sixth Amendment right to counsel, a trial court must look at the totality of the circumstances to determine whether the waiver was made with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them. This inquiry necessarily includes an evaluation of the defendant’s age, experience, education, background, intelligence, whether he has the capacity to understand the warnings given him in light of the nature of his Fifth, Sixth, and Fourteenth Amendment rights, and to understand the consequences of waiving those rights. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). A low score on an intelligence quotient test does not necessarily mean the suspect is without the requisite level of comprehension to knowingly and intelligently waive his rights. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). The trial court heard the testimony in this case and considered appellant’s age, his ability to read and write, his educational background, his comprehension level and, from that testimony, concluded that the waiver was made with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon those rights. On appeal, we reverse only if that finding was clearly erroneous. Id. The trial court’s finding was not clearly erroneous.
Appellant makes an additional argument about the voluntariness of his confession. He argues that, because he was held in an interrogation room for two hours and was not told he could leave, his statement was not voluntarily given. He does not contend that any force or threats were used, or that he was incarcerated during this two-hour period, or that the police acted in any threatening manner. Rather, he argues that the police did not clearly inform him that he was free to leave the interrogation room while they were gone, and, therefore, the two-hour wait rendered the confession involuntary. This court has held that the fact that a defendant was not told that he had no legal obligation to accompany detectives to the police station does not render an interrogation coercive. See Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). By analogy, the fact that appellant was left alone in an unlocked interrogation room for two hours does not, of itself, render a waiver of rights involuntary. Under all of the circumstances, we cannot say that the trial court erred in refusing to suppress the confession. In sum, there is no merit in appellant’s point of appeal.
The Attorney General, pursuant to his duties under Ark. Sup. Ct. R. 11 (f), sets out a potential error. It involves a violation of A.R.Cr.P. Rules 2.2 and 2.3.
Rule 2.2 states that a law enforcement officer may request any person to cooperate with an investigation by responding to questions, appearing at a police station, or complying with any other reasonable request. Rule 2.3 provides that when a law enforcement officer requests someone to accompany him to the police station, he shall make it clear that “there is no legal obligation to comply with such a request.” The detectives did not tell appellant that he did not have to go with them to the police station. Since the detectives did not comply with the rule, there was a seizure of the appellant and a violation of his rights under the Fourth Amendment unless the detectives had probable cause to arrest him. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). Probable cause exists where reasonably trustworthy information of facts and circumstances within the officers’ knowledge would lead a person of reasonable caution to believe that a felony was committed by the person detained. Id. at 377, 738 S.W.2d at 401.
The facts known by the detectives at the time appellant went to the police station were such as would lead a person of reasonable caution to believe that the murder had been committed by the appellant. They had reasonably trustworthy information that the appellant and the victim left O.D. Kirkland’s house and went to the victim’s home and that they took with them a large, white-handled butcher knife and a ham. They knew that the victim’s corpse was discovered at her home with a large, white-handled butcher knife impaled in it. They had reasonably trustworthy information that the meat and a television set were missing from the victim’s home. They also had reasonably trustworthy information that appellant sold some meat and attempted to sell a television set. This information was such as would lead a person of reasonable caution to believe that the murder had been committed by appellant. Consequently, there was probable cause to arrest appellant, and the violation of A.R.Cr.P. Rule 2.3 becomes immaterial.
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Richard B. Adkisson, Chief Justice.
Appellant, Tri-B Advertising Company, constructed a billboard sign on property which was adjacent to a used car lot owned by appellee, Jim Thomas. During a storm the billboard was blown over, landing on top of seven of appellee’s vehicles. Appellee filed suit alleging negligence and that the construction and maintenance of the billboard was an ultra-hazardous activity, thereby making appellant strictly liable for damages. A jury returned a verdict for appellee in the amount of $5,156.35 for damages to the vehicles. On appeal, we reverse and remand.
Appellant argues, and we agree, that it was error for the trial court to instruct the jury as to ultrahazardous activities. AMI 1107 states:
An activity is ultra-hazardous if it necessarily involves risk of serious harm to persons or property of others which cannot be eliminated by exercise of utmost care and is not a matter of common usage.
Common usage is defined as an activity customarily carried on by the great mass of mankind or by many people in the community.
If you find that the above stated three elements existed, you must find against the defendant Tri-B on the issue of liability.
This instruction is inapplicable to this case as a matter of law. The construction and maintenance of a billboard sign is not an ultrahazardous activity as contemplated by this instruction. Any risk of serious harm could be eliminated by the exercise of utmost care. See Dye v. Burdick, 262 Ark. 124, 553 S.W.2d 833 (1977).
Some of the activities which we have previously upheld as being subject to a jury finding of ultrahazardous are the delivery of propane gas to a storage yard, Zero Whsle. Gas Co., Inc. v. Stroud, 264 Ark. 27, 571 S.W.2d 74 (1978); and the spraying of chemicals on crops, Chapman Chem. Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820 (1949). In both of these cases the liability imposed arose out of the abnormal danger of the activity itself. Here, although perhaps the construction and maintenance of a billboard sign involved some danger, it did not involve abnormal danger and, therefore, the instruction should not have been given. See also NLR Transp. Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967).
Appellant also argues that the sign in question did not create an "unreasonable danger’’ as a matter of law and, therefore, the trial court erred in giving AMI 1109. This instruction provides: Under certain circumstances perhaps a sign could be unreasonably dangerous, and it was for the jury to decide if such was the case here. Therefore, we refuse to hold that, as a matter of law, the sign was not unreasonably dangerous.
It is the duty of an owner or occupier of land to protect property from damages resulting from a structure upon his land if he knows or should know of an unreasonable danger created by that structure, and he fails after having a reasonable opportunity to eliminate the danger or otherwise protect such property against it. A violation of this duty is negligence. . . .
Lastly, appellant argues that the trial court abused its discretion in excluding photographs of the local storm damage and the testimony of a newspaper reporter who took them. The photographs were excluded on the grounds that the areas depicted were too remote from the location of the used car lot. However, before an adverse ruling as to the admissibility of evidence is reviewable on appeal, the objecting party must make a sufficient record to enable this court to rule on the issues presented. See Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W.2d 707 (1978). Here, the proffered testimony is too sketchy for this court to determine whether or not the trial court abused its discretion. The record reflects only that the witness would have testified that he “investigated storm damage.” Since there was no testimony regarding the storm damage and the photographs were not made a part of the record, we are unable to rule on the alleged error.
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Order to Show Cause.
Per Curiam.
This order is substituted for the order to show cause in this case which was issued March 8, 1993.
The appellant’s attorney Barry J. Watkins is directed to appear before this court at 9:00 a.m. on March 22,1993, to show cause why he should not be held in contempt of court for failure to file a brief in the case. | [
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McHaney, J.
Appellee brought this action against appellant to recover the value of a hound dog, killed by the operation of a motor car on the track of appellant near Okolona, Arkansas. Appellee had loaned his dog to Tom Beard to go rabbit hunting. Beard and two others, with two other dogs, had been hunting for some time and had started home. They came to the railroad track and were walking north on the track, approaching a road crossing about a quarter of a mile away. It was necessary to cross a bridge about 100 feet long. Two of the boys had crossed the bridge, as well as one of the dogs. Beard was some distance behind walking toward the bridge when he saw appellant’s motor car coming south, meeting them. Appellee’s dog got on the bridge and was attempting to cross, when it was struck by the motor car. The track was straight for a considerable distance ahead. There was a verdict and judgment for appellee in the sum of $50.
For a reversal of the case it is first urged that the court erred in refusing to direct a verdict in appellant’s favor at its request, on the ground that Beard, who had charge of appellee’s dog, was guilty of such contributory negligence as to bar appellee’s right of recovery. We cannot agree with the appellant in this contention, as. the proof shows that Beard was some considerable distance ■behind the dog when it was struck by the motor car, and could not have reached, him in time to save him after he discovered the motor car coming down the track. Moreover, there was some proof that the other two boys who were hunting with Beard endeavored to get the dogs off the track and succeeded in getting two of them off, one of which had gotten on the bridge, but got away before being struck. The court submitted the question of the contributory negligence of Beard to the jury under proper instructions, and we think the evidence was sufficient to take this question to the jury.
It is next insisted that the court erred in giving appellee’s instruction No. 1, and in modifying appellant’s instructions Nos. 2 and 3, and in refusing to give its requested instruction No. 4. Instruction No. 1, given at appellee’s request, reads as follows:
“The jury are instructed that it was the duty of the defendant’s employees in charge of the operation of the motor car to exercise ordinary care to observe persons and property on defendant’s track, and to exercise such care to avoid injuring such property after the same is discovered. So, in this case you are told that it was the duty of defendant’s servants to exercise ordinary care to observe plaintiff’s dog on its track, and to exercise this degree of care to avoid striking the dog after it was discovered on the track; and if you find from a preponderance of the evidence that defendant’s servants in charge of the'car failed to exercise such care to discover the dog on the track, or negligently failed to avoid striking the dog after discovering him on the track, then the defendant would be liable to plaintiff for the death of his dog, and you will so find; provided, you do not find that the persons in charge of the dog at the time it was struck were guilty of contributory negligence as defined in these instructions.”
The effect of this instruction was to tell the jury that it was the duty of appellant’s employees in charge of the operation of the motor car to exercise ordinary care to observe appellee’s dog on its track, and that, if they failed to exercise ordinary care to discover the dog on the track, the appellant would be liable for the death of the dog. We think this states the law too broadly. It must be remembered that this dog was not killed by the operation of a train, but by the operation of a hand-car, propelled by a motor instead of by hand. The lookout statute, § 8568, C. & M. Digest, does not.therefore apply. St. L. Sw. R. Co. v. Mitchell, 115 Ark. 339, 171 S. W. 895 ; Cook v. Mo. Pac. Rd. Co., 160 Ark. 523, 254 S. W. 680. In the latter case it was held that, while the lookout statute applies only to the operation of trains, and not to motor cars, it is the duty of persons operating a motor car to keep a lookout at or near public crossings, not by the virtue of the lookout statute, but because of the duty imposed upon railroad companies by the common law. In L. R. & Ft. Smith Ry. Co. v. Holland, 40 Ark. 336, this court said: “Ordinary care in the management of their trains is the measure of vigilance which the law exacts of them in their relations to the owners of such animals. And this means practically that the company’s servants are to use all reasonable efforts to avoid harming the animal, after it is discovered or might by proper watchfulness have been discovered to be on or near the track. ” In Memphis & L. R. R. Co. v. Kerr, 52 Ark. 162, 12 S. W. 329, 5 L. R. A. 429, 20 Am. St. 159, the court corrected or limited the broad language used in the quotation above, and said: “If the intimation, supra, that a railroad company is liable, if the engineer in charge of the train when stock is injured, ‘might, by proper watchfulness,’ discover the animal on or near the railroad track in time to avoid injuring it, means that a railroad company owes to the owner of stock that stray upon its track a duty to keep a lookout to prevent injuring it, it states the rule too broadly.” A little later on in the same case the court said: ‘ ‘The extent of the duty which a railroad company owes to the owner of stock upon its track is that the engineer in charge of the train at the time shall use ordinary or reasonable care, after the stock is discovered by him, to prevent injury to it, and this negatives the idea that the engineer is bound to keep a lookout for stock.” After the decision of the Kerr case, supra, the Legislature passed what is commonly known as the lookout statute, which was amended, and the provisions thereof extended by the act of May 26, 1911, page 275, which is now § 8568, C. & M. Digest. In Ark. Short Line v. Bellars, 176 Ark. 53, 2 S. W. (2d) 683, this court by Mr. Justice Wood, in defining the duty of railroad companies to trespassers and bare licensees, said: “In many cases before the lookout statute, which does not apply here, this court has held that a railroad company owes trespassers and bare licensees no affirmative duty of care, and only the duty not to willfully or wantonly injure them, or the duty to exercise ordinary care not to injure them, after discovering their peril and inability to escape. To bare licensees railroad companies owe no affirmative duty of care, for such licensees take their license with the concomitant perils.” Citing cases.
We therefore conclude that the court erred in giving appellee’s instruction No. 1, because it placed the duty upon the railroad company to keep a lookout for persons and property on the track in the operation of a motor car. As to appellant’s instructions 2 and 3, which were modified, and requested instruction No. 4, which was refused, we think these instructions were covered by a correct instruction given by the court at appellant’s request, which is No. 7. What we have said with reference to appellee’s instruction No. 1 will no doubt eliminate any error in this regard on a retrial of the case, and it therefore becomes unnecessary to discuss these assignments in detail.
For the error indicated, the judgment will be reversed, and the cause remanded for a new trial. | [
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Minor W. Millwee, Justice.
This is an appeal by plaintiff Aetna Ins. Co., representing by' assignment the interest of plaintiff E. F. Brown, from a judgment for defendants in an action filed by Brown and Aetna against defendants Carl Parker and Mrs. Charles Brown.
The case arose out of a three-way street crossing collision which occurred at the intersection of Dodson Ave. and South 21st St. in Fort Smith. Mrs. Charles Brown was driving westward on Dodson Ave., a through street, in a Pontiac car owned by her son Dale. This car was insured by the Southwest Casualty Co.a E. F. Brown, Jr.; not related to Mrs. Brown or her son Dale, was driv ing eastward on Dodson Ave. in his Chevrolet. His car was insured by Aetna. Carl Parker was driving northward in a 1936 Ford truck on South 21st St. There were stop signs on South 21st St. on both sides of Dodson Ave. The evidence conflicts as to whether Parker stopped at his stop sign, but at any rate, after he had either stopped or had almost stopped, he drove slowly into the intersection. There was conflicting evidence as to how fast Mrs. Brown was driving as she entered the intersection. She testified that she was going about 20 or 25 miles an hour while other witnesses estimated the speed at 30 to 45 miles an hour in a district where the speed limit is 25 miles per hour. All the evidence was to the effect that Parker was driving slowly, about five miles an hour. The front of Parker’s truck struck the left rear of Mrs. Brown’s Pontiac after they both came upon the intersection. Mrs. Brown then lost control of her car, which careened catercorner in a southwesterly direction across the intersection, striking E. F. Brown’s car and doing considerable damage to both cars. The evidence does not indicate any negligence in E. F. Brown.
Two actions and one cross action were filed, and the cases were consolidated for purposes of trial.
In the action numbered 98(50 below, the Southwest Casualty Co., insurer for Dale Brown, after paying for damage to the Pontiac and taking an assignment of Dale Brown’s claim, sued Carl Parker on the theory that negligence on Parker’s part caused the collision and resultant injuries. Parker denied any negligence in himself, and cross-complained against Mrs. Brown for damages allegedly suffered by him. In this action the jury found for the defendant Parker on both the complaint and cross-complaint. On the cross-complaint, the verdict was for Parker for $113.75. Judgment was entered accordingly, and there is no appeal in case 9860.
In the other action, numbered 9905 below, Aetna sued Carl Parker and Mrs. Brown, alleging negligence in both as the cause of damage to E. F. Brown’s car for which Aetna, being liable under its insurance policy, had paid off and taken an assignment from E. F. Brown, In this action the same jury returned a verdict for the defendants generally, and judgment was entered accordingly. Plaintiffs Aetna and E. P. Brown appeal.
The first argument for reversal is presented in the following language of the motion for new trial: “The verdict of the jury is inconsistent in that they rendered a verdict in favor of Carl Parker against Mrs. Charles Brown, which verdict could not be rendered unless they found that the said Mrs. Brown was guilty of some negligence, and since there was no evidence to the effect that E. F. Brown, Jr., was guilty of any negligence at all, then said verdict should not he permitted to stand as against the Aetna Insurance Company.”
The answer to this argument must be that the law imposes no requirement of consistency upon jurors hearing separate cases which are consolidated for purposes of trial. If such separate cases were being tried separately, by different juries, there would be no assurance of consistency in the verdicts, and no greater assurance of consistency is insisted upon when one jury tries both cases together. As this Court said in Leech v. Mo. Pac. RR. Co., 189 Ark. 161, 164, 71 S. W. 2d 467: “It does not follow, however, that because two separate and distinct causes of action are tried by the same jury the finding of facts in one cause is binding on the jury in the other cause of action if there is a dispute in the testimony. Although there was evidence tending to show concurrent negligence on the part of Graham and appel-lee and no negligence on the part of the deceased, yet there was evidence tending to show no negligence on the part of the appellee, and the jury was at liberty to so find in the cause of action on behalf of appellant for the benefit of herself and son, as much so as if the two causes of action had been tried separately instead of together. Notwithstanding the causes of action may be tried together under the provisions of the statute, they are wholly independent of each other, and the finding of the jury in one is not binding upon the jury in the other if the facts are in dispute, as they were in this case.” To the same effect, see Green v. West Memphis Lbr. Co., 192 Ark. 1177, 91 S. W. 2d 261.
Tlie other argument for reversal lias to do with defendant Parker’s requested Instruction No. 12, given over plaintiff Aetna’s objection. This instruction reads: “You are instructed that if you find and believe from the evidence in this case that Carl Parker entered the intersection of South 21st and Dodson before the car operated by Mrs. Charles Brown entered the intersection, then you are instructed that Parker was entitled to proceed through the intersection unmolested and this would be true, even though you might find that Parker failed to stop before entering Dodson Avenue. Notwithstanding the fact that Dodson Avenue is a through street, if Parker was in the intersection, then it was her duty to yield the right-of-way to Parker. If you find that she failed to yield the right-of-way to Parker when she was under a duty to do so, and that such failure on her part was negligence and that such negligence was the sole and proximate cause of the accident or accidents, then in that event you cannot return a verdict against Parker in this case.”
The asserted vice in this instruction is that, as to Aetna’s action against Parker, it tends to establish an absence of negligence on Parker’s part, in proximately causing the collision, even though he entered the intersection without exercising proper care."
