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Dunaway, J.
This appeal questions the validity of an injunction against picketing in a labor dispute in Fort Smith, Arkansas. It is urged by appellants that members of the International Brotherhood of Electrical Workers, Local No. 700, have been denied their right of peaceful picketing as guaranteed by the federal constitution.' The Chancellor granted the injunction on the ground that the union was picketing for an unlawful objective — to obtain a closed shop in violation of Amendment 34, the Freedom to Work Amendment of the State Constitution and Act 101 of the Acts of 1947, the enabling-act for enforcement of Amendment 34.
Suit for injunction was brought by appellee, Leon E. Taylor, d/b/a Leon E. Taylor Electrical Company against T. F. Self, individually and as business agent and representative of the International Brotherhood of Electrical Workers, Local No. 700.
On July 1, 1946, Taylor and Local No. 700 entered into a collective bargaining contract covering terms and conditions of emplojunent of appellee’s employees. This contract was in effect until July 1, 1949, when it was terminated upon notice given, in accordance with its provisions, by the union. The 1946 contract had contained a closed shop agreement which was not subject to Act 101, since § 5 of the Act specifically provided that the Act should not be applicable to contracts in existence at the time of its passage in 1947.
After the notice of termination was given by the union in May, 1949, the parties began negotiations for a new contract. During the course of the negotiations appellee agreed to all the demands of Local No. 700 except those providing for a closed shop and union hiring hall procedure. Appellee refused to sign a contract containing these provisions because such a contract would be in violation of the law of Arkansas and he would thereby subject himself to criminal prosecution.
Section 3 of Act 101 provides: “No person, group of persons, firm, corporation, association, or labor organization shall enter into any contract to exclude from employment, (1) persons who are members of, or affiliated with, a .labor union; (2) persons who are not members of, or who fail or refuse to join, or affiliate with, a labor union; and (3) persons who, having joined a labor union, have resigned their membership therein or have been discharged, expelled, or excluded therefrom. ’ ’
The closed shop provision of the 1946 contract reads as follows: “The employer shall employ only members in good standing of the Union on all electric work.” This identical clause was demanded in the proposed 1949 contract. It is now conceded that inclusion of such a provision would have been illegal.
Upon termination of the contract on July 1, 1949, appellee’s employees quit their work and none of them worked for him again until about thirty days later, when two men returned to their jobs. Fines were assessed by Local No. 700 against those who returned to work, and they subsequently resigned from the union.
It appears that another electrical contractor in Ft. Smith, D. C. Barnett, was engaged along with appellee in joint negotiations with Local No. 700, and that the same difficulties were being encountered by him in agreeing upon a contract. Although the record is very sketchy on the exact sequence of events after July 1, 1949, it appears that Barnett instituted a suit similar to the one at bar in the Sebastian Chancery Court sometime in early August, 1949; that as a result of a conference between the Special Chancellor (acting in the absence of Judge Wofford) and the parties to that suit, negotiations between the union representatives and Barnett and Taylor were resumed.
During these negotiations, the union offered a contract substantially the same as the earlier one sought, except that all reference to closed shop, union shop, and union hiring hall had been eliminated. Also the proposed contract contained a provision for cancellation at any time by either party upon sixty days notice. The contract previously in force had been for a period of one year, renewable automatically from year to year, unless notice, of termination was given thirty days prior to its annual expiration date.
Appellee testified that he agreed to accept all the terms of the contract offered if the union would make a contract “on a year’s basis”. He testified as follows :
"I agreed to it until they told us that they would have to get rid of the men' that were working for us. We asked about this sixty day cancellation clause and they said that I’d either have to get rid of my men or they would cancel the contract.
“Q. Did you inquire of the representative of the unions why there was a sixty day cancellation clause in this contract? A. I asked why they wanted it in there and they told me that they would cancel it out if I didn’t dispose of these men. Q. What men did they have reference to? A. Two men that went back to work for me after they refused to let them work for me.”
Barnett, who was present at the same negotiating sessions testified concerning inclusion of the sixty-day cancellation clause and his refusal to sign a contract containing it:
“Q. Why did you decline to sign it as presented? A. Because during the discussion, they would always refer to it that they would cancel it, depending on our good behavior, and finally Mr. Petty (a union representative) did say that he would cancel it unless we got rid of some of the men that was in bad with the Local.
“Q. How long have you been doing business with Local No. 700 in Port Smith? A. Oh, about 9 years. Q. During that time, have you ever been offered, or asked to enter into a contract for a period of less than one year? A. No sir.”
This testimony was not contradicted by appellants.
When the union insisted upon the sixty-day cancellation clause, and the union representatives told ap-pellee that they would exercise their right to cancel if he did not fire non-union men working for him, he refused to sign the contract and broke off negotiations, according to his testimony.
On August 25,1949, two members of the union began peacefully picketing appellee’s place of business, They carried a placard bearing these words: “This place-is unfair to Electrical Workers Local AFL 700”.
The instant suit was filed the same day and a temporary injunction was issued against picketing appellee’s place of business or any place where he was doing work. The initial petition was filed only against Self, but by amendment all the officers of Local No. 700 were made parties so there is no issue on appeal as to the parties to this suit.
After hearing the testimony, the Chancellor made permanent the temporary injunction. A written opinion was filed by the Chancellor as a part of the record, and since it clearly states the basis of his action and details testimony pertinent to a decision of this case, we quote rather extensively from this opinion:
“The first question for consideration is whether or not the inclusion of the 60 day cancellation clause had for its objective the imposition of closed shop conditions.
“During the course of the hearing, this question was asked Mr. Self, business agent and witness for the defendants, by the Court:
“ ‘Q. If I understand that provision, and yoti will correct me if I’m wrong, it may be terminated by either party, by giving sixty days notice? A. Yes sir, that’s right. Q. If the plaintiff in this case were to sign that contract with you, and then employed non-union men on the job with your union employees, would you give them notice? A. May I answer this question in full, Your Honor? It will take a little qualification. You know the law at the present time, does not provide that a union man has to work with a non-union man, and if we had such a contract with either one of these employers, and they employed non-union men, and our men left their employ, I don’t think there would be any further point in maintaining a contract. Do you? Q. Would you ask your men to leave their employ? A. I wouldn’t have to. They are under obligation. Q. You know that would take place? A. Yes sir. Our people don’t work with that kind of people. ’
“Mr. Petty, International Vice President of the union testified as follows:
“ ‘Q. I will ask you — You stated on direct examination that you were still willing to sign a contract with Mr. Barnett and Mr. Taylor? A. That is right. Q. I will ask you if you are willing to sign a contract for one years duration with them. A. I am willing to sign the same contract that we presented to them, dated August 18th. Q. That would be with the 60 day cancellation clause in it? A. That’s right. Q. Now, what is the policy of your union and requirements of your constitution and by-laws governing your members with reference to work with non-union men? A. I believe the constitution speaks for itself. Q. Well, you are familiar with it, aren’t you? A. Yes. Q. Well, what is the requirement? A. Well, the policy of the I. B. E. W., in the construction branch of our trade, is to work only with union people of our own craft. Q. Do you agree with the statement that Mr. Self made on direct examination with regard to the procedure in the event that a person having a contract with a union employed nonunion people? A. I don’t know just exactly what you refer to. Q. Mr. Self testified that it would be expected that union members would not work on the same job with non-union members. A. That is right. Q. And if they withdrew from their employment, there would be no reason for further contractual relations with that employer, and notice would be given to cancel the contract? A. That’s right. Q. And that, as I understand, is the correct policy of the union? A. That is right.’
“The constitution of the International Brotherhood of Electrical Workers was introduced in evidence, and, under its provisions, its members are not permitted to work with non-union employees. Mr. Webb, Interna- tioual Representative of tlie I. B. E. W., testified to the same effect as that of Mr. Self and Mr. Petty.
“As stated above, the contract offered August 18, 1949, with the mutual 60 day cancellation clause included, was prepared during the recess in-the trial of the Barnett case. The evidence shows that no other contract of its kind in this community has been negotiated. Thej proposed contract, itself, is not illegal. The way in which defendants say they will operate under it is illegal. If plaintiff were to sign that contract, and did not dismiss from his employ the non-union men working for him the first day the members of the union appeared for work, they would quit and either give notice of the termination of the contract at once, or begin picketing plaintiff’s place of business because he employed nonunion workers, and this litigation would start all over again. It was the object of the defendants, in submitting this contract, to compel plaintiff to operate a closed shop business. He could not afford to sign such a contract, under the laws of the State of Arkansas, because if he permitted union men to work for him, he would have to violate the law and dismiss employees because they were not members of the union. It is an ingenious scheme, but it did not work. ’ ’
That peaceful picketing for a lawful purpose is protected both by the federal constitution and the law of Arkansas is too well settled to require discussion. See Local No. 802 v. Asimos, 216 Ark. 694, 227 S. W. 2d 154, for a collection and analysis of our own and U. S. Supreme Court decisions on this subject. It is equally well settled that even peaceful picketing for an unlawful objective is not protected by the constitutional guar antee of the right of free speech. We recognized this in the Asimos case, supra, where we said at p. 702:- “On the authority of these Federal cases the injunction in the case at bar could be sustained in some form, if the appellees had shown that the Union was picketing the Jefferson Coffee Shop in an effort to compel the execution of a ‘closed-shop’ contract.” See, also, Giboney v. Empire Storage & lee Company, 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834; Union Local 262 v. Gazzam, 339 U. S. 532, 70 S. Ct. 784; Union Local 309 v. Hanke, 339 U. S. 470, 70 S. Ct. 773; Amalgamated Meat Cutters v. Green, 119 Colo. 92, 200 Pac. 2d 924; Construction and General Labor Union v. Stephenson, (Tex.) 225 S. W. 2d 958; Local Union No. 519 v. Robertson, (Fla.) 44 So. 2d 899.
Appellants argue that since there is no mention of a closed shop in the proposed contract of August 18, 1949, and appellee refused to sign this contract, they have a constitutional right to picket his business in an effort to force him to accept this contract. They further /argue that no man can be forced to work with non-union men, and if for any reason they want to cease their employment they have a right to do so. This latter contention is patently true, but it still begs the question whether they have a right to picket to obtain a contract legal on its face, but which in the circumstances of this case is obviously designed to achieve indirectly a result which the law says is illegal.
We do not find that this question has been'presented to any court before. The National Labor Relations Board, however, has considered a closely analogous situation where the International Typographical Union was attempting to avoid the anti-closed shop provisions of the National Labor-Management Relations Act of 1947. In the Matter of Chicago Typographical Union No. 16, 86 Decisions and Orders of the N. L. R. B. 1041. There the NLRB held that union insistence upon a sixty-day cancellation clause in any collective bargaining contract with the publishers amounted to bad faith bargaining and was an unfair labor -nraotioe under the federal act. In so holding the NLRB said: “. . . the primary objective of collective bargaining is to stabilize labor' relations for periods of reasonable duration. To tbis end the parties had, before 1947, traditionally bargained for and executed contracts for a fixed duration of 1 year. The Respondents ’ unwillingness to consider the traditional term, evidenced by their refusal to bind themselves contractually for more than 60 days, raises in and of itself a presumption that the Respondents were not bargaining in good faith. The record shows no lawful or reasonable economic justification for such a refusal. Indeed, as we have already noted, it establishes that the 60-day cancellation clause was deliberately designed, and was adamantly insisted upon, to effect the exclusion of nonunion men, squarely in conflict with the provisions of the amended Act. . . . under this arrangement the Respondents intended to place themselves in a position whereby they could with contractual impunity call a strike, ostensibly with regard to economic matters otherwise settled in the cancellable agreement, in order to ¡ force the Employer noncontractually to maintain closed-1 shop conditions.”
We think the same analysis fits exactly the situation presented in the instant case. The undisputed proof amply supports the Chancellor’s finding that the only purpose of the picketing was to force appellee to continue a closed shop either contractually or non-contractually as a matter of economic self-preservation.
In Giboney v. Empire Storage & Ice Co., supra, the U. S. Supreme Court sustained an injunction against peaceful picketing where the Missouri courts had found that the sole purpose of the picketing was to induce Empire to agree not to sell ice to non-union peddlers — an illegal objective under Missouri law. While in that case, the illegal purpose was admitted, and here it is denied, it is not necessary that one concede in so many words that he is violating the law before he is accountable for his actions, if the illegal nature of his acts clearly appears from all the facts and circumstances. We think the principles announced in the Giboney case are applicable here:
“it is contended tiiat tlie injunction against picketing adjacent to Empire’s place of business is an unconstitutional abridgment of free speech because the picketers were attempting peacefully to publicize truthful facts about a labor dispute. See Thornhill v. Alabama, 310 U. S. 88, 102, 60 S. Ct. 736, 84 L. Ed. 1093, and Allen Bradley Co. v. Union, 325 U. S. 797, 807, note 12, 65 S. Ct. 1533, 89 L. Ed. 1939. But the record here does not permit this publicizing to be treated in isolation. For according to the pleadings, the evidence, the findings, and the argument of the appellants, the sole immediate object of the publicizing adjacent to the permises of Empire, as well as the other activities of the appellants and their allies, was to compel Empire to agree to stop selling ice to nonunion peddlers. Thus all of appellants’ activities — their powerful transportation combination, their patrolling, their formation of a picket line warning union men not to cross at peril of their union membership, their publicizing — constituted a single and integrated course of conduct, which was in violation of Missouri’s valid law. In this situation, the injunction did no more than enjoin an offense against Missouri law, a felony.” (p. 497-98).
“While the State of Missouri is not a party in this case, it is plain that the basic issue is whether Missouri or a labor union has paramount constitutional power to regulate and govern the manner in which certain trade practices shall be carried on in Kansas City, Missouri. Missouri has by statute regulated trade one way. The appellant union members have adopted a program to regulate it another way. The state has provided for enforcement of its statutory rule by imposing civil and criminal sanctions. The union has provided for enforcement of its rule by sanctions against union members who cross picket lines. . . . We hold that the state’s power to govern in this field is paramount . . .”. (p.,504).
To use a phrase of Mr. Justice FraNKfurter in the Tlanlce case, supra, we do not consider the proposed union contract “as an independent collocation of words” and determine the objective of the picketing from that alone. The contract itself; the circumstances of its proposal; the constitution of the international union (which forbids union members from working on the job with non-union men) as made in effect a part of the contract; the testimony of union representatives that their members would not work under the contract if non-union members were employed — all of these things must he considered in deciding whether the finding of the Chancellor as to the purpose of the picketing is supported by the evidence. Unless we blind ourselves to reality it is apparent that a closed shop is the union’s objective in picketing.
We hold that the injunction was properly granted. To hold otherwise would subject appellee to endless picketing which could only be terminated by granting a closed shop by practice, if not by contract. Suppose, for example, appellee signed the demanded contract, and did not discharge his non-union employees. The union would, as the testimony shows, immediately give the sixty-day notice and terminate the contract. They would then begin picketing appellee’s business as unfair. Why? Because he insisted upon obeying the laws of Arkansas instead of abiding by the policy of the international union. Of course, some pretext might be given as a claimed legitimate grievance, but the real union purpose would be to force a closed shop. The record could be no clearer after a trial period under the sixty-day contract than it is in the instant case.
Certainly our decision is not to be taken as holding that a collective bargaining contract must be effective for any particular length of time. As stated in the trial Examiner’s Intermediate Report in the Chicago Typographical Union case, supra (at p. 1062): “The question of the length of a contract term is ordinarily one for negotiation between the parties. A refusal to agree to a term of 1. year, or of any other particular duration, does not per se constitute a refusal to bargain. ... In the instant case no special circumstances were advanced by the Union for departing from the traditional practice of signing contracts for a fixed duration term of a year, other than a desire to protect the ‘rights’ of its members not to work with nonunion men, or on nonunion goods, or where its jurisdiction was interfered with. ’ ’ Insistence upon the sixty-day cancellation clause in the circumstances of this- case is simply one element in the proof of Local No. 700’s illegal purpose.
One final point must be mentioned. Appellants argue that the court went too far in making the injunction “permanent”. In answer to a similar contention in Milk Wagon Drivers Union v. Meadowmoor Co., 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, the U. S. Supreme Court said: (at p. 298) “The injunction which we sustain is ‘permanent’ only for the temporary period for which it may last. . . . Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted.” The injunction does not prevent appellants from bargaining in-good faith for a legal contract. If legitimate differences arise not connected with the closed shop demand, which would warrant peaceful picketing, they may apply to the Chancery Court for appropriate modification of the injunction. If such modification is erroneously denied, an appeal always lies to this court.
Affirmed.
On questioning by the Court, Webb gave these answers:
Q. . . . but I am going to ask you the question again, and I think you have already answered it, according to your constitution and by-laws, if Taylor signed this agreement offered on — in August last year and he then continued to have non-union men in his employment — that your union men would not work?
“A. In accordance with their oath of obligation they have taken to become a member of the brotherhood, they couldn’t under the constitution of our organization, work.with non-union men.
“Q. And you would give the sixty-day notice?
“A. That is absolutely right.” | [
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Steele Hays, Justice.
Energy Transportation Systems of Arkansas (ETSIARK) is an Arkansas corporation wholly owned by ETSI Pipeline Project, a joint venture — a Delaware partnership formed for the purpose of constructing and operating a coal slurry pipeline from Wyoming to various states, including Arkansas. The partnership consists of five separate foreign corporations, each of which is duly qualified to conduct business in the State of Arkansas. ETSIARK, the appellee, filed a complaint against the appellant, Thomas Young, to condemn a pipeline easement across land owned by appellant pursuant to Ark. Stat. Ann. § 73-1901 . The court below granted the easement.
The appellant raises two points on appeal: 1) the appellee cannot condemn on behalf of a foreign joint venture, 2) the appellee is not a pipeline “company” within the meaning of Ark. Stat. Ann. § 73-1901.
It has been clearly settled that a domestic subsidiary of a foreign corporation can be granted the power of eminent domain to condemn on behalf of a foreign parent corporation. Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S.W.2d 1028 (1929); Starr Farms, Inc. v. S. W. Electric Power Co., 271 Ark. 137, 607 S. W.2d 391 (1980). The only issue we are faced with in this case is whether there is any significant difference when the parent company is a partnership and not a corporation. The appellant raises only one possible difference — that corporations, unlike partnerships, are subject to substantially more regulation and control by the state.
We do not find this to be a significant difference in the present case. The firms in this joint venture are a partner ship of foreign corporations all authorized to do business in this state. Under the Arkansas Uniform Partnership Act, liabilities of the partnership run to each member individually as well as to the firm as a whole. Consequently should the partnership incur any liabilities, prosecution or suit could be taken against the individual member corporations. Additionally, in affirming a foreign corporation’s right to condemn through its domestic subsidiary, we held in Starr, supra, that “the privilege granted a foreign corporation to do business in this state would be practically nullified if it were restricted from doing the act which was necessary to the prosecution of the business...” We find the principle applies with equal force to this situation — where there are several foreign corporations, all qualified to do business in the state, but operating as the parent company in the form of a partnership.
The appellant next submits that the appellee is not a “company” within the meaning of Ark. Stat. Ann. § 73-1901. He argues that the right of eminent domain cannot be granted without statutory authority, and that the statute granting the right of eminent domain must be strictly construed. He contends that “company” must be read to mean “corporation.” And had the legislature intended others besides corporations to have this right, it would have expressly so stated in the enabling legislation.
While we agree with the appellant’s statements on the general principles of statutory authority and eminent domain, we do not arrive at the same conclusion. Basic guidelines for interpretation of statutes provide that we give words their ordinary and usually accepted meaning. Hicks v. Arkansas State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976); Canal Insurance Co. v. First National Bank, Fort Smith, 268 Ark. 356, 596 S.W.2d 709 (1980). When the General Assembly uses words which have a fixed and well ](nown legal significance, they are presumed to have been used in that sense. Fernwood Mining Co. v. Pluna, 138 Ark. 459, 213 S.W. 397 (1919). Black’s Law Dictionary defines “company” as:
Union or association of persons for carrying on a commercial or industrial enterprise; a partnership, corporation, association or joint stock company.
Webster's New World Dictionary defines "company” as:
A group associated for same purpose as to form a commercial or industrial firm.
firm is defined as:
1) a business company or partnership of two or more persons, distinguished from corporation in that a firm is not legally recognized as a person apart from the members forming it.
2) popularly, any business company whether or not incorporated.
It is also settled that it is presumed the legislature in enacting the law did so with the full knowledge of the constitutional scope of its powers and or prior legislation on the same subject. McLeod, Commissioner of Revenues v. Santa Fe Trail Transportation Co., 205 Ark. 231, 168 S.W.2d 413 (1943). Ark. Stat. Ann. § 73-115 (promulgated in 1919) provides for the jurisdiction of the Arkansas Public Service Commission and Arkansas Transportation Commission to extend to and include, among others, pipeline companies. The statute goes on to read:
And for the purpose of this act, and in the construction of this act, every person, firm, association, company, partnership or corporation or other organizations engaged in the operation of any public utility above indicated, shall be deemed to be a company within the meaning of this act.
Ark. Stat. Ann. § 73-1901 is not part of the Act referred to in the above section, but was promulgated after § 73-115 in 1921. Although in construing a statute reference may be had to other laws on the same general subject matter, Sargent v. Cole, Judge, 269 Ark. 121, 598 S.W.2d 749 (1980), we don’t find this argument conclusive in this case. Both statutes deal with the general subject matter of regulation and operation of pipeline companies but regulatory measures could lend themselves to a broader reading, whereas a statute on eminent domain must be read strictly. However, the eminent domain statute was passed within a short time after the definitional statute, it is of the same general subject matter, and the word in question is commonly used in the generic sense. We don’t find this argument dispositive, but we do find it persuasive in reaching our conclusions.
With the above principles in mind as applied to this case we read the word “company” within § 73-1901 to be used in the generic sense. By contrast, to accept the appellant’s contention that we read the word “company” as “corporation” would be a strained interpretation. A forced interpretation for the purpose of extending or limiting the meaning should be avoided. See Hicks v. Arkansas State Medical Board, supra.
Appellant also argues that Art. 12 § 92 of the Arkansas Constitution suggests the right of eminent domain is limited to corporations. We do not read that section with such implied restrictions and to do so would be contrary to our interpretation of the general grant of eminent domain to the state in Art. 2 § 23.
By virtue of our Constitution the State’s right of eminent domain is conceded, and the legislature as the representative of the State’s sovereignty, or the agency to which the legislature has granted the power, has the right to take any kind of private property for public use. Cloth v. Chicago Rock Island and Railway Co., 97 Ark. 87 (1910) and see Eminent Domain 29 CJS § 2, 3. (Emphasis added).
Nor do we agree with appellant’s last argument that the legislature in the first instance has no authority to grant the right of eminent domain to individuals or partners. Although there is authority to the contrary, the legislature may confer on an individual or a partnership the power to condemn private property for public purposes. Eminent Domain 29A CJS § 27; Nichols on Eminent Domain 1 § 3.21[2]. We find the statement in Cloth, supra, to be in harmony with this approach, and our legislature has confirmed its agreement by granting such powers to individuals for public use. See Ark. Stat. Ann. § 76-110; § 35-801.
Adkisson, C.J., and Hickman and Purtle, JJ., dissent.
All pipeline companies operating in this State are hereby given the right of eminent domain and are declared to be common carriers, except pipelines operated for conveying natural gas for public utility service.
No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law. | [
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Conley Byrd, Justice.
Appellants William P. Lun-day and Charles A. Lunday, Jr. brought this action to determine what interest Mrs. Charles A. Lunday, Sr. was claiming in the property. After appellees Fred Toene-boehn and wife intervened they amended the complaint, to set aside, as a forgery, a deed allegedly executed by their Father Charles A. Lunday, Sr. and Bessie B. Lunday, his wife to Fred E. Toeneboehn and Lee Toeneboehn. To reverse the decree in favor of the Toeneboehns, appellants contend that the findings of the trial court are against a clear preponderance of the evidence.
The proof shows that Charles A. Lunday, Sr. had suffered some strokes. He married Bessie B. Lunday on February 14, 1970, and died on November 11, 1970. Sometime in September Mr. Lunday and Mr. Toeneboehn went to the office of appellants’ counsel for the purpose of conveying the lands here involved. At that time Mr. Lunday seemed to think he was the sole owner and intended to sell the whole subdivision for $10,000. Appellants’ counsel at that time informed Mr. Lunday that he was only a joint tenant with his son Charles A. Lunday, Jr. As a result of that conversation the lawyer prepared two deeds, one for the son and his wife and one for Mr. and Mrs. Lunday. On September 21st the deed in question was allegedly executed and delivered. However, subsequent thereto and before he went to the hospital and suffered his stroke on September 27th, Mr. Lunday moved his mobile home to the lands with the intention of making it his home. Mr. Lunday did not recover consciousness after his stroke which occurred shordy after he entered the hospital.
With reference to the transaction at Toeneboehn’s house, Bessie B. Lunday testified that she and Mr. Lun-day went to Toeneboehn’s house in an automobile driven by Mr. Lunday. She says that while there she saw Mr. Lunday sign the deed and a receipt for $5,000 which she saw Mr. Toeneboehn pay to Mr. Lunday. Thereafter, they went to the notary’s office where the deed was acknowledged. She also identified a number of checks signed by Mr. Lunday, some as late as June 24, 1970. After testifying that she saw Mr. Toeneboehn pay the $5,000 to Mr. Lunday and that she did not know what Mr. Lunday did with the money, the following occurred:
“THE COURT: Well, what did he do with it there in your presence:
A. I don’t know what happened, I still don’t know. He went into the hospital on a Monday and I still don’t know where the money went.
THE COURT: You were at the Toeneboehn’s home when the money was paid and the deed was made?
A. Yes, sir.
THE COURT: How did you travel to the Toene-boehn’s home?
A. How did we go there — in Charley Lunday’s car.
THE COURT: Who drove it?
A. He did.
THE COURT: Did you see whether he put it in his pocket or just what?
A. I don’t know what he did with it. I never seen it.
THE COURT: You never did see the money?
A. I never seen what he did with it.
THE COURT: Just tell the Court what you did see happen with reference to the money, who handed it to him?
A. Fred handed it to him.
THE COURT: Right there in your presence?
A. That is right.
The COURT: What did you see then happened to it?
A. I never seen anything happen to it.
THE COURT: Did he go around holding the money in his hands the rest of the day?
A. I don’t know.
THE COURT: You never did see — did you black out then?
A. I guess I did.
THE COURT: How did you get back home?
A. I went in the car.
THE COURT: Who drove it?
A. He did.
THE COURT: Did he have the money in his hands then?
A. I never seen what he had — what he did with the money.
THE COURT: You never did see what he did with the money?
A. No.”
With reference to her rights in the property after the conveyance to Toeneboehn the record shows the following:
“Q. Do you and Mr. Toeneboehn have some sort of an arrangement or agreement on this property?
A. Do we?
Q. Yes.
A. Well, not that I know of. He said it would be alright for me to stay there, have my trailer there.
Q. You don’t have any agreement with him concerning the lot or part of part of this property?
A. Well, he didn’t know for sure.
Q. Does it depend upon what happens, whether he gets the property?
A. That is right, I guess that is so. If he doesn’t get it, I don’t stay, I guess.
Q. But if he does get it, you get to stay there?
A. I think so.”
Fred Toeneboehn testified that he saw Charles Lun-day, Sr. sign the deed in his home; that they then went to the Kansas Savings and Loan where Mr. and Mrs. Lunday acknowledged the deed, and the receipt for the $5,000 was typed by a girl in the bank; and that upon the return to his home he paid the $5,000 in cash, and Mr. and Mrs. Lunday signed the receipt. Notwithstanding, that he says he paid $5,000 for the deed he testified that he only placed revenue stamps thereon for a $1,500 consideration.
James L. Lewis, a questioned document examiner, testified that after a comparison of the name signed to the deed and the receipt with acknowledged signatures of Mr. Lunday, the alleged signatures on the deed and receipt were a forgery.
Myra B. Gross, a Notary Public of Wyandotte County, in the State of Kansas, stated that she was not acquainted with Mr. and Mrs. Charles A. Lunday, Sr. prior to the time she took the acknowledgment. Her testimony as to what occurred at that time is as follows:
“On or about September 21, 1970, Mr. Kerr, President, Investors Mortgage Bankers, Inc. called me to his desk where Mr. Fred Toeneboehn was present, and I was introduced to Mr. and Mrs. Charles Lunday. Mr. Kerr informed me that the Lundays were selling a parcel of real estate to Mr. and Mrs. Fred Toeneboehn with a prepared deed bearing signatures of Charles Lunday, Sr. and Bessie Maze Lunday. Mr. Kerr advised the parties that the deed should not have been signed except in our presence and questioned each of the Lundays if their signature appearing on the deed was affixed by them and each of them stated that they had signed the deed. Upon their statement before Mr. Kerr, Mr. Toeneboehn, and me, that their signatures were genuine, the Notary Seal was affixed.’ ’
Robert S. Kerr, President, Investors Mortgage Bankers, Inc., Roeland Park, Kansas, after testifying that Toeneboehn had, before Sept. 21, 1970, consulted with him relative to the procedure for transferring title to property, stated that he was not acquainted with Mr. and Mrs. Charles A. Lunday, Sr. prior to the transaction. He then stated:
“On or about September 21, 1970, Mr. Toeneboehn and the Lundays appeared in my office and presented a deed to a parcel of land which was completed to the inclusion of signatures. Since signatures were already affixed, I called Mrs. Myra Gross, a Notary Public in my office, to my desk, and in her presence, asked the Lundays, individually, if the signature appearing on the deed was that placed there by each of them, and in both instances the reply was affirmative.
With both parties appearing to be in full awareness that they were transferring the title to property to the Toeneboehns and attesting to the genuineness of their signatures, the Notary Seal was affixed.”
Upon the testimony and the exhibits in the record we can only conclude that the signatures of Charles A. Lunday, Sr. to the deed and the receipt are a forgery. In fact it is rather obvious. The trial court intimated as much but seemed to think that appellants had not sustained their burden of proving that no consideration was paid and that the acknowledgment before the notary was a ratification of the signature. It was here that the chancellor fell into error. In the first place the notary only stated that Toeneboehn told her that the persons who acknowledged the deeds were Mr. and Mrs. Lunday. In the next place the learned chancellor failed to apply the law of fabricated evidence to the record before him.
It is pointed out by the authorities that the fabrication of evidence raises a strong presumption against those who have recourse to such practices. See Winchell, et al v. Edwards, et al, 57 Ill. 41 (1870), and Silva v. Northern California Power Co., 32 Cal. App. 139, 162 P. 412 (1916).
The credibility of both Toeneboehn and Mrs. Lunday is subject to suspicion since they testified positively that Mr. Lunday signed both the deed and the receipt, and a great preponderance of the evidence shows both instruments to be forgeries. Thus, when the record is considered under the fabrication of evidence rule, we find that a preponderance of the evidence shows that the deed should be set aside for forgery.
Reversed and remanded. | [
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George Rose Smith, Justice.
The appellant Hyde brought this foreclosure suit to enforce'promissory notes and a real estate mortgage executed in the 1950’s by Mrs. Katherine T. Edwards. As to. Mrs. Edwards (who died while the suit was pending below) the debt was barred by limitations. Hyde joined Mrs. Edwards’ son as a codefendant, asserting that he assumed liability for the debt, both orally and in writing. Edwards successfully moved for a summary judgment, disclaiming any legal responsibility for his mother’s obligation. Hyde appeals.
The summary judgment was based upon the pléad-ings and upon affidavits filed by both sides-. Hyde’s counsel, in contending that the chancellor erred as a matter of law, relies upon three separate actions taken by Edwards.
First: In 1966 Mrs. Edwards’ ownership of the mortgaged real estate prevented her from obtaining state welfare payments. According to the plaintiff’s affidavits, on June 2, 1967, Edwards orally agreed with Hyde’s attor,-ney that if that attorney would help Edwards obtáin welfare assistance for his mother, Edwards would assume and pay the debt. That oral agreement, stáhding alone, was barred by the three-year, statute of limitations when the summons against Edwards was issued in this case on May 30, 1972. Ark. Stat. Ann. § 37-206 (Repl. 1962).
Secondly: Pursuant to the plan to obtain welfare payments for Mrs. Edwards, she conveyed the mortgaged realty to her son on June 6, 1967, reserving a life estate. We are unable to agree with Hyde’s insistence that Mrs. Edwards’ deed amounted to a written assumption of the debt by her son. The conveyance was an ordinary warranty deed that made no mention whatever of the mortgage indebtedness. The situation is unlike that considered in Kenney v. Streeter, 88 Ark. 406, 114 S. W. 923 (1908), cited by Hyde. There the complaint asserted that Kenney in writing assumed the payment of the notes sued upon. While it was true that the deed to Kenney did not recite that he assumed the obligation, the court held that his failure to deny the allegation in the complaint justified the conclusion that he had assumed the debt by some other writing. In the case at bar there was no comparable failure by Edwards to deny the allegations of Hyde’s complaint.
Thirdly: Hyde, to avoid Edwards’ plea of limitations and the statute of frauds (Ark. Stat. Ann. § 38-101, subsection 2), relies upon certain correspondence between the parties. We do not find in the letters any such positive assumption of the debt as is required to satisfy the statute of frauds or to toll the statute of limitations. § 37-216. The letter most favorable to Hyde’s position was written by Edwards to Hyde’s attorney on September 8, 1967, and reads in part: “I plan to be back in El Dorado in November and hope to be able to make arrangements to take care of mortgage holders at that time and I would like to be able to have this welfare matter behind me at that time, if possible.” It will be seen that the letter falls far short of binding Edwards to pay the debt personally. The suggested arrangements might have entailed various other possibilities, such as the payment of the debt by Mrs. Edwards or by the sale of her property. The letter contains no statement that Edwards bound himself to pay the debt.
In a second point for reversal Hyde argues that the entry of a summary judgment was error, because the record discloses a genuine question of fact. That contention is based upon Edwards’ own affidavit. There Edwards stated that in late November, 1966, Hyde’s attorney telephoned him to say that some “token payment” on the debt had to be made at once to avoid foreclosure (as the statute was about to run). In answer to that demand Edwards sent a check for $10 directly to Hyde. Edwards’ accompanying letter reads in part: “Enclosed is our check for $10.00, in payment on the mortgage held by you, on my Mother’s property.” In his affidavit Edwards went on to say: “By forwarding this sum to Mr. Camp [Hyde’s attorney] I was simply complying with his request and in no means intended to assume the mortgage indebtedness of my mother.”
As we understand counsel’s argument, it is contended that Edwards’ statement that he did not intend to assume the mortgage indebtedness would not necessarily preclude the chancellor from finding as a fact that Edwards did so intend. That argument is unsound. Edwards’ affidavit established a prima facie basis for a summary judgment in his favor. The burden then shifted to Hyde, as plaintiff, to file a controverting affidavit. Since that was not done, the defendant was entitled to summary judgment. Epps v. Remmel, 237 Ark. 391, 373 S.W. 2d 141 (1963). Even though an interested party’s statement is not to be taken as undisputed, that rule does not mean that his denial of a fact amounts to proof that the fact exists. It is our conclusion from the record that the appellant simply allowed the statute of limitations to run before filing suit.
Affirmed.
Harris, C. J., dissents. | [
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Robert L. Brown, Justice.
Appellant State Farm Mutual Automobile Insurance Company appeals from a judgment assessing a twelve percent penalty and attorney’s fees against it for failure to pay $25,000 in underinsured motor vehicle coverage to Lindsay Thomas within the time specified in the policy under Ark. Code Ann. § 23-79-208 (Repl. 1992). We decline to reach the merits of this appeal due to the failure of State Farm to show compliance with Ark. R. Civ. P. 54(b).
According to the second amended complaint in this matter, appellees Steve Thomas and Carol Thomas brought suit individually and as parents and natural guardians of their daughters, Lindsay Thomas and Jennifer Thomas, against appellant State Farm, the estate of John Laughlin, and David Spears. The plaintiffs sued David Spears and the estate of John Laughlin for negligence and sought damages for personal injuries that arose out of a three-car traffic accident that occurred on March 29, 1991. Lindsay Thomas prayed for $285,000, according to counsel for appellees.
Steve Thomas settled his claim with the estate of John Laughlin. In addition, all four Thomases settled their claims with State Farm, although State Farm retained the right to appeal the issue of the penalty and attorney’s fees with regard to Lindsay Thomas. Lindsay Thomas also settled with the liability carriers for David Spears and the estate of John Laughlin. The record and abstract, however, are silent on the disposition of 1) the claim of Steve Thomas against David Spears; 2) the claims of Carol Thomas and Jennifer Thomas against David Spears and the estate of John Laughlin; and 3) any additional claims that Lindsay Thomas might have had against David Spears and the estate of John Laughlin, in addition to her settlement with their liability carriers.
In discussing the history of Lindsay Thomas’s claim for penalty and attorney’s fees, the appellees make a general statement in their brief that “[the] cases were settled June 10, 1992, the day before trial.” To support this statement reference is made to pages in the record, but the pages cited do not show disposition of the claims listed above. Nor is their disposition shown anywhere else in the record.
We, therefore, remain largely in the dark about the status of these remaining claims. The judgment appealed from awarded Lindsay Thomas the sum of $3,000 as penalty and $5,000 as attorney’s fees. The judgment also contained language that “this court retains jurisdiction for such further orders as may be necessary,” suggesting that there were other matters still to be resolved.
This court will only review final matters on appeal. Ark. R. App. P. 2(a). A judgment which adjudicates fewer than all of the claims of all of the parties does not terminate the action. Ark. R. Civ. P. 54(b). The failure to comply with Rule 54(b) by the absence of an order adjudicating the rights of all parties is a jurisdictional issue that we are obligated to raise on our own. Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992); Quality Ford, Inc. v. Faust, 307 Ark. 371, 820 S.W.2d 61 (1991). We have held in this regard that for an order to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. It is not enough to dismiss some of the parties; the order must cover all parties and all claims in order to be appealable. See Parks v. Hillhaven Nursing Home, 309 Ark. 373, 829 S.W.2d 419 (1992). The trial court may direct final judgment with regard to fewer than all of the claims or parties by an express determination that there is no just reason for delay. Ark. R. Civ. P. 54(b). When an appropriate certification is made by the trial court, we will consider the judgment final for purposes of appeal. See Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987).
In Smith v. Leonard, supra, we considered an appeal that had a complex procedural history, involving various interventions, cross-claims, counterclaims, and third-party claims. We dismissed the appeal without prejudice for failure to comply with Rule 54(b) because the omnibus decree appealed from did not dispose of six separate claims, and there was no indication in the record that those claims were otherwise concluded by the chancellor.
Similarly, in the present case the circuit court’s judgment respecting Lindsay Thomas’s entitlement to twelve percent interest and attorney’s fees under § 23-79-208 gives no indication of the disposition of several claims brought by the Thomases. Indeed, the record gives no hint of the overall status of the litigation pertaining to David Spears and the estate of John Laughlin, other than Thomas’s lone settlement with the Laughlin estate and Lindsay Thomas’s settlement with their liability carriers. The other claims may still be viable or they may have been disposed of. We simply have no way of knowing. Furthermore, the court’s judgment contains no Rule 54(b) certification for purposes of appeal.
The burden is on the appellant to bring a record before us that shows that all claims in this matter have been brought to conclusion, and that the circuit court’s judgment was final. That was not done in this instance. In one of the first decisions rendered by this court, we held that the record must disclose a final adjudication of the matter in controversy between the parties for this court to have jurisdiction. Campbell v. Sneed, 5 Ark. 398 (1843). Accordingly, we will not address the substantive issues and, instead, dismiss the appeal without prejudice due to noncompliance with Rule 54(b).
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Per Curiam.
The appellant, Barrie Register, was convicted of theft of property and criminal mischief in the first degree in the Circuit Court of Washington County, First Division on November 19,1991. He was sentenced to 30 years for the theft conviction and 10 years for the criminal mischief conviction. A motion for new trial based on ineffective assistance of counsel was filed on December 12, 1991, by attorney Barry J. Watkins. Attorney Bruce Trammel who had represented Register at trial withdrew as counsel.
On January 9, 1992, the motion for new trial was withdrawn and a notice of appeal filed by Watkins. The record was filed with the Supreme Court Clerk on June 23, 1992, and Register’s brief was due on August 24,1992, after two extensions were granted. The brief has not been tendered, and the State now moves to dismiss this appeal.
The motion to dismiss is denied at this time because there has been no showing that Register has abandoned his desire to appeal. Counsel is being directed by a separate Per Curiam order to appear on Monday, March 22, 1993, at 9:00 a.m. to show cause why he should not be held in contempt of court for failure to file a timely appellant’s brief. If information is adduced at that proceeding which indicates that Register desires an appeal and counsel cannot provide effective assistance of counsel on appeal, appropriate actions will then be considered.
Motion denied. | [
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George Rose Smiti-i, J.
This action in unlawful detainer was brought by the appellants to obtain possession of a house and lot in the city of Hot Springs. The complaint alleged that the principal defendant, Willie Mae Herpin, was occupying the property as a tenant and was wrongfully detaining it after notice to vacate. In her answer the defendant denied these allegations and pleaded that in 1936 she had agreed to buy the property from the plaintiffs’ predecessor in title, that the monthly payments under her written contract of purchase had been duly made, etc., with a prayer that the complaint be dismissed. , At the trial, the plaintiffs offered testimony to show that the contract of sale had been terminated in 1943 and that'thereafter the defendant had been merely a tenant. The defendant met this evidence with proof that the contract was still in force and that her monthly payments had been installments on the purchase price and not rent. The verdict and judgment were for the defendant.
The main arguments for reversal center upon the trial court’s action in permitting the defendant to jjrove he) own title in a suit in unlawful detainer. The appellants’ theory is that since this is merely a possessory action the appellee should not have been allowed to show that she had been making payments under an agreement to purchase. It is true that in this form of action the title is not in issue and cannot be given in evidence “ except to show the right to possession, and the extent thereof.” Ark. Stats. 1947, § 34-1519. Hence if the defendant admits his status as a tenant he cannot defend his possession by asserting title to the land. But this is far from saying that the defendant in unlawful detainer can never prove that he owns the land. The plaintiff, to make a prima facie case, must offer evidence that he rented the property to the defendant. If the defendant has denied the landlord-tenant relationship he is entitled to bolster liis denial by an attack on his adversary’s title. James v. McDuffy, 133 Ark. 599 (mem.), 202 S. W. 821. In fairness to the defendant the rule could not be otherwise. Suppose that the plaintiff’s testimony that he rented the land to the defendant is utterly false. Certainly the defendant ought not to be limited to taking the witness stand and making a bare denial of his opponent’s testimony. The strongest possible corroboration of the defendant’s contentions would be proof that he had owned the property for years, and that the plaintiff had no semblance of title. Hence we are of the view that the statute permits proof of ownership when the defendant, as here, denies the existence of the asserted tenancy.
The fallacy in the appellants’ argument lies in the failure to distinguish what the defendant may plead, and what he may prove. This distinction really goes back to the doctrine of res judicata. Ordinarily the binding effect of a judgment is determined by an examination of the pleadings as well as the judgment itself. Fawcett v. Rhyne, 187 Ark. 940, 63 S. W. 2d 349. Our statute explicitly provides that title is not to be adjudicated in unlawful detainer; the issue is merely the right to possession. But if the defendant were permitted to plead his title, and not merely to prove it, he would be in a position io contend later on tlmt a judgment in his favor amounted to an adjudication of his asserted title. That is what the statute is intended to prevent. Consequently it is the rule that the defendant in this action may deny the allegation that he rented the land, but if he attempts to amplify his pleading by asserting title in himself the latter allegation should be stricken. Washington v. Moore, 84 Ark. 220, 105 S. W. 253; Dunlap v. Moose, 98 Ark. 235, 135 S. W. 824.
In this way alone can the remedy be restricted to its proper scope as a possessory action. This form of action is meant to provide the landlord with a summary means of ousting a tenant who refuses to pay his rent. By making the lease the tenant recognizes his landlord’s title, and the latter ought not to be required to jeopardize his ownership whenever he seeks to repossess the land. If the alleged tenant really has a valid claim of ownership he may either defend the possessory action by proving his title, as we have seen, or he may bring a concurrent action to put the title in issue. Cortiania v. Franco, 212 Ark. 930, 208 S. W. 2d 436.
In the ease at bar the appellants moved to strike that part of the defendant’s answer by which she pleaded title under her contract of purchase. As a technical matter the trial court should have sustained this motion, lest the defendant convert a judgment in unlawful detainer into an adjudication of title. But the error is rendered harmless when we point out that this judgment is not ■res judicata of the issue of title. Williams v. Prioleau, 123 Ark. 156, 184 S. W. 847. The appellants, may still test that question by a suit in ejectment.
Other arguments for reversal are made, principally with reference to the admissibility of evidence, but we find them to be without merit. Affirmed. | [
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Steele Hays, Justice.
Appellant was charged with two counts of possession of a controlled substance with intent to deliver and one count of possession only. He was tried by a jury on July 17, 1979 and found guilty on all three counts. From that conviction he brings this appeal. We find no merit in the first two points raised, but there is merit in the third point and we reverse the case in part.
Appellant first argues that the search warrant used to seize the controlled substances was defective and the evidence should have been suppressed. He contends the search was in violation of A.R.Cr.P. 13.2 because it was conducted at 8:20 p.m. and with insufficient justification. Whether an encroachment of 20 minutes on the 8:00 p.m. time limit set by Rule 13.2 would amount to a substantial violation is questionable — see A.R.Cr.P. 16.2. But we need not reach that issue as the appellant failed to raise the argument before the trial court. Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977).
Appellant also claims the warrant was invalid because of the form of the affidavit. In the space provided for detailing the facts constituting probable cause, “see attachment” is typed in. On the attached sheet are the facts with the officer’s signature at the bottom. At the suppression hearing the judge who signed the warrant testified he read the affidavit and had the officer sign it and the attachment in his presence. He said this procedure was often followed when the form failed to provide enough space for all the information. We approved this procedure in Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981), in a similar situation, and said that where the information would not fit in the space provided, the statement was incorporated in a practical and common sense manner.
The appellant’s second argument relates to the instructions. He first contends that it was error not to give a requested instruction which read:
“Mere occupancy of a place where drugs are found does not establish possession of controlled substances without additional evidence of possession.”
The trial court refused the instruction because it was an incomplete statement of the law. We agree. The court gave the correct AMCI instruction on possession, but the appellant also contends that it erred by not including any instructions on actual and constructive possession. Following the possession instructions, the AMCI 3304 gives the definition of actual and constructive possession and notes that these instructions should be given when constructive possession is at issue. In the brief discussion of the proffered instructions, the issue of constructive possession was never directly discussed, and the record shows that at one ponit the prosecution said the state was not alleging constructive possession, to which the appellant made no reply. In addition, we stated in Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), a criminal case, that the parties are implicitly required to request an applicable AMI, or upon tendering a substitute instruction, to state into the record, the reasons they believe the AMI is inadequate or inaccurately states the law. This the appellant failed to do. For the reasons stated we find that the appellant has waived his objection to the instructions as they were given.
Appellant’s last argument challenges the sufficiency of the evidence. The facts reveal that on January 11, 1978, the police went to appellant’s residence with a search warrant. When they arrived his wife answered the door and told them appellant was across the street at his parents’ home. One of the officers went to get him while the others began the search. When the appellant arrived, the police had already found controlled substances and the appellant was arrested. He was searched incident to his arrest and a small vial of cocaine was found in his pocket. At the residence the police confiscated phentermine pills from a dresser in one of the bedrooms and from a suitcase in the hall. Marijuana was found on a tray in the living room, where appellant’s wife and others were present.
We have said that possession need not be actual, physical possession, but may be constructive, when one controls a substance or has the right to control it. Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of possession. See Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). However, we have also held that joint occupancy of premises alone will not be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession. See Cary v. State, supra; Ravellette v. State, 264 Ark. 344,571 S.W.2d 433 (1978).
There are two separate problems involved in establishing “exclusive control” of the premises in order to impute possession. The first is whether the accused is a sole or joint occupant, and the second is, if the accused is the sole occupant, does he have actual exclusive control of the premises.
The problem of joint occupancy arises because of the rule that when joint occupancy is the only evidence the state has, there must be some additional link between the accused and the contraband. On the other hand, if the state is proving a case through constructive possession of contrabnd by the occupant of a dwelling, it is not required in the first instance to disprove joint occupancy. If, however, evidence is presented that indicates joint occupancy and occupancy is the only evidence the state offers to prove possession, it must either provide the necessary link or prove the accused was in sole possession (but see further discussion below). For example, in Lee v. State, 270 Ark. 892, 608 S.W.2d 3 (1980), the state was establishing its case through constructive possession. The defendant presented evidence to establish joint occupancy but the state countered with other evidence to establish sole occupancy by the defendant and we upheld the sufficiency of the evidence on appeal.
If it is proved that the defendant is the sole occupant, or there is no evidence to indicate the defendant is a joint occupant, is that evidence alone sufficient to establish that he had exclusive control over the premises and, therefore, over the contraband?
It has been held in other jurisdictions, where one has exclusive possession of a dwelling where narcotics are found it may be inferred, even in the absence of other incriminating evidence, that such person knew of the presence of the narcotics and had control of them (see Davis v. State, 262 A.2d 578 [1970]), and such circumstances are sufficient to sustain a conviction. See People v. Nettles, 178 N.E.2d 361. While we agree that such evidence can be sufficient to sustain a conviction, we don’t agree that the rule will fit all cases. There may be other circumstances that detract from an inference of possession to the point the evidence becomes insufficient to establish control of the contraband.
In two somewhat similar cases, where the defendant was the occupant of the premises, but other individuals were present and in possession of contraband, the courts in each case found the defendant not in possession. People v. Sonabria, 423 N.Y.S.2d 223 (1979) and People v. Schrieber, 310 N.Y.S.2d 551 (1970). In Sonabria, a sale of heroin had taken place in the defendant’s kitchen just a few feet away from her. The court stated “the record is barren of any evidence tending to establish that the defendant exercised, or that she could have exercised, any dominion or control over the narcotics in any manner... although the sale occurred in her apartment she did not and could not have exercised that dominion and control over the narcotics necessary to establish a constructive possession.” In Schreiber a “pot” party was being held at appellant’s apartment. At the time the police arrived, the appellant was not present, and a search turned up controlled substances throughout the apartment. There was testimony that a sub-tenant was sleeping there and that the appellant had ceased to live in the apartment for at least a week. But there were enough of the appellant’s belongings there to warrant the conclusion that the premises were still the appellant’s, and it was also clear that the appellant had consented to the party. There was additional evidence that the door was usually open, that several persons who had in the past used marijuana were in the apartment on the night of the raid, and that people came in to use or borrow paints and artist’s supplies. The court stated that control of the premises gave rise to the inference of unlawful possession and acknowledged that mere access by other persons was insufficient to defeat a charge of constructive possession. But under the facts in Schrieber the court found the evidence insufficient on the issue of control.
Here, we are faced with both aspects affecting the defendant’s exclusive control of the premises, i.e. the evidence suggesting joint occupancy and the evidence suggesting lack of actual control of the premises. The only evidence the state presented on the issue of possession of the controlled substance was the stipulation the appellant resided at the premises, plus the cocaine found on his person. But there are other circumstances that raise questions as to the defendant’s control of the premises and its contents. There were four people present when the police arrived, though not the appellant. Although there was no specific testimony appellant’s wife lived there, it seems reasonable to assume she shared the residence with her husband.
Some of the pills were found in a bedroom, but there was no testimony as to whose bedroom it was, whose belongings were there or whether both bedrooms were regularly used. Other pills were found in a suitcase in the hall, which only adds to the speculation. We are told nothing about it except that it was in the hall. The record gives us no basis for rational inferences. The marijuana was on a tray in the living room near the four individuals but how long they had been there or how long the appellant had been gone, we aren’t told. We know only that appellant was not there when the police arrived.
Looking at the evidente in its entirety and most favorably to the appellee, it fails to indicate exclusive control of the premises in either sense of the term, or to indicate the right to control the contents therein by the defendant; hence, we are left with unresolved doubts. The only evidence the state presented was the stipulation that the home was the appellant’s residence. There is no other evidence that points with any certainty to appellant’s control. It is our duty upon review to view the evidence in the light most favorable to the appellee, and affirm if there is substantial evidence to support the finding of the jury. Substantial evidence means that the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassel v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). For the reasons discussed, we find that only speculation and conjecture could have sustained a conviction for the possession with intent to deliver on counts 2 and 3 for the marijuana and phentermine and therefore we must reverse the convictions for both counts. The judgment with respect to the charge of cocaine is affirmed. | [
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John I. Purtle, Justice.
The appellant and his wife filed a petition in the Franklin County Chancery Court to quiet title to the mineral interest in certain lands in Franklin County, Arkansas. The appellant only appeals from the order of the chancellor dismissing the petition and awarding the appellee (widow) the right to receive all proceeds from the mineral leases, rentals and royalties from oil and gas development and production upon the real estate here in question. The appellant argues that the trial court erred in dismissing his complaint and in finding that the appellee is entitled to the proceeds of the mineral production during her lifetime. The chancellor’s order is affirmed.
On January 1, 1960, the appellant and his wife, Verna, entered into an agreement with V.F. Metcalf and Cora Metcalf, the parents of Verna Metcalf, for the purchase of 160 acres of land, consisting of two tracts: a 120 acre tract and a 40 acre tract. The contract was not filed of record until October 14,1968. The contract provided that at the end of ten years the deed would be delivered to the appellant. Pursuant to the terms of the contract, the grantors, V.F. Metcalf and Cora Metcalf, executed a deed on January 5, 1960, and placed it with the contract. The contract contained a clause stating that the royalties and other payments would be payable to the grantors. However, there was no reservation of any kind in the deed which was attached to the contract but never delivered. On January 24,1968, Cora Metcalf died. On October 7, 1968, V.F. Metcalf married Oma Metcalf, the appellee.
On December 2, 1969, Oma Metcalf and V.F. Metcalf executed a deed to the property to Verna Haynes. This deed contained a reservation of the royalties and mineral rights so long as either of the grantors lived. Verna Haynes accepted this deed and, shortly thereafter, deeded the property to herself and her husband, Herman Haynes. This deed recited the reservation of a life estate in the mineral rights in Orna and V.F. Metcalf. On October 12, 1984, V.F. Metcalf died. After his death, the appellant commenced receiving the royalties from the 120 acre tract. Subsequent to the execution of the contract of sale, the 40 acres became productive and the lessee, who is not the same lessee as the one of the first tract, refused to make payments because of the reservation in the deed from Orna and V.F. Metcalf to Verna Haynes. On November 3, 1986, Herman Haynes and Verna Haynes filed suit to quiet title to the mineral rights to the 40 acre tract in themselves.
There is no dispute that the contract of sale was entered into on January 1, 1960, that the appellee and her husband subsequently executed a second deed dated December 2,1969, and that this deed contained a reservation of the mineral royalties and interests so long as either of the grantors lived. Since all parties agree that Cora Metcalf and V.F. Metcalf had attempted to reserve the right to the royalties during their lifetime, no argument arose so long as either of the sellers in the contract of sale lived.
The appellant correctly states the general rule that property cannot be conveyed by reservation and that an exception or reservation in favor of a stranger to the deed is void except to confirm a right which the stranger already had. Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959). We also agree with the appellant that the purchasers in an executory contract become the equitable owners of the property purchased. Corcorren v. Sharum, 141 Ark. 572, 217 S.W. 803 (1920). The question here is not whether Oma Metcalf was the equitable owner or owned an interest in the property on her own right but instead whether the deed executed by the appellee and her husband and received by the appellant entitled her to receive the proceeds from the mineral production during her lifetime.
For affirmance the appellee relies on Mills v. Deniston, 227 Ark. 463, 299 S.W.2d 195 (1957), which holds that in the construction of a deed, all prior negotiations must be taken as merged in that instrument. Had there been a difference in the purchase agreement and the original deed we would consider the merger doctrine. However, we are here concerned with a deed which was no part of the original transaction. Therefore, the doctrine of merger does not apply to the facts in this case.
The appellee also cites several cases from other jurisdictions holding that, although an estate may not be reserved in favor of a stranger, there is an exception to the general rule when the reservation is in favor of the spouse of a grantor. In Saunders v. Saunders, 26 N.E.2d 126 (Ill. 1940), the Illinois Supreme Court noted a distinction between a reservation in a deed in favor of a grantor and his spouse and one in which the grantor reserves an interest to a third person who has no present interest in the property conveyed. The court recognized that a spouse has such a present interest in the property by way of homestead or dower and that the combined interest of husband and wife in the property is sufficient to support the reservation of a life estate to either or both of them through their joint execution of a deed which relinquishes all other rights. To the same effect see Derham v. Hovey, 116 N.W. 883 (Mich. 1917).
Another case which very strongly favors the exception to the general rule is Krug v. Reissig, 488 P.2d 150 (Wyo. 1971). Krug held that the weight of authority favors a life estate in a non-owner surviving spouse when both the husband and wife join in the execution of a deed and reserve a life estate in themselves. The Supreme Court of South Carolina has also recognized that the rule against a reservation in favor of a stranger is indeed the general rule, but that the grantor and spouse may reserve a life estate when the conveyance is from a husband and wife and either or both of them owned an interest in the property at the time of the conveyance. Glasgow v. Glasgow, 70 S.E. 2d 432 (S.C. 1952).
It is not necessary to reach the exception to the general rule concerning reservations in favor of strangers in this case. The 1969 deed was in the possession of the appellant from its delivery until 1986, when the present lawsuit was commenced. For sixteen years the appellant apparently made no objection to the reservation executed by V.F. Metcalf and his wife, Oma Metcalf. After V.F. Metcalfs death, the appellant received the royalties from the 120 acre tract. Herman Haynes tried several times to get Oma Metcalf to sign a distribution agreement or a quit claim deed to the mineral interest in the 40 acre tract. She refused to do so and only when she was taken to court did she claim any interest in the minerals.
After this period of time the appellant is estopped from changing the terms of the deed from Orna and V.F. Metcalf.
Estoppel by deed is a bar which precludes one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed, or from denying the truth of any material facts asserted.
28 Am Jur 2d, Estoppel and Waiver, Estoppel 11, sec. 4.
Estoppel by deed has long been recognized by this court. In the case of Vaughn v. Dossett, 219 Ark. 505, 243 S.W.2d 565 (1951), this court applied the doctrine and estopped the grantee, who was a subsequent grantor, from changing the terms of a previous deed and mortgage when he knew he was attempting to act in derogation of the previous deed. Equitable estoppel arises upon facts which render its application and protection equitable and just. Moorehead v. Universal C.I.T., 230 Ark. 896, 327 S.W.2d 385 (1959). After reviewing the decree de novo in this court we find that the decree of the chancellor should be upheld.
Affirmed.
Glaze, J., concurs. | [
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Robert H. Dudley, Justice.
This case requires us to construe statutes that relate to the ownership of a stolen car. On May 11,1990, Connie and Shirley Aday of Russellville sold their jointly owned 1976 Cadillac automobile to Car Brokers, who, in turn, sold the car to M.C. Wins, a used car dealer. Wins testified that he paid $2,400.00 for the car and took an open title. He explained that this meant Car Brokers signed the certificate of title as the seller but did not list Wins as the buyer. Instead, the space for the name of the buyer recited “first re-assignment by licensed dealer only.” Wins testified that he did not register the transfer of ownership with the Commissioner of Revenues of the Department of Finance and Administration because a registered car dealer is not required to do so. Wins parked the car on his used car lot located on West Roosevelt Road in Little Rock, where he and a partner do business under the name of Nelson Auto Sales. The car was stolen from the lot on May 18, 1990, and Wins’s partner immediately notified the Little Rock Police Department. The police department prepared an information report on the stolen car.
The Little Rock Police Department recovered the car the next day, May 19, but Wins was not notified. The police called Routh Wrecker Service, Inc. and had that company tow the car to a secure area and impound it. The City of Little Rock and Routh Wrecker have a contract under which Routh Wrecker performs such services. The Little Rock Police Department apparently overlooked its information report because it only informed Routh Wrecker that Connie and Shirley Aday were the registered owners of the car. Routh Wrecker asked the Arkansas State Police whether the car was stolen, but that agency responded that it did not have a report of the car being stolen. Routh Wrecker sent a notice to the Adays that the car had been recovered and they could redeem it by paying the towing and storage charges authorized under Ark. Code Ann. § 27-50-1101 (Supp. 1991). The Adays did not redeem the car and notice of a proposed sale of the car to pay the charges was sent to the Adays. A notice of sale was published on August 3 and 17, 1990.
John Ranson, doing business as the Red Oak Auto Clinic, purchased the car at a public auction for $1,650.00. On January 2,1991, the Commissioner of Revenues issued a certificate of title reflecting the Red Oak Auto Clinic as owner of the car.
Some months later, Wins was sitting in his office on West Roosevelt Road and saw a car that looked like the stolen car being driven into the McDonalds restaurant next door. Wins still had the keys to the car. He took the keys and walked over to the car. The keys fit the door lock, and he unlocked the door. He then tried the ignition key, but it would not work. He went inside the restaurant and asked who owned the car outside. A lady said it was hers. Wins called the police. The lady was allowed to drive the car away.
Wins filed this suit for replevin. The trial court ruled that Wins was entitled to possession of the car. Routh Wrecker Service, Inc. and John Ranson, doing business as Red Oak Auto Clinic, appeal. The ruling of the trial court was correct and, accordingly, we affirm.
At common law our general rule was that title to stolen property remains in its rightful owner. In Superior Iron Works v. McMillan, 235 Ark. 207, 357 S.W.2d 524 (1962), we said this common law rule is now embodied in Ark. Code Ann. §16-80-103 (a) (1987), which provides: “All property obtained by larceny, robbery, or burglary shall be restored to the owner and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to the property.”
Appellants, Routh Wrecker and John Ranson, contend that Ark. Code Ann. § § 27-50-1101 to -1103 and 27-50-1201 to -1210 (Supp. 1991) have implicitly amended the common law rule now embodied in Ark. Code Ann. § 16-80-103.
The first of the two above cited statutes, which appellants contend have implicitly amended our statutory law, is Ark. Code Ann. § 27-50-1101. It provides that when a car is found abandoned on public property, a towing-storage firm may be requested to take possession of and store the abandoned car. After so doing, the towing-storage firm shall notify the last known registered owner that he or she may claim the car by paying all towing and storage charges. If the owner does not reclaim the car, the towing-storage firm may sell the car at public auction, deduct its charges, and, if the owner is not located, pay the remainder over to the State Highway and Transportation Department. The second of these statutes, Ark. Code Ann. § 27-50-1201, is similar in the material part, but adds that the towing-storage firm that removes an abandoned vehicle pursuant to a contract with a law enforcement agency, obtains a possessory lien on the car, and may foreclose that lien and the successful bidder at the foreclosure sale may obtain title to the car. This act provides that an “abandoned” car is one that is left unattended and “io which the owner has overtly manifested some intention not to retake possession.” Ark. Code Ann. § 27-50-1202(b)(l) (emphasis added).
A maxim of statutory construction is that implied repeals of statutes are not favored. Arnold v. City of Jonesboro, 227 Ark. 832, 302 S.W.2d 91 (1957). The General Assembly will not be held to have changed a law that it did not have under consideration unless the terms of the subsequent act are so inconsistent with the prior law that the two cannot stand together. Id. Here, the acts are not so inconsistent they cannot stand together. The prior act, Ark. Code Ann. § 16-89-103(a), provides that title to stolen property remains in its lawful owner. The subsequent acts, Ark. Code Ann. §§ 27-50-1101 to -1103 and 27-50-1201 to -1210, provide that an owner shall be liable for the towing and storage for an abandoned car, and the second of these acts provides that an abandoned car is one that is left unattended and to which the owner has overtly manifested an intention not to retake. Thus, there is no repugnancy so great that both the prior and subsequent acts cannot stand together. The prior act can be given effect where an automobile is stolen from the owner, and the subsequent acts can be given effect when the vehicle is abandoned by the owner.
In addition, while the title of an act is not part of the law, it may be referred to in order to help ascertain the intent of the General Assembly. Lyon v. White River-Grand Prairie Irrigation Dist., 281 Ark. 286, 664 S.W.2d 441 (1984). Here, the title to one of the subsequent acts, Ark. Code Ann. § 27-50-1101, states that it is to “Provide an Alternative Method for Property Owners to Dispose of Abandoned Vehicles. . . .” The title to the other subsequent act, Ark. Code Ann. §27-50-1201, states that it is to “Provide for the Removal of Unattended and Abandoned Vehicles. . . .” Both titles provide that the subsequent acts are to allow property owners to remove abandoned vehicles from their property.
Under our common law and under the express language of one of the subsequent statutes, abandonment requires a manifest act which expresses the intent of the owner to forsake his or her property. Property is abandoned when it has been thrown away, or its possession voluntarily forsaken by the owner. Eads v. Brazelton, 22 Ark. 499 (1861). In sum, the prior statute provides that title to stolen property remains in the lawful owner, and the subsequent statutes provide that an owner may lose title to his automobile by abandoning it. The statutes are not necessarily repugnant. Thus, on the argument presented, the trial court correctly ruled that appellee Wins had not lost title and was entitled to an order of replevin.
Affirmed. | [
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Mehaeey, J.
On March 20,1928, J. A. Stewart filed the following claim in the county court of Madison County:
“March 20, 1928.
“'County of Madison to J. A. Stewart, Dr., to right-of-way through J. A. Stewart’s farm $200.”
Affidavit to claim was made by H. J. Brashears. On the 15th of October, 1929, the court allowed the claim in the sum of $'25. The order allowing- the claim in the sum of $25 recited that J. A. Stewart had died, that no administration on his estate was pending, and that Mrs. E. J. Glass, Mrs. Mollie Goodwin, Mrs. Mattie Brashears and J. C. Stewart are his children and only heirs at law, and that Mrs. Catherine Stewart is his widow; that the widow is entitled to one-third of the amount allowed, and that each of said heirs is entitled to one-fourth of the balance, and ordered warrants drawn to pay them. An appeal was taken to the circuit court by the widow and heirs on February 17, 1930. Kelly Brashears on March 20,19'2i3, filed claim in the county court for $125 for right-of-way and $60 for posts, making- a total of his claim $185. The court allowed Brashears ’ claim in the sum of $25. Brashears on March 3,1930, filed affidavit for appeal to circuit court. In circuit court on March 3, 1930, Brashears filed an amended account claiming $500 instead of $185. On the same day the county filed a motion to strike the amended claim, which motion was by the court overruled, and the county excepted. On March 3, 1930, the heirs and widow of J. A. Stewart, deceased, filed an amended claim for $1,000 instead of $200. Motion to ‘strike amended claim was made, overruled and exceptions noted. After a motion by the .county for continuance and motion to make the contractor a party had been filed and overruled, the cases were consolidated, and Frank Nance was appointed special administrator of the estate of J. A. Stewart, deceased. The parties announced ready for trial, a jury was selected, and, after hearing the evidence, returned a verdict in favor of Kelly Brashears for $125 and in favor of Frank Nance, special administrator, in the sum of $500. Judgments were entered for the amounts, and the case is here on appeal.
The undisputed evidence shows that the property of appellees was taken for public use, and the court was therefore correct in instructing the jury to find for the plaintiff in some amount. The 'Constitution provides: “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without compensation therefor.” Article '2, § 22, Constitution.
The fact that the county did not have the money to pay for property was immaterial. If it could not pay for appellees’ property, it could not take it. Independence County v. Lester, 173 Ark. 796, 293 S. W. 743.
Appellants contend that the heirs of J. A. Stewart could not prosecute the appeal. J. A. Stewart had been dead more than a year when the appeal was taken, and there was no administration.
“When all the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, and to manage, control and dispose of such estate without any administration being had thereon in all cases where the creditors of such estate consent or agree for them to do so, or where they have paid or satisfied all valid debts and demands against such intestate, or where such intestate was, at the time of his death, under no legal liability, either matured or incipient to any person; and in every such case after they have taken such control and management of the estate no letter of administration shall be granted thereon, or, if granted, the same shall, on their application, be revoked.” Section 1, C. & M. Digest.
The heirs had the right to sue, and it was unnecessary to appoint a special administrator. It was lawful however for the court to make the appointment. C. & M. Digest, § 1050. It is insisted that the court erred in overruling appellant’s motion to strike the amendments to claims. The Constitution provides (article 7, § 28):
“The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall he held by one judge, except in cases otherwise herein provided.”
'Section 51 of article 7 of the Constitution provides for appeals from the county court to the circuit court, and provides that the case shall be tried in the circuit court de novo.
Since under the Constitution the county court had exclusive original jurisdiction, the circuit court could only try the same cause that was tried in the county court. “The county court has exclusive original jurisdiction. The circuit court can try a case of this kind; has jurisdiction to do so only when it is appealed from the county court. To permit an amendment substituting a party in the circuit court in this case would be permitting the circuit court to exercise original jurisdiction, and that it cannot do.” McLain v. Miller County, 180 Ark. 828, 23 S. W. (2d) 264 ; Flynn v. Driscoll, 38 Idaho 545, 34 A. L. R. 352 ; Ex parte Morales, (Tex. Civ. App.) 53 S. W. 107.
The 'Constitution provides that appeals may be taken from the county court to the circuit court, and that cases so appealed shall be tried in the circuit court de novo. “The statute says that upon an appeal the case shall be tried de novo in the appellate court. That is, as I understand it, in the same -manner, with the same effect, and upon the issues tried in the court below. It would seem that the correct doctrine is stated by the Texas Court of Appeals in Ex parte Morales, 53 S. W. 107, wherein the court held that a trial “de novo” on appeal requires that appeals be tried upon the original papers and upon the same issues had below. It is axiomatic that a cause or an issue cannot be tried de novo that has never been tried. * * # The very expression “appellate jurisdiction” refutes and contradicts any idea of filing new pleadings and framing and settling issues in a court of such jurisdiction. The amendments of pleadings and filing new pleadings and joining issues suggest at once to the practitioner a court of “original jurisdiction” as the forum in which such practice and procedure is taking place.” In re McVay’s Estate, 14 Idaho 56, 93 P. 28 ; Parker v. Lewis, 45 Okla. 807, 147 P. 310 ; Kline v. Shoup, 38 Idaho 45, 220 P. 452. The court erred in refusing to strike the amendments.
Appellant contends that the court erred in permitting Kelly Brashears to testify for his wife. Our statute provides that husband and wife shall be incompetent to testify for or against each other except either may testify for the other in regard to any business transacted by one for the other in the capacity of agent. C. & M. Digest, § 4146.
There are other questions discussed by the parties, but they will probably not arise in another trial, and we deem it unnecessary to discuss them here. As stated by appellees, the only issue is as to the amount the parties were damaged by the taking of their property. For the errors mentioned, the judgment will be reversed, and the cause remanded for a new trial. It is so ordered. | [
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David Newbern, Justice.
The appellees, Gus and Martha Schmidle, alleged their neighbors, the appellants Gerold and Bonnie Cowan, allowed their holding pond for chicken litter to overflow causing harm to the Schmidles’ property. The Cowans filed a number of defensive motions, such as for dismissal pursuant to Ark. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted and for summary judgment on the Schmidles’ compensatory and punitive damages claims.
The Schmidles ultimately took a voluntary nonsuit pursuant to Ark. R. Civ. P.41 (a), yet the Cowans appeal asserting errors in various rulings of the Trial Court. The Schmidles have cross-appealed seeking an attorney’s fee resulting from the Cowans’ appeal which the Schmidles contend is frivolous. We hold the Cowans have no standing to appeal from rulings of the Trial Court having to do with the merits of their claim because at this point the litigation has been resolved in their favor. We do, however, address the Cowans’ claims for statutory and rule- authorized sanctions. Additionally, we hold the Schmidles are not entitled to an attorney’s fee because the statute they cite as authority does not authorize such a fee on appeal.
1. The merits
It is not shown by the record in this case, but the Schmidles assert in their brief that they have refiled their claim and thus the litigation continues. The Cowans do not dispute that statement in their reply brief. When we are convinced that an appellant pursues an unauthorized interlocutory appeal, we dismiss it. Ratzlaff v. Franz Foods of Arkansas, 255 Ark. 373, 500 S.W.2d 379 (1973).
The record shows this case has been resolved in favor of the Cowans as a result of the Schmidles’ voluntary nonsuit. While rulings on the merits may ultimately be appealable if there is a judgment against the Cowans, as of now the Cowans have prevailed and have no standing to appeal. There has been no decision prejudicial to them on the merits of their claim. See Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993). We dismiss that portion of the appeal having to do with the merits of the case.
2. Trial sanctions
We must, however, address the Cowans’ assertion that the Trial Court erred in refusing to award sanctions. That aspect of the case has been decided against them. While it could be revisited in the Trial Court, there is no guarantee that the Schmidles will pursue their claim to judgment. Refusal by us to address the sanctions sought and denied at this juncture could result in denial of the Cowans’ right to appeal.
Mr. Cowan admitted in deposition testimony that his pond had overflowed but said it was because he was hospitalized at the time, implying that he had not intentionally allowed it to get too full. In his deposition testimony Mr. Schmidle said the pond had overflowed in 1985 and 1988 and that he once spoke to Mr. Cowan who was apologetic prior to the 1991 incident which formed the basis of the Schmidles’ claim.
To obtain an attorney’s fee pursuant to Ark. Code Ann. § 16-22-309(a)(l) (Supp. 1991), a prevailing party must show there was “a complete absence of a justifiable issue of either law or fact raised by the losing party or his attorney. . . .” To obtain an attorney’s fee or other sanction pursuant to Ark. R. Civ. P. 11, it must be shown that an attorney or party signed a pleading not ground in fact, not warranted by existing law or a good faith argument for a change in the law, or filed for an improper purpose. State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989).
Mr. Schmidle testified in his deposition that the polluting overflow had occurred on three occasions, the latest of which occurred after he had complained of it. He said he had seen pumps at the Cowans’ pond he believed to have been used to discharge the liquid litter onto a pasture from which it flowed to his land.
We cannot say the Trial Court erred in refusing to apply these laws with respect to the compensatory or punitive damages claim. The Trial Court neither abused his discretion, Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988), reh. denied 297 Ark. 280-A, 763 S.W.2d 656 (1988), nor made a clearly erroneous factual determination in the application of Rule 11. Smith v. MRCC Partnership, 302 Ark. 547, 792 S.W.2d 301 (1990). See also Ward v. Dapper Dan Cleaners and Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992); Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 843 (1992); Brattonv. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989).
3. Appeal sanctions
In their cross-appeal, the Schmidles contend they are entitled to an attorney’s fee pursuant to § 16-22-309(a)(l). They sought no such award in the Trial Court and are asking for the fee on appeal. A reading of the statute, particularly subsection (c), makes it clear that it applies in trial rather than appellate courts and thus furnishes no authority for the Schmidles’ request.
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Steele Hays, Justice.
In the aftermath of Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), attorneys Blair Arnold and Tom Allen petitioned the Circuit Court of Independence County for fees and expenses incurred in the defense of Susan Jernigan. Arnold and Allen had been appointed over their objection to represent Mrs. Jernigan in connection with a capital felony murder charge involving the death of her husband. In the course of that representation Arnold and Allen declined to proceed further, maintaining that they could not render effective assistance because of the limitation on out-of-pocket expenses and fees mandated under Ark. Code Ann. § 16-92-108 (1987). They were found to be in contempt. They appealed to this court, challenging the constitutionality of § 16-92-108 and in a landmark decision this court struck down the cap on fees and expenses as applied in that case. See Arnold v. Kemp, supra.
On remand, the Independence Circuit Court conducted a hearing and determined that Arnold was entitled to $31,437.32 and Allen $42,143.67. The trial court ruled Independence County was primarily responsible for payment but the state was liable for reimbursement for all sums in excess of $7,798, as provided in Ark. Code Ann. § 16-91-109 (1987). The trial court rejected the argument of the state that it should have no liability to the county because of an exemption in Ark. Code Ann. § 14-20-102 (Supp. 1991). The state has appealed and Arnold and Allen have cross appealed. The Arkansas Bar Association and the Arkansas Trial Lawyers Association have filed a brief amici curiae in support of the cross appeal. For reasons to be discussed, we affirm the order on direct appeal as well as on cross appeal.
Direct Appeal
The state’s single point of error is that the trial court erred by interpreting Ark. Code Ann. § 14-20-102 (Supp. 1991) as having no effect upon the liability of the state for the payment of fees to attorneys to represent indigent defendants in criminal cases.
Section 14-20-102 authorizes any county to create a fund for the defense of indigent persons and to levy fees and make appropriations as needed for that purpose. Because Independence County established an indigent defense fund, the state contends it is not responsible for payment of any of the fees and expenses allowed by the trial court in this case, relying on subdivision (c) of § 14-20-102, which reads:
(c) The provisions of § 16-92-108 and other laws relating to the amount of attorney fees and costs that may be paid in the defense of indigents charged with criminal offenses and in the defense of persons against whom involuntary commitment proceedings are sought for insanity or alcoholism shall not be applicable in any county in which the quorum court establishes a fund under this section and levies additional costs or fees to finance such fund.
The circuit court, however, interpreted § 14-20-102(c) as previously allowing a county which had enacted an indigent defense fund to disregard the existing fee-cap and pay a public defender a larger fee, prompting the county to appoint a public defender, and presumably, encouraging attorneys to accept such positions. The state insists that interpretation is too narrow, that a reading of the full statute makes clear that regardless of whether a public defender has been established, an indigent defense fund may be used in any county to pay the fees of court appointed counsel.
We need not address the state’s argument, other than to point out that the answer was provided in State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993), a plurality opinion delivered after the state’s brief was filed in this case. In Post, Ark. Code Ann. § 16-92-108 (1987) was held to be invalid with the following commentary:
This leaves us with no provisions requiring the county to pay defense attorney fees of counsel appointed to defend indigent defendants. . . . Payment of fees to attorneys representing indigents is a responsibility of the state which the legislature had delegated to the counties by statute. Since there is no statute delegating this duty to Independence County, the state is responsible for payment of [defense counsel’s] fees and expenses.
Post at 520-521.
While that holding emanated from a sharply divided court, it nonetheless resolves the issue now raised and requires that we affirm the trial court.
Cross Appeal
By cross appeal Arnold and Allen contend that the amounts awarded for their services to Susan Jernigan were erroneous under the facts of this case and laws of this state. They urge that the trial court erred by considering a lawyer’s obligation to provide pro bono services as a factor in setting the fees. The brief of the amici curiae advances the argument that the proper measure of compensation for attorneys ordered by the courts to represent indigent defendants is the fair market value of their services. The amici brief urges that “just compensation” means “full compensation.” Arkansas State Highway Commission v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953).
The record reflects that in the representation of Mrs. Jernigan, Allen expended 850 hours and Arnold 616.25. Allen’s annual gross receipts for the year 1991 were $63,000 less than the average for the three previous years and Arnold’s $52,000 less than the average for the two previous years. Allen customarily charges an hourly fee ranging between $75 and $100 per hour. After hearing testimony from Allen and Arnold describing the impact of the Jernigan matter on their practice, the trial court heard testimony from several attorneys with a wide range of experience in criminal cases. William R. Wilson, Jr. testified he would not have taken the Jernigan case on an hourly rate, he would have charged a fee of $80,000. Bill W. Bristow testified that if he were taking the Jernigan case on a flat fee basis and the person had very little money he would want a $30,000 fee and $10,000 to $15,000 to hire experts and would bill more if the hours exceeded a certain amount. Phillip Farris testified he would not consider taking Mrs. Jernigan’s case for less than $25,000 attorney’s fee and $7,500 for experts, with another $10,000 if the case went to trial, explaining that he would charge a fee of $25,000 if the case were plea bargained and $35,000 if the case were tried. Roy Thomas testified concerning his experience in several criminal cases, that he spent a minimum of 300 to 400 hours preparing for trial in a capital murder case in Stone County at a probable cost of $25,000 based on overhead and lost income. He estimated “$2,000 to $3,000 of time invested in them even if they don’t go to trial.”
Gary Vinson testified he would want a fee of $25,000, conservatively, to defend Mrs. Jernigan, which was low because of her lack of funds, plus $5,000 to $10,000 for experts. John Norman Harkey said $10,000 to $15,000 would be required for experts and investigators and to properly prepare the Jernigan case for trial would require 400 plus hours. He would charge a flat fee of $35,000 to defend the Jernigan case.
In making the allowances of $31,437.32 to Arnold and $42,143.67 to Allen, the trial court considered the following factors: the reputation of Messrs. Arnold and Allen in the community, their known abilities, the local fee rate of “roughly” $ 100 per hour, what the initial charge might be for representation in a similar case, that the amount awarded would not fully compensate them, that it would be difficult, if not impossible, to determine what part of the investment in time was attributable to the defense of Mrs. Jernigan and what part was attributable to bringing to a head the issue of attorney fees for indigents and pioneering the way for other lawyers in the state; that lawyers within a community do have a certain amount of responsibility to the community and their profession to provide pro bono services.
We regard all those factors, and others that will doubtless emerge with time, as pertinent and material constructs in the determination of an appropriate fee for court appointed counsel. Others that come to mind include whether the lawyer’s efforts are essential and necessary to the defense. Time spent on theories that are unfounded in fact or law, or those which have been repeatedly rejected by appellate courts, are presumptively noncompensable, absent special circumstances. We recognize at the same time that our system abets claims of ineffective assistance against even the most conscientious practitioner so that counsel are constrained to develop a record with one eye on self defense and the other on client defense.
Appellees and amici point to language in the Arnold majority opinion that the time and services of an attorney are property within Fifth Amendment protection, the taking of which is subject to just compensation. Certainly, the rationale of the majority opinion was clearly based on Due Process and Equal Protection foundations, but nothing in the opinion suggests that Arnold v. Kemp intended to substitute one extreme for another, that is, a statutory system that effectively confiscated a lawyer’s time and talent for a token consideration in exchange for one in which lawyers are compensated at a level commensurate with the prevailing charges to private clients. Indeed, the majority opinion in Arnold makes that explicit:
In awarding fees to Messrs. Arnold and Allen for reasonably expended services, we do not mean that the trial court must simply award fees based on their customary hourly charges or fixed fees for services in criminal cases of this nature. To the contrary, the trial court should determine fees that are considered “just.” In Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W. 2d 717 (1990), we recognized various factors to be considered by a trial court in making its decision, on an award of attorneys’ fees, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer. [Our emphasis.]
Arnold, supra at 304-305.
The criteria mentioned in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), are familiar components for fee setting which the Arnold majority labelled “instructive” and to be “conservatively applied.” (Our emphasis.) In addition to those mentioned, Chrisco recognized that there is no fixed formula for computing attorney’s fees and deferred to the superior perspective of the trial judge to weigh and apply those factors based on an intimate familiarity with the proceedings and with the quality of the services rendered, concluding that the discretion of the trial judge is not to be disturbed on appeal in the absence of abuse. Of course, Chrisco is a civil case involving a breach of contract between private litigants. Since indigency was not involved, there was no occasion to include pro bono consideration.
Nor does the majority opinion in Arnold touch on pro bono concerns. However, a review of recent cases from other jurisdictions provides a ready answer. One of the leading cases in this area is State ex rel. Stephan v. Smith, 747 P.2d 816 (Kan. 1987), to which the Arnold majority attached primary significance. The Kansas Supreme Court found their statutory scheme for indigent compensation wanting in constitutionality, at the same time pointing out that the bar has an ethical obligation to provide legal services to the indigent accused which may justify paying attorneys a reduced fee for legal services to the poor, less than the fee an attorney might charge a financially solvent client for the. same service, though not less than the lawyers average expenses statewide. The court remarked that requiring attorneys to donate a reasonable amount of time to indigent defense work bears a real and substantial relation to the legitimate government objective sought—protection of indigent defendant’s Sixth Amendment right to counsel, that while the state has an obligation to fairly compensate lawyers for indigent defense, it need not be at the top rate an attorney might charge, but at a rate which is not confiscatory, considering overhead and expenses.
In Jewell v. Maynard, 383 S.E.2d 536 (W.Va. 1989), the West Virginia Supreme Court examined indigent defense, declining to follow Alaska [See DeLisio v. Alaska Superior Court, 740 P.2d 437 (Ala. 1987)] by requiring court appointed lawyers to be paid fair market rates, but finding it “constitutionally unacceptable to place the entire burden of court-appointed work on a few randomly selected members of the private bar.” The West Virginia court chose, like Kansas, to strike a balance that is not confiscatory, considering overhead and expenses, “yet does not cause lawyers to start their meters running like taxi drivers . . . .” Id., p. 546. In Kovarik v. County of Banner, 224 N.W.2d 761 (Neb. 1975) the Nebraska Supreme Court ruled that expenses and compensation in indigent cases must be “reasonable” and in State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. 1981), the Missouri Supreme Court opted for “fair compensation.” Not even federal courts, with access to resources far superior to anything available to most state courts, attempt to fully compensate lawyers for indigent representation. See 18 U.S.C.A. § 3006 A (Supp. 1991). The Supreme Court of New Hampshire said it well, if simply, in State v. Robinson, 465 A.2d 1214 (N.H. 1983):
A fee for the defense of an indigent criminal defendant need not be equal to that which an attorney would expect to receive from a paying client, but should strike a balance between conflicting interests which include the ethical obligation of a lawyer to make legal representation available, and the increasing burden on the legal profession to provide counsel to indigents. [Citations omitted.]
465 A.2d at 1216.
Guided by these principles, we cannot say that the trial court’s discretion was abused in this matter. It clearly gave careful reflection to the allowances and outlined the reasons. The amounts approximated $40 - $45 per hour and while that was roughly half of the amounts requested, it was not significantly counter to the bulk of the expert testimony. Assuming, we think correctly, that the amounts testified to by the expert witnesses contemplated a trial, the trial court could have considered a fee in the range of $30,000 or $35,000 on the one hand to $80,000 on the other. He in fact awarded a fee of around $70,000 for a case that was dismissed after Ms. Jernigan’s custodial statement was suppressed, for which cross-appellants can rightfully claim full credit.
In sum, we are not persuaded that the allowances fixed by the trial court were either confiscatory or unreasonable and that being so, no abuse of discretion occurred. The order is affirmed. | [
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Steele Hays, Justice.
This is the second appeal by Dewayne Worth arising from a dispute with the Civil Service Commission of El Dorado over the use of seniority in civil service eligibility. In 1985, Worth, a thirteen year veteran of the El Dorado Fire Department, took the civil service examination for promotion to the rank of captain. In that examination seniority was considered by the Civil Service Commission, resulting in Wesley Harper having a higher eligibility rating than Worth. If seniority had not been considered, Worth, rather than Harper, would have been promoted to one of the two openings which occurred during the eligibility period.
After our decision in Bradley v. Bruce, 288 Ark. 342, 705 S.W.2d 431 (1986), Worth filed suit against the Civil Service Commission of El Dorado contending that the use of seniority was a violation of Ark. Code Ann. § 14-51-301 (1987), and asking that he be promoted to the rank of captain. The trial court held that the decision in Bradley v. Bruce should not be applied retroactively, that to do so would be disruptive to both the fire and police departments, and on that basis Worth’s suit was dismissed.
Worth appealed and this court held that the trial court erred, because at all times material to the Bradley case, as to Worth, the statute did not provide for the use of seniority as a factor in promotion. See Worth v. Civil Service Commission, 294 Ark. 643, 746 S.W.2d 364 (Decided March 7, 1988).
Following remand it appears that a vacancy in the rank of captain had occurred in 1987, and three applicants had been declared eligible for promotion, though the selection had not been completed. Counsel for Worth and the Commission agreed on March 17,1988,thatno promotion would occur until the case was resolved.
On April 7, the trial court entered a judgment consistent with our opinion in Worth I, reciting that seniority was not a proper consideration under Ark. Code Ann. § 14-51-301 (1987), that Bradley v. Bruce, supra, was applicable to the case, that the agreement suspending promotion was dissolved over Worth’s objection, and that Worth’s argument that he should be promoted and awarded attorney’s fees should be dismissed as inconsistent with the opinion of this court.
Dewayne Worth has again appealed. He maintains that the trial court erred in failing to order his promotion to captain and in failing to award attorney’s fees pursuant to 42 U.S.C.A. § 1988 (West 1981). We affirm the judgment.
Worth contends that he should be promoted, not on the basis of current eligibility, but because of our decision in the first appeal. He urges that even though the City of El Dorado and Wesley Harper are not parties, that does not prevent the commission, which is a party, from being ordered to promote him to captain. But to sustain that argument would be tantamount to overruling the decision in the first appeal, which contains this language:
Even though the appellant prevails on his point of appeal, his victory will be one of principle only. He has not joined the captain whom he seeks to have demoted, nor has he joined the City against whom he seeks a judgment for back wages. His relief necessarily will be limited to that which can be granted against the only defendant, the Civil Service Commission of El Dorado. We can only reverse and remand for entry of a decree consistent with this opinion. (Emphasis supplied).
Just as in Worth I, the individuals who underwent the examination process for the 1987 vacancy and established their eligibility for promotion may not have their rights prejudiced by litigation in which they were not joined. Worth v. Civil Service Commission, supra; Hunt v. McWilliams, 218 Ark. 922, 240 S.W.2d 865 (1950); Leola Lumber Co. v. Bozarth, 91 Ark. 10, 120 S.W. 152 (1909); Greer v. Mid-West National Fire & Casualty Insurance Co., 434 F.2d 215 (8th Cir. 1970); Order of Railway Conductors of America v. Gorman, 133 F.2d 273 (8th Cir. 1948). The inevitability of this result was clearly presaged in Worth I:
This is not the type of case we remand for a complete new trial and in which the parties may amend their pleadings. See Overton Construction Co. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985); and Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949).
Turning to the matter of attorney’s fees, under the circumstances we cannot say the trial court abused its discretion in denying attorney’s fees. 42 U.S.C.A. § 1988 (West 1981); Paragould Music Co., Inc. v. City of Paragould, 738 F.2d 973 (8th Cir. 1984); Johnson v. Snyder, 639 F.2d 316 (6th Cir. 1981); David v. Travisono, 621 F.2d 464 (1st Cir. 1980).
AFFIRMED.
Hickman, J., concurs. | [
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Humphreys, J.
This is an appeal from a decree in the chancery court of Garland County cancelling a deed executed by appellant, Martha Bobeson, to appellant, J. E. Page, to blocks 13'2 to 139, inclusive, and blocks 173 to 191, inclusive," in the city of Hot Springs, Arkansas, quieting the title to certain lots in said blocks in appellees and others, and perpetually enjoining appellants from setting up claim or title thereto. The decrée was rendered toy the trial court upon the complaint of appellees for themselves and all other owners of lots in said blocks, and the oral and documentary testimony adduced by appellees, upon the failure and refusal of appellants to plead further after the court had overruled appellants’ motion to transfer the cause to the Federal court and their motion to make the complaint more definite and certain and the demurrer to the complaint. The oral and documentary testimony introduced on the trial of the cause does not appear in the transcript, so it must be presumed that the recital of facts contained in the decree was supported by and was in accordance with the weight of the evidence. The allegations of the complaint were, and the decree found and declared, that appellees and other owners of said lands had been in the actual possession thereof and had paid the taxes thereon for more than forty years; that appellants had no right or title therein but had conspired to and did continually harass and annoy the owners of all lots in said blocks by making false claims of title and by executing and placing of record false deeds and telling prospective buyers that appellant, Martha Bobeson, was the rightful owner of all of said land and interfering with the collection of rents from the tenants occupying said property.
Appellants contend for a reversal of the decree because the court overruled their motion to make the complaint more definite and certain by setting out their claim of title and overruling their demurrer to the complaint for failure to do so.
Our statutes do not require that plaintiffs in suits of this character be required to set out therein their chain of title. In ejectment suits the statutes make such requirements. In suits in equity to quiet titles allegations of ownership are sufficient upon which to base or found the actions.
Appellants also contend for a reversal of the decree because the court overruled their motion to transfer the cause to the Federal court. The petition for the removal, of the cause was properly overruled. The only ground alleged for removal was that gross fraud had been perpetrated on the United States Land Commissioner in obtaining a patent to the lands in question. The allegation was too general to constitute a ground for removal of the cause. It failed to allege the manner in which or when fraud was perpetrated. There are other grounds upon which the court properly overruled the petition for removal which are unnecessary to refer to or discuss.
No error appearing, the decree is affirmed. | [
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Smith, J.
Appellee, Mrs. Mollie Pettigrew, who was the plaintiff below, brought this suit against appellant, J. M. Cavett, who is her father, on December 21, 1928, and, for her cause of action, alleged the following facts: That her father executed and delivered to her a deed on November 27, 1916, for the recited consideration of love and affection and $1 cash in hand paid. She accepted the deed and kept it at her home in a satchel in a trunk, where it remained until about 1925, when she discovered that the deed had been abstracted from the trunk.
It was further alleged that in 1922 her father had mortgaged the land to secure a loan of $3,000. She prayed that the court make the finding that the lost deed be restored, and that she have judgment against her father for the amount of the mortgage which he had placed upon the land.
The answer admitted the execution of the deed, but denied there had been a delivery for the purpose of making the deed effective as a conveyance of title.
In addition to his daughter, Mrs. Pettigrew, Mr. Cavett had two other children, both sons, and an estrangement had grown up between Mrs. Pettigrew and one of these sons, and there was a coolness between her and the other, a fact of which Mr. Cavett was advised. Mrs. Pettigrew testified that in 1916, the year in which the deed was made, her father took a trip, and just before leaving he executed the deed and delivered it to her, and she kept it in her possession until someone stole it from her. On her cross-examination Mrs. Pettigrew admitted that her father said to her, when he delivered the deed to her, that he was going away and if anythiiig happened to him he wanted her to have her share of his estate, a matter about which he was apprehensive on account of her trouble with her brothers.
Mr. Cavett’s version of the delivery of the deed was as follows: “She was to take it home and keep it. If I came back, she was to give it back. I objected to her having the deed recorded, and told her, if anything happened to me, she had the privilege of recording' it later on.” Mr. Cavett returned safely from his trip, and did not take up the deed, and he later told some of his neighbors that he had made the deed, and he frequently referred to the land thus described as Mrs. Pettigrew’s farm.
The testimony is conflicting as to how Mrs. Pettigrew came to part with the possession of the deed. She admits that it was never recorded, but testified that she kept it until about 1925, when it was stolen from her. Mr. Cavett testified that, when he delivered the deed to his daughter, she was instructed not to place it of record unless something happened to him, and it is an admitted fact that it was never recorded. When asked what kind of a deed it was he had executed, Mr. Cavett answered: “A deed of insurance. If I didn’t get back (from the trip), the land was hers,” but if nothing happened it was to remain his.
■ Mr. Cavett testified that the deed was delivered to him, and that it was thereafter destroyed. Mrs. Pettigrew denied this, and testified that she never voluntarily parted with the possession of the deed, and that it had been stolen from her trunk. She admitted that, although the deed was in ordinary form, her father had stipulated that he should have the rents and profits of the farm during the remainder of his life; while Mr. Cavett denied that he retained possession of the land under an agreement of that character.
It appears from the testimony that Mr. Cavett assessed the property for taxes in his own name, and paid the taxes in his own name; that the insurance policies were in his name; and that he paid the premiums and, when a loss occurred, he collected the insurance and repaired the buildings at his own expense. Mr. Cavett rented the farm to various persons, including plaintiff’s husband, his son-in-law, and in 1922 he placed a mortgage on the farm for the sum of $3,000. Mrs. Pettigrew testified that she knew nothing about the mortgage for several years; while Mr. Cavett testified that it was given to secure money to pay an indebtedness due by Mrs. Pettigrew and her husband, and that this lawsuit to restore the deed was precipitated when he sued Mr. Pettigrew and recovered judgment against him for the money advanced.
It is elementary law that delivery is essential to the validity of a deed, bnt it is frequently a mixed question of law and fact as to whether there has been a delivery, and the law on the subject has been declared in a number 'of our cases. Russell v. May, 77 Ark. 89, 90 S. W. 617 ; Maxwell v. Maxwell, 98 Ark. 466, 136 S. W. 172 ; Battle v. Anders, 100 Ark. 427, 140 S. W. 593 ; Stephens v. Stephens, 108 Ark. 53, 156 S. W. 837 ; Faulkner v. Feazel, 113 Ark. 289, 168 S. W. 568 ; Watson v. Hill, 123 Ark. 601, 186 S. W. 68 ; Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147 ; Bray v. Bray, 132 Ark. 438, 201 S. W. 281 ; Davis v. Davis, 142 Ark. 311, 218 S. W. 827 ; Hardin v. Russell, 175 Ark. 30, 298 S. W. 481.
In the case of Battle v. Anders, supra, it was said: “The important question in determining whether there has been a delivery is the intent of the grantor that the instrument should pass out of his control and operate as a conveyance. The intent of the grantor is to be inferred from all the facts and circumstances adduced in the evidence. His acts and conduct are to be regarded in ascertaining his intent.”
When this test is applied to the facts in the instant case, we conclude there was no delivery of the deed. It is true there was a manual delivery of that instrument, which, between parties dealing at arms’ length, would be highly persuasive and ordinarily conclusive. 'But here was a conveyance the consideration for which was love and affection, and there was the trusting confidence of the father, the grantor, in his daughter, the grantee, that she would respect his commands and would not record the deed at all, and would not regard it as anything more than an “insurance deed,” to be effective in the event only that something happened to the grantor. There was lacking that surrender of dominion and that right to possess and control which is essential to delivery.
A right to the possession and control of the deed was reserved, and there was, therefore, no delivery within the meaning of the term as completing a conveyance of real estate- Mr. Cavett testified that his daughter sur rendered the deed upon demand. If true, this testimony would be fairly conclusive of the conditional character of the original delivery, but Mrs. Pettigrew denies that she surrendered the deed. But, with all the suspicion and distrust existing 'between Mrs. Pettigrew and her brothers, she did not record the deed, and her father continued down to the time of the institution of this suit to exercise all the acts of ownership as fully and completely as if the deed had never been executed.
We conclude, therefore, that the deed had never been delivered within the meaning of the law, and the decree of the court below restoring the deed will be reversed, and the cause dismissed. | [
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Humphreys, J.
This suit was brought in the circuit court of Miller County by appellant against appellee to recover $422.80, which amount represented city taxes collected for the years 1926 and 1927', and which were paid-,to appellee by the tax collector of Miller County, same being collected upon an alleged erroneous assessment of appellant’s notes, credits and accounts. The alleged error consisted in the failure of appellant to deduct from the value placed upon said notes, credits and accounts it owed to others which exceeded in value the value of the notes, credits and accounts listed by appellant. The action is bottomed upon § 10180 of Crawford & Moses’ Digest, which is as follows:
“In case any person has paid, or may hereafter pay, taxes on any property, real or personal, erroneously assessed, upon satisfactory proof being adduced to the county court of the fact, the said court shall make an order refunding to such person the amount of the county tax so erroneously assessed and paid, and, upon production of a certified copy of such order to the auditor, he shall draw his warrant on the ¡State Treasurer for the amount of State tax erroneously assessed and paid.”
The complaint alleged that appellant presented its petition and proof to the county court of Miller County showing the erroneous assessment and collection of said taxes, and obtained an order upon appellee to refund same to it, and that it presented a certified copy of the order to appellee and demanded a return of said taxes, repayment of which was refused. A copy of the petition and order were attached and made a part of appellant’s complaint.
Appellee filed a demurrer to the complaint which was sustained, and upon appellant’s refusal to plead further, the court dismissed the complaint, from which is this appeal.
The question presented by the appeal for determination is whether appellant’s complaint stated a cause of action. The demurrer concedes that appellant failed to deduct from the valuation of its notes, credits and accounts listed with the assessor for said years, the value of the notes, credits and accounts it owed, to others. This deduction is allowable when assessing one’s notes, credits and accounts under one of the provisions contained in § 9792 of Crawford & Moses’ Digest. The net result of the failure of appellant to make this deduction amounted to an excessive valuation of its notes, credits and accounts. Section 10180 of Crawford & Moses’ Digest, quoted above and made the basis of this action, does not relieve by way of a refund against excessive assessments, but only against erroneous assessments. This court has defined the distinction between an excessive assessment and an erroneous assessment as used in § 10180 of Crawford & Moses’ Digest. In the case of Clay County v. Brown Lumber Co., 90 Ark. 413, 119 S. W. 251, it was said that “the term, ‘erroneous assessment,’ as there used, refers to an assessment that deviates from the law and is therefore invalid, and is a defect that is jurisdictional in its nature; and does not refer to the judgment of the assessing officers in fixing the amount of the valuation of the property. If the property paid on. was exempt from taxation, or if the property was- not located in the county, or if the tax was invalid, or if there was any clear excess of. power granted, so as to make the assessment beyond, the jurisdiction of the assessing officer or board, then the provisions of Kirby’s Digest, § 7180 ('Crawford & Moses’ Digest, § 10180) give the owner a remedy for a refund of such taxes thus erroneously paid. But a remedy is not given by this section to the party aggrieved by reason only of an excessive assessment or overvaluation of his property.” If appellant had listed notes, credits and accounts with the assessor which it did not own or control, then the assess.ment would have been erroneous. It, however, owned the notes, credits and accounts it listed and overvalued them by failing to deduct credits to which it was entitled. This failure did not constitute an erroneous assessment of them under § 10180 of Crawford & Moses ’ Digest.-
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Hart, C. J.,
(after, stating the facts). According to the allegations of the complaint and from the findings made by the chancellor, this is a suit to reform the description of land in a deed. The question raised by the appeal is one of fact because the law relating to the reformation of written instruments by parol evidence has been well settled by the repeated decisions of this court. There is no doubt that a court of equity may reform a deed or other written instrument where, on account of mutual mistake, such instrument does not reflect the intention of the parties thereto, and the mistake may be proved by parol evidence only. To justify reformation, however, against the will of one of the parties thereto, the evidence of the mistake must be established by clear, convincing, and decisive evidence. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52 ; and Sewell v. Umsted, 169 Ark. 1102, 278 S. W. 36. So, too, parol evidence is admissible in an action to reform a written instrument on the grounds of fraud and mistake, but the evidence to warrant a reformation must be clear and convincing. Welch v. Welch, 132 Ark. 227, 200 S. W. 139. This rule of law is so well established in this State that a further citation of authorities is useless. The only difficulty lies in applying the rule to each particular state of facts. The law does not permit the title to real property to rest in parol, and does not allow the plain language of a deed to be changed on jjarol testimony of promises and agreements had prior to the execution of the instrument. The reason is that deeds are supposed to be the best possible protection to owners of land, and it is the policy of the law to make them so. While they may be reformed by parol evidence alone, such evidence must be clear and convincing; otherwise the title to land would rest in complete confusion and doubt.
Here there is irreconcilable conflict in the testimony of the parties to the transaction. It is true that the plaintiff introduced the testimony of several witnesses to the effect that the defendants had subsequently acknowledged that the fence which had been erected was the boundary-line between them. While this evidence is competent, it is not very trustworthy. The language of the deed is plain and unequivocal, and should not be set aside by declarations or conversations made and had after its execution which may have been incorrectly understood or which have been consciously or unconsciously changed by the witnesses or imperfectly heard at the time. The record does not show precisely when the pleadings were filed in this case, but it does show that the taking of depositions was commenced on the 26th day of January, 1929. The deed to the land was executed on the first day of July, 1921. The fence between the two tracts was erected in 1924. Thus it can not be said in any sense that the plaintiff has acquired a title to the twenty-acre strip of land by adverse possession, and we do not think that her testimony and that of the other witnesses in her behalf establishes her right to a reformation of the deed by that clear, convincing, and decisive evidence which the law demands.
Nor do the facts in this case call for an application of the rule with regard to agreed boundaries. This court has held that where adjacent owners are in dispute as to their dividing line, their oral agreement as to the boundaries establishing the line, when followed by possession with reference thereto, is valid and binding on the parties. Agreements in such cases do not operate as a conveyance so as to pass title from one to another, but they proceed upon the theory that the true boundary line, is in dispute, and that the agreement serves to fix the true line to which the title of each extends. The parties thereafter hold to the line as if by virtue of their respective deeds. The theory is that the parties have simply, by agreement, settled their boundary line which was in doubt, instead of having the court settle it for them. Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348 ; and Glasscock v. Mallory, 139 Ark. 83, 213 S. W. 8.
According to the testimony of Mrs. Edwards, when she purchased the land and received her deed in July, 1921, Hoyer told her that the boundary between them would be a line running- north from the corner between the Allison and the Asbury land which was situated south of the tract in question. On the other hand, Hoyer denied that he made any such representation to Mrs. Edwards as to the boundary line. They both agreed that Hoyer intended to convey to her one-half of a tract of land containing in the aggregate 187.62 acres; that she was to receive the western half of the tract, and that Hoyer was to retain the eastern half thereof. Evidence was introduced by each of the parties to corroborate their testimony in this respect.
There is no need in this connection to determine where the preponderance of the evidence on this point lies, because, even if Hoyer had pointed out the boundary line at the time the deed was executed, this would not be an agreement settling the boundary line. It would simply amount to a misrepresentation which might entitle Mrs. Edwards to rescind the contract. 'She does not ask for a rescission of the contract, but only for a reformation thereof. The fact that she asked for a reformation of the contract so as to include the disputed strip of land recognizes that she does not think that the disputed strip is within the calls of her deed. She states that she went into the possession of the land in 1921, and that sometime in 1924 a fence was built between them which was to be the boundary line. Hoyer denied this in positive terms. He testified that he did not know where the fence was built, and only agreed that a fence might be erected between them. The testimony of Hoyer’s tenant shows that he made the agreement with Mrs. Edwards to erect the fence for the purpose of protecting their crops and that Hoyer had nothing to do with the erection of it.
The burden of showing that there had been an agreement between the parties to establish the boundary line rested on Mrs. Edwards, and we are of the opinion that she failed to meet the burden in this regard. Hoyer admitted that he blazed a line for timber cutters to follow, but said it was done as a matter of precaution so that the timber cutters would not trespass on the land of Mrs. Edwards, and that it was not made with a view to establishing a boundary line between them. Mrs. Edwards was not present and had nothing to do with establishing this line. This question is not raised in the original briefs of the parties; but, inasmuch as the case is in equity and equity cases are tried de novo upon appeal, the question raises itself. After a careful consideration of the testimony, we are of the opinion that Mrs. Edwards failed to establish by a preponderance of the evidence that there had been an agreement between her and Hoyer as to the boundary line between them. Each of them testified that she was only to get one-half of the tract which would amount to 93.81 acres. After the dispute as to the boundary line on the east end of the tract conveyed to Mrs. Edwards, she went upon a tract of land on the west side and cut timber which would not be included within the 93.81 acres if the boundary line on the east claimed by her is to be considered the true boundary line. This tends to show that she intended to claim 93.81 acres of land irrespective of the disputed strip. In any event we do not think she has shown by a preponderance of the evidence that there was an agreement between her and Hoyer for the establishment of a boundary line between the two 93.81-acre tracts in question.
¥e now come to a consideration of the damages claimed by Hoyer in his cross-complaint. He asks for rents on the disputed strip- for the past three years and for the value of the timber out therefrom by Mrs. Edwards.' In a case note to 33 A. L. R. at 1039, it is said that the right of a vendee to base an affirmative or defensive claim upon the ground of the vendor having fraudulently misrepresented or concealed the position of boundary lines, has been affirmed in numerous cases. In Haynes v. Harper, 25 Ark. 541, the boundaries were mis represented in such a manner as to lead the vendee to suppose that all the tract sold was of good quality, whereas it really embraced a parcel of poor, wet land. In Cooper v. Merritt, 30 Ark. 686, the vendor pointed out to the vendees, boundary lines which, if they had been as represented, would have included much more cleared land than that actually contained in the parcel sold.
The cross-complaint of Hoyer was tantamount to an action by him under the contract, and Mrs. Edwards, his vendee, had a right to defend the cross-complaint on the ground that she had been induced to enter into it by the vendor’s fraud. Therefore, after a careful consideration. of the evidence on this point, we are of the opinion that Hoyer was not entitled to recover anything from Mrs. Edwards on his cross-complaint, either by way of rents or by way of damages for cutting and removing the timber from the disputed strip of land.
It is true, as pointed out above, that Mrs. Edwards has not asked for a rescission of the contract on the ground of fraud in the pointing- out of the boundaries to her when the sale of the land was made. 'She may have elected to keep the land notwithstanding the fraud, but this did not prevent her from setting up the fraudulent misrepresentations in pointing out the boundary line to her as a defense to the cross-complaint of Hoyer for damages for cutting and removing the timber on the disputed strip of land and for rents which had accrued for the past three years just prior to the suit.
The result of our views is that the decree will be reversed, and the cause will be remanded to the chancery court with directions to dismiss the complaint of Mrs. Edwards for a. reformation of the contract for want of equity and also to dismiss the cross-complaint of Hoyer for want of equity, in so far as his right to recover damages for cutting and removing the timber and for rents is concerned. It is further ordered that a decree shall be rendered in favor of Hoyer for the recovery of the possession of the disputed strip of land. | [
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Per Curiam.
Appellant, John Burk, by his attorney, Joseph H. O’Bryan has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Roy Chester Henderson was convicted in the Circuit Court of Columbia County of aggravated robbery and sentenced to a term of forty years imprisonment. At trial he was represented by retained counsel Wayne Jewell. No appeal was taken. Petitioner has now filed a pro se motion for belated appeal in which he asserts that he made known his desire to appeal to Mr. Jewell who did not take steps to perfect an appeal or otherwise advise him of how to perfect an appeal. He states that his representation of petitioner came to an end when he was convicted.
Criminal Procedure Rule 36.9 provides that all motions for belated appeal must originate in the Supreme Court. Gray v. State, 277 Ark. 442, 642 S.W.2d 306 (1982). A belated appeal may be granted for good cause even if no notice of appeal was filed. We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). Even though Criminal Procedure Rule 36.26 states that counsel, whether retained or appointed, shall continue to represent a convicted person throughout appeal unless permitted to withdraw by the trial court or this Court, we recognize that a convicted defendant may waive his right to appeal.
There are instances where it can be determined from the motion and affidavits whether the defendant waived appeal, but in the case before us, the allegations of petitioner and counsel are in direct conflict. Since it is apparent that there are questions of fact which cannot be resolved on affidavits, we must deny petitioner’s request for a belated appeal. Schuster v. State, 261 Ark. 730, 551 S.W.2d 210 (1977). The denial, however, is without prejudice to his applying to the trial court for a belated appeal evidentiary hearing on the question of whether, when sentence was imposed and judgment entered, he was informed of his right to appeal in accordance with A.R.Cr.P. Rule 36.4; and, if so, whether he voluntarily waived that right by his failure to communicate to counsel his desire to appeal. If the trial court finds that petitioner was properly informed of his appeal right, it shall be incumbent on petitioner to show that he made known to counsel his desire to appeal.
In the event a hearing is held, the trial court shall make written findings of fact and conclusions of law. The petitioner may appeal from an adverse ruling. If the ruling is favorable, he may file the findings and conclusions and the record of the hearing in support of a second motion for belated appeal in this Court.
Purtle, J., not participating. | [
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John I. Purtle, Justice.
The Franklin County Chancery Court held that appellants were not entitled to free gas from a gas well which was drilled in a unit which included appellants’ property. The well was not located on appellants’ property. It is argued on appeal that it was not necessary for the wellhead to be physically located upon appellants’ lands in order for appellants to be entitled to free gas in accordance with the express terms of the lease between the parties. We agree with this contention and reverse the trial court in this respect.
In 1959 appellants leased the lands in question to Arkansas Western Gas Company. The lease was subsequently assigned to appellees, Tenneco. The lease contains a provision which reads:
SECOND. To pay Lessor for gas from each well where gas only is found, the equal one-eighth (1/8) of the gross proceeds at the prevailing market-rate, for all gas used off the premises, said payments to be made monthly if $10.00 or more and Lessor to have gas free of cost from any such well for all stoves and inside lights in the principal dwelling house on said land during the same time by making his own connections with the well at his own risk and expense.
The foregoing clause will be referred to as the “free gas” clause. Appellants’ lands, about one hundred thirty acres, were grouped with about forty other lessors’ lands to form a pool for a unitized drilling operation which became known as the C. Allen unit. The wellhead itself was not located on appellants’ land. Royalties are being paid to all lessors, including the appellants. Sometime in 1979 the appellants notified Tenneco Oil Company that they desired to receive “free gas” in accordance with the second clause of the lease. Appellees refused to allow appellants to have free gas for the reason that the wellhead was not on appellants’ property and therefore the “free gas” clause was inoperative. Appellants filed suit to obtain free gas and for the costs of obtaining gas elsewhere since the date of their demand. The suit named Arkansas Western Gas and Tenneco. Arkansas Western Gas filed a cross-complaint seeking contribution from Tenneco which in turn admitted it would be liable to appellants if they were to win the lawsuit. The chancellor decreed that appellants were not entitled to free gas because the well was located on property not owned by appellants.
The sole question on appeal is whether the “free gas” clause entitles appellants to gas for the principal dwelling on their property. We think appellants are entitled to have free gas for their principal dwelling provided they make the connections at their own expense and risk.
The “free gas” clause is neither defined nor qualified in the original lease. The gas produced by the well in question is gathered from under all lands within the C. Allen unit. If there is any ambiguity it is to be construed against the appellees because it was they who wrote the lease containing the “free gas” clause. In Bodcaw Oil Co., Inc. v. The Atlantic Refining Co., 217 Ark. 50, 228 S.W.2d 626 (1950) we stated:
Bodcaw thus invokes the familiar rules that a contract should be construed most strongly against the party preparing it and that oil and gas leases are to be construed in favor of the lessor and against the lessee. We agree with the trial court’s finding that these rules are to be applied where the contract is susceptible to different interpretations, but should not be used to overturn the plain and unambiguous terms of the contract.
Both parties believe they are supported by the cases of Bodcaw Oil Co., Inc. v. The Atlantic Refining Co., supra; and Cranston v. Miller, 208 Ark. 156, 185 S.W.2d 920 (1945). Bodcaw supports the appellants’ theory on construction of the lease, in that it shall be construed most strongly against the party who prepared it. Cranston is readily distinguishable from the case before us because, although there was the same “free gas” clause, the lessee in Cranston produced only oil for the market. However the lease contained two other provisions which caused this court to deny the lessor free gas. First, the free gas must have been produced by a well where gas only was found and, second, the gas must have been used off the premises. Neither condition existed in the Cranston case. Both conditions are present in the case before us. Therefore, Cranston is neither persuasive nor dispositive as to the issues of the present case.
In order to reach the results desired by appellees we would have to construe the “free gas” clause to apply when the well is located only on appellants’ land and conversely, hold the payment of royalties clause, the first clause, to apply when the well is on lands not owned by appellants but which are in the C. Allen drilling unit. Such a strained and forced interpretation would run counter to the language of the lease. We think the contract is clear and unambiguous and appellants are entitled to a proper enforcement of the “free gas” clause because gas is being taken from under their land. We recognize that other jurisdictions have decided the matter both in accordance with our reasoning in this opinion and in an opposing manner. It is our opinion that the results reached here are sound and correct.
The case is reversed and remanded to the trial court with directions to proceed in a manner consistent with this opinion. | [
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Steele Hays, Justice.
The appellant was charged with the capital felony murder of Sue Bradley, who had earlier charged him with rape. He allegedly broke into the victim’s home and shot her twice in the head as she slept. On June 16, 1982, a jury found him guilty and sentenced him to life without parole. Appellant raises four points for reversal, none of which have merit.
Appellant first argues the merger doctrine as applied to the felony murder rule: he urges the felony murder charge should not lie when the underlying felony is included in the charge of murder. Here, the underlying felony, burglary, is in fact included in the homicide. Although we doubt its soundness, given our statutory scheme and the facts in this case, we do not reach the merits of the issue as the argument was not first presented to the trial court. The only possible foundation for the argument on appeal is pointed to by the appellant in his motion to quash the capital murder information. The state had nolle pressed a first degree murder charge and refiled an information charging appellant with capital murder. Appellant objected to this procedure in his motion to quash, and in his final point states:
10. The allegation of the commission of a burglary in the above information is a subterfuge by the state to proceed as a capital felony murder charge and seek the death penalty.
The preceding points in the motion make it clear appellant was objecting to the procedure used by the prosecutor, which is the basis for his second argument for reversal, discussed below. However, to be preserved on appeal, an objection must be made to the trial court with sufficient clarity that the trial court has a fair opportunity to discern and consider the argument. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982) and Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982). The argument now raised was not sufficiently presented to the trial court. Only by severely straining the wording of the motion to quash, beyond logic and common sense, could we say the merger doctrine in capital felony crimes was presented to the trial judge. We therefore find no proper foundation below and we do not consider appellant’s first argument.
In appellant’s second point for reversal he submits the trial court erred in permitting the prosecutor to nolle prosse a first degree murder charge and then file a new information charging appellant with capital felony murder. Appellant points to Ark. Stat. Ann. § 43-1024 (Repl. 1977):
Amendment of indictment — The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record.
Appellant contends the procedure used by the prosecution allowed indirectly that which cannot be done directly by Ark. Stat. Ann. § 43-1024. The appellant cites as authority our decision in State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981). There, we refused to allow the State to dismiss charges by nolle prosse in order to file new charges, when the purpose was to avoid the defendant’s right to a speedy trial. We find the facts in the instant case present an entirely different situation. Here, there was no attempt to circumvent a constitutional right and no prejudice to the defendant is evident or claimed. In Washington, the procedure followed was perfectly permissible — it was only because the results of that procedure worked to prejudice the defendant that we found it to be improper. There is no comparable prejudice in this case.
We have interpreted Ark. Stat. Ann. § 43-1024 to relate to matters of notice and prejudice. See Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982); Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981). We recognize the importance of this statute in preventing eleventh-hour amendments and amendments made after trial has begun. The application of the statute was recently demonstrated in Harmon, supra. There, the defendant was charged with murder in the course of kidnapping, but the information was amended to charge in the alternative, murder in the course of robbery. We found error in the trial court’s allowing the amendment to be made the morning of the trial, after the jury had been sworn in. It is this sort of prosecutorial action that constitutes prejudice to a defendant that § 43-1024 prohibits.
Alternatively, the prosecution must be afforded a reasonable degree of flexibility in order to effectively carry out its function. If we were to interpret Ark. Stat. Ann. § 43-1024 so restrictively as to prevent the procedure used in this case, the prosecution would be powerless to change a charge, regardless of the reason, if the change resulted in any alteration of the nature or degree of the crime. In Harmon, supra, applying § 43-1024, we concluded:
That amendment was not permissible in the absence of any notice to Harmon that he was to be required to defend an essentially different charge of capital murder. Ark. Stat. Ann. § 43-1024. It is hardly even arguable that a person can fairly be sentenced to death upon a charge that was not made until the morning of trial, leaving no possibility for thorough preparation of a defense upon both the facts and the law. Harmon at 270.
In light of the language of the statute and our previous interpretations of it, we find the above to be a fair statement of the purpose to be served by § 43-1024. We cannot say that this principle conflicts with the procedure employed in this case so long as the defendant is given notice and adequate time for preparation. Additionally, the two procedures are distinguishable. If a decision is made to nolle prosse and a new information is subsequently filed, the prosecution must begin a new proceeding which, absent unusual circumstances or prosecutorial abuse, in itself provides the defense with notice and adequate time for preparation. Here the appellant was charged with the new information on February 19, 1982 and went to trial on June 14, 1982. The appellant did not claim surprise of prejudice, nor does any appear. We find no error in the trial court’s action.
For his third point, appellant argues that the capital felony murder statute is unconstitutional because it overlaps with the first degree felony murder statute. We have reviewed this argument a number of times and found it lacking. See Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Ruiz and Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).
In appellant’s last point he challenges the death-qualification of the jury as depriving him of an impartial jury. Again, we have considered this argument before and rejected it. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Ruiz, supra.
In compliance with Rule 11 (f) RSC, we have reviewed the entire record for errors below not argued on appeal and find none that are prejudicial to the appellant.
Affirmed.
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David Newbern, Justice.
This case presents a question of insurance law. The issue is whether our uninsured motorist insurance statute requires an insurance company to provide uninsured motorist coverage to one using an insured vehicle where the named insured is a corporation and the user is an employee of the corporation. The trial court granted a summary judgment to appellee, United States Fire Insurance Company (U.S. Fire), holding the policy issued to the corporate employer provided coverage to the employee only if he were occupying the covered vehicle at the time of the injury, and concluding that in this case the employee was not an occupant. We hold that our statute which deals with uninsured motorist coverage requires that a company issuing liability insurance on a vehicle must also issue uninsured motorist coverage to one using the insured vehicle. We conclude the employee in this case was using the insured vehicle at the time the accident occurred, and we therefore need not consider whether he would have been covered under the terms of the policy as an occupant of the vehicle. The summary judgment is reversed, and the case is remanded.
The appellant, First Security Bank of Searcy, Arkansas, is the executor of the estate of Darrell Wayne James. It brought this wrongful death action on behalf of James’s estate. James was co-driver of a tractor-trailer rig owned by B & D Transport, Inc. The rig was insured under a policy issued by U.S. Fire, naming B & D Transport, Inc., as the insured.
James and his stepfather, who was his co-driver, had driven the truck to Santa Clara, California. James got out of the truck and was standing in a street directing the backing of the truck to a loading dock when he was struck by one or more hit-and-run drivers and killed. The hit-and-run driver or drivers remain unidentified. If the uninsured motorist coverage applies to James, there is no question that a hit-and-run driver qualifies as an uninsured motorist.
1. The terms of the policy
The general provisions of the basic liability policy make it clear that coverage extends to persons, including employees of B & D Trucking, Inc., using the vehicle with permission. The uninsured motorist endorsement, however, describes “who is insured,” in pertinent part as follows: “1. You [the named insured] or any family member. 2. Anyone else occupying a covered auto . . . .” U.S. Fire successfully argued to the trial court that, as James had dismounted the truck and was standing some six to eight feet away from it at the time he was hit and killed, he was not covered by the uninsured motorist provisions because he was not occupying the vehicle when he was killed.
We have not had occasion to define the term “occupying” in the context presented here. In Southern Farm Bureau Cas. Ins. Co. v. Fields, 262 Ark. 144, 553 S.W.2d 278 (1977), we dealt with whether a school child was “occupying” a school bus. The child had left the bus and was crossing a street when she was injured. We held she was not occupying the bus because the insurance policy being interpreted defined “occupying” in such a way as to require physical contact with the vehicle. We have not had a case in which we interpreted the word as it is usually defined in insurance policies and as it is defined in the policy we now consider. That definition is, “upon, getting in, on, out of or off.” Defined in that way, the term “occupying” has been given liberal interpretation in many jurisdictions. See, e.g., Sayers v. Safeco Ins. Co., 628 P.2d 659 (Mont. 1981); Manning v. Summit Home Ins. Co., 128 Ariz. 79, 623 P.2d 1235 (Ariz. App. 1980); State Farm Mut. Ins. Co. v. Holmes, 175 Ga. App. 655, 333 S.E.2d 917 (1985). These cases have, in general, considered matters such as the amount of time which had passed between the time the claimant departed the vehicle and the time of the injury, the relative distance of the claimant from the vehicle, whether the claimant had reached a point of safety after leaving the vehicle, and whether the claimant was still “oriented” to the vehicle. Other cases have been stricter. See, e.g., Testone v. Allstate Ins. Co., 165 Conn. 126, 328 A.2d 686 (1973); Miller v. Loman, 518 N.E.2d 486 (Ind. App. 1987); Greer v. Kenilworth Ins. Co., 60 Ill. App. 3d 22, 376 N.E.2d 346 (1978).
We need not determine whether James was “occupying” the vehicle, however, because we agree with the bank’s argument that he was covered by the policy as a user of the vehicle because our statute requires it.
2. The statutory requirement
The statute in question, Ark. Code Ann. § 23-89-403 (1987), is as follows:
23-89-403. Bodily injury coverage required.
(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto and is not less than limits described in § 27-19-605, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.
(b) However, the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage, and this rejection shall continue until withdrawn in writing by the insured.
Subsection (a) of the statute requires uninsured motorist coverage if the policy covers liability arising from use of a vehicle. The policy in question undoubtedly covered liability resulting from the use of the vehicle by a B & D employee. We conclude the statute expressed the intent of the general assembly to include in uninsured motorist coverage the persons included in liability coverage. The uninsured motorist coverage requirement is for the protection of “persons insured . . . who are legally entitled to recover damages from owners or operators of uninsured motor vehicles. . . .” Darrell Wayne James was such a person.
Our decision is supported by cases from other courts. First, we note the general rule that a statute governing insurance coverage becomes part of a policy affected by it. Our court of appeals has stated the principle, Carner v. Farmers Ins. of Arkansas, 3 Ark. App. 201, 623 S.W.2d 859 (1981), citing Gill v. General Am. Life Ins. Co., 434 F.2d 1057 (8th Cir. 1970), as have courts of other jurisdictions. See, e.g., Ex Parte State Farm Fire & Cas. Co., 523 So.2d 119, on remand, Martin Motors, Inc. v. State Farm Fire & Cas. Co., 523 So.2d 121 (Ala. 1988); Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 676 P.2d 113 (1984); Samson v. Transamerica Ins. Co., 178 Cal. Rptr. 343, 30 Cal. 3d 220, 636 P.2d 32 (1981); USAA Cas. Ins. Co. v. Yaconiello, 226 Va. 423, 309 S.E.2d 324 (1983); Billings v. State Farm Mut. Auto Ins. Co., 741 S.W.2d 886 (Mo. App. 1987).
We have found cases from other jurisdictions in which there was a statute similar to § 23-89-403(a) where it was held that uninsured motorist coverage was required with respect to a person injured while using a covered vehicle regardless of the terms of the insurance policy. In National Union Fire Ins. Co. of Pittsburgh, Penn. v. Olson, 751 P.2d 666 (Hawaii 1988), the United States Court of Appeals for the Ninth Circuit had certified to the Hawaii Supreme Court the question whether a statute like ours required uninsured motorist coverage of a person who was physically outside and away from the covered vehicle when the accident occurred. Olson was working as an emergency medical technician. He had arrived, with an EMT crew, at the scene of an accident and had left the insured EMT vehicle to set flares to warn approaching motorists of the presence of the remains of the accident in the highway. The statute, HRS § 431-448 (1978), required that uninsured motorist coverage be included in any liability policy insuring against loss resulting from liability for injury or death “suffered by any person arising out of the. . . use of a motor vehicle. . . .” The supreme court rejected the contention that the policy requirement limiting uninsured motorist coverage to persons “occupying” the vehicle was controlling. It was held that where there is a conflict between the language of the policy and that of the controlling statute, the policy language is void.
In Oberkramer v. Reliance Ins. Co., 650 S.W.2d 300 (Mo. App. 1983), the same question was posed. A police officer, Oberkramer, drove his insured police vehicle to a place where it was parked and used as part of a roadblock. An uninsured motorist being pursued by other officers at a high speed lost control of his vehicle at the roadblock and crashed into Oberkramer who was standing between 25 and 50 feet away from his vehicle. A statute, RSMo § 379.203 (1978), provided that liability insurance would not be delivered in Missouri unless uninsured motorist coverage were included “for the protection of persons insured thereunder.” The policy on Oberkramer’s police vehicle provided liability coverage to one utilizing the vehicle with the owner’s permission. The policy limited uninsured motorist coverage to “any other person while occupying an insured highway vehicle.” The court of appeals held that Oberkramer was covered because the statute prevailed over the policy language.
Other examples include Hartford Accident & Indent. Co. v. Booker, 140 Ga. App. 3, 230 S.E.2d 70 (1976), and Federated Mut. Implement and Hardware Ins. Co. v. Gupton, 357 F.2d 155 (4th Cir. 1966). Cf., Utica Mut. Ins. Co. v. Contrisciane, 473 A.2d 1005 (Pa. 1984), where the court appeared to equate the terms “use” and “occupancy.” For cases holding that the connection between the person who had dismounted the vehicle had become too remote to constitute “use” of the insured vehicle, see Hite v. Hartford Acc. and Indem. Co., 344 S.E.2d 173 (S.C. App. 1986), and Anderson v. Ford, 168 Ga. App. 684, 309 S.E.2d 854 (1983).
We agree with the cases holding that a statute like § 23-89-403 (a) requires uninsured motorist coverage for the user of a vehicle insured against liability, and that is our holding here.
3. U.S. Fire’s arguments
a. Named insured
U.S. Fire argues that a corporation’s employees cannot be its “family members,” and thus James does not qualify for uninsured motorist coverage because he is not a named insured. While we might agree that James did not qualify as a “family member” of the corporation which purchased the insurance, our determination that our statute requires that he be covered because he was a user of the vehicle answers the argument.
b. Purchaser
U.S. Fire points out that in Howard v. Grain Dealers Mut. Ins. Co., 342 F. Supp. 1125 (W.D. Ark. 1972), the federal court wrote that the purpose of the statute was “to enable Arkansas motorists purchasing automobile insurance to obtain for an additional premium” uninsured motorist protection. In view of the language of the statute requiring uninsured motorist coverage with respect to liability policies covering use of the vehicle to be insured, we cannot conclude that the only purpose of the statute was to cover purchasers.
c. Rejection
U.S. Fire argues that § 23-89-403(b) permits only a named insured to reject uninsured motorist coverage, and thus it is clear that the statute intended only that the named insured be protected. The conclusion simply does not follow the premise. The focus of the insurance is on the insured vehicle. If, by not rejecting it, the owner of the vehicle purchases the coverage, the question becomes what has he or she bought. Our holding is that he or she has purchased at least the coverage contemplated by § 23-89-403(a), for the reasons stated above, and that includes coverage for one using the insured vehicle.
d. Users of uninsured vehicles
In Crawford v. Emcasco Ins. Co., 294 Ark. 569, 745 S.W.2d 132 (1988), and Holcomb v. Farmers Ins. Exch., 254 Ark. 514, 495 S.W.2d 155 (1973), this court concluded that a party insured by a policy containing an uninsured motorist provision was not covered when driving another owned vehicle which was not listed in the policy. The policies in question contained clauses limiting coverage by stating that the uninsured motorist coverage would not apply when occupying an owned but not insured vehicle. It was argued that the coverage limitation was in violation of § 23-89-403, and we held that it was not.
U.S. Fire argues that if an insurer can limit coverage in that manner it follows a fortiori that it can limit uninsured motorist coverage, as in the policy in this case, only to occupants of the insured vehicle. “A fortiori” is a term of logic meaning “with stronger reason” or “much more.” Black’s Law Dictionary (5th ed. 1979), p. 56. Our decision in the Crawford case made it clear why it follows not at all. There we stated clearly that the insurance coverage required by the statute is, as noted in part 3. c. of this opinion, not personal insurance but vehicle insurance. We were not required in that case to consider a possible exception to that conclusion with respect to coverage of the named insured and his or her family members.
e. Non-user cases
U. S. Fire quotes language from Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971), stating that, under Florida law, a named insured and members of the insured’s household were given the same protection they would have if the uninsured motorist had complied with the financial responsibility law of that state, but that other coverage under the policy is restricted to persons occupying the insured vehicle. In that case, the minor son of the named insured was riding an uninsured motorcycle when he was injured, and it was held that the uninsured motorist coverage applied to cover his injuries. Nothing was said about Florida law with respect to uninsured motorist coverage for one, other than a named insured, using a vehicle as to which uninsured motorist coverage applied. Other Florida cases cited by U.S. Fire, Velasquez v. American Manuf. Mut. Ins. Co., 387 So. 2d 427 (Fla. App. 1980), and Thiem v. Hertz Corp., 732 F.2d 1559 (11th Cir. 1984), are equally inapplicable to the discussion here, because they do not deal with the question whether a person is entitled to uninsured motorist protection because he or she is using an insured vehicle.
Also cited is Allstate Ins. Co. v. Graham, 106 N.M. 779, 750 P.2d 1105 (1988), where the sole question was whether injured persons were occupying an insured car when they were out of the insured car observing or helping in the changing of a wheel on another vehicle to which they had driven in the insured car. A third car, driven by an uninsured motorist, injured them. There was no indication that the New Mexico law required uninsured motorist coverage for a person using an insured vehicle or whether the insured vehicle was being used by the injured parties at the time of the injury.
Other cases cited by U.S. Fire include Polzin v. Phoenix of Hartford Ins. Companies, 5 Ill. App. 3d 84, 283 N.E.2d 324 (1972), and Reaves v. Farm Bureau, Town and Country Ins. Co. of Mo., 706 S.W.2d 911 (Mo. App. 1986). In the Polzin case, a pedestrian was struck on a street corner by an uninsured motorist. He had purchased a car and transferred title to the corporation which employed him. The policy provided uninsured motorist coverage to the corporation. The court pointed out that the plaintiff was neither occupying nor using the car at the time he was injured, thus there was no possibility of coverage, as he was not the named insured. In the Reaves case, it was held that where the driver of a truck, who was neither a named insured nor a member of the named insured’s family, left the truck where it broke down, walked away, and was struck by an uninsured motorist two miles from the truck, he was neither occupying nor using it. The court specifically distinguished the Oberkramer case, discussed above, where it was held that the policeman was using the police car in the roadblock while he was standing some 25 to 50 feet away from it.
We find nothing in any of these cases to raise any doubt about our conclusion that our statute requires uninsured motorist coverage be provided an employee using his employer’s vehicle which is insured with uninsured motorist coverage.
Conclusion
In the Fields case we held there was nothing to preclude an insurer from limiting uninsured motorist coverage to occupants of the insured vehicle as far as passengers were concerned. Here we draw a distinction between users, who are protected by the statute, and passengers who are not, and we hold that uninsured motorist insurance coverage may not be limited so as to exclude a user of an insured vehicle.
Reversed and remanded.
Hickman, J., not participating. | [
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John I. Purtle, Justice.
A jury found the appellant guilty of the crimes of rape, kidnapping, and first degree battery. He was sentenced to consecutive terms of life, forty years, and twenty years. On appeal he argues that: (1) the court erred in failing to suppress the evidence of a pistol and a blue jean jacket; (2) the court erred in not ordering a full psychiatric examination at the Arkansas State Hospital or providing the appellant with funds to obtain an independent psychiatric examination; and (3) the court erred in not granting defendant’s motion for a continuance. Finding no prejudicial error, we affirm the action taken by the trial court.
On December 5,1987, a gunman entered a grocery store on Highway 5 in Garland County, Arkansas, and demanded and took money from the cash register. He forced the store operator into his car and then drove her to a wooded area in Saline County. There the victim was raped, choked unconscious, and then shot.
During the investigation, it was learned that the appellant spent the night with his friend, James Bishop, and the next morning left his blue jean jacket behind. After the appellant was gone, Bishop picked the jacket up and a Baretta pistol fell to the floor. Fearing involvement in some kind of trouble, Bishop took the jacket and pistol to a vacant lot across the street from his residence and buried them underneath some leaves. He later gave a statement to the police and led them to the scene. The leaves were raked back, and the police found the jacket with the pistol either inside or underneath it. The statement on the application for the arrest warrant indicated that the pistol had been found in the jacket pocket. However, officers later testified that it was found either underneath or wrapped inside the jacket. Appellant’s motion to suppress this evidence as being violative of the Fourth and Fourteenth Amendments was overruled, and the pistol and jacket were entered into evidence. The trial court held that the appellant had no reasonable expectation of privacy in the gun and the jacket under the circumstances of this case.
The appellant first argues that the seizure of the jacket and gun was in violation of the Fourth Amendment restriction against unreasonable searches and seizures. The baseline of the appellant’s argument on this point is that while the police may have had the right to make a warrantless seizure of the jacket, they could not have searched the pockets without a search warrant.
The issue to be determined by this court is whether the trial court correctly admitted this evidence. The defendant’s right to challenge the search and seizure as being violative of the Fourth Amendment is based upon the existence of a legitimate expectation of privacy in the place invaded. United States v. Freire, 710 F.2d 1515 (11th Cir. 1983), citing Rakas v. Illinois, 439 U.S. 128 (1978).
Both sides rely upon the case of United States v. Alewelt, 532 F.2d 1165 (7th Cir. 1976). Alewelt left an incriminating brown leather jacket “on a coatrack in the general working area of an outer office where he had no possessory interest.” The Seventh Circuit affirmed the holding of the district court that, by leaving the jacket where he did, the appellant “relinquished that degree of control, and reasonáble expectation of privacy, necessary to sustain a challenge to the legality of the subsequent search and seizure on Fourth Amendment grounds.” The opinion further stated that “while he may not have known that after business hours the door to the office would be left open and the lights left on, he had no reason to expect otherwise.” The court also relied upon Katz v. United States, 389 U.S. 347 (1967), where it was held that a person who knowingly exposes an object to the public cannot expect the protection from unreasonable search and seizure provided by the Fourth Amendment.
This court considered a situation somewhat analogous to the one before us in the case of State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980). In Tucker the accused had moved out of an apartment he shared with the victim of an alleged murder. A search of these premises was conducted and the question presented was whether the evidence received in searching the apartment should have been suppressed. This court, quoting U.S. v. Colbert, 474 F.2d 174 (5th Cir. 1973), stated:
The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.
We held that Tucker’s conduct belied his statements that he did not intend to abandon the property.
Another decision a little closer to the facts in this case is Upton v. State, 254 Ark. 664, 497 S.W.2d 696 (1973). Upton was suspected of committing a crime with a weapon. He had fled from his father’s house, where he was residing. Police officers appeared at the house and requested the father to show them the weapons on the premises. In the initial search they observed a 12-gauge shotgun and a 410-gauge shotgun. After learning that the weapon used in the crime was a 16-gauge shotgun, the officers returned to the senior Upton’s home. The father again cooperated, went to a barn, and found a green blanket in which the guns were wrapped. The father was in possession and control of the house, and he voluntarily produced the weapons and relinquished possession of them to the officers. In upholding the trial judge’s decision in allowing the weapons to be introduced into evidence, we stated: “We perceive no invasion whatever of appellant’s right.”
In the case of Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965), the Eighth Circuit Court of Appeals upheld the district court’s action in finding that the mother of the accused, with whom he lived at the time, did not violate or allow the officers to violate the appellant’s rights against unlawful search and seizure by leading the officers to a closet and pointing out a coat which the appellant owned. Maxwell argued that his coat was his personal effect; that it could not be obtained by the police without a search warrant or consent; and that it was evidentiary material not properly the subject of a search. Disposing of this argument, the court stated: “This argument overlooks the consent of the officers’ acquisition of the coat by a person having the proprietary interest in the premises where it was [found].” The opinion further stated that the coat was an item which had freely come into the possession of the party and that the coat had been given to the officers by one who had the right to make it available to them.
The facts in this case reveal that there was actually no search but only a seizure. The same rules apply to a seizure as to a search. We do not find it necessary to decide whether the pistol was in the pocket or wrapped in the jacket when it was seized by the police. It may well be true that the gun was left in Bishop’s home in the pocket of the jacket and that upon Bishop’s examining the jacket the gun fell to the floor. It is known that Bishop took the gun and the jacket across the street and covered them with leaves. There is no evidence that the appellant made any attempt to recover or retrieve these items. Obviously he had renounced or abandoned his rights to privacy and no longer had any reasonable expectation of privacy in the property. It has not been suggested by anyone that the owner of the property where the jacket and pistol were found expected the articles to remain undiscovered. Therefore, we hold that the trial court’s ruling was not clearly against the preponderance of the evidence. See also State v. Osborne, 263 Ark. 554, 566 S.W.2d 139 (1978).
The appellant’s second argument is that the trial court erred in failing to grant him a full psychiatric examination or the funds with which to obtain such an examination. In disposing of this motion for extensive psychiatric examination, the trial court noted that the appellant had been examined by a licensed psychological examiner and a psychiatrist, both employed by the Mental Health Department for the state of Arkansas. Nothing in either of the examiner’s reports indicated the appellant was psychotic or that he needed further consultation or diagnostic treatment. We disposed of this issue in Dunn v. State, 291 Ark. 131, 722 S.W.2d 595 (1987). Dunn distinguished Ake v. Oklahoma, 470 U.S. 68 (1985), and held that in the absence of some evidence that additional examination was needed, there was no necessity of obtaining further evaluation. See also See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988); and Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
The third and final argument is that the court erred in failing to grant the appellant a continuance. This request was based upon the fact that the victim was present to testify and that she was obviously in pain and discomfort and communicated this fact to the jury and to the court by means of body language and groans and grunts. The basic rule on this issue is that the decision to grant a continuance is within the discretion of the trial court and will not be reversed unless there is a showing of abuse. Parker v. State, supra. The appellant does not cite precedent for this motion and we are unable to find any of record.