In a number of cases we have sustained the rule laid down in the quoted instruction. Murray v. Jackson, 180 Ark. 1144, 24 S. W. 2d 960., Jacks v. Culpepper, 183 Ark. 505, 87 S. W. 2d 94; Holbrook v. Williams, 185 Ark. 885, 50 S. W. 2d 243; Livingston v. Baker, 202 Ark. 1097, 155 S. W. 2d 340. In Murray v. Jackson, supra, this Court said, “In the absence of a statute or ordinance regulating the matter, it is the general rule that the vehicle entering an intersection of streets first is entitled to the right-of-way, and it is the duty of the driver of the other car to proceed with sufficient care to permit the exercise of such right without danger of collision. ” ’We then held in that case that the superior right of the driver first entering the intersection prevailed even when there was a city ordinance giving the right-of-way to the vehicle entering the intersection from the right, the ordinance being deemed not applicable when the driver on the right was last to enter the intersection.
In East v. Woodruff, 209 Ark. 1046, 193 S. W. 2d 664, relied on by appellants, the collision occurred after the two vehicles left the intersection, and we held that an instruction like the one involved here, given at appellant’s request, was more favorable to appellant than the particular facts in that case warranted. Though we have approved the controverted instruction in the cases cited, there clearly may be cases in which it would be improper. Thus there might be a case in which the car that first enters the intersection does so by dashing out rapidly in front of a car that is proceeding slowly and properly toward the intersection, so that the driver of the second car has no opportunity to guard against the dangers created by the first car which suddenly and unexpectedly looms up on the intersection before him. In that situation an instruction like defendant Parker’s No. 12 would definitely be incorrect. See 2 Blashfield, Automobile Law and Practice, §§ 991, 994. No such facts appeared in any of the cases in which we have approved the statement of the law set forth in the instruction.
Nor do such facts appear in the present case. All the evidence introduced tended to show that Parker, who for purposes of this instruction is deemed to have entered the intersection first, drove onto it slowly, so that Mrs. Brown, driver of the other car, would have had opportunity to see him (regardless of whether she in fact did see him or not) in time to have brought her car, if driven with due care, under control without a collision. Under this state of the evidence, we cannot say that the instruction was erroneously given.
The 'judgment is affinned.
George Rose Smith, J., dissents. | [
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Steele Hays, Justice.
Appellant Larry Helms was convicted in the Municipal Court of Searcy, Arkansas, of speeding and driving while intoxicated. On appeal, the convictions were affirmed by the White Circuit Court. The arresting officer testified that the radar unit in his patrol car showed Helms to have been driving 50 miles per hour in a 40 mile zone. When appellant was stopped and questioned, the officer noticed the odor of alcohol and administered field sobriety tests, which appellant could not perform satisfactorily. At police headquarters a breathalyzer test registered .10.
On appeal to this court appellant asks that we reverse and dismiss, contending the arresting officer was not a certified radar operator and that there was no probable cause to stop or arrest the appellant. We affirm the judgment.
Citing several sections of Chapter 9, Law Enforcement Training and Standards, Ark. Code Ann. § 12-9-101, et seq. (1987) , appellant argues that the arresting officer did not have certificates from the Arkansas Law Enforcement Standards Commission or from the Federal Communications Commission reflecting his authority to operate a radar unit, nor was there any certificate from the FCC approving the radar unit used to stop the appellant. Appellant relies on § 12-9-108(a), which provides that the actions taken by an officer who is not qualified “shall be held invalid.”
We need not decide whether there is merit to these arguments. For one thing, there was no motion to suppress and the testimony of the arresting officer concerning the radar unit and his method of using it was admitted without objection. For another, the officer testified that in addition to his radar unit, the speedometer on his patrol car reflected appellant’s speed as being 50 miles per hour. Finally, there was no showing that appellant’s arrest was dependent solely on the citation issued by the arresting officer. Recently in Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988), we reviewed the law affecting the legality of an arrest where the qualifications of the arresting officer were challenged on the basis of Ark. Code Ann. § 12-9-108(a) (1987). We said if the officer was not qualified it was as if no charge were ever filed, Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985) and “a party cannot be guilty of a crime with which he was never charged.” However, in this case, as in Davis v. State, the appellant failed to show that the arresting officer’s citation was the only formal charge, or that the appellant was not later charged by information. Since we do not presume error, it is appellant’s duty to demonstrate it. The Baldwin Co. v. The Ceco Corporation, 280 Ark. 519, 659 S.W.2d 941 (1983).
Appellant’s argument that there was no probable cause to stop him or to arrest him cannot be sustained. The officer’s testimony that he clocked the appellant at 50 miles per hour in a 40 mile an hour zone gave him every reason to stop the appellant for a traffic violation and his testimony that appellant smelled of alcohol, was swaying, and could not perform field sobriety tests, provided ample probable cause to charge him with driving while intoxicated. Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984).
AFFIRMED. | [
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Kirby, J.,
(after stating the facts). Appellants insist that the State Board of Health exceeded its power in requiring- vaccination and prescribing the method thereof, and that the certificate of the physician that the children had been vaccinated was' conclusive so far as the school board was concerned.
In Auten v. School Board of Little Rock, 83 Ark. 431, 104 S. W. 130, it was held that a regulation of the school board of a city requiring pupils before admission to the schools to present the certificate of a reputable physician showing that they had been successfully vaccinated, etc., was not unreasonable where smallpox was prevalent and the school board was acting under the orders of the board of health of the city and the advice of physicians.
In State v. Martin & Lipe, 134 Ark. 420, 204 S. W. 622, it was held that the State Board of Health was vested with power under §§ 5 and 6 of act No. 96 of 1913 (page 351), §§ 51201, 5130, Crawford & Moses’ Digest, to adopt and promulgate rules and regulations for the control and prevention of infectious, contagious, and communicable diseases, necessarily including the disease of smallpox, and to prevent its entry into and spread throughout the State by rules and orders preventing unvaccinated persons from mingling with the other inhabitants of the State, and that the authorization of the boards to make such rules was not a delegation of legislative power. It was said there: ‘ ‘ The necessity for, and reasonableness of, the regulations is one- largely within the judgment of the board. Every presumption is indulged in favor of the necessity of the rule, and courts will not interfere with acts of health authorities unless it is apparent that the rule is arbitrary.” In the opinion in that case, which also determined the case of Brazil v. State, 134 Ark. 420, 204 S. W. 622, 625, although the court thought the existing condition in the State at the time the rule was made warranted its adoption during the period of mobilization of Arkansas quota for the A. E. F. in the World War, smallpox being prevalent in the State and soldiers being transported in and out of the State in great numbers, still it was shown by proof, as herein, that no smallpox had been in the schools or neighborhood, and that there was no threatened epidemic of smallpox in the community; nor was it alleged that smallpox was prevalent or threatened in that district, an isolated one.
(1) It is well settled that it is a valid exercise of the police power of the State, the use of which was not restricted by the grant of power to the federal government, to designate local boards of health authorized to require under penalty the vaccination of all citizens when it may be deemed necessary to the public health and safety, such necessity arising when smallpox is present in a community or its appearance may be reasonably apprehended. Note 17 L. R. A. (N. S.) 709; State v. Martin & Lipe, supra.
Although it is undisputed that there was no smallpox in the city of Eureka Springs, nor in the county at the time the appellant’s children were denied the right to attend the'public schools, which they were otherwise entitled to do, except for the failure to present a satisfactory certificate of vaccination to the board in accordance with the rules, and the testimony showed that there was no condition existing* from which its appearance could be reasonably apprehended, the case is not distinguished from, Brazil v. State, supra, where a like con dition was shown to exist and the adoption and promulgation of a like rule was held to be neither unreasonable or unnecessary. Such being the case, appellants insist that the vaccination requirement of the school board was arbitrary, unreasonable, and unnecessary, and applying only to school children, was necessarily discriminatory and void, in effect an unwarranted attempt to regulate the practice of medicine, contrary to the provisions of the statute authorizing’ the making of health regulations by .the State Board.
(2, 3). It is true that the State Board of Health in its regulation No. 84 defines vaccination for smallpox as “the introduction, by scarification, of the bovine vaccine virus through the skin, ’ ’ and that there is no definition of the term in the statute granting power to the board, although there is no doubt but that the Legislature had the power to prescribe such method required to be used by the State Board in protection of the public health, when the necessity arose therefor. The'majority is of opinion, in which the Chief Justice and the writer do not concur, that the power to prescribe the method for vaccination against smallpox was necessarily impliedly granted, and the statute granting powers and prescribing the duties of the State Board of Health and that the regulations made by it prescribing the method for vaccination was not arbitrary, but only a reasonable exercise of such power. That the method for vaccination prescribed by the 'board was but an expression of the meaning of the term in accordance with the common knowledge of mankind, and as understood by the consensus of opinion of the medical profession and practiced •by a great majority thereof; the term, itself, meaning the method as defined by the board as effectually as though it had been so defined in the statute. See definition in Webster’s Dictionary, Funk & Wagnall’s Standard Dictionary; Lee v. Marsh, 230 Pa. 351, 79 Atl. 564 ; Abney v. Fox, (Tex. Civ. App.) 250 S. W. 210.
(4, 5). The majority is also of opinion that the school board did not abuse its discretion in requiring, as prerequisite to the entry of pupils in the public schools, which they were otherwise entitled to attend, the presentation of “a certificate from a licensed and competent physician of the State that the pupil has been successfully vaccinated” in accordance with Rule No. 147, prescribed by the State Board of Health, and that such school board was not concluded by the certificate of vaccination presented by the pupils from a licensed physician that they had been vaccinated against smallpox, but could nevertheless inquire into the method used in performing the act of vaccination and deny the children the right to enter school, if it had not been done by the method prescribed by the State Board of Health. Neither does the writer agree to this holding of the court.
There being no prejudicial error in the record, the judgment is accordingly affirmed. « | [
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Robert L. Brown, Justice.
This appeal arises out of the second-degree murder conviction of the appellant, Jerry Anderson, for beating a man to death. Anderson was sentenced to fifteen years in prison and fined $5,000. He appeals on insufficient evidence of purpose and causation and further on the trial court’s refusal to allow into evidence the fact that , he had no felony record. The asserted grounds have no merit, and we affirm.
The beating occurred about midnight on August 21, 1991. Anderson, age 19, Thomas Saunders (the victim), Anderson’s brother, and others were at a party at the home of Elloise Huggins in Jonesboro. The participants were drinking malt liquor and rum and playing cards. At one point in the evening, Saunders hit the bottom of a beer bottle from which Anderson was drinking causing Anderson to chip a tooth. A fight ensued.
Anderson described the fight in his first taped statement given to the police which was played to the jury:
When we got into the fight, I hit Saunders and he fell on the porch and then when he fell, I hit him with a straight blow with my right fist. I do not know where I hit him because it was dark. I knocked him down on the porch. Then I kicked him in the side and he fell off the porch. He got on the ground and I just kicked him in the side a couple more times, and then I stomped his head 2 or 3 times. I kicked him with my right foot. I did not kick with my left foot. I never got down over him and held his head. Nobody else struck any blows.
Anderson stated he kicked Saunders a total of six or seven times. He later testified that Saunders was down trying to protect himself when he kicked him in the ribs and head. Elloise Huggins testified that when she saw Anderson “stomping” Saunders’s head, it was so bad that she could not watch. After the fight, Anderson said his brother and Ellis Huggins carried Saunders over to a ditch where they left him. Anderson added:
My brother, John, and Ellis Huggins mentioned they thought he was dead. They said he had a pulse and they went back out to check him and they said he did not have any pulse.
No one at the party called the police or sought medical attention for Saunders. Ellis Huggins later denied that he thought Saunders was dead.
Saunders’s body was found the next morning after the fight. Officer Jack McCann of the Jonesboro Police Department investigated the death and, as a result, arrested Anderson that same day. He testified that he did not notice bruises on Anderson or other evidence that he had been involved in a fight.
The medical examiner, Dr. Fahmy Malak, testified at trial that Saunders died because of physical trauma to the head and alcohol consumption which caused him to lapse into a coma and cease breathing. He testified that Saunders’s alcohol level was .21 percent at the time of death, twice the level required to qualify for legal intoxication, but that this level was not sufficient, in itself, to cause his death. He further testified that Saunders did not die immediately and that he had aspirated blood into his lungs due to cuts to his lips.
At the close of the state’s case, Anderson moved for a directed verdict on insufficient evidence due to a lack of intent to kill Saunders and the absence of causative evidence that his blows to the head actually resulted in Saunders’s death. He further argued that the trial judge erred in forbidding him to introduce evidence of no arrests or felony record because self-defense was his theory for acquittal. The judge denied the motion.
As part of the defense case, Anderson testified that he was 19 years old and had a reputation for being a law abiding and peaceful citizen. He then testified that he had been drinking malt liquor and got into the fight but did not think the blows he inflicted on Saunders would cause his death. He stated that Saunders swung at him first but agreed that he got in “the first and last lick.”
The jury was instructed on second-degree murder, man slaughter, and negligent homicide. Instruction No. 10 read as follows:
Jerry Anderson is charged with the offense of murder in the second degree. To sustain this charge, the State must prove beyond a reasonable doubt that:
Jerry D. Anderson, with the purpose of causing serious physical injury to Thomas Saunders, caused the death of Thomas Saunders.
“Purpose”—A person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
“Serious Physical Injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.
Following the guilty verdict for second-degree murder, Anderson requested that the fifteen-year sentence be reduced because he did not have a felony record. The trial judge refused to do that and stated that, though he sustained an objection to any questioning on Anderson’s record, the jury knew by the way Anderson testified that he did not have a record.
For his first point, Anderson contends that there was insufficient evidence of purpose and causation to sustain a conviction for second-degree murder. We disagree. The jury was properly instructed on the law of second-degree murder, purpose, and serious physical injury, as well as manslaughter and negligent homicide.
An appeal from a denial of a motion for directed verdict is a challenge to the sufficiency of the evidence, and we review the evidence in the light most favorable to the appellee. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992); William v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). We will sustain the conviction if there is substantial evidence to support it which is evidence of sufficient force and character to compel a conclusion beyond suspicion or conjecture. Id', see also Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992).
Certainly, repeated blows to the head by kicking or “stomping” when the man was down exhibited purposeful action to inflict serious physical injury whether it be risk of death or protracted disfigurement or impairment. See Ark. Code Ann. §§ 5-10-103 (Supp. 1991), 5-1-102(19) (1987), and 5-2-202(1) (1987). This was a question of fact properly left to the jury to resolve, and we hold that substantial evidence exists to support the conviction for second-degree murder. See Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).
In addition, though the jury was not specifically instructed on causation, our statute reads:
Causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.
Ark. Code Ann. § 5-2-205 (1987). Dr. Malak’s testimony that death would not have occurred but for the trauma and that the alcohol consumption alone was not the cause of death satisfies the statutory requirement. The evidence was substantial that the blows to the head were a contributing cause of death. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992).
Nor do we give credence to Anderson’s second point. He argues that the trial judge erred in refusing testimony from Anderson or any other witness on Anderson’s lack of a prior felony arrest or conviction. The trial judge ruled that such testimony was not relevant evidence in support of a self-defense theory. We agree. The absence of a felony record is not evidence of peacefulness anymore than the mere existence of a felony record, by itself, is evidence of a violent temperament. To be sure, conviction for certain past crimes may be evidence of a certain plan, motive, scheme and the like under Ark. R. Evid. 404(b). But the mere absence of any felony conviction is not relevant to the question of who precipitated a fight. Moreover, the evidence in this case went far beyond who threw the first punch and centered appropriately on the purpose behind the subsequent beating and the result.
Lastly, we note, as the trial judge emphasized, that Anderson was permitted to testify that he had a reputation for being a law abiding and peaceful citizen. See Ark. R. Evid. 405(a). This statement was not countered by the state. From this, the jury could easily have garnered Anderson’s point that he had no felony record.
In sum, the acceptance or rejection of evidence relating to the absence of Anderson’s felony record is a matter left to the discretion of the trial judge. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). There was no abuse of that discretion.
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Mettaffy, J.
M. L. Coxwell was in the sanitorium at Booneville, Arkansas, for treatment for tuberculosis, and while there at four o’clock in the morning of May 21, 1929, was stricken with acute appendicitis. He was advised by the doctor in charge of the sanitorium that he had appendicitis, and that he would have to g'o to some other hospital for an operation, and asked him where he wanted to go. Appellee told him he wanted first to go home and consult with his family doctor. His home was at Corning, Arkansas. The bookkeeper of the sanitorium got in communication with appellee’s family physician, Dr. Lattimer, who arranged for appellant’s train No. 2 to stop at Corning to let appellee off, and sent appellee a telegram to that effect. At eleven o’clock that night appellee took the train at Booneville for Little Rook. At Little Rock he was transferred to the depot of the Missouri Pacific; the train was in and appellee boarded it. He first went to the conductor and presented to him, his .ticket and a teleg'ram and told him he wanted a Pullman. The conductor pointed out the Pullman further back, appellee went back to the Pullman, presented his ticket and telegram to the Pullman conductor, who took them and told appellee to get on. The Pullman conductor sold and issued to appellee a Pullman ticket tb Corning. When appellee paid his fare, he told the conductor he wanted to be notified in plenty of time to get off, and also that he wanted ice for his ice pack. He was told by the conductor to' ask the porter for what he wanted and told the porter to notify appellee in time to get off. Appellee’s condition was serious, and he was suffering great pain and ice packs were used to reduce the inflammation and P'ain. At Knobel, six miles from Corning, the porter notified appellee to get ready to get off at Corning. The train did not stop at the depot, but ran by the station about three-quarters of a .mile and stopped. Appellee told the conductor that the doctor and his family were waiting for him at the depot and he could not go on to Poplar Bluff. The conductor refused to take him back to Corning, and appellee was left to make his way back to Corning, and the walk intensified his suffering and made the pain much more severe. Appellee’s family and doctor were waiting* for him at the depot at Corning with a car, but when the train failed to stop .at Corning they went back home and appellee had to walk home. It took him about an hour to walk home. He was compelled to stop and rest three or four times, and he kept the ice pack on his side all the way. It was about eight o’clock when, he got home, and Dr. Lattimer was called to see him. He advised an immediate operation, and he was carried to Poplar Bluff and operated on. .