One accused of a crime cannot select the terms and circumstances of his trial. The mere fact that a victim of an assault still obviously suffers from the attack or conveys the message otherwise is no grounds for granting a continuance. The victim did not completely distract the jury to the point where a fair trial would have proved impossible. Considering the facts as presented in this case, we are unable to hold that the trial court abused its discretion in continuing with the trial at the time.
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Smith, J.
On October 13, 1930, Fred Adair filed a suit in the Phillips Chancery Court against the Grand Lodge Ancient Order of United Workmen of Arkansas, hereinafter referred to as the A. O. U. W. or as the Order, and its executive officers and board of directors, the allegations of which are to the following effect.
The A. O. U. W. is a fraternal benefit society, which has for many years conducted a life insurance business, in addition to its fraternal work. The insurance branch of its business is solvent, and if all of its assets derived therefrom were properly accounted for a large surplus fund would be on hand.
The Order, by its Constitution and By-laws, is managed and controlled by the Grand Lodge of said organization, the members of the Grand Lodge being elected by the subordinate lodges and certain officers designated by the Constitution and articles of incorporation. When the Grand Lodge is not in session, the governing body is the board of directors, a body composed of seven members, who have the general management and control of all business matters. The members of this board, with their official titles, were named, and they were made parties to the suit in their official capacity.
On August 30, 1930, the board of directors of the A. O. U. W. contracted with the National Standard Life Insurance Company, hereinafter referred to as the Insurance 'Company, to sell all the insurance assets belonging to the Order, and a copy of this contract is attached to the complaint as an exhibit thereto and made a part thereof. This contract has been approved by the Insurance Commissioner of the State of Arkansas, his approval thereof being indorsed on the contract. A copy of the resolution of the board of directors authorizing the sale was attached to the complaint and made a part thereof.
Plaintiff is one of the members carrying insurance in the Order, and alleged that no notice of the proposed sale was given to him or to any other member, and that no action had been taken by the Grand Lodge authorizing the sale. The board of directors were without authority to sell the assets of the Order in bulk, their only authority being to manage the affairs of the Order in carrying out the purposes for which it was organized.
It was further alleged that the board of directors had delivered to the Insurance Company all the assets of the insurance branch of the Order, and that the Insurance Company has moved a portion thereof out of the State of Arkansas, and are preparing to deliver all the books and records of the Order to the Insurance Company. That by the contract of sale the Order has abandoned its business as an insurance organization, and there is no one in authority to take charge of its assets.
Wherefore, it was prayed that a receiver be appointed to take charge of the books and records now in the hands of the board of directors and “that said re ceiver be authorized and directed to institute such suit or suits as may be necessary looking toward the recovery of all assets of the Ancient Order of United Workmen in its insurance branch, to the end that this plaintiff and all other parties in interest may be fully protected,” and for all other proper relief.
The sales contract, made an exhibit to the complaint, hereinabove referred to, which was designated as a reinsurance contract, contains the following recitals: The A. O. U. W. was organized and chartered and is being-operated under the fraternal benefit laws of the State of Arkansas. The Insurance Company was organized and chartered and is transacting- business as a legal reserve life insurance company under the laws of the State of Texas.
The Insurance Department of the State of Arkansas has ascertained and declared that there is a deficiency in the reserve funds of the A. O. U. W., and has directed that immediate steps be taken to protect the interests of the policyholders.
The board of directors of the A. O. U. W. has resolved and determined that it is to the best interests-of the certificate holders to reinsure the business and the policies held by its members. It was agreed that the Insurance Company should “take over and reinsure such policies or membership certificates,” with the option “to exchange their certificate or policies for any form of life policies issued 'by the National Standard,” and in consideration of this obligation it was further agreed that “The A. O. U. W. shall turn over to the National Standard the original applications and all records pertaining to the certificate or policyholders, together with all books, records, supplies, stationery, furniture, fixtures, apparatus, appurtenances and every item of value and property belonging to and used in the conduct and management of the insurance business of the A. O. U. W. ”
Upon presenting this complaint to the chancery court, an order was made in which three citizens were named as receivers, who were directed to take into their custody the books and records in the hands of the board of directors and that they (the receivers) “shall make and file in the office of the clerk of said court, a complete inventory of all property that may come into their hands as such receivers, with all reasonable dispatch.” It was further ordered: “That said defendants and each of them do deliver to said receivers the said property and every part thereof,” and that the receivers make report of their proceedings under this order, with such recommendations touching the further disposition of the property as they may think best to subserve the welfare of all parties in interest.
Upon being' advised that this order had been made, the defendants gave notice that they would present a motion for the dissolution of the receivership, and this was done. A demurrer to the complaint was also filed, in which it was alleged “that the complaint does not state facts sufficient to constitute a cause of action against the defendants, within the jurisdiction of this court.”
The demurrer was overruled, as was also the motion to dissolve the receivership, whereupon this proceeding wa-s instituted to prohibit the chancery court from further proceeding, upon the ground that it was without jurisdiction to do so. A response has been filed on behalf of the court, in which jurisdiction is asserted.
It is conceded that the A. O. U. W. is a fraternal benefit association and, as such, within the purview of act 462 of the Acts of 1917 (Volume 2, Acts 1917, page 2087), which is entitled “An Act pertaining to the regulation and incorporation of Fraternal Beneficiary Associations, Societies or Orders, and other matters pertaining thereto, and repealing all laws and parts of laws in conflict therewith,” which act appears as § 6068 et seq. O. & M. Digest.
Section 24 of this act appears as §§ 6110 and 6111 C. & M. Digest, and reads as follows:
“'Section 61101. The insurance department, or any person he may appoint, shall have the power of visitation and examination into the affairs of any domestic society. He may employ assistants for the purpose of such examination, and he, or any person he may appoint, shall have free access to all the books, papers and documents that relate to the business of the society and may summon and qualify as witness under oath and examine its officers, agents and employees or other persons in relation to the affairs, transactions and .condition of the society. The expense of such examination shall be paid by the society examined, upon statement furnished by the insurance department, and the examination shall be made at least once in three years.
“Section 6111. "Whenever after examination the insurance department is satisfied that any domestic society has failed to comply with any provisions of this act, or is exceeding its power, or is not carrying out its contracts in good faith, or is transacting business fraudulently; or whenever any domestic society, after the existence of one year or more, shall have a membership of less than 400 (or shall determine to discontinue business), the insurance department may present the facts relating thereto to the Attorney General, who shall, if he deem the circumstances warrant, commence an action in quo warranto in a court of competent jurisdiction, and such court shall thereupon notify the officers of such society of a hearing*, and if it shall then appear that such society should be closed, said society shall be enjoined from carrying on any further business, and some person shall be appointed receiver of such society, and shall proceed at once to take possession of the books, papers, moneys and other assets of the society, and shall forthwith, under the direction of the court, proceed to close the affairs of the society and to distribute its funds to those-entitled thereto. No such proceedings shall be commenced by the Attorney General against any such society until after notice has been duly served on the chief executive officers of the society and a reasonable opportunity given to it, on a date to be named in said notice, to show cause why such proceedings should not be commenced.”
•Section 25 of the act appears as § 6112, C. & M. Digest, which reads as follows:
‘ ‘-Section 6112. No application for injunction against, or proceedings for the dissolution of, or the appointment of a receiver for, any such domestic society or branch thereof shall be entertained by any court in this State unless the same is made by the Attorney General.”
It will be observed that the complaint, the allegations of which have been fully set out, contains no charge that either the Insurance Department or the Attorney General of the State has failed or refused to perform any of the duties imposed by the act from which we have quoted. On the contrary, it affirmatively appears, from the recitals in the exhibit to the complaint, that the Insurance Department has discharged the duty imposed by § 6110, C. & M. Digest. The examination there provided for was made, and, as a result of this examination, it was found and declared that “there is a deficiency in the reserve and funds of the Ancient Order of United Workmen,” and it was ordered and directed by the Insurance Department “that immediate steps be taken to protect the interests of the membership or the policyholders of the society.” It, therefore, affirmatively appears that it was the discharge of the duty imposed upon the Insurance Department which precipitated the sale to the Insurance Company.
It is insisted that this sale was unauthorized and therefore void. But this contention is answered when § 3 of act 493 of the Acts of 1921 is consulted (General Acts 1921, page 472). That section reads as follows: “Section 3. Any stock, mutual or assessment insurance company or association organized under the laws of this State may consolidate or merge with any insurance company or association authorized to transact business in this ’State; and any such domestic insurance company or association may reinsure in any insurance company or association authorized to transact business in this State any single risk or part of any single risk or risks which it may assume; hut no insurance company or association shall have the power to reinsure its entire outstanding business or any part of its risks, other than a single risk, or to merge or consolidate with another company or association, until the contract therefor, duly authorized by the boards of directors or members, shall be submitted to the Insurance Commissioner and be by him approved as protecting fully the interests of all policyholders. And the Insurance Commissioner shall have full power to make such investigation as he deems necessary of the affairs of both companies interested in such reinsurance agreement or merger before approving or disapproving same; provided, this section does not apply to farmers’ mutuals.”
There is no conflict between ■§ 6088, C. & M. Digest and the act of 1921, as the former relates to mergers and consolidations of two fraternal benevolent associations, which did not occur here. If there were a conflict, the act of 1921 would govern, as it is the last enactment.
The writ of prohibition is prayed upon the ground that the action can be mantained only by the Attorney General, and the question presented for decision is, therefore, whether this action may be maintained by one whose only interest is that of a beneficial member holding- a policy of insurance. The decision of this question involves the consideration and construction of the sections of the Act of 1917 above quoted.
It may be first said that the act of 1917, supra, is not a novelty in legislation. It is said in the brief of counsel for petitioners that this is the act which is commonly known as the New York Conference Bill, and that it has been enacted by the 'Legislatures of thirty-seven states, and that its purpose is to secure uniform legislation in the supervision and control of fraternal benefit societies, such as the A. O. U. W.
The constitutionality of the act is not questioned, but it has uniformly been held constitutional in all the cases where the question was raised, upon the theory that it was a valid exercise of the rigrht of the states to determine the powers relating to the government of corporations, and the method of administering and closing them.
We have had two cases, in both of which the constitutionality of the act was assumed, without any discussion of that question. State v. Knights of Pythias, 157 Ark. 266, 247 S. W. 1068 ; Knights of Pythias v. Reinberger, 168 Ark. 77, 269 S. W. 41.
The first of these two cases was a suit brought by the Attorney General, under the authority of § 6111, O. & M. Digest, to wind up the affairs of a fraternal benevolent association, and while the relief prayed was hot granted, his authority to bring the suit was expressly >recognized, and the relief prayed was only denied because the testimony did not' establish the allegations of his bill.
Our act of 1917 is similar to, and, in many respects, identical with, the legislation of other states relating to these fraternal benevolent associations, and this attempted uniform legislation has had uniform construction by the courts which have construed it, at least so far as the question here involved is concerned.
This construction is to the effect that, where the duty of examination and supervision is imposed upon a department of g-overnment, with directions to report the result of the examination to the Attorney General, upon which official the duty is imposed to take such action as may be necessary, under the report, to protect the membership of the Order, an exclusive remedy is provided, and an individual member has no authority, in his own name, to ask for a receivership.
We have not heretofore been called upon to decide this exact question, but we have recognized the principle which other courts have applied. We have here a legislative scheme, which numerous other states have also adopted, for the government of associations of the kind of the A. O. U. W., and a remedy provided whereby the greatest protection may be afforded the membership of such associations. A special department and a State official are clothed with special duties and powers to in- yoke the aid of courts of general jurisdiction in the discharge of these duties. In the case of Wallace v. Hill, 135 Ark. 353, 205 S. W. 699, 701, it was said: “It is a well established rule that has been often adhered to by this court that where a court exercising general jurisdiction under the Constitution has been given special statutory jurisdiction in certain matters, and the manner in which such jurisdiction is to be exercised is pointed out by the statute, the record of such court must show the jurisdictional facts. The statute in such cases must be strictly pursued, and the jurisdiction must be made to appear in the mode pointed out by the statute. No presumption as to jurisdiction in such cases will be indulged (citing cases).”
That principle is applicable here. The plaintiff here has not attempted to invoke the aid of this regulatory statute, 'but has proceeded in defiance of it.
In construing a very similar statute the Supreme Court of Minnesota, in the ease of Baird v. Modern Samaritan, 162 Minn. 274, 202 N. W. 498, 499, said: “Thereunder members with grievances may no doubt appeal to the Insurance Commissioner for redress. Should he refuse, they still have the opportunity under § 3482 to convince the Attorney General of his duty to proceed. Unless dissatisfied members of a fraternal insurance association are able to induce either the Insurance Commissioner or the Attorney General to move to rectify the conduct of the association or its governing body as to its business or methods, we think they can have no redress through the courts. Good reasons readily suggest themselves for the enactment of § 3482. In associations of this sort every one insured is a member. If any dissatisfied or disgruntled member on his own motion may drag the association and its governing body into court as to the conduct of its business or methods of procedure, its usefulness will be seriously impaired and its very existence endangered. The mere fact that an action is brought affects the standing of such an association without regard to whether or not any basis exists for so doing.”
We are not required to go to this extent to award the writ of prohibition here prayed, nor are we called upon, under the allegations of the complaint before us, to say what remedy an individual member might have upon a showing made that the officials of the State had failed or refused to perform their duties. We have here a case where the duty imposed by law has been performed by the Insurance Department, and action has been taken under his approval to protect plaintiff and other certificate or policyholders.
The cases on the subject are too numerous to review, but they are uniform in their holding.
The case of Lowery v. State Life Ins. Co., 153 Ind. 100, 54 N. E. 442, was one in which a policyholder sought to secure an injunction against certain contracts, and numerous acts of wrongdoing were alleged. The question of jurisdiction was not raised, but the Supreme Court of Indiana said it was one which raised itself, and it was there held (to quote a headnote in that case) that “Under act February 10, 1899 (Acts 1899, p. 30), § 17, declaring that no order, judgment, or decree interfering with the prosecution of the business of an insurance company organized under the act shall be made except on application of the Attorney General, the court has no jurisdiction of the subject-matter of a suit brought by another than the Attorney General to enjoin such a company doing certain business.”
See also: 32 C. J., ch. Insurance, § 20, p. 989; Vol. 5, Joyce on Insurance (2d Ed.), § 3598, p. 5946; Supreme Sitting of the Order of Iron Hall v. Baker, 134 Ind. 293, 33 N. E. 1128, 20 L. R. A. 210, and cases cited in annotater’s note; Howe v. Deuel, 43 Barb. (N. Y.) 504 ; Attorney General v. Continental Life Ins. Co., 53 How. Prac. (N. Y.) 16 ; McGarry v. Lentz (D. C.) 9 F. (2d) 680, and Id. (C. C. A.) 13 F. (2d) 51 ; Cummings v. Supreme Council, Royal Arcanum (D. C.) 247 F. 992 ; Grimes v. Central Life Ins. Co., 172 Ky. 18, 188 S. W. 901 ; Young v. Equitable Life, 49 Misc. Rep. 347, 99 N. Y. S. 446 ; Greef v. Equitable Life, 160 N. Y. 19, 54 N. E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659 ; Uhlmann v. New York Life Ins. Co., 109 N. Y. 660, 17 N. E. 363.
The only cases cited by counsel for respondent upon the exclusiveness of the remedy provided by the Act of 1917 are those of Bastian v. Modern Woodmen of America, 166 Ill. 595, 46 N. E. 1090, and Treat v. Pennsylvania Mut. Life Ins. Co., 199 Pa. 326, 49 Atl. 84, 85 Am. St. Rep. 788.
The first of these cases was a suit to enjoin the removal of the principal office of an association from one city to another, a state of case to which such an act as that of 1917 would not apply.
The other case involved the construction by the Supreme Court of Pennsylvania of an act passed by the General Assembly of that (State in 1873 in which it was held that the act required the Attorney General to be made a party in suits brought under the act only where the suit is “instituted for the purpose of closing up the affairs of any company,” but that “such is not the purpose of this bill,” which had been dismissed by the trial court because the Attorney General was not a party.
It appears, therefore, that neither of these cases is out of line with what appears to ibe the universal holding of the courts.
Respondent insists that the Act of 1917 has no application to this case, for the reason that the A. O. U. W. has, by selling its assets, gone out of the insurance business, but that they are not ashing that the Order be closed and its assets distributed.
Whatever the purpose of the lawsuit may be, its effect is obvious. It must, of necessity, end the contract of sale, and thereby terminate the contract of reinsurance and leave the policyholders without the insurance which the contract gives them.
The insistence is that it is desired only to recover the assets of the Order, and that many suits will have to be brought in the name of the receiver to recover these assets. Whether so intended or not, the suit can be nothing else except one to close the insurance branch of the Order and wind it up. The Insurance 'Company is a business corporation, and not an eleemosynary institution, and if it is to be expected to assume the obligations of the A. O. U. W., it should have its assets for that purpose, and its contract entitles it to them. The order already made by the chancery court, if permitted to stand, renders this contract impossible of performance, for it directs the receivers to take charge of the books and records, all of which are, of course, essential to the performance of the contract of sale. In the discharge of their duties the receivers will take over the assets, for just what purpose the court’s order does not make clear, except that a report thereof will be made to the court, “with such recommendations touching the further disposition of the property in their hands as they may think best to subserve the welfare of all parties in interest.”
This order of the court annuls the reinsurance contract made pursuant to the examination of the Insurance Commissioner, which contract was approved by him, and will necessarily wind up the association, whether that is. the purpose of the suit or not.
If it be said that the association has, by the sale of its assets, discontinued business, it may be answered that § 6111, C. & M. Digest, still applies, for discontinuing business is one of the grounds which the statute requires the Insurance Commissioner to report to the Attorney General, upon which the latter may proceed to close the affairs of the society and to distribute its funds to those entitled thereto; but, as we have shown, this is to be done at the suit of the Attorney General, and not upon a suit by a member of the association. What occurred here is that the Ar. O. U. W. has, pursuant to the direction of the Insurance Department and under authority of law, made a contract of reinsurance, which cannot be annulled at the suit of a policyholder who has ignored the instrumentalities provided by law to protect the large interests involved.
We conclude, therefore, that the chancery court is without jurisdiction to proceed, and the writ of prohibition will be awarded and the order appointing the receivers will be vacated. | [
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Hart, C. J.,
(after stating the facts). According to the principles of the common law, the purchaser at a tax sale, when he attempts to enforce rights under his purchase, has the burden of showing that the purchase was made pursuant to law. To do this he must show the substantial regularity of all the proceedings. Cooley on Taxation, 3d ed. vol. 2, page 1004. In this State the common law rule has been changed by statute so that the burden of showing the invalidity of the tax sale is upon the owner of the land. Section 10109, C. & M. Digest; Sawyer v. Wilson, 81 Ark. 319, 99 S. W. 389 ; Gannon v. Moore, 83 Ark. 196, 104 S. W. 139 ; Newman v. Lybrand, 130 Ark. 424, 197 S. W. 855. In the case at bar the defendants assumed this burden and showed by proof, which is not attempted to be contradicted, that the tax warrant required to be delivered to the collector by the clerk of the county court on or before the first Monday in January of each year was not delivered until the 22d day of January, 1925. This section of the statute provides that the clerk of the county court of each county shall, on or before the first Monday in January in each year, make out and deliver the tax books of his county to the collector with his warrant thereunto attached, under his hand, and the seal of his office authorizing such collector to collect such taxes. The section also provides the form of the collector’s warrant. These provisions of our statute relating to the sale of lands for the nonpayment of taxes are in the nature of conditions to the power to sell and are not merely directory. Such provisions are enacted for the benefit and protection of the landowner.
It has become the established rule in this State that a tax sale and deed thereunder confers no title upon the purchaser unless the statutory provisions relating thereto have been strictly complied with. While the section under consideration in this case has not been construed by the court to be mandatory and a compliance with its provisions a pre-requisite to the validity of a tax sale, yet it will be seen that such strict construction of it is in harmony with other decisions of the court relating to the question.
In Martin v. Allard, 55 Ark. 218,17 iS. W. 878, it was held that where the clerk failed to certify the publication of a notice of sale of delinquent lands as provided by statute, the tax sale was void. In Quertermous v. Walls, 70 Ark. 326, 67 S. W. 1014, it was held that a tax sale of land is void where the list of delinquent lands was filed by a deputy sheriff, and not by the collector of taxes or his deputy. In the same case it was also held that a sale of land to the State for nonpayment of taxes is void where the county clerk failed to keep a record of such sale as required by statute. In Hewett v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199, it was held that the failure of the clerk to make the certificate provided by the statute with reference to publication of the delinquent list of lands is fatal to the validity of a tax sale. In Pride v. Gist, 152 Ark. 368, 238 S. W. 35, it was held that a failure to comply with the statute on the part of the collector in filing with the clerk a list of delinquent lands was mandatory and jurisdictional, and that the failure to file such list within time renders void the sale for the taxes of that year. In Wildman v. Enfield, 174 Ark. 1005, 298 S. W. 196, it was held that the failure of the clerk to attach, his warrant authorizing the collector to collect taxes as provided in § 10016 is not a mere irregularity, but is such a defect that is not cured by the two-year statute of limitation.
In the case at bar the clerk did not file his warrant under the section of the statute until the 22d day of January, 1925, while the statute provided that it should be filed on the first Monday in January. This was not a substantial compliance with the statute. The statute prescribes a time limit within which owners of real property may pay their taxes without a penalty. We do not mean to hold that a literal compliance with the provisions of the statute is absolutely essential to the validity of a tax sale, but we do mean to hold that the statute must be substantially complied with. For instance, a delay of two or three days might only result in inconvenience to the landowners, but such a long delay as existed in the present case might seriously impair their rights. It might be necessary that the whole of the time allowed by statute would be essential to the proper discharge of the duties of the office of collector. It might require that •length of -time for him to collect all the taxes. In.any event, it was evidently the purpose of the framers of the statute to require a strict -compliance with its provisions upon the part of the officers charged with the duty of issuing a warrant for the collection oif taxes by the proper officer. This is the authority under which the officer acts and is in the nature of a distress warrant; it affords the officer power to sell the land of the property owner for the nonpayment of delinquent taxes and its provisions we construe-to be mandatory, and that a substantial compliance with them is a pre-requisite to a valid sale of the land.
By analogy the court has held that the warrant is essential to the proper authorization of the collection of taxes. Keith v. Freeman, 43 Ark. 296. Again, in Hooker v. Southwestern Improvement Ass’n., 105 Ark. 99, 150 S. W. 398, it was held that a sale for taxes for the year 1900 was invalidated by the county clerk’s failure to issue a warrant authorizing the collection of taxes for that year. This is in application of the principle that what the law requires to be done in the assessment and collection of taxes for the protection of the taxpayer is mandatory and not directory merely. American Trust Co. v. Nash, 111 Ark. 97, 163 S. W. 178.
The power of sale in a collector of taxes is a naked power conferred by statute, and the effect of its exercise is to divest the- owner - of his property without his consent, and oftentimes without his actual knowledge. Therefore, it has been well said that the power to sell property for the nonpayment of taxes is strictissimi juris, and a failure to comply with the statutory require ments is fatal. Charland v. Trustees of Home for Aged Women, 204 Mass. 563, 91 N. E. 146, 134 Am. St. Rep. 696.
Therefore, we hold that the .statute under consideration is- mandatory, and that its observance is a condition precedent to a valid sale of the land for taxes.
Having reached this conclusion, it is not necessary to consider the other grounds of attack on the sale.
It follows that the decree was correct, and it will be affirmed. | [
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Frank Holt, Justice.
This case arises from a land sale transaction in which Arbor Acres sold a parcel containing approximately fifty-four acres to the Benedicts. A loan was obtained and first mortgage granted to American Savings and Loan Association, which is not a party to this case. Arbor Acres took a second mortgage. Later, American Savings and Loan sued for foreclosure in chancery court, naming the Benedicts and Arbor Acres as defendants. Arbor Acres cross-claimed for default to foreclose on its second mortgage. The Benedicts cross-claimed against Arbor Acres, seeking both reformation and damages, alleging that Arbor Acres had fraudulently misrepresented the quantity of land being sold. Allegedly, 7.995 acres were omitted from the description of the land in the deed. The chancellor, sua sponte, dismissed the Benedicts’ cross-claim without prejudice. Arbor Acres purchased the land at the foreclosure sale and entered a satisfaction of the judgment against the Benedicts.
Shortly after the foreclosure, the Benedicts filed an action in circuit court to recover damages only on the same grounds they had asserted in their cross-claim, which the chancellor had dismissed without prejudice in the foreclosure action. Arbor Acres denied the allegations and also counterclaimed for reformation due to mutual mistake. Arbor Acres then moved for summary judgment on the theory that the compulsory counterclaim statute then in effect required the Benedicts to assert their claim in the foreclosure proceeding. The circuit court agreed and held that the Benedicts’ claim was barred by res judicata. On appeal, we reversed, holding that the Benedicts were not barred from asserting their claim due to res judicata and the compulsory counterclaim statute, since their cross-claim in the foreclosure action had been dismissed by the chancellor sua sponte and without prejudice. Benedict v. Arbor Acres Farm, 265 Ark. 574, 579 S.W.2d 605 (1979).
On remand Arbor Acres moved to have the case transferred to chancery court, where its counterclaim for reformation, an equitable remedy, could be heard. That motion was granted. Thereupon, the chancellor granted the Benedicts’ motion for judgment on the pleadings to the extent that Arbor Acres’ counterclaim for reformation was dismissed with prejudice. The chancellor held that Arbor Acres’ counterclaim was barred by res judicata, since it could have been filed in the foreclosure proceeding and that the parties had an adequate remedy at law. Accordingly, the chancellor ordered the case returned to circuit court for trial. Appeal is taken from that order.
As the parties have briefed it, the sole issue in this case is whether the chancellor correctly applied the doctrine of res judicata to these facts. However, we think the case is resolved by a more elementary consideration.
A basic rule is that a party seeking relief from a court of equity must show that he has no adequate remedy at law. Rodgers v. Easterling, 270 Ark. 255, 603 S.W.2d 884 (1980); Cummins v. Bentley, 5 Ark. 9 (1843). The Benedicts have sued for damages. They do not claim any interest in the 7.995 acres omitted from the deed. Arbor Acres has both legal title and possession to that 7.995 acres. The Benedicts must prove that the omission in the description in the deed was intentional in order to succeed in their claim of fraud. McAllister v. Forrest City St. Imp. Dist., 274 Ark. 372, 626 S.W.2d 194 (1982); and Hembey v. Cornelius, 182 Ark. 417, 31 S.W.2d 539 (1930). Here, as indicated, the chancellor dismissed Arbor Acres’ counterclaim for reformation and ordered the case re-transferred to circuit court for trial, observing that an adequate remedy existed there. Nothing in the order prevents Arbor Acres from controverting at trial the allegation that the omission was made intentionally and introducing evidence that the alleged omission was merely a mistake. The same proof that might prevail in chancery court in Arbor Acres’ counterclaim for reformation could prevail in circuit court in its defense against the Benedicts’ action for damages due to alleged fraud. If it prevails in circuit court, Arbor Acres will continue to have possession and legal title to the 7.995 acres, and neither will it be required to pay any damages. Any claim to the 7.995 acres that the Benedicts might assert will be barred by or merged into the judgment in this action for damages. Restatement, Second, Judgments §§ 18, 19 and 24 (1982). Arbor Acres has received in full all the indebtedness owed it by the Benedicts as indicated by Arbor Acres ’ satisfaction of j udgmen t and i ts full and complete release. Therefore, reformation of the deed, as the chancellor observed, “would be a vain and useless act” by that court. For all practical purposes, Arbor Acres will be in the same position by prevailing in circuit court as it would be by prevailing in a court of equity. Consequently, it has, as the chancellor held, a complete and adequate remedy at law. Equity has no jurisdiction when there is, as here, a complete and adequate remedy at law. Rodgers v. Easterling, supra.
Accordingly, we affirm the chancellor. As ordered by him, the case will be returned to circuit court for trial on the Benedicts’ action for damages based upon the alleged fraudulent transaction.
Affirmed. | [
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Carleton Harris, Chief Justice.
On January 1, 1971, appellant, Davis Duty, assumed his duties as Municipal Judge of the City of Rogers, appellee herein. At that time, the salary for the office was the legally authorized maximum of $4,800 per year. On March 30, 1971, Act 456 of the 1971 General Assembly (Ark. Stat. Ann. § 22-704.1 [Supp. 1971]) became law. The act authorized a maximum salary for various municipal judges in the state. Pertinent portions of this act provide as follows:
“The annual salary of the Judge of the Municipal Court situated within the city or town hereinafter designated shall be retroactive to and from and after January 1, 1971, as follows:”
Here follows a long list of cities, the county in which said city is located, and the salary authorized for the various municipal judges. The maximum salary provided for Rogers is $7,500 per year. However, there is a subsequent paragraph as follows:
“Provided, that the salaries of the judges of the municipal courts of Bentonville, Rogers and Siloam Springs, Benton County, as now established by law may be increased in such amounts not to exceed the maximum salaries authorized herein, only as approved by the Quorum Court of the County and the governing body of the respective cities.”
On November 2, 1971, the City of Rogers enacted Ordinance No. 682 which increased the municipal judge’s salary from $4,800 per year to $6,000 per annum, retroactive to January 1, 1971, ánd also established a salary of $7,500 per annum, to become effective on January 1, 1972. Duty, was paid the $1,200 retroactive pay (difference between $4,800 and $6,000) for the year 1971; from January 1, 1972 through June 30, 1972, at which time appellant resigned from the office, he was paid at the rate of $7,500 per year, or the amount of $3,750 for the six months served. Appellant instituted suit against the city and county for $1,500 (the difference between the $6,000. paid in 1971 and the $7,500 which he claimed to be due under the provisions of Legislative Act 456). Appellees demurred, said demurrers being sustained, and appellant declining to plead further, the complaint was dismissed with prejudice. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the court erred as a matter of law in finding that the salary increase (to $7,500) granted to appellant was not automatically retoractive to Jánuary 1, 1971. We proceed to discuss this contention.
Appellant, of course, relies upon the first sentence of the legislative act, quoted in this opinion, providing that the salary granted shall be retroactive, and he points out that the city ordinance set the salary at $7,500 (though this amount was not the original increase but only became effective in the year 1972). Appellant recognizes that the proviso, with reference to the authorization of $7,500, also herein quoted, appears to modify the sentence relied upon, and he spends some time in his breif quoting grammatical authorities, citing Fernald, English Grammar Simplified, (Rev. Ed. 1963). The citation deals with restrictive and non-res trie tive clauses, and attention is called to the fact drat there is only one comma in the disputed portion of the provision, such comma being located before the word “only”. We need not discuss this argument for we have held many times that the primary rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. Koser v. Oliver, 186 Ark. 567, 54 S.W. 2d 411. We have also held that the true meaning of the General Assembly must be ascertained from a consideration of the whole act. Koser v. Oliver, supra; Bailey v. Abington, 201 Ark. 1072, 148 S.W. 2d 176; and Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279. Still further, in Koser, we pointed out that when the intention of the General Assembly is manifested. “The court will not permit punctuation to control, but will disregard punctuation or will repunctuate, if necessary, to give effect to what otherwise appears to be the proper and true meaning of the statutes. ##*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 contradictory to the letter of the statute.” In Bailey, we said:
“It often happens that the true intention of the lawmaking body, though obvious, is not expressed by the language employed in a statute when that language is given its literal meaning. In such cases, the carrying out of the legislative intention, which, as we have seen, is the prime and sole object of all rules of construction, can only be accomplished by departure from the literal interpretation of the language employed. Hence, the courts are not always confined to the literal meaning of a statute; the real purpose and intent of the Legislature will prevail over the literal import of the words. When the intendon of a statute is plainly discernible from its provisions that intention is as obligatory as the letter of the statute, and will even prevail over the strict letter. The reason of the law, as indicated by its general terms, should prevail over its letter, when the plain purpose of the act will be defeated by strict adherence to its verbiage. It is frequently the case that, in order to harmonize conflicting provisions and to effectuate the intention and purpose of the lawmaking power, courts must either restrict or enlarge the ordinary meaning of words. The legislative intention, as collected from an examination of the whole as well as the separate parts of a statute, will prevail over the literal import of particular terms, and will control the strict letter of the statute, where an adherence to such strict letter would lead to injustice, to absurdity, or contradictory provisions.”
Appellant’s argument is simply that the General Assembly set his salary at $7,500 per year and that Act 456 declared such salary to be retroactive to and from January 1, 1971; that when the salary was increased to that figure, he became entitled to that amount. Appellant agrees that there could be no argument if neither the city nor quorum court acted at all, leaving the salary at $4,800. Obviously, there would be no argument if the city and county quorum court had approved the salary increase to $6,000, and left it at that figure. We cannot agree with appellant for we think that the language of the act, beginning with the word “Provided”, makes it very evident that the Legislature only intended for the Municipal Judge of Rogers to receive any amount up to $7,500, the amount being determined by the city and quorum court of the county. There could be no other reason for the insertion of that clause. We consider that it is clearly shown that the General Assembly intended for a municipal judge to receive whatever amount, up to $7,500, the city and county desired and could afford to pay. This is certainly the logical view to take. Perhaps the revenues of the city would uiiiopov;! salary mcceace of $1,200 for 1971, but not :./inry ?:«. ui $2,700 for that year; however, anticipated revcimcs would support the $7,500 salary beginning in January, 1972. The ur.soundness of appellaiT:: contention can be demonstrated by a hypothetical illustration. Let us say that the General- Assembly passes no further salary act for the next several years; that the City of Rogers and the County were not financially able to increase the salary to $7,500 until January 1, 1976. Under appellant’s view, he could then contend that he was due retroactive pay from January 1, 1971 until January 1, 1976, a total of five years — and, if appellant’s present contention is sound (that he is due retroactive pay of one year), there is no reason why the hypothetical contention would not be sound.
Affirmed.
It is also asserted that there being no genuine issues of material fact to be decided, the court erred as a matter of law in denying appellant’s motion for summary judgment. Under the view taken herein, this point becomes moot, and for that matter, the denial of a motion for summary judgment is not an appealable order. See Widmer v. Ft. Smith Vehicle & Machinery Corporation, 244 Ark. 971, 429 S.W. 2d 63.
It might even be that a larger salary increase could have caused the city or county to run afoul of provisions of Amendment 10 to the State Constitution. | [
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Tom Glaze, Justice.
Appellant brings this pro se appeal from the trial court’s denial of appellant’s petition for declaratory judgment requesting that his parole eligibility be correctly determined. He has failed to abstract any of the record. In addition, the three courts’ sentencing orders needed to determine parole eligibility are omitted from the transcript.
We hold pro se litigants to the abstracting requirement of Rule 9 of the Rules of the Arkansas Supreme Court and Court of Appeals. Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). In the present case, appellant not only wholly ignored this court’s abstracting requirement, but also he failed to privilege us with a record that contains the court orders necessary to determine the parole eligibility issue the appellant raises in this appeal. Accordingly, we are required to affirm pursuant to Ark. Sup. Ct. R. 9(e)(2).
In an earlier appeal, this court denied post-conviction relief to appellant. Pennington v. State, 294 Ark. 185, 741 S.W.2d 266 (1987). | [
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Ed. F. McFaddin, Justice.
This litigation was instituted by the appellant, Gladish, filing- an action against Drainage District No. 17 of Mississippi County, Arkansas (hereinafter called “District”), and seeking (a) to recover damages for the taking of certain lands in the building of a new levee; and (b) to recover damages because other lands were left outside the new levee. Gladish ’s tenants also joined as plaintiffs, in order to recover damages for crops destroyed by the new levee. Even though the case was filed in 1940, various unavoidable circumstances necessitated delay; and the cause was not decided by the Chancery Court until October 26, 1949, when a decree was entered denying relief to the plaintiffs and resulting in this appeal by them.
FACTS
We detail the events in chronological order:
(1) — Through foreclosures and otherwise, the District owned several hundred acres of land protected by the then existing levee; and on November 30, 1936, the District made two contracts of sale, agreeing to sell to Woodard and to Cockerham lands in excess of 700 acres. These contracts provided for annual payments over a period of years and prohibited the purchasers from assigning the contracts without the consent of the District. We will refer to these as “the Woodard and Cockerham contracts.”
(2) — For several years prior to 1936 the District had realized that its existing levee was inadequate, and had negotiated with the'United States Government for the construction of a new levee to he located farther away from the river than the existing levee. In late 1936 or early 1937 the United States Government offered to construct the new levee if the District would furnish the lands and easements therefor. The District on April 1, 1937, obtained certain instruments — designated and referred to herein as “option contracts” — from Woodard and Cockerham, by the terms of which Woodard and Cocker-ham, each as second party, agreed with the District, as first party, that:
. . in consideration of the further sum of $25.00 per acre, to be paid upon the execution and delivery of a General Warranty Deed by the Second Party to the First Party, the Second Party agrees, upon request, at any time within one year from this date, to convey by General Warranty Deed, to the First Party all lands needed by First Party in the construction of its levees and spoil banks; said strip of land commencing on the land side of said levee, 5 feet from the toe thereof and extending to the edge of the borrow pit, including, when finally constructed, the actual levee, berme, borrow pit and a strip of land 5 feet wide on the land side of the levee, over and across the following described land, lying-in Mississippi County, Arkansas, to wit:” (Then follow descriptions of lands totaling 376 acres.)
The option contracts also recited that the exact location of the levee and the lands needed by first party would be ascertained and determined by surveys made by United States Government Engineers.
(3) — On August 2, 1937, Woodard and Cockerham, for a valuable consideration, agreed to assign to the appellant, Gladish, their said contracts of purchase of the lands totaling in excess of 700 acres. This agreement recited:
“It is specifically understood and agreed that the Sellers hold their title to said lands under Contracts of Purchase with Drainage District No. 17 and that their conveyance to the Purchaser will be by the way of an assignment of each of said Contracts, and that said Sellers will in no wise warrant the title to said lands, . . . ” The agreement made no mention of the option contracts referred to in (2), supra. Because the purchase contracts executed by the District to Woodard and Cockerham prohibited assignment without consent of the District, it became necessary for such consent to be obtained.
(4) — On November 3, 1937, the District, having learned that Gladish was about to purchase the “Woodard and Cockerham contracts,” addressed a letter to Gladish (which he received the next day), containing copies of the Woodard and Cockerham options mentioned in paragraph (3) above. Then on November 23,1937, the District consented to the assignments to Gladish of the Woodard and Cockerham contracts, but without any reference to the option contracts.
(5) — There is no dispute as to any of the foregoing facts; but we come now to a controversial matter. Sometime prior to April 1,1938, (and within the year provided for in the option contracts) Mr. Holland (president of the Board of Commissioners of the District) and Mr. Meyer (engineer of the District) went to see Mr. Gladish concerning the option contracts which were to expire on April 1, 1938. That a conversation took place is agreed; but the language and result of the conversation are sharply disputed. The District contends that its said representatives at that time exercised the option contracts for the District. Mr. Gladish insists to the contrary. The Chancellor found that the District in effect exercised its option contracts in the said conversation; and this finding will be discussed in Topic I, infra.
(6) — Sometime in 1939 the District actually entered on some of the lands that Mr. Gladish had purchased from Woodard and Cockerham and constructed the new levee on and across said lands, thereby taking 24.46 acres of Gladish’s land. On April 4,1940, Mr. Gladish and his tenants filed this suit, seeking the relief heretofore mentioned. The District, by its answer and cross complaint, asked specific performance of the said option contracts. The learned Chancellor awarded the District specific per- formalice of the option contracts and refused Mr. Gladish and liis tenants the damages claimed. From that decree comes this appeal with a transcript of 730 pages and printed abstracts and briefs of 278 pages.
OPINION
I. Did the District Legally■ Exercise Its Options? For the purposes of this opinion we may assume, without deciding, that the options were valid in every respect and binding on Gladish as a purchaser with notice. Nevertheless, we hold that the District did not exercise the options in the manner required by law.
The evidence shows that when the option contracts were signed on April 1, 1937, the District had not then obligated itself to the United States Government to furnish the right-of-way; so naturally the definite location of the levee could not have been known at that time, although stakes had been driven for a tentative location. It was not until November 12,1937, that the District executed the resolution for cooperation with the Federal G-overnment. When Messrs. Holland and Meyer went to see Mr. Gladish (as stated in fact paragraph (5), supra), they were trying to get him to extend the time of the options which he refused to do.
Mr. Gladish testified that when the District, on November 23, 1937, executed the consent to the assignment to him of the Woodard and Cockerham contracts and made no reservation as to the option contracts, he considered the option contracts as thereby terminated. Bnt regardless of his understanding of the legal effect of the assignment, Mr. Gladish refused to extend the time in which the District could exercise the option contracts; and the District never informed Mr. Gladish — prior to April 1, 1938 — what specific lands were to be described in the deed required by the option contracts.
When we consider the quoted clause in factual paragraph (2) (that the deed was to be made within one year) with the subsequent clause in factual paragraph (2) (that the description of the lands for the levee was to be ascertained by survey of the United States Engineers), it is clear that the option contract contemplated that the said deed was to actually describe the surveyed lands. The description of such lands was not furnished Mr. Gladish; and this omission probably accounts for the testimony of Mr. Holland relating to an “extension” of the option, which Mr. Gladish refused to give. Mr. Gladish is supported to some extent by the fact that the auditor of the District wrote Mr. Gladish a letter in January, 1939, which, after describing the lands, said inter alia:
“Official notice is hereby given that this District is now ready to exercise its option on the above described contract of purchase, . . .”
This letter, written by the District in 1939, is rather clear evidence that the District, at the time of writing that letter, did not consider that it had theretofore exercised its rights under the option contract. Those rights, unless extended, had expired on April 1, 1938; and we find no evidence of any extension.
So we conclude that in the conversations prior to April 1, 1938, the District was unable to get Mr. Gladish to extend the option; and that the District failed to advise him what lands he was to deed to the District or the amount he was to receive therefor. This description of the right-of-way was information that the District should have furnished Gladish; and this it failed to do. In short, the District failed to pursue the course which the law requires of one who is seeking to exercise an option. See Indiana & Arkansas Lumber & Mfg. Co. v. Pharr, 82 Ark. 573, 102 S. W. 686; Zearing v. Crawford, 102 Ark. 575, 145 S. W. 226; Lane v. Jackson, 135 Ark. 384, 205 S. W. 650; Newman v. Kellogg, 195 Ark. 12, 110 S. W. 2d 693; and Pope v. Shannon, 199 Ark. 1148, 138 S. W. 2d 382. So we hold that the District failed to exercise its option in the manner required by law, and was not entitled to a decree of specific performance of the option contracts.
II. Damages Arising Because of the Taking of the Lands. The District contended — and the Chancery Court found — that the option contracts provided the measure of compensation for the lands taken by the District. When we deny — as we do — specific performance of the option contracts, then Mr. Gladish is entitled to recover the damages allowed by law for the taking of his lands.
Section 4941, Pope’s Digest, was the applicable Statute at the time Gladish’s lands were actually taken in 1939. Under such Statute, Mr. Gladish is entitled to recover (a) the market value of the land at the time it was actually occupied, (b) damages for the inconvenience of crossing from one portion of the tract taken to the other portion of the tract, and (c) damages sustained on account of the obstruction of natural drainage. We discuss these:
(a) — It is admitted that 24.46 acres of Mr. Gladish’s land were actually taken by the District. Mr. Gladish claimed that this land was worth $125 per acre, or a total of $3,057.50; and Mr. Gladish and his tenants claim crop and incidental damages totaling $506.20. We find that the preponderance of the evidence supports these figures ■which total $3,563.70.
(b) — As to the inconvenience of crossing from one portion of the tract to the other portion, a study of the evidence convinces us that $1,000 is an adequate amount for this element of damage.
(c)' — -As to the obstruction of natural drainage, the evidence is too indefinite to justify any award. Mr. Glladish testified only as to the construction of ditches to take care of seep water. We find no substantial evidence that any natural drainage was obstructed by the actual construction of the levee.
So we conclude that the total damages arising from the taking of the land amount to $4,563.70.
III. Damages Claimed Because the New Levee Left Certain Lands Unprotected. Mr. Grladish claims that he is entitled to approximately $15,000 additional damages, because the new levee was set back some distance from the old levee; and some of his lands that had been protected by the old levee are left unprotected because of the location of the new levee. In making this claim for damages he relies on either of two points: (a) that the case at bar comes within the rule of law announced in Garland Levee District v. Hutt, 207 Ark. 784, 183 S. W. 2d 296; and (b) that the case at bar comes within the language of Act 14 of the Second Extra Session of the Legislature of 1932. We find that Mr. Grladish is not entitled to recover on either of these points.
(a) — The evidence does not bring this case within the rule of law announced in Garland Levee District v. Hutt, supra. In City Oil Works v. Helena, 149 Ark. 285, 232 S. W. 28, a setback levee was constructed, leaving lands unprotected by the new levee that had been formerly protected by the old levee; and we held that such fact in itself gave the owner of the unprotected land no cause of action for damages against the District that constructed the new levee. To the same effect is Rauls v. Costner, 201 Ark. 155, 143 S. W. 2d 1090, in which we quoted from a headnote to McCoy v. Board, 95 Ark. 345, 129 S. W. 1097, 29 L. R. A., N. S., 396:
“A levee district, which builds a levee so as to protect lands from overflow of the waters of a stream at floodtime, will not, under Const. 1874, Art. 2, § 22, providing that private property shall not be ‘damaged for public use without just compensation therefor,’ become liable for injuries to land lying between the levee and the river resulting from the flood water being raised higher between the levee and the river'than before the levee was constructed. ’ ’
Such was our recognized holding when Garland Levee District v. Hutt, supra, was decided. That case recognized the holdings in the cases previously mentioned but said:
“. . . There was some evidence in this case that the lands of appellees lying between the ngw levee and the river were, under the plans of the new levee project as actually executed, to be used as a basin to receive flood waters in time of overflow from Red River, which flood waters would act as a cushion against the current of the overflow and thereby protect the new levee.
“On a retrial of this case the jury should be instructed that, if they found from a preponderance of the evidence that under the plans for the new project as actually carried out the said lands of appellees were to be used as a means of affording protection in the manner above set forth to the new levee, then the landowners would be entitled to recover as damages for the imposition of this servitude or easement on their land the difference between the fair market value of their land before the new levee was built and the fair market value thereof after the construction of the new levee.”
In the case at bar the evidence fails to show that Mr. Grladish’s lands in front of the new levee are used in any such way as to justify an award of compensation. At the downstream, or lower end of the old levee, and on lands located below those of Mr. Grladish, a section of the old levee has been removed so that any water accumulating on the lands between the old and the new levee can flow off naturally. There was no complete removal of the old levee in front of Mr. Grladish’s lands, nor was the old levee removed upstream so as to allow the water to “bottleneck” between the old and the new levee in front of his land, as was unsuccessfully claimed to be the situation in Rauls v. Costner, supra. Bather, in the case at bar, the break in the old levee was downstream from Mr. Gladish’s lands, so that whatever water accumulated between the old and the new levee would the more rapidly drain from the land when the river subsided. We conclude, therefore, that the case of Garland Levee District v. Hutt, supra, is not factually applicable to the claim of Mr. Gladish in the case at bar.
(b) — Neither does Act 14 of the Second Extra Session of 1932 afford any relief to Mr. Gladish. In Garland Levee District v. Hutt, supra, the landowner sought to claim relief under the said Act, and our language in that case is applicable here:
“Nor can it be said that Act 14' of the second extra session of 1932 is applicable to the case at bar because, by the plain provisions of that act, it is limited in its application to cases where a written agreement had been made by the board of commissioners to compensate landowners for damages resulting from the abandonment of the existing levee and the building of a set-back levee. No such agreement is alleged or proved in this case.”
It is true that the option contract of April 1, 1937, (as heretofore referred to in paragraph (2) of the Facts) gave the District an option to take lands for flowage rights upon the payment of an amount stated in the said option contract; but Mr. Gladish has — successfully in this Court — established the fact that the option contract expired. He cannot defeat one portion of the option contract and then successfully rely on another portion: it was an indivisible instrument. Since the option contract expired, there remained no valid contract between Mr. Gladish and the District, whereby the Act 14 of the Second Extra Session of 1932 may be invoked by the landowner. Therefore — under the facts presented in this case —Mr. Gladish is not entitled to recover any damages, on the claim that some of his lands were left unprotected by the new levee.
CÜNCLUSION
The decree of the Chancery Court is reversed, and the cause is remanded, with directions to enter a decree for appellants for $4,563.70, with interest at six per cent, from August 31, 1939. As to costs, Woodard and Oock-erham are entitled to recover from Mr. G-ladish all their costs. The appellants are entitled to recover from the District all their other costs'.
Appellants cite and strongly rely on Hogan v. Richardson, 166 Ark. 381, 266 S. W. 299, as holding that an option instrument was a unilateral offer when the consideration for the option was only one dollar. In Hogan v. Richardson, the instrument stated no time limit during which the option would be kept open: the decision could well 'have been put on that point and would not have been contrary to the weight of authority; which is to the effect that an option contract for one dollar is valid. In 55 Am. Jur. 504, the rule is stated: “The inadequacy of the consideration does not affect the binding effect of the option. This is the rule generally applied in case of options given in consideration of one dollar.” See, also, 66 C. J. 494 and 1 Williston, “Contracts” (Rev. Ed.), §§ 61 and 115.
We give the testimony of Messrs. Holland, Meyer and Gladish as to the conversation:
(a) — Mr. Holland’s testimony was:
“Q. Just what was your conversation at that time?
“A. The substance of what he said was that he was not going to extend the option, and then we told him that we wanted to exercise the option that bound him, that we had with the other parties, and I asked him if it would be necessary for us to do whatever was necessary under the option, and he said, no, he wouldn’t recognize it. We wanted him to extend it like the rest of them were, and when he wouldn’t do that, we informed him it was our contention that it did bind him with the other parties.
“Q. Was that all that was said? Did you tell him what land you wanted to take? Did you tell him what lands would he in the floodway? Had the District made its survey at the time this conversation took place?
“A. I don’t remember whether it had or not. I know this, that Mr. Gladish knew about what the Government was going to do the same as I did, before he bought the land.
“Q. Did you know definitely what lands would be in the Government right-of-way? There would be no way of knowing that until the Government ran the line, and the Government hadn’t done that on April 1, 1938, had it?
“A. I don’t remember.
“Q. What I am getting at is this, that the reason why you said you asked other parties to extend their options, or renew their options, was because the time was about to elapse without the Drainage District knowing what lands would be needed?
“A. I guess it is, I don’t remember when those surveys were made.
“Q. The last time you talked to Judge Gladish, or on any one of the occasions you talked to him about these options, did you know the exact number of acres you needed and the amount of money that would be required to pay for it under these options?
“A. Johnny (i. e., Mr. Meyer) might have.
“Q. As far as you were concerned, you didn’t?
“A. No, sir.”
(b) — Mr. Meyer’s testimony was:
“Q. At the time you and Judge Holland interviewed Judge Gladish the last time, what did he say he was going to do with reference to this option?
“A. As I remember it, he said he wasn’t going to do anything about it.
“Q. You say you can’t give the exact conversation?
“A. No, I can’t give the exact conversation.
“Q. For the purpose of refreshing your memory, I will ask you whether or not Judge Holland proposed to him that if he would comply with the option that you would tender the money or do whatever was necessary to carry it out?
“A. Yes, sir.
“Q. What did he say to that?
“A. In so many words he said: ‘Nothing doing.’ ”
(c) — Mr. Gladish’s testimony was:
“Q. It has been testified on direct examination of Johnny Meyer and Judge Holland that they did — some two or three weeks before the options expired by their terms on April 1, 1938 — have a conversation with you relative to the option.
“A. They did.
“Q. At that time — will you state the substance of that conversation?
“A. Well, the substance of all the conversations was to get me to renew the contract.
“Q. Did they offer you either orally or in writing- a specific description of any rights-of-way or flowage rights over your land?
“A. No, sir.
“Q. It was testified by Johnny Meyer that he and you had discussed at some time where the new levee was to be and what acreage was involved and in general that you knew the descriptions of the lands to be sought by the District for that purpose. Is that true or not?
“A. He never discussed anything with me about that right-of-way until the engineers went down and went across my land around the first of the year 1939.”
This letter related primarily to a provision in the option contract regarding lands in front of the new levee, which will be discussed in Topic III, infra. But the significant point is that it referred to the fact that the District was then preparing to exercise option contracts; and that carries with it the idea that the option had not been exercised theretofore.
Sec. 8 of Act 177 of 1945 (now found in § 35-1108, Ark. Stats. 1947) is similar in all material matters here involved to § 4941, Pope’s Digest; but this cause of action arose prior to the adoption of the 1945 Act.
See the recent case of Staub v. Mud Slough District, 216 Ark. 706, 227 S. W. 2d 140, on this third element of damages.
Interest runs from the taking. See Newgass v. Railway, 54 Ark. 140, 15 S. W. 188. The testimony merely discloses that the entry was “August, 1939,” so we have fixed it as the last day of the month. | [
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George Rose Smith, Justice.
This case centers upon the asserted pollution of a drainage ditch and a water well. The appellant, as the owner oí the lands upon which the ditch and well are situated, brought suit to enjoin the city of Marmaduke from 'continuing to discharge into the ditch the effluent from the municipal sewage treatment plant. Sewer Improvement District No. 1 and certain taxpayers are also parties to the suit, but for convenience we will refer only to the city. The chancellor refused to issue the requested injunction, finding that the city had acquired a prescriptive right to the use of the ditch and that the plaintiff’s water well was not actually being affected by the city’s activity. The appellant questions the sufficiency of the evidence to support each of those findings.
Hodge owns extensive farm lands that are bounded on the south by State Highway 34. Along the north edge of the highway, and admittedly upon Hodge’s land, there is a large drainage ditch that varies from 3 to 18 feet in depth and from 21 to 65 feet in width. For forty years or more the city of Marmaduke has discharged the surface water from its streets into the ditch. The appellant concedes that the city has acquired a prescriptive right to use the ditch for the disposal of surface water.
In 1962 the city completed the construction of a settling basin, or lagoon, for the treatment of sewage. The lagoon is on the south side of Highway 34, approximately across the road from the western part of Hodge’s property. The city provided an outlet from the lagoon into the ditch by laying a tiled duct under the highway— a project that closed the highway to traffic for about ten days. The city had discharged the effluent from the lagoon into the ditch for almost ten years when this suit was brought in 1971.
Apparently the suit was precipitated by the fact that the lagoon finally filled up to such an extent that it no longer converted sewage into an acceptably harmless effluent. While the suit was pending the city constructed a second lagoon, which concededly corrected the deficiency that had developed. The chancellor’s final decree was entered after the second lagoon was in operation and had proved to be efficient.
We consider first the city’s asserted prescriptive right to use the drainage ditch as an outlet for its treatment plant. Although there are comparatively few cases involving the acquisition of a flowage easement by adverse use, the parties are not in disagreement about the law. The basic principles of adverse possession are applicable. As the Nebraska court said in Courter v. Maloley, 152 Neb. 476, 41 N.W. 2d 732 (1950); “That an easement may be acquired by prescription for the flow of waters there can be no doubt. Such an easement however cannot be acquired except by open, notorious, exclusive, and adverse use for a period of ten years.” (In Arkansas the period is only seven years.)
The appellant, in insisting that the city did not acquire an easement by prescription, relies upon LeCroy v. Sigman, 209 Ark. 469, 191 S.W. 2d 461 (1945), where we held that in order for a person to acquire a prescriptive easement across unenclosed and unoccupied property — in that case a vacant city lot — he must show some circumstance or act of hostility indicating that the use was not merely permissive. It is argued that here the city failed to make that showing.
We do not find the chancellor’s contrary conclusion to be clearly against the preponderance of the evidence, the issue being one of fact. Two circumstances support the chancellor’s decision. First, when the original lagoon was created in 1962 the public highwy was blocked for ten days while the conduit was being laid from the lagoon to the ditch. Not only that construction work but also the discharge of the effluent into the ditch were obvious to anyone using the highway. Hodge, whose land was just across the road, does not say that he was unaware of what was taking place. Thus he must have known that the city was incurring substantial expense in creating a new access to the ditch, for the discharge of something more than mere surface water. It is fair to say that Hodge was not justified in assuming that the city’s use of the ditch was merely permissive and therefore subject to his veto at any time.
In the second place, we are not convinced that Hodge’s land was unoccupied within the LeCroy rule. His cultivation of his fields stopped at the edge of the ditch. He now argues that, even so, the ditch itself was unoccupied land, since trees and other vegetation had grown up within it. That situation, however, cuts both ways. It is equally reasonable to say that the ditch was occupied by those who were asserting a flowage easement therein and that therefore the cessation of Hodge’s cultivation at the edge of the ditch amounted to a recognition of the adverse user. We conclude that the chancellor’s finding of a prescriptive right must be sustained.
The second point for reversal involves the water well near Hodge’s residence. Here the candor of Hodge himself and of his counsel lightens the difficulty of our decision. The water from the well has a slightly unpleasant odor, but that is admittedly due to iron and sulphur in the soil. It is also admitted that even if the effluent from the treatment plant percolates from the ditch into the well — an issue of fact upon which the evidence is in dispute — the resulting impurity of the water is physically harmless to the health of one who drinks it. Moreover, the testimony indicates that the State Department of Health found the expanded municipal sewage treatment plant to conform to ecological standards.
Hodge testified that when he discovered, just before this suit was filed in 1971, that there was at least some minimal percolation from the drainage ditch to his water well, he stopped using that water for household purposes and thereafter hauled in all the water needed for domestic use. The chancellor found that there was in fact no percolation of the effluent from the ditch to the well, but the appellant insists that the proof preponderates against that conclusion.
The factual issue is a close one, upon which we are not persuaded that the trial judge’s finding of no percolation is clearly against the weight of the proof. There is, however, another reason for affirming the decree. Hodge admits that the water, even if impure, is harmless to health; but he insists that the city’s maintenance of the treatment plant is a private nuisance, because as a reasonably sensitive person he is justified in his unwillingness to drink water that may be traced in part to a plant where human sewage is treated. He relies upon such cases as Powell v. Taylor, 222 Ark. 896, 263 S.W. 2d 906 (1954), where we held that the maintenance of a funeral home in a municipal residential district may be enjoined as a nuisance, simply because such an establishment, though not physically offensive, tends by its continuous suggestion of death and dead bodies to destroy the comfort and repose sought in home ownership. Hodge argues, upon the same premise, that the contamination of his well, even though not physically harmful, is so offensive as to amount to a nuisance that should be abated.
We think the force of that argument to have been blunted by the passage of more than seven years, during which the challenged condition existed continuously. In the Powell case the neighboring landowners brought their suit at once, not after the asserted nuisance had been tolerated for many years. That fact distinguishes that case from this one. We do not hold — we do not even imply — that one who pollutes a stream without objection for more than seven years acquires a prescriptive right to continue. We do hold, however, that when, as here, the discharge is regarded as lawful and harmless by the public authorities, one in Hodge’s present position cannot complain after having tolerated the situation for more than seven years. Of course our opinion does not foreclose Hodge’s right to relief if the second lagoon eventually fails, as the first one did, with the result that improperly treated sewage is piped into the ditch.
Affirmed.
Harris, C.J., not participating. | [
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John A. Fogleman, Justice.
This case involves a dispute about a boundary line. Appellant and the other heirs of Robert and Lula Hicks own 80 acres of land. A part of the northern boundary of that tract is the southern boundary of a 40-acre tract owned by appellees. The dis-Eute was provoked when appellees caused a survey of the oundary to be made and built a fence on this line, which is now conceded to be the true boundary. Appellant then brought this action for himself and his co-heirs, claiming a tract of 0.84 of an acre north of this line and fence. He based this claim upon allegations that an old road along, but lying north of, the true boundary had been recognized as the dividing line by the parties for over 30 years, making this road a boundary by acquiescence. This road, according to the contentions of appellant, lay north of the presently established true line. Appellant also claimed that he and the other heirs of Robert and Lula Hicks held this 0.84-acre tract by adverse possession. Appellees claimed that the fence was on the true boundary and that they, rather than appellant and his co-heirs and their predecessors in title, had held adverse possession of the lands.
After trial, the chancellor, who viewed the property involved, made specific findings that appellant had failed to sustain his burden of proving that there was an agreed boundary or that he and his co-heirs had title by adverse possession, and entered his decree accordingly, fixing the true boundary on the survey line. Appellant recognizes that the chancellor’s findings as to adverse possession, the location of the true boundary and the fixing of a boundary by express agreement are not clearly against the preponderance of the evidence. He argues, however, that the chancellor’s decision entirely overlooked the issue as to whether there was a boundary by acquiescence. Even if this be so, appellant failed to meet his burden of proving long acquiescence in the road, if indeed it existed in the vicinity of the disputed area, as a boundary.
The common boundary between the parties is 757.3 feet long. It clearly appears that both the true line and the boundary claimed by appellant lie totally in wooded lands. The evidence appears to clearly establish a boundary, at least by adverse possession, in a road between the owners along the north line of the east half of the Hicks’ 80-acre tract, where the lands on both sides are in cultivation, but the disputed line is the north boundary of the west one-half of this tract, which is not cleared or in cultivation. There is evidence from which a finding that the Hicks family recognized a road connecting two north-south public roads, one lying west, and the other east, of the two tracts involved, might have been justified, but there is no evidence that appellees or their predecessors in title did. Although silent acquiescence is sufficient, there is no evidence that the Newtons were ever aware that anyone claimed that the road, said by some witnesses to have ultimately reached the Thomas farm which lay west of the Newton property, constituted a boundary. Even though there was testimony by members of the Hicks family that the Newtons were never known by the witnesses to have claimed any of the land south of this road, there is no evidence that there was any occasion for them to assert a claim. This alleged road, according to the county surveyor, the first witness called by appellant, is now evidenced only by a rutted terrain through the woods. He found pine and gum trees as much as five inches in diameter growing in this terrain. No lane or road in the wooded area was apparent to this surveyor on aerial photographs of the area taken in 1951, 1956 and 1964. He found some posts and wire out in the area, but could not connect them, and he could not find enough posts and wire to establish the course of a fence. Even though he attempted to sketch what he felt was the center line of this road, he admitted that he could not tell on which side of the road fences had run at some time in the past. According to appellant, his sister and brother, however, the west half of the Hicks tract was timbered and not fenced. He admitted that these lands were always unenclosed and unimproved and used only for making “ties.” According to Roosevelt Newton, there once had been an old wagon road which meandered in a westerly and southwesterly direction from its connection with the lane between the Newton land and the east half of the Hicks property. He said that this road was abandoned in 1928. His wife testified that during the 36 years she lived with her husband she never heard of any of the Hickses or anyone claiming to own any of the Newton land north of the true line. Jack Newton, aged 43, testified that he had lived near the Hicks property all his life and never knew of any road that ran anywhere near the southwest corner of the Newton tract, and had never known any of the Hickses to claim any property north of the true line. It is significant that Lewis Hicks, who had lived all his life on the Hicks tract helped Roosevelt Newton to build the fence on the true line, without laying any claim to the disputed tract and without making any objection, beyond saying that the fence was not on the old line. This witness, upon examination by the chancellor, stated that there had been nothing in the woods that would mark the line between owners to the north and those to the south.
This evidence falls far short of establishing acquiescence by the Newtons in any boundary except the true one.
Harris, C.J., not participating. | [
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Robert H. Dudley, Justice.
The plaintiff filed this suit on January 22,1992, and service of process was had on January 27, 1992. On February 19, 1992, the defendant filed an answer and counterclaim that is in the nature of a set-off. On February 21, 1992, the trial court granted a default judgment for the full amount of damages prayed. The defendant moved to have the default judgment set aside, and the plaintiff moved to strike the counterclaim. On April 17,1992, which was within ninety days of the default judgment, the trial court refused to set aside the default judgment as to liability, but did set it aside as to damages and refused to strike the counterclaim. The defendant seeks to appeal, even though the issue of damages and the counterclaim remain to be tried before there can be a final order.
We have frequently held that we will not decide the merits of an appeal when the order appealed from is not a final order. Sevenprop Assocs. v. Harrison, 295 Ark. 5, 746 S.W.2d 51 (1988); Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986); McIlroy Bank and Trusty. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). In each of these cases we stated that in order for a judgment to be appealable, it must dismiss the parties or conclude their rights to the subject matter in controversy.
Appeal dismissed.
Hays and Corbin, JJ., dissent. | [
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Robert H. Dudley, Justice.
Upon motion, we granted a temporary stay in this speedy trial case. We now dissolve the temporary stay and decline to issue a writ of prohibition because the speedy trial rules have not been violated.
Although petitioner divides his argument into three points, we need discuss it only as one: whether his right to a speedy trial has been violated. The material dates and events are as follows:
June 6, 1986 arrest
June 9, 1986 charge by information
November 6, 1986 plea of guilty
November 20, 1987 petitioner allowed to withdraw his plea of guilty and new trial date set
July 18, 1988 petition for writ of prohibition
The petitioner argues that A.R.Cr.P. Rule 28.1, which defines the time limitations, has been violated because he has been held to trial for a period of 25 months. The argument overlooks the fact that the petitioner pleaded guilty five months after the time first began to run. A defendant, by a plea of guilty, waives a number of significant rights, including the right to a speedy trial. Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984).
The real issue is, after a guilty plea is ordered withdrawn, when does the time for a speedy trial begin to run? Rule 28.2, which defines when time begins to run, addresses the issue by analogy only. Subsection (c) provides:
(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence run ning from the date of mistrial, order granting a new trial or remand.
We hold that an order allowing the withdrawal of a plea of guilty is analogous to an order granting a new trial, and the time for a trial begins to run anew after an order is entered allowing the withdrawal of a guilty plea. Thus, only eight months have run, and Rule 28.1 has not been violated.
The petitioner argues that the trial court did not comply with all the provisions of Rule 24, which describes how a trial judge is to receive and act upon a plea of guilty. The short answer to that argument is' that the plea of guilty was in effect until the trial court ordered it withdrawn.
Lastly, the petitioner argues that the trial court failed to enter written orders or make docket entries, and under Rule 28.3(i) no delays should be attributable to the petitioner. The argument is without merit. Although the trial judge failed to make a docket entry of either the guilty plea or the authorization to withdraw the plea, the events were taken of record and transcribed on September 21,1987, long before petitioner asked to have the case dismissed. This record of trial clearly sets out the guilty plea and the proceeding’s authorization for the withdrawal of the plea. The trial judge then entered a written order setting out all of the events. There is no requirement under Rule 28.3 that this type of order be entered prior to the petition for prohibition as there is for a continuance due to docket congestion. See Rule 28.3 (b) and Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979), requiring that a finding of excluded period due to calendar congestion must be entered at time of delay.
Temporary stay dissolved; writ of prohibition denied. | [
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ROBERT J. GLADWIN, Chief Judge.
| A Stone County jury awarded appellee David Mathews $570,000 in compensatory damages and $500,000 in punitive damages on his claims against appellant Roma Trakru for breach of contract, breach of fiduciary duty, and fraud. For reversal, Trakru argues that the circuit court erred in failing to grant her directed-verdict motion on each of Mathews’s causes of action; in awarding Mathews attorney fees; in limiting cross-examination of Mathews; and in instructing the jury on fraud. We affirm.
I. Factual Background
David Mathews is the former owner of Stone County Ironworks (Ironworks), an iron-furniture design and manufacturing company headquartered in Mountain View, Arkansas. |2Under Mathews’s ownership, the business enjoyed much success, with even greater growth projected at the turn of the twenty-first century. With growth came debt, however, and by 2002, Ironworks had approximately $5,000,000 in outstanding loans with Bank of America. The loans were collateralized by Ironworks’s assets and personally guaranteed by Mathews.
In 2003, Ironworks defaulted on its loan payments, with approximately $4,600,000 due and owing. The bank engaged consultant Paul Porter to streamline Ironworks’s operation and obtain financing elsewhere. When those efforts failed, Porter recommended that Ironworks be sold. He became the trustee of the company’s assets through an assignment for the benefit of creditors and began looking for buyers. Mathews cooperated with Porter, for which Bank of America agreed to relieve him of his personal guarantee on the loans.
There was no shortage of interest in the company. Arkansas businessmen Sam Winstead and Tom Earnhart considered buying Ironworks, and appellant Roma Trakru of a California mergers-and-acquisitions company inquired about Ironworks on behalf of one of her clients. When Trakru learned that no brokerage commissions would be paid on the Ironworks sale, she ceased her inquiries as an agent and became interested in Ironworks personally-
Through mid-2003, Trakru and Mathews exchanged several phone calls and emails regarding a potential partnership in the iron furniture and decorating business. They contemplated that Mathews would provide the manufacturing skills for the enterprise while Trakru would provide her financial, technology, and management expertise. In a June 7, 2003 email, Trakru told Mathews that he would have stock options in the nascent company and that, if his investment matched hers, he would become a fifty-percent partner. Trakru also 1 ¡¡mentioned that Mathews would need to sign a non-compete agreement as part of the deal.
On June 8, 2003, Trakru drafted a Memorandum of Understanding (MOU) in which she and Mathews agreed to form a partnership. The MOU stated that they would be equal partners in the business; that Mathews would have a year to defer his investment in the company, after which his investment amount would increase by twenty-five percent each year; that each party would own a fifty-percent interest in the company at the end of three years or thereafter; that the agreement was valid until December 31, 2003, or until superced-ed by “another specific contract”; and that further details would be enumerated in a contract to be drawn up within two months. Mathews signed the MOU and returned it to Trakru. The MOU does not bear Trakru’s signature, but Trakru told Mathews that she had signed the document.
Mathews and Trakru agreed to name their new company Metal Arts, Inc. Within a short period of time, Metal Arts became part of a plan in which Ironworks’s assets would be purchased by three different buyers: Tom Earnhart and his business partner would buy Ironworks’s Calico Rock industrial plant for $950,000; Sam Winstead would buy Ironworks’s other tangible assets, such as real estate and equipment, for $750,000; and Mathews and Trakru, “or an entity in which one or more of them is an investor” would buy Ironworks’s intangible assets, such as goodwill, trademarks, customer lists, and intellectual property, for $400,000. As part of these proposed transactions, all parties agreed that they would execute a mutual non-compete and non-solicitation agreement.
On the evening of July 1, 2003 — approximately one week before the closing of the Ironworks sale — Trakru and Mathews executed a handwritten document during an evening |4at Sam Winstead’s cabin. The document purported to give Mathews certain stock options in Metal Arts and provided as follows:
Whereas David Mathews and Roma Trakru entering into this agreement related to purchase of Stone County Ironworks on this 1st day of July 2003 by our signatures we agree as follows[:] David Mathews has a right to purchase up to 50% of Metal Arts, Inc. upon payment of 50% of original price plus any other moneys invested in the Stone County Ironworks purchase and operation within the first one year minus any return of capital to Roma Trakru.
During subsequent years he can purchase an equity interest in Metal Arts, Inc. at valuation of 1.25 of original prior year’s purchase price proportionate to the invested capital of Roma Trakru.
As and when David Mathews invests his 50% of invested capital in Metal Arts, Inc. Roma Trakru will assign that proportionate % of stock in Metal Arts, Inc. to David Mathews.
Invested capital is amount of money used for purchase 4- amount invested available cash. Available cash is available to Roma Trakru to withdraw from the company and will not be included as part of invested capital, [signed by Mathews and Trakru; witnessed by Winstead and Earnhart].
According to Mathews, he insisted on executing the above “stock-option agreement” because he was worried that, with the Ironworks sale approaching, his partnership agreement with Trakru was unclear and that, under the terms of the pending sale, he would be required to sign a non-compete agreement that would render him unable to participate in the iron-working business.
Mathews did not exercise his option to buy into Metal Arts before the sale of Ironworks’s assets on July 9, 2003. Consequently, Trakru, through Metal Arts, became the sole owner of Ironworks’s intangible assets on that date. Mathews relinquished all of his | ¡¡Ironworks assets on July 9 and, by virtue of the covenant not to compete that he signed at closing, was prohibited from working in the iron-furniture business.
Within days after closing, Trakru’s attitude toward Mathews changed drastically, and she informed him that they could not work together. Trakru explained later that she felt wrong about the partnership for various reasons, including that Mathews had spoken harshly to her and that Mathews’s employees allegedly said that they did not want to work for him. When Mathews indicated to Trakru that he wanted to exercise his option on Metal Arts, Trakru offered to sell him the company for approximately $580,000, which, according to her, was $50,000 more than she had invested. Mathews began trying to put together a financing package but encountered difficulty getting in touch with Trak-ru.
Mathews later notified Trakru that he wanted out of the covenant not to compete. Trakru’s attorney responded that the covenant not to compete remained enforceable. In August 2003, Mathews requested an accounting from Trakru “to determine the purchase price should Mr. Mathews elect to exercise his option to purchase 50% of Metal Arts, Inc.” Trakru’s attorney responded that the option did not exist. No further information was forthcoming from Trakru.
Mathews eventually learned that Trakru had paid herself $300,000 in consulting fees from the amount she invested in Metal Arts and that she had sold Metal Arts for $640,000 within a few weeks after the July 9, 2003 closing. On August 6, 2003, Trak-ru and a man named Paul Balentine formed a company called Metal Creations, Inc., and that company | (¡purchased Metal Arts on or about August 22, 2003. Later, Balentine paid Trakru $550,000 for her interest in Metal Creations. Mathews re ceived none of the proceeds from these transactions.
On January 20, 2004, Mathews sued Trakru and Metal Arts in Stone County Circuit Court for fraud, breach of contract, and breach of fiduciary duty, based on the above-mentioned events. Following a trial, the jury found Trakru liable on all three causes of action and awarded Mathews $570,000 in compensatory damages without allocating that amount to any particular cause of action. The jurors also awarded Mathews $500,000 in punitive damages, having been instructed that they could do so in connection with the fraud claim. The circuit court entered judgment accordingly and granted Mathews $53,500 in attorney fees based on the breach-of-contract verdict.
II. Denial of Directed Verdict
Trakru argues first that the circuit court erred in denying her motion for a directed verdict, which she made at the close of Mathews’s case and at the close of all of the evidence. The motion was directed to all three of Mathews’s causes of action and, with Mathews’s agreement, incorporated arguments made by Trakru in several pretrial motions.
In reviewing the denial of a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. Jenkins v. APS Ins., LLC, 2013 Ark. App. 746, 431 S.W.3d 356. We do not try the issues of fact on appeal but simply review the record for substantial evidence to support the jury’s verdict. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. \rjld. We view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
A. Breach of Contract
Mathews’s breach-of-contract claim arose from the handwritten “stock-option” agreement that Mathews and Trakru signed at Winstead’s cabin on July 1, 2003. An option contract is an agreement that consists of an offer by one person to sell something within a limited time and an accompanying right by the other person to accept or reject the offer within that time. See Roetzel v. Coleman, 2010 Ark. App. 206, 374 S.W.3d 166. As parties to the unilateral contract, the optionor is bound while the optionee is free to accept or reject the offer. 1 Richard A. Lord, Williston on Contracts § 5:16 (4th ed.2007); Swift v. Erwin, 104 Ark. 459,148 S.W. 267 (1912). During the time in which the optionee can exercise his option, the optionor cannot act in derogation of the option offer. Williston on Contracts, supra. In this case, Mathews alleged that the option agreement was breached when Trakru sold Metal Arts before he was allowed to exercise his option.
We begin with Trakru’s claim that the handwritten option did not contain definite terms sufficient to create a contract. Before a contract may be enforceable, it must be definite and certain in its terms. Kinkead v. Estate of Kinkead, 51 Ark.App. 159, 912 S.W.2d 442 (1995). The writing in this case was sufficiently definite to comprise an option contract. It provided that Mathews had a right to purchase an interest in Metal Arts at a formulaic price within one year and at a different price in subsequent years.
Trakru also argues that the option contract lacked mutuality because it did not require anything of Mathews. Mu tuality of contract means that there must be an obligation by each [«party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound. See Essential Accounting Sys., Inc. v. Dewberry, 2013 Ark. App. 388, 428 S.W.3d 613. However, lack of mutuality is not an impediment to the parties’ option contract. As just explained, a unilateral option contract by nature lacks mutuality — the optionor is bound to her offer while the optionee is free to accept or reject it. Williston on Contracts, supra. As long as there is consideration, a unilateral option contract does not require mutuality. Id.
This leads to Trakru’s next argument, which is that the option contract was not supported by consideration. Consideration is any benefit conferred or agreed to be conferred upon a promisor to which he is not lawfully entitled, or any prejudice suffered or agreed to be suffered by a promisee, other than that which he is lawfully bound to suffer. Landmark Savings Bank v. Weaver-Bailey Contractors, Inc., 22 Ark.App. 258, 739 S.W.2d 166 (1987). Trakru claims that consideration was lacking in this case because Mathews gave nothing in return for the option.
We disagree. Mathews explains that, in exchange for Trakru’s promise of an option to invest in Metal Arts, he executed the asset-purchase and non-compete agreements of which Trakru was a beneficiary. He testified that he would not have signed those agreements without the promise of the partnership with Trakru. Although, as Trakru points out, there was evidence to the contrary, it was the jury’s prerogative to resolve conflicts in the evidence. See generally Lindsey v. Watts, 273 Ark. 478, 621 S.W.2d 679 (1981). Viewing the proof in the light most favorable to Mathews, there was substantial evidence that Mathews conferred a benefit on Trakru in exchange for the option to invest in Metal Arts, Inc.
|sTrakru contends, however, that no consideration flowed to her because the non-compete agreement was signed for the benefit of the other asset purchasers. Her contention is contradicted by the evidence. Trakru asked Mathews to sign a non-compete early on in her communications with him, and she attempted to enforce the covenant not to compete in a counterclaim she filed against Mathews in this lawsuit.
Trakru argues further that part of Mathews’s purported consideration — signing the covenant not to compete — was illusory because he viewed the covenant as unenforceable. On this point, Trakru references several emails in which Mathews and his attorneys discussed an overly broad and possibly unenforceable covenant not to compete. According to Mathews, those conversations concerned a different covenant, and his claim is supported by the documentary proof. In any event, Mathews and his lawyers acknowledged that whatever covenant they were discussing could prove enforceable.
Trakru also asserts that Mathews’s July 9, 2003 signatures at the Ironworks closing could not serve as consideration for the July 1, 2003 option contract. Arkansas law does require “contemporaneous” consideration, but we apply this rule to prohibit past matters from serving as consideration for a current promise. See Simmons v. Simmons, 98 Ark.App. 12, 249 S.W.3d 843 (2007). Here, Mathews’s signatures on the asset-purchase and non-compete agreements were given a few days after Trakru’s promise and were given as part of a related set of contracts. We therefore find no merit in this argument or other possible arguments raised by Trakru with regard to lack of consideration.
Trakru’s remaining arguments regarding the breach-of-contract verdict have not been preserved for appellate review. A motion for a directed verdict shall state the specific grounds | intherefor. Ark. R. Civ. P. 50(a) (2018). The requirement that specific grounds be stated is especially necessary when a case involves multiple issues, as this one does. Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008). Further, a party is bound by the course and scope of the arguments made in her directed-verdict motion. Boellner v. Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745.
B. Fraud
Trakru offers several reasons why the jury’s fraud verdict was not supported by substantial evidence. As in the immediately preceding discussion, some of the assignments of error are not preserved for review. Others rely on Trakru’s breach-of-contract arguments previously rejected. Consequently, we reach only the following arguments.
Trakru first contends that any misrepresentations made to Mathews regarding his option to buy into Metal Arts were based on promises of future conduct and were therefore not actionable as fraud. Fraud requires, among other things, proof of a false representation of material fact. First Ark. Bank & Trust v. Gill Elrod Ragon Owen & Sherman, P.A., 2013 Ark. 159, 427 S.W.3d 47. Representations that are promissory in nature, or of facts that will exist in the future, do not support an action for fraud. P.A.M. Transp., Inc. v. Ark. Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993).
We see no reversible error on this point. Even if Trakru is correct that her representations to Mathews were promissory in nature, an exception to the “future events” rule arises if the promisor, at the time of making the promise, has no intention to carry it out. \uDelta Sch. of Commerce v. Wood, 298 Ark. 195, 766 S.W.2d 424 (1989); Hobson v. Entergy Ark., Inc., 2014 Ark. App. 101, 432 S.W.3d 117; Stine v. Sanders, 66 ArkApp. 49, 987 S.W.2d 289 (1999). Here, substantial evidence supports a finding that Trakru made a false promise knowing at the time that it would not be kept. Upon acquiring Ironworks’s intangible assets on behalf of Metal Arts, she immediately rejected Mathews as a partner in Metal Arts and quickly put the company on the market, despite having promised Mathews an option to invest in the company just days earlier. Trakru’s intent in so acting was a question of fact. Stine, supra. The jury may well have interpreted her behavior to mean that she did not intend to honor the option contract when it was made.
Trakru also argues that any misrepresentation she made to Mathews regarding his option to invest in Metal Arts was not material. A matter is material if it is significant or affects a person’s decision-making. See Black’s Law Dictionary 1066 (9th ed.2009). Clearly the option rights were significant to Mathews. As already discussed, Mathews testified that Trakru’s representations regarding the option agreement were critical in his decision to go forward with the asset-purchase agreements and the covenant not to compete.
Trakru further claims that she made no misrepresentation because she did what she promised she would do: offered to let Mathews buy into the company. Trakru is referring to her offer to let Mathews buy her out for $580,000. That, however, was not what the option agreement provided. Mathews’s option was to buy up to half of Metal Arts. Further, he needed an accounting to compute the amount of his buy-in but could not obtain the necessary information from Trakru. Trakru also cites a letter sent by her lawyer to Mathews on February 3, 2004 — not long after suit was filed in this case — asking Mathews if he stood ||2ready, willing, and able to purchase an interest in Metal Arts. By that point, however, Trakru had shut down Metal Arts and sold all of its assets.
Additionally, Trakru contends that Mathews did not reasonably rely on any misrepresentations to his detriment. She echoes her earlier argument that Mathews did not rely on her representations in deciding to sign the asset purchase agreements or the covenant not to compete. As stated earlier, Mathews testified that he needed the option agreement to feel protected in signing the asset-purchase agreements and the non-compete agreement. Trakru maintains that Mathews was required to sign those agreements regardless of any representations she might have made. Whether Mathews’s refusal to sign the agreements would have been prudent, he did have the choice of signing or not signing them.
C. Damages
Trakru argues several specific reasons why Mathews’s causes of action must fail due to lack of proof of damages. At trial, Trakru argued generally that there was no substantial evidence of damages. But, she did not articulate the specific arguments that she now makes on appeal with regard to damages. We therefore do not reach her arguments. See Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996); Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). We note that, in any event, the proof supports Mathews’s claim for damages on both the contract and fraud theories.
We therefore affirm the jury’s verdict against Trakru for breach of contract and fraud. Having done so, we affirm the award of attorney’s fees to Mathews on the ground that his action was primarily based in contract. Ark.Code Ann. § 16-22-308 (Repl.1999). We also | ^affirm the punitive-damage award in conjunction with the fraud verdict.
Our holding makes it unnecessary for us to reach Trakru’s arguments regarding the verdict for breach of fiduciary duty. See S. Beach Beverage Co. v. Harris Brands, Inc., 355 Ark. 347, 138 S.W.3d 102 (2003).
IV. Limitation of Cross-Examination
During voir dire, it was established that a potential juror, Karen Bernstein, was a former Ironworks employee. Bernstein was asked if she knew anything about the case, and she responded that she did not. She was not chosen to sit on the jury.
While Mathews was on the stand during his case-in-chief, Trakru wished to cross-examine him about Bernstein’s likely knowledge of the case, in contrast to her statements during voir dire. The court did not allow the cross-examination in the presence of the jury, citing Ark. R. Evid. 403 (2013).
We will not reverse on an evidentiary-issue in the absence of a manifest abuse of discretion by the circuit court. Eft v. Rogers, 2012 Ark. App. 632, 425 S.W.3d 1. Here, the court cited Rule 403, which permits the exclusion of relevant evidence that is, among other things, more unfairly prejudicial than probative, confusing, or involves undue delay and a waste of time. We see no manifest abuse of discretion in the court’s limitation of Mathews’s testimony regarding a matter that was tangential to the proceedings and bore no significant probative value.
V. Jury Instruction
114The court instructed the jury on the elements of fraud and also gave the following instruction:
A plaintiff may establish deceit by submitting proof that a defendant made a false promise knowing at the time that it was made that it would not be kept.
Trakru argues that this instruction was misleading because it appeared to recite the sole element of fraud.
We conclude that Trakru did not preserve this issue for appeal. The record reflects only a general objection to the instruction. No party shall assign as an error the giving of an instruction unless he objects thereto, stating distinctly the matter to which he objects and the grounds of his objection. Ark. R. Civ. P. 51; Agracat, Inc. v. AFS-NWA, LEG, 2012 Ark. App. 372, 2012 WL 1943334. The party must tell the court why the instruction is wrong. Agracat, supra. Trakru did not meet this standard.
Trakru argues, however, that no objection was necessary because the instruction was inherently erroneous. An inherently erroneous instruction excuses a specific objection when the instruction is binding. See Agracat, supra. A binding instruction tells the jury that, if the conditions asserted in the instruction are found to exist, the jury will return a verdict based on the instruction. See id. The instruction at issue did not tell the jury to return a verdict and, therefore, was not binding. Consequently, a specific objection was required to challenge the instruction.
Trakru also claims that the circuit court failed to make a record of two hearings on jury instructions. The record reflects that the circuit court gave Trakru the opportunity to place the basis for her objections to jury instructions on the record. She did so with regard to some | ^instructions, but not the one at issue. Further, as Mathews points out, this case returned to circuit court for the purpose of obtaining a final order and remained there for a long period of time. If Trakru had desired to recreate a record, she had every opportunity to do so, but did not.
VI. Motion to Dismiss
Pending before us is Mathews’s motion to dismiss Trakru’s appeal based on Trak-ru’s alleged delay in obtaining a final order from the circuit court following our 2011 opinion in Trakru v. Mathews, 2011 Ark. App. 750, 2011 WL 6064994. We deny the motion.
VI. Conclusion
The judgment against appellant Roma Trakru is affirmed in all respects. Mathews’s motion to dismiss is denied.
Affirmed; motion to dismiss denied.
VAUGHT and HIXSON, JJ„ agree.
. We previously dismissed this appeal for lack of finality. Trakru v. Mathews, 2011 Ark. App. 750, 2011 WL 6064994. The circuit court has now entered a final order that resolves all pending claims.
. Mathews owned Ozark Mountain Enterprises, Inc., which did business as Stone County Ironworks.
. In addition to the $400,000 stated price of Ironworks’s intangible assets, Trakru claimed to owe Winstead and Earnhart another $130,000 as part of the asset sales.
. Mathews pled additional causes of action that are not at issue on appeal.
. To the extent that Trakru raised certain arguments in a posttrial motion, those arguments are barred if they were not previously raised in her directed-verdict motion. Boell-ner, supra.
. Trakru does not challenge the amount of the attorney-fee award or the punitive-damage award, nor does she make an argument regarding an election of remedies between the contract and tort causes of action. | [
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Darrell Hickman, Justice.
The only issue in this case is whether an administrative order, including findings of fact and conclusions of law, was properly served on a corporate defendant. The trial court held that service was inadequate, evidently holding service had to be the same as service of a summons on a corporation. Ark. Code Ann. § 16-58-124(a) (1987). We disagree. The order dismissing the complaint is remanded for further proceedings.
F & F Concrete Products, Inc., the appellee, was charged by the Contractors Licensing Board with building sidewalks in Conway without a contractor’s license. F & F was served with notice of the hearing by mail and that notice was received by H. Reno. The president of F & F, Mr. J. F. O’Kelley, was present at the hearing and present when the judgment was entered imposing a penalty of $2,500 on F & F.
The board’s order containing its findings of fact and conclusions of law was mailed to F & F and again Mr. H. Reno signed for it. When the order was ignored, F & F was written twice and asked to pay the penalty. After ten months, suit was filed in circuit court to collect the penalty. The board asked for summary judgment, but F & F claimed service was not proper since the president of F & F, its agent for service, had not received notice of the order. It was not contended no notice was received, only that it was not legal notice. The judge agreed and dismissed the board’s complaint.
Service of an order of an administrative agency can be by mail. Ark. Code Ann. § 17-22-103(e)(3) (1987); Ark. Code Ann. § 25-15-210(c) (1987). There is no requirement that such service comply with the law regarding service of summons. See People v. Penn. Central Co., 60 Misc.2d 919, 304 N.Y.S.2d 149 (1969). In this case notice was adequate.
Reversed and remanded. | [
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Butler, J.
Appellee, plaintiff in the court below, was a switchman in the employ of the appellant railway company and engaged in the work of moving interstate commerce which was being transported by the defendant, a common carrier by railroad, and engaged at the time in commerce as such (between the States. On the 11th day of December, 1927, while employed as aforesaid, appellee received severe personal injuries by reason of the defective condition of the track over which commerce was being handled in Shreveport, Louisiana.
There is no conflict in the evidence with reference to tie manner in which the injury was received or the cause of it. This evidence conclusively establishes the freedom of the appellee from blame and the negligence of the appellant company. The injuries were not thought to be serious or permanent, and, after having been confined at his home for a few days, the appellee reported to the company physician, and on being advised that he was able to return to work reported for duty. He was informed by the yardmaster that he could not begin work until he had signed a release. On the 26th day of .September a release was executed and appellee was paid the sum of $92.68, that being the amount which would have been due him had he continued at work from the 11th of September to the 26th, and was payment for this lost time. Appellee returned to work on the 27th of September, and soon after began to suffer from unaccustomed pains and soreness and stiffness of the body and progressively grew worse until January 5, 1928, when he had to stop work and go to the hospital where he remained for twenty days under the examination and treatment of physicians. A short time after his release from the hospital on March 26, 19-28, he was discharged from the service of the company because his physical condition was such that he could no longer perform his duties.
Appellee filed this action on March 9, 1929, alleging the nature and extent of his injury, and that it was caused by the negligence of the appellant company. The appellant answered denying the allegations of the complaint and pleading the settlement and release before executed in ¡bar of the action, to which plea appellee replied alleging that the settlement was procured by fraud, and was the result of a mutual mistake. The jury found the issues in favor of the appellee and returned a verdict in favor of the appellee in the sum of $22,500, on which judgment was accordingly entered and from which the appellant has duly prosecuted this appeal.
As before stated the evidence established the negligence of the appellant and the resultant injury to the appellee while in the performance of his duties and in the exercise olf' ordinary care for his own safety. There is also but little', if any, conflict in the testimony relative to the physical condition of the appellee at the time of the trial, the great weight of the evidence being to the effect that he was suffering from a diseased condition of the vertebrae which rendered him unable to perform manual labor and which would probably never be any better, but would progressively become worse. The cause of that condition, however, was a matter of dispute upon which the testimony was in sharp conflict, that of the appellant tending to show that appellee’s condition was the result of rheumatic trouble arising from an unknown origin and which was antecedent to the injury received on September 11, which injury, it is contended, was slight and not permanent. The testimony on behalf oif the appellee, on the other hand, tended to show that prior to the injury appellee was a man otf' more than ordinary strength and vigor, was in good health, and that his then physical condition was the result of the injury received. This question was submitted to the jury under proper instructions, and its verdict on this issue is conclusive here, and no question is raised as to the amount of the verdict.
During the trial of the case the appellant interposed numerous objections to the action of the trial court in its rulings on the admissibility of testimony, to the action of the trial judge in himself propounding questions to witnesses, to the refusal of the court to give a number of instructions requested by. the appellant, and in giving other instructions on its own motion and at the request of the appellee, and to improper remarks made by counsel during the course of their argument and here urged as error.
One of! the assignments of error was- for the court’s action in overruling appellant’s motion to suppress the deposition of certain witnesses taken before a notary puiblio in the State of Texas. The record discloses the fact that the appellant was represented by counsel at the taking of the deposition, and no objection was there interposed to the manner of taking- or the form, the only right to object reserved was to the competency, relevancy and immateriality of the questions and answers. Appellant argues that the certificate of the notary public fails to show that the witnesses were sworn, but it does not state that they were not sworn. Appellant complains also that the testimony was taken down iby the notary public in shorthand, and that this was a failure to meet the requirements of the statute that the stenographer taking down the testimony must be sworn. Had the appellant not been represented by counsel at the taking of the deposition, the certificate would have been defective, but since appellant was so represented we must assume that the deposition was r egularly taken, and that all irregularities were waived since only the right to object to the deposition for competency, etc., was reserved. The requirement that the stenographer must be sworn (§ 4235, C. & M. Digest) has no application where the notary himself takes down the testimony. The correctness of his action is guaranteed by his oath of office, and it would be im material in what manner the testimony was written, in the absence of a specific objection.
Appellant moved to transfer the cause to equity and complains of the action of the court in overruling its motion. The court did not err. The case was properly triable at law, and the appellant was entitled to present all the grounds of defense pleaded. St. L. I. M. & S. R. Co. v. Smith, 82 Ark. 106, 100 S. W. 884.
'We now pass to what we consider the important questions involved, namely, is the release executed September 26, 1927, valid and binding, or was it entered into through mutual mistake or procured by false representations of the appellant’s agents believed and relied upon by the appellee, and were these issues properly submitted to the jury under correct instructions? It is admitted that the settlement and release executed in accordance therewith was signed by the appellee 'with full knowledge of its terms, and is. a complete bar to his cause of action unless entered into through mutual mistake or procured by false representations believed and relied upon by the appellee. In order to appreciate the effect of the representations on the mind of the appellee regarding the extent and probable duration of the injury, it is necessary to briefly consider and review the circumstances attendant upon the incident of appellee’s injury and what occurred to him thereafter that might be attributable to his injury.. To perform his duties as switchman in the yards of the appellant company, it was necessary for appellee to stand on the running board of the locomotive while it was moving to and fro. While in this position and while the locomotive was moving at the rate1 of from six to eight miles an hour, an obstruction on the track came in contact with the running board off the locomotive bending it so as to cause the appellee to fall. He fell forward and in front of the running board which caught his body as the locomotive continued to move, doubling him under it and rolling him forward some 25 or 30 feet before the engineer who witnessed the fall could bring the engine to a stop. Appellee was extricated ¡by Ms fellow workmen. His clothing’ was 'badly torn, one shoe heel ground off by the revolving wheel of the engine, he was badly shocked, and complained at the time of an injury to his shoulder. After a short time he recovered sufficiently to climb into the cab without assistance and there rode the engine to within about five blocks of his home where he descended and started in that direction. He had to sit down to rest twice before reaching home and the following morning remained in bed and sent for the company physician who came and made a perfunctory examination of his body. Appellee requested on several occasions that the physician come again, but this request was not complied with and within three or four days he was able to go to the doctor’s office and there a splinter was taken from his body and a bit of germicide of some sort put on his abrasions. In a few days he went back to work, but soon discovered that he was not improving but growing steadily worse, until he had to stop work and was finally discharged from the service of the company because of his physical condition.
Appellee testified that when “he (Dr. Quinn, the company physician) saw me at my home, all he done out there was to put mercurochrome where I was scratched. He never did anything to my back at all; when I went to his office he did nothing for my back; I saw him in Ms office about four times, I think. During that time I was still suffering. The last time I was at his office was September 23 — some eleven or twelve days the pain and swelling had not left my body at that time. I had a conversation with Dr. Quinn at that time. He told me that the best tMng I could do would be to return to work; that the exercise and use of my muscles would cause tMs soreness to disappear — that the exercise would cause the remaining soreness to disappear and in a few days I would be as good as I ever was. He said my injuries were merely sprains and bruises and no bones or bony structure was injured, and as soon as I returned to work that the remaining soreness would disappear, and I would he as well ais I ever was 'before I was injured. I certainly did believe that.” Appellee further testified, “The claim agent visited me in Shreveport on the 26th, I believe it was, for the purpose of settling my claim. I talked with him. I told him what Dr. Quinn told me. He said he had also talked to the doctor and that the doctor told him my injuries were merely sprains and bruises; that when I returned to work the remaining soreness would disappear. He told me that the doctor knew what he was talking about; that the doctor assured him, that my condition was not and had not been serious. I asked the claim agent for $200 and straight time for settlement. The claim agent represented that I was not seriously injured and was able to return to work and continue to work as well as I ever was before I was injured. He would not give me any more than straight time. He gave me straight time — paid me for fourteen days’ work for the time I was off. I accepted that. I accepted the settlement because the doctor told me my condition was not serious — that there was no bone or bony structure hurt — that when I returned to work the exercise would cause the soreness to leave and I would be as good a man as I ever was. The claim agent told me that I was not seriously injured; that I was able to. return to work and continue to work as well as I did before I was injured. I believed that to be true at that time. That caused me to make the settlement.”1
The doctor and claim agent denied that any such statements had been made by them. This denial created an issue of fact which was determined by the jury in favor of the appellee, and this is conclusive upon us if the evidence as accepted by the jury was sufficient to establish a state of facts that would justify an avoidance of the release. These facts are sufficient and bring this case within the rule announced in the case of St. L. I. M. & S. R. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, 804. In that case the misrepresentation of the physician relied on was that when the doctor examined Hambright he told him his injuries were not serious, that he would be able to go to work by the first of March, and he replied to him, ‘ ‘ Doctor, it is up to yon — I don’t know and I want to know just what you think,” and the doctor said, “It is nothing bad, and yon will be all right by the first of March.” Hambright further stated that at the time the settlement was being negotiated the claim agent called the physician over the telephone and, after inquiring as to Hambright’s condition, listened a few moments, and then turned to witness and said, “The doctor says that you are not badly hurt and that you will be able to go to work by the first of March.” Hambright said he placed every reliance upon the statement of the doctor, thought he knew what he was talking about, consulted no other doctors at that time regarding his condition, and after receiving information from Jones, the claim agent, he made the settlement and executed the release.
It was the contention of the appellant in that case that the evidence was not sufficient to show that the appellee was either deceived or misled or that any fraud was practiced on him in obtaining the settlement. In discussing this question, the court cited and reviewed a number of cases and concluded by saying, “The appellee’s evidence fully meets the requirements of the authorities to avoid a release induced by fraud. ’ ’ That case has been followed and approved in a line of decisions beginning with the case of St. L. I. M. & S. R. Co. v. Carter, 93 Ark. 589, 126 S. W. 99. Among the later cases approving the doctrine announced in the Hambright case, supra, are the cases of Newsum, etc. Co. v. Shoemaker,. 173 Ark. 872, 294 S. W. 11 ; Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9 ; F. Keich Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 24 ; Mo. Pac. Ry. Co. v. Elvins, 176 Ark. 743, 4 S. W. (2d) 528.
The court submitted the foregoing' question to the jury under proper instructions, but on the degree of proof required gave the following instruction: “The jury are instructed that if they find that the settlement entered into between the plaintiff and defendant was not based upon false misrepresentation or mutual mistake, you will find for the defendant, and the burden devolves upon the plaintiff to prove by a preponderance of the evidence that such misrepresentations were made or mutual mistake existed.” The appellant earnestly insists that the giving of this instruction was error in that it authorized a verdict (for the plaintiff on a ¡bare preponderance of the evidence, and that in this ldnd of a case it was not sufficient for the plaintiff to establish his case by mere preponderance of the evidence, but that the jury should have been instructed that the burden was upon the plaintiff to establish its allegations of fraud or mistake “by evidence clear, cogent and convincing,” and relies upon the case of Chicago etc. Ry. Co. v. Wilcox (C. C. A.), 116 Fed. 913, and the case of Wallace v. Skinner, 15 Wy. 233, 88 Pac. 221, to support its contention.
It will be noted that the first-named case was a suit in equity to cancel a written release, and in that case the court held that a release might not be rescinded for fraud or mistake unless the evidence of fraud or mistake is clear, unequivocal and convincing. This is likewise our rule in equity cases where fraud or mistake is pleaded and affirmative relief sought. Ogletree v. Smith, 176 Ark. 597, 3 S. W. (2d) 683. But the instant case is a suit at law and the allegation of fraud or mistake is defensive only, no cancellation of the written instrument being asked, but its consequence merely sought to be avoided. The Wyoming case, supra, was an action at law for a recovery of damages, and the defense of fraud or mistake was offered in avoidance of a release pleaded in bar to the cause of action. In that case the court laid down the clear preponderance rule, but we have been unable to find any support for this case, but think the weight of authority and the decisions of our own court are to the contrary. This view is supported by the case of Capitol Traction Co. v. Smead, 58 App. D. C. 141, 26 Fed. (2d) 296, page 303; Lumley v. Wabash Ry. Co. (C. C. A.), 76 Fed. 66 ; St. L. I. M. & S. R. Co. v. Phillips (C. C. A.), 66 Fed. 35, while in this State the mere preponderance rule has been uniformly given to juries without any question raised and considered by this court without criticism, and tacitly approved. Ind. Mut. Ind. Co. v. Thompson, 83 Ark. 575 (582), 104 S. W. 200, 10 L. R. A. (N. S.) 1064, 119 Am. St. Rep. 149 ; St. L. I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803 ; St. L. I. M : & S. R. Co. v. Carter, 93 Ark. 589 (594), 126 S. W. 99 ; F. Kiech Mfg. Co. v. James, 164 Ark. 137 (142) 261 S. W. 24 ; St. L.-S. F. Co. v. Cox, 171 Ark. 103, 283 S. W. 31 ; Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9.
In the case of Rice-Stix Dry Goods Co. v. Montgomery, 164 Ark. 161, 261 S. W. 325, 329, the issue was whether the maker of the note sued on was induced to execute the same through fraud and misrepresentation. In that case it was argued that the burden of proof was on the maker the same as if he was asking in equity to rescind his contract and cancel the note. A number of cases were cited to sustain that view. In referring to those cases this court said: “But the rule in these cases, to-wit, that before equity will cancel, set aside, or reform a deed or instrument for fraud, the proof of the alleged fraud must be clear, convincing, and unequivocal, has no application to actions like this at law. Here no affirmative relief of cancellation or reformation of an instrument is sought, but the defense is simply that of non-liability .because of deceit and fraud in procuring the instrument which is the foundation of the action. While fraud at law, as well as in equity, is never to be presumed and must be proved, yet in actions at law one who has the burden of proof to establish fraud meets the requirements of the rule when he proves the fraud only by a preponderance of the evidence.”
It is the contention of the appellant that, although this might be the rule in this court, it cannot be applied in the instant case as the injuries received by reason of appellant’s negligence are determinable by the Federal Employers’ Liability Law (45 U. S. C. A., §§ 51-59) as interpreted and applied by the decisions of the federal courts. In the first place, it may be said that we have not been able to find where the federal courts have laid down the rule that in actions at law in defending’ against the validity of a release the degree of proof required should be clear, unequivocal and convincing, nor do we understand that such rule; if held by the federal courts, would be binding upon this court in the instant case. The Federal Employers’ Liability Act and the principles announced by the federal courts for its interpretation and application are limited to a declaration of the substantive law fixing liability and the conditions under which causes of action may exist, but the remedies for making effective those rights or enforcing the liabilities created must be determined by the laws of the forum in which the action is brought. This appears to be clearly implied from the language- used by the court in Minneapolis, & St. Louis Ry. Co. v. Bombolis, 241 U. S. 211, 36 S. Ct. 595, 598, 60 L. ed. 961, Ann. Cas. 1916E, 505, L. R. A. 1917A, 86, where it is said: “It is conceded that rights •conferred by Congress, as in this case, may be enforced in State courts; but it is said this can only be, provided such courts in enforcing the Federal right are to be treated as Federal courts and be subjected pro hac vice to the limitations of the seventh amendment. And, of course, if this principle were well-founded, the converse would also be the case, and both Federal and State courts would by fluctuating hybridization be bereft of all real, independent existence. That is to say, whether they should be considered as State or as Federal courts would from day to day depend not upon the character and source of the authority with which they were endowed by the government creating them, but upon the mere subject-matter of the controversy which they were considering.” That the right to recover for the injury and the rules by which that injury is to be established is governed by tbe act of Congress as construed by tbe Federal courts cannot be denied. To our mind, it is equally certain that where the action is brought in a. State court the procedure for making effective that right is determinable under the rules of procedure in that State. We are therefore of the opinion that the instruction quoted, supra, was properly given. See also St. L.-S. F. R. Co. v. Cox, 171 Ark. 103, 283 S. W. 31.
The abstracts and briefs presented for our consideration are of such volume as to make a detailed discussion and analysis of all the questions raised impractical. We have endeavored to discuss the most salient features and those which appear to have been most .doubtful. On the whole case, it is our conclusion that there was no prejudicial error committed in the trial of the case, that the issues were fairly presented to the jury, and its verdict is supported by substantial evidence.
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Robert H. Dudley, Justice.
The appellant, a resident of Springdale, was arrested in Springdale, in Washington County, at 2:30 a.m. for driving while intoxicated and three related traffic offenses. He was taken to the Washington County jail in Fayetteville, where a gas chromatograph test was administered. He was then given a citation which directed him to appear in the Elkins Municipal Court for his trial. Elkins is also in Washington County, but about 18 miles from Springdale.
In the Elkins Municipal Court the appellant objected to venue based upon due process, equal protection, and Ark. Code Ann. § 16-85-201 (1987). The municipal court overruled the objections to venue and found the appellant guilty of all four charges. He then appealed to circuit court and, for his defense, relied upon error in the municipal court’s ruling. The circuit court provided him a trial de novo, and he was found guilty of the driving while intoxicated charge and one of the other misdemeanors. He now appeals to this Court and argues that the municipal court erred in its ruling. We find no basis for setting aside the circuit court’s judgments.
Even though the municipal court venue might have been erroneous, a point we do not reach, the applicable statute provides for an appeal to circuit court, where the accused is entitled to an entirely new trial, “as if no judgment had been rendered” in municipal court. Ark. Code Ann. § 16-96-507 (1987). The appellant does not question the fact that he received a fair trial, with proper venue, in circuit court — a trial that was not influenced or affected by what took place in the municipal court. Therefore, there is no basis for reversing the judgment of the circuit court. Killion v. City of Waldron, 260 Ark. 560, 542 S.W.2d 744 (1976).
An accused is not without a remedy when he is cited into a municipal court which he believes to be improper venue. In such a situation, the accused should seek a writ of prohibition in circuit court. A writ of prohibition will issue when a lower court without venue is about to act. Tucker Enterprises, Inc. v. Hartje, Judge, 278 Ark. 320, 650 S.W.2d 559 (1983); Beatty v. Ponder, Judge, 278 Ark. 41, 642 S.W.2d 891 (1982); International Harvester v. Brown, Judge, 241 Ark. 452, 408 S.W.2d 504 (1966); and Monette Road Improvement District v. Dudley, Judge, 144 Ark. 169, 222 S.W. 59 (1920).
Affirmed.
Holt, C.J., Hickman, and Newbern, JJ., dissent.
Glaze, J., concurs. | [
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J. Fred Jones, Justice.
The regularly elected judge of the Pulaski County Circuit Court, Fourth Division, ordered Jack L. Lessenberry, a practicing attorney in Little Rock, to represent Bonnie Jo Tenpenny at her jury trial on a charge of delivering a controlled substance consisting of heroin in violation of the state law. Lessen-berry failed and refused to represent Mrs. Tenpenny at the trial presided over by a special judge. He was held in contempt by the special judge and a-fine of $1,000 was assessed against him. The matter is now before us on cer-tiorari.
The pertinent facts appear as follows: On March 5, 1973, Bonnie Jo Tenpenny was arrested and placed in jail charged with the sale of heroin. She was first arraigned -in municipal court where Mr. Lessenberry appeared with her and assisted in obtaining her release from custody on bond. Mrs. Tenpenny was arraigned in circuit court on March 19. Mr. Lessenberry appeared with her at the arraignment, entered her plea of not guilty, requested a jury trial and also a bill of particulars. The case was passed to April 18, 1973, for a jury trial and the oral motion for a bill of particulars was granted. On April 9, 1973, Attorney Lessenberry wrote a letter to the presiding judge, Honorable Richard B. Adkisson, with carbon copies to Jeff Pence, Esq., Hon. Byron Southern and Mrs. Bonnie Tenpenny, which states as follows:
“Dear Judge Adkisson:
I appeared with Mrs. Tenpenny for arraignment and at that time, you set the case for a jury trial for April 18, 1973.
I had represented Mrs. Tenpenny in Municipal Court. I told her, however, that I would not handle the matter in circuit court, especially in view of the trial date. I referred her to Jeff Pence and he has told me that Mrs. Tenpenny did not keep her appointment with him.
I wish to be relieved of this matter because I have so many obligations I am unable to satisfactorily discharge them all.
Please advise me what I must do to cause my name to be removed as Mrs. Tenpenny’s attorney.”
This letter was filed in the circuit clerk’s office on April 10, 1973, and on the same date the record shows the following notation:
“The Court doth hereby deny Jack L. Lessenberry’s request to be relieved as attorney of record in the above styled cause.”
On April 10, 1973, Mr. Lessenberry wrote another letter to Judge Adkisson with copies to lion. Byron Southern and Mrs. Bonnie Tenpenny as follows:
“I wrote you on April 9 advising you that I desired to be relieved from any obligation to represent Mrs. Tenpenny in the forthcoming trial of the above referenced case. In that letter, I requested your assistance and instructions as to what must be done to accomplish this. In that-letter, I set forth some of the reasons why I did not wish to represent Mrs. Tenpen-ny. There are other reasons which I did not think it appropriate or necessary to mention.
This morning I received a telephone call from your clerk notifying me that time was short and that I was expected to appear with Mrs. Tenpenny for trial of the case of April 18.
After due consideration of all of the circumstances, I will, of course, be present in court on April 18 as you directed, but I have decided that I will not represent Mrs. Tenpenny in this trial.
I have absolute respect for the court in general and in you particularly. In this regard, I will gladly serve the court in any professional and reasonable way, but I will not sacrifice what I believe to be overriding professional and personal standards.”
This letter was filed in the clerk’s office oh April 11, 1973, and on the same date the trial judge entered an order as follows:
“On this 11th day of April, 1973, is presented the matter of the motion of the attorney for the defendant to be relieved as counsel of record.
The Court finds that on March 19,- 1973, Mr. Jack L. Lessenberry appeared as attorney with and on behalf of the defendant at plea and arraignment at which time this case was set for a jury trial on April 18, 1973, at his request; and on April 10, 1973, Mr. Les-senberry filed a motion to be relieved as attorney of record in this case which motion was denied on the same day; and-on April 11, 1973, by letter delivered to this Court, which is filed and made a part of the record herein, stated his intentions not to represent the defendant although his motion to be relieved as counsel was overruled.
THEREFORE, the Court being well and sufficiently advised, Mr. Jack L. Lessenberry, is ordered to appear in this Court on April 18, 1973, and represent defendant on the trial of this case.”
This order was filed on the following day, April 12, 1973, and a bill of particulars was mailed to Attorney Lessen-berry on April 16. The record of the proceedings for April 18, 1973, recites as follows:
“This day comes the State of Arkansas by James Neal, Deputy Prosecuting Attorney, and comes the defendant in proper person and by her attorney, Jack L. Lessenberry, and the defendant having previously entered a plea of not guilty, the State announces ready for trial and Mr. Lessenberry announces that the defendant is without counsel and not ready for trial; whereupon the Court doth reset the case for a Jury Trial on July 12, 1973.”
The trial court then entered an order appointing the Public Defender to represent Mrs. Tenpenny and the Public Defender was advised by letter that he. or one of his deputies was that date appointed to represent the defendant in a jury trial to be held on July 12, 1973. The proceedings had on April 18, 1973, as above set out were held before the Honorable James R. Howard, Special Judge, the regular judge, Honorable Richard B. Ad-kisson, not being present. Following the April 18 proceedings as above set out, a hearing was conducted on the matter of contempt and from the evidence submitted, the court found as follows:
“[T]hat Jack L. Lessenberry appeared with Bonnie Jo Tenpenny on March 19, 1973, as her regular, privately employed attorney, but that on April 9, 1973, he wrote the court requesting that he be relieved and that on April 10, 1973, the court denied the motion and, thereafter, by its order of April 12, 1973, Jack L. Lessenberry was to appear and represent the defendant on the trial of the case. The court further finds that Jack L. Lessenberry is, as a consequence, in contempt of court and should be punished accordingly.”
Mr. Lessenberry testified that he had previously represented Mrs. Tenpenny on a misdemeanor charge in North Little Rock Municipal Court and that he was contacted by the defendant’s husband who requested him to represent her on the drug charge. He said he advised her husband that he would be unable to represent her because of other commitments and that he suggested that they employ other counsel. He sai>d that Mr. Tenpenny returned to his office requesting him to represent Mrs. Tenpenny and that he consented to represent her in municipal court for a fee of $250. He said he was only paid $100 but that he appeared in municipal court with the defendant and procured her release from custody on a reduced bond. He said that the first notice he had that Mrs. Tenpenny was being arraigned in circuit court was when Mrs. Tenpenny called him by phone and advised that she was then before Judge Adkisson on arraignment. He said that he had never agreed to represent Mrs. Ten-penny in the circuit court case and had not been advised of her arraignment. He said he was concerned, however, about the possibility that Mrs. Tenpenny might be under the erroneous impression that he was to represent her in circuit court, so he hurried over to circuit court where she was being arraigned. He said Mrs. Tenpenny’s case was immediately called after he arrived in court, and that he entered a plea of not guilty for. her. He said he was asked if the defendant wanted a jury trial and he advised the court that she did. He said that he then requested that the defendant be provided with a bill of particulars and a sample of the substance she was alleged to have sold for chemical analysis. He said that the case was then set for jury trial on April 18 and that following these proceedings Mrs. Tenpenny attempted to pay him a fee but he refused to accept it.
Mr. Lessenberry said he does not recall whether he advised Mrs. Tenpenny at the arraignment that he would not represent her, but that he did advise her to bring her husband and come to his office as soon as possible, and that Mr. and Mrs. Tenpenny did come to his office two or three days later. He said that in the meantime, he had discussed the case with the prosecuting attorney and reviewed the file in the prosecuting attorney’s office. He said that when Mr. and Mrs. Tenpenny returned to his office, he advised them of the essence of what the prosecutor’s file contained and told Mr. and Mrs. Tenpenny that he very definitely could not accept employment in the case.
Mr. Lessenberry said that the prosecuting attorney asked him to sign a waiver of request for a formal bill of particulars in order to obtain access to the prosecuting attorney’s file, but that he refused to sign the waiver. He said he told the prosecuting attorney that he could not represent Mrs. Tenpenny at the trial and did not want to do anything that would prejudice the rights of the attorney who might follow up his oral request for a bill of particulars. He said that when he advised the Ten-penny?. that he could not represent Mrs. Tenpenny, he assured them that he would assist them in getting a good, competent attorney, and that he would turn his entire file over to such attorney. He said he did call another attorney and made an appointment for the Tenpennys to talk with him, and that the attorney agreed to assist Mrs. Tenpenny. He said he does not remember whether he mentioned the trial date to the other attorney but that he did advise the other attorney that it was an urgent matter. He said he then directed the Tenpennys to the office of the other attorney, and they left his office going to the other attorney’s office. He said he heard nothing further concerning the matter until about April 6 when Mr. Byron Southern, as assistant to the prosecuting attorney, called and advised that he had prepared, and had available, a bill of particulars in the case. He said he advised Mr. Southern that he did not represent Mrs. Tenpenny, but that attorney Jeff Pence represented her. He said he knew that arrangements had been made for Mrs. Tenpenny to be represented by Pence and that she was supposed to pay Mr. Pence an agreed fee. He said he talked with Mr. Pence later on the afternoon of April 6 and that Mr. Pence advised him that Mrs. Tenpenny had not come to his office with his fee as she had agreed to do, and that he did not represent her. He said this all occurred on Friday, April 6, and on the following Monday, April 9, he wrote a letter to Judge Adkisson asking what he should do to be relieved as attorney of record in the case. He said that he did not hear directly from Judge Adkisson but that on the following day he received a telephone call from Judge Ad-kisson’s clerk, Gayle Peters, advising him that Judge Ad-kisson had received his letter but was denying his request, and that he would have to go to trial in the case on April 18. He said that upon receipt of this information, he wrote the letter dated April 10 to Judge Adkisson. He said he delivered the letter April 10 to Judge Adkisson in person and discussed the matter with him for about 80 minutes on that date. He said he offered to disclose in camera the full reasons why he could not ethically represent Mrs. Tenpenny at the trial, but that Judge Adkisson closed the discussion by leaving for another appointment.
Mr. Lessenberry testified that Mrs. Tenpenny and her husband were fully aware that he was not representing them; that they had offered to pay him a fee to do so and he refused to accept it. He testified that he honestly believed that he could not adequately represent Mrs. Ten-penny and at the contempt hearing he offered to dictate into the record at a later date the specific reasons why he thought he would be unable to ethically and adequately represent Mrs. Tenpenny. The special trial judge then inquired as to whether or not Mr. Lessenberry was aware of the order from Judge Adkisson requesting that he be in court that day to represent Mrs. Tenpenny and Mr. Les-senberry responded that he was.
Attorney Jack Holt, Jr. testified that Mr. Lessenberry called him on March 22 in regard to representing Mrs. Tenpenny. He said that Mrs. Tenpenny came to his office; that he introduced her to Jeff Pence, a young attorney in his office, and that Mr. Pence arranged for another attorney, Mr. Alexander, to assist Pence in representing Mrs. Tenpenny. He said that Pence advised him that he had discussed the matter with Mrs. Tenpenny and agreed on a fee of $500, which Mrs. Tenpenny had agreed to bring to the office. He said Mrs. Tenpenny subsequently advised that she was unable to obtain the money for the fee and that he then recommended to Mr. Pence that he check back with Mr. Lessenberry, or advise Mrs. Tenpenny to get in touch with the Public Defender.
Mr. Jeff Pence testified that he first met Mrs. Ten-penny on March 22 when she, together with her husband, came to his office upon referral first by Mr. Lessenberry and then by Mr. Holt. He said that he and attorney Hubert Alexander interviewed Mrs. Tenpenny on March 27 and they agreed on the amount of a fee. He said Mrs. Tenpenny advised them she did not have the money to pay their fee but that she probably could obtain it, so they set up another appointment for the following Friday at 4 p.m. when Mrs. Tenpenny said she would bring at least a part of the fee. He said that when Mrs. Tenpenny failed to keep that appointment, he so advised Mr. Les-senberry by telephone. He said he assumed that he did not represent Mrs. Tenpenny since she had not retained him to represent her. He said Mrs. Tenpenny later called and advised that she did not have any money and that he referred her to the public defender’s office.
Mr. John Earl, assistant prosecuting attorney, testified that as a general practice in the prosecuting attorney’s office, when a bill of particulars is requested by a defendant, the entire prosecutor’s file is turned over to the defense attorney for copying in lieu of preparing a formal bill of particulars but in doing so, the defense attorney is required to sign a waiver .of demand for a bill of par ticulars. He said he discussed such waiver with Mr. Les-senberry but that after he and Mr. Lessenberry went over the file, Lessenberry refused to sign the waiver form. He then testified as follows:
“He [Lessenberry] was uncertain at that time as to whether he would take the case, and he didn’t want to waive any rights of a later attorney that might take the case.”
Mrs. Tenpenny testified at the contempt hearing. She said that her husband paid Mr. Lessenberry $100 to represent her in municipal court and that she never did pay him anything else except the $100. She said she received a copy of the letter dated April 9 from Mr. Lessen-berry to Judge Adkisson, and that upon receipt of the copy of that letter she called the public defender’s office and was advised that the Public Defender could not represent her unless the Judge said he could. She said that prior to that date Mr. Lessenberry had told her he was not going to represent her and referred her to Mr. Pence. She said she agreed to pay Mr. Pence a fee but when she was unable to get the money, she so advised Mr. Pence and he suggested she call the Public Defender. She said that after talking with the Public Defender, as above set out, she talked with Judge Adkisson by phone and he said for her and Mr. Lessenberry to be in court on the 18th.
At the conclusion of the above testimony at the contempt hearing, Special Judge Howard made the following findings and observations in part as follows:
“I don’t know why Judge Adkisson insisted on this situation that developed here, but I’m looking at an order here that directs him to appear and try this case and based on this letter and his statement, he’s in violation of the order. And I’m also looking at an oath that I took this morning that said, ‘I’ll faithfully discharge the duties of the office.’ I tend to agree with Jack Holt and Jack Lessenberry about their attitudes toward representing certain people under certain circumstances. I’ve been in the same predicament. * * * I just don’t see where I can do anything, as much as I hate to, but find you in violation of this order and ira contempt of court. I’ll say this. You’ve got reasons, as Mr. Catlett observed, they’re a little obscure at this point and it probably should remain that way because of the defendant’s rights. He shouldn’t be testifying here in public about something he might know that would be prejudicial to the defendant’s case in the future. So, what I’ll, the best way I know out of it is to find him in contempt, enter a fine without prejudice to his right to petition the judge that made this order. It’s not my order. But without prejudicing him petitioning Judge Adkis-son for a rehearing based upon any facts you’d like to dictate in private into, this record. And further I would direct the clerk not to order any execution on this judgment until such time as you petition this court. And if you don’t get any relief there, then I hope the Supreme Court will grant a Writ of Certio-rari for review. But I know of no other authority other than but to do that. That’ll be a Thousand Dollar finé.”
The statement referred to was sealed in an envelope marked as exhibit S to Lessenberry’s testimony and was made a part of the record. The envelope hád not been opened when the record was filed in this court. The substance of the statement was to the effect that Mr. Lessen-berry had never accepted representation of anyone he believed to be engaged in the sale or use of “hard” drugs. He said he advised Mrs. Tenpenny of the probable evidence that would be presented against her and that while she denied to him that she had made the specific' sale to the police officer involved in the particular case, he concluded from his interviews with her that it would be necessary to prepare a completely fictitious defense in order to represent her as she desired to be represented. He said he honestly believed he could not provide her with effective representation, but that he did not relate to her the specific reasons why he could not accept employment from her,
The record in this case presents an unfortunate series of misunderstandings that simply should not arise in a court of law. A client, of course, who has contracted for the services of an attorney, may discharge his attorney with or without cause (Gentry v. Richardson, 228 Ark. 677, 309 S.W. 2d 721) and it goes without saying that an attorney has the right to withdraw from his contract with a client when he does so with the client’s consent and approval and when the rights of others, or the administration of justice, are not affected by such action. Both sides in the case at bar cited the Florida case of Fisher v. State, 248 So. 2d 479, which was a civil case in which an attorney attempted to withdraw as counsel during the course of litigation and the trial court required him to continue to represent his clients. The Florida Supreme Court held that it was beyond the power of the trial court to require the attorney to continue to represent the clients in that particular case; and the Supreme Court did hold in essence, that a trial court has the power to enforce the orderly conduct of the business of the court and has inherent power to require attorneys who appear in cases before the court, to conduct themselves in such manner, and follow such procedures, that the attorneys’ actions do not interfere with, or unduly delay, the handling of the cases. In Fisher the Supreme Court said:
“This power, however, derives from the responsibility to effectively conduct the business of the Court. It does not mean that the requirement of consent by the Court to such withdrawal includes the power to compel an attorney to continue in the representation of a party when he complies with rules for withdrawing or gives due notice to his client of his intention to withdraw, unless unusual circumstances exist which would interfere with the orderly processes of the Court. ...”
Most of the cases dealing with the subject are based on attempted withdrawal of an attorney either without the consent of the client or at such time that a withdrawal interferes with the orderly conduct of court business. In the Colorado case of Riley v. District Court In & For Second Judicial Dist., 507 P. 2d 464, the court stated the general rule as follows:
“As a general statement, an attorney who undertakes to conduct an action impliedly stipulates that he will prosecute it to a conclusion. He is not at liberty to abandon the suit without reasonable cause. Furthermore, an indigent defendant cannot dismiss appointed counsel without permission of the court. Likewise, counsel for an indigent defendant cannot withdraw without permission. Although never explicitly stated by this court, it seems to be the well-stated rule of law that motions for withdrawal of counsel are addressed to the discretion of the court and will not be reversed unless clear error or abuse is shown. We agree with those statements contained in People v. Wolff, 19 Ill. 2d 318, 167 N.E. 2d 197, wherein it was said:
‘ * * # A motion by an attorney for leave to withdraw for any reason is addressed to the sound discretion of the court and, like all motions, it may or may not be meritorious. For that reason, a burden rests with the moving party to prove to the court’s satisfaction the legitimacy of the request, and when the petitioner either fails or refuses to do so, the court may properly deny the motion. * * * ’ ”
See also Foley v. Peckham, 256 So. 2d 65; Singleton v. Foreman, 435 F. 2d 962; Phoenix Mut. L. Ins. Co. v. Radcliffe on the Del., Inc., 266 A. 2d 698.
It would appear from the record before us, that Attorney Lessenberry as well as the defendant Mrs. Ten-penny never considered Lessenberry as having been employed to represent her. It would also appear, however, that at her arraignment in circuit court the trial judge had ample reason to believe that Mr. Lessenberry had been employed to represent the defendant, and that he was in the performance of his duty under such employment in entering her plea of not guilty and requesting a jury trial and a bill of particulars. This arraignment was on March 19 and on that date the case was set for jury trial on April 18. It appears that after Mr. Lessenberry ascertained the evidence the state proposed to present against the defendant, and after conferring further with her, he concluded that he could not properly, conscientiously and adequately represent Mrs. Tenpenny and he so advised her on or about March 22. It appears from the record that Mr. Lessenberry reasonably believed he had fulfilled his obligation to Mrs. Tenpenny as a practicing attorney by helping her procure other counsel who would represent her at the trial.
N i\ Lorn the full record'before us, that by Map.'- t 44 Mr. Lessenberry had learned from the defendant my Ur if. he was unwilling to reveal to the trial judge as reasons he could not properly represent the defendant in view of the possibility that the defendant, through other counsel, might still waive a jury trial and be tried by the judge sitting as a jury. If Mr. Lessenberry was convinced of the defendant’s guilt to the extent he could not properly represent her, and if she was insisting that he prepare a fictitious defense in her behalf, he of course was correct in requesting that he be relieved as attorney of record; and, perhaps Judge Adkisson was hasty in summarily refusing to honor Mr. Lessenberry’s request even as late as April 9 without discussing the matter with Lessenberry.
It must be remembered in this case that Judge Ad-kisson did not appoint Mr. Lessenberry to represent the defendant, but simply ordered Lessenberry to appear in court and represent the defendant on April 18. Even though Mr. Lessenberry’s letter of April 9 was some twenty days after he appeared as attorney for Mrs. Tenpenny at plea and arraignment, it was also nine days prior to the trial date and there is no evidence in the record before us that his withdrawal on that date would have interfered with the orderly conduct of the court’s business.
The Texas case of Ex Parte Mays, 212 S.W. 2d 164, was a case in many respects much like the case before us. In that case an attorney was appointed to represent the accused as an indigent person. The trial judge had been unable to get in touch with the attorney prior to the appointment and the attorney asked to be relieved from the appointment because he had participated in the investigation of the case and his familiarity with the facts convinced him of the defendant’s guilt and made it impossible for him to properly and conscientiously represent the defendant. The trial court refused to relieve the attorney and following a contempt hearing a fine of $100 was assessed against him. The Court of Criminal Appeals on certiorari, held that in order to hold the attorney guilty of contempt, he must have refused to do the particular act commanded by the court and which ought to have been done, and in that case the court said:
“In the present matter, as the record now stands, we do not think the trial court had authority to cause relator to do a thing which was contrary to good conscience and for which no man ought to be punished for failing to do.”
In the absence of evidence pertaining to interference with the orderly conduct of the court’s business, other than the mere fact the case was set for jury trial on April 18, we conclude that the trial court should not have summarily refused Mr. Lessenberry’s request to be relieved as attorney of record without first ascertaining the status of his supposed employment, or the full reasons for his refusal to accept employment to represent the defendant. The judgment of the special trial judge holding Lessen-berry in contempt is therefore reversed, and the cause dismissed.
Reversed and judgment quashed.
Fogleman, J., not participating. | [
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Robert H. Dudley, Justice.
Venue is the issue of this case. The plaintiff, a resident of Sharp County, filed suit in the Circuit Court of Sharp County against the defendant, a resident of Cleburne County. The complaint stated that plaintiff delivered his houseboat to defendant to repair a leak but defendant negligently allowed the boat to sink into Greers Ferry Lake and, as a result, plaintiff suffered property damages. After service of summons in Cleburne County, defendant moved to dismiss for lack of venue in the Circuit Court of Sharp County. The trial court denied the motion. Defendant now seeks a writ of prohibition to prevent the trial court from exercising jurisdiction. Jurisdiction of the petition for the writ of prohibition is in this Court pursuant to Rule 29 (1) (f). We grant the writ.
Plaintiff chose not to follow Ark. Stat. Ann. § 27-613 (Repl. 1979) which provides that actions other than those specifically provided by other statutes may be brought in any county in which the defendant or one of several defendants resides or may be summoned. Instead, plaintiff filed the lawsuit in the county of his residence. It is admitted that petitioner was not served in Sharp County. Thus, the question is whether an action for damages to personal property can be brought in a county when the only connection with that county is the residence of the plaintiff. The answer is found in our interpretation of Ark. Stat. Ann. § 27-611 (Repl. 1979), the statute which allows venue in the county where the owner of the property resides. We have consistently limited the application of § 27-611 to actions involving actual force or violence. Hooper v. Blue Hill Garage, 275 Ark. 5, 627 S.W.2d 2 (1982). In the case before us the complaint states a cause of action for damages to personal property as the result of a breach of contract. The breach of contract is alleged to involve an accident, which may have been a result of either negligent or tortious conduct, but it is not alleged to have involved force or violence. Because there is no assertion of an accident involving force or violence, § 27-611 is inapplicable to this case. Hooper v. Blue Hill Garage, supra, citing Sarratt v. Crouch Equipment Co., 245 Ark. 775, 434S.W.2d 286(1968); Evans Laboratories, Inc. v. Russell C. Roberts, Circuit Judge, 243 Ark. 987, 423 S.W.2d 271 (1968); International Harvester Co. v. Lyle Brown, Circuit Judge, 241 Ark. 452, 408 S.W.2d 504 (1966). Therefore, since venue was improper in Sharp County, the trial court should have sustained the motion to dismiss.
Prohibition to the circuit court is the proper remedy in this case. International Harvester Co. v. Lyle Brown, Circuit Judge, supra.
Writ granted.
Purtle, J., dissents. | [
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Butler, J.
The town council of the town of Bay, under the general powers conferred by § 4006 of Crawford & Moses’ Digest, established a street in the town in such a manner as to cross the roadbed and track of the St. Louis-San Francisco Railway Company and filed a petition under § 4009 in the Craighead Circuit Court. The hearing’ of the petition was set down by the court for June 25, 1929, at which time the railway company appeared and contested the proceeding on the ground that the-town council no longer had authority to make the order establishing the street so that it would cross its roadbed, and that this authority had been divested by act of the Legislature, approved March 29, 1913, now § 1645 of Crawford & Moses’ Digest. From a judgment adverse to appellant’s contention it appealed to this court, which appeal resulted in an affirmance of the judgment of the circuit court on February 3, 1930. St. L. S. F. Ry. Co. v. Bay, 180 Ark. 1040, 23 S. W. (2d) 968.
On July 22 following the judgment of the circuit court, the town council gave notice to the railway com pany as provided by § 8484 of Crawford & Moses’ Digest, requiring it to construct a crossing on and over its tracks as prescribed by § 8483, lb. The twenty days within which it was required to construct a crossing after notice having expired, notice of that fact was filed with the clerk of the county court and by him communicated to the prosecuting attorney, who brought this suit to enforce the provisions of § 8486 providing for a penalty of not less than one hundred nor more than two thousand dollars for failure or refusal to construct the crossing, and $5 for every day such refusal or neglect should continue after the expiration of the twenty-day notice. This suit was filed on September 10, 1929, and summons served on defendant on September 13, 1929. An answer was filed by the railway company, the date of such filing not being given in the record. On the 21st day of February, 1930, the cause came on before the court sitting as a jury upon the pleadings and an agreed statement 'of facts, and a penalty was fixed in the sum of $100. The court found that 189 days had elapsed during which the railway company had failed and refused to comply with the order requiring it to construct a crossing, and judgment was rendered for the said $100 and for a further penalty of $5 per day for 189 days, making a total of $1,045, from which judgment is this appeal.
It is the contention of the appellant that the trial court erred in assessing a penalty against it because at the time of the filing of its suit an appeal was pending in this court in the case of St. Louis-San Francisco Ry. Co., appellant, v. Town of Bay, appellee, and that no right accrued to the appellee in this ease to have any penalty assessed until after the case of Railway Co. v. Town of Bay, supra, had been decided and the mandate of this court handed down, and that the entering of a judgment for the penalty was a taking of the defendant’s property without due process of law and in violation of the Federal Constitution. It is insisted by the appellant that the appeal in the case of Railway Company v. Town of Bay, supra, suspended and totally eliminated the charging of the railway company in the instant case with a penalty for not constructing the crossing under notice given by the town of Bay, and it further insists that the statute authorizing the collection of penalties was one from which no appeal was provided, and is itself void because its effect would be to deprive the appellant of its property without due process of law. This latter contention is refuted by the action of the appellant in the instant case, for here it has appealed and rightfully so under the general statute granting the right of appeal in all cases; and, as the Legislature did not' attempt specifically or by any reasonable inference to debar or prevent an appeal, it must be deemed to have had in mind the general laws relating to appeals and intended that those should govern.
To sustain its contention that to enforce the penalty against the railroad company will deprive it of its property without due process of law, a number of cases are cited and extensively quoted, and it is insisted that the holding in those cases established appellant’s contention under the facts in the case at bar. It cites S. W. Tel. & Tel. Co. v. Danaher, 238 U. S. 482, 491, 35 S. Ct. 886, which case involved the validity of the statute imposing a penalty of $100 per day against the telephone company for denial of its service where such denial was the result of a rule promulgated by it. This rule was held by this court to be unreasonable, and the penalty properly assessed. In reversing that decision, the Supreme Court of the United States, spealdng through Mr. Justice Vande venter, said: “If it be assumed that the State Legislature could have declared such a regulation unreasonable, the fact remains that it did not do so, but left the matter where the company was well justified in regarding the regulation as reasonable and in acting on that belief.” Continuing, the court said: “There was no intentional wrongdoing, no departure from any prescribed or known standard of action, and no reckless conduct. Some regulation establishing a mode of inducing prompt payment of the monthly rentals was necessary. It is not as if the company had been free to act or not, as it chose. It was eng'aged in a public service which could not be neglected. The protection of its own revenues and justice to its paying patrons required that something be done. It acted by adopting the regulation and then impartially enforcing it. There was no mode of judicially testing the regulation’s reasonableness in advance of acting under it.”
The next case relied upon by the appellant here is that of Oklahoma Operating Company v. Love, 252 U. S. 331, 40 S. Ct. 338, which was an appeal involving the enforcement of rate fixing orders made by the State Corporation 'Commission of Oklahoma. In holding the order invalid on constitutional grounds, the court reached its conclusion on the ground that “it appears that the only .judicial review of an order fixing rates possible under the laws of the iState was that arising in proceedings to punish for contempt. The Constitution endows the commission with the powers of a court to enforce its order by such proceedings. * * * By boldly violating an or der a'party against whom it was directed may provoke a complaint; and if the complaint results in a citation to show cause why he should not be punished for contempt, he may justify before the commission by showing that the order violated was invalid, unjust, or unreasonable. If he fails to satisfy the commission that it erred in this respect, a judicial review is opened to him by way of appeal on the whole record to the Supreme Court. But the penalties which may possibly be imposed, if he pursue this course without success, are such as might well deter even the boldest and most confident.”
Another case relied on by the appellant is that of Missouri v. Chicago, B. & Q. R. Co., 241 U. S. 533, 36 S. Ct. 715, where the rule was stated that a permanent injunction should issue to restrain enforcement of penalties accrued pendente lite, even though upon final hearing the maximum rates fixed should be found not to be confiscatory if the plaintiff had reasonable grounds to contest them as being such.
The case of Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, cited by the appellant and extensively quoted, was an appeal in a case under a statute providing for the establishment of rates for railroad transportation without giving the corporation an opportunity to be heard and fixing penalties for disobedience of its orders by large fines and severe imprisonment. The case of Mo. Pac. Ry. Co. v. Tucher, 230 U. S. 340, 33 S. Ct. 961, cited by the appellant, was also a case involving the validity of an act prescribing penalties for failure of a carrier to comply with an order fixing’ the rate of charges for shipments over its lines. Finally, attention is called to the case of Wadley Southern v. Georgia, 235 U. S. 651, 35 S. Ct. 214, where the right of the Georgia Railroad Commission to fix penalties for failure to obey an order preventing discrimination between shippers is questioned.
From a survey of these cases it will be observed that the legality of all of the orders involved was not apparent on the face of the order and the statute conferring the right to make the same, but depended upon a showing of some extraneous fact which might or might not exist and upon testimony to establsh it, and the decision of some tribunal. As is said in Wadley Southern v. Georgia, supra: “Their legality is not apparent on the face of such orders, but depends upon a showing of extrinsic facts. A statute therefore which imposes heavy penalties for violation of commands of an unascertained quality is, in its nature, somewhat aldn to an ex post facto law, since it punishes for an act done when the legality of the command has not been authoritively determined. Liability to a penalty for violation of such orders, before their validity has been determined, would put the party affected in a position where he himself must at his own risk pass upon the question. He must either obey what may finally be held to be a void order, or disobey what may ultimately be held to be a lawful order. If a statute could constitutionally impose heavy penalties for violation of commands of such disputable and uncertain legality the result inevitably would be that the carrier would yield to void orders, rather than risk the enormous cumulative or confiscatory punishment that might be imposed if they should thereafter be declared to be valid.”
In the statute under consideration in the case at bar there is no dependence upon a showing of extrinsic facts that may affect its validity. There is no command of an “unascertained quality or of disputable and uncertain legality.” Here is a power expressly and in unmistakable terms conferred on the city council to lay out the streets; the duty, in equally express terms, imposed upon railroads to construct crossings on such streets over its roadbed and tracks, a reasonable time being given to make such construction after notice, and for a willful failure to comply with the plain legislative mandate a penalty fixed which in no wise can be said to be confiscatory. We therefore think the cases cited by counsel for the appellant have no application. It cannot be questioned that the State may impose penalties to compel obedience to its mandates, and that the dne process clause of the Federal Constitution has no power to override the power of the State to establish all regulations that are reasonably necessary to secure the health, safety and general welfare of the community and to enforce same by the imposition of reasonable penalties, and all property rights are held subject to the fair exercise of such power. The statutes here involved are clear and explicit, and it is no excuse for a failure to obey the order in this case, made by virtue of powers conferred by such statute, that in the opinion of appellant that statute was superseded by the enactment of another; nor was it ground for the suspension of the penalties pending the interval in which appellant was prosecuting its appeal in the case of Railway v. Town of Bay, supra. The statute conferring the power upon the Corporation Commission, approved March 29, 1913, to designate and order crossings over railroads, by .its express terms was not to be construed as amending or repealing the statute by which city councils were given the authority to lay off streets and to require railroad companies to construct crossings on said streets where they passed across the line of railroad. This has been impliedly recognized by the legal profession and the courts of this State for the procedure in crossing cases continued to be pursued by town and city councils after the passage of the act of March 29, 1913, as before, as is pointed out in St. L. S, F. R. Co. v. Bay, supra. It was generally recognized that statutes such as that of March 29, 1913, conferring powers on public service commissions to require the construction of crossings did not deprive cities and towns of like powers which had previously been conferred on them by legislative grant. See Atlantic Coast Line v. Goldberger, 155 N. C. 362, which case on appeal to the United States Court was affirmed in 232 U. S. 548, 34 S. Ct. 364 ; also City of Durham v. So. Ry. Co., 185 N. C. 240, 117 S. E. 17, 35 A. L. R. 1313.
We must indulge the presumption that the order of the town council of Bay laying off the street and requiring the crossing was a matter involving the public safety and general welfare of the community, and, in view of the unambiguous terms of the statutes governing the construction of railroad crossings and the views of the courts construing such statutes, the appellant in this case did not have the right to refuse to comply with the order of the circuit court condemning the right-of-way at the instance of the town council or its refusal to comply with the notice to construct the crossing; It received its permit to do business in this State and to construct its lines of railway burdened with the statute requiring it to construct crossings on streets to be opened by town councils, and was under the implied obligation to construct suitable crossings at new streets. It had no right to refuse to comply with this duty and to suspend the penalties for its dereliction while it was litigating an order made under a statute which no subsequent act had attempted to repeal or amend, either expressly or by implication. It deliberately planted its refusal to comply with the order on the ground that it was invalid for want of power because of the effect of the act approved March 29, 1913, and thus delayed and interfered with the public safety and welfare of the people in the town of Bay and that vicinity. It did this at its peril, and, having failed in the contentions made by it in the case of Ry. Co. v. Bay, supra, it must now abide the consequences.
The judgment of the lower court is therefore affirmed. | [
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Leelae, J.
In the Chancery Court, appellees Mr. and Mrs. H. L. Warner were, as assignees, awarded specific performance against Mrs. Ida B. Riley of a contract under which Mrs. Riley had agreed to sell a house and lot in Clinton, Ark., to Mr. and Mrs. C. W. Cross. Mrs. Riley appeals.
By written contract Mrs. Riley agreed.to sell the premises to the Crosses for $1,750, of which the Crosses paid $500 in cash and were to pay $25 on the first of each month, commencing January 1, 1949, until the balance, with accrued interest, was paid off. The deed, abstract and other papers were deposited in escrow with the Clinton State Bank, to be delivered to the Crosses when payments should be completed, subject to the following provision in the contract:
“It is further agreed by all parties hereto that should any of the payments herein specified remain in default for a period of sixtjr days this sale shall become null and void, and (the seller) is hereby authorized to withdraw her deed and abstract, and any and all sums paid prior to default shall be retained by said (seller) and held as rental for said propertj^, and no part of the payments made as hereinbefore provided shall be returned or refunded to the (purchasers).”
In addition to the $500 down payment, the Crosses made the first two $25 payments, on January 1 and February 1, but the payments due on March 1, April 1, and May 1 were not made. On May 3, 4, and 5 Mrs. Riley demanded that her deed and other papers be returned to her, in strict accordance with the terms of the contract; on May 5 Mr. and Mrs. Warner offered to Mrs. Riley the full amount remaining due on the entire purchase price, with accrued interest (a total of $1,220.74), but she refused to accept it and, on her continuing demand, the Bank as escrow agent returned to her tlie deed and accompanying papers.
The assignment from the Crosses to the Warners had occurred some time after March 1, 1949, through the agency of a realtor named Conner. Conner had in some undetermined manner secured the deed and abstract from the escrow hank, and had allowed the Warners to believe that title had passed unconditionally to the Crosses, who lived in another state. The Warners paid the entire amount of their agreed purchase price ($2,300) to Conner, and he held it pending legal approval of the title after the abstract was brought up to date. The Warners in the meantime went into possession of the premises, under directions from Conner, and had by May 1, 1949, expended some $1,800 in making improvements, including a new room added to the house, a well, and a butane gas system. Mrs. Riley admitted that she knew the premises had been sold by the Crosses and that the new owners had added another room to the house prior to May 1.
The principal question in the case is whether, under the circumstances stated, the forfeiture provision in the contract, quoted above, should be literally enforced. The Chancellor held that it should not, and we agree.
It has been many times stated that equity abhors a forfeiture. This does not mean that equity will never enforce a forfeiture. Performance by the defaulting party within the exact time specified may be of the essence of a particular contract. But a forfeiture for delay in performance will not be enforced unless the contract inescapably calls for its enforcement and the party in default “shows no sufficient excuse for nonperformance at the time specified,” Atkins v. Bison, 25 Ark. 138, or the total of the contract’s provisions shows that performance within the time specified, or substantially within it, is essential to the effective carrying out of the contract as a whole, White v. Page, 216 Ark. 632, 226 S. W. 2d 973. When the contract does not declare that time shall be of the essence, and there is nothing’ in the transaction making it imperative that payments he made by the designated day else not at all, and there is within a reasonable time an offer made in good faith to pay what is due, the claim to a forfeiture will be denied. Butter v. Colson, 99 Ark. 340, 138 S. W. 467; Smith v. Berkau, 123 Ark. 90, 184 S. W. 429.
In the present case, though forfeiture on delay in payment was called for, there was nothing in the contract either expressly or by inference making time of the essence in payment of the installments owed by the purchasers. Nothing in the transaction as a whole indicated any urgency in payments being made on particular days, other than the fact that the amount of interest payable by the purchasers would be increased in case of delay. A cash payment of the entire balance due under the contract, plus interest, was tendered only five days late, and the tender was renewed when the case came to trial. These facts do not justify enforcement of the forfeiture.
There were several interveners in the suit who sought to enforce materialmen’s and laborers’ liens in connection with the cost of improvements placed upon the premises prior to commencement of the litigation. The Warners admit that these claims are valid as against their interest in the realty, and do not dispute them. The Chancellor’s order adjudging the validity of these liens is proper.
The decree is affirmed. | [
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Donald L. Corbin, Justice.
Appellant, John Lloyd Johnson, is an attorney who was appointed by the Yell County Municipal Court to represent an indigent defendant. His appeal to this court involves his costs and fees in the indigent’s case.
The transcript from the municipal court consists only of the order appealed from — the order awarding him attorney’s fees. The circuit court clerk’s files indicate the indigent’s case was heard without a court reporter’s record being made. Thus, we are unable to verify some of the underlying facts in this case. However, appellant claims he made four court appearances on the indigent’s behalf and the Yell County Municipal Court ultimately convicted the indigent of only one of eight charges resulting from an automobile accident — driving too fast for conditions.
The transcript filed in this court indicates appellant submitted a motion and supporting affidavit for attorney’s fees and costs of $1,128.52 associated with the indigent’s defense. The Yell County Municipal Court awarded appellant only $150.00 in fees with no costs or expenses. Appellant appealed the municipal court’s order to Yell Circuit Court which found, without explanation, that it lacked subject matter jurisdiction to hear the appeal.
Appellant now appeals the order of the Yell Circuit Court finding that it lacked jurisdiction to hear the appeal from municipal court. Appellant’s jurisdictional statement asserts this case involves a significant public interest and a legal principle of major importance and should therefore be certified to this court under Ark. Sup. Ct. R. 29(4)(b). The case requires our interpretation of the Arkansas Constitution and the statutes concerning inferior courts. We therefore exercise jurisdiction pursuant to Ark. Sup. Ct. R. 29(l)(c).
Appellant cites Ark. Const, art. 7, §§ 14, 33 as authority for his contention that the circuit courts of this state have appellate jurisdiction over municipal courts and the Yell Circuit Court therefore erred in dismissing his appeal for lack of subject matter jurisdiction. The state agrees that the circuit courts have appellate jurisdiction over the municipal courts.
The foregoing provisions of the Arkansas Constitution cited by appellant state that circuit courts shall exercise superintending control and appellate jurisdiction over county courts, probate courts, courts of common pleas, corporation courts, and justices of the peace. In addition, Ark. Code Ann. § 16-19-1105 (1987) provides for de novo appeals from municipal courts to circuit courts. Although section 16-19-1105 speaks in terms of justices of the peace, this court has held the statute to apply to municipal court misdemeanor convictions. Casoli v. State, 297 Ark. 491, 763 S.W.2d 650 (1989).
Pursuant to Ark. Const, art. 7, §§ 14, 33, we agree with both appellant and appellee that the circuit court has subject matter jurisdiction to hear appellant’s appeal of the fee awarded in municipal court. Accordingly, we hold the trial court erred in dismissing appellant’s appeal for lack of subject matter jurisdiction.
Appellant also argues there was sufficient evidence presented below for us to make a determination that the municipal court’s order was insufficient and amounted to a taking without just compensation. While this court may possibly hear cases originating in municipal court, we would not do so until the circuit court had first heard the case. Therefore, we made no holding with respect to the propriety of the municipal court’s order.
The order dismissing for lack of subject matter jurisdiction is reversed and remanded to the circuit court.
2 Whether the indigent was indeed convicted of a misdemeanor is yet another fact we are unable to verify because of the state of the transcript from the municipal court. | [
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ROBERT J. GLADWIN, Judge.
| iThis appeal is brought from the grant of appellees’ motions for directed verdicts and the denial of appellants’ .challenge based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the striking of three African-American members of the jury venire by appellees. We affirm.
Bettye Hickman died while a resident of a nursing home in June 2009. Two of Hickman’s daughters, appellants Cynthia Smith and Delois. Muldrew, are the co-administrators of. Hickman’s estate. In January 2010, they brought suit against the nursing home, two related entities that provided support services to the nursing home, and the owner |2of the three companies, respectively, appellees Heather Man- or Care Center, Inc., d/b/a Heather Manor Nursing and Rehabilitation Center (Heather Manor); Central Arkansas Nursing Centers, Inc. (CANC); Nursing Consul tants, Inc. (NCI); and Michael Morton. The complaint alleged the following causes of action against all defendants: medical malpractice; ordinary negligence; civil liability for felony neglect; premises liability; res ipsa loquitur; breach of informed consent; breach of fiduciary duty; breach of contract; violation of the Arkansas Deceptive Trade Practices Act; and a wrongful-death and survival claim. In addition, the administrators asserted a claim for violation of the Arkansas Long Term Care Statute, Ark.Code Ann. § 20-10-1201 et seq., against Heather Manor. The administrators sought both compensatory and punitive damages, costs, and all other relief. The appellees answered, denying most of the allegations and pleading affirmatively the statute of limitations, comparative negligence, act of God, and the negligence of third parties.
Prior to trial, appellees moved to dismiss the complaint, or, for summary judgment. In the brief accompanying the motion, ap-pellees argued that the cause of action on the violation of resident’s rights applied only to the licensee, in this case, Heather Manor. They also argued that the claims for negligence, medical malpractice, civil liability for felony neglect of an endangered person, res ipsa loquitur, breach of informed consent, breach of contract, and violation of the Deceptive Trade Practices Act were all subsumed in the claim for medical | ^malpractice, and that the claims for premises liability and breach of fiduciary duty should also be dismissed. The circuit court granted the motions in part and dismissed the administrators’ claims based on res ipsa loquitur and violation of the Deceptive Trade Practices Act. The court denied the motion as to the other causes of action.
The case proceeded to a jury trial lasting several days. At the close of the administrators’ case, the circuit court granted the motions for directed verdicts on all counts on behalf of CANC, NCI, and Morton. Heather Manor made similar motions on each cause of action. The administrators conceded the causes of action based on premises liability and civil liability for felony neglect, and the circuit court granted the motion as to the claims for informed consent, breach of fiduciary duty, breach of contract, and ordinary negligence. The court denied the motion as to the claims for medical malpractice and wrongful death, as well as the claim for punitive damages. The circuit court initially denied the motion as to the resident’s rights claim when made at the close of the administrators’ case, but granted it when renewed at the close of all of the evidence. The case was submitted to the jury on the medical malpractice, wrongful-death, and punitive-damages claims. Nine jurors found that the administrators had not proved by a preponderance of the evidence that there was medical negligence on the part of Heather Manor that was a proximate cause of damage to the decedent. This appeal timely followed.
The administrators argue four points on appeal: (1) the circuit court erred in granting a directed verdict in favor of Heather Manor on their resident’s rights claim under Ark.Code Ann. § 20-10-201; (2) the circuit court erred in granting a directed verdict in favor of Heather |,,Manor on their claims for breach of contract, ordi nary negligence, and breach of fiduciary duty; (3) the circuit court erred in denying their Batson challenge to the striking of three African-American jurors; and (4) the circuit court erred in granting a directed verdict in favor of CANC, NCI, and Morton.
In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Scott v. Cent. Ark. Nursing Ctrs., Inc., 101 Ark.App. 424, 278 S.W.3d 587 (2008). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. Stated another way, a motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Id. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id. Substantial evidence is evidence of sufficient force and character to induce the mind of the fact-finder past speculation and conjecture. Sparks Reg’l Med. Ctr. v. Smith, 63 Ark. App. 131, 976 S.W.2d 396 (1998).
The administrators do not challenge the sufficiency of the evidence to support the jury verdict in favor of Heather Manor on the medical-malpractice and wrongful-death claims. During the various motions for directed verdicts, the parties argued issues that they had briefed as part of Heather Manor’s motion for summary judgment based on its assertion that the causes of action were subsumed into the medical-malpractice claim. The circuit court fallowed the parties to incorporate these arguments into their arguments on the motions for directed verdicts.
In making the motion for directed verdict at the close of the administrators’ case, Heather Manor argued that the only testimony concerning the resident’s rights claim was expert testimony regarding the professional standards of care at nursing homes. It also argued that there was no testimony as to the rights available under the statute and whether those rights had been violated. The administrators asserted that the evidence in support of their malpractice claim would also support a resident’s rights claim. The court ultimately granted the motion without specifying the básis for the ruling, noting that it had almost granted the motion at the close of the administrators’ case. The court said that it was convinced that it should be granted at that time.
Because the court did not specify its basis, we address both possible grounds. Although the Arkansas Supreme Court has not expressly considered whether a resident’s rights claim is subsumed into a medical-malpractice claim, it has referred to a resident’s rights claim as a statutory claim that is separate and distinct from any negligence claim. Koch v. Northport Health Servs. of Ark., LLC, 361 Ark. 192, 202, 205 S.W.3d 754, 762 (2005). We cannot say that the administrators’ resident’s rights claim was subsumed into the medical-malpractice claim. Therefore, the circuit court could not properly grant a directed verdict on that basis | fiin favor of Heather Manor. However, a directed verdict in favor of Heather Manor would be proper if the administrators failed to sub- rait sufficient evidence to support their claim.
The Resident’s Rights Act provides the following regarding civil enforcement:
(a)(1) Any resident who is injured by a deprivation or infringement of his or her rights as specified in this subchapter may bring a cause of action against any licensee responsible for the deprivation or infringement.
(2) The action may be brought by the resident or his or her guardian or by the personal representative of the estate of a deceased resident.
(3) The action may be brought in any court of competent jurisdiction in the county in which the injury occurred or where the licensee is located to enforce such rights and to recover actual and punitive damages.
(4) The resident may seek to recover actual damages when there is a finding that an employee of the long-term care facility failed to do something which a reasonably careful person would do or did something which a reasonable person would not do under circumstances similar to those shown by the evidence in the case, which caused an injury due to an infringement or a deprivation of the resident’s rights.
(5) No separate award of attorney’s fees may be made by the court.
Ark.Code Ann. § 2-10-1209(a) (Repl.2005). Therefore, there first must be a finding that an employee erred in failing to do something or erred by doing something. See Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493. Secondly, that error must have caused injury as a result of an infringement or deprivation of the resident’s rights. Id. Bedell thus makes it clear that there is a causation element in a resident’s rights claim.
The administrators point to evidence that, according to them, establishes violations of the statute; however, they do not point to any evidence linking those alleged violations to Hickman’s injuries or death. Proximate causation is an essential element for a cause of action under the resident’s rights statute. Bedell, supra. The administrators devote most of their 17argument to whether the resident’s rights claim was subsumed into the medical malpractice claim. They make only concluso-ry assertions that they proffered sufficient evidence. They do not develop an argument or cite any evidence that they contend establishes causation. It is not the duty of this court to research or develop arguments for an appellant on appeal. See Martin v. Pierce, 370 Ark. 53, 63-64, 257 S.W.3d 82, 90 (2007). Indeed, our courts have often said that failure to develop an argument precludes review of the issue on appeal. See, e.g., Davis v. State, 375 Ark. 368, 375, 291 S.W.3d 164, 169 (2009). We cannot say that the circuit court erred in granting a directed verdict on the resident’s rights claim.
The administrators next argue that the circuit court erred in granting Heather Manor’s motions for directed verdict on their claims for ordinary negligence, breach of contract, and breach of fiduciary duty on the basis that those claims were subsumed into the medical malpractice claim.
While it is true that, in making the motions for directed verdicts, Heather Manor argued that these claims were subsumed into the medical-malpractice claim, it also argued that there was insufficient evidence to send each claim to the jury. The circuit court in each instance ruled on the basis that there was insufficient evidence to proceed, not that the claims were subsumed into the malpractice claim. Indeed, the court did not address whether the claims were subsumed. Although the administrators correctly cite examples of where each type of claim has been considered separate from a medical-malpractice claim, they do not develop an argument that cites to and explains why there was sufficient evidence for the [^claims to go forward. We summarily affirm on this point because the administrators fail to develop a convincing argument as to the stated basis for the circuit court’s ruling. Davis, supra.
In the administrators’ third point, they complain that Heather Manor struck three African-American members of the venire, Ruthilene Edwards, Sheronda Dean, and Demechia Rowe, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
During voir dire, Rowe stated that her mother knew'one of the witnesses, Helen Bradford, but stated that she did not socialize with Bradford. Rowe also stated that she worked with Kayla Wingfield, another of Hickman’s daughters and a potential witness, at a nursing home in Texar-kana and had previously worked at other nursing homes. She said that there was nothing in her employment experiences that would cause her to have any concern being a juror in a case involving a nursing home. Dean was not asked any specific questions.
After counsel for the administrators explained the racial composition of the veni-re, the court asked counsel for Heather Manor to explain his strikes. Counsel explained that Rowe knew two potential witnesses and that she was sitting in the front row talking with members of Hickman’s family prior to jury selection. Counsel continued, saying that Edwards was struck because he did not want anyone who had worked as a CNA on the jury panel. He also said that he perceived “a somewhat derisive snort” when he asked Edwards if all nursing homes were understaffed. As for Dean, counsel explained that she seemed more receptive and responsive to questions put to the panel by the administrators’ counsel than to his own |9questions. He also stated that she rolled her eyes a couple of times when he was asking questions ■ and that she appeared very reluctant. He noted that Dean was late for jury duty, in part because she was a single mother. The circuit court, without explanation, denied the Batson, challenge.
Our supreme court has previously stated our standard of review for challenges under Batson: “This court will reverse a circuit court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. We further accord some measure of deference to the circuit court, because it is in a superior position to make determinations of juror credibility.” Travis v. State, 371 Ark. 621, 628, 269 S.W.3d 341, 346 (2007).
Under Batson and its progeny, a party may not use peremptory strikes to exclude jurors solely on the basis of race. Ratliff v. State, 359 Ark. 479, 199 S.W.3d 79 (2004). In determining whether such a violation has occurred, a three-step analysis is applied. Stokes v. State, 359 Ark. 94, 194 S.W.3d 762 (2004). The first step requires the opponent of the peremptory strike to present facts that show a prima facie case of purposeful discrimination. Id. This first step is accomplished by showing the following: (a) the opponent of the strike shows that the juror is a member of an identifiable racial group; (b) the strike is part of a jury-selection process or pattern designed to discriminate; and (c) the strike was used to exclude jurors because of their race. Id. (citing MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)).
11(lOnce a prima-facie case of discrimination has been shown, the process moves to the second step, wherein the burden of producing a racially neutral explanation shifts to the proponent of the strike. Id. This explanation, according to Batson, must be more than a mere denial of discrimination or an assertion that a shared race would render the challenged juror partial to the one opposing the challenge. Weston v. State, 366 Ark. 265, 234 S.W.3d 848 (2006). Under Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam), this explanation need not be persuasive or even plausible. Indeed, it may be silly or superstitious. The reason will be deemed race neutral “[u]nless a discriminatory intent is inherent in the [proponent’s] explanation.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769. But, according to Purkett, the circuit court must not end the Batson inquiry at this stage, and, indeed, it is error to do so.
If a race-neutral explanation is given, the inquiry proceeds to the third step, in which the circuit court must decide whether the opponent of the strike has proved purposeful discrimination. Stokes, supra. We will reverse a circuit court’s findings on a Batson objection when the circuit court’s decision was clearly against the preponderance of the evidence. Travis, supra.
The administrators suggest that counsel’s observations of Sheronda Dean’s demeanor are insufficient to support a strike unless corroborated for the record by opposing counsel or the court. However, the fact that the observations of a challenging party are unconfirmed may affect the circuit court’s determination of the persuasiveness of an explanation, but confirmation is not necessary for a party’s observation of a potential juror’s demeanor to form the basis of a race-neutral explanation for a peremptory challenge. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006). Also, this court has held that explanations related to demeanor were race neutral and could survive a Batson challenge. See Riley v. State, 2009 Ark. App. 613, 343 S.W.3d 327; Hugh Chalmers Chevrolet v. Lang, 55 Ark.App. 26, 928 S.W.2d 808 (1996).
The administrators argue that the strike of Ruthilene Edwards was discriminatory because Heather Manor did not strike another nursing-home employee, Tammy Wellman. Wellman was the director of nursing at a different home, not the same job or circumstances as Edwards. Also, Wellman was eventually excused from the jury, apparently for cause. The administrators do acknowledge that there were differences in responsibility for another juror not struck who worked in a nursing home and Edwards, but do not differentiate between the duties of Well-man and Edwards.
Turning to the strike of Demechia Rowe, we note that another African-American juror, Lola Morrison, said that she knew the family. Morrison was not struck, nor was she observed sitting and talking with one of the parties immediately prior to voir dire. This serves as evidence that the strike of Rowe was not racially motivated. Rowe also admitted to talking with Wingfield about working at the same facility-
The explanations that were given were race neutral in that they were not peculiar to any race, and they were suffi cient to satisfy Batson. Moreover, three African Americans were seated on the jury. That, in itself, can answer the charge of purposeful discrimination. See Ratliff, supra (stating that the best answer the State can have to a charge of discrimination is to point to a jury that has black members). Based on all the circumstances before the circuit |12court at the Batson hearing, we cannot say that the court’s refusal to find a Batson violation was clearly erroneous or clearly against the preponderance of the evidence.
Finally, in the administrators’ fourth point, they argue that the circuit court erred in granting directed verdicts in favor of CANC, NCI, and Michael Morton.
As noted earlier, the resident’s rights claim cannot be maintained against CANC, NCI, or Morton. Health Facilities Mgmt. Corp., supra. Also, neither CANC, NCI, nor that Morton had contracts directly with Hickman, thereby precluding a cause of action for breach of contract. As to the remaining causes of actions, we recently considered the same arguments against the same defendants in Scott v. Central Arkansas Nursing Centers, Inc., supra. In Scott, the plaintiff sued the nursing home where the plaintiffs mother had lived during the last years of her life, CANC, NCI, and Morton. Directed verdicts were granted to these defendants. We reversed the directed verdict in favor of NCI, but affirmed as to CANC and Morton.
Citing Advocat, Inc. v. Sauer, 358 Ark. 29, 111 S.W.3d 346 (2003), the administrators argue that CANC can be held liable because Morton operated Heather Manor, CANC, and NCI as one business. However, Sauer is distinguishable from the present case because there was clear testimony in that case, including testimony from a former chief financial officer, that all three entities in that case were operated as essentially one company. 353 Ark. at 42, 111 S.W.3d at 352. This court also noted this testimony in Scott, 101 Ark.App. at 436, 278 S.W.3d at 596. There is no such testimony in the present case. The testimony was that CANC was under contract to provide billing and accounting services to Heather Manor, and the administrators concede that these services do not directly deal with patient care. As we |1ssaid in Scott, “[w]hile this fact establishes an affiliation among the entities in this case, it does not constitute substantial evidence that CANC was negligent or that CANC contributed to Mrs. Mince’s injuries or death.” 101 Ark.App. at 435, 278 S.W.3d at 595. The same holds true in the present case.
There is also no question that an individual employed by a corporation, or officers and directors of corporations, may be personally liable if they were personally involved in the events surrounding an injury. See Bedell v. Williams, supra; Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. In this case, however, the administrators conceded that Michael Morton was not directly involved in Hickman’s care. Instead, the administrators assert that Morton can still be held liable because he played a role in the management of Heather Manor. They also argue that Morton can be held vicariously liable for the acts and omissions of Heather Manor, CANC, and NCI. The administrators rely on testimony that Morton could fire Wincy Hursh, the director of operations for NCI, if he so desired or have Hursh fire the administrator at Heather Manor.
However, Morton testified that his job as the governing body of Heather Manor is to provide policies and procedures and to have a licensed administrator implement those policies. He also said that it was NCI’s function to make sure that the policies and procedures were followed by Heather Manor’s administrator. The ad ministrators also cite Morton’s testimony that Heather Manor’s administrator occasionally called him if there was a problem as evidence of Morton’s involvement and control. However, this statement is taken out of context and does not support the argument. Morton testified that the problem referred to was that some |14people were admitting their parents to nursing homes under the false assertion that the parents would qualify for Medicaid. Morton tried to remedy that problem by having patients pay in advance while attempting to obtain certification as eligible for Medicaid. He said that Heather Manor’s administrator called to advise him that Heather Manor was losing patients to another nursing home as a result of the policy. This is exactly the type of involvement that Morton as the governing body is supposed to have, i.e., make policy for the facility. See Scott, 101 Ark.App. at 435-36, 278 S.W.3d at 596. Moreover, there is no evidence cited by the administrators showing that Morton’s involvement included setting staffing levels, training, or supervision at Heather Manor or that his actions proximately caused the decedent’s injuries or death. Because of this, the circuit court correctly granted the motion for directed verdict in favor of Morton. Bayird, supra.
In Scott, we reversed a directed verdict in favor of NCI because the appellant in that case had presented substantial evidence from which a jury could reasonably have concluded that NCI was negligent and that its negligence was a proximate cause of the plaintiffs decedent’s injuries and death. The Scott court said that it was “plain from the proof that NCI was directly involved in the provision of care at [the nursing home] during the time that [the decedent’s] condition began to deteriorate.” 101 Ark.App. at 437, 278 S.W.3d at 597. This court then detailed that evidence and concluded that the directed verdict in favor of NCI must be reversed. This evidence included testimony that the nursing home was deemed one of the worst facilities in the state; that there were state surveys showing the need to improve staffing; that NCI was involved in trying to improve staffing; that an employee of NCI served 1^briefly as director of nursing; and that NCI made recommendations concerning residents’
In the present case, there is no such comparable testimony. The evidence the administrators rely upon shows that NCI is available for consultation and to provide training regarding various issues. The administrators do not explain how this consultation and training by NCI establishes that NCI was negligent or otherwise contributed to the injuries suffered by Hickman. We cannot say that the circuit court erred in granting a directed verdict in favor of NCI.
Affirmed.
GRUBER and GLOVER, JJ., agree.
. At the time the complaint was filed, Cynthia Smith was the sole administrator of Hickman’s estate. Delois Muldrew was later appointed as co-administrator because of Smith’s health problems. After Muldrew’s appointment, the circuit court entered an order substituting Smith and Muldrew as co-administrators as plaintiffs.
. In some instances, this cause of action is referred to as the resident's rights claim.
. In Health Facilities Management Corp. v. Hughes, 365 Ark. 237, 227 S.W.3d 910 (2006), the court held that a resident's rights claim can only be maintained against the licensee, in this case, Heather Manor.
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CLIFF HOOFMAN, Judge.
| Appellants James and Pauline Cowan appeal from the order of the Craighead County Circuit Court dismissing their petition to adopt seven-year-old E.C. This same order also granted a petition to adopt by appellee Dawn Michelle Wood. On appeal, the Cowans argue (1) that the circuit court erred in denying their petition to adopt and in instead allowing a stranger to adopt E.C. and (2) that the circuit court abused its discretion in sua sponte declaring that additional witnesses needed to be called to testify after all parties had rested their respective cases. We affirm.
E.C. was born on May 14, 2004, and her biological parents are Crystal and Donald Cooper, who have since had their parental rights terminated. Shortly after her birth, E.C. went to live with her maternal aunt, Tina Cowan (now Cline), and Tina’s then-husband, David Cowan. David and Tina initially planned to adopt E.C., as they had adopted E.C.’s 12half-sister, A.C., but when their marriage dissolved, both children went to live with David’s parents, James and Pauline Cowan. E.C. was two to three years old when she began residing with the Cowans. On April 1, 2008, the Cowans filed a petition to adopt E.C. in probate court. They also filed a petition for temporary guardianship, which was granted on August 28, 2009, and expired after ninety days. Tina Cline, who was granted visitation with E.C. by the probate court, also filed a counterpetition for adoption of E.C. In preparation for an anticipated adoption hearing, the Cowans obtained a home study in March 2010 that approved them for the adoption.
On May 12, 2010, before a hearing had been held on the Cowans’ petition for adoption, a FINS petition was filed alleging, among other things, environmental neglect, medical neglect, and truancy. The allegations pertaining to environmental and medical neglect were based on E.C.’s severe, repeated problems with head lice and reports that E.C. had inadequate food and clothing. These allegations were later determined to be unfounded by an administrative law judge (ALJ), although the truancy problems were found by the ALJ to be true. At the hearing on the FINS petition, further concerns arose after the court discovered that the Cowans, who had referred to themselves as E.C.’s grandparents, were not her biological relatives and did not have legal custody of her. There were also concerns about Mrs. Cowan’s discipline of E.C. at the hearing. A seventy-two-hour hold was placed on both E.C. and A.C. at the conclusion of the hearing.
On May 17, 2010, DHS filed a petition for emergency custody, alleging that E.C. had no legal guardian, that she had missed excessive amounts of school, and that Mrs. Cowan’s | .¡behavior was inappropriate. An order for emergency custody was entered that same day, and a probable-cause order was entered in June 2010. The Cowans filed a motion to intervene in the dependency-neglect case on August 27, 2010, for the purpose of presenting their petition for adoption that had been pending since April 2008. They also requested that the probate case be consolidated with the dependency-neglect case. DHS responded that the Cowans should not be allowed to intervene because they had no recognizable interest in E.C.’s welfare. On October 29, 2010, the circuit court denied the Cowans’ motion to intervene and for consolidation, but ruled that they had the right to receive notice of the hearings and to be heard as “pre-adoptive parents.” The court further ordered that a home study be completed on the Cowans. That same day, the court entered an order terminating reunification services to E.C.’s biological parents and changed the goal of the case to termination and adoption.
On February 4, 2011, the Cowans filed a renewed petition for guardianship in the probate case. In this petition, the Cowans alleged that they had not been allowed contact with E.C. for approximately seven to eight months after she was removed by DHS and that they had only recently been allowed a supervised visit with E.C. On February 11, 2011, the circuit court terminated the parental rights of E.C.’s biological parents and authorized DHS to consent to adoption. The court also entered an order transferring the probate case to the juvenile division. Now that the rights of E.C.’s biological parents had been terminated, the circuit court granted the Co-wans’ motion to intervene and consolidate on May 5, 2011, finding that they were allowed to intervene only for the limited purpose of presenting their |4petition to adopt E.C. The Cowans subsequently filed a motion on May 16, 2011, to establish visitation with E.C. during the pendency of the adoption case.
On May 24, 2011, the initial hearing was held on the Cowans’ petition for adoption, as well as Tina Cline’s counterpetition. The circuit court declined to address the Cowans’ recent motion for visitation at that time because DHS and the attorney ad litem had not had a chance to respond. The hearing on the adoption petition was continued to December 9, 2011. Prior to this second hearing, appellee Dawn Michelle Wood filed a petition for adoption of E.C. on November 8, 2011. Wood alleged that she had been E.C.’s foster parent since September 6, 2011, and that she had formed a bond with the child. An adoptive home study was filed, approving of Wood’s home, and DHS also filed its consent to the adoption, alleging that it was in E.C.’s best interest that she be adopted by Wood. The Cowans responded and denied that an adoption by Wood was in E.C.’s best interest. They also claimed that their consent to E.C.’s adoption was required due to their status as pre-adoptive parents. In its response, DHS argued that the Cowans were not E.C.’s legal custodians and that they were not empowered to consent to an adoption. DHS further alleged that adoption by Wood was recommended for E.C. because the home best matched her physical and emotional needs, as demonstrated by E.C.’s dramatic improvement in her well-being since being placed with Wood.
The extensive testimony presented at the hearings was as follows. A.C., E.C.’s half-sister, testified that when she lived with her grandparents, the Cowans, she always had food and clothing and that she did not have a problem with the way she was treated. A.C. did | Sstate that she had to repeat third grade when she lived with the Cowans and that she “would skip school” because of her allergies. She also testified that she and E.C. had problems with head lice, which they had caught from her cousins, but that the Cowans treated them.
Amanda Thompson, who was employed with the Division of Children and Family Services (DCFS), testified that she had been involved with E.C.’s case since the FINS petition was filed. Thompson stated that she had conducted another home study on the Cowans pursuant to the circuit court’s order and that their home was an appropriate and safe place for children. Thompson testified on cross-examination, however, that just because a home was found to be safe and appropriate did not mean that it was in a child’s best interest to live there and that a home study is only concerned with physical, not emotional, issues. According to Thompson, E.C. had significant behavioral problems when she was initially placed in DHS’s custody and was very hard to control, occasionally having meltdowns where she screamed uncontrollably. She stated that E.C. went through six'or seven different placements before being placed in therapeutic foster care, where she had significantly improved. Prior to E.C.’s removal from the Cowans’ home, Thompson testified that there were several referrals from E.C.’s former school alleging that she had been eating out of the trash can and that she had been kicked off the bus. However, Thompson indicated that there had been few problems with E.C.’s current school. Thompson admitted that it was possible that E.C.’s initial behavior problems had stemmed from being removed from the Cowans, although she testified that from her experience, E.C.’s behavior upon removal was not normal and that the child also did not cry or ask for the Cowans. Although E.C.’s behavior at school improved after | fishe had been removed from the Cowans’ home, Thompson stated that visitation with the Cowans eventually had to be suspended because the school noticed a detrimental change in her behavior. At a team staffing meeting in January 2011, Thompson testified that E.C. was present and that she had indicated that she wanted to continue seeing the Cowans, but that she did not want to live there.
James Cowan testified that he and his wife had been involved in E.C.’s life since she was born and that she resided with them for two to three years before she was removed. He denied the allegations of environmental neglect, stating that E.C. always had ample food and clothing. While he admitted that E.C. had suffered from head lice on several occasions, he claimed that they treated her to the best of their ability and that she kept catching them from other children during court-ordered visits with Tina Cline. He stated that he and his wife finally had to shave E.C.’s head to treat the head-lice problem. According to Mr. Cowan, E.C. missed fourteen days of school due to her being sent home for head lice. He acknowledged the school’s allegation that E.C. missed twenty-four days, but claimed that she must have been sick and that his wife did not notify the school. He testified that he worked long hours at his business and that his wife had primary responsibility for the children. Mr. Cowan denied that the school had ever contacted him about the truancy issue or the allegations of inadequate food and clothing. He stated that the only issues he discussed with the school principal were E.C.’s head lice and the problem of registering her for school without being her legal guardian. He did admit that he had been notified that E.C. could no longer ride the bus because she had apparently been crawling under the seats and repeating [7curse words. Mr. Cowan also admitted that he had gotten “quite a few” notes from the school about E.C.’s bad behavior. However, he testified that she was appropriately disciplined and did not have behavioral problems in his home. Regarding the allegation that his wife had acted inappropriately at the hearing on the FINS petition, Mr. Cowan stated that E.C. had been misbehaving and that his wife took her to the bathroom and may have spanked her. Mr. Cowan testified that he and his wife love E.C., that they would provide a stable and financially secure environment for her, that they are active in their church, that they would be willing to continue to take her to counseling, and that he would be more involved with her education in the future. He admitted that the prior school absences were a problem and stated that he would not let that happen again. Although Mr. Cowan indicated that he and his wife had been allowed to visit with E.C. on eight or ten occasions since her removal, he stated that the visits were discontinued in April 2011 because E.C. had been misbehaving in school.
Kelly Felder, a caseworker at DCFS, testified that she was also present at the FINS hearing involving E.C. Felder stated that Mrs. Cowan had scolded E.C. for her behavior several times and that she then took the child out into the hallway, where Felder could hear her spanking E.C. from inside the courtroom. According to Felder, E.C. was removed primarily because of the truancy issue. She stated that E.C. was at risk of failing school and was at a substantial risk of harm because of her excessive absences.
Shirley Watkins, who was employed with DCFS as an adoption specialist, testified that she had been involved with E.C. since she was placed with Wood in September 2011. IsWatkins stated that E.C. had made remarkable progress in Wood’s home and that Wood, who was a school teacher, was able to handle E.C.’s behavior very well. According to Watkins, E.C.’s personality had changed for the better, as the child was no longer shy and withdrawn, but was now happy and outgoing. Watkins further testified that E.C. was doing wonderfully in school and was making As and Bs. She stated that E.C. and Wood had a loving and affectionate relationship and that E.C. had expressed her desire to live with Wood. Watkins testified that E.C. had told her that she did not want to live with the Cowans.
Katy Townsend, another adoption specialist, testified that she had been assigned to find E.C. an adoptive placement and that the child was specifically placed with Wood because her experience as a school teacher would be helpful in providing structure. Townsend stated that E.C. had been diagnosed with ADHD and Adjustment Disorder and that she was taking four different medications. Townsend testified that Wood assisted in transitioning E.C. from a therapeutic foster home and that she had been involved in E.Cl’s weekly therapy and case management. Townsend recommended that E.C. be adopted by Wood because she had made tremendous progress since being placed with her and had expressed her desire to remain with Wood. According to Townsend, E.C. had an increase in behavioral outbursts at school in the two weeks prior to the hearing after she had been told that she had to return to court. Townsend testified that she was concerned for E.C. if she were not returned to Wood’s custody based on these recent reports.
Wood testified that she is single and had always wanted to adopt. She stated that she is employed as a first-grade teacher and has plenty of experience with E.C.’s age group. Prior |ato E.C.’s placement in her home, Wood stated that she visited with her and that the visits went well. Although E.C. was initially shy, Wood testified that she quickly opened up to her and that they have bonded. - Wood stated that she loves E.C. and wants to adopt her. She testified that E.C. had become calmer and less nervous since coming to live with her and that her interaction with adults and other children had improved. Wood testified that E.C.’s behavior at school had improved as well and that she had been attending counseling for her ADHD and emotional outbursts. According to Wood, E.C. is in the school choir, takes dance classes, and loves for Wood to read to her. She testified that E.C. also has a good relationship and is bonded with Wood’s extended family. Wood testified that E.C. is smart and that she wanted to support her and help her to pursue her goals in the future.
Tina Cline testified that she had also filed a petition to adopt E.C. but that she had instead decided to support the Cowans for adoption. She stated that she needed to become more stable and that she would be able to visit with E.C. if the child lived with the Cowans. Though she admitted that she and the Cowans had different points of view, she stated that the Cowans loved and would never hurt E.C.
At the conclusion of the hearing, the circuit court stated that it faced a difficult decision and that it was concerned about the lack of direct evidence concerning the allegations from E.C.’s prior school that had been noted in the petition for emergency custody. The court found that the hearing should be continued until January 2012 so that the parties could procure witnesses from the school that had firsthand knowledge of E.C.’s situation when she lived with the Cowans. The court also ruled that the parties would be |inable to cross-examine these additional witnesses and to call rebuttal witnesses if they desired. The Cowans strenuously objected to the court’s ruling, arguing that both parties had rested and that the court did not have the authority to call for additional evidence. The court overruled the objection, stating that it did have the authority to do so under the plain language of Ark. R. Evid. 614 and that the additional evidence was necessary for the court to decide what was in E.C.’s best interest in this case. Although the court admitted that it did not have knowledge of the specific witnesses that should be called, it suggested that the principal of the school would be a good place to start.
The hearing was continued on January 12, 2012, and there were four additional witnesses present from E.C.’s prior school, as well as E.C.’s current therapist. Kara Ross, the school nurse, testified that she was familiar with E.C. because of her chronic head-lice issues and because she had to give E.C. her ADHD medication each day. Regarding E.C.’s head lice, Ross stated that the Cowans were given an informational packet on how to get rid of the lice. She stated that she did have conversations with the Cowans about the issue and that Mrs. Cowan complained that she could not see the lice because of her eyesight. Ross stated that she told her to use a magnifying glass and to inspect E.C.’s head in the sun because the lice have a shiny texture. After the first couple of times that E.C. was sent home for head lice, Ross testified that she turned the situation over to the school principal. Ross stated that the head-lice situation was “constant” and that E.C. was also dressed inappropriately on several occasions. In addition, Ross testified that she discovered that E.C. was not wearing panties on multiple occasions, so the counselor went out and bought her some panties. Ross stated |nthat she would have to check every day to make sure that E.C. was wearing underwear. She further stated that E.C. would have a dirty face, fingernails, and clothing and would respond that she did not take a bath the night before. Ross testified that she washed E.C.’s hair at school on a couple of occasions because it was oily and very dirty.
Clark McDaniel, E.C.’s bus driver, testified that he did not remember E.C. getting on the bus dirty or inappropriately dressed, although he did have problems with her not staying in her seat. He stated that she also crawled underneath the seats on occasion and that she probably got dirty that way. McDaniel testified that E.C. was suspended from the bus at one point because of her behavioral issues.
Patsy Rock, E.C.’s Kindergarten teacher in 2009-10, testified that E.C. was performing below grade level academically, that she had issues getting along socially with other children, and that she came to school dirty. Rock stated that she would have E.C. wash her hands and face in the mornings and that her inappropriate grooming and dressing were consistent throughout the school year. Rock testified that she attempted to contact the Cowans on several occasions and that when she did finally talk to them, E.C.’s situation did not change. Rock further stated that she attempted to contact the Cowans to come in for a conference regarding E.C. being placed in a “Pre-First Grade” transition classroom the next year and that they did not respond. Rock stated that she had to send two notes home on the subject before she received permission to place E.C. in the transitional class. As her classroom teacher, Rock testified that it did not appear that E.C.’s basic needs were being met or that she had been taught social skills. She even testified that she saw E.C. eating out of the trash |j2can or off other children’s trays at lunch time, so she arranged for her to bring home backpacks filled with food. When the Cowans shaved E.C.’s head due to the head lice, Rock stated that the other children made fun of her and would not play with her. She testified that E.C. reacted by hitting or spitting on the children and using adult language. Rock also considered E.C. a “flight risk” because she would leave the classroom unsupervised and stated that she had to lock the door. Rock stated that she did address her concerns with the principal and the counselor and that she was aware of their attempts to contact the Cowans.
The last witness from the school, Danny Blaylock, testified that he was E.C.’s principal and that he had 'contact with the Cowans on several occasions in reference to E.C.’s disciplinary problems, as well as her head lice. Blaylock stated that he had attempted to make appointments for conferences on multiple occasions, but that the Cowans failed to attend. He confirmed the other testimony about E.C.’s dirty appearance, inappropriate clothing, and behavioral problems and also testified that E.C. had excessive school absences. Despite numerous attempts to notify the Cowans about these concerns, Blaylock testified, that the Cowans were unresponsive in correcting the problems. He stated that he and his assistant principal prepared the FINS petition on E.C. in response to all of these issues.
Amy Higdon, E.C.’s therapist, testified that she had been seeing E.C. since September 2011 to assist her in transitioning into Wood’s home and adjusting to a potential adoption. Higdon stated that most of their sessions were family sessions, with Wood present, and that E.C. seemed to be bonded and happy with Wood, calling her “Mom.” Higdon testified that there had been instances where E.C. seemed to regress in her acting-out behavior and that 11sthis behavior occurred prior to hearings or visitation with the Cowans. According to Higdon, E.C. had experienced a lot of anxiety about permanency and the court’s upcoming decision on the adoption. Hig-don testified that she believed that E.C. would regress in her behavior if her environment were to change and that she was scared that E.C. would not let anyone know if she were in an unsafe situation.
After all of the evidence was presented, the trial court made extensive findings. The court found that it was a difficult situation because both parties clearly loved E.C. and wanted to adopt her. However, the court was very concerned with the head lice and the truancy issues. While the court recognized Mr. Cowan’s testimony that they had treated the lice but that they continued to recur because of E.C.’s court-ordered visitation with Tina, the court noted that Mr. Cowan did not request that these visitations be suspended and that they were ultimately forced to shave E.C.’s head, causing her ridicule. The court found that the numerous school absences resulted in educational neglect. The court further noted the other evidence that E.C. was inappropriately groomed and dressed and that she seemed to be inadequately fed. The court found the testimony of the witnesses from the school to be credible. Although Mr. Cowan denied that he had been made aware of these issues by the school, the circuit court also noted his testimony that Mrs. Cowan was the person who was mainly responsible for the children and that she did not testify. The court further recognized that the Co-wans failed to appear for school conferences and found that they failed to place an emphasis and priority on E.C.’s educational needs. Although E.C.’s relationship with Wood was more recent, the court found her to be credible concerning her devotion to E.C. 114and that she had demonstrated very appropriate skills in dealing with the child. The court believed that Wood would provide a loving and appropriate home meeting all of E.C.’s needs, especially with respect to her educational, behavioral, and emotional needs. In conclusion, the circuit court found that it was in E.C.’s best interest to grant Wood’s petition for adoption.
The circuit court entered an order dismissing the Cowans’ petition to adopt and granting Wood’s petition on February 2, 2012, and an interlocutory decree of adoption was also entered. The Cowans filed a timely notice of appeal from the order denying their petition and granting Wood’s petition.
We review adoption proceedings de novo but will not reverse the decision of the trial court unless its findings are clearly erroneous. Davis-Lewallen v. Clegg, 2010 Ark. App. 627, 378 S.W.3d 185. 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. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court- to judge the credibility of witnesses. Id. We give even greater deference to the trial court’s personal observations when the welfare of a young child is involved because there is no other case in which the superior position, ability, and opportunity of the trial court to observe the parties carries as great a weight as one involving minor children. Tom v. Cox, 101 Ark.App. 388, 278 S.W.3d 110 (2008).
Appellees first assert that we are unable to address the merits of the Co-wans’ appeal |^because they failed to appeal from the adoption decree itself. They thus contend that the decision of this court will have no practical legal effect on the separate adoption decree entered by the circuit court and that this court should dismiss the appeal as moot. We disagree. As the Cowans argue, they properly filed a notice of appeal from the order dismissing their adoption petition and granting that of Wood, and the separate adoption decree was entered at the same time. Under Ark. R.App. P.-Civ. 2(b), an appeal from a final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment. See Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93 (holding that reference to single “order” in appellant’s notice of áppeal was a scrivenor’s error and was sufficient to appeal all three orders entered that day). Thus, we address the merits of the appeal.
In their first point, the Cowans argue that the circuit court erred in dismissing their petition for adoption and instead allowing a stranger to adopt E.C. A trial court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the child. Tom, supra. Appellees first contend in their brief that the trial court did not err in dismissing the Cowans’ petition because the Cowans do not argue that DHS’s consent was either obtained or unnecessary.
We agree that this point on appeal can be affirmed on the issue of consent alone. According to Ark.Code Ann. § 9-9-206(a)(3) (Repl.2009), a petition for adoption may be granted only if written consent to a particular adoption has been executed by any person | ^lawfully entitled to custody of the minor or empowered to consent. An exception to the consent requirement occurs if the legal guardian has failed to respond in writing to a request for consent for a period of sixty days or, if after examination of his or her written reasons for withholding consent, the guardian is found by the court to be withholding his or her consent unreasonably. Ark.Code Ann. § 9-9-207(a)(8) (Repl. 2009).
Here, E.C.’s legal custodian, DHS, did not consent to the Cowans’ adoption of E.C., nor did the Cowans allege in their petition that DHS’s consent was not needed or that it was being unreasonably withheld. In fact, the Cowans’ petition for adoption was filed in 2008 and contained the consent of E.C.’s biological parents, whose rights have now been terminated. At no time during the proceedings did the Cowans request that the circuit court rule on the issue of whether DHS was unreasonably withholding its consent to their adoption, and the order of dismissal contains no findings on this issue. While the circuit court did not base its decision on the issue of consent but instead found that it was in E.C.’s best interest that the petition be dismissed and that she be adopted by Wood, the dismissal of the Cowans’ petition may be affirmed due to the lack of consent as well.
We also agree with appellees that the evidence supported the circuit court’s finding that it was not in E.C.’s best interest for the Cowans’ petition for adoption to be granted. The testimony by the witnesses from E.C.’s former school established that E.C. suffered from problems with truancy, inappropriate behavior, and environmental neglect. The circuit court also found very concerning the fact that E.C. suffered from severe and chronic head lice for the entire school year and that the Cowans did not take appropriate steps to prevent her from | 17being reinfected, despite having a duty to do so. The testimony by E.C.’s former teacher and principal further showed that the Cowans were not concerned or cooperative with the school’s efforts to remedy the problematic issues. While Mr. Cowan denied many of these allegations, he also admitted that his wife was responsible for the day-to-day decisions concerning the children, and the circuit court specifically found the testimony of these additional witnesses to be credible. In addition to E.C.’s problems at school, the court noted that A.C. had testified that she had to repeat a grade while residing with the Cowans. From this evidence, the court found that the Cowans did not place a priority on the children’s education. There was also testimony that E.C.’s personality, behavior, and performance at school had greatly improved following her removal from the Cowans’ home. The court found that Wood has placed and will place an emphasis on meeting E.C.’s educational needs, that she is devoted to E.C., and that Wood has a loving and appropriate home for E.C. Thus, we cannot say that the trial court’s finding that it was in E.C.’s best interest to dismiss the Cowans’ petition and grant that of Wood was clearly erroneous.
Much of the Cowans’ argument on this point is focused on DHS’s failure to involve them in the case from the beginning. Because the circuit court cautioned DHS that E.C.’s extreme behavioral outbursts at the onset of the dependency-neglect case could also possibly have been caused by her removal and lack of contact with the Co-wans, the court urged the agency to take due precautions and to seek expert advice in such situations in the future. The Co-wans contend that this is insufficient to remedy their current situation with E.C. and that they should have been considered as a relative placement under the permanency-planning | ^statute. However, as appellees note in their brief, the current appeal is only from the denial of the Co-wans’ adoption petition and not an appeal from the circuit court’s decision to deny their motion to intervene or from the permanency-planning order. Thus, such arguments are not properly before us in this appeal. We therefore affirm the circuit court’s order.
In their second point on appeal, the Cowans argue that the circuit court abused its discretion in requesting additional testimony by witnesses from E.C.’s former school after all parties had rested their respective cases. They argue that this allowed appellees “a second bite at the apple” because all of the witnesses were selected and called by DHS and were mostly supportive of its position. The Co-wans assert that the circuit court abandoned its judicial role and “came to the aid of DHS” by telling it how its case was suspect.
The court rejected the Cowans’ objection to its ruling and based its authority to do so under Ark. R. Evid. 614 (2012). Rule 614(a) states that the court, at the suggestion of a party or on its own motion, may call witnesses, and that all parties are entitled to cross-examine witnesses thus called. While the Cowans recognize the court’s authority to call witnesses under this rule, they argue that none of the cases interpreting this rule in Arkansas are analogous to the situation here, where all evidence had been submitted and all parties had rested.
We find no merit to the Cowans’ argument on this point. While it is true that the cases cited by the Cowans are not identical to the current situation, the Co-wans also cite no authority for their contention that Rule 614 is not applicable where the parties have rested their cases. In fact, in one of the cases cited in their brief, Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995), our supreme court noted that a case-in-chief may be reopened for the taking of additional evidence and that such a matter is committed to the discretion of the trial court. Further, in Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972), the court stated that the reasons for restraint upon the trial judge are minimal where the judge is the trier of fact and that his responsibilities for elicitation of all pertinent facts are increased. Thus, the trial judge has “the right and the duty to ask questions to clear up an obscurity in the testimony or even to develop facts in regard to some feature of the case he feels has not been properly developed.” Id. at 819, 485 S.W.2d at 719.
This was precisely the circuit court’s concern in this case, as it had not heard any testimony from witnesses with firsthand knowledge of the allegations made in the FINS petition. As the court noted in response to the Cowans’ objections at the hearing, its ruling would have been different had the case been one for dependency-neglect, where DHS has the burden of proof. In that situation, the court stated that it would have dismissed DHS’s case for insufficient evidence. However, this case involved the adoption of E.C., and the overriding concern of the circuit court in such cases is determining what is in the best interest of the child. Ark. Dep’t of Human Servs. v. Cole, 2011 Ark. 145, 380 S.W.3d 429. Thus, it was well within the circuit court’s discretion to request that additional evidence be submitted.
The Cowans also take issue with the fact that the circuit court did not identify the witnesses to be called and that it did not conduct the entire examination of the witnesses. However, the Cowans can show no prejudice from the manner in which the court procured the additional testimony. The court candidly admitted that it did not know the names of the RnPersons who would have the requisite knowledge at E.C.’s school and suggested that the parties decide who should be called. The court did suggest the principal as a potential witness, however. The court further ruled that all parties had the right to call additional witnesses to rebut the new testimony and that the Cowans had the right to interview the witnesses prior to the hearing. While the court did not conduct all of the questioning, the Cowans were allowed to cross-examine the witnesses. Further, when the Cowans complained that they were not notified of one of the witnesses prior to the hearing, the circuit court took charge of the questioning of this witness and also stated that they had the right to speak with the witness privately if they felt it was necessary. Thus, we find no abuse of discretion by the circuit court, and we affirm.
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JIM GUNTER, Justice.
_JjA Washington County jury convicted appellant Anthony Craigg of rape and sentenced him to life in prison without the possibility of parole. On appeal, he argues that the trial judge erred by allowing the introduction of a prior offense into evidence under Arkansas Rule of Evidence 404(b). Because appellant was convicted of rape and sentenced to life imprisonment without parole, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2). We affirm because the trial judge did not abuse his discretion in finding that appellant’s prior conviction satisfied the pedophile exception to Rule 404(b).
On July 15, 2011, the State filed a felony information charging appellant with one count of rape and one count of failure to comply with sex offender registration requirements. Specifically, the State alleged that appellant engaged in oral sex with a victim who was physically helpless and unable to consent in violation of Arkansas Code Annotated section 5-14-103(a)(2) (Repl.2006). In an amended felony information, the State dropped the failure-! 2to-register count and added a habitual-offender enhancement under Arkansas Code Annotated section 5-4-501 (Repl.2006).
On November 4, 2011, appellant filed a motion to determine the admissibility of his prior conviction in Oklahoma for lewd molestation during trial and for purposes of penalty enhancement. On November 21, 2011, the trial judge held a hearing on appellant’s motion.
The first witness to testify was Detective Gregory Samuels of the Fayetteville Police Department. Samuels interviewed the fourteen-year-old victim, J.P., during the early morning hours of June 11, 2011, and summarized J.P.’s account of what happened, between him and appellant as follows. J.P. explained that he had known appellant for about a month, and although they were not “friends,” the two shared a common interest in scooters. On June 10, 2011, J.P. and appellant spent most of the afternoon working on appellant’s scooter. Later that evening, J.P. and appellant decided to go camping. They set up a campsite at a wooded area on the south end of Fayetteville, which was not visible from nearby roads. At some point, J.P. fell asleep and awoke to find his shirt pulled up, his pants pulled down, and appellant leaning over him performing oral sex on him. J.P. then struck appellant’s face with his knee, got up, grabbed appellant’s shirt, wallet, and shoes, and ran to a nearby-house to call the police.
The second witness to testify was Shannon Cozzoni, formerly a prosecutor in Creek County, Oklahoma, who prosecuted appellant for lewd molestation in 1998. Cozzoni’s testimony was as follows. Some time in 1995, appellant was visiting the victim’s mother’s home and began “playing barbies” with the four-year-old victim in her bedroom. The | .¡victim’s mother and possibly one other adult were in the home, but were asleep in another part of the house. The victim claimed that during their play session appellant pulled her pants down and “licked her pee-pee.” Appellant was charged under a statute which provides that it is a felony to knowingly and intentionally “look upon, touch, maul, or feel the body or private parts of a child under 16 in a lewd and lascivious manner.” Appellant pled guilty to this charge and was sentenced to twenty years’ imprisonment with the first ten suspended.
During oral argument before the trial judge, appellant claimed that his prior conviction was inadmissible under Arkansas Rule of Evidence 404(b). Specifically, appellant maintained that his prior conviction did not fall within any exception to Rule 404(b) because it had no independent relevance to the crime charged. He further contended that the pedophile exception was inapplicable because there was insufficient similarity between the two incidents, a significant amount of time had passed since the first incident, and there was no evidence that appellant had an intimate relationship with either victim.
The State, on the other hand, argued that appellant’s prior conviction fit within the pedophile exception to Rule 404(b) because in each instance appellant engineered his assault by getting his victims alone and engaging them based on common interests. The State further |4pointed out that the nature of the assault was the same because appellant performed oral sex on both victims.
At the close of the hearing, the trial judge told the parties that he needed more time to review the received exhibits and instructed them to submit briefs on the issues raised during the hearing. The judge indicated, however, that his inclination was to allow the State to introduce the conviction at trial. The State filed its post-hearing brief on November 23, 2011, and appellant filed a response on November 28, 2011.
At the December 1, 2011 pretrial hearing, the judge issued his formal ruling denying what he construed to be appellant’s motion in limine to prohibit the State from introducing his prior conviction. The judge explained as follows.
I have concluded that the conviction is admissible and the State will be permitted to offer that in evidence and I came to that conclusion because I feel as though that conviction, certainly as the case law indicated, helps prove the depraved sexual instinct of the accused. I have concluded that the probative value of that evidence clearly outweighs any prejudicial effect and that the evidence will be admissible to show motive, intent, or plan under 404(b) exception. I realize that, well, to me the evidence is relevant on these particular issues, so that’s my ruling.
Appellant then reiterated his objection to this evidence and stated that any discussion of the conviction with the panel during voir dire should not waive his continuing objection.
At trial, the State called David Max Cook, who was the Creek County, Oklahoma District Attorney in 1998. Cook authenticated a certified photocopy of the judgment and sentence in appellant’s case dated April 10, 1998. Cook testified that he charged appellant under the aforementioned lewd molestation statute and that appellant pled guilty prior to his nonjury-trial setting. Appellant successfully prohibited the State from adducing the age of the IsOklahoma victim and the details of appellant’s assault through a timely and sustained Confrontation Clause objection to such inquiry. At the conclusion of the State’s direct examination of Cook, and over appellant’s continuing objection to the applicability of the pedophile exception to his prior conviction, the trial judge admitted the judgment and sentence into evidence.
In addition to Cook, the State put on the testimony of Donald Stanfield, the homeowner who allowed J.P. into his home in the middle of the night on June 11, 2011, to call the police; Brianna Fields, a dispatcher with the Fayetteville Police Department who received J.P.’s 911 call; Paula Elvins, J.P.’s mother; Bain Potter, a corporal with the Fayetteville Police Department who responded to J.P.’s call at Stanfield’s residence; Sarah Peace and James Jennings, officers with the Fayette-ville Police Department who apprehended appellant after he drove away from the campsite on the scooter; Daniel Robbins, an officer with the Fayetteville Police Department’s Criminal Investigation Division who took numerous photographs of appellant, J.P., the crime scene, and the scooter; Gregory Samuels, the Special Investigations Unit Detective who interviewed appellant and J.P. at the Fayetteville Police Station and took DNA swabs from both; and J.P. himself, who testified as to what happened on June 10 and 11, 2011.
At the close of the State’s case-in-chief, appellant moved for a directed verdict, which the trial judge denied. Appellant did not put on any evidence. Following closing arguments, the case was submitted to the jury, which found appellant guilty of rape.
During the penalty phase, the State put on testimony from J.P.’s counselor and | ^appellant’s parole officer, Ashley Harvey. Harvey testified that when she first asked appellant about his prior conviction, he told her that the victim was foürteen years old and not four years old. In a subsequent visit, however, appellant apologized for lying to Harvey, telling her that he did not want her to know the facts of his prior conviction because she was a pretty lady. Appellant’s mother testified on his behalf.
Following closing arguments, the jury returned a sentencing verdict recommending a sentence of life imprisonment. The trial judge accepted the jury’s recommendation and sentenced appellant to life without parole in the Arkansas Department of Correction. Judgment was entered on December 6, 2011, and a timely notice of appeal was filed on.December 13, 2011.
On appeal, appellant argues that the trial judge erred by admitting his prior conviction under Arkansas Rule of Evidence 404(b). Rule 404(b) is entitled “Other Crimes, Wrongs, or Acts” and provides as follows.
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.
Ark. R. Evid. 404(b) (2012). The first sentence provides the general rule excluding evidence of a defendant’s prior bad acts, while the second sentence provides an exemplary, but not exhaustive, list of exceptions to that rule. Hamm v. State, 365 Ark. 647, 652, 232 S.W.3d 463, 468 (2006) (citing White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)). We have explained |7that these exceptions inure because such evidence is independently relevant and does not merely establish that the defendant is a bad person who does bad things. Id. (citing Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996)).
Additionally, our cases have also recognized a separate “pedophile exception” to the general rule that evidence of a defendant’s prior bad acts cannot be used to prove that the defendant committed the charged crime. Allen v. State, 374 Ark. 309, 316, 287 S.W.3d 579, 584 (2008). The pedophile exception allows the State to introduce evidence of the defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Id. at 316, 287 S.W.3d at 584-85. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Id. at 316, 287 S.W.3d at 585.
For the pedophile exception to apply, there must be a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct. Id. at 317, 287 S.W.3d at 585. We also require that there be an “intimate relationship” between the defendant and the victim of the prior act. Id. Although our early jurisprudence on the pedophile exception required that the alleged victim of a prior bad act be a member of the defendant’s family or household, modernly the State need only demonstrate a relationship close in friendship or acquaintance, familiar, near, or confidential. Id. Additionally, evidence admitted under Rule 404(b) must be temporally proximate, and we apply a reasonableness standard to determine whether a prior crime remains relevant despite the passage of time. Lamb v. State, 372 Ark. 277, 284, 275 S.W.3d 144, 150 (2008) (citing Nelson v. State, 365 Ark. 314, 323, 229 S.W.3d 35, 42-43 (2006)).
Finally, we note that the admission or rejection of evidence under Rule 404(b) is within the sound discretion of the circuit court and will not be reversed absent a manifest abuse of discretion. Hendrix v. State, 2011 Ark. 122, at 7, 2011 WL 1177219. Abuse of discretion is a high threshold that does not simply require error in the trial judge’s decision, but requires that the trial judge acted improvidently, thoughtlessly, or without due consideration. Dixon v. State, 2011 Ark. 450, at 11, 2011 WL 5100896.
Appellant’s principal point on appeal is that the pedophile exception is inapplicable to his prior conviction because the two offenses are factually dissimilar and temporally improximate and because there was no evidence that he had an intimate relationship with either victim. The State, on the other hand, maintains that appellant’s conviction was independently relevant to show appellant’s motive, intent, preparation, or plan to rape J.P. and was also admissible under the pedophile exception as evidence of appellant’s depraved instinct toward minors. Alternatively, the State contends that any evidentiary error related to appellant’s prior conviction is harmless in light of the other evidence of appellant’s guilt.
We begin by addressing appellant’s argument that the crimes were dissimilar. In support of his position, appellant asserts that (1) one case involved a fourteen-year-old male, whereas the other case involved a four-year-old female; (2) one incident took place in a secluded wooded area away from other people, whereas the other incident took place inside the victim’s home with the victim’s mother and another adult in the house; and (3) one act |9was done while the victim was asleep, whereas the other act was done while the victim was awake.
The State counters that there were sufficient similarities to satisfy the pedophile exception because in each instance, appellant engaged his minor victims with common interests to get them alone, performed oral sex on them, and admonished them not to tell anyone after the crimes occurred.
The trial judge found that the prior conviction was probative of appellant’s motive, intent, and plan to carry out the assault on J.P. We do not see a manifest abuse of discretion on this point. The attendant facts of appellant’s prior conviction were that he began playing dolls with the victim in her bedroom away from her mother and other adults, pulled down her shorts and underwear, performed oral sex on her, and then told her not to tell her mother because she would be in trouble. Similarly, J.P. testified at trial that appellant worked on scooters with J.P., invited him to go camping and fishing, took him to a secluded area with no other adults present, pulled down his shorts, performed oral sex on him, and then threatened to kill J.P. if he left the campsite without him. Thus, in each case appellant placed himself in a position of authority, isolated the victim from parents or other adults while engaging the victim in a favored activity, removed the victim’s pants, performed oral sex on the victim, and then told the victim not to tell. Finally, we are not persuaded that the difference in age and gender between the two victims renders the pedophile exception inapplicable. As discussed above, the pedophile exception governs evidence showing a proclivity towards a specific act with a person or class of persons. We have previously 110explained that this “class of persons” includes all minor children and is not restricted to children of a specific age or gender. See, e.g., Swift v. State, 363 Ark. 496, 499-500, 215 S.W.3d 619, 621-22 (2005). Accordingly, we reject appellant’s assertion that there were insufficient similarities between the two cases.
Next, we turn to appellant’s argument that there was no evidence that he had an intimate relationship with the victims. With regard to the Oklahoma victim, appellant asserts that the trial judge had no basis to find that appellant had an intimate relationship with the four-year-old girl. He suggests that playing dolls with the victim while the victim’s mother and another individual were in another room does not establish the requisite closeness in relationship. With regard to J.P., appellant contends that the two were not friends, had only one previous interaction prior to June 10, and that there was no evidence that appellant was entrusted with J.P.’s care during the camping trip.
The State counters that there was ample evidence of intimate relationships. Specif ically, the State observes that in the prior case, the victim was apparently left in appellant’s care while her mother napped. In the present case, the State points out that appellant proposed the camping trip at a time when J.P. was left in the care of his sixteen-year-old .sister and then took J.P. to a secluded campsite with no other adults present.
Again, we agree with the State. As previously noted, in both cases, appellant cultivated a relationship close in acquaintance based on common interests and enjoyed a position of authority over his victims. We abandoned any intra-family or same-household requirement long ago and will find an imitate relationship so long as there is an acquaintance or friendship |nthat is familiar, near, or confidential. See Parish v. State, 357 Ark. 260, 270, 163 S.W.3d 843, 849 (2004). In each instance, appellant created a situation in which he held the position of a care-taking adult with attendant authority. This is all that is necessary, and we therefore conclude that there was sufficient evidence to support the trial judge’s finding that appellant’s prior conviction showed his proclivity to sexually abuse minors who are in his care.
Finally, we address appellant’s argument that the two incidents, which are separated by seventeen years, are simply too remote to be admissible under Rule 404(b). Appellant suggests that the case of Efird v. State, 102 Ark.App. 110, 282 S.W.3d 282 (2008), is instructive on this point. In Efird, the defendant was convicted of repeatedly having anal intercourse with his minor stepdaughter. Id. at 113-14, 282 S.W.3d at 284. On appeal, our court of appeals reversed the trial court’s decision to admit testimony from the defendant’s half-brother that he and the defendant engaged in genital touching and oral sex seventeen years earlier. Id. at 114, 282 S.W.3d at 284. The court reasoned that the defendant’s prior sexual acts with his half-brother, committed when they were between twelve and fourteen years old and sharing a bedroom, did not demonstrate any proclivity or instinct relevant to determining whether he raped a minor child. Id.
The State counters that the present case is distinguishable from Efird because both of appellant’s victims were minors. It also reiterates that appellant’s prior conviction was factually similar enough to the charged crime to allow the trial judge to find a relevant connection between the two.
The trial judge found that, appellant’s prior conviction, despite its age, tended to prove | ^appellant’s depraved sexual instinct. We agree. First, we have previously found sufficient temporal proximity in similar circumstances. E.g., Lamb v. State, 372 Ark. 277, 285, 275 S.W.3d 144, 150 (2008) (holding that defendant’s prior sexual acts with children, which occurred almost twenty years before the charged crime, were not too remote in time to be relevant). Second, unlike the conduct analyzed in Efird, the two assaults at issue here are factually similar in all relevant respects. In Efird, the court held that evidence of a defendant’s adolescent sexual experimentation, even if incestual, was simply not relevant to determining whether he forcibly raped his minor stepchild almost two decades later. Efird, 102 Ark. App. at 114, 282 S.W.3d at 284. Here, appellant was charged with raping a minor child and his prior conviction was for the lewd molestation of a young child. Indeed, because appellant committed both offenses as an adult and assaulted each child victim in the same manner, we cannot say that the trial judge’s decision to admit appellant’s relatively old conviction was unreasonable. See Nelson v. State, 365 Ark. 314, 323, 229 S.W.3d 35, 43 (2006).
We therefore affirm the trial judge’s application of the pedophile exception because there is nothing in the record to show that he acted improvidently, thoughtlessly, or without due consideration.
Finally, appellant argues that the trial judge erred by admitting his May 6, 1998 conviction and sentence without any accompanying factual details. Appellant reasons that those documents, standing alone, had no probative value because they did not provide the jury with any facts establishing appellant’s plan, motive, opportunity, intent, or depraved sexual instinct and were capable of proving only that he was a bad person. Accordingly, | isappellant submits that even if the judge properly found that his prior conviction satisfied the pedophile exception based on pretrial evidence, he should have excluded it at trial after the prosecution failed to elicit any factual details. The State counters that appellant successfully blocked the introduction of the details of his prior conviction and that a party cannot appeal a favorable ruling below. See, e.g., Byrd v. State, 337 Ark. 413, 425, 992 S.W.2d 759, 765 (1999).
We decline to address the point, however, because this particular argument was not raised below. Indeed, at trial, the State attempted to ask David Max Cook, the Creek County, Oklahoma District Attorney, about the details of appellant’s prior conviction but was prevented from doing so by appellant’s successful Confrontation Clause objection. After the bench conference at which the trial judge sustained appellant’s objection, the State abruptly concluded its direct examination of Cook and moved to offer a certified copy of appellant’s judgment and sentence into evidence. Appellant’s trial counsel stated exactly as follows:
We have seen it. Subject to our previous objection that the court has ruled on, Your Honor, we renew our objection.
The trial judge then received the judgment and sentence into evidence, and appellant declined to cross-examine Cook.
It is clear that appellant’s “previous objection that the court ruled on” was that the pedophile exception did not apply to his prior conviction. On this final point on appeal, however, appellant distinctly shifts his position to argue that, regardless of whether the pedophile exception applies, the prosecution cannot introduce a prior conviction without also introducing, through testimony or otherwise, the facts underlying the conviction.
114After thoroughly reviewing the trial proceedings, we find that appellant did not make this argument to the trial judge by way of a timely objection or motion. We have frequently held that a contemporaneous objection must be made to the trial court before we will review an alleged error on appeal. E.g., Hale v. State, 343 Ark. 62, 79-80, 31 S.W.3d 850, 861 (2000). Accordingly, to preserve his “conviction cannot stand alone” argument, appellant was required to raise the issue as soon as the State concluded its direct examination of Cook and the trial judge admitted the conviction and sentence. He did not, and indeed failed to do so throughout the rest of the trial, even in his motions for a mistrial and for a directed verdict. For that reason, we hold that the issue is not preserved for appellate review.
Pursuant to Arkansas Supreme Court Rule 4 — 3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
HANNAH, C.J., concurs.
. Okla. Stat. Ann. tit. 21, § 1123(A)(2) (West 2011).
. Appellant also challenged the prosecution’s offer of the conviction pursuant to Arkansas Code Annotated section 16-42-103 (Supp. 2011). Appellant asserted that the statute facially violates the separation-of-powers doctrine of the Arkansas Constitution because it prescribes rules of procedure and practice, which may only be done by the judicial department of our government. He abandons this argument on appeal, however, solely focusing on whether the trial judge erred by applying the pedophile exception to Rule 404(b).
. Harvey, who supervises registered sex offenders, began working with appellant in December 2010. | [
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DOUG MARTIN, Judge.
| Appellant Dennis Andrews was charged with one count of theft of property, one count of first-degree criminal mischief, and one count of impairing the operation of a vital public facility. A Jackson County jury convicted him of theft of property and criminal mischief but acquitted him of the count of impairing the operation of a vital public facility. We affirm Andrews’s convictions as modified.
The three charges arose from the removal of some quantity of “neutral wire” from utility poles owned by Farmers Electric Co-Op in Jackson County. The original information specifically related those offenses to the date of June 13, 2010. On the morning of Andrews’s jury trial, the State orally moved to amend the information to expand the date range of the offenses to encompass June 10 through June 13, 2010. Andrews objected, arguing that he had prepared his defense based on the original information, in which the State related the offenses only to June 13. The State replied that both dates were listed in the affidavit that had supported the issuance of the arrest warrant, so Andrews could hardly claim prejudice or | ^surprise. Andrews then noted that there were two separate theft allegations but only one theft charge, and he inquired whether the State was making it two separate charges; the State replied that it was not. The court overruled Andrews’s objection to the amendment of the information, and the matter proceeded to trial. As noted above, the jury subsequently found Andrews guilty of the theft and criminal-mischief charges but acquitted him on the count of impairing' a vital government function. Andrews was sentenced to three years on each count, which the circuit court ordered to run consecutively, and a fine of $5,000.
Andrews’s first argument on appeal is that the circuit court erred in allowing the State to present testimony from Gene Swett, the general manager of Farmers Electric, concerning a repair estimate for the damage done to the utility lines. Andrews contends that the State’s failure to divulge the content of Swett’s testimony prior to trial constituted a violation of the discovery rules, and thus the evidence should not have been admitted; without this particular evidence, Andrews continues, the evidence was insufficient to support the verdicts against him. Because, however, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence first, see Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55, we consider Andrews’s sufficiency argument prior to his discovery-rule argument.
Andrews was convicted of one count of theft and one count of first-degree criminal mischief. A person commits the offense of theft of property if he takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property |sof another person with the purpose of depriving the owner of the property. Ark.Code Ann. § 5-36-103(a)(1) (Repl.2006). Theft of property is a Class C felony if the value of the property is less than $2,500 but more than $500. Ark-Code Ann. § 5-36-103(b)(2)(A) (Repl.2006). A person commits the offense of criminal mischief in the first degree if he purposely and without legal justification destroys or causes damage to any property of another. Ark.Code Ann. § 5 — 38—203(a)(1) (Repl.2006). First-degree criminal mischief is a Class C felony if the amount of actual damage is more than $500. Ark.Code Ann. § 5-38-203(b)(3) (Repl.2006). Proof that the stolen property had a value within these statutory ranges is necessary to sustain these charges as Class C felonies. See, e.g., Coley, v. State, 302 Ark. 526, 528, 790 S.W.2d 899, 901 (1990).
The evidence introduced by the State at trial showed the following. Sometime in June 2010, Darlene Madden, a meter reader for Farmers Electric, noticed a rope hanging from a power line located on Highway 145 near the Cache River Bridge. Madden noted that the rope, which had a short length of yellow chain attached to it, was hanging from the second l4Iine up, about ten or twelve feet from the utility pole. Madden contacted Gene Swett, the general manager of Farmers Electric, to report that there was something suspicious hanging on his power lines. ,
Swett reported the theft of the neutral wire from the Cache River Bridge area to the sheriffs department on June 11, 2010. Swett sent a serviceman to that location and had him retrieve the rope that Madden had discovered. Investigator David Platt of the Jackson County Sheriffs Office went to the Cache River Bridge and observed that eight spans of wire had been cut from the poles.
A “couple of days after that,” according to Swetf s testimony, there was a second “instance of some wire being taken.” This theft, which was reported to the sheriffs department on June 14, 2010, occurred in the vicinity of Beedeville, Arkansas. Jackson County Sheriffs Department Officer Greg Ivey went to Swetf s office to investigate this theft. Swett gave Ivey the piece of rope with a hook and three links of plastic chain that had been recovered from the Cache River Bridge theft.
Platt and Ivey began investigating the case and, after discovering that Andrews had sold a quantity of copper wire to Si-mons Scrap Metal on June 5, 2010, developed Andrews as a suspect. Platt and Ivey located Andrews in the parking lot of a church on June 15, 2010. Although they initially intended only'to talk to him at that time, both Platt and Ivey observed barrels containing coiled copper wire in the bed of Andrews’s truck. In addition to the barrels of wire, there was a length of yellow-colored plastic chain and a pair of wire cutters. The officers arrested both Andrews and the man. who was with him, Brian Jones. Both Platt and Ivey acknowledged that there were two separate theft reports, one filed on | .June 11, 2010, and the other filed on June 14, 2010. Neither, however, could give an exact date of when either theft actually occurred.
At trial, Swett testified, over Andrews’s objection, that he had prepared an estimate of the costs to replace the stolen wire. Swett stated that the repairs to the two damaged sections of wire totaled slightly more than $12,125. On cross-examination, Swett reiterated that the number that he gave for damages “was a summation of the two locations, based on our in-house work order.”
The State also called Brian Jones to testify at trial. Jones admitted that he had stolen the wire from the Cache River Bridge area, stating that Andrews was with him and that they had stolen “probably eight to twelve spans of neutral wire that night.” Jones identified the rope and short fragment of yellow chain, explaining that he and Andrews left the rope and chain hanging from' the wire because the chain broke and “slingshotted back up and was out of reach.” On cross-examination, Jones was adamant that Andrews “only stole wire with me once.”
Following the State’s presentation of its case, Andrews moved for a directed verdict, arguing that the proof showed that there were apparently two separate thefts in different parts of the county, but there had only been proof linking Andrews to one of the thefts — the one committed with Jones. Andrews also argued that there had been no proof presented as to the value of the wire that could be attributed to each theft. Andrews further argued as follows:
[T]he State is alleging, and [the court] allowed [the State] to amend today to do so, two separate incidents. That there is no differentiation in the amount of the damage claimed for one versus the other. And it is the State’s burden to prove amount, your honor. And in the failure to do so we shouldn’t be forced to speculate as to how much should be applied to one versus the other offense. There is no proof whatsoever |fito tie [Andrews] to the second alleged theft, which is part of the number that Mr. Swett testified to, whatsoever.
The circuit court denied Andrews’s motions, and Andrews rested without presenting proof and renewed his motions, which the circuit court again denied.
On appeal, Andrews argues that there was insufficient evidence to support his theft and criminal-mischief convictions because the State failed to introduce evidence of the damages and value elements of those crimes. Our supreme court has set forth the well-settled standard of review for challenges to the sufficiency of the evidence:
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. We affirm a conviction if substantial evidence exists to support it. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture.
Navarro v. State, 371 Ark. 179, 186, 264 S.W.3d 530, 535 (2007) (citations omitted); Ali v. State, 2011 Ark. App. 758, 2011 WL 6064865.
The crux of Andrews’s argument is that, while the State put on proof to link him to the Cache River Bridge theft that occurred on June 10, 2011, the State failed to put on any evidence that linked him to the June 13, 2011 Beedeville theft. In addition, Andrews urges that the only evidence offered by the State as to the value of the stolen property was Gene Swett’s testimony that it cost $12,125 to repair both locations. Andrews notes that Swett could not divide that cost up between the two locations or say how much was attributable to each location. Thus, while the evidence showed the combined damages for two thefts, there was no evidence linking Andrews to one of them, and the jury was accordingly left to | speculate “how much of that figure was attributable to each incident, how much was attributable to the theft of wire, and how much was attributable to damage from criminal mischief.” We agree.
Having examined the transcript in detail, we conclude that, while there is clearly proof of Andrews’s involvement with the Cache River Bridge theft — Jones’s testimony and the fact that the chain that was left dangling from the wires there matched the chain that was found in the back of Andrews’s truck — there is no evidence in the record that links Andrews to the June 13 Beedeville theft. Not one witness testified that Andrews was seen in that area or that there was any physical evidence (such as the chain and rope from the Cache River Bridge theft) linking Andrews to the Beedeville theft.
The only evidence that could even have remotely linked Andrews to the June 13 theft was the fact that there was a large quantity of copper wire in the back of his truck. Our concern with that, however, is that the State failed to produce any evidence that would show how much wire, whether by weight or length, was stolen from the Cache River Bridge; how much wire was stolen from Beedeville; or how much wire was found in Andrews’s truck. Stated another way, there was no evidence that the wire in Amdrews’s truck was the wire from the Beedeville theft. The wire could all have been from the Cache River Bridge theft. Because the State did not put on any proof as to the amount of wire stolen from each location or any proof that tied Andrews to Beedeville, the jury necessarily had to resort to ^speculation to reach the conclusion that the wire in Andrews’s possession came from both sites.
Further, the theft and criminal-mischief charges were brought against Andrews as Class C felonies, which required the State to prove that the value of the property stolen or damaged had a value between $500 and $2,500 for the theft charge, and in excess of $500 for the criminal-mischief charge. Swett’s testimony only provided an aggregate sum of how much it cost to repair both damaged sites. Without evidence linking Andrews to the Beedeville theft, without evidence as to what proportion of wire came from each theft, and without evidence as to what the repairs at each separate theft site cost, however, the jury was again forced to speculate as to the value of the wire from the single theft — the Cache River Bridge theft — that the State proved Andrews had committed.
Simply stated, the State failed to prove that Andrews either exercised control over property worth between $500 and $2,500 (theft) or destroyed or caused damage to property in excess of $500 (criminal mischief). Because, however, there was substantial evidence that Andrews committed the offenses of theft and criminal mischief with regard to the Cache River Bridge incident, and there is no minimum property value necessary for misdemeanor theft of property, see Ark.Code Ann. § 5-36-103(b)(4) and Gines v. State, 2009 Ark. App. 628, 2009 WL 3153254, or first-degree criminal mischief, see Ark.Code Ann. § 5-38-203(b)(2), we modify RAndrews’s Class C felony convictions to Class A misdemeanor convictions, and affirm the convictions as modified.
In his final argument on appeal, Andrews argues that the trial court erred in failing to give his proffered jury instruction allowing the jury to consider imposing a fine without imprisonment, notwithstanding his status as a'habitual offender. The State concedes error on this point.
Following Andrews’s conviction, the circuit court instructed the jury that Andrews had at least four prior felonies and was classified as a habitual offender under Arkansas Code Annotated section 5 — 1-501. Andrews objected to the trial court’s instructing the jury with AMI Crim.2d 9202, which provides that a Class C felony offense, when committed by a habitual of fender, is punishable by imprisonment in the Arkansas Department of Correction for a term of three to thirty years and a fíne of up to $10,000. The court rejected Andrews’s proffered instruction, which would have informed the jury that the punishment range was three to thirty years’ imprisonment, or a fíne, or both a term of imprisonment and a fine. After being instructed, the jury sentenced Andrews to a term of three years’ imprisonment and a $2,500 fíne on each conviction, which the circuit court determined should be imposed consecutively.
The State concedes error on this point, agreeing that the supreme court has held that AMI Crim.2d 9202 does not accurately reflect the law. Jones v. State, 357 Ark. 545, 558, 182 S.W.3d 485, 492 (2004). The sentencing procedures for habitual offenders set forth in section 5-4-501, however, only apply to sentencing for felony offenses. Because we have modified Andrews’s felony convictions to misdemeanor convictions, we therefore sentence him to one year in the county jail. See Ark. Code Ann. § 5-4-402(b) (Repl.2006); Young v. State, 2009 Ark. App. 101, at 2, 2009 WL 398159.
Affirmed as modified.
VAUGHT, C.J., and GLOVER, J., agree.
. Andrews does not argue on appeal that the circuit court erred in allowing the State to amend the information.
. At the time Andrews was charged with these offenses in 2010, the statutes provided that theft of property was a Class C felony if the property stolen had a value between $500 and $2,500. Ark.Code . Ann. § 5-36-103(b)(2) (Repl.2006). First-degree criminal mischief was a Class C felony if the value of the damage was $500 or more. Ark.Code Ann. § 5-38-203(b)(1) (Repl.2006). These property-value figures, however, were amended in 2011 to reflect a range, for a Class C felony, from $5,000 to $25,000. Act of Mar. 22, 2011, No. 570, §§ 23(b)(2)(A), 29(b)(3), 2011 Ark. Acts 1877, 1888. In their briefs before this court, both Andrews and the State cite the $5,000-to-$25,000 figure as the appropriate range for determining whether Andrews committed a Class C felony, which is clearly improper. See Nickelson v. State, 2012 Ark. App. 363, at 4 n. 1, 417 S.W.3d 214, (where the theft offense occurred prior to the 2011 amendment, it was subject to the version of the statute in effect at that time). Given our ultimate disposition, by which we reduce Andrews’s convictions to Class A misdemeanors, this discrepancy ultimately has no practical effect; however, we wish to call counsels’ attention to the error.
. There was testimony that about eight "spans” were stolen, but no one ever offered proof of how much wire comprises a "span.”
. Section 5 — 36—103(b)(4) (Repl.2006) provides that theft of property is a Class A misdemean- or if the value of the properly if less than $500. First-degree criminal mischief is a Class A misdemeanor “if otherwise committed.” § 5-38-203(b)(2) (Repl.2006).
.Because we reach this conclusion, it is unnecessary to address Andrews’s discovery-violation argument.
. In Jones, supra, the supreme court noted that, for defendants convicted of felony offenses other than Class Y felonies, capital murder, treason, or second-degree murder, Arkansas Code Annotated section 5-4-104(d) authorized sentences of imprisonment, the payment of a fine, or imprisonment and the payment of a fine. AMI Crim.2d 9202, however, "allows for the jury to consider only the possibility of imprisonment when the defendant is an habitual offender. It does not give the jury the option of considering only the payment of a fine, as authorized by Ark.Code Ann. § 5 — 4—104(d)(3).” Jones, 357 Ark. at 558, 182 S.W.3d at 492. Thus, the court held that AMI Crim.2d 9202 did not accurately reflect the law. Id. | [
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JIM HANNAH, Chief Justice.
| iThis is an appeal from a circuit court judgment affirming the classification of real property for tax purposes. On appeal, appellants Robert and Sue McWilliams contend that the circuit court (1) erred in failing to apply to their land the definitions for land classifications found in Arkansas Constitution, article 16, section 15 and the Assessment Coordination Department (“ACD”) Rules and Regulations; (2) erred, in violation of the Equal Protection Clause of the United States Constitution, by relying on ad hoc requirements imposed only on appellants by appellee Pope County Board of Equalization (the “BOE”); (3) erred, in violation of the Equal Protection Clause, when it denied their petition without considering similarly situated -property owners with similar property classified as timber and pasture within the Russellville city limits; and (4) erred in allowing |2a site visit by BOE’s expert witness between the first day of trial in November 2010 and the second day of trial in September 2011. We affirm.
In May 2006, appellants purchased an 11.2-acre tract classified as residential land within the city limits of Russellville from Eddie and Traci Rood for $102,000. When the Roods owned the land, they paid approximately $160 per year in taxes because they had been given a “developer’s discount” by appellee Pope County Assessor Karen Martin. According to appellants, after they purchased the land from the Roods, Martin valued the land at $136,350, with a tax of $1047.17. Appellants submitted an affidavit to the BOE seeking to change the classification from residential to timber land. After reviewing the information presented by appellants and physically inspecting the property, the BOE adjusted the value of the property “due to access and road conditions only,” appraised the land at a value of $102,850. and denied appellants’ request that the land be assessed as timber land. Appellants appealed the decision of the BOE to the Pope County Court, which affirmed the BOE. Appellants then appealed the county court’s decision to the Pope County Circuit Court, and the circuit court affirmed. Appellants now appeal the circuit court’s decision.
Our standard of review in property-assessment cases is as follows:
Because of the separation of powers-doctrine, it is not within the province of state courts to assess property. Cook v. Surplus Trading Co., 182 Ark. 420, 31 S.W.2d 521 (1930). Courts can only review the assessments and reverse them and send them back to the executive department when they are clearly erroneous, manifestly excessive, or confiscatory. St. Louis-San Francisco Ry. Co. v. Ark. Public Serv. Comm’n, 227 Ark. 1066, 304 S.W.2d 297 (1957). We have said that we will reverse property assessments only in the “most exceptional cases.” Jim Paws, Inc. v. Equalization Bd. of Garland County, 289 Ark. 113, 710 S.W.2d 197 (1986). The burden of proof is on the protestant to show that the assessment is manifestly excessive or clearly erroneous or confiscatory.
Tuthill v. Ark. Cnty. Equalization Bd., 303 Ark. 387, 390, 797 S.W.2d 439, 44-41 (1990).
Appellants first contend that the circuit court erred in failing to apply to their land the definitions for land classifications found in Arkansas Constitution, article 16, section 15. Appellants rely on article 16, section 15(a) to support their contention that their land cannot be classified as residential because they do not live on the land. Article 16, section 15(a) provides:
(a) Residential property used solely as the principal place of residence of the owner thereof shall be assessed in accordance with its value as a residence, so long as said property is used as the principal place of residence of the owner thereof, and shall not be assessed in accordance with some other method of valuation until said property ceases to be used for such residential purpose.
Contrary to appellants’ assertion, section 15(a) does not state that property may be classified as “residential” only when the owner lives on the land. Rather, section 15(a) explains that “residential property” that is used solely as the principal place of residence of the owner must be assessed in accordance with its value as a residence, as opposed to another method of valuation. The requirement in section 15(a) does not apply to “residential property” that is not used solely as the principal place of residence of the owner.
14We next address appellants’ contention that their land meets the definition of “timber land” found in the ACD Rules and Regulations. They cite to Rule 4.08.1, which defines “bona fide timber land” as
[f]orest land that is producing, or capable of producing, crops of industrial wood and is not withdrawn from timber utilization (Appendix, pg. 30, “Forest Resources of Arkansas ” Southern Forest Experiment Station, Resource Bulletin SO-169, Feb. 1992).
Appellants claim that their land should be classified as timber land because it is producing, or is capable of producing, crops of industrial wood and it has not been withdrawn from timber utilization. At the hearing before the circuit court, Mr. McWilliams testified that he used the property to grow trees. He also testified that he had sold timber from the property for a profit of $9,024, and that he had set up a timber account at the bank.
Charles Primeaux, County Forester for the Arkansas Forestry Commission, prepared a Forest Management Plan for appellants after they purchased the land. The plan stated that the soil on the land had a site index of 65 and explained that a site index “indicates the height a species will attain in 50 years, as well as the potential productivity of a site.” The plan | sfurther stated that the potential productivity was fair for improved loblolly pine-at 85 cubic feet per acre per year. The plan recommended that appellants (1) cut all cedar on the tract; (2) cut or thin the dying, diseased, crooked, or damaged post oak and hickory; (3) prepare the areas where regeneration is wanted by removing leaf litter; and (4) thin and space seedlings between the ages of two and three. Mr. McWilliams testified that, after he obtained the plan, he followed some of the recommendations, but he admitted that “the main thing that [he hadn’t] done [was] cut all the cedar off.” He further testified that he did not intend to follow the recommendation that he cut all the cedar off; rather, he planned to market the cedar as the need arose.
Appellants also presented evidence from forestry expert Michael Bentley. Bentley inventoried the land and testified that, in his opinion, the tract was capable of producing commercial quantities of lumber or forest products. He described the tract as timber land, which he defined as land having “some type of stocking of woody plants” or “land with trees growing on it.” Bentley testified that, while he had no knowledge regarding the previous owners’ use of the property, he did not see any sign that appellants had withdrawn the property from timber utilization. He stated that, at the time of his inventory, the total value of available, marketable wood on the land was $2700. Further, he testified that he had determined the stocking rate to be eighty percent.
Forestry expert and certified general appraiser David Reinold testified for ap-pellees. Reinold examined the land, and he testified that it was not suitable for commercial timber production. Reinold stated that he had reviewed the Forest Management Plan, and he | F,disagreed with the plan’s statement that the site index was 65. In Reinold’s opinion, the site index was no higher than 50, which meant the land would not be suitable for timber production at a profit and that the types of trees growing on the land would not be the best choice for timber production, even if timber production were attempted. Rei-nold also testified that the soil codes for the land were codes 25 and 26, and that this meant the soil was not good for growing trees.
Essentially, Bentley’s opinion was that the land was “bona fide timber land,” and Reinold’s opinion was that the land was not “bona fide timber land,” and the circuit court gave more credence to Reinold’s testimony. This court gives due deference to the superior position of the circuit court to determine the credibility of witnesses and the weight to be accorded their testimony. E.g., City of Rockport v.
842 Ark. 424 SOUTH WESTERN REPORTER, 3d SERIES City of Malvern, 356 Ark. 893, 155 S.W.3d 9 (2004). Further, it is within the province of the trier of fact to resolve conflicting testimony. Id. We cannot say the circuit court was clearly erroneous in concluding that appellants’ land was not timber land. [7]Appellants next contend that the circuit court erred, in violation of the Equal Protection Clause, by relying on ad hoc requirements imposed only on appellants by appellees. Specifically, appellants assert that' the circuit court’s ruling was based on appellees’ requirement of profitability of the tract and that other taxpayers with timber land do not have to prove profitability. Assuming, arguendo, that the circuit court’s ruling was based on profitability of the tract, we do not find that ad hoc requirements were imposed on appellants. At the hearing, |7Assessor Martin testified that, based on Rule 3.51 of the ACD Rules and Regulations, when a taxpayer requests a change in land classification to timber use, she requires proof of profit. Rule 3.51 provides: Agricultural lands — Lands used for the production of timber, agricultural crops, or pasture. Each parcel not exceeding five acres in size will be assessed based upon market value, excepting those parcels for which the property owner can provide evidence of a genuine agricultural, pasture or timber use. The words agricultural, pasture or timber use mean that the land is managed in a fashion that indicates it is being used in the production of crops, livestock or lumber with a view toward profit. (Emphasis added.) Appellants contend that they have proved timber use under Rule 3.51 because timber has been sold off and is still growing on the tract and because their land is being managed with a “view toward profit.” Appellants dispute appellees’ contention that to show a “view toward profit,” a property owner must have “[t]he ability to show that the value of timber produced will exceed the cost to produce it by a commercially reasonable margin,” and they appear to assert that appellees have not required this proof from any other taxpayer. Appellants maintain that a property owner may prove that he or she has a “view toward profit” by simply stating that there is an expectation of profit. Even if we were to accept appellants’ argument regarding the proof required to establish a “view toward profit,” Mr. McWil-liams’s own testimony at the county court proceeding demonstrates that he had no expectation of profit. When asked whether he believed he could grow timber on his land and sell it for a profit, Mr. McWil-liams answered, “Probably not.” Appellants have failed to prove timber use pursuant to Rule 3.51. [8] Appellants also contend that the circuit court erred, in violation of the Equal IsProtection Clause, when it denied their petition without considering similarly situated property owners with similar property classified as timber and pasture within the Russellville city limits. In advancing this argument, appellants spend several pages in their brief listing various tracts of property within the city limits of Russellville and referencing land classifications, comments, and values contained on property cards from those tracts. But appellants fail to demonstrate that they are “similarly situated” to any other taxpayer or landowner within the city limits of Russellville. Accordingly, appellants’ equal-protection claim is without merit. [9] Finally, appellants contend that the circuit court erred in allowing a site visit by David Remold, appellees’ expert witness, between the first day of trial on November 12, 2010, and the second day of
trial on September 22, 2011. At a pretrial hearing on June 26, 2008, appellees made an oral motion to allow their expert witness to inspect appellants’ property. The following exchange took place between counsel and the circuit court at the hearing:
MR. Coutts: Your honor, I think it would be appropriate at this time for me to make a motion that Ms. Maulding provide us with a time when we could take our timber expert and inspect this parcel of property.
Ms. Maulding: Your honor, I disagree that the timber expert has any business being on the property, because the ACD rules say if it’s got trees on it, the ACD uses an income approach based on the soil classification it’s in.
The Court: It would be an incompetent timber cruiser that couldn’t cruise ten acres driving by it. I don’t think he’d need to walk the whole 11 acres out ... I’m not setting a time for anybody to go on the property.
Trial began on November 12, 2010, and appellants’ expert witness, Michael Bentley, | testified. On November 17, 2010, appellees’ counsel faxed a letter to appellants’ counsel requesting permission to inspect the property. That same day, appellants’ counsel denied the request and stated in a letter of denial that she “reserve[d] the right to advise [her] clients regarding the laws relating to trespass.” On November 18, 2010, appellees filed a written motion for inspection of property. In this motion, appellees noted that, prior to the trial and continuing through the filing of the motion, appellants had refused to allow appellees and their expert witnesses access to the property. Appel-lees pointed out that appellants’ expert witness had stated during the first day of trial that the attributes and conditions of the property are not readily viewable or ascertainable from streets and roadways and adjacent property. As such, appellees contended that their expert witness needed access to inspect the property personally for the purpose of presenting appellees’ position in the case. In an order entered December 6, 2010, the circuit court granted appellees’ motion, stating that, because appellants had made the use of the property a key issue in the case and had presented evidence of such use, appellees and their expert witness should be allowed to view the property for the purpose of responding to appellants’ evidence. The circuit court ordered that, the inspection take place on December 8; 2010. Reinold inspected appellants’ land and then testified on September 22, 2011.-
Appellants claim that they were prejudiced at trial by the circuit court’s order allowing Reinold to visit the property because they had “tailored their entire case around Reinold’s testimony being based on his never being on the tract.” They state that, because Reinold had never visited the tract, his testimony regarding the tract was easy to attack because it was Imwithout foundation. They further state that they “had conducted a full day of trial based on this flaw” in appellees’ case, and “the site visit completely turned around that aspect of the case and left appellants trying to compensate.”
“Trial courts have considerable discretion ‘in managing and controlling the proceedings at the trial,’ and that includes control over the witnesses.” Walcott & Steele, Inc. v. Carpenter, 246 Ark. 95, 100, 436 S.W.2d 820, 823 (1969) (citing Ark. Motor Coaches v. Williams, 196 Ark. 48, 116 S.W.2d 585 (1938)). As the circuit court recognized in its order, because appellants had made the use of the property a key issue in the case and had presented evidence of such use, appellees and their expert witnesses should have been allowed to view the property for the purpose of responding to the evidence. Appellees had made requests to view the property, at a pretrial hearing and in correspondence with appellants’ counsel; therefore, we disagree with appellants’ contention that ap-pellees were not diligent in their efforts to secure a site inspection. Moreover, the first day of trial was November 12, 2010, the date for the conclusion of the trial in this matter was not set until an order was entered on February 18, 2011, and the conclusion of the trial did not take place until September 22, 2011. There was ample time for appellants to prepare for and present any evidence they deemed necessary after Reinold’s inspection of their property. The circuit court did not abuse its discretion in allowing appellees’ expert witness to inspect appellants’ property.
Affirmed.
. The 11.2-acre tract of land was comprised of two parcels, 864-00055-000R and 864-00052-002R. In its determination letter to appellants, the BOE stated that the value of parcel 864-00055-000R was $86,850, and parcel 864-00052-002R was $16,000.
. In denying appellants’ petition, the circuit court concluded that "the property of the Petitioners is surrounded by urban property, has easy access to utilities and streets, and is urban property.” Appellants state that, because there is no such classification of "urban” in article 16, section 15 and the ACD rules, then the decision of the circuit court should be reversed. We disagree. Appellants acknowledge that the effect of the circuit court’s order was to affirm the residential classification. The circuit court’s reference to "urban property” does not require reversal.
. The Resource Bulletin SO-169 defines "forest land” as
[l]and at least 16.7 percent stocked by forest trees of any size, or formerly having such tree cover, and not currently developed for nonforest uses. Minimum area considered for classification is 1 acre. Forest land is divided into commercial categories (timberland and deferred timberland) and noncommercial categories (productive-reserved forest land and unproductive forest land). | [
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DONALD L. CORBIN, Justice.
_JjThis is an original action brought pursuant to the Arkansas Supreme Court Procedures Regulating Professional Conduct (“Procedures”), in which Petitioner Stark Ligón, as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct (“Director”), seeks the disbarment of Respondent Fred D. Davis, III, an attorney licensed to practice law in the State of Arkansas. Our jurisdiction is pursuant to amendment 28 to the Arkansas Constitution, section 18(A) of the Procedures, and Rule l-2(a)(5) of the Rules of the Arkansas Supreme Court. We conclude that the special judge’s findings of fact and conclusions of law that Respondent engaged in serious misconduct are not clearly erroneous. We reject the recommendation that Respondent be sanctioned with a reprimand, however, and impose suspension from the practice of law for five years from the date of this opinion.
| ¿The record reflects that on June 10, 2004, Respondent was serving as circuit judge in Jefferson County and was cited for first-offense driving while intoxicated, failure to register a vehicle, and misuse of dealer tags. The latter two citations were ultimately dismissed. Respondent was found guilty of the DWT offense in district court and that conviction was affirmed in circuit court. As a result of the traffic stop, it came to light that Respondent had improperly affixed an expired dealer’s license plate to his vehicle and that he had not paid the sales tax that was due on the vehicle, which he had purchased new some two years earlier. Accordingly, Respondent was charged in Jefferson County Circuit Court with the felony offense of attempting to evade or defeat a tax, a Class C felony and a violation of Ark. Code Ann. § 26-18-201 (Repl.2012). The instant disbarment proceeding stems from this felony charge.
Respondent was tried by a jury, which found him guilty of attempting to evade or defeat a tax and also recommended suspending the imposition of a three-year sentence. The circuit court entered a judgment and disposition order on February 2, 2005, acknowledging the jury’s finding of guilt and suspended imposition of sentence and requiring Respondent to submit a DNA sample pursuant to Ark.Code Ann. § 12-12-1109(a)(2)(A) (Repl.2003), and to pay court costs of $150 and the DNA-sample fee of $250. Respondent appealed to the Arkansas Court of Appeals, which affirmed the jury’s finding of guilt on the charge of attempting to evade or defeat a tax. Davis v. State, 94 Ark.App. 240, 228 S.W.3d 529 (2006). The court of appeals lacked jurisdiction, however, to address Respondent’s challenge to the imposition of the DNA sample due to a defective notice of appeal. Id. Ultimately, in |.^accordance with Ark.Code Ann. § 5-i-311 (Repl.2006) (repealed by § 13 of Act 570 of 2011), the circuit court entered an order of dismissal on February 25, 2011, finding that “a judgment of conviction was not entered by the Court and that the [Respondent], having fully complied with the conditions for the period of suspension, now hereby discharges the [Respondent] and dismisses these proceedings.” The circuit court later entered an order to seal on April 18, 2011, pursuant to Ark.Code Ann. § 16-90-905 (Repl.2006), declaring that Respondent had satisfactorily complied with the court’s order and had been rehabilitated.
While Respondent’s three-year-suspension period and appeal were pending, his license to practice law was placed on interim suspension, and the Director filed the instant original petition -for disbarment with this court on May 9, 2005. The petition alleged that a jury had adjudicated Respondent guilty of a felony offense; namely, the attempt to evade or defeat a tax. The petition alleged that such conduct violated Rule 8.4(b) of the Model Rules of Professional Conduct, which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. The petition alleged further that because such conduct constituted a serious crime, which is defined in section 2(J) of the Procedures as “any felony,” disbarment proceedings were therefore mandatory. The Director later filed an amended petition for disbarment, adding an allegation that Respondent had violated Model Rule 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent filed responses to both petitions, arguing among other things that he had not been convicted of a serious crime because he had |4not been sentenced. This court appointed the Honorable Graham Partlow as special judge to preside over the disbarment proceedings. Ligon v. Davis, 863 Ark. 95, 210 S.W.3d 906 (2005) (per curiam).
The Director moved for summary judgment on the basis that disbarment is the presumptive sanction when a felony conviction is involved. The Director contended that Respondent had been convicted of a felony because a jury had adjudicated Respondent guilty of a felony for which he had been sentenced to pay a fine by way of the $250 DNA-sample fee. The Director emphasized that Ark.Code Ann. § 12-12-1118 (Repl.2009) described the DNA-sample fee as a “mandatory fine.” The special judge held a hearing and then entered a written order denying without prejudice the motion for summary judgment, reasoning that there were factual issues remaining as to whether Respondent had been convicted of a felony.
The special judge held a trial on the amended petition for disbarment on August 26, 2011. The special judge concluded that Respondent had indeed been adjudicated guilty of a felony but according to subsequent orders of the circuit court, the charges were dismissed and the records thereof were sealed. The special judge went on to conclude that, despite the subsequent orders from the circuit court, Respondent’s underlying conduct violated Model Rules 8.4(b) and 8.4(c) and constituted serious misconduct pursuant to section 17(B) of the Procedures. Despite these findings, however, the special judge determined that, in accordance with section 17(E)(4) of the Procedures, application of the mitigating factors in section 19 demonstrated clear and convincing grounds for a sanction less severe than a restriction of Respondent’s privilege to practice law. Accordingly, the special judge recommended the | r,sanction of a reprimand. The special judge has now filed his findings of fact, conclusions of law, and recommended sanction with this court for our review.
In accordance with section 13(D) of the Procedures, we shall accept the findings of fact by the special judge in disbarment proceedings unless they are •clearly erroneous; we shall impose the appropriate sanction, if any, as the evidence may warrant; and there will be no appeal from our decision except as may be available under federal law. Ligon v. Newman, 365 Ark. 510, 231 S.W.3d 662 (2006). A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with a definite and firm conviction that a mistake has been committed. Id. We view the evidence in a light most favorable to the decision of the special judge, resolving all inferences in favor of his findings of fact. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the special judge. Id. The purpose of disciplinary actions is to protect the public and the administration of justice from lawyers who have not discharged their professional duties to clients, the public, the legal system, and the legal profession. Id.
Also in accordance with section 13(D) of the Procedures, the parties have filed briefs with this court, and Respondent has briefed first as the appellant. In his brief to this court, | fiRespondent asks us to adopt as our own the sanction of reprimand that was recommended by the special judge. In addition, Respondent asks us to overrule the special judge’s findings of fact and conclusions of law so as to give effect to the expungement and to delete any finding that Respondent had engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent admits he was guilty of inattention to his personal business affairs, but denies any criminal intent on his part, despite the jury finding otherwise.
The following testimony supports the special judge’s finding that Respondent’s conduct reflected adversely on his honesty. Respondent testified before the special judge and acknowledged his statements to the officer who had stopped him that he had purchased a new vehicle and did not have the money to pay the sales tax and that he had a friend that he was “kind of-in [a] partnership with to help me with the tags.” Respondent also acknowledged his testimony at his criminal trial that he did not know why he had put the dealer tag on his new vehicle rather than on an older pickup truck that he had been intending to try and sell. Finally, Respondent testified that he intended to go into business with the car dealer “for the purpose of being able to buy at wholesale and sell at the auction the vehicles that [his] sons were going through on a pretty regular basis.” Considering the foregoing testimony given before the special judge,, .we cannot say that he was clearly erroneous in finding that Respondent had engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.
|7We therefore deny Respondent’s request to overrule the special judge’s findings in this regard. We consider Respondent’s remaining argument concerning the sanction in conjunction with the Director’s arguments.
The Director raises two points in his brief. First, the Director contends that the special judge’s recommended sanction of reprimand is not appropriate or merited under the totality of the evidence and circumstances, is a misapplication of section 17(E) of the Procedures, and should be modified by this court to either disbarment or a lengthy, prospective suspension. Second, the Director contends that the special judge erred as a matter of law in denying the motion for summary judgment by fail ing to find that the DNA-sample fee was a statutorily mandated fine and that a conviction had occurred.
At the outset, we note that the denial of summary judgment is not an appealable order or subject to review even after there has been a trial on the merits. Estate of Hastings v. Planters & Stockmen Bank, 307 Ark. 34, 818 S.W.2d 239 (1991). Accordingly, we do riot address whether the special judge’s denial of summary judgment was correct. The issue presented in the summary-judgment motion concerned whether Respondent had been convicted of a felony. The special judge addressed that issue after the trial in his findings and conclusions and concluded that no conviction had occurred. It is that finding that would be subject to our review, ¿fit were necessary to our decision to accept or reject the special judge’s recommended sanction. But it is not necessary to our decision today for two reasons. First, despite the finding of “no conviction,” the special judge based his recommended sanction on the underlying conduct, not on the felony conviction. Second, this court has previously held )sthat an attorney does not have to be charged with or convicted of a crime in order to have violated the rules of professional conduct prohibiting a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer. Newman, 365 Ark. 510, 231 S.W.3d 662. It is the underlying conduct that is at issue in this attorney-discipline proceeding and that is what we now address.
Respondent contends that under Arkansas law he has the absolute right to stand before this court and declare that the conduct of which he was criminally accused “shall be deemed as a matter of law never to have occurred.” Ark.Code Ann. § 16-90-902 (Repl.2006). Respondent cites Ark.Code Ann. § 17-l-103(b)(2)(B) (Repl. 2010) in support of this contention, and suggests that this court consider itself to be a body that deals in licensing and therefore subject to follow the legislature’s pronouncement of public policy to disregard criminal convictions that have been expunged when making decisions concerning registration, certification, and licensing of professions.
We decline Respondent’s invitation to so hold. Amendment 28 to the Arkansas Constitution vests this court with exclusive power to regulate the practice of law and the professional conduct of attorneys. Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987). While we recognize the laudable public policy of contributing to the rehabilitation of criminals expressed by our General Assembly in section 17—1— 103(b)(2)(B), and while we recognize our own application of similar policy in Powers v. Bryant, 309 Ark. 568, 832 S.W.2d 232 (1992), in deciding that an expunged conviction does not disqualify a person from holding public office, this court is simply not bound by such policy when éngaging in the 1 constitutional mandate of regulating and disciplining attorneys at law. As the Director argued to the special judge, ex-pungement pursuant to a legislative enactment does not in any manner bind this court in its regulation of the practice of law. Accordingly, we conclude that the special judge did not err in considering Respondent’s underlying conduct to be subject to discipline and sanction by this court’s Committee on Professional Con-dúct.
That determination brings us to the recommended sanction of reprimand, and the Director’s argument that it is not appropriate or supported by the evidence. In conducting our review, we hold steadfast to our decision in Ligon v. Rees, 2010 Ark. 223, 364 S.W.3d 19, to refrain from comparing sanctions imposed in other attorney-discipline cases.
The special judge carefully considered which sanction to impose and entered a written recommendation setting forth his detailed analysis of the relevant factors. We therefore set out his order in its entirety.
RECOMMENDATION OF SANCTION
Respondent’s conduct has been classified as “serious misconduct” under Section 17 of the Procedures because it involved a finding of guilt of a “serious crime” as defined in Section 2J. This misconduct did not result in prejudice to another person; it was not part of a pattern of similar misconduct; and, most importantly, no client was affected or prejudiced by his misconduct.
Respondent simply made a serious error in judgment by using a dealer’s tag on his personal vehicle that ultimately brought about his trial and finding of guilt by a jury for the crime of attempting to avoid or evade payment of a tax. He testified he was guilty of procrastination in his personal affairs and, while there is no reason to disbelieve his reasoning he was tried, found guilty, and the case was affirmed by the Arkansas Court of Appeals.
| inPetitioner argues he has damaged the legal profession, his misconduct was deliberate and, to maintain respect for the legal profession serious sanctions should apply.
The Preamble to Arkansas Rules of Professional Conduct provides in section (5):
“A lawyer’s conduct should conform to the requirements of the law both in professional service to clients and in the lawyer’s business and personal affairs.”
Section 19 of the Procedures has been carefully considered. Section A sets forth factors to consider in recommending sanctions. The misconduct was serious since it involved the commission of a felony and, as is usually the case when a lawyer is found guilty of a criminal offense, there has been some damage to the legal profession.
Section B has been considered. He has no prior disciplinary offenses, there isn’t a pattern of misconduct involved and he made immediate full and complete restitution by paying the sales tax together with penalties. While he didn’t agree with the jury’s verdict he did say he respected our jury system and he took full and complete responsibility for his actions.
Section C gives the factors to be considered in mitigation and all of those factors have been reviewed. He doesn’t have any record of prior disciplinary action by the committee, he notified the Director upon completion of his trial of the results and an Interim Order of Suspension was then entered.
It must be noted also that he was a duly elected and acting Circuit Judge and, as a result of the jury verdict the Judicial Discipline and Disability Commission censured him and found he was not qualified to seek or hold any judicial office in the future. He had taken voluntary retirement when that commission filed its petition but, notwithstanding that, they entered the order censuring him.
He has suffered irreparable damage to his reputation and there is no doubt he has been humiliated by his arrest, trial, conviction and the attendant publicity.
Section 17(E)(4) of the Procedures provides for a reprimand in cases of serious misconduct and, in this case it is felt that the application of the factors in Section 19 substantially demonstrate clear and compelling grounds for a sanction less severe than a restriction of his privilege to practice law.
It is therefore recommended that a reprimand be issued against Respondent.
^Respectfully submitted this 29th day of August, 2011.
/s/-
Graham Partlow Special Judge
While we agree with much of the special judge’s foregoing analysis and the implication that disbarment is not warranted, we simply cannot agree with his recommendation that the record before us demonstrates the “very limited circumstances” in which there are clear and compelling grounds to justify a reprimand as an appropriate sanction for serious misconduct. See Ark. Sup.Ct. P. Regulating Profl Conduct § 17(E)(4). We are troubled by a lack of remorse on Respondent’s part for the damage to the legal profession that his serious misconduct has caused. We are furthermore troubled by the presence of an aggravating factor not discussed by the special judge — Respondent’s refusal to acknowledge the wrongful nature of his conduct. See Ark. Sup.Ct. P. Regulating Profl Conduct § 19(B)(7). Respondent persists in maintaining the position that his conduct amounted to nothing more than procrastination and inattention to his personal business matters. Those personal business matters, however, are nothing less than the licensing, registration, and taxing laws of this state pertaining to motor vehicles. A lawyer’s failure to comply with the law, regardless of whether it is the result of deliberation or inattention, hardly amounts to the “very limited | ^circumstances” that would warrant a sanction less than restriction of his license to practice law. We therefore affirm the special judge’s findings of fact and conclusions of law, including the findings of serious misconduct and conduct involving dishonesty and deceit, and we impose the maximum five-year period of suspension authorized by the Procedures. We deny Respondent’s request that the suspension be made retroactive to coincide or overlap with his interim suspension. The five-year suspension shall begin to run as of the date of this opinion.
Petition for disbarment denied; five-year prospective suspension ordered.
. The parties and special judge agreed below that they would apply the version of the Procedures that became effective immediately upon adoption of this court’s May 26, 2011 order, In re Procedures of the Arkansas Supretne Court Regulating Professional Conduct of Attorneys at Law, 2011 Ark. 242 (per cu-riam), with the exception that they would apply any sanction according to the Procedures as they existed at the time of Respondent’s conduct. We note that this agreement was inconsistent in part with our statement in footnote three in Ligon v. Rees, 2010 Ark. 226, 364 S.W.3d 7, that we apply the version of the Model Rules and Procedures in effect at the time of the conduct. See also Sexton v. Sup. Court Comm. on Prof'l Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988). However, the,May 26, 2011 Procedures do not differ in any material way with respect to the issues presented in this particular case.
. We cite to the current version of the Procedures simply for the sake of the reader's convenience. Though not formally made a part of our Procedures until adoption of the May 26, 2011 per curiam, this court approved the use of these aggravating and mitigating factors identified by the American Bar Association Joint Committee on Professional Standards in Wilson v. Neal, 222 Ark. 148, 964 S.W.2d 199 (1998). | [
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] |
COURTNEY HUDSON GOODSON, Justice.
| TAppellant HPD, LLC (HPD) appeals the order entered by the Union County Circuit Court denying its motion to compel arbitration of claims brought against it by appellee TETRA Technologies, Inc. (TETRA). For reversal, HPD contends that the circuit court erred in ruling that threshold issues of arbitrability would be decided by the court, rather than through arbitration. On cross-appeal, TETRA asserts that the circuit court erred by not yet deciding the gateway issues. We reverse and remand for the entry of an order compelling arbitration of all issues. Accordingly, this disposition renders the cross-appeal moot.
As shown by the pleadings in this case, HPD is in the business of designing and selling specialized industrial equipment for use in chemical processing plants, water treatment facilities, and other large-scale industrial settings. TETRA is a producer, marketer, and distributer of chemicals, chiefly calcium chloride. Both are Delaware corporations, but HPD 12has its head quarters in Plainfield, Illinois, while TETRA’s principal place of business is in The Woodlands, Texas. In late 2006, the parties began negotiations regarding TETRA’s plans to construct a chemical processing plant near El Dorado, Arkansas, to produce calcium chloride, sodium chloride, and magnesium oxide from brine. After pilot testing by HPD produced satisfactory results, the parties entered into a “Transparent Execution Engineering & Equipment Supply Agreement” (contract) in November 2007 for HPD to supply equipment to be used in TETRA’s proposed facility in El Dorado. The contract contains a provision for binding arbitration. Construction of the plant began in 2008 and has been completed. TETRA paid HPD in full for its services, a total of $34,540,000.
In March 2011, TETRA filed its initial complaint against HPD in Union County Circuit Court, alleging that the equipment designed by HPD did not perform to expectations. In lieu of filing an answer, HPD moved to dismiss and to compel arbitration in accordance with the arbitration provisions contained in the contract. By its second amended complaint, TETRA asserted causes of action in negligence, gross negligence, professional malpractice, constructive fraud, and breach of fiduciary duty. For these alleged wrongs, it sought both direct and consequential damages. TETRA also sought a declaratory judgment that the contract and the embedded arbitration clause were illegal and thus void because HPD performed engineering services without obtaining a certificate of authorization as allegedly required by Arkansas Code Annotated section 17-30-308 (Supp.2011).
In support of its motion to compel arbitration, HPD asserted that the arbitration clause required arbitration of “[a]ll claims, disputes or other controversies arising out of, or relating |3to, this Agreement.” It also pointed out that the arbitration clause incorporated by reference the Construction Industry Arbitration Rules of the American Arbitration Association (AAA Rules), which grants an arbitrator “the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement” and “the power to determine the existence or validity of a contract of which an arbitration clause forms a part.” Based on the “broad” language of the arbitration clause and the terms of the AAA Rules, HPD argued that all claims and issues, including questions of arbitrability, were to be decided in arbitration.
In resisting arbitration, TETRA maintained that the contract was illegal and unenforceable because HPD had provided engineering services without a certificate of authorization. Citing Sarkco v. Edwards, 252 Ark. 1082, 1086, 482 S.W.2d 623, 625 (1972), it argued that the arbitration clause itself was invalid because it was “auxiliary to, or promotive of’ an illegal contract. TETRA also contended that, because HPD did not have a certificate of authority, it lacked the capacity to enter into a valid contract. Further, it asserted that the severability clause of the contract, which states that “[i]f any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the ... remaining parts ... shall not be affected,” contemplates that a court of competent jurisdiction is to determine whether any term of the contract is illegal, invalid, or unenforceable. TETRA stressed that the “Default and remedies” provision of the contract also contemplated court action by allowing either party, where the other commits a material breach of contract, to “avail itself of any and all rights and remedies available at law |4or in equity.” It also noted that the arbitration clause pro hibited the arbitrators from awarding punitive and consequential damages and from amending the contract, and it argued that the provision’s reference to “all” disputes must be tempered by the express limitation on the arbitrators’ authority. TETRA took the position that these preliminary issues of arbitrability must be determined by the- circuit court.
Following briefing of the arbitration issue, TETRA filed a motion for partial summary judgment on the declaratory aspect of the amended complaint in which it sought a determination that the contract and arbitration clause were void for illegality. It maintained that there was no dispute as to material fact that HPD provided engineering services without a certificate of authority and argued that, as a matter of law, the contract and the arbitration clause itself, as promotive and auxiliary to an illegal contract, were void. It also urged that HPD lacked the capacity to enter into the contract without a certificate of authority.
On September 27, 2011, the circuit court held a hearing on the motion to compel arbitration. After the parties’ oral presentations, the court took the matter under advisement and subsequently issued an order on November 4, 2011. The circuit court ruled in TETRA’s favor that it would determine the threshold issues of arbitra-bility before deciding whether the case must proceed to arbitration. The court directed HPD to file an answer to the amended complaint and a response to TETRA’s motion for summary judgment. From the circuit court’s order, HPD filed a timely notice of appeal, and TETRA filed a timely notice of cross-appeal.
Before this court, HPD argues that the circuit court erred by not compelling | sarbitration of TETRA’s tort claims and the issues TETRA raised regarding arbi-trability. It contends that the scope of the arbitration clause is expansive to include all claims, disputes, and controversies arising out of or relating to the contract. Citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), it asserts that the incorporation of the AAA Rules manifests the parties’ “clear and unmistakable” intent for arbitrators to rule on issues of arbitrability, including TETRA’s arguments concerning the existence, validity, and scope of the arbitration agreement. TETRA responds that the severability clause, the limitation on the arbitrators’ authority, and the default clause combine to negate the notion that the parties agreed to arbitrate issues of arbitrability.
An order denying a motion to compel arbitration is an immediately appeal-able order. Ark. RApp. P.-Civil 2(a)(12); Ark.Code Ann. § 16-108-228(1) (Supp. 2011); see IGF Ins. Co. v. Hat Creek P’ship, 349 Ark. 133, 76 S.W.3d 859 (2002). We review a circuit court’s order denying a motion to compel arbitration de novo on the record. S. Pioneer Life Ins. Co. v. Thomas, 2011 Ark. 490, 385 S.W.3d 770.
The parties in this case agree that the Federal Arbitration Act (FAA) applies to this dispute. Congress enacted the FAA, 9 U.S.C. §§ 1-16, to overcome judicial resistance to arbitration. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). The Act establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) (citing Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)). The FAA, which rests on Congress’s authority under the Commerce Clause, does not simply supply a procedural framework applicable in federal courts; it also Rcalls for the application, in state as well as federal courts, of federal substantive law regarding arbitration. Id.
Section 2, the “primary substantive provision of the Act,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), provides,
A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
The FAA thereby places arbitration agreements on equal footing with other contracts, and requires courts to enforce them according to their terms. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010).
In deciding whether to grant a motion to compel arbitration, two threshold questions must be answered. First, is there a valid agreement to arbitrate between the parties? Second, if such an agreement exists, does the dispute fall within its scope? See AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). In answering these questions, doubts about arbitrability must be resolved in favor of arbitration. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Further, the court (rather than the arbitrator) decides these questions of arbitrability, unless the parties clearly and unmistakably delegate that issue to the arbitrator. First Options, supra. Based on the principle that arbitration is a matter of contract, the question of “who has the primary power to decide arbitrability” turns upon what the parties agreed about that matter. Id. at 943, 115 S.Ct. 1920. According to the Supreme Court, an agreement to arbitrate a gateway issue is simply an additional antecedent agreement that the Uparty seeking arbitration asks the court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other. Rent-A-Center, supra. However, unlike the traditional presumption that favors arbitration, courts should not assume that the parties agreed to arbitrate arbi-trability because “doing so might ... force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” First Options, 514 U.S. at 945, 115 S.Ct. 1920; see also Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). Courts generally should apply ordinary state-law principles that govern the formation of contracts when deciding whether the parties agreed to arbitrate a certain matter, including ar-bitrability. First Options, supra.
In the present case, the dispute-resolution provision states that “[a]ll claims, disputes or other controversies arising out of, or relating to, this Agreement ... shall be initially submitted to a Senior Officer from each Party for resolution by mutual agreement between said officers.” If that endeavor fails, the arbitration provision states,
Arbitration. To the extent that any Dispute continues to exist after the consultation provided for in Paragraph 12.1 and to the exclusion of any court of law, either Party may refer the Dispute to arbitration, and all Disputes shall be resolved by such arbitration. The arbitration shall be conducted in a non-administered proceeding in Houston, Texas before three arbitrators in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. The award of the arbitra tors shall be final and binding and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrators shall have no jurisdiction to hear claims for or authority to award punitive, treble, special, exemplary, incidental, indirect or consequential damages against either Party. The- arbitrators shall not have the authority to modify or amend any term or provision of this Agreement, or make any ruling, finding, or award that does not conform to the terms and conditions of this Agreement. In deciding the dispute, the arbitrators shall apply the substantive law of the State of Texas, which govern this Agreement, without regard to conflict of laws principles of that jurisdiction.
|sThis provision references the AAA Rules of the construction industry, which provide as follows:
R-9 Jurisdiction
(a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.
(b) The arbitrator shall have the power to determine the existence or validity of the contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause.
Further, Rule R-l(a) states that “[t]he parties shall be deemed to have made these Rules a part of their arbitration agreement whenever they have provided for arbitration by the American Arbitration Association ... under its Construction Industry Arbitration Rules[.]”
In its argument, HPD relies on the decision in Contec Corp. v. Remote Solution Co., 398 F.3d 205 (2d Cir.2005), to argue that incorporating AAA Rules into an arbitration clause that give the arbitrator the power to decide issues of arbitrability constitutes clear and unmistakable evidence to commit issues of arbitrability to arbitration. There, the arbitration clause stated that the controversy would be resolved “in accordance with the Commercial Arbitration Rules of the American Arbitration Association.” Those rules, like the present case, granted the arbitrator “the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” The Second Circuit held that, when parties explicitly incorporate rules that empower an arbitrator |9to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties’ intent to delegate such issues to an arbitrator. A majority of courts that have considered the issue have held that when a contract contains or incorporates this type of language, it clearly and unmistakably vests the arbitrator, and not the court, with the authority to decide which issues are arbitrable. E.g., Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671 (5th Cir.2012); Fallo v. High-Tech Inst., 559 F.3d 874 (8th Cir.2009); Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366 (Fed.Cir.2006); Terminix Int’l Co., L.P. v. Palmer Ranch Ltd. P’ship., 432 F.3d 1327 (11th Cir.2005); Apollo Computer, Inc. v. Berg, 886 F.2d 469 (1st Cir.1989); Yellow Cab Affiliation, Inc. v. New Hampshire Ins. Co., 2011 WL 307617 (N.D.Ill.2011); Bishop v. Gosiger, Inc., 692 F.Supp.2d 762 (E.D.Mich.2010); Bollinger Shipyards Lockport LLC v. Northrop Grumman Ship Sys., Inc., 2009 WL 86704 (E.D.La.2009); Citifinancial, Inc. v. Newton, 359 F.Supp.2d 545 (S.D.Miss.2005); Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 203 F.R.D. 677 (S.D.Fla.2001). But see, e.g., Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d 775, 780 (10th Cir.1998) (holding that the parties did not specifically intend to submit the question of arbitrability to an arbitrator despite a reference to the AAA Rules in the arbitration provision); James & Jackson, LLC v. Willie Gary, LLC, 906 A.2d 76 (Del.2006) (adopting- the majority rule but declining to apply it because the arbitration clause did not refer all disputes to arbitration).
TETRA, however, argues that the parties did not clearly and unmistakably agree to arbitrate issues of arbitrability even though the AAA Rules were incorporated. It refers to Imthe severability clause to argue that the parties contemplated that questions of enforceability might be decided in a court of law. It further argues that the default provision, allowing resort to all remedies at law or in equity, and the limitation placed on the arbitrators’ authority in the arbitration clause also detract from such clear and unmistakable intent. TETRA suggests that, despite the delegation of authority found in the AAA Rules, the ambiguity created by these provisions diminishes any clear and unmistakable intent for an arbitrator to decide issues of arbitrability.
TETRA’s argument, as it relates to the severability clause, finds some support in appellate decisions from California and Alabama. See Peleg v. Neiman Marcus Grp., Inc., 204 Cal.App.4th 1425, 140 Cal.Rptr.3d 38 (2012) (holding that a severability provision contained within the arbitration agreement created an ambiguity with the delegation provision, thus requiring the delegation provision to be construed most strongly against the drafting party); Commercial Credit Corp. v. Leggett, 744 So.2d 890 (Ala.1999) (holding that a sever-ability clause contained within the arbitration agreement created an ambiguity with the delegation provision such that there was no clear and unmistakable evidence of intent to arbitrate issues of arbitrability). On the other hand, the First Circuit has rejected the notion that a severability clause in a contract undermines the clear and manifest intent to arbitrate questions of arbitrability by reference to AAA Rules. In Awuah v. Coverall North America, Inc., 554 F.3d 7 (1st Cir.2009), the arbitration agreement incorporated the American Arbitration Association’s Rule 7 that gave the arbitrator the power to rule on his or her own jurisdiction. The district court had found that the severability clause in the contract, allowing |n other provisions to survive if a “court of competent jurisdiction” invalidated a provision of the contract, showed that the parties had not clearly and unmistakably agreed to submit jurisdictional issues to the arbitrator. In reversing, the First Circuit held that the inclusion of a severability clause in the contract was “too thin a basis” for concluding that the agreement’s language evinced an intent to allow questions of arbitrability to be decided by a court when the AAA Rule stated plainly that the arbitrator may “rule on his or her own jurisdiction” including any objection to the “existence, scope, or validity of the arbitration agreement.” The court concluded that “[t]his is about as ‘clear and unmistakable’ as language can get[.]” Id. at 11.
In the case at bar, our object is to ascertain the intention of the parties, not from particular words or phrases, but from the entire context of the agreement. See Byrne, Inc. v. Ivy, 367 Ark. 451, 241 S.W.3d 229 (2006). It is well settled that a contract should be construed so that all of its parts are in harmony, if that is possible. Asbury Auto. Used Car Ctr. v. Brosh, 2009 Ark. 111, 314 S.W.3d 275. In seeking to harmonize different clauses of a contract, we should not give effect to one to the exclusion of the other even though they seem conflicting or contradictory, nor adopt an interpretation which neutralizes a provision if the various clauses can be reconciled. Ivy, supra (quoting Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998)). Having considered the arguments presented, we are persuaded that the arbitration provision manifests a clear and unmistakable intent to arbitrate the questions of arbitrability raised by TETRA. The arbitration provision in this case states broadly the intent to arbitrate “[a]ll claims, disputes or other controversies arising out of, or relating to,” the 112contract. More specifically, it incorporates the AAA Rules, which expressly state that the arbitrator “shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” Further, the arbitration clause provides for arbitration “to the exclusion of any court of law.” As the First Circuit so determined in Awuah, supra, we also cannot conclude that the inclusion of a severability clause in the contract negates the plain manifestation of intent expressed in the delegation provision. Nor can we say that the default provision diminishes this clear intent because resort to “all rights and remedies” says nothing about the forum in which those remedies may be pursued. Furthermore, the limitation of the arbitrators’ authority to preclude awards of certain damages mirrors, and is consistent with, another provision in the contract stating that the parties waived “all claims against each other ... for any consequential, incidental, indirect, special, exemplary or punitive damages])]” Consequently, we hold that the circuit court erred by not honoring the parties’ clear expression of intent to arbitrate the existing disputes. Therefore, we reverse and remand for the entry of an order compelling arbitration.
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DAVID M. GLOVER, Judge.
liM.RW. appeals the circuit court’s denial of her motion to transfer her case to juvenile court, arguing that the denial was clearly erroneous. We affirm.
M.R.W. was charged in July 2011 with one count of first-degree murder and eleven counts of terroristic act for events that occurred in May 2011-shots were fired at Kelough Doss and Jason Ford; Ford died from his injuries, and Doss suffered two gunshot wounds. M.R.W.’s alleged role in the crime was to set up Doss and Ford to be robbed by arranging to meet them and then directing them into the situation where both young men were robbed and shot. M.R.W.’s date of birth is June 12, 1994; at the time of the incident, she was almost seventeen years old. A transfer hearing was held October 31, 2011, at which time the trial court denied the transfer. A written order setting forth the ^reasons for denying the transfer was filed on November 10, 2011. M.R.W. timely filed a notice of appeal on December 2, 2011.
In Cole v. State, 2012 Ark. App. 281, at 1-2, 2012 WL 1415975, our court set forth the standard of review for juvenile-transfer cases:
A prosecuting attorney has the discretion to charge a juvenile, sixteen years of age or older, in the juvenile or criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. Ark.Code Ann. § 9-27-318(c)(1) (Repl.2009). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. Ark.Code Ann. § 9-27-318(e). The court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2). Clear and convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Neal v. State, 2010 Ark. App. 744, at 6 [379] S.W.3d [634], [at 637]. We will not reverse a trial court’s determination of whether to transfer a case unless that decision is clearly erroneous. Id. at 6 [379] S.W.3d at [637], A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. [379] S.W.3d at [637].
Pursuant to Arkansas Code Annotated section 9-27-318(g) (Repl.2009), the trial court shall consider all of the following factors in a transfer hearing:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the'level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against person | sor property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
The trial court is required to make written findings on all of the above factors. Ark.Code Ann. § 9 — 27—318(h)(1). However, there is no requirement that proof be introduced against the juvenile on each factor, and the trial court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. D.D.R. v. State, 2012 Ark. App. 329, at 3, 420 S.W.3d 494, 496. The defendant, as the moving party, bears the burden of proving by clear and convincing evidence that his or her case should be transferred to the juvenile division of circuit court. Magana-Galdamez v. State, 104 Ark.App. 280, 291 S.W.3d 203 (2009).
Three witnesses testified on behalf of M.R.W. Scott Tanner, coordinator for the juvenile ombudsmen division of the Public Defender Commission, testified regarding his familiarity with the services available through the juvenile division of circuit court and the Division of Youth Services (DYS). Tanner stated that if M.R.W. were committed to DYS, there would be two programs available to her, with the primary goal of both being to complete high school or obtain a GED, and that individual and group mental-health | ¿services and other therapies were also available. He said that both DYS facilities were equipped to handle a defendant who was already eighteen, and that for extended-juvenile-jurisdiction (EJJ) cases, they could maintain youth until their twenty-first birthdays. Tanner testified that it was his understanding that if the case were transferred and designated as EJJ, the juvenile court would retain jurisdiction until the defendant’s twenty-first birthday and then maintain the defendant on probation and aftercare, and the defendant would still be subject to an adult conviction and an adult sentence. On cross-examination, Tanner admitted that over the last several years, a number of individuals who had been committed to DYS and had been deemed to have been rehabilitated had later committed serious, violent offenses.
M.R.W.’s older half-sister, British Love, next testified that M.R.W.’s father had been killed when she was young; that M.R.W. had never known him; and that she and M.R.W. lived together when they were little until DHS became involved and split them up, leaving M.R.W. in DHS custody alone. According to Love, their mother would get drunk and not wake up to get her seven children to school, and that when she was drinking, she was mean and abusive.
Love testified that M.R.W. asked her to take M.R.W. to the detective in charge of the present case and that M.R.W. knew the police were looking for her because they left messages on her cell phone. Stating that she knew how serious the charges were against M.R.W., Love offered that M.R.W. was not capable of harming anyone. Love acknowledged that M.R.W. had a history of violence and stated her belief that M.R.W. |shad mental-health issues for which she had previously been treated. She also agreed that M.RW. had not been respectful to school authority figures but considered M.R.W. mature for her age, although at times she acted out without thinking of the consequences.
It was Love’s testimony that she had no trouble with M.R.W. when M.R.W. lived with her at age fourteen or fifteen. Love admitted that M.R.W. missed a juvenile hearing while she was living with her but blamed that on them mother, who had called and told M.R.W. that she did not have to appear and then called several days later to tell M.R.W. that there was a warrant out for her arrest for failure to appear. Love also testified that M.R.W. had a one-year-old child; that M.R.W. had become pregnant while living with their mother; and that although Love had tried to get custody of M.R.W. from their mother, it had “never worked out.” Love admitted that M.R.W. used to associate with a gang called the Trap Girls and that M.R.W. had a Trap Girl tattoo on her lower stomach, but she said that she did not know what the Trap Girls were.
Jacqueline Collier, M.R.W.’s aunt, testified that her sister (M.R.W.’s mother) had a drinking problem. She faulted her sister for M.R.W.’s problems, stating that M.R.W. had no guidance, was in foster care from an early age, and had not been provided even the basic necessities by her mother. She also blamed her sister for dissuading M.R.W. from appearing in juvenile court. Collier denied seeing any violent tendencies in M.R.W. and said that she did not consider M.R.W. to be mature, even though M.R.W. acted like she wanted to be mature.
10The State first called Sherry Smith, a probation officer for the Pulaski County Juvenile Court, who began working with M.R.W. in 2008. Smith testified that M.R.W. had been adjudicated delinquent for third-degree battery and disorderly conduct and had a pending case for obstructing government operations. When Smith began working with M.R.W., Smith said, M.R.W. was on conditions of release; while she had been testing negatively on her drug screens, she had violated her curfew, had failed to appear in court, and was truant. Smith testified that M.R.W. had a psychological evaluation in November 2008; that it was the doctor’s opinion that she did not need medication because she could choose to control her behavior; and that it was the doctor’s recommendation that M.R.W. be placed in a youth-services center. However, according to Smith, by the time the report was authored, M.R.W. was already in an alternative school. Smith reported that M.R.W. had been suspended from school four times in 2008 and once in 2009 for various threats and violations of school rules; had numerous write-ups; had grades ranging from A to F; and had poor school attendance. Smith did not know if there were any services that could rehabilitate M.R.W.
Tommy Hudson, a homicide detective with the Little Rock Police Department, testified that officers responding to a shooting on May 20, 2011, at the Hangar Hill apartment complex found Jason Ford suffering from multiple gunshot wounds, including a fatal gunshot wound to the head. He confirmed that Kelough Doss was located at a nearby gas station with two gunshot wounds to the right upper side of his body. Doss told 17the detectives that he and Ford were at the apartment complex to meet two girls and that when they arrived, M.R.W. (also known to Doss as Selena Trap Girl) directed them to the bottom of the apartment complex, where they were robbed and shot. Based on calls and text messages found on Doss’s phone to M.R.W.’s cell phone, she was developed as a suspect.
Detective Hudson said that M.R.W. gave a statement to the police acknowledging that she was known as Sélena Trap Girl; that she had an on-and-off relationship with Doss; that she and another girl were meeting Doss to look at an apartment; and that she was communicating with Doss on her cell phone the night of the shooting. Although she first told police that she lost her cell phone, a family member later brought if to the police station. Though M.R.W. initially denied being involved with one of the shooters or having anything to do with the shootings, after her cell phone was given to the police, she admitted her involvement with the alleged shooter and her part in arranging for Doss to come to the apartment complex, telling officers that she knew that the shootér was bringing a gun to the robbery and that she was to receive half the money obtained in the robbery.
The circuit court denied M.R.W.’s request to transfer her case to juvenile court based on the following specific findings of fact in accordance with Arkansas Code Annotated section 9-27-318(g):
Ifil. The offenses charged, first-degree murder, and eleven counts of terroristic acts are very serious offenses, and protection of society requires prosecution in the criminal division of circuit court.
2. The testimony presented indicates that the offenses were committed in an aggressive, violent, .pre-meditated and willful manner.
3. The offenses charged are violent offenses committed against persons and property, resulting in personal injury and death.
4. According to the testimony presented, the defendant was not the only participant in the offenses, but appeared to be involved in the planning and commission of the offenses.
5. The defendant has a minimal prior history of being adjudicated a juvenile delinquent involving misdemeanors. The defendant has exhibited a history of non-compliance with the orders and services offered by the Juvenile Division of the Circuit Court.
6. The defendant is not mature, but has demonstrated a desire to be treated as an adult.
7. There are facilities available to the judge of the juvenile division for a person of the defendant’s age, but the Court finds they are not likely to rehabilitate the defendant by her twenty-first birthday.
8. The testimony presented at the transfer hearing indicates that the defendant acted as a part of a group in the commission of the alleged offenses.
9. All exhibits admitted into evidence have been considered by the Court in reaching its decision on the motion to transfer to Juvenile Court.
10. The defendant has suffered from a difficult childhood and the Court finds there is some gang involvement of the defendant.
On appeal, M.R.W. argues that the trial court’s denial to transfer her case to juvenile court is clearly erroneous. She argues that the trial court failed to consider that a commitment to DYS was a “yet untried avenue” for her and that she might benefit from DYS services such as strict supervision, counseling, and education in a secure facility. We disagree. As apparent from Sherry Smith’s testimony, M.R.W. has failed to take advantage of any opportunity offered to her to date, and the trial court was not obliged to believe that she would take advantage of the opportunities afforded her if her case were | transferred to juvenile division. The trial court found that M.R.W. was charged with serious offenses that were committed in a violent, pre-meditated manner, resulting in one death and serious injuries to another person; that M.R.W. appeared to be involved in the planning of the offenses, which were committed by a group; and that M.R.W. was involved in gang activity. M.R.W. does not challenge any of these findings on appeal. The trial court’s decision to deny M.R.W.’s request to transfer her case to juvenile court was not clearly erroneous and therefore is affirmed.
M.R.W. also simultaneously argues that all of her charges are EJJ-designated offenses that would allow her more time for rehabilitation. However, a circuit court must first determine that a case should be transferred to juvenile court before an order to transfer as an EJJ case may be entered; because the circuit court in the instant case determined that M.R.W.’s case should remain in circuit court, any EJJ argument is not applicable in this situation. J.S. v. State, 2009 Ark.App. 710, 372 S.W.3d 370 (citing Lofton v. State, 2009 Ark. 341, 321 S.W.3d 255).