There is some conflict in the testimony as to what took place between appellee and the conductor, but there is no dispute about the fact that the train ran by the station, and that the conductor refused to take appellee back to the station. Numbers of witnesses testified, including physicians, but the above are substantially the facts. Physicians testified to- the 'Suffering and also that appellee’s having to walk home and being in an upright position, increased his pain. The conductor offered to take him on to Poplar Bluff, and told him there were hospitals and doctors there, but he declined to go and went home.
Appellant first contends that the evidence is insufficient to support the verdict, and that there is no substantial evidence to sustain the verdict. We do not agree with appellant in this contention. The railroad company accepted appellee’s ticket to Corning and agreed to stop the train there. They knew he wanted to get off at Corning, and the porter at least knew his condition, and appellee testified that the porter told the conductor about appellee’s serious condition. ■ The conductor, however, de nies this, hut he says he told, appellee he was not going to back up but would take him. to Poplar Bluff and send him back or he could walk buck. It was 27 miles from Coming to Poplar Bluff. While the conductor says he did not know about him having appendicitis, he' did testify that when he got off the train he had his hand on his side, and when the conductor asked him what was the matter he told him that his appendix was hurting him, and then was when the conductor told him he had better go on to Poplar Bluff. Appellant argues that, because appellee refused to be carried on to Poplar Bluff but elected to get off, his getting off' the train was not the proximate cause of his injury, and that his having to walk back the distance he did was caused by his refusing to be carried to Poplar Bluff, and any extra suffering was not the fault of the appellant. The wrongful conduct of appellant put the appellee where he had to decide at once whether to go on to Poplar Bluff or consult with his family and family physician, and he had a right to make the choice and had a right to consult his family and family physician before having the operation, and whatever suffering and inconvenience was caused by appellant’s failure to put appellee off at the station was caused by the wrongful conduct of the appellant, making it liable in damages to appellee. The appellant, having wrongfully carried him beyond the station and put him off, could not require him to go to Poplar Bluff or anywhere else, and could not relieve itself from liability by offering to take him on to Poplar Bluff. The wrongful conduct of appellant was the proximate cause of the injury complained of.
There is no error in the court’s instruction. Appellant argues that that part of the instruction which would authorize a jury to find for increased illness is too abstract, and that there is no evidence to show or from which the jury could reasonably infer that-there was additional illness. The court did not say additional illness, but said increased illness, and all of the proof shows that his suffering was increased because of his having to walk back to the station and to his home. It is insisted by appellant that the damages, if any, should have been only nominal, and that it cannot be said that appellant was guilty of negligence. We do not agree with appellant in this contention. There was increased or additional pain and suffering because of the negligence or wrongful conduct of appellant. The undisputed evidence shows that appellant had agreed to stop this train at Criming and did riot do so, but it negligently and wrongfully carried appellee beyond the station.
It is also urged that the amount of damages found by the jury is excessive. We do not think so. The verdict was for $1,000, and, when the condition and suffering of appellee is taken into consideration, together with the negligence of appellant which caused it, the amount awarded by the jury appears to be fair.
Appellee has prosecuted a cross-appeal. After the verdict was rendered, appellee asked judgment for a reasonable attorney’s fee, which the court did not allow. Appellee contends that the-railroad company is liable for attorney’s fee because the appellant violated the statute. Corning was not a stop for this particular train; appellant had the right to operate this train without stopping at Corning; it however entered into a special agreement to stop there to permit appellee to get off and violated this agreement. We think it did not violate the statute, and that the statutory provision for attorney’s fee has no application here. K. C. Sou. Ry. Co. v. Marx, 72 Ark. 357, 80 S. W. 579 ; Midland Valley Ry. Co. v. Horton, 112 Ark. 125, 165 S. W. 266 ; K. C. Sou. Ry. Co. v. Town, 102 Ark. 20, 143 S. W. 597 ; St. L. S. W. Ry. Co. v. Knight, 81 Ark. 429, 99 S. W. 684 ; St. L. I. M. & S. R. Co. v. Evans, 94 Ark. 324, 126 S. W. 1058.
We find no error, and the judgment is affirmed, both ' on appeal and cross-appeal. | [
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Leflar, J.
This is an action for damages to plaintiff’s farm and pasture land, located on Hurricane Creek some six or seven miles below the alumina extraction plant of defendant Reynolds Metal Co. (hereinafter called Reynolds). The damage to the land was caused by sediment deposited on it during overflows of Hurricane Creek following heavy rains. Plaintiff alleged that this sediment either came from the Reynolds plant or contained poisonous substances which came from the plant. At the close of the plaintiff’s evidence and again at the close of all the evidence the defendant moved for a directed verdict, the Court each time denying the motion. The jury’s verdict was for the plaintiff for $1500, and defendant appeals, asserting insufficiency of the evidence to sustain the verdict.
No doubtful question of law is involved. It is virtually conceded that if Reynolds has discharged deleterious or poisonous substances from its plant and these have, during periods of normal overflow, lodged as sediment upon plaintiff’s land, destroying vegetation and depreciating the value of the land, plaintiff may recover. Nebo Consolidated Coal & Coking Co. v. Lynch, 141 Ky. 711, 133 8. W. 763; Good v. West Mining Co., 154 Mo. App. 591, 136 S. W. 241; Arminius Chemical Co. v. Landrum, 113 Va. 7, 73 S. E. 459, 38 L. R. A. (N. S.) 272, Ann. Cas. 1913D, 1075; Annot., 39 A. L. R. 899. Tbo question is whether the evidence introduced was sufficient to justify the jury in finding that this has happened.
The evidence was ample to show that sediment was deposited on plaintiff’s land when Hurricane Creek overflowed, as it frequently did. Plaintiff and several of liis neighbors testified, . . tliere comes an overflow and this old muddy substance covers my lespecleza up.” “I had my cattle in there; they couldn’t eat it until a rain came and washed that stuff off.” “It is slick slimy stuff.” “The sediment that comes out of the creek settles all over the land.” “I walked out and picked up some of that, it was cracked open, it was in little cakes about half an inch thick and then I walked over to another place and stepped off in that and stepped over my slioetops almost.” “The creek overflows and sediment and stuff overflows and gets on it and kills the vegetation.”
It was not seriously suggested by plaintiff that all the sediment, or even any large portion of it, came directly from the Reynolds plant. The plant is several miles upstream from plaintiff’s farm, and several bauxite mines (not alumina factories like the Reynolds plant), drain into Hurricane Creek between his farm and the plant, and others drain into the creek above the plant. It is clear that a large part of the sediment comes from sources for which defendant is not responsible.
Defendant Reynolds denied that any substantial amount of the sediment came from its plant, and also denied that any poisonous or harmful substances whatever were allowed to flow from its plant into the creek at any time. Reynolds introduced the testimony of expert witnesses, chemists who stated that they had analyzed the chemical content of the sediment and found nothing in it that would be poisonous or otherwise harmful to vegetation, apart from the obvious effect of choking the vegetation out by covering it up. Plaintiff introduced no expert evidence as to the chemical content of the sediment. The plaintiff and some of his witnesses gave their opinions that the sediment was poisonous, but these were unscientific statements of lay opinion, based on observations from which it might also have been concluded that the vegetation was merely choked out. Substantial proof that the sediment included chemical constituents that were poisonous to vegetation was lacking.
Similarly, the testimony was very vague as to the Reynolds plant being the source of the allegedly poisonous elements in the sediment. Plaintiff testified, “It (the muddy substance) came from Reynolds Metal Company because we never did have any of that there until that plant went in.” Other witnesses testified: “Q. Where does that come from? A. Well, I would say it comes from the plant.” “Q. You have seen this red water escaping from the plant? A. Yes, from the dump over there where it comes out from the plant into Hurricane creek over there on the north side of the Hurricane Creek plant . . . Q. You don’t know what chemicals it is? A. No, sir, I wouldn’t know.” “Q. Do you know where this sediment comes from? A. Yes, it comes from the bauxite mines . .. .Q. Do you mean at the mining plant ... ? A. I mean all of them. Q. Including Reynolds Metal Company? A. If they drain that ore in there. Q. Do you know whether they do or not? A. No, I don’t, I don’t know where it comes from. Q. You do know it comes out of the mines? A. Yes.” Other witnesses testified to the same general effect. Their testimony was no more definite than that just quoted.
We are forced to conclude that the record does not contain substantial evidence that Reynolds discharged from its plant into the creek deleterious or poisonous substances which caused the damage of which plaintiff complains. Tlie judgment based upon the jury’s verdict in the Circuit Court must therefore be reversed.
The evidence might well have been much more completely developed than it was. This Court has held that, even where a judgment based on a jury verdict is reversed for insufficiency of the evidence to support it, there may be circumstances which justify remanding the case for new trial, rather than outright dismissal. Douglas v. Franks, 212 Ark. 426, 206 S. W. 2d 11. A majority of the Court feel that this is such a case.
The judgment is reversed and the cause remanded for a new trial,
Millwee and George Rose Smith, JJ., dissent, their view being that the judgment should be affirmed.
A plant in which alumina is extracted by means of chemical processes from the raw bauxite ore that is mined in the area. | [
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Richard B. Adkisson, Chief Justice.
Appellant, Gary Wayne Fuller, was convicted by a jury of first degree murder and sentenced to life imprisonment. At trial, a statement given by appellant to the Pulaski County Sheriff’s Office was introduced into evidence. Appellant’s primary contention on appeal is that the trial court erred in admitting the statement into evidence because it was not voluntarily given. We affirm.
Testimony at trial revealed the facts leading up to the murder. Appellant had dated a woman named Theda Balfour Miller about four years and they had had a child. At the time of the murder, however, Theda and the child were living with Lawrence Goodson, the deceased, at Theda’s mother’s house in Southwest Little Rock. On September 22, 1980, appellant telephoned Theda, wanting to take the child to the fair. It is unclear whether appellant ever spoke with Theda, however, it is undisputed that he and the deceased got into a heated argument over the phone. Later that evening appellant and some of his friends drove over to Theda’s house. Appellant got out of the car, taking one of his friend’s shotguns with him. He crept up to the bedroom window, saw the deceased, and fired several shots. Appellant’s friends testified that appellant came back to the car and told them that he had shot Goodson in the head. Goodson’s brother found Goodson dead in the bedroom. The above evidence is clearly sufficient to sustain appellant’s conviction.
On September 22, 1980, appellant was questioned concerning the murder but was released. Then on July 28, 1981, appellant was served with a warrant for murder of the deceased while being held in jail on an unrelated charge. He was taken to a CID unit for questioning, where he was advised of his rights. He subsequently gave a statement, which was written out by an officer but signed by appellant.
Appellant argues that this statement was involuntary and should have been suppressed. This contention is without merit. The applicable law is well settled. If the individual is in custody when the statement is given the burden is on the state to prove that it was voluntarily given. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). This determination is made based upon the totality of the circumstances at the time the statement was given. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). On appeal we review the evidence and make an independent determination as to the issue of voluntariness. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835(1981).
Appellant alleges that his statement was involuntary because of the time of the statement he had been drinking and had taken “Blues and Tees.” However, the officer taking the statement testified that appellant was very coherent and did not have problems communicating. Appellant claims that the officers told him if he made a statement he would not be harmed, and that he asked to telephone an attorney but was not allowed to do so. These allegations were also disputed by the officer, who testified that he did not remember appellant requesting to use the telephone and that no threats or force was used to get appellant to make the statement. In fact, the appellant himself testified that the officers did not threaten him, and that he “just went on and signed the papers to get it over with.” Appellant alleges he only had an eighth grade education; however, the officers testified that appellant stated he had an eleventh grade education,' and a notation “11th grade” appears on the rights form and appellant’s statement.
When the testimony is conflicting as to voluntariness, it is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Lockett v. State, 275 Ark. 338, 629 S.W.2d 302 (1982). Here, the trial court resolved the credibility issue in favor of the state, and we cannot say its finding was clearly against the preponderance of the evidence.
Appellant also argues that the trial court erred in admitting two photographs of the deceased. One photograph showed the deceased as he was found and the other showed the wound the victim had received. We have consistently held that. the question of admissibility of photographs lies largely within the discretion of the trial court, and its ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. Here, the first photograph corroborated the testimony of the witness who found the body, and the second photograph aided the Chief Criminologist for the State Crime Lab in his testimony. The fact that there was a stipulation as to the cause of death did not make the second photograph inadmissible. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977). Furthermore, both photographs were, relevant to the nature and extent of the wounds. We cannot say that the trial court abused its discretion in admitting the two photographs.
We have examined all objections pursuant to Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 611 S.W.2d 98(1981).
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Tom Glaze, Justice.
This case involves a claim dispute under the Federal Employees Health Benefit Act (FEHBA) embodied in 5 U.S.C.A. §§ 8901-8914 (West 1967 & Supp. 1988). Appellant James G. Barr, a retired Federal employee, paid into the Federal Employees Benefit Plan offered through the appellee, Arkansas Blue Cross and Blue Shield. Under FEHBA, the United States Office of Personnel Management (OPM) enters into contracts with private carriers, in this case the appellee, that will administer the Federal Benefit plan. OPM promulgated regulation 5 C.F.R. § 890.105 (1986) which sets forth a procedure for resolving benefit claim disputes between a FEHBA plan’s carrier and enrollees in the plan, such as appellants.
Appellants submitted hospital and medical bills to appellee for payment under the terms of FEHBA. After appellee denied two requests for payment of those bills, appellants filed suit against appellee in circuit court, alleging breach of contract and the tort of bad faith for appellee’s alleged outrageous conduct in denying the appellants’ claims. Appellee moved to dismiss the appellants’ action because the appellants had not exhausted their administrative remedies by appealing to the OPM. Appellee also moved for partial summary judgment on the tort of bad faith claim on the basis that such a state claim was preempted by FEHBA. The trial court granted both of appellee’s motions, and we affirm.
Regarding the preemption issue, we first turn to the terms of the preemption clause contained in § 8902(m)(l) of FEHBA, which provides as follows:
The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans to the extent that such law or regulation is inconsistent with such contractual provisions. (Emphasis added.)
The Ninth Circuit Court of Appeals in Hayes v. Prudential Ins. Co. of America, 819 F.2d 921 (9th Cir. 1987), considered the foregoing clause in a case similar to the one before us. In Hayes, the retired employee claimed he was wrongfully refused benefits under FEHBA and sought damages against the contract carrier (Prudential Insurance Co.) alleging state law causes of action which included breach of contract and breach of a duty of good faith and fair dealing. The employee contended his state claims were not preempted under § 8902(m)(l) because the claims related to the manner in which Prudential Insurance Co. processed his benefits and not to the “nature or extent of coverage or benefits.” The court rejected the contention, stating no such distinction existed since tort claims arising out of the manner in which a benefit claim is handled are not separable from the terms of the contract. The court reasoned that the employee’s state claims “relate to” the health insurance plans, under § 8902(m)(l) of FEHBA, as long as they have a connection with or refer to the plan. Because the court determined the employee’s state law claims referred to the health insurance plan provided under FEHBA, it held the claims fell under the Act’s preemption clause. The Hayes court further concluded as follows:
Because the state law claims invariably expand appellees’ obligations under the terms of the Plan, the claims are inconsistent with the Plan and, hence, preempted under § 8902(m)(l).
The rationale employed by the court in Hayes is well supported by the Supreme Court’s decision in Pilot Life Ins. v. Dedeaux, 107 S. Ct. 1549 (1987). In Dedeaux, the Court held that the Employee Retirement Income Security Act (ERISA) preempts state common law tort and contract claims for benefits under an ERISA regulated plan. The Supreme Court’s holding was based upon its interpretation and application of the following preemptive clause contained in ERISA, which is notably similar to FEHBA’s preemptive clause before us now:
[T]he provisions of this subchapter . . . shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan .... 29 U.S.C. § 1144(a) (1982).
In construing the foregoing clause, the Supreme Court gave the phrase “relate to” its broad common-sense meaning, such that a state law “relates to” a benefit plan in the normal sense of the phrase if it has a connection with or reference to such a plan. In doing so, the Court emphasized that the preemption clause was not limited to state laws specifically designed to affect employee benefits plans and concluded that common law causes of action raised in Dedeaux’s complaint, each based on alleged improper processing of a claim for benefits under an employee benefit plan, undoubtedly met the criteria for preemption under the clause. Cf. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) (where the Court held § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982), preempted Wisconsin tort law for alleged bad faith delay in making disability payments under a collective bargaining agreement).
We believe the principles employed by the Court in Dedeaux, to determine Congress’s intent and purpose in enacting the preemptive clause in ERISA, are equally applicable here, when construing FEHBA’s preemptive clause. As we have cited already, other jurisdictions have adopted this same view when holding state causes of actions, such as contract and bad faith tort, are precluded under FEHBA. In the present case, appellants’ actions clearly made reference or related to the plans provided by FEHBA, and in order to prevail in their breach of contract and bad faith tort claims, appellants must show that the appellee failed, in varying degrees, to comply with the requirements under that federal law when appellee denied appellants their benefits. In accordance with what we believe to be the controlling law on this subject, we conclude that appellants’ state actions are preempted under FEHBA, and that the trial court was correct in so holding.
Next, we address appellants’ argument that the trial court erred in dismissing their action because appellants failed to exhaust their administrative remedies. The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938). The doctrine is, however, subject to numerous exceptions. McKart v. United States, 395 U.S. 185 (1969). For example, exhaustion is not required where no genuine opportunity for adequate relief exists or where irreparable injury will result if the complaining party is compelled to pursue administrative remedies. Exhaustion is also not required where an administrative appeal would be futile. See, e.g., Linfors v. United States, 673 F.2d 332 (11th Cir. 1982).
Appellants first claim no remedy is available to them because they failed to request a review of the denial of benefits within a 90-day period required under 5 C.F.R. § 890.105(c)(3). We find little merit in this argument in view of 5 C.F.R. § 890.105(d)(1), which provides that OPM may extend the time for requesting a review when a person shows he or she was never notified of the time limit or was prevented by circumstances beyond his or her control from submitting a timely request for review. Clearly, OPM has the discretion to grant appellants a belated review, and we are unable to presume OPM will decline such a request given an opportunity to do so.
Appellants next argue that the administrative remedy fails to provide them with adequate relief because they seek judicial redress for appellee’s bad faith conduct. This argument, of course, is resolved by our decision that FEHBA preempts the state causes of actions sought by appellants. Thus appellants’ remedies lie within the terms and procedures set forth in that federal law.
Appellants also assert their claim clearly would be rejected by OPM because appellee has rejected it twice and it was rejected again by the trial court. Appellants’ assertion ignores that the OPM review process provided by law is designed to remedy any error committed by a carrier — in this case, the appellee. As is set out in § 8902(j) of FEHBA, the carrier is required to pay benefits under the law if OPM finds that the employee is entitled to them.
Finally, appellants argue estoppel as another exception or reason they should not be obliged to pursue their administrative remedies. They claim, among other things, that the appellee had a duty, but failed, to advise appellants of their responsibility to seek OPM review. Appellants never raised this point below, and it is well settled that this court will not consider arguments raised for the first time on appeal. Hooper-Bond. Ltd. Partnership Fund III v. Ragar, 294 Ark. 373, 742 S.W.2d 947 (1988).
Because appellants fail to establish their situation and circumstances relieve them from first pursuing their administrative remedies under FEHBA, we believe the trial court was right in dismissing their claim under that federal law for their failure to exhaust their remedies. Also, for the reasons given hereinabove, we affirm the trial court’s ruling that appellants’ state claims are preempted under the provisions of FEHBA.
Other jurisdictions have held to the same effect. See Blue Cross & Blue Shield v. Dept. of Banking, 791 F.2d 1501 (11th Cir. 1986); LaBelle v. Blue Cross & Blue Shield United, 548 F. Supp. 251 (W.D. Wisc. 1982); Hartenstine v. Superior Court, 196 Cal. App. 3d 206, 241 Cal. Rptr. 756 (1987). But see, Howard v. Group Hosp. Service, 739 F.2d 1508 (10th Cir. 1984); Skoller v. Blue Cross-Blue Shield of Greater New York, 584 F. Supp. 288 (S.D.N.Y. 1984).
In reaching this issue, we observe that a state court, as here, has concurrent jurisdiction with the federal courts to enforce rights granted by a federal act unless prohibited from doing so. McEntire v. Monarch Feed Mills, Inc., 276 Ark. 1, 631 S.W.2d 307 (1982). We find nothing in FEHBA that prohibits this court’s interpretation of that federal law. | [
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Robert H. Dudley, Justice.
Appellant was convicted of.the Class C felony of theft of property. The applicable statute, Ark. Code Ann. § 5-36-103 (1987), provides that theft of property is a Class C felony if one takes the property of another person and the value of the property is more than two hundred dollars, but less than two thousand five hundred dollars. Appellant does not deny that he took a total of $300.00 from the victim’s purse. However, he argues that only $200.00 of the money was the property of the victim, as the other $100.00 was being held by the victim in her capacity as treasurer of her church. Thus, he argues there is no substantial evidence that he took the “property of another person” of a value of “more than $200.00.”
The argument ignores the statutory definitions of “property of another person” and “amounts involved.” Ark. Code' Ann. § 5-36-101(7) (1987) provides: “Property of another person means any property in which any person . . . has a possessory or proprietary interest. . . .” Here, the victim has a proprietary interest in the $200.00 which was her own money, and a possessory interest in the $100.00 which she was holding as treasurer for her church. Under this definition the evidence was sufficient to convict the appellant.
In addition, Ark. Code Ann. § 5-36-102(c)(2) (1987) provides: “Amounts involved in theft committed pursuant to one . . .course of conduct. . . may be aggregated in determining the grade of the offense.” When the two sums are so aggregated, the total justifies the Class C felony in the case.
Under this definition the evidence was also sufficient to convict the appellant.
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Tom Glaze, Justice.
The appellant, Bennie Daniels, brought this negligence and personal injury action against appellee, John Cravens, as a result of a collision between the vehicles each was driving on a highway about six miles outside St. Charles, Arkansas. Daniels was employed by Helena Contracting Co. at the time of the collision, and that company’s workers’ compensation carrier, Liberty Mutual Insurance Company, paid substantial benefits to Daniels for the injuries he sustained as a result of the collision with Cravens. Citing Ark. Code Ann. § 11-9-410 (1987), Liberty Mutual asserted its right to intervene in Daniels’s tort action against Cravens. Daniels responded acknowledging Liberty Mutual’s entitlement to intervene and stated that he had no objection to the intervention. Cravens also did not interpose an objection to Liberty Mutual’s intervention, but he did contend Liberty Mutual should be limited in its participation at trial. In sum, Cravens objected to Liberty Mutual’s attorney, by argument or examination of witnesses, duplicating or “shoring up” the case presented by Daniels and his attorney. The trial judge disagreed with Cravens’s position, and concluded that, because there were three distinct parties, each could participate fully.
After the trial court’s ruling, the parties’ case proceeded to trial and the jury rendered its verdict apportioning the responsibility for the occurrence between Daniels and Cravens at fifty percent each. Accordingly, the trial judge ordered that Daniels and Liberty Mutual take nothing and that their respective complaints be dismissed with prejudice. Daniels, alone, appeals from the judgment, and having employed new counsel, argues that the trial judge erred in allowing Liberty Mutual to participate in the trial below and in permitting references to the compensation benefits paid Daniels.
In affirming this cause, we need only point out that Daniels, in his response below, conceded Liberty Mutual’s right to intervene in the case, and thereupon heavily relied on the testimony of expert witnesses provided by Liberty Mutual. In fact, the only medical doctor testimony produced at trial regarding Daniels’s injury was that of Dr. Samuel Hunter which was introduced via deposition by Liberty Mutual. Liberty Mutual also called a clinical psychologist to testify regarding Daniels’s employment disability.
Daniels’s strategy from the outset of this case was to work in tandem with Liberty Mutual. Now, because Daniels is unsatisfied with the outcome of the trial, he attempts to reverse the case relying on Cravens’s objection at trial that Liberty Mutual’s participation should have been limited. Again, Daniels never objected to Liberty Mutual’s participation in the trial or to any references made at trial to the workers’ compensation benefits paid to Daniels.
It is well settled in Arkansas that, under the doctrine of invited error, an appellant may not complain on appeal of an erroneous action of a trial court if he had induced or acquiesced in that action. Jones v. Dierks Forests, Inc., 238 Ark. 551, 383 S.W.2d 110 (1944); Missouri Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944); Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 664 S.W.2d 886 (1984); J. I. Case Co. v. Seabaugh, 10 Ark. App. 186, 662 S.W.2d 193 (1983). In addition, this court has long held that it will not review an alleged erroneous ruling or order unless a party makes known to the trial court the action which he desires the court to take or his objection to the action of the court and his grounds therefor. Turkey Express v. Skelton Motor Co., 246 Ark. 739, 439 S.W.2d 923 (1969); see also ARCP Rule 46.
As we have already noted, Daniels not only failed to object to Liberty Mutual’s intervention and participation in the trial of this case, but he also actively worked with Liberty Mutual in presenting his case against Cravens to the jury. Under these circumstances, Daniels cannot now complain of Liberty Mutual’s sharing in the presentment of his case and the concomitant references concerning the compensation benefits paid Daniels by Liberty Mutual. Therefore, we affirm.
Daniels cites State v. Ellison, 287 Mo. 139, 229 S.W. 1059 (1921), for the proposition that Cravens’s objection should inure to Daniels’s benefit. That holding, however, merely provides that, when one of several codefendants makes an objection, it is unnecessary for another to repeat the objection to put himself in a position to base an assignment of error on it on appeal. Here, Daniels, a plaintiff, seeks to benefit from an objection lodged by a defendant, Cravens. | [
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Per Curiam.
James Clemons was convicted and sentenced to a term of ten years for being an accomplice to aggravated robbery. His attorney, David F. Guthrie, gave a 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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David Newbern, Justice.
This case involves a boundary dispute between adjacent landowners, appellant Bula Nunley and appellee H.M. Orsburn. The disagreement centers on the location of the southern boundary of Nunley’s property and the northern boundary of Orsburn’s property. The parties agree on the western point of beginning of the line, but Nunley claims the eastern end of the boundary is 23 feet south of the point contended by Orsburn. Orsburn contends he owns the triangle of land in dispute by virtue of an oral boundary agreement between himself and Nunley. The Chancellor found Nunley and Orsburn agreed on the location of the boundary line, and title to the property in dispute was quieted in Orsburn. The Chancellor also enjoined Nunley and her son, Jimmy Cossey, from interfering with Orsburn’s use of the land.
Nunley contends the Chancellor erred by (1) finding she and Orsburn agreed on the proper location of the boundary line, (2) determining a 1990 deed to her invalid, (3) refusing to find she acquired the property by adverse possession, and (4) refusing to determine Orsburn purchased his property with notice of her claim.
Because there is no doubt that there was a boundary dispute, and the Chancellor decided the parties had agreed on a settlement, the first point is the only one we need address. We hold the evidence was sufficient to support the Chancellor’s finding that Nunley and Orsburn entered into a valid boundary agreement.
This case begins with a 1960 conveyance of one acre of land from Parker and Betty Sue Parker to Goble and Bula Nunley. The acre conveyed to the Nunleys was located north of land retained by the Parkers. Evidence was introduced that the Nunleys gardened the acre but did not live there.
In January of 1987, Betty Sue Parker and other heirs of the Parker Parker estate conveyed the land located south of the Nunley property to William and Delores Thornsberry. William Thornsberry testified that after he bought the land he was informed that Goble Nunley disagreed with the line set by surveyor John Hale in 1986 which the Thornsberrys thought to be their northern boundary. Dardanelle Abstract & Title insured Thornsberry’s title and, as a result of the defect, bought the land back from the Thornsberrys, receiving a warranty deed dated November 19, 1987.
On May 8,1989, Orsburn bought the property from Dardanelle Abstract & Title with knowledge of the boundary dispute. Bill Strait, the owner of the title company, stated he told Orsburn about the dispute and advised him to get an agreement with Bula Nunley before building anything on the property. Orsburn testified he met on the property with Bula Nunley and the attorney who had represented Goble Nunley’s estate, Kenneth Parsley. Orsburn stated he showed Nunley the posts surveyor Hale had put down for the location of the line and asked her if she had any objection to their location. Orsburn said Nunley agreed the boundary line was correct. Orsburn testified he relied on the agreement and placed a storage building on the property and made over $40,000 in improvements on the land.
Parsley testified he believed Nunley and Orsburn agreed on the location of the line by referring to a post which had been placed in the ground. Parsley did not think there was any remaining conflict between Nunley and Orsburn on the location of the line. At trial, Nunley denied having agreed that the Hale survey line would be the boundary between her land and Orsburn’s. She testified her husband had told her he owned one acre and 23 feet of property which was not reflected by the Hale boundary line. Nunley admitted paying taxes on only the one acre of land until 1990. Cossey testified he was not present when the alleged agreement was reached between his mother and Orsburn regarding the boundary.
In 1990 Cossey asked Betty Sue Parker to execute a correction warranty deed conveying the land in dispute to Nunley. Parker testified she did not know she was conveying property which had already been conveyed to the Thornsberrys in 1987. Parsley, who prepared the 1990 deed, stated he did not know the property description overlapped a description in an existing deed. He based the 1990 deed on a survey given to him by Cossey.
After Orsburn saw the 1990 deed, he went to see Nunley and reminded her of their prior agreement. Orsburn testified Nunley told him she realized after the agreement that she owned more land than she originally thought. Nunley told Orsburn she was distressed and not thinking straight at the time of the agreement.
In late 1990 or early 1991, Cossey began building a fence on the line Nunley claimed to be the proper boundary between the properties. Because this fence prohibited access to Orsburn’s storage facility, he filed this quiet title suit. He also requested a permanent injunction prohibiting Nunley and Cossey from interfering with his use of the land.
The Chancellor quieted title in the disputed land in Orsburn. The Court found Orsburn and Nunley agreed that the boundary line in the 1986 Hale survey would be the northern boundary of Orsbürn’s property and the southern boundary of Nunley’s property. The Chancellor also enjoined Nunley and Cossey from building a fence or interfering with the use of the property.
Boundary agreement
Nunley argues there was insufficient evidence supporting the Chancellor’s finding that she and Orsburn agreed on the location of the boundary line. Although we review chancery cases de novo, we will not set aside a chancellor’s findings of fact unless clearly erroneous. Ark. R. Civ. P. 52(a) (1992). We must also give due regard to the chancellor’s opportunity to judge the credibility of witnesses. Dudley v. Little River County, 305 Ark. 102, 805 S.W.2d 645 (1991).
For there to be a valid oral boundary line agreement, four factors must be present: (1) there must be uncertainty or dispute about the boundary line; (2) the agreement must be between the adjoining landowners; (3) the line fixed must be definite and certain; and (4) there must be possession following the agreement. Malone v. Mobbs, 102 Ark. 542, 146 S.W. 143 (1912); Payne v. McBride, 96 Ark. 168, 131 S.W. 463 (1910). See Jones v. Seward, 265 Ark. 225, 578 S.W.2d 16 (1979); Bryson v. Dillon, 244 Ark. 726, 427 S.W.2d 3 (1968).
The Chancellor was presented with considerable evidence that there was a dispute or uncertainty regarding the location of the boundary line prior to the oral agreement. Two prior owners of the property, Thornsberry and Strait, testified they were aware that Goble Nunley contested the location of the boundary line as set by the 1986 survey. Orsburn stated his knowledge of the dispute caused him to enter into a boundary agreement with Bula Nunley. Clearly, Orsburn and Nunley were adjoining landowners as they shared a common boundary line. There was also evidence that the boundary line which had been set by the 1986 survey was definite and certain. Testimony was presented that the line was marked on the property with posts which had been placed on the property by Hale. Finally, there was evidence that after the agreement, Orsburn went into possession by constructing a storage building to which there was no objection by Nunley until after the building was completed. Access to the building required use of the disputed land. We cannot hold the Chancellor’s finding of facts clearly erroneous of a boundary agreement was sufficient.
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Hart, C. J.,
(after stating the facts). The complaint was filed on the 21st day of August, 1930, and the answer to1 it was filed on August 30, 1930. Thus it will be seen that the complaint and answer were filed within the time prescribed by § 3772 of the Digest.
On the 16th day of September, 1930, the contestee was allowed to file an amendment to his answer to the effect that the list of poll taxpayers duty authenticated by the affidavit of the collector in person, as required by § 3740 of the Digest, was not filed with the county clerk as required to the end that it should be recorded by the clerk and a certified copy thereof delivered by Tirm to the election commissioners.
Recognizing the importance to the public as well as to the parties of an early decision in primary election contests, the Legislature assumed that ten days would be sufficient time for one proceeding with due diligence in a contest of this kind to learn of the grounds upon which he proposed to contest the election and to file his complaint in the case. Crawford & Moses’ Digest, § 3772. The language of the statute in this respect is mandatory, and a compliance with its provisions is a pre-requisite to the exercise of the jurisdiction of the court. Introducing new grounds of contest would surprise the contestee, and require the postponement of the trial to enable him to meet such grounds. Hence we have held that amendments setting up new grounds of contest after the statutory period should not be allowed. Bland v. Benton, 171 Ark. 805, 286 S. W. 976 ; and Gower v. Johnson, 173 Ark. 120, 292 S. W. 382.
The same reason does not apply to the time a contestee was required to answer. He is not contesting the election. .The statute properly fixes a time for him to file his answer in order to expedite the trial o!f the contest, and the court may permit him to answer the complaint at any time in the discretion of the court before the trial commences. Where the contestee alleges new matter therein for his defense, an amendment to his answer is the proper pleading in which to do so, and the court may allow this to be done, at any time which, does not delay the trial of the contest. Irby v. Day, ante, p. 595. Besides, where the contestant fails to show any legal grounds of contest by reason of failure of proof or for any other reason, defense thereto can be made by motion to dismiss or by objection to the evidence offered as not being competent.
It is next insisted that the court erred in holding that there had not been a substantial compliance with § 3710 of the Digest. The record shows that the collector of taxes did not authenticate the list of poll taxpayers filed with the county clerk by his affidavit. The collector did not even file the lists with the clerk. The clerk procured the lists from the deputy collectors and filed them in his office with his certificate that the lists were true and complete copies of the original lists of poll taxpayers filed in his office by R. H. ¡Smith, collector, and that said lists contain the names of all electors who have paid their poll taxes for the year 1929. This was not a substantial compliance with the statute.
In McLain v. Fish, 159 Ark. 199, 251 S. W. 686, it was held that in al contest of a certificate of a primary nomination, voters whose names do not appear in the published list of qualified voters were properly excluded where the evidence of their qualification was not returned by the election officers as required by § 3777 of the Digest. The basis of the holding was that it was a reasonable and practical way in which to inquire into the matter in a contested election proceeding. The court said that, if the election was over, and a contest had arisen, it might be difficult to produce proof, pro and con, as to the qualifications of a voter, but iif that evidence Was produced at the time of the election and preserved, all uncertainty on the subject was eliminated.
Again, in Storey v. Looney, 165 Ark. 455, 265 S. W. 51, the court said that the provision of the statute was mandatory, and in a contest of an election where a list was published as. required by statute, the qualification of voters not on the' list must be proved in accordance with the statute or be excluded. By parity of reasoning, the qualification of voters on the list must be proved by it as required by the statute.