Affirmed.
GLADWIN and GRUBER, JJ„ agree. | [
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WAYMOND M. BROWN, Judge.
| Appellant Sidney Bradbury’s parental rights to D.D. (DOB 6/13/08) and C.B. (DOB 4/18/11) were terminated by order filed on May 14, 2012, in Garland County Circuit Court. On appeal he argues that the circuit court’s termination of his parental rights should be reversed because there was insufficient evidence that he abandoned D.D. He further argues that, based on evidence that D.D. and C.B. should be kept together, the termination of his parental rights as to C.B. should also be reversed. We disagree and affirm the circuit court’s order.
Appellant and Ashley Bradbury, who were married throughout the duration of this case, are the biological parents of D.D. C.B. is Mrs. Bradbury’s son by a different man: appellant was incarcerated when C.B. was born, and court-ordered DNA testing confirmed |2that he is not C.B.’s biological father. When C.B. was born on April 8, 2011, he and his mother tested positive for illegal drugs. The Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on C.B. a week later and placed him in the foster home where he has lived throughout the duration of this case. At the time of C.B.’s removal, appellant was incarcerated and D.D. was in the custody of appellant’s relatives.
After C.B.’s removal, in May 2011, Mrs. Bradbury was sent to a residential drug-treatment center. In June 2011, DHS allowed D.D. to join her mother at the treatment center, in an effort to help Mrs. Bradbury prepare to parent her children. On July 6, 2011, Mrs. Bradbury left the treatment center against court orders, abandoning D.D. DHS took D.D. into emergency custody and placed her in the foster home where C.B. was living. C.B. was adjudicated dependent-neglected on June 20, 2011, and D.D. was adjudicated dependent-neglected on August 12, 2011.
In October 2011, Mrs. Bradbury, who was then pregnant with her third child, was incarcerated on drug charges. In December 2011, appellant was released from prison and placed on probation. On January 13, 2012, a permanency-planning hearing was held. Based on a report filed by DHS, the circuit court found that in spite of reasonable efforts by DHS to finalize a permanency plan, it was in the best interest of D.D. and C.B. that the goal of the case be changed to adoption. On February 4, 2012, appellant was arrested and charged with | ^criminal attempt to commit aggravated robbery and second-degree battery, and was incarcerated on a $50,000 bond.
On February 14, 2012, DHS filed a petition for termination of parental rights (TPR), seeking termination of both parents’ rights as to D.D. and C.B. At that time, both appellant and Mrs. Bradbury were incarcerated at the Garland County Detention Center. A hearing was held on May 14, 2012, and the circuit court heard testimony from appellant; Mrs. Bradbury; Heather Fendley, a DHS caseworker; Shirley Watkins, an adoption specialist; and Kim Carter, the foster parent of both D.D. and C.B. Following the hearing, the circuit court granted TPR as to both parents. On May 23, 2012, appellant timely filed a notice of appeal from the TPR order.
Standard of Review
Termination of parental rights is an extreme remedy, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. The purpose or the TPR statute is to provide permanency in a child’s life in circumstances where returning the child to the family home is contrary to the child’s health, safety, or welfare and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Parental rights may be terminated if clear and convincing evidence shows that termination is in the child’s best interest, including consideration of the likelihood of adoption and potential harm, specifically addressing the Reffect on the health and safety of the child caused by continuing contact with the parent. The statute only requires the trial court to consider potential harm, and this analysis may be conducted in a forward-looking manner and considered in broad terms, including the harm the child staffers from the lack of stability in a permanent home. Additionally, one or more statutory grounds must be shown by clear and convincing evidence.
Cases involving the termination of parental rights are reviewed de novo on appeal. The grounds for TPR must be proved by clear and convincing evidence, which is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. The appellate court will not reverse the trial court’s decision unless the court’s finding of clear and convincing evidence is clearly erroneous. 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 committed. The appellate courts give a high degree of deference to the trial court, as the trial court is in a far superior position to observe the parties before it and judge the credibility of the witnesses.
I. Statutory Grounds D.D.
Appellant argues that there was insufficient evidence to prove that he abandoned D.D.; in particular, he claims, there was no evidence of intent as required by Arkansas Lode Annotated section 9-27-303(2) (Supp.2011). Whether appellant’s incarceration throughout the case constitutes abandonment under the statute is questionable. In its petition for TPR, however, DHS alleged another statutory ground.
[T]hat other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juveniles to the custody of the parents is contrary to the juveniles’ health, safety, or welfare and that, despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parents’ circumstances that prevent return of the juveniles to the custody of the parents.
The circuit court did not make a finding specific to this statutory ground in its TPR order, but this court, in its de novo review, may hold that other grounds for TPR that were alleged |fiin the termination petition were proved, even if they were not stated in the circuit court’s order.
In its TPR order, the circuit court found that DHS had made reasonable efforts to rehabilitate appellant and correct the conditions that caused removal, facilitate the goal of reunification, and fínálize a permanency plan for D.D. ánd C.B., and appellant does not contest this finding on appeal. Moreover, the record contains evidence to support the circuit court’s finding that in spite of DHS’s efforts, reunification with appellant would be contrary to the health, safety, and welfare of D.D. and C.B.
Appellant was first incarcerated when D.D. was approximately three months old (before C.B. was born), and was released on probation in December 2011, five months after D.D. was taken into DHS custody. However, he was only free for about two months during the entirety of the case and concedes that, during this time, he failed to comply with court orders or the ease plan. Heather Fendley testified that appellant had not made any progress toward the goal of the case plan and had not worked diligently toward reunification, had demonstrated a continuing inability to maintain employment, stable housing, or transportation, had not formulated any plan to support the children, had failed to comply with |7the case plan or avail himself of services offered by DHS; and had failed to maintain contact with the children throughout the case. Moreover, she stated that appellant exhibited an explosive temper that was also displayed by his other family members, and at the time of the TPR hearing he was awaiting trial in August 2012, he was in jail on a $50,000 bond, and he faced a possible sentence of thirty years. Appellant’s testimony contradicted some of this evidence, for example, he testified that he wrote D.D. letters, completed twenty hours of parenting classes, and had a house and car “in his name.” However, the circuit court made a specific finding that Fendley’s testimony was credible, and we defer to the circuit court on matters of credibility. Because there was clear and convincing evidence on the “other factors” ground, the circuit court did not clearly err in finding that DHS proved statutory grounds for TPR as to D.D.
C.B.
In its TPR order, the circuit court found that DHS proved by clear and convincing evidence that C.B. was adjudicated dependent-neglected and had continued to be out of the | ^custody of his parents for twelve months, and that despite repeated reasonable efforts on the part of DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents. Appellant concedes that this statutory ground for TPR was sufficiently proved. The only remaining question for this court, therefore, is whether the best-interest prong of TPR analysis was satisfied with regards to both children.
II. Best Interest
At the TPR hearing, Shirley Watkins, a DHS adoption specialist, testified that D.D. and C.B. were both adoptable and that she had families applying to adopt who were interested in sibling groups. In addition, Hassan Salloukh, therapist for D.D., testified that permanency was in the children’s best interest and that TPR would not be detrimental to them. Kim Carter, the children’s foster parent, testified that D.D. and C.B. had developed a very strong, loving bond and that it was in their best interest to stay together. Furthermore, Heather Fendley testified that the risk of potential harm to D.D. and C.B. if returned to appellant was evidenced by his continuing inability to maintain employment, stable housing, or transportation, inability to formulate a plan to support the children, failure to comply with the case plan or to avail himself of services offered by DHS; failure to maintain contact with the children, and failure to stay out of jail during the course of the case.
|¡Appellant testified that he wanted C.B. too, even though C.B. wasn’t his biological child. However, it was established that appellant was facing a likely sentence of thirty years in prison, and Heather Fend-ley testified that appellant’s family had been adamant that “they didn’t want anything to do with C.B. because of his heritage and that D.D., basically, should not be made to be around him because he was not white.” Fendley stated that D.D. had been abused while living in the home of appellant’s relatives, was “terrified when she goes someplace that she’s used to going with those people,” and had “a lot of trust and adjustment issues with adults” as a result. Fendley further testified that appellant’s relatives “are not stable individuals able to provide a secure and safe environment to foster trust for [D.D.].” The circuit court made a specific finding that Fendley, Salloukh, and Carter were credible, and we defer to the circuit court on matters of credibility.
Appellant does not directly challenge the circuit court’s finding that TPR was in the best interest of D.D. and C.B. Rather, his only argument hinges on our court finding that there was no statutory ground to terminate his parental rights as to D.D. Specifically, he contends that, because there were no statutory grounds for TPR with regard to D.D., he should retain his parental rights as to her, and because of the evidence of the siblings’ strong bond, it was not in C.B.’s best interest to be separated from D.D., so TPR was not appropriate for D.D. either. However, having held that a statutory ground for TPR as to D.D. was proved, we do not find this argument persuasive. In light of the evidence | ¡ ¡¡presented, the circuit court’s best-interest ruling was not clearly erroneous. We therefore affirm the circuit court’s grant of TPR as to both D.D. and C.B.
Affirmed.
ROBBINS and GRUBER, JJ., agree.
. Services listed by the circuit court included case management, an offer of anger-management education, psychological evaluations, home assessments, counseling, visitation, transportation services, and employment services.
. Tenny v. Ark. Dep’t of Human Servs., 2011 Ark. App. 360, 383 S.W.3d 876.
. Ark.Code Ann. § 9-27-341(a)(3) (Supp. 2011).
. Ark.Code Ann. § 9-27-341(b)(3) (Supp. 2011).
. Rossie-Fonner v. Ark. Dep’t of Human Servs., 2012 Ark. App. 29, 388 S.W.3d 38 (citing Dowdy v. Ark. Dep't of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722 (2009)).
. Id. (citing Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 285 S.W.3d 277 (2008)).
. Ark.Code Ann. § 9-27-341(b)(3)(B) (Supp. 2011).
. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006) (citing Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001)).
. Id.
. Tenny, supra.
. Blanchard v. Ark. Dep’t of Human Servs., 2012 Ark. App. 215, 395 S.W.3d 405.
. Id. (citing Gregg v. Ark. Dep’t of Human Servs., 58 Ark.App. 337, 952 S.W.2d 183 (1997)).
. Dinkins, supra.
. Ark.Code Ann. § 9-27-34 l(b)(3)(B)(vii)(a) (Supp.2011).
. Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7; Ratliff v. Ark. Dep't of Human Servs,, 104 Ark.App. 355, 292 S.W.3d 870 (2009); Smith v. Ark. Dep’t of Human Servs., 100 Ark.App. 74, 264 S.W.3d 559 (2007). Cf. Lewis v. Ark. Dep't of Human Servs., 2012 Ark. App. 154, 391 S.W.3d 695 (holding TPR clearly erroneous because the only ground alleged in petition and relied on by trial court was not applicable to appellant).
. Fendley testified that during the two months he was free, appellant did not have appropriate housing or transportation, failed to take required parenting classes, and failed to participate in individual counseling as directed by DHS. In addition, when appellant was released and had a chance to begin working towards reunification, just two months later he was re-incarcerated.
. Fendley testified that appellant’s mother and sister came to a DHS staffing and were "very, very aggressive, verbally aggressive, accusatory, [and] non compliant” to the extent that they were asked not to return. Fendley testified, "They just had a chip on their shoulder, felt like everyone was against them, that the drug use in the family should not be an issue, that [alleged abuse] should not have been an issue.”
. Dinkins, supra.
. Ark. Code Ann. 9-27-341 (b)(3)(B)(i)(a) (Supp.2011).
.Carter testified that D.D. had embraced the role of big sister and that being separated from C.B. "would be the undoing” of D.D. Carter testified that she had worked with infants and toddlers in a home setting for over twenty years and had a master's degree in education of children from birth to thirty-six: months of age.
. C.B. is biracial.
. Dinkins, supra. | [
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LARRY D. VAUGHT, Chief Judge.
hOn January 10, 2012, in an amended disposition order, the juvenile division of the Circuit Court of Little River County found allegations of second-degree battery, a Class D felony, against L.C. to be true. The trial court committed L.C. to the Division of Youth Services (DYS), sentenced her to serve probation until her eighteenth birthday, and ordered her to pay restitution and court costs. On appeal, L.C. argues that: (1) the trial court erred in denying her motions to dismiss challenging the sufficiency of the evidence; (2) the trial court erred in denying her motion to dismiss based on a defective juvenile-delinquency petition; (3) the amended disposition order is void because the trial court interfered with DYS’s exclusive release authority by requiring prerelease notice and a hearing; and (4) the trial court erred in committing her to DYS. We affirm.
| ¿The testimony at the hearing revealed the following facts. On July 11, 2011, L.C., who was sixteen years old and convinced that her boyfriend, A.H., had “cheated” on her, called Jamie Ardwin, a friend of A.H., to ask if A.H. had “cheated” on her. Jamie testified that he told L.C. that he believed A.H. had “cheated” on her. L.C. also, made comments to Jamie that made him believe that A.H. had been “messing around” with Jamie’s girlfriend. Then L.C. told Jamie that she wanted A.H. to be “beat up,” and Jamie agreed to do it. L.C. said to Jamie that she was planning to see A.H. that night. They devised a plan wherein Jamie and his friends, D.D. and B.I., would pick up L.C. and A.H. and drive them to a parking lot near a lake. Once they arrived, Jamie and L.C. agreed to kiss to try to instigate a fight with A.H. They also planned to videotape the event. According to the evidence, L.C. initiated the plan to beat A.H., and all four individuals — L.C., Jamie, D.D., and B.I. — were aware of and discussed the plan.
According to A.H.’s testimony, his girlfriend L.C. contacted him on July 11, 2011, and told him that they were going to “hang out” with some friends that night. A.H. said that Jamie, B.I., D.D., and L.C. picked him up and drove him to the dam near the lake. B.I. took video, which was introduced into evidence, that showed Jamie and D.D., prior to the fight, introducing themselves and showing off their muscles. There is also video of L.C. and A.H. kissing, after which Jamie is seen walking up to L.C. and kissing her, with A.H. standing nearby watching. After he kissed L.C., Jamie immediately turned around and punched A.H. in the face, [sand a fight between them ensued. Once the fight started, D.D. immediately jumped in and punched A.H. in the head, and L.C. walked out of view of the camera.
During the fight, blood can be seen running down A.H.’s head, neck, and back. Hearing testimony established that D.D. used brass knuckles to strike A.H. in the head, and in the video, Jamie can be seen picking them up off the ground. The parties eventually separated and can be seen yelling at each other. Finally, A.H. walked away, and Jamie, D.D., B.I., and L.C. left in the vehicle they arrived in. A.H. called for help and was given a ride to the hospital by another friend who happened to be nearby. At the hospital, doctors found that A.H. had four scalp lacerations, which were closed with thirteen surgical staples. He received no other medical treatment for his injuries.
B.I. testified that he, L.C., Jamie, and D.D. devised a plan to fight A.H. He said the others had been working on the plan for a couple of hours, and he was brought into the plan at the last minute to drive the group and to record the fight on video. The signal for B.I. to start the camera was when Jamie kissed L.C. B.I. testified that brass knuckles were used in the fight against A.H., but he was not aware of who brought them to the fight or who used them on A.H.
|4The incident was investigated by Little River County Sheriff Glen Hawkins. As part of his investigation, Hawkins interviewed L.C., who gave two written statements. In her first statement, she said that she, Jamie, D.D., and B.I. took A.H. to Millwood “with intentions of beating him up.” She said that they parked under a light so that the attack could be filmed. She said that the plan was that Jamie would kiss her, hoping to make A.H. mad so that he would start the fight. When he did not, Jamie punched A.H. in the face. D.D. jumped in and helped Jamie. She said that during the fight she went to the vehicle so that she would not have to watch. However, she added that she watched the video of the fight and could see brass knuckles were used on A.H. She said that they could be seen falling to the ground during the fight. In her second statement, L.C. said that she was aware of two knives and two brass knuckles that were in the vehicle prior to the fight, but that she told the boys she did not want them used. L.C. also told Hawkins that she was aware of the plan to beat üp A.H. and that she participated in the plan by getting A.H. to the place where he was to be beaten.
At the close of the State’s evidence, L.C.’s counsel moved for dismissal, arguing that the petition filed against L.C. was defective because it failed to include the particular type of second-degree battery that L.C. allegedly committed and because it did not cite the accomplice statute. L.C.’s counsel also argued that there was insufficient evidence to support a second-degree-battery disposition because “there is no proof that [L.C.] caused any injury on anybody and the statute clearly specifies that the person charged has to cause that injury. [L.C.] didn’t cause anything.” The trial court denied the motions. The defense rested and renewed its motions, adding “[L.C.] did not cause any serious physical injury to anybody.” In response, the trial court found that the allegations in the petition against L.C. were true. The trial court | ¡¡further found that (1) there was evidence that L.C. initiated the plan to beat A.H., she called A.H. and set him up for the meeting; (2) she gave a statement to law-enforcement officials that she and her friends picked up A.H. with the intention of beating-him; (3) she told another witness that she wanted A.H. beaten up; (4) the victim suffered four scalp lacerations that were treated by thirteen staples, which was a serious physical injury; and (5) L.C. acted with the culpable mental state sufficient for the commission of the offense and she caused or encouraged another person to engage in conduct that would constitute that offense.
The parties then presented sentencing witnesses. The first was Elaine Ashley, a juvenile-probation-intake officer, who testified that it was her recommendation that L.C. be committed to DYS, placed on probation until her eighteenth birthday, and ordered to pay restitution and court costs. She added that she originally recommended that L.C. be placed on probation but changed her recommendation after learning from the prosecutor’s office that they would not follow that recommendation. Ashley said that L.C. had no prior delinquency charges filed against her.
Bryan Ledford, the principal of L.C.’s high school in Ashdown, testified that L.C. had acceptable attendance and that she was a good student, who took advanced classes and maintained a 3.16 grade-point average. While he said that she had no disciplinary referrals in her file for the current year, the year before she authored a “hit list,” which was a list of people from school that she wanted to hurt or “get back at.” Ledford said that as a result, he spoke with L.C. and her parents, and no- contact orders were placed between L.C. and the students on the list.
lfiThe director of a youth-services program at Southwest Arkansas Mental Health, Wayland Lovell, testified about the types of services offered to juveniles sentenced to probation as compared to those committed to a detention center. He opined that it is best to keep juveniles out of the detention centers (like DYS) because they are overcrowded and juveniles will receive no services. He opined that if a juvenile is doing well in school and hopes to go to college, then a commitment to DYS would be a setback. He suggested that a good student should be placed on probation where she can be ordered to perform community service, regularly visit a probation officer, attend school, and abide by a curfew.
Scott Tanner, the coordinator of the Juvenile Ombudsman Division of the Public Defender Commission, testified that his division was created by the General Assembly to monitor the conditions at DYS and advocate for the best interest of the youth that are remanded there. His duties include investigating, reporting, and addressing complaints and concerns raised by juveniles, or anyone associated with the juveniles, who have been remanded to DYS. His testimony was that it would be difficult for a good student taking advanced classes like L.C. to be able to continue that level of education in a detention center. He stated that forty percent of the youth committed to DYS are identified as special-education students, where the average age is sixteen and the average reading level is third grade. He said that DYS is not prepared to help an honor student continue her education and that the best students can hope for at DYS is a GED.
L.C.’s mother, Candice Carver, testified that she and her husband did not approve of the relationship between L.C. and A.H. and that she was not permitted to leave the house with him. Carver said that on the night of the attack, L.C. left home without permission. After the | incident with A.H., Carver and her husband punished L.C. by confining her to their home and placing her under their constant supervision, not allowing her to attend any after-school functions unless they were with her, requiring her to work more around the house, not furnishing her a phone, and not permitting her to drive or visit with friends. Carver was worried about L.C. being committed to DYS because it would take her away from her younger brother and it would also negatively affect her education. She believed that L.C. had learned from her mistake and that it would not be in her best interest to go to DYS.
The final sentencing witness was Brady Baker. Baker testified that she has two children, one who is blind, and that L.C. helped care for them. When Baker had surgery, L.C. stayed in Baker’s home overnight for two and a half weeks. Baker testified that L.C. often stays the night and/or weekend with her or her mother, Marti Brunson, but that there is an adult supervising L.C. at all times.
At the conclusion of the sentencing phase, the trial court found that probation was “light,” and was not the proper disposition. As such, the trial court committed L.C. to DYS, probation until her eighteenth birthday, and ordered her to pay restitution and court costs. ■ The trial court stated that L.C. had committed a very serious offense; that the victim could have died; that one of the individuals involved was sentenced to the penitentiary; and that L.C. had had prior problems at school that demonstrated some anger-management issues. On December 13, 2011, two orders formalizing these findings were en tered: a DYS commitment order and a disposition order. The trial court amended the DYS commitment order on December 19, 2011, and amended the disposition order on January 10, 2012. L.C. filed a timely notice of appeal.
|sWe first address L.C.’s argument that the trial court erred in denying her motions to dismiss her second-degree-battery disposition. A motion to dismiss at a bench trial is identical to a motion for directed verdict at a jury trial in that it is a challenge to the sufficiency of the evidence. Green v. State, 2012 Ark. App. 815, at 6, 416 S.W.3d 765, 768. The test for determining sufficient proof is whether there is substantial evidence, direct or circumstantial, to support the verdict. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474 (2000). On appeal, we review the evidence in the light most favorable to the State and sustain the conviction if there is any substantial evidence to support it. Harmon, 340 Ark. at 22, 8 S.W.3d at 474. Evidence is substantial if it is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id., 8 S.W.3d at 474. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. Id., 8 S.W.3d at 474. We do not weigh the evidence presented at trial, as that is a matter for the fact-finder. Id., 8 S.W.3d at 474-75. Where, as here, the trial is before the bench, the trial judge sits as fact-finder. Id., 8 S.W.3d at 475.
A person commits second-degree battery if:
(1) With the purpose of causing physical injury to another person, the person causes serious physical injury to any person;
(2) With the purpose of causing physical injury to another person, the person causes physical injury to any person by means of a deadly weapon other than a firearm;
(3)The person recklessly causes serious physical injury to another person by means of a deadly weapon;....
Ark.Code Ann. § 5-13-202(a)(l)-(3) (Repl. 2006).
| nUnder this point, L.C. makes two arguments. She first contends that there was a lack of evidence demonstrating that A.H. suffered a serious physical injury because his life was never in danger, he walked away from the fight, and he suffered no long-term side effects from his injury. Her 'second argument is that because her plan did not include A.H. being beaten up by D.D., with or without brass knuckles, she did not have the culpable mental state to commit the offense of second-degree battery. She points to evidence that she did not talk to D.D. about the plan, that D.D.’s punches (not Jamie’s) injured A.H., and that the plan was to be limited to some “high school drama.”
However, because L.C. did not make these arguments at trial, they are not preserved for appeal. At trial, counsel for L.C. argued that there was insufficient evidence to support a second-degree-battery disposition because “there is no proof that [L.C.] caused any injury on anybody and the statute clearly specifies that the person charged has to cause that injury. [L.C.] didn’t cause anything.” It was also argued that “[L.C.] did not cause any serious physical injury to anybody.”
In order to preserve a challenge to the sufficiency of the evidence in a bench trial, a criminal defendant must make a specific motion for dismissal or for directed verdict at the close of all evidence. Colgan v. State, 2011 Ark. App. 77, at 1, 2011 WL 386961; (citing Ark. R.Crim. P. 33.1(b)-(c) (2010)). Rule 33.1 reads in pertinent part:
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor....
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or | judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense....
Ark. R.Crim. P. 33.1(b) — (c) (2011). 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.” Maxwell v. State, 373 Ark. 558, 559, 285 S.W.3d 195, 200 (2008). Without a trial court ruling on a specific motion, there is nothing for this court to review. Id., 285 S.W.3d at 200.
In the instant case, counsel for L.C. failed to make the specific motions regarding lack of evidence to prove serious physical injury and the lack of evidence to prove culpable mental state. Accordingly, the sufficiency arguments she now asserts on appeal are not preserved for our review. The only sufficiency argument preserved for appeal is that “there is no proof that [L.C.] caused any injury on anybody.” On this point we disagree.
In cases where the theory of accomplice liability is implicated, we affirm a sufficiency-of-the-evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Clark v. State, 358 Ark. 469, 475-76, 192 S.W.3d 248, 252 (2004). A person is criminally liable for the conduct of another person when he is an accomplice of another person in the commission of an offense. Clark, 358 Ark. at 476, 192 S.W.3d at 252 (citing Ark.Code Ann. § 5-2-402(2) (Repl.1997)). The accomplice-liability statute, set forth in Ark. Code Ann. § 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:
ln(l) 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; ...
(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 engaging in the conduct causing the particular result;....
Ark.Code Ann. § 5-2-403(a)(l)-(2), (b)(1)-(2) (Repl.2006). 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. Clark, 358 Ark. at 476, 192 S.W.3d at 253. Under the accomplice-liability statute, a defendant may properly be found guilty not only of his own conduct, but also the 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. Id., 192 S.W.3d at 253. Finally, there is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id., 192 S.W.3d at 253.
In the case at bar, we hold that there is substantial evidence supporting L.C.’s second-degree-battery disposition based on her accomplice liability. Jamie testified that L.C. solicited and encouraged the plan to beat A.H. The evidence established that all parties involved in the attack were aware of the plan. L.C.’s own statement to law-enforcement officials was that she, h2Jamie, D.D., and B.I., drove A.H. to the lake “with the intentions of beating him up.” A.H. testified that L.C. aided in the plan by setting him up for the attack by telling him that they were going out with Jamie, D.D., and B.I. that night. She also participated in the plan by engaging in a staged kiss with Jamie.
Because there is overwhelming evidence that Jamie, D.D., B.I., and L.C. assisted one another in the commission of the second-degree battery against A.H., each is an accomplice and criminally liable for the conduct of the others. As set forth in Clark, there is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Clark, 358 Ark. at 476, 192 S.W.3d at 253.
While L.C. contends that D.D. was not a part of her plan and that he only entered the fight to come to the aid of Jamie, there is evidence to the contrary. The video shows both Jamie and D.D., before the fight, introducing'themselves to the camera and flexing their muscles. The video also shows D.D. entering the fight after Jamie launched the first punch. L.C. also claims that brass knuckles were not a part of her plan; however, there was evidence that she knew that there were two pairs of brass knuckles and two knives in the vehicle prior to the fight. In one of her statements, she said that while she was in the vehicle during the fight, she only saw the two knives, and there is no evidence that L.C. tried to stop the fight. Therefore, while L.C. was not the party who wore the brass knuckles and threw the punches causing multiple scalp lacerations to A.H., under the accomplice-liability statute, she may properly be found guilty not only of her own conduct, but also the conduct of her accomplices, who in this case carried out those actions. Thus, we affirm L.C.’s second-degree-battery disposition.
_JjjL.C. also contends that the trial court erred in denying her motion to dismiss based on deficiencies in the prosecutor’s delinquency petition. The petition alleged that L.C. committed second-degree battery, pursuant to Ark.Code Ann. § 5-13-202, and further stated that she “did admit to being responsible for setting up the assault on [A.H.]” L.C. argues that petition is deficient because it failed to state any facts that would notify her that a second-degree battery occurred, and it failed to set forth all sections of the criminal law allegedly violated, as required by Ark.Code Ann. § 9-27-311(d)(l)(D), when it did not cite the accomplice-liability statute found in Ark.Code Ann. § 5-2-403 (Repl.2006). We do not address the merits of these arguments because they are not preserved for appeal.
The first time counsel for L.C. made these arguments was at trial after the State rested its case. Our supreme court has held that the proper time to object to the form or sufficiency of an indictment or information is prior to trial. Threadford v. Hobbs, 2011 Ark. 468, at 3, 2011 WL 5248224 (per curiam); Barnes v. State, 94 Ark.App. 321, 325, 230 S.W.3d 311, 315 (2006). We have declined to review the sufficiency of an information on appeal when there was no proper objection in the court below. Threadford, 2011 Ark. 468, at 3, 2011 WL 5248224. Because L.C. failed to object prior to trial, her challenges are barred. Barnes, 94 Ark.App. at 325, 230 S.W.3d at 315.
Next, L.C. argues that the amended disposition order is void because the trial court interfered with DYS’s exclusive release authority by requiring prerelease notice and a hearing. Specifically, L.C. challenges the following language in the amended disposition order: “Prior to being released from the Division of Youth Services, DYS shall notify this court in order that [ ua hearing can be scheduled in Little River County.” Citing Arkansas Code Annotated section 9-27-331(a)(5) (Repl. 2009), L.C. argues that DYS has the sole authority to release a child who is not an extended-juvenile-jurisdiction offender, and the trial court’s interference violates the Separation of Powers Doctrine.
We hold that this issue is moot because counsel at oral argument confirmed that L.C. had been released from DYS custody. Although DHS asks us to reach the merits of the issue because, according to its data, the language to which it objects is inserted into DYS commitment orders in at least one-quarter of its cases, we decline to do so. DHS admitted in its brief that it routinely notifies the trial court prior to a juvenile’s release. In the case at bar, DYS provided notice of L.C.’s release, and she was released with no hearing being held.
For her final point on appeal, L.C. contends that the trial court erred by committing her to DYS, arguing that the trial court failed to consider her best interests, the public welfare, and the least restrictive alternative as required by Ark.Code Ann. § 9-27-329(d) (Repl.2009). She points out that the intake officer recommended that L.C. be committed to DYS because the prosecutor’s office refused to follow her original recommendation of probation. L.C. also cites to evidence that she is an honor student with a 3.16 GPA, who was on schedule to graduate 115early from high school; that she had no prior delinquencies; and that a commitment in DYS would negatively affect her education. Finally, she argues that the DYS commitment was error when there was evidence of alternative dispositions available, such as probation, community service, psycho logical evaluations, and suspended driving privileges.
While this issue may be moot based on the concession at oral argument that L.C. had been released from DYS custody, we nevertheless affirm the trial court’s DYS commitment decision in this case. The trial court’s decision is consistent with the ultimate recommendation of the intake officer, who concluded that commitment to DYS was appropriate in this case. Moreover, the trial court’s ruling demonstrates that it considered the alternative dispositions available and L.C.’s best interest. As evidenced by its statements at the conclusion of the sentencing phase of the case, the trial court acknowledged that each party made good points, and it weighed the evidence, finding that probation was not the proper disposition. The trial court found that L.C. committed a serious offense and that the victim could have died as a result. According to the trial court, this incident, coupled with L.C.’s school “hit list,” demonstrated that she had anger-management issues in need of treatment. Therefore, we hold that the trial court did not err in committing L.C. to DYS.
Affirmed.
WYNNE and BROWN, JJ., agree.
. The Arkansas Department of Human Services (DHS) has filed an amicus curiae brief, arguing that the amended disposition order is void for the same reason.
. For his role in the fight, Jamie, in a separate proceeding in circuit court, pled guilty to second-degree battery. He was sentenced to six years' imprisonment in the Arkansas Department of Correction, with four years suspended.
.In a separate juvenile proceeding, B.I. pled true to the delinquency petition filed against him, alleging he committed the offense of second-degree battery in connection with the beating of A.H.
. The delinquency petition is the charging instrument in a juvenile proceeding. Ark. Code Ann. § 9-27-310(a) (Repl.2009).
. Arkansas Code Annotated section § 9-27-331(a)(5) provides: “The length of stay and the final decision to release shall be the exclusive responsibility of the division, except when the juvenile is an extended juvenile jurisdiction offender.”
. The amicus curiae brief filed by DHS also contends that the language in the order unlawfully restrains its agency (DYS) in the exercise of its executive authority. DHS argues that "prerelease notice and hearing requirements disrupt [the] statutory scheme and place DYS in an untenable position with respect to providing services to all of the juveniles charged to its care.” | [
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DONALD L. CORBIN, Justice.
| Appellant, Bruce Wayne Brown, appeals the judgment of the Garland County Circuit Court convicting him of the rape of B.B., his minor stepdaughter. As Appellant was tried and sentenced by a jury to a term of imprisonment for life, jurisdiction of his appeal is properly in this court pursuant to Ark. Sup.Ct. R. l-2(a)(2) (2012). For reversal, he contends the circuit judge erred in not recusing and in making two separate evidentiary rulings. We find no error and affirm the judgment of conviction.
Appellant does not challenge the sufficiency of the evidence; therefore, we need not recite the evidence in detail. However, the following evidence is relevant to the issues presented on appeal. In June 2010, Appellant was charged by felony information with two counts of rape, with one count involving B.B. and the other involving G.B., his wife. The rape charge involving his wife was later nol-prossed. With respect to B.B., however, the information alleged that Appellant engaged in sexual intercourse or deviate sexual activity |2with his minor stepdaughter over the course of almost seven and one-half years from November 2, 2002, through April 27, 2010. The jury saw and heard testimony as well as scientific evidence. B.B. testified that Appellant used his penis and a dildo to penetrate her orally, vaginally, and anally on a weekly basis from the time she was ten until she was seventeen years old. B.B. stated that the first time Appellant raped her she was ten years old and was hospitalized for surgical repair to her vagina following that initial rape. She also testified that Appellant was in charge of disciplining her and used anal penetration as a form of punishment, leaving her bloody and incontinent. Arkansas State Crime Laboratory employees testified as to the results of the sexual-assault examination that was performed on B.B., as well as to the results of the scientific testing performed on items taken from the home where Appellant and his family lived. The employees testified that semen was found inside B.B.’s vagina, on her bed sheet and mattress, and on a blanket. They also testified that Appellant’s DNA was found on the bed sheet and mattress. In addition, the jury also heard testimony from a registered nurse who was employed as a sexual-assault nurse examiner with Cooper Anthony Mercy Child Advocacy Center. The nurse testified that B.B. had a markedly abnormal exam, showing multiple occasions of penetrated trauma' to her vaginal area. As noted, after finding Appellant guilty of rape, the jury sentenced Appellant to life imprisonment. Appellant timely filed this appeal, raising three points for reversal.
Appellant’s first point for reversal is that the circuit court erred in denying his motion for the trial judge to recuse. Appellant moved for the recusal during a pretrial hearing on the State’s motion to admit evidence under Rule 404(b) of the Arkansas Rules of Evidence. The lRrequest came just prior to the consideration of testimony from S.S., who ultimately testified at trial that when she was turning thirteen years old during the summer of 1991, Appellant had raped her while she was a guest of Appellant’s brother’s family on a camping trip at a nearby lake. The basis of Appellant’s request for the trial judge’s recusal was that the trial judge had served as a deputy prosecuting attorney on a case in'1991 in which Appellant had been charged with raping S.S. At the hearing, Appellant acknowledged that the charge had been nol-prossed, but argued that it would still be inappropriate for the trial judge to preside over a matter involving a case in which she had previously acted as a deputy prosecutor. Appellant requested that the trial judge recuse and that his case be reassigned to another judge that did not have knowledge of the ■witness S.S. or her particular case.
At the hearing, the trial judge stated that, even after seeing Appellant and S.S., she had no recollection of Appellant, S.S., or the 1991 case. The trial judge stated further that she felt she was not biased in any way because of that .case, and thus denied Appellant’s request that she recuse.
On appeal, Appellant 'maintains that S.S.’s testimony was clearly prejudicial, as the jury imposed the harshest penalty allowed by statute. Appellant argues that the refusal of the trial judge to recuse was therefore an abuse of discretion that prejudiced his right to a fair trial. He contends that the trial judge had a duty to recuse once she was made aware that she had been the deputy prosecutor in a previous case involving Appellant as the defendant and the prior victim as a potential Rule 404(b) witness in the present case.
| ^Judges must refrain from presiding over cases in which they might be interested in the outcome, in which any party is related to them by consanguinity or affinity within such degree as prescribed by law, or in which they may have been counsel or have presided in any inferior court. Ark.' Const, amend. 80, § 12. In the predecessor version of this constitutional provision, this court has interpreted the language “may have been of counsel” to be a reference to the case being tried. Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982) (interpreting Ark. Const, art. 7, § 20 (repealed by Ark. Const, amend. 80), and citing Bledsoe v. State, 130 Ark. 122, 197 S.W. 17 (1917)). Accordingly, this court has held that “it is not, in and of itself, error for a trial judge to preside over a case involving a defendant whom the judge previously prosecuted.” Irvin v. State, 345 Ark. 541, 553, 49 S.W.3d 635, 643 (2001).
Judges must also perform their duties impartially, without bias or prejudice. Ark.Code Jud. Conduct R. 2.2 & 2.3(A) (2012). Judges are presumed to be impartial, and the person seeking the recu-sal bears the burden of proving otherwise. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003). The trial judge’s decision not to recuse is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Id. To decide whether there has been an abuse of discretion, this court reviews the record to determine if prejudice or bias was exhibited. Id.
Our review of the record reveals there was no bias or prejudice exhibited by the trial judge toward Appellant. Appellant argues, however, that simply bringing the judge’s attention to what he asserts was a potential conflict, that she had once served as deputy prosecutor against him for a crime involving the potential Rule 404(b) witness, was enough |Rto warrant recusal. This argument is without merit. As argued by the State and discussed in detail under Appellant’s second point for reversal, the circuit court’s ruling on the potential Rule 404(b) witness was a ruling well within the court’s discretion. “The mere fact that some rulings are adverse to the appellant is not enough to demonstrate bias.” Gates v. State, 338 Ark. 530, 545, 2 S.W.3d 40, 48 (1999). Likewise, the mere fact that a judge previously prosecuted a defendant for a separate crime is not by itself grounds for recusal. Irvin, 345 Ark. 541, 49 S.W.3d 635. In addition, a judge need not recuse because that judge had previously prosecuted the defendant for a separate crime that was to be used for sentence-enhancement purposes. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996).
In deciding not to recuse, the trial judge noted that considerable time had passed since 1991, and that she did not remember either Appellant or the witness, even after seeing them in the courtroom. This court has noted that a trial judge has a duty not to recuse from a case where no prejudice exists. Owens, 354 Ark. 644, 128 S.W.3d 445. Thus, if there is no valid reason for the judge to disqualify herself, she has a duty to remain on the case. Id.
Here, Appellant has not demonstrated actual bias. And he has not demonstrated that the trial judge was required to recuse simply because she had acted as deputy prosecutor in the 1991 case involving the Rule 404(b) witness. Under our case law, the trial judge’s previous prosecution of Appellant itself does not require recusal, and Appellant has not demonstrated actual bias or prejudice. We therefore perceive no reason to hold that the trial judge abused her discretion in denying Appellant’s request that she recuse.
LAs his second point for reversal, Appellant contends that the circuit court erred in admitting testimony under the pedophile exception to Rule 404(b) and under Rule 403. The State filed a motion in limine to introduce testimony from several females who alleged that Appellant had raped them approximately twenty years ago. The State first sought the admission of testimony from M.M., who stated she was eighteen at the time Appellant raped her in 1989. The circuit court did not allow M.M. to testify at trial because she was not a minor at the time of her rape. Over Appellant’s objection, the circuit court ultimately allowed two witnesses to testify at trial, H.W. and S.S., who stated they were both minors at the time Appellant raped them. H.W. testified that Appellant raped her during the summer of 1990 when she was thirteen years old and living with her mother’s sister, Angela Brown, who was married to Glen Brown, Appellant’s brother. As previously noted, S.S. testified that Appellant had raped her while she was thirteen years old and a guest of Sheila and Keith Brown, who was another of Appellant’s brothers, on a family camping trip at a nearby lake. The circuit court ruled that only H.W. and S.S. would be allowed to testify at trial, as they were both minors and of similar age to B.B. when she was first raped. Appellant argues on appeal that the circuit court abused its discretion in allowing these two witnesses to testify because of the remoteness of time and the resulting prejudice. Appellant emphasizes that because the unsubstantiated, uncorroborated, and unconnected acts occurred four years apart over twenty years prior, their probative value was clearly outweighed by their prejudicial impact.
|7We recently reviewed this court’s precedent on the pedophile exception to Rule 404(b) as follows:
The admission or rejection of evidence under Rule 404(b) is within the sound discretion of the circuit court, and it will not be reversed absent a manifest abuse of discretion. E.g., Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). According to Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Such evidence is permissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ark. R. Evid. 404(b). This court’s precedent has recognized a “pedophile exception” to this rule, whereby evidence of similar acts with the same or other children is allowed to show a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. E.g., Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). For the pedophile exception to apply, we require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. E.g., White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). There must also be an “intimate relationship” between the perpetrator and the victim of the prior act. Id.
Hendrix v. State, 2011 Ark. 122, at 7-8, 2011 WL 1177219. The rationale for the pedophile exception is that such evidence helps to prove the depraved sexual instinct of the accused. Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005); Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994).
Evidence admitted pursuant to Rule 404(b) must not be too separated in time, making the evidence unduly remote. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006). The circuit court is given sound discretion over the matter of remoteness and will be overturned only when it is clear that the questioned evidence has no connection with any issue in the present case. Id. In Nelson, we held that, even though the defendant’s prior conviction was fourteen years old, the evidence tended to show his intent to commit the charged crime and was, therefore, not too remote in time to be relevant. Id. In so holding, we observed that |Ra reasonableness standard is used to determine whether a crime remains relevant rather than a specific time limit. Id. Accordingly, when considering remoteness in the context of the pedophile exception in Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008), we concluded that the charged acts and the acts the defendant committed some twenty years earlier against his daughters were sufficiently similar to show his tendency for deviate sexual impulses toward young girls such that the prior acts were not too remote in time to be relevant.
As previously noted, H.W. testified that Appellant raped her during the summer of 1990 when she was thirteen years old and living with her mother’s sister, Angela Brown, who was married to Glen Brown, Appellant’s brother. Also, as previously noted, S.S. testified that Appellant had raped her in the summer of 1991 while she was thirteen years old and a guest of Sheila and Keith Brown, who was another of Appellant’s brothers, on a family camping trip at a nearby lake. Both witnesses therefore established that they were within the care and custody of the family of one of Appellant’s brothers at the relevant time and that Appellant was in a familial or household relationship with each of the victims, as was B.B. H.W. testified that her rape occurred in the family home while no other adults were around and that Appellant forced her to her hands and knees and raped her vaginally; B.B. testified that Appellant frequently raped her while she was on all fours and that “doggy style” was Appellant’s favorite position. S.S. testified her rape occurred where the family was sleeping while on an overnight camping trip on an island at a nearby lake. S.S. noted that Appellant pitched his tent far away from the rest of the family’s tents and that he forced her inside his tent and raped her vaginally after all the other family members were asleep; B.B. testified that | ¡Appellant often raped her vaginally in the middle of the night after her mother and brother had gone to sleep. All three victims were of similar age when their rapes occurred; B.B. was ten the first time Appellant raped her, while H.W. and S.S. were thirteen years old.
The State responds that the evidence in this case was probative on many fronts as it not only demonstrates Appellant’s depraved sexual instinct for raping minor girls, but is also probative of the circumstances in which he came in contact with the girls. Our foregoing review of the testimony of H.W. and S.S. establishes that their testimony is sufficiently similar to the testimony of B.B. to show Appellant’s depraved sexual instinct for young girls and his intent to commit the charged offense of the rape of B.B. We therefore conclude that the prior acts relating to H.W. and S.S. were not too remote to be relevant here. See Lamb, 372 Ark. 277, 275 S.W.3d 144.
In addition, we conclude that Appellant cannot demonstrate Rule 403 error because the probative value of establishing similarities between the rapes of H.W., S.S., and the victim in the present case, B.B., outweighed any alleged prejudice. When enough similarities exist to make evidence probative on the issue of a defendant’s deviate sexual impulses, this court defers to the circuit court’s broad discretion in concluding that the probative nature of the challenged evidence was not substantially outweighed by the danger of unfair prejudice. See Flanery, 362 Ark. 311, 208 S.W.3d 187. While the testimony of H.W. and S.S. was no doubt damaging to Appellant, given the graphic and detailed testimony of B.B. about the sexual abuse she had endured over seven and one-half years and the scientific evidence that corroborated her testimony, we cannot say that the testimony of H.W. and S.S. was unfairly | ^prejudicial to Appellant. In addition, we note the circuit court’s exclusion of the testimony of the potential witness who was eighteen years old at the time in question. Accordingly, we cannot say the circuit court abused its discretion in admitting the testimony of H.W. and S.S.
As his third and final point for reversal, Appellant contends that the circuit court erred in granting the State’s motion in limine to exclude evidence Appellant intended to offer concerning his sexual relationship with his wife. As previously noted, although Appellant had originally been charged with the rapes of both his stepdaughter and his wife, the charge involving his wife was nol-prossed. The circuit court therefore ruled that testimony and evidence concerning Appellant’s sex life with his wife would not be relevant to the rape of B.B., which was the only charge on which Appellant was being tried.
Appellant argues on appeal that this was reversible error because it prevented him from presenting a defense and from rebutting some of the State’s DNA evidence that had been found on items taken from their home. Appellant acknowledges that the circuit court did allow him some leeway and ruled that he would be permitted to testify regarding having sex with his wife and her “saving his semen and planting it on State’s evidence.” However, Appellant maintains that the circuit court’s restriction on his testimony about his sexual relationship with his wife prevented him from putting forth a defense to the rape of B.B.
The State responds initially by pointing out that Appellant did not proffer any testimony with regard to the charge the State nol-prossed and how he somehow intended to use it in his defense to the remaining rape charge. The lack of the proffer precludes our review of this issue on appeal. See Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).
|nIt is well settled under holdings of this court and the Arkansas Rules of Evidence that a party challenging the exclusion of evidence must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. Id.; Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000); Ark. R. Evid. 103(a)(2). It is not apparent to us what the substance of the unproffered testimony would be. Our review of the record reveals that the circuit court did in fact allow Appellant to testify that it was his wife’s dildo that caused B.B.’s vaginal injury when she was ten, that he used sex toys with his wife, and that his wife planted his semen on some of the items that were scientifically tested. Given the testimony that was allowed and the lack of a proffer of the substance of his purported testimony, we cannot see how Appellant’s sexual relationship with his wife could fairly be said to be relevant to his raping his stepdaughter. We therefore conclude that, without the proffer, Appellant has failed to preserve for our review his argument regarding the evidence he sought to admit concerning his sexual relationship with his wife.
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 Appellant, and no prejudicial error has been found.
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JOSEPHINE LINKER HART, Judge.
1 Appellant Gaiy Howard, individually and as the administrator of his late father’s estate, sued appellees Lauren Adams and her law firm, Brady & Jackson (collectively Adams), for breach of contract, professional negligence, and deceit. The gist of Howard’s complaint was that Adams failed to pursue a legal-malpractice claim against another attorney, Bill Watkins, who had previously represented Howard and his' father. Following our reversal of a summary judgment in Howard v. Adams, 2009 Ark.App. 621, 882 S.W.3d 24 (Howard /), the case went to trial, and the jury found that, although Watkins had committed deceit and breached his fiduciary duty during his period of legal representation, Adams did not agree to pursue a claim against Watkins, nor did she act deceitfully or negligently. Howard appeals and argues that the circuit court erred in (1) failing to instruct the jury on contract interpretation, contractual 12privity, and the statute of limitations; (2) precluding him from asserting damages in his individual capacity; (3) preventing him from trying the issue of Watkins’s liability using the “case within a case” method; (4) directing a verdict against the estate on its claim for negligence; (5) introducing irrelevant and prejudicial evidence; (6) awarding attorney fees to Adams and her legal-malpractice insurance carrier; and (7) awarding the attorney for the estate, Harry McDermott, $21,296 for fees and costs.
I. Background
The history of this case is set out in Howard I, but we reiterate certain facts to explain our analysis. Howard’s father and stepmother, Odis and Mabel Howard, hired attorney Bill Watkins in 1998 to create an estate plan. Watkins drafted a trust to hold the couple’s assets, including forty-six acres that Odis owned. The trust provided that, upon the deaths of both settlors, the trust property would go to Howard, who was Odis’s only child.
Mabel signed the trust documents in 1998, but Odis did not execute the trust or sign the deed conveying his forty-six acres. By June 2000, the family was concerned about Odis’s health and asked Howard to serve as Odis’s guardian. Howard agreed to do so and met with Watkins, who filed a guardianship petition on Howard’s behalf. The court granted the petition on June 21, 2000, authorizing Howard to serve as guardian for a period of ninety days.
Howard met with Watkins in December 2000 where, according to him, Watkins advised him to sign the trust and the deed as Odis’s guardian, despite the expiration of the ninety-day guardianship. Howard signed the documents but later claimed that Watkins |,^backdated his signature to September 2000; that Watkins did not explain that Howard’s and Mabel’s interests were in conflict; and that Watkins did not inform Howard that, in the absence of the trust documents, he stood to inherit Odis’s real property. Howard also averred that Watkins promised to alter the trust document to grant him, his daughter Samantha, and Mabel equal rights as co-trustees.
Odis died in January 2001. Thereafter, Watkins drafted several amendments to the trust, which diminished and eventually eliminated Howard’s role as trustee. By July 2002, Mabel asserted that she was the sole trustee and that the trust property belonged to her.
These events led Howard to seek legal counsel from appellee Adams in an effort to recover the real property from the trust. Adams agreed to represent Howard and, at some point, spoke with Bill Watkins and his malpractice carrier about the circumstances surrounding the trust. Other than those basic facts, the terms of Adams’s representation of Howard are in complete conflict. According to Howard, he did not sign a written representation contract with Adams when they first met in 2002; rather, they entered into an oral agreement that Odis’s estate would be probated free of charge and that Adams would collect all of her fees from Watkins’s malpractice carrier. Howard maintains that, when Adams presented him with a written contract in 2004, indicating that she would charge a one-third contingency fee to recover the trust property, she represented that the contract was a mere formality for Watkins’s malpractice insurer. Howard contends that he signed the contract only after Adams wrote the following notation on the back of the contract: “will see malpractice insurance to re-pay attny fees & losses (probate & taxes) — Bill [Watkins] has lm in coverage J^CNA has been notified — if insurance is insufficient to cover cost of litigation we agree to prorate reduction of fees.”
Adams denies making an agreement to recover her fees from Watkins’s malpractice carrier or to pursue a claim against Watkins. She asserts that Howard asked her to take the case on a contingency- basis because he could not afford her hourly rate. She also claims that Howard signed a representation contract in 2002, which was lost, and later signed the above mentioned 2004 contract, agreeing to pay a contingency fee. According to Adams, the handwriting on the back of the contract constituted notes she made to- herself at a later time.
Regardless of the parties’ competing versions of these events, it is undisputed that Adams represented Howard successfully. In February 2005, she obtained a summary judgment in a lawsuit against Mabel, removing the forty-six-acre tract from the trust and placing it in the Odis Howard estate. Thereafter, according to Howard, he asked Adams how the suit against Bill Watkins was going. Adams replied that she was not planning to sue Watkins, and she indicated to Howard that he would owe her, as a contingency fee, one-third of the $1.8 million sale price of the real property.
At this juncture, Howard hired his current attorney, Harry McDermott, who fired Adams and demanded that she relinquish her fees. Adams responded with a claim against the Odis Howard estate for “38% of the real property recovered or the sum of $613,333.”
II. Howard’s Lawsuit against Adams
On August 8, 2005, Howard sued Adams, claiming that she committed negligence, deceit, and breach of contract when she sought attorney fees from Odis Howard’s estate rather |sthan obtaining her fees from Bill Watkins’s malpractice carrier. Howard later amended his complaint to reflect that he was suing as administrator of his father’s estate as well as in his individual capacity. Adams counterclaimed against Howard for her contingency fee, which remained unpaid.
On February 16, 2007, the circuit court determined that Adams’s lien against the estate was properly filed. The court, how ever, allowed Howard to pursue his complaint against Adams to offset the amount of the lien. Howard tried his case to a jury in early 2011 on theories of breach of an oral contract, legal malpractice, and deceit. The circuit court bifurcated the liability and damages portions of the trial.
During the liability phase, Howard put forth, as part of his malpractice proof, evidence that his claim against Watkins would have succeeded if Adams had pursued it (often referred to as proving a case within a case). The jury was therefore instructed to determine Watkins’s liability as well as Adams’s liability.
At the conclusion of the proof, the jurors found that a suit against Watkins would have been successful but that Adams did not agree to pursue such a claim, nor did she act with negligence or deceit. The circuit court entered judgment in favor of Adams, leading to this appeal.
III. Jury Instructions
Howard argues that the circuit court erred in failing to give several proffered jury instructions. A party is entitled to an instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving it. Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493. We will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id. Additionally, the appellant must demonstrate how he was prejudiced by the trial court’s failure to give the proffered instruction. See Pope v. Overton, 2011 Ark. 11, 376 S.W.3d 400; Armstrong Remodeling & Constr., LLC v. Cardenas, 2012 Ark.App. 387, 417 S.W.3d 748.
The first instructions at issue concern the contract cause of action. Howard proffered four instructions that, taken together, told the jury that the parties disputed the meaning of the written contingency-fee contract and the handwriting on the back of the contract; that the front and back of the contract should be interpreted to “give effect to what the parties intended”; that weight should be given to the meaning placed on the contract by the parties, as shown by their statements, acts, or conduct after the contract was made; and that the contract must be interpreted as a whole, with different clauses being read together. In short, Howard proffered instructions that were predicated on the existence of a contractual ambiguity to be resolved by the jury.
We affirm the trial court’s decision not to give these proffered instructions. Howard’s theory at trial was that he wanted to “throw out” the 2004 written contingency-fee contract and rely on an alleged oral agreement in which Adams promised to seek her fees from Watkins’s malpractice carrier. Howard cited the handwriting on the back of the written contract merely as proof that the oral contract existed. The essential question at trial, therefore, was not the meaning of the written contingency-fee contract; rather, the question was which contract governed — the oral contract, on which Howard relied, or the written |7one, on which Adams relied. The jury was called upon to choose a contract, and not to interpret one. We therefore see no abuse of discretion in the trial court’s refusal to give the instructions.
Howard also argues that the trial court abused its discretion in failing to give a proffered instruction on contractual priv ity. As part of Howard’s “case within a case,” he sought to prove that Watkins had acted as his personal attorney, that Watkins and he were in privity, and that a malpractice claim against Watkins would have had merit. In accordance with this proof, the trial court instructed the jury on contractual privity. Howard proffered a different instruction, containing exceptions to a party’s need to prove privity. He now argues that the court’s instruction was inadequate because it omitted the exceptions.
Howard cannot demonstrate prejudice on this point because the jury found in his favor on the privity issue. In its verdict interrogatories, the jury determined that Howard and Watkins were in privity. Consequently, there is no basis for reversal on this point.
Lastly, Howard argues that the trial court abused its discretion by failing to give a proffered instruction on the statute of limitations. The instruction set forth the manner of | ¡¡calculating the statute of limitations in a legal-malpractice case and stated that a client has three years from the date of the attorney’s negligence to file a malpractice suit. Howard contends that the instruction would have helped the jury to determine whether Adams was negligent in failing to inform Howard of the time limit for filing suit against Watkins.
While the proffered instruction contains a correct statement of the law, Howard has not convinced us that he was prejudiced by the absence of the instruction. The jury heard unrefuted testimony that the limitations period was three years. Further, Howard’s expert testified that Adams breached the standard of care by allowing the three-year statute of limitations to run on the claim against Watkins. Given this proof, and Howard’s very limited argument on this point, we cannot say that he was adversely affected by the court’s refusal to instruct the jurors on the statute of limitations or its manner of accrual.
IV. Personal Damage to Howard
In a pretrial ruling, the circuit court determined that Howard could not claim damages in his individual capacity because his attorney had previously stated in court that “in truth, the estate is what was damaged, not Gary Howard” and that Howard was not going to “get any money in his own pocket.” On appeal, Howard argues that the court erred in precluding him from proving individual damages.
The admission or exclusion of evidence will not be reversed in the absence of an abuse of discretion. Montgomery Ward & Co. v. Anderson, 334 Ark. 561, 976 S.W.2d 382 (1998).
|9We note first that, despite the court’s pretrial ruling, Howard presented evidence of potential damage during the liability phase, and the court ruled that his evidence was sufficient to avoid a directed verdict. Secondly, because the entire case was resolved at the liability phase in favor of Adams, the question of Howard’s damages was moot once the lack of liability was determined. See generally Agracat, Inc. v. AFS-NWA, LLC, 2012 Ark. App. 372, 2012 WL 1943384. Thus, no abuse of discretion occurred here.
V. Use of the “Case-within-a-case” Method
Howard contends that the circuit court erred when it prevented him from employing the case-within-a-case method to prove that attorney Bill Watkins committed malpractice. To the contrary, the record is replete with evidence on the issue of Watkins’s malpractice. Howard’s true complaint is that the court excluded; on the ground of hearsay, certain testimony by Howard and his daughter regarding some of Watkins’s out-of-court statements.
Howard cannot show that he was prejudiced by the court’s evidentiary ruling. Even without the benefit of the excluded testimony, the jury found that Watkins was negligent and deceitful in his representation of Howard. The court’s ruling therefore had no effect on the jury’s verdict. We will not reverse a trial court’s evidentiary ruling absent a showing of prejudice. Schmidt v. Stearman, 98 Ark. App. 167, 253 S.W.3d 35 (2007).
VI. Directed Verdict on the Estate’s Negligence Claim
At the close of Howard’s case in chief, the circuit court granted Adams’s motion for a directed verdict on the negligence/legal-malpractice claim filed by Howard as administrator of Odis’s estate. The court determined that, although Howard’s expert witness testified that Adams violated the standard of care as to Howard individually, the expert did not testify that ImAdams violated the standard of care with regard to the estate.
In a legal-malpractice case, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that this conduct proximately caused the plaintiffs damages. S. Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003). See Grassi v. Hyden, 2010 Ark. App. 203, 374 S.W.3d 183. In the absence of such expert testimony, a directed verdict in favor of the defendant is proper. See id. The only exception is where the trial court determines that expert testimony is not necessary because the case falls within the common-knowledge exception. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003).
An individual, in his own capacity, and that same individual, in a representative capacity, are separate and distinct parties. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002). Accordingly, Howard and the estate were distinct plaintiffs in'the suit against Adams with separate claims ■ for malpractice. Consequently, when the estate, as a separate party, failed to put forth expert testimony that Adams committed legal malpractice against it, a directed verdict was proper. Grassi, supra.
Moreover, this issue is very likely moot. The estate claimed that it was saddled with attorney fees due to Adams’s failure to pursue a recovery from Watkins. The jury found, however, that Adams'did not act deceitfully toward the estate and made no contract with the | nestate to sue Watkins. A fact-finder’s determination on one aspect of a ease may render other aspects moot. See Billingsley v. Planit Dirt Excavation & Concrete, Inc., 2012 Ark. App. 266, 399 S.W.3d 729.
VII. Irrelevant or Prejudicial Evidence
During cross-examination, Adams elicited testimony from Howard that he filed bankruptcy in 1985 and did not report a fourteen-acre tract of property as an asset in that proceeding, even though he considered himself the owner. Howard also testified that he had more recently sued his mother, Pearlene Ford, in a dispute over which of them owned the property. He acknowledged that, during a 2007 deposition in that lawsuit, he stated that he had previously told his mother not to deed the land to him because he did not want to disclose it or risk losing it to his creditors. Howard objected to the inquiry, to which Adams responded that the evidence was admissible as proof of Howard’s credibility. The circuit court agreed and allowed the testimony. Howard contends that the court abused its discretion because the evidence was irrelevant, highly prejudicial, and improper proof of other crimes, wrongs, or acts. Ark. R. Evid. 401, 403, <& 404 (2012).
We quickly dispose of Howard’s arguments regarding Rule 404 because he did not object on that ground below, either before or during trial. We do not reach evidentiary arguments raised for the first time on appeal. See Garcia v. State, 2011 Ark. App. 340, 2011 WL 1795296.
As for Howard’s claim that the bankruptcy and the suit against his mother were | ^irrelevant and highly prejudicial, we find no abuse of discretion by the circuit court in admitting the evidence. Evidence may be relevant for impeachment purposes. See generally House v. Volunteer Transp., Inc., 365 Ark. 11, 223 S.W.3d 798 (2006). Here, Adams was attempting to show that Howard, in one proceeding or the other, made untrue statements under oath — either he was untruthful during the 2007 deposition when he stated that the property belonged to him, or he was untruthful in the bankruptcy proceeding when he failed to list the property as one of his assets. Matters affecting the credibility of a witness are always relevant. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999). Further, because the parties’ credibility in this case was of paramount importance, we cannot say that the probative value of Howard’s contradictory statements was “substantially outweighed by the danger of unfair prejudice” as required by Rule 403.
Howard also implies that the remoteness of the 1985 bankruptcy rendered it inadmissible. Evidence may be relevant, however, even though it is remote in time. Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70. In this case, Howard’s testimony regarding his bankruptcy was linked with evidence of his 2007 deposition, which is a more recent event. The remoteness of the bankruptcy does not, therefore, render it inadmissible.
Howard additionally argues that certain testimony regarding his conduct as mayor of a small town should not have been admitted. The testimony arose when Adams cross-examined Howard about previous lawsuits to which he had been a party but had not disclosed during discovery. Adams mentioned a federal case in which Howard, as the mayor of Bethel Heights, was alleged to have worn a police uniform, performed traffic stops, and car ried a gun, [ iseven though he was not a police officer. Howard denied the allegations and, after continued questioning, objected to the inquiry on the ground of irrelevance. The court overruled the objection and allowed a few additional- questions.
We are not convinced that allegations of Howard’s barely questionable conduct as a small-town mayor affected his substantial rights at trial. Ark. R. Evid. 108(a) (2012). Howard simply has not demonstrated that admission of the evidence warrants reversal. Milner v. Luttrell, 2011 Ark. App. 297, 384 S.W.3d 1. We therefore affirm the court’s evidentiary rulings.
VIII. Attorney Fees to Defense Counsel
During the six-year history of this case, Adams was represented by her personal attorney, Tamra Cochran, and by the law firm of Friday, Eldredge & Clark, which was hired by her legal-malpractice insurer. Following the jury verdict in favor of Adams, the attorneys filed a motion for fees pursuant to Arkansas Code Annotated section 16-22-308 (Repl.1999), which permits an award of attorney fees to the prevailing party in a contract case. The court found that Adams was the prevailing party and that the case was based primarily in contract. The court then awarded $50,502.50 to Tamra Cochran and $168,745.50 to the Friday firm.
On appeal, Howard argues that the case was not based primarily in contract and that the malpractice insurer’s attorneys should not have received fees because the insurer was not a party to the litigation. We agree that the case did not sound primarily in contract.
An award of attorney fees is proper under section 16-22-308 only when the action is based primarily in contract. Nationsbanc Mortg. Corp. v. Hopkins, 82 Ark.App. 91, 114 S.W.3d 757 (2003) (emphasis added). Even where a contract claim is a substantial issue in the case, it is not enough to warrant a fee award unless the case sounds primarily in contract. Meyer v. Riverdale Harbor Mun. Prop. Owners Improvement Dist., 58 Ark.App. 91, 947 S.W.2d 20 (1997).
We acknowledge that one of the most seriously contested issues was whether Adams had breached her oral contract with Howard. However, the proof on that issue was as much a part of Howard’s legal-malpractice case as his breach-of-contract case. Arkansas Code Annotated section 16-22-310(a) (Supp.2011), as interpreted by our appellate courts, essentially grafts a threshold requirement of privity of contract onto every legal-malpractice action. In Jackson v. Ivory, 353 Ark. 847, 856, 120 S.W.3d 587, 592 (2003), the supreme court stated:
We have stated that the plain language of section 16-22-310 requires the plaintiff to have direct privity of contract with the person, partnership, or corporation he or she is suing for legal malpractice. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002); Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999). Privity of contract is defined as “that connection or relationship which exists between two or more contracting parties.” Swink v. Ernst & Young, 322 Ark. 417, 420-21, 908 S.W.2d 660 (1995) (citing. Black’s Law Dictionary 1079 (5th ed.1979)). We have narrowly construed the privity requirement to require direct privity between the plaintiff and the attorney or entity to be held liable for legal malpractice. McDonald, supra; Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). In Clark, we stated that “the language of this section [16-22-310(a) ] is precise and clear and reveals that the contract contemplated by the statute relates to a contract for professional ser-vicés performed by the attorney for the client.” 323 Ark. at 386, 914 S.W.2d 745.
There is .no question in this case that the parties had either an oral or written agreement and that, as part of their agreement, Adams was working to get the land back into the estate. But the core dispute was whether Adams also orally contracted to make a claim against Watkins |1sand his legal-malpractice carrier. This dispute was at the heart of Howard’s legal-malpractice case against Adams. An attorney does not owe a client a duty to pursue all of the legal claims that an attorney may have knowledge of — the attorney’s duty is only as extensive as the specific contract for legal services that he or she has entered into with the client. See Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Accordingly, the case sounded primarily in tort because, in order for Howard to maintain his cause of action for legal malpractice, he was required to meet the contractual-relationship requirement set forth in section 16-22-310. We therefore reverse the $168,745.50 fee award to the Friday firm.
The fee award to Tamra Cochran requires additional analysis. The court ruled that. Cochran was entitled to $50,502.50 for her efforts in establishing the $613,333 lien against the estate. The lien was approved by the court in a February 2007 ruling, approximately four years before the 2011 trial in this case. Yet, Cochran’s itemized billing sheets show that she expended considerable time oh the case after 2007, including in preparation for and attendance at the 2011 trial. Because Cochran’s fee award appears to in-eludes time spent in defending Adams at trial, and because we have determined that this case did not sound primarily in contract, a portion of Cochran’s $50,502.50 may not be recoverable under section 16-22-308. We reverse and remand Cochran’s fee award for reconsideration by the circuit court in light of our ruling.
IX. Attorney Fee Award to Harry McDermott
|1frIn Howard I, we observed that Howard’s attorney, Harry McDermott, performed numerous legal services on behalf of the estate, including obtaining Howard’s appointment as administrator; filing an old will of Odis’s for probate; settling several matters with Mabel; and handling at least two lawsuits involving the estate’s property. We expressed concern that McDermott received only $21,296 of the approximately $90,000 in fees he requested for performing those services, and we invited the circuit court to revisit the award upon remand.
Thereafter, McDermott again requested fees for representing the estate. At an initial hearing, the circuit judge continued the matter because McDermott had no documentation for his fee requests and was charging $200 per hour for some of the clerical and errand duties he performed. The court also noted that many of the tasks for which McDermott sought compensation from the estate appeared to have been performed for Howard individually.
At a second hearing, McDermott provided summary sheets and some documentary evidence of the work he performed. The presentation of proof, both testimonial and documentary, was difficult to follow. The items, however, showed that McDermott indeed charged a $200-per-hour fee for clerical and errand-running tasks and that some of his work was done before the estate granted Howard permission to hire McDermott. The judge therefore entered an order that stood by her original fee award of $21,296 to McDermott.
An attorney-fee award will be reversed only if the circuit court has abused its discretion. Harrill & Sutter, PLLC v. Rosin, 2011 Ark. 51, 378 S.W.3d 135. The circuit court enjoys a superior perspective in assessing the applicable factors in its assessment of what constitutes a reasonable attorney fee. Worley v. City of Jonesboro, 2011 Ark. App. 594, 385 S.W.3d 908.
We cannot say that the circuit court abused its discretion in awarding fees to McDermott. As we stated, McDermott’s documentation and testimony regarding his fees was confusing. Further, the circuit court considered the factors for attorney-fee awards set forth in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). Given that fact, along with the matters set forth at the hearings, we cannot say that the court acted thoughtlessly or improvidently, as required to show an abuse of discretion. Tiner v. Tiner, 2012 Ark. App. 483, 422 S.W.3d 178. We therefore affirm the award of fees to McDermott.
X. Cross-appeal
Adams has filed a cross-appeal, consisting of one argument, to be reached only if we reverse the jury’s verdict. Because we uphold the jury’s verdict, the cross-appeal is moot. Affirmed in part; reversed and remanded in part.
GLADWIN and MARTIN, JJ., agree.
. Howard contends that the circuit court remarked before trial that the terms of the parties' contract were ambiguous and required interpretation by the fact-finder. Even if the court’s pretrial remarks can be so characterized, they did not bind the court to give any particular instructions after hearing all of the evidence in' the casé.
. The exceptions listed were that no privity of contract is required (1) to assert a claim for acts, omissions, decisions, or conduct by the attorney that constitutes deceit or intentional misrepresentation; or (2) to assert a malpractice claim where the attorney was aware that the primary intent of the client was to benefit another person or estate, the attorney identifies the other person in writing to the client, and the attorney sends a copy of the writing to the person identified.
. Howard’s opening brief presented arguments regarding another dozen proffered instructions. Those arguments were expressly abandoned in his reply brief.
. Howard asserts that the negligence in this case was within the realm of the jurors’ common knowledge and required no expert testi- ■ mony. Based on the complex issues and proof in this case, we conclude that expert testimony was necessary.
. He had also filed a motion in limine to exclude evidence of the bankruptcy and the suit against his mother.
. The lien order was entered under the caption "In the Matter of the Estate of Odis Howard,” but bore the same docket number as the present case.
. The factors include the experience and ability of the attorney; the time and labor required to perform the legal services properly; the amount involved in the case and the results obtained; the novelty and difficulty of the issues involved; the fee customarily charged in the locality for similar legal services; whether the fee is fixed or contingent; the time limitations imposed upon the client or by the circumstances; and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. | [
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ROBERT L. BROWN, Justice.
| Appellant Voltage Vehicles appeals an order of the Arkansas Motor Vehicle Commission (the “Commission”) directing Voltage to repurchase six 2008 electric vehicles from two Arkansas dealers, R & R Cycle, LLC d/b/a Siloam Springs Cycles and Rainbow Cycle & Marine (hereinafter referred to collectively as “Rainbow”). Voltage claims on appeal that the Commission made errors of fact and law that require reversal. We agree, and we reverse and remand for further proceedings.
In 2008, Rainbow entered into a licensing agreement to carry Voltage’s three-wheel electric vehicles. On October 10, 2008, Rainbow purchased six 2008 model-year three-wheel vehicles from Voltage. Rainbow paid $8,750 for each vehicle and paid $800 per vehicle for freight charges, for a total expenditure of $57,300. These vehicles were delivered .to Rainbow throughout November and December 2008.
lain late September 2009, Rainbow was told that a safety recall had been issued by Voltage regarding its vehicles because óf a problem with the braking system. Rainbow was asked to stop selling the vehicles until the defective parts could be repaired or replaced. On October 27, 2009, Rainbow sent a letter to Voltage and to the Commission notifying them of its desire to terminate the licensing agreement. That letter was received by the Commission on November 2, 2009. On November 12, 2009, the Commission wrote a letter to Voltage acknowledging its receipt of Rainbow’s notice of termination and setting January 1, 2010, as the effective date of termination, which was sixty days following the November 2 notice.
On April 5, 2010, after Voltage did not repurchase the six 2008 vehicles, Rainbow filed a complaint with the Commission. At a hearing before the Commission on December 15, 2010, Richard Whitten, president and general manager of Rainbow, testified that Rainbow had purchased six 2008-model-year vehicles from Voltage on October 10, 2008, which were received two weeks later, and placed them on the floor for sale. Whitten also testified that after being informed of the safety recall, he was told that replacement parts would be shipped, but they were never received. Whitten added that he never received any communication from Voltage that 2009 or 2010 models were available as replacements.
On January 27, 2011, the Commission issued its written order making the following findings of fact and conclusions of law: (1)that the Commission received a termination-of-agreement letter from Rainbow on November 2, 2009; (2) that the Commission forwarded lathe termination letter to Voltage Vehicles on November 12; (3) that the Commission had received a notarized complaint from Rainbow on April 5, 2010, alleging that Voltage had not met the repurchase obligations; (4) that as of the hearing on December 15, 2010, Voltage had not repurchased any inventory from Rainbow; (5) that Voltage was required under Arkansas Code Annotated section 23-112^t03(a)(2)(K) to repurchase the six 2008 vehicles in Rainbow’s inventory; and (4) that Voltage was required to pay transportation costs and interest incurred on the six vehicles as required by Arkansas Code Annotated section 23-112-403(a)(2)(E) (viii).
On March 1, 2011, Voltage filed a petition for judicial review of the Commission’s order in the Pulaski County Circuit Court. That court, after a hearing, issued an order affirming the Commission’s decision on November 21, 2011.
Judicial review of the Commission’s decision is governed by the Administrative Procedure Act (APA), which provides in part:
The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark.Code Ann. § 25-15-212(h) (Repl. 2002).
|40n appeal, an appellate court’s review is directed, not toward the circuit court’s order, but toward the order of the agency, because we have held that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. See, e.g., Ford Motor Co. v. Ark. Motor Vehicle Comm’n, 357 Ark. 125, 136-37, 161 S.W.3d 788, 795 (2004). Our review of administrative decisions, however, is limited in scope. Id. When reviewing such decisions, we uphold them pursuant to the APA if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id.
In determining whether an agency decision is supported by substantial evidence, this court reviews the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The challenging party has the burden of proving an absence of substantial evidence. Ark. Dep’t of Human Servs. v. A.B., 374 Ark. 193, 286 S.W.3d 712 (2008). To establish an absence of substantial evidence, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach that conclusion. Id. In doing so, we review the entire record and give the evidence its strongest probative force in favor of the administrative agency. Id. The question is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. Id. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Ford Motor Co., 357 Ark. at 136-37, 161 S.W.3d at 795.
|sTo be invalid as arbitrary or capricious, an agency’s decision must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. Id. Where the agency’s decision is supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. Id.
As a result, the APA requires that an administrative adjudication be accompanied by specific findings of fact and conclusions of law. Ark.Code Ann. § 25-15-210(b) (Repl.2002). The statement of facts “must contain all specific facts relevant to the contested issue or issues so that the court may determine whether the [agency] has resolved those issues in conformity with the law.” Holloway v. Ark. State Bd. of Architects, 352 Ark. 427, 438, 101 S.W.3d 805, 813 (2003) (quoting Nesterenko v. Ark. Bd. of Chiropractic Exam’rs, 76 Ark.App. 561, 566, 69 S.W.3d 459, 461 (2002)). We have held that “[t]he purpose of requiring such factual findings is that they benefit the court in the following way: facilitating judicial review; avoiding judicial usurpation of administrative functions; assuring more careful and administrative consideration; aiding the parties in planning for rehearings and judicial review; and keeping an agency within its jurisdiction.” Id. at 439, 101 S.W.3d at 813. Without the required findings, the reviewing court is left with a difficult, if not impossible, task in determining whether the administrative decision was correct. See Twin Rivers Health & Rehab, LLC v. Ark. Health Servs. Permit Comm’n, 2012 Ark. 15, 2012 WL 149807.
Voltage urges on appeal that the Commission made errors of law and fact that require reversal of its order. Specifically, Voltage admits that the buy-back provisions of section 23-112-403(a)(2)(K), which is part of the Arkansas Motor Vehicle Commission Act (the “Act”), ^required it to repurchase vehicles in Rainbow’s inventory that were for the “current model year and one year prior model year.” Voltage claims, however, that it is the effective date of the termination of the license agreement, fixed by the Commission as January 1, 2010, that operates to determine the “current model year and one year prior model year” under the Act. It necessarily follows, Voltage maintains, that 2008 vehicles were not within the definition of current model year or one year prior model year because the current model year on January 1, 2010, was 2010, and the previous model year was 2009. Under the plain language of the statute, according to Voltage, it would not be required to repurchase the 2008 vehicles because those 2008 vehicles would not be models for the current or previous model year. Accordingly, Voltage claims that the Commission misinterpreted the plain language of section 23-112-403(a)(2)(K) by concluding that under these circumstances, 2008 vehicles fall within the time frame of current model year or previous model year.
For its retort, the Commission contends that it correctly interpreted section 23-112-403(a)(2)(K) and that there is substantial evidence to support its findings. It acknowledges that its decision to order Voltage to buy back the six 2008 vehicles from Rainbow required its interpretation of section 23-112-403(a)(2)(K), but it asserts that because the legislature has not defined “current model year and one year prior model year,” the Commission is tasked with doing so.
The Commission then cites Weeks Tractor & Supply Co. v. Arctic Cat Inc., 784 F.Supp.2d 642 (W.D.La.2011), to support its conclusion that “current model year” is a term of art for the motor-vehicle industry that may mean calendar year in some contexts and a period of [ 7time not coinciding with the calendar year in other contexts. On this point, however, the Commission claims that Voltage failed to put forth any evidence to establish that it follows a traditional sales-model year, which changes in October each year. Rather, it contends that the evidence showed that in November and December 2008, when Rainbow received the vehicles in dispute from Voltage, only the 2008 models were available from Voltage. The Commission, as a result, maintains that based on the only available evidence before it, the 2008 model year had not ended in the fourth quarter of 2008. All of this indicates, the Commission claims, that Voltage did not follow the traditional sales-model year beginning in October. Hence, the Commission advances the argument that when Rainbow announced its intention to terminate the agreement on November 2, 2009, in the fourth quarter of 2009, the current model year was 2009 and the previous model year was 2008. Under these facts, the Commission asserts that it was correct to order Voltage to buy back the six 2008 model vehicles.
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. Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. When a statute is clear, we give it its plain meaning, and this court will not | ^search for legislative intent; rather, that intent will be gleaned from the plain meaning of the language used. Id. 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..
We have further held that it is a rule of statutory construction that the manner in which a law has been interpreted by executive and administrative officers is to be given due consideration and will not be disregarded unless it is clearly wrong. Id. An administrative interpretation by a state agency is to be regarded as highly persuasive. Id. Where the statute is not ambiguous, however, this court will not interpret it to mean anything other than what it says. Id.
The relevant statutory provision under the Act at issue in the instant case, reads in pertinent part:
(a) It shall be unlawful:
(2) For a manufacturer, distributor, distributor branch or division, or factory branch or division, or an officer, agent, or other representative thereof:
(K) Notwithstanding the terms of any franchise agreement, to fail to pay to a dealer or any lienholder in accordance with their respective interests after the termination of franchise:
(i) The dealer cost plus any charges by the manufacturer, distributor, or a representative for distribution, delivery, and taxes, less all allowances paid to the dealer |9by the manufacturer, distributor, or representative for new, unsold, undamaged, and complete motor vehicles of current model year and one (1) year prior model year in the dealer’s inventory;....
Ark.Code Ann. § 23-112-403(a)(2)(K)(i) (Supp.2011) (emphasis added).
A separate provision of the Act gives guidance as to the effective date when a franchise, sales, or service agreement may be terminated. That date must be at least sixty days after notice of termination:
(v)(a) If the franchise agreement, sales and service agreement, or bona fide contract is terminated or cancelled, the terminating or canceling party shall notify the commission of the termination or cancellation of the franchise or selling agreement at least sixty (60) days before the effective date.
Ark.Code Ann. § 23-112-403(a)(2)(C)(v)(a) (Supp.2011).
Accordingly, the date used by the Commission for the termination of the license agreement is critical to a decision on what constitutes a “current model year and one year prior model year” under the Act. As already referenced in this opinion, based on the language in section 23-112-403(a)(2)(C)(v)(a), a termination is not effective until at least sixty days have passed from the time the canceling party (dealer or manufacturer/distributor) notifies the Commission of its intent to terminate. The Commission acknowledged this sixty-day requirement in its November 12, 2009 correspondence with Rainbow and Voltage by setting the effective date, of termination as January 1, 2010, which was sixty days after notice had been given. However, in its written order concluding that Voltage was required to repurchase |inRainbow’s 2008 inventory, the Commission referred only to the date it received Rainbow’s notice of intent to terminate the license agreement (November 2, 2009) and the date the Commission forwarded that notice to Voltage (November 12, 2009). The Commission neglected to make any reference to the date it fixed as the effective date of termination, January 1, 2010, or to make any finding as to what was the current model year at the time of that effective date of termination. Without these crucial findings, the Commission has manifestly failed to support its conclusion that Voltage is required under the statute to repurchase Rainbow’s 2008 inventory and pay associated costs with sufficient relevant facts to facilitate this court’s review. See Twin Rivers Health & Rehab, 2012 Ark. 15, 2012 WL 149807.
To repeat in part, the only evidence put forth in this case before the Commission was that when Rainbow made its first purchase of vehicles from Voltage in October 2008, Voltage was offering 2008 model-year vehicles. No evidence was presented as to when Voltage began offering 2008 model vehicles or when Voltage ceased offering 2008 model vehicles. Suffice it to say, the Commission could have found that on January 1, 2010, the current model year was 2010, 2009, or possibly still 2008. But, again, the Commission made no factual finding with regard to the correct termi nation date or the current model year tied to that date.
In short, because the Commission failed in its obligation to make sufficient findings of fact relevant to the contested issue of what constituted the current model year, this court cannot determine whether the Commission had resolved that issue in conformity with the law. Accordingly, we must reverse and remand the matter to the circuit court with directions to remand it to the Commission to make findings based on the correct termination date.
| nReversed and remanded.
. The complaint is not contained in the record, but the Commission’s order makes reference to the date it was received.
. Although the statutory provision refers to the termination of a franchise agreement, the definition of "franchise” within the Act encompasses what these parties referred to as a "licensing agreement.” Ark.Code Ann. § 23-112-103(14) (Repl.2004). | [
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DONALD L. CORBIN, Justice.
1 ¡This is an appeal from an order of the Pulaski County Circuit Court granting summary judgment in favor of Appellees Rebsamen Medical Center, Inc. d/b/a North Metro Medical Center; Richard Young, M.D.; James Landry, M.D.; et al. On appeal, Kenneth Smith, Jr., and Geral-dean Smith, as co-special administrators of the Estate of Mark Anthony Smith, argue that the circuit court erred in granting summary judgment on the basis that the wrongful-death complaint they filed was a nullity because the Smiths had not been appointed as special administrators of the estate at the time of the filing. Our court of appeals reversed and remanded the order of the circuit court. See Smith v. Rebsamen Med. Ctr., Inc., 2011 Ark. App. 722, 387 S.W.3d 193. Appellees petitioned this court for review, which we granted. liJJpon granting a petition for review, this court considers the appeal as if it had been originally filed in this court. See Duncan v. Duncan, 2011 Ark. 348, 383 S.W.3d 833.
The record reflects the following facts. Mark Anthony Smith was taken to the emergency room at Rebsamen Medical Center on June 15, 2008, and died the following day. Appellants sought to be appointed as co-special administrators of Smith’s estate on May 24, 2010. An order of appointment was signed by the probate court on May 26, 2010, and on that same day, counsel for Appellants was “verbally assured” by the clerk’s office that the order of appointment had been filed. Appellants then filed the instant wrongful-death action. It subsequently came to light that the order of appointment had not been filed until May 28, 2010.
Appellees moved for summary judgment on August 9, 2010, arguing that the wrongful-death complaint was a nullity as Appellants lacked standing to bring such an action. Their lack-of-standing argument was premised on the fact that the order appointing Appellants as co-special administrators was not filed until after the filing of the wrongful-death complaint. Appel-lees further argued that Appellants were forever barred from bringing such a suit because the applicable two-year statute of limitations had run.
While the summary-judgment motions were pending, Appellants filed a motion in probate court seeking entry of a nunc pro tunc order to reflect that the order had indeed been filed at 9:00 a.m. on May 26, 2010. In their motion, Appellants asserted that
2. On May 24, 2010, Attorney Murphy delivered a file marked copy of said petition to the Chambers of the Honorable Mackie Pierce, along with a proposed order. As per her usual practice, she relied on the Court’s staff to deliver the executed |sOrder to the Clerk’s office for filing. Plaintiffs’ understanding is that this procedure is consistent with the Court’s usual procedure.
3. On May 26, 2010, Ms. Murphy was verbally assured by the Clerk’s office that said order had been filed, and thereafter filed Plaintiffs’ Original Complaint relative to the wrongful death action. ...
4. However, the order, which was signed on May 26, 2010, was not marked as filed until May 28, 2010. Presumably the signed order had been misplaced in the Clerk’s office.
The probate court then entered an order on motion nunc pro tunc on August 12, 2010. Thereafter, Appellants responded to the motions for summary judgment, arguing that the nunc pro tunc order removed the basis for Appellees’ motions for summary judgment and rendered them moot.
In response, Appellees asserted that regardless of whether the probate court validly entered the nunc pro tunc order, the order could not relate back and affect the rights of Appellees, innocent third parties, in circuit court. Appellees further argued in their response that the nunc pro tunc order violated Ark. R. Civ. P. 60 because Appellants failed to articulate what “miscarriage of justice” the order was intended to correct. According to Appellees, the filing of the order of appointment on May 28, 2010, was not an error or mistake because an order is entered when stamped as filed.
After taking the matter under advisement, the circuit court entered an order on November 10, 2010, granting Appellees’ motions for summary judgment. Therein, the circuit court stated the following:
4. On August 12, 2010 the plaintiffs obtained an Order appointing plaintiffs as Special Administrators nunc pro tunc to May 26, 2010.
|45. The August 12, 2010 Order was entered more than two years after June 15, 2008, the date of the alleged actions and inactions upon which the causes of action are premised.
6. On the date the Complaint was filed in this matter the plaintiffs had no legal standing to bring this action. The Complaint was a nullity. See, Hackleton [Hackelton ] v. Malloy, 364 Ark. 469 [221 S.W.3d 353] (2006). Lack of standing cannot be cured utilizing any “relation back” provisions of the Arkansas Rules of Civil Procedure for any cause of action for which the limitations period had expired at the time of entry of the August 12, 2010 nunc pro tunc Order.
7. On the date the First Amended Complaint was filed in this matter the plaintiffs had no legal standing to bring this action. The First Amended Complaint is also a nullity.
On appeal, Appellants argue that it was error for the circuit court to grant Appel-lees’ motions for summary judgment on the basis that the wrongful-death complaint was a nullity because Appellees lacked standing to bring the action at the time of its filing. In support, Appellants assert that they obtained a nunc pro tunc order, which reflected that the order appointing them as co-special administrators was filed on May 26, 2010, and that the circuit court lacked authority to disregard this order of the probate court. Appellees counter that summary judgment was proper because Appellants lacked standing to bring the action, thus rendering the complaint a nullity and because the statute of limitations had run on the cause of action.
In Schultz v. Butterball, LLC, 2012 Ark. 163, 402 S.W.3d 61, we explained that ordinarily, upon reviewing a court’s decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist. However, in a case such as this one, which does not involve the question of whether factual issues exist but rather |fian issue of law, we simply determine whether the Ap-pellees were entitled to judgment as a matter of law. Id.
At the outset, we note that this appeal presents us with a jurisdictional question that must be addressed first. Appellants argue to this court that our decision in Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008), is controlling here. In that case, a physician who was the subject of a wrongful-death action moved for summary judgment on the basis that the administrator of the decedent’s estate was a convicted felon and therefore ineligible to serve. The circuit court agreed and found that Edwards was a convicted felon at .the time of his appointment as the personal representative of his father’s estate and was not qualified to.serve in that capacity. The circuit court dismissed the wrongful-death action, declared the order appointing Edwards as administrator to be void, and ruled that the wrongful-death claims were barred by the applicable statute of limitations.
Edwards appealed the dismissal to the court of appeals which, in turn, certified the case to this court on the basis that there was a question of whether the circuit court’s order invalidating Edwards’s appointment as a personal representative was an impermissible collateral attack on the probate order appointing him. We ultimately determined that it was necessary to sua sponte raise a threshold jurisdictional matter: the issue of conflicts among circuit courts exercising concurrent jurisdiction. Id. We reversed and remanded the order of dismissal.
Here, the appellees challenged the validity of Edwards’s appointment as personal representative in the wrongful-death action pending in one division of circuit court. That division of circuit court, however, was not the first court to acquire jurisdiction over the probate matter. Thus, it had no original jurisdiction to decide the validity of an appointment order, which was entered by the circuit court that acquired 1 (jurisdiction over the administration of the decedent’s estate, “to the exclusion of' any other court.” Patterson [v. Isom], 338 Ark. [234,] at 241, 992 S.W.2d [792,] at 796 [1999]. In sum, we conclude that the civil division of circuit court usurped the authority of the probate division of circuit court by its ruling that Edwards’s appointment as personal representative of his father’s estate was void. Accordingly, we reverse the circuit court’s summary-judgment order of dismissal.
Id. at 304, 275 S.W.3d at 162.
Although the instant case differs in that the civil division of circuit court did not invalidate the order of the probate division, its ruling wholly ignoring the probate division’s nunc pro tunc order had the same effect. We are not persuaded by Appellees’ attempt to distinguish the instant case from Edwards, Specifically, Appellees argue that this case is not a challenge to the probate court’s jurisdiction to enter a nunc pro tunc order; rather, they assert that the issue in this case is whether the nunc pro tunc order may retroactively grant a party standing, particularly when it disturbs the rights of an innocent third party. This argument is unavailing, however, because in both cases this court is faced with the threshold question of whether a circuit court may ignore an order of a court of concurrent jurisdiction. Thus, as in Edwards, we are .again faced with conflicting orders of two courts of concurrent jurisdiction, and we must decide whether the civil division of circuit court erred in disregarding that nunc pro tunc order entered by the probate division.
There .can be little doubt about the power of a trial court to entertain and grant an order nunc pro tunc. Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961). This court recently explained:
• 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 [7time with a nunc pro tunc order, used to make the record speak now what was actually done then. 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 to a misprision of the clerk. 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).”
Brown v. Lee, 2012 Ark. 417, at 8-9, 424 S.W.3d 817, (citations omitted). Nunc pro tune means literally, “now for then.” Bridwell v. Davis, 206 Ark. 445, 447, 175 S.W.2d 992, 994. In Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950), this court explained that the function of an order nunc pro tunc is to have the record recite now what actually occurred then. In a similar vein, this court stated in Canal Insurance Co. v. Amey, 258 Ark. 893, 897, 530 S.W.2d 178, 180 (1975), that nunc pro tunc orders are properly issued only where such an order actually was made, but through clerical misprision, was not entered.
The evidence before us demonstrates that Appellants filed them wrongful-death complaint in the civil division of circuit court on the belief that the order appointing them co-special administrators had been properly filed in the probate court. Once it was brought to their attention that the order was in fact filed after they had filed the wrongful-death complaint, they filed a motion for. nunc pro tunc order in the probate court, stating the following pertinent facts: (1) they had been verbally assured by the clerk’s office that the probate order had been filed; (2) presumably the order was misplaced in the clerk’s office; and (3) pursuant to Rule 60(b), a court is empowered to enter a nunc pro tunc order “to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.” The probate division of the circuit court granted this motion and entered the nunc |spro tunc order. That nunc pro tune order is not subject to this appeal from the civil division of the circuit court.
Likewise, Appellees may not collaterally attack the validity of the nunc pro tunc order. Appellees argue here that the Appellants’ reliance on a nunc pro tunc order “deprive[s] appellees of their vested right to rely on their statute of limitations defense. Such a rule would eviscerate the rules governing standing in wrongful death actions.” They cite us to Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962), in support of their position. In that case, this court cautioned that in nunc pro tunc proceedings a court should be careful to see that the rights of innocent third parties are not prejudiced by orders made long after the original record of proceedings has been published. Id. Ozment is inapplicable here as Appellees were not third parties to the probate proceeding, nor did they ever seek to intervene in the probate proceeding.
[9In sum, we hold that the grant of summary judgment was in error. The civil division of circuit court lacked any authority to invalidate or disregard the order from the probate division, which established that Appellants had been appointed as co-special administrators prior to the filing of the .wrongful-death complaint. We reverse and remand for proceedings consistent with this opinion.
. This court has never addressed the propriety of third parties, such as Appellees, intervening in a probate case. In Helena Regional Medical Center v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005), Trina Wilson was appointed by the probate court as the administratrix of her daughter’s estate. Later, in her capacity as administratrix, she filed a malpractice action against the hospital and doctors, who then proceeded to file motions to intervene in the probate case. In support thereof, the medical providers argued that Wilson was not legally competent to serve as administratrix under the Arkansas Probate Code because she had previously admitted to a felony conviction. The circuit court ruled that the medical providers were not interested parties as defined by the Arkansas Probate Code, and therefore lacked standing to question the issuance of the court’s order. We reversed, holding that, under Ark. R. Civ. P. 24, the medical providers properly filed motions to intervene, but the circuit court failed to undertake any analysis under Rule 24. We thus remanded for the circuit court to address the merits of the requested intervention. Id. | [
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DONALD L. CORBIN, Justice.
11Appellant Harrill & Sutter, P.L.L.C. (Harrill) appeals the orders of the Garland County Circuit Court (1) denying its motion to set aside a judgment pursuant to Ark. R. Civ. P. 60(c)(4) (2012), and (2) awarding attorneys’ fees to Appellee Cynthia Kosin on the basis that she was the prevailing party and that such fees were reasonable. As this is a second appeal, our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(a)(7) (2012). We affirm in part and reverse and remand in part.
The underlying facts of this case were set forth in Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, 378 S.W.3d 135 (Harrill I). Suffice it to say, that at issue in Harrill I was the discharge by Kosin of the law firm Harrill & Sutter and what attorneys’ fees were owed following that discharge. Kosin had originally retained Harrill in connection with matters related to her late husband’s estate. As time progressed, however, Kosin became dissatisfied with Harrill’s services and fired the firm. Thereafter, Kosin retained Allison Cornwell and Byron Eiseman of Friday, Eldredge & Clark to represent her. After Kosin discharged the firm, Harrill filed |2suit against Kosin for breach of contract and sought an attorney’s lien against all sums recovered from the estate on Kosin’s behalf.
Cornwell was able to effectuate a settlement with the estate that resulted in an award for Kosin of approximately $550,000. A bench trial was held on Har-rill’s complaint. The circuit court ruled that Kosin discharged Harrill for cause and that, as a result, Harrill was entitled to a fee based only on quantum-meruit recovery. Kosin then sought an award of attorneys’ fees as the prevailing party. Ultimately, this court affirmed the circuit court’s ruling that Kosin had discharged Harrill for cause and any fee owed by her to Harrill was based on quantum-meruit recovery, and not the parties’ fee agreement. This court therefore affirmed the circuit court’s award of $55,775.44 in quantum-meruit recovery. But, this court reversed the circuit court’s ruling denying Kosin’s request for attorneys’ fees pursuant to Ark.Code Ann. § 16-22-308 (Repl. 1999), on the basis that the circuit court had provided no findings in support of its denial of such fees. We remanded the matter for a factual determination by the circuit court regarding the propriety of a fee award.
Upon remand, Kosin filed an amended motion pursuant to section 16-22-308 for payment of attorneys’ fees, as the prevailing party. Harrill responded that Kosin was not,entitled to attorneys’ fees, as she was not the prevailing party and such motion was untimely pursuant to Ark. R. Civ. P. 54(e). A hearing was held on June 14, 2011, regarding Kosin’s motion for attorneys’ fees. The court heard testimony from Kosin and attorneys Allison Cornwell and Philip Clay.
| ¡¡Cornwell testified that the Friday firm continued to represent Kosin after the estate case settled and initially prepared the pleadings after Harrill sued Kosin on the breach-of-contract claim. Cornwell stated that she initially believed she could settle the Harrill suit for her client before having to involve another attorney. Cornwell explained that once Clay had been brought in on the breach-of-contract action, it was still necessary for the Friday firm to bill Kosin because the attorneys had to meet with Clay to review the voluminous files in the case and to explain tax issues related to the case. Specifically, she stated, “It was very important once ... it was obvious we had to transfer the file, to educate and to provide all the knowledge that we had about the ‘for cause’ issue and the estate case[,] which was directly relevant to this case[,] to Mr. Clay as soon as possible.” Cornwell asserted that she considered the attorneys’ fees paid after Clay had been substituted to be related to Ko-sin’s defense and necessary.
Clay testified that Harrill had filed a breach-of-contract claim against Kosin, seeking an award of $225,000, but that Harrill ultimately received only about twenty-five percent of the amount sought- and, thus, in his opinion, Kosin was the prevailing party. Clay further stated that one of the central issues at the trial level had been whether Harrill had been discharged for cause, which the circuit found in favor of Kosin. Clay stated that Corn-well provided attorney services prior to his hiring and then in connection with the transfer .of the case file to Clay’s office. According to Clay, Cornwell’s, assistance was beneficial to the defense in that it helped him to understand the complexities of the tax issues involved in the underlying estate case. Clay stated that he would not classify Cornwell as co-counsel because |4that would be ethically improper because they knew Cornwell would be a witness in the case. Finally, Clay stated that if he were to categorize Cornwell’s role it would be as that of a consultant to him.
The circuit court entered an order on August 11, 2011, finding that Kosin was the prevailing party under Arkansas law, as she came out on top on most of the issues before the circuit court and in recovering seventy-five percent of the money in dispute. Thus, the circuit court granted Clay’s $36,023.98 fee as a reasonable attorney’s fee. Further, the circuit court found Cornwell’s fees from August 14, 2008, through October 12, 2009, to be reasonable and related to the defense of the contract action, and thus, awarded Kosin an additional $10,111.25 fee for the hours billed by Cornwell. This appeal followed.
For its first point on appeal, Harrill asserts that the circuit court erred in denying its motion to set aside the January 4, 2010 judgment, pursuant to Rule 60(c)(4). Harrill asserts that it had no knowledge that Cornwell continued as counsel for Kosin once Clay had been substituted as counsel. Thus, according to Harrill, “Had Ms. Cornwell been disclosed to be continuing as counsel for Ms. Kosin, Appellant would have objected to her testimony as a witness at trial. Or if the court had permitted her to testify over objection, the cross examination would have been remarkably different.” Harrill appears to premise his fraud argument on a violation of Ark. R. Prof 1 Conduct 3.7 by Cornwell that resulted in a “constructive fraud upon the Court.”
Kosin counters that the circuit court properly denied Harrill’s Rule 60(c)(4) motion as Harrill failed to point to any fraud within Cornwell’s testimony. Moreover, Kosin points |fiout that Cornwell refused to give an opinion, of any kind, about whether Harrill was “terminated for cause.” Finally, Kosin submits that there was no violation of Rule 3.7 that would have resulted in “constructive fraud” because Cornwell never acted as Kosin’s advocate at trial.
A circuit court may set aside a judgment for “misrepresentation or fraud ... by an adverse party.” Ark. R. Civ. P. 60(c)(4) (2012). It is within the discretion of the circuit court to determine whether it has jurisdiction under Rule 60 to set aside a judgment, and the question on appeal becomes whether there has been an abuse of that discretion. Grand Valley Ridge, LLC v. Metropolitan Nat’l Bank, 2012 Ark. 121, 388 S.W.3d 24; New Holland Credit Co. v. Hill, 362 Ark. 329, 208 S.W.3d 191 (2005).
In order to prove fraud, a plaintiff must prove five elements under Arkansas law: (1) that the defendant made a false representation of material fact; (2) that the defendant knew that the representation was false or that there was insufficient evidence upon which to make the representation; (3) that the defendant intended to induce action or inaction by the plaintiff in reliance upon the representation; (4) that the plaintiff justifiably relied on the representation; and (5) that the plaintiff suffered damage as a result of the false representation. Jewell v. Fletcher, 2010 Ark. 195, 377 S.W.3d 176. The party seeking to set aside a judgment on the basis of fraud has the burden of proving fraud by clear, cogent, and convincing evidence, or as our courts have sometimes said, clear, strong, and satisfactory proof. Id.
In advancing its argument, Harrill asserts that Cornwell violated Rule 3.7 of the Arkansas Rules of Professional Conduct, which provides as follows:
|fi(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
Ark. R. Profl Conduct 3.7 (2012). Further, Harrell asserts that it was entitled to have the verdict set aside upon remand because it was “[n]ot until the attorney fee hearing of June 14, 2011, did anyone know that although the Friday firm ‘withdrew’ and Mr. Clay substituted as counsel on the record ... that Cornwell actually continued as counsel to Kosin along with Mr. Clay, but ‘off the record.’ ” A review of the record, however, completely contradicts Harrill’s contention that it had no such knowledge until the June 14 hearing.
Kosin moved for attorneys’ fees on December 10, 2009. Attached to that motion was an affidavit of Cornwell and a copy of her billing from August 14, 2008, until November 9, 2009. In fact, the billing record specifically lists the following billing for Cornwell after March 10, 2009, the date of record whereon Clay was substituted as counsel:
Clearly, Cornwell’s affidavit and billing record put Harrill on notice that she continued to bill Kosin for services performed after Clay was listed as counsel of record.
Although such notice came after the actual trial, this affidavit and the billing record were submitted before the | scourt’s January 4, 2010 order that Harrill now seeks to vacate. Once Harrill received the motion for attorneys’ fees and saw Cornwell’s billing record, he could have moved the circuit court for a new trial. In fact, Harrill moved the court to alter, amend, or set aside the judgment, which was denied, but on different grounds.
Pursuant to Rule 60(c)(4), a judgment may be vacated more than ninety days after being filed with the clerk where there was misrepresentation or fraud. Harrill, however, could not argue that he was entitled to vacate the January 4, 2010 verdict, finding that he was discharged for cause and which had been affirmed by this court on appeal, on the basis of fraud that could have been discovered prior to entry of the order. While this court has recognized that a circuit court retains jurisdiction to modify its order under Rule 60(c)(4), even after an affirmance by the appellate court, such cases involved fraud that was discovered after the expiration of the ninety-day limitation. See Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987). Moreover, this court has stated that a party is not entitled to relief under Rule 60(c) if diligence has not been exercised in protecting his or her interests. New Holland Credit Co., 362 Ark. 329, 208 S.W.3d 191; Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996). The instant case simply does not fall within the purview of Rule 60(c)(4) and, accordingly, we cannot say the circuit court abused its discretion in denying Harrill’s motion pursuant to Rule 60(c)(4).
Although we affirm the circuit court’s denial of Harrill’s motion under Rule 60(c)(4), we are concerned by his allegation that Cornwell violated Model Rule 3.7 by serving as both 19an advocate and a witness at trial. We therefore refer this matter to our Committee on Professional Conduct.
We now turn to Harrill’s argument on appeal that the circuit court erred in awarding attorneys’ fees to Kosin. Harrill argues that the circuit court erred in awarding fees to Kosin, as she was not the prevailing party in the contract action. Alternatively, Harrill argues that even if Kosin . had been the prevailing party, the fee award was not reasonable because it included fees for the Friday firm when its attorneys were no longer counsel of record and that some of the fees awarded represent duplicative billing by Clay and the Friday firm. Kosin counters that the circuit court correctly determined that she was the prevailing party and properly awarded her reasonable attorneys’ fees.
Arkansas Code Annotated section 16-22-308 (Repl.1999) provides as follows:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
This court has said that a circuit court is not required to award attorney’s fees and, because of the judge’s intimate acquaintance with the trial proceedings and the quality of the service rendered by the prevailing party’s counsel, the circuit judge has a superior perspective to determine whether to award fees. Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001). The decision to award attorney’s fees and the amount to award is .discretionary and will be reversed only if the appellant can demonstrate that the circuit court abused its considerable discretion. Id.
|1ftAs a threshold matter, we must review Harrill’s assertion that the circuit court abused its discretion in finding Kosin to be the “prevailing party.” This court has recognized that to be the prevailing party under section 16-22-308, the litigant must be granted some relief on the merits of its claim. CJ Bldg. Corp. v. TRAC-10, 368 Ark. 654, 249 S.W.3d 793 (2007). The prevailing party is determined by analyzing each cause of action and its subsequent outcome. Id. Ultimately, the prevailing party is determined by who comes out “on top” at the end of the case. Id. at 658, 249 S.W.3d at 796 (quoting Marcum, 344 Ark. at 162, 40 S.W.3d at 236). In essence, we must look at the case as a whole to determine whether there was a prevailing party and who that party is. TRAC-10, 368 Ark. 654, 249 S.W.3d 793.
In finding that Kosin was the prevailing party, the circuit court relied in part on this court’s decision in Marcum, 344 Ark. 153, 40 S.W.3d 230. In that case, there was a landlord and tenant dispute between the property owners, the Wengerts, and the lessee, the college fraternity, Phi Kappa Tau (PKT), and its officers, Marcum and Capo. The jury found that (1) the Wengerts were liable for conversion of the fraternity’s furniture and for breach of the lease; (2) the officers were not liable individually for any damage to the property; and (3) the fraternity was liable for minimal property damage. The fraternity and its officers moved for attorney’s fees as the prevailing parties, but the trial court found that none of the parties were prevailing parties. On appeal, we reversed and remanded:
Clearly, the trial judge decided that no party was the “prevailing party” because they did not recover anywhere close to the amount of damages they were seeking. However, the trial court erred in basing [its] determination of who prevailed on the amount each party recovered under their claims. Instead, under Arkansas law, the prevailing party is determined by who comes out “on top” at the end of the case. This court provided the most recent discussion of the term “prevailing party” in Burnette v. Perkins & Associates, 343 Ark. 237, 33 S.W.3d 145 (2000), with regard to its application under Ark. Code Ann. § 16-22-308. While the issue in Burnette was whether there is a prevailing party in a case that is dismissed without prejudice before reaching the merits, the language regarding the term “prevailing party” is useful. The Burnette court determined that in order to be a “prevailing party,” one must prevail on the merits of the lawsuit.
Marcum, 344 Ark. at 162, 40 S.W.3d at 236. In Marcum, we ultimately held that PKT Housing Corporation, Marcum, and Capo were the prevailing parties, notwithstanding that the Wengerts were entitled to recover $2,000 in their counterclaim for damages against PKT. Marcum, 344 Ark. 153, 40 S.W.3d 230.
Here, Harrill sued Kosin for breach of contract and asserted that it was entitled to a fee equal to the thirty-percent recovery that would have resulted from its contingency-fee agreement with Kosin. Kosin successfully defended the breach-of-contract claim, as evidenced by the circuit court’s finding that she had discharged Harrill for cause. And, the circuit court limited Harrill’s fee award to $55,775.44, under the theory of quantum meruit. Moreover, this court has recognized that a successful defendant in a contract action may be considered a “prevailing party” for the purposes of section 16-22-308. Perry v. Baptist Health, 368 Ark. 114, 243 S.W.3d 310 (2006). Accordingly, we cannot say that the circuit court abused its discretion in finding that Kosin was the prevailing party.
Having resolved the issue of who was the prevailing party, we must now turn to Harrill’s argument that the award of fees was not reasonable. This court has recognized that |12in awarding fees, circuit courts apply the following Chrisco factors: (1) the experience and ability of counsel; (2) the time and labor required to perform the legal service properly; (3) the amount involved in the case and the results obtained; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged in the locality for similar services; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).
In arguing the fee award was not reasonable, Harrill does not challenge the findings relative to the Chrisco factors; rather, it asserts that it was an abuse of discretion to award fees to an attorney who had withdrawn from the case, and it was error to award fees that represented duplicative work by Clay and Cornwell. The circuit court in granting Cornwell’s partial fee explained as follows:
The legal services of FRIDAY EL-DREDGE & CLARK, LLP from the dates listed on the billing invoices from August 14, 2008, through October 12, 2009, in the amount of $10,111.25 represented legal services recoverable under A.C.A. § 16-22-308 as being attorney fees incurred in the defense of this cause of action. The Court specifically finds that such fees were reasonable and necessary providing the initial defense in this matter and in the transfer of the file from FRIDAY, ELDREDGE & CLARK, LLP to attorney PHILIP CLAY. The Court finds that the legal services of FRIDAY, ELDREDGE & CLARK, LLP, as itemized on the billing summary, commencing October 13, 2009, through the trial are not properly recoverable under Arkansas Code Annotated § 16-22-308 as such services related to witness preparation and not attorney fees for the defense.
Clearly, the fees awarded to Cornwell from August 14, 2008, through March 10, 2009, can not be challenged by Harrill as duplicative because Clay did not become counsel of record |T3until March 10, 2009. As to the fees from that date through October 12, 2009, they do include fees that represent duplicate billing by attorneys from the Friday firm and Clay. Moreover, while the circuit court exercised its discretion and disallowed some of the fees requested by Cornwell, particularly her request for payment for testifying at trial, the circuit court abused its discretion in awarding fees on the basis that they were “reasonable and necessary providing the initial defense in this matter and in the transfer of the file.” The circuit court’s fee award to the Friday firm went beyond the attorneys’ representation in the “initial defense” as evidenced by the fact that the award included fees billed through October 12, 2009, a date just ten days prior to trial and seven months after Clay had been substituted as counsel. Accordingly, we disagree with the circuit court’s reasoning that those fees represented the firm’s “initial defense” or were necessarily related to just transferring the file. We therefore reverse and remand on the issue of attorneys’ fees.
Affirmed in part; reversed and remanded in part.
HANNAH, C.J., and BAKER, J., concur in part; dissent in part.
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CLIFF HOOFMAN, Judge.
1 lAppellant Bobby McMullen, as personal representative of the estate of William E. McMullen, deceased, and on behalf of the wrongful-death beneficiaries, appeals from the grant of summary judgment in favor of appellee Healthcare Staffing Associates, Inc. (HSA). Appellant argues that a material question of fact remains as to whether the borrowed-servant doctrine applies and thus, whether HSA is free from liability for the negligence of its loaned employees. We agree that reversal is warranted.
William E. McMullen was a resident of Malvern Nursing Home from December 31, 2003, until November 16, 2005. On August 4, 2006, appellant filed suit against Malvern Nursing Home Partnership, LTD; Arkansas Elder Outreach of Little Rock, Inc. d/b/a Malvern Nursing Home (AEO); and HSA alleging negligence in the care of McMullen, negligence under the Medical Malpractice Act, violations of the Long-Term Care Residents’ Rights Statute, and civil liability for felony neglect of an endangered or impaired adult. Each | ¡.defendant filed a separate answer to the complaint denying liability. On March 13, 2007, the trial court granted appellant’s motion for voluntary non-suit as to Mal-vern Nursing Home Partnership, LTD. On September 17, 2009, the trial court granted summary judgment to AEO based on the charitable-immunity doctrine; however, the court of appeals reversed this order on March 2, 2011. McMullen v. Ark. Elder Outreach of Little Rock, Inc., 2011 Ark. App. 156, 2011 WL 715014.
On December 4, 2009, HSA filed a motion for summary judgment. HSA claimed, in part, that it was not involved in budgeting, staffing, or policies and procedures at the nursing home and that it was not liable for the negligence of the direct caregivers under the borrowed-servant doctrine. Appellant filed a response to HSA’s motion, arguing, in part, that HSA was one of several for-profit corporations that functioned as a single-business enterprise in operating Malvern Nursing Home; that HSA’s stated purpose was a sham because it did not provide healthcare benefits to the majority of its employees; that HSA was involved in decisions pertaining to budgeting, staffing, and policies and procedures for the nursing home; that the borrowed-servant doctrine did not apply because there was no dual-employment situation; and that alternatively, the borrowed-servant doctrine should not absolve HSA of all liability given the unique nature of its business. HSA filed a reply brief in support of its motion for summary judgment, arguing that appellant had failed to meet proof with proof.
Materials presented to the trial court in connection with the motion and response provided the following background information. Douglas Walsh testified in his deposition that he worked for Healthcare Financial Advisors (HFA), which provided financial and ^accounting services to nursing homes operated by Southern Key Investments (SKI), the general partner of various limited partnerships formed to acquire nursing homes. According to Walsh, it became too expensive in 2002 for the nursing homes to maintain professional liability insurance. To avoid this insurance problem, the limited partnerships leased the nursing homes to the newly-created AEO, which was formed as a non-profit to be exempt from tort liability. Walsh testified that around 2003, HSA was formed by the same people that formed HFA to lease direct-care staff to the nursing homes and provide benefits to these employees, which would be too expensive if the employees were all employed by AEO. In 2004 and 2005, AEO paid HSA more than $3 million and paid HFA more than $180,000. HSA and HFA share the same address in Baton Rouge, Louisiana.
Chris McMorris stated in his affidavit that he was a part-owner and officer of HSA. He said that the purpose of HSA was to pool a large number of employees to provide affordable health benefits that would otherwise be unavailable for direct caregivers in the nursing home setting and that HSA performs human-resources services for these employees, including the administration of health benefits. He said that AEO hires the HSA employees, supervises them, and has the authority to conduct employee reviews and terminate them. McMorris said that HSA does not supervise the employees on a daily basis or train them for work at a particular facility. He said that HSA was not involved in the drafting of any facility’s polices and procedures, in the development of their budget, in determining staffing needs, or in the day-to-day operations and management of the nursing home.
Jayne West, the administrator of Mal-vern Nursing Home, testified in her deposition |4that she had full authority to run the nursing home and was responsible for ensuring that policies and procedures were implemented correctly. West testified that the director of nursing, an employee of AEO, was the direct supervisor of the direct-care staff and was the person who determined staffing needs. This was confirmed by the testimony of the current director of nursing, Jean Collins Jensen. West said that the direct-care staff did not have a direct supervisor in the corporate office, that written evaluations of those employees were not sent to corporate, and that she had the authority to hire and fire those employees without speaking to the corporate office. She said that the nursing home had budget meetings normally twice a year, that the “financial employees from Baton Rouge” were involved, and that McMorris conducted the meetings. Walsh testified that the administrators of the nursing homes worked on a regular basis with HFA to develop the budgets, which were reviewed by the AEO board. He testified that one member of the board was a corporate nurse who helped train the nursing staff.
After a hearing, the trial court entered an order on July 27, 2011, granting HSA’s motion for summary judgment. The order included the following findings:
The Court concludes that the borrowed servant doctrine applies without question to the fact situation presented herein.
Utilizing separate legally sanctioned and operated corporate structures that insulate persons and other corporations from liability, share office buildings and addresses, and have some, possibly even all, the same persons serving as officers or directors of the various entities that provide separate services in a related broad field, such as nursing home care, does not defeat the borrowed servant rule or otherwise create a factual basis for piercing the corporate veil.
Steinert v. Arkansas Workers’ Compensation Com’n, 2009 Ark. App. 719, [361] S.W.3d [858] (2009), is readily distinguishable from the facts of this case and is not applicable to |sHealthcare Staffing Associates and its impliedly associated corporations.
The testimony of Mrs. West in the portions of her deposition provided in Plaintiffs Response raises no genuine issue that Healthcare Staffing Associates was involved in budgeting, staffing, scheduling, or other day to day operations of the nursing home.
The contract between Defendant Healthcare Staffing Associates and Arkansas Elder Outreach is clear in its terms that Healthcare Staffing Associates’ obligation is to provide qualified medical employees in the quantity and type as needed and requested by Arkansas Elder Outreach. If any of the duties under the contract were not fulfilled, that would be a matter between those parties.
Appellant obtained a Rule 54(b) certificate and filed a timely notice of appeal.
On appeal, appellant argues that the trial court erred in granting summary judgment to HSA because a genuine issue of material fact remained as to the application of the borrowed-servant doctrine. Our standard of review for summary judgment has been often stated as follows:
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. On appeal, we determine if summary judgment was appropriate based on whether the eviden-tiary items presented by the moving party in support of its motion leave a material question of fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties.
Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 416, 291 S.W.3d 179, 182 (2009).
Under the doctrine of respondeat superior, an employer may be held vicariously liable for the tortious conduct of an agent if the evidence shows that such conduct was committed |fiwithin the scope of the agent’s employment. St. Joseph’s Reg’l Health Ctr. v. Mimos, 326 Ark. 605, 934 S.W.2d 192 (1996). The issue here is whether the allegedly negligent caregivers were acting within the scope of their employment with AEO or HSA. HSA argued in its motion for summary judgment that, pursuant to the borrowed-servant doctrine, the nursing home staff was employed by AEO at the time of their tortious conduct. Our supreme court has defined the borrowed-servant doctrine as follows:
[0]ne who is the general servant of another may be lent or hired by his master to another for some special service, so as to become as to that service the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired.
St. Joseph’s, 326 Ark. at 612, 934 S.W.2d at 195 (citing Ark. Nat’l Gas Co. v. Miller, 105 Ark. 477, 482, 152 S.W. 147, 149 (1912)). In George’s, Inc. v. Otwell, the supreme court held that the following instruction properly instructed the jury as to the borrowed-servant doctrine:
One who is in the general employment and pay of another may be loaned or hired by his general or original employer to a third party for the performance of some particular services for the third party. If the original or general employer, and not the third party, retains the right to control and direct the conduct of the employee in the performance of such services, then the original or general employer will be treated as his employer, with respect to such services. On the other hand, if the third party to whom the employee is loaned or hired has the right to direct and control the conduct of the employee in the performance of such services, then the third party would be considered his employer.
282 Ark. 152, 153, 666 S.W.2d 406, 407 (1984). The most significant question regarding a loaned employee is which company has direction and control of the employee. St. Joseph’s, supra (citing Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993); George’s, supra). The St. Joseph’s court held that “[ojrdinarily the question whether the general or special employer |7had the right of control and thus was the employee’s master, presents an issue of fact for the jury.” St. Joseph’s, supra (quoting Watland v. Walton, 410 F.2d 1, 3-4 (8th Cir.1969)). However, “where all of the evidence is in one direction and there is no rational basis for reasonable minds to differ as to the status of the servant the issue is one of law for the court to resolve.” Id.
Appellant argues that there is a question of material fact regarding HSA’s right to control the employees who worked at the nursing home because all of the testimony in Chris McMorris’s affidavit is refuted by other evidence in the record. HSA argues that the trial court correctly applied the borrowed-servant doctrine because AEO exercised complete and total control over the borrowed employees, and appellant failed to meet proof with proof.
Appellant argues that West’s testimony refutes the claim that HSA cannot be liable because it was not involved in the operation of the nursing home. West testified that she regularly spoke with McMorris by phone and at the facility and that his role with regard to her was finances, budgets, and staffing as it related to budgets. West also testified that “Baton Rouge,” where HSA is based, decides that the nursing home will hire employees from HSA. Appellant argues that a corporation’s control over budgeting and staffing, when shown to have impacted care and treatment of a nursing home resident, is sufficient to establish liability. See Rose Care, Inc. v. Ross, 91 Ark.App. 187, 209 S.W.3d 393 (2005). HSA argues that any conversations McMorris had with West about finances and budgets was done in his capacity as an officer and principal of HFA, not HSA. HSA points out Walsh’s testimony that AEO and HFA worked on budgets, not HSA.
IsAlthough HSA contends that McMorris was an officer and principal of HFA, there was no evidence of this fact presented to the trial court. Assuming that he was an officer of HFA, the work he did on their behalf does not establish liability for HSA. See K.C. Props. of N.W. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 32, 280 S.W.3d 1, 16 (2008) (“All corporations, regardless of the fact that the holders of stock and the officers of the corporation are identical, are separate and distinct legal entities; and it follows that, in the absence of facts on which liability can be predicated, one such corporation is not liable for the debts of another.”). However, as an officer of HSA, McMorris’s control over the management of the nursing home could bar the application of the borrowed-servant doctrine. We hold that a factual issue exists as to whether HSA retained control over the nursing home caregivers through McMorris’s involvement with West and the nursing home’s budget.
Appellant also points to testimony regarding a corporate nurse in arguing that HSA retains control over its loaned employees. Walsh testified in his deposition on January 29, 2009, that “the makeup of our [AEO’s] board presently” included a corporate nurse, Robin Merkel, who was an ad hoc, non-voting member. When asked for whom Merkel worked, the following exchange occurred:
A She works for the — to the nonprofit. She floats between each of the facilities. She helps train and guide our nursing staff in compliance, assists in any and all surveys, and institutes programs and policies, if you will, protocols to insure compliance.
Q And is Ms. Merkel an independent contractor or does she work for a company?
A She actually works for Staffing.
Q For Healthcare Staffing?
liA Healthcare Financial — Staffing, yes.
Appellant argues that Scott v. Central Arkansas Nursing Centers, Inc., 101 Ark. App. 424, 278 S.W.3d 587 (2008), is instructive as to the potential liability of a consulting nurse’s employer. In Scott, this court reversed the directed verdict in favor of a defendant corporation, NCI, which provided consulting services to the nursing home. At trial, a nurse testified that she was employed by NCI during the relevant time period and would assist nursing homes with “assuring that they had systems and processes in place to provide good quality of care.” The nurse had reviewed surveys reflecting inadequate staffing with the director of nursing and had made suggestions as to residents’ care. This court held that the proof established that NCI was directly involved in the provision of care at the nursing home during the relevant time period. HSA argues that there was no proof that Merkel filled this role during McMullen’s residency and that even if her conduct was considered, she was another borrowed employee for whom HSA is not vicariously liable.
Based on Walsh’s testimony, there is evidence that HSA exercised some control over the direct caregivers through the employment of a corporate nurse. Although the time period of Merkel’s employment was not defined, when we view the evidence in the light most favorable to the party against whom the motion was filed, there is a question of fact remaining as to whether a- corporate nurse trained the direct caregivers or instituted policies and procedures during McMullen’s residency.
The proof presented to the trial court leaves a material question of fact unanswered as to the control of the direct caregivers; thus, summary judgment based on the borrowedjservantI0 doctrine was not appropriate. Accordingly, we reverse and remand. Because of this holding, we find it unnecessary to address appellant’s remaining arguments as to why the borrowed-servant doctrine should not apply.
Reversed and remanded.
VAUGHT, C.J., and ROBBINS, J., agree. | [
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ROBERT J. GLADWIN, Chief Judge.
| Appellant Joe King appeals his convictions by a Polk County jury on counts of possession of drug paraphernalia and possession of methamphetamine with the purpose to deliver. Appellant argues that the circuit court erred by denying his motions for (1) a psychological evaluation, (2) the suppression of evidence, and (3) directed verdict with respect to possession of methamphetamine with the purpose to deliver. We affirm.
On or about November 29, 2012, appellant was arrested and charged with possession with intent to use drug paraphernalia pursuant to Arkansas Code Annotated section 5-64^43(c) (Supp. 2011) and possession of a Schedule II controlled substance — methamphetamine — with the purpose to deliver, pursuant to Arkansas Code Annotated section 5-64-420(a)(2) (Supp.2011). He was arraigned on December 5, 2012, tried on April 18, 2013, and found guilty of both counts. Appellant was sentenced, pursuant to a sentencing order filed on April 19, 2013, to serve 240 months in the Arkansas | ^Department of Correction on each count, with both sentences to run consecutively for a total term of 480 months. He filed a timely notice of appeal on April 25, 2013.
I. Sufficiency of the Evidence
Although appellant discussed it last in his brief, we address his sufficiency argument first for double-jeopardy purposes. See Davis v. State, 2013 Ark. App. 658, 430 S.W.3d 190. In a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the conviction. Daniels v. State, 2012 Ark. App. 9, at 1-2, 2012 WL 11276. This court will determine whether there is substantial evidence to support the conviction. 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. Heydenrich v. State, 2010 Ark. App. 615, 379 S.W.3d 507. The trier of fact resolves the questions of conflicting testimony, inconsistent evidence, and credibility. Daniels, 2012 Ark. App. 9, 2012 WL 11276.
Arkansas Code Annotated section 5-64-420(a) states that it is unlawful for a person to possess methamphetamine with the purpose to deliver it. The purpose to deliver may be shown by any of the following factors:
(1) The person possesses the means to weigh, separate, or package methamphetamine or cocaine; or
(2) The person possesses a record indicating a drug-related transaction; or
(3) The methamphetamine or cocaine is separated and packaged in a manner to facilitate delivery; or
(4) The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of methamphetamine or cocaine; or
(5) The person possesses at least two (2) other controlled substances in any amount; or
1 s(6) Other relevant and admissible evidence that contributes to the proof that a person’s purpose was to deliver methamphetamine or cocaine.
Ark.Code Ann. § 5-64-420(a)(l)-(6).
Appellant argues that these factors cannot be absolute evidence to prove purpose of delivery and that the jury’s findings regarding his intent in this case were based on speculation. Appellant claims that the State did not present any evidence that he had sold any drugs or was trying to sell them. He argues that there is simply not substantial evidence in this case to prove that he possessed methamphetamine with the intent to deliver.
We disagree. At trial, Deputy Ronald Richardson testified that on November 29, 2012, he and Officer Fields from the 18th West Drug Task Force went to appellant’s residence to investigate after receiving information from the Polk County Sheriff that appellant was dealing methamphetamine out of his residence. Upon their arrival, appellant exited the residence and met them on the front porch with a rifle in his hands. Deputy Richardson went into appellant’s residence to make sure that no one else was inside with a weapon, while Officer Fields detained appellant on the porch and searched him for weapons. While inside, Deputy Richardson smelled the strong odor of burned marijuana and saw a marijuana-filled cigar, three feet inside the doorway, on the kitchen bar. Deputy Richardson testified that appellant then told him that he had smoked marijuana earlier that day. Deputy Richardson read appellant his Miranda rights and arrested him based on the marijuana and a vial containing methamphetamine residue found by Officer Fields.
Deputy Richardson testified that, while searching appellant incident to the arrest, he found a bag of methamphetamine rolled up in some money in appellant’s front-left pocket. | ^Deputy Richardson explained that the bag contained a “usable amount” of methamphetamine for two people. Deputy Richardson told the circuit court that, while waiting in appellant’s home for the search warrant and for a deputy to take him to jail, appellant told him that he had been receiving methamphetamine through the mail.
Officer Fields testified that when he executed the search warrant for appellant’s home, he discovered twenty-four individual bags of methamphetamine totaling 8.49 grams. Officer Fields also found a bag of twenty-five assorted pills that were determined to be Schedule 3 and 4 controlled substances. Officer Fields testified that during his search he found a box in the kitchen that contained “numerous little baggies” and “a baby spoon that had a white powdery residue on it[.]” The baggies in the box were the same type of bags in which the methamphetamine was packaged. Continuing the search, Officer Fields found several sets of digital scales and more plastic baggies. He testified that the scales were the type typically used to separate large quantities of narcotics. Officer Fields testified that the way the methamphetamine was bagged and in one location, coupled with the digital scales and residue on them, indicated that appellant was selling methamphetamine.
The State correctly notes that four out of the five statutory factors indicating a purpose to deliver methamphetamine were present in this case. The State presented evidence at trial that (1) appellant possessed the means to weigh, separate, and package the methamphetamine; (2) the methamphetamine was separated and packaged in a manner to facilitate delivery; (3) appellant was holding a rifle when police arrived at his home; and (4) appellant also possessed four other controlled substances, including the marijuana and pills found by the officers. We |shold that the circuit court did not err by denying his motion for directed verdict with respect to the charge that he possessed methamphetamine with the purpose to deliver it.
II. Denial of Appellant’s Request for a Psychological Evaluation
This court will not reverse a circuit court’s decision to deny a defendant’s request for a mental evaluation unless that decision was clearly erroneous. Jimenez v. State, 2010 Ark. App. 804, 379 S.W.3d 762. A criminal defendant is ordinarily presumed to be mentally competent to stand trial, and the burden to prove otherwise is on the defendant. Bryant v. State, 94 Ark.App. 387, 231 S.W.3d 91 (2006). The test of competency to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational and factual understanding of the proceedings against him. Id.
Arkansas Code Annotated section 5-2-305(a)(Z) (Supp.2011) states that the circuit court shall immediately suspend any further proceedings in a prosecution if:
(A) A defendant charged in circuit court files notice that he or she intends to rely upon the defense of a mental disease or defect;
(B) There is reason to believe that the mental disease or defect of the defendant will or has become an issue in the cause;
(C) A defendant charged in circuit court files notice that he or she will put in issue his or her fitness to proceed; or
(D) There is reason to doubt the defendant’s fitness to proceed.
Officer Richardson testified at the suppression hearing that appellant had tried to commit suicide while in custody. He explained that, according to reports he received from Rother deputies, appellant was threatening suicide, and they took a pistol from him a week or two prior to the hearing. Appellant notes that his counsel was not provided a written statement regarding any suicide attempt prior to the hearing. At the hearing, counsel asked appellant about the incident, and appellant testified that he had been depressed. The following discussion was then held on the record:
Mr. Rainwater: Okay. Your Honor, I asked my client about what Mr. Richardson was saying about the suicidal episode. He has reported to me that he has been depressed. Up to this point I haven’t raised any issue. I want to ask him if he wants me to file for a psychological evaluation. Do you need one?
Appellant: Yes.
The Court: Well, depression in and of itself doesn’t relate to the competency to stand trial, so I’d have to be convinced of a lot more than that before I would delay the trial. I mean, the jury has already been called. To grant a motion for a psychological, I don’t think that statement in and of itself is not enough. So if that was a motion, Mr. Rainwater, it too is denied. Nine o’clock tomorrow.
Appellant reiterates that section 5-2-305 states that the court shall immediately suspend any further proceeding if, among other things, there is reason to believe that the mental disease or defect of the defendant will or has become an issue and if there is reason to doubt the defendant’s fitness to proceed. This court in Jimenez, supra, determined that the circuit court was clearly erroneous in declining to order a mental evaluation pursuant to the mandatory language of section 5-2-305 regarding the immediate suspension of any further proceedings if a defendant charged in circuit court files notice that he or she intends to rely upon the defense of mental disease or defect. Appellant maintains that very little is required of the defendant to trigger the mandatory language of the statute — mere notice will suffice.
|7The mandatory immediate suspension of the proceedings is subject to the timeliness provision in Arkansas Code Annotated section 5-2-304 (Supp.2011): “When a defendant intends to raise mental disease or defect as a defense in prosecution or put in issue his or her fitness to proceed, the defendant shall notify the prosecutor and Court at the earliest practicable time.” Although appellant acknowledges that the day of the trial was not the earliest practicable time, according to the statute, if a defendant fails to follow the mandatory-time strictures of the statute, the prosecutor is entitled to a continuance that, for limitation purposes, is deemed an excluded period granted on application of the defendant. Ark.Code Ann. § 5-2-304. Accordingly, appellant submits that the penalty for untimely notice is more time — charged to the defendant — for the State to prepare for the newly revealed defense. But there is nothing in this provision to obviate the requirement that once notice of a mental-defect defense is presented, the circuit court shall immediately suspend the proceedings.
In denying appellant’s request, the circuit court ruled:
Depression in and of itself doesn’t relate to competency to stand trial, so I’d have to be convinced of a lot more than that before I would delay trial. I mean, the jury has already been called. To grant a motion for [a] psychological [examination], I don’t think that statement in and of itself is enough.
There is no evidence before us to indicate that appellant filed notice of his intent to rely on the defense of mental disease or defect or that he would put in issue his fitness to proceed. Nor did counsel even suggest to the circuit court that appellant was unable to understand the charges or assist in his defense. We hold that appellant’s mere statement that he was | ¿‘depressed” was not enough to give the circuit court reason to believe that mental disease or defect would be an issue or to give the circuit court reason to doubt his fitness to proceed.
Jimenez, supra, is distinguishable in that Jimenez actually filed notice with the court that “he intended to raise the affirmative defense of mental disease or defect and requested that the case be stayed so he could undergo a forensic evaluation.” Jimenez, 2010 Ark. App. 804, at 5, 379 S.W.3d at 765. Moreover, Jimenez told the circuit court that he was requesting the mental evaluation because of “no meaningful assistance in his own defense; the desire to explore the defense of temporary insanity and not appreciating the consequences of his actions; and the inconsistent statements from the police and [himself].” Id. Here, appellant did not file any notice with the circuit court regarding his mental state or how it might affect his trial, nor did he provide the court with any insight into why a mental evaluation was needed. Accordingly, we hold that the circuit court’s decision to deny appellant’s request for a psychological evaluation was not clearly erroneous.
III. Denial of Appellant’s Motion to Suppress Statement and Evidence
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Davis, supra. The appellate court defers to the superior position of the circuit judge to pass upon the credibility of witnesses. Id. It will reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Id.
IflArkansas Rule of Criminal Procedure 3.1 (2013) provides that an officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit a felony or a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. If an officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous, the officer may search the outer clothing of the person and the immediate surroundings for any weapon or other dangerous item. Ark. R.Crim. P. 3.4 (2013).
The test in determining whether a frisk is reasonable is an objective one. Franklin v. State, 2010 Ark. App. 792, 378 S.W.3d 296. The question is whether a reasonably prudent person in the officer’s position would be warranted in the belief that the safely of the police or that of others was in danger. Id. Due weight is given to specific reasonable inferences an officer is entitled to derive from the situation in light of his experience as a police officer. Id. An officer’s reasonable belief that a suspect is dangerous must be based on specific and articulable facts. Id. A suspect’s demeanor and manner, whether a suspect is carrying anything, and what he is carrying, any information received from third persons, and a suspect’s apparent effort to avoid identification or confrontation by law-enforcement officers are all factors to be considered in determining whether an officer has grounds to reasonably suspect. Id.
|inIn this case, it is undisputed that officers came to appellant’s home to obtain his consent to enter and search the home. Officer Fields testified that he patted appellant’s clothing and noticed a bulge in his pocket. Officer Fields asked appellant what it was, and appellant pulled out what Officer Fields described as a clear, plastic vial. He explained that inside it was a watch-battery-sized baggie that contained residue that he believed, based on his experience, to be methamphetamine. Officer Fields testified that, at that point, he believed that he had probable cause to make an arrest. He acknowledged that he did not advise appellant of his Miranda rights at that time, knowing that he was going to ask appellant for consent to search the residence. Officer Fields next asked if there was more methamphetamine in the house. Appellant replied, “[y]es,” that there were “ten bags or so.”
Officer Fields asked for consent to search, but appellant would not commit one way or the other. Officer Fields explained that, at that time, he and Deputy Richardson thought they had enough evidence to apply for a search warrant. At that time, they made the decision to arrest appellant, and they Mirandized him.
Appellant cites Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006), in which our supreme court stated that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest. The supreme court also held that a person is in custody for the purposes of the Miranda warnings when he is “deprived of his freedom by formal request or restraint on freedom of movement of the degree associated with a formal arrest.” Id. at 152, 243 S.W.3d at 873.
|! j Appellant points out that officers kept him on a small porch in front of his single-wide trailer. His gun was taken away from him, and the officers would not allow him to go back into his house. He claims that he was under an “effective arrest” at the time of questioning and that he should have been read his Miranda rights at that time.
Officer Fields and Deputy Richardson were asked by the Polk County Sheriff to drive out to appellant’s home, as there were complaints that drugs were being sold from the house. It is undisputed that when they arrived at appellant’s home, he met them on the front porch with a rifle. Deputy Richardson took appellant’s rifle away, and Officer Fields conducted a pat-down search to ensure the officers’ safety. While conducting the pat-down, Officer Fields said he felt a small cylindrical bulge in appellant’s pocket. Officer Fields asked him what the bulge was, and, with no other prompting, appellant pulled from his pocket a clear, plastic vial that contained a watch-battery-sized baggie with methamphetamine residue inside. Officer Fields asked him if the residue would test positive for methamphetamine, and appellant replied, “[Y]es.” Officer Fields next asked if there was more methamphetamine in the house. Appellant replied, “[y]es,” that there were “ten bags or so.” Shortly afterward, appellant was arrested and read his Miranda rights by Deputy Richardson.
Because appellant met the officers on his front porch with a rifle, Officer Fields reasonably detained and frisked him to ensure the officers’ safety. The contraband was discovered when, after the valid frisk, appellant voluntarily pulled the contraband out of his | |2pocket and showed it to Officer Fields. In its ruling, the circuit court found that under the totality of the circumstances Officer Fields was “entitled to do [pat-down] once [he] saw [appellant] with a weapon.” Given the totality of the circumstances, we hold that the circuit court’s decision to deny appellant’s motion to suppress the evidence was not clearly against the preponderance of the evidence.
Affirmed.
WOOD and BROWN, JJ., agree.
. Arkansas Code Annotated § 5 — 2—305(a)(1) was amended by Act 506 of the 2013 Arkansas legislative session, and subparagraphs (B), (C), and (D) were deleted.
. This court may rely on trial testimony to affirm the circuit court’s suppression ruling. Charland v. State, 2011 Ark. App. 4, 380 S.W.3d 465. | [
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BRANDON J. HARRISON, Judge.
| iBrook Rogers appeals the Pulaski County Circuit Court’s decision ordering him to pay Dena Rogers certain marital retirement benefits. Brook argues that the circuit court erred in ruling that he owed Dena $40,709.85 in retirement benefits. We reverse the court’s order that awarded Dena $40,709.85 and remand the case for further proceedings.
I. Factual and Procedural Background
Brook and Dena married in June 1993 and divorced in March 2005. The March 2005 divorce decree divided them property, including individual retirement accounts. Approximately three years after the divorce decree was entered, orders purporting to be Qualified Domestic Relations Orders (QDROs) were entered. Arkansas Code Annotated section 9-18-101 (Repl. 2009) defines a QDRO as being a state domestic-relations order that creates or recognizes an alternate payee’s right to receive benefits of a participant’s | {.retirement plan. Section 9-18-102(a) (Repl. 2009) empowers circuit courts to enter qualified domestic relations orders that reach “any and all retirement annuities and benefits of any retirement plan.”
Some of the delay between the entry of the 2005 divorce decree and the 2008 QDROs appears to have been attributed to protracted post-decree negotiations between the parties and their attorneys. In any event, about two weeks after the QDROs were entered, Dena filed a motion for contempt. She alleged that Brook deposited approximately $84,000 of marital funds into an IRA that he opened after the divorce decree had been entered and that she was entitled to receive half of the money. The court took no action on that motion. Dena filed a second contempt motion in February 2009. The court held a hearing in February 2010 on contempt issues and received testimony about Brook opening and funding the IRA. The court ruled on the other issues raised at the hearing, but it specifically reserved ruling on whether Dena was entitled to some of the money in Brook’s retirement accounts. The court received more evidence and testimony on the retirement-account issues at a child-support hearing held in May 2010. (More on this shortly.) In August 2012, nearly two years after the final hearing, the court entered a written order stating that Brook owed Dena $40,709.85 in marital retirement benefits. That order spawned this appeal.
A. The Retirement Accounts
We have mentioned an IRA account that Brook claims to have opened with non-marital funds after he was divorced from Dena, but a number of other accounts were raised in circuit court.
|sDena owned one retirement account, a Federal Employee Retirement account, that was titled solely in her name during the marriage, but it is not at issue in this appeal. Brook held three retirement accounts solely in his name during the marriage. Specifically, when the divorce decree was entered he held an AT & T (later SBC) Pension Plan; an AT & T/SBC 401 (k) Savings Plan; and a Janus Fund IRA. Dena has not challenged how the circuit court distributed Brook’s AT & T/SBC Pension Plan, so it is not at issue. Only the AT & T/SBC 401 (k) plan and the Janus Fund IRA are important to this appeal. And the two retirement accounts created after the divorce, the 2006 USAA Roth IRA and the 2008 USAA IRA, are at issue.
During the hearings held in 2010, Dena argued that, shortly after the 2008 QDROs were entered, Brook had “moved and relocated” his AT & T/SBC 401 (k) that contained about $112,000 — and his Janus Fund retirement account that contained about $84,000 — to a new IRA with USAA. Though the issue is muddled in the record, the bottom line appears to be that Brook rolled his AT & T/SBC 401(k) and his Janus Fund account into one large account — a USAA IRA — after the divorce was granted but before the 2008 QDROs were entered. The July 2008 QDRO, which addressed Brook’s AT & T/SBC 401 (k) plan, showed that this transfer had likely occurred because the order listed USAA as the plan administrator for the 401(k). It seems that all the money from the AT & T/SBC 401(k) and the Janus Fund account has remained in the USAA IRA since Brook first moved it there in May 2008. Title to the USAA IRA is held by the “Brook Rogers Trust.”
141. The Janus Fund
One critical issue was the content and value of the Janus Fund account that Brook held solely in his name during the marriage. Brook testified that he started the Janus Fund retirement account in 1988, years before he married Dena. Dena testified at the first hearing in February 2010 that the Janus Fund’s value was $9,000 when she and Brook married. Brook argued a pre-marital value of nearly $28,000. Brook produced evidence that the Janus Fund account contained two separate funds — Fund No. 42 and Fund No. 43 — that were consolidated under one account number. At the second hearing in May 2010, Brook produced retirement-account statements issued about six months before the marriage showing that Janus Fund No. 42 was valued at $18,317.29 and Fund No. 43 (also known as the Janus Twenty Fund) was valued at $14,085.55.
Brook and Dena testified that they jointly contributed around $8,000-$10,000 to Brook’s (consolidated) Janus Fund retirement account while married. The couple’s joint tax returns support the testimony because they show that Brook claimed a $2,000 IRA deduction in 1993, 1994, 1995, and 1996. A Janus Fund statement reported a value of $54,474 in 1996. And the parties agreed that the Janus Fund’s total value was around $84,000 when they divorced in 2005. Ultimately, the circuit court had to decide how much of the Janus Fund money Dena was entitled to receive.