Such was the holding of the court in Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314. In that case the court held that in an election contest by one claiming to be the rightful nominee, basing’ his claim almost entirely on the printed list of legal voters furnished to the election judges, his complaint was properly dismissed where the printed list was invalid for want of substantial compliance with Crawford & Moses’ Digest, § 3740. In that case, the clerk took the tax books and himself made a list of the poll taxpayers which he delivered to a printer to be printed, and it was held that this was not a substantial compliance with the act.
That case governs here. The collector did not furnish the list to the county clerk and did not authenticate the same by his affidavit as required by statute. The county clerk obtained the list from the deputy collectors, and the list was not verified by the collector. One object of the act was to provide for the making of a full and complete list of all persons having the right to vote at an approaching election except only those who might become of age or be authorized to vote under other provisions of the statute. This would prevent interruption at the election by challenges or inquiries as to the right of voting. Then too, as decided in the case above mentioned, it would furnish a practical guide for the court in primary election contests.
The whole proceeding is statutory, and the statute must be substantially followed in all proceedings, even to the trial of the contest provided by the statute. There is a presumption that the election was conducted according to law, and that the candidate legally entitled thereto received a certificate of election, and the presumption cannot be overcome by mere charges of fraud or illegalities in the conduct of the election. If the' Legislature thinks that the collectors are not performing the duties required of them by statute in the premises in addition to the remedy by mandamus which now exists, it might by appropriate penalties amend the statute so as to punish the offender, even to the extent of removing him from office if he failed to comply with the statute.
It f ollows that the judgment of the circuit court was correct, and it will be affirmed. | [
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William C. Bethea, Special Justice.
Appellee, Ruth C. Nooner, was granted a divorce from appellant, Robert C. Nooner, on February 24, 1972, after seven years of marriage. The parties entered into a written agreement which provided that the husband, appellant, was to pay the wife, appellee, the sum of $100 per week for support of the wife and two children for the life of the husband. The divorce decree stipulated that the agreement was fair and just and was incorporated into the decree.
On March 24, 1982, appellee filed a petition stating appellant was $25,000 in arrears in support payments and requested that he be cited to show cause why he should not be held in contempt of court for failure to comply with court order. The Court on March 5, 1982, ordered appellant to appear and show cause why he should not be held in contempt. Appellant was personally served with a citation and a copy of the petition notifying him to appear on March 25, 1982. Appellant failed to appear on March 25, being out of the United States at that time. The Court issued a warrant for the arrest of the appellant, but appellant voluntarily appeared in court upon his return to Arkansas. Appellant responded, alleging that the parties orally agreed to vary the terms of the original agreement and that he was not in arrears pursuant to the substituted agreement.
At the close of testimony, the Court held appellant in contempt of court for failure to appear when so notified and fined him $100. Additionally, the Court found him in contempt for failure to comply with prior order of the Court to pay $100 per week support and that he was in arrears $24,750 for which judgment was entered, and the appellant was sentenced to jail for 30 days for contempt with said sentence to be suspended upon payment of $5,000 to apply on the judgment for arrears and payment of an additional $ 100 per week toward the arrears as well as the $ 100 per week child support.
The Court on May 6, 1982, modified the order to allow the appellant to return to work in Africa and pay an additional $50 per week toward the arrears.
We affirm in part and reverse in part the ruling of the Chancellor.
I. Appellant pleaded that the Court was without jurisdiction because the original agreement was not set out word for word in the divorce decree. The Chancery Court did not have jurisdiction to consider any alimony agreement be tween the parties. This was an independent agreement between the parties that was adopted and made part of the final decree. In Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970), the Court held that one of the purposes of incorporating into a decree of divorce an independent agreement for alimony is to be able to enforce provisions of agreement through contempt proceedings.
Appellant relies on Henry v. Henry, 247 Ark. 771, 447 S.W.2d 657 (1969). In Henry, the settlement was neither noted or approved by the Chancellor. In fact, the decree only granted a final divorce and jurisdiction was terminated. Henry can be distinguished from this case in that here not only did the Chancellor state that the “agreement entered into by the parties is fair and just” but he also repeated the terms of the independent agreement.
In Thomas v. Thomas, 246 Ark. 1126, 443 S.W.2d 534 (1969), Chief Justice Harris stated that a chancery court can enforce by contempt proceedings a property and support agreement entered into between a husband and wife which was adopted and incorporated as part of the decree. This was based on Ark. Stat. Ann. § 34-1212 (Repl. 1962), which is in substantially the same form today.
The appellant, Mr. Nooner, was personally served a copy of the court order requiring him to appear. In Hilton Hilltop v. Riviere, Secretary of State, 268 Ark. 532, 597 S.W.2d 596 (1980), the defendant was only sent a copy of the complaint in the mail.
Thus, there is jurisdiction.
II. A modification of an independent agreement for alimony without the consent of both parties is not permissible under Arkansas law. This court held in Anders v. Anders, 249 Ark. 413, 459 S.W.2d 416 (1970), that where a portion of the decree was based on an independent property settlement, the Court was powerless to modify the decree on the basis of an alleged subsequent agreement which was disputed by one of the parties. An earlier court held in Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 (1908), that a court cannot modify a decree insofar as it is based on the contract of the parties, for a modification of the decree would be no less than a modification of the contract itself. The only case in which a modification has been allowed was Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). However, in Bethell the Court found that the agreement merely established an amount which the court should fix as alimony for the wife and did not confer an independent cause of action based on contract. In this case, there was also an intentional and voluntary surrender of a right (the reduction in alimony after the wife began teaching school) in consideration for the husband paying the full amount of alimony until the wife began teaching school and paying the expenses for the children to attend a private school.
This Court has not had the opportunity to rule on an independent contract case since Bethell. However, our Court of Appeals did this in Sterling v. Sterling, 2 Ark. App. 168, 621 S.W.2d 1 (1981). In Sterling, there was an alleged oral agreement to reduce alimony from $175 to $125 per week which the Court said was without consideration and thus provided no defense to the contempt motion. The Sterling court said that where an independent agreement was a complete contract and the decree incorporated the agreement, there is no standing to ask the Court for modification.
While this court does not adopt the Sterling case without actually hearing it, we do find the facts in the case are more akin to Sterling than Bethell. There was an independent agreement; no consideration was given by the appellant for the alleged contractual modification; he never made any type of consistent payment to the appellee; he showed no compelling evidence that the appellee had accepted any agreement; and if the circumstances of the appellant have changed, the change is that at the time of this action he had a substantially greater salary than previously.
The Court always retains jurisdiction over child support, as public policy. No matter what an independent contract states, either party has a right to ask for a change in child support. In this case where alimony and child support were not separately stated, the appellant can ask the Chan- eery Court to make a determination as to how much of the $100 is child support and how much is alimony.
III. In Armstrong, supra, this Court stated the purpose of incorporating an independent agreement in the decree is to be able to hold a person in contempt. The appellant had clearly violated the court order by willfully refusing to pay the $100 per week support while at the same time having significant increases in salary and purchasing other items such as a house. The Chancellor was fully within his authority in holding appellant in contempt and imprisoning him for failure to follow orders of the Court.
Appellant cites Griffith v. Griffith, 225 Ark. 487, 283 S.W.2d 340 (1955), as holding that imprisonment for failure to pay alimony can only be issued when the Defendant has the ability to pay but willfully and stubbornly refuses to do so. Here, the contempt was for not paying the $100 per week over a term of five years. The Chancellor’s contempt citation and imprisonment order were both warranted and proper under the circumstances.
However, once the Chancellor reduced the arrearages for child support to judgment, he lost control and could not use the judgment in any way to control past or future acts of the appellant, and that is exactly what he did. Nooner was sentenced to thirty (30) days in jail for contempt. The Chancellor then offered to suspend the sentence if Nooner would pay $5,000 toward the judgment. The judge did not have the authority to suspend the contempt sentence. Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967). After Nooner stated he could not pay the $5,000 and would lose his job if he were not released from jail, the Chancellor said he would release Nooner for the balance of his sentence if he would pay additonal money toward the satisfaction of the judgment he had entered for back child support.
The appellant in an amended order was required to pay $150 per week to stay out of jail under a threat of some type of continuing contempt. The Court had no authority to use this judgment to encourage this agreement from Nooner. The Court had given Ruth Nooner a remedy for arrearage, and that was a judgment for which execution may issue.
The order to reduce the arrearage under such circumstances cannot be enforced by contempt proceedings. We hold that Nooner does not have to serve the balance of his jail sentence because it was improperly suspended and the order to reduce the judgment is unenforceable by contempt proceedings.
IV. In the matter of determination of the amounts of arrears, we have already stated that the oral agreement to reduce the amount of payment was without consideration. This is true because the appellee received nothing more than that to which she was already entitled. There was no consideration in the appellant not going to court to ask for a modification since he did not have that right.
We cannot say that the Chancellor abused his discretion either in allowing the checks which had been given to the appellee to be subtracted from the computation of the amount of arrears or in not allowing the value of the car and the television. The Chancellor was not compelled to accept anything in value except that which had actually passed through the court registry.
V. Finally, in the matter of the contempt citation for failure to appear, the appellant was personally served with an order signed by the Chancellor stating he was to appear on a date certain. Appellant testified that his attorney informed him he would not have to appear. His attorney appeared for him. Despite his alleged reliance on his attorney, the meaning of a Court Order is clear and no person has a right to disobey an Order of the Court.
Affirmed in part.
Reversed in part.
Purtle, J., not participating. | [
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Steele Hays, Justice. Appellants,
Tim McDaniel and Jaran Gookin, known as Jose, were convicted of the capital felony murder of Thomas Farnham, Jr., and sentenced to life without parole. For reversal, they argue three points in common: The trial court erred in refusing to sever the charges and try thém separately; they were wrongfully restricted in peremptory challenges; and the trial judge should have granted motions for mistrial after telling the jury this “could very well be a divided type of trial”.
Additionally, McDaniel contends grounds for a mistrial occurred when a witness stated McDaniel used an “alias”; that a statement allegedly made by McDaniel to a police officer was improperly admitted; and that the trial court erred in instructing the jury in accordance with AMCI 401. Gookin argues the trial court erred in not giving AMCI 403 to the jury in conjunction with 401; that it is cruel and unusual punishment for an accomplice to be subjected to punishments imposed under the capital felony murder statutes, and that a motion for a directed verdict should have been granted because there was no evidence to rebut Gook-in’s affirmative defense that he did not solicit, induce or aid in the commission of the murder. We find the argument that the severance motions should have been granted to be persuasive and, accordingly, we reverse and remand the cases for separate trials.
On August 22, 1981, the Hot Springs Police Department received a report that Thomas Farnham, Jr. had been missing since the evening of August 16, when he had left home to meet Jose Gookin and Tim McDaniel at a 7-11 store on Park Avenue to demonstrate a machine gun. Farnham’s whereabouts remained a mystery until August 30, when Mike Brewer, a friend of McDaniel, reported to the police that McDaniel had told him he had murdered Farnham. McDaniel and Gookin were taken into custody and each gave an account of Farnham’s death, the major difference being that each accused the other of the murder. Farnham’s body, badly decomposed, was found on information supplied by Gookin. McDaniel showed the police where he had hidden the machine gun and where he had thrown the murder weapon, a 22 pistol, in the lake. Both weapons were recovered.
Gookin and McDaniel agreed they had met Farnham on Sunday evening and driven out on Mill Creek Road in Gookin’s sister’s car to try out the machine gun McDaniel proposed to buy. Gookin says that Farnham and McDaniel each fired the machine gun as dusk was falling. Farnham called to Gookin to turn the car lights toward the target so he and McDaniel could examine the pattern. As he walked toward the car, Gookin says he heard a shot and turned to see Farnham clutch the back of his head and run toward the road. Gookin says he shouted at McDaniel, who then pointed the pistol at him. He says McDaniel shot Farnham a number of times and dragged his body out of sight. When he returned fifteen minutes later he was covered with blood and had the pistol, machine gun and Farnham’s billfold con taining $22.00. Gookin says he refused McDaniel’s offer to divide the money.
McDaniel’s account largely reversed their roles: he says that as he watched, Gookin shot Farnham in the back of the head and dragged the body out of sight. According to McDaniel, they divided the money and Gookin dropped McDaniel off at his brother’s home. McDaniel admitted keeping the machine gun and pistol, inadvertently leaving behind a sheet of instructions on the machine gun. Each man claimed the pistol belonged to the other and each denied knowledge of its presence until the murder occurred. In one other important respect their stories differed: McDaniel says he and Gookin wanted the machine gun to rob a jewelry store and planned to take it from Farnham simply by force, not by murder. McDaniel explains that the gun was illegal and Farnham would not have been able to report the robbery. Gookin denies any plan to rob either Farnham or a jewelry store — that McDaniel simply wanted to buy the gun, or so he thought. Gookin says McDaniel asked him later about the instruction sheet left in the car, from which Gookin retrieved it, hiding it in his bed. Gookin attributes hiding the instruction sheet and his failure to go to the police to McDaniel’s threats that he would kill him if he reported the murder.
Shortly after the jury had retired it returned to tell the trial judge it was unable to determine who had actually pulled the trigger. In a bifurcated proceeding the jury found both men guilty and fixed punishment at life without parole. The verdict forms reflect an irreconcilable finding: on Form 2 (mitigating circumstances) as to McDaniel, the jury placed an “X” by Circumstance No. C (6), finding that “The capital murder was committed by another person and McDaniel was an accomplice and his participation relatively minor.” But the identical finding was made with respect to Gookin, thus the jury found that neither Gookin nor McDaniel had committed the murder — that each was merely a passive participant. Hence, it is clear beyond question that the jury did not, or could not, segregate the evidence with respect to the crucial issue of which defendant committed the murder.
Appellants insist that their motions to sever the informations and grant separate trials should have been granted, and for a number of reasons we have come to the conclusion that unless the arguments are sustained a manifest error will be left uncorrected.
Prior to the adoption of the Arkansas Rules of Criminal Procedure, our law gave the trial court discretion in granting severance of defendants in all but capital cases, where defendants were entitled to severance as a matter of right. Ark. Stat. Ann. § 43-1802 (Repl. 1977); Vault v. Adkisson, Judge, 254 Ark. 75, 491 S.W.2d 609 (1972). However, A.R.Cr.P. Rule 22.3 superseded § 43-1802 and gives the trial court discretion to grant or deny a severance in all cases. And we will not disturb that ruling on appeal in the absence of an abuse of discretion. Hallman and Martin v. State, 264 Ark. 900, 571 S.W.2d 688 (1979). Although we have uniformly upheld the trial court in cases where severance of defendants is denied, (Spillers v. State, 268 Ark. 217, 595 S.W.2d 650 [1980]; Legg v. State, 262 Ark. 583, 559 S.W.2d 22 [1977]), in doing so we have noted that the defenses were not antagonistic. See Hallman and Martin v. State, supra; Ingram v. State, 255 Ark. 6, 498 S.W.2d 862 (1973); see also Washington, Ward and Hampton v. State, 267 Ark. App. 1040, 594 S.W.2d 29 (1980). Thus, the current state of our law pertaining to severance of defendants in capital cases rests upon the sound discretion of the trial court, but while the discretionary power is broad, it is not unlimited, and the overriding duty of the trial judge is to determine that the defendants can be tried together without substantial injustice.
The rule recognized in many jurisdictions is that where defenses are antagonistic, severance should be granted and this principle has the sanction of the American Bar Association’s Standards Relating to Joinder and Severance: “[I]t has long been the view that defendants joined for trial should be granted a severance whenever their defenses are antagonistic to each other”.
In Jenkins and Warner v. State, 230 A.2d 262 (Del. 1967), the Delaware Supreme Court said that although severance is ordinarily a matter of discretion, where defenses are antagonistic, severance should be granted. The court observed that defenses are antagonistic when to believe one defendant, it is necessary to disbelieve the other. In People v. Krugman, 252 N.Y.2d 846 (1964) the Court stated that the need for severance most frequently arises when each defendant asserts his own innocence and accuses the other. In Jung v. State, 145 N.W.2d 684 (Wise. 1966) the Wisconsin Supreme Court said that the demands of a fair trial require that such cases should be tried separately because the defendant should not be forced to face the double burden of having to meet the attack of both the prosecutor and his co-defendant. Louisiana has said that no more classic example of the need for severance exists than when two co-defendants each place the blame for the crime on the other. State v. Singleton, 352 So.2d 191 (La. 1977). See also, State v. Thibodeaux, 315 So.2d 769 (La. 1975), where it was said that a defendant ought not to stand trial before two accusers, a co-defendant and a prosecutor. In People v. Braune, 2 N.E.2d 839 (Ill. 1936) it was said that while the granting of a separaté trial is within the sound discretion of the trial court, it is nevertheless a judicial and not an arbitrary discretion. Braune was much like the case before us in that each defendant admitted being present when the crime occurred, but each charged the other with the crime itself. The Illinois court noted, as well we might, that the trial was in many respects more of a contest between the defendants than between the prosecution and the defendants, saying “any set of circumstances which is sufficient to deprive a defendant of a fair trial if tried jointly with another is sufficient to require a separate trial.”
In State v. Holup, 355 A.2d 119 (Conn. 1974) the Supreme Court of Connecticut found that substantial injustice had occurred where severance was denied. Holup and Gordon, charged with kidnapping and robbery, were tried together. Gordon testified, Holup did not. Gordon’s defense was that though he participated in the crimes, he did so only because Holup had coerced him at gunpoint. The court noted that Gordon was the most effective witness in the State’s case against Holup in asserting his own submission to Holup’s duress, that the two defenses were not only incompatible but completely antagonistic:
“In the trial of a person charged with the commission of a crime, it is more important to enforce the time-tested safeguards which the law has erected for the protection of the innocent than to distort and subvert them in order to block the escape from punishment of even an apparently guilty person.”
A thorough review of severance cases can be found at 82 ALR3 245 and 54 ALR2 858, from which these conclusions may be drawn: the issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other. We think it significant that in some degree all of these factors are present here. McDaniel’s defense and Gookin’s defense could not have been more antagonistic, each was almost the mirror image of the other. The difficulty of segregating the evidence to determine which defendant was actually guilty of the crime is fully demonstrated by the irreconcilable jury verdicts finding that neither defendant actually pulled the trigger. Even without Gookin’s testimony, the State’s case against McDaniel was clearly supported by substantial evidence; in contrast, the case against Gookin was almost non-existent except for McDaniel’s testimony. Too, the circumstantial evidence was stronger against McDaniel than Gookin. A pivotal issue centered on the murder weapon, (We note it was McDaniel who kept it when the two men parted company after the murder, and it was McDaniel who later threw it in the lake). Had the ownership of the pistol been shown, it would doubtless have better enabled the jury to unravel the conflicting accounts, as each defendant claimed the pistol belonged to the other. Yet evidence of this crucial fact was available — the statement given the police by Mike Brewer, a key witness called by the State, shows unmistakably that Brewer was familiar with the pistol and knew it belonged to McDaniel. However, this evidence was not elicited by either Gookin or the State, though the State at least had knowledge of it.
Considering the totality of the circumstances of this case and the obvious inability of the jury to resolve the issue of guilt, we believe these defendants were entitled to separate trials. We do not suggest that simply because defenses are antagonistic the trial court must grant severance or risk reversal, merely that where the defenses are antagonistic, particularly in capital cases, careful consideration should be given to all the factors which weigh for or against achieving substantial justice in the trial process, and where it can be seen that either defendant is unduly jeopardized by a joint trial, severance should be granted. Here, there was an evident strategy by the prosecution to permit these two defendants to try each other which, in the end, tainted the result by leaving the ultimate issue unanswered.
To the argument that it doesn’t matter which defendant was the actual murderer, that both are equally guilty as principal or accessory, there are two answers: first, by Gookin’s account, he had no knowledge that a crime of any kind was in the offing, yet if that account is true, he stands convicted of a capital murder only because the jury was confused; on the other hand if McDaniel’s account is true, while McDaniel is guilty of planning and executing a robbery, he was not an accessory to murder. Moreover, not even by accepting a combination of the two accounts can we perceive how the jury could have arrived at the conclusion that these defendants were equally culpable. Under our system, the j ury decides guilt and then fixes the punishment it deems appropriate. In a capital case it may fix a lesser punishment simply as an act of mercy, but it may not impose a greater punishment, indeed any punishment, as an act of doubt. Here, it is conceivable the jury would have chosen to impose the death penalty on the defendant who actually committed so loathsome a crime as this one, and chosen to impose a more lenient punishment on the defendant who was, as each claimed to be, caught by surprise by the murder. Thus, in spite of its best efforts, this jury may well have given a lesser sentence to one defendant, and a greater sentence to the other, than it might otherwise have done. Our system, thankfully, will not leave such fortuitous results undisturbed.
Turning to the other points for reversal, on the issue of AMCI 401 and 403, 403 should have been given in view of Gookin’s testimony; however, no request for the instruction was made. At any retrial of Gookin, if the evidence warrants, then both instructions would be appropriate. As to McDaniel’s argument that it was error to admit the testimony of Robert Merchant, a Hot Springs police officer, that McDaniel told him he would not be in the fix he was in if he had killed the witness, referring to Gookin, there was no error. There was no evidence the officer was seeking information from McDaniel; on the contrary, it is clear that McDaniel made a spontaneous comment against his interest which the court properly admitted. The argument that the probative value of the statement was outweighed by its prejudicial effect is equally without merit. The other arguments are either cured by the fact the defendants will be tried separately or will not, in all likelihood, arise again.
The judgment is reversed and the case is remanded to the trial court for separate trials.
American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance, Approved Draft, 1968, § 2.3 (b) commentary, PP. 40-41.
A transcription of Brewer’s statement to the police was introduced at a pre-trial hearing and appears in the record in its entirety. | [
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George Rose Smith, Justice.
The question that must eventually be decided in this case is whether Section 10 of Act 132 of 1969, Ark. Stat. Ann. § 48-1410 (Repl. 1977), which permits the serving of alcoholic beverages in private clubs in “dry” counties, is invalid because it actually amended an initiated act prohibiting the sale of liquor in a dry county, § 48-802, without receiving the two-thirds legislative vote that is required for the amendment of an initiated act. Ark. Const., Amendment 7. The trial judge compared the language of the private-club statute with the earlier initiated act and held that the one did not amend the other. We reverse and remand, because the true meaning and practical effect of the private-club statute cannot be understood or determined without the development of pertinent areas of fact. See Ark. Motor Vehicle Commn. v. Cliff Peck Chevrolet, 277 Ark. 185, 640 S.W.2d 453 (1982).
This case is a sequel to Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977), where we held that the question now at issue could not be raised in an action for a writ of mandamus to compel the Alcoholic Beverage Control Board to cancel all private-club permits. We said, however, that other procedures were available to the plaintiffs, “the most obvious” being an action for a declaratory judgment.
The appellants, as citizens and taxpayers in a dry county, then brought this action for a judgment declaring the private-club statute to be invalid. Among the defendants are the director and the members of the Alcoholic Beverage Control Board and various representative private clubs, including country clubs, a recreation club, an American Legion post, a private club in a Holiday Inn motel, and others. In a case of this kind, in which the rival parties are in effect acting for the general public, it is our practice to be sure that all essential contentions are considered on their merits. See Chandler v. Board of Trustees of the Teacher Retirement System, 236 Ark. 256, 365 S.W.2d 447 (1963).
Turning to the statutes, the initiated act prohibits the sale of intoxicating liquor in a dry county. § 48-802. The private-club statute provides that the preparation and serving of alcoholic beverages in a private club “under a so-called ‘locker,’ ‘pool,’ or ‘revolving fund’ system” shall not be deemed to be a sale or to be in violation of law. § 48-1410 (a). The section also provides for the issuance of private-club permits under rules and regulations of the Control Board. Such regulations have been issued, but their language is so general that it is impossible to tell what a pool or revolving fund system really is, nor are we aware of any recognized exact meaning for those terms. (The regulations do say that a locker system is one in which all controlled beverages on the premises are owned by the members individually, but every one of the private clubs has elected to operate on the pool or revolving fund system rather than on the locker system.)
It is a familiar rule of law that in the construction of a statute the manner in which it has long been interpreted by executive and administrative officers is to be given consideration and will not be disregarded by the courts unless it is clearly wrong. Walnut Grove Sch. Dist. No. 6 v. County Bd. of Education, 204 Ark. 354, 162 S.W.2d 64 (1942). The private-club statute has been on the books for almost fourteen years. Regulations and scores of permits have been issued under the statute. Thus there is available an abundance of facts to show whether the statute, as interpreted pursuant to the legislature’s direction, is in practice an amendment of the initiated act. It is possible that private clubs may operate within the law, for the initiated act does not prohibit the possession or consumption of intoxicating beverages in a dry county. Some of the appellees, however, concede that it is also possible for a private club to operate in violation of the initiated act. It is totally impossible for us to say, without knowing the facts, whether violations of the initiated act in truth exist. The appellants sought to introduce such proof, but the trial court ruled that “facts relating to the method by which the named defendants’ clubs conduct their business and the methodology employed by the Alcoholic Beverage Control Board in deciding whether or not a permit should be issued . . . for a Private Club Permit are . . . beyond the scope of this litigation.” That ruling was wrong; those issues must be opened to examination. We are not attempting to act as a law enforcement agency. To the contrary, we are merely seeking to determine whether the Alcoholic Beverage Control Board, by the issuance of private-club permits, is giving the appearance of legality to establishments that are not within the permissible scope of the 1969 statute.
Reversed and remanded.
Adkisson, C.J., and Holt, Purtle, and Dudley, JJ., not participating.
Special Justice Eldon F. Coffman joins in this opinion.
Special Chief Justice Morris S. Arnold and Special Justices W. P. Switzer and Theodore C. Skokos, dissent. | [
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Ejkby, J.,
(after stating’ the facts). In MerGim'i'ts’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S. W. (2d) 406, the court construing’ the act under consideration, held that act 65 of 1929, § 67, providing for a privilege tax of 4 per cent, repealed § 6 of act 62 of the same session of the General Assembly, providing for a 3 per cent. tax. It was said there that the forceful argument that the statute would be burdensome on small operators of motor buses could not be considered by the court for the reason that it would be an invasion by the judiciary of the province of the legislative department of the State, and, “when acting within constitutional limits in the passage of a statute upon a given subject, the Legislature is ■the sole judge of the wisdom, expediency and necessity of its enactment, and its action is not the subject of review by the court. ’ ’ The court expressly declined to pass upon the question, it not being properly raised, “as to whether the amount of tax was so great as to be excessive, arbitrary and discriminatory and confiscatory in its nature.”
This complaint does not allege that the tax provided for by § 67 of the said act is arbitrary, unreasonable, oppressive and confiscatory, but only that “as applied to this plaintiff’s business,” it is so and would confiscate his property and deprive him thereof without due process of law. It was also alleged the amount appellant had realized from his business during the period and the amount of expenses he had been compelled to pay in its operation, showing a loss of a substantial sum, which would be further increased if he were compelled to pay the tax in the amount of $681.88. It was not alleged that the amount paid out for operating expenses of the business was not unreasonable nor more than was reasonably required for the operation thereof. In other words, appellant contends that the act “as applied to his business” is arbitrary, unreasonable, oppressive and confiscatory, and therefore invalid. He alleges, however, not that the general business required by the act to pay the tax, but only that his business, was carried on at a loss, without consideration of the amount of the tax required to be paid, showing the revenues received and the expenses paid in the operation thereof. It is no longer questioned that the State has the power to levy such a privilege tax. Merchants’ Transfer & Warehouse Co. v. Gates, supra ; Cyclopedia Automobile Law, p. 6, and cases there cited ; Hester v. R. R. Com., 172 Ark. 90, 287 S. W. 763 ; Gruber v. Commonwealth, 140 Va. 312, 125 S. E. 427 ; Checker Taxi Co. v. Collins, 320 Ill. 605, 151 N. E. 675. .In 26 R. C. L. 238, it is. said:
“An excise is, however, to be judged by its effect upon persons or corporations generally, and is not to be considered unreasonable because it is prohibitive upon certain financially weak persons or corporations. Only those excise laws whose general operation is confiscatory and oppressive are unconstitutional. See also Ohio Tax Cases, 232 U. S. 576, 34 S. Ct. 372, 58 U. S. (L. ed.) .738.
“Whether a license tax is prohibitory is primarily a legislative question. ‘All presumptions and intendments are in favor of the validity of the tax;—in other words, the mere amount of the tax does not prove its invalidity.’ The reasonableness of an occupation tax does not depend on whether or not a hardship results in an isolated case, but instead upon the general operation of the tax in the class to which it applies. The amount of the tax is not to be measured by the profits of the business taxed, and the mere fact that the particular person taxed conducted his business at a loss does not of itself make a tax unreasonable.” Cooley, Taxation (4th ed.) 3433. See also Wright v. Hirsch, 153 Ga. 229, 116 S. E. 795 ; Western Union Tel. Co. v. Decatur, 16 Ala. App. 679, 81 So. 199 ; N. C. & St. L. v. Attalla, 118 Ala. 364, 24 So. 450 ; N. C. & St. L. v. Ala. City, 134 Ala. 414, 32 So. 731 ; Veazie Bank v. Fenno, 8 Wall. 533, 19 L. ed. 482 ; Merchants’ Transfer & Warehouse Co. v. Gates, supra.
In the case of Fiscal Court v. F. & A. Cox Co., 117 S. W. 296, 132 Ky. 738, 21 L. R. A. (N. S.) 83, relied upon by appellant, the order of the Fiscal Court of Owen County imposing a license by authority of the statutes was held void chiefly because the classification made by it in levying the tax was manifestly unequal and unreasonable—an unjust discrimination between the subdivisions so made. It should not be regarded as cf great weight in support of the contention made that the statute providing the tax should be declared unreasonable and arbitrary because it appears to be oppressive and confiscatory, imposing a hardship in an isolated case.
No error was committed in sustaining the demurrer and dismissing the complaint for want of equity, and the decree is accordingly affirmed. | [
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Dunaway, J.
Appellant Swinkey brought this action to recover the sum of $100 from appellee Crow as damages for the loss of a cow, which it was alleged was killed through the negligence of Crow.
About dusk on July 29, 1949, appellee 'was driving his automobile in a westerly direction on a gravel road near College Station in Pulaski County when he hit and killed the cow in question. This was one of two cows belonging to appellant which were crossing the highway from north to south at the point where the accident occurred. Appellant alleged that appellee was negligent in driving his automobile at an excessive rate of speed and in a reckless manner while under the influence of intoxicating liquor.
Appellee answered with a general denial and pleaded contributory negligence in that appellant knowingly per mitted liis stock to run at large iu a Stock Law District in violation of the law.
The case was submitted to the Court sitting* as a jury, which resulted in a judgment for the defendant.
Several witnesses for appellant testified that ap-pellee was driving at the rate of approximately sixty miles per hour a short distance behind another car which had thrown up a cloud of dust. Their testimony was that the lights on appellee’s car were not burning, though it was growing dark.
Appellee and other witnesses in his behalf testified that he was driving at about thirty miles per hour and that he did have his lights on. Appellee’s version of the accident was that he was driving along the highway when appellant’s two cows suddenly jumped or ran from a ditch on the north side of the road and in front of his car. He dodged the first one, and cut his car to the left in an effort to avoid hitting the second one, which he was unable to do.
The Court made written findings of fact, the first of which was as follows: “Prom the evidence submitted the Court found the facts to be that the defendant was guilty of no negligence. ’ ’ On appeal this finding of the Court is treated the same as a jury verdict. Since there is no question of proper instructions in regard to contributory negligence, and there is substantial evidence to support the finding that the defendant was not guilty of negligence, this disposes of the case.
The judgment is affirmed. | [
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Per Curiam.
The appellee’s motion to strike the appellant’s brief, as having been filed too late, was denied, but while the motion was under submission the time for the appellee to file its brief expired. The appellee relies upon the latter fact to justify its present motion for permission to file its brief after its due date.
It has been the court’s understanding, and that of the clerk, that one who moves to strike an adversary’s brief should protect his position by incorporating in, or attaching to, the motion a request for an extension of brief time if the motion should be denied. Otherwise the mere filing of such a motion to strike would in itself extend the movant’s brief time. Our practice, however, has not been set out in a published rule or order. For that reason the appellee’s motion to file a belated brief is granted, but in the future movants in a similar position must protect themselves by a timely request for an extention of their brief time. | [
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Richard B. Adkisson, Chief Justice.
This is the third appeal arising from the will of Fred Alexander, in which he left one-half of this estate to his widow, Mildred, with the residue in trust for his two children, Mary and Caruth II, with Mildred as trustee. Caruth II died, and his widow sued Mildred for an accounting on behalf of her son Caruth III who was a beneficiary of the trust. On the first appeal we removed Mildred as executrix and remanded for a full and final accounting of the estate. Alexander, Ex’x v. A lexander, Ex’x, 262 Ark. 612, 561 S.W.2d 59 (1978). The second appeal resulted when Mildred filed her own purported full and final accounting and the Executor in Succession, the First National Bank of Fort Smith, filed its own accounting. The trial court approved the Bank’s accounting, but deferred action on the various claims for attorney’s and executor’s fees. Mildred appealed the trial court’s approval of the Bank’s accounting, and we affirmed in Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). During the second appeal, after notice of appeal was filed in the trial court but before the record was filed in this Court, the trial court held a hearing on the various claims for attorney’s and executor’s fees. The following awards were made which are the subject of this appeal:
$7,000 to the First National Bank of Fort Smith as Executor in Succession
$17,176 to Mr. W. Dane Clay as attorney for the Executor in Succession for his work from May 26, 1978 — June 5, 1981
$30,540 to Mr. W. Dane Clay for his work for Caruth III from 1970 — May of 1978, one-half to be paid by the widow and her daughter.
Appellants first argue that the trial court was without jurisdiction to award attorney’s fees since at the time of the award the notice of appeal had been filed. However, we stated in Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958) that the trial court retains jurisdiction of the case until the record is filed and the appeal is docketed. This had not yet been done in this case when the award was made. Furthermore, matters that are collateral or supplemental to the trial court’s judgment are left within the trial court’s jurisdiction even though an appeal has been docketed. Bleidt v. 555, Inc., 253 Ark. 348, 485 S.W.2d 721 (1972). Here, the award of attorney’s and executor’s fees was collateral to the appeal from the trial court’s decision to uphold the Bank’s accounting.
Appellants next argue that the probate court’s judgment as to a $30,570.00 attorney’s fee awarded to Mr. Clay should be reversed because the ruling made from the bench by the trial judge at the June 22 hearing as to the fee is inconsistent with his actual order concerning the fee. At the hearing, the following exchange took place:
The Court: All right. I divided your claim in half.
I am considering the duplicity and all of the other matters, so that you are entitled to Fifteen Thousand Two Hundred Eighty Five Dollars ($15,285.00) in that connection for recovery of assets for the trust and for the estate, and I am surcharging that one-half against Mildred Alexander, and one-half against Mary Mildred Alexander.
Mr. Clay: All right. What you are saying is the total fee allowed is only one-half of what I asked for?
The Court: The total fee is . . . $15,285.00. . .