2. Roth IRA
Dena also alleged at the first hearing that Brook, in 2006, had 'opened an $8,000 Roth IRA with USAA using marital funds. The evidence Dena presented to link Brook’s post-divorce Roth IRA to marital funds was a July 2008 QDRO and the allegation that he had broiled the Roth IRA into the USAA IRA account that was opened in May 2008. The July 2008 QDRO gave Dena a $4,000 lump-sum payment as alternate payee, but the plan administrator and address on the QDRO does not match the plan administrator name and address on the Roth USAA IRA account. It came out during the second hearing that federal tax regulations do not permit a person to roll over a Roth IRA into a regular IRA account, making Dena’s allegation that Brook had rolled over the Roth IRA into the USAA IRA unlikely.
Brook told the court that he funded the Roth IRA with his separate money after the divorce decree was entered and produced a check he had written for $8,000. The check has the payor as Brook A. Rogers, Trustee the Brook A. Rogers Trust. The payee is USAA Federal Savings Bank. The check is dated January 2006. Regarding the July 2008 QDRO, he argued that it applied to the USAA regular IRA account that held the money from the Janus Fund and his 401 (k), not to his Roth IRA. He maintained that Dena was not entitled to the Roth IRA money and that she should only receive one-half of the marital contributions made to the Janus Fund during the marriage, which was $4,000. Dena stated that a QDRO has never accounted for the $84,000 from the Janus Fund.
B. Expert Witness Jim Pearson
Dena called a certified public account, Jim Pearson, as her expert witness. Pearson was the only expert who appeared in the case, and he provided the court with several spreadsheets and flowcharts to explain why Dena was entitled to particular sums from the Janus Fund and Brook’s other retirement accounts, including his AT & T/SBC 401(k). On direct examination, Pearson testified that Dena should get $20,522.93 from the Janus Fund, a number, which at |fithe time of the final hearing, was directly traceable to the USAA IRA. Pearson based this figure on the growth of the contributions that Brook and Dena had made to the account while married. He also told the court how he calculated interest and the amount of interest Brook owed to Dena since the divorce. Pearson said that Dean should receive $5,010.08 ($4,000 plus interest) from the Roth IRA, and $9,864.66 ($7,875.85 plus interest) from Brook’s AT & T/SBC 401 (k). According to Pearson, the total amount of Brook’s retirement benefits that Dena was entitled to receive was $40,658.18. This number was a stone’s throw from the amount the circuit court did award.
Speaking of the proof, there was some debate over what documents Pearson had access to while preparing his report. Pearson undoubtedly saw some of the documents for the first time on cross-examination. More important to this appeal is Pearson’s statement on cross-examination that he had used approximately $11,000 as the starting account balance for the Janus Fund. He did not, however, combine the totals of Fund No. 42 and Fund No. 48 because they were “two separate funds” in his opinion. Although the three tax returns he had while preparing his report only showed that the couple declared $6,000 in deductions for IRA contributions for Brook while married, Pearson maintained that Brook and Dena contributed $9,155 of marital money to the Janus Fund account in 1994, but he did not fully explain how he arrived at $9,155. On redirect, Pearson stated that he was confident that his calculations of Dena’s marital interest in the Janus Fund were accurate because the 1996 Janus Fund statement showing a balance of $54,474.50 was one of his “source documents.” Later, however, Pearson acknowledged that if he had mistakenly added a non-retirement account to his retirement calculation, then every subsequent retirement-related calculation would be affected.
|7C. The Circuit Court’s Ruling
At the end of the May 2010 hearing, the court made these oral findings on retirement-account issues:
Misplaced hope that all documents would be exchanged that were material and apparently they were not because inadvertently or otherwise Mr. Rogers has based some of his argument and calculations on documents that were not produced ... pursuant to the last order that was an attempt to get a base number of whatever was premarital. And, again, I am plowing the same ground figuring in what was marital contributions and the appropriate interest on the marital contributions and whatever the previous years’ interest as compounded in these retirements. The situation that we end up with is back [to] where we were before. Except at this point and time I have a CPA saying with the source documents he had he has made these calculations. And that his calculation if my addition is correct on the slight adjustment from his source document to the total that he sees is owed as marital funds is $40,709.85[,] [w]hich is adding $51.67 to the total on the first page of Plaintiffs Exhibit 14[.] Mr. Rogers contends that there were situations involved where non or premarital funds were added into the calculations that should have been excluded or deducted. He contends that everybody got their IRA funds although the decree states there is $7,000.00 that was owed over to the Plaintiff at the time of the decree. No evidence one way or the other where those funds are. And, again, one of the problems is that we have taken different funds merged, rolled, and so forth into other accounts.
The only cohesive calculation and paper trail that has been produced here has been from [Dena]. [I]f I haven’t helped [Brook] mark his exhibits, he wouldn’t even have a record in this case. The situation of proving anything as a nonmarital asset is charged to the Defendant who claims it to be nonmarital. These accounts existed during marriage and were either merged or rolled into other accounts during or post decree .... I have attempted with what I think is unusual patience to allow everybody the opportunity to get whatever document before one another to try to compute an accurate amount.... [Y]et today some document that Mr. Rogers thinks is a key document is produced that was not produced before, and he states that it wasn’t available to him or didn’t have it prior. Obviously he got it prior to our hearing today, and the same should have been given if he wanted it considered.
So it appears to me from the proof today, from the testimony that I have received, that the proper amount that is due to Dena Rogers is the $40,709.85. And Mr. Rogers you can throw your hands up and so forth.
_!&•••
The order of the Court is there is owed that amount pursuant to the previous decree, the QDROs, all orders that have been entered in this matter. One of the problems is that even after the time and before the retirement funds were divided, these funds were commingled, were rolled, and funded into other accounts.
The court’s final written order states: “[Brook] owes [Dena] as marital retirement benefits the sum of $40,709.85. This amount shall be transferred to [Dena] by Qualified Domestic Relations Order within ten (10) days of entry of this order.”
II. Analysis
Brook’s appellate argument boils down to the contention that Pearson’s calculation of the marital retirement benefits was wrong and the court’s award to Dena is likewise mistaken because the court relied upon Pearson’s opinion when it awarded her $40,709.85.
Here are the particular mathematical errors that Brook alleges that Pearson and the court made below and which require us to reverse:
• Pearson’s beginning balance of non-marital funds was wrong because he started with $11,583.66 when he should have started with between $27-28,000 based on the money in Funds No. 42 and 43 in the Janus Fund account. In other words, Pearson mistakenly decided to treat Funds No. 42 and 43 as separate accounts rather than one account. In Brook’s view, Pearson’s initial error adversely affected his subsequent calcdlations, all of which the circuit court in turn mistakenly relied on.
• The $11,155.88 shown in Pearson’s worksheet as a marital contribution in 1994 was incorrect because there was no accounting of where that money came from and the parties’ testimony contradicts Pearson’s conclusion that a marital contribution equaling $11,155.88 was made in 1994. This means, according to Brook, that Pearson’s total marital contribution value ($19,155.88) was also incorrect because the couple’s joint tax returns, and their testimony at the hearing, reflect that they did not contribute more than $10,000 to the account while married.
• 19Pearson used the July 2008 $4,000 QDRO to calculate Dena’s interest in Brook’s Roth IRA when the Roth IRA was created after the divorce with non-marital funds. The account that the QDRO applied to was the regular USAA IRA, so if anything the $4,000 QDRO should apply to that account.
Equity cases are reviewed de novo and “a complete review of the evidence and record may take place as part of the appellate review to determine whether the trial court clearly erred in either making a finding of fact or in failing to do so.” Duncan v. Duncan, 2011 Ark. 348, at 8, 383 S.W.3d 833, 838. A circuit court’s findings of fact may not be set aside unless they are clearly erroneous. Id. A finding of fact is clearly erroneous when, although there is evidence to support it, we have a definite and firm conviction that a mistake has been made. Id. If testimony or documentary proof shows a questionable basis for an expert’s opinion, then the issue becomes a credibility call that the fact-finder must make. See Winn v. Winn Enters., Ltd. P’ship, 100 Ark.App. 134, 265 S.W.3d 125 (2007).
Brook and Dena seem to agree on one thing: the circuit court relied on Pearson’s expert opinion in deciding how much money Dena should receive as marital retirement benefits. We agree, and must therefore side with Brook’s contention that the court erred by awarding more than $40,000 in retirement benefits to Dena based on Pearson’s calculations. To start, there was no evidence that Brook funded his $8,000 Roth IRA with marital funds. The proof was to the contrary; he submitted (unrebutted) documentary proof that he opened the account, after the divorce, with his separate money. Because the Roth account was opened after the divorce and with Brook’s separate money, the court erred when it included the Roth IRA money (Pearson’s “figured interest on $4,000”) in its calculation of what Brook owed Dena under the |10divorce decree. Moreover, we conclude that there was an insufficient basis to apply the $4,000 2008 QDRO to the Roth IRA account because the address and plan administrator listed on that QDRO did not match the Roth IRA account information.
Turning to the Janus Fund, there is no evidence of record to support Pearson’s calculation of the value of non-marital money in the Janus Fund in 1993. The starting non-marital amount Pearson used for the year 1993 was $11,533.66 — a number that is not close to any numerical figure in any Janus Fund-related document or the other documents in the record we have. In contrast, Brook produced specific statements from the Janus Fund, one from December 1992 (Fund No. 42) and one from January 1993 (Fund No. 43), showing in 1993, but before the parties were married that year, that the Janus Fund had approximately $27,400 in it. While the Janus Fund retirement money was in two different funds (Nos. 42 and 43), both funds had the same Janus Fund account number; and that consolidated account number existed when the couple divorced. Because Pearson’s starting non-marital balance for the entire Janus Fund account was clearly incorrect, his related calculation of Brook’s marital contribution to the Janus Fund account ($19,155.88) was also mistaken. Given these errors, we hold that the court’s award to Dena was likewise clearly erroneous. We do so with some empathy, for the circuit court was patient and attentive while presiding over what turned out to be a protracted and difficult case.
Nevertheless, we reverse the circuit court’s retirement-benefits award of $40,709.85 to Dena and remand this case for proceedings consistent with the 2005 divorce decree and the parties’ interests.
In Reversed and remanded.
WHITEAKER and WOOD, JJ., agree. | [
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KAREN R. BAKER, Justice.
1 ]This appeal stems from a car accident between appellant, Mary Berryhill, and ap-pellee, Frances Synatzske, that occurred on November 12, 2008. On September 21, 2011, Berryhill sued Synatzske alleging that Synatzske was responsible for the accident. In the same complaint, Berryhill also sued seventy John Does, including a John Doe that was designated to represent the estate of any defendant who predeceases the service of the complaint. On October 6, 2011, an answer was filed and stated that Synatzske had died and that an estate should be opened and served, and also alleged that the complaint should be dismissed for insufficiency of process and insufficiency of service of process.
On November 14, 2011, three days after the expiration of the statute of limitations, appellee, Bryan Huffman, filed a petition for appointment as special administrator of Synatzske’s estate. On November 28, 2011, the circuit court appointed Huffman as special [2administrator of the estate (hereinafter the estate). On December 22, 2011, the circuit court granted Berryhill’s motion to extend the time of service until May 16, 2012.
On April 3, 2012, approximately two months prior to the expiration of the deadline to perfect service, Berryhill filed an amended complaint naming the estate as a party. The estate answered and raised affirmative defenses of the statute of limitations, insufficiency of process, and insufficiency of service of process.
On July 5, 2012, the estate filed a motion for summary judgment asserting that the original complaint was a nullity because Synatzske had died prior to the filing of the original complaint, and therefore, it could not be transformed into a valid suit by amending the complaint after the statute of limitations had passed. The estate further argued that Ark.Code Ann. § 16-56-125 could not be used to toll the statute of limitations because the statute only applied in circumstances in which the tortfea-sor was unknown, and asserted that in this case Berryhill knew the identity of the tortfeasor.
Berryhill responded that her complaint named Synatzske, as well as her estate, as a John Doe defendant pursuant to Ark. Code Ann. § 16-56-125 (Repl.2005), in the event Synatzske died prior to filing the complaint. Berryhill further asserted that her complaint was proper because it was unknown at the time of the filing of the complaint whether Synatzske or her estate was the tortfeasor. Accordingly, Berryhill argued that the original complaint was not a nullity, and that she had timely substituted Huffman as a party and served him prior to the deadline passing. Finally, Berryhill argued that the amended complaint naming Huffman related back to the filing of the original complaint, which was prior to the running of the [¡¡statute of limitations.
After a hearing, the circuit court granted the estate’s motion for summary judgment on September 13, 2012, finding that Berryhill had failed to timely file her amended complaint naming the estate pri- or to the running of the statute of limitations. The circuit court further found that the statute of limitations was not tolled by the filing of the original complaint pursuant to Ark.Code Ann. § 16-56-125 because Berryhill knew the tortfeasor, but failed to amend her original complaint prior to the expiration of the statute of limitations.
Berryhill appealed the decision to the court of appeals, which affirmed the circuit court’s decision. Berryhill v. Synatzske, 2013 Ark. App. 483, 2013 WL 4854487. Berryhill then petitioned this court for review, which we granted. Berryhill presents one issue on appeal: the circuit court erred in granting the estate’s motion for summary judgment.
Upon granting a petition for review, this court considers the appeal as though it had been originally filed in this court. Pack v. Little Rock Convention Ctr. & Visitors Bureau, 2013 Ark. 186, 427 S.W.3d 586. This case comes to us from an order of summary judgment. A trial court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party leave a material question of fact unanswered. Bryan v. City of Cotter, 2009 Ark. 172, 303 S.W.3d 64. Summary judgment is also appropriate when the trial court finds that the allegations, taken as true, fail to state a cause of action. Cottrell \ 4v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998). We view 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. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811.
I. ArhCode Ann. § 16-56-125
With these standards identified, we now turn to the issue presented, which is whether the circuit court erred in granting Synatzske’s motion for summary judgment. The issue requires us to interpret Ark.Code Ann. § 16-56-125. We review issues of statutory interpretation de novo because it is for this court to decide what a statute means. Cooper Realty Invs., Inc. v. Ark. Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003). While we are not bound by the circuit court’s ruling, we will accept that court’s interpretation of a statute unless it is shown that the court erred. Id.
Turning to our review of the statute before us, “[t]he first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language.” Potter v. City of Tontitown, 371 Ark. 200, 209, 264 S.W.3d 473, 481 (2007). “The basic rule of statutory construction is to give effect to the intent of the legislature.” Dep’t of Human Servs. & Child Welfare Agency Review Bd. v. Howard, 367 Ark. 55, 62, 238 S.W.3d 1, 6 (2006). Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). Statutes relating to the same subject must be construed [.¡together and in harmony, if possible. Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006).
The relevant statute, Ark.Code Ann. § 16-56-125 “Unknown Tortfeasors,” provides:
(a) For the purposes of tolling the statute of limitations, any person, firm, or corporation may file a complaint stating his or her cause of action in the appropriate court of this state, whenever the identity of the tortfeasor is unknown.
(b)(1) The name of the unknown tortfea-sor shall be designated by the pseudo-name John Doe or, if there is more than one (1) tortfeasor, John Doe 1, John Doe 2, John Doe 3, etc.
(2) Upon determining the identity of the tortfeasor, the complaint shall be amended by substituting the real name for the pseudo-name.
(c) It shall be necessary for the plaintiff or plaintiffs attorney to file with the complaint an affidavit that the identity of the tortfeasor is unknown before this section shall apply.
Thus, the statute allows a complaint to be filed when the identity of the tortfeasor is unknown to the plaintiff.
Additionally, Rule 15(c) of the Arkansas Rules of Civil Procedure (2018) permits a party to file an amended pleading that relates back to the original filing under certain circumstances. Rule 15(c)(2) provides:
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a |6mistake concerning the identity of the proper party, the action would have been brought against the party.
Berryhill asserts that because the identity of the tortfeasor, the estate, was unknown to her at the time she filed her original complaint, Ark.Code Anm § 16-56-125 was applicable to her case and tolled the statute of limitations.
Synatzske responds that Ark.Code Ann. § 16-56-125 is not applicable to Berryhill’s case because this case is not one of mistaken identity, and Berryhill made a strategic decision not to name Synatzske’s estate and did not exercise due diligence.
At issue is whether Ark.Code Ann. § 16-56-125 applies to Berryhill’s case and tolls the statute of limitations on the filing of her original complaint. In applying our rules of statutory interpretation, we must give the words their ordinary and usually accepted meaning, and the identity of the tortfeasor must have been unknown to Berryhill. Black’s Law Dictionary defines “tortfeasor” as “one who commits a tort; a wrongdoer.” Black’s Law Dictionary (9th ed.2009).
Turning to the facts of Berryhill’s case, the tortfeasors are Synatzske and Syn-atzske’s estate. Synatzske and her estate are two separate and distinct defendants. See Crenshaw v. Special Adm’r of Estate of Ayers, 2011 Ark. 222, 2011 WL 1896766. At the time the original complaint was filed, September 21, 2011, it is undisputed that it was unknown to Berryhill that Syn-atzske had died. Likewise, it was unknown to Berryhill whether an estate may have existed. Further, it was unknown to Berryhill whether a personal administrator of the estate had been appointed. However, although Berryhill was not aware of Synatzske’s death, Berryhill’s complaint also named Synatzske’s estate as a John Doe defendant pursuant to ArkCode JjAnn. § 16-56-125. At the time Berryhill named the estate as a John Doe defendant, she did not and could not have known the identity of a personal representative as one had not yet been appointed. See Storey v. Smith, 224 Ark. 163, 272 S.W.2d 74 (1954) (A complaint that merely names an unidentified personal representative prior to the appointment of a representative is void.).
In reviewing the facts in this particular case, we hold that the circuit court erred by finding that the tortfeasor was not unknown pursuant to Ark.Code Ann. § 16-56-125. The record demonstrates that the identity of the tortfeasor, Syn-atzske’s estate, was unknown to Berryhill. Accordingly, Ark.Code Ann. § 16-56-125 is applicable to Berryhill’s case and tolled the statute of limitations.
Additionally, we turn to Rule 15(c) because, before a real party can be substituted for a John Doe defendant in the original complaint, such pleadings must still meet the requirements of Rule 15(c). Here, the four prongs have been met: the claim clearly arose out of the same conduct set forth in the original pleadings; Syn-atzske’s estate had notice of the initiation of the action and would not have been prejudiced in maintaining a defense on lathe merits; Syriatzske’s estate should have known that but for a mistake concerning the identity of the estate or the personal representative, that the action would have been filed against the personal representative; and finally, the service requirement was met, as the original complaint was served within 120 days of the filing.
Accordingly, because there is a valid pleading to relate back to, the real party, the estate or Huffman, can be substituted in the original complaint. We note that “[t]he purpose of Rule 15(c) is to avoid dismissals on technical grounds where the new defendant received notice of the litigation before the statute of limitations expired. See [William David Newbern], Rule 15(c) of the Federal and Arkansas Rules of Civil Procedure: Amending Pleadings after the Statute of Limitations Has Run, 1984 Ark. L. Notes 5.” Harvill v. Cmty. Methodist Hosp. Ass’n, 302 Ark. 39, 41-42, 786 S.W.2d 577, 579 (1990).
Therefore, based on our discussion above and our standard of review, we hold that the circuit court erred in granting the estate’s motion for summary judgment, and we reverse and remand the matter to circuit court for proceedings consistent with this opinion.
Reversed and remanded; court of appeals’ opinion vacated.
HANNAH, C.J., and CORBIN and DANIELSON, JJ., dissent.
. The estate urges us to affirm the circuit court based on Crenshaw v. Special Adm’r of Estate of Ayers, 2011 Ark. 222, 2011 WL 1896766. We held in Crenshaw that “a complaint naming a deceased person as the defendant constitutes a defect that fails to invoke the jurisdiction of the court because there must be an entity in being at the time the complaint is filed.” Id. at 6. We further held that there was no evidence to show that in filing the original complaint, Crenshaw intended to name the estate or a representative of Ayers's estate. However, Crenshaw is distinguishable from Berryhill’s case. The record in the present case demonstrates that Berryhill certainly intended to name the estate or representative of the estate in the original complaint by naming the John Doe defendants. The record also demonstrates that Berryhill’s counsel repeatedly corresponded with defense counsel in an attempt to identify the proper venue to petition for appointment of a special administrator. | [
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KENNETH S. HIXSON, Judge.
hln this domestic relations case, the Faulkner County Circuit Court issued a decree of divorce on September 21, 2012, that awarded appellee Kristi Michelle Massey a divorce from appellant Eric Leroy Massey. The trial court found that certain real and personal property was marital property and divided the property equally between the parties. Eric now appeals, arguing that the trial court clearly erred in finding that this property was marital property, and in awarding Kristi a one-half interest in the property. Eric contends that, although he acquired each of these items of property during the parties’ marriage, they were gifts to him from his parents and therefore constituted his non-marital property. We disagree and affirm.
Pursuant to Arkansas Code Annotated section 9-12-315(a)(l)(A) (Repl. 2009), all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. “Marital property” is defined as all property acquired by either |2spouse subsequent to the marriage, subject to certain exceptions including property acquired by gift. Ark.Code Ann. § 9 — 12—315(b)(1) (Repl.2009). We have defined a gift as a voluntary transfer of property, without consideration, to another. Scott v. Scott, 86 Ark.App. 120, 161 S.W.3d 307 (2004). There is a presumption that all property acquired during a marriage is marital property. Baker v. Baker, 2013 Ark. App. 543, 429 S.W.3d 389.
We review division-of-marital-property cases de novo. McClure v. Schollmier-McClure, 2011 Ark. App. 681, 2011 WL 5430509. However, a trial court’s findings of fact with respect to division of property will be affirmed unless clearly erroneous or clearly against the preponderance of the evidence. Barnes v. Barnes, 2010 Ark. App. 821, 378 S.W.3d 766. 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. Id.
The assets at issue in this appeal are a 357-acre tract of real property located in Searcy County and Eric’s thirty-percent ownership interest in a limited liability company. The circuit court found that the real property and Eric’s interest in the limited liability company were marital property and divided the property equally.
I. The 357 Acres of Farm Land— The Massey Farm
Sydney and Jessie Horton owned 357 acres of farm land in Searcy County. Eric’s father, Roy Massey, owned farm land that was adjacent to the Horton farm. Roy Massey leased the Horton farm for eight years and took care of the Hortons’ cattle. Roy learned that the Hortons would be willing to sell their farm and cattle. Roy testified that he negotiated the purchase price with the Hortons. In July 2000, Eric executed an “Offer and Acceptance” |sto purchase the Hortons’ farm. Eric applied for financing with First Community Bank and filled out a Residential Loan Application. The loan application provided that the purpose of the loan was “to purchase” 357 acres of farm land. First Community Bank prepared a promissory note in the amount of $185,000. The borrower/eonsumer on the note was Eric. The promissory note stated on its face that the purpose of the note was for the “consumer: to purchase farm land.” The promissory note was guaranteed by Eric’s father, Roy Massey. First Community Bank also prepared a mortgage as collateral for the promissory note. The mortgage described the 357 acres of real property as collateral for the promissory note, and the mortgagors were Eric and Kristi Massey. This mortgage was executed by each party and contained a provision that provided in pertinent part: “[the mortgagor] is or will be lawfully seized of the estate conveyed by this security instrument and has the right to grant, bargain, convey, sell, and mortgage the property.”
On October 30, 2000, the purchase of the Hortons’ farm was completed. A warranty deed was duly executed and filed for record and the appropriate real estate tax stamps were affixed thereto. The grantors of the deed were “Sydney and Jessie Horton” and the grantee of the deed was “Eric Massey.” (Hereinafter, the 357-acre real property will be referred to as the “Massey Farm.”)
In 2001, Eric and Roy borrowed an additional $40,000 to construct a cabin on the farm. Eric and Roy were co-makers of this note. The credit proposal indicates that the |4purpose of this loan was for the “construction of cabin on farm property— 2nd home.” Kristi and Eric executed a mortgage on the cabin in favor of First Community Bank as collateral for the loan, and this mortgage also included the same provision as the Massey Farm mortgage stating that the mortgagors were lawfully seized of the property. The parties also granted a second mortgage on the Massey Farm as additional collateral.
Roy Massey testified that it was his intent that the acquisition of the Massey Farm was a gift to his son Eric as part of his (Roy’s) estate planning. Roy testified that he (Roy) had made all the payments toward the loans associated with the Massey Farm and that he paid all the taxes and utilities. Roy testified that Eric never made a payment on the loans. Roy testified that “it was certainly a gift” and that he “put the deal in Eric’s name” because he wanted the Massey Farm to belong exclusively to Eric.
John Adams is the banker with First Community Bank who handled Eric’s original loan for the purchase of the Massey Farm and the second loan for the construction of the cabin. Mr. Adams testified that Roy Massey approached him and stated that he wished to purchase the property for Eric. Roy instructed Mr. Adams to put the loan in Eric’s name, with Roy as guarantor, and to put the deed in Eric’s name only. Mr. Adams indicated that he asked both Eric and Kristi to sign the mortgages on the notes because they were a married couple and the bank was protecting its interest against potential dowery rights. Mr. Adams testified that all the loan payments had been made by Roy Massey, and that there remained an outstanding balance.
|sEric testified that the Massey Farm was given to him by his father. He stated that he constructed the cabin on the property and worked on the farm, and that his father took care of all his financial needs, including making the loan payments. Eric acknowledged that the parties’ joint tax returns included mortgage-interest deductions that were derived from payments on the First Community Bank loans, and that the joint tax returns showed income received from the sale of timber and cattle from the farm. However, Eric maintained that he had never sold any cattle and that the income from the sale of cattle was also a gift from his father.
Kristi testified that she erroneously thought that, at the time the Massey Farm was purchased, her name was on the deed. She stated that she and Eric bought the farm to build a house on and retire. Kristi stated that the parties’ joint tax returns reflected income from the sale of cattle as well as timber from the Massey Farm. She assumed that the payments on the notes were being covered by the annual sale of cattle by Eric and his father.
Eric argues on appeal that the trial court erred in concluding that the Massey Farm was marital property. He argues that the farm was a gift to him from his father. We, however, conclude that the trial court’s finding that the Massey Farm was marital property was not clearly erroneous.
Although there was testimony by Eric and his father purporting to demonstrate that the Massey Farm was a gift, we give due deference to the trial court’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. See Blalock v. Blalock, 2018 Ark. App. 659, 2013 WL 5964485. There was considerable evidence, relied on by the trial court, tending to show that the farm was not a gift.
The record shows that Eric personally signed an offer and acceptance to buy the farm property from the Hortons. First Community Bank subsequently prepared a credit proposal on Eric. When Eric signed the residential loan application, it provided that the purpose of the loan was “to purchase”, the farm. Eric signed the promissory note in favor of First Community Bank, and the note described the purpose of the loan as “consumer: to purchase farm land.” Both Eric and Kristi signed a mortgage on the property, and the mortgage provided that the mortgagor “is or will be lawfully seized of the estate conveyed by this security instrument and has the right to grant, bargain, convey, sell, and mortgage the property.” The joint tax returns showed that the note payments made to First Community Bank produced mortgage deductions that were claimed by Eric and Kristi. Finally, there was evidence from which the trial court could conclude that Eric and his father sold calves and timber off the land to contribute to the note payments. On the entire evidence, we are not left with a definite and firm conviction that the trial court made a mistake in finding that the Massey Farm was not a gift as Eric claimed, but instead constituted marital property. Accordingly, the trial court did not err.
II. ERAK, LLC
The other asset at issue in this case is a company known as ERAK, LLC. In September 2008 (during the marriage), Roy Massey and Eric Massey purchased real property in Faulkner County for $250,000. The warranty deed conveying title on the Faulkner County property 17shows the grantee to be “Roy Gene Massey and Eric Massey.” In March 2009, Roy Massey, Sharon Massey (Eric’s mother) and Eric Massey formed a limited liability company called ERAK, LLC. Roy owned thirty-five percent, Sharon owned thirty-five percent, and Eric owned thirty percent. The Faulkner County property was transferred from Roy Massey and Eric Massey to ERAK, LLC, for the purpose of constructing an apartment complex. In order to develop the property, Roy and Sharon Massey, as members of ERAK, LLC, and as individuals, secured $926,400 in financing. As of June 16, 2011, the balance sheet of ERAK, LLC, showed the net worth of the company to be $251,414.09.
Both of Eric’s parents testified that Eric’s thirty-percent interest in ERAK, LLC, was a gift from them. Although Eric’s name was on the deed to the real property transferred to the company, both Roy and Sharon testified that they had purchased that property. They said that Eric had made no financial contributions.
Both Eric and Kristi testified that Eric worked for eight months as a construction worker in the development of the apartments. Eric stated that he was the president of a company called E. Massey Construction. Kristi stated that Eric’s job during that time was to build apartments for ERAK, LLC, that he was contributing sweat and labor to the venture, and that “it was an investment we were making.”
Eric argues that the trial court erred in finding that his thirty-percent share of ERAK, LLC, was marital property. We affirm this finding as well. In concluding that Eric’s interest in the LLC was not a gift, the trial court acknowledged the testimony that no marital funds had been expended in purchasing the real property placed into the company or the | ^construction of the apartments. However, the trial court relied on the undisputed testimony that Eric personally worked for eight months in constructing the apartment complex, which left Kristi with the burden of paying their marital expenses during that time through income from her employment. The trial court thus found that the business venture had been capitalized by the older Masseys, while Eric’s contribution was his construction skill and labor, all of which were contributed during the marriage. The chief distinction between a gift and a sale is consideration. Scott, supra. Here, there was evidence that Eric’s “sweat equity” was his consideration for his interest in the company. We hold that the trial court did not clearly err in determining that Eric gave consideration for his interest in ERAK, LLC, and therefore that this property was not a gift excepted from the parties’ marital assets.
Affirmed.
PITTMAN and WALMSLEY, JJ., agree.
. On July 23, 2010, the loan was renewed by First Community Bank, and the purpose of the renewal loan indicates that the "Purpose of Renewal: Purchase farm land and convert construction loan to perm[anent]." | [
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RITA W. GRUBER, Judge.
| Appellants Jerry L. Campbell and James Frank Campbell filed this action after the death of their father, James Finis Campbell (Mr. Campbell), against Mary Graf. They alleged fraud, conversion, unjust enrichment, and breach of fiduciary duties surrounding Ms. Grafs involvement in and alleged undue influence over Mr. Campbell’s financial affairs and in the management of his trust. Ms. Graf denied the allegations and filed a counterclaim, alleging conversion by Jerry and James and asking for repayment of certain funds. The circuit court entered an order dismissing appellants’ claims of undue influence and ordering appellants to restore to Ms. Graf funds they removed from Mr. Campbell’s accounts. It also awarded Ms. Graf reimbursement for amounts she expended to protect the assets of Mr. Campbell’s trust. Appellants bring two points on appeal: (1) the circuit court erred in ordering them to restore Umoney withdrawn from Mr. Campbell’s bank accounts; and (2) the circuit court erred in denying their request for setoff of $11,000 of Mr. Campbell’s money that was allegedly spent by Ms. Graf solely for her own benefit. We remand with regard to point one and affirm regarding point two.
Mr. Campbell passed away on December 15, 2006, at the age of ninety-two. Appellants are his only surviving children. This lawsuit concerns the disposition of some of Mr. Campbell’s assets. A brief history of the facts surrounding these assets is helpful. After the death of Mr. Campbell’s wife in 1999, he executed a will and trust, pursuant to which all of his assets would flow from his estate into the James Finis Campbell Family Trust. In 2003, Mr. Campbell met Ms. Graf, and the two remained close companions until his death. Despite Mr. Campbell’s numerous marriage proposals, they never married. At Mr. Campbell’s death, his trust named Ms. Graf as successor trustee.
Twice in 2003, Mr. Campbell made amendments to the trust, leaving one condo that he owned to Ms. Graf in the first amendment and leaving two condos to Ms. Graf in the second amendment. On January 10, 2005, he again amended the trust, deleting Ms. Graf as a beneficiary under the trust and leaving all of his property to appellants. On March 9, 2005, appellants filed a petition for guardianship of Mr. Campbell, alleging that he lacked capacity to manage his affairs. Mr. Campbell’s deposition was taken and he was evaluated by a neurologist who, according to the court, found him competent and gave a glowing appraisal of his mental capacity and awareness. Appellants voluntarily dismissed the petition in October 2005. During the pendency of this guardianship case, on March 22, 2005, Mr. Campbell [(¡executed a fourth amendment to the trust, leaving one-sixth of his estate to each of six beneficiaries, including Ms. Graf and each of the appellants.
At some point during their relationship, Ms. Graf and Mr. Campbell bought a condo together, which they held as rental property before Ms. Graf sold her house. They each paid $21,000 for the property and took out a loan for the balance. They maintained a joint bank account at Bank of the Ozarks into which they put the rental proceeds. They then used these funds to pay the mortgage, dues, and related expenses for the jointly owned condo. After Ms. Graf sold her house, she paid Mr. Campbell $21,000 for his share of the condo and moved in. Mr. Campbell deposited $11,000 of that payment into their joint account, and Ms. Graf used the money to pay expenses for the condo.
In addition to the joint account at Bank of the Ozarks, Mr. Campbell had several accounts at Regions Bank, including a checking account that was payable on death to Ms. Graf and a $25,000 certificate of deposit. It was the funds from these Regions accounts that Ms. Graf alleged appellants had converted and that the court ordered appellants to return. Although the parties dispute whether appellants should be required to return the funds, they do not dispute that appellants procured the funds through a longtime neighbor of Mr. Campbell, Frances Du-bach.
Ms. Dubach testified at the hearing that Mr. Campbell had given her a general durable power of attorney in March 2005 in order to sign an extension of a contract he had entered into for the sale of his condo. She said that Ms. Graf called her and told her that the realtor would bring her a power of attorney so that she could sign an extension for the closing. She |4said that James had called her after that transaction asking her “what was going on,” and she told him she did not want to have Mr. Campbell’s power of attorney. Jerry’s wife, Lindalyn, brought papers for her to sign to revoke the power of attorney, but Ms. Dubach said that James and Jerry thought it might be to their advantage to have someone on their side, so she did not revoke it. In early December 2006, while Mr. Campbell was in hospice care, appellants, through Lindalyn, contacted Ms. Dubach to ask if she would go with them to Regions Bank. On December 7, 2006, Ms. Dubach, accompanied by Lin-dalyn and Jerry, went to Regions, taking Ms. Dubach’s power of attorney, and changed the ownership of several of Mr. Campbell’s accounts. James and Jerry were added as co-owners of a checking account (containing approximately $41,000 at that time), which was payable on death to Mary Graf, and as co-owners of Mr. Campbell’s CD, worth $25,000. While it is not clear from the briefs exactly when these funds were removed by James and Jerry, it is clear that they took the money out of these accounts. Mr. Campbell died on December 15, 2006.
This lawsuit began when James and Jerry filed a complaint against Ms. Graf on February 20, 2007. Their final complaint, the third amended complaint, was filed on February 28, 2008, and alleged in relevant part that Ms. Graf had breached her duties as trustee of Mr. Campbell’s trust, that Ms. Graf had a power of attorney for Mr. Campbell, and that she had “taken control over him, isolating him from family members and others.” Appellants alleged that she deposited $11,000 that she paid Mr. Campbell for his share in their jointly owned condo into a Bank of the Ozarks account controlled by her. According |fito the complaint, Ms. Graf proceeded to convert this money to her sole use and benefit. In Ms. Grafs amended answer to third amended complaint and amended counterclaim, she denied their allegations, but admitted that she purchased Mr. Campbell’s share of their jointly owned condo for $21,000. She alleged “on information and belief’ that he deposited $10,000 of that amount into one of his Regions Bank accounts and that he deposited $11,000 into their jointly owned ac count on February 15, 2005. She affirmatively claimed that appellants unlawfully converted to their own use $78,000 of the cash assets that belonged to the James F. Campbell Estate, and thus to the trust, which was the sole beneficiary of the estate. Specifically, she alleged that Ms. Dubach, as appointed attorney in fact for Mr. Campbell through her power of attorney, agreed to assist appellants and Linda-lyn in changing ownership of Mr. Campbell’s Regions Bank accounts without Mr. Campbell’s knowledge and consent. She contended that appellants then removed all funds from the accounts, totaling more than $78,000. They then represented to Ms. Graf that the estate had no money, causing the mortgage holder on Mr. Campbell’s condos to foreclose on the condos belonging to the trust. She also alleged that appellants had attempted to perpetrate a fraud upon the court by concealing assets of the estate and trust. She asked the court to dismiss appellants’ complaint and order them to pay the estate $78,000 plus interest.
After the hearing, the circuit court entered an order dismissing appellants’ claims for lack of capacity and lack of competence of Mr. Campbell and for undue influence by Ms. Graf. The court found that the fourth amendment to the trust was the operative document for distribution of trust assets and ordered the assets to be gathered by Ms. Graf, the trustee, | ,¡and distributed pursuant to the trust. The court also ordered appellants to restore to Ms. Graf the funds removed by them due to Ms. Dubach’s change of ownership of the accounts on December 7, 2006. Specifically, the court ordered appellants to pay $40,449.75, representing the balance of the amount in the payable on death account, and $25,000, representing the balance of the certificate of deposit. The court also ordered appellants to restore to themselves and Ms. Graf $8,759.62, representing the balance of another Regions checking account they had liquidated. Finally, the court awarded to Ms. Graf $21,628.04 to be satisfied from the trust assets for sums she spent to protect trust assets.
When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is whether the court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Buck v. Gillham, 80. Ark.App. 375, 378-79, 96 S.W.3d 750, 753 (2003). Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).
I.
For their first point on appeal, appellants contend that the circuit court erred in ordering them to restore money that was withdrawn from bank accounts by the rightful owners of the accounts. Specifically, they argue that the general power of attorney given by Mr. Campbell to Ms. Dubach was valid and gave her authority to change the ownership of the accounts. They argue that, because the court did not make a finding that the power of attorney was invalid and because they removed the funds “well before” the court ordered the accounts frozen, there was no basis for ordering them to restore the money.
|7The relevant portions of the power of attorney to Ms. Dubach provide as follows:
I, JAMES F. CAMPBELL, a resident of Van Burén County, Arkansas, do hereby designate FRANCES DUBACH, as my agent and attorney (subsequently called my agent), in my name and for my benefit:
1. General Grant of Power. To exercise or perform any act, power, duty, right or obligation whatsoever that I now have or may hereinafter acquire relating to any property, real or personal, tangible or intangible, now owned or hereafter acquired by me, including, without limitation, the following specifically enumerated powers, I grant to my agent full power and authority to do everything necessary in exercising any of the powers herein granted as fully as I might or could do if personally present, with full power of substitution or revocation, hereto ratifying and confirming all that my agent shall lawfully do or cause to be done by virtue of this power of attorney and the powers herein granted.
D. Banking Powers. To make, receive and endorse checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit in banks, savings and loan associations and other institutions, execute or lease such deeds of trust of other security agreements as may be necessary or proper in the exercise . of the rights and powers herein granted;
2. Interpretation and Government Law. This instrument is to be construed and interpreted as a general durable power of attorney. The enumeration of specific powers herein is not intended to, nor does it, limit or restrict the general power herein granted to my agent. This instrument is executed and delivered in the State of Arkansas, and the laws of the State of Arkansas shall govern all questions as to the validity of this power and the construction of its provisions.
The court’s order contains nothing to indicate whether it found this power of attorney valid or invalid. And, although the court recognized on the first page of its seven-page order that Ms. Graf filed a counterclaim for conversion, it also did not indicate whether it found that appellants had converted these funds. Ms. Grafs counterclaim alleged that appellants unlawfully converted to their own use $78,000 of the cash assets belonging to the |sJames F. Campbell Estate, and thus to the trust, which was the sole beneficiary of the estate. Specifically, she alleged that they persuaded Ms. Dubach, who held a power of attorney for Mr. Campbell, to assist them in changing ownership of Mr. Campbell’s accounts without his knowledge and consent. She contended that appellants then removed all funds from the accounts, totaling'more than $78,000. They were able to do this precisely because Ms. Dubach had the apparent authority to change ownership of the accounts.
Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights. Dillard v. Wade, 74 Ark.App. 38, 45 S.W.3d 848 (2001). The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiffs rights. Volgelgesang v. Volgelgesang, 2010 Ark.App. 178, at 4, 2010 WL 653573 (affirming finding of conversion from victim’s bank account that were initially procured through a power of attorney).
The relevant part of the court’s order provides as follows:
It is further considered, ordered; and adjudged that the accounts payable upon death shall be restored to the owner of the accounts prior to the December 7, 2006 change of ownership under Frances Dubaeh’s power of attorney; specifically, that the plaintiffs Jerry Campbell and James Frank Campbell jointly and severally should be and are hereby ordered to restore to Mary Graf by payment to her forty thousand four hundred forty nine dollar [sic] and seventy five dollars ($40,449.75) [sic] representing the December 6, 2006 balance of Regions Bank Checking No. [], and twenty five thousand dollars ($25,000.00) representing the balance of Regions Bank Certificate of Deposit No. []on the December 6, 2006 before the transfer of ownership; and that Jerry Campbell and James Frank Campbell jointly and severally should be and are Rhereby ordered to restore to themselves and Mary Graf jointly eight thousand seven hundred fifty nine dollars ($8,759.62) [sic] representing the balance of Regions Checkin-gAecount No. []before the December 7, 2006 change of ownership^]
The only finding to support this is contained in paragraph 23:
The accounts payable upon death shall be restored to the owner to the accounts prior to the December 7, 2006 change of ownership under Ms. Dubach’s power of attorney. The plaintiffs Jerry L. Campbell and James Frank Campbell shall be ordered to pay to Mary Graf the December 6, 2006 balance of Regions Bank checking account no. [ ] of Forty thousand four hundred forty nine dollars and seventy five cents ($40,449.75) and Regions Bank Certificate of Deposit No. [ ] of twenty five thousand dollars ($25,000); and to restore to Mary Graf and the plaintiffs jointly eight thousand seven hundred fifty seven dollars and sixty two cents ($8,759.62), representing the December 6, 2006 balance in Regions Checking Account no. [ ].
The circuit court made no findings regarding whether Ms. Dubach’s power of attorney was valid or whether Ms. Graf established her claim for conversion. It is unclear from this order on what basis the court required appellants to return the funds. We cannot review this portion of the court’s order on appeal without findings sufficient to explain and support the court’s ruling. Therefore, we remand for further findings on this issue.
II.
For their second point on appeal, appellants argue that the court erred in not awarding them a setoff of $11,000 they claim belonged to Mr. Campbell that Ms. Graf spent solely for her own benefit. They suggest that Ms. Graf fraudulently converted this money to her own use. Mr. Campbell testified in a deposition taken during the guardianship proceeding that Ms. Graf paid him $21,000 for his interest in their jointly owned condo. He said that part of that $21,000 was used to pay a bill that he owed to a retirement home and that Ms. Graf “gave [him] a check for the difference of $11,000,” which he put into their jointly owned |inaccount. Ms. Graf testified at the hearing in this case that she paid Mr. Campbell $21,000 for his interest in the condo and that $11,000 of that amount was deposited into their joint account.
Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). In this case, appellants do not argue that the account was not a joint account, co-owned by Mr. Campbell and Ms. Graf. Rather, they claim that Ms. Graf, and not Mr. Campbell, deposited the $11,000 check into the account and then spent it solely for her own benefit. The circuit court determined that Mr. Campbell voluntarily deposited this $11,000 into an account jointly owned by Mr. Campbell and Ms. Graf. It found that this act was not done under the exertion of undue influence by Ms. Graf.
Generally, funds deposited into a joint account are owned by both parties. Ark. Code Ann. § 23-47-204 (Repl.2012). Moreover, contrary to appellants’ argument that Ms. Graf testified that she put the $11,000 into the account, Ms. Graf said only that $11,000 was put into their joint account. She did not indicate by whom. Mr. Campbell testified that he deposited the check. This is a matter of credibility for the fact-finder. Appellants have failed to demonstrate that the circuit court clearly erred on this issue.
Accordingly, we affirm the court’s denial of appellants’ request for a setoff as stated above. With regard to the court’s ruling requiring appellants to restore funds taken by them from Mr. Campbell’s Regions accounts, we remand for further findings to clarify the court’s order.
| T1 Affirmed in part; remanded in part for further findings.
WHITEAKER and VAUGHT, JJ., agree.
. This finding of reimbursement was not appealed.
. Appellants dispute whether Jerry was present at the Bank. | [
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WAYMOND M. BROWN, Judge.
| Appellant appeals the circuit court’s termination of his parental rights as to B.P., born March 15, 2004; A.P., born June 26, 2006; and K.P., born October 11, 2007. Appellant’s counsel has filed a motion to withdraw and a no-merit brief, pursuant to Linker-Flores v. Arkansas Department of Human Services, and Arkansas Supreme Court Rule 6—9(i), stating that there are no meritorious grounds to support an appeal. The clerk mailed a certified copy of counsel’s motion and brief to appellant, informing him of his right to file pro se points for reversal. Appellant filed pro se points with the clerk; appellee Arkansas Department of Human Services (DHS) did not file a responsive brief. Appellant’s pro se points are that (1) his counsel below, Shelton Sargent, was ineffective for numerous ^reasons; (2) the circuit court failed to acknowledge and give appropriate weight to certificates he received for completion of various classes including, but not limited to, a drug treatment program and parenting classes; and (3) that DHS, knowing appellant was incarcerated during the case, should have made more than the one unsuccessful attempt it made to locate him. None of appellant’s arguments require reversal; therefore, we affirm the circuit court’s order terminating appellant’s parental rights and grant counsel’s motion to withdraw.
A protective services case was initially opened in Pope County on January 9, 2010, due to educational neglect of the children by their mother, Sherry Ritche-son. The case was transferred to Crawford County on April 28, 2010. After the transfer, Ms. Ritcheson was never able to give her caseworker a current address; B.P. missed two weeks of school while with appellant due to an alleged abscess for which appellant failed to take B.P. to the doctor; and, once back with Ms. Ritche-son, B.P. did not attend school the week following his two-week absence with appellant. B.P.’s school filed a family-in-need-of-services (FINS) petition and after a hearing on June 2, 2010, a 72-hour hold was placed on all three children. On June 7, 2010, DHS filed a petition for emergency custody and dependency-neglect of all three children. The petition acknowledged appellant as the father of all three children, but stated that his current address was unknown. On the same day, the court entered an order granting emergency custody and finding probable cause to believe the children were dependent-neglected.
Following a June 14, 2010 hearing, the court entered an order on June 18, 2010, finding probable cause that the children were dependent-neglected and that the | .-¡emergency conditions that necessitated removal of the children continued and so required the custody of the children to remain with DHS. Following a July 80, 2010 hearing, the court entered an order on August 5, 2010, adjudicating the children dependent-neglected. In that order, the court ordered appellant to complete parenting classes, submit to a psychological evaluation, undergo a drug and alcohol assessment, visit the children regularly, and resolve all outstanding charges if he wanted to be considered as a placement option for the children.
Following a hearing on January 4, 2011, the court entered a review order on May 24, 2011, in which it stated that appellant had not complied with the case plan. Specifically, it stated that he had not visited the children or had contact with DHS during the review period and had been in the Crawford County jail since December 18, 2010, on a $100,000.00 bond on pending drug and weapons charges. Appellant was again ordered to resolve his outstanding criminal charges and was not granted visitation at that time.
Following a May 31, 2011 hearing, the court entered a permanency planning order on August 12, 2011. Noting Ms. Ritcheson’s partial compliance, the court left the goal of the case plan as reunification, but added a concurrent goal of adoption. The court stated that appellant was still incarcerated. Following an August 23, 2011 hearing, the court entered a fifteen-month review order on January 20, 2012, in which it kept reunification and adoption as the concurrent goals of the case. The court stated that DHS had had no contact with appellant, who was still reported to be incarcerated, and that DHS had not been able to locate appellant through the prison website. After a January 24, 2012 hearing, |4the court entered a review order on February 6, 2012, in which it dropped the concurrent goal of adoption, keeping the goal of the case as reunification only. No reference to appellant was made in this order.
Following a June 26, 2012 hearing, the court entered a permanency planning order on July 11, 2012, giving Ms. Ritcheson three months to obtain the return of the children and permitting her to begin a trial home placement with A.P. Following an August 21, 2012 hearing, the court entered an order on September 20, 2012, changing the goal of the case to adoption. Therein, the court stated that appellant had not complied with the case plan as he had not appeared at any hearings, visited with the children, nor participated in any services. The court specifically found that appellant (1) failed to obtain and maintain stable and appropriate housing, stable transportation, and stable employment and income sufficient to care for the children; (2) failed to submit to random drug testing and psychological evaluation; (3) failed to complete a drug and alcohol assessment; and (4) failed to resolve all open criminal charges.
DHS filed a petition to terminate appellant’s and Ritcheson’s parental rights to the children on October 19, 2012, on grounds that:
1. The children had been adjudicated dependent-neglected and had continued to be out of the custody of appellant for twelve months and the conditions that necessitated the children’s removal had not been remedied despite meaningful effort by DHS to rehabilitate the parents and correct the conditions;
|s2. The children had lived outside the home for a period of twelve months and appellant had willfully failed to provide significant material support in accordance with his means or to maintain contact with the children due to his incarceration during a substantial portion of the case;
8. Appellant abandoned the children;
4. Ms. Ritcheson had executed consent to termination of her parental rights or adoption of the juvenile subject to the courts approval;
5. Other factors or issues arose subsequent to the filling of the original petition for dependency-neglect that demonstrate that return of the children to appellant’s custody is contrary to the children’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parent has manifested the incapacity of indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent return of the children to his custody where appellant has failed to establish a safe, appropriate, stable home for the children and failed to establish safe, appropriate transportation for the children which puts them at risk of harm;
6. Appellant is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the children’s lives where he has been sentenced on February 17, 2012, as a habitual offender to 480 months in the Arkansas Department of Correction for fraud to obtain drug paraphernalia and to 720 months for manufacturing, delivering and possessing a controlled substance; and
7.Appellant had subjected the children to aggravated circumstances including abandonment and little likelihood of successful reunification considering 16appellant’s very long jail sentence and his lack of involvement in the children’s lives.
On January 25, 2018, the court appointed Shelton Sargent as appellant’s attorney. On February 8, 2012, Sargent filed a motion for continuance on the termination of parental rights (TPR) hearing, which was then scheduled for April 16, 2013, to await the outcome of appellant’s appeal of his criminal case.
Following an April 16, 2013 hearing, at which appellant appeared, the court entered an order on May 2, 2013, terminating appellant’s rights to the children. As a ground for terminating his parental rights, the court cited appellant’s having been sentenced in a criminal proceeding to a period of time that constitutes a substantial portion of the children’s lives. The court found that appellant had been convicted of multiple felonies and was presently incarcerated in the Arkansas Department of Correction (ADC). The court noted that appellant’s eligible date of parole, while unimportant to the issue of calculation of his sentence, had been extended to a later date due to appellant being charged with possession a knife while in the ADC. As its second ground for terminating appellant’s parental rights, the court cited appellant’s having subjected the 17children to aggravated circumstances in that there is little likelihood that services to appellant would result in reunification. It supported this ground by noting appellant’s lack of progress in rehabilitating himself before he was incarcerated and by there being little likelihood that additional services would result in successful reunification due to the length of appellant’s sentences. It noted appellant’s completion of anger management classes and substance abuse classes in 2008, but stated that “he made no changes to his behavior after taking those classes as the offenses which resulted in his current incarceration occurred in December 2010.” This timely appeal followed.
I. Appellant’s Points
Appellant’s first point on appeal is that his attorney was ineffective because Sargent (1) only consulted appellant for fifteen minutes before the TPR hearing; (2)failed to object to testimony about his 1993 conviction which occurred when he was a minor; (3) failed to object to the denial of appellant’s motion for continuance; (4) failed to note the expiration of and time remaining on sentences from previous convictions; (5) failed to object to his 100-year sentence being entered into evidence; and (6) failed to ask for a continuance of the TPR hearing until the decision in his criminal appeal was entered. Appellant failed to raise these issues below. Arkansas appellate courts will not consider a |Rclaim of ineffective assistance of counsel as a point on appeal unless it was first raised in the trial court.
Appellant’s second and third points on appeal are that (1) the circuit court failed to acknowledge and give appropriate weight to certificates he received for completion of various classes including completion of a 60-day drug treatment program and certificates in parenting, job, and life skills; anger management; drug abuse; and re-entry; and (2) that DHS, knowing appellant was incarcerated during the case, should have made more than the one unsuccessful attempt it made to locate him. Again, neither of these arguments were made below; therefore we do not consider them.
II. Counsel’s Brief and Motion
In compliance with Linker-Flores and Rule 6—9(i), counsel ordered the entire record and found that after a conscientious review of the record there are no issues of arguable merit for appeal. After carefully examining the record and the brief presented to us, which included all other adverse rulings, we conclude that the appeal is wholly without merit. Accordingly, we affirm the termination of appellant’s parental rights and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
WYNNE and HIXSON, JJ„ agree.
. 359 Ark. 131, 194 S.W.3d 739 (2004).
. (2011).
.Among other issues, Ms. Ritcheson failed to attend one AA/NA meeting per week, failed to obtain an AA/NA sponsor, tested positive for alcohol at a level of .249g of alcohol/210L of breath, and her trial placement with her children had ended unsuccessfully after she supervised them while intoxicated by alcohol.
. Ark.Code Ann. § 9-27-34 l(b)(3)(B)(i)(a) (Supp.2011).
. Ark-Code Ann. § 9-27-34 l(b)(3)(B)(ii)(a).
. Ark.Code Ann. § 9-27-341(b)(3)(B)(iv).
. Ark.Code Ann. § 9-27-34l(b)(3)(B)(v)(a).
. Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
. Ark.Code Ann. § 9-27-341(b)(3)(B)(viii).
. Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i).
. Ms. Ritcheson’s parental rights were terminated following a separate hearing on January 18, 2012, after DHS filed its petition to terminate both appellant’s and Ms. Ritche-son's parental rights to the children, but prior to appellant's parental rights being terminated.
.Appellant had a 1993 burglary conviction for which he was sentenced to five years in the ADC with fifteen years suspended, a 2008 theft conviction for which he was sentenced to two years in the ADC with eight years suspended, and his most recent conviction for manufacturing methamphetamine and possession of drug paraphernalia for which he was sentenced to sixty years and forty years, respectively.
. As noted above, one ground cited by the court for termination of appellant’s parental rights was appellant’s having been sentenced to a combined 100-year sentence for manufacturing methamphetamine and possession of drug paraphernalia. Appellant appealed these convictions. Those convictions were reversed by this court and a new trial was granted in Porta v. State, 2013 Ark. App. 402, 428 S.W.3d 585.
. Calahan v. Ark. Dep’t. of Human Servs., 2013 Ark. App. 508, 429 S.W.3d 372 (citing Weaver v. Ark. Dep’t of Human Servs., 2011 Ark. App. 680, 2011 WL 5429565). | [
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CLIFF HOOFMAN, Justice.
| Appellant Carmella Bell appeals from the circuit court’s dismissal with prejudice of her petition to inherit from the Estate of Carl McDonald as a pretermitted child. On appeal, appellant argues (1) that the circuit court erred in finding that she did not meet the statutory requirements to inherit as an illegitimate child under Ark. Code Ann. § 28-9-209(d) and in dismissing her petition on this basis; and (2) that the circuit court’s interpretation and application of the statute violated her rights to due process and equal protection under the United States Constitution. We assumed jurisdiction of this case pursuant to Ark. R. Sup.Ct. l-2(b)(3), (5), and (6), as it involves issues of statutory and federal constitutional interpretation. We affirm.
Carl F. McDonald died on November 30, 2011, and the personal representative of his estate, appellee Lana Eagle McDonald, filed a petition to probate his will on February 14, 2012. The will, which was dated February 2, 2010, made no mention of appellant and stated [2that the decedent had no children or other descendants. All of the decedent’s property was devised to his sister, Rachael Phillips.
On February 27, 2012, and March 1, 2012, appellant filed identical pro se notices of her intent to contest the will, alleging that she was the decedent’s sole child and heir. On May 24, 2012, after retaining counsel, appellant filed a Petition of Pre-termitted Child to Receive Distribution, a Petition for Contest of the Will, and a Demand for Notice of Proceedings. The petition to receive distribution claimed that appellant was the pretermitted child of the decedent, that she was entitled to receive all of his estate as his sole heir, and that she was asserting her claim against his estate within 180 days of his death as required under Ark. Code Ann. § 28-9-209(d).
On June 4, 2012, appellee filed a motion to dismiss appellant’s petition to receive distribution as a pretermitted child, asserting that appellant was not a child of the decedent and that she was not entitled to inherit from the decedent’s estate because she did not timely comply with the requirements of Ark.Code Ann. § 28-9-209(d). Specifically, appellee alleged that appellant failed to file an action or claim against the estate and to establish her paternity within the 180-day period required under the statute. Appellee noted that appellant’s mother, Regina Wingard, had recently filed a motion to establish paternity in a separate division of the White County Circuit Court, and appellee attached a copy of this motion as an exhibit. Wingard asserted in that motion that appellant was actually the ^decedent’s child, although appellant had been presumed to be the legitimate child of Win-gard and her ex-husband, Paul McDonald, who was also the decedent’s brother, because Wingard and Paul McDonald had been married at the time of appellant’s birth. Wingard requested that scientific paternity testing be conducted to formally establish paternity of appellant.
In response to appellee’s motion to dismiss, appellant argued that she had filed her petition to receive distribution, which she asserted was a claim against the decedent’s estate, within the 180-day time period required by the statute. Appellant further asserted that her mother had commenced a paternity action on or about May 21, 2012, and that the conditions listed in Ark.Code Ann. § 28-9-209(d)(l)-(6) do not have to be satisfied within 180 days of the decedent’s death. Appellant argued that it was unreasonable to require that a paternity action be completed within 180 days and that the additional burden that would be placed on an illegitimate child from this interpretation of the statute would be a violation of her constitutional rights to due process and equal protection.
After a hearing was held on appellee’s motion to dismiss, the circuit court entered an order on March 28, 2013, dismissing appellant’s petition with prejudice due to her failure to comply with Ark.Code Ann. § 28-9-209(d). The court rejected appellant’s interpretation of the statute and found that appellant had failed to satisfy any of the conditions set forth in section 28-9-209(d)(l)-(6) within 180 days of the decedent’s death. The court also rejected appellant’s constitutional argument that this construction of the statute violated her rights to |4due process and equal protection. The court further found that appellant’s petition to receive distribution did not constitute an action commenced or claim asserted against the estate. Appellant filed a timely notice of appeal from the circuit court’s order.
On appeal, appellant argues that the circuit court erred in finding that she did not meet the statutory requirements to inherit as an illegitimate child and in dismissing her claim against the estate with prejudice. When reviewing a circuit court’s decision on a motion to dismiss for failure to state a claim pursuant to Ark. R. Civ. P. 12(b)(6), we treat the pleadings and the allegations in the complaint as true and view them in the light most favorable to the plaintiff. Fitzgiven v. Dorey, 2013 Ark. 346, 429 S.W.3d 234. Although we review probate proceedings de novo, we do not reverse the circuit court’s findings un less they are clearly erroneous. Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005). We also review issues of statutory interpretation de novo and are not bound by the circuit court’s interpretation of a statute. Id. However, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id.
The primary issue in this appeal is the interpretation of Ark.Code Ann. § 28-9-209(d) (Repl.2012), which is set forth below:
(d) An illegitimate child or his or her descendants may inherit real or personal property in the same manner as a legitimate child from the child’s mother or her blood kindred. The child may inherit real or personal property from his or her father or from his or her father’s blood kindred, provided that at least one (1)of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father:
(1) A court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this | sSection;
(2) The man has made a written acknowledgment that he is the father of the child;
(3) The man’s name appears with his written consent on the birth certificate as the father of the child;
(4) The mother and father intermarry prior to the birth of the child;
(5) The mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or (6)The putative father is obligated to support the child under a written voluntary promise or by court order.
The cardinal rule of statutory construction is to give effect to the intent of the legislature. Bums, supra. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory interpretation. Id.
Appellant first argues that the circuit court erred in finding that her petition to receive distribution as a pretermitted child did not qualify as a timely “action commenced” or “claim asserted” against the decedent’s estate under section 28-9-209(d). She contends that her petition clearly asserted a claim against the estate by asserting her right to inherit from the decedent, that it was filed with a court of competent jurisdiction that was handling the probate matter, and that the petition was filed within 180 days of the decedent’s death. We need not address the merits of this particular contention, however, because we find our decision on appellant’s next argument to be dispositive of her first point on appeal.
Appellant next contends that the circuit court erred in interpreting the statute to require that not only must an action be commenced or a claim asserted within 180 days of a decedent’s death, one of the six conditions listed in subsection (d) must also be completed |6within that time period. According to appellant, the 180-day time limitation contained in subsection (d) applies only to the filing of a claim or commencement of an action, not to the requirement in the statute that at least one of the conditions be satisfied. As sup port for this argument, appellant submits that five out of the six conditions require compliance prior to the father’s death and that there would be no reason for the legislature to apply the 180-day time limitation to these conditions. Further, with regard to subsection (d)(1), which was the only condition that appellant claimed to be satisfied in this case, appellant asserts that her mother commenced a paternity action in a court of competent jurisdiction within the 180-day time period and argues that a litigant has little control over the completion of such an action. Thus, she contends that the circuit court erred in dismissing her petition while the paternity action was pending.
With respect to appellant’s argument that the paternity action had been commenced, if not concluded, within 180 days of the decedent’s death and that this was sufficient to prevent dismissal of her petition, appellee correctly notes that the copy of the motion to establish paternity filed by appellant’s mother that is included in the addendum and the record is not file-marked by the circuit court. Appellee thus contends that appellant has failed to demonstrate that a paternity action was in fact filed within the required time period in a court of competent jurisdiction.
Regardless of whether appellant has shown that a paternity action was timely filed, however, this court has previously interpreted section 28-9-209(d) as requiring that at least one of the conditions listed in the subsection be satisfied within the 180-day time period. See |7 Bums, supra. In Bums, an illegitimate child filed a petition for appointment of administrator of his putative father’s estate. While this petition was filed within 180 days, this court held that the petition did not constitute an action commenced or claim asserted against the estate because he had never been determined a legitimate heir of the decedent. Id. at 284, 219 S.W.3d at 137. We also addressed Burns’s second point on appeal, which was virtually identical to appellant’s argument in this case, that he was not required to satisfy one of the six conditions set out in section 28-9-209(d) within 180 days. Id. We rejected Burns’s argument, stating that the plain language of the statute indicated that both requirements, the filing of the claim and the satisfaction of one of the conditions, must be satisfied within the 180-day time frame. Id. at 285, 219 S.W.3d at 138.
Appellant contends that this court is not bound by our holding in Bums, supra, because the portion of the opinion where we address whether the statutory conditions are subject to the 180-day limitation is merely dicta and is not controlling in this case. However, even if appellant is correct in this contention, we find under a plain reading of the language in the statute that one of the six conditions must have been satisfied and an action commenced or a claim asserted against the estate prior to the expiration of the 180-day time period. We note that five out of the six statutory conditions may only be satisfied prior to the putative father’s death and that the remaining condition found in subsection (d)(1), on which appellant relies, uses the past tense and states that “[a] court of competent jurisdiction has established the paternity of the child.... ” Ark.Code Ann. § 28-9-209(d)(1) (Repl.2012) (emphasis added). While appellant attempts to support her suggested interpretation of the statutory | slanguage by referring to other portions of the statute in an attempt to determine the-legislature’s intent, we will not search for legislative intent where the relevant language is plain and unambiguous. McMillan v. Live Nation Entm’t, Inc., 2012 Ark. 166, 401 S.W.3d 473.
Appellant cites to several other cases in an attempt to show that this court has only-applied the 180-day limitation to the filing of the claim or the commencement of the action, and not to the conditions listed in subsection (d)(l)(6). See In re Estate of Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006); In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995); Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988). However, none of these cited cases directly addressed the issue of whether one of the six statutory conditions must be satisfied prior to the expiration of 180 days. In fact, our decision in Boatman, supra, is contrary to appellant’s suggested interpretation of the statute, as we stated in that case that Ark.Code Ann. § 28-9-209 “is a statute creating a new right, and the right is created for only the 180 days.” Id. at 424, 743 S.W.2d at 802. Thus, the circuit court did not err in its interpretation of the statute or in finding that appellant did not timely meet the statutory requirements, and we affirm on this point.
In her second point on appeal, appellant argues that if the circuit court’s interpretation of the statute as requiring completion of one of the six conditions within 180 days of the death of the putative father is correct, then the dismissal of her claim with prejudice denies her the protection guaranteed in the equal-protection and due-process clauses of the federal constitution. She contends that this state’s probate scheme, including the statute in question, places burdens on those attempting to inherit as illegitimate children that are not required of ^legitimate children.
We find no merit to appellant’s constitutional arguments. As appellee asserts, this court has previously rejected an equal-protection argument with regard to this statute in Boatman, supra. In Boatman, we upheld the constitutionality of Ark. Code Ann. § 28-9-209, stating that “the Supreme Court has recognized that a statutory differentiation based solely on illegitimacy can be justified by a state’s interests in preventing spurious claims against intestate estates, and in the maintenance of a prompt and accurate method of distributing an intestate’s property.” Id. at 423, 743 S.W.2d at 801 (citing Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978)). We noted that in Lalli, the Supreme Court upheld a statute that required an illegitimate child to assert a claim during the lifetime of the father. Boatman, 294 Ark. at 423, 743 S.W.2d at 802. We therefore held that our statute, which gives an illegitimate child 180 days to make her claim, clearly does not violate the equal-protection clause. Id.
Appellant recognizes this court’s holding in Boatman, but contends that, in the context of this case, a requirement that an illegitimate child must start and conclude a paternity action within 180 days of a putative father’s death, even if the administration of the estate is not yet concluded, cannot be justified by any state interest. However, as appellee correctly points out in her brief, appellant is not even authorized to file a paternity action on her own behalf under Ark.Code Ann. § 9-10-104 (Repl.2009) because she is a person for whom paternity is presumed. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997). Thus, appellant cannot argue that her equal-protection rights are violated by a requirement that she complete a paternity action within 180 days when she had no right to bring the action at all under a | indifferent statute that is not challenged in this appeal.
With regard to her due-process claim, appellant similarly argues that an interpretation of Ark.Code Ann. § 28-9-209(d) that requires an illegitimate child to have not only begun, but also completed, a paternity suit within 180 days of the decedent’s death “creates constitutional infir mities relating to due process.” However, as stated above, appellant has no right to bring a paternity action in the first instance under the facts in this case; therefore, she cannot show an infringement on her due-process rights from the circuit court’s interpretation of the statute requiring her to have completed a paternity action within 180 days of the decedent’s death. Thus, the circuit court did not err in dismissing appellant’s petition due to her failure to satisfy the statutory requirements, and we affirm.
Affirmed.
BAKER and HART, JJ., dissent.
. This motion to establish paternity has a certificate of service on appellee that is dated May 21, 2012, although there is no file stamp to indicate when and if it was filed with the circuit court. | [
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KAREN R. BAKER, Justice.
|TOn September 28, 2005, a Pike County jury convicted appellant, Mickey David Thomas, of two counts of capital murder and sentenced him to death. We affirmed his conviction and sentence in Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007).
On April 16, 2009, Thomas filed his initial, unverified Rule 87.5 petition in the Sevier County Circuit Court and a motion to amend his petition. On November 6, 2009, Thomas filed an amended Rule 37.5 petition, and on that same day the circuit court conducted a hearing on Thomas’s petition. On February 1, 2010, the circuit court denied Thomas’s petition. Thomas asserts proper jurisdiction and now brings this appeal. He presents two issues for review: (1) the circuit court erred when it denied Thomas’s claim that he had received ineffective assistance of counsel when his counsel did not object to a change of venue to Pike County, Arkansas, and (2) the circuit court erred when it denied Thomas’s claim that he had received ineffective assistance of counsel when his counsel failed to secure |2and present the testimony of Lieutenant Alex Mathis.
Jurisdiction
Prior to reaching the merits of Thomas’s appeal, we must first address jurisdiction because jurisdiction is a threshold issue, as well as the basis of the order being appealed. Gilliland v. State, 2011 Ark. 480, 2011 WL 5437539 (per curiam).
Thomas contends that the circuit court maintained jurisdiction and his appeal is ripe for review. The State responds that the we do not have jurisdiction to hear this case because the circuit court did not have jurisdiction to hear Thomas’s Rule 37.5 petition. The State contends that the circuit court lacked the authority to grant extensions of time for the filing of Thomas’s petition. The State further asserts that the circuit court was without jurisdiction to entertain Thomas’s belated and improperly filed Rule 37.5 petition, and therefore, we are without jurisdiction.
Rule 37.5(e) addresses the timeliness of the filing of petitions for relief pursuant to Rule 37.5. Subsection (e) of the Ark. R.Crim. P. 37.5 (2013), entitled “Time for Filing Post-Conviction Petition” provides: “A petition for relief under this rule shall be filed in the circuit court that imposed the sentence of death within ninety (90) days after the entry of the order required in subsection (b)(2) of this rule.” In reviewing the time limitations contained in Rule 37.5 cases, in Engram v. State, 2013 Ark. 424, at 6, 430 S.W.3d 82, 86, we explained:
[T]his court has never held that the ninety-day time limitation of Rule 37.5(e) is an absolute jurisdictional bar.
This court in Jackson [v. State, 343 Ark. 613, 37 S.W.3d 595 (2001) ] refused to hold |,^that the time limits of Rule 37.5(e) create an absolute procedural bar to the belated filing of a postconviction petition in a capital case. The court in Jackson further explained as follows:
Porter [v. State, 339 Ark. 15, 2 S.W.3d 73 (1999) ], and the cases that follow suggest that Rule 37.5 requires a heightened standard of review of capital cases because the State has undertaken, via Act 925 of 1997 and Rule 37.5, to provide collateral relief so as “to eliminate the need for multiple federal habeas corpus proceedings in death cases.” Again, while there is no constitutional right to a postconviction proceeding, when the State undertakes the role of providing such, as it has done here, it must comport with due process and be fundamentally fa^r'
Here, the record demonstrates that, based on Thomas’s counsel’s December 26, 2007 appointment, his Rule 37.5 petition was due on March 25, 2008. Thomas’s counsel filed six motions for extensions of time to file the Rule 37.5 petition, and the circuit court granted each motion, with the petition ultimately due on April 16, 2009. On April 16, 2009, Thomas filed his initial, unverified petition for relief pursuant to Rule 37.5 and also filed a motion to amend his petition. On November 6, 2009, Thomas filed his amended petition, and on that same day, the circuit court conducted a hearing on Thomas’s amended petition.
The issue before us regarding the timely filing of Thomas’s Rule 37.5 petition is one of fundamental fairness. When we the analysis from Ingram, the question becomes whether it is fundamentally fair to require an inmate under a death sentence to abide by the stringent filing deadlines when his counsel timely filed his initial petition, the circuit court granted extensions of time, and Thomas complied the circuit court’s deadlines. The record before us indicates that the approximate eighteen-month extension of time was granted for several reasons: counsel’s heavy workload; co-counsel’s withdrawal from Thomas’s case because co-counsel moved out of state; appointment of new counsel; new counsel’s obtaining | ^certification; the circuit judge’s recusal in this case; and another circuit judge’s recu-sal because he was the prosecutor in the original trial. We note that none of these delays were within Thomas’s control, Further, the delays were not in Thomas’s counsel’s control. Here, to prohibit Thomas from proceeding on his postconviction petition would be to ignore the well-settled principle that, while there is no constitutional right to a post-conviction proceed-big, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Engram. Under the facts and circumstances of this case, and considering the finality of the punishment at issue, we hold that the circuit court maintained jurisdiction to consider Thomas’s petition, and thus, vests jurisdiction with this court to reach the merits of Thomas’s Rule 37.5 appeal.
Venue
For his first point on appeal, Thomas asserts that the circuit court erred when it denied his claim that he received ineffective assistance of counsel because his counsel did not object to a change of venue to Pike County, Arkansas. The State responds that the argument is without merit and also not cognizable in postconviction proceedings.
On July 21, 2005, the circuit court conducted a pretrial hearing on Thomas’s motion to change venue based on pretrial publicity. In that motion, Thomas submitted voluminous | .^information regarding pretrial publicity for the four counties in the district, including Pike County. The pretrial publicity data demonstrated that Pike and Howard Counties had received the least amount of publicity in the four-county district. Thomas also submitted as exhibits “Data Tables for Population Percent by Race and County from the 2000 Census.” The circuit court granted Thomas’s motion and moved the trial to Pike County.
On appeal, Thomas alleges that once the circuit court granted his motion and moved his trial to Pike County, his counsel was ineffective for failing to properly object to the transfer to Pike County because Pike County had a very small African American population, and Thomas is African American. Stated differently, according to Thomas, although Pike County was within the judicial district and did receive the least amount of pretrial publicity, which was the basis for the change of venue, his counsel was ineffective for not taking the next step and objecting to the circuit court’s choice of county. Thomas further asserts that his counsel should have objected and included claims of systematic exclusion of specific racial groups.
The State responds that Thomas has failed to meet the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that trial counsel’s conduct was so egregious that he was not acting as the counsel guaranteed by the Sixth Amendment, and that Thomas suffered prejudice from the conduct that rendered the outcome of the trial unreliable. Additionally, the State responds that Thomas’s venue claim is not cognizable in a postconviction matter because his claim is one of trial strategy.
Turning to our review, “on appeal from a circuit court’s ruling on a petitioner’s | ^request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. 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.” Mason v. State, 2013 Ark. 492, at 1-2, 430 S.W.3d 759, 761 (internal citations omitted).
Claims of ineffective assistance of counsel are reviewed under the standard of review set forth in Strickland:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.
Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
Thus, Thomas must first show that counsel’s performance fell below an objective standard of reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id. Thomas must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if Thomas fails to demonstrate prejudice as to an alleged error. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).
Further, with respect to an ineffective-assistance-of-counsel claim regarding venue, to establish that the failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must offer some basis on which to conclude that an impartial jury was |7not empaneled. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990).
At issue is the circuit court’s denial of Thomas’s venue claim. In its February 11, 2010 order, the circuit court stated:
The court finds there was no error in change on venue to Pike County. The court finds from the record of the venue hearing, the difference in African American population of Pike County and Sevier County to be less than 1%. Further, [Thomas] introduces no evidence that any class of people were systematically excluded from the Pike County Jury pool....
The court in reviewing the venue hearing finds that the case was properly transferred to Pike County due to that county receiving the least trial publicity of the other three counties in the judicial district. Thus, the court finds that [Thomas] was not prejudiced.
Here, Thomas has failed to allege, let alone prove, that he was prejudiced, or that the jury that heard his case was biased and not impartial. Thomas has offered nothing other than conclusory allegations that counsel was deficient for failing to seek a change of venue and has not alleged that he was prejudiced. Thomas alleges that had his counsel objected to the transfer to Pike County, he would have had an opportunity to raise Batson, Fourteenth Amendment, and Sixth Amendment challenges and the systematic exclusion of certain jurors. However, Thomas simply makes conclusory statements.
Additionally, the decision whether to seek a change of venue is largely a matter of trial strategy and therefore not an issue for debate under our postconviction rule. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). At Thomas’s Rule 37.5 hearing, Thomas’s counsel testified |sthat his actions at the venue hearing were matters of trial strategy. Thomas alleges that the failure to object was not trial strategy yet offers no alternative to the counsel’s position that it was trial strategy; he simply states that it was not trial strategy.
Based on the discussion above, we do not find that the circuit court erred. Thomas did not provide any support for his conclusory claims that counsel was ineffective. Likewise, there has been no showing that counsel committed any specific error that prejudiced the defense because Thomas did not specify, with facts, that he was prejudiced. In reviewing the record before us and Thomas’s argument, we are unpersuaded that Thomas has met his burden. We affirm on this point.
Lieutenant Alex Mathis
For his second point on appeal, Thomas contends that the circuit court erred when it denied Thomas’s claim that he had received ineffective assistance of counsel when his counsel failed to secure and present the testimony of Lieutenant Alex Mathis. The State responds that we should affirm the circuit court, alleging that Thomas’s argument is without merit. The State also asserts that trial strategy is not a cognizable claim in postconviction proceedings.
On July 1, 2004, the circuit court conducted a pretrial hearing. At the hearing, one of the investigating officers of the murders, Lieutenant Alex Mathis, with the DeQueen, Arkansas Police Department, testified regarding his investigation. Mathis testified that there was no allegation “of sexual penetration, any sexual assault or rape or anything of that nature.”
At trial, Joshua Warren testified for the State. Warren was an arresting officer with the Idabel, Oklahoma Police Department, and he testified that upon arrest, when he patted | ¡/Thomas down, he removed the contents of Thomas’s pocket. Warren testified that the contents of Thomas’s pocket consisted of money, an unused condom, two spent .38-caliber rounds and a set of keys. Over Thomas’s counsel’s objection, the condom was introduced into evidence.
On appeal, Thomas alleges that his counsel was ineffective for not calling Mathis to rebut Warren’s testimony and the circuit court erred in denying his claim.
In reviewing an assertion of ineffective assistance of counsel concerning the failure to call a certain witness, this court’s objective is to determine whether the failure resulted in actual prejudice that denied the petitioner a fair trial. Moten v. State, 2013 Ark. 503, 2013 WL 6327549 (per curiam). The decision whether to call or not to call a particular witness is largely a matter of professional judgment. The fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Accordingly, in order to demonstrate prejudice, Thomas must establish that there was a reasonable probability that, had counsel presented the witness, the outcome of the trial would have been different.
With these standards in mind, we turn to the circuit court’s February 1, 2010 order and its denial of Thomas’s claim on this point:
[Thomas’s counsel] testified at this hearing that although a condom was found on [Thomas] at his arrest was introduced, the State never argued that [Thomas’s] intent was rape. He testified he did not want to draw attention to that fact. Thus the decision to use the officer’s testimony was one of trial strategy. Further, the court finds that to be a good tactical decision. The officer’s testimony about the crime scene would in no way negate the evidence found on [Thomas] and would only bring to the jury’s attention what the prosecutor never mentioned. Finally, [Thomas] failed to prove how introducing said testimony would change the outcome of the trial.
110The record demonstrates that at Thomas’s Rule 37.5 hearing, Thomas’s counsel testified that he made a strategic decision not to call Mathis because he did not want to draw additional attention to the evidence:
Our concern was that the State would allege that the homicides occurred because [Thomas] was going to rape one or more of the victims. And if you notice, [the prosecutor] stayed away from that in his closing argument so he wouldn’t have that argument, but our—my purpose basically was to make sure that there was no allegation that there was any evidence consistent of a rape. It was bad enough that there was already string or twine found and a condom found. We don’t need any—you know the prosecutor did not open the door and say what do you think, ladies and gentleman, Mr. Thomas’s intent was?
Here, Thomas asserts his counsel should have called Mathis to testify despite the prosecution’s theory, to rebut any insinuation or implication regarding sex crimes. However, Thomas did not offer facts from which it could be said that counsel’s decision not to call Mathis or introduce his prior testimony was anything more than trial strategy. Additionally, Thomas has failed to demonstrate that he was prejudiced by his counsel’s decision not to call Mathis to testify.
Our review of the record demonstrates that no error was committed and we affirm the circuit court on Thomas’s claim regarding Lieutenant Mathis.
Based on the discussion above and our standard of review, we find no error and affirm.
Affirmed.
. The State also contends that the circuit court was without jurisdiction because of alleged procedural violations by Thomas: (1) Thomas’s co-counsel’s failure to properly withdraw, (2) Thomas’s failure to have new co-counsel properly appointed with an order, and (3) Thomas's failure to obtain a ruling on his motion to amend his petition. However, despite the merits of these allegations, the argument fails because these matters are not jurisdictional and would not prevent the circuit court from ruling on Thomas’s petition.
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JOSEPHINE LINKER HART, Justice.
11 This is an appeal from the denial of postconviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. By per curiam order handed down November 7, 2013, we remanded this case to settle the record because there were gaps and inconsistencies in the material we had before us that prevented us from determining whether we had jurisdiction to take up this petition. A supplemental transcript has been filed resolving our concerns.
Petitioner Terry Edward Hayes is in the custody of the Arkansas Department of Correction after a jury convicted him of aggravated assault on a family or household member, first-degree terroristic threatening, felon in possession of a firearm, and intimidating a witness. The charges involved Hayes’s fourteen-year old son Shad. According to Shad, Hayes held a gun to his head during an angry telephone conversation with Hayes’s long-time girlfriend, whom Shad referred to as “Mom.” Thereafter, Hayes evaded the police by taking Shad into the woods on his property. The following day, Hayes took Shad to the police, |2where he instructed his son to give a false story.
Hayes appealed his conviction to the court of appeals. The court • of appeals held that the circuit court did not abuse its discretion in refusing to grant a continuance to allow his trial counsel to prepare for the sentencing phase of the trial. However, it reversed and remanded because the circuit court denied Hayes’s new-trial motion without holding a hearing. Hayes v. State, 2011 Ark. App. 79, 381 S.W.3d 117.
Just after the sentencing heáring, Hayes was arraigned on the charge of failure to appear. Id. His trial counsel noted that Hayes had been diagnosed with bipolar disorder and was on medication. Id. Trial counsel moved for a mental evaluation, and the circuit court granted the request. Id. Nonetheless, the circuit court denied Hayes’s new-trial motion without a hearing. Id.
On remand, Hayes waived a hearing on his new-trial motion and entered a guilty plea on the failure-to-appear charge. With the assistance of counsel, Hayes pursued postconviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. After a hearing, the circuit court denied Hayes’s petition. He filed a notice of appeal from that ruling. Hayes then filed with the circuit court a motion to reconsider, arguing that the circuit court failed to rule on a number of points that he had raised. Hayes subsequently filed a supplemental notice of appeal. He now argues that 1) this case must be remanded to the circuit court with instructions to rule on claims that it had ignored in its order and for failing to rule on his motion for reconsideration; and 2) the circuit court erred in finding that his trial counsel was not ineffective. We affirm.
[In order to show that his counsel was ineffective, a convicted person must prove that the representation fell below an objectively reasonable standard and that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). This reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. When this court reviews an order that denies postconviction relief, we do not reverse unless the trial court’s findings are clearly erroneous. Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
In his Rule 37 petition, Hayes asserted that his trial counsel committed eight “actions or omissions” that constituted ineffective assistance of counsel. They are as follows:
1. In the testimony of Shad Hayes in the State’s case in chief, trial counsel failed to object to irrelevant and highly prejudicial testimony that Terry Hayes had held a gun to Teresa Coleman’s head at sometime in the three weeks previous to the incident on trial. This should have been excluded under Rules 401, 402, 403, and was not proper character evidence under Rule 404(a). Additionally, its inclusion despite its irrelevance and prejudicial nature was of sufficient unfairness to violate Terry Hayes’s federal and state constitutional rights of due process of law.
2. In the testimony of Detective Scott McAfee, trial counsel failed to object to irrelevant and highly prejudicial testimony that Terry Hayes was wanted for violating the conditions of his bond. This testimony should have been excluded under Rules 401, 402, 403, and was not proper character evidence under Rule 404(a). Additionally, its inclusion despite its irrelevance and prejudicial nature was of sufficient unfairness to violate Terry Hayes’s federal and state constitutional rights of due process of law.
|43. Further in McAfee’s testimony trial counsel failed to object to testimony in which McAfee contradicted the testimony of Rick Frazier. The ineffectiveness consisted of (i) failing to object to irrelevant and prejudicial testimony inter alia that Frazier had said he was afraid of Hayes; (ii) that Hayes had discussed fleeing; and (iii) a failure to seek the limiting instruction of AMI Crim.2d 202 that prior inconsistent statements (here elicited at T 403-406 and elsewhere) in which Frazier allegedly described dealing with Hayes before, during and after the incident—including arranging for Hayes to hide in a motel and dealing with a gun—are not to be considered for the truth of the matter asserted in the allegedly inconsistent statements. As a result, the jury necessarily would have improperly considered the unsworn alleged statements of Frazier for the truth of the matters asserted in McAfee’s rendition of the alleged Frazier statements. It is true that AMI Crim.2d 202 was given at the end of the trial, but the note on use provides that it should be given at the time the prior inconsistent statement is admitted into evidence. This is obviously so that a jury composed of lay persons untrained in the rules of evidence will be able to understand the purposes for which the evidence can and cannot be considered. Moreover, in closing argument, the prosecutor argued the McAfee evidence for the truth of the matter asserted, again without objection. This improper admission also violated Hayes’s federal and state constitutional rights of confrontation and due process by permitting unsworn hearsay allegations to be introduced as evidence against him.
4. In the testimony of Detective Gary Conner, trial counsel failed to object to the testimony concerning a warrant against Hayes for unlawful flight to avoid prosecution and that a court had doubled Hayes’s bond because he supposedly was a flight risk. This should have been excluded under Rules 401, 402, 408, and was not proper character evidence under Rule 404(a). It is also of sufficient unfairness to violate Terry Hayes’s federal and state constitutional rights of due process of law.
5. In the testimony of Teresa Coleman in the defense case, trial counsel again failed to seek the AMI Crim.2d 202 instruction when the State impeached Coleman with her prior inconsistent statement. Although Coleman generally exonerated Hayes at trial, the alleged prior statement inculpated Hayes. This caused the jury to consider Coleman’s unsworn statement for the truth of the matter asserted against Hayes. Trial counsel was also ineffective in failing to object to the introduction of State’s Ex. 28, the text of the statement itself, despite the fact that she admitted making the prior statement. Such extrinsic evidence is not admissible if the witness admits making the prior statement. Rule 613, ARE, Winkle v. State, 374 Ark. 128, 135, 286 S.W.3d 147, 152 (2008).
6. In the State’s rebuttal case, trial counsel failed to object to the testimony of Terra Markham (particularly at T 563) and Pat Nations (particularly at T 589) in which they gave their supposedly expert opinions that Shad Hayes was telling the truth. J^The case law is clear that such testimony—whether denominated as expert or lay testimony—is not admissible. Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992); Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989); Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006). Because of the egregious nature of this testimony, its admission also violated Hayes’s federal and state constitutional rights of due process of law. Shad Hayes was the crucial witness against Terry Hayes. Thus the improper bolstering of Shad Hayes’s credibility was crucial to the conviction of Terry Hayes.
7. Also in the rebuttal case, trial counsel failed to object to Officer Joseph Smith (T 592-595) and Detective Scott McAfee (T 595-597) testifying as to what Teresa Coleman had told each of them without at least seeking the AMI Crim.2d 202 instruction that her prior inconsistent statements could not be considered for the truth of the matter asserted in the statement. Smith quoted Teresa Coleman as saying that Hayes had committed the crimes he was accused of, in contradiction to Coleman’s trial testimony McAfee quoted Coleman as saying that witness William (Smokey) Henson would lie for Terry Hayes. As a result, the jury would have improperly considered the unsworn alleged statements of Coleman for the truth of the matters asserted. This also violated Hayes’s federal and state constitutional rights of confrontation and due process by permitting unsworn hearsay allegations to be introduced as evidence against him.
8. Furthermore the McAfee testimony quoting Coleman about Henson’s credibility was inadmissible hearsay because it was offered for the truth of the matter asserted, i.e., that Henson was not credible. In addition to violating hearsay prohibitions (Rule 801 et seq.), it also violated federal and state constitutional rights of confrontation and due process of law.
Summing up his points, Hayes asserted that “there is no strategic or tactical justification,” despite his trial counsel’s claims to the contrary, for disregarding the “elemental rules of evidence and constitutional law” by failing to object and seek the necessary limiting instructions.
After a hearing in which Hayes challenged his trial counsel’s actions with regard to each point raised in his Rule 37 petition, the circuit court, as previously noted, denied Hayes’s claim of ineffective assistance of counsel. The circuit court made the following | f,findings of fact and conclusions of law in its order, which we copy in pertinent part because it is necessary to dispose of Hayes’s first issue on appeal.
A. The Court makes the following findings of fact:
7. That trial counsel did not object to the testimony of Shad Hayes that Terry Hayes had held a gun to Teresa Coleman’s head.
8. That trial counsel did not object to the testimony of Detective Scott McAfee that Terry Hayes was wanted for violating conditions of his bond.
9. That trial counsel did not object to Detective McAfee’s testimony which contradicted the testimony of Rick Frazier.
10. That trial counsel did not object to the testimony of Detective Gary Conner that a warrant had been issued against Defendant Terry Hayes for unlawful flight to avoid prosecution and that Defendant’s bail bond had been doubled because Defendant was allegedly a flight risk.
11. That trial counsel did not object to the testimony of Terra Markham and Pat Nations as to the truthfulness of Shad Hayes.
12. That trial counsel did not object to the testimony of Officer Joseph Smith and Detective Scott McAfee as to what Teresa Coleman had told each of them.
13.That trial counsel objected to the testimony of Detective Scott McAfee wherein he contradicted the testimony of Rick Frazier.
B. The Court makes the following conclusions of law:
1. The trial counsel’s decision not to object to Shad Hayes’s unsolicited testimony that Terry Hayes held a gun to Teresa Coleman’s head was based upon trial tactics or trial strategy and was supported by reasonable, professional judgment.
2. That Detective Scott McAfee’s testimony that Defendant Terry Hayes was wanted for violating conditions of his bond was admitted by Defendant in his testimony and was therefore not prejudicial.
3. That the testimony of Detective Gary Conner that a warrant had been issued 17against Defendant Terry Hayes for unlawful flight was admitted by Defendant in his testimony and was therefore not prejudicial.
4. That State’s Exhibit Number 23 was admitted to refresh Teresa Coleman’s memory after she testified that she could not remember whether or not she made the statement and therefore the exhibit was admissible extrinsic evidence.
5. That the testimony of Terra Markham and Pat Nations relating to the victim’s character for truthfulness in the State’s rebuttal case was proper and admissible evidence after the victim’s character for truthfulness became an issue.
6. The trial counsel’s decision not to object to the testimony of Officer Joseph Smith was based upon trial tactics or trial strategy and was supported by reasonable, professional judgment.
7. That Detective Scott McAfee’s testimony quoting Teresa Coleman’s testimony that William Henson was not credible is admissible evidence as a prior inconsistent statement, and did not result in a violation of the confrontation clause inasmuch as Teresa Coleman was a witness at trial.
8. The trial counsel’s decision to request the prior inconsistent statement limiting instruction, AMI Crim.2d 202, at the conclusion of the trial was based upon trial tactics or trial strategy and was supported by reasonable, professional judgment.
9. That Defendant Terry Hayes has failed to demonstrate that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment to the United States Constitution.
10. That Defendant Terry Hayes has failed to demonstrate that counsel’s performance prejudiced his defense to such an extent that Petitioner was deprived of a fair trial.
11. That Defendant Terry Hayes has failed to demonstrate that there is a reasonable probability that the fact finder’s decision would have been different absent counsel’s errors.
After the entry of the circuit court’s order, Hayes filed a motion to reconsider. He | ^alleged that the circuit court failed to rule on point 3 of his Rule 37 petition; the portion of point 5 of his Rule 37 petition in which he asserted that it was error not to give the AMI Crim.2d 202 instruction when the State impeached Teresa Coleman; and that part of point 7 concerning Detective Scott McAfee.
On appeal, Hayes first argues that we must remand this case to the circuit court with instructions to rule on the claims that it ignored in its order and failed to rule on after he had filed a motion for reconsideration. He asserts that this court’s recent holding in Strain v. State, 2012 Ark. 42, 394 S.W.3d 294, that when a circuit court fails to rule on an issue raised in a Rule 37 petition, the petitioner is not without recourse because he may redress that omission by filing a writ of mandamus with this court, violates his right to due process and must be overruled.
As a preliminary matter, we must first determine what questions, if any, remain for the circuit court to rule on. Initially, Hayes asserted that the circuit court had failed to rule on whether his trial counsel was ineffective for failing to request a limiting instruction, AMI Crim.2d 202, at the time testimony was received. Specifically, he asserted that the circuit court failed to rule on his Rule 37 petition point 3, concerning Detective McAfee’s testimony about Rick Frazier’s prior inconsistent statement; point 5, Teresa Coleman’s pri- or inconsistent statement; and point 7, Detective McAfee’s testimony about Teresa Coleman’s |aprior inconsistent statements. However, in his original reply brief and in the brief that he has filed after we remanded this case to settle the record, Hayes concedes that the circuit court did rule on the AMI Crim.2d 202 instruction and “Coleman’s statement about William Henson recounted in McAfee’s testimony.” Accordingly, this concession completely subsumes point 5. Likewise, the concessions reach portions of points 3 and 7, in which Hayes discusses AMI Crim.2d 202.
As for the remaining parts of point 3, we note that the circuit court in its finding of fact number 9 states that Hayes’s trial counsel “did not object to Detective McAf-ee’s testimony which contradicted the testimony of Rick Frazier,” but goes on to state, without any specific reference to any part of Hayes’s Rule 37 petition, in finding of fact number 13 that “trial counsel objected to the testimony of Detective Scott McAfee wherein he contradicted the testimony of Rick Frazier.” While one of these contradictory rulings may be erroneous, it is nonetheless a ruling. With regard to the remaining portion of point 7, which alleges ineffective assistance of counsel for failing to object to the testimony of Detective McAfee in the rebuttal case, the circuit court did rule on this matter, finding in its conclusion of law number 7 that the testimony was an admissible, prior inconsistent statement. Similarly, contrary to Hayes’s assertion, the circuit court found that Hayes’s trial counsel had objected to McAfee’s testimony “wherein he contradicted the testimony of Rick Frazier.” Accordingly, all of Hayes’s assertions under points 3, 5, and 7 have been ruled on, and therefore we see nothing that remains for the circuit court to do.
Moreover, Hayes correctly notes that this court has stated that in the event that a | incircuit court has not ruled on a motion, it is incumbent on petitioner to seek a writ of mandamus to compel the circuit court to rule. Strain, supra. Hayes suggests that Strain should be overruled; however, under the facts set out in this ease, we do not find that such consideration is warranted. Accordingly, even if any of Hayes’s allegations have not been ruled on by the circuit court, his failure to seek a writ of mandamus bars further action. We affirm on this point.
Hayes next argues that the circuit court erred in failing to find that his trial counsel was ineffective. He raises five subpoints that we will discuss in turn, adding as necessary a summary of the relevant trial testimony.
He first asserts that his trial counsel was ineffective because he failed to object to the testimony by Terra Markham and Pat Nations. Markham testified that she was Shad’s caseworker when he was taken into ADHS custody. She testified as follows.
Q. Okay, and doing this [working as his caseworker], do you communicate with Shad a lot?
A. Yes.
Q. Did you?
A. Yes.
Q. Okay, and in all those communications did he ever, you know give you any indication that he was not telling the truth?
A. No.
Pat Nations testified that she was Shad’s psychotherapist while he was an in-patient at Vista Health. Nations stated that, as part of Shad’s therapy, she had “almost daily” conversations |nwith him about the alleged incident. She testified in pertinent part as follows.
Q. Okay, and in those talks did you ever and based on your experience, did you ever get any signs of deception about what his father did to him?
A. None whatsoever.
Q. None whatsoever?
A. He was consistent throughout. When he talked about his relationship with his father from the moment that he came into my care until he was discharged, which was several months la ter, I never saw any inconsistency with his story or his situation, his recall of his father’s and his relationship over the years, since early years. It was very consistent.
Q. Very consistent.
A. Yes.
The allegation that Hayes’s trial counsel was ineffective for failing to object to this testimony was set forth in point 6 of his Rule 37 petition.
At the Rule 37 petition hearing, Hayes’s trial counsel stated that he did not find the testimony objectionable. In its order, the circuit court found that the disputed testimony was admissible character evidence under Rule 608 of the Arkansas Rules of Evidence. Hayes asserts that neither response was correct. He states that the rule is clear—evidence of truthful character “can only be for opinion or reputation for truthfulness,” and there was no attempt to elicit testimony regarding Shad’s reputation for veracity. Instead, the questioning concerned whether Shad had been telling the truth about that incident. Hayes alleged that this testimony prejudiced him because these witnesses placed “an improper official imprimatur of credibility upon Shad Hayes.”
We agree that the trial court was clearly erroneous when it found that the testimony 112of Markham and Nations was admissible character evidence. As we noted in Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189,
Rule 608 provides that the credibility of a witness may be supported by opinion or reputation evidence only to the extent that the evidence refers to the character for truthfulness and the evidence of truthful character is only admissible after the character of the witness has been attacked.
The testimony at issue in this instance does not conform to the requirements of Rule 608, and any objection to this testimony would not necessarily have been without merit. Id. Further, we note that Markham’s and Nations’s testimony was essentially expert testimony concerning whether Shad was being deceptive. In Hinkston v. State, supra, this court held that such testimony was not admissible because it invaded the jury’s province to determine the credibility of witnesses.
The State argues that we should nonetheless affirm on this point because Hayes’s assertion of prejudice was a “con-clusory” allegation that Markham’s and Nations’s testimony “placed an improper official imprimatur of credibility upon Shad Hayes.” The State contends that this court need not “analyze the issue,” but finds it is noteworthy that Hayes was not prejudiced because Shad’s testimony was not the only evidence of the night’s events. It points to the testimony of Coleman’s son, Roger Remington, who testified that he called 911 after he had received a call from his grandmother’s land line on which he overheard his mother saying, “Terry, you need to put the gun down. You’re not going to do anything to hurt yourself or Shad.” Further, Shad’s testimony was corroborated by a deputy sheriffs discovery, on January 20, 2009, of two .45-caliber shell casings on Hayes’s porch and on the ground in front of it. Additionally, Hayes fled from the residence with Shad when the police | ^arrived on the scene.
While we are mindful that the case before us depended heavily on Shad’s testimony, the State did produce additional evidence that tended to corroborate Shad’s account of what occurred on the night in question. The spent shells, the 911 call, and Hayes’s efforts to elude police tend to establish that, despite the evidentiary error in admitting the testimony of Markham and Nations, the outcome of the trial would likely not have been different. Accordingly, Hayes has failed to demonstrate the- requisite prejudice for finding ineffective assistance of counsel under the Strickland, standard. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007).
Hayes next argues that his trial counsel was ineffective for failing to object to the following testimony of Shad Hayes:
Q. Was Teresa Coleman staying there with you?
A. Yes sir. Within those three weeks the first of January. That’s the night she left and she told me, I later found out, that within those three weeks he had also held a gun to her head.
As Hayes asserts in his Rule 37 petition, that, in addition to being hearsay, the statement is not relevant and is more prejudicial than probative. At the Rule 37 hearing, Hayes’s trial counsel asserted that he did not object to Shad’s statement because the testimony was just “blurted out,” and he did not want to call it to the jury’s attention. The circuit court found that it was a product of “trial tactics or trial strategy and was supported by reasonable professional judgment.” For a full understanding of this point, it is necessary to place the testimony in question in proper context.
|MFor most of his life, Shad lived with his father and Teresa Coleman. At the time of the incident, Hayes and Coleman had separated, and Shad was residing with Coleman at the residence of Coleman’s mother.
At trial, Shad testified in pertinent part as follows. On the night in question, Hayes called him and told him to pack up his belongings and meet him outside. Hayes picked him up and spent the drive back to his residence on his cell phone “griping” at Coleman. According to Shad, Hayes went outside and returned with a gun. Hayes loaded the weapon and handed the phone to Shad, instructing him to tell Coleman that he was going out to shoot the two dogs. Hayes fired two shots and returned. Shad reported to Coleman that Hayes had killed the dogs. Shad stated that Hayes had told him to tell Coleman who was “next.” Shad claimed he started screaming, “It’s me.” Shad recalled that Hayes was shaking “really bad” and “he kind of hit my forehead with the tip of the gun.” At his father’s orders, Shad told Coleman that Hayes was holding a gun to his head. Shad was allowed to make a sandwich, but then was made to sit next to his father on a couch. Hayes told him to report that Hayes was now holding the gun to his own head. After a while, Hayes hung up the phone and said, “Maybe we should flip a coin to see who dies.”
According to Shad, Hayes ordered him to follow him out to the shop where he had a police scanner. From transmissions over the scanner, he learned that Fayette-ville police were at the gate to his driveway and were preparing to enter the properly on foot. Hayes told Shad to get his rifle, and Hayes hid it and a pistol in the barn. They eluded police, and Hayes summoned Rick Frazier to meet them. The next day, Hayes took Shad to the police | ^station where he claimed that he had disregarded his father’s instructions to tell a “fake story” and told Detective Scott McAfee what had transpired. It was at this point in his testimony that Shad made the above-referenced nonresponsive statement about Teresa Coleman.
Under the facts of this case, we can find no error in the circuit court’s finding that the decision by Hayes’s trial counsel not to object to Shad’s testimony was attributable to trial strategy. As the State argues, avoiding unwanted attention to an isolated incident of potentially objectionable testi mony, particularly when it is not responsive to the question asked, is a quintessential strategy decision that is beyond the purview of an ineffective-assistance claim. Nance, supra.
Hayes next argues that his trial counsel was ineffective for failing to object to irrelevant and highly prejudicial testimony by Detective Scott McAfee that Hayes was wanted for violating the conditions of his bond. At the Rule 37 hearing, Hayes’s trial counsel excused his failure to object because “the bond revocation hearing was part of the whole situation” and because Hayes’s picture had been on the front page of the newspaper and he “knew it was gonna be brought up in detail, which it was.” The circuit court found that the failure to object was not prejudicial because, during his testimony, Hayes admitted violating the conditions of his, bond. Hayes asserts that the circuit court’s rationale “missed the point” because the failure to object left him with having to “deal” with the irrelevant and prejudicial testimony.
The State contends that this argument is barred because Hayes asserts for the first time on appeal that he testified about violating the conditions of his bond only because he had to 1, (¡mitigate the damage caused by Detective McAfee’s testimony. The State agrees -with the circuit court that Detective McAfee’s testimony was harmless because similar evidence— Hayes’s own testimony—was admitted. The State argues further that evidence of Hayes’s “flight” to Texas would certainly have been admissible. It contends that Hayes “has not alleged, much less proven, that the outcome of the proceeding would have been different had counsel only objected to the evidence that there was a warrant out for his arrest for violating the conditions of his bond.”
The circuit court’s finding was made after the hearing and may not have been anticipated by Hayes’s Rule 37 counsel. Moreover, pursuant to Rule 37.2(d) of the Arkansas Rules of Criminal Procedure, Hayes was barred from challenging the circuit court’s ruling in a motion for reconsideration. While an objection to the relevance of the testimony that Hayes violated a condition of his bond could be appropriate, the issue here is whether counsel’s failure to object fell below the standard established in Strickland.
According to trial counsel, he made a conscious decision not to object based on his professional judgment. Matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel. White v. State, 2013 Ark. 171, 426 S.W.3d 911; Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). Moreover, |17evidence of flight is admissible to show consciousness of guilt, even if the flight was not immediately after the alleged commission of the crime. Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973). Counsel is not ineffective for failing to make an argument that is meritless. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. We cannot say that counsel’s failure to object constituted a Strickland violation.
In a point closely related to the previous one, Hayes argues that his trial counsel was ineffective because he failed to object to the testimony of Detective Gary Conner in which Connor stated that a warrant was issued for unlawful flight and that Hayes’s bond had been doubled. Hayes contends that the testimony was not relevant and prejudicial. The testimony came in as follows:
Q. Could you tell us how you became involved in this case?
A. I became involved in the case with Mr. Hayes, besides being a deputy sheriff I’m also a special deputy United States Marshal. I’m on the Northwest Arkansas Marshal Service Fugitive Task Force. While looking for Mr. Hayes, the Sheriffs Office developed information he might be out of state in Oklahoma or Texas. Once the person who is wanted leaves the State then at that point in time the U.S. Attorney can go through a federal judge and get a federal UFAP warrant. That’s a warrant for unlawful flight to avoid prosecution. As a deputy United States Marshal I was serving as a liaison between the Marshal’s Service and the Sheriffs Office and attempting to locate Mr. Hayes. The UFAP warrant had been obtained for Mr. Hayes and the United States Marshal Service was actively searching for him.
Q. Detective Conner, let me interrupt you a little bit. Now, when this UFAP warrant came out, now this is in what stage of the overall current of events that’s happened. I mean, was this after his arrest?
A. I believe it was the weekend before his arrest that the warrant was actually signed.
Q. Wait a minute. Before his arrest?
A. Yes, it was the weekend of about the 24th, 25th of January, I believe was when 11Rwe actually got the UFAP warrant signed and entered into the system.
Q. Okay, let me explain for the jury or let you explain to the jury. Is this after he was initially arrested and bonded out on this case?
A. The warrant that the State held for Mr. Hayes was a bond revocation warrant. He had been arrested, he had bonded out, and a warrant had been issued for his arrest as a bond revocation.
With regard to Hayes’s “flight risk,” the testimony was as follows.
Q. Detective, do you actually remember in that hearing that the Court actually doubled the Defendant’s bond because of a flight risk, do you remember that?
A. I remember a bond was reinstated. I do not remember the specifics, I’m sorry.
The circuit court found that the testimony was not prejudicial because it was admitted by Hayes when he testified. Again the State asserts that this argument should be barred because Hayes did not make his mitigation argument below. In the alternative, the State contends that Hayes’s assertion of prejudice is insufficient.
We again note the procedural difference between a Rule 37 proceeding and a direct appeal. While the testimony concerning the fugitive warrant may have been objectionable, the issue in a Rule 37 is whether the failure to object violates the standards established in Strickland. Hayes’s trial counsel testified that he made a conscious decision not to object.
Wflien a decision by counsel is a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel’s decision is not a basis for postconviction relief under Rule 37.1. Mason v. State, 2013 Ark. 492, 430 S.W.3d 759. A court must indulge in a strong presumption that coun sel’s conduct falls within the wide range of reasonable professional assistance, and a claimant has the burden of overcoming this |inpre sumption by identifying specific acts or omissions of counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id.
We hold that evidence of the bond’s reinstatement bears strongly on the analysis of the prejudice prong under Strickland. While the revocation of Hayes’s bond cast aspersions on his character, that negative information was mitigated by the evidence of the reinstatement of his release on bond. We cannot say, based on the totality of the evidence, that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Nance, supra.
Hayes next argues that his trial counsel was ineffective for failing to object to Officer Joseph Smith’s testimony without requesting a limiting instruction, AMI Crim.2d 202. Smith testified about prior inconsistent statements by Teresa Coleman after Coleman had testified that Hayes had not committed the offenses that he was charged with. Hayes’s trial counsel stated that, in his professional opinion, giving AMI Crim.2d 202 at the close of the trial was more effective than requesting it during the trial.
Once again, we note that Hayes’s trial counsel made a conscious decision not to request the limiting instruction based on reasoned, professional judgment. As noted previously, strategy decisions are beyond the purview of an ineffective-assistance claim. Nance, supra. We hold that the alleged error does not support reversal of the denial of postconviction relief. Mason v. State, supra.
Affirmed.
. We are mindful that Rule 37.2(d) of the Arkansas Rules of Criminal Procedure states: The decision of the court in any proceeding under this rule shall be final when the judgment is rendered. No petition for rehearing shall be considered.
However, in our Rule 37 jurisprudence we have recognized that, following the denial of a petition for postconviction relief, a request that the trial court modify its order to include an omitted issue is not a request for a rehearing that is prohibited by this rule. Carter v. Chandler, 2012 Ark. 252, 2012 WL 1950250.
. The State urges us to find the case before us analogous to Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002), in which we refused to consider a claim that evidence was "highly prejudicial” when supported only by bare citation to the rules of evidence. The State's reliance on Robinson is misplaced. Robinson was a direct appeal, and this court held that the appellant's evidentiary argument regarding Rule 403 was barred because the appellant failed to preserve the point with a contemporaneous objection in the circuit court. | [
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WAYMOND M. BROWN, Judge.
hBritany McElroy and Brandon Fritter appeal from the circuit court’s termination of their parental rights to H.F., born December 21, 2011, and Z.F., born November 28, 2010. Britany McElroy’s sole point on appeal is that the trial court committed reversible error when it abused its discretion in terminating her parental rights despite her efforts to comply with the court’s orders. Brandon Fritter’s sole point on appeal is that the circuit court abused its discretion in denying his motion for continuance. We affirm.
li>On January 20, 2012, a report was accepted from a hospital where H.F. had been admitted and diagnosed as failure to thrive with significant malnutrition. A home visit from Appellee Arkansas De partment of Human Services (DHS) revealed that despite there being little to no preparation for H.F. to come home, there were no immediate health or safety hazards noted. However, appellants were living with Jeffrey Reddick, who is listed on the central maltreatment registry for true findings of substance misuse, environmental neglect, and sexual contact. An emergency hold was taken on H.F. on January 24, 2012. An emergency hold was taken on Z.F., who had been out of state, when she returned to the state on January 26, 2012. An ex parte order for emergency custody was entered on January 26, 2012. The court found probable cause in an order to that effect entered February 6, 2012.
|sOn March 15, 2012, the court entered an adjudication and disposition order finding the children dependent-neglected and at risk as a result of neglect and parental unfitness. The goal of the case was reunification with a concurrent goal of adoption. The children were to remain in DHS’s custody.
Following the March 14, 2012 adjudication hearing, the appellants were allowed supervised visitation for one hour twice per week. Beginning April 15, 2012, the appellants were allowed four hours of unsupervised visitation twice per week. Beginning May 15, 2012, a trial home placement began. The court’s August 9, 2012 review order revealed that during the trial placement, appellants had been smoking methamphetamines with the children present in the home. This led to the children being removed on May 29, 2012.
In the August 9, 2012 review order, the court further noted McElroy’s failure to test negative on drug tests, which prevented her from having visitation with the children; lack of employment; failure to attend Narcotics Anonymous; failure to attend counseling; failure to obtain a drug/alcohol assessment; failure to come in for weekly drug screens when requested; and admitted use of other people’s prescription Xanax. The goal of the case remained reunification with a concurrent goal of adoption. The permanency planning hearing scheduled therein was also scheduled to be a show cause hearing for both parties regarding their use of meth-amphetamines during the trial placement.
A permanency planning hearing order was entered on January 11, 2013. Therein the court stated that appellants had continued illegal drug use and had not: (1) maintained stable housing or employment; (2) submitted to weekly drug screens; (3) completed | ^counseling; (4) cooperated with DHS; or (5) demonstrated ah ability to parent or protect the children. It noted that neither party was present at the hearing and that neither party had made progress toward alleviating or mitigating the causes of the juveniles’ removal from the home. The goal of the case was changed to adoption.
A petition for termination of parental rights was filed by DHS on January 22, 2013. DHS asserted that termination of appellants’ parental rights was in the best interests of the children considering their likelihood of being adopted and the potential harm if the children were returned to the parties. Grounds given in support of the petition were that (1) the children had been adjudicated dependent-neglected on March 14, 2012, would have been out of the home for one year as of January 24, 2013, and the parties still had not remedied the conditions that necessitated removal, despite DHS’s meaningful efforts; and (2) other factors arose subsequent to the original filing of the petition for dependency-neglect that made returning the children to the parties contrary to the children’s welfare, and the parties had manifested incapacity or indifference to remedy the subsequent issues or factors which prevented the children’s return to their custody.
IsA hearing on the petition to terminate parental rights was initially set for March 15, 2013; however, it was reset after the court appointed counsel for Fritter. Instead, the court proceeded with the March 15, 2013 hearing as a review and show-cause hearing. In an order filed March 18, 2013, the court found both parties in contempt of court for noncompliance “by not passes [sic] weekly drug screens.” Both parties were sentenced to twenty days in the Washington County jail.
An order terminating the appellants’ parental rights was entered on April 5, 2013. The court found that the same was in the best interests of the children considering their likelihood of being adopted and the potential harm if the children were returned to the parties. As grounds supporting termination, the court cited the two grounds alleged by DHS in its petition, namely that (1) the children had been adjudicated by the court to be dependent-neglected and had continued to be out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent; and (2) other factors arose subsequent to the original filing of the petition for dependency-neglect which make returning the children to the parties contrary to the | fichildren’s welfare, and the parties have manifested incapacity or indifference to remedy the subsequent issues or factors that prevent the children’s return to their custody.
This timely appeal followed.
In cases involving the termination of parental rights, there is a heavy burden placed on the party seeking to terminate the relationship. This is because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Thus, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children.
I. McElroy — Sufficiency
McElroy makes the argument that the trial court committed reversible error when it abused its discretion in terminating her parental rights despite her efforts to comply with the court’s orders. While she essentially argues sufficiency, we note that the standard of review is not abuse of discretion. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be |7proved by clear and convincing evidence. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. 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. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. We have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s |8personal observations. Proof of only one statutory ground is sufficient to terminate parental rights. Wé review termination of parental rights cases de novo.
Regarding the court’s first ground, though she does not dispute that the children were out of the home for more than twelve months, McElroy argues that termination of her parental rights was not proper because she made progress toward complying with the court’s orders. In support of her argument, McElroy cites her completion of psychological counseling, enrollment in college, move to a three-bedroom trailer, and being drug free. Progress toward or even completion of the case plan is no bar to termination of parental rights. It is well settled that evidence that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and remedy the situation that caused the children to be removed in the first place. Despite her children having been in DHS’s care since January 2012, excepting the 14-day failed home placement, McElroy (1) did not begin counseling until August 9, |fl2012, completing it on October 18, 2012; (2) had enrolled in college only recently; (3) had been in the three-bedroom trailer approximately three months at most as their caseworker testified that McElroy had no stable home as recently as January 2013; and (4) had tested positive for THC as recently as February 2013.
Additionally, a review of the record shows that though McElroy was making some progress initially — so much so that she was on track to have the children returned to her on July 15, 2012 — her cooperation became limited beginning with the May 2012 trial placement. In addition to the above-noted issues, the trial placement ended because McElroy was smoking methamphetamines in the children’s presence. She then went on to test positive for THC in July 2012, December 2012, and February 2013, with the latter test being eleven days before the February 20, 2013 birth of a third child between her and Fritter. She tested positive for amphetamines and methamphetamines in October 2012. All of these tests occurred after she had already lost her children for the second time. Because she had not passed three consecutive weekly drug tests, McElroy had not visited with her children since December 2012. Regarding whether McElroy was currently using drugs, the court pointed out that she had not been submitting to drug screens as ordered, |inso there is no evidence to support her assertion that she was currently drug free. The evidence supports the court’s finding that McElroy continued using illegal drugs.
McElroy was unemployed throughout the majority of the case; having been employed only twice, for short periods of time. Because of her lack of income, McElroy and the children had lived in several different places throughout the case, including with Reddick, who was on the central maltreatment registry for abusing her when she was a minor. Though she asserted that she had a stable home, it was not clear how long she would have it because her rent was being paid two months at a time by Arkansas Rehabilitation Services. Furthermore, she re ceived food stamps and was dependent on Fritter to pay for all other necessities because of her lack of employment. The evidence supports the court’s finding that she had not maintained stable employment or housing.
As this is only a sampling of actions taken by McElroy which were against court orders, there was more than enough evidence to show that in the more than twelve months since the children went into care, McElroy had failed to remedy the neglect and parental unfitness that caused the children’s removal. Therefore, we find that the court’s ruling terminating McEl-roy’s rights was not clearly erroneous. Because we find that this |nground was sufficient to support the termination of McElroy’s rights, and only one ground is required, we do not address the court’s second ground regarding issues that arose subsequent to the children’s removal from McElroy’s custody.
II. Fritter — Continuance
Fritter’s sole argument on appeal is that the court abused its discretion in denying his motion for continuance of the termination of parental rights hearing. He argues that his court-appointed attorney did not have sufficient time to prepare because he was appointed just two weeks prior to trial and that the trial court made it difficult for counsel to access Fritter at the time of his counsel’s appointment by incarcerating Fritter for failing to comply with the case plan.
The granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Additionally, the appellant must show prejudice from the denial of a motion for continuance.
In support of his argument, Fritter cites Arkansas Code Annotated section 9-27-316(h)(4), which states:
If at the permanency planning hearing the court establishes the goal of adoption, the court shall determine if the putative parent has established significant contacts with the juvenile in order for the putative parent’s rights to attach and shall appoint counsel if eligible as provided in subdivision (h)(3) of this section.
|,j>The entirety of appellant’s motion to continue was as follows:
Well, Your Honor, in this case, I’m gonna [sic] ask for a continuance on this— this one because, for one, I just got appointed. I found out about my appointment March 18th. My client’s been incarcerated the whole time since then. As I understand there’s — well, there may be a difference of a view on this, but my client was apparently doing pretty well on some accounts before they [sic] were [he] incarcerated for contempt, and so I’d like more time to work with my client, get ready, make the best possible showing at the Termination as we can.
In response to counsel’s motion, the court specifically stated:
I’m going to deny your motion for a continuance in light of the fact [...] that we were set for a Termination Hearing on March the 15th and I continued that and appointed you to represent Mr. Fritter, who’s been in the jail, Washing ton County Jail, since March the 15th, so obviously, you could’ve visited with him at the county jail.
Fritter was readily available from March 15 through the morning of the termination hearing on April 3, 2012. We find no abuse of discretion. Even if we were to find that the court abused its discretion, and we do not, appellant’s only argument regarding prejudice was that his incarceration “prejudiced Appellant in his abilities to work the case plan and utilized [sic] the reunification services DHS was ordered to provide him” and led to “the ultimate prejudice of all” — his rights being terminated. This argument was not made below. Furthermore, Fritter made no arguments below regarding alleged difficulties for his counsel to access him nor did he make any arguments for a determination from the court that he, as putative father, had established significant contacts with the children. A party cannot change his argument on appeal and is bound by the scope of his arguments |1smade to the circuit court. Even in termination cases, we will not address arguments raised for the first time on appeal.
Affirmed.
GLADWIN, C.J., and WOOD, J., agree.
. We note that in addition to abstracting the termination of parental rights (TPR) hearing, McElroy also included abstracts of the entire proceedings of the March 14, 2012 adjudication hearing, August 8, 2012 review hearing, October 16, 2010 FTA warning hearing, January 10, 2012 permanency planning hearing, March 6, 2013 show cause hearing, and March 15, 2013 dependency neglect and review hearing. These additionally abstracted hearings contributed an additional 116 pages to the abstract. This was excessive abstracting beyond what was necessary to determine the sole issue on appeal. We also note the inclusion of numerous pages of unnecessary documents in the addendum, some in duplicate. Under Supreme Court Rule 4-2(a)(8), the contents of the addendum are to be limited to only those items necessary to an understanding of the issues on appeal or our jurisdiction. We have pointed out that an abstract and addendum can be deficient for containing too much material, as well as too little. West Memphis Adolescent Residential, LLC v. Compton, 2010 Ark. App. 450, at 12, 374 S.W.3d 922, 928 (citing American Transp. Corp. v. Exchange Capital Corp., 84 Ark.App. 28, 129 S.W.3d 312 (2003); Miller v. Hometown Propane Gas, Inc., 82 Ark.App. 82, 110 S.W.3d 304 (2003)). Although we decline to order rebriefing, we caution counsel against such practices in the future.
. The report was also accepted for inadequate supervision due to the appellants’ actions with H.F. in the hospital which included, among other things, McElroy’s sleeping more than H.F. and constantly leaving him to smoke cigarettes, at least once in the middle of a feeding, and Fritter’s leaving H.F. alone in her room despite being told not to.
. McElroy was the victim in the true findings involving Reddick, who was her mother's boyfriend up until her mother’s death in December 2011.
. Included in the court's findings supporting probable cause was McElroy’s true finding of inadequate supervision in 2011, which had only been closed in January 2012, McElroy’s inappropriate care of H.F. while he was hospitalized, and the fact that the parties were living with Reddick.
.On January 11, 2013, bench warrants were entered for both parties, by separate orders, for failure to appear and contempt of court for the parties' failures as cited in the January 11, 2013 permanency-planning order.
. Ark.Code Ann. § 9-27-341(b)(3)(A)(i) and (ii) (Repl.2009).
. Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a).
. Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
. Counsel was appointed orally from the bench at the March 15, 2013 hearing. A separate order appointing counsel was entered March 28, 2013.
. Ark.Code Ann. § 9 — 27—341 (b)(3)(A)(i) and (ii).
. Ark.Code Ann. § 9-27-341 (b)(3)(B)(i)(a).
. Ark.Code Ann. § 9-27-34l(b)(3)(B)(vii)(a).
. Morrison v. Ark. Dep’t of Human Servs., 2013 Ark. App. 479, 429 S.W.3d 329 (citing Blackerby v. Ark. Dep’t of Human Servs., 2009 Ark. App. 858, at 4, 373 S.W.3d 375, 378).
. Id.
. Id.
. Id.
. Arnold v. Ark. Dep't of Human Servs., 2013 Ark. App. 260, at 2, 427 S.W.3d 165, 166 (citing Ark.Code Ann. § 9-27-341 (Supp.2011); M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997)).
. Id. (citing Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992)).
. Id. (citing J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997)).
. Fenstemacher v. Ark. Dep't. of Human Servs., 2013 Ark. App. 88, at 6-7, 426 S.W.3d 483, 487 (citing J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997)).
. Id. at 7, 426 S.W.3d at 487 (citing Camarillo-Cox v. Ark. Dep't of Human Servs., 360 Ark. 340, 352, 201 S.W.3d 391, 399 (2005)).
. Gutierrez v. Ark. Dep't of Human Servs., 2012 Ark. App. 575, at 9, 424 S.W.3d 329, 335 (citing Cobbs v. Ark. Dep't of Human Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004)).
. Fenstemacher, 2013 Ark. App. 88, at 6-7, 426 S.W.3d at 487 (citing Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, at 7, 374 S.W.3d 205, 209).
. Arnold, supra, (citing Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001)).
. Burnett v. Ark. Dep't of Human Servs., 2011 Ark. App. 596, at 14, 385 S.W.3d 866, 874 (citing Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005)).
. Id.
. McElroy did not give a date of enrollment, but cited December 20, 2012, as her last day attending before going on maternity leave.
. Despite the test results, McElroy denied using drugs.
. A separate case plan involved the parties’ child, L.F., born February 20, 2013. An emergency hold was taken on L.F. at the initial termination hearing in the case involving H.F. and Z.F. The case involving L.F. is not now before us, despite being addressed by the court below in this case.
. McElroy had worked at a Dollar Tree and an Applebee's restaurant. McElroy acknowledged the court's order that she obtain a job, but stated that she did not have a job “because I’m trying to prove that I am disabled.” She went on to state "I don’t know why I didn’t get a job when the Court ordered it. I was just focused on trying to get my disability. And when you’re trying to get your disability, if you’ve been working they will not give it to you.”
.McElroy was required to reapply for assistance every two months. She advised that she was able to receive assistance from Arkansas Rehabilitation Services, despite not receiving disability benefits, because she had paperwork documenting her disability.
. Ashcroft v. Ark. Dep't of Human Servs., 2010 Ark. App. 244, at 10, 374 S.W.3d 743, 748 (citing Jones-Lee v. Ark. Dep’t of Human Servs., 2009 Ark. App. 160, 316 S.W.3d 261).
. Id. (citing Smith v. Ark. Dep’t of Human Servs., 93 Ark.App. 395, 219 S.W.3d 705 (2005)).
. Andrews v. Ark. Dep't of Human Servs., 2012 Ark. App. 22, at 9, 388 S.W.3d 63, 68 (citing Holiday Inn Franchising, Inc. v. Hotel Assocs., Inc., 2011 Ark. App. 147, 382 S.W.3d 6).
. Id. (citing Lyons v. Ark. Dep’t of Human Servs., 2009 Ark. App. 271, 2009 WL 1017710). | [
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DONALD L. CORBIN, Justice.
| )We accepted certification of the instant case from the Arkansas Court of Appeals, as it involves an issue requiring a first-time interpretation of Arkansas Code Annotated section 18-13-116 (Repl.2003), known as the Arkansas Horizontal Property Act. Appellant First State Bank argues on appeal that the circuit court erred in refusing to extinguish a lien for unpaid assessments held by Appellee Metro District Condominiums Property Owners’ Association, Inc. (Metro POA). Appellant also argues that the circuit court erred in awarding Appellee attorney’s fees. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1), (4), (5), and (6) (2013). We affirm.
The record reflects the following facts. On December 2, 2008, Nock-Broyles Land Development, LLC, and Henry D. Broyles executed a promissory note in the amount of $275,000, to purchase a condominium, Unit 270 in the Metro District Condominiums ^Horizontal Property Regime (Metro HPR), which was located in Fayetteville. The borrowers agreed to pay First State the principal amount, plus interest, by December 2, 2011, unless payment was demanded prior to that date, and executed a real estate mortgage in favor of First State.
Thereafter, on February 23, 2010, Nock-Broyles, Mr. Broyles, and First State entered into a debt-modification agreement, whereby the parties agreed to modify the repayment terms and the loan’s maturity date to November 10, 2011. This agreement also added 270 Metro, LLC, as an additional guarantor of all obligations due and owing under the terms of the loan.
Prior to the loan’s maturity date, First State demanded payment in full under the terms of the loan agreement. First State then filed an amended complaint in the Washington County Circuit Court on No vember 9, 2011, against Nock-Broyles, 270 Metro, and Metro POA. First State alleged that Nock-Broyles had breached and defaulted on its obligations under the loan, as set forth in the promissory note and the debt-modification agreement, and that First State was entitled to collect the money owed from Nock-Broyles and 270 Metro. First State prayed that it be granted judgment against Nock-Broyles and 270 Metro, jointly and severally, in the amount of $247,289.13, plus all unpaid accrued interest and other costs and attorney’s fees that might be incurred. First State requested that if payment was not made within ten days that the property be sold at a foreclosure sale and that Nock-Broyles and 270 [aMetro be held responsible for any deficiency that existed after the sale. Additionally, First State sought a declaration that its judgment be declared the first and superior lien on the real property. It acknowledged that Metro POA might claim an interest in the real property related to unpaid assessments, but asserted that any such interest was inferior to and subject to its mortgage and asked that any interest of Metro POA be foreclosed upon, terminated, and forever extinguished.
No answer was filed by Nock-Broyles or 270 Metro. Metro POA filed an answer and asserted, in relevant part, that its interest in the real property, as created by Metro HPR, dated June 21, 2005, was superior to that of First State.
First State moved for a default judgment against Nock-Broyles and 270 Metro, and subsequently moved for summary judgment as to all parties on July 17, 2012. Therein, First State reasserted that Nock-Broyles and 270 Metro were in default and further asserted that Metro POA had not filed any record of lien against the unit for any unpaid assessments and, regardless, First State’s interest in the property was superior to any interest of Metro POA. More specifically, First State argued that under section 18-13-116(c), its mortgage interest in the property was superior to any interest resulting from any unpaid assessments owed to Metro POA. First State again requested the circuit court to find that Metro POA’s interest was inferior and to extinguish any such claim it may have.
On September 12, 2012, Metro POA filed a notice of lis pendens, asserting its right to collect certain past-due property owners’ association fees and assessments due and owing on Unit 270.
I ¿The circuit court entered an order on October 12, 2012, denying without prejudice First State’s motion for summary judgment. Thereafter, Metro POA filed a motion for attorney’s fees on December 11, 2012, based on the circuit court’s ruling that its interest survived First State’s foreclosure action and asserted that the master deed and bylaws provided for the collection of attorney’s fees. First State responded, arguing that because Metro POA had not complied with its own bylaws by filing a lien for the unpaid assessments, it could not avail itself of the attorney’s fees provision in the bylaws. Moreover, First State argued that Metro POA was not entitled to an award of attorney’s fees as it had never filed an action or a cross-claim in this case seeking to enforce its claim for unpaid assessments.
On February 6, 2013, the circuit court entered an amended order of default judgment and decree of foreclosure, granting First State judgment against Nock-Broyles and Metro 270 in the amount of $247,289.13, plus interest and costs. The judgment gave First State the right to foreclose on the property if the judgment was not paid and appointed the circuit court clerk as Commissioner of the Court to conduct any foreclosure sale.. The circuit court also found that Metro POA’s interest from the unpaid monthly assessments would survive the foreclosure and would become the liability of whoever purchased the property at the foreclosure sale. Thereafter, First State purchased the property at the foreclosure sale for $148,000, by way of a credit against its judgment.
1 fiFirst State filed a timely notice of appeal on February 15, 2013, specifically stating that it was appealing only that part of the order and amended order finding that Metro POA’s interest should not be extinguished and would survive the foreclosure of the property and become the liability of the purchaser. Thereafter, on March 22, 2013, the circuit court entered an order awarding Metro POA attorney’s fees in the amount of $1,500. First- State filed a supplemental notice of appeal on March 28, 2013, stating its intent to appeal the award of attorney’s fees as well. We turn now to the arguments on appeal.
First State first argues that the circuit court properly recognized that it had the superior interest in the real property but erred in its interpretation of section 18-13 — 116(d) to conclude that Metro POA’s interest for the unpaid assessments should not be extinguished and would become First State’s responsibility as the purchaser of the property at the foreclosure sale. In advancing this argument, First State asserts that the effect of the circuit court’s ruling was to elevate Metro POA’s assessment above the bank’s mortgage on the property, in contravention of section 18-13-116(c). According to First State, subsection (d) contemplates only an ordinary course-of-business sale. To hold otherwise, First State argues, would be contrary to the well-established law that liens being foreclosed upon are extinguished by the judgment of foreclosure. In sum, First State argues that subsection (c) controls in those instances where there is a foreclosure sale, while subsection (d) governs regular course-of-business sales.
Metro POA argues to the contrary that the circuit court properly refused to extinguish its interest, as the purchaser of a foreclosed .unit is liable for delinquent assessments by virtue of section 18 — 13— 116(d), which provides no exception for foreclosure sales. Thus, according |fito Metro POA, the plain language of section 18-13-116(d) dictates that a purchaser of the property is statutorily liable for the unpaid assessments. Metro POA further argues that the obligation imposed under section 18-13-116(d) is of a personal nature and that a foreclosure does not extinguish a direct, personal liability.
The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. McLemore v. Weiss, 2013 Ark. 161, 427 S.W.3d 56. We are not bound by the circuit.court’s decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct. Id. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. Richard v. Union Pac. R.R. Co., 2012 Ark. 129, 388 S.W.3d 422. In reviewing issues of statutory interpretation, we first construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. McLemore, 2013 Ark. 161, 427 S.W.3d 56. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id. It is axiomatic that this court strive to reconcile statutory provisions to make them consistent, harmonious, and sensible. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179.
The Horizontal Property Act is codified at Arkansas Code Annotated sections 18-13-101 to -120 (Repl.2003), and provides for mandatory pro rata contributions from property owners within a horizontal property regime for “the expenses of administration and of maintenance and repair of the general common elements.” See section 18 — 13—116(a)(1).
17Subsections (c) and (d) of section 18-13-116 are at issue in the instant case and provide as follows:
(c) Upon the sale or conveyance of an apartment, all unpaid assessments against a co-owner for his or her pro rata share in the expenses to which subsection (a) of this section refers shall first be paid out of the sales price or by the acquirer in preference over any other assessments or charges of whatever nature except the following:
(1) Assessments, liens, and charges for taxes past due and unpaid on the apartment; and
(2) Payments due under mortgage instruments of encumbrance duly recorded.
(d) The purchaser of an apartment shall be jointly and severally hable with the seller for the amounts owing by the latter under subsection (a) of this section up to the time of the conveyance, without prejudice to the purchaser’s right to recover from the other party the amounts paid by him or her as the joint debtor.
Ark.Code Ann. § 18-13-116(c), (d).
First State asserts that the plain language of subsection (d) demonstrates that this subsection is not applicable in a foreclosure sale. According to First State, the provision in this subsection that the purchaser shall be liable with the seller for the amounts owing demonstrates that this applies only in an ordinary sale, because neither the circuit clerk appointed as the commissioner nor the mortgagee owe any money that may be imputed to the purchaser. Moreover, First State argues that the circuit court’s interpretation of this provision would effectively nullify subsection (c)’s requirement that a mortgage be given priority over other liens. In other words, to read subsection (d) as making a purchaser at a foreclosure sale liable for unpaid assessments would nullify the special position given to a mortgagee under subsection (c).
IsClearly, under subsection (c), when a unit is sold, the money due and owing under a mortgage takes priority over any unpaid assessments. Turning now to subsection (d), we see that it provides that a “purchaser of an apartment shall be jointly and severally liable with the seller for the amounts owing by the latter.” There is nothing in the plain language of this provision that supports First State’s assertion that subsection (d) does not apply to a mortgage foreclosure sale. We are bound by our rules to give the words in the statute their plain and ordinary meaning. McLemore, 2013 Ark. 161, 427 S.W.3d 56. Moreover, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. See id. First State asks us to read words into subsection (d) that simply are not there. Thus, in light of the plain language of the statute, we cannot say that the circuit court erred in refusing to extinguish Metro POA’s interest.
First State’s second point on appeal is that the circuit court erred in awarding attorney’s fees to Metro POA in the amount of $1,500. First State argues that Metro POA asserted entitlement to such fees based on language in the master deed and bylaws but, because Metro POA did not comply with those bylaws, it is not entitled to attorney’s fees. More specifically, First State asserts that because Metro POA never obtained a lien for the unpaid assessments, as required in the bylaws, it cannot seek attorney’s fees. Metro POA counters that it was not required to file any such lien or “notice of delinquent assessment” to be entitled to attorney’s fees. According to Metro POA, the fee award was a “lawfully agreed upon” expense | ^authorized by the Horizontal Property Act, as demonstrated by this court’s decision in Damron v. Univ. Estates, Phase II, Inc., 295 Ark. 538, 750 S.W.2d 402 (1988).
This court follows the American rule, which requires every litigant to bear his or her attorney’s fees absent statutory authority or a contractual agreement between the parties. See Carter v. Cline, 2018 Ark. 398, 430 S.W.3d 22. Because of the circuit court’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, we usually recognize the superior perspective of the circuit court in determining whether to award attorney’s fees. Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, 378 S.W.3d 135. The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Id.
Here, First State’s only argument challenging the award of attorney’s fees is that Metro POA did not comply with its bylaws and seek a lien for the unpaid assessments and thus cannot avail itself of the bylaws for support in seeking attorney’s fees. This argument is unavailing, as nothing in section 18-13-116 required Metro POA to obtain a lien, and, in any event, Metro POA filed a lis pendens with regard to its claimed interest in the property. Accordingly, based on the argument presented to this court, we cannot say that the circuit court abused its discretion in awarding attorney’s fees to Metro POA.
Affirmed.
GOODSON, J., dissents.
. The original complaint was filed on August 10, 2011, against Nock-Broyles and 270 Metro. Mr. Broyles had declared bankruptcy and was never named as a party to the action.
. Neither Nock-Broyles nor Metro 270 appealed the order of the default judgment, and they are not parties to the instant appeal. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Charles Jones appeals the decree entered by the Independence County Circuit Court divorcing him from appel-lee Myra Jones. For reversal, Charles contests the circuit court’s division of property in four respects. He contends that the circuit court erred (1) by not awarding him an interest in a home that Myra purchased before the marriage; (2) by dividing their vehicles unequally; (3) by giving Myra an interest in his life-insurance policies; and (4) by not imposing a constructive trust for the return of land in which Charles had deeded an interest to Myra. We granted Charles’s petition for review of the opinion issued by the Arkansas Court of Appeals that affirmed the circuit court’s decision. Jones v. Jones, 2013 Ark. App. 391, 428 S.W.3d 578. When this court grants a petition to review a decision by the court of appeals, we treat the appeal as if it had been originally filed in this court. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. We affirm.
\9Factual Background
The parties in this case married in June 1992. They had no children together. On July 13, 2011, Myra filed a complaint for divorce on the ground of general indignities. Charles answered the complaint and filed a counterclaim, also seeking dissolution of the marriage. Ultimately, Charles did not contest the divorce, and the parties’ dispute centered on the division of properly and the allocation of marital debt.
As reflected by the record, Charles received training in real estate and home inspection during the marriage. In 1999, he established his own heating-and-air business. In 2010, Charles’s monthly deposits from the business averaged slightly over $8,000 per month. From that amount, Charles estimated that he earned a profit of thirty to forty percent. Their tax return for that year showed an adjusted gross income from the business of $21,140. Before marrying Charles, Myra was employed at Harvest Foods for ten years, and after the marriage, she worked several years for a doctor as a receptionist and medical transcriptionist. Starting in 2002, she operated an antique shop that was located in a building owned by Charles’s father. This business was not profitable.
During the marriage, the parties resided in a home on Kyler Road in Batesville that Myra had owned since 1978; Also before the marriage, Charles had acquired property on Chinn Springs Road near Pfeiffer that was undeveloped and consisted of approximately thirty-five acres. In 1997, the parties executed a deed conveying this property to each other as |3husband and wife. The parties also owned three vehicles. Charles gave Myra a used Mercedes Benz as an anniversary present in 2009. Charles had two trucks that he used personally and in his business. At trial, Myra produced evidence that five policies insured Charles’s life.
The record also reveals that the parties amassed a fair amount of debt. The home on Kyler Road stood as security for personal loans that -they had obtained during the marriage. Myra said that they had taken out as many as seven different loans on the properly. At the time of the divorce, there was both a mortgage and a revolving line of credit that were secured by the home in the total amount of $59,246. According to the testimony, the loan proceeds were used for such things as living expenses, Myra’s dental work,- health-care costs, Charles’s training and his business, and the purchase of miniature horses and fencing for those animals. In addition, the parties owed approximately $22,000 on the Mercedes and $8,900 on one of the work trucks. Charles and Myra also accumulated considerable credit-card debt. Myra’s credit card for the antique store had a balance of $11,121.50. Charles owed $15,149 on a credit card for the heating- and-air business, and he had another card with a balance of $8,248.50.
In the decree, the circuit court ruled that the home on Kyler Road was Myra’s separate property, and the court declined to award Charles an interest in the home. The court awarded Myra the Mercedes and gave Charles the two trucks. The circuit court also ruled that the parties were to equally divide the cash values of the insurance policies. The court found that the land on Chinn Springs Road was marital properly and ordered the sale of the |4land, as well as the inventory of the antique shop. The court also accepted the parties’ joint exhibit listing items of personal property, which identified some as marital and others as separate property. The court ordered the items designated as marital property to be sold. The circuit court then directed that the proceeds from the sale of the marital prpperly be used to retire the parties’ debts. The proceeds were to be applied first to the debt on the Kyler Road property, with the remainder used to pay the other debts in the following order: the note on the Mercedes; Myra’s credit card; Charles’s truck note; and then Charles’s credit cards. Any remaining proceeds of the sale were to be divided equally between the parties. In addition, the circuit court did not award Myra an interest in the heating-and-air business. Charles also received the miniature horses.
Standard of Review
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 or against the preponderance of the evidence. Brown v. Brown, 3730 Ark. 333, 284 S.W.3d 17 (2008). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007).
Kyler Road Home
Charles first argues on appeal that the circuit court erred by not awarding him an interest in the home on Kyler Road. Although he acknowledges that Myra had acquired this property prior to the marriage, he asserts that he is entitled to an interest in the home because | ^marital funds were used to reduce the debt on the properly and to make improvements.
Our definition of marital properly excludes property acquired before the marriage. Ark.Code Ann. § 9-12-315(b)(1) (Repl.2009). However, we have long held that a non-owning spouse is entitled to some benefit when marital funds have been expended to improve or reduce the debt on the other spouse’s nonmarital property. See Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993) (holding that circuit court erred in failing to consider that marital property, in the form of marital earnings, was used to pay debt against non-marital property); Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984) (holding that a trial court may find that a non-owning spouse is entitled to some benefit by reason of marital funds having been used to pay off debts on the owning spouse’s nonmarital property); Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983) (holding that a non-owning spouse is entitled to some benefit when marital funds are used to improve nonmarital property). Although a non-owing spouse may be entitled to an interest in the other spouse’s nonmarital property, the nonmari-tal property itself is not transformed into marital property by virtue of the expenditure of marital funds to reduce debt or to make improvements. Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006).
The evidence presented in this case shows that insurance proceeds were used to install new flooring throughout the house and to replace the roof. However, Charles offered no testimony to establish the present fair market value of the home, nor was there any evidence to show any increase in value of the home resulting from the improvements. A spouse seeking to have an increase in value of nonmarital property declared marital has the burden |r,of proving marital contributions and an increase in value. Id. Charles clearly failed in this burden, and thus, we cannot conclude that the circuit court erred.
The testimony also reflects that Charles’s income was used to pay the loans encumbering the home. Even so, the testimony indicates that Myra owed only $16,000 on the home when the parties married and that the debt more than tripled during the marriage to the sum of $59,000. Although marital funds were used to service the debt, Charles has not demonstrated that these contributions resulted in an appreciable increase in equity or in the value of the home. Given the failure of proof, we are not able to conclude that the circuit court erred by awarding Charles no financial benefit in the home.
Vehicles
Charles next argues that the circuit court erred in its division of the marital vehicles. He contends that the court’s decision amounts to an unequal division of property because the Mercedes was worth $22,000 while the two trucks had a combined value of $13,000. We have long recognized that circuit courts, in traditional equity cases, have broad powers to distribute the property in order to achieve an equitable division. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15. The circuit court is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. See Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986). The overriding purpose of the property-division statute is to enable the court to make a division that is fair and equitable under the circumstances. Id.
This court has observed that marital property cannot always be divided exactly equally 17and in kind. See Bagwell, supra. Stated another way by our court of appeals, the property-division statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. See, e.g., McCormick v. McCormick, 2012 Ark. App. 318, 416 S.W.Sd 770; Coatney v. Coatney, 2010 Ark. App. 262, 877 S.W.3d 381. We will not substitute our judgment on appeal as to the exact interest each party should have but will decide only whether the order is clearly wrong. Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983). Here, the circuit court gave Myra the vehicle that she drove. The court awarded Charles the two trucks that he used in the heating-and-air business. We note that Myra gained no interest in the business upon the divorce, and the court declined to award her alimony. In addition, Charles received the miniature horses. Although the division of the vehicles was not precise, Charles has failed to demonstrate that the circuit court’s decision is clearly wrong in light of the overall circumstances of this case. Therefore, we affirm on this point.
Life-insurance Policies
Under this point, Charles asserts that the circuit court’s decision to equally divide the cash value of the life-insurance policies was clearly erroneous. Prior to trial, Myra propounded interrogatories to Charles. In them, she asked him to identify all policies insuring his life. Charles answered that there were none. However, at trial Myra produced evidence revealing the existence of five life-insurance policies. Charles testified that his father had purchased the policies when he was a child and that his father had transferred ownership of the policies to him in the past two years. He said that he did not know the cash values of any |sof the policies, and he recalled that two of them had been transferred into Myra’s name the previous year. Charles also acknowledged that he had paid premiums with marital funds. Charles’s father testified that he had purchased the policies and that some were structured to pay dividends. He said that Charles did not know about the insurance policies until two years ago.
Charles is correct that property received by gift is excluded from the definition of marital property. Ark.Code Ann. § 9 — 12—315(b)(1). However, Charles testified that two of the policies had been gifted to Myra and that marital funds were used to pay premiums. The record does not show the current value of all of the policies. Thus, it is impossible to determine whether this was or was not an equitable division. The burden is on the appellant to bring up a record sufficient to demonstrate that the trial court was in error. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986) (affirming decree where there was insufficient information in the record to show that the circuit court’s division of marital assets was in error). Charles has failed to meet this burden, and thus we must affirm.
Constructive Trust
For his final point on appeal, Charles contends that the circuit court erred by not imposing a constructive trust in order for the Chinn Road property to be his sole and separate property. He argues that their marriage created a confidential relationship and that he executed the deed conveying the properly on Chinn Road to them as husband and wife based on Myra’s agreement that she would deed to him a similar interest in the home on Kyler Road. While Charles offered testimony to that effect, Myra denied that she had promised to | ogive Charles an interest in the home. She stated that they had never discussed it, although she did agree that she wanted her name on the Chinn Springs Road property because the loans were secured by her home.
To bring about a constructive trust, an oral promise must be falsely given, with no intention of performance, so that it amounts to a misrepresentation of fact. Robertson v. Robertson, 229 Ark. 649, 317 S.W.2d 272 (1958). A constructive trust will be imposed if it is shown by clear and convincing evidence that the grantee’s promise was intentionally fraudulent or that the grantor and the grantee were in a confidential relation. Walker v. Biddle, 225 Ark. 654, 284 S.W.2d 840 (1956).
In our review, we give due deference to the circuit court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219. Here, the testimony as to whether Myra promised Charles to place his name on the property was conflicting. The circuit court resolved that conflict in Myra’s favor. Therefore, we can find no error in the circuit court’s decision not to impose a constructive trust.
Affirmed; court of appeals’ opinion vacated.
. Myra also sought alimony. Although the circuit court granted alimony on a temporary basis, the circuit court declined to make the award permanent. Myra has not pursued a cross-appeal of that decision. | [
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LARRY D. VAUGHT, Judge.
[T Tasha Nichols appeals the order entered by the Miller County Circuit Court denying her motion to change custody. On appeal, Tasha argues that the trial court erred in finding that she failed to establish a material change of circumstances. We affirm.
Tasha and her former husband, Troy, have four children, TAN (dob 9-24-02), TWN (dob 12-21-04), TEN (dob 2-19-04), and TNN (dob 2-6-07). In May 2009, Troy filed for divorce and was awarded temporary custody of the children. After a July 9, 2009 hearing, the divorce was granted and permanent custody of the children was awarded to Troy.
On July 31, 2010, Troy’s parents, appel-lees Teresa and Roger Teer, moved to intervene in the Nicholses’ divorce case, seeking custody of the children based on allegations that the children had been in their care since April 2009 and that neither parent had stable housing. A hearing on the Teers’ request for custody was held on August 5, 2010, during which Tasha agreed that the Teers should have temporary custody of the children. Tasha was permitted | ^supervised visitation, at her mother’s home, unless a “disruption” occurred, in which case future visitation would take place at Family Matters (a child visitation and exchange center) at Tasha’s expense. A final hearing on the Teers’ motion for custody was held on October 21, 2010, after which the trial court (1) awarded permanent custody of the children to the Teers; (2) awarded Tasha supervised visitation, including the provision that authorized a change in the visitation location; and (3) ordered Tasha to pay child support.
On February 16, 2012, Tasha filed a petition for change of custody, alleging a material change of circumstances. At the hearing on her motion a year later on February 26, 2013, Tasha testified that she had held the same job and lived in the same home for the past six months and that the Teers moved the children from public school and placed them in a private school without her consent. The focus of her motion, however, was her contention that for the past year the Teers frustrated visitation by refusing to talk to her and demanding that visitation take place at Family Matters. Tasha told the trial court that the Teers’ actions effectively terminated her visitation because she had been unable to contact Family Matters to arrange it. She said that no one answered the phone at Family Matters when she called and that the doors were locked when she went there. She also claimed that she could not afford to pay the visitation fees required by Family Matters. Tasha denied disrupting visitation, specifically denying that she cursed Teresa in the presence of the children.
{{When questioned about child support, Tasha admitted that she did not pay it from September 2010 to March 2011, because she was not working. She said that she did not pay support from August 2012 to February 25, 2013 (the day before the hearing), although she was working. She added, however, that she paid $125 in child support the day before the hearing and that her $791 tax refund was “intercepted” by the IRS for child-support purposes, which she claimed would cover the arrear-age.
April Potts, Tasha’s mother, who initially supervised Tasha’s visitation, testified that there had been no disruptions. Potts corroborated Tasha’s testimony that visitation stopped after Tasha told the Teers that she planned to seek custody. Potts testified that on more than five occasions, she contacted Teresa (by phone and text message) to request visitation, but Teresa said no.
Priscilla Hines, Tasha’s sister, testified that she was aware of Tasha’s attempts to set up visitation but that the Teers would not talk to Tasha. Tasha’s aunt, Dawn Jordan, testified that she was at the park during one of Tasha’s visitations, and no disruptions occurred.
Teresa testified that she has had the children since April 2009, when Tasha dropped them off, announcing “you can have these kids. I’m going on with my life. I can’t find a babysitter.... You’re welcome to these kids.” Teresa told the court that the children were doing very well. They made the A honor roll at the private Christian school the Teers moved them to. She admitted not contacting Tasha about moving the children to private school because she said that she had full custody and the children wanted to go there. She said that she and her husband have |4taken good care of the children— fed, clothed, and housed them — and it would upset them to leave.
Teresa also told the court that when she was initially awarded custody and Tasha was awarded supervised visitation, Teresa requested that she not be required to supervise Tasha’s visitation because “I’ve taken many confrontations from [Tasha] and I did not feel like it would be a good situation for the children to sit there and listen to that.” Teresa stated that she also asked for the provision in the custody order permitting visitation at Family Matters should visitation problems arise.
According to Teresa, there were several instances when Tasha, upset when the Teers could not schedule visitation convenient for Tasha, would send “nasty texts” or give a “cussing” to Teresa. On one occasion Tasha told Teresa that she wished Teresa would die. Teresa also testified about an incident during a visitation at a park where Tasha wanted to take one of the children to the restroom at Potts’s house but Teresa wanted the child to use a restroom at the park. Tasha became upset, and she and one of her sisters “cussed” Teresa in the presence of the children. After that incident, Teresa told Tasha that future visitations should be held at Family Matters. That same week, Teresa went to Family Matters, registered, and paid the fee.
Teresa also testified about an incident that occurred while she was at work at a convenience store. On one occasion, Roger and the children stopped by Teresa’s work to pick up pizza. According to Teresa, Tasha entered the store and walked around while talking on her cell phone. When they saw their mother, two of the children (girls) followed Tasha around the store calling “mama.” The two boys hid under a booth. When Tasha got to the cash register, one | sof the girls said, “Mama, are you not going to talk to us?” and walked away upset. Before leaving the store, Tasha reached down and said something to the girls, kissing one of them on the cheek. She told the boys to come out from under the booth and give her a hug.
Teresa’s co-worker, Alisa Bottoms, was also working at the convenience store the day that Tasha entered while talking on her phone. Bottoms corroborated Teresa’s testimony that two of the children ran up to Tasha and tried to talk to her but Tasha did not get off the phone. Bottoms testified that Tasha did not say anything to her children until she was walking out of the store.
Roger, who also witnessed the convenience-store incident, agreed with the accounts given by Teresa and Bottoms. He further testified that it was in the best interest of the children to stay with him and his wife.
The trial court entered a lengthy letter opinion on April 23, 2013, denying Tasha’s motion for change of custody. A formal order was entered May 29, 2013, finding that Tasha failed to establish a material change of circumstances. The order further provided that while it was not necessary to make a best-interest determination because Tasha failed to prove a material change of circumstances, it was in the best interest of the children to remain in the custody of the Teers |n“as the history of the case shows neither parent has been a fit parent to the children.” This appeal followed.
In reviewing child-custody cases, we consider the evidence de novo but will not reverse a trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Preston v. Preston, 2014 Ark. App. 58, at 2, 2014 WL 245783. We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id. This deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Anderson v. Thomas, 2013 Ark. App. 653, at 2, 2013 WL 5964473. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. at 2-3, 2013 WL 5964473. The reason for requiring more stringent standards for modifications is to promote stability and continuity in the life of the children and to discourage repeated litigation of the same issues. Id. at 3, 2013 WL 5964473.
The party seeking modification of the custody order has the burden of showing a material change in circumstances. Id. In order to change custody, the trial court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the children. Id.
bln its letter opinion, the trial court provided great detail in support of its conclusion that Tasha failed to prove a material change of circumstances. The trial court found that Teresa was a credible witness and that the Teers were justified in removing themselves and the children from Tasha’s disruptive behavior. The trial court further found that the Teers’ decision to have visitation at Family Matters was not unreasonable based on the custody order giving them that option, stating that the Teers “acted completely within the parameters of the custody order and cannot be said to be interfering with visitation rights when they were exercising the discretion granted to them in the order.”
The trial court also found that Tasha’s lack of visitation was based solely on her inaction to complete the Family Matters application and schedule the visits — it was not based on the actions/inactions of the Teers — and that Tasha’s explanation as to why she did not use Family Matters was not credible. Furthermore, the trial court found that Tasha’s plea of distress of not having visitation was severely undermined by her behavior at the convenience store when she demonstrated a lack of interest when she saw her children and by her lack of effort in pursuing visitation at Family Matters. The trial court acknowledged Tasha’s testimony that she had made improvements toward stability by maintaining employment and housing for the past five to six months but found that Tasha’s behavior in failing to pay child support the past six months and virtually ignoring the children when she saw them at Teresa’s workplace “belied” her improvement.
Finally, the trial court found that the Teers’ decision to remove the children from public school and place them in private school was not a material change of circumstances. The trial |scourt noted that the Teers had full custody of the children, which gave them implied authority to enroll them in the school of their choice. Also, there was no evidence that the new school had any negative impact on the children.
On appeal, Tasha disputes the trial court’s findings and contends that the evidence showed that the Teers “without good cause, took it upon themselves to stop ... visitation.” She denies that a disruption in visitation occurred sufficient to change the location of visitation to Family Matters. And she contends that her testimony that she attempted to establish visitation at Family Matters on several occasions was not refuted. Finally, she argues that there is no dispute that the Teers removed the children from public school to private school without consulting her.
These arguments are challenges to the credibility findings made by the trial court and to the weight the trial court gave to the evidence, and the trial court did not weigh the evidence in favor of Tasha. Rather, it found that her testimony lacked credibility and that her behavior contradicted her statements to the court. The trial court further found that the testimony of the Teers was credible; accordingly, it weighed the evidence in their favor. We defer to the trial court’s superior position to view and judge the credibility of the witnesses. Preston, 2014 Ark. App. 58, at 2, 2014 WL 245783.
Furthermore, in our de novo review, we cannot say that the trial court clearly erred in concluding that Tasha failed to prove a material change of circumstances. There was evidence that during visitation Tasha was verbally abusive to Teresa; that Tasha’s behavior occurred in the presence of the children, caused them stress, and disrupted visitation; and that the Teers 19were justified in changing the location of the visitation based on the disruption provision found in the custody order. There was also an absence of evidence demonstrating that the change in schools caused harm to the children. Therefore, we affirm on this point.
Alternatively, Tasha argues that “she should not have been required to show a material change of circumstances.” In what appears to be a best-interest-of-the-children argument, she contends that the trial court should have granted her motion to modify custody because she presented evidence that she is a fit and stable parent and that she has never been declared unfit. However, the law is clear that
[t]he party seeking modification of the custody order has the burden of showing a material change in circumstances. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). In order to change custody, the trial court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the children. Tipton v. Aaron, 87 Ark.App. 1, 185 S.W.3d 142 (2004).
Anderson, 2013 Ark. App. 653, at 3, 2013 WL 5964473. In this case, Tasha’s burden was to first prove a material change of circumstances. The trial court found that she failed to carry her burden, and we affirm that finding. Therefore, we do not reach the merits of Tasha’s best-interest-of-the-children arguments. | TnAffirmed.
GLADWIN, C.J., and HIXSON, J., agree.
. Tasha did not attend the hearing.
. Tasha testified that the Teers were making her move visitation to Family Matters because they were upset when she told them that she was going to hire a lawyer to seek custody of the children.
. Tasha testified in rebuttal that she remembered the convenience-store incident. She denied ignoring the children. She said that she gave all four kids hugs and kisses and told them she loved them.
. The Teers also presented the testimony of Cody Bohn and Vonda Williams, who attended church with the Teers and the children. Both Bohn and Williams testified that it is in the best interest of the children to stay with the Teers.
. To the extent that Tasha's best-interest arguments incorporate the claim that she was entitled to the constitutional presumption afforded a natural parent in a custody case, we cannot reach the merits of such a claim. It was not raised below, was not ruled on by the trial court, and cannot be raised for the first time on appeal. Harrison v. Phillips, 2012 Ark. App. 474, at 1, 422 S.W.3d 188, 189 (holding that the appellant’s constitutional argument was not preserved for appeal because it was not raised and developed before the trial court and because the appellant failed to obtain a ruling from the trial court): Camp v. McNair, 93 Ark.App. 190, 198, 217 S.W.3d 155, 159 (2005) (stating that ”[o]ur court has stated many times that it will not consider arguments raised for the first time on appeal, and even constitutional arguments must be raised below”). | [
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COURTNEY HUDSON GOODSON, Justice.
|!Appellant Talideen Davenport appeals the order entered by the Pulaski County Circuit Court denying his petition for post-conviction relief under Rule 37.1 of the Arkansas Rules of Criminal Procedure. For reversal of that decision, he contends that the circuit court erred by not finding that his trial counsel was ineffective for failing to object or secure his waiver when the circuit court, rather than the jury, imposed his sentences for a firearm enhancement and his convictions for unlawful discharge of a firearm from a vehicle. We affirm.
In 2006, the prosecuting attorney in Pulaski County charged Davenport by amended felony information with capital murder and three counts of unlawful discharge of a firearm from a vehicle. The information also alleged that Davenport was an habitual offender and that his sentences were subject to enhancement, pursuant to Arkansas Code Annotated section 16-90-120 (Repl.2006), for employing a firearm during the commission of the offenses. 12Subsequently, a jury found Davenport guilty of capital murder and the three counts of unlawful discharge of a firearm from a vehicle. The jury also found that Davenport used a firearm when committing each offense. Because the State waived the death penalty, the circuit court automatically sentenced Davenport to life in prison without the possibility of parole for capital murder. See Ark.Code Ann. § 5—10—101(c)(1) (Repl.2006); Ark. Code Ann. § 5-4-602(3)(B)(ii) (Repl.2006). The court also sentenced Davenport as an habitual offender to concurrent terms of thirty years in prison for the unlawful-discharge convictions and to a single consecutive term of fifteen years for a firearm enhancement. This court affirmed his convictions and sentences. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008).
Davenport subsequently filed a timely, pro se petition for postconviction relief alleging ineffective assistance of counsel. His claims included the allegation that his trial counsel was ineffective for not objecting when the circuit court, instead of the jury, assessed the sentences for the firearm enhancement and the unlawful-discharge convictions. The circuit court denied the petition without a hearing. Davenport appealed, and this court reversed and remanded because the circuit court failed to make adequate findings of fact on this issue. Davenport v. State, 2011 Ark. 105, 2011 WL 835180 (per curiam). Citing Haynie v. State, 257 Ark. 542, 518 S.W.2d 492 (1975), we observed that punishment under the firearm-enhancement statute should be set by the jury and not by the court when a defendant is tried by a jury. Although recognizing that Davenport’s claim did not constitute fundamental error, we concluded that he might have a cognizable claim of ineffective assistance of counsel for the failure to object |sto sentencing by the court on the firearm enhancement. We also observed that Davenport’s due-process rights were not violated when the circuit court imposed the sentence of life without parole for capital murder because that was the only sentencing option available due to the State’s waiver of the death penalty. However, we said that the same was not necessarily true for the unlawful-discharge convictions because a range of punishment was available on those charges. Although the State argued that Davenport waived sentencing by the jury in accordance with Rule 31.2 of the Arkansas Rules of Criminal Procedure, we concluded that the record of trial did not clearly demonstrate that there had been a waiver by defense counsel in open court or that the defendant was present when the waiver allegedly occurred, as the discussions regarding sentencing took place in a bench conference after the jury had announced its verdicts.
On remand, Davenport retained counsel, and the circuit court held a hearing that focused on the issue of waiver of sentencing by the jury. William O. James, Jr., Davenport’s trial counsel, testified that he recalled a bench conference where a waiver of sentencing by the jury on the firearm enhancement and the unlawful-discharge convictions was discussed because Davenport was to receive a mandatory life sentence for capital murder. However, James had no specific recollection of discussing the waiver with Davenport, but James said that it was his habit to do so and that “it’s hard to imagine I wouldn’t do it.”
Davenport testified that he remembered the lawyers approaching the bench after the jury had rendered the guilty verdicts, but he said that he could not hear the conversation that the lawyers were having with the judge. He did not recall a discussion "with James about ^permitting the judge to sentence him for the firearm enhancement or the unlawful-discharge-of-a-firearm convictions.
John Hout, the lead attorney in Davenport’s prosecution, testified that it is his practice in capital cases, where the death penalty is not at issue, to discuss with defense counsel the possibility of waiving jury sentencing on any remaining charges because the “amount of time would be irrelevant due to the fact that he would serve life without parole on the capital.” Hout remembered having such a discussion with James, and he recalled James having a private conversation with Davenport prior to the bench conference where James indicated that Davenport would waive jury sentencing on the remaining charges. Hout also made a notation on his case file that the defendant had waived jury sentencing. On cross-examination, Hout said that he was not privy to what James and Davenport had discussed in their private conversation prior to the bench conference, and Hout stated that Davenport was not present at the bench conference when James waived sentencing by the jury.
At the conclusion of the hearing, the circuit court once again denied Davenport’s petition for postconviction relief. In its written order, the circuit court found that James had agreed to waive sentencing by the jury and that James had not varied from his usual practice of securing consent to do so. The court also found that, even if Davenport had shown that counsel’s representation was deficient, he had not demonstrated that the outcome would have been different. Davenport timely filed a notice of appeal from the circuit court’s order.
On appeal, Davenport argues that decisions from this court establish that punishment should be set by the jury and not the circuit court when a defendant is tried by a jury. He [r,contends that the record of trial shows that his trial counsel did not object when the circuit court set his sentences for the firearm enhancement and the unlawful-discharge convictions. Davenport also argues that the trial record and evidence adduced at the Rule 37 hearing establish that trial counsel did not obtain his consent for the circuit court to impose the sentences. Thus, he contends that the circuit court erred by not finding that he had received ineffective assistance of counsel.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner, raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identify ing specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462.
lr,Thus, a petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Cunningham v. State, 2013 Ark. 304, 429 S.W.3d 201 (per curiam). The petitioner also must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Green v. State, 2013 Ark. 455, 2013 WL 5968933 (per curiam). Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Bond v. State, 2013 Ark. 298, 429 S.W.3d 185 (per curiam). As a consequence, we need not consider the first prong of the Strickland test if we determine that counsel’s alleged deficiency did not prejudice the defendant. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
This court does not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
|7In our bifurcated system of trial, after a jury finds guilt, the defendant, with the agreement of the prosecution and the consent of the court, may waive jury sentencing and have the court impose sentence. Ark.Code Ann. § 16-97-101(5) (Repl.2006). A defendant may waive the right to a jury through counsel, so long as the waiver is made in open court and in the presence of the defendant. Ark. R.Crim. P. 31.2; see also Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993). Davenport is correct that, absent a waiver, it is generally improper for a circuit court to assess a defendant’s sentence in place of a jury. See Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973). With respect to the firearm-enhancement statute, this court has held that the fact-finder, whether it be a jury or the judge sitting as the trier of fact, should determine whether a firearm was employed in committing the offense and also should assess the enhanced penalty. Brown v. State, 259 Ark. 449, 534 S.W.2d 213 (1976). In Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970), this court set aside a sentence for a firearm enhancement where the use of a firearm was not alleged in the information, and the circuit court, of its own volition, made an independent determination as to the use of a firearm and imposed the enhanced sentence in addition to the sen tence set by the jury. We held that the circuit court’s action deprived Johnson of his constitutional right to be informed of the nature of the accusation against him, as well as the right to trial by jury. We have also found error where the jury determined whether a firearm was employed but the court imposed the enhanced sentence instead of the jury. Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974). We noted that the same error occurred in Haynie, supra, but we declined to reverse in that case ^because the issue was raised for the first time on appeal. In Haynie, the direct appeal also addressed the denial of the appellant’s motion for a new trial in which he alleged ineffective assistance of counsel based on counsel’s failure to object when the circuit court set the sentence for the firearm enhancement rather than the jury. We rejected that claim, holding that it was a matter of trial strategy, namely that “the judgment of appellant’s counsel was dictated by the belief [that] the trial court would, most likely, be more lenient in the imposition of a sentence for the use of a firearm than would the jury.” Haynie, 257 Ark. at 547, 518 S.W.2d at 496.
In Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam), we also had occasion to address this issue in a postconviction setting. As in this case, Watkins claimed that his trial counsel was ineffective by not raising an objection when the circuit court, sua sponte, imposed the sentence on Watkins’s firearm enhancement rather than submitting the issue to the jury. Watkins alleged that he was prejudiced because he received a greater sentence from the court than he would have if the jury had been allowed to determine his sentence on the enhancement issue. Watkins based his argument on the fact that he received the maximum enhancement from the circuit court, and he maintained that the jury would have imposed the minimum sentence. We rejected this claim of prejudice on the ground that it was speculative and bereft of any factual support. See also Perry v. State, 2011 Ark. 434, 2011 WL 4840655 (per curiam) (dismissing a claim of ineffectiveness for failure to object to sentencing by the court instead of the jury because the assumption that the jury might have assessed a more lenient sentence was not sufficient to demonstrate prejudice).
|9In the case at bar, Davenport contends only that the circuit court erred by not finding that counsel’s performance was deficient by either failing to object when the circuit court imposed the sentences or to obtain his consent for waiving sentencing by the jury. Yet, Davenport wholly ignores the prejudice prong of the Strickland test that is necessary to succeed on an ineffective-assistance-of-counsel claim. “[T]he standard for judging the effectiveness of counsel requires a showing of more than the failure to raise an issue; the petitioner must establish prejudice at trial under Strickland.” Huls v. State, 301 Ark. 572, 576, 785 S.W.2d 467, 469 (1990). In other words, the petitioner must demonstrate a reasonable probability that the jury would have reached a different result. Id. Because Davenport does not assert any claim of prejudice, we must affirm, which makes it unnecessary for us to review the circuit court’s finding that counsel’s representation was not deficient. There is no reason for a court deciding an ineffective-assistance-of-counsel claim to address both components of the Strickland standard if the appellant makes an insufficient showing on one of the prongs. Moten v. State, 2013 Ark. 503, 2013 WL 6327549.
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PHILLIP T. WHITEAKER, Judge.
1, Debra Davis appeals an order of the Jefferson County Circuit Court granting summary judgment dismissing her claims against appellees Schneider National Carriers, Inc.; Schneider National, Inc.; and Paul Turner arising out of a motor-vehicle accident. We affirm.
A collision occurred at approximately 7:00 a.m. on November 13, 2008, in Jefferson County. Davis was traveling east on a county road that intersected with Highway 79. The intersection is controlled by a stop sign. Traffic traveling east on the county road must come to a stop and yield before proceeding onto Highway 79. A Schneider tractor-trailer driven |2by Turner was traveling south on Highway 79 between fifty and fifty-five miles per hour. As Davis attempted to make a left turn to travel north on Highway 79, she collided with the Schneider tractor-trailer. The Davis vehicle struck the Schneider trailer at its approximate midpoint. Fog was a contributing weather condition to the collision. Davis was knocked unconscious during the accident and had no memory of the events.
Davis filed suit against Schneider and Turner for the severe and permanent injuries she received as a result of the collision. The complaint alleged negligence and negligence per se against Turner and Schneider. The claims against Schneider were based on both vicarious liability for the acts of Turner and direct allegations of negligence. Davis sought both compensatory and punitive damages. Schneider and Turner jointly answered, denying the material allegations of the complaint.
The defendants moved for summary judgment on all of Davis’s claims, arguing that her alleged failure to stop and yield the right of way was the sole proximate cause of the collision. They also filed a separate motion for partial summary judgment on Davis’s claim for punitive damages, arguing that she could not establish that their acts or omissions met the standard for the imposition of punitive damages.
Following a hearing on the motion for summary judgment but prior to the court’s order granting summary judgment, Davis amended her complaint. She contended that Turner’s negligent and reckless driving and Schneider’s negligent and reckless failure to inform Turner of his sleep apnea condition were the proximate causes of her injuries and ^sought compensatory and punitive damages. Schneider and Turner filed a motion to strike the amended complaint. As the basis for their motion, they asserted that trial was already scheduled and that Davis was raising new allegations to which Schneider and Turner did not have sufficient time to respond or to conduct discovery.
On April 10, 2012, the circuit court entered its order granting summary judgment in favor of the defendants on all of Davis’s claims. The court found that Davis could not establish proximate cause because she either failed to stop at the stop sign or failed to yield the right of way. The court also rejected Davis’s independent claims against Schneider, finding such claims would create a new area of law to govern the commercial trucking industry. At the hearing, the circuit court had orally granted the defendants’ motion for summary judgment on Davis’s claim for punitive damages; however, the court did not address that ruling in its written order. After the court denied Davis’s motion seeking reconsideration, this appeal followed.
The law is well settled that 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. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary | ¿judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. We view 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. Id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001).
Davis contends that the circuit court erred in granting summary judgment because there were genuine issues of material fact remaining. Specifically, she argues that genuine issues of fact exist as to the visibility conditions and as to whether Turner’s speed in foggy conditions was a proximate cause of her injuries. The issue of visibility immediately prior to the time of the accident was crucial.
The defendants sought summary judgment contending that no issues of material fact existed concerning visibility immediately prior to the accident. As proof in support of this position, they referred to the deposition testimony of the driver, Turner. Turner testified that immediately prior to the time of the accident, the fog was above his truck and that there were no problems with visibility. He reported that he could see the Davis vehicle approaching Highway 79 along a side road, and he stated that it appeared that Davis was slowing down prior to his entering the intersection. Turner saw Davis drive past the stop jfiSign, which was set back from the intersection, but did not see her enter the intersection because the cab of his truck had already passed the intersection by the time of the collision.
The defense also presented testimony from their expert, Dr. Michael Brown. Brown said that he obtained data from the Pine Bluff and Stuttgart weather centers because of their proximity to the accident site. The Pine Bluff readings were taken at 6:53 a.m., some seven minutes prior to the accident. Brown opined that the data were consistent with Turner’s statement that he had 1000 feet of visibility. Brown also said that the data were consistent with Turner’s statement that the fog was above the cab of his truck. Brown further noted that meteorological phenomena such as fog can change very quickly over small spatial and temporal scales, so that without being there, there was no way to know the visibility at the time of the accident. This proof was sufficient to establish prima facie entitlement to summary judgment, shifting the burden to Davis to meet proof with proof and demonstrate the existence of a material issue of fact.
In an attempt to meet proof with proof, Davis offered the testimony of Arkansas State Police Trooper Charles Spurlin. Spurlin described the fog and its impediment upon his travel to the accident scene. However, his description of the fog is from a different location and time. He did not arrive at the accident scene until 7:31 a.m., twenty-six minutes after receiving the call. His description of the fog upon arrival does not create an issue of fact concerning the visibility of the fog immediately prior to the accident. Davis also submitted the deposition excerpts of six independent witnesses describing the fog upon their arrival at the accident scene. Those witness, however, were also not present at the time of the Raccident. Moreover, the excerpts failed to contain any references from which the circuit court could determine the proximity of the witnesses’ observations to the time of the accident. By not submitting evidence that was specific as to the time and place of the accident, Davis failed to meet proof with proof and to show specific issues that remained for trial. Ark. R. Civ. P. 56(e).
Davis filed a motion for reconsideration from the circuit court’s summary-judgment order, submitting the full deposition transcripts of the six witnesses. In the full deposition transcripts, there is testimony from which inferences can be made as to the proximity to the time of the accident. This proffer, however, was too late. Unless the court reduces or enlarges the periods upon a showing of good cause, the party against whom a motion for summary judgment has been made must serve a response and any supporting materials within twenty-one days after service of the motion. US Fuel Int’l, Inc. v. Murphy Oil USA, Inc., 2012 Ark. App. 367, 417 S.W.3d 228; Ark. R. Civ. P. 56(c)(1). Supplemental supporting materials may not be submitted after the time for serving a reply, unless the court orders otherwise. US Fuel Int’l, supra; see also Foscue v. McDaniel, 2009 Ark. 223, 308 S.W.3d 122. If a response or reply is untimely, the circuit court need not consider it. Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005). It has long been the rule that a motion for a new trial cannot be used to bring into the record that which does not otherwise appear in the record. Horton v. Horton, 2011 Ark. App. 361, 384 S.W.3d 61. As such, Davis 17failed to meet proof with proof to overcome the defendants’ prima facie case of entitlement to summary judgment.
Davis next contends that Turner’s testimony should not have been considered because the testimony of an interested party is controverted as a matter of law. The cases she cites are inapplicable to the present case, however, in that they do not involve materials in support of a motion for summary judgment. Moreover, we have held that Arkansas Rule of Civil Procedure 56(e) does not prohibit or limit the filing of self-serving affidavits. Wilson v. Pulaski Bank & Trust, 2011 Ark. App. 383, 383 S.W.3d 919; Mathews v. Garner, 25 Ark. App. 27, 751 S.W.2d 359 (1988). Rule 56(c) and (e) allow consideration of affidavits, depositions, admissions, and answers to interrogatories in summary-judgment proceedings. UMLIC 2 Funding Corp. v. Butcher, 333 Ark. 442, 970 S.W.2d 211 (1998). All evidence submitted in the course of summary-judgment proceedings must be under oath. Ark. R. Civ. P. 56(e). Turner’s deposition satisfied these condi tions, and thus, Davis has not argued a proper basis for ignoring Turner’s deposition testimony.
To establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant breached a standard of care, that damages were sustained, and that the defendant’s actions were a proximate cause of those damages. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116. Proximate causation is an essential element for a cause of action in negligence. Id. “Proximate cause” is defined, for negligence purposes, as that which in a ^natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Id. Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ, a question of law is presented for determination by the court. Id.; Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983). When a party cannot present proof on an essential element of his claim, the moving party is entitled to summary judgment as a matter of law. Neal, supra.
The Arkansas Supreme Court has long held that a driver using a through street or highway has a right to assume, until the contrary is or reasonably should be apparent, that another driver will obey a stop sign. Lawson v. Stephens, 241 Ark. 407, 407 S.W.2d 917 (1966); Shroeder v. Johnson, 234 Ark. 443, 352 S.W.2d 570 (1962); Rexer v. Carter, 208 Ark. 342, 186 S.W.2d 147 (1945). The holdings in these cases have been embodied in AMI 905, which provides that the driver with the right of way can assume that the disfavored driver will comply with the stop sign until the contrary is or reasonably should be apparent. Admittedly, the right of way is not absolute and all drivers, regardless of who has the right of way, have a duty to maintain a proper lookout and to use every precaution to avoid a collision. Olson v. Ortiz, 60 Ill.App.3d 787, 18 Ill.Dec. 197, 377 N.E.2d 350 (1978); Piccone v. Stiles, 329 N.J.Super. 191, 747 A.2d 296 (N.J.App. Div.2000); Ledford v. Fisher, 222 Tenn. 661, 439 S.W.2d 781 (1969); Liles v. Employers Mut. Ins. of Wausau, 126 Wis.2d 492, 377 N.W.2d 214 (Wis.App.1985).
Turner, as the favored driver, was not required to slow down or bring his vehicle under such control as to be able to stop in order to avoid a collision. Shroeder, supra. Even so, Turner’s testimony and Trooper Spurlin’s report show that Turner attempted to change lanes |;,and move to the left to avoid a collision with Davis. Here, there is no material issue of fact that Turner was using a through highway and that Davis had the duty to yield at the intersection, which she failed to do. Turner had already entered the intersection when he was struck broadside by Davis. Under these circumstances, we agree with the circuit court’s conclusion that Davis was the proximate cause of this collision. Therefore, summary judgment was properly entered for Schneider and Turner. See Barriga v. Arkansas & Missouri R.R. Co., 79 Ark.App. 358, 87 S.W.3d 808 (2002). There is likewise no merit to Davis’s argument that the circuit court somehow relieved Schneider and Turner of their duty to her.
In light of our affirmance on the issue of proximate cause, we need not address Davis’s remaining arguments concerning whether certain claims against Schneider remain viable or whether the circuit court correctly granted summary judgment on her claim for punitive damages.
11(>Affirmed.
VAUGHT and BROWN, JJ., agree.
. Schneider National Carriers, Inc., is a wholly-owned subsidiary of Schneider National, Inc. Out of convenience, we refer to Schneider National Carriers, Inc., and Schneider National, Inc., collectively as Schneider unless the context requires otherwise.
. Prior to the collision, Schneider had identified Turner as a high risk for sleep apnea, but he was not notified of that until the day of the collision. Ten days after the accident, Turner was examined and diagnosed as having severe obstructive sleep apnea.
. Davis argues that Horton is inapplicable because that case involved a motion for a new trial instead of a motion for reconsideration. Davis’s motion for reconsideration was, in fact, a motion for a new trial because it alleged that the circuit court’s decision in granting summary judgment was contrary to law. See Ark. R. Civ. P. 59(a)(6) (setting forth as a ground for a new trial that the decision was clearly contrary to law).
. As a final matter, we note that Davis’s inclusion of the deposition transcripts in her addendum, in addition to the abstract, violates our briefing rules. If a transcript of a deposition is an exhibit to a motion or related paper, the material parts of the transcript shall be abstracted, not included in the addendum. Ark. Sup.Ct. R. 4-2(a)(5)(A) & 4-2(a)(8)(A)(i). The addendum shall also contain a reference to the abstract pages where the transcript exhibit appears as abstracted. Ark. Sup.Ct. R. 4-2(a)(8)(A)(i). Both this court and the supreme court have recently ordered rebrief-ing to correct such defects. See Skalla v. Canepari, 2013 Ark. 249, 2013 WL 2460166 (per curiam): GSS, LLC v. Centerpoint Energy Gas Transmission Co., 2013 Ark. App. 465, 2013 WL 4766692; Hobson v. Entergy Arkansas, Inc., 2013 Ark. App. 447, 2013 WL 4557214; Chesapeake Exploration, LLC v. Whillock, 2013 Ark. App. 339, 2013 WL 2243834. Davis has correctly abstracted the deposition and hearing transcripts; however, our rules require that these items not be placed in the addendum. Skalla, supra. Together, these deposition transcripts total over 500 pages and makes up more than half of the 795-page addendum. We have pointed out numerous times that an abstract and addendum can be deficient for containing too much material, as well as too little. See Erwin v. Frost, 2013 Ark. App. 440, 2013 WL 4556286; West Memphis Adolescent Residential, LLC v. Compton, 2010 Ark. App. 450, 374 S.W.3d 922; American Transp. Corp. v. Exchange Capital Corp., 84 Ark.App. 28, 129 S.W.3d 312 (2003); Miller v. Hometown Propane Gas, Inc., 82 Ark.App. 82, 110 S.W.3d 304 (2003). Although we decline to order rebriefing, we caution counsel against such practices in the future. | [
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ROBERT J. GLADWIN, Chief Judge.
[ jAppellant Jeanne Simpson Harbur appeals the March 14, 2013 declaratory judgment of the Crittenden County Circuit Court in favor of appellees Sarah Shelton O’Neal and John Carter Shelton (“Carter”). Jeanne argues that the circuit court failed to accommodate her hearing disability; improperly shifted the burden of proof to her related to undue influence regarding the trust amendments; erred in invalidating the May 2, 2011 trust amendment; erred in failing to recognize the handwritten documents from August 2011 as valid trust amendments; and committed reversible error in its assessment of her credibility in failing to address her hearing disability. We affirm.
The basis of this appeal is the Josephine Young Simpson Revocable Trust that was executed on March 6, 2004, by Josephine Young Simpson. Mrs. Simpson had two 12daughters, Sarah Ann “Sally” Simpson Shelton and Jeanne. On February 2, 2011, Sally passed away unexpectedly. Immediately upon the death of Sally, her husband, David Shelton, and daughter, appellee Sarah, asked Mrs. Simpson to sign.over to them certain HH bonds, which had been purchased by Mrs. Simpson and had both Mrs. Simpson’s and Sally’s names on them. Mrs. Simpson chose not to sign over the bonds at that time, and according to Jeanne, when David learned that Mrs. Simpson would not sign the bonds, he tried to change her mind, and a confrontation ensued.
Mrs. Simpson executed a power of attorney (“POA”) on May 2, 2011, which allowed Jeanne to sign checks paying Mrs. Simpson’s bills. Aso on May 2, 2011, Mrs. Simpson signed a purported amendment to the trust that provided that, rather than Jeanne and Sally acting as co-trustees in the event of Mrs. Simpson’s death or inability to continue serving, Jeanne alone would serve as trustee. It is undisputed that both the POA and the May 2, 2011 trust amendment were typed by Jeanne. The POA and trust amendment were witnessed and notarized by employees of Broadway Health Care (“BHC”), the nursing home where Mrs. Simpson resided.
In June 2011, Carter went to BHC with Martha Hunt, an employee of Fidelity National Bank, to supervise Mrs. Simpson signing over the HH bonds. According to Ms. Hunt, Mrs. Simpson told Ms. Hunt that she wanted the proceeds of the bonds to be deposited into her checking account. At some point after the funds were deposited into Mrs. Simpson’s account, the value of the bonds was disbursed by two checks to Sarah and Carter, but neither admit to being the one who gave the checks to Mrs. Simpson to sign.
Is At Jeanne’s next visit with her mother in early August 2011, she reviewed her mother’s financial statements with her. Jeanne said that it was brought to Mrs. Simpson’s attention that the checks had been written and that her signature appeared on them. Athough she was insistent that she had not signed the checks, there is no dispute that it is Mrs. Simpson’s signature on the checks and that Mrs. Simpson could not see very well.
On August 9, 2011, after Jeanne had returned to Missouri, Mrs. Simpson hand-wrote two documents, purporting to create a holographic will in which she stated that she wished that all her assets be given to Jeanne. On November 11, 2011, Mrs. Simpson signed a trust amendment that was typed by Jeanne but contained the exact words handwritten by Mrs. Simpson in the August 2011 documents.
Mrs. Simpson passed away in Critten-den County, Akansas, on February 8, 2012. Ater Mrs. Simpson’s death, Sarah filed her request to probate a will that Mrs. Simpson had executed in 2004, and to appoint Sarah as personal representative of Mrs. Simpson’s estate. Sarah and Carter then filed a petition for declaratory judgment requesting that the circuit court strike the purported May and November 2011 trust amendments.
The petition for declaratory judgment proceeded to trial. The circuit court determined that because of the existence of the POA and because Jeanne had been helping her mother with her finances, a confidential relationship existed, which shifted the burden of proof to Jeanne to prove beyond a reasonable doubt that Mrs. Simpson had the mental capacity and free will to execute the 2011 trust amendments. The circuit court found that |4Jeanne failed to do so in its letter ruling dated January 10, 2013, and formalized in the March 14, 2013 declaratory judgment. A timely notice of appeal was filed on April 11, 2013.
I. Failure to Accommodate Jeanne’s Hearing Disability and Effect on Credibility
Appellant’s first issue of whether the circuit court failed to accommodate her alleged hearing disability was not raised in the circuit court and will not be considered. In Akansas, it is a well-settled rule that issues not raised or ruled on in the circuit court will not be considered for the first time on appeal. Parker v. Advanced Portable X-Ray, LLC, 2014 Ark. App. 11, 431 S.W.3d 374. At no time did Jeanne or her counsel complain that Jeanne’s hearing was so poor that she needed accommodation by the circuit court. In giving her testimony, she was responsive to the questions put to her by attorneys on both sides. The testimony indicates that on the few occasions where Jeanne complained that she had some difficulty hearing the question, the question was repeated and answered by her. This is a common practice in court proceedings, and it appears that everyone involved provided the relief requested by Jeanne.
Appellant also argues that she might not have been able to follow the testimony of others as they testified, which would have made her unable to effectively interact with her counsel regarding the testimony being given by others. If that occurred, the problem was not brought to the attention of the circuit court so that the circuit court had an opportunity to address the situation. Jeanne even acknowledges her inaction with respect to this issue in her brief. Accordingly, this issue is not preserved for this court’s review.
| .^Likewise, in her final point on appeal, Jeanne submits that the circuit court’s silence on the issue of her obvious hearing disability negatively affected the circuit court's assessment of her credibility. She argues that some remedy is required to protect her due-process rights. We note that there is no evidence that Jeanne’s alleged hearing disability had any effect on the circuit court’s assessment of her credibility, but as with the previous discussion in this point, this issue was not raised in the circuit court and will not be addressed. Parker, swpra.
II. Burden of Proof Shifted to Jeanne Regarding Undue Influence
The capacity required to create, amend, revoke, or add property to a revocable trust is the same as that required to make a will. Ark.Code Ann. § 28-73-601 (Repl.2012). “The test to determine whether a will is the product of undue influence is the same for a trust that takes effect, in part, at death.” Medlock v. Mitchell, 95 Ark.App. 132, 136, 234 S.W.3d 901, 905 (2006). Ordinarily, the party challenging the validity of a will is required to prove by a preponderance of the evidence that the testator lacked mental capacity or was unduly influenced at the time the will was executed. Bell v. Hutchins, 100 Ark.App. 308, 268 S.W.3d 358 (2007). But in a case where a beneficiary procures the making of a will, a rebuttable presumption of undue influence arises that places on the beneficiary the burden of proving beyond a reasonable doubt that the testator enjoyed both required mental capacity and freedom of will. Pyle v. Sayers, 72 Ark.App. 207, 34 S.W.3d 786 (2000).
Jeanne claims that, regarding the May 2, 2011 trust amendment, no evidence was offered by anyone that suggested that Mrs. Simpson was mentally incompetent at the time the amendment was signed. She notes that the mental capacity of the maker of a trust or | fideed is presumed and it falls to the contestants to prove incapacity by a preponderance of the evidence. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Jeanne argues that the presence of the presumption of undue influence does not negate the presumption of mental capacity. Id.
The requisite level of mental capacity to create a trust is defined as having “sufficient mental capacity to retain in his memory, without promptings, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom.” Rose, 284 Ark. at 46, 679 S.W.2d at 182. The definition of “undue influence”, on the other hand, is influence “such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.” Rose, 284 Ark. at 45, 679 S.W.2d at 182.
Jeanne notes that Carter admitted that Mrs. Simpson’s mental capacity was excellent in May 2011, and that Sarah testified she did not start to wonder about her grandmother’s mental capacity until October 2011. Accordingly, Jeanne claims that there is no basis for a finding that Mrs. Simpson was not mentally capable of executing the May 2011 trust amendment.
Jeanne submits that leaves only undue influence as a means available to Sarah and Carter to invalidate the May 2011 trust. Jeanne acknowledges that, because of the rebuttable presumption, she had the burden of moving forward and producing evidence to rebut this presumption. But she claims that the burden of proving the undue influence by the preponderance of the evidence remained on Sarah and Carter, see Rose, supra, and she |7maintains that no evidence was offered that, in May 2011, Mrs. Simpson was either in fear of Jeanne or felt coerced by her in any way. To the contrary, Sarah and Carter testified that their grandmother felt Jeanne was “a bit of a flake” and that she did not count on her and would roll her eyes when talking about Jeanne. She maintains that this is hardly the way one would expect her to speak about someone of whom she was afraid.
Jeanne argues that there can be no undue influence without evidence of malign intent. She maintains that Sarah and Carter rely simply on the belief that the burden to disprove undue influence beyond a reasonable doubt is so high that no evidence to support the circuit court’s finding is required — basically asking the court to deem it an irrebutable presumption. Jeanne notes that even if the court chooses to believe that Jeanne engaged in a course of conduct designed to cause her mother to leave all of her assets to her, that still does not support a finding of undue influence.
We hold that the circuit court did not improperly shift the burden of proof to Jeanne on this issue. Where a beneficiary procures the making of a trust, a rebutta-ble presumption of undue influence arises and the burden of proof then shifts to the proponents of the trust to prove beyond a reasonable doubt that the trustor had both the mental capacity and freedom of will to render the trust legally valid. Pyle, supra. The same rebuttable presumption of undue influence arises when the beneficiary has a fiduciary and/or confidential relationship with the maker of a will or trust such as the relationship between a person who holds power of attorney and the grantor of that power. Medlock, supra.
18First, the circuit court found that there was a confidential relationship between Jeanne and Mrs. Simpson based on Jeanne’s testimony that (1) beginning in 2004, she supervised Mrs. Simpson’s financial affairs; (2) Mrs. Simpson had limited vision and could see and read only large-size print and writing; (3) Jeanne drafted the trust dated March 6, 2004, for Mrs. Simpson’s signature; (4) Jeanne drafted her will dated April 8, 2004, for Mrs. Simpson’s signature; and (5) Jeanne’s management and supervisory control of Mrs. Simpson’s financial affairs increased after Mrs. Simpson broke her hip in 2009 and entered BHC. Because of this confidential relationship between Jeanne and Mrs. Simpson, a rebuttable presumption of undue influence arose, which shifted the burden of proof to Jeanne to prove that Mrs. Simpson had both the mental capacity and freedom of will when she executed the two trust amendments. Medlock, supra.
The circuit court also found that there was a fiduciary relationship between Jeanne and Mrs. Simpson, with Jeanne owing a fiduciary duty to Mrs. Simpson by reason of the durable POA dated May 2, 2011, which was executed by Mrs. Simpson and appointed Jeanne as her attorney in fact, and because of the supervisory control that Jeanne had over Mrs. Simpson’s financial affairs. That fiduciary relationship also gave rise to a rebuttable presumption of undue influence by Jeanne over Mrs. Simpson, which also shifted the burden of proof to Jeanne to prove that Mrs. Simpson had both the mental capacity and freedom of will when she executed the two trust amendments. Medloclc, supra.
Regarding procurement of the trust amendments, Jeanne testified that after her sister Sally’s death, she discussed with Mrs. Simpson changes to be made to the trust, and that Mrs. 1 nSimpson requested that Jeanne prepare an amendment to the trust that would make Jeanne the sole trustee upon Mrs. Simpson’s death and Jeanne’s daughter, Katherine Wessling, the successor trustee in the event Jeanne was unable or unwilling to serve as trustee. Jeanne prepared and typed the first trust amendment and presented it to Mrs. Simpson for her signature, which she signed on May 2, 2011.
In its extensive letter opinion, the circuit court found that Jeanne procured the first trust amendment dated May 2, 2011, based on the facts that Jeanne had performed every step of obtaining information, preparing the document, producing the document, and finalizing the document, and had also benefitted from the amendment. Because Jeanne procured this trust amendment, a rebuttable presumption of undue influence arose and the burden of proof then shifted to Jeanne to prove beyond a reasonable doubt that Mrs. Simpson had both the mental capacity and freedom of will at the time she executed the trust amendment. Pyle, supra.
Jeanne testified that she also prepared for Mrs. Simpson’s signature the second trust amendment dated November 11, 2011. This trust amendment made Jeanne the sole beneficiary of the trust upon Mrs. Simpson’s death, and made Jeanne’s children sole beneficiaries of the trust if Jeanne did not survive Mrs. Simpson. The circuit court found that Jeanne procured the second trust amendment based on the facts that Jeanne performed every step of obtaining information, making decisions on information received, preparing the document, producing the document, and finalizing the document as the second trust amendment, and that Jeanne and her child benefitted from the second trust amendment. We |10hold that the circuit court’s ruling shifting the burden of proof to Jeanne with regard to the two amendments to the trust is supported by overwhelming evidence — including but not limited to Jeanne’s own testimony.
III. Invalidity of May 2, 2011 Amendment
In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the weight of the preponderance of the evidence. Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the firm conviction that a mistake has been committed. Machen v. Machen, 2011 Ark. 531, 385 S.W.3d 278. The appellate court will reverse a probate court’s determination on the questions of mental capacity and undue influence only if they are clearly erroneous, giving due deference to the superior position of the trial court judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Simpson v. Simpson, 2014 Ark. App. 80, 432 S.W.3d 66; Pyle, supra. Whether a trust was procured by undue influence is a question of fact for the trier of fact. Medlock, supra. Undue influence on a testator may be inferred from the facts and circumstances. Simpson, supra.
Jeanne claims that in this case, the credibility of the witnesses was the basis of the circuit court’s decision to invalidate the May 2, 2011 trust amendment. The circuit court found that where the testimony of Jeanne or her four disinterested witnesses differed from what she describes as the self-serving testimony of Sarah and Carter, Sarah’s and Carter’s | ntestimohy was more credible. Jeanne claims, however, that the testimony of ap-pellees actually conflicts with the circuit court’s findings on this point.
By their own admission, Sarah and Carter testified that any concerns they had with Mrs. Simpson’s mental capacity did not begin until October 2011, which, Jeanne notes, was after Mrs. Simpson told Sarah that she and Carter “had gotten everything from her that they were going to get.” Jeanne claims that they actually avoided offering any such evidence to prove Mrs. Simpson was incompetent because the circuit court might have reasoned that when they had Mrs. Simpson sign over the bonds in June, they were taking advantage of someone with competency issues. Accordingly, Jeanne maintains that the circuit court’s finding that Mrs. Simpson lacked mental capacity and/or freedom of will to amend her trust on May 2, 2011, must rely only on the belief that she lacked the freedom of will to amend.
Sarah and Carter submitted to the circuit court the durable POA that was signed on May 2, 2011, by Mrs. Simpson. The witnesses to the durable POA and the witnesses to the May 2, 2011 trust amendment were the same. The circuit court relied on the POA as evidence to establish a confidential relationship existed between Mrs. Simpson and Jeanne, and further that this relationship was the reason the circuit court shifted the evidentiary burden to Jeanne. Jeanne argues that it is logically inconsistent for the circuit court to conclude that Mrs. Simpson was acting of her own free will in signing a document which gave Jeanne the authority to handle her financial affairs and at the exact same time find that Jeanne was unduly influencing Mrs. Simpson into signing a trust amendment that did not transfer any assets or benefit Jeanne in any material way. She urges that acceptance by the [ ^circuit court of the validity of the durable POA should have estopped the circuit court from finding that the May 2, 2011 trust amendment is invalid.
Based upon the previously discussed finding that there was a fiduciary and confidential relationship between Jeanne and Mrs. Simpson, and that Jeanne procured the two amendments to the trust, the burden of proof shifted to Jeanne to prove beyond a reasonable doubt that Mrs. Simpson had both the mental capacity and freedom of will at the time she executed the amendments to her trust. The circuit court found that not only had Jeanne failed to overcome the rebuttable presumption of undue influence and failed to meet the burden of proof, but also that there was sufficient evidence before it for the circuit court to find that Jeanne exerted undue influence over Mrs. Simpson in the execution of the two trust amendments even in the absence of a presumption of undue influence.
Evidence indicates that each of Jeanne’s visits with Mrs. Simpson in 2011 coincided with Jeanne obtaining information to prepare or obtain Mrs. Simpson’s signature on documents to change the distribution of the assets of the trust following Mrs. Simpson’s death, each benefitting Jeanne and/or her children. Additionally, after Sally’s death in February 2011, there were several occasions where Jeanne’s influence on Mrs. Simpson’s decision to amend her trust was obvious or could at least be inferred by the circuit court — including evidence that every expression of frustration or concern with Sarah and Carter’s side of the family made by Mrs. Simpson coincided with Jeanne’s visits.
It was right after Jeanne’s August 2, 2011 visit that Mrs. Simpson wrote out the two holographic wills declaring that “the Shelton family has already received their share of my | ^assets,” and giving all of her assets to Jeanne. There was no evidence presented that Sarah, Carter, or the Shelton family had received any of Mrs. Simpson’s assets, other than the $57,000 from the HH Bonds, which had been in the joint names of Sally and Mrs. Simpson, far less than one-half of Mrs. Simpson’s estate. Evidence supports that Mrs. Simpson did not understand the extent of her wealth when she wrote out the two proposed holographic wills. Additionally, Mrs. Simpson attempted to make a will with the two holographic documents, but Jeanne decided instead to amend the trust, not a will.
Evidence supports the circuit court’s conclusion that Mrs. Simpson’s relationships with Sally, David, Sarah, and Carter were strong and positive prior to Sally’s death and the initiation of an increased, focused influence by Jeanne. Sally visited Mrs. Simpson at BHC at least three times a day, every day, feeding her three meals, washing her clothes, changing diapers, accompanying her on trips to the doctor, and participating with her in activities at BHC. Sarah had a close relationship with Mrs. Simpson until after Sally’s death. Several witnesses, including Jeanne and her witnesses, testified that Carter had a very loving relationship with Mrs. Simpson and that she held him in high regard.
Conversely, Jeanne played no role in the personal care of Mrs. Simpson, merely handling the financial affairs. Prior to Sally’s death, Jeanne would visit her mother three to four times a year, staying only one night. All of the personal care for Mrs. Simpson was left to the supervision of Sally and her immediate family. Jeanne did not relieve Sally from the care of her mother long enough for Sally to attend her son’s wedding in Kansas City. Even after Sally’s death, Jeanne’s role in the care of Mrs. Simpson remained related to her financial |Maffairs. Moreover, evidence indicates that Jeanne kept Sarah off of the list at BHC for individuals authorized to obtain information concerning Mrs. Simpson, preventing Sarah from obtaining information and providing adequate care for Mrs. Simpson.
The circuit court reviewed all of the testimony and other evidence in this case and issued a comprehensive letter opinion, including ten pages of findings fact and conclusions of law on which the opinion was based. We find no error in the circuit court’s finding that Jeanne failed to rebut the presumption of undue influence, nor proved beyond a reasonable doubt that Mrs. Simpson had both the mental capacity and freedom of will at the time she executed the alleged May 2, 2011 trust amendment.
IV. Failure to Recognize the Handwritten August 2011 Documents as Trust Amendments
Finally, we find no merit in Jeanne’s lengthy argument in support of her asser tion that the circuit court erred in failing to recognize the two August 2011 documents written by Mrs. Simpson as trust amendments. The parties stipulated that the two handwritten documents were not controlling as to the disposition of the assets at issue in this case, and this particular issue was not raised at trial and will not be considered by this court. Parker, supra.
Affirmed.
VAUGHT and HIXSON, JJ„ agree.
. Because of the close connection, this last point on appeal will be addressed within the discussion of Jeanne’s first point on appeal. | [
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JIM HANNAH, Chief Justice.
11 This case involves a question of law certified to this court by the United States District Court for the Western District of Arkansas, Hot Springs Division, in accordance with Arkansas Supreme Court Rule 6-8 (2013) and accepted by this court on November 7, 2013. See Roeder v. United States, 2013 Ark. 451, 430 S.W.3d 667. The certified question is:
Whether “malicious” conduct, under Arkansas Code Annotated section 18 — 11— 307(1) (Repl.2003), includes conduct in reckless disregard of the consequences from which malice may be inferred.
We answer in the affirmative.
The following facts were provided in the federal district court’s certification order. This is one of eleven similar cases filed in federal district court arising from the deaths of campers who died in a tragic flood incident in June 2010 at the Albert Pike Recreation Area (“APRA”). Some of these campers were camping in Loop D, which is a section of the APRA designated for RV use. Others were camping upstream from Loop D, along Road 512 in the Ouachita National Forest. In the early morning hours of June 11, 2010, heavy rainfall in Montgomery County caused a rapid rise in the Little Missouri River and its tributaries. A flash flood occurred when the river overran its banks into Loop D and the surrounding areas of the APRA. According to the United States Geological Service, the Little Missouri River rose over twenty feet between 2:00 a.m. and 5:30 a.m. Twenty people perished in the flood.
| gPIaintiffs, Theresa Roeder, as the Ad-ministratrix of the Estate of Esther Kay Roeder, deceased, and on behalf of the wrongful death beneficiaries of Esther Kay Roeder; Tara Roeder, as the Administra-trix of the Estate of Bruce Wayne Roeder, and on behalf of the wrongful death beneficiaries of Bruce Wayne Roeder; and Tara Roeder, as the Administratrix of the Estate of Deborah Busby Roeder, and on behalf of the wrongful death beneficiaries of Deborah Busby Roeder (collectively referred to as “Roeder”), filed suit in federal district court against defendants, the United States of America; James S. Watson, in his individual and official capacity; Gloria Maples Chrismer, in her individual and official capacity; Norman L. Wagoner, in his individual and official capacity; James B. Kozik, in his individual and official capacity; and John Does 1-5, in their individual and official capacity (collectively referred to as the “United States” or the “government”), pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, alleging that the negligence of the United States Forest Service caused the death of several campers who were camping in or near the APRA. The United States asserted that subject-matter jurisdiction was lacking under the FTCA because the Arkansas Recreational Use Statute (“ARUS” or the “Act”), codified at Arkansas Code Annotated sections 18-11-301 to -307, provides the government with immunity. Generally, the ARUS provides immunity from liability to landowners who make their property available for the recreational use of others, except when (1) the landowner charges the person entering the land for recreational use, or (2) when the I.Jandowner maliciously fails to guard or warn against an ultra-hazardous condition, structure, use, or activity actually known to the landowner to be dangerous. Ark.Code Ann. § 18 — 11— 307. Roeder alleged that the United States was not immune from liability because it maliciously failed to warn or guard against an ultrahazardous condition of which it knew to be dangerous.
The meaning of “malicious” as used in the ARUS is at issue. Roeder contended that malicious conduct includes conduct committed in reckless disregard of the consequences, from which malice may be inferred. The United States contended that malicious conduct is limited to situations involving actual malice or a desire to harm another. Concluding that there was no controlling precedent interpreting the meaning of “malicious,” as it is used in the ARUS, the federal district court certified to this court the question of whether “malicious” conduct, under Arkansas Code Annotated section 18-11-307(1) includes conduct in reckless disregard of the consequences from which malice may be inferred.
The certified question presents an issue of statutory construction. The cardinal rule of statutory construction is to effectuate the legislative will. E.g., Woodrome v. Daniels, 2010 Ark. 244, at 8, 370 S.W.3d 190, 194. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id., 370 S.W.3d at 194. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id., 370 S.W.3d at 194. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id., |4370 S.W.Sd at 194.
The word “malicious” is not defined in the ARUS. “Malicious,” as defined by Webster’s Third New International Dictionary 1367 (3d ed.2002), means “given to, marked by, or arising from malice.” Black’s Law Dictionary defines “malice” as “[t]he intent, without justification or excuse, to commit a wrongful act,” the “reckless disregard of the law or of a person’s legal rights,” and “[i]ll will; wickedness of heart.” Black’s Law Dictionary 1042 (9th ed.2009). Thus, according to Black’s, “malicious” conduct could include, as Roeder contends, conduct in reckless disregard of the consequences from which malice may be inferred, or, as the United States contends, “malicious” conduct could be limited to situations involving “actual malice” or a desire to harm another. Given that “malicious” is open to more than one construction, we conclude that Arkansas Code Annotated section 18-11-307(1) is ambiguous. See, e.g., Smith v. ConAgra Foods, Inc., 2013 Ark. 502, at 3, 431 S.W.3d 200, 202 (stating that a statute is considered ambiguous if it is open to more than one construction). When a statute is ambiguous, we discern legislative intent by examining the whole act. See, e.g., Woodrome, 2010 Ark. 244, at 8, 370 S.W.3d at 195. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id., 370 S.W.3d at 195. We also look to the legislative history, the language, and the subject matter involved. Id., 370 S.W.3d at 195.
The ARUS was first enacted in 1965 “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Act of Feb. 12, 1965, No. 51, § 1, 1965 ArkJjjActs 165, 166 (originally codified at Ark. Stat. Ann. §§ 50-1101 to -1106). To achieve this purpose, the Act limited the liability of landowners in two ways. First, the Act established that, except as specifically recognized or provided,
an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
Act of Feb. 12,1965, No. 51, § 3,1965 Ark. Acts 165, 166; currently codified at Ark. Code Ann. § 18-11-304. Second, the Act provided that, with some exceptions,
an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(a) Extend any assurance that the premises are safe for any purpose.
(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.
Act of Feb. 12,1965, No. 51, § 4,1965 Ark. Acts 165,167.
As enacted in 1965, the ARUS contained two exceptions to immunity, one of which is relevant in this case. The Act provided:
| (¡Nothing in this Act limits in any way liability which otherwise exists: (a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
Act of Feb. 12,1965, No. 51, § 6,1965 Ark. Acts 165,167 (emphasis added).
Then, in 1983, the General Assembly amended that exception, so that it now reads:
Nothing in this Act limits in any way liability which otherwise [exists]: (a) for malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use or activity actually known to such owner to be dangerous.
An Act to Amend Various Sections of Act 51 of 1965 [Ark. Stat. [Ann. §§ ] 50-1101 et seq.] to Clarify the Limitation on the Liability of Landowners for Allowing Persons to Use their Land; and for Other Purposes, Act of Feb. 14, 1983, No. 168, § 6, 1983 Ark. Acts 225, 227 (emphasis added); currently codified at Ark.Code Ann. § 18 — 11—307(1).
The United States contends that the legislative history of the ARUS demonstrates that the General Assembly intended for malicious conduct to be limited to situations involving actual malice or a desire to harm another. In support of its argument, the government cites Mandel v. United States, 545 F.Supp. 907 (W.D.Ark.1982), in which the United States District Court for the Western District of Arkansas construed the 1965 version of the ARUS. [jin that case, the plaintiff, Michael Mandel, sought a safe place to swim in the Buffalo National River, and a park ranger recommended an area known as Kyle’s Landing. While swimming there, Mandel struck a submerged rock and broke his neck. Mandel brought an action against the National Park Service, the Boy Scouts of America, and the Insurance Company of North America, alleging that “employees of the National Park Service and the Boy Scouts of America knew that persons would use the facility with their permission, and failed to adequately warn divers of the presence of submerged rocks, and failed to properly mark or otherwise delineate safe diving areas.” Id. at 909. The defendants argued that they were immune from liability pursuant to the ARUS because the evidence did not establish a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity on their part.
The federal district court noted that it was “unaware of any Arkansas cases” interpreting the “willful or malicious” language in the ARUS, but explained that “the Arkansas courts have many times defined ‘willful and wanton conduct.’ ” Id. at 912. Because the court could “think of no reason why ‘willful and wanton’ and ‘willful misconduct’ would ... not be synonymous with ‘willful or malicious,’ ” the court “infer[red] that the legislature intended ‘willful and malicious’ to have the same meaning as ‘willful misconduct.’ ” Id. at 913. Therefore, it interpreted “willful or malicious” in the ARUS to mean that “the plaintiff must show (1) that defendants’ conduct would naturally or probably result in injury; (2) that defendants knew or reasonably should have known that their conduct would so result in injury; and (3) that defendants continued such course of conduct in reckless disregard of the Isconsequences.” Id.
As previously noted, the Mandel court construed the 1965 version of the ARUS, which provided no immunity from liability for mllful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. The United States contends that the 1983 amendment, which, inter alia, removed the term “willful,” was enacted in response to Mandel. The United States also contends that “willfulness” and “inferred malice” are synonymous under Arkansas law. Accordingly, the United States asserts that, because the legislature eliminated liability for a “willful ... failure to guard or warn” as part of the 1983 amendment, then the legislature must have similarly eliminated liability for situations involving “inferred malice.”
The government’s argument would be more persuasive if, with respect to the duty of care, the General Assembly had changed the statute only by eliminating the words “willful or” before “malicious.” But it did not. Rather, the General Assembly eliminated “willful or” before “malicious” and then added “but not mere negligent” after the term “malicious.” Thus, we cannot read the term “malicious” in isolation; instead, we must construe it in the context of how it is used in the statute. This court has not construed the phrase “malicious, but not mere negligent,” in the ARUS. But for many years, this court has referred to negligent conduct to explain situations in which when malice may be inferred. For example, we have discussed the distinction between malicious conduct and other types of conduct in the context of punitive damages, noting that negligence alone will not support an award of exemplary damages; rather, there must be conduct from which malice may be inferred. See, |9e.g., Stein v. Lukas, 308 Ark. 74, 78, 823 S.W.2d 832, 834 (1992) (stating that “malice can be inferred either from a conscious indifference to the consequences of one’s actions or from a reckless disregard of those same consequences”); Chicago, Rock Island & Pac. Ry. Co. v. Whitten, 90 Ark. 462, 468, 119 S.W. 835, 837 (1909) (noting that “[m]ere negligence, indifference or careless disregard of the rights of others is not sufficient upon which to base a recovery for exemplary damages” and that “[t]he acts must be such as to evince malice”); St. Louis, Iron Mountain & S. Ry. Co. v. Dysart, 89 Ark. 261, 268, 116 S.W. 224, 226 (1909) (stating that “[njegligence alone, however gross, is not sufficient, and that there must be an added element of intentional wrong, or, what is its equivalent, conscious indifference in the face of discovered peril, from which malice may be inferred”). We conclude that “but not mere negligent” functions as an explanatory phrase in the ARUS and that the legislature used those words to clarify what type of malice must be shown to preclude immunity from liability.
Moreover, as Roeder points out, if the legislature’s intent was to require that only “actual malice” could preclude immunity under the ARUS, then it could have expressly done so, as it has done in other statutes when the intent to harm is re quired for liability. See, e.g., Ark.Code Ann. § 5-26-502(e)(2) (Repl.2013) (interference-with-court-ordered-custody statute providing immunity for petitioner unless the petitioner acted with “actual malice”); id. § 5-26-503(e)(2) (Repl.2013) (interference-with-custody statute providing immunity for department unless department acted with “actual malice”); id. § 12-13-302(3) (Repl.2009) (Arson Reporting-Immunity Act — no criminal or civil liability for action taken |inunder the Act unless “actual malice” is present); id. § 23-64-515(e) & (g) (Repl.2012) (Proper Licensing Model Act — no civil liability for making a statement or providing information or failing to report unless “actual malice” is shown); id. § 23-66-506(b) (Repl.2012) (fraudulent-insurance-acts-prevention statute stating that there is no civil liability for libel, slander, or any other cause of action unless statements were made with “actual malice”); id. § 23-81-814(d)(2)(A) (Supp. 2013) (Life Settlements Act-no liability for statements made in conjunction with the Act unless the statements were made with “actual malice”).
Finally, there is another reason why, in the absence of explicit direction from the General Assembly, this court should construe the words “malicious, but not mere negligent” to include conduct in reckless disregard of the consequences from which malice may be inferred. Immunity under the ARUS is in derogation of the common law, and any statute |nin derogation of the common law will be strictly construed. E.g., Thompson v. Bank of Am., 356 Ark. 576, 584, 157 S.W.3d 174, 179 (2004). Strict construc tion requires that nothing be taken as intended that is not clearly expressed. E.g., Estate of Hull v. Union Pac. R.R. Co., 355 Ark. 547, 550, 141 S.W.3d 356, 358 (2004). In construing Nevada’s recreational-use statute, the United States Court of Appeals for the Ninth Circuit stated,
Since the recreational use statute is in derogation of common law rules of tort liability, we take care to avoid an over-broad interpretation of the statute that would afford immunity that was not intended. Consequently, exceptions to the statute ... must be given the broadest reading that is within the fair intendment of the language used.
Ducey v. United States, 713 F.2d 504, 510 (9th Cir.1983) (emphasis in original).
We agree with the reasoning of the Ducey court. In the instant case, if we give the malicious-but-not-mere-negligent exception to immunity the broadest reading that is within | ti>the fair intendment of the language used, then we must conclude that “malicious” conduct, under Arkansas Code Annotated section 18-11-307(1) includes conduct in reckless disregard of the consequences from which malice may be inferred.
Certified question answered.
. The court stayed the other ten cases pending the resolution of the certified question.
. The Albert Pike Recreation Area is public land managed by the United States through its Forest Service, which is an agency of the United States Department of Agriculture.
. In Roeder v. United States, 6:12-cv-6120-SOH, Roeder filed claims against the United States of America and individual employees of the United States Forest Service. In the other ten cases, the United States of America is the only defendant.
. This provision was amended in 1983 to add that landowners who permit their property to be used for recreational purposes do not thereby:
(d) assume responsibility for or incur liability for such injury to such person or property caused by any natural or artificial condi tion, structure or personal property on the land.
Act of Feb. 14, 1983, No. 168, § 3, 1983 Ark. Acts 225, 226; currently codified at Ark.Code Ann. § 18-11-305.
. Thus, in the current version of the recreational-use statute, (1) malicious, but not mere negligent, failure to guard or warn invokes the exception, whereas in the previous version, “willful or malicious” failure to guard or warn invoked the exception; (2) an ultrahazardous condition, structure, personal property, use, or activity is required to invoke the exception, whereas in the previous version, a mere dangerous condition, structure, personal property, use, or activity invoked the exception; and (3) for invocation of the exception and resulting liability, the ultrahazar-dous condition, structure, personal property, or activity must be actually known to the owner to be dangerous, whereas in the previous version, there was no express statement that actual knowledge was required.
. ‘‘[T]he common law has traditionally recognized three main categories of land entrants: trespassers, licensees, and invitees,” and "Arkansas adheres to the common-law categories, although it codified the common-law trespasser principles in 1993.” Harrison M. Pittman, The Arkansas Recreational-Use Statute: Past, Present, and Future Application for Arkansas Landowners and Recreational Users of Land, 60 Ark. L.Rev. 849, 855-56 (2008) (citing Ark.Code Ann. § 18-60-108). "A landowner owes a different duty of care to each category of land entrant.” Id. at 856. A trespasser is one who comes upon land without the consent of the possessor, see Coleman v. United Fence Co., 282 Ark. 344, 345, 668 S.W.2d 536, 537 (1984), and a landowner owes a trespasser the duty not to willfully or wantonly injure him after his presence is known. Sw. Bell Tel. v. Davis, 247 Ark. 381, 386, 445 S.W.2d 505, 507 (1969). A licensee is a person who comes upon the land with a privilege arising from the consent of the possessor, see Coleman, 282 Ark. at 345, 668 S.W.2d at 537, and a landowner owes a licensee the duty to refrain from injuring him or her through willful or wanton conduct. Height v. Miller, 332 Ark. 315, 321, 965 S.W.2d 116, 120 (1998). Where, however, the landowner discovers that a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. Id., 965 S.W.2d at 120. This duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. Id., 965 S.W.2d at 120. An invitee is one induced to come onto property for the business benefit of the possessor, see Coleman, 282 Ark. at 345, 668 S.W.2d at 537, and a landowner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 308, 952 S.W.2d 167, 169 (1997).
. The majority of courts interpreting recreational-use statutes have held that, because recreational-use statutes are in derogation of common law and because they limit the duties of landowners, they must be strictly construed. See, e.g., Ducey v. United States, 713 F.2d 504 (9th Cir.1983) (interpreting Nevada law); Newman v. Sun Valley Crushing Co., 173 Ariz. 456, 844 P.2d 623 (Ariz.Ct.App.1992); Conway v. Town of Wilton, 238 Conn. 653, 680 A.2d 242 (1996); Drake by Drake v. Mitchell Cmty. Schs., 649 N.E.2d 1027 (Ind.1995); Monteville v. Terrebonne Parish Consol. Gov’t, 567 So.2d 1097 (La.1990); Seideman by Seideman v. Cnty. of Monroe, 185 A.D.2d 640, 585 N.Y.S.2d 909 (N.Y.App.Div.1992); Corbett v. City of Myrtle Beach, S.C., 336 S.C. 601, 521 S.E.2d 276 (S.C.Ct.App. 1999); Kern v. City of Sioux Falls, 560 N.W.2d 236 (S.D.1997); Matthews v. Elk Pioneer Days, 64 Wash.App. 433, 824 P.2d 541 (1992); but see Hafford v. Great Northern Nekoosa Corp., 687 A.2d 967, 969 (Me.1996) (noting that the immunity provision of Maine's recreational-use statute is construed broadly); Verdoljak v. Mosinee Paper Corp., 200 Wis.2d 624, 547 N.W.2d 602, 607 (1996) (noting that the court follows the legislative directive that Wisconsin's recreational-use statute "should be liberally construed in favor of the property owners to protect them from liability”).
. In Carlton v. Cleburne County, Ark., 93 F.3d 505 (8th Cir.1996), the United States Court of Appeals for the Eighth Circuit stated that an inferred-malice standard applies under the ARUS. Id. at 511 (citing Stein v. Lukas, 308 Ark. 74, 77, 823 S.W.2d 832, 834 (1992)). A federal court decision construing an Arkansas statute is not binding authority on this court; however, the decision is persuasive authority. E.g., Baldwin Co. v. Maner, 224 Ark. 348, 349, 273 S.W.2d 28, 30 (1954). | [
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CLIFF HOOFMAN, Justice.
bin this condemnation case, appellant GSS, LLC (“GSS”) appeals from the jury verdict awarding it $64,000 as just compensation for a pipeline-easement taking by appellee CenterPoint Energy Gas Transmission Co. (“CenterPoint”). On appeal, GSS argues (1) that the circuit court abused its discretion in excluding evidence of value of a contiguous parcel of land; (2) that the circuit court erred in granting summary judgment in favor of Center-Point on GSS’s counterclaim because Cen-terPoint proceeded under a wholly or partially preempted statute; and (3) that the circuit court erred in granting summary judgment to CenterPoint because Center-Point proceeded under color of law to deny CSS’s rights. We assumed jurisdiction of this case pursuant to Ark. Sup.Ct. R. 1-2(b)(Z) and (6), as it involves issues of first impression and statutory interpretation. We affirm.
CenterPoint, a gas pipeline company that has the power of eminent domain pursuant to section 7 of the Natural Gas Act of 1938 (“NGA”) and Arkansas Code Annotated §§ 18-| ¡>15-1301 et seq., and 23-15-101 et seq., began negotiating-in June 2009 to purchase a right-of-way easement on GSS’s property in order to construct a new pipeline. After CenterPoint and GSS were unable to agree on the compensation to be paid for the easement, CenterPoint filed a petition to condemn the property on February 19, 2010, alleging that it was authorized underits “Certificate of Conveyance and Necessity” issued by the Federal Power Commission to acquire the property at issue by eminent domain, as it was necessary to the construction or operation of its business. CenterPoint further alleged that the determination of just compensation to GSS was likely to materially prejudice and retard the progress of the construction and asked the court to designate an amount of money to be deposited by CenterPoint into the registry of the court for the purpose of ascertaining such compensation and for an order of possession, allowing it to enter and take possession of the subject property to proceed with the construction of the pipeline. Cen-terPoint also filed a Declaration of Taking, and an affidavit in support of its order of possession, in which it averred that the value of the right-of-way easement was estimated to be $64,000. The description of the property attached to CenterPoint’s documents showed that the proposed easement consisted of a twenty-foot-wide right-of-way, which was to run directly adjacent to an already existing twenty-foot easement for a gas pipeline that had been in place since at least 1949, as well as a forty-by-forty-foot work site and an access road.
On February 19, 2010, the circuit court entered an order of possession, finding that CenterPoint’s petition to condemn should be granted and that the estimated just compensation for the easement on GSS’s property in the amount of $64,000 had been | sdeposited into the registry of the court. On March 15, 2010, GSS filed an answer to the petition to condemn and the declaration of taking. GSS also alleged counterclaims against CenterPoint for unlawful taking, violation of the Arkansas Civil Rights Act of 1993, trespass, and outrage. Although GSS filed a motion for a preliminary injunction on May 17, 2010, it voluntarily withdrew the motion following a hearing. A second motion for a preliminary injunction was then filed by GSS, and a hearing was set for August 2010; however, GSS again withdrew the motion as moot after CenterPoint entered the property prior to the hearing date.
CenterPoint filed a motion to dismiss GSS’s counterclaims, and GSS then filed a motion for summary judgment, asserting that CenterPoint’s petition to condemn should be dismissed because it had proceeded under a wholly or partially preempted state statutory scheme and also because it had failed to comply with the prerequisites set forth in the NGA, 15 U.S.C. § 717f(h). On June 30, 2011, the circuit court denied both CenterPoint’s motion to dismiss and GSS’s motion for summary judgment; however, the court found that the Arkansas condemnation statutes and procedures followed by Cen-terPoint were constitutional.
On March 27, 2012, CenterPoint filed its own motion for summary judgment on GSS’s counterclaims. CenterPoint asserted that GSS had failed to meet its burden of showing that the Arkansas condemnation statutes followed in this case were unconstitutional or preempted by the NGA and that all of GSS’s counterclaims therefore failed to create genuine issues of material fact and should be dismissed as a matter of law. In support of its motion, CenterPoint attached excerpts from depositions of its employees and agents, a right-of-way |4data sheet, and an appraisal by GSS of the property being taken. In his deposition, Larry Wright, who negotiated with GSS on behalf of CenterPoint, stated that he first met with Guy Collins, GSS’s agent, in early June 2009 on GSS’s properly, which was currently being operated as a nine-hole public golf course. Wright stated that he presented the easement being requested to Collins and that they discussed Collins’s specific requests that the putting greens, cart paths, tee boxes, and fairways not be open cut. Wright indicated that CenterPoint agreed to drill under the greens but not the fairways. He stated that Collins had requested that the route of the line be changed, but he told him that the route that had been established by their engineers, which followed the route of the already existing pipeline and easement, was the one that he “had to go with.” Wright did state that Collins had requested a small deviation in the route to accommodate the future building site of his home, which CenterPoint approved.
The negotiation over the price for the easement did not go well, according to Wright. CenterPoint first offered $46,000 for the easement, and GSS counteroffered with $464,000. In late September, GSS offered to accept $288,000, while Center-Point raised its offer to $64,000. Wright stated that he negotiated with Collins on ten to fifteen separate occasions over six or seven months, but they could not reach an agreement. He was told by his supervisor, Richard Brinker, to then turn over the file to CenterPoint’s attorney. Wright indicated that he had only one more contact with Collins, when he let him know that CenterPoint was moving in the drilling rig. He stated that another Center-Point agent also went out and looked at the properly to see what could be done to minimize damage.
| ¿Richard Brinker, who was Wright’s supervisor at CenterPoint, agreed that the two parties were $200,000 apart on the price for the easement when negotiations ceased. He stated that CenterPoint takes the property owner’s rights and any rerouting requests into consideration and that Collins did request and obtain a reroute around his future home site. According to Brinker, he received weekly progress reports from all of the agents who were working on the proposed eight-mile pipeline and that there was a completion date across the board, after which CenterPoint would typically file a condemnation proceeding if an agreement was not reached with the landowner. The right-of-way data sheet attached in support of Center-Point’s motion contained notes on the details of Wright’s negotiations with Collins and was consistent with the deposition testimony. CenterPoint also attached a portion of the report from GSS’s appraiser, Mike Pearce, which concluded that the just compensation for the properly being taken was $103,000.
In its response to the motion, GSS contended that there were sufficient issues of material fact to preclude the grant of summary judgment. GSS asserted that Cen-terPoint had proceeded under a preempted statutory scheme and that the procedure it used in condemning GSS’s property violated GSS’s constitutional rights. In addition, GSS argued that CenterPoint did not negotiate in good faith as required under the NGA and cited to Wright’s and Blinker’s deposition testimony that CenterPoint did not agree to change the location of the pipeline across GSS’s property. GSS also attached an affidavit by Collins, stating that the properly had a current value in excess of $2 million and that he had received inquiries to purchase the property well in excess of that amount. The affidavit further averred that the use |fiof the property as a golf course would be adversely affected by the construction and that Collins attempted to negotiate in good faith with CenterPoint, offering a reasonably acceptable alternative route for the proposed easement; however, CenterPoint refused to consider the alternative route and would only consider the route it wanted to take.
GSS’s response also attached its entire appraisal report, which revealed that its appraiser included the already existing easement in favor of CenterPoint and calculated the total amount of land being taken as 3.36 acres. CenterPoint’s appraisal by John Stone, Jr., which was also attached as an exhibit, calculated only the acreage contained in the currently proposed easement, which was 1.731 acres. Stone concluded in his appraisal that the just compensation for the present taking was $32,000.
After a hearing prior to the beginning of the jury trial on July 5, 2012, the circuit court granted CenterPoint’s motion for summary judgment on the issues of preemption and due process, ruling that “the process has been observed, it’s provided by Arkansas law, and we’re going forward on that basis.” The trial then proceeded on the sole issue of the amount of just compensation to be paid to GSS for the easement. After hearing testimony by the agents for CenterPoint and GSS, as well as from the parties’ two appraisers, the jury awarded GSS $64,000 as just compensation. Judgment to this effect was entered on August 6, 2012, and GSS timely appealed from this order.
In its first point on appeal, GSS argues that the circuit court abused its discretion in excluding evidence concerning the value of a parcel of land that was contiguous to the subject property. GSS sought to introduce this evidence after testimony by CenterPoint’s appraiser, |7John Stone, in which he discussed the comparable properties used by GSS’s appraiser in his report. Apparently, although this ruling is not contained in the record, the circuit court had ruled prior to trial that GSS could not put forth evidence regarding a separate case, CenterPoint Energy Gas Transmission Co. v. Green, 2012 Ark. App. 326, 413 S.W.3d 867, which was a condemnation action involving an easement for the same proposed pipeline as in the present case, on property adjacent to GSS’s property. After a bench trial before the same circuit judge as in the present case, the just compensation for the easement was found to be $68,100, and this finding was affirmed on appeal. Id.
Notwithstanding the circuit court’s pretrial ruling, GSS argued that it should now be allowed to introduce evidence on the valuation of the property in Green because CenterPoint had opened the door by its expert’s testimony regarding comparables. CenterPoint objected, asserting that GSS’s appraiser’s report had not discussed the Green property and that GSS had not supplemented the report. CenterPoint further argued that the Green property was not comparable to the property in this case because it was much smaller. The circuit court ruled that it would not allow the Green case to control the present case and that it was going to stand on its prior ruling to exclude this evidence. GSS then proffered the testimony that it would have elicited during cross-examination of Stone, who was also CenterPoint’s appraiser in Green, such as his opinion as to the highest and best use of the Green property and his calculation of the just compensation due the landowner in that case.
On appeal, we will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion. Ford Motor Co. v. Washington, 2013 Ark. 510, 431 S.W.3d 210, |sAn abuse of discretion is a high threshold that does not simply require error by the circuit court, but requires that the court act improvidently, thoughtlessly, or without due consideration. Id.
GSS contends that the evidence regarding the valuation of the Green properly was highly relevant in this case because it involved the very same appraisers, acting in the same capacities, on property contiguous to the properly at issue here and because CenterPoint opened the door to the issue by attacking comparable properties. GSS argues that it was prejudiced by the exclusion of this evidence because the jury accepted the valuation of Center-Point’s appraiser and rejected the higher value put forth by its own appraiser.
CenterPoint responds that this evidence was correctly excluded by the circuit court because it was not discussed in either of the appraisal reports in this case and because it was not relevant, given the disparity in sizes of the Green property and the properly at issue here. CenterPoint further notes that, contrary to GSS’s assertion, the jury did not accept Stone’s valuation, instead awarding twice that amount as just compensation.
As CenterPoint argues, a party has a duty to supplement its discovery responses pursuant to Ark. R. Civ. P. 26(e)(1) (2013), including the subject matter and substance of an expert witness’s testimony. Ark. State Hwy. Comm’n v. Frisby, 329 Ark. 506, 951 S.W.2d 305 (1997). Furthermore, we have held that it is error for the circuit court to allow evidence of an appraisal of a nearby tract of land as proof of valuation in a condemnation action because such “sales” are not a fair criterion of value for purposes of showing comparable sales in determining the just compensation due the landowner. Ark. State Hwy. Comm’n v. Barker, |fl326 Ark. 403, 931 S.W.2d 138 (1996); Ark. State Hwy. Comm’n v. First Pyramid Life Ins. Co., 265 Ark. 417, 579 S.W.2d 587 (1979). We stated that what a party condemning has paid for property is not competent evidence of the value in any case, whether in a proceeding by the same condemning party, or in other cases, because such “sales” are not voluntary transactions and are in the nature of a compromise. Bark er, supra (citing Yonts v. Public Serv. Co. of Ark., 179 Ark. 695, 17 S.W.2d 886 (1929)). Thus, the circuit court did not abuse its discretion in excluding evidence of valuation of contiguous property from a separate case, and we affirm on this point.
In its next two points on appeal, GSS argues that the circuit court erred by granting summary judgment to Center-Point on GSS’s counterclaims. Summary judgment is to be granted by the trial court 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. Chamberlin v. State Farm Mut. Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2001). In reviewing a grant of summary judgment, an appellate court determines if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of the motion left a material question of fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion for summary judgment was filed and resolves all doubts and inferences against the moving party. Id.
GSS first contends that the condemnation procedures used by CenterPoint in this case are preempted by the provisions of the NGA. The statutes at issue here are 15 U.S.C. § 717f(h), Ark.Code Ann. § 18-15-1303 (Repl.2003), and Ark.Code Ann. §§ 18-15-1201 Imthrough 18-15-1207 (Repl.2003). The NGA provision, 15 U.S.C. § 717f(h) states as follows:
(h) Right of eminent domain for construction of pipelines, etc.
When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts. The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated: Provided, That the United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the properly to be condemned exceeds $3,000.
Similarly, Arkansas Code Annotated § 18-15-1303 provides with respect to condemnation proceedings in this state:
In the event any company fails, upon application to individuals, railroads, or turnpike companies, to secure the right-of-way by consent, contract, or agreement, then the corporation shall have the right to proceed to procure the condemnation of the property, lands, rights, privileges, and easements in the manner provided by law for taking private property for right-of-way for railroads as provided by §§ 18-15-1201-18-15-1207, including the procedure for providing notice by publication and by certified mail in § 18-15-1202.
Finally, Arkansas Code Annotated § 18-15-1206, which is titled, “DisputesMoney deposits” states
(a) In cases in which the determination of questions in controversy in the pro ceedings is likely to retard the progress of work on or the business of the railroad company, the court, or judge in vacation, shall designate an amount of money to be deposited by the company, subject to the order of the court, for the purpose of making the compensation, when the amount thereof has been assessed and the judge shall designate the place of the deposit.
1 n(b) Whenever the deposit has been made, in compliance with the order of the court or judge, it shall be lawful for the company to enter upon the lands and proceed with the company’s work through and over the lands in controversy prior to the assessment and payment of damages for the use and right.
The doctrine of federal preemption is based on the United States Constitution’s Supremacy Clause. U.S. Const, art. 6, cl. 2. We have held that preemption can occur in three different ways: (1) express preemption, where Congress defines explicitly the extent to which its enactments preempt state law; (2) field preemption, where Congress’s regulation of a field is so pervasive or the federal interest is so dominant that an intent to occupy the entire field can be inferred; and (3) conflict preemption, where state law stands as an obstacle to the accomplishment of the full purposes and objectives of a federal statute. 25 Residents of Sevier County v. Ark. Hwy. & Transp. Comm’n, 330 Ark. 396, 954 S.W.2d 242 (1997). In any preemption analysis, the overriding principle guiding our review is whether Congress intended to preempt state law. Id. The burden is on the moving party to prove preemption. Hale v. State, 336 Ark. 345, 985 S.W.2d 303 (1999).
GSS does not argue that 15 U.S.C. § 717f(h) expressly preempts applicable state law. In addition, although GSS asserts that Congress intended to “occupy the whole field” by virtue of the NGA, GSS admits that section 717f(h) explicitly incorporates the use of state practice and procedure in an action for condemnation. However, because this federal statute does not expressly provide for the procedure used by CenterPoint in this case pursuant to Ark.Code Ann. § 18-15-1206, which GSS refers to as a “quick-take,” GSS argues that this particular provision conflicts with the federal statute and is preempted.
GSS’s argument that the procedure used by CenterPoint pursuant to Ark.Code Ann. |12 § 18-15-1206 is preempted is not persuasive because 15 U.S.C. § 717f(h) contains no language to indicate Congress’s intention to do so; instead, it specifically contemplates the use of state condemnation procedure in proceedings under the federal statute. GSS cites Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa County, 550 F.3d 770 (9th Cir.2008), as support for its argument that “quick-take” procedures are prohibited under 15 U.S.C. § 717f(h). However, that case can be distinguished, as it involved the appellant’s use of a preliminary injunction, which is particularly disfavored under the law, and did not involve state condemnation procedures. Id. The court in that case held that the appellant should have obtained an order of condemnation before taking possession of the properly. Id.
Here, as opposed to the procedure used in Transwestem, CenterPoint filed a petition for condemnation and a declaration of taking, which were granted, and an order of possession was issued by the circuit court after the estimated amount of just compensation had been deposited into the registry of the court, as authorized by Ark.Code Ann. § 18-15-1206. Thus, GSS has failed to meet its burden of showing that the state statutory procedures used by CenterPoint were preempted by the provisions of the NGA, and the circuit court was correct in granting summary judgment on this issue. We therefore affirm on this point.
Much of GSS’s third point on appeal restates its arguments related to preemption and has no merit for the reasons stated above. However, GSS also argues that CenterPoint failed to negotiate in good faith as required by 15 U.S.C. § 717f(h) and that the circuit court erred in granting summary judgment on this claim because issues of material fact remain to be decided.
| |3In support of CenterPoint’s motion for summary judgment, it provided excerpts from the depositions of Wright and Brink-er demonstrating that CenterPoint engaged in six or seven months of negotiations with GSS’s agent, Collins, and that it agreed not to open cut the putting greens on the properly on Collins’s request. Further, while CenterPoint did not agree to reroute the entire pipeline, it did negotiate with Collins to reroute the line around Collins’s future home site. GSS asserted in response to CenterPoint’s motion that it had offered reasonable alternative routes for the pipeline in order to minimize damage to the golf course. However, the evidence offered by CenterPoint showed that the proposed route of the new easement ran alongside the existing twenty-foot easement in favor of CenterPoint, which had been in place long before GSS purchased the properly in 2008.
As CenterPoint argues in its brief, Arkansas law provides that it is no defense that the company could have chosen another location for a right-of-way, as those invested with the power of eminent domain for a public purpose are vested with broad discretion with respect to the particular route, line, or location, and can choose their own location according to their own views of what is best or most expedient; this discretion cannot be controlled by the courts in the absence of fraud, bad faith, or gross abuse of discretion. Pfeifer v. City of Little Rock, 346 Ark. 449, 57 S.W.3d 714 (2001); Cloth v. Chicago, R.I. & R. Co., 97 Ark. 86, 132 S.W. 1005, 1007 (1910). Instead, court proceedings following eminent-domain actions are strictly to determine compensation to be paid the landowner for the land taken. Niemeyer & Darragh v. Little Rock Junction Ry., 43 Ark. 111 (1884). CenterPoint demonstrated in its motion for summary judgment and supporting documents that it had negotiated in good faith 114with GSS as required by 15 U.S.C. § 717f(h), and GSS has failed to demonstrate that there remain unresolved issues of material fact on this issue.
GSS also contends under this point on appeal that CenterPoint acted ex parte in obtaining its order of possession in this case and that this violated GSS’s constitutional due-process rights and its rights under the Arkansas Civil Rights Act of 1993. As GSS asserts, our state constitution provides that “[t]he right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” Ark. Const, art. 2, § 22. Similarly, article 12, section 9 states that no property or right of way shall be appropriated to the use of any corporation until full compensation therefor shall first be made to the owner in money, or first secured to him by a deposit of money, which compensation is to be determined by a jury of twelve men in a court of competent jurisdiction as prescribed by law.
However, as CenterPoint responds in its brief, it complied with the condemnation procedures set forth in Ark.Code Ann. § 18-15-1204, which provides for a trial by jury, and § 18-15-1206, which provides for a deposit of money to compensate the landowner. Further, the procedures in these statutes have been found to fully satisfy both substantive and procedural due-process standards. DeSalvo v. Ark. La. Gas Co., 239 F.Supp. 312 (E.D.Ark.1965). While GSS asserts in its brief that CenterPoint paid into the registry of the court only 62% of the just compensation for the taking, the jury awarded GSS $64,000, the same amount that Center-Point had deposited, and GSS does not argue on appeal that this award was insufficient.
1^Although GSS argues that its property could not be condemned without first giving it proper notice such that it could have its day in court, it was served with Center-Point’s petition for condemnation, declaration of taking, and the order of possession. GSS then filed an answer to the petition, as well as a motion for preliminary injunction, which it voluntarily withdrew after a hearing. Also, although GSS argues that the order of possession was entered before the summons was served, prior notice was not required under Ark.Code Ann. § 18-15-1206. Further, the cases cited by GSS are inapposite, as in Arkansas State Highway Commission v. French, 246 Ark. 665, 439 S.W.2d 276 (1969), the landowner did not receive compensation for the property or notice of the condemnation proceeding by either legal process or entry upon the land. Also, in Ex parte Reynolds, 52 Ark. 330, 12 S.W. 570 (1889), the court held that notice was required of the deposit of money into the registry of the court, although notice was waived where the landowner had made an appearance in the action. Here, GSS was aware of the condemnation action, was served with all relevant pleadings and orders, and fully participated in the action by filing an answer, motions for preliminary injunction, and a motion to dismiss. Under these circumstances, the circuit court did not err in granting summary judgment to CenterPoint on GSS’s counterclaims, and we affirm.
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CLIFF HOOFMAN, Justice.
| Appellant Ford Motor Company (“Ford”) appeals from the judgment entered against it following a jury trial in Jefferson County Circuit Court. Ford presents five points of error on appeal: (1) whether the circuit court abused its discretion in refusing to admit evidence of seat belt noncompliance pursuant to Arkansas Code Annotated section 27-37-703 (Repl. 2008); (2) whether the circuit court erred as a matter of law in determining that the defective-glass claim was not preempted by Federal Motor Vehicle Safety Standard 205 (“FMVSS 205”), 49 C.F.R. § 571.205 (2001); (3) whether the circuit court erred in denying Ford’s motion for judgment notwithstanding the verdict on the issue of punitive damages; (4) whether the circuit court erred in failing to reduce the jury’s compensatory-damages award, pursuant to Arkansas Code Annotated sections 16-61-204 and-205 (Repl.2005), before entering | ¿judgment for Washington; and (5) whether the nunc pro tunc designation included in the circuit court’s judgment is contrary to Arkansas law. We simultaneously consider with the submission of this case a motion filed by Washington during the pendency of the appeal to strike a portion of Ford’s reply brief. We affirm in part, reverse and remand in part, and rule that the motion is denied.
At approximately 10:30 a.m. on August 23, 2000, Johnny Ray Washington and his eleven-year-old son, Terian, were traveling in their 1994 Ford Explorer on Linden Street in Pine Bluff, Arkansas, when the vehicle was struck on the driver’s side by Karah Allen Williams, who had run a stop sign. The Explorer rolled over twice and landed right-side up. Terian walked away from the accident, but Johnny suffered a fatal head injury when his head exited the vehicle during the rollover and was crushed. When emergency-medical technicians arrived on the scene, Johnny was in severe distress but still had a pulse and slow respirations. Johnny was transported to Jefferson County Regional Medical Center, where he was pronounced dead at 11:39 a.m.
On August 14, 2003, appellee Paulette R. Washington, the decedent’s wife, individually and as administratrix of her husband’s estate, and as parent and legal guardian of Terian Washington, filed a complaint in the Jefferson County Circuit Court against Ford Motor Company (“Ford”), Freeway Ford Lincoln Mercury, Inc., and Karah Allen Williams. | .-Washington asserted several claims against Ford, including negligence, strict liability, failure to warn, and breach of warranties. She asked for past and future medical expenses; past and future lost earnings; future loss of earning capacity; past and future pain and suffering; past and future mental anguish and mental harm; loss of services, society, and companionship; permanent injuries; properly damage; the reasonable value of the loss of Johnny’s life; and the reasonable value of funeral expenses. She also asserted a claim for punitive damages against Ford.
The case proceeded to trial on August 16, 2010, solely against Ford, and Washington alleged that the Explorer had two defects: (1) the propensity to roll over and (2) the use of tempered, rather than laminated glass, in the side windows that made ejection or partial ejection in a rollover more likely. Although Williams had been previously dismissed, the circuit court allowed her to be placed on the verdict form for apportionment purposes. After a two-week trial, the jury returned a verdict finding that both Ford and Williams, equally, had been the proximate cause of Johnny’s death. The jury awarded Washington $4,652,125 in compensatory damages and $2.5 million in punitive damages, and a judgment was entered on October 6, 2010, in which the circuit court merely reproduced the jury’s answers to the special interrogatories without setting forth a specific dollar amount owed by Ford.
On October 20, 2010, Ford filed a motion for judgment notwithstanding the verdict or alternatively, for a new trial, which was denied. Ford filed a timely notice of appeal, and ^Washington filed a notice of cross-appeal. This court dismissed Ford’s first appeal without prejudice due to the lack of a final order because no written order had been entered dismissing Freeway Ford. See Ford Motor Co. v. Washington, 2012 Ark. 325, 2012 WL 4017383 (“Ford I”). We then dismissed the second appeal for lack of finality because the judgment did not set forth a specific dollar amount owed by Ford. See Ford Motor Co. v. Washington, 2013 Ark. 88, 2013 WL 776233 (“Ford II”). Following a second remand, the circuit court entered an order on April 8, 2013, awarding judgment against Ford in the amount of $7,152,125. The court also included a nunc pro tunc provision in the order, making the judgment retroactive to October 6, 2010, the date of the original judgment, for post-judgment-interest purposes.
Ford filed a motion to alter or amend the judgment, arguing that the nunc pro tunc designation was improper; a motion for JNOV; and a motion for remittitur, arguing that the award of compensatory damages should be reduced in accordance with the jury’s 50-50 allocation of fault between Ford and Williams. These motions were denied by the circuit court on April 29, 2013, and Ford filed a timely notice of appeal on May 3, 2013.
I. Section 27-37-703
For its first point on appeal, Ford contends that the circuit court abused its discretion when it found that Ford had not met the requirements of Arkansas Code Annotated section 27-37-703 and prohibited Ford from introducing evidence that Johnny was not wearing a seat belt at the time of the accident. Ford maintains that it put forth sufficient proof to meet its burden under the statute. Ford also asserts that the circuit court abused its discretion in allowing Washington to present testimony that Johnny was wearing his seat belt because once 1 ¿Washington “opened the door,” it was error not to allow Ford to rebut that evidence, even where such evidence was otherwise inadmissible.
In response, Washington argues that Ford did not meet its statutory burden and that the circuit court was correct to reject Ford’s evidence suggesting that Johnny was not wearing a seat belt because it was “conjecture,” “lack[ed] foundation,” and was “merely conclusionary.” Further, Washington asserts that Ford’s “opening the door” argument is not preserved.
According to Ark.Code Ann. § 27-37-703 (Repl.2008), which governs the admissibility of such evidence,
(a)(1) The failure of an occupant to wear a properly adjusted and fastened seat belt shall not be admissible into evidence in a civil action.
(2) Provided, that evidence of such failure may be admitted in a civil action as to the causal relationship between noncompliance'and the injuries alleged, if the following conditions have been satisfied:
(A) The plaintiff has filed a products liability claim other than a claim related to an alleged failure of a seat belt;
(B) The defendant alleging noncompliance with this subchapter shall raise this defense in its answer or timely amendment thereto in accordance with the rules of civil procedure; and
(C) Each defendant seeking to offer evidence alleging noncompliance has the burden of proving:
(i) Noncompliance;
(ii) That compliance would have reduced injuries; and
(iii)The extent of the reduction of such injuries.
(b)(1) Upon request of any party, the trial judge shall hold a hearing out of the presence of the jury as to the admissibility of such evidence in accordance with the provisions of this section and the rules of evidence.
(2) The finding of the trial judge shall not constitute a finding of fact, and the finding shall be limited to the issue of admissibility of such evidence.
On the second day of trial, Ford filed a motion for admission of evidence of the 1 (¡decedent’s failure to wear a seat belt, asserting that it had met the prerequisites of section 27-37-703. Specifically, Ford put forth the deposition testimony of Dr. Robert Piziali, a mechanical-engineering and accident-reconstruction expert, who testified that there were no marks on the vehicle’s restraint system consistent with belt use; that there were no marks on the decedent that were consistent with belt use; that the position of the decedent’s head at the time of the injury was inconsistent with restraint use; that if the decedent had been properly restrained, his head would not have been able to exit the vehicle; and that had he been properly restrained, the decedent would not have been in a position to be killed.
To rebut Ford’s evidence of seat belt nonuse, Washington presented the deposition testimony of Timothy Clowers, a paramedic who had arrived on the scene of the accident and attended to Johnny. Clowers testified that “from the best of my recollection,” he remembered having to undo the decedent’s seat belt before tending to his injuries. When he was referred to a notation contained in the decedent’s emergency-room records stating, “motor vehicle accident, unrestrained driver,” Clowers stated that he did not recall telling emergency-room personnel that the decedent was or was not restrained. Clowers further stated that he could not disagree with the notation without knowing the basis for it, but that, in his experience, emergency-room personnel generally assume that a person was not restrained when the person is ejected from the vehicle. On cross-examination, Clowers said that he did not have a specific recollection of unfastening the decedent’s seat belt. He also 17did not specifically recall whether the shoulder harness was positioned across the decedent’s torso.
After holding a hearing on the motion out of the presence of the jury and considering this proffered testimony, as well as the parties’ arguments, the circuit court ruled that Ford had not met its burden under the statute and that evidence of nonuse of the seat belt would be excluded. Thereafter, when Washington attempted to introduce the portions of Clowers’s deposition testimony set out above into evidence, Ford objected “on the grounds it goes to the issue of whether Johnny Washington was belted or not.” Ford argued,
Ford: Well, plaintiff was allowed to put in proof that Johnny Washington was allowed to wear his belt. We’re saying in this particular case, what the Court has indicated that Ford is not allowed to rebut that proof at this time. The plaintiff is opening the door, allowing Ford to do so. But, if the Court does not allow Ford to do so, it would be unfairly prejudiced by this evidence coming in at this time.
COURT:—given on this very point. The reason why Ford is prohibited is Ford did not comply with the statute, and if you complied this morning with it, that’s the problem. It’s simple. You didn’t follow the law. And the law said the defendant. It doesn’t talk about-it’s talking about belted. It doesn’t give you any fairness argument because of that. You already know it. You’re wasting my time raising this objection. Don’t do it again. Objection overruled. Proceed. This point has been decided.
Our standard of review for evidentiary rulings dictates that circuit courts have broad discretion and that a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008). A circuit court abuses its discretion when it makes a decision that is arbitrary or capricious. See Phelan v. Discover Bank, 361 Ark. 138, 205 S.W.3d 145 (2005).
IsThere is no dispute in this case that Ford complied with section 27-37-703(a)(2)(A) and (B) of the statute, as this is a products-liability action involving a claim not related to an alleged failure of a seat belt, and the issue was raised by Ford in its answer. Instead, the issue on appeal is whether the elements relating to noncompliance, reduction in injury, and the extent of any reduction in injury, which are listed in subsection (c) of the statute, were adequately proved by Ford.
With regard to noncompliance, Ford argues that Clowers’s testimony as to whether Johnny was wearing a seat belt was equivocal and that Washington did not submit any other evidence, expert or otherwise, on the issue. Ford thus argues that substantial evidence was presented of noncompliance. As to its proof of a reduction in injuries, and the extent of any such reduction, had a seat belt been worn, Ford contends that it presented sufficient evidence of these statutory elements through Dr. Piziali’s deposition testimony that the vast majority of rollover accidents do not result in fatal injuries and that had Johnny been belted, he would not have been in a position to have suffered the head injury that killed him. Ford again argues that Washington failed to present any evidence to the contrary and that the circuit court abused its discretion by ruling that the evidence of seat belt nonuse was inadmissible, given Dr. Piziali’s “unrefuted testimony.”
In concluding that Ford had failed to meet its burden of proving that this evidence was admissible under section 27-37-703, the circuit court stated that it was troubled by the following: that many of Dr. Piziali’s statements were generalizations; that while Dr. Piziali ^commented about a lack of blood splatter on the seat belt, he did not indicate that there were in fact blood-splatter patterns present in the vehicle that would indicate that there could have been splatter present on the belt as well; that no evidence was presented regarding what a seat belt-restraint system should have done in a rollover scenario; that Dr. Piziali did not specify the extent of the reduction of the injuries that wearing a seat belt would have resulted in other than survival; that the court was unsure about Dr. Piziali’s expertise and how it related to what normally happens to a body in a rollover accident; that Dr. Piziali seemed to rely heavily on an ER document that the injured person was not belted and disregarded the testimony of Clowers, who was an eyewitness; that there was no evidence presented on what the injuries would have been had Washington been belted; and that much of the evidence presented to the court had been statistics and generalizations rather than specific facts relevant to this case.
As noted above, this court may not overturn the circuit court’s decision absent an abuse of discretion. An abuse of discretion is a high threshold that does not simply require error in the circuit court’s decision, but requires that the court act improvidently, thoughtlessly, or without due consideration. See Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599. The circuit court in this case held a hearing on the issue, considered the evidence presented, allowed argument from both parties, and announced a fairly lengthy ruling before issuing its written order denying Ford’s motion. While Ford disagrees with the weight that was given to its evidence and opines that it was sufficient to meet the statutory requirements, it was for the circuit court to determine whether the requisite showing had been made. Further, the plain wording of the statute requires that the defendant “prove” the required | toelements to the satisfaction of the circuit court, not merely that “sufficient” or “substantial” evidence be shown, as Ford argues in its brief. Under these circumstances, we cannot find that the circuit court acted improvidently, thoughtlessly, arbitrarily, capriciously, or without due consideration in finding that Ford did not meet its burden under the statute.
Ford also argues that the circuit court abused its discretion in excluding evidence of seat belt nonuse when Washington “opened the door” to the admission of such evidence by introducing evidence that Johnny was, in fact, wearing his seat belt at the time of the accident. Although Washington asserts that Ford failed to properly preserve this argument for appeal, we disagree. As set out above, Ford objected on this basis when Washington sought to introduce Clowers’s deposition testimony into evidence, and the objection was overruled by the circuit court.
In any event, we find no merit to Ford’s contention that it was entitled to rebut Washington’s evidence of seat belt usage once the door had been opened, regardless of whether the evidence of non-use was inadmissible under the statute. We have recognized the propriety of “fighting fire with fire” when a party-opens the door with an untruthful statement, introduces inadmissible evidence, or makes an improper closing argument. See, e.g., King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Larimore v. State, 317 Ark. 111 , 877 S.W.2d 570 (1994). Also, in Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), a case cited by Ford in its argument, we held that the trial court did not abuse its discretion in admitting character evidence that was otherwise inadmissible under Ark. R. Evid. 404, where the plaintiff had opened the door to the rebuttal evidence by testifying to his past exemplary |nconduct. In this case, the circuit court overruled Ford’s objection that Washington had opened the door to the admission of evidence of seat belt nonuse, noting that Ford had not complied with the requirements in the statute and that the statute does not provide for such an exception. Because there is a statute that expressly prohibits the admission of this evidence, this case can be distinguished from other cases in which we have held that otherwise inadmissible character evidence pursuant to our rules of evidence may be admitted to “fight fire with fire.” See Pursley, supra. We cannot say that the circuit court abused its discretion in this ease, and we therefore affirm the circuit court’s ruling excluding evidence of Johnny’s nonuse of a seat belt.
II. Preemption
For its second point on appeal, Ford argues that the circuit court erred in permitting Washington to proceed on her glazing claim because it is preempted by FMVSS 205, which expressly allows vehicle manufacturers to use tempered glass in the side windows of vehicles. Ford contends that the failure of the circuit court to dismiss this claim was legal error that warrants a new trial. Washington responds that Ford’s preemption argument is waived because the jury reached its verdict on a general-verdict form. She claims that, without any indication of how the jury reached its verdict, this court must affirm the jury’s findings. Alternatively, Washington contends that the federal regulation does not preempt state common-law causes of action and argues that the circuit court was correct in allowing her to present the glazing claim as a factual question for resolution by the jury.
The following facts are pertinent to this particular point on appeal. According to the |12record, vehicle manufacturers typically use one of two types of glass glazing in their vehicle windows. Tempered glazing consists of a sheet of glazing that is designed to shatter on impact into small, granular pieces. American National Standards Institute Standard Z26.1 (“ANSI Z26”) at Forward. Laminated glazing consists of two or more sheets of glass held together by a layer of plastic so that, when the glass cracks or breaks, the broken glass adheres to the sheet of plastic. Id. FMVSS 205, which was promulgated by the National Highway Traffic Safety Administration under the authority of the Federal Safety Act, expressly provides vehicle manufacturers with a choice of installing tempered glazing or laminated glazing in side windows.
Washington’s complaint alleged negligence, strict liability, failure to warn, and breach of warranty based on Ford’s use of tempered glass in the Explorer. In response, Ford filed an amended answer alleging that federal law preempted Arkansas tort law or warranty law that allows for design-defect liability based on Ford’s choice to use the tempered-glass option under FMVSS 205. Washington then filed a motion for partial summary judgment on the glass-glazing claim and requested that the circuit court find that the claim was not preempted by FMVSS 205. Subse quently, Ford filed its response and cross-motion for summary judgment, arguing that FMVSS 205 preempted state-law design-defect claims regarding a manufacturer’s decision to use the tempered-glass option granted by federal law.
Prior to trial, the circuit court conducted a pretrial-motion hearing and heard arguments on whether FMVSS 205 preempted Washington’s state-law claims. At the hearing, the court orally granted Ford’s motion, ruling that FMVSS 205 preempted Arkansas law. | ^Washington then filed a motion for reconsideration, and the circuit court entered an order vacating its prior ruling and finding that Washington’s “glass/glazing and containment claims were not preempted by FMVSS 205, nor do these claims expressly or impliedly conflict with the underlying purposes of FMVSS 205 or its enabling act, the National Traffic and Motor Vehicle Safely Act.”
The case proceeded to trial where Washington’s expert, Dr. Steven Batzer, testified that the tempered glazing used in the Ford Explorer was unreasonably dangerous because it failed to keep the decedent inside the vehicle. Dr. Batzer stated that Ford should have used laminated glazing, and that if laminated glazing had been used in the vehicle, the decedent would have survived the accident. Dr. Batzer did concede that “virtually everybody” manufacturing vehicles in 1994 used tempered glazing in the side windows and that the tempered glazing used by Ford complied with the applicable federal safety standard. The jury also heard evidence that during the vehicle’s rollover, the tempered glass in the driver-side window shattered, allowing the decedent’s head to become trapped between the ground and the door frame. The jury was instructed on negligence and strict liability. Both Ford and Washington accepted general-verdict forms assigning fault without special interrogatories specifying the bases for that finding. At the trial’s conclusion, the jury found by a preponderance of the evidence that both Ford and Williams were at fault and had proximately caused the decedent’s death.
On appeal, Ford argues that a new trial is warranted because Washington’s tort claims based on the use of defective glazing are preempted by FMVSS 205. In support of its 114argument, Ford primarily relies on the South Carolina Supreme Court’s decision in Priester v. Cromer, 401 S.C. 38, 736 S.E.2d 249 (2012). See also Noel v. Ford Motor Co., No. 6:11-cv-370-orl-28DAB, 2013 WL 1786637 (M.D.Fla. Apr. 26, 2013); Morgan v. Ford Motor Co., 224 W.Va. 62, 680 S.E.2d 77 (2009). Aside from her waiver argument, Washington asserts that her claim is not preempted, and she refers us to a number of decisions where courts have determined that a glazing claim is not preempted by federal law. See O’Hara v. General Motors Corp., 508 F.3d 753 (5th Cir.2007); Bernal v. Daewoo Motor Am., Inc., No. CV09-1502 PHX-DGC, 2011 WL 2174890 (D.Ariz. June 2, 2011); Raley v. Hyundai Motor Co., No. CIV-08-0376-HE, 2010 WL 528420 (W.D.Okla. Feb. 11, 2010); Spruell v. Ford Motor Co., Civ. No. 07-2058, 2008 WL 906648 (W.D.Ark. Apr. 1, 2008); Burns v. Ford Motor Co., Civ. No. 06-5201, 2008 WL 222711 (W.D.Ark. Jan. 24, 2008); Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47 (Tenn.2013); MCI Sales and Serv., Inc. v. Hinton, 329 S.W.3d 475 (Tex.2010). In these decisions cited by the parties, the courts have considered the preemption issue in the wake of the Supreme Court’s opinion of Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). See also Williamson v. Mazda Motor of Am., Inc., — U.S. -, 131 S.Ct. 1131, 179 L.Ed.2d 75 (2011); Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002).
As a threshold matter, we first address Washington’s contention that Ford waived the preemption argument for purposes of appeal because the case was presented to the jury on a general-verdict form. On this point, the record reflects that the jury was instructed that it could find Ford liable based on either negligence or strict liability. In support of both claims, Washington asserted that the vehicle was defective (1) because it had an unreasonable 11 ¿propensity to roll over, or (2) because the side window was made of tempered glass. It is only the latter theory of recovery that Ford asserts should have been dismissed.
We are persuaded by Washington’s waiver argument. Where the jury’s verdict is rendered on a general-verdict form, it is an indivisible entity or, in other words, a finding upon the whole case. S. Cent. Ark. Elec. Coop. v. Buck, 354 Ark. 11, 117 S.W.3d 591 (2003). This court will not speculate on what the jury found where a general jury verdict is used. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002); Primm v. U.S. Fidelity & Guar. Ins. Corp., 324 Ark. 409, 922 S.W.2d 319 (1996). When special interrogatories concerning liability or damages are not requested, this court is left in the position of not knowing the basis for the jury’s verdict, and this court will not question or theorize about the jury’s findings. Hyden v. Highcouch, Inc., 353 Ark. 609, 110 S.W.3d 760 (2003); Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997).
Our previous opinion in Union Pacific Railroad Co. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004), is pertinent to our decision here. In that case, the Barbers premised their claim of negligence on five different theories, and the jury was given a general-verdict form on which to impose liability. On appeal, Union Pacific contested the jury’s findings with respect to only two of the theories supporting the claim of negligence. Applying the above-mentioned rules of law, this court declined to address Union Pacific’s arguments because the jury could have fixed liability on another theory that was advanced at trial.
Similarly, in Tyson, supra, the jury was instructed on negligence, fraud, and promissory estoppel but the verdict form did not differentiate between the different types of damages 11Bthat could be awarded. The verdict form in that case stated, “We the jury find for Don Davis on his claim for damages and award damages against Tyson Foods, Inc. in the amount of $891,660.” Tyson, 347 Ark. at 576, 66 S.W.3d at 579. In Tyson, we affirmed the damage award, holding as follows:
The evidence was presented to the jury, and the general verdict casts no light on what decision the jury reached other than liability and an amount of damages. No further analysis may be undertaken. Special interrogatories concerning damages were not requested. We are left in the position of not knowing the basis for the jury’s verdict and we will not question or theorize about the jury’s findings. Esry [v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997).]
Id. at 585, 66 S.W.3d at 581.
In the instant case, the jury could have found in favor of Washington based on the Explorer’s propensity to roll over, or it could have found that the window glazing was defective. The jury might also have found a combination of both defects. However, because the jury could have based its verdict solely on the rollover theory, we must affirm on this point. This court simply cannot speculate as to how the jury arrived at its decision; thus, Ford has failed to demonstrate prejudice result ing from the jury’s consideration of the glazing claim.
117III. Punitive Damages
In its third point on appeal, Ford argues that the circuit court erred in denying its motion for judgment notwithstanding the verdict on the issue of punitive damages. Ford does not argue that the punitive-damages award was excessive; rather, it argues that there was insufficient evidence in this case that it was malicious or indifferent to the consequences of its actions. It contends that mere negligence, even gross negligence, does not suffice to justify an award of punitive damages.
Our standard of review of the denial of a motion for judgment notwithstanding the verdict is the same as that for a denial of a direeted-verdict motion. Carter v. Cline, 2011 Ark. 474, 385 S.W.3d 745. Thus, a circuit court may enter a judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the moving party is entitled to judgment as a matter of law. Id.
This court has held that an award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly or with such a conscious indifference to the consequences that malice may be inferred. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). An instruction for punitive damages may be given when there is evidence that a party likely knew or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury, and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred. D’Arbonne Constr. Co. v. Foster, 354 Ark. 304, 123 S.W.3d 894 (2003). When this court reviews an award of punitive damages, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Id.
Washington argues that she presented substantial evidence of Ford’s knowledge of the 1994 Explorer’s rollover tendencies. We agree. She introduced evidence that Ford’s engineers had recommended four solutions to the Explorer’s rollover issues but that only two changes were made in order not to delay the vehicle’s production date. One of Washington’s experts demonstrated to the jury the effectiveness of the previously recommended modifications of widening the track width of the vehicle and installing smaller tires, both of which were technically feasible and neither of which was implemented by Ford in the 1994 model despite the recommendations of its engineers. Further, there was evidence that Ford had inadequately tested the vehicle, that it had tested the Explorer under unrealistic conditions, such as by placing sand bags on the floor instead of in the seats to lower the center of gravity, and that it had consciously disregarded the risk of rollover when it chose to sell the Explorer with the larger tires that Johnny’s vehicle had installed, despite management’s awareness of the risk associated with the larger tires. With regard to the glazing issue, Washington presented evidence as to the feasibility of installing properly framed laminated side windows, the minimal cost of such windows, the fact that Johnny would not have suffered fatal injuries had such glazing been installed, and the knowledge by Ford engineers as to the superiority of laminated glazing in cases of rollover.
|19Given this proof, we find that there was substantial evidence to support the jury’s award of punitive damages in this case. While Ford presented evidence to refute many of Washington’s allegations, that was an issue of credibility for the jury to determine. Chavers v. Epsco, Inc., 352 Ark. 65, 98 S.W.3d 421 (2003). Thus, we affirm on this point.
IV. Compensatory Damages
Ford argues in its fourth point on appeal that the compensatory-damages award should be reduced by 50%, pursuant to Ark.Code Ann. § 16-61-204 and -205. This case was controlled by the law governing joint and several liability, as the accident occurred prior to the passage of the Civil Justice Reform Act in 2003. When Washington settled with Williams, the other tortfeasor in this case, they signed a “Release and Settlement Agreement,” which provided that any damages recoverable by Washington would be reduced to the extent of Williams’s pro rata share of fault. Ford was not a party to this agreement, but it argues that pursuant to this agreement and to Ark.Code Ann. § 16-61-204, the compensatory damages awarded should have been reduced by 50%, which is the amount of fault found by the jury to be attributable to Williams.
The version of section 16-61-204 (1987) in effect at the time of this ease provided that
[a] release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.
The release and settlement agreement in this case also stated that it was the intent of the parties to the agreement to comply with the provisions of the Uniform Contribution Among fin Joint Tortfeasors Act (§ 16-61-201 et seq.), so as to provide for a reduction to the extent of the pro rata share of the released tortfeasor of the injured person’s damages recoverable against all other tortfeasors.
While Ford correctly recites the law on this issue, there are other factors present here that prevent this court from ordering such a reduction in the award of compensatory damages. As Washington contends in her brief, the instructions submitted to the jury on compensatory damages stated, “If an interrogatory requires you to assess the damages of Mrs. Washington, you must then fix the amount of money which will reasonably and fairly compensate Paulette R. Washington, Teri-an Washington, Quinton Swygart, and the Estate for those elements of damage which you find were proximately caused by the negligence and/or manufacture, assembly, and/or sale of a defective vehicle by Ford Motor Company.” (Emphasis added.) Although the interrogatories themselves did not limit the damages to those caused solely by Ford, Ford at no time objected to this instruction or argued that the jury instructions were inconsistent with the in terrogatories. Absent evidence to the contrary, the jury is presumed to obey the instructions. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999). There is no evidence that the jury in this case failed to follow the instructions; thus, the damages it awarded represented only those proximately caused by Ford, and no reduction of the compensatory-damages award is warranted. We therefore affirm on this point on appeal.
V. Postjudgment Interest
In its final point on appeal, Ford argues that the circuit court erred in its judgment entered on April 8, 2013, subsequent to this court’s second dismissal of the appeal for lack of |21a final judgment, because it included a provision entering the judgment nunc pro tunc to October 6, 2010, for postjudgment-interest purposes. As Ford asserts, nunc pro tunc orders are intended to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999). A court entering a nunc pro tunc order can only correct the record to make it conform to action that was actually taken, such as for clerical errors, and the court cannot modify a decree to provide action that the court, in retrospect, should have taken but did not. Id.
The circuit court explained in its order denying Ford’s posttrial motions that it had intended to enter a final judgment on October 6, 2010, and that it intended for postjudgment interest to run from that date. However, Ford contends that this explanation fails to justify the nunc pro tunc order because the October 6, 2010 judgment was not final, regardless of what the circuit court intended, and because the matter of postjudgment interest was not a clerical error but an action that should have been taken but which the court did not in fact take.
While Washington responds by arguing that a circuit court has discretion to enter a judgment nunc pro tunc for post-judgment interest, citing Southern Farm Bureau Casualty Ins. Co. v. Robinson, 238 Ark. 159, 379 S.W.2d 8 (1964), an important distinction here is that the original judgment entered on October 6, 2010, was held by this court not to be a final judgment. See Ford I, supra. Postjudgment interest is not designed to begin accruing prior to the entry of a final judgment, as prejudgment interest may also be awarded where appropriate. The purpose of awarding postjudgment interest is to compensate judgment creditors for the |22loss of money adjudged to be due them. Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001).
In Glover, we discussed whether the trial court’s award of postjudgment interest should have been calculated from the date of the original judgment, which we had reversed and remanded in an earlier appeal for the judgment amount to be modified. We concluded in that case that the interest was properly awarded from the entry of the original judgment because the reversal amounted to nothing more than a remand for clarification on the method the trial court used to determine the damages it awarded. Id. We held that when a judgment is affirmed in a modified amount, the new amount draws interest from the date of the original judgment; however, when the original judgment is reversed on appeal, any new award subsequently entered by the trial court may bear interest only from the date the new judgment is entered. Id. We also noted in reaching our decision in Glover that our opinion reversing and remanding for clarification of the original judgment did not instruct the trial court to decide any new issues or hear any additional evidence. Id.
In the present case, we dismissed Ford’s appeals in Ford I and Ford II because there remained issues to be decided by the circuit court and thus, the original judgment was not final. Because a final judgment in this case was not entered until April 8, 2013, we find that postjudgment interest should only have been awarded from that date forward. We therefore reverse and remand on this point.
One final issue that must be addressed is Washington’s motion to strike a portion of Ford’s argument in its reply brief, where Ford argued that Washington had waived any | ^objection to including Williams, as a nonparty, on the verdict form. Washington argues that this “new” argument by Ford in its reply brief is improper because it ignores and misrepresents statements by counsel at the trial and because an appellee cannot be found to have waived an argument on appeal. We agree with Ford that it was entitled to raise this argument in its reply brief in response to Washington’s arguments in her brief, regardless of whether Ford’s response was meritorious, and we therefore deny the motion to strike.
Affirmed in part; reversed and remanded in part; motion to strike reply argument denied.
BAKER, GOODSON, and HART, JJ„ dissent.
. Washington entered into a settlement-and-release agreement with Williams on August 7, 2006, and the circuit court entered an order dismissing all claims against her with prejudice. In addition, the circuit court orally dismissed with prejudice all claims against Freeway Ford after Washington moved during trial to nonsuit her claims against it. However, no written order to that effect was entered at that time.
. Clowers was deceased at the time of trial.
. Citing England v. Costa, 364 Ark. 116, 216 S.W.3d 585 (2005), Ford urges this court to presume prejudice because it raised an objection to a jury instruction referencing the concept of preemption. However, Ford's objection was that the instruction should not be given in isolation without additional instructions setting forth other pertinent principles of federal regulatory law. Ford made no argument that the instruction erroneously misstated the law, and more significantly, Ford does not challenge this instruction on appeal. Instead, the issue presented by Ford is the contention that the circuit court erred in ruling that the glazing claim was not preempted by FMVSS 205 and that this alleged defect could be considered by the jury. The present case falls squarely within the holding of Barber, supra. We will not presume prejudice under these circumstances. | [
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PAUL E. DANIELSON, Justice.
12AppeIlant J.B. Hunt, LLC, appeals from orders of the Benton County Circuit Court dismissing its second amended complaint for failure to state facts upon which relief could be granted and sustaining subsequent writs of garnishment filed by ap-pellees Metropolitan National Bank, Webster Capital Finance, Inc., and Computer Repair Services, LLC. After review, we affirm.
The pertinent facts are these. J.B. Hunt is a judgment creditor of Robert and Frieda Thornton (the Thorntons) by virtue of a $12,700,000 judgment entered on March 16, 2011, in a prior case out of Benton County. The Thorntons are the trustees and life beneficiaries of five charitable-remainder trusts. Each trust provides that quarterly annuity distributions be made to the Thorntons until their deaths. On September 5, 2012, J.B. Hunt commenced an action pursuant to Ark. Code Ann. § 16-66-418 to attach the Thorntons’ interest in future distributions from the trusts and apply them to the satisfaction of J.B. Hunt’s judgment (hereinafter, “the attachment action”). In addition to the Thorntons, individually and in their capacities as trustees of the five trusts, the complaint named Merrill Lynch, Pierce, Fenner & Smith, Inc., as custodian of the investment accounts holding the assets of the trusts.
|sOn November 26, 2012, the circuit court, on the motion of Banc of America Leasing & Capital, LLC (BALC), consolidated J.B. Hunt’s attachment action with a case already pending in its court involving some of the same parties and common questions of law and fact as there was competition among various judgment creditors. Appellees Metropolitan National Bank, Webster Capital Finance, Inc., and BALC, were also judgment creditors of one or both of the Thorntons, were all parties in the consolidated case, and each filed a motion to dismiss J.B. Hunt’s first amended complaint. Metropolitan, Webster, and BALC all argued that the facts alleged by J.B. Hunt would not entitle it to relief under section 16-66^418 as that procedure was not the appropriate remedy.
The circuit court, in a letter opinion filed on February 27, 2013, explained that in the two years preceding, there had been a “race to serve” on the trusts various writs of garnishment by judgment creditors and that their respective garnishments had been determined by “winning the race.” It noted that J.B. Hunt was attempting to assert priority pursuant to Ark.Code Ann. § 16-66-418. However, the circuit court found that section 16-66-418 was to be used only when other remedies are unavailable or where other remedies are impractical, such as fraudulent conveyances of property. Therefore, the circuit court concluded that J.B. Hunt had the option of garnishment, that it had failed to allege fraud, an |4absence of remedies, or other circumstances that would trigger an action under section 16-66-418, and that its complaint could not withstand the motions to dismiss. However, J.B. Hunt was given ten days to plead further.
On March 7, 2013, J.B. Hunt filed its second amended complaint. Metropolitan, Webster, BALC, and the Thorntons all filed motions to dismiss pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. The circuit court entered an order granting the motions on May 20, 2013, for the reasons set forth in a letter opinion previously filed on April 11, 2013. In that letter opinion, the court explained that J.B. Hunt’s revised complaint failed to offer facts to support a claim under section 16-66-418. The circuit court found that although J.B. Hunt argued that garnishment was an unavailable legal remedy because the debtors were insolvent, such an argument was not supported by case law and that a creditor may not claim a quarterly distribution until the date it became due. Because its order dismissed J.B. Hunt’s action but not the entire consolidated action, the circuit court, on May 20, 2013, issued a Rule 54(b) certifícate, in which it made the requisite findings pursuant to Ark. R. Civ. P. 54(b).
In addition to appealing from the order dismissing its action, J.B. Hunt is appealing four orders of the circuit court finding that Metropolitan, Webster, and Computer Repair Services (CRS) were entitled to certain distributions from the trusts. J.B. Hunt had objected |fito the relevant writs of garnishment, contending, as it did in its complaint and as it does on appeal, that it had created a superior lien pursuant to section 16-66-418. On J.B. Hunt’s motion, the circuit court stayed its orders and directed that the distributions be deposited with the circuit clerk pending this appeal. We now turn to the argument on appeal.
J.B. Hunt asserts, as it did below, that the Arkansas Trust Code, specifically Ark. Code Ann. § 28-73-501, provides that a creditor may reach future distributions from a trust and that an appropriate mechanism for doing so is found in Ark. Code Ann. § 16-66-418. Appellees all argue that while attachments of future distributions may be authorized by section 28-73-501 in some situations, it is not permissible given the facts in the instant case. After considering all the arguments, we agree with the appellees.
The circuit court’s order here granted motions to dismiss for failure to state a claim under Ark. R. Civ. P. 12(b)(6) and, therefore, our standard of review is whether the court abused its discretion in dismissing the complaint. See Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324. In making this determination, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See id. Also, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be Illiberally construed. See id.
The relevant section of the Arkansas Trust Code for creditor’s claims is section 28-73-501, which reads:
To the extent a beneficiary’s interest is not protected by a spendthrift provision, a court may authorize a creditor or assignee of the beneficiary to reach the beneficiary’s interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means. The court may limit the award to such relief as is appropriate under the circumstances.
Ark.Code Ann. § 28-73-501 (Repl.2012) (emphasis added).
Section 28-73-501 was derived from the Uniform Trust Code and the corresponding commentary reads:
This does not necessarily mean that the creditor can collect all distributions made to the beneficiary. The interest may be too indefinite or contingent for the creditor to reach or the interest may qualify for an exemption under the state’s general creditor exemption statutes.
This section does not prescribe the procedures (“other means”) for reaching a beneficiary’s interest or of priority among claimants, leaving those issues to the enacting State’s laws on creditor rights. This section does clarify, however, that an order obtained against the trustee, whatever state procedures may have been used, may extend to future distributions whether made directly to the beneficiary or to others for the beneficiary’s benefit. By allowing an order to extend to future payments, the need for the creditor periodically to return to court will be reduced.
Unif. Trust Code § 501 cmt. (Amended 2010) (emphasis added).
The commentary to section 501 makes it clear that a creditor may not be allowed to reach a contingent interest of a debtor and that the state must prescribe the procedures for reaching a beneficiary’s interest when there is an issue of priority among claimants. In Arkansas, we have garnishment proceedings provided for in our statutes. Arkansas Code 17Annotated § 16-110-402 (Repl.2006) provides that where a person has obtained a judgment and wishes to satisfy it, he or she may obtain issuance of a writ of garnishment and require the appearance of a person thought to be indebted to the judgment debtor. A writ of garnishment is a suit directed to a third party to determine whether the third party possesses property of the judgment debtor. See Thompson v. Bank of Am., 356 Ark. 576, 157 S.W.3d 174 (2004). A writ of garnishment reaches all property of the judgment debtor in the hands of the third-party garnishee. See id. The effect of the service of a writ of garnishment is to impound all property in the hands of the third-party garnishee that belongs to the judgment debtor at the time of the service, or that may thereafter come into his or her possession up until the filing of a true and correct answer. See id.
In the instant case, there is no dispute that J.B. Hunt was a judgment creditor of the Thorntons. However, it sought below for the circuit court to find that it was entitled to the Thorntons’ future distributions. This court has held that a payment contingent on an individual’s survival is not certain and does not become so until each payment becomes due. See id. When payment is contingent, garnishment of future payments is not permitted. See id. Unfortunately for J.B. Hunt, the Thorntons’ future distributions are not certain because they are contingent upon survival of the beneficiaries.
Presumably, it is because of this limitation that J.B. Hunt attempted to bring its claim against the Thorntons pursuant to Ark.Code Ann. § 16-66-418 and establish an equitable lien against their interests. Section 16-66-418, entitled “Discovery in aid of execution — Equitable proceedings— Attachment,” reads, in relevant part:
b(a)(l) After an execution of fieri faci-as directed to the county in which the judgment was rendered or to the county of the defendant’s residence is returned by the proper officer, either as to the whole or part thereof, in substance, no property found to satisfy the execution, the plaintiff in the execution may institute an action in the court from which the execution issued, or in the court of any county in which the defendant resides or is summoned, for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled to the satisfaction of the judgment.
(2) In such actions, persons indebted to the defendant in the execution or holding the money or property in which he has an interest, or holding the evidences or securities for the same, may be also made defendants.
(d) A lien shall be created upon the property of the defendant, the levy of the attachment, or service of the summons with the object of the action endorsed thereon, on the person holding or controlling his property.
Ark.Code Ann. § 16-66-418(a), (d) (Repl. 2005).
A review of our ease law reveals that this is not the typical procedure used by a judgment creditor for satisfaction of the judgment, and the appellees also urge it is not the remedy intended by the legislature under the circumstances in the instant case. J.B. Hunt cites to Miller v. Maryland Casualty Co., 207 Ark. 312, 180 S.W.2d 581 (1944), for support of its argument on appeal.
In Miller, this court affirmed a pre-Amendment 80, chancery court’s decision to provide equitable relief in a suit for a creditor’s bill and to allow a defendant with no other legal remedy to attach a lien to certain trust interests. Maryland Casualty Company had recovered a judgment in the United States District Court for the Southern District of Texas against Mrs. Anne Wood Locher, a Texas resident, for $13,000, and a nulla bona return was 19made on the execution issued on that judgment. See id. Thereafter, Maryland Casualty filed a claim in the nature of a creditor’s suit, or equitable execution. See id. Although Locher had notice of the suit, she did not enter an appearance, and the court never obtained personal jurisdiction over her in Arkansas. See id. Additionally, Locher had no property in Texas or elsewhere subject to execution or attachment except her equitable interest in the trust administered in Arkansas. See id. Accordingly, the chancery court enjoined the trustees from paying Locher any of the future net income of her share of the trust and decreed that the trustees should pay the future income of Locher’s share of the trust, during the lifetime of Mrs. Locher, to Maryland Casualty until the judgment was fulfilled. See id. This court ultimately held that, under the circumstances, equitable relief was proper, and affirmed the chancery court’s decree. See id. In specifically discussing whether Locher’s interest was subject to seizure, the court noted that “[a]ny beneficial interest of a debtor in real or personal property which cannot be reached by regular process of law and is not expressly exempted by statute may be reached by a creditors’ bill and subjected to the payment or satisfaction of the debt.” Miller, 207 Ark. at 326, 180 S.W.2d at 588 (emphasis added) (quoting 21 C.J.S. Creditors’ Suits § 19, at 1068).
Appellees are quick to point out the differences between the facts in Miller and the facts in the instant case. In Miller, the debtor was a nonresident of Arkansas, the judgment creditor could not obtain personal jurisdiction over the debtor, and the court found that the distributions could not be reached by any other legal process. It is also notable that only one judgment creditor appeared to be involved. Here, not one of those circumstances is 110applicable. J.B. Hunt argues that because garnishment does not allow it to reach the Thorntons’ future trust distributions, then it also had no legal means or legal process to reach those distributions. However, we note that while the future distributions are not reachable by garnishment in the present, they do become reachable when they become due. Therefore, it is not the equivalent of a certain property or interest of a debtor that will never be reachable by any other legal process.
J.B. Hunt also cites to Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988), in which this court reversed and remanded the case for transfer to a chancery court because the circuit court lacked jurisdiction to grant and enforce a lessor’s equitable attachment proceedings against funds held by the Agriculture Stabilization and Conservation Service (ASCS). The funds held by the ASCS were federally exempt from a garnishment action. Therefore, this court held that the appropriate remedy was found in section 16-66-418 and that a court of equity would have jurisdiction. Again, what is illustrated in Cummings is that an action pursuant to section 16-66-418 is appropriate only when an equitable remedy is being sought because there is no other legal process that can be utilized. Such is not the case for J.B. Hunt.
Because J.B. Hunt’s complaint improperly sought the Thorntons’ uncertain future distributions from the trusts, the circuit court did not abuse its discretion in dismissing it. |nFor that reason, we affirm.
For its second point on appeal, J.B. Hunt argues that because the circuit court erred when it dismissed J.B. Hunt’s attachment action, it also erred when it sustained the subsequently served garnishments. However, as previously discussed, we do not conclude that the circuit court erred in dismissing J.B. Hunt’s action. Therefore, we do not reach this argument.
Affirmed.
BAKER and HART, JJ., dissent.
. J.B. Hunt had filed a first amended complaint on October 22, 2012, shortly before its case was consolidated.
. Another order was filed on April 17, 2013, granting the motions "for the reasons set out in the Court’s February 27, 2013 letter opinion.”
. In an order dated May 20, 2013, the circuit court directed that Frieda Thornton's December 31, 2012 distributions be paid to Metropolitan. The court also ordered on that same date that Robert Thornton's distributions from December 2012 be paid to Webster. Those two garnishment orders were listed in the original notice of appeal. In an order dated June 11, 2013, the circuit court directed that the March 31, 2013 distributions payable to Frieda Thornton should be paid to Metropolitan and that the March 2013 distributions payable to Robert should be awarded one-half each to Metropolitan and Webster. J.B. Hunt timely amended its notice of appeal on June 19, 2013 to include that order. Finally, in an order dated July 5, 2013, the circuit court overruled objections of BALC and J.B. Hunt to CRS being entitled to certain September 2012 distributions, but stayed distribution pending this appeal. J.B. Hunt timely appealed from that order with a second amended notice of appeal filed on July 16, 2013.