However, the trial court’s order in this regard filed July 8, 1981, states:
... That considering all of the facts and circumstances made known to the Court herein, the fees and expenses claimed in this connection by Mr. Clay as attorney in the amount of $30,570.00 are found to be reasonable and should be allowed. That however only one-half of this sum or the amount of $15,285.00 would be surcharged to Mrs. Mildred Alexander and her daughter, Miss Mildred Alexander, jointly or severally, for which judgment should be granted against these parties and such interest as may be distributed to them from decedent’s estate herein. That in so doing the Court recognizes that Mr. Clay’s services were necessary and were effective to protect the interest of the residual heir and beneficiary Caruth Alexander, III; and also of benefit indirectly to the estates of Caruth Alexander and Dorothy Alexander. That therefore the other one-half of the requested fees and expenses to be surcharged, i.e. $15,285.00, should be charged to or received from Caruth Alexander, III, beneficiary of both his parents’ estates.
The pronouncement from the bench made at the June 22, 1981, hearing is inexplicably different from the other which was later entered on July 8, 1981. The court apparently changed its mind after its pronouncement from the bench following the June 22 hearing. In such instances we note the court may change an order entered by it. Rule 60, A.R.Civ.P., Vol. 3A, Ark. Stat. Ann. (Repl. 1979); Ark. Stat. Ann. § 62-2015 (Repl. 1971). We have no alternative but to accept the court’s last order regarding this matter, there being no showing of mistake or fraud and, therefore, affirm the award of $30,570.00 attorney’s fees.
Appellants further argue that the trial court erred in surcharging $15,285.00 in attorney’s fees to them, because the will specified that expenses for administration be paid out of the residuary one-half of the estate. We cannot fully agree with this contention. At one time Mildred was the personal representative of the estate and as such was liable and chargeable for losses to the estate resulting from neglectful or willful breaches of duty in regard to the administration of the estate. Ark. Stat. Ann. § 62-2801 (Repl. 1971). The probate court specifically found that “Mrs. Mildred Alexander did breach her fiduciary duty, and did intentionally neglect her duties as personal representative ____” Therefore, the probate court did not err in surcharging her; however, it was error to surcharge Mary Alexander, a mere beneficiary, there being no authority for such action. Therefore, Mildred Alexander is liable for the total assessment of $15,285.00 under the court’s order holding appellants jointly and severally liable.
Appellants contend that the probate court erred in awarding First National Bank of Fort Smith an executor’s fee of $7,000. This fee was based primarily on approximately $100,000 which the estate received for flood easements and approximately $42,000 from farm rentals. Appellant alleges that since appellant had the absolute power to dispose of personal property under our ruling in Alexander, Ex’x v. Alexander, Ex’x, 262 Ark. 612, 561 S.W.2d 59 (1978), the money should not have gone to the Bank in the first place, and therefore the trial court erred in basing the executor’s fee on this amount. We cannot agree with this contention. We approved in Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982), the Bank’s final accounting, which included the amounts received as flood-age easements and farm rentals. The amounts in question passed through the Bank’s hands; therefore, it was not error for the Bank to recover its fee based upon these amounts. Ark. Stat. Ann. § 62-2208 (Supp. 1981).
Appellants also argue that Mr. Clay is entitled to no compensation because he represented Caruth III while he was also appointed by the court to represent the Executor in Succession. We cannot agree with this contention. The record reflects that Mr. Clay represented Caruth III from 1970 through May 1978, and then represented the Executor in Succession from May 26, 1978, until the present time. As attorney for the executor in succession, he represented the interests of the estate and thus necessarily represented the interests of Caruth III to the extent that he was a beneficiary of the estate.
Appellant’s argument that an attorney employed by the personal representative must look to the personal representative for payment is also without merit. Ark. Stat. Ann. § 62-2208 (Supp. 1981) specifically authorizes the personal representative to employ legal counsel and contemplates that counsel’s fee will be paid by the estate.
Finally, appellants argue that the will created a residuary trust and that the probate court erroneously awarded attorney’s fees which were related to the trust since trust matters are within the jurisdiction of the chancery court. This argument is without merit. Here, the residuary trust does not come into existence until the estate is closed. Until then no trust is created and jurisdiction remains in probate.
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Per Curiam.
Ernest Henson was convicted of transporting intoxicating liquors in the city of Malvern. He was a taxicab driver in that city. It was proved that one of his passengers had a one-half pint bottle of whiskey in his pocket while riding in the defendant’s cab, but it was not shown that the defendant participated in the act or had any knowledge of it. Therefore the judgment is reversed, and the case is remanded with directions to discharge the defendant. | [
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David Newbern, Justice.
This is an appeal involving a question in the law of oil and gas which arises out of the interpretation given three deeds executed and recorded in 1939 and the interest conveyed by the deeds. The grantors in the three separate deeds were, respectively, the Royalls, the Pattons, and the Wigginses. Each deed contained, in effect, two granting clauses of mineral interests. The first clause contained an outright grant, and the second granted an amount dependent upon the amount granted in a certain lease. An issue before the Chancellor, and before us now on appeal, was whether the grant based on the lease was only explanatory of the first grant in each lease or was intended to convey to the grantee of each deed whatever the lease provision would yield. Another issue is whether the claims of the appellee, Robert Venable, are barred by a statute of limitations, estoppel, or laches. The Chancellor held that the second granting clause in each deed, i.e., the one referring to the lease was controlling. He also found the claim of Venable was not barred. We affirm the holding.
Each of the deeds was entitled “Warranty Deed and Perpetual Royalty” and contained the following:
[A]nd the Grantee [F.W. McClanahan and R.H. Venable] shall at all times subsequent to the execution of this instrument, receive a (13/1920ths) [Royall deed]; (4/ 1440ths) [Patton deed]; (18/1440ths) [Wiggins deed] part of all oil, gas and other minerals produced and saved from the above described land, free and clear of any expense of drilling any well or wells for the production of said minerals, or any of them, or of the mining of said minerals, or any of them, or of the operation of any well or mine from which said minerals are produced, or from which any one of said minerals is produced, which provision and agreement is a covenant which shall run with the land to the end that it shall be binding upon the Grantors and their heirs and assigns forever.
It is understood that this land is encumbered with an oil and gas lease executed by J.G. Tissue, a widower as Lessors, to Record Owners as Lessee, on_, which lease is recorded in Book_, at Page_, of the Deed Records of Columbia, County, Arkansas.
And for the same consideration the Grantors do hereby bargain, grant, sell, convey and set over onto the Grantee an undivided (13/240ths) [Royall deed]; (4/180ths) [Patton deed]; (18/180ths) [Wiggins deed] part of all royalties on oil or gas produced from the above described land during the term of said lease, or any extension thereof.
However, the Grantee shall have no interest in the purchase price to be paid for any oil and gas lease or leases, or other lease or leases on the land, or any part thereof, made by the Grantors in the future; and the Grantee shall not be entitled to receive any portion of any sum or sums to be paid as delay rental under the terms of any oil and gas lease now or hereafter affecting the land, or any portion thereof or any interests therein, to defer the commencement of a well during the primary term thereof; and the Grantee, his heirs or assigns, shall not be entitled to join in the execution of any such future lease or leases on the land.
The appellant, Anadarko Petroleum Co. (Anadarko), has two producing wells within the Atlanta Field which are subject to the royalty interests conveyed by the deeds. Anadarko executed Division Orders and paid royalties to Venable from 1983 until the filing of the lawsuit in 1991 based on its interpretation of the deeds as granting the Venable interests a right to a fractional share of the proceeds from production equivalent to a one eighth C/sth) royalty, the same royalty interest retained in the Tissue lease which was in place in 1939. Appellee Venable argued that his interest should have been determined from leases which were executed in January, February, and March of 1980 by the descendants of the original mineral lessor mentioned in the deeds. In two of these leases there was provided an overriding three sixteenths (3/i&ths) royalty interest.
Anadarko argued that Venable was entitled to a lesser proportion limited to that provided in the granting clauses of the 1939 deeds and that any other claim was barred by estoppel, laches, and the statute of limitations. The matter was presented to the Chancellor for consideration on the arguments of counsel and the documentary record supported by trial briefs. The Chancellor found that Venable was due a royalty based on a computation derived from the 1980 leases, two of which provided for 3/16ths rather than the 1 /8th as provided in the 1939 lease. The Chancellor also found the claim was not barred by estoppel, •laches, or the running of a statute of limitations.
Anadarko argues first that the Chancellor erred in granting Venable a greater interest than that conveyed by the 1939 deeds. We find no error in the Chancellor’s determination that the intent of the 1939 deeds was to convey to Venable whatever royalty rights were held by the grantors as determined by the Tissue lease or leases and that the computation of the royalty using the 3/16th figure in the 1980 leases was proper.
1. Interpretation of the deeds
Anadarko calculated Venable’s interest in the Division Orders based solely on the deed’s initial granting clause without consideration of the subsequent language concerning the lease because it interpreted the latter language to be explanatory only. In support of its position it relies on the decision in Barret v. Kuhn, 264 Ark. 347, 572 S.W.2d 135 (1978), which essentially held that we would construe deeds in such a way that the granting clause of the deeds would be controlling in the event of an irreconcilable conflict between the mineral deeds granting clause and other clauses.
In the Barret case the appellees, or their predecessors, during the 1940s granted essentially identical non-participating royalty interests to the appellants. These deeds gave a fixed interest in any money paid from production of oil and gas from the lands. Subsequently the appellees negotiated with another party and signed other oil and gas leases on the property, granting the working interests. These leases all provided for the appellees to have an overriding royalty if production was obtained. In some instances the overriding royalty amounted to one-eighth (1 /8th) and in others a one-sixteenth (1 /16th) overriding royalty in addition to the usual one-eighth royalty that was reserved in these leases by the owner. There was no mention in the negotiations for the leases, nor in the leases themselves, of the non-participating royalty holders.
When production was obtained, a division order was prepared setting forth in detail who was to be paid a royalty and in what amount. The division order was the first notice to the parties that the non-participating royalty holders were making a claim to the overriding royalty payments to be paid to the appellees. The royalty deeds in question were form instruments, headed in bold type “ROYALTY DEEDS”, beneath which was the word, “nonparticipating”. The granting clause in the royalty deeds read:
That_for and in consideration of. __, ... do hereby grant, bargain, sell, and convey unto the said_and unto its successors and assigns forever, subject, however, to all of the terms, conditions and reservations hereinafter mentioned, an undivided one sixty-fourth (1/64) interest in and to all of the oil, gas and other minerals, in, under and upon the following described lands ....
After describing the property, the deeds contained two other relevant clauses; the royalty clause and the production clause. The royalty clause read:
Provided, that the grantors herein expressly covenant with the grantee that no oil and gas mining lease shall ever be executed covering the above land, or any part thereof, that shall reserve to the grantors herein, their heirs and assigns, as royalty, less than one-eighth of all of the oil and gas produced and saved from said land — and this covenant shall be deemed a covenant running with the land. It is the intention of the parties hereto that the grantee herein, its successors or assigns, shall be entitled to receive hereunder one-eighth of all oil and/or gas run to the credit of the royalty interest reserved under and by virtue of any oil and gas mining lease now in force and effect covering said land, and under any oil and gas mining lease hereafter executed covering said land, or any part thereof; ....
What is referred to as the production clause follows the royalty clause and it read:
[A]nd in any event the grantee herein, its successors or assigns, shall be deemed the owner of and shall be entitled to receive one sixty-fourth of all oil and gas produced and saved from said land or any part thereof.
The appellants in the Barret case argued they were entitled to an interest as described in that part of the royalty clause which read: . . the grantee. . . shall be entitled to receive hereunder one-eighth of all oil and/or gas run to the credit of the royalty interest.” We said:
It is our duty to interpret such instruments by trying to make all parts of the instrument harmonize, and stand together, if possible, so as to ascertain the intention of the parties. [Citation omitted.] The granting clause in these deeds says that a one sixty-fourth interest is granted to the oil, gas and minerals produced. This clearly limits the claim of the non-participating holders because if they were to participate in the overriding royalty, they would receive more than a one sixty-fourth interest. Also, this same one sixty-fourth interest is mentioned in the production clause. No doubt it would have been clearer if the parties had said in their instruments that participation would only be in the normal one-eighth royalty, but they did not. However, when examined as a whole, the instrument clearly limits the non-participating interest to one sixty-fourth of the oil, gas and minerals produced.
We concluded that the non-participating royalty owners could not participate in the overriding royalty created by the subsequent leases. As can be seen from the language employed in both sets of deeds, those in the Barret case are significantly distinguishable from those employed in this case. The interpretation of deeds advanced by the appellants in the Barret case would have rendered the deeds internally inconsistent, elevated the royalty clause over the granting clause, and ignored the stated intent evidenced in the production clause. There are no such problems with the deeds now before us, and while the language they use does not evidence the clarity of intent we found in the Barret deeds, it is clear that the language in the initial granting clause is supplemented by the language in the subsequent clause granting to Venable “an undivided. . . part of all royalties on oil or gas produced from the above described land during the term of said lease, or any extension thereof.”
The Chancellor found as follows:
10. That Plaintiff. . . is entitled to receive a royalty amounting to 1/2 of 127/720 of 1/8 of the oil and gas produced, saved and marketed under the terms of Lease D from the 29.8 acre tract covered by said Lease D and forming a part of the unit consisting of the Southwest Quarter of the Southwest Quarter (SW/4 SW/4) of said Section 15 and a royalty amounting to 1/2 of 127/720 of 3/16 of the oil and gas produced, saved and marketed under the terms of Lease E from the 10.2 acre tract covered by Lease E and forming the remaining part of said unit, upon which the Tissue “A” 1-15 is being operated. That accordingly, Plaintiff is entitled to receive a total royalty amounting to .012429903 (29.8/40 X 1/2 X 127/720 X 1/8 plus 10.2/40 X 1/2 X 127/720 X 3/16) from the oil and gas so produced, saved and marketed from the 40 acre unit.
11. That Plaintiff... is entitled to receive a royalty amounting to 1/2 of 127/720 of 3/16 of the oil and gas produced, saved and marketed under the terms of Lease F from the Northwest Quarter of the Southwest Quarter (NW/4 SW/4) of said Section 15, or to .016536458 of the production under the terms of said Lease F from the Northwest Quarter of the Southwest Quarter of said Section.
The Chancellor interpreted the deeds to mean that they had to be read in conjunction with the lease or leases to arrive at the proper fractions because of the interaction between these two granting clauses. Anadarko does not dispute that the 1939 deeds utilized the amount of royalty which the grantor had retained under the lease to arrive at the fractions stated within the deeds but characterizes that fact as “coincidental” and the language as merely “explanatory”. It is our duty to interpret instruments by trying to make all parts of the instrument harmonize, and stand together, if possible so as to ascertain the intention of the parties. Barret v. Kuhn, supra. The deeds here clearly sought to convey some interest defined by something in the lease “for the same consideration” to Venable. We cannot agree that the language was merely “explanatory” and ignore it as Anadarko would have us to do, as it utilized all the terms of art of conveyance and appears to have granted an additional fractional one-eighth (1 /8th) of that which it initially conveyed based on the terms of the lease.
While the 1939 lease is not contained in the record, there is no dispute that it expired. The Chancellor clearly considered the 1980 leases to be “extensions” of the original lease, and we have been presented with nothing which would render that conclusion clearly erroneous which is what is required if we are to reverse such a fact finding. Perry v. Nicor Exploration, 293 Ark. 417, 738 S.W.2d 414 (1987); A.R.C.P. 52(a). Anadarko argues that the deeds do not contemplate a “future lease” but it ignores the language in the deed which applies to the “said lease, or any extension thereof’. There is no question that this interpretation by the Chancellor is supported by the deeds.
2. Limitations, estoppel, and laches
Anadarko argues that the claim of Venable is barred because he signed and accepted Division Order #0323428 which sets out his interest and at no time did he dispute the calculation of his interest nor did he revoke or rescind the order. The Division Order is a multi-paged document which states in relevant portion:
The undersigned, and each of us, certify and guarantee that we are the legal owners of and hereby warrant the title to our respective interests as set out below in the oil and casinghead gas ....
***
Effective first production and until further notice, subject to the conditions, covenants and directions hereof, you are authorized to sell and deliver Products from the property above described and until further notice give credit for said Product as follows: ....
A division order is “[a] contract of sale to the purchaser of oil or gas. The order directs the purchaser to make payment for the value of the products taken in the proportions set out in the division order.” Williams & Meyers, Manual of Oil and Gas Terms § 258 (1985). The division order is typically terminable at the will of either party and may as is alleged here inaccurately reflect the interest owned by a party. Generally under such circumstances the purchaser of the minerals may rely on the division order in making payments to the owners and not be liable in contract or tort for underpayment. 4 Williams & Meyers, Oil and Gas Law § 704.5 (1984). In Hemingway, Law of Oil and Gas § 7.5 (3d ed. 1991) the following appears: “[b]y the better view, an owner of production who has executed a division order is not so contractually bound or estopped by the division order that he cannot recover for underpayment from owners of production who have been overpaid. He may not recover from the purchaser of production.”
Anadarko’s argument is that the signing and acceptance of the Division Order calculation should bar Venable from claiming any other formulation under several theories. First Anadarko argues that Venable is barred by the statute of limitations. Arkansas Code Ann. § 16-56-111 (Supp. 1991) provides a five-year limitation on actions concerning instruments in writing. Anadarko claims the statute ran in 1988 on the 1983 division order. The statute provides, however, “partial payment. . . shall toll this statute of limitation.”
In Johnson v. Gammill, 231 Ark. 1, 328 S.W.2d 127 (1959), the parties entered into a written stipulation as to a longstanding indebtedness on January 26, 1952. Several payments were made subsequent to that date and before suit was filed on February 8, 1957. A statute of limitations defense was raised which we rejected, holding that the stipulation constituted the written instrument and the part payments interrupted or tolled the statute with respect to the entire indebtedness. Assuming the division order constitutes the written instrument for purposes of triggering the statute in this case, the earlier payments made under the order tolled the statute.