. The dissent incorrectly concludes that J.B. Hunt has no legal remedy and ignores that the terms of the trust are such that the Thorn-tons' interest is contingent. Once the Thorn-tons' quarterly payment is due and they are alive, then they have will have a valid interest and, thus, so will J.B. Hunt. Garnishment will then provide J.B. Hunt with the appropriate remedy at law. While it is understandable that J.B. Hunt does not want to wait in line as a creditor, that is how this area of the law is structured. | [
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BILL H. WALMSLEY, Judge.
| íAppellant Charles Stutte appeals his convictions for driving while intoxicated (DWI) and resisting arrest. He argues that the warrantless arrest in his home violated the Fourth Amendment and that there was insufficient evidence of resisting arrest. We affirm.
Appellant filed a motion to dismiss in circuit court, arguing that his arrest constituted an unreasonable search and seizure because the arresting officer entered his home without a warrant or exigent circumstances. The motion was heard in conjunction with appellant’s bench trial.
Corporal Robert Hargus of the Fayette-ville Police Department testified that on July 31, 2011, he was working as a selective traffic enforcement unit in the Mount Comfort area. He noted that, prior to the incident involving appellant, there had been some calls reporting loud parties in that area. Around 1:30 a.m. Sunday morning, Hargus observed appellant’s car 12exceeding the speed limit and failing to maintain its lane. He saw the car move side to side, crossing onto the broken white line separating the lanes. Hargus then activated his recording device and followed the car. He saw the car twice move left over the double yellow line and subsequently move over the solid white fog line. Hargus testified that there was moderate traffic in the area at the time. Har-gus activated his patrol lights, but the car did not pull over and continued on at the same speed. Hargus felt that the car could have safely pulled over because there were large open parking areas in the immediate vicinity.
When the car did not respond to his blue lights, Hargus activated his siren. Again the car did not pull over and continued traveling at the same pace. In a final attempt to get the car stopped, Hargus shined his spot light into the rear view mirrors of the car. Still, it did not pull over. Eventually, the car turned left onto another street, turned into a driveway, and parked in a garage that had just been opened. Hargus had unsuccessfully attempted to stop the car for more than a minute.
Hargus testified that appellant got out of his car and began walking towards the rear of the car. Hargus asked him to stop and said that he needed to talk to him. Appellant replied “what,” and Hargus repeated his request to come talk to him. Appellant then replied “why” and turned to walk toward the interior door to the house. Hargus said that he stepped inside the garage, grabbed appellant’s right arm, and told him to stop. Hargus said that he smelled a strong odor of intoxicants and observed that appellant was sweating. Appellant tugged his right arm, used profanities, and tried to walk away. Hargus said at that point he told appellant that he was under arrest for suspicion of drunk driving. Appellant struggled [swhen Har-gus attempted to handcuff him. Appellant was charged with DWI, resisting arrest, violation of the implied-consent law, and careless driving.
Appellant argued that there were no exigent circumstances that would have allowed Hargus to enter his garage for a misdemeanor arrest. The circuit court found that there was probable cause for appellant’s arrest, that there were exigent circumstances, and that driving while intoxicated was not a minor offense. The court found appellant guilty of all of the charges and merged the careless-driving count into the DWI conviction.
I. DWI
A warrantless entry into a private home is presumptively unreasonable. Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The burden is on the State to prove that the warrantless activity was reasonable. Id. On appeal, this court will make an independent determination of the reasonableness of the warrantless arrest based on the totality of the circumstances. Id.
The United States Supreme Court held in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. Exigent circumstances are those requiring immediate aid or action, and, while there is no definite list of what constitutes exigent circumstances, several established examples include the risk of removal or destruction of evidence, danger to the Uves of police officers or others, and the hot pursuit of a suspect. Steinmetz v. State, 366 Ark. 222, 225, 234 S.W.3d 302, 304 (2006).
Appellant argues that Corporal Hargus entered his garage without probable cause or |4exigent circumstances in order to arrest him for a relatively minor offense. He argues that it was determined in Norris that DWI was a minor offense for Fourth Amendment purposes and that Hargus did not even have probable cause to arrest him for DWI prior to entering the garage. Appellant contends that two exigent circumstances alleged by the State below — the destruction of evidence and the danger of appellant returning to his car— were rejected in Norris.
In Norris, a citizen who observed the appellant driving erratically followed him home. The witness reported his observations to the police. Thereafter, the police went to the residence, gained entry, and arrested the appellant for DWI after locating him in his bedroom. The supreme court held that the warrantless home arrest was unreasonable under these circumstances. The Norris court relied on Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
In Welsh, a witness saw the appellant driving erratically and ultimately driving off the road. The witness observed the driver abandon the car and walk away. He reported the incident to the police, and the police located an address by checking the vehicle registration. The police went to the address, entered the home, found the appellant in his bed, and arrested him for DWI. Thus, the facts of the Norris and Welsh cases are clearly and strikingly distinguishable from the case at bar.
Probable cause to arrest is defined as “a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that a crime has been committed by the person suspected.” Hilton v. State, 80 Ark.App. 401, 405, 96 S.W.3d 757, 760 (2003). Probable cause to arrest does not require the quantum of proof |finecessary to support a conviction, and in assessing the existence of probable cause, the appellate court’s review is liberal rather than strict. Id. We look to the facts within the arresting officer’s knowledge — not his stated reasoning — to determine whether those facts are sufficient to permit a person of reasonable caution to believe that an offense has been committed. Banks v. State, 2010 Ark. App. 383, 2010 WL 1790768.
If a person knows that his immediate detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of the person to refrain from fleeing, either on foot or by means of any vehicle or conveyance. Ark.Code Ann. § 5-54-125(a) (Supp.2011). Although appellant was not charged with fleeing, Corporal Hargus’s testimony that appellant ignored his blue lights, siren, and spot light provides probable cause that appellant committed the offense of fleeing. Fleeing by means of any vehicle is considered a Class A misdemeanor, for which the sentence shall not exceed one year. Ark. Code Ann. § 5-54-125(d)(l)(A); Ark.Code Ann. § 5-4-401(b)(l) (Repl.2013). However, the fleeing statute provides that a person convicted of fleeing in a vehicle shall serve a minimum time in jail. Ark.Code Ann. § 5-54-125(d)(l)(B).
The Supreme Court held in Welsh that “the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” Welsh, 466 U.S. at 754 n. 14, 104 S.Ct. 2091. Welsh involved first-offense DWI, which in Wisconsin was a noncriminal violation for which no imprisonment was possible. The Norris court held that the penalties imposed for first-offense DWI in Arkansas were sufficiently similar to those penalties in Welsh to conclude that |Bthe offense was a relatively minor offense in Fourth Amendment analysis. The Norris court noted that while first-offense DWI carries a penalty of imprisonment from one day to one year, the court may order public service in lieu of jail. Ark.Code Ann. § 5-65-lll(a)(l)(B). Fleeing, on the contrary, requires that the offender serve time in jail.
The facts of this case are further distinguishable from Norris and Welsh because the police here were in hot pursuit of a suspect. Appellant relies on Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992), in arguing that hot pursuit involving a minor offense does not constitute an exigent circumstance. The offense in Butler, however, was disorderly conduct, which our supreme court noted was a Class C misdemeanor. Butler summoned the police to his home and spoke with an officer on his porch before communication “deteriorated.” Butler then re-entered his home and the officer followed, announcing that he was under arrest. Our supreme court held that, under these circumstances, there is no exigent circumstance that would allow the warrantless entry into the home for “what is concededly, at most, a petty disturbance.” Id. at 217, 829 S.W.2d at 415. The circumstances and the offenses involved here clearly distinguish this case from Butler.
In addition to the traffic offenses and fleeing that Hargus personally observed, he had a reasonable suspicion that appellant was driving while intoxicated, which justifies a stop under Rule 3.1 of the Arkansas Rules of Criminal Procedure. Murrell v. State, 2011 Ark. App. 311, 2011 WL 1588005. Hargus testified that appellant’s driving, the time of day, the day of the week, and the previous complaints of parties in the general area formed his suspicion. Furthermore, appellant had ignored Hargus’s efforts to get him to stop. When considering the totality of 17the circumstances, the State had a strong interest in precipitating appellant’s arrest.
In reviewing the trial court’s denial of a motion to suppress evidence, we make an independent examination based upon the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Hilton v. State, 80 Ark.App. 401, 96 S.W.3d 757 (2003). We hold that, under the circumstances, the trial court’s decision in concluding that the warrantless arrest was reasonable was not clearly against the preponderance of the evidence. We affirm the denial of appellant’s motion to dismiss.
II. Resisting Arrest
A person commits the offense of resisting arrest if he or she knowingly resists a person known by him or her to be a law enforcement officer effecting an -arrest. Ark.Code Ann. § 5-54-103(a) (Repl.2005). “Resists” means using or threatening to use physical force or any other means that creates a substantial risk of physical injury to any person. Id.
Appellant argues that there is no evidence that he resisted arrest by any means that created a substantial risk of physical injury. The State contends that this specific argument was not made below and is not preserved for appeal. We agree. In a nonjury trial, a motion for dismissal shall be made at the close of all of the evidence and shall state the specific grounds therefor. Ark. R.Crim. P. 33.1(b). Appellant made no argument below concerning the sufficiency of the evidence to support a conviction for resisting arrest. We affirm.
Affirmed.
GLADWIN, C.J., and WOOD and BROWN, JJ., agree.
PITTMAN and HIXSON, JJ., dissent.
. This motion was treated as a motion to suppress illegally obtained evidence. | [
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JIM HANNAH, Chief Justice.
| Appellant Matthew Edmisten appeals from an order of the Arkansas Workers’ Compensation Commission affirming and adopting the opinion of the administrative law judge (ALJ) and denying his claim for benefits associated with an injury he re ceived during his employment with appel-lee Bull Shoals Landing. On November 1, 2007, Edmisten and Greg Prock were injured at work while Edmisten was holding the lid of a fifty-five-gallon drum as Prock opened the drum with an acetylene torch; the drum exploded, severely burning both Edmisten and Prock. Edmisten and Prock were taken to the hospital, where they both tested positive for marijuana. The Commission denied Edmis-ten’s claim for benefits based on a finding that Edmisten tested positive for illegal drugs after the accident and that he failed to rebut the statutory presumption that the accident was substantially 12occasioned by his drug use. Edmisten originally appealed the Commission’s decision to the court of appeals, which affirmed. See Edmisten v. Bull Shoals Landing, 2012 Ark. App. 44, 388 S.W.3d 416. Edmisten then petitioned this court for review, which we granted. Upon granting a petition for review, this court considers the appeal as though it had been originally filed in this court. See, e.g., Pack v. Little Rock Convention Ctr. & Visitors Bureau, 2013 Ark. 186, at 2, 427 S.W.3d 586, 588. On appeal, Edmisten contends that the Commission’s decision is not supported by substantial evidence. He also contends that the structure of the Commission is unconstitutional because the “decisional independence” of the administrative law judges and the Commission has been infringed upon by both the executive branch of the State of Arkansas and private interests to the point of actual bias, as well as the appearance of bias, thus violating the separation-of-powers doctrine and his procedural and substantive due-process rights. We reverse and remand the Commission’s decision and vacate the court of appeals’ opinion.
On September 2, 2009, a hearing was held before the ALJ on Edmisten’s claim for benefits. The parties stipulated that the testimony given by Edmisten, Prock, Roger Williams, Mike Didway, Steve East-wold, and Greg Aaron in Prock’s hearing should be admitted at Edmisten’s hearing and accorded due weight. This testimony is set forth in Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858. These witnesses offered additional testimony at Edmisten’s hearing.
Greg Prock, who worked as a welder at Bull Shoals, testified that on the morning of November 1, 2007, he had coffee with Edmisten and Mike Didway at around 8:00 a.m. in[san office by the main dock. Prock stated that, when he left the dock area, he encountered his boss, Steve Eastwold, who asked him and Edmisten to get a couple of barrels and cut the tops off them. Prock testified that he selected two barrels after tilting them to determine that nothing was inside them and then threw the barrels to Edmisten. Prock used an acetylene torch to cut the tops off the barrels, and Edmis-ten assisted him by holding the tops of the barrels with channel locks. Prock testified that he cut the top off the first barrel without incident, but when he began cutting the second barrel, it exploded and he and Edmisten were engulfed in flames. Prock testified that he had used acetylene torches to open the barrels at least fifteen to twenty times before the explosion and that neither Eastwold nor anyone else had ever objected to his opening the barrels that way.
Prock stated that he had never seen Edmisten come to work intoxicated and that Edmisten did not appear intoxicated on the morning of the accident. Prock admitted that he smoked pot three or four times per week after work, but he denied ever smoking it with Edmisten. Prock also denied that he and Edmisten had left the dock that day before the accident to smoke marijuana. Prock testified that Eastwold had never given him instructions about how to remove the tops of the barrels and that he did not learn that East-wold objected to his using a torch until he was deposed for his case. He also testified that he was. not aware that an air chisel was available at Bull Shoals to use for cutting barrels until Eastwold brought an air chisel to a hearing in his case. Prock admitted that he did not take the caps off the barrels prior to cutting them because he did not hear any “sloshing” when he picked them up and thought they were empty. He testified that he did not read the warning labels on the |4barrels before cutting them with the torch and that neither he nor Edmisten wore any safety equipment while cutting the barrels. Prock testified that, in his current job at Guy King, he had been asked to cut the tops off barrels with a cutting torch. Prock stated:
And I told them what happened with me before, and that’s when I said, I ain’t doing that. And I talked to my father-in-law over the phone, and he said, if you’ll fill that thing full of water, all the way full of water — he’s been a boilermaker for 30 some years — if you’ll fill that barrel all the way up, he says, there ain’t no way that any fumes could ever be in there by the water pushing the fumes out of the barrel. And that’s how I ended up cutting them for, with a torch for Guy King.
Mike Didway, a coworker of Edmisten’s and Prock’s, testified that, when he saw both men on the morning of the accident, neither of them appeared to be intoxicated. On cross-examination, Didway stated that, although he had seen the two around 7:00 a.m. that morning, he did not see Edmis-ten again that day until after the explosion, and he had no idea what Edmisten had done in the time before the explosion occurred around 9:30 a.m. Didway stated that he and another employee were out on the water when the accident occurred, and he saw that the explosion engulfed a houseboat nearby. Didway testified that he had seen Prock open bari’els with a cutting torch on two or three occasions. He also testified that he had never heard Eastwold tell Prock or Edmisten how to open the barrels.
Roger Williams, a mechanic at Bull Shoals, testified that he was on the lake with Didway at the time of the explosion. Williams stated that he had not seen Ed-misten or Prock prior to the explosion and that he had no idea what Edmisten was doing between the time he arrived at work and the time the explosion occurred. Williams testified that he did not recall Edmisten ever coming to work intoxicated, and he testified that he had never seen Prock open a barrel with a cutting torch. He also testified that he could not recall whether |5he had ever heard anyone tell Prock how to open barrels.
Gail Hostad testified that she lived by Edmisten’s girlfriend and that Edmisten had not appeared intoxicated during the evenings that he came to his girlfriend’s house. She also testified that she had no idea what Edmisten did on the morning of the explosion.
Edmisten testified that he was not intoxicated on the morning of the accident and that he had not ingested any illegal drug that day. Edmisten testified that he had helped Prock cut the tops out of barrels maybe ten or fifteen times before that day. Edmisten said that on the morning of the accident, as he and Prock were leaving the dock office, they saw Eastwold, who told them to cut some tops. Edmisten stated that when he loaded the barrels into the truck, he did not feel or hear any sloshing. He said that they cut the top off the first barrel without any problem and that they were seven to ten inches into the second barrel when it exploded. Edmisten testified that Eastwold never told them how to cut open a barrel, that he had never seen or heard anyone get reprimanded for cutting the top off a barrel, and that he did not learn until his deposition that East-wold disapproved of using a cutting torch on a barrel.
Edmisten testified that he was released to return to work on December 11, 2007, and about a month later, he asked East-wold if he could return to work. After passing a drug test, Edmisten returned to work for Eastwold and worked for him about a month before leaving to take another job setting up a hardware store. Edmisten testified that he worked at the hardware store until the owner, Jeff Schlote, told him that he needed to take a drug test from Walmart. Edmisten stated that he told Schlote he wanted to take a drug test at a doctor’s |fioffice, and when Schlote refused his request, he quit.
Edmisten denied that Eastwold specifically told him and Prock to uncap the barrels and check them before cutting them, and he denied that Eastwold told them that the proper way to take a top out of a barrel is to use a pneumatic air chisel. When shown an air chisel at the hearing, Edmisten testified that he had never seen that tool before. Edmisten denied that he was in Prock’s vehicle on the morning of the accident. He testified that he might have smoked marijuana “once or twice” around the time of the accident. Edmis-ten did not recall stating in his deposition that he had smoked pot in high school about once a year, and he admitted that it was not true that he smoked pot only once in his entire life. Edmisten testified that he and Prock were friends, but he denied knowing that Prock smoked marijuana. He also denied telling both Eastwold and Schlote that he could not pass a drug test.
Greg Aaron, another coworker at Bull Shoals, testified that he was present when Eastwold showed Prock and Edmisten how to remove a barrel top with an air chisel. Aaron stated that on a couple of occasions when Eastwold was not present, he had observed people using a cutting torch to open barrels. He also stated that he had never heard Eastwold tell Prock and Edmisten that it was acceptable for them to use an acetylene torch to cut a barrel.
Jeff Schlote testified that Edmisten’s employment with him ended when Edmis-ten refused to take a drug test. According to Schlote, when he asked Edmisten why he would not take the test, Edmisten told him that he was “dirty.”
Steve Eastwold testified that on November 1, 2007, Edmisten clocked in at ^approximately 6:30 a.m., Prock arrived at approximately 7:30 a.m., and the accident occurred some time after 9:30 a.m. East-wold said that when he first saw Edmisten and Prock that day, they were coming down the hill in Prock’s vehicle* with Prock driving and Edmisten in the passenger seat. Eastwold said that he asked “if they would go to the top of the hill, get a couple of those barrels up there, bring them back down to the shop, take the bung holes out of them, make sure they’re clean, and take the tops off.” Eastwold testified that, in the past, he had specifically told Edmisten and Prock to use an air chisel to cut the tops. He also testified that Prock had an air chisel in his toolbox. Eastwold denied that he had ever told Edmisten and Prock to use an acetylene torch to cut the tops, and he stated that he had no knowledge before the explosion that they had been using a torch for that purpose.
Eastwold testified that when he stopped Prock’s vehicle that morning, Edmisten and Prock would not look at him. He related that he did not get close enough to see the whites of their eyes or to smell the inside of the vehicle. When asked if he thought Edmisten and Prock were intoxicated on the day of the accident, Eastwold said that he did not know because he “did not pay any attention to them.” Eastwold testified that if the two had appeared intoxicated that day, he would not have allowed them to work.
Eastwold said that when he visited Ed-misten at the hospital following the accident, Edmisten told him that he did not know how he was going to pay for his medical bills, that he was not going to be able to pass the drug test, and that workers’ compensation probably would not cover his bills. According to Eastwold, approximately thirty days after he had been released from the hospital, Edmisten called him to ask about returning to work. Eastwold said |8that he told Edmisten he would have to pass a drug test before coming back to work and that Edmisten told him he could not pass a drug test that day and would rather take it after the first of the year when he was sure he could pass it.
The ALJ concluded that Edmisten had failed to rebut the presumption by a preponderance of the evidence that his accident was substantially occasioned by the use of marijuana. The ALJ credited the testimony of Eastwold and Aaron that Ed-misten and Prock had been instructed to use an air chisel to cut the tops from the barrels. With respect to Prock’s testimony that it was his habit to use cutting torches on barrels, the ALJ cited the decision in Prock’s workers-compensation case, where the Commission stated:
We are not persuaded by [Prock’s] testimony that he always used a torch to remove the tops off the barrels as evidence that his marijuana use did not contribute to his injury. On the contrary, this evidence supports the fact of [Prock’s] admitted long-term marijuana use and his lack of personal safety.
The ALJ stated:
Similarly, as the majority of the Full Commission found [in Prock’s case], his testimony that they had used a torch for this purpose numerous times before, a clearly dangerous method, actually lends support to the position that they were operating under impaired judgment.
The ALJ considered Didway’s testimony, finding that his
testimony corroborates that of Prock and Edmisten to the extent that he confirmed that the three drank coffee together at the start of the work day on November 1, 2007 ... I find that even if Edmisten did not appear to be impaired at that point in the day, it is irrelevant. Prock and Edmisten admitted that they did no work prior to going to retrieve the barrels. According to Eastwold and Didway, the explosion occurred at around 9:30 a.m. What accounts for the gap in time from when the coffee-drinking ended and the explosion occurred? Certainly the entire barrel-retrieving and cutting process, per the evidence before me, did not take 90 minutes. The answer is found in the credited testimony of Eastwold that he encountered Prock and Edmisten in Prock’s vehicle, coming from the main road off the premises, at | nwhich point he asked them to cut the barrels. His testimony was that neither Edmisten or Prock would look him in the eye. He was not close enough to assess whether they appeared to be under the influence of marijuana. Didway confirmed that Prock had cut barrels open with a cutting torch previously. However, he stated that he would not have used this method. He did not see Eastwold on the dock at the point in time in which, according to Prock and Edmisten, he was supposed to be asking them to cut barrels. This further undercuts the testimony of Ed-misten and Prock.
Finally, the ALJ found that Eastwold was more credible than Edmisten and Prock concerning what had transpired the morning of the explosion, that there was a direct causal link between Edmisten’s marijuana use and the explosion, and that Edmisten had failed to rebut the presumption that the accident was not substantially occasioned by his use of marijuana. The Commission approved and adopted the findings of the ALJ in a 2-1 opinion. The dissenting Commissioner would have found that Edmisten’s injury was compensable, stating:
The only evidence of intoxication in this claim is the positive drug test. Prock testified that Edmisten was not intoxicated. Edmisten testified that Prock was not intoxicated. But as they are the two people being accused of being high, their denials really carry very little weight.... However, Didway testified that he saw Edmisten and Prock that morning and they did not appear intoxicated. Their boss, Eastwold, also an interested party, while insinuating that Edmisten had been off smoking pot in Prock’s Cherokee, admitted that if he had thought they were intoxicated when he instructed them to cut the barrels he would not have let them work. Therefore, the evidence of record preponderates in favor of a finding that Edmisten was not intoxicated.
The evidence of record shows that Prock cut open oil barrels with an acetylene torch all the time. Prock testified that is how he always did it. Didway testified that he had seen Prock do it that way before. Aaron testified that he had seen Prock cut open oil barrels with an acetylene torch before. So even if Ed-misten and Prock were intoxicated, a finding I specifically do not make, it cannot be said that the incident was substantially occasioned by the use of marijuana. The accident was substantially caused by Prock’s habit of cutting open oil barrels with an acetylene torch.... Although the testimony of Didway and Eastwold establishes that Edmisten and Prock were not intoxicated at the time of the incident, this is really beside the point, as the | ^incident was not substantially occasioned by the use of marijuana. It was substantially occasioned by Prock’s stupid habit of cutting open oil barrels with an acetylene torch. As such, the bar presented by Ark.Code Ann. § ll-9-102(B)(iv) does not apply to this claim.
(Emphasis in original.)
Edmisten contends on appeal that the Commission’s decision is not supported by substantial evidence. He states that the Commission erroneously rested its decision on “complete speculation” that the accident was substantially occasioned by his use of marijuana because there was no testimony from any witness that he was intoxicated or impaired before the explosion.
An injury is not compensable if the injury or accident was substantially occasioned by the use of illegal drugs. See Ark.Code Ann. § ll-9-102(4)(B)(iv)(a) (Repl.2012); see also ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998) (explaining that “substantially occasioned” means that there must be a direct causal link between the use of alcohol [or illegal drugs] and the injury or accident). The presence of illegal drugs shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of file- gal drugs. See id. § 11-9-102(4)(B)(iv)(&). An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the illegal drugs did not substantially occasion the injury or accident. See id. § 11 — 9— 102(4)(B)(iv)(dj. The question of whether an employee has overcome the presumption is a question of fact for the Commission. E.g., Ester v. Nat’l Home Ctrs., Inc., 335 Ark. 356, 364, 981 S.W.2d 91, 95 (1998). When the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that Nwe affirm the Commission’s decision if its opinion displays a substantial basis for denial of relief E.g., Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 506, 277 S.W.3d 591, 596 (2008). Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. See, e.g., Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 330, 584 S.W.2d 21, 25 (1979). This court will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. E.g., Hudak-Lee v. Baxter Cnty. Reg’l Hosp., 2011 Ark. 31, at 5, 378 S.W.3d 77, 80. Generally, the appellate court reviews only the decision of the Commission; however, when the Commission affirms and adopts the ALJ’s findings, as it did in this case, we considers both the ALJ’s decision and the Commission’s decision. E.g., Ozark Natural Food v. Pierson, 2012 Ark. App. 133, at 9, 389 S.W.3d 105, 110.
In this case, medical testing established the presence of marijuana metabolites, which triggered the statutory presumption that the injury or accident was substantially occasioned by the use of illegal drugs. See Ark.Code Ann. § 11-9-102(4)(B)(iv)(6). This shifted the burden of proof to Edmisten to prove by a preponderance of the evidence that the injury or accident was not substantially occasioned by his use of illegal drugs. Ark.Code Ann. § ll-9-102(4)(B)(iv)(ci).
11?In finding that Edmisten failed to rebut the presumption that the explosion and resulting injury were substantially occasioned by his use of marijuana, the ALJ focused on the credibility of Edmisten’s and Prock’s testimony that they did not use marijuana that day and their inconsistent testimony regarding the frequency of their marijuana use. The ALJ specifically stated that it found Eastwold to be more credible than Edmisten and Prock concerning what had transpired the morning of the explosion. But Eastwold testified that he did not know whether Edmisten and Prock were intoxicated that morning because he “did not pay any attention to them” when he told them to cut the barrels. Moreover, Didway testified that he had never seen Edmisten intoxicated at work. That Edmisten might have been dishonest about his drug use does not answer the question of causation. Even assuming that Edmisten used marijuana on the morning of the accident, it does not automatically follow that, but for his drug use, the accident would not have occurred. Indeed, Bull Shoals is entitled to the presumption that the accident was caused by drug use, but that presumption is rebutta-ble. In this case, the question before the Commission was whether Edmisten proved, by a preponderance of the evi dence, that there was not a direct causal link between his marijuana use and the accident or injury.
Preponderance of the evidence means evidence of greater convincing force and implies an overbalancing in weight. Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 298, 517 S.W.2d 210, 222-23 (1974) (citing Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947)). A preponderance of the evidence is “not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing |lsforce; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1301 (9th ed.2009).
The evidence presented by Edmisten to rebut the presumption of a direct causal link between his drug use and the accident is as follows. Edmisten testified that he was not intoxicated on the day of the accident and that he had helped Prock cut the tops out of barrels maybe ten or fifteen times before the accident. He also testified that he had never been told how to cut open a barrel. Prock testified that he had never seen Edmisten come to work intoxicated and that Edmisten did not appear intoxicated on the morning of the accident. He also testified that Eastwold had never given him instructions about how to remove the barrel tops and that he had used acetylene torches to open the barrels at least fifteen to twenty times before the explosion, without incident. Prock also testified that, after the accident, he learned from his father-in-law, a boilermaker, to fill barrels with water before cutting them. Didway testified that he saw Edmisten and Prock on the morning of the accident and that neither man appeared to be intoxicated. He also testified that he had seen Prock open barrels with a cutting torch on two or three occasions and that he had never heard Eastwold tell Prock or Edmisten how to open barrels. Williams testified that he did not recall ever seeing Edmisten intoxicated at work, and Aaron testified that, when Eastwold was not present, he had observed workers using cutting torches to open barrels. In sum, Edmisten presented evidence that no one saw him impaired as a result of drug intoxication on the day of the accident and that it was Prock’s habit, as a welder for Bull Shoals, to open barrels with |14a cutting torch. Aside from the positive drug test — from which Bull Shoals had already received the benefit of the presumption— the only other “evidence” of impairment that day was Eastwold’s testimony that Edmisten and Prock were in Prock’s vehicle when he told them to cut the barrels and that the two would not look at him.
It is true that appellate courts defer to the Commission on issues involving the weight of evidence and the credibility of witnesses. E.g., Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 305, 40 S.W.3d 760, 767 (2001). However, while the Commission may be insulated to a certain degree, it is not so insulated as to render appellate review meaningless. Id., 40 S.W.3d at 767. The Commission may not arbitrarily disregard the testimony of any witness and, likewise, the Commission may not arbitrarily disregard other evidence submitted in support of a claim. Id., 40 S.W.3d at 767.
In this case, the Commission arbitrarily disregarded testimony submitted in support of Edmisten’s claim. The Commission apparently found credible Prock’s testimony that on numerous occasions pri- or to the accident, he had used a cutting torch to open a barrel. But the Commission rejected this “habit” testimony as evi dence that the accident was not substantially occasioned by drug use, essentially concluding that Prock’s testimony instead supported the proposition that Prock has a longtime history of “operating under impaired judgment.” The Commission made this finding despite the fact that no witness testified that Edmisten or Prock had ever been intoxicated at work.
In addition, we are troubled by the AL J’s mischaracterization of Didway’s testimony. The AL J found that
!i¡¿Didway confirmed that Prock had cut barrels open with a cutting torch previously. However, he stated that he would not have used that method. He did not see Eastwold on the dock at the point in time which, according to Prock and Edmisten, he was supposed to be asking them to cut barrels. This further undercuts the testimony of Edmis-ten and Prock.
These findings are disingenuous. Did-way stated that he would not have used a torch, and the implication is that he would have refrained from doing so for safety reasons. But Didway testified that he would not use an acetylene torch to open a barrel because he did not know how to operate one. As for Didway’s testimony regarding whether he saw Eastwold speaking to Edmisten and Prock on the dock, Didway could not recall whether he saw Eastwold, stating, “I do not remember if I saw him.” In no way did Didway’s actual testimony undercut the testimony of Edmisten and Prock. ■
We conclude that the Commission’s decision that Edmisten failed to rebut the presumption that his accident was not substantially occasioned by the use of illegal drugs is not supported by substantial evidence. We are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Accordingly, we reverse the decision of the Commission and remand for a determination of benefits.
Edmisten raises an additional point on appeal in which he alleges that the structure of the Commission is unconstitutional because the “decisional independence” of the ALJs and the Commission has been infringed upon by both the executive branch of the State of Arkansas and private interests to the point of actual bias, as well as the appearance of bias, thus violating the separation-of-powers doctrine and his procedural and substantive due- | ¡¡¡process rights. Because we reverse and remand on Edmisten’s first point on appeal, we do not reach the second point. This court has made clear that it will not address a constitutional question if it can resolve the case without doing so. E.g., Dotson v. City of Lowell, 375 Ark. 89, 95, 289 S.W.3d 55, 60 (2008).
Reversed and remanded; court of appeals’ opinion vacated.
Special Justices JUDSON KIDD and TJUANA BYRD join in this opinion.
BAKER and GOODSON, JJ., dissent.
HART and HOOFMAN, JJ., not participating.
. This appeal is a companion case to Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858, decided this same date.
. Edmisten also tested positive for morphine, but the ALJ found that no presumption applied to that drug because medical records showed that Edmisten was given morphine for his pain upon admission to Baxter Regional Hospital after the explosion but prior to the administration of the drug test. | [
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JIM HANNAH, Chief Justice.
hln this case, we review habeas corpus proceedings involving the resentencing of a juvenile offender pursuant to the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In 1991 appellee Barry Turner, pled nolo contende-re in the Pulaski County Circuit Court to committing on May 2, 1991, the crimes of kidnapping, sexual abuse in the first degree, aggravated robbery, theft of property, fraudulent use of a credit card, and theft by receiving. Upon accepting the pleas, the circuit court sentenced him to terms of life, five years, twelve years, three years, three years, and three years, 12respectively. The circuit court imposed the kidnapping and aggravated-robbery sentences consecutively, to be served consecutively to his concurrent sentences for fraudulent use of a credit card and theft by receiving, resulting in a total term of life imprisonment plus fifteen years. Id.
On May 17, 2010, the United States Supreme Court held in Graham “that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” 560 U.S. at 74, 130 S.Ct. 2011. On May 11, 2011, Turner, who was incarcerated at the Maximum Security Unit of the Arkansas Department of Correction in Tucker, filed a petition for writ of habeas corpus in the Jefferson County Circuit Court and alleged that, pursuant to the Court’s decision in Graham, his sentence of life imprisonment for the nonhomicide offense of kidnapping committed when he was seventeen years old was unconstitutional. Turner requested that the Jefferson County Circuit Court modify this sentence to a term between ten and forty years, or, in the alternative, that the circuit court vacate his life sentence and transfer his case to the Pulaski County Circuit Court for re-sentencing. Appellant, the State, filed a response to Turner’s petition and conceded that Turner had made a probable-cause showing that he was being illegally detained. Although the State agreed that Turner’s sentence ran afoul of Graham, it did not concede that Turner should be resentenced in the range of ten to forty years. Rather, the State contended that | swhat made Turner’s sentence unconstitutional was the ineligibility for parole, not his sentence to life and, therefore, the circuit court should sever the parole statute, making Turner’s kidnapping sentence life with the possibility of parole. Turner responded that he could not be sentenced to life with the possibility of parole because that sentence was not authorized by the legislature, and the circuit court had no authority to create a new sentence. The State argued that if the circuit court concluded that it could not impose a sentence of life with the possibility of parole, then it should sentence Turner to forty years’ imprisonment, the maximum remaining term of imprisonment, which is commensurate with the maximum term of imprisonment that was originally imposed. Further, the State contended that Turner’s sentence for kidnapping should be imposed consecutively to his twelve-year sentence for aggravated robbery and his three-year concurrent sentences for fraudulent use of a credit card and theft by receiving because those sentences were legally imposed to run consecutive to Turner’s sentence for kidnapping.
On November 8, 2011, the circuit court conducted a hearing regarding the “sentencing range available” for Turner. Turner contended that, pursuant to Graham, he was entitled to de novo sentencing because the original sentencing court did not give adequate consideration to his young age; accordingly, he could be sentenced in the range of ten to forty years. The State responded that Graham left to the states how to implement the decision, which, in Arkansas, was to be implemented with the state’s habeas procedure. According to the State, the circuit court was limited to curing the illegality in the sentence so that Turner should be sentenced to the maximum available under the law.
l/The court subsequently held a sentencing proceeding on March 7, 2012. The State again contended that Turner should be sentenced to life with the possibility of parole, or, alternatively, that Turner should be sentenced to forty years. Turner asked the circuit court to consider his young age at the time of the offense and noted that in Graham, the Court recognized that juveniles are different from adults in ways that are relevant to their criminal culpability. Turner asserted that current Arkansas sentencing guidelines would recommend a sentence of twenty-two years “for an adult in a similar situation,” and argued that a sentence of twenty-two years would be appropriate for him. The State responded that, by virtue of the fact that Turner was being resentenced and could no longer be sentenced to life imprisonment without parole, he had already gotten the benefit of the Graham decision and was not entitled to a further reduction in sentence.
At the conclusion of the hearing, the court sentenced Turner to a term of forty years’ imprisonment for the kidnapping conviction, with the original sentences to remain the same, resulting in a total term of fifty-five years’ imprisonment. The circuit court found that it lacked the authority to sentence Turner to the State’s proposed sentence of life with the possibility of parole because courts are “required to sentence according to statute,” and that sentence was not available under the statute. Further, the circuit court found that it only had the authority to change Turner’s sentence for kidnapping from life to forty years because the sentencing court’s intent in 1991 was for Turner to receive the maximum sentence for kidnapping. The court entered an order memorializing its decision on April 5, 2012.
The State appeals, contending that the circuit court erred as a matter of law by | ¡¡sentencing Turner to a term of forty-years’ imprisonment for his kidnapping conviction and that Turner should have been sentenced to a term of life imprisonment with the possibility of parole. Turner cross-appeals and contends that the circuit court erred in mechanically resen-tencing him to the maximum term of years available under the statute without giving adequate consideration to his young age as required under Graham. He further contends that the circuit court was not restricted to simply reducing his sentence to the statutory maximum because the underlying purpose for imposing the maximum sentence is no longer constitutional. Finally, Turner asserts that, based on the seriousness level of his offense and his criminal history, if sentenced today under the Arkansas Sentencing Guidelines, see Arkansas Code Annotated section 16-90-803 (Repl.2006), he would be sentenced to twenty-two years, even without consideration of his young age at the time of the offense. Accordingly, he contends that, because juveniles are less culpable than adults, any sentence exceeding twenty-two years is disproportionate.
In Graham, the United States Supreme Court held that the Eighth Amendment “forbids a State from imposing a life without parole sentence on a juvenile nonhomi-cide offender.” 560 U.S. at 75, 130 S.Ct. 2011. The Court explained that
[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that | ¡¡persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.
Id.
Turner was sentenced in accordance with the law at the time he committed the Class Y felony of kidnapping. Arkansas Code Annotated section 5-4-401(a)(1) (1987) authorized a term of imprisonment for a Class Y felony of ten to forty years or life. The State claims that Turner’s original sentence of life was unconstitutional under Graham not because he was sentenced to life under section 5-4-401(a)(1), but because he was ineligible for parole pursuant to sections 16-93-607(c)(l) and (d) (1987).
Section 16-93-607(c)(l) states that
[ijnmates under sentence of death or life imprisonment without parole shall not be eligible for release on parole but may be pardoned or have their sentence commuted by the Governor, as provided by law. Inmates sentenced to life imprisonment shall not be eligible for release on parole unless the sentence is commuted to a term of years by executive clemency. Upon commutation, the in mate shall be eligible for release on parole as provided in this section.
(Emphasis added.)
Section 16-93-607(d) states that
[a]ny person under the age of twenty-one (21) years who is first convicted of a felony and committed to the first offender penal institution or the Department of Correction for a term of years shall be eligible for parole at any time unless a minimum time to be served is imposed consisting of not more than one-third (1/3) of the total time sentenced.
(Emphasis added.)
|7The State contends that the emphasized language of section 16—93—607(c)(1) and (d) was unconstitutional as applied to Turner because it rendered him ineligible for parole. The State, therefore, argues that, because the constitutional violation in Turner’s sentence was his ineligibility for parole, not the life sentence itself, the circuit court should have cured the constitutional infirmity by severing the offending language of section 16—93—607(c)(1) and (d), rather than sentencing him to a term of years.
We reject the State’s contention that the parole-eligibility statute can be severed so that a sentence of life with the possibility of parole is available. Generally, in Arkansas, life means life. With exceptions that do not apply in this case, the legislature has not provided for a sentence of life with the possibility of parole in over forty years. See Ark.Code Ann. § 16-93-601(b)(1) (Repl.2006)(stating that individuals sentenced to life imprisonment for felonies committed before March 1, 1968, and individuals sentenced to life imprisonment for felonies committed after February 12, 1969, and before April 1, 1977, are not eligible for parole unless the sentence is commuted to a term of years by executive clemency); id. § 16-93-604(b)(l) (Repl. 2006) (stating that individuals sentenced to life imprisonment for felonies committed on or after April 1, 1977, and before April 1, 1983, are not eligible for parole unless the sentence is commuted to a term of years by executive clemency); id. § 16-93-607(c)(l) (Repl.2006) (stating that individuals sentenced to life imprisonment for felonies committed on or after April 1, 1983, but before January 1, 1994 are not eligible for parole unless the sentence is commuted to a term of years by executive clemency); id. § 16-93-614(c)(l)(B) (Supp. 2013) (stating that inmates sentenced to life for offenses committed after | ¡January 1, 1994 are not eligible for transfer to community corrections unless the sentence is commuted to a term of years by executive clemency); id. § 16-93-601(b)(2) (Repl.2006) (stating that individuals sentenced to life on and after March 1, 1968, and prior to February 12, 1969, are parole eligible after serving fifteen years).
It is clear that, at the time Turner committed the offense of kidnapping, the sentence of life with the possibility of parole was not authorized by the legislature. The circuit court correctly ruled that it did not have the authority to create a sentence that was not authorized by the legislature and that the maximum sentence available after invalidation of the life sentence is forty years under Arkansas Code Annotated section 5-4-401(a)(l) (1987). See, e.g., State v. Britt, 368 Ark. 273, 278, 244 S.W.3d 665, 669 (2006) (stating that sentencing is entirely a matter of statute, that the circuit court has no authority to sentence a defendant except as provided by statute, and that this court defers to the General Assembly in all matters related to sentencing). The circuit court is affirmed on direct appeal.
On cross-appeal, Turner contends that the circuit court erred in mechanically 19resentencing him to the maximum term of years and violated the Supreme Court’s holdings in Graham and Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because it did not consider his age when resentencing him. In Graham, the Court’s categorical ban on life-without-the-possibility-of-parole sentences for juveniles convicted of nonhomi-cide offenses was based on the Court’s reasoning that, because juveniles have diminished culpability and greater prospects for reform, “they are less deserving of the most severe punishments.” 560 U.S. at 68, 130 S.Ct. 2011 (citing Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). The Court recognized that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds”—for example, “parts of the brain involved in behavior control continue to mature through late adolescence.” Id.
Based on similar reasoning, the Court in Miller held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” — U.S. at -, 132 S.Ct. at 2469 (emphasis added). The Court stated that
[mjandatory 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 incompetencies 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. See, e.g., Graham, 560 U.S. at - [78], 130 S.Ct. at 2032 (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J.D.B. v. North Carolina, 564 U.S. -, -, 131 S.Ct. 2394, 2400-2401, 180 L.Ed.2d 310 (2011) (discussing children’s responses to interrogation). And finally, this | inmandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
— U.S. at -, 132 S.Ct. at 2467. The Court went on to state that while it did “not foreclose a sentencer’s ability” to sentence a juvenile homicide offender to life without parole, but it did “require [the sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 2469 (footnote omitted).
The Miller Court pointed out that the decision in that case did not “categorically bar a penalty for a class of offenders or type of crime” as it did in Graham or Roper, but that it “mandate[d] only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” — U.S. at -, 132 S.Ct. at 2471. The Court further noted that the Miller decision “retains [the] distinction [between homicide and nonhomicide offenses]: Graham established one rule (a flat ban) for nonhomicide offenses, while [the Court] set out a different one (individualized sentencing) for homicide offenses” in Miller. — U.S. at -, 132 S.Ct. at 2466 n. 6.
Turner contends that the original sentencing court did not have the benefit of the recent scientific developments that influenced the Graham and Miller decisions and confirm that teenagers, through no fault of their own, have a lessened ability to regulate impulses and foresee future consequences. As such, he contends that the circuit court erred in giving any deference to the original sentencing court’s imposition of the maximum sentence and in failing to engage in a resentencing process that fully took into account his age and the characteristics of youth.
In We disagree with Turner’s contention that the circuit court’s resentencing did not comport with Graham. Graham does not mandate a resentencing procedure that takes into account a juvenile offender’s age. Rather, Graham prohibits a court from sentencing a juvenile offender to life in prison without parole for a nonhomicide offense, and it provides that, while “[a] State need not guarantee the offender eventual release, ... if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” 560 U.S. at 82, 130 S.Ct. 2011. Once the circuit court imposed a nonlife sentence on Turner, its obligations under Graham were fulfilled.
Moreover, the circuit court’s resentenc-ing did not violate the requirements of Miller. Miller prohibits a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. Murry v. Hobbs, 2013 Ark. 64, at 3, 2013 WL 593365 (per curiam). Turner was not subjected as a juvenile homicide offender to a mandatory life-without-parole sentence; therefore, Miller is inapplicable. See Holland v. Hobbs, No. 5:12CV00463-SWW-JJV, 2013 WL 6332731, at *4 (E.D.Ark. Dec. 5, 2013) (concluding that Miller was inapplicable because the juvenile offender was not sentenced to life without parole by a mechanism that altogether precluded consideration of a lesser sentence for any reason, including youth).
Turner also argues that in the ha-beas proceeding, the circuit court had the authority to resentence him to less than the forty-year maximum sentence for kidnapping. In support of his argument, he cites two Florida cases in which courts have held that, when resentencing under Graham, they can sentence below the maximum allowed by statute even though the | ^defendant initially received a life-without-parole sentence. See Frison v. State, 76 So.3d 1103, 1105 (Fla.Dist.Ct.App.2011) (holding that a defendant who had been sentenced as a juvenile to life in prison for sexual battery with a deadly weapon could be sentenced under Florida law to “a term not exceeding forty years,” so the resentencing court had the discretion to sentence the defendant to less than forty years); Manuel v. State, 48 So.3d 94, 97-98 (Fla.Dist.Ct.App.2010) (holding that a defendant who had been sentenced at the age of thirteen to two life sentences without parole for robbery with a firearm and attempted first-degree murder could be resentenced to any legal sentence available at the time of the commission of the offenses).
The State contends that, because Graham itself does not require Arkansas to adopt a particular remedy to comply with its mandate, it is of no moment that Florida appellate courts may have held that, upon resentencing offenders sentenced in contravention of Graham, trial courts have the authority under that state’s postconviction rules to sentence those offenders to less than the statutory maximum.
The State further contends that because the habeas corpus proceedings in Arkansas provide a narrow remedy, the circuit court was allowed only to correct the illegal sentence and sentence Turner to the maximum. In support of its argument, the State cites Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002), and Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999). In both of those cases, this court concluded that the habeas petitioners had been sentenced in excess of a statutory maximum. We then imposed or ordered imposed the maximum sentence otherwise allowed by law. Flowers, 347 Ark. at 767, 68 S.W.3d at 293 (modifying the petitioner’s sentence for attempted capital murder from forty years to thirty years, which was the maximum sentence allowed by statute); Renshaw, 337 Ark. at 500-01, 989 S.W.2d at 518-19 (reversing and remanding to the trial court with instructions to correct the sentence for the Class B felony to the twenty-year maximum provided by statute).
Turner contends that Flowers and Renshaw are distinguishable from his case because the sentencing courts in those cases had simply inadvertently imposed a term in excess of the statutory maximum but nothing else underlying the original sentencing purpose was invalid. Here, Turner claims that, by contrast, the sentencing analysis is fundamentally different because the original sentencing court was under no obligation to take a defendant’s youth into account and provide him with some realistic opportunity to obtain release. Therefore, Turner claims, the circuit court in this case could not, consistent with Graham, be restricted to simply reducing the sentence to the statutory maximum because the underlying purpose for imposing the maximum sentence is no longer constitutional. As the State points out, nothing in Graham requires this court to change the scope of the remedy available in this state’s habeas corpus proceedings. A writ of habeas corpus is designed to correct detention for an illegal period of time. E.g., Williams v. Norris, 2012 Ark. 30, at 3, 2012 WL 234648 (per curiam). But a habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and it is not a substitute for a direct appeal or postconviction relief. Id. at 3-4.
We agree with the State’s contention that Turner’s youth at the time of his offense and evidence concerning what brain science and psychology have to say about youthful offenders have already been taken into account through his categorical exemption from an | ^otherwise legislatively authorized life-without-parole sentence under Graham. We do not believe that Graham entitles Turner to additional consideration of his youth or the circumstances of his crime to reduce his sentence even further, particularly in this narrowly circumscribed habeas corpus pro ceeding. Accordingly, we need not consider Turner’s argument that any sentence exceeding twenty-two years is disproportionate. The circuit court is affirmed on cross-appeal.
Affirmed on direct appeal; affirmed on cross-appeal.
. We note Turner’s claim that, although the judgment and commitment order reflects a no-contest plea to all charges, the plea transcript shows that Turner pleaded no contest to sexual abuse in the first degree and guilty to all other charges.
. Turner's date of birth is December 19, 1973, making him seventeen years old when he committed the offenses.
. Turner was sentenced for kidnapping pursuant to Arkansas Code Annotated section 5-4-401(a) (1987), which authorized a sentence of ten to forty years, or life.
. Although Ray Hobbs, Director, Arkansas Department of Correction, is the nominal party, we will identify appellant as the "State.”
. Parole eligibility is determined by the law in effect at the time the crime is committed. Pitts v. Hobbs, 2013 Ark. 457, at 4, 2013 WL 5968940 (per curiam).
. We recognize that parole was technically possible because an individual sentenced to life could be eligible for parole if the sentence was commuted to a term of years by executive clemency. See Smith v. State, 300 Ark. 291, 293, 778 S.W.2d 924, 926 (1989) ("While it is true that a sentence to life imprisonment imposed after April 1, 1983, carries no possibility of parole, Ark.Code Ann. § 16-93-607(c)(l) (1987), this court has recognized that such sentences are often commuted, thus making parole a possibility. Vagi v. State, 296 Ark. 377, 757 S.W.2d 533 (1988).”). Nevertheless, the Graham Court rejected the idea that the possibility of commutation provides an adequate opportunity for release for a juvenile defendant sentenced to life for a nonhomicide offense, stating that the "remote possibility" of executive clemency "does not mitigate the harshness of the sentence.” 560 U.S. at 70, 130 S.Ct. 2011; see also Solem v. Helm, 463 U.S. 277, 301 n. 28, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (noting that the Court has “implicitly recognized that the possibility of commutation is not equivalent to the possibility of parole”). Solem v. Helm, 463 U.S. 277, 301 n. 28, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). | [
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PHILLIP T. WHITEAKER, Judge.
| Appellant Tyrone Campbell was charged with one count of first-degree ter-roristic threatening and one count of aggravated assault. A Sebastian County jury acquitted Campbell of the aggravated-assault charge but convicted him of first-degree terroristic threatening. The jury sentenced Campbell to six years’ suspended imposition of sentence and to pay $1000 in restitution. We affirm.
The charges against Campbell stemmed from a series of incidents involving his wife’s work supervisors, Joe White and Chris Gosch. After his wife was fired from a Fort Smith Taco Bell, Campbell drove to the Taco Bell, where he drove his car at White and Gosch at a high rate of speed and made a slashing motion across his neck at the two men. He subsequently told a Taco Bell corporate secretary to tell the two men that “someone is going |ato die tonight.” Campbell does not challenge the sufficiency of the evidence on appeal. Instead, he assigns error to the circuit court’s denial of his motion for new trial (raising several separate arguments as to jury misconduct and one argument as to witness exclusion). In addition, Campbell argues that the circuit court erred in denying his request to instruct the jury on the lesser-included offense of second-degree terroristic threatening and that the court erred by failing to admonish the jury in response to allegedly inflammatory comments made by the prosecutor during voir dire and opening arguments. Finally, Campbell raises an argument that cumulative error warrants a new trial.
I. New Trial Motion
The decision whether to grant or deny a new trial lies within the sound discretion of the trial court, and this court will reverse that decision only if there is a manifest abuse of discretion. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003); Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002). A trial court’s factual determinations on a motion for a new trial will not be reversed unless clearly erroneous, and the issue of witness credibility is for the trial court to weigh and assess. Smart, supra.
A. Jury Misconduct
Campbell’s first three arguments on appeal pertain to alleged errors in the circuit court’s denial of his motion for new trial based on claims of juror misconduct. Because they are somewhat intertwined, we address them together.
Following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct. \%Holloway v. State, 363 Ark. 254, 213 S.W.3d 633 (2005). The appellate courts will not presume prejudice in such situations. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). Jurors are presumed to be unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Holloway, supra. Whether prejudice occurred is a matter for the sound discretion of the circuit court. Id.
Juror misconduct may require a new trial. The threshold issue, however, is whether the evidence of that misconduct is admissible under Arkansas Rule of Evidence 606(b). Rule 606(b) provides that a juror may not testify as to any matter or statement occurring during the course of deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict, or concerning his mental process in connection therewith. Nor may a juror’s affidavit or evidence of any statement by him be received on such matters. Ark. R. Evid. 606(b) (2012). A juror may, however, testify about whether “extraneous prejudicial information” was improperly brought to the jury’s attention or whether any “outside influence” was improperly brought to bear on any juror. Id. Rule 606(b) embodies the public interest in preserving the confidentiality of jury deliberations and ensures that jury deliberations remain secret unless it becomes clear that the jury’s verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence. Milner v. Luttrell, 2011 Ark. App. 297, 384 S.W.3d 1; Waste Mgmt. of Ark., Inc. v. Roll Off Serv., Inc., 88 Ark.App. 343, 199 S.W.3d 91 (2004).
Campbell asserts that one of the jurors, Anthony Pearn, read an alternative written jury instruction during deliberations. This claim is based on an allegation by another juror, |4William Bish. Bish reported that Pearn had read an instruction on terroristic threatening that was not the same as the model instruction given to the jury by the court.
The circuit court heard testimony from Pearn and the jury foreman, James Phelps. Both jurors denied that they or any other juror brought an alternative jury instruction into the jury’s deliberations. Both were adamant that the only instructions considered by the jury were those provided by the court.
Their testimony, however, was contradicted by Bish, who stated that Pearn had read an instruction from “a single sheet of paper.” This instruction, which was not the same as the model instruction given by the court, allegedly explained that terroristic threatening “means all that matters is that the victims felt that they were threatened. It doesn’t matter what the defendant’s intent was.” Bish admitted, however, that he had never actually read the instruction himself. He acknowledged that he had heard the court read the instructions to the jury and conceded that he did not remember if those instructions “were word for word the same as what was read in the jury room.” He further claimed that he believed the instruction read by Pearn “came out of the same packet the judge had given us because I never saw it come from anywhere else. I mean, I didn’t see anyone bring any other descriptions or bring their own paperwork in there or whatever.”
To the extent that Campbell complains that an extraneous instruction was physically interjected into the jury’s deliberations, the circuit court made no factual findings to that effect. It is an appellant’s burden to obtain a clear ruling on an issue from the trial court. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164; Turner v. State, 2012 Ark. App. 150, 391 Absent such a ruling, there is nothing for this court to review. Dixon, supra. Accordingly, we do not address Campbell’s argument on this point. J^S.W.3d 358.
Campbell alternatively asserts that Pearn verbalized inaccurate information to the jury pertaining to the definition of terroristic threatening. Essentially, Campbell alleges that Pearn improperly invoked his knowledge of criminal law during voir dire, such that his “qualifications and credentials readily impl[ied] that he is an expert on the subject of terroristic threatening, which likely caused other jurors to believe him.” Campbell challenges the jury’s purported reliance on Pearn’s expertise in the field of criminal law.
Again, the circuit court heard testimony from Pearn, Phelps, and Bish about this alleged inaccurate information and purported reliance. Bish said that the jury had a lengthy discussion of the terroristic-threatening charge. He stated that the description of terroristic threatening that the jurors discussed was “that it is not what the intent or what was exactly said, it is how the victim feels.” Pearn admitted that he participated in the discussion of the definition of terroristic threatening, but he “thought that that was the purpose of our deliberations” and that it was “based on the instruction that we were given.” Pearn denied being any more influential than any of the other jurors.
Campbell then attempted to ask Pearn whether he had ever summarized the law on terroristic threatening as focusing on the perception of the victim, rather than the intent of the defendant. The court sustained the State’s objection to that question, agreeing that it went “to why they made the decision they made.” Campbell argued that the question went to the content of both the extraneous material and the conversations in the jury room; the | fiCourt, however, ruled that Pearn had already testified that there was no extraneous material and it therefore would not allow the question.
During the examination of Phelps, the court disallowed counsel from asking Phelps whether Pearn had told the other jurors that he had recently served on another jury. Counsel suggested that if Pearn had held himself out to the other jurors as having experience in law enforcement and appeared to be an expert on the subject of terroristic threatening, then the other jurors might have given Pearn’s opinions “extra respect.” The court rejected that argument, finding that a juror’s personal life experiences do not constitute extraneous prejudicial information. The court also sustained repeated objections to counsel’s attempts to ask Phelps whether the jury had ever discussed Campbell’s intent, finding that such questioning went to the jurors’ deliberations.
The court ultimately denied Campbell’s motion for new trial, finding that it was improper for counsel to attempt .to impeach a jury’s verdict by affidavits obtained from members of the jury panel. The court likewise found no merit to Campbell’s argument that Pearn’s alleged expertise constituted extraneous prejudicial information, and it thus denied Campbell’s motion for new trial. On this issue, the court made a finding that Pearn’s knowledge would not constitute extraneous, prejudicial information. This ruling was correct.
This court has held that “knowledge obtained by a juror and brought into the jury room from the ordinary scope of his life experiences, including knowledge obtained through his profession or vocation, does not qualify as “ ‘extraneous prejudicial information’ as contemplated by Rule 606.” Houchins v. Home Care Prof'ls of Ark, Inc., 2012 Ark. App. 558, 1t423 S.W.3d 655; Blake v. Shellstrom, 2012 Ark. App. 28, 388 S.W.3d 57; Milner v. Luttrell, supra. In Milner, this court wrote as follows:
The issue of extraneous prejudicial information has arisen most frequently when jurors have visited an accident scene during trial and reported their observations to other jury members. This case, however, does not involve a juror’s foray outside the courthouse to gather extrinsic information. Rather, it involves information that the juror learned prior to trial in the ordinary scope of her life experiences and carried with her into the jury room....
Moreover, the great weight of authority in other jurisdictions is that a juror’s professional or vocational knowledge does not qualify as extraneous prejudicial information when brought into the jury room....
In light of these authorities, we conclude that [the juror’s] vocational knowledge of medical records and informed consent did not constitute extraneous prejudicial information under Rule 606(b). The rule therefore prohibited the circuit court from considering Mil-ner’s affidavits and testimony and, consequently, the court had no evidence on which to grant a new trial. See Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982).
Milner, 2011 Ark. App. 297, at 7-8, 384 S.W.3d at 5-6 [citations omitted]. Likewise, the circuit court here did not err in finding that Pearn’s personal and professional background did not constitute extraneous information that had been brought to bear on the jury’s deliberations.
Similarly, the court did not err in refusing to allow Pearn, Phelps, and Bish to testify about what the allegedly improperly introduced instruction stated and whether the jurors discussed Campbell’s intent to commit the crime.
Rule 606(b) states plainly that a juror may not testify as to the effect of anything upon his mind as influencing him to assent to the verdict. See Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982). Certainly, a juror’s understanding of the jury instructions and its effect on her deliberation fall within this very prohibition. See also Hall v. Levine, 104 P.3d 222 (Colo.2005) (observing that Colorado Rule of Evidence 606(b), which language mirrors that of Ark. R. Evid. 606(b), applied even if the affidavits | Rshowed that the jury misunderstood the law or facts, failed to follow instructions, or applied the wrong legal standard); 75B Am.Jur.2d Trial § 1625 (2012) (“The rule applies even on grounds such as mistake, misunderstanding of the law or facts, failure to follow instructions, lack of unanimity, or application of the wrong legal standard.”); 66 C.J.S. New Trial § 235 (2012) (“[0]rdinarily, a juror’s claim that he was confused over the law or evidence and therefore participated in the verdict on an incorrect premise is a matter that inheres in or is intrinsic to the deliberative process and cannot be used to impeach the verdict.”).
Arnold v. State, 2012 Ark. 400, at 4-5, 2012 WL 5303988 (emphasis added). Because the testimony that Campbell sought to introduce went to the jurors’ understanding of the instructions, the circuit court correctly excluded this testimony.
Campbell also argues that the jury misconduct affected his “substantial rights” such that he should be entitled to a “presumption of prejudice.” The supreme court and this court have repeatedly held, however, that, following an allegation of juror misconduct, the moving party bears the burden of proving both the misconduct and that a reasonable possibility of prejudice resulted from it; we will not presume prejudice in such situations. Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007); Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002); State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000); Lawson v. State, 74 Ark.App. 257, 47 S.W.3d 294 (2001).
Campbell nonetheless argues that, even if he is not entitled to a presumption of prejudice, he still need show only that a reasonable possibility of prejudice exists. In this regard, he cites to the testimony of Bish, who said that he voted guilty because the other jurors “said it doesn’t matter what Mr. Campbell’s intent was or what he actually said, it is the fact that [the victim] felt that he was threatened, that qualifies it as terroristic threatening.” Campbell maintains that he has demonstrated that “constitutional errors ^resulting from extraneous prejudicial information improperly before the jury both (1) contributed directly to his guilty verdict and (2) resulted in material prejudice against him.” To the extent Campbell is raising an argument that “constitutional errors” were made at trial, he never obtained a ruling on that issue from the circuit court. The failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Norris v. State, 2013 Ark. 205, 427 S.W.3d 626.
B. Witness Exclusion
Next, we address Campbell’s assertion that the circuit court erred in excluding his attorney’s testimony at the new-trial hearing. Campbell asserts that his attorney, Mosemarie Boyd, should have been permitted to testify pursuant to Arkansas Rule of Professional Conduct 3.7(a)(3). Boyd sought to testify at the new-trial hearing in order to provide “rebuttal testimony” to the testimony of jury foreman Phelps’s testimony. At the new-trial hearing, the court and Phelps had the following exchange:
Court: Mr. Phelps, did you ever relate to [counsel] that there was another set of instructions and that they needed to get that sheet that had explained that terroristic threatening means all that matters is that the victim felt that they were threatened, it doesn’t matter what the defendant’s intent was, and did you tell her that that was 100 percent correct?
Phelps: No, Your Honor.... I think once the definition was read on multiple occasions, that' is the way it was trying to be explained to Mr. Bish. It does not matter how he felt and received what was said, it was how the victims felt.... I did not ever make the statement that Mr. Bish’s | msummary [of what happened during deliberations] was 100 percent correct.
Boyd wanted to testify that, in her previous conversation with Phelps, Phelps had agreed with what juror Bish had told her concerning the allegedly improper instruction. The circuit court ruled that Phelps had already gone through her affidavit during Phelps’s testimony and had made a proffer of her testimony to the court. Therefore, the court did not see the need for Boyd to “get up on the witness stand and tell the court the same thing that you have already told me.”
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Riley v. State, 2012 Ark. 462, 2012 WL 6218479; Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429. Moreover, our supreme court has repeatedly admonished members of the bar that an attorney cannot serve as both a witness and an advocate in the same action. McIntosh v. Sw. Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983); Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). We cannot say that the circuit court, having heard the essence of what Boyd’s testimony would be, and being mindful of the proscription on attorneys serving as both witness and advocate, abused its discretion in refusing to allow Boyd to testify.
lull. Lesser-Included Instructions
Campbell next asserts that the circuit court should have instructed the jury on the lesser-included offense of ter-roristic threatening in the second degree. The supreme court has held that terroristic threatening in the second degree is a lesser-included offense of terroristic threatening in the first degree. Green v. State, 2012 Ark. 19, 386 S.W.3d 413. 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. Id. 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.
A person commits the offense of terror-istic threatening in the first degree if, with the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person. Ark.Code Ann. § 5 — 13—301(a)(1)(A) (Repl.2006). A person commits the offense of terroristic threatening in the second degree if, with the purpose of terrorizing another person, he threatens to cause physical injury or property damage to another person. Ark. Code Ann. § 5-13-301(b)(l).
Campbell argues that “sufficient questions of fact existed for the jury — especially with respect to his intent — to warrant the lesser-included offense instruction.” We disagree. The evidence supports the decision of the court. The jury heard testimony that, after learning of his wife’s firing, Campbell went to the location of his wife’s previous employment. While | inhere, he drove his car at a high rate of speed toward the two managers who had terminated her employment. Both managers believed that they were about to be hit by Campbell’s operation of his vehicle and were in fear for their safety. Campbell also shouted profanities at the managers, became disruptive inside the restaurant, and eventually made a slashing motion across his neck with his fingers. The managers testified that they understood this action as being a gesture of Campbell’s threat to cause death. Additionally, Campbell went to the corporate office and told the receptionist to give a message to the managers. He said, “Can you give Joe and Chris a message for me? Tell them someone is going to die tonight.”
Based on this evidence, there was no rational basis for a verdict acquitting Campbell of the offense charged — first-degree terroristic threatening — and convicting him of the lesser-included offense of second-degree terroristic threatening. His words and actions clearly showed both that he had a purpose of terrorizing and that he threatened to cause death or serious physical injury. Because there was no rational basis for acquitting him of first-degree ter-roristic threatening, the circuit court did not abuse its discretion in refusing to instruct the jury on the lesser offense.
III. Mistrial or Admonishment
In his next point on appeal, Campbell asserts that the circuit court should have admonished the jury or ordered a mistrial when the prosecutor made allegedly racially inflammatory remarks during voir dire and misstated the offense of “aggravated assault” as “aggravated robbery” during opening arguments. Campbell acknowledges that he failed to |13object at either instance of alleged misconduct, but he asserts that the court should consider his assignment of error pursuant to Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
The allegedly offensive comments during voir dire occurred when the State, in an apparent attempt to describe reasonable doubt for the venire, made the following statement, without comment or objection from Campbell:
But would you agree that if there was a doubt that today there could be a monkey in the ceiling? Is that reasonable? You kind of see a difference there. If I said that there is [sic] no monkeys in the ceiling, the State proves that there is no monkeys in this building, you know, we sent an inspector up there. At the same time, do you understand what I mean? I’m sorry. I’m confusing everybody.
The State also, during its opening statements, asserted that Campbell had been charged with aggravated robbery. The court interjected a few moments later and advised the prosecutor that he had made a misstatement; the prosecutor replied, “I’m sorry, aggravated assault, Your Honor, I misspoke, aggravated assault.”
On appeal, Campbell argues that, because Campbell is African-American, the prosecutor’s remarks about monkeys were “so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same.” Campbell also argues that the State’s misnomer of the offense with which he had been charged was also highly prejudicial, such that the circuit court should have intervened on its own under the third so-called Wicks exception to correct the “resulting prejudice.”
This exception “relates to the trial court’s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial.” | uWicks, 270 Ark. at 786, 606 S.W.2d at 369. In Lard v. State, 2014 Ark. 1, at 27, 431 S.W.3d 249, 268, the supreme court explained that it is clear that the Wicks exceptions are to be rarely applied and that “the third exception is limited to only those errors affecting the very structure of the criminal trial, such as the fundamental right to a trial by jury, the presumption of innocence, and the State’s burden of proof.” Id. (citing White v. State, 2012 Ark. 221, 408 S.W.3d 720). The allegedly offensive comment by the prosecutor, which was an awkward attempt to explain reasonable doubt, does not rise to the level of offensiveness required by Wicks. Moreover, Campbell fails to demonstrate that the comments were intended to communicate racial bias or prejudice. As to the “aggravated robbery” malapropism, Campbell cannot claim to have been prejudiced by the prosecutor’s words, as the jury acquitted him of the aggravated-assault charge. Simply put, having failed to object to the comments below, Campbell cannot raise these arguments for the first time on appeal.
IV. Cumulative Error
Finally, Campbell argues that cumulative error should serve “as a basis for remand for retrial.” Cumulative error is entertained only in rare and egregious cases, and we reverse only when the cumulative effect of errors denied the defendant a fair trial. Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Bell v. State, 2011 Ark. App. 5, 2011 WL 51466. Moreover, we cannot reverse based on cumulative error unless those alleged errors are actual errors. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). Because, as discussed above, no reversible error exists, then no cumulative error exists. Bell, supra.
Affirmed.
HARRISON and WOOD, JJ., agree.
. That rule provides that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless ... disqualification of the lawyer would work substantial hardship on the client.”
. Under a separate point heading in his brief, Campbell raises an argument that the circuit court generally erred in denying his motion for new trial. Although Campbell sets this out as a separate argument, it is essentially an aggregate of his previous claims that his "substantial rights were materially prejudiced” by the alleged jury misconduct, such that the circuit court should have granted his motion for new trial. As set .out above, the circuit court did not err in finding that no jury misconduct occurred; accordingly, the court did not err in denying Campbell’s new-trial motion. | [
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JIM HANNAH, Chief Justice.
| Appellant, Jon Hopkins, appeals an order of the Monroe County Circuit Court finding that appellees, the City of Brinkley, Arkansas, and Brinkley Water & Sewer Department (“BW & S”) were not required to disclose a municipal-utility ratepayer’s home address under the Arkansas Freedom of Information Act (the “FOIA” or the “Act”), codified at Arkansas Code Annotated sections 25-19-101 to -110 (Repl.2002 & Supp.2011). We reverse and remand the circuit court’s order.
A review of the record reveals that Hopkins submitted multiple requests to BW & S for the home address, phone number, and payment history of Kathryn Harris, a municipal-utility ratepayer and resident of Brinkley. BW & S responded by providing a redacted copy of her account history, which did not disclose her home address. In addition, BW & S stated that it “did not maintain the customer’s telephone number.” In denying the request for Harris’s address, BW & S stated that it believed there was a “constitutional expectation of |2private individuals not to have personal information disclosed publicly,” that it considered a person’s street address “to be something a person could expect to be a private matter not to be disclosed to third parties,” and that “[r]ecent requirements of the adoption of identity theft protection measures by the Waterworks Department has further restricted the access of individuals to the information you request, even within the Waterworks Department.” Hopkins appealed the denial of his request to the circuit court. After a hearing, the circuit court entered an order denying Hopkins’s request, finding
that [o]n October 27, 2008, the Brinkley Water and Sewer Commission adopted an Identify Theft Prevention Program, as required by 16 C.F.R. § 681.1(d)(1); that [Hopkins’s] request for a customer’s street address was denied by [BW & S] pursuant to the Brinkley Municipal Waterworks Identify Theft Prevention Program;
that [BW & S has] provided [Hopkins] with account history information indicating the “requested individual” is a customer of the Waterworks Department and indicating the usage history of the customer, however, that personally identifiable information of the customer, including address, social security number, or other personal information has been redacted;
that [BW & S’s] providing of redacted information provides sufficient information to [Hopkins] to establish the conduct of a public function, as provided by the Freedom of Information Act of the State of Arkansas, while protecting the privacy of personal information as prescribed by the Identity Theft Prevention Program mandated by 16 C.F.R. § 681.1(d)(1); and
[that BW & S is] not required to provide the street address or telephone number to [Hopkins] as requested.
Hopkins contends that the circuit court erred in finding that BW & S was not required to provide him with Harris’s home address because a municipal-utility ratepayer’s home address, a “public record” as defined by the FOIA, is not exempt from the Act’s disclosure and copying requirements. This court liberally interprets the FOIA to accomplish its laudable |3purpose that public business be performed in an open and public manner. E.g., Thomas v. Hall, 2012 Ark. 66, at 4, 399 S.W.3d 387, 390. Furthermore, this court broadly construes the Act in favor of disclosure. Id., 399 S.W.3d at 390. Arkansas Code Annotated § 25-19-105(a)(1)(A) (Supp.2011) provides that “[e]xcept as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.” Subsection (a)(2)(A) provides that “[a] citizen may make a request to the custodian to inspect, copy, or receive copies of public records.” Ark.Code Ann. § 25-19-105(a)(2)(A) (Supp.2011). Pursuant to subsection (d)(2)(A), “the custodian shall furnish copies of public records if the custodian has the necessary duplicating equipment,” upon request and payment of a fee as provided in subsection (d)(3). Ark.Code Ann. § 25-19-105(d)(2)(A) (Supp.2011).
We have held that for a record to be subject to the FOIA and available to the public, it must be (1) possessed by an entity covered by the Act, (2) fall within the Act’s definition of a public record, and (3) not be exempted by the Act or other statutes. E.g., Nabholz Constr. Corp. v. Contractors for Pub. Protection Ass’n, 371 Ark. 411, 416, 266 S.W.3d 689, 692 (2007). In this case, Hopkins and BW & S agree that BW & S is subject to the inspection and copying provisions of the FOIA and that the account history of a municipal ratepayer is a public record. BW & S and Hopkins part ways, however, on the issue of whether the ratepayer’s home address is exempt from disclosure.
Hopkins contends that no exemption permits BW & S to withhold what is in the Upublic record. In support of his contention, Hopkins cites Arkansas Attorney General Opinion No.2009-060, in which the Attorney General concluded that “[t]he individual payment records of customers of public utilities (such as water distributers under A.C.A. § 14-116-101 et seq.) are not eligible for any specific exemption under the FOA,” Arkansas Attorney General Opinion No.2000-129 (concluding that the FOIA “requires the disclosure of customer-specific payment-history records of a city-owned utility company”), and Arkansas Attorney General Opinion No. 97-244 (concluding that the FOIA requires disclosure of customer-specific payment-history records of a municipally owned water system). In addition, Hopkins points out that, in drafting the FOIA, the General Assembly exempted, for example, certain personnel records, see Ark.Code Ann. § 25-19-105(b)(12) (Supp.2011) (stating that personnel records are not open to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy), the personal contact information of certain government employees, see Ark. Code Ann. § 25-19-105(b)(13) (Supp.2011) (stating that personal contact information, including home addresses of certain government employees contained in employee records, is not open, except that the custodian |flof the records shall verify an employee’s city or county of residence or address on record upon request), and certain concealed handgun records, see Ark. Code Ann. § 25 — 19—105(b)(19), as amended by Act 145 of 2013 (deleting (b)(19)(C), which stated that “[t]he name and the corresponding zip code of an applicant, licensee, or past licensee may be released upon request by a citizen of Arkansas”). Hopkins contends that because the ratepayer’s home address is not exempt from disclosure by the Act, BW & S must disclose the information upon request.
BW & S agrees that there is no specific statutory exemption for a ratepayer’s home address, but it contends that the Federal Trade Commission’s Red Flags Rule preempts the FOIA’s disclosure requirements. The Red Flags Rule requires certain companies to “develop and implement a written Identify Theft Prevention Program (Program) that is designed to detect, prevent, and mitigate identity theft in connection with the opening of a covered account or any existing covered account.” 16 C.F.R. § 681.1(d)(1).
As required by federal regulations, BW & S developed an “Identity Theft Prevention Program,” which BW & S says was “intended to identify red flags that will alert our employees when new or existing accounts are opened using false information, protect against the establishment of false accounts, methods to ensure existing accounts were not opened using false information, and measures to respond to such events.” As part of the Program, BW & S implemented “Personal Information Security Procedures” with the aim of better protecting personal customer information. Procedures included storing files with “secure information” in locked file cabinets and limiting access to a customer’s “personal identify [sic] information” Rto employees with a “need to know.”
The Supremacy Clause of the United States Constitution provides that state laws that “interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution” are invalid. Gibbons v. Ogden, 22 U.S. 1, 210-11, 9 Wheat. 1, 6 L.Ed. 23 (1824); U.S. Const, art. VI, cl. 2. State law is preempted under the Supremacy Clause in three circumstances: (1) when Congress makes its intent to preempt state law explicit in statutory language; (2) when state law regulates conduct in a field that Congress intends for the federal government to occupy exclusively; or (3) when there is an actual conflict between state and federal law. English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990).
BW & S contends that the third circumstance, an actual conflict, is present in the instant case because the FOIA, on its face, mandates disclosure of the same personal information that the Red Flags Rule and the Identity Theft Prevention Program seek to protect. BW & S contends that the federal law, which aims to protect a customer’s personal information as a guard against identity theft, is incompatible with the FOIA, which would otherwise require the public disclosure of a customer’s personal information.
The Supreme Court of the United States has explained that
state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
English, 496 U.S. at 79, 110 S.Ct. 2270 (internal quotations and citations omitted).
We are not persuaded by BW & S’s contention that the FOIA is “incompatible” with the federal regulations that require BW & S to implement policies to detect, prevent, and 17mitigate identity theft. Pursuant to the federal regulations, “[ijdentity theft means a fraud committed or attempted using the identifying information of another person without authority.” 12 C.F.R. § 1022.3(h). “Identifying information” is defined as any name or number that may be used, alone or in conjunction with any other information, to identify a specific person, including any:
(1) Name, social security number, date of birth, official state or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;
(2) Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(3) Unique electronic identification number, address, or routing code; or
(4) Telecommunication identifying information or access device (as defined in 18 U.S.C. 1029(e)).
12 C.F.R. § 1022.3(g).
Absent from the definition of “identifying information” is a person’s home address. We recognize that 12 C.F.R. § 1022.3(g) does not contain an exhaustive list of names and numbers that qualify as “identifying information,” but we do not agree with BW & S’s contention that, to prevent and mitigate identity theft, a person’s home address is considered to be “within the same family” of the other items listed in the definition or that a person’s home address is akin to a person’s social security number or date of birth. We conclude that 18the FOIA is not preempted by the Red Flags Rule because the laws do not conflict.
(5) BW & S next contends that the Arkansas Constitution protects a municipal-utility customer’s individual privacy rights, including the secrecy of his or her personal information. In support of this
argument, BW & S cites McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), in which this court recognized “a constitutional right to nondis closure of personal matters.” Id. at 229, 766 S.W.2d at 914 (citing Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)). In that case, McCambridge’s son, John Markle, committed suicide after having murdered his wife and child, and the Little Rock Police Department recovered several items from the crime scene, including two handwritten letters from Markle to his attorney, a diary containing Markle’s notes, a handwritten letter from Markle to McCambridge, and miscellaneous notes. McCambridge filed suit against the City of Little Rock and its police department, seeking to restrain the department from releasing to the media the items listed above and the crime-scene photographs.
The court noted that McCambridge had a right “to avoid disclosure by the ^government of some personal matters,” id. at 230, 766 S.W.2d at 914, and concluded that a constitutional privacy interest applies to matters “(1) that the individual wants to [keep] and has kept private or confidential, (2) that, except for the challenged government action, can be kept private or confidential, and (3) that to a reasonable person would be harmful or embarrassing if disclosed.” Id. at 230, 766 S.W.2d at 914 (citing Bruce E. Falby, Comment, A Constitutional Right to Avoid Disclosure of Personal Matter: Perfecting Privacy Analysis in J.P. v. DeSanti, 653 F.2d 1080 (6th Cir.1981), 71 Geo. L.J. 219, 240 (1981)). Having determined which items involved “personal matters,” pursuant to the three-part test, the court then considered “whether the governmental interest in disclosure under the Freedom of Information Act outweighs the appellant’s privacy interest in the nondisclosure of the personal matters.” Id. at 231, 766 S.W.2d at 915 (citing Nixon v. Admin, of Gen. Servs., 433 U.S. 425, 458, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)). Ultimately, the court concluded that the governmental interest in disclosure under the FOIA outweighed McCambridge’s privacy interest in nondisclosure. Id. at 231-32, 766 S.W.2d at 915.
BW & S contends that a home address qualifies as a “personal matter” under McCambridge and is thus “constitutionally protectable” because it is the type of information that an individual wants to keep and has kept private or confidential, except for its potentially being released pursuant to a FOIA request; it is a class of information that an individual can keep private and confidential; and a reasonable person would find the disclosure of such information harmful. BW & S further contends that, because an individual’s interest in protecting his or her personal information is substantial and because there is “little to no Irrelevant” public interest in a municipal-utility customer’s personal information, the personal information should not be disclosed.
The Tennessee Court of Appeals recently addressed a similar argument. In Patterson v. Convention Center Authority of Metro. Government of Nashville, 421 S.W.3d 597 (Tenn.Ct.App.2013), the Convention Center Authority (“CCA”) appealed the trial court’s determination that the residential addresses of employees of third-party contractors contained in payroll records submitted by the contractors to the Convention Center Authority were not exempt from disclosure under the Tennessee Public Records Act (“TPRA”). After concluding that the TPRA did not prohibit disclosure of the addresses, the Tennessee Court of Appeals addressed the CCA’s contention that workers had constitutional privacy rights to prevent disclosure to their home addresses:
The CCA additionally asserts that workers have constitutional privacy rights to nondisclosure of their home addresses, and that disclosure of resi dential addresses under the TPRA would violate this right. Petitioners assert that the CCA lacks standing to assert this issue. In Schneider v. City of Jackson, the supreme court stated that the City of Jackson had failed to demonstrate that it had standing to assert the privacy rights of individuals where the cases upon which it relied were filed by the individuals alleging constitutional violations. Schneider v. City of Jackson, 226 S.W.3d 332, 344 n. 16 (Tenn.2007). The Schneider court additionally stated:
were we to assume that the City has standing to assert the constitutional claim, the City has failed to offer specific proof that disclosing the field interview cards would threaten the personal security and bodily integrity of certain interviewees, proof that is necessary to establish such a claim.
Id.
As in Schneider, Petitioners here have failed to demonstrate that they have standing to assert the individual workers’ constitutional privacy rights. Additionally, as in | ^Schneider, Petitioners here have offered no proof that disclosing the workers’ addresses would threaten the personal security or bodily integrity of any worker. We accordingly decline to address this issue.
Patterson, 421 S.W.3d at 616.
In the instant case, BW & S relies on McCambridge, a case in which an individual alleged constitutional violations of privacy, to assert the privacy rights of all its customers. Even if we were to assume that BW & S has standing to assert the constitutional elaim, it has failed to offer specific proof that any customer’s home address qualifies as a “personal matter” under the standards set forth in McCam-bridge. Therefore, we decline to address BW & S’s privacy argument. See Patterson, supra; see also Op. Ark. Att’y Gen. No. 285 (2002) (stating that any records maintained by a water district reflecting the names, addresses, and telephone numbers of its paying customers constitute “public records” that are not exempt from disclosure, but recognizing that, in some cases, unlisted telephone numbers and unlisted addresses may meet the McCam-bridge standards).
BW & S also contends that Hopkins’s request for a municipal ratepayer’s home address falls outside of the FOIA’s stated purpose and, therefore, the address should not be disclosed. The legislative intent of the FOIA is stated in Arkansas Code Annotated section 25-19-102 (Repl. 2002):
It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.
BW & S asserts that the home address of a public-utility customer should not be | ^disclosed because the disclosure will not aid anyone in evaluating the operation and performance of the public utility and the job performance of the public officials responsible for running the public utility. But BW & S points to no law that requires a citizen to give a reason for his or her request to inspect public records. The FOIA does not direct itself to the motivation of the person who seeks public records. See John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Informa tion Act 410 (Ark. Law Press, 5th ed.2009) (noting that under the Act, “any public record that is not specifically exempt from disclosure is available for inspection and copying by any citizen of the State of Arkansas, irrespective of his purpose or motive in seeking access”) (internal quotations and footnote omitted).
Finally, BW & S makes a policy argument, stating that
the personal contact information, including home address and personal email address, of a public employee is specifically exempted from disclosure under FOIA. Ark.Code Ann. § 25-19-105(b)(13). In other words, a BW & S employee’s home address would be exempt from disclosure pursuant to a FOIA request. It defies logic that a private customer of a public utility, who has no connection to the operation of the public utility, should receive less protection than an employee of a public utility, who is supported by the taxpayers, when it comes to the protection of his or her personal information.
Whether certain records should be exempt from the FOIA is a public-policy decision that must be made by the General Assembly and not the courts. E.g., Harris v. City of Fort Smith, 359 Ark. 355, 365, 197 S.W.3d 461, 467 (2004). As we noted in City of Fayetteville v. Edmark, 304 Ark. 179, 194-95, 801 S.W.2d 275, 283 (1990), it is the job of the General Assembly to establish exemptions under the FOIA, and arguments for additional exemptions must be addressed to the General Assembly because this court “can only interpret the exemption as it is written.” Id. (citing McCambridge, 298 Ark. at 233, 766 S.W.2d at 916).
11sReversed and remanded.
HOOFMAN, J., dissents.
. At one time, the clearly-unwarranted-invasion-of-privacy exemption was not limited to personnel records. Rather, any information that, if disclosed, would constitute a clearly unwarranted invasion of privacy was not considered to be a part of the public record. In 1981, the General Assembly amended the definition of "public records,” to include the following language: "Provided, that compilations, lists, or other aggregations of information of a personal nature where the public disclosure thereof would’ constitute a clearly unwarranted invasion of personal privacy, are hereby determined to be confidential and shall not be considered to be ‘public records’ within the terms of this Act, and shall not be supplied to private individuals or organizations.” See Act of Mar. 23, 1981, No. 608, § 3, 1981 Ark. Acts 1345, 1346 (1981). But that language was deleted in 1985. See Act of Mar. 21, 1985, No. 468, § 3, 1985 Ark. Acts 917, 918 (1985).
. See, e.g., Office of Lieutenant Governor v. Mohn, 67 A.3d 123, 132 (Pa.Commw.Ct.2013) (recognizing the " ‘Holy Trinity’ of personal information, i.e., person’s name, social security number and date of birth, that are reasonably likely to result in identity theft and fraud,” and concluding that sufficient proof had not been presented to add "home address” to the "Holy Trinity”); Governor’s Office of Admin, v. Purcell, 35 A.3d 811, 813 (Pa.Commw.Ct.2011) (crediting an identity theft, privacy, and security expert's affidavit testimony that the "Holy Trinity ... can be used by identity thieves to establish new financial accounts in the name of the identity theft victim and to commit a variety of other types of identity fraud. While one cannot hold one’s name secret, one can often protect their Social Security number and date of birth.... Organizations that maintain records that contain consumer date of births must protect that personal identifier and other personally identifiable information that the consumer entrusted with the organization.”).
BW & S’s Identity Theft Prevention Program contains "Personal Information Security Procedures” that refer to "secure information,” "personally identifiable information,” "sensitive information,” "sensitive consumer data,” "sensitive data,” and "personally identify [sic] information.” None of those terms are defined. | [
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PAUL E. DANIELSON, Justice.
| Appellant Bobby Charles Nelson appeals from the order of the Pulaski County Circuit Court denying his petition for a writ of error coram nobis. He asserts two points on appeal: (1) that the circuit court abused its discretion in denying his petition and (2) that the circuit court erred in denying his petition without a hearing. We affirm the circuit court’s order.
The instant record reflects that on June 20, 1972, Nelson pled guilty to murder in the first degree and was sentenced to life imprisonment. On April 9, 2012, Nelson, through counsel, filed his petition for writ of error coram nobis, which asserted two bases for relief: (1) that his guilty plea was the product of coercion and was not knowingly, intelligently, or |2voluntarily entered; and (2) that his guilty plea was further involuntary due to his counsel’s operating under a conflict of interest by simultaneously representing him and a co-defendant who had competing interests. The circuit court denied Nelson’s petition and found, in pertinent part:
[T]he defendant’s contention that his plea had been coerced by the threat of the death penalty was rejected by this Court in the Findings of Fact entered on July 23, 1974. Lastly, any allegation of ineffective assistance of counsel should have been raised in the defendant’s Criminal Procedure Rule 1 petition. The defendant’s final two grounds for relief are also cognizable pursuant to Rule 37, then Rule 1, and should have been raised in the petition filed April 5, 1974.
The issues raised in the instant petition can be conclusively decided from the files and records of the case, and an evidentiary hearing is not required.[ ]
It is from this order that Nelson now appeals.
On appeal, Nelson argues that he was entitled to a writ of error coram nobis. He asserts that his trial counsel operated under a conflict of interest that arose when his trial counsel obtained a plea bargain with the State for his codefendant by which the codefendant would testify against Nelson in exchange for a lesser sentence. He maintains that because of that conflict, his trial counsel had to convince him to plead guilty and accept a life sentence | ¡¡since his trial counsel would not have been able to effectively cross-examine his codefendant. Nelson additionally contends that his trial counsel misrepresented his parole eligibility to him to further coerce him into pleading guilty. Finally, he urges that the circuit court abused its discretion in denying his petition without a hearing. The State counters, asserting that Nelson’s claims are allegations of ineffective assistance of counsel that are not cognizable in coram nobis proceedings and should have been raised in his previous postconviction proceedings. It further as-serfs that Nelson has not shown due diligence in bringing his petition. We agree with the State that Nelson’s claims are ones not cognizable in a proceeding for error coram nobis; therefore, no hearing was required on his petition.
Error coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. See Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. See id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and that, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. See id. The writ is issued only under compelling circumstances to achieve justice and to address errors of the most fundamental nature, and it is available to address only certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. See id.
The standard of review for the denial of a petition for writ of error coram nobis is ^whether the circuit court abused its discretion in granting or denying the writ. See Newman v. State, 2014 Ark. 7, 2014 WL 197789. An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. See id. We have further held that when a petition for writ of error coram nobis is filed directly in the circuit court, a hearing is not required if the petition clearly has no merit, either because it fails to state a cause of action to support issuance of the writ, or because it is clear from the petition that the petitioner did not act with due diligence. See, e.g., Deaton v. State, 373 Ark. 605, 285 S.W.3d 611 (2008) (per curiam). To determine whether Nelson should have received a hearing on his petition, this court must necessarily examine whether Nelson’s petition clearly had no merit, in that it either failed to state a cognizable claim for error coram nobis relief or in that he did not act with due diligence.
Our review of Nelson’s petition reveals no claim that he is “innocent or that his plea was coerced in the sense that it was the result of fear, duress, or threats of mob violence as previously recognized by this court as cognizable in coram nobis relief.” Wright v. State, 2014 Ark. 25, at 5, 2014 WL 260993 (per curiam). Nor has Nelson offered any substantiation that he was subjected to any specific mistreatment; that is, he did not aver he was somehow coerced into appearing before the court and entering his plea. See Bannister v. State, 2014 Ark. 59, 2014 WL 495113 (per curiam); Edwards v. State, 2013 Ark. 517, 2013 WL 6569863 (per curiam). The mere pressure to plead guilty occasioned by the fear of a more severe sentence is not coercion. See, e.g., Pierce v. State, 2009 Ark. 606, 2009 WL 4405790 (per curiam). Likewise, we have held that erroneous advice concerning parole eligibility does not automatically render a guilty plea involuntary. See Morgan v. State, 2013 Ark. 341, 2013 WL 5306051 (per curiam). With regard to claims involving counsel operating under a conflict of interest, we Rhave held that those are ineffective-assistance-of-counsel claims, which are outside the purview of a coram nobis proceeding. See, e.g., Watts v. State, 2013 Ark. 485, 2013 WL 6157325 (per curiam); Gardner v. State, 2011 Ark. 27, 2011 WL 291972 (per curiam).
While Nelson attempts to couch his claims in terms of a coerced-guilty plea, it simply does not alter the fact that the actual basis for his claims is ineffective assistance of counsel. In his petition, Nelson contended that his “[tjrial counsel coerced [him] into pleading guilty ... by (1) exploiting his fear of being sentenced to death and (2) assuring him that he would only serve twenty-one years of a life sentence, both of which are unfounded.” He further asserted that his counsel operated under a conflict of interest while defending him, such that he was deprived of due process. But, merely because Nelson asserts that his claims involve a coerced guilty plea does not require this court to treat them as such. Instead, this court routinely looks to the true nature of a petitioner’s claim, rather than how a petitioner couches the claim. See, e.g., Morgan, 2013 Ark. 341, 2013 WL 5306051; Benton v. State, 2011 Ark. 211, 2011 WL 1805322 (per curiam); Crosby v. State, 2009 Ark. 555, 2009 WL 3681664 (per cu-riam); Starling v. State, 2009 Ark. 156, 2009 WL 723574 (per curiam); Nation v. State, 292 Ark. 149, 728 S.W.2d 513 (1987) (per curiam).
Moreover, we have repeatedly held that allegations made in support of error coram nobis relief that are premised on ineffective-assistance-of-counsel claims are not cognizable in error coram nobis proceedings. See, e.g., McClure v. State, 2013 Ark. 306, 2013 WL 4774458 (per cu-riam); Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam); McDan-iels v. State, 2012 Ark. 465, 2012 WL 6218480 (per curiam). To that end, we have been clear that error coram nobis proceedings are not a substitute for proceeding under Rule 37.1 to challenge the validity of a guilty plea, nor are the two | (¡proceedings interchangeable. See, e.g., State v. Tejedar-Acosta, 2018 Ark. 217, 427 S.W.3d 673. This holds true even when the deadline for filing Rule 37 relief has passed, as fundamental fairness and due process do not require an unlimited opportunity to file Rule 37 petitions. See id.
It is clear to this court that Nelson’s claims are actually predicated on allegations of ineffective assistance of counsel; however, it has been well established by this court that such allegations are simply not cognizable in a proceeding for error coram nobis. Because Nelson’s petition did not state a cognizable claim for relief, the circuit court did not abuse its discretion in denying Nelson’s petition or in deciding the matter without a hearing. Accordingly, we affirm the circuit court’s order.
Affirmed.
BAKER, HART, and HOOFMAN, JJ., dissent.
. Normally, an appellant must first seek permission in this court to proceed in the circuit court with a petition for writ of error coram nobis. See, e.g., McJames v. State, 2010 Ark. 74, 2010 WL 569752. However, where as here, the judgment of conviction was entered on a plea of guilty or nolo contendere, the petition for writ of error coram nobis is filed directly with the circuit court. See id.
. The circuit court delineated Nelson’s grounds for the writ as follows:
1. His plea was coerced by the threat of the death penalty, which according to defendant’s petition had been declared unconstitutional in 1971 by the Supreme Court of the United States and therefore his attorney was ineffective by advising him that the death penalty was a possible sentence.
2. His plea was induced by his attorney’s assurance that he would only serve twenty-one years of a life sentence, which was contrary to law and constituted ineffective assistance of counsel.
3. His attorney had a conflict of interest in that he also represented a codefendant who accepted a plea bargain to a lesser offense in exchange for his testimony against the defendant.
. Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. See Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. In the absence of a valid excuse for delay, the petition will be denied. See id. Due diligence requires that (1) the defendant be unaware of the fact at the time of the trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) the defendant, after discovering the fact, did not delay bringing the petition. See id. Because it is clear that Nelson’s petition failed to state a cognizable basis on which error coram nobis could issue, we need not address whether it was clear from Nelson’s petition that he did not act with due diligence. See, e.g., Barker v. State, 2010 Ark. 354, 373 S.W.3d 865 (not addressing due diligence where the appellant’s petition failed to state a cognizable claim for coram nobis relief). | [
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LARRY D. VAUGHT, Judge.
| ]Pro se appellant Joe Ryburn appeals two post-divorce orders of the Saline County Circuit Court: a May 2011 order reducing child support, and a June 2011 order holding Mr. Ryburn in contempt and awarding appellee Janet Ryburn $104,000 for the appraised value of the marital home. This is the third time this pro se appeal is before our court. In Ryburn v. Ryburn, 2012 Ark. App. 256, 2012 WL 1328921, we ordered rebriefing because Mr. Ryburn’s brief did not comply with our rules. When the appeal returned to us, we dismissed without prejudice for lack of a final order. Ryburn v. Ryburn, 2012 Ark. App. 435, 2012 WL 3744757. Because the circuit court has since entered an 12order of dismissal regarding third-party defendant Wells Fargo, we consider the appeal on the merits and affirm in part and reverse and remand in part.
Under the agreement, as set forth in the parties’ 2004 divorce decree, Ms. Ryburn was awarded custody of the parties’ minor children and was to occupy the home with them “until [she] acquires an alternative dwelling, or until the parties agree to dispose of the house through a sale. Should such sale occur, the parties shall divide the proceeds from said sale equally.” Mr. Ry-burn was to continue paying all bills, including the home mortgage, credit cards, and all utilities until Ms. Ryburn became “able to pay some of them through her own income,” and she was to make a good-faith effort to attempt to earn a supplemental income.
In an August 2009 letter to Ms. Ryburn, Mr. Ryburn wrote that on the advice of his attorney, he had begun foreclosure proceedings on the marital house, which would “take from both of us a burden that will never be of value given the condition of the house and the fact that it is mortgaged for significantly more than can be gained from sale of the house.” He wrote that he had phoned Wells Fargo that morning to begin the proceedings and that Ms. Ryburn had the option of continuing to own the house by seeking her own mortgage, with probably about sixty days before the bank would evict her. He also wrote that he had spoken with bankruptcy lawyers and advised that she do the same. He concluded: “After five years of paying you $4,500 a month including mortgage, utilities, child support and every thing else you’ve gotten, the free ride is over. I believe $270,000 is more than sufficient payment. Thank you for not contacting me.”
In a December 2009 order, the circuit court set child support at $1463 a month. Mr. Ryburn (through his attorney) filed a motion for modification in February 2010, alleging in part | athat Ms. Ryburn had not attempted to acquire an alternative dwelling; that therefore, the house should be sold; that Ms. Ryburn should be responsible for mortgage payments until the sale because she was residing there; and that Mr. Ryburn’s income had dropped, and he should no longer be required to make house payments because she had already had six years to relocate.
In a March 2010 order, the circuit court found that Ms. Ryburn had sufficient income to pay household utilities but not other bills. It denied Mr. Ryburn’s request to sell the marital home, observing that the decree was contractual and that the home could be sold only upon “[Ms. Ryburn’s] acquiring an alternate dwelling, or the parties agreeing to dispose of the house through a sale.” The court found that it lacked authority to sell the house without either condition being met.
In an order of June 2010, the circuit court noted that Mr. Ryburn did not appear despite being given notice. It granted his attorney’s oral motion to withdraw and found Mr. Ryburn in contempt based on his refusal to make mortgage payments on the parties’ marital home as required by the court’s previous order. The court also found that Mr. Ryburn was in arrears in the payment of mortgage, penalties, and interest in the amount of $4870.69 and ordered him to pay all arrearages, interest, and penalties delinquent on the house and to make all future payments on the house in a timely manner as required by the previous orders. Further, based on Mr. Ryburn’s failure to attend the hearing, the court issued a Writ of Body Attachment ^commanding the appropriate law-enforcement officers “to take [Mr. Ryburn] into custody and hold [him there] until he appears before this court or post a cash bond.”
In January 2011, Ms. Ryburn filed a motion requesting that Mr. Ryburn be held in contempt for failing to pay the mortgage on the home, which was subject to foreclosure and sale. She prayed that she be awarded the reasonable rental value of the home for her entire life expectancy or, alternatively, be compensated for his failure to maintain the home and/or take necessary steps to allow her to remain there. A mutual restraining order, entered the same day, restrained each party from selling, encumbering, contracting to sell, or otherwise disposing of property belonging to the parties except in the ordinary course of business. In April 2011, Mr. Ryburn requested a reduction in child support and claimed a $7696 overpayment.
On May 31, 2011, the circuit court reduced child support to $1218 a month, reserving other issues. In an order entered on June 8, 2011, the circuit court again found appellant in contempt for failure to pay the mortgage as required in the 2004 decree and subsequent orders, which the court characterized as a “domestic support obligation” and awarded Ms. Ryburn judgment of $104,000 plus interest. Mr. Ryburn appeals from these two orders and presents ten points of alleged error: 1) that the divorce decree and property-settlement agreement should be set aside based on its incomprehensible wording and the court’s prejudicial interpretation; 2) that the court erred in denying him the ability to present evidence that the contractual obligation to be able to sell the house had been fulfilled; 3) that the court erred in its interpretation of the divorce decree and its prejudicial ruling; 4) that the court erred in refusing to divide the marital | sdebt on the home and in awarding Ms. Ryburn judgment in the amount of $104,000; 5) that the court erred in finding Mr. Ryburn in contempt absent evidence of willful conduct; 6) that the court erred in refusing to consider evidence that Ms. Ryburn violated the restraining order and giving her preferential treatment concerning the condition of the marital property; 7) that Ms. Ryburn’s attorney should be reprimanded for changing the wording of the court in its orders; 8) that we should remind the circuit court that pro se litigants are to be treated with the same respect due any member of the court; 9) that the circuit court erred in not allowing into evidence Mr. Ryburn’s payments of support and resulting indebtedness; 10) that the circuit court erred in the amount of child support it set on two separate occasions.
In consideration of the points on appeal, we remind Mr. Ryburn that pro se litigants are held to the same standards as attorneys. Ryburn v. Ryburn, 2012 Ark. App. 256, 2012 WL 1328921 (citing Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985)); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). And, a point is not sufficiently developed for review when appellant cites authority without applying the holdings of those cases to the facts of the case at bar and otherwise makes no convincing argument on appeal; we will not conduct research on appellant’s behalf. Thompson v. Thompson, 2012 Ark. App. 296, 2012 WL 1435660.
Further, we review domestic-relations decisions de novo on the record, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hansen v. Hansen, 2011 Ark. App. 586, 2011 WL 4585250. 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 committed. Id. We give due deference to the circuit court’s superior position to | (¡determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. The circuit court’s findings of fact are reviewed in the light most favorable to the appellee, and we will defer to the superior position of the circuit court to judge the credibility of witnesses. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599. Finally, it is the task of the trial judge to determine the expendable income of a child-support payor; when the amount of child support is at issue, we will not reverse the trial judge absent an abuse of discretion. Parker v. Parker, 97 Ark.App. 298, 248 S.W.3d 523 (2007). We need not consider arguments made for the first time on appeal. Key v. Coryell, 86 Ark.App. 334, 185 S.W.3d 98 (2004).
We first consider Mr. Ryburn’s arguments relating to the parties’ initial divorce decree and property-settlement agreement. He claims that the decree should be set aside based on its incomprehensible wording and the court’s prejudicial interpretation of the decree that resulted in an erroneous contempt finding against him. Although the circuit court commented from the bench that the decree was the “worst” it had ever seen and was difficult to make sense of the provisions of the decree, there were no specific findings in the court’s written orders. Pursuant to Arkansas Supreme Court Administrative Order No. 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed. Carroll v. Carroll, 2013 Ark. App. 401, 2013 WL 3149303. Unless a circuit court’s ruling is reduced to writing and filed of record, we have nothing to review. Id.
The parties’ contractual agreement, written into the divorce decree, clearly-stated that the marital home would be occupied by Ms. Ryburn and the minor children until she acquired alternative housing or the parties agreed to dispose of the house through a sale. The agreement 17further stated that Mr. Ryburn would pay the mortgage, credit cards, and all utilities until Ms. Ryburn was able to pay some of them through her own income.
At the time of the final hearing, Ms. Ryburn lived in the marital home along with the parties’ minor child. Mr. Ryburn ceased making mortgage payments despite the court’s order of March 2010 denying his request to sell the home because the parties had not agreed to do so, and Ms. Ryburn had not acquired alternative housing. He continued to ignore the court’s order of June 2010, which found him in contempt of court for failing to fulfill his past mortgage-payment obligation requiring that he continue making future payments. Finally, Mr. Ryburn ignored the court’s January 2011 order restraining the parties from encumbering property belonging to them, by pursuing a foreclosure option. Therefore, it cannot be said that the circuit court clearly erred in the June 2011 order finding Mr. Ryburn in contempt for failure to pay the mortgage as required by the 2004 divorce decree and its subsequent orders.
Mr. Ryburn also claims that the circuit court refused to allow evidence showing that Ms. Ryburn moved from the marital home and resided in her own dwelling for two years after the divorce, proving that his contractual obligations had been satisfied. Unfortunately, he failed to show a proffer of this testimony, and without citation to the abstract, he states that his own attempts to testify about her break in residence were disallowed based on a res judicata ruling. He also claims that the circuit court refused to allow evidence showing Ms. Ryburn’s theft of property from the marital home and her posting of false and slanderous statements about him on Facebook. An argument is not sufficient if it simply invites the court to search the record ^generally for errors. Goldman v. Goldman, 2010 Ark. App. 408, 2010 WL 1908455; Ark. Sup.Ct. R. 4-2(a)(7) (2013) (requiring that a reference in the argument portion of a brief to material parts of the abstract refer to page numbers of the abstract or addendum). Because Mr. Ryburn has failed to direct our attention to the disallowed evidence, he has failed to carry his burden, and we do not address these claims. Id.
Mr. Ryburn also argues that the circuit court erred in not requiring a fair and equitable distribution of marital debt and in holding him in contempt. Again, the court committed no clear error in finding Mr. Ryburn in contempt for failure to pay the mortgage as required by the 2004 divorce decree and subsequent orders because the mortgage was not a debt to be divided — it was a contractual obligation. In general, damages recoverable for breach of contract are those that would place the injured party in the same position as if the contract had not been breached. Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999). Damages must arise from the wrongful acts of the breaching party, and the judgment must have some relationship to the damages proved. Durham v. Smith, 2012 Ark. App. 690, 2012 WL 6197786 (observing that the proper measure of damages in a conversion is the fair market value of the property at the time and place of conversion). Unfortunately for Mr. Ryburn, there was no finite date for Ms. Ryburn’s occupation of the marital home — so long as a minor child lived there with her. Because Mr. Ryburn breached the parties’ contract by failing to pay the mortgage as agreed, it cannot be said that there was clear error in awarding Ms. Ryburn the assessed value of the home.
|nNext, Mr. Ryburn complains that in the final order of June 2011, Ms. Ryburn’s counsel improperly referred to the property settlement as “spousal support,” which was never ordered and was never mentioned by the judge. He complains that the improper word manipulation was prejudicial to both the appellate court and to him as a pro se litigant, who was without the experience to notice and address this manipulation. The actual wording in the order that refers to the mortgage-payment requirement is “domestic support obligation,” which is admittedly odd (see infra ). However, Ms. Ryburn’s counsel correctly notes that Mr. Ryburn did not avail himself of relief afforded by Arkansas Rules of Civil Procedure 59 (grounds for new trials) or 60 (relief from judgment, decree, or order), and pro se litigants are held to the same standards as attorneys. Ryburn v. Ryburn, 2012 Ark. App. 256, 2012 WL 1328921.
Mr. Ryburn complains that a body-attachment order was attached to a contempt charge never served on him; that he was arrested at his father’s funeral in April 2011; that the circuit judge trivialized the next morning’s proceedings and his distress after a night in jail; and that after he told the judge he would represent himself due to financial difficulties, neither the judge nor Ms. Ryburn’s counsel informed him of the June 2011 motion of contempt or the January 2011 motion “for permanent support.” These arguments are nothing more than conclusory remarks and are not addressable on appeal.
Mr. Ryburn further complains that the circuit court denied admission into evidence of the $300,000 he paid Ms. Ryburn in the six years after divorce (including ear payments for the adult daughter, car-insurance payments for the entire household, all cell-phone bills, and other financial demands of Ms. Ryburn) and evidence of another debt he incurred, including $75,000 | Tpin student loans taken out on behalf of their adult child. He cites Whitworth v. Whitworth, 2009 Ark. App. 410, 319 S.W.3d 269, for the proposition that money paid for adult children’s welfare is evidence of indebtedness, but he fails to acknowledge that this passage is from the dissent. There is no merit to Mr. Ry-burn’s arguments. In Vigneault v. Vigneault, 2010 Ark. App. 716, at 7-8, 379 S.W.3d 566, 571 we observed:
Although in Whitworth consideration was given to Whitworth’s support of a child in college, we did not imply that a circuit court falls into error by failing to give credit for paying college expenses. Our law is settled that, unless a child is disabled, a parent’s duty of support ceases when a child turns eighteen or graduates from high school. Like the circuit court, our view is that appellant’s support of their sons in college is purely a voluntary decision on his part.
(Citation omitted.)
In his final point of appeal, Mr. Ryburn asserts that the circuit court twice miscalculated his child support, first at $1463 in the order of December 2009 and then at $1218.13 in May 2011. He points to a 2008 W-2 and to a letter he wrote to the circuit court with “corrected calculations,” appar ently after the second order was entered. Although he timely appealed the second order, it is not clear that the W-2 evidence was introduced into evidence for the court’s consideration. But, his final point has a second portion that we find compelling.
Mr. Ryburn argues that the requirements of Administrative Order No. 10 support his claim that the circuit court erred by not including a determination of his income or a list of explanations for deviating from our child-support guidelines. “All orders granting or modifying child support (including agreed orders) shall contain the court’s determination of the payor’s income, recite the amount of support required under the guidelines, and recite whether the court deviated from the Family Support Chart.” Ark. Sup.Ct. Admin. Order No. 10, § I. In Blalock v. Blalock, 2013 Ark. App. 659, 2013 WL 5964485, where the child-support order did not contain a determination of the payor’s income, did not refer to the guidelines, and did not recite whether it deviated from the family-support chart, we reversed and remanded for further findings by the circuit court in compliance with Administrative Order No. 10 and Arkansas Code Annotated section 9-12-312. Id.
Here, the May 2011 child-support order simply states, “Based upon the evidence presented by the Defendant the child support obligation of the Defendant shall be reduced to the amount of $1,218.30 per month.” Like Blalock, the order lacks determination of the payor’s income, reference to the guidelines, and recitation of whether it deviated from the family-support chart. Therefore, we reverse and remand for compliance with Administrative Order 10. All other points of error are either not properly before us for consideration or lack merit.
Affirmed in part; reversed and remanded in part.
GRUBER and WHITEAKER, JJ„ agree.
. In December 2004, the Saline County Circuit Court entered a decree of divorce that "approved and confirmed” Janet and Joe Ry-bum’s "child custody, support and property settlement agreement.”
. Although Mr. Ryburn’s notice of appeal requests relief from the United States Court of Appeals for the Eighth Circuit, he references these two state-court orders, and his jurisdictional statement is made to the Arkansas Court of Appeals. Additionally, he filed the notice of appeal with our clerk of court.
. At a November 2009 hearing, Ms. Ryburn testified, '‘I’ve gotten a job at Topp’s Shoes to try and pay some bills of my own. I make $8.00 an hour, and bring home about $730.00 every two weeks.”
. Not to be confused with an award of alimony, the circuit court refers to Mr. Rybum’s collective mortgage and child-support payments as a "domestic support obligation.”
. The court ruled that the matter was res judicata when Mr. Ryburn testified at an April 2011 hearing that he allowed Ms. Ryburn, after living on her mother’s property two years, to move into the marital home because it was in the Benton School District. He also testified at that hearing that Ms. Ryburn posted on Facebook that he was a "deadbeat” dad, but there is no abstracted ruling that this testimony was not allowed. | [
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PER CURIAM.
kin 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 Brian S. Miller of the United States District Court for the Eastern District of Arkansas filed a motion and certification order with our clerk on March 11, 2014. The certifying court requests that we answer a question of law that may be determinative of a cause now pending in the certifying court, and it appears to the certifying court that there is no controlling precedent in the decisions of the Arkansas Supreme Court.
After a review of the certifying court’s analysis and explanation of the need for this court to answer the question of law presently pending in that court, we accept certification |2of the following question, as herein formulated:
Whether the Federal National Mortgage Association satisfies the Statutory Foreclosure Act’s authorized-to-do-business requirement, Ark.Code Ann. § 18-50-117, under 12 U.S.C. § 1716 et seq., or other federal laws, or must the Federal National Mortgage Association satisfy Ark.Code Ann. § 18-50-117 by obtaining a certificate of authority in Arkansas prior to statutorily foreclosing on property in Arkansas?
This per curiam order constitutes notice of our acceptance of the certification of the question 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 plaintiffs in the underlying action, Robert Dickinson and Pamela Dickinson, on behalf of themselves and all residents of Arkansas that are similarly situated, are designated the moving parties and will be denoted as the “Petitioners,” and their brief is due thirty days from the date of this per curiam; the defendants. Sun Trust Mortgage, Inc., and Federal National Mortgage Association, will be denoted as the “Respondents.” and their briefs is due thirty days after the filing of Petitioners’ brief. Petitioners may file a reply brief within fifteen days after Respondents’ briefs are 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 Ark. Sup. Ct. R. 4-2(a) shall be included:
(8) Point on appeal which shall correspond to the certified question 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 question of law as stated in the federal district court’s certification order.
|a(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 issue.
D. Ark. Sup. Ct. R. 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 Respondents.
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 in this certified question, those pleadings should be included as well.
Certified question accepted. | [
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PER CURIAM.
liln 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 Rebecca F. Doherty of the United States District Court for the Western District of Louisiana (Lafayette Division) filed a motion and certification order with our clerk on November 21, 2013. 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 Arkansas Supreme Court.
IgAfter 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, as herein formulated:
1) Does article 16, section 13 of the Arkansas Constitution provide Bowerman with a claim for illegal exaction under the facts and circumstances presented in this case? If so, does that claim extend to both theories proffered by Bowerman, namely product liability and unfair trade practices, and each of the remedies requested?
2) Is Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W.2d 46 (1967), still good law in Arkansas? Does Nelson embrace the expansive reading presented by Bowerman, or the more narrow reading argued by the defendants, or is Nelson inapplicable to the facts and circumstances of this case?
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, Greg Bowerman, is designated as the moving party and will be denoted as the “Petitioner,” and his brief is due thirty days from the date of this per curiam. The defendants, Take-da Pharmaceuticals North America, Inc., et al., shall be denoted as the “Respondents,” and their brief shall be due thirty days after the filing of Petitioner’s brief. Petitioner may file a reply brief within fifteen days after Respondents’ 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.
|s(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 only be permitted 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 Respondents.
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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ROBERT J. GLADWIN, Chief Judge.
11Heritage Physician Group, P.A., and Dr. Marco Camilla (collectively “Heritage”) appeal the Garland County Circuit Court’s judgment awarding appellees Re-tha Minton and Melodee Nobmann, as co-administrators of the Estate of Eugene Minton, deceased (collectively “Estate”), $350,000, plus interest, pursuant to a jury verdict in this medical-malpractice case. On appeal, Heritage asserts that the circuit court erred in denying its motion for directed verdict because the Estate failed to meet its burden of proof regarding the standard of care and proximate causation. We affirm.
I. Statement of Facts
The Estate filed a complaint against Heritage alleging that Eugene Minton died as a result of Heritage’s negligence following a laparoscopic gallbladder removal performed on April 18, 2006, at St. Joseph’s Hospital in Hot Springs, Arkansas. It alleged that Minton [¡.exhibited signs of internal bleeding following his surgery but that Heritage did not act in time to save Minton. On the evening of April 19, 2006, Minton underwent emergency surgery, and it was discovered that he had extensive abdominal bleeding. Following surgery, Minton’s condition deteriorated, and he died. The Estate’s negligence claim against Heritage included Heritage’s failure to do the following: (1) investigate Minton’s decreasing blood count following surgery; (2) adjust medications designed to thin Minton’s blood-clotting time despite signs that he had a decreasing blood count and was losing blood; (3) order repeat cheeks of Minton’s hemoglobin and hemat-ocrit; (4) monitor Minton’s conditions sufficiently to determine whether his condition was deteriorating; and (5) exercise ordinary care for physicians and surgeons in Hot Springs, Garland County, Arkansas, or in similar communities.
A jury trial was held April 29 through May 3, 2013, and Dr. Phillip D. Price from Columbus, Ohio, testified that he is a surgeon specializing in gastrointestinal surgery. Columbus is a city of between 1.2 and 1.5 million people. Dr. Price graduated from Ohio State University College of Medicine in 1989 and attended a residency in general surgery at Mt. Carmel Health in Columbus for five years. Since then, he has been involved in the practice of general surgery and training surgical residents, and he is board certified in general surgery. He currently practices in a 500-bed hospital, but for a short period he went to another hospital in the Mt. Carmel Health System in Columbus called St. Anne’s, which was a 200-bed facility. During direct examination by the Estate’s counsel, Dr. Price testified as follows:
IsQ: Now, Doctor, do you have an opinion as to the standard of care for physicians and surgeons practicing in Hot Springs, Arkansas, or in similar communities, and when I use the term similar communities, I mean from the standpoint of the availability of similar medical services in regard to Eugene Min-ton’s case?
A: Yes.
Q: How do you obtain knowledge of the standard of care in facilities— you’ve never practiced here in Arkansas, correct?
A: That is correct.
Q: Tell us about how the standard of care you can arrive at that.
A: Well, you know, standard of care is a legal term attorneys like to throw around, but what to me the standard of care means is is that the care that a competent physician in a similar facility with a similar type of patient would give that patient. Is it — it’s dependent on obviously the training of the physician, it’s dependent upon the availabilities of that facility, and the standard of care is what would a competent physician do with those resources in a given facility.
Q: And, Doctor, from your review of the records in this case as it affects your opinions on the standard of care, did Dr. Camilla have all of the facilities available to him that you felt would have been required in a situation such as Eugene Minton’s case?
A: Yes.
Q: Okay. Now, Doctor, are there situations where Mr. Minton might have been treated differently in a different locality somewhere?
A: For this particular problem?
Q: Yes, sir.
A: No.
Q: Okay. Now, Doctor, if you would, tell us whether in your opinion Dr. Camilla, in his care and treatment of Eugene Minton, during his hospitalization of April of 2006, deviated from the standards of good medical 14care for physicians and surgeons practicing in Hot Springs, Arkansas, or in a similar community?
A: Yes, I believe Dr. Camilla deviated from the standard of care.
Q: And, Doctor, in your opinion within the reasonable degree of medical probability, did the deviation of good medical care contribute to Mr. Minton’s death?
A: Yes.
Dr. Price continued, testifying that Minton had suffered hypovolemic shock due to the undiagnosed bleeding following the surgery. On cross-examination, Dr. Price was questioned by Heritage about his knowledge regarding surgical practice in Hot Springs, Arkansas, as follows:
Q: Now, with regard to practice of surgery in Arkansas, do you know whether the — we mentioned that a few minutes ago — do you know whether the hospital where the surgery took place here, it’s called St. Joseph’s Mercy Hospital. Do you know whether they have residents there in the hospital two to three deep during a given day on the floor to answer or do they have somebody in the hospital twenty-four hours a day as a junior resident and senior resident, do they have anybody besides themselves? Do you know that?
A: Well, they do not have a residency program there.
Q: What about staffing of just physicians and that basis? Are they able to have somebody in the hospital all night and all day? Do you know that?
A: I did not get the opinion from the records that there’s any twenty-four hour physician care in that hospital ever. This is my assumption from the records.
Q: That is correct. And you wouldn’t be surprised today that a city of thirty-something thousand here as compared to a million and half, would you?
A: No.
On redirect examination by the Estate’s counsel, Dr. Price testified as follows:
|5Q: ... Do people in Hot Springs, Arkansas, deserve any less medical care assuming that the facilities are available than the people in Columbus, Ohio?
A: No.
Q: As far as the issues that we are dealing with in this case, is it complicated? What is it?
A: This is very basic medicine. This is — the fact that Mr. Minton was in hemorrhagic shock is something a first year surgical resident or an advanced nurse practitioner should easily recognize.
Q: Doctor, as far as what went on with Mr. Minton as you have described to us from this chart, do you have any doubt in your mind that if action had been taken by Dr. Camilla when he wrote his order at least as late as 1:15 in the afternoon Mr. Minton would have survived?
A: Yes.
Q: Tell me what your — whether he would have survived or not.
A: I think Mr. Minton was salvageable up until his blood pressure bottomed out for the last time on the evening of the 19th and was taken to surgery emergently....
At the close of the Estate’s case, Heritage moved for a directed verdict, arguing as follows:
Heritage: Your Honor, we’d like to move at the close of Plaintiffs’ case that they have failed to comply with the burden of proof to go forward in this case, and I’d direct the Court’s attention to AMI 1501 that they had to prove and did not prove. They had somebody called as a general surgeon, but he did not, and that was the reason I put that out there in terms of his knowledge of the same or similar locality and specialty in standing in the same or similar locality. He did not have any experience in Hot Springs, Arkansas, with any type of practice they have here. I gave him plenty of opportunity to talk about what he’s done to have eighteen to twenty people working with him, rounding in the hospital, coming over to his office and the kind of practice he has, maybe bariatric surgery, oncology surgery. He’s done a little of this and a little | fibit of that. The law strictly is a general surgeon must possess and apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same specialty and locality in which he practices or in a similar locality, and I don’t think he’s proven or met that. There is a way to do that, but he did not present the testimony that’s needed for him to cross that threshold. It’s not for the defense to do it, but we cross-examined to bring out the things that showed the differences and the incompatibility of him saying he just thinks they deserve as good in Hot Springs as they do in Ohio. That’s not been proved. That’s basically what he said in his testimony in response to Mr. Spink’s questions, so we move to have the Court grant a directed verdict because they cannot meet the burden of the standard of care or causation and damages.
COURT: Thank you. Mr. Spinks, your response.
Estate: Your Honor, the doctor is qualified to come in and testify to standard of care of a general surgeon and he was qualified based on his knowledge and experience as a board certified general surgeon, and I think the qualifications here are literally sufficient to meet the qualifications that he has to show.
COURT: Thank you. Any reply?
Heritage: What he said has nothing to do with whether he’s board certified in Africa or Zimbabwe. It goes to exactly what the statute says, not even to certification or being a general surgeon. It goes to meeting the requirements required by the rules the Court set down and what he addressed does not address those things that he just gave the Court.
Court: Thank you. That Motion will be denied.
At the conclusion of all the evidence, Heritage renewed its motion for directed verdict, arguing as follows:
Heritage: ... I would like to add to it that not only is there no evidence that there was a violation of the standard of care as part of Arkansas law by Dr. Camilla within the parameters set to be recognized in a particular patient in a same or similar locality, there is no evidence that what they allege occurred did cause the death in this case.
17After the Estate’s renewed response, the circuit court again denied the directed-verdict motion. The jury found in favor of the Estate and granted judgment against Heritage in the amount of $350,000, plus interest, allocating the damages to the decedent’s beneficiaries. This appeal timely followed.
II. Standard of Review
In Plymate v. Martinelli, 2013 Ark. 194, at 2-3, 2013 WL 1932918, the Arkansas Supreme Court stated:
When considering a motion for directed verdict made by a defendant, the plaintiffs evidence, and all reasonable inferences therefrom, are examined in the light most favorable to the plaintiff. Dodson v. Charter Behavioral Health Sys. of Nw. Ark, Inc., 335 Ark. 96, 983 S.W.2d 98 (1998). A directed-verdict motion should be granted only if the evidence would be so insubstantial as to require a jury verdict for that party to be set aside; evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other, or if it does not pass beyond mere suspicion or conjecture. Id. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).
III. The Locality Rule
Our locality rule as set forth in Arkansas Code Annotated section 16-114-206(a)(l)(3) (Repl.2006) states in pertinent part as follows:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
(1) By means of expert testimony ... the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good | ¿.standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality.
(2) ... that the medical care provider failed to act in accordance with that standard; and
(3) ... that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
In order to meet the locality requirement, there must be an attestation by an expert regarding
this locality or a similar one. Young v. Gastro-Intestinal Ctr., Inc., 361 Ark. 209, 205 S.W.3d 741 (2005).
The establishment of the local standard of care is not a mere matter of foundation; our supreme court has expressly held that this is an issue going to sufficiency of the evidence that may be raised for the first time in a directed-verdict motion. Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002). An expert must demonstrate a familiarity with the standard of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities. First Commercial Trust Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996). Although we consider the geographical location, size, and character of the community, similarity of localities is based not on population or area, but on the similarity of the local medical facilities, practices, and advantages. Id.
IV. Heritage’s First Point: Standard of Care
Heritage contends that the Estate failed to meet the requirements as set forth in Arkansas Code Annotated section 16-114-206(a) because Dr. Price did not establish the local standard of care applicable to Dr. Camilla in Hot Springs, Arkansas, or a similar community in the year 2006. Heritage cites Plymate, supra, for the proposition that a plaintiff in a medical-malpractice case must produce factual testimony from his or her expert that ^demonstrates he is familiar with the standard of care for the locality in question. Plymate at 4. Further, in Bailey-Gray v. Martinson, 2013 Ark. App. 80, 2013 WL 545646, this court discussed the establishment of the local standard of care in medical-malpractice cases. Heritage relies on this court’s holding in Bailey-Gray, where the plaintiffs expert did not show that he was sufficiently familiar with the medical facilities or practices located in Berryville, Arkansas, to even be able to identify similar localities and to make any meaningful comparison thereto. Bailey-Gray, at 34.
For the proposition that a national standard of care is not enough and that a familiarity with the locality where the alleged malpractice occurred is required of the expert, Heritage cites Shaffer v. Yang, 2010 Ark. App. 97, 2010 WL 374191, where the expert failed to testify that he was familiar with the locality of Hot Springs, Arkansas. See also Fryar v. Touchstone Physical Therapy, Inc., 365 Ark. 295, 229 S.W.3d 7 (2006) (where expert testified to standard of care under Arkansas law, but failed to specify relevant standard of care); Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006) (where expert failed to testify regarding standard of care in Baxter County); Young, supra (where expert failed to testify to standard of care in Little Rock, Arkansas); Gilbow v. Richards, 2010 Ark. App. 780, 2010 WL 4638319 (where expert demonstrated lack of knowledge of Jonesboro’s medical community); Dodd v. Sparks Reg’l Med. Ctr., 90 Ark.App. 191, 204 S.W.3d 579 (2005) (where expert’s testimony was nothing more than statement of what should have been provided and that it was not).
Heritage argues that Dr. Price never offered any testimony regarding his familiarity with Hot Springs, Arkansas, the size of St. Joseph’s Mercy Hospital, the facilities available to|inDr. Camilla there, or the local standard of care applicable to a general surgeon in Hot Springs, Arkansas, in 2006. Heritage also alleges that Dr. Price did not discuss his familiarity with any similar localities.
Heritage argues that, as demonstrated during Dr. Price’s cross-examination, Columbus, Ohio, has a population of around 1.5 million, while Hot Springs, Arkansas, has only 30,000. Heritage points to Dr. Price’s practice in a 500-bed hospital, which houses eighteen surgical residents and two-to-three residents who are in the hospital on a twenty-four-hour basis. Heritage claims that Dr. Price’s testimony failed to demonstrate his familiarity with Hot Springs, Arkansas, such that he could testify concerning the standard of care there in 2006, or to draw a meaningful comparison to any similar communities in 2006.
Heritage cites Williamson, supra, where our supreme court overturned a judgment in favor of a plaintiff in a medical-malpractice case. The court held that the standard of care had not been established because the expert used a standard of care comparing what the majority of doctors in a given area do in a given situation as opposed to using the standard of care dictated by the General Assembly in Arkansas Code Annotated section 16-114-206(a)(l). Williamson at 310, 72 S.W.3d at 491. Heritage argues that Dr. Price’s testimony was devoid of any facts to show that he was familiar with the locality of Hot Springs, Arkansas, or that he was familiar with the standard of care applicable in Hot Springs or a similar community.
The Estate contends that Heritage’s motion for directed verdict on the issue of the standard of care was not preserved for appellate review because it failed to sufficiently elaborate on the argument set forth on appeal — that Dr. Price failed to sufficiently elaborate |non his opinion that Dr. Canulla fell below the standard of care for doctors in localities similar to Hot Springs, Arkansas, in April of 2006. The Estate contends that the circuit court was never allowed to rule on this issue because Heritage never articulated that the basis for its motion was the alleged technical failure of the expert to opine with a reasonable degree of medical certainty in connection with the element of proximate cause. The Estate asserts that Heritage’s failure to specify in what respect the evidence was deficient caused the motion not to be specific enough to preserve the issue for appeal. Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). We disagree and hold that Heritage’s motions for directed verdict were specific, as set forth hereinabove, and preserved the issues for appeal.
Substantively, the Estate relies on Dr. Price’s testimony wherein he was asked whether, in his opinion, Dr. Canulla “deviated from the standards of good medical care for physicians and surgeons practicing in Hot Springs, Arkansas, or in a similar community?” Dr. Price answered, ‘Tes, I believe Dr. Canulla deviated from the standard of care.” The Estate correctly asserts that not one case relied on by Heritage contains similar testimony.
The Arkansas Supreme Court opined that
[a]n expert witness need not be one who has practiced in the particular locality, or one who is intimately familiar with the practice in it in order to be qualified as an expert in a medical malpractice action, “if an appropriate foundation is established to demonstrate that the witness is familiar with the standard of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities.” White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978).
Rank, 323 Ark. at 401, 915 S.W.2d at 267.
The Estate contends that Dr. Price specifically addressed the standard of care in Hot Springs, Arkansas, and that his familiarity with Hot Springs was demonstrated on cross-) ^examination. We agree. Dr. Price knew the differences between the locality where he practiced and Hot Springs. He also testified that he was one of the primary teaching faculty for general surgical residents and that surgeons who graduate in that residency program go throughout the country. Further, Dr. Price testified that for purposes of the problem at issue in this case, there are no situations where the patient would be treated differently in a different locality. Because Dr. Price’s testimony met the re quirements as set forth in the statute, we need not address the Estate’s arguments regarding a national standard of care.
V. Heritage’s Second Point: Proximate Cause
Heritage also argues that the Estate failed to produce evidence that created a question of fact on proximate causation. Heritage contends that it is not enough for an expert to opine that there was negligence that was the proximate cause of the alleged damages. The opinion must be stated within a reasonable degree of medical certainty or probability. Williamson, supra. Further, it must state that, but for the deviation in the standard of care, the decedent would have survived. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). Heritage maintains that Dr. Price’s testimony was not sufficient to establish that any violation of the standard of care on Heritage’s part was the proximate cause of the death of Eugene Minton. Heritage argues that Dr. Price testified that the deviation “contributed” to Minton’s death, but never stated that, had Heritage not deviated from the standard of care, Minton would still be alive. Therefore, Heritage claims that the Estate failed to meet its burden of proof on proximate causation and damages.
lisThe Estate argues that it produced evidence that created a question of fact regarding proximate cause. We agree. Dr. Price explained why he believed that Dr. Camilla’s negligence led to Eugene Minton’s death. The prolonged period of low blood pressure and his low blood count led to the emergency operation, where a large amount of blood was found in Min-ton’s abdomen. The bleeding and the surgery necessitated thereby caused him to have a heart attack and die. Dr. Price testified that Mr. Minton was salvageable up until his blood pressure bottomed out, just before he was taken emergently for surgery by the doctor on call for Dr. Can-ulla that evening. We hold that there was sufficient evidence for the jury to find that Dr. Camilla's negligence proximately caused the death of Mr. Minton.
Affirmed.
VAUGHT and HIXSON, JJ., agree.
. See Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14, 386 S.W.3d 385, where the Arkansas Supreme Court held that Arkansas Code Annotated section 16-114-206, requiring expert testimony in malpractice actions to be given by medical-care providers of same specialty as defendant, violated separation of powers. | [
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KAREN R. BAKER, Justice.
|,This appeal stems from litigation regarding Risperdal (risperidone). Risper-dal is a second-generation, or atypical, an-tipsychotic medication developed in 1993 by the appellants, Ortho-McNeil-Janssen Pharmaceuticals, Inc. f/k/a Janssen Phar-maceutica, Inc. and/or Janssen, LP, and Johnson & Johnson (“Janssen”). Risper-dal is considered to be highly beneficial in treating schizophrenia patients and allowing them to return to more productive lives.
Risperdal was approved by the Food and Drug Administration (“FDA”) and put on the market in 1994. The development of Risperdal and other second-generation antipsychotics was a tremendous breakthrough for this arena. The first-generation ^antipsychotics were riddled with side effects, including severe neuroleptic effects, similar to Parkinson’s disease. The State’s expert, psychiatrist Dr. William Wirshing, compared the introduction of Risperdal to the advent of the antibiotic penicillin in the 1950s and labeled Risper-dal as a “godsend.” Further, Wirshing testified that second-generation antipsy-chotics are among the most powerful disease modifiers in all of modern medicine and that psychiatrists felt it was a “miracle drug” because it did not have the serious side effects of first-generation antipsychot-ics.
In 2000, the FDA requested that all drug manufacturers of second-generation antipsychotics provide any information that the companies had regarding weight gain and diabetes associated with the anti-psychotics. Janssen responded in August 2000, but the FDA did not take action until September 2003. In September 2003, the FDA notified Janssen and all other drug manufacturers producing second-generation antipsychotics to add a class warning to their labels about diabetes. Janssen did not agree with the FDA’s assessment that all second-generation antipsychotics required the same warning and corresponded with the FDA regarding modification of its label. In addition to the class warning, the FDA required all second-generation antipsychotic-drug manufacturers to send a letter to all health-care providers nationwide (referred to in the pharmaceutical industry as a “Dear Doctor Letter” (“DDL”)) to advise of the label change.
On November 10, 2003, Janssen sent its DDL stating that the FDA had requested all manufacturers of second-generation an-tipsychotics, including Risperdal, to include a class-warning label regarding hyperglycemia and diabetes mellitus in their product labeling and to ^enclose updated prescribing information for Risperdal. The November 10, 2003 DDL included the diabetes class-warning label and additional statements regarding Risperdal. The DDL stated in pertinent part:
November 10, 2003
Dear Healthcare Provider,
The Food and Drug Administration (FDA) has requested all manufacturers of atypical antipsychotics to include a warning regarding hyperglycemia and diabetes mellitus in their product labeling. In addition to Janssen, the FDA made this request to the following manufacturers:
AstraZeneca — Seroquel® (quetiapine)
Bristol-Myers Squibb — Ability™ (aripi-prazole)
Eli Lilly and Company — Zyprexa® (olanzapine)
Novartis — Clozaril® (clozapine)
Pfizer — Geo don® (ziprasidone)
In an effort to keep you updated with the most current product information available for the management of your patients, enclosed please find updated prescribing information for RISPER-DAL®(risperidone).
Hyperglycemia-related adverse events have infrequently been reported in patients receiving RISPERDAL. Although confirmatory research is still needed, a body of evidence from published peer-reviewed epidemiology research suggests that RISPERDAL is not asso ciated with an increased risk of diabetes when compared to untreated patients or patients treated with conventional anti-psychotics. Evidence also suggests that RISPERDAL is associated with a lower risk of diabetes than some other studied atypical antipsychotics.
For additional information about RIS-PERDAL or any other Janssen product, please call 1-800-JANSSEN (526-7736) from 9AM to 5PM EST, Monday through Friday.
Sincerely,
Ramy Mahmoud, MD
Vice President CNS Medical Affairs
Janssen Pharmaeeutica, Inc.
I/The DDL cited eight references in support of its position.
On April 19, 2004, in response to Jans-sen’s November 10, 2003 DDL, the FDA’s Division of Drug Marketing, Advertising and Communications (“DDMAC”) sent a “DDMAC Warning Letter” (hereinafter “Warning Letter”) to Janssen, directing Janssen to cease dissemination of any promotional materials contained in the information in the DDL and to also submit a plan of action to disseminate accurate and complete information. The “Warning Letter” stated in pertinent part:
WARNING LETTER
The Division of Drug Marketing, Advertising, and Communications (DDMAC) has reviewed a “Dear Healthcare Provider” (DHCP) Letter for Risper-dal®(risperidone) disseminated by Jans-sen Pharmaeeutica, Inc. on November 10, 2003. DDMAC has concluded that the DHCP letter is false or misleading in violation of Sections 502(a) and 201(n)of the Federal Food, Drug, and Cosmetic Act (Act) (21 U.S.C. 352(a) and 321(n)), because it fails to disclose the addition of information relating to hyperglycemia and diabetes mellitus to the approved product labeling (PI), minimizes the risk of hyperglycemia-related adverse events, which in extreme cases is associated with serious adverse events including ketoacidosis, hyperosmolar coma, and death, fails to recommend regular glucose control monitoring to identify diabetes mellitus as soon as possible, and misleadingly claims that Ris-perdal is safer than other atypical anti-psychotics.
Athough Janssen disagreed with the DDMAC’s position and asserted that scientific evidence supported its 2003 DDL, Janssen followed the DDMAC’s directive and sent a corrective letter with information about Risperdal, relating to hyperglycemia and diabetes, to the recipients of its DDL letter. On July 21, 2004, Janssen sent a corrective letter to |5health-care providers. The corrective letter, titled “IMPORTANT CORRECTION OF DRUG INFORMATION,” stated in part as follows:
The Food and Drug Administration’s (FDA) Division of Drug, Marketing, Advertising, and Communications (DDMAC) has asked us to contact you because Janssen Pharmaeeutica Products, L.P. recently received a Warning Letter concerning the promotion of Ris-perdal ® (risperidone). This letter provides important corrective information about Risperdal relating to hyperglycemia and Diabetes Mellitus.
The Warning Letter concludes that Janssen disseminated a Risperdal Dear Health Care Provider (DHCP) dated November 10, 2003 that omitted material information about Risperdal, minimized potentially fatal risks, and made misleading claims suggesting superior safety to other atypical antipsychotics without adequate substantiation, in violation of the Federal Food, Drug and Cosmetic Act [“FDCA”].
Specifically, the Warning Letter stated that the DHCP letter omitted important information regarding hyperglycemia and diabetes, including the potential consequences and the recommendation of regular glucose control monitoring that was added to the approved product labeling for Risperdal; minimized the potentially fatal risks of hyperglycemia-related adverse events such as ketoaci-dosis, hyperosmolar coma and death; minimized the importance of blood glucose monitoring; suggested that Risper-dal did not increase the risk of diabetes, contradicting the Warning in the revised product labeling; and made misleading claims suggesting that Risperdal has a lower risk of hyperglycemia and diabetes than other atypical anti-psychotics without adequate substantiation which is inconsistent with the Prescribing Information for Risperdal.
In order to provide you with complete and accurate information regarding hyperglycemia and Diabetes Mellitus relative to Risperdal, please be advised that the Risperdal Prescribing Information was updated with the addition of the Warning in November 2003:
WARNINGS
Hyperglycemia and Diabetes Mellitus
Hyperglycemia, in some cases extreme and associated with ketoacido-sis or hyperosmolar coma or death, has been reported in patients treated with atypical | ^antipsychotics including RISPERDAL®. Assessment of the relationship between atypical antipsy-chotic use and glucose abnormalities is complicated by the possibility of an increased background risk of diabetes mellitus in patients with schizophrenia and the increasing incidence of diabetes mellitus in the general population. Given these confounders, the relationship between atypical antipsychotic use and hyperglycemia-related adverse events is not completely understood. However, epidemiological studies suggest an increased risk of treatment-emergent hyperglycemia-related adverse events in patients treated with atypical antipsychotics. Precise risk estimates for hyperglycemia-related adverse events in patients treated with atypical antipsychotics are not available.
Patients with an established diagnosis of diabetes mellitus who are started on atypical antipsychotics should be monitored regularly for worsening of glucose control. Patients with risk factors for diabetes mellitus (e.g., obesity, family history of diabetes) who are starting treatment with atypical anti-psychotics should undergo fasting blood glucose testing at the beginning of treatment and periodically during treatment. Any patient treated with atypical anti-psychotics should be monitored for symptoms of hyperglycemia including polydipsia, polyuria, polyphagia, and weakness. Patients who develop symptoms of hyperglycemia during treatment with atypical antipsychotics should undergo fasting blood glucose testing. In some cases, hyperglycemia has resolved when the atypical antipsychotic was discontinued; however, some patients required continuation of anti-diabetic treatment despite discontinuation of the suspect drug.
On October 14, 2004, the DDMAC closed the matter, citing to Janssen’s multiple letters of correspondence on the matter, without taking any further action. The October 14, 2004 letter from the DDMAC stated as follows:
This letter responds to Johnson & Johnson Pharmaceutical Research and Development, L.L.C.’s (J & JPRD) letters on behalf of Janssen Pharmaceutica Products L.P. (Janssen) dated July 26, June 28, June 8, May 24, April 28, and April 19, 2004. These letters are regarding corrective actions taken in response to the Division of Drug Marketing, Advertising, and Communications’ (DDMAC) serious concerns, voiced in its Warning Letter of April 19, 2004 regarding Jans-sen’s dissemination of a Dear Healthcare Provider (DHCP) letter for Risperdal (risperidone). In addition, reference is made to DDMAC’s May 27 and June 16, 2004 supplemental correspondences.
DDMAC reviewed Janssen’s DHCP Letter, dated November 10, 2003, and concluded that it was false or misleading in violation of the Federal Food, Drug, and Cosmetic |7Act (Act). In its correspondence, J & JPRD indicated that it had discontinued all promotional materials for Risperdal containing same or similar claims, issued a corrective DHCP letter (Important Correction of Drug Information Letter) to 754,000 healthcare providers, and issued an alternative DHCP letter that was posted on FDA’s MedWatch website.
In light of the aforementioned actions taken by J & JPRD regarding Risper-dal’s promotional materials, DDMAC considers this matter closed.
Subsequent to the DDMAC closing the matter, the Attorney General became involved with Risperdal litigation in early 2007. Justin Allen, Chief Deputy Attorney General at that time, testified that the Attorney General’s office became interested in second-generation antipsychotic litigation, including Risperdal, when it was approached in early 2007 by outside law firms and other states’ Attorney General offices.
In November 2007, the State filed suit against Janssen alleging violations of the Arkansas Medicaid Fraud False Claims Act (“MFFCA”), Ark.Code Ann. §§ 20-77-902 (Repl.2001), alleging that Janssen knowingly made false statements or representations of material fact in its Risperdal label in violation of the MFFCA, specifically Ark.Code Ann. § 20-77-902(8)(B). The State also alleged violations of the Arkansas Deceptive Trade Practices Act (“DTPA”), Ark.Code Ann. § 4-88-107 (Repl.2003), by Janssen’s November 10, 2003 DDL distribution to Arkansas healthcare providers for making false, deceptive, or unconscionable statements in its promotion letter. The circuit court found that the alleged violations occurred between December 1, 2002, and June 30, 2006.