Second Anadarko claims laches and estoppel bar this claim. It is clear from the language above that all that Venable’s signature on the division order represents is the warranting of his title and an authorization for Anadarko to sell the products, giving him credit for his share as calculated. It does not in any way indicate Venable’s ratification of the calculation or a waiver of his right to challenge that calculation. We have never been called upon to interpret execution of a division order in the manner suggested by Anadarko. We have, however, considered other arguments concerning the effect of such a document.
In Shreveport El Dorado Pipeline Company v. Bennett, 172 Ark. 804,290 S. W. 929 (1927), we rejected an estoppel argument against a royalty owner based on the contents of a division order directed to the Pipeline Company. The division order directed giving credit for a share of production to a party who had no right to a share. The oil company argued it had no knowledge its payment was in error because the information in the division order setting out an interest to others justified the payment it had made. We found that the oil company’s notice of the leases underlying that division order was sufficient notice that the payment was incorrect.
In Pope v. Pennzoil Producing Co., 288 Ark. 10, 701 S.W.2d 366 (1986), we said that a division order and a 13-year delay in raising any objections, combined with a ratification and adoption clause in the division order, barred royalty owners by laches and estoppel from challenging the distribution. The document provided in relevant part:
We . . .do hereby adopt, ratify and confirm each of Pennzoil Producing Company’s leases covering these tracts and provided Pennzoil pays royalties in the proportions set out, same will be maintained in full force and effect.
We said:
We have consistently held that oil and gas properties are unusual and require diligence on the part of parties claiming a property interest. Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S.W. 836 (1925). In Sanders v. Flenniken, 180 Ark. 303, 21 S.W.2d 430 (1929), this court cited with approval the following language from Patterson v. Hewitt, 195 U.S. 309 (1904):
There is no class of property more subject to sudden and violent fluctuations of value than mining lands. A location which today may have no salable value may in a month become worth millions. Years may be spent in working such property, apparently to no purpose, when suddenly a mass of rich ore may be discovered from which an unusual fortune is realized. Under such circumstances, persons having claims to such property are bound to the utmost diligence in enforcing them, and there is no class of cases in which the doctrine of laches has been more relentlessly enforced.
In Sanders we continued discussion of the concept as follows:
From these citations it will be seen that this court, as well as the Supreme Court of the United States, has uniformly recognized that, on account of the fluctuating and uncertain values of oil and gas lands, parties asserting title thereto must act more promptly than in ordinary cases in which the values remain practically the same. Of course, it is equally well-settled that, when the question of laches is an issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence.
These cases establish that laches or estoppel may flow from execution of a division order; however, in this case Venable first sought an accounting for and then judgment for the proceeds which were withheld under Anadarko’s calculation in the division order. “The equitable doctrine of laches is not applied in actions for damages, for accounting, for the recovery of money or property fraudulently obtained, and the like.” [Emphasis supplied.] Peek v. Brickey, 300 Ark. 354, 779 S.W.2d 152 (1989) ; S. Symons, Pomeroy’s Equity Jurisprudence, 917 p. 600 (5th ed. 1941). Additionally, laches is based on the theory that it is the unreasonable delay of the party seeking relief under such circumstances as to make it inequitable or unjust for the party to seek relief now. Reynolds v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992). Venable asserts he had no knowledge of the contents of the 1980 leases prior to filing suit. There is nothing in this record to contradict that assertion, and we must assume that the Chancellor believed this to be the case. The Chancellor is in the best position to assess the credibility of witnesses, and where an issue turns heavily upon credibility, we will defer to the Trial Court. First Nat’l Bank v. Mercantile Bank, 304 Ark. 196, 801 S.W.2d 38 (1990).
Also in the Reynolds case we pointed out that for silence to constitute an estoppel there must be both the opportunity and the duty to speak. Lavaca School Dist. No. 3 v. Charleston School Dist. No. 9, 304 Ark. 104, 800 S.W.2d 703 (1990) . The action of the person asserting the estoppel must be the natural result of the silence, and the silent party must be in a situation to know that someone is relying on the silence to his detriment. Again, Venable’s lack of knowledge precludes the doctrine of estoppel from barring his claim.
Finally, in Worth v. Civil Serv. Comm’n, 294 Ark. 643, 746 S.W.2d 364 (1988) we said:
Estoppel is a doctrine which involves both, not just one, of the parties. Continental Ins. Companies v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). The party claiming estoppel must prove he relied in good faith on some act or failure to act by the other party, and that, in reliance on that act, changed his position to his detriment. Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976). Here, the appellee civil service commission has not shown that it detrimentally changed its position based upon an act or failure to act by appellant. Thus, the doctrine of estoppel is not applicable against the appellant.
Similarly, the doctrine of laches is not applicable because it too requires a detrimental change in the position of the one asserting the doctrine as well as an unreasonable delay on the part of the one against whom it is invoked. Padgett v. Bank of Eureka Springs, 279 Ark. 367, 651 S.W.2d 460 (1983). Here, twelve months did not amount to an unreasonable delay in filing the suit, and the commission simply did not change its position as the result of a delay.
The scant record in this case has given us problems with resolving this matter. It is absolutely devoid of any information regarding any payments made by Anadarko. As far as we can tell, however, there was no issue before the Chancellor with respect to any rights of innocent third parties which might have an effect on Venable’s entitlement.
As we cannot say the Chancellor erred in determining the amount due to Venable pursuant to the 1939 deed, and as we conclude Venable’s claim was not barred by a statute of limitations, estoppel, or laches, the decree is affirmed.
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Per Curiam.
Mrs. Elmer Jones prosecutes this appeal to revérse the judgment of conviction of voluntary manslaughter in which the jury fixed her punishment at two years in the State penitentiary. According to the evidence adduced by the State, in May, 1929, a difficulty occurred between the husband of the defendant and Bud Maynard in Baxter Oounty, Arkansas. Maynard and her husband agreed to fight, fist and skull, and her husband threw his knife on the ground. Mrs. Jones was on a mule and got off of it and struck Maynard two licks in the back with her husband’s knife which she had picked up from the ground. Maynard died about a week and a half or two weeks after the fight. Maynard and Jones did not seem to be hurting each other at the time Mrs. Jones stabbed Maynard. According to the evidence of physicians, they found a stab wound apparently from a knife blade between the sixth and seventh rib on the right of Maynard’s back. This caused traumatic pneumonia and Maynard died as a result of the knife wound.
According to the testimony of Mrs. Jones, she picked up her husband’s knife and during the fight between tier husband and Maynard, the latter staggered back against her and ran against the knife and was stabbed accidentally.
The evidence for the State fully warranted the verdict. Storms v. State, 179 Ark. 1158, 16 S. W. (2d) 468.
The next assignment of error is that the judgment should be reversed because special counsel for the State, in his closing argument to the jury, stated that the defendant “might thank her lucky stars that she had some henchman on the grand jury which caused an indictment only for manslaughter to be returned against her.” The circuit court at once admonished counsel that he should not have made any such statement to the jury and told the jury that it was instructed to disregard the statement and to base its verdict upon the testimony introduced and the law given by the court.
The case was tried upon competent evidence and upon instructions which fairly and fully guarded the interests of the defendant. The judgment is correct, and it is therefore affirmed. | [
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Humphreys, J.
On the 30th day of November, 1927, Anna Jackson conveyed an undivided one-fifth interest in the south half of the northwest quarter of section 35, township 17 south, range 18 west, in Clark County, Arkansas, to appellants and delivered possession of the entire tract to them.
Prior to that time she had executed a mortgage on her undivided interest in said real estate to them. At the time she conveyed her interest in said land to them she was a co-tenant of appellees who owned the other fonr-fifths interest.
Thereafter appellants acquired outstanding tax titles to said tract of land under tax forfeiture, and sales antedating their deed from Anna Jackson to her one-fifth interest therein.
On December 6, 19;29, appellees herein, the owners by inheritance of the other four-fifths interest in said real estate brought suit in the chancery court of Clark County against appellants to redeem their several interests in said real estate from the tax forfeitures and sales and for an accounting of rents and profits.
Appellants filed an answer denying that appellees had a right to redeem the lands from the tax forfeitures and sales or to an accounting for rents and profits. They alleged that they became the owners in fee of the real estate under and by virtue of their purchases of the outstanding tax titles.
The cause was submitted to the court upon the pleadings and testimony resulting in a finding and decree against appellants, from which is this appeal.
Appellants contend for a reversal of the decree upon the theory that a -co-tenant who acquires title to his share after a tax forfeiture and sale may acquire title to the entire estate by buying such outstanding tax titles. In the instant case appellants knew that the lands had been forfeited for taxes at the time they purchased their undivided one-fifth interest from Anna Jackson. The rule in our -State is that a tenant in common of land can acquire no title to the interest of his co-tenant or co-tenants by purchase at the sale of the whole for delinquent taxes. Hi's purchase means no more than the payment of the taxes and gives him no right except to demand contribution from his co-tenants. Cocks v. Simmons, 55 Ark. 104, 17 S. W. 594 ; Inman v. Quirey, 128 Ark. 605, 194 S. W. 858. Appellants argue that this rule only applies to co-tenants at the time of the forfeiture and sale of the lands. Our court has never made any such distinction, and we think it applies as well as to the successor of a co-tenant with knowledge of all facts. The general rule laid down in 38 Cyc. p. 48 is as follows:
“The purchase of the outstanding tax title for the entire property by a tenant in common operates as a payment of the tax and an extinguishment of the tax title, and a deed given to one of the tenants in common simply operates as a discharge of the taxes assessed on the land.”
No error appearing, the decree is affirmed. | [
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Mehaeey, J.
W. D. Saunders and others filed a petition in the county court of Clark County for an order creating a stock district under and in accordance with the provisions- of act 17 of the Acts of 1905 and amendments thereto. It was alleged that the territory was contiguous and -comprised an area of more than 5 square miles. The territory which was to constitute the district was described in the .petition. A map of Clark County showing the district was filed with the petition. The county clerk certified that he had made a careful examination of the petition, checked the signers, and that the signers of the petition are a majority of the qualified electors living in said territory or having cultivated lands therein; that they had deposited money to pay the expense of making the order, and that a majority of the qualified electors of the subdivision sought to be made into a stock district had signed the petition.
G-. A. Stoffer and others filed a remonstrance, alleging that they were qualified electors residing in the territory and opposed to the forming of the district, and asked the court not to make an order forming said territory into a stock district.
On March 29, 1929, the county court found that the territory described in the petition and shown on the plat comprised an area of more than five square miles; that the petition prayed for an order establishing a stock district; that the petition was signed by a majority of the qualified electors residing in said territory and all owners of cultivated lands within said district, who are qualified elector's of Clark Oounty but who reside without the district; that the petition was accompanied by the certificate of the clerk; that the petition clearly set forth that hogs, sheep and goats are all to be prohibited from running at large within the territory, which the court finds to be particularly described and the boundaries thereof clearly designated. The court also found that all the requirements of act 17 of the Acts of 1905 and the amendments thereof had been strictly and fully complied with, and that the petitioners were entitled to have their prayer granted, and the order was made by the county court accordingly.
The remonstrants appealed to the circuit court where a trial was had on January 30, 1930. The same findings were made by the circuit court which were made by the county court, and an order establishing the district was made. A motion for new trial was filéd 'by the remonstrants alleging, first, that the decision of the court is contrary to law, and, second, that the decision of the court is contrary to the law and the evidence. Motion for new trial was overruled, and this appeal is prosecuted to reverse the judgment of the circuit, court.
There is very little dispute about the facts, and it is unnecessary to set out the evidence.
Both the county court and the circuit court found that the territory described in the petition and shown on the plat comprised an area of more than five square miles; that the petition was signed by a majority of the qualified electors residing within said territory and all owners of cultivated land within said district who are qualified electors of Clark County but reside without the district; that the petition was accompanied by the certificate of the clerk of the county court, stating that sufficient money had been deposited to pay the expense of making the order prayed for; that the poll books verified the statement that a majority of the qualified electors of said subdivision of Clark County have signed the petition, and the court also found that the petition particularly described the boundaries of the territory and that all the requirements of act 17 of 1905 and amendments thereof have been strictly and fully complied with. Not only did both courts find these facts, but we think there was ample evidence to justify the findings.
Appellants contend that the case of Palmer v. Palmer, 132 Ark. 609, 202 S. W. 19, did not construe the act because the question here presented was not raised or passed on. The court in that case passed on the con-, stitutionality of the act and also held in speaking of the amendments: ‘ ‘ This, in effect, amended section 1 of act 17 of 1905 the same as if it had directly amended section 1 of act 17. It is insisted that act 262 of the Acts of 1905 repealed section 1 of act 17 of 1905, and that the amendment of a repealing statute does not have the effect of reviving the original statute amended. In support of this contention, § 7796 of Kirby’s Digest is cited, which is as follows: ‘When a statute shall be repealed and the repealing statute shall afterwards be repealed, the first statute shall not thereby be revived except by express words.’ This section of the statute has no bearing, because act 262 was not a repealing statute. It was an amending statute. It amended section 1 of act 17 of the Acts of 1905’ by excluding Amity Township and other territory in Clark County from the effect of the act. * # The effect of the passage of act 183, Acts 1915, was to set section 1 of said act in the place and stead of section 1 of act 17, Acts 1905. * * * It is quite clear that the Legislature intended by act 183, Acts 1915, to fully and completely reinstate act 17, Acts 1905, so as to permit Clark ■County or any subdivision thereof not less than five square miles to be organized into districts to prevent hogs from running at large.”
We think the above case practically settles the questions involved in the present case. It is contended, however, that “subdivision” means a township, but when the entire act is construed, its object and purpose, it is clear that “subdivision” was used in the sense of “part.”
“It is indispensable to a correct understanding of a statute to’ inquire first, what is the subject of it, what object is intended to be accomplished by it. When the subject-matter is once clearly ascertained and its general intent, a key is found to all its intricacies; general words may be restrained to it and those of narrower import may be expanded to embrace it to effectuate that intent.” Lewis, Sutherland, Statutory Construction, 2d Ed. Yol. 2, § 347.
This court has held: “That, in construing statutes, the intention of the Legislature is a fit and proper subject of inquiry is too well settled to admit of doubt. This intention is to be collected either from the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law and other acts m pari materia. * * * Such a construction ought to be put upon the statute as may best answer the intention which the lawmakers have in view, and this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances; and whenever such intention can be discovered, it ought to be followed with reason and discretion, in the construction of the statute, although such construction seems contrary to the letter of the statute. And such construction ought to be put upon it as will not suffer it to be eluded.” Turner v. Ederington, 170 Ark. 1155, 282 S. W. 1000.
In construing a statute this court recently said: “Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import may yet be made plain by comparison with other clauses or portions of the same law. It is therefore a very proper rule of construction that the whole is to be examined with a view to arriving at the true intention of each part. * * * If any section of a law be intricate, obscure or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections and finding out the sense of one clause by the words or obvious intent of another.” Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729.
Act No. 17, which is here involved, provides that it shall be the duty of the petitioners to particularly describe and clearly designate the boundaries of the district proposed to be formed. There would be no occasion at all to advise the court of the description of a political township nor to designate its boundaries. This requirement is only necessary when a part of the county is to be formed into a district and would not be necessary if the petitioners sought to create a district whose boundaries were the same as the political township.
Some courts have held that the word “subdivision” means “precinct” or “township,” but it will be found that in most of those eases, if not all, the stock law provided for an election and the courts held that there was no provision in the law for elections except in precincts, townships and municipalities.
Again, this act provides that the district shall consist of not less than five square miles. There might be a township which would not contain five square miles, and if subdivision meant a precinct or township, then any township or precinct of less than five square miles could not form a stock district although that particular territory might - need it more than any other in the county. If subdivision meant township or precinct, not only would a township with less than five square miles be unable to organize, but it could not be joined to some other township 'because, if subdivision means what appellants contend that it does, every district formed in the county would have to consist of a township or precinct and could not be more or less. Certainly the Legislature did not intend to pass a law for the creation of stock districts in such a manner that they could not be created. The act of 1905 provided that the district should consist of not less than five square miles, but the act of 1915 says not less than five miles square. If they intended what they said in that act, five miles square and subdivision meant a township or precinct, then it seems to be impossible to create a district under the law. Five miles square would not fit any township' or precinct in Clark County, and if it means five miles square, then the law would be absurd, and the Legislature evidently did not intend this.
We said in Palmer v. Palmer, 132 Ark. 609, 202 S. W. 19: “It is quite clear that the Legislature intended by act 183, Acts 1915, to fully and completely reinstate act 17, Acts 1905, so- as to permit Clark County or any subdivision thereof not less than five square miles, to be organized into a district.” Any other construction or interpretation of this statute would make it inoperative.
“Where there is no way of reconciling conflicting clauses of a statute, and nothing indicating what the Legislature regarded as of paramount importance, force should be given to those clauses which would make the statute in harmony with other legislation on the subject. * * * In order to conform to the legislative intent, errors in an act may be corrected or words rejected and others substituted.” McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646. The cardinal rule of interpretation is the ascertainment of the meaning of the law-makers as expressed in the language which they have used.
“It is the duty of every court, when satisfied of the intention of the Legislature, clearly expressed in constitutional enactment, to give effect to that intention, and not defeat it by adhering too rigidly to the mere letter of the statute, or to technical rules of construction, and any construction should be discarded that would lead to absurd consequences. * * * The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the Legislature apparent by the statutes; and if the words are sufficiently flexible to admit of some other construction, it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. ’ ’ State ex rel. v. Trulock, 109 Ark. 556, 160 S. W. 516 ; Summers v. Road Imp. Dist. No. 116, 160 Ark. 371, 254 S. W. 696.
It was manifestly the intention of the law-makers to enable Clark County or any part of Clark County to organize a stock district, and we think that the construction contended for by appellants would make it impossible to organize a part of the county into a distiict. The petitioners complied with the act in every respect.
The judgment of the circuit court is affirmed. | [
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