The State’s theory of the case was that Janssen failed to comply with a federal labeling requirement, 21 C.F.R. § 201.57(e) (2002). The State further theorized that the alleged labeling violations triggered a violation of the MFFCA when the Arkansas Medicaid program [¿paid for reimbursement of Risperdal prescriptions. With regard to the MFFCA, the circuit court found that there were 238,874 Ris-perdal prescriptions filled and/or refilled during the 2002-2006 time frame. The State proceeded with its theory that these violations were actionable under § 20-77-902(8)(B).
As for the DTPA, the State’s theory was that Janssen’s 2003 DDL violated the DTPA, and it submitted the number of healthcare providers in Arkansas that had received the DDL as violations. The total number of DDL copies to healthcare pro viders in Arkansas was 4,569 and was the basis for the number of violations under the DTPA.
After a twelve-day jury trial, the jury found that Janssen had violated the MFFCA and the DTPA. The circuit court conducted a civil-penalties hearing and found that 238,874 prescriptions had been filled during the December 2002 to June 2006 time period, and that each constituted a violation under the MFFCA. The circuit court imposed the minimum statutory fine of $5,000 per violation for a total of $1,194,370,000. With regard to the DTPA violations, the circuit court found that, based on the jury’s verdict, there were 4,569 violations, the number of copies of the DDL sent to healthcare providers, and imposed a $2,500 fine per violation for a total of $11,422,500. Janssen made timely directed-verdict, JNOY, and new-trial motions on both claims. This appeal followed.
We note that in a companion case, Ortho-McNeil-Janssen Pharmaceuticals, Inc. v. State, 2014 Ark. 126, 2014 WL 1096267, we address the attorney’s fees and costs award.
From the denial of those motions, Jans-sen presents four issues on appeal: (1) the circuit court erred as a matter of law when it entered judgment on the State’s MFFCA claim; (2) |9the circuit court erred as a matter of law when it entered judgment against the defendants on the State’s DTPA claim; (3) the civil penalties violate the excessive-fines and due-process clauses of the Arkansas and United States Constitutions; and (4) the judgment violates the First Amendment of the United States Constitution and the Free Speech Provision of the Arkansas Constitution.
MFFCA
For its first point on appeal, Janssen alleges that the circuit court erred as a matter of law when it entered judgment on the State’s MFFCA claim against Janssen. Janssen asserts four bases for this point on appeal: (a) the circuit court’s interpretation of the MFFCA was erroneous, over-broad, and untenable; (b) the Federal Food Drug and Cosmetic Act preempts the State’s MFFCA claim; (c) the State failed to prove the core elements of MFFCA liability; and (d) the MFFCA and special-verdict forms do not support liability for 238,874 MFFCA violations.
Interpretation of MFFCA
For its first basis for reversal on its MFFCA claim, Janssen asserts that the circuit court 1inerred in its interpretation of Ark.Code Ann, § 20-77-902(8)(B) because the alleged conduct does not fall within the MFFCA. Accordingly, Janssen asserts that the circuit court interpreted the provision in an overbroad and untenable manner and urges us to reverse the circuit court’s judgment.
The State responds that the circuit court correctly interpreted the MFFCA, claiming that reimbursement funds paid for allegedly mislabeled Risperdal prescriptions fall squarely within the MFFCA. The State contends that Janssen’s actions violated subsection (8)(B) when it failed to comply with the FDA labeling requirements of 21 C.F.R. § 201.57(e), and that liability is proper because the Risperdal prescriptions at issue were paid for through the Arkansas Medicaid Program.
Janssen’s first point on appeal requires us to interpret the statute at issue. We review issues of statutory interpretation de novo because it is for this court to decide what a statute means. Cooper Realty Inv., Inc. v. Ark. Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003). While we are not bound by the circuit court’s ruling, we will accept that court’s interpretation of a statute unless it is shown that the court erred. Id. When dealing with a penal statute, this court strictly construes the statute in favor of the party sought to be penalized. Id.
Turning to our review of the statute before the us, “[t]he first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.” Potter v. City of Tontitown, 371 Ark. 200, 209, 264 S.W.3d 473, 481 (2007). However, “when a statute is ambiguous, ... we |nmust interpret it according to the legislative intent, and its review becomes an examination of the whole act.” Johnson v. Dawson, 2010 Ark. 308, at 5, 365 S.W.3d 913, 916; see also MacSteel Div. of Quanex v. Ark. Okla. Gas Corp., 363 Ark. 22, 30, 210 S.W.3d 878, 883 (2005) (observing “that this court will not read into a statute a provision that simply was not included by the General Assembly”). “The basic rule of statutory construction is to give effect to the intent of the legislature.” Dep’t of Human Servs. & Child Welfare Agency Review Bd. v. Howard, 367 Ark. 55, 62, 238 S.W.3d 1, 6 (2006). Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). Statutes relating to the same subject must be construed together and in harmony, if possible. Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006).
We first review the applicable statute, Ark.Code Ann. § 20-77-902(8)(B):
A person shall be liable to the State of Arkansas, through the Attorney General, for a civil penalty and restitution if he or she:
(8) Knowingly makes or causes to be made or induces or seeks to induce the making of any false statement or representation of a material fact:
(B) With respect to information required pursuant to applicable federal and state law, rules, regulations, and provider agreements;
Id.
In reading subsection (8)(B), as it is codified, a person is held liable to the state of Arkansas if he or she knowingly makes a false statement or representation of a material fact with respect to information required pursuant to applicable federal and state law, rules, regulations, and provider agreements. We read this language as ambiguous and are unable |12to ascertain when liability occurs with regard to the MFFCA. Therefore, we turn to the entire subsection 8(A)-(B):
A person shall be liable to the State of Arkansas, through the Attorney General, for a civil penalty and restitution if he or she:
(8) Knowingly makes or causes to be made or induces or seeks to induce the making of any false statement or representation of a material fact:
(A) With respect to the conditions or operation of any institution, facility, or entity in order that the institution, facility, or entity may qualify either upon initial certification or upon re-certification as a hospital, rural primary care hospital, skilled nursing facility, nursing facility, intermediate care facility for the mentally retarded, home health agency, or other entity for which certification is required; or
(B) With respect to information required pursuant to applicable federal and state law, rules, regulations, and provider agreements[.]
ArkCode Ann. § 20-77-902(8)(A)-(B).
On review, subsection (8)(B) is inharmonious with subsection (A). First, súbsection (A) provides that a person shall be liable to the State of Arkansas if he or she knowingly makes or causes to be made or induces or seeks to induce the making of any false statement or representation of a material fact with respect to the conditions or operation of any institution, facility, or entity in order that the institution, facility, or entity may qualify either upon initial certification or upon recertification as a hospital, rural primary care hospital, skilled nursing facility, nursing facility, intermediate care facility for the mentally retarded, home health agency, or other entity for which certification is required. In sum, under (8)(A), during the certification or recertification of a nursing home or similar facility named in the statute, if a person makes a false statement or misrepresentation of material fact, the statute |13is triggered.
However, subsection (8)(B) provides that a person is liable to the State “if he or she knowingly makes a false statement or representation of a material fact ... with respect to information required pursuant to applicable federal and state law, rules, regulations, and provider agreements.” What the General Assembly may have intended by this language is unclear because we cannot determine which “federal and state law, rules, regulations, and provider agreements” are “applicable.” The question that arises is whether subsections (A) and (B) are to be read together or whether the provisions stand alone to create separate prohibitions. Thus, Ark.Code Ann. § 20-77-902(8)(B) is open to more than one interpretation and because reasonable minds could disagree as to its meaning, we cannot say that it is “clear and unambiguous” on its face. In light of this ambiguity, we turn to the statute’s legislative history. See Harrell v. State, 2012 Ark. 421, 2012 WL 5462868. In reviewing the legislative history, by Act 1299 of the 1993 Regular Session of the 79th General Assembly, the General Assembly enacted ArkCode Ann. § 20-77-901 et seq., the MFFCA, including section 20-77-902. However, the language in Act 1299, § 2 differs from the language that was codified at § 20-77-902. Act 1299 provides in part:
SECTION 2. Liability for certain acts, (a) A person shall be liable to the State of Arkansas, through the Attorney General, for a civil penalty and restitution if ■he:
(8) Knowingly makes or causes to be made, or induces or seeks to induce the making of, any false statement or representation of a material fact with respect to the conditions or operation of any institution, facility, or entity in order that such institution, facility, or entity may qualify either upon initial certification or upon recertification as a hospital, rural primary care hospital, skilled nursing 114facility, nursing facility, intermediate care facility for the mentally retarded, home health agency, or other entity for which certification is required or with respect to information required pursuant to ap plicable federal and state law, rules, regulations and provider agreements!;.]
Act of Apr. 28, 1993, No. 1299, § 2, 1993 Ark. Acts 4282, 4283.
In comparing the General Assembly’s language to the codified version, it is apparent that the language of the General Assembly was substantially altered by the Arkansas Code Revision Commission (ACRC). When Act 1299 was codified, subsection (a)(8) was separated into two separate stand-alone provisions-subsections (8)(A) and (8)(B) — substantially altering the meaning of subsection (a)(8).
Act 1299 § 2(a)(8) in its original form was one sentence that provides liability to persons or entities, that, while acquiring certification or recertification for operation of its facilities either: knowingly makes or causes to be made or induces or seeks to induce the making of any false statement or representation of a material fact or knowingly makes or causes to be made or induces or seeks to induce the making of any false statement or representation of a material fact with respect to information required pursuant to applicable federal and state law, rules, regulations, and provider agreements. Stated differently, liability is triggered when either a false statement or a misrepresentation is made regarding the conditions or operations of an institution during certification or recer-tification or when during the certification or recertification process a false statement or misrepresentation of material fact is made regarding applicable federal and state law, rules, regulations, and provider agreements. The language “knowingly makes a false statement or representation of a material fact with respect to information required pursuant to applicable federal and state | islaw, rules, regulations, and provider agreements” was not intended to be a separate standalone liability provision.
Pursuant to Ark.Code Ann. § 1-2-303(d)(l)(A)-(S) (Repl.2008), the ACRC, in the process of codifying the Acts, is permitted to make certain corrections to spelling, grammar, and clerical errors. However, § 1 — 2—303(d)(1) specifically provides that “the commission shall not authorize any change in the substance or meaning of any provision of the Arkansas Code or any act of the General Assembly. The bureau shall not change the substance or meaning of any provision of the Arkansas Code or any act of the General Assembly.” Ark. Code Ann. § l-2-303(d)(l). Further, Ark. Code Ann. § 1 — 2—303(d)(2) provides that except for the clerical-type changes specifically listed in subsection (d)(1): “the wording, punctuation, and format of sections of acts shall appear in the Arkansas Code exactly as enacted by the General Assembly.” Id. (emphasis added).
Here, the ACRC substantively altered Act 1299 in its codification, which became § 20-77-902(8)(A)-(B), in a manner that rendered its meaning ambiguous by calling into question whether (A) and (B) were stand-alone provisions. The Arkansas Code prohibits such a substantive change. See Harrell supra; Porter v. Ark. Dep’t of Health & Human Servs., 374 Ark. 177, 182-83, 286 S.W.3d 686, 691 (2008). Thus, the Act controls. Accordingly, we must rely on the original wording of Act 1299. Id. Reading subsection (8) as one sentence, we hold that the subsection provides that a person shall be liable to the State of Arkansas, through the Attorney General, for a civil penalty and restitution if he knowingly makes or causes to be made, or induces or seeks to induce the making of, any false statement or representation 11fiof a material fact with respect to the conditions or operation of any institution, facility, or entity in order that such institution, facility, or entity may qualify either upon initial certification or upon re- certification as a hospital, rural primary-care hospital, skilled nursing facility, nursing facility, intermediate care facility for the mentally retarded, home health agency, or other entity for which certification is required or with respect to information required pursuant to applicable federal and state law, rules, regulations and provider agreements. As is apparent from this reading, the word “applicable” refers to the certification process and laws applicable to the process.
Accordingly, we reverse the circuit court’s order denying Janssen’s motion for directed verdict and dismiss the State’s claim under the MFFCA as Janssen is indisputably not a healthcare facility and applying for certification or re-certification as described in the statute. Hence, the statutory provision is not applicable. As we have reversed and dismissed the State’s MFFCA claim, we need not address Janssen’s remaining arguments for reversal on its first point.
DTPA
For its second point on appeal, Janssen asserts that the circuit court erred when it entered judgment against Janssen on the State’s DTPA claim. Janssen asserts two bases for reversal under this point: (a) the circuit court erroneously admitted the 2004 DDMAC “Warning Letter” and (b) the State’s DTPA claim is preempted by federal law.
200k DDMAC “Warning Letter”
For its first basis for reversal under its second point, Janssen contends that the circuit 117court erred when it admitted the “Warning Letter” in the State’s DTPA claim against Janssen. Janssen contends that the letter was hearsay and inadmissible under Rule 801 of the Arkansas Rules of Evidence, that it does not fall within an exception to the hearsay prohibition, and that it is inadmissible under Rule 803(8)(iv) because the “Warning Letter” was the result of a special investigation of a particular complaint, case, or incident. Janssen asserts that the State relied almost exclusively on the content of the letter to prove its claim under the DTPA. It further asserts that the prejudice of this outweighs any value that the letter may have added. In sum, Janssen contends that the letter is hearsay, that it does not fall within one of the exceptions to hearsay, and that it should have been excluded from the evidence under Rule 803(8)(iv).
The State responds that Janssen has mischaracterized its argument and that the letter was admissible under Rule 803(8) as it was part of an ongoing, routine investigation by the DDMAC and was part of the records, reports, or data compilations of the DDMAC resulting from an investigation made pursuant to authority granted by law. Citing to Omni Holding & Development Corp. v. 3D.SA., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004), and Archer-Daniels-Midland Co. v. Beadles Enterprises, Inc., 367 Ark. 1, 238 S.W.3d 79 (2006), the State contends that the letter was admissible and the circuit court did not err.
First, we will review the applicable DTPA statute, Ark.Code Ann § 4-88-107(a)(10), “Deceptive and Unconscionable Trade Practices,” which provides in pertinent part:
(a) Deceptive and unconscionable trade practices made unlawful and prohibited by this chapter include, but are not limited to, the following:
(10) Engaging in any ... unconscionable, false, or deceptive act or practice in | isbusiness, commerce, or trade[.]
In support of its position that Janssen had violated the DTPA, the State introduced, over Janssen’s objection, the “Warning Letter,” which stated in pertinent part:
WARNING LETTER
The Division of Drug Marketing, Advertising, and Communications (DDMAC) has reviewed a “Dear Healthcare Provider” (DHCP) Letter for Risper-dal®(risperidone) disseminated by Jans-sen Pharmaceuitca, Inc. on November 10, 2003. DDMAC has concluded that the DHCP letter is false or misleading in violation of Sections 502(a)and 201(n)of the Federal Food, Drug, and Cosmetic Act (Act) 21 U.S.C. 352(a) and 321 (n) because it fails to disclose the addition of information relating to hyperglycemia and diabetes mellitus to the approved product labeling (PI), minimizes the risk of hyperglycemia-related adverse events, which in extreme cases is associated with serious adverse events including ketoacidosis, hyperosmolar coma, and death, fails to recommend regular glucose control monitoring to identify diabetes mellitus as soon as possible, and misleadingly claims that Ris-perdal is safer than other atypical anti-psyehotics.
Whether the “Warning Letter” was admissible requires us to review the circuit court’s evidentiary ruling. Circuit courts have broad discretion, and a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008). On appeal, we will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. See Grummer v. Cummings, 336 Ark. 447, 986 S.W.2d 91 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). A circuit court abuses its discretion when it makes a decision that is arbitrary or capricious. See Phelan v. Discover Bank, 361 Ark. 138, 205 S.W.3d 145 (2005). Moreover, the balancing of probative value against prejudice is a matter left to the sound discretion of the circuit court, and its decision on such a matter will not be reversed absent |iaa manifest abuse of that discretion. See Grummer, supra.
Turning to the Arkansas Rules of Evidence (2013), Rule 801(c) defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 802 further provides that “[hjearsay is not admissible except as provided by law or by these rules.” Rule 803(8) provides in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) Public Records and Reports. To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule:
(iv) factual findings resulting from special investigation of a particular complaint, case, or incident!.]
Ark. R. Evid. R. 803.
In other words, while “factual findings resulting from an investigation made pursuant to authority granted by law” are admissible, factual findings “resulting from special investigation of a particular complaint, case, or incident” are not admissible. Id.
In reviewing the admissibility of the “Warning Letter,” we first turn to the two cases relied on by the State in support of its position that we should affirm the circuit court. For two reasons, neither of those cases is helpful to our analysis: (1) the cases did not address the admissibility or inadmissibility of evidence pursuant to Rule 803(8)(iv) and (2) the cases doj^not discuss the circumstances surrounding the government-issued warning letter or report involved in each particular case.
Omni Holding was a replevin action between a lessor and lessee of airplanes and damaged and switched plane parts. The circuit court admitted Federal Aviation Association (“FAA”) inspection reports, and on appeal, Omni argued that the FAA reports were hearsay evidence that had been admitted without any foundational proof by a records custodian to show that the reports were true public records. As a corollary argument, Omni contended that each FAA document amounted to expert opinion evidence that was not subject to cross-examination and, thus, Omni was denied its right to confront witnesses. Omni did not assert that the reports were hearsay pursuant to Rule 803(8)(iv). We affirmed the circuit court and held that the reports clearly fell within the Rule 803(8) exception: “A review of all three [FAA] reports reveals that each document was signed and verified by an FAA employee. All three reports, entitled ‘Comparison Contrast of Relative Findings,’ are findings resulting from investigations made pursuant to authority granted to the FAA by law. They clearly fall within the Rule 803(8) exception and do not fall within any of the five exclusions to that rule.” Omni Holding, 356 Ark. 440, 459, 156 S.W.3d 228, 242 (2004). Although our holding cited infra references Rule 803(8)(iv), Omni did not challenge the admissibility on 803(8)(iv) grounds, and other than our language cited above, we did not address Rule 803(8)(iv) and the circumstances surrounding the FAA inspection reports.
Next, we turn to Archer-Daniels-Midland (“ADM ”). In ADM, Beadles operated a hog-finishing farm and purchased soybean meal from ADM. Beadles asserted that ADM was |j>T aware that its soybean meal was contaminated with dioxin but did not warn Beadles. Beadles subsequently sold his hogs and attempted to ship the hogs, but the shipment was halted by the purchaser who stated that he had received “an official notification” of the alleged contamination. Beadles sued, claiming that ADM had failed to inform him of the contamination that resulted in the death of his hogs. After a bench trial, the circuit court found ADM liable for fraud. ADM appealed, and the court of appeals reversed. We took the case on Beadles’s petition for review.
On appeal, the letter at issue was “a statement and warning sent out by the FDA under its duty to protect the public from consuming adulterated food. Further, the letter, which was addressed to feed mill operators, stated that recipients of contaminated soybean meal were to discontinue use of the soybean meal and to hold any remaining soybean meal and feed made from that soybean meal.” Archer-Daniels-Midland, 367 Ark. 1, 10, 238 S.W.3d 79, 86-87. Beadles asserted that the letter was admissible pursuant to Ark. R. Evid. Rule 803(8). In affirming the circuit court, we agreed with Beadles and held that the letter was admissible pursuant to Rule 803(8). Yet, our opinion did not discuss Rule 803(8)(iv), and other than using the language discussed infra regarding the letter from the FDA, we did not address the circumstances surrounding the FDA letter. Accordingly, neither Omni nor ADM, is applicable in this case.
However, our court of appeals’ opinion in McCorkle Farms, Inc. v. Thompson, 79 Ark.App. 150, 84 S.W.3d 884 (2002), is helpful to our analysis. In McCorkle, the court of appeals addressed the admissibility of the conclusions regarding an investigation by the Arkansas State 122PIant Board’s Pesticide Committee in a crop-damage case. In McCorkle, complaints had been lodged, an investigation conducted, and report provided to the Board. McCorkle sought to exclude the report as inadmissible evidence pursuant to Rule 803(8)(iv) and the court of appeals agreed:
The Plant Board report resulted from a “special investigation of a particular complaint” and is not excepted from the hearsay rule. Ark. R. Evid. 803(8)(iv); Swart v. Town & Country Home Center, 2 Ark.App. 211, 619 S.W.2d 680 (1981); Wallin v. Insurance Co. of N. Am., 268 Ark. 847, 596 S.W.2d 716 (Ark.App.1980).
Because several complaints were made ... the Plant Board conducted a hearing. Thus, the hearing before the Plant Board was a special investigation of a particular complaint, case, or incident under Rule 803(8)(iv). The hearing before the Plant Board was a special investigation of a particular complaint, case, or incident under Rule 803(8)(iv) [and not a routine investigation].
This distinction may be illustrated by the example of a public agency charged with monitoring water quality in the state’s rivers. If the agency, in fulfillment of its routine duties, tests the water in a flooding river (i.e., resulting from a particular incident, namely, the flood), the factual findings of those tests would be admissible in a civil trial as within the public records or reports exception to the hearsay rule. If, however, the agency conducts an investigation in response to a complaint that someone is dumping material into a river, the factual results of that investigative report would be inadmissible pursuant to Rule 803(8)(iv). See Daniels v. Tew Mac Aero Servs., Inc., 675 A.2d 984 (Me.1996).
The preceding illustration highlights one of the primary underpinnings of the Rule 803(8) exception, namely, the assumption that routine reports by public officials in their official duties will be prepared properly. Daniels, supra (discussing the advisers’ note to identical Maine R. Evid. 803(8)). That assumption may be suspect when a public official prepares a special report in response to a particular complaint, case, or incident as opposed to merely carrying out routine duties. There may be a greater likelihood that a special report will be influenced by persons interested in the outcome. This is true where the complaining party is not presented an opportunity to be heard at the administrative hearing. The 803(8)(iv) exception guards against the risk of people using public agency investigations as a litigation tool by banning as evidence _J_2gat the trial the factual findings contained in special reports that result from particular complaints, cases, or incidents. Daniels, supra. Another reason supporting the conclusion that the Board’s report is not within the Rule 803 exceptions is that where the drafters wished to make judicially-found facts admissible, they did so expressly. See Ark. R. Evid. 803(22) (pertaining to judgments of previous conviction) and Ark. R. Evid. 803(23) (pertaining to judgments as to personal, family, or general history, or boundaries).
McCorkle Farms, 79 Ark.App. 150, 159-61, 84 S.W.3d 884, 889-90 (2002).
Additionally, Crockett v. City of Billings, 234 Mont. 87, 761 P.2d 813 (1988), lends support to our discussion. The Montana Supreme Court held that Rule 803(8)(iv), identical to our Rule, specifically excludes factual findings such as the reasonable-cause finding of the employment commission which directly results from an investigation of a particular complaint of discrimination as it was a finding in a specific investigation and was inadmissible. In Stevenson v. Felco Industries, Inc., 352 Mont. 303, 216 P.3d 763 (2009), citing to Crockett, the Montana Supreme Court revisited its Rule 803(8)(iv), identical to our Rule, and discussed the prejudicial nature of government-issued reports as evidence in litigation. The court explained:
Many courts have expressed concern that reports issued by governmental agencies, because of their “official” nature, may cause a jury to give the evidence inordinate weight. Johnson v. Ford Motor Co., 988 F.2d 573 (5th Cir.1993). Additionally, courts have observed that reports prepared by a disinterested governmental agency pursuant to a legal obligation carry a “badge of trustworthiness.” Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir.2005). In Fowler v. Firestone Tire & Rubber Co., 92 F.R.D. 1 (N.D.Miss.1980), the court, in refusing to admit a government report out of concern that the jury would give it inordinate weight, stated, “any probative value the evidence might have would be far outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Fowler, 92 F.R.D. at 2.
In 2003, an article in the Tort Trial & Insurance Practice Law Journal noted that “undue prejudice ‘arises from the inordinate weight that a jury is likely to give to the probable cause determination reached by a government fact-finding body.’ ” James E. Robinson, Challenging Admissibility and Use of Government Investigative Reports, 38 Tort & Ins. L.J. 887, 901 (2003). Similarly, a note entitled The Trustworthiness of Government Evaluative \ ^Reports Under Federal Rule of Evidence 803(8) (C), published in the Harvard Law Review (96 Haro. L.Rev. 492, 495 (1982)) explained that “[bjecause the report has the government’s endorsement, the jury might give it too much weight.”
Stevenson, 216 P.3d 763, 771-72.
We also find support for the position that the “Warning Letter” was the result of a special investigation of a particular complaint, case, or. incident, from the Arkansas Trial Handbook for Lawyers, which states:
One of the primary underpinnings of the Ark. R. Evid. 803(8) exception is the assumption that routine reports by public officials in their official duties will be prepared properly. That assumption may be suspect when a public official prepares a special report in response to a particular complaint, ease, or incident as opposed to merely carrying out routine duties. There may be a greater likelihood that a special report will be influenced by persons interested in the outcome. This is true where the complaining party is not presented an opportunity to be heard at the administrative hearing. The Ark. R. Evid. 803(8)(iv) exception guards against the risk of people using public agency investigations as a litigation tool by banning as evidence at the trial the factual findings contained in special reports that result from particular complaints, cases, or incidents. It is only the “factual findings” resulting from an investigation that come within the public records and reports hearsay exception of Ark. R. Evid. 803(8).
3A Trial Handbook for Arkansas Lawyers § 73:1 (2013-2014 ed.) (internal citations omitted).
Additionally, the FDA manual supports that the “Warning Letter” was part of a special investigation of a particular complaint, case or incident. The FDA Manual states:
A Warning Letter is informal and advisory. It communicates the agency’s position on a matter, but it does not commit FDA to taking enforcement action. For these reasons, FDA does not consider Warning Letters to be final agency action on which it can be sued.
kdittp://www.fda.gov/iceci/compliance manuals/regulatoryproceduresmanual/ucm 176870. htm# SUB4-1-10 (emphasis added).
Turning to Janssen’s specific evi-dentiary issue, we find the reasoning from McCorkle applicable to Janssen’s case and our review of the 803(8)(iv) issue. Here, the Warning Letter” stemmed from the investigation into the 2003 DDL and the particular information cited in the letter. The October 14, 2004 DDMAC letter closing the matter states: “These letters are regarding corrective actions taken in concerns, voiced in its Warning Letter of April 19, 2004 regarding Janssen’s dissemination of [the 2003] Dear Healthcare Provider (DHCP) letter for Risperdal.” The investigation was not, as the State alleges, part of routine record keeping and admissible under Rule 803(8). The letter was sent in response to a specific issue and special investigation regarding the 2003 DDL.
Finally, as argued by Janssen, we note that for evidence to be admissible, it must be |afimore probative than prejudicial. See Ark. R. Evid. 403. “A good definition of ‘unfair prejudice’ is found in the advisory committee’s commentary to Fed.R.Evid. 403, which describes it as an ‘undue tendency to suggest decision on an improper basis.’ ” Berry v. State, 290 Ark. 223, 233, 718 S.W.2d 447, 453 (1986). Here, the “Warning Letter” was highly prejudicial. “Reports issued by governmental agencies, because of their ‘official’ nature, may well carry inordinate weight in the minds of jurors.” Boude v. Union Pac. R. Co., 365 Mont. 32, 277 P.3d 1221, 1225 (2012)(internal citations omitted). The “Warning Letter” was referred to repeatedly throughout the trial; in closing arguments alone it was mentioned at least fifteen times.
Based on the preceding discussion, we interpret Rule 803(8)(iv) to exclude the “Warning Letter” as inadmissible and prejudicial. The ‘Warning Letter” was part of a special investigation of a particular complaint, case, or incident and falls directly within the parameters of the prohibited hearsay from 803(8)(iv), and it is also more prejudicial than probative. Accordingly, based on our standard of review, we hold that the circuit court abused its discretion in admitting the letter and reverse and remand the DTPA claim to the circuit court.
}wAs we have reversed and dismissed the MFFCA claim, and reversed and remanded the DTPA claim, we do not reach Jans-sen’s remaining points on appeal.
Reversed and dismissed in part; reversed and remanded in part.
HANNAH, C.J., and CORBIN and DANIELSON, JJ., concur in part and dissent in part.
. The Arkansas Medicaid Program has approved Risperdal for reimbursement since 1994.
. Although Janssen followed the Warning Letter's directive, it also objected to the Warning Letter and corresponded with the DDMAC on the following dates: April 19, April 28, May 24, June 8, June 28, and July 26, 2004.
. We also note that the following amicus curiae briefs were filed on behalf of: 65 Arkansas Legislators; AARP; Arkansas State Chamber of Commerce; Former FDA Commissioner Dr. Donald Kennedy; Pharmaceutical Research and Manufacturers of America; States of South Carolina, Alaska, Arizona, California, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, and Washington; The Public Citizen, Inc.; and Washington Legal Foundation and Allied Educational Foundation.
. Further, we note that the testimony of the State's pharmacist, Laura Plunkett, supports that the "Warning Letter” was the result of a special investigation because she testified repeatedly the "Warning Letter” was in response to the 2003 DDL. Plummet testified:
Janssen's Attorney: What specifically in the [2003 DDL] is this warning letter in response to. Doctor?
Witness Plunkett: It’s in response to the specific language within the ... [2003] "Dear Doctor” letter.
Janssen’s Attorney: Now what complaints— did the FDA have any complaints specifically with respect to the citations Dr. Mahmoud and Janssen put in their [2003] letter?
Witness Plunkett: Yes. They — the FDA points out that the citations to the study are, in some cases, a misrepresentation of what some of the data actually says. So, again, FDA is finding the information in the letter to be either misleading or untrue.
. We note that while the dissent states, “Nothing at all in the record before us evidences that the letter resulted from any special investigation of a 'particular complaint, case ' or incidentf,]’ ” we disagree. The "Warning Letter” itself specifically states that it is in response to a specific incident, the 2003 DDL. The "Warning Letter” states in pertinent part:
The Division of Drug Marketing, Advertising, and Communications (DDMAC) has reviewed a "Dear Healthcare Provider” (DHCP) Letter for Risperdal®(risperidone) disseminated by Janssen Pharmaceutica, Inc. on November 10, 2003.
This language specifically identifies the particular matter under investigation.
Further, although the dissent states that our "position is belied by the DDMAC’s mission, which is to ‘protect the public health by assuring prescription drug information is truthful, balanced and accurately communicated[,]’ ” we disagree. While the mission statement explains the DDMAC's general purpose, it is not helpful to the case before us. Rule 803(8)(iv) carefully makes the distinction between general matters and specific matters. Here, the DDMAC's mission does not alter the fact that the “Warning Letter” was in response to a specific incident and inadmissible under Rule 803(8)(iv).
Finally, we note that, although the dissent would find that the "Warning Letter” was admissible, the dissent fails to address the probative value of the letter versus its prejudicial effect under Rule 403. | [
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ROBERT J. GLADWIN, Chief Judge.
| íThis case returns after we dismissed an earlier appeal for lack of a final order. Jenkins v. APS Ins., LLC, 2012 Ark. App. 368, 2012 WL 1943626. In this appeal, Pearl Jenkins challenges the judgment of the Pulaski County Circuit Court entered on a jury’s verdict finding that she misappropriated trade secrets and that awarded compensatory and punitive damages to APS Insurance, LLC. Jenkins raises five points, arguing that the tort claims brought by APS were preempted by the Arkansas Trade Secrets Act and that the damage awards were not supported by the evidence, were contrary to the law, and were excessive. We affirm.
In 2003, David Donley joined Steve Perry to form APS Insurance. APS also offered payroll and tax-preparation services. Jenkins, a mutual friend of both Donley and Perry, was hired to be APS’s customer service representative. On Friday, June 13, 2008, Donley removed files and software from APS’s office, and formed his own firm, Donley & Associates Insurance, LLC (D & A). Donley also had Jenkins email him the list of all of APS’s clients and then delete 12the list from APS’s computer. When Perry returned to work the following Monday, he discovered the missing and the deleted files and was notified that Donley had established D & A and that Jenkins had left APS’s employment to join D & A.
On August 28, 2008, APS sued Donley for injunctive relief and other damages. APS later amended its complaint to add Jenkins and D & A as defendants. In its complaint, APS asserted claims for violation of the Theft of Trade Secrets Act; computer fraud and computer trespass; breach of fiduciary duty against Donley and Jenkins; conversion; trespass on the case; violation of the Deceptive Trade Practices Act against Donley and D & Á; tortious interference with contractual relations and business expectancies; and civil conspiracy. It also requested an accounting, that a constructive trust and/or equitable lien be imposed against all defendants, and reserved the right to plead further. Separate answers were filed by Donley and D & A and by Jenkins. In her answer, Jenkins asserted that APS’s exclusive remedy was the cause of action under the Trade Secrets Act.
Jenkins filed two identical counterclaims against APS and Perry, asserting claims for abuse of process, malicious prosecution, and outrage. She nonsuited the first counterclaim and the second was stricken as being filed in violation of the court’s scheduling order.
After David Donley, individually, filed for bankruptcy protection, the case against Jenkins and D & A proceeded to trial before a jury. After APS rested its case, it withdrew its claims for breach of fiduciary duty against Jenkins and Donley, its trespass claim, and its claim [.-¡under the Deceptive Trade Practices Act against D & A. In a verdict signed by ten jurors, APS was awarded $29,066.22 in actual damages and punitive damages of $15,000 against Jenkins.
The judgment entered on the jury’s verdict noted that the issues against Donley could not be tried because of a pending bankruptcy, and that APS had reserved its rights to proceed against Donley “consistent with further orders and proceedings of the United States Bankruptcy Court.” The judgment did not address APS’s claims for equitable relief, i.e. accounting and imposition of a constructive trust or equitable lien. It also did not formally dismiss the claims APS withdrew during trial.
After the circuit court denied Jenkins’s posttrial motion, Jenkins attempted to ap peal from the judgment. We dismissed the appeal for lack of a final order. Jenkins, supra. We also pointed out several deficiencies with both the briefs and the record. Id.
Following remand, Jenkins filed a motion seeking to have the circuit court certify the judgment as final pursuant to Arkansas Rule of Civil Procedure 54(b). APS opposed the motion, pointing out that its claims for injunctive and equitable relief were still pending.
David Donley entered into a consent judgment in favor of APS in the amount of $150,062.98. This order stated that APS agreed to forbear enforcement of the consent judgment in accordance with the parties’ settlement agreement. Jenkins filed a timely notice of appeal from this order.
After a hearing on the pending motions, the circuit court entered an order granting injunctive relief against Jenkins. The court also ordered Jenkins to file an accounting of all ^transactions between Don-ley, D & A, and Jenkins and all former APS clients. The court further imposed a constructive trust and equitable lien against Jenkins and any property or funds she received through transactions with former APS clients. The court further ruled that all other causes of action and relief sought by APS had merged into the judgment previously entered. Jenkins’s request for Rule 54(b) certification was denied as moot. This appeal followed.
Our standard of review of the denial of either a motion for directed verdict or a motion for judgment notwithstanding the verdict is whether the jury’s verdict is supported by substantial evidence. ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 276 S.W.3d 244 (2008). 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. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not our place to try issues of fact; rather, we simply review the record for substantial evidence to support the jury’s verdict. Id. 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. Id. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach a different conclusion. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).
|i;We must first determine whether any of Jenkins’s arguments on appeal are preserved for our review. This has to do with the nature and scope of the arguments Jenkins made at trial and in her posttrial brief.
At the conclusion of APS’s case, Jenkins made a motion for directed verdict, arguing that there was no evidence that the information taken even qualified as “trade secrets.” She also moved for a directed verdict on the computer-fraud and trespass claims. Jenkins further moved for a directed verdict on the conversion and on the tortious-interference claims. She did not adopt any of the arguments for directed verdict made by D & A. The circuit court denied the motion. At the close of the defense case, the circuit court stated that all motions made at the close of APS’s case were renewed and denied. APS then presented the rebuttal testimony of Jerry Crowder. No motions for directed verdict were made or renewed.
Although Jenkins filed her posttrial motion as one for judgment notwithstanding the verdict, she also asserted that she was entitled to a new trial under Ark. R. Civ P. 59(a)(4), (5), and (6). The distinction between a motion for new trial and a directed-verdict motion is a fine one. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). Moreover, we should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek. Cornett v. Prather, 293 Ark. 108, 111, 737 S.W.2d 159, 160-61 (1987). In Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 573, 832 S.W.2d 224, 225 (1992), the supreme court held that a motion to vacate that stated that the judgment was void because “it is contrary to the facts, the law, public policy and is clearly contrary to the preponderance of the evidence,” was really a motion for a new trial under Ark. R. Civ. P. 59(a)(6).
16In her posttrial motion, Jenkins made the arguments she now raises on appeal. In effect, Jenkins is raising legal arguments concerning whether APS’s tort claims against her were preempted by the Trade Secrets Act and that punitive damages are unavailable under the Act. As such, her posttrial motion could properly be considered a motion for new trial under Ark. R. Civ. P. 59(a)(6). The argument regarding excessiveness of the compensatory and punitive damages was preserved by the posttrial motion because it asserted that the “damages awarded were excessively large and were so large as to indicate that such were awarded as a result of passion or prejudice.” By tracking the language of Ark. R. Civ. P. 59(a), the motion was sufficient to preserve the issue. See Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). We believe that these arguments are properly preserved for our review.
Jenkins also raises issues concerning whether APS properly proved its damages, thus challenging the sufficiency of the evidence. However, a motion for new trial is not a challenge to the sufficiency of the evidence. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). In order to challenge the sufficiency of the evidence, Jenkins was required to move for a directed verdict at “the close of all the evidence.” See Ark. R. Civ. P. 50(e). Jenkins failed to do so after APS presented rebuttal testimony, resulting in a waiver of her sufficiency-of-the-evidence arguments. Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003); Bronakowski v. Lindhurst, 2009 Ark. App. 513, 324 S.W.3d 719.
Jenkins first argues that APS’s claims are preempted by the Arkansas Trade Secrets Act, and, therefore, the circuit court erred by not granting her motion for summary judgment. Although Jenkins is correct in arguing that the Act preempts certain tort claims, R.K. Enter., LLC v. Pro-Comp Mgmt., Inc., 356 Ark. 565, 571-74, 158 S.W.3d 685, 688-90 (2004), the 17denial of summary judgment is not an appealable order or subject to review even after there has been a trial on the merits. Ligon v. Davis, 2012 Ark. 440, 424 S.W.3d 863.
As a further part of this point, Jenkins argues that the circuit court erred by denying her motion for a directed verdict on the basis that the Trade Secrets Act preempted APS’s tort claims. In response, APS argues that not all of its claims are preempted because the Act specifically states that it does not affect other civil liability or relief that is not based upon misappropriation of a trade secret. Ark.Code Ann. § 4-75-601(b)(l).
In its complaint, APS asserted claims for violation of the Theft of Trade Secrets Act; computer fraud and computer trespass; breach of fiduciary duty; conversion; trespass on the case; violation of the Deceptive Trade Practices Act; tortious interference with contractual relations and business expectancies; and civil conspiracy. At the close of its case, APS nonsuited its claims for breach of fiduciary duty; trespass on the case; and violation of the Deceptive Trade Practices Act. Thus, the claims for violation of the Trade Secrets Act, violation of the computer-fraud and trespass statutes, conversion, tortious interference, and civil conspiracy were submitted to the jury.
Our supreme court has expressly held that the Trade Secrets Act preempts tort claims for conversion of trade secrets and conspiracy because they stem from the same acts constituting a violation of the Trade Secrets Act. R.K. Enter., 356 Ark. at 574, 158 S.W.3d at 690 (emphasis added). Therefore, the circuit court erred in submitting those causes of action to the jury. Id. That does not end the inquiry, however, because, consistent with our supreme court’s holding in R.K. Enterprise, other courts have held that claims of tortious interference are not automatically preempted where they are not based upon the misappropriation of trade | ssecrets. E.g., Alpha Sch. Bus Co., Inc. v. Wagner, 391 Ill.App.3d 722, 331 Ill.Dec. 378, 910 N.E.2d 1134 (2009); Raven Indus., Inc. v. Lee, 783 N.W.2d 844 (S.D.2010); Thola v. Henschell, 140 Wash.App. 70, 164 P.3d 524 (2007). The Thola court held that the plaintiffs tortious-interference claim was not preempted where the tortious-interference claim was not based on the former employee’s misappropriation of a client list, but rather on the former employee’s in-person solicitation of the former employer’s clients to terminate their business relationship with the former employer and follow the former employee to the new business. 164 P.3d at 530. Here, it appears that the allegations contained in APS’s amended complaint to support this cause of action are, in addition to the theft of the information, that Donley contacted former APS clients to solicit their business for D & A.
Also, the Act specifically states that it does not affect contractual or other civil liability that is not based upon misappropriation of a trade secret. Ark.Code Ann. § 4-75-602(b). APS asserted a claim for violation of the computer-crime statute, Ark.Code Ann. §§ 5—41—101 to -107. The computer-crime statute provides a civil cause of action for damages, including lost profits. Ark.Code Ann. § 5-41-106(a). The complaint asserts that Jenkins deleted a significant portion of confidential information from APS’s computers. This action falls within the definition of computer trespass found in Ark.Code Ann. § 5-41-104(a).
Because the jury’s finding was rendered on a general verdict form, we have no way of knowing the particular theory on which the jury found Jenkins liable. Bradshaw v. Alpha Packaging, Inc., 2010 Ark. App. 659, 379 S.W.3d 536. Normally, we would affirm if there is substantial evidence to support the jury’s verdict. Id. However, Jenkins has waived her challenge to the sufficiency of the evidence. Therefore, we cannot say that the circuit court erred in denying Jenkins’s posttrial motion.
For her next point, Jenkins asserts that the verdict was not supported by the evidence. Specifically, her argument is that the information misappropriated does not qualify as “trade secrets” as that term is defined in the Act. The only issue properly preserved under this point is whether Donley and Jenkins took “information” within the meaning of the Trade Secrets Act. See Wal-Mart Stores, Inc. v. P.O. Mkt., Inc., 347 Ark. 651, 66 S.W.3d 620 (2002). (holding that whether something is “information” within the meaning of the Act is a legal question). Here, the information allegedly taken by Donley and Jenkins contained not only the names of customers, but valuable information regarding those customers and their policies, agent compensation plans, premium and rate structures, and details concerning APS’s relationship with various insurance companies, among other things. As such, it qualifies as a “compilation” under the Act. Moreover, this is not the type of information that could be readily ascertained in another manner, such as by looking in the telephone directory. See Jaraki v. Cardiology Assocs. of Ne. Ark. P.A., 75 Ark.App. 198, 55 S.W.3d 799 (2001).
Jenkins’s argument focuses on the application of the six factors to the definition of “trade secrets.” This presents a question of fact. Wal-Mart Stores, Inc. v. P.O. Mkt., supra. Therefore, the motion for directed verdict based on those facts falls under the renewal requirement of Ark. R. Civ. P. 50. Because Jenkins failed to properly renew the motion, it | inwas not preserved for appeal, and the circuit court’s denial of the motion for judgment notwithstanding the verdict was not in error.
Jenkins’s third point is that APS failed to adequately prove its damages. This is a challenge to the sufficiency of the evidence to support the award. As such, it is waived due to Jenkins’s failure to renew her motion for directed verdict at the close of all of the evidence. Advocat, supra; Bronakowski, supra.
Jenkins next challenges the award of punitive damages. Punitive damages are not recoverable under the Trade Secrets Act. See Brown v. Ruallam Enters., Inc., 73 Ark.App. 296, 44 S.W.3d 740 (2001). They can, however, be recovered in cases of tortious interference with contractual relationships. Allstate Ins. Co. v. Dodson, 2011 Ark. 19, 376 S.W.3d 414. Jenkins waived her challenge to the sufficiency of the evidence to support punitive damages by failing to properly renew her motion for directed verdict. Because there was a basis for imposition of punitive damages other that the misappropriation of the information, we cannot say that the circuit court erred.
For her final point, Jenkins argues that the verdicts were excessive. As indicated earlier, this point is preserved for our review. However, the argument is not sufficiently developed in that it contains no analysis or discussion. Rather, Jenkins’s entire argument on this point is one sentence in which she asserts that the compensatory and punitive damages were the result of passion and prejudice and cites Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239, for support of her argument. It is well settled that we will not make a party’s argument for them or consider an argument that is not properly developed. Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008).
In Affirmed.
PITTMAN and WHITEAKER, JJ., agree.
. Ark.Code Ann. §§ 4-75-601 to -607 (Repl. 2011).
. Ark.Code Ann. §§ 5-41-103 to -106 (Repl. 2006).
.The jury unanimously awarded actual damages of $50,062.98 and punitive damages of $100,000 against D & A.
. The circuit court later amended its order to clarify that Jenkins’s obligation to return certain information to APS was limited to that information within her possession, custody, or control.
. Section 5-41-104(a) provides that "[a] person commits computer trespass if the person intentionally and without authorization accesses, alters, deletes, damages, destroys, or disrupts any computer, computer system, computer network, computer program, or data.” | [
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KAREN R. BAKER, Justice.
| Appellant Monica Contreras appeals from the permanency-planning-hearing order and closure order of the Washington County Circuit Court. The Court of Appeals affirmed the circuit court’s decision, finding appellant’s argument that the evidence was insufficient was not preserved. Contreras v. Ark. Dep’t. of Human Servs., 2013 Ark. App. 519, 429 S.W.3d 378. We granted review. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15. Contreras argues that the circuit court erred in granting permanent custody of her child, J.G., to Contreras’s mother, Christine Williams. Contreras contends that there was not sufficient evidence to show that such placement was in the best interest of J.G. We reverse and | ¡remand the order of the circuit court.
On February 22, 2012, the Arkansas Department of Health and Human Services (DHS) exercised a seventy-two-hour hold on J.G. pursuant to Arkansas Code Annotated section 9-27-303 (Supp.2011). Contreras had dropped J.G. off at Huntsville Intermediate School that morning and had not picked him up. Huntsville police were unable to contact Contreras. The Washington County Circuit Court, Juvenile Division, filed an ex parte order for emergency custody on February 27, 2012.
The circuit court entered an adjudication and disposition order on March 29, 2012, in which it adjudicated J.G. dependent-neglected. J.G. was temporarily placed in the custody of Williams, with the goal of reunification with Contreras. The court required Contreras to (1) cooperate with DHS; (2) keep DHS informed of where she was living and any changes in telephone number or address; (3) participate in individual counseling; (4) refrain from use of illegal drugs and alcohol; (5) submit to random drug screens weekly; (6) obtain and maintain clean, safe, and stable housing and employment; (7) demonstrate ability to protect J.G. and keep him safe from harm; and (8) maintain contact with her attorney.
Two weeks after the adjudication order was entered, on April 13, 2012, at the behest of DHS, the circuit court issued a bench warrant for failure to appear at a show-cause hearing and for contempt of court, as Contreras had (1) failed to call DHS weekly; (2) failed to cooperate with DHS; (3) failed to follow through in counseling; and (4) failed to submit to weekly random drug screens. Contreras was arrested on the bench warrant on April 24, 2012, Rand sentenced to 30 days in jail on the contempt charges.
Five months later, on September 5, 2012, the circuit court entered an order finding that Contreras had made some progress toward alleviating or mitigating the causes of J.G.’s removal from the home and completing the court’s orders and requirements of the plan. Contreras had completed a psychological evaluation, completed parenting classes, and had passed five nonrandom drug screenings. The court also found that Contreras would be moving into an apartment in Texas on August 31, 2012. However, Contreras had not completed her drug-and-alcohol assessment, was on probation stemming from the charges in Texas, and was involved in a custody case over J.G.’s younger half-brother, who lived with his paternal grandmother. Although the circuit court found that it was in J.G.’s best interest to remain in the custody of Williams, the goal of the case remained reunification.
On November 14, 2012, the circuit court granted Contreras supervised visitation once per month, on two consecutive days for at least one hour. A second agreed order for supervised visitation was filed on December 20, 2012, awarding supervised visitation for at least two hours.
The circuit court held a permanency-planning hearing on January 18, 2013. A DHS report, prepared the previous day, stated that Contreras had been compliant with her case plan, noting she had (1) obtained a residence in Arlington, Texas, (2) been employed since June 2012, (3) completed counseling, (4) been cooperative with the department and contacted |4her caseworker regularly, (5) completed parenting classes in Texas in July 2012, and (6) completed her psychological evaluation on June 20, 2012.
Caseworker Anastacia Moore testified that J.G. was doing well in his current placement with Christine Williams. J.G. was doing very well in school and was receiving counseling twice a week. When the counselor approved visitation, J.G. began supervised visits, where, at first, he displayed hostility towards his mother. But in subsequent visits “they seemed to be getting along.”
According to Moore, J.G. “looked like he was enjoying himself,” during his visit with Contreras but he told her he was not. Moore stated that Contreras was currently in compliance with the case plan. She stated that she was “conflicted” about whether it was in J.G.’s best interest to return to mom because “he doesn’t want to be with his mother.” She conceded, however, that some of J.G.’s aggression toward his mother concerned things he would not have been aware of if he hadn’t been told about them by a third party.
Christine Williams, Contreras’s mother, stated that J.G. was “doing great in our home” and getting good marks in school. Williams asserted that “we love J.G. so much” and wanted him to remain in her home. According to Williams, she gave J.G. a horse as “therapy.” She asserted that Contreras was inadequate as a parent.
Contreras confirmed that she was complying with the case plan. She denied Williams’s allegations, and asserted that her mother and her new husband had substance abuse problems. Contreras admitted to having been placed on probation because of a fight with a friend who was a police officer and to serving ten days for a DWI. However, she claimed that she now | fiseIdom drank alcohol. ’ Both the DWI and the fight predated the case plan as they occurred before J.G. was removed from Contreras’s custody.
Although J.G. attended the hearing, his wishes were made known by a letter in which he stated that he wished to stay “with my nana and papa because I feel safe,” and also because he has his “own room, bed, t.v., remote controlled helicopter, mp3 player, and game system.” The attorney ad litem recommended that J.G. remain with his grandmother and that Contreras continue to have supervised visitation.
At the January 18, 2013 hearing, the circuit court noted that Contreras had made “some good progress” but stated that she had not made “enough progress with [J.G.’s] trust.” It granted permanent custody in Williams and closed the case. Less than eleven months had elapsed since J.G. was adjudicated dependant/neglected. Despite granting permanent custody of J.G. to Williams, the circuit court granted Contreras extended unsupervised visitation during spring and summer breaks as well as on holiday weekends. The permanency-planning-hearing order and closure order, filed on February 15, 2013, stated that Contreras was in compliance with “some of’ the case plan and court orders.
This court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the trial court’s findings unless they are clearly erroneous. Lamontagne v. Ark. Dep’t. of Human Servs., 2010 Ark. 190, 366 S.W.3d 351. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. Furthermore, this court defers to the trial court’s evaluation of the credibility of witnesses. \RId.
Contreras asserts that there was insufficient evidence presented in the permanency-planning hearing to show that it was in J.G.’s best interest to grant permanent custody to Williams. She contends that the circuit court erred in not following the requirement of Arkansas Code Annotated section 9-27-338(c) (Supp.2011), that J.G. be returned to his natural parent. Contreras asserts that there was no evidence adduced in the permanency-planning hearing to show that she was a threat to her child.
We are mindful that this statute was amended by the Arkansas General Assembly effective August 15, 2013, but because the hearing was held prior to that date, we apply the version of the statute in place at that time. In pertinent part, it states as follows:
(c) At the permanency planning hearing, based upon the facts of the case, the circuit court shall enter one (1) of the following permanency goals, listed in order of preference, in accordance with the best interest of the juvenile:
(1) Returning the juvenile to the parent, guardian, or custodian at the permanen cy planning hearing if it is in the best interest of the juvenile and the juvenile’s health and safety can be adequately safeguarded if returned home;
(2) Authorizing a plan to return the juvenile to the parent, guardian, or custodian only if the court finds that:
(A)(i) The parent, guardian, or custodian is complying with the established case plan and orders of the court, making significant measurable progress toward achieving the goals established in the case plan and diligently working toward reunification.
(ii) A parent’s, guardian’s, or custodian’s resumption of contact or overtures toward participating in the case plan or following thé orders of the court in the months or weeks immediately preceding the permanency planning hearing are insufficient grounds for authorizing a plan to return home as the permanency plan.
(iii) The burden is on the parent, guardian, or custodian to demonstrate genuine, sustainable investment in completing the requirements of the case plan and following the orders of the court in order to authorize a plan to return home as the permanency goal;
(B) The parent, guardian, or custodian is making significant and measurable progress toward remedying the conditions that caused the juvenile’s removal and the juvenile’s continued removal from the home; and
|7(C) The return of the juvenile to the parent, guardian, or custodian shall occur within a time frame that is consistent with the juvenile’s developmental needs but no later than three (3) months from the date of the permanency planning hearing;
(5) Authorizing a plan to obtain a permanent custodian, including permanent custody with a fit and willing relative.
Here, the circuit court found that it was not in J.G.’s best interest to be placed in Contreras’s care because J.G. had concerns about being in his mother’s custody and because it was “supported by the record” that Contreras had not been stable. Contreras asserts that this finding was error because no evidence was submitted to show that J.G.’s health and safety would not be adequately safeguarded. We note that the circuit court made no findings about whether J.G.’s health and safety could be safeguarded in his mother’s custody, the caseworker testified that her report did not list any reasons why J.G. would be unsafe in Contreras’s home. However, the safeguarding of the juvenile’s health and safety is only part of the statutory requirement. Returning the juvenile must also be in the child’s best interest. We must therefore determine whether the circuit court’s finding, that returning J.G. to Contreras’s custody, was not in his best interest was clearly erroneous.
Here, there was sufficient evidence to find that it was in J.G.’s best interest to remain in Williams’s temporary custody. J.G. was doing well in school and had a close relationship with his grandmother. Also, J.G. had not resolved his issues of trust concerning his mother. Accordingly, there is sufficient evidence for the circuit court’s finding that it was not appropriate to return J.G. to his mother at the time of the permanency-planning hearing in accordance with 9—27—338(c)(1). However, there was not sufficient evidence for the circuit |scourt to find that placement pursuant to section 9-27-338(e)(2), which authorizes the circuit court to create a plan to return the juvenile to the parent within three months of the permanency- planning hearing, was not in J.G.’s best interest.
Such a plan is appropriate if: (1) the parent is complying with the case plan and making measurable progress; (2) the parent is making significant progress toward remedying the conditions that caused the removal; and (3) the return of the juvenile will occur within three months.
Here, the circuit court found that Contreras was in compliance with the case plan, and that Contreras was making significant progress toward remedying the conditions that caused the removal. Additionally, there was no finding that the return of the juvenile could not occur within three months. In fact, we find it significant that the circuit court had only recently ordered brief, supervised visitation. Yet, at the conclusion of the permanency-planning hearing, the circuit court found it appropriate to order extended unsupervised visitation.
After reviewing the entire record, we are left with a definite and firm conviction that a mistake was committed when the circuit court granted permanent custody of J.G. to Williams and closed the case. Accordingly, we reverse the circuit court’s order and remand for further proceedings consistent with this opinion.
Reversed and remanded; court of appeals’ opinion vacated.
HANNAH, C.J., CORBIN and DANIELSON, JJ, dissent.
. In a civil, nonjury trial, a party who does not challenge the sufficiency of the evidence does not waive its right to do so on appeal. Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861 (2000).
. Contreras was released by an order filed May 1, 2012, so that she could travel to Dallas, Texas, to appear before the criminal court there, where she pled guilty to two unrelated charges and was sentenced to 10 days in jail. | [
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RITA W. GRUBER, Judge.
|!Appellants, Rebekah Smith and David Wiser, appeal from an order of the Benton County Circuit Court terminating their parental rights to their children: D.W., born July 17, 2007, and S.W., born September 18, 2008. On appeal, they argue that the circuit court erred in terminating their rights when (1) the Department of Human Services made no efforts to assist them in reunification, and there was a reasonable expectation that, with additional time, they could, obtain stability and care for the children; and (2) there was no testimony at the termination hearing regarding the adoptability of the children. We hold that there was no error, and we affirm the circuit court’s order terminating appellants’ parental rights.
On March 20, 2012, the Department of Human Services (DHS) exercised an emergency hold over the children after appellants were arrested on drug charges, including manufacturing methamphetamine in the home where the children were living. The parents remained in jail or prison throughout this case: on October 1, 2012, Ms. Smith was [¡¡sentenced to 60 months in prison plus an additional 120 months suspended, and Mr. Wiser was sentenced to 48 months in prison plus an additional 60 months suspended. At the permanency planning hearing on January 29, 2013, the court changed the goal from reunification to adoption and ordered DHS to explore placement of the children with their maternal grandmother.
The court entered an order terminating appellants’ parental rights on May 7, 2013, finding by clear and convincing evidence that termination of parental rights was in the best interest of the children, including consideration of the likelihood that the children would be adopted and the potential harm caused by returning the children to their parents’ custody. The court specifically found by clear and convincing evidence that the children were adoptable and that DHS had identified a potential adoptive home for them. The court also specifically found that the parents had used methamphetamine throughout the lives of the children and had a long history of instability and drug use; that there was still a significant time in the lives of the children before their parents would be released from incarceration and thereafter have time to show stability and the ability to remain drug free; that the parents were in the beginning stages of the process of drug treatment and would require long-term treatment upon release from incarceration; that the children needed a permanent home to progress with their own mental-health treatment; that the parents had not seen the children since they were removed on March 20, 2012; and that the mother intended to relocate to California where the children were living when she was released from prison. The court also found the existence by clear and convincing evidence of two statutory grounds: (1) the |schildren had been out of the parents’ custody for more than 12 months and, despite a meaningful effort by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents; and (2) the parents were sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the children’s lives. Ark. Code Ann. § 9-27-341(b)(3)(B)(i), (viii) (Supp.2011).
We review cases involving the termination of parental rights de novo. Grant v. Ark. Dep’t of Human Servs., 2010 Ark. App. 636, 378 S.W.3d 227. The grounds for termination must be proved by clear and convincing evidence. Id. 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. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, at 7, 378 S.W.3d 290, 294. 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. A heavy burden is placed on the party seeking the termination of parental rights because it 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. Welch, 2010 Ark. App. 798, at 7-8, 378 S.W.3d at 294.
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. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the children’s best interest. Ark.Code Ann. § 9-27-341(b)(3)(A). This includes consideration of the likelihood that they will be adopted and the potential harm caused by returning custody of them 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 of the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. McFarland v. Ark. Dep’t of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005).
We turn first to appellants’ argument that the circuit court erred in terminating their rights because DHS made no effort to assist them in reunification and there was a reasonable expectation that, given additional time, they could have obtained stability and the ability adequately to care for their children. This challenge applies to the ground that the children had been out of the parents’ custody for more than 12 months and, despite a meaningful effort by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents. Ark.Code Ann. § 9-27-341(b)(3)(B)(i). But the court in this case specifically found an alternative ground by clear and convincing evidence: that is, that appellants had been incarcerated since March 20, 2012, and had received sentences that would constitute a substantial period of the children’s lives. Ark.Code Ann. § 9-27-341(b)(3)(B)(viii). Ms. Smith received a five-year sentence and Mr. [BWiser received a four-year sentence. This ground does not require DHS to provide “meaningful efforts” to rehabilitate the parents. Only one statutory ground is necessary to terminate parental rights. Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 345, 285 S.W.3d 277, 282 (2008). We hold that there is clear and convincing evidence to support this alternative ground for termination, and therefore we hold that the trial court did not clearly err in terminating appellants’ parental rights;
For their second point on appeal, appellants contend that the court erred in terminating their rights where there was no testimony presented from which the court could consider the children’s adopta-bility. Arkansas Code Annotated section 9-27-341(b)(3)(A) requires the court, in determining whether termination is in the best interest of the children, to consider the likelihood that they will be adopted if the termination petition is granted. We have held that adoptability is but one factor that is considered when making a best-interest determination and that no factor must 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 children. Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, at 6, 385 S.W.3d 285, 288.
While no one in this ease testified that “the children are adoptable,” we have no doubt that the court did what it was statutorily required to do—that is, consider the likelihood that the children would be adopted. At the time of the hearing, the children were living with their maternal grandmother in California, who already had custody of another child of Ms. Smith. Our de novo review of the evidence indicates that everyone at the shearing was aware that the maternal grandmother was the potential adoptive parent. Sheila Beckton, a behavioral therapist and social worker who counseled the children, testified that it was very important for these children to develop a secure attachment to an adult and to know that the adult was not going to leave them. She was very concerned about the parents’ ability to regain custody in a few years and the instability that would create. She testified that it would take “a while” for the children to build a strong attachment to their grandmother and that they needed to know that the placement with her was going to be permanent.
Mark Bright, the children’s DHS foster-care worker, testified that the ultimate goal for the children was for “grandmother to adopt so she would have permanent custody of the kids.” He testified that he believed adoption by the children’s grandmother to be in them best interest because of his concern with appellants’ history of drug use and the children’s safety and stability. Finally, the following excerpt is from the testimony of Cassandra Middleton, the CASA worker assigned to the case:
APPELLANTS’ ATTORNEY: And you think that terminating their rights and having the grandmother adopt will prevent the parents from being in the children’s lives?
CASSANDRA: No, I don’t think that— I don’t see how that would keep the parents from being in the children’s lives, if they’re with her mother. Obviously, she’s going to have contact with the mother.
She summed up her testimony by opining that adoption by the grandmother would be better than permanent custody because then the parents could not come back and remove custody from the grandmother.
The attorneys’ arguments, while not evidence, also demonstrate that no one at the 17hearing was confused about whether DHS thought the children were adoptable and that the grandmother had been chosen as an appropriate adoptive placement. The attorney ad litem answered the court’s question regarding whether she was sure that the grandmother was prepared to adopt these children, stating that she was. The ad litem attorney said that she had spoken with the grandmother and that the grandmother had said that she would do whatever was necessary to protect the children. Finally, appellants’ attorney acknowledged that DHS had stated “that the children [were] both adoptable.” These statements and arguments of counsel demonstrate that the issue of adoptability was before the court.
Most importantly, the court made a specific finding that the children were adoptable. It then found, “While the parents may in future years end up having contact with the juveniles, the children need to know that the home they are currently in will be their permanent home and that they won’t be removed or taken out of that home.”
Although the better practice may be for DHS to introduce testimony that the children are adoptable and that DHS has a potential adoptive placement, the statute does not require any “magic words” but merely provides that the court consider the likelihood that the children will be adopted in making its best-interest determination. Adoptability is not an essential element of proof, McDaniel v. Ark. Dep’t of Human Servs., 2013 Ark. App. 263, 2013 WL 1776479, and reversing on this point in this case would be the epitome of placing form over substance. Our review of the testimony, arguments, and findings convince us that DHS, the CASA worker, the children’s therapist, and the court believed that these children were adoptable and that the grandmother had stated that she intended to adopt them. To reverse for failure of the 18circuit court to consider a factor when it is apparent that the court considered it would subvert one of the primary purposes of termination: “to provide permanency in a juvenile’s life in all instances in which the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective.” Ark.Code Ann. § 9—27—341(a)(3); see also Fredrick v. Ark. Dep’t Human Servs., 2009 Ark. App. 652, 2009 WL 3208740. Because the record demonstrates that the court considered the likelihood of adoption as part of its best-interest analysis, we reject appellants’ argument.
For the foregoing reasons, we affirm the circuit court’s order terminating appellants’ parental rights.
Affirmed.
HARRISON and WOOD, JJ., agree. | [
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PAUL E. DANIELSON, Justice.
| Appellant Greg Prock appeals from the order of the Arkansas Workers’ Compensation Commission, which reversed, by a vote of 2-1, the decision of the Administrative Law Judge (“ALJ”) and denied and dismissed his claim against his employer, appellee Bull Shoals Landing. He asserts two points on appeal: (1) that the Commission erred in finding that he did not rebut the presumption that his accident was substantially occasioned by his use of illegal drugs and (2) that the Commission’s disregard of credibility determinations by the ALJ and the Commission’s makeup, which he claims results in bias against the worker, violate his constitutional rights. Prock originally appealed the Commission’s decision to the court of appeals, which affirmed the decision by a vote of 6-3 on the first point and 9-0 on the second. See Prock v. Bull Shoals Landing, 2012 Ark. App. 47, 390 S.W.3d 78 (Prock II). Prock petitioned this court for review, which we granted. 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. See Hudak-Lee v. Baxter Cnty. Reg’l Hosp., 2011 Ark. 31, 378 S.W.3d 77. After review, we reverse and remand to the Commission for a determination of benefits.
Prock’s injuries arose following an accident at Bull Shoals Landing, where he was employed. On November 1, 2007, Prock and his co-employee, Matt Edmisten, were instructed by their supervisor, Steve Eastwold, to obtain two barrels from atop a hill and to cut the tops off the barrels. Prock and Edmisten did so, and they used an acetylene torch to successfully cut the top off the first barrel. However, when they began to cut the top off the second barrel using the torch, there was an explosion; both men suffered injuries and sought workers’ compensation benefits. Following the accident, drug tests on both men came back positive.
On March 25, 2009, Prock’s attorney sent a letter to the ALJ, along with a motion to recuse and a brief regarding his constitutional challenges to the Commission’s jurisdiction. Specifically, Prock identified the following issues, which he intended to submit during the hearing before the ALJ: (1) whether the provisions of the Workers’ Compensation Act, which authorize the Commission to appoint ALJs and grant ALJs the power to hear and decide claims for compensation, being part of the Executive Branch “subject to political influences,” |..¡violate the substantive and procedural requirements of due process; (2) whether the provisions of the Workers’ Compensation Act, which authorize the Governor’s appointment of members to the Commission and give the Governor sole authority over the Commission’s appointment of ALJs, violate separation of powers by making judicial functions a part of and subject to the Executive Branch; (3) whether the provisions of the Workers’ Compensation Act, which place the judicial function of adjudicating claims for workers under the Executive Branch, violate article 5, section 32 of the Arkansas Constitution in that the constitutional provision does not expressly permit the legislature to delegate judicial functions to the Executive Branch; (4) whether the provisions of the Workers’ Compensation Act, which place the judicial function of adjudicating workers’ claims under the Executive Branch, violate article 2, section 3 of the Arkansas Constitution; (5) whether the provisions of the Workers’ Compensation Act, which place the judicial function of adjudicating workers’ claims under 14the Executive Branch, violate article 2, section 2 of the Arkansas Constitution; (6) whether provisions of the Workers’ Compensation Act, which place the judicial function of adjudicating workers’ claims under the Executive Branch, violate article 2, section 18 of the Arkansas Constitution; and (7) whether provisions of the Workers’ Compensation Act, which place the judicial function of adjudicating workers’ claims under the Executive Branch, violate article 2, section 29 of the Arkansas Constitution. In his motion to recuse, Prock moved for the recusal of the ALJ assigned to his case and the recusal of all present ALJs and Commissioners on the basis that (1) they might “have a personal interest in the outcome of the proceedings by virtue of the threat against his or her job security”; and (2) since they perform their duties “under constant pressures that infringe and have a chilling effect upon their deci-sional independence,” their bias might reasonably be questioned. He further | .^requested that a special ALJ, with no direct interest in the outcome of the constitutional issues presented and free from even the appearance that his or her decisions are influenced by the Executive Branch or other private interests, be appointed and assigned to hear his claim.
A hearing was held in Prock’s case on April 15, 2009. On May 15, 2009, the ALJ issued its order that denied Prock’s motion to recuse, found his constitutional challenges to be without merit, and found that the Workers’ Compensation Act was constitutional. It then found that illegal drugs, namely “eannabinoids,” were present in Prock’s body at the time of his accident. The ALJ noted that, pursuant to Arkansas Code Annotated § 11—9— 102(4)(B)(iv)(6), the presence of these drugs created a rebuttable presumption that Prock’s accident was substantially occasioned by the use of those drugs. Accordingly, the ALJ observed, the burden shifted to Prock to prove by a preponderance of the evidence that illegal drugs did not substantially occasion his accident or injury, in order to be entitled to compensation benefits.
The ALJ then concluded that, “[o]n the basis of the record as a whole,” Prock had met his burden of proving by a preponderance of the evidence that his accidental work incident was not substantially occasioned by the use of drugs. The ALJ delineated the testimony and concluded as follows:
Considering that none of the witnesses observed the claimant using marijuana or otherwise under the influence of marijuana at any time on the day of the explosion, and that the claimant credibly denied having used marijuana on the day of the incident, I am persuaded that any assertion or finding that the claimant’s accidental injury was the result of any “impairment” on the part of the claimant would be based on speculation and conjecture, which can never supply the place of proof.
In other words, the preponderance of the credible evidence demonstrates that the claimant’s injury was the result of the claimant’s attempt to accomplish his assigned |fjob task in a quick and convenient manner and not the result of “impaired judgment,” caused by the use of marijuana. Accordingly, I find that the claimant has rebutted the presumption that his injury was substantially occasioned by the use of illegal drugs. As a result, I find that the claimant suffered compensable injuries, in the form of severe burns to his body (legs, hands, face and arms) when the barrel he was attempting to cut the lid from with a cutting torch exploded, while working for the respondent-employer on November 1, 2007.
Accordingly, the ALJ found that Prock was entitled to benefits.
Bull Shoals Landing and its carrier, AIG Claim Services, Inc., filed a notice of appeal from the ALJ’s opinion, appealing the decision to the full Commission, and the Commission issued its opinion, with a vote of 2-1 on October 14, 2009. In its opinion, the Commission found that, based on its de novo review of the record, Prock had failed to rebut the statutory presumption that his injuries were substantially occasioned by the use of illegal drugs, and it reversed the decision of the ALJ. The Commission opined that the question for it was “whether the claimant’s denial of having used marijuana on that date of the accident is sufficient to constitute a preponderance of the credible evidence and rebut the presumption that the accident was substantially occasioned by the use of marijuana.” It then concluded that Prock’s testimony was “not sufficient enough to rebut the statutory presumption,” as his testimony was “filled with inconsistencies and unexplained evidence” that clearly indicated that he failed to rebut the presumption.
Specifically, the Commission cited to and placed “greater weight” on the testimony of Prock’s supervisor, Steve Eastwold. It further found that Prock’s claim that he had quit smoking marijuana due to another job offer was completely unsupported by the evidence, which served as further “evidence of the claimant not being a credible witness.” And finally, |7the Commission pointed out, the evidence demonstrated that Prock had been directed to use an air chisel to open barrels, but he denied this, in addition to the fact that the barrels had warning labels to not use a torch to open them and that Prock failed to open the cap on the top of the barrel.
Here, the Commission rejected outright Prock’s credibility and found as follows:
[W]hen we consider all of the evidence in the record, we do not find the claimant to be a credible witness. The claimant lied about being shown how to use the air chisel. He lied about where he was when Mr. Eastwold told him what to do with the barrels. The claimant’s lack of personal safety is evident by his failure to even read the warning labels. Finally, we give no credit to his testimony he quit smoking pot as his reasoning for quitting smoking pot two weeks pri- or cannot be verified in any way, shape or form. We are not persuaded by claimant’s testimony that he always used a torch to remove the tops off the barrels as evidence that his marijuana use did not contribute to his injury. On the contrary, this evidence supports the fact of claimant’s long-term marijuana use and his lack of personal safety. The claimant had marijuana or its metabolic derivative in his body at the time of the accident. Therefore, under the law, it is presumed that this illegal drug use substantially occasioned his injury. The only evidence that it did not was elaim-ant’s unsubstantiated testimony that he always used a torch to open barrels and that he had not smoked marijuana for over a week. For those reasons set forth above, we do not find the claimant’s testimony to be credible. Therefore, we find that the claimant has failed to successfully rebut the statutory presumption. Accordingly, we hereby reverse the decision of the Administrative Law Judge.
The Commission further found no merit in Prock’s constitutional challenges:
On appeal, the claimant raises a new issue arguing that if the Commission reverses the Administrative Law Judge, the claimant’s due process rights are violated because the Administrative Law Judge’s finding is based on credibility. Essentially, the claimant is arguing that the Commission violates the claimant’s right to due process if it reverses a finding of credibility made by any Administrative Law Judge. We find the argument has no merit as this issue has previously been addressed by the Court of Appeals.
hThe Commission then denied and dismissed Prock’s claim. Prock then filed his notice of appeal with the Commission.
The Arkansas Court of Appeals reversed and remanded the matter to the Commission. See Prock v. Bull Shoals Landing, 2010 Ark. App. 724, 2010 WL 4344563 (Prock I). In its opinion, the court noted the Commission’s finding that the only evidence to rebut the presumption was Prock’s and Edmisten’s denials of smoking marijuana and observed that the record showed that other evidence was in fact offered. It then concluded that “[b]e-cause the Commission stated that no such evidence existed, we are unable to say whether the testimony of these witnesses was disbelieved, overlooked, or disregarded arbitrarily.” 2010 Ark. App. 724, at 2. Because it is reversible error for the Commission to state that there is no evidence on an issue when such evidence in fact appears in the record, the court reversed and remanded the matter to the Commission for findings of fact sufficiently detailed and specific to permit meaningful judicial 19review. See id.
In accord with the court of appeals’ mandate, the Commission issued a second opinion, with a 2-1 vote on December 14, 2010. In it, the Commission found, in pertinent part:
In the present claim, the evidence shows that THC was present in the claimant at the time of the injury. The claimant denied using marijuana on the date of the accident. The claimant’s testimony is not sufficient enough to rebut the statutory presumption. The evidence demonstrates that the claimant’s testimony is filled with inconsistencies and unexplained evidence which clearly indicates that the claimant failed to rebut the presumption. The claimant testified that he arrived at work sometime between 7:00 and 8:00 a.m. He clocked in and stopped at the marina to have a cup of coffee. The claimant testified that he met Mr. Eastwold, the owner, as he walked out of the marina. The claimant had not begun any work-related activities when he saw Mr. Eastwold. The claimant testified that this was when Mr. Eastwold directed the claimant to take the tops off two barrels so he could burn Styrofoam. However, Mr. Eastwold testified that he first saw the claimant that day when he observed the claimant and Mr. Edmisten in the claimant’s personal vehicle coming from over a hill. It was at that time, while the claimant was in his Jeep, that Mr. Eastwold told the claimant to go get a couple of barrels and cut the tops off for him. Mr. East-wold made perfectly clear during his testimony that there was no reason for the claimant to be in his own vehicle on the stretch of road that he and Mr. Edmisten had been driving on. The claimant offered no explanation, but only denied being in the vehicle with Mr. Edmisten. The claimant testified that he and Mr. Edmisten were down at the marina when he encountered Mr. East-wold. This testimony is not corroborated by either Mr. Eastwold or Mr. Did-way. We place greater weight upon the testimony of Mr. Eastwold.
Therefore, when we consider all of the evidence in the record, we do not find the claimant to be a credible witness. The claimant lied about being shown how to use the air chisel. He lied about where he was when Mr. Eastwold told him what to do with the barrels. The claimant’s lack of personal safety is evident by his failure to even read the warning labels. Finally, we give no credit to his testimony he quit smoking pot as his reasoning for quitting smok ing pot two weeks prior cannot be verified in any way, shape or form. We are not persuaded by claimant’s testimony that he always used a torch to remove the tops off the barrels as evidence that his marijuana use did not contribute to his injury. On the contrary, this evidence supports the fact of claimant’s admitted long-term marijuana use and his lack of personal safety. The claimant had marijuana or its metabolic derivative in his body at the time of the accident. Therefore, under the law, it is presumed that this illegal drug use substantially occasioned his injury. The evidence that it did not was the claimant’s testimony that he always used 1 ina torch to open barrels and that he had not smoked marijuana for over a week. His testimony is supported by Mr. Edmisten that he and the claimant did not smoke pot on the day of the incident. However, Mr. Edmisten’s testimony is suspect at best since he also has a pending workers’ compensation claim and had a vested interest in the outcome of this litigation. Further, the testimony of Mr. Didway that the claimant did not appear impaired before the incident is not persuasive enough to overcome the presumption as there were approximately 90 unaccounted for minutes between when the claimant was seen by Mr. Did-way and the incident, during which time the claimant was seen in his personal vehicle with Mr. Edmisten, an activity which he denies. When we weigh all the evidence, we do not find the claimant’s testimony to be credible.
We further find that even if the claimant did not appear to be impaired while drinking coffee first thing in the morning, it is irrelevant. Mr. Edmisten and the claimant admitted that they did no work prior to going to retrieve the barrels. According to Mr. Eastwold and Mr. Didway, the explosion occurred at around 9:30 a.m. The gap in time from when the coffee-drinking ended and the explosion occurred is curious. The entire barrel-retrieving and cutting process, could not have taken 90 minutes. Mr. Eastwold testified that he encountered the claimant and Mr. Edmisten in the claimant’s vehicle, coming from the main road off the premises, at which point he asked them to cut the barrels. He testified that neither the claimant nor Mr. Edmisten would look him in the eye. He was not close enough to assess whether they appeared to be under the influence of marijuana. The gap in time between when the claimant was last seen by Mr. Didway and when he was asked to get the barrels by Mr. East-wold together with the claimant and Mr. Edmisten’s suspicious behavior of not looking Mr. Eastwold square in the face is sufficient enough to disregard Mr. Didway’s testimony regarding the claimant’s appearance early in the morning.
Mr. Didway confirmed that the claimant had cut barrels open with a cutting torch previously. However, he stated that he would not have used this method. Moreover, he did not see Mr. East-wold on the dock at the point in time in which, according to Mr. Edmisten and the claimant, Mr. Eastwold was supposed to be asking them to cut barrels.
With regard to Mr. Williams’s testimony, we do not find it persuasive enough to overcome the presumption. Mr. Williams testified that he never witnessed the claimant intoxicated at work. However, he admitted that he was not around Mr. Edmisten or the claimant at the time of the explosion. Accordingly, he could not have known whether the claimant was under the influence of drugs or alcohol when the incident occurred.
Mr. Aaron corroborated Mr. East-wold’s testimony that he had shown the claimant and Mr. Edmisten how to use an air chisel to remove the top from a barrel. He was of the opinion that it is important to remove the bunghole cap from the barrel prior to cutting into it in order to release any buildup of gases inside. We find Mr. Eastwold to be more credible than Mr. Edmisten and the claimant concerning what | ntranspired the morning of the explosion.
Therefore, based upon our de novo review of the record, we find that there is a direct causal link between the claimant’s marijuana use and the explosion. We find that the claimant has failed to rebut the presumption that the accident was substantially occasioned by his use of marijuana. That being the case, he has not proven by a preponderance of the evidence that he sustained a com-pensable injury. The claimant has failed to rebut the statutory presumption that the accident was substantially occasioned by his use of marijuana. Accordingly, we hereby reverse the decision of the Administrative Law Judge.
With respect to Prock’s allegation that his due-process rights would be violated if the Commission reversed the ALJ, the Commission reaffirmed the finding from its October 14, 2009 opinion that Prock’s argument had no merit in light of the court of appeals’ previous holdings.
The dissenting commissioner observed that the “only evidence of intoxication in this claim is the positive drug test.” With respect to the testimony, the dissenting commissioner discounted the testimony of both Prock and Edmisten, but found that
[tjheir boss, Mr. Steve Eastwold, also an interested party, while insinuating that Mr. Prock and Mr. Edmisten were off smoking pot in Mr. Prock’s Cherokee, admitted that if he had thought they were intoxicated when he instructed them to cut the barrels he would not have let them work.
[His] insinuation ..., specifically relied on by the majority, is sheer conjecture and speculation, which, even if plausible, cannot take the place of proof. In totality, the testimony of Mr. Didway, and that of Mr. Eastwold that he would not have let Mr. Prock and Mr. Edmis-ten work if he thought they were high, leads to a finding that the claimant was not intoxicated.
The dissenter opined that “[t]he accident was substantially occasioned by Mr. Prock’s habit of cutting open oil barrels with an acetylene torch.” He then concluded that because the accident was not substantially occasioned by the use of marijuana, “the bar presented by Ark.Code Ann. § 11—9—102(4)(B)(iv) does not apply to this claim.”
112Prock filed his notice of appeal, and, as already noted, appealed to our court of appeals, which affirmed the Commission’s decision. See Prock II, supra. We granted review and now turn to the merits of Prock’s arguments on appeal.
For his first point on appeal, Prock contends that the Commission erred in finding that he had failed to rebut the statutory presumption that his accident was substantially occasioned by his use of marijuana. He contends that there was no evidence presented by any person, including his employer, that he appeared intoxicated at the time of the accident; therefore, he claims, he clearly rebutted the presumption that the accident was substantially occasioned by his use of marijuana. Prock argues that any finding that the accident was substantially occasioned by marijuana would be based on pure speculation and conjecture. He additionally points out that evidence was presented that he had taken the same actions in the past without incident. Appellees aver that “basically” a bare denial is the only evidence to support Prock’s claim that he was not impaired on the day of the accident and that his testimony was filled with inconsistencies.
In appeals involving claims for workers’ compensation, we view the evidence in the light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. See Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 388 S.W.3d 16. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. See id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. See id. Additionally, questions concerning the credibility of | iswitnesses and the weight to be given to their testimony are within the exclusive province of the Commission. See Pack v. Little Rock Convention Ctr. & Visitors Bureau, 2013 Ark. 186, 427 S.W.3d 586. When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and determine the facts. See id. Finally, the court will reverse the Commission’s decision only if it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. See Hudak-Lee v. Baxter Cnty. Reg’l Hosp., 2011 Ark. 31, 378 S.W.3d 77.
Under Arkansas law, a workplace injury that is substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s order is not compensable. See Ark. Code Ann. § 11-9-102(4)(B)(iv)(a) (Repl. 2012); see also ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998) (explaining that “substantially occasioned” means that there must be a direct causal link between the use of alcohol [or illegal drugs] and the injury or accident). Once evidence is admitted showing that such drugs were in the claimant’s system at the time of the accident, the burden of proof shifts to the claimant, requiring him to prove by a preponderance of the evidence that the accident was not substantially occasioned by intoxication from one of these substances. See 114Ark. Code Ann. § 11—9— 102(4)(B)(iv)(b), (d).
It is undisputed that illegal drugs, namely “cannabinoids,” were present in Prock’s body at the time of the accident and that the burden shifted to Prock to prove that the accident “was not substantially occasioned by the use of alcohol [or drugs].” The Commission’s opinion went into great detail illustrating why it found that Prock had been untruthful about his drug use. However, the issue before the Commission was whether Prock proved, by a preponderance of the evidence, that his accident or injury was not substantially occasioned by his drug use.
The evidence presented by Prock to rebut the presumption and to prove that there was not a causal link between drug use and the accident was as follows. Prock testified on his own behalf, claiming that he was not intoxicated in any manner on the day of the accident, but more importantly, that it was not the first time he had used a cutting torch to open barrels, that he had not read the warning labels, and that he did not know, nor had he been shown, another method for opening barrels. Mike Didway, a fellow employee of Prock’s, testified that he saw Prock suffer the injury and that Prock did not appear drunk or intoxicated. Didway stated that he had never seen Prock appear intoxicated at work in over seven years, 11sor smell of either alcohol or drugs. More importantly, Didway testified, “In the past I have seen [Prock] use a cutting torch to open the barrels and this is something I believe anyone could have observed.” Roger Williams, another fellow employee of Prock’s, testified that he did not see Prock prior to the explosion, but had never seen Prock come to work intoxicated or drunk in the ten years they had worked together. Matt Edmisten, the fellow employee who was injured with Prock during the accident, testified that Prock was not intoxicated in any manner. Edmisten additionally stated that he had seen Prock open barrels many times using a cutting torch and that he had helped and watched Prock open barrels that way “on many prior occasions, probably 15 to 20 times over the last 3 1/2 to 4 years.” Edmisten claimed that he believed it was reasonable for Prock to open barrels with a cutting torch as he had seen other employees do so. In fact, in describing the accident, Edmisten explained that Prock had already successfully cut the top off the first barrel with a torch before the accident happened while cutting into a second barrel. Although fellow employee Greg Aaron testified on behalf of Bull Shoals and contradicted Prock’s testimony that he had never been shown another method for opening barrels, Aaron did testify that he heard Prock comment that a torch would be a faster way of opening barrels than an air chisel. Finally, Steve Eastwold, Prock’s boss and a witness for Bull Shoals, testified that had Prock appeared to be intoxicated, he would not have allowed him to continue working.
The above evidence can be summarized by concluding that no one saw Prock intoxicated on the day of the accident, no one saw him ingest anything, no one had seen him impaired in any way at work on prior occasions, and, most importantly, that he performed 11fia task that he had been asked to do in the same manner in which he had habitually performed it in the past. After a review of the Commission’s decision, we conclude that the Commission arbitrarily disregarded any testimony that supported Prock’s claim in addition to twisting, or leaving out of its opinion altogether, certain testimony that supported Prock. See also Edmisten v. Bull Shoals Landing, 2014 Ark. 89, 432 S.W.3d 25. While it is true that appellate courts defer to the Commission on issues involving the weight of evidence and the credibility of witnesses and that it may be insulated to a certain degree, it is not so insulated as to render appellate review meaningless. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). The Commission may not arbitrarily disregard the testimony of any witness and, likewise, the Commission may not arbitrarily disregard other evidence submitted in support of a claim. Id.
The “evidence” to support the Commission’s finding that the accident was substantially occasioned by intoxication is the mere speculation and conjecture that Prock was actually high on the day of the accident and that Prock had at some point been shown an alternative method for opening barrels. We cannot say that is substantial evidence, and we do not conclude that reasonable minds could reach the result found by the Commission. We are convinced that fair-minded persons with the same set of facts could not have found that 117Prock failed to rebut the presumption by a preponderance of the evidence; rather, we conclude that fair-minded persons would find that the accident and the injuries were the direct result of Prock’s practice of opening barrels in an unsafe manner with an acetylene torch. For this reason, we reverse the Commission and remand for a determination of benefits.
Prock additionally argues on appeal that the entire workers’ compensation system is unconstitutional and that his due-process rights were violated in the instant case when the Commission overturned the ALJ’s decisions regarding credibility. However, because we reverse and remand on his first argument, we will not reach the second. It is our duty to refrain from addressing constitutional issues if or when the case can be disposed of without determining constitutional questions. See Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W.2d 487 (1968); see also Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007) (holding that, if the case can be resolved without reaching constitutional arguments, it is our duty to do so); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996) (holding that constitutional issues are not decided unless it is necessary to the decision).
Reversed and remanded; court of appeals’ opinion vacated.
Special Justices JUDSON KIDD and TJUANA BYRD join in this opinion.
BAKER and GOODSON, JJ., dissent.
HART and HOOFMAN, JJ., not participating.
. Bull Shoals was insured by appellee AIG Claim Services, Inc.
. Edmisten's appeal from the Commission’s decision in his case is a companion to the instant case, being decided this same date. See Edmisten v. Bull Shoals Landing, 2014 Ark. 89, 432 S.W.3d 25.
.Article 5, section 32 provides:
The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.
. Article 2, section 3 provides;
The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity; nor exempted from any burden or duty, on account of race, color or previous condition.
. Article 2, section 2 provides:
All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.
. Article 2, section 18 provides:
The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.
. Article 2, section 29 provides:
This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.
. The label actually warned not to cut at all; therefore, presumably, using an air chisel would also have been in contravention of the warning label.
. The sole dissenter took issue with the majority’s statement that the only evidence to rebut the statutory presumption was Prock and Ed-misten's denial of smoking marijuana. The dissenting commissioner observed that in addition to Prock’s testimony, "Mr. Didway, Mr. Edmisten, and Mr. Eastwold all testified that they saw the claimant on the morning of the accident and observed that he was not impaired in any form or fashion.’’ The dissenter then found that Prock had successfully rebutted the presumption that the accident was caused by the use of marijuana. He continued, concluding:
Considering that none of the witnesses observed the claimant using marijuana or otherwise under the influence of marijuana at any time on the day of the explosion, and that the claimant credibly denied having used marijuana on the day of the incident, I am persuaded that any assertion or finding that the claimant’s accidental injury was the result of any "impairment” on the part of the claimant would be based on speculation and conjecture, which can never supply the place of proof.
In other words, the preponderance of the credible evidence demonstrates that the claimant's injury was the result of the claimant’s attempt to accomplish his assigned job task in a quick and convenient manner and not the result of "impaired judgment,” caused by the use of marijuana.
. Justice Baker’s dissent contends that the majority misconstrues this court’s holding in ERC. There is absolutely no misconstruing that this court interpreted the use of "substantially occasioned” in the relevant statute to require a direct causal link between the use of alcohol (or drugs) and the injury in order for the injury to be noncompensable. The presumption itself mimics that very language. The Commission’s decision was that Prock did not successfully rebut that presumption. This court’s review obviously must discuss the presumption itself in some respect.
. Justice Baker’s dissent additionally expresses concern that the majority is unaware of our proper role in reviewing the Commission. Fear not. The majority understands that the decision for the Commission was whether or not Prock proved by a preponderance of the evidence that his drug use did not substantially occasion the injury or accident. Again, because we are reviewing the Commission, it should come as no shock that the standard which should have guided the Commission would appear in our discussion. We are not unaware that a certain deference is given to the Commission and that our standard is different on appeal. However, we will simply not affirm the Commission where we are convinced that it was unreasonable in its conclusion and are not required to do so under the law.
. Justice Goodson’s dissenting opinion makes the same mistake the Commission did and focuses on the evidence to support Prock’s intoxication and the finding that Prock was not credible. That focus is misplaced given the presumption. We may not lose sight of the fact that the presumption here is rebuttable. There is simply not substantial evidence for reasonable minds to find a direct causal link between any drug use and the way the injury happened. If we were to hold as the dissent insists we should, what then is the purpose of our review? | [
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WAYMOND M. BROWN, Judge.
| lAppellant Timothy Roger Simpson, as the personal representative of the Estate of Edith Laverne Simpson, deceased, appeals the September 5, 2012 order of the Craighead Circuit Court setting aside Edith’s May 8, 2006 will. Appellant argues that the court erred by setting the will aside based on a finding of undue influence by appellant. We find no error and affirm.
The facts necessary to understand the instant case are as follows. Julius and Edith Simpson were married for more than five decades and raised nine children during that time. |2On September 19, 2002, Mr. and Mrs. Simpson executed mirror-image wills. The assets of the estate were divided equally among seven children and one child was specifically excluded, in the event that both spouses were deceased. Tammy Earnhart was appointed the personal representative of both wills. Julius died on July 28, 2005. Shortly after Julius’s death, on August 3, 2005, Edith executed a durable power of attorney granting Timothy and Tammy joint power. On April 21, 2006, Edith called her attorney, Charles M. “Skip” Mooney, Sr., and advised that she was destroying the original will. On May 8, 2006, Edith executed a will revoking the 2002 will. In the May 8, 2006 will, Edith specifically excluded appellees. She left her entire estate, including over seven hundred acres of farmland, to appellant. She also granted appellant the sole power of attorney. Edith died on April 15, 2010, at the age of eighty-four.
On April 23, 2010, appellant filed a petition to probate the May 8, 2006 will, and to be appointed personal representative according to the terms of the will. He accepted the appointment on the same day. An order admitting the will to probate was entered on April 26, 2010, and a letter of administration was filed on that date. Ap-pellees filed a notice objecting to the probate of the will on June 28, 2010. They contended that the 2006 will was the result of fraud and/or undue influence based on threats made by appellant and the fact that | (.appellant and Edith had a confidential relationship. They also sought to have the 2002 will probated and a personal representative appointed. Appellant denied the material allegations of appellees’ objection in his response filed July 12, 2010. Amendments to the objection were filed on September 1, 2011, and October 24, 2011.
A hearing took place on November 2, 2011. Appellant testified that he was the youngest child of the family; that he never picked cotton on the family farm; that his parents supported him until their deaths; that he had Graves’ disease; and that at one time he hated Tammy. He stated that Tammy visited Edith on major holidays, but that she never came back after 2005. He said that Phyllis visited Edith after 2005. Appellant denied breaking Edith’s windshield because he was upset that he and Tammy were jointly granted power of attorney. He also denied making statements to Edith threatening Tammy’s life. Appellant stated that Edith was angry with Tammy, Dennis, and Bennie because they tried to have him locked up. Appellant testified that he fired a shotgun inside the house, striking a television, during a suicide attempt. He also stated that he destroyed the refrigerator with his bare hands, and buried a freezer in the yard. However, he denied shooting out a window in the house. According to appellant, this all took place in January 2006, and Edith was home at the time. Appellant admitted that on February 3, 2006, he took approximately fifty pills and then attempted to drive to Walnut Ridge with Edith in the vehicle. He wrecked the car and was subsequently arrested for driving while intoxicated (DWI). Following his arrest, appellant was placed in Mid-South Health Systems’ Crisis Unit for substance abuse and mental health diagnosis/treatment.
^Appellant testified that Tammy introduced him to marijuana when he was only nine years old. He denied making a statement to his counselor that he was introduced to drugs at age ten by one of his older brothers. He stated that when he told the counselor at Mid-South that marijuana and alcohol were his drugs of choice and that he spent his days drinking until he passed out, he was speaking about the past. Appellant said that he told his counselor that everyone was scared of him on July 6, 2006. He admitted that he told his counselor on July 27, 2006, that he had awakened with blood on his face and thought that he had killed someone. He also stated that he told his counselor on August 11, 2006, that his mother had recently taken everyone out of her will except him. He, however, denied telling his counselor that he was glad that he had “screwed” appellees out of everything. He contended that he did not do anything to cause Edith to change her will in his favor. Appellant testified that he did not learn about changes to Edith’s will until the summer. He opined that appellees did not love Edith and that they hated their father. Appellant admitted that he told Edith that Tammy physically abused him when he was younger, including trying to smother him, but he insisted that he made this disclosure over twenty years ago. According to appellant, Edith did not trust Tammy after 2006.
On cross-examination, appellant stated that he did not remember his parents being angry with any of his siblings, with the exception of Bobby. He testified that none of his siblings came and helped Edith around the house after their father died. Appellant stated that he never discussed business with his mother; however, he said that she did ask his input during the last couple years of her life. He testified that despite Edith’s physical problems, she had |sa pretty good memory. He denied ever seeing her delusional. Appellant stated the Edith was not afraid of him and that he never hurt her. He denied ever threatening the appellees to their face. He testified that he never locked the ap-pellees out of Edith’s house.
On redirect, appellant admitted that he worried Edith, but he denied ever physically hurting her or putting her in danger. He stated that he had a problem with profanity and would use it around Edith, but that he did not direct it toward her.
Kay Simpson, Bennie’s wife, testified that Bennie was very close to his parents. According to Kay, they visited Edith’s farm about three times a week. She also stated that Bennie performed chores for his parents, including putting in a new door and working on the hot-water heater. She said that Bennie added a garage and a bathroom to the house in 2005. She testified that they visited the Simpsons on every major holiday. However, Kay said that all changed around Christmas 2005. She said that, around Christmas 2005 she removed a blanket from a television that had been shot. According to Kay, a window in the den had also been shot before. Kay testified that Edith called her on March 6, 2006, and told her that they were not to come back until appellant settled down. Kay stated that they went over to Edith’s that day and that Edith was acting nervous and trying to make sure appellant was not coming around. She said that she continued to call Edith and ask if they could come visit, to which Edith would reply that she did not know. Kay stated that she went into Edith’s house after appellant was arrested and that the house was “a mess.” She testified that, while over | (¡there, Edith told Bennie that her estate “will be divided equally between all kids.” Kay stated that she did not know how the conversation came up. Kay also stated that she had heard Edith say in the past that she would not leave everything to one child. She said that when they left Edith’s house, Bennie removed the firearms. She stated that Edith came to their house in August 2006 to retrieve the guns. She said that Bennie turned the guns over to Edith when she stated that she did not know what appellant would do. Kay stated that Edith returned in September 2006 to retrieve a gun that had not been returned in August. She said that they went to take some turnips to Edith, but Edith met them outside in the cold. Kay testified that when she would call Edith after March 2006, Edith would be “mumbly.”
On cross-examination, Kay stated that she had not personally heard appellant threaten her or Bennie. She also said that appellant never personally told her or Bennie that they could not come to Edith’s house. She testified that she did not really have any direct contact with Edith ex cept for the two times Edith came to retrieve the guns after March 2006. She said that all of the appellees gathered at her home after the will was read to discuss it.
Bennie testified that he grew up working on his parents’ farm. He stated that after he moved, he visited them about three times a week. He said that he worked on his parents’ doors, water heater, and wiring. Bennie stated that he had a good relationship with his parents and that Tammy did, too. He said that he really did not have a relationship with appellant because every time they would go over there, appellant would either go outside or to his room. Bennie said that Edith told him that appellant had destroyed the icebox, deep freezer, and microwave. He stated that Edith admitted that appellant had shot out a window |7in the house. According to Bennie, Edith also told him that appellant knocked out her car window with his fist after she initially told everyone that a rock had damaged the vehicle. Bennie stated that Edith never told him that appellant had threatened anyone. He said that he went to Edith’s house a couple of times after the March 2006 telephone call. He stated that he initially went the day of the call and that Edith was “fidgeting and looking back toward the living room ... afraid Tim was going to come out.” He said that they stayed a few minutes and then left. He testified that he did not know why he did not do anything to ensure Edith’s safety.
On cross-examination, Bennie stated that he was not afraid of appellant and that appellant never threatened him personally. He also stated that appellant never told him not to come back over to the house.
Phyllis testified that she had a fair relationship with her parents. She stated that she also worked on the farm while growing up. She said that she made most holidays before 2005. Phyllis stated that she visited Edith on and off after her father died until it got to the point that she could not tolerate appellant’s language around Edith. She said that appellant would use profanity, talk about sex, and call Edith ugly. She stated that she would ask appellant not to talk that way in front of Edith and that he would put his hand on Phyllis’s forehead. According to Phyllis, she quit going around until Edith got very sick.
On cross-examination, Phyllis stated that Edith would tell her not to worry about what appellant was saying because he would calm down. She said appellant continued to live at home with Edith until Edith’s death. She testified that appellant and Edith spent two | ¿¡Christmas Eves at her house. She agreed that prior to getting together to discuss the will, she and her siblings had not all been together since Christmas 2005. Phyllis stated that she was not afraid of appellant. She also stated that appellant never personally threatened her or told her directly or indirectly not to come to Edith’s house.
Upon questioning by the court, Phyllis stated that at some point she became concerned about Edith’s safety. She said that right after her father died, when she visited, Edith showed her bruises, cried, and said that she wished she was dead. She stated that appellant was outside or in his room when Edith showed the bruises. She admitted that she did not do anything to ensure Edith’s safety.
Wendy McFall testified that she worked at Mid-South for five years beginning in May 2006. She stated that appellant was assigned to her for therapy purposes. However, she also stated that she did not remember any of her conversations with appellant. During her testimony, counseling records were admitted into evidence. Notes from February 14, 2006, stated that appellant threatened Edith before he could be discharged from the hospital and that he also threatened to destroy the new television Edith purchased for him. On February 15, 2006, appellant said that he did not recall threatening his family. He stated that he did not remember threatening Edith in the notes of February 16, 2006. Appellant also stated that he was angry with Tammy because she introduced him to drugs at a young age. On February 17, 2006, appellant admitted that he broke a television and a window and that he punched out a windshield. On July 6, 2006, appellant stated that everyone was afraid of him and that he could not “find a fight” anymore. He also stated that he should have been in the military 19so that he could “kill and fight people.” On August 8, 2006, appellant admitted sneaking drinks and drugs within the past two weeks. According to the record, he seemed remorseful because the drugs and alcohol made him “verbally and physically aggressive” and made him do and say things he would not ordinarily do. Between August 10-11, 2006, appellant stated that Edith had recently taken everyone out of her will except him. The record states that appellant became “verbally aggressive in the way he told about his family and how he was glad he ‘screwed’ them out of everything.” On August 16, 2006, after stating that he lies to “you people” all the time, appellant quit treatment.
Victoria Harris testified that she was Kay and Bennie’s daughter. She stated that she had a close relationship with Edith and that they visited her frequently. She said that she never went back to Edith’s house after she learned that they were not welcome there.
Dennis testified that he visited his parents yearly during the holidays. He said that the last time he was in Edith’s house was Christmas 2005. He testified that he never saw Edith’s house torn up during the times he visited. Dennis stated that he had a good relationship with his parents before his father died. He also said that he was on good terms with Edith through February 2006.
Larry Earnhart, Tammy’s husband, testified that he married Tammy in 2002. According to Larry, at that time Tammy and Edith had what seemed to be a very close relationship. He said that Tammy and Edith talked on the phone almost daily. Larry stated that he and Tammy went to Edith’s house on February 3, 2006, after appellant was arrested. He said that Edith was nervous and wanted to leave the house, so they took her home with Imthem for a couple of nights. Larry testified that while he was at Edith’s, he noticed that the television had been shot, that appellees’ pictures were missing from the wall, and that there was blood on the carpet. He stated that Edith told him that the blood was from appellant tearing up the refrigerator with his hands. He said that prior to February 2006, he had seen two bullet holes in the den window. Larry stated that he and Tammy visited Edith on Sundays and that Bennie, Kay, and Dennis and his family would also be there. He said that they had a “normal family situation” until the father died. He stated that Tammy was usually the one who took her parents to doctor appointments. He testified that they did not go back to Edith’s house after March 2006.
On cross-examination, Larry stated that he thought appellant was potentially dangerous. However, he said that appellant had never personally threatened him, assaulted him, cursed him, or told him that he was not welcome at Edith’s house. Larry testified that Edith “obviously knew that [appellant] had some mental issues.”
Tammy testified that she moved back to Arkansas in 1999, after leaving home in 1987. She said that she lived in California and in Kansas City before returning to Arkansas. She stated that she and Edith wrote to each other because making long-distance phone calls were expensive. She testified that even when she lived out of state, she came home three or four times a year for different holidays. She said that in 1997 or 1998, appellant and her parents visited her in Kansas City. Tammy stated that despite being out of state in 1996, she planned and implemented a fiftieth wedding anniversary party for her parents. She testified that she did not work for a year when she came back but that she was still getting paid from previous 11 ¶ self-employment. She said that she dedicated this year to spending time with her parents. Tammy said that her contact with appellant during that time was very limited. She stated that between 1999-2006 she was at her parents’ house at least once a week. She testified that her parents asked her to do their FY1999 income tax return and that she continued to do the returns through FY2004. She opined that her parents trusted her. Tammy said that her parents told her in 2002 that they had made a will but that they did not tell her the contents of that will. She stated that she learned of the will when her father asked her to be the executor of the will. Tammy testified that before she left home in 1987, she babysat appellant because her parents still had a cattle farm. She said that she never tried to kill appellant or smother him with a pillow. She also denied introducing appellant to marijuana or ever smoking the drug with him. Tammy stated that she received a call from Edith around 2008 stating that appellant had told Edith that Tammy had made him smoke marijuana and had broken his arm. She said that Edith also said other things but she could not remember everything. She testified that she and Edith still got along well in 2006. She stated that Edith confided in her that she could no longer live at home and that she wanted appellant to get some help. She said that Edith told her about appellant’s threats against her, Bennie, and Dennis in early March. Tammy testified that while appellant was in the hospital, she and Dennis went to the prosecutor to try to do something about appellant. She said that they were informed that Edith would have to sign a petition to get appellant committed. According to Tammy, Edith agreed to sign the petition but later declined. Tammy stated that appellant never confronted her about the situation but that he did confront Edith.
112Tammy testified that after Christmas 2005, Edith started making excuses for them not to come over. She said that when she went to Edith’s house after appellant was arrested, she noticed glass against the edge of the carpet from where appellant had busted all of the appellees’ senior class pictures with his fist. She also noticed that there was blood on the carpet and that the television and deep freezer were missing. She stated that Edith told her appellant shot the deep freezer, dragged it out of the house, and buried it. Tammy testified that she also saw bullet holes in the window and in Edith’s television. She said that while appellant was in the hospital, she overheard appellant cursing Edith or at Edith when they left the room. She stated that appellant would shut up as soon as someone walked in. Tammy said that Edith seemed happier when appellant was at Mid-South and that she was not nearly as nervous. Tammy testified that she did not know anything Bennie, Dennis, or she did to make Edith take them out of the will. She said that in less than a week following her father’s death, Edith jointly granted power of attorney to appellant and Tammy. In May 2006, Edith revoked Tammy’s power and granted appellant sole power of attorney. Both instruments were admitted into evidence over appellant’s objections. The court stated that they were not being admitted to show undue influence, but to show that Edith changed her mind during this period of time.
Tammy stated that when she met Edith and appellant at Mooney’s office in August 2005, appellant acted upset, his face was red, and he was “kind of agitated.” She said that a couple of days later she saw damage to Edith’s driver’s side window. She stated that Edith told her that a rock had damaged the window but Tammy stated that she could tell that it had babeen knocked out from the inside. Tammy said that in February 2006 Edith told her that appellant had punched the window after they left Mooney’s office. She stated that, until March 2006, she never knew that appellant did not like her. She opined that appellant wanted to get the children closest to their parents “out of the picture.” Tammy stated that she saw Edith four times after the March 2006 telephone call. She said that they still talked on the telephone and that Edith told her “not yet” when she asked if she could come to the house. She testified that in September 2008, Edith called her for the “original paperwork on all the land documents” because Edith - said appellant wanted them back. Tammy testified that the fact that she could no longer go to Edith’s house was evidence enough that appellant was controlling Edith. She said that if she called Edith when appellant was around, Edith would whisper. However, she stated that if Edith called and appellant was not around, Edith could easily be heard. She testified that her phone contacts with Edith lessened after March 2006. Tammy said that Edith was not mentally incompetent. She denied telling Edith that she wanted appellant dead. She stated that on a scale from one to ten, her relationship with Edith was a ten. Tammy testified that she learned in March 2006 that she would not be doing Edith’s tax returns. She said that she invited Edith to her house each Christmas but that Edith declined to come. She also stated that Edith told her that appellant said that she stole money from her father’s wallet. According to Tammy, ten years ago she overheard her parents state that their estate was going to be divided equally.
On cross-examination, Tammy stated that appellant was the only one left at home when she left. She said that she did not come around much until she moved back in 1999. |14She stated that Edith had some physical problems but those problems did not prevent her “from carrying on her life.” She testified that appellant returned home once he was discharged from Mid-South and the hospital. She stated that appellant was “the baby” and “had everything given to him.” She admitted that appellant never physically assaulted her, threatened her, cursed her, or had an altercation with her. She testified that no one got together to celebrate Edith’s eightieth birthday. She stated that 2010 was the first time all of the appellees were together since Christmas 2005. She said that Edith was intimidated by appellant but that Edith never tried to leave home or have someone remove appellant from the house. She stated that she never had a conversation with appellant about being allowed to come back to the house.
On redirect, Tammy stated that she was afraid of appellant after she saw the state of Edith’s house in February 2006. She said that Edith was not afraid for her own safety, but for the safety of everyone else. She testified that Edith could not talk on the phone when appellant was around.
Richard Cox, Phyllis’s husband, testified that he witnessed appellant making sexual, inappropriate statements to Edith. He said that Edith usually did not respond to appellant. He stated that every time they were around, appellant’s inappropriate language would start “sooner or later.” Richard said that he usually visited Edith’s house once or twice a year with Phyllis. He stated that he saw bruises on Edith, but Edith would always tell them that she fell.
Mooney testified that he was familiar with the elder Simpsons and that they were a very family-oriented couple. According to Mooney, he first met them in 1975 when they [^wished to have all of their real estate placed in both of their names. He stated that as they grew older, most of their contact with him was over the phone. He said that when they did come to his office, they were usually with Tammy. He testified that the last time he saw Edith was in 2006 when she created the will at issue. Mooney stated that Edith was concerned in her advanced age about being placed in a nursing home. She told Mooney that appellant was taking care of her and that in return, she wanted to make sure that he was properly taken care of. He said that Edith finally decided to remove everyone from her will except appellant. Mooney testified that he never had a conversation with appellant prior to the execution of the May 2006 will. He said that Edith called him about changing her will and made arrangements to come to his office on a Monday. He stated that Edith came in as scheduled but that he did not specifically remember being in the room when the will was executed. He said that he was in a “very difficult automobile accident” the following Saturday, but that he had no memory of the accident. According to Mooney, he could remember things that happened before the accident, but he said that he believed his memory was impaired to some extent about events that occurred before that time. Mooney opined that Edith had the ability to execute the will in 2006.
On cross-examination, Mooney stated that Edith began calling him in April 2006 about making changes to her will. He said that he did not know that appellant was a drug addict at the time Edith was discussing changes to the will. He stated that he also had no knowledge about appellant shooting things in the house, being in Mid-South, or making threats. He said that had these facts been known, he would have spent more time with Edith. | ^Mooney stated that he was unsure whether appellant was present when Edith called him about changing her will.
Robert McNeal testified that he began preparing the Simpsons’ taxes in 1988. He stated that at some point, Julius got angry about something and they stopped using his services. He said that Edith returned to him in 2006 and that he continued to prepare her taxes through 2010. He stated that he discussed tax matters with Edith. McNeal testified that Edith was not irrational but that she was “very concerned, and borderline worried, about her and [appellant’s] health.” He stated that Edith never discussed her will with him.
Bobby Davis testified that he was a tenant on the Simpsons’ farm. He stated that appellant was shy and would usually leave the room when he visited the house. He said that he did not notice any fear or apprehension when he visited the farm. He testified that Edith called him to take her to pick up appellant when appellant got discharged. He said that Edith told him appellant was mad at appellees for trying to get him committed. He stated that Edith also told him that appellant gotten into Julius’s medicine and ended up shooting the television. Davis stated that Edith had health problems but that he never saw her delusional or irrational. He said that Julius explained to him the circumstances that led to one of the Simpsons’ sons being cut out of the 2002 will. He stated that Edith’s house was always locked and the blinds were always down. He said that Edith told him that appellant did not want any of the appellees over there. Davis stated that after Edith’s death, appellant still did not want appel-lees to come see him because “he had a grudge against them.”
|17On cross-examination, Davis stated that you could tell that Tammy had a good relationship with her parents. He said that after the February 3, 2006 incident, Edith was not afraid for herself but that she may have been afraid for her other children. He said that the shade-pulling and door-locking got worse after Julius died. Davis stated that Edith told him that appellant had shot the refrigerator, stove, and television. He said that appellant told him in the past year that Edith left everything to appellant.
On redirect, Davis stated that he never noticed any bruising on Edith. He also said that Edith never told him that she wanted to leave the house she shared with appellant. According to Davis, Edith told him that appellees wanted appellant admitted to a mental facility for evaluation, but Edith did not want to do that.
The deposition testimony of Dr. Bran-non Treece was admitted into evidence. On direct, Dr. Treece stated that he first began treating Edith in November 2007. He stated that she was always “well kept.” He said that appellant brought her to appointments and also called about her prescriptions. According to Dr. Treece, Edith was “good, mentally,” and she was rational. He opined that appellant had a good relationship with Edith. He stated that he did not think that Edith was concerned for her safety, and she did not discuss any fears with him. He said that Edith never discussed her will with him. Dr. Treece stated that appellant informed him that appellant was taking care of Edith; however, he said that appellant never discussed Edith’s will with him before Edith died.
On cross-examination, Dr. Treece stated that he began treating appellant in the fall of 2007. He said that he was unaware that appellant had been admitted to the hospital for an |18overdose in February 2006. He testified that appellant did discuss Edith’s will following her death. He stated that he recommended anger counseling for appellant in December 2010 because appellant’s “tone of speech just seemed to be more pressured” when he discussed the dispute over the will. Dr. Treece said that appellant never sought anger counseling to his knowledge. He stated that Edith had a number of illnesses, including diabetes, osteoporosis, high blood pressure, renal cancer, high cholesterol, anemia, and chronic back pain. He also stated that she took a number of medications throughout the years for these conditions. According to Dr. Treece, medical records for Edith revealed that she presented to her doctor on February 7, 2006, not feeling well and under a lot of stress because one of her sons “developed some acute mental status changes and was admitted to the hospital.” He testified that a February 10, 2006 MRI revealed age-related changes but that the MRI did not reveal one’s mental capacity. Dr. Treece testified that Edith suffered a number of falls throughout the years as was documented by her medical records. He stated that appellant was in the treatment room with Edith ninety-percent of the time.
On redirect, Dr. Treece stated that he had not observed any behavioral problems with appellant. He said that appellant never did anything out of place in his office or in his presence. He admitted to hearing appellant curse but stated that it was not directed toward him. He opined that Edith’s physical problems and medications did not affect her ability to make rational decisions.
On recross, Dr. Treece acknowledged that the changes identified in Edith’s February 2006 MRI “could weaken your reserve.” He testified that appellant used curse words to |19describe the will-contest situation. However, he stated that appellant’s language was not directed at “anyone or anything like that.” He described it as frustration.
At the conclusion of the hearing, the court took the matter under advisement. It issued a letter opinion on August 8, 2012, setting the May 2006 will aside due to undue influence. An order was filed on September 5, 2012. The court found that Edith had the mental capacity to execute the May 2006 will. In its analysis of the issue of undue influence, the court stated in pertinent part:
There is no direct evidence that Tim exerted “control over the mind” of Edith Simpson causing her to draft a new Will leaving everything to him however,
In Hyett [sic] v. Wroten,[ ] the Court stated,
“Undue influence is generally difficult of direct proof. It is generally exercised in secret, not openly, and like a snake crawling upon a rock it leaves no track behind it, but its sinister and insidious effect must be determined from the facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence and the opportunity, of the beneficiary of the influenced bequest to mold the mind of the testator to suit his or her purposes.” (Emphasis added.)
Hyett [sic] v. Wroten, is applicable to the facts in this case. Though there is no direct proof that Tim unduly influenced Edith Smith [sic] to draft the Will, there is an overwhelming amount of circumstantial evidence that Tim exerted undue influence. He frightened and bullied and manipulated her to the extent that she refused to let her children visit or to visit them, she endured tirades of anger and gun fire and then tried to make excuses for Tim, she changed accountants at Tim’s request. Though she agreed for Bennie to take all guns out of the house after Tim shot the household items and "window, and threatened to shoot himself at the therapist’s office, she went back in August and retrieved the guns at Tim’s insistence, stating, she was afraid of what he would do if she didn’t get the guns. According to the Therapist’s notes, Tim was still fusing in April and May the same month the new Will was signed. On several visits his eyes were bloodshot. On the August 3rd visit he admitted sneaking drugs/alcohol during the prior two weeks and he was laughing about screwing his brothers and sisters out of the Will.
After December, 2005, Ms. Simpson, based her actions on fear of what Tim would do or had said. Even Edith Simpson’s new doctor stated that at her age, with her medical problems her “resolve” was likely weakened.
February 7, 2006. Three months before her Will change her doctor noted, (emphasis added) patient weak, falling, not eating well, patient reports a lot of stress in her house due to her son devel oping acute mental status changes and being admitted to hospital. Put on Lex-apro for depression. Ms. Simpson’s medical problems continued to worsen throughout her life, though their relevance is that prior to May, 2006 when she executed a new Will.
Ms. Simpson had enjoyed having her family over for the Holidays throughout the years. It was Dennis, Bennie and Tammy and their children who were closet [sic] to Ms. Simpson and who did the most for her until Tim’s tirades with a gun in December, 2005 and January and February, 2006 and his threats to harm the other siblings. Prior to his father’s death Tim was fully supported by his parents and in his 30’s living at home, yet he allowed the other children to care for his aging parents. Tammy testified that even when she did not live in Arkansas she spoke with Ms. Simpson on the telephone almost daily. Even though Tim lived here with his parents and Tammy was living out of state, it was Tammy who planned and threw a 50th wedding anniversary for her parents including invitations, refreshments etc....
She then moved back to Arkansas to take care of her parents, which she did, including taking them to doctor visits, staying with them after surgery, cooking, working in their garden, working in her mother’s flower beds. In contrast, during this time period, Tim appears to have helped his parents very little....
This Court believes that Tim exercised a “positive dictation and control” over the mind of Edith Simpson. For example, Ms. Simpson told Kay and Bennie not to come over until Tim calmed down, it is evident that her actions were based on Tim’s request, not her desires.
|?jWhen Ms. Simpson told Tammy and her family not to come over-she stated it was because Tim threatened to kill Tammy. Therefore, this action was based on fear induced by Tim and Tim’s request, not her will.
Tammy and others testified that after January, 2006, Ms. Simpson whispered on the telephone to them, so Tim would not know she was talking to them.
Ms. Simpson stated she stopped using Tammy to prepare her taxes because Tim asked her to. She changed accountants even though no errors were found in the years Tammy prepared them. She changed accountants because Tim told her to.
Ms. Simpson also changed doctors after her other children were excluded from her home and she and Tim started to see the same doctor around 2007.
In this instance, Tim Simpson isolated Edith Simpson the same way a domestic abuser isolates his wife from friends and family; the same way one who enslaves or brain washes another human being does; and the same way a cult separates it’s [sic] members from family and friends. Edith was approximately (79) years of age when Mr. Simpson died. She was a diabetic, suffered from renal cancer, had a kidney removed, suffered from multiple fractures in the spine and severe osteoporosis. She later suffered anemic episodes requiring blood transfusions. She was taking numerous medications including pain killers. She was frightened by Tim’s drug use/abuse and his tirades of shooting up the house and threatening family as evidenced when she called her nephew and was afraid to stay home for two nights after the shooting and [DWI] incidents. This was also evidenced by Edith’s statements to both the mental health professionals and to her other children regarding Tim’s threats. Tim made a believer out of Edith Simpson by exhibiting his anger, and violence, and by telling her lies regarding the others, particularly Tammy. Tim told Edith Simpson and a therapist that Tammy introduced him to using drugs, that she broke his arm, that she tried to smother him, and physically abused him. Tammy vehemently denied all these allegations. There is no evidence any of this occurred other than Tim’s statement. The Court found Tammy’s testimony to be more credible than his. “Cases involving undue influence will frequently depend on the credibility of witnesses,” Higgs v. Estate of Higgs [ ] and Pyle v. Sayers,
In this case Tim is not credible. He even told his therapist that, he lied to them all the time.... Furthermore, Tim contradicted himself throughout his therapy sessions. For example, he claimed in one session he never threatened his siblings or his mother, then 122later he states that if he did threaten his mother he doesn’t remember it. He stated that Tammy introduced him to drugs at age (10), then later he stated his brother was the one who introduced him to drugs, he later said he was (9) years old when he started using. Tim was so untruthful that he attempted to water his drug test.
Tim Simpson slowly gained control over Edith Simpson by scaring her with his tirades, by telling her lies about his siblings, by isolating her from her family, by stealing her medications, eventually getting her to stop using Tammy for accounting work. She was so afraid of Tim that she didn’t want him to know she was talking to his siblings on the telephone.
However, the single most telling piece of evidence in this trial was Tim Simpson’s statement to his Therapist that his mother had changed her Will, leaving everything to him. The therapist’s notes state, “Client was becoming verbally aggressive in the way he told about his family and how he was glad he screwed them out of everything.” Webster’s New World Dictionary, 3rd Edition defines “screw” as to practice extortion on; to cheat, to swindle, to treat unfairly. Tim would not have made such a statement if the Will change was Edith’s idea and free will. He basically admitted what he had done. Edith was elderly, on medications, her resolve was weakened, and after his arrest, she stated she didn’t care if she lived anymore.
Though there is no direct evidence that Tim Simpson procured the Will, there is plenty of evidence that he slowly and methodically exerted control and undue influence over her causing her to exclude her other children, including the children who had helped her to most and whom she had been closest to prior to Tim’s supposedly drug induced fits and ultimate control. Just as a murder case does not require direct proof, neither does undue influence.
As for the burden of proof in this case, the court stated:
In this particular case, as relates to the burden of proof, it does not matter whether Tim procured the Will or whether he was in a confidential relationship or whether the burden shifted, as this Court finds that the opponents of the Will have met their burden of proving that Tim Simpson exercised undue influence over the mind of Edith Simpson causing her to change her Will and leave him (700) acres of prime farmland and approximately $900,000.00 to the exclusion of those children she was closest to.
his evidence of undue influence was not met, overcome or rebutted by the proponents of the Will. The only evidence they produced to that effect, was Tim’s ^testimony which this Court did not find to be credible, and Skip Mooney’s testimony regarding the telephone conversation with Edith, regarding why she wanted to change the Will.
The court concluded that appellant’s admission that he screwed appellees out of everything; coupled with appellant’s drug use, lies and violent bursts directed toward or in front of his elderly and ill mother; along with Edith’s statements regarding her fear of what appellant might do if she did not comply with his directives and her need for anti-depressants two to three months before the will was changed “painted a picture of an elderly, sick frightened woman, who complied with what ever [appellant] wanted in order to avoid further tension and outbursts and possible harm to her other children or [appellant] hurting himself.” The court set aside the May 8, 2006 will and denied probate because it found that the will was the product of undue influence exercised by appellant. Appellant filed a post-trial motion to vacate. The court did not act on the motion. Appellant filed his notice of appeal on October 29, 2012. This appeal followed.
Appellant argues that the trial court erred by setting aside the May 8, 2006 will because there was no direct or presumptive undue influence. More spe-cifically, appellant argues (1) that he had no direct influence over the will’s production or execution, and (2) that he neither procured the will nor was he in a confidential relationship with his mother.
We review probate proceedings de novo; however, we will not reverse the circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence, giving due deference to the superior position of the trial judge to determine the | ¡^credibility of the witnesses and the weight to be accorded their testimony. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with a firm conviction that a mistake has been committed.
It has long been the law in Arkansas that a party challenging the validity of a will must typically prove by a preponderance of the evidence that the testator lacked the requisite mental capacity or that the testator was the victim of undue influence when the will was executed. The questions of undue influence and mental capacity are so closely interwoven that they can be considered together. The influence that the law condemns is not the legitimate influence that springs from natural affection, but the malign influence that results from fear, coercion, or any other cause that deprives the individual of her free agency. Undue influence may be inferred from the facts and circumstances of a case. Cases involving undue influence will frequently depend on ■witness credibility. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in her memory, without prompting, the extent and condition of her properly, and to comprehend how she is disposing 125of it, and to whom, and upon what consideration, then she possesses sufficient mental capacity to execute such instrument. Where the mind of the testatrix is strong and alert, the facts constituting undue influence must be stronger than where the mind of the testatrix is impaired either by some inherent defect or by the consequences of disease or advancing age. The influence of children over parents is legitimate so long as they do not extend a positive dictation and control over the mind of the testatrix.
There are certain circumstances that will cause the burden of proving undue influence to shift to the proponents of a will. One example of this is where a beneficiary procures the will. Procurement of a will requires actual drafting of the will for the testator or planning the testator’s will and causing him to execute it. Procurement shifts the burden to the proponent of the will to show beyond a reasonable doubt that the will was not the result of undue influence and that the testator had the mental capacity to make the will. The existence of a confidential relationship between a primary beneficiary and a testator gives rise to a rebuttable presumption of undue influence. If a confidential relationship exists, the beneficiary and proponent of the will is required to prove by a preponderance of the evidence | Mthat he did not take advantage of the relationship such that the will was the product of undue influence and not the result of the testator’s own volition. Whether two individuals have a confidential relationship is a question of fact.
Here, the trial court found that Edith probably had the requisite mental capacity to execute a will and that there was no direct evidence that appellant exerted control over Edith’s mind causing her to draft a new will leaving everything to him. However, relying on the supreme court in Hyatt v. Wroten, the court acknowledged that undue influence is difficult of direct proof because it is usually exercised in secret. The court considered all of the testimony and evidence and concluded that Edith’s 2006 will was the result of undue influence. In making this determination, the court stated that regardless of whether appellant procured the will or was in a confidential relationship with Edith, appel-lees met their burden and appellant did not overcome their proof. Additionally, the court found that appellant was not credible. From our review of the evidence, we cannot say that the court’s finding that appellant exerted undue influence over Edith is clearly erroneous. Accordingly, we affirm.
Affirmed.
GLADWIN, C.J., and WOOD, J., agree.
. The order lists the date of the will as May 8, 2010, but it is clear that the will set aside was created in 2006.
. This is the second time this case has been before us. We originally ordered rebriefing due to deficiencies in appellant’s abstract and brief. See Simpson v. Simpson, 2013 Ark. App. 581, 2013 WL 5592611.
. Bobby Charles Simpson, Phyllis Ann Cox, Stephen Earl Simpson, Benjamin (Bennie) Keith Simpson, Dennis Mark Simpson, Tammy Simpson Goff (now Earnhart), and Timothy Roger Simpson. With the exception of Timothy, these children are the appellees in this action.
.Julius Ralph Simpson, Jr. There is no evidence explaining why only eight children are specifically listed in the will although the Simpsons had nine children.
. There are places in the record where he is referred to as "Benny” and "Bennie.” For purposes of this opinion, he will be referred to as "Bennie.”
. This is the same date appellant pleaded no contest to DWI.
. Hyatt v. Wroten, 184 Ark. 847, 43 S.W.2d 726 (1931).
. 48 Ark.App. 148, 892 S.W.2d 284 (1995).
. 344 Ark. 354, 39 S.W.3d 774 (2001).
. Pyle, supra.
. Wilson v. Lindvall, 2013 Ark. App. 364, 428 S.W.3d 532.
. Id.
. Hooten v. Jensen, 94 Ark.App. 130, 227 S.W.3d 431 (2006).
. Id.
. Id.
. Pyle, supra.
. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).
. Pyle, supra.
. Id.
. Bell v. Hutchins, 100 Ark.App. 308, 268 S.W.3d 358 (2007).
. Id.
. Medlock v. Mitchell, 95 Ark.App. 132, 234 S.W.3d 901 (2006).
. Id.
. Id.
. Supra. To the extent that appellant attempts to distinguish this case from Hyatt, we find his distinguishment unavailing and without merit. | [
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COURTNEY HUDSON GOODSON, Justice.
[,A jury in Greene County Circuit Court found appellant Jerry Lard guilty of capital murder, attempted capital murder, and possession of a controlled substance (methamphetamine), for which he received consecutive sentences of death, life, and ten years in prison, respectively. For reversal, Lard contends that the circuit court erred (1) by allowing the State to present evidence of bad acts and bad character; (2) by permitting repeated showings of the dash-camera videos depicting the crimes as they took place; (3) by failing to sequester victim-impact witnesses during the guilt phase of trial in violation of Rule 615 of the Arkansas Rules of Evidence; (4) by allowing the State to make improper remarks during closing arguments in both phases of trial; and (5) in denying Lard’s motion to prohibit the State from seeking or imposing the death penalty, as well as permitting death qualification of the jury. Jurisdiction is properly in this court pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We find no reversible error and affirm Lard’s convictions and sentences.
|2I. Factual Background
The prosecuting attorney in Poinsett County charged Lard by felony information with the above-referenced offenses following a shooting that occurred in Tru-mann, Arkansas, during a traffic stop. The facts underlying the charges are not in question, as the events in large part were captured by the dash cameras and audio equipment of the two police officers involved in the incident. This evidence reveals that, late in the evening on April 12, 2011, Officer Jonathan Schmidt of the Trumann Police Department initiated a stop of a vehicle driven by Brian Keith Elumbaugh. April Swanner, Elumbaugh’s girlfriend, owned the vehicle and was sitting next to him in the front passenger seat. Another occupant of the vehicle, Nikki Pierce, sat in the back seat behind Elumbaugh. Lard also sat in the back but behind Swanner. Officer Schmidt ran a check on Elumbaugh’s driver’s license and learned that his license had been suspended and that there was an outstanding warrant for his arrest. Officer Schmidt asked Elumbaugh to exit the vehicle, and he placed Elumbaugh under arrest based on the warrant. At this point, Sergeant Corey Overstreet of the Trumann Police Department arrived in his cruiser to provide assistance during the stop. While Elum-baugh stood to the side in handcuffs, Officer Schmidt asked Pierce to exit the vehicle because he believed that she, too, might have had a warrant for her arrest. Officer Schmidt then leaned into the back ladoor where Pierce had been sitting and asked Lard for his name and date of birth. Upon learning Lard’s information, Officer Schmidt relayed it to the dispatcher, who advised that arrest warrants had been issued for Lard. Officer Schmidt then walked around the back of Swanner’s vehicle to the door where Lard was sitting. When Officer Schmidt opened the door, Lard stuck out his arm and shot Officer Schmidt in the chin with a .25-caliber pistol. Schmidt ran away from the car, and Lard quickly exited the vehicle, turned, and began firing at Sergeant Overstreet. Lard continued shooting as the officers scrambled for cover. Eventually, the officers met in front of Officer Schmidt’s cruiser. Officer Schmidt dropped his .40-caliber Smith and Wesson Clock handgun, which he picked up but dropped again. Lard followed as the officers moved toward the rear of Officer Schmidt’s vehicle on the passenger side. Sergeant Over-street managed to return to his cruiser, but Officer Schmidt, who was wounded, remained beside his patrol car. As Lard approached Officer Schmidt, Lard exclaimed, “What you got now, what you got, bitch? Huh? What you got, bitch?” More gunshots were fired, and Lard again shouted, “What you got, bitch?” At this juncture, Officer Schmidt pleaded, “I’m down. I’m down. Please don’t shoot me again.” Additional gunshots rang out, and Lard again asked, “What the fuck you got?” The final words heard on the recording were Officer Schmidt’s, when he begged, “Please don’t shoot me again.”
Moments later, Sergeant Overstreet shot Lard in the back as he attempted to leave the area. Where Lard fell, officers recovered Lard’s .25-caliber pistol and Officer Schmidt’s .40-caliber handgun. Neither weapon contained any remaining ammunition. Officers also discovered that Lard had .8154 grams of methamphetamine in his pocket. Subsequent testing |4revealed that Lard had a low level of that substance in his system near the time of the incident.
Fortunately, Sergeant Overstreet escaped without injury. However, emergency-room personnel at St. Bernard’s Medical Center in Jonesboro pronounced Officer Schmidt dead approximately one hour after the shooting. According to the testimony, Schmidt sustained four gunshot wounds. The most lethal one, fired at a range between several inches and two feet, entered Schmidt’s right cheek adjacent to his nose, and the bullet passed through the right upper jawbone, fracturing the jawbone and teeth in that area. This bullet then traveled through Schmidt’s tongue and lodged in his neck, but not before it completely transected the left common carotid artery. The bullet removed from Schmidt’s neck was consistent with having been fired from a .40-caliber weapon. The gunshot that struck the left side of Schmidt’s chin passed the left jawbone and carotid artery and exited the back of the neck on the left side. Schmidt also received a gunshot to the back of his right wrist. The bullet associated with this wound came to rest in the soft tissue at the base of his right thumb, and it matched forensically to Lard’s pistol. The fourth gunshot caused a non-penetrating wound to the right side of Schmidt’s chest, as a result of a bullet striking his protective vest. The bullet recovered from Schmidt’s vest had been fired from Lard’s pistol.
In his testimony at trial, Elumbaugh stated that, before he exited the vehicle, he heard Lard say, “Looks like tonight’s gonna be the night.” While Lard was shouting and pursuing the officers in front of Officer Schmidt’s vehicle, Elumbaugh saw Lard bend down and pick up something from the ground. Swanner testified that she also heard Lard say “tonight’s the night” when Officer Schmidt first approached the car. She stated that she overheard the [¡¡dispatcher inform Officer Schmidt about the warrants for Lard’s arrest, and she testified that Lard said “here we go” as Schmidt approached Lard’s door. Swanner further testified that she also saw Lard retrieve something from the ground as he stalked the officers around Schmidt’s vehicle. She testified that she heard Lard say “die, motherfucker, die,” as Officer Schmidt was begging for his life.
Lard did not deny that he committed the offenses. As his defense, Lard asserted that he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law as a result of mental disease or defect. As support for this defense, Lard presented expert testimony that he had brain damage, possibly caused by head injuries he received as a child or induced by chronic methamphetamine abuse. Lard also introduced into evidence the re-suits of his PET scan showing mildly decreased activity bilaterally in his mesial lobes. In rebuttal, the State offered the testimony of experts who disputed that Lard suffered from brain damage. As opposed to Lard’s witnesses, the State’s experts concluded that Lard’s behavior was consistent with antisocial personality disorder, not a mental disease or defect.
Upon hearing the evidence, the jury found Lard guilty of the capital murder of Officer Schmidt, attempted capital murder of Sergeant Overstreet, and possession of methamphetamine. Following the sentencing phase of trial, the circuit court sentenced Lard as previously stated in this opinion. Lard now appeals his convictions and sentences.
t¡U. Prior Bad Acts and Character Evidence
As his first point on appeal, Lard contends that the circuit court erred in allowing testimony that disclosed previous bad acts and evidence that reflected poorly on his character. More specifically, he claims error in the admission of testimony revealing that there were warrants for his arrest at the time of the shooting; that he had made threats to harm police officers; that he lacked remorse; that he had prior convictions and arrests; that he had violent propensities; that he had manufactured methamphetamine; and that he had a “Hell Bound” tattoo on his back. The State asserts in response that the circuit court did not abuse its discretion because the evidence possessed independent relevance and was not unfairly prejudicial.
The foundation for Lard’s arguments is Rule 404(b) of the Arkansas Rules of Evidence, 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.
Ark. R. Evid. 404(b) (2013). The first sentence of 404(b) sets out the general rule excluding evidence of a defendant’s prior bad acts, while the second sentence provides an exemplary, but not exhaustive, list of exceptions to that rule. Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). Evidence is not admissible under Rule 404(b) simply to show a prior bad act. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. Rather, the test for admissibility under Rule 404(b) is whether the evidence is independently relevant, which means it must have a |7tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Vance v. State, 2011 Ark. 243, 383 S.W.3d 325.
Pursuant to Rule 403 of the Arkansas Rules of Evidence, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2013). Thus, a trial court may refuse to admit evidence that is unfairly prejudicial to the defendant, even if it might be relevant. Lockhart v. State, 2010 Ark. 278, 367 S.W.3d 530. This court has observed that evidence offered by the State is often likely to be prejudicial to the accused, but the evidence should not be excluded unless the accused can show that it lacks probative value in view of the risk of unfair prejudice. Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55.
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and this court will not reverse absent a showing of manifest abuse of discretion. Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238. Likewise, the balancing mandated by Rule 403 is also a matter left to a circuit court’s sound discretion, and an appellate court will not reverse the circuit court’s ruling absent a showing of manifest abuse. Croy v. State, 2011 Ark. 284, 383 S.W.3d 367. Abuse of discretion 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. Craigg v. State, 2012 Ark. 387, 424 S.W.3d 264, 2012 WL 4829813.
hA. Warrants and Previous Threats
Prior to trial, Lard moved in limine to prohibit the State from offering testimony that warrants for his arrest existed at the time of the incident. He also urged the circuit court to exclude testimony that he had threatened to harm police officers prior to the shooting. Based on the State’s arguments, the circuit court denied Lard’s motion in limine, ruling that the proposed testimony on these subjects was admissible to show motive, intent, plan, and Lard’s state of mind when the shooting occurred. However, the court also ruled that the State could not reveal the charges for which the warrants had been issued.
Pursuant to the circuit court’s decision, the State elicited testimony from Elum-baugh that Lard knew about a warrant for his arrest. Elumbaugh further testified that Lard referred to his gun as a “p-shooter,” meaning “police shooter,” and said that Lard had stated that “if they ever try to come after me, there’s gonna be a war,” and that Lard had warned him “if you ever get pulled over and I’m with you, you better try to get away because I’m gonna be shootin.” He added that Lard made these statements within several months of the incident. In addition, Swanner testified that she had been told that Lard had an outstanding arrest warrant regarding child support. She also testified that Lard advised her that, if he were to be stopped by the police, he “would take half of 'em with him.’ ”
|9When the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. Evidence may be independently relevant if it shows motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Smith v. State, 2010 Ark. 75, 364 S.W.3d 443. Additionally, any evidence that is relevant to explain the act, show a motive, or illustrate the accused’s state of mind, may be independently relevant and admissible. Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006); Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).
The State’s theory in this case was that Lard began shooting at the officers in order to avoid arrest. The evidence produced at trial showed that Officer Schmidt had arrested Elumbaugh based on an outstanding warrant and that he was running checks on the other occupants of the vehicle, including Lard, to determine whether they were wanted as well. Therefore, evidence revealing that Lard had warrants for his arrest and that Lard had knowledge of this fact was independently relevant to establish a motive for his actions. As for Lard’s threats, in order to prove capital murder and attempted capital murder, the State was required to show that Lard acted with premeditation and deliberation. See Ark.Code Ann. § 5-10-101(a)(3) (Supp.2011). Lard’s previous threats to shoot police officers if confronted were thus independently relevant as proof of his intent, plan, and state of mind. We conclude that the testimony concerning warrants and threats was highly probative, not unfairly prejudicial, and was admitted for appropriate purposes under Rule 404(b). Therefore, we hold that the circuit court did not abuse its discretion by allowing the introduction of this | intestimony.
B. Other Bad Acts and Lack of Remorse
The testimony at issue under this sub-point relates to Lard’s defense of mental disease or defect and arose dining the State’s cross-examination of one of Lard’s expert witnesses and during the State’s case in rebuttal. To place these matters in context, it is necessary to recount the pertinent testimony in detail.
Dr. Barry Crown, a neuropsychologist, testified on Lard’s behalf. He conducted a clinical interview of Lard and administered a series of tests to gauge Lard’s intellectual functioning. Crown stated that it was important to obtain basic information about a person during an interview in order to place the test results in context. Crown testified that Lard’s intellectual functioning was impaired. Although Crown stated that Lard was not mentally-retarded, he said that Lard’s full-scale intelligence quotient of 70 met the intellectual criteria for mental retardation, and he placed Lard’s age equivalency at ten years and five months. Crown testified that persons with a low IQ have difficulty “figuring things out” and that it is hard for those individuals to imagine and to think in abstract terms. He further testified that Lard had organic brain damage impacting the bilateral frontotemporal lobe functioning, which led to functional impairments in memory, reasoning, judgment, and language-based critical thinking. He attributed Lard’s deficits either to multiple head trauma with loss of consciousness or to methamphetamine abuse beginning at age seventeen. Crown offered the opinion that Lard’s ability to conform his conduct to the requirements of the law was impaired. In further testimony, Crown said that his testing did not lead him to believe that 1 nLard suffered from antisocial personality disorder. He also testified that it is not appropriate to make that diagnosis when there is evidence of brain damage.
During the State’s cross-examination, Crown acknowledged that Lard attended school through the seventh grade, did not take special-education classes, lived on his own since age sixteen, had a cell phone, sent text messages, took care of his own hygiene, and kept himself fed and clothed. Crown stated that Lard also told him that he had been expelled from three different schools, but Crown was not certain whether Lard revealed that he was kicked out of one school for hitting someone over the head with a metal chair. Crown testified that he was not aware that Lard had lost one job after handcuffing the boss’s son to a scaffold and kicking him off of it. Over Lard’s objection, the State was allowed to ask Crown whether Lard told him that he had manufactured methamphetamine. Crown replied that Lard had not.
The State further questioned Crown about the criteria for diagnosing antisocial personality disorder, as involving a pervasive pattern of disregarding the rights of others occurring since age fifteen, as indicated by three or more behaviors out of a list of seven behavioral categories. Crown stated that Lard recounted a history of fights and aggressive |12behavior; several arrests; numerous thefts, including the theft of a car; intentionally damaging the property of others; starting fires, beginning at age fifteen; cruelty to animals, including setting a cat on fire; and losing jobs as a result of aggressive behavior. Crown acknowledged that Lard met four or five of the criteria for antisocial personality disorder, but Crown maintained that he did not make that diagnosis based on his opinion that Lard had brain damage in the areas that create many of the same symptoms. Crown further testified that Lard had admitted that he was fearful of being arrested because of a warrant for his arrest at the time of the shooting.
Dr. Courtney Rocho, a psychologist, testified for the State in rebuttal. Rocho conducted a forensic interview of Lard, and she stated that she relied on historical information provided by Lard in forming her opinions. Over Lard’s objection, she said that Lard related a history of disciplinary problems in school involving multiple suspensions and expulsions. Rocho testified that Lard had told her that school administrators once placed him in isolation for striking a school official over the head with a metal chair. She stated that Lard described other antisocial behavior showing a history of impulsivity, aggression, irritability, irresponsibility, and repeated unlawful acts. These behaviors included cruelly to animals, beginning at age nine, as Lard had admitted kicking animals and setting a cat on fire; causing damage to the property of others; and stealing, starting at age twelve, including the theft of a car. Based on the litany of behaviors Lard described, Rocho diagnosed Lard with antisocial | ^personality disorder. She testified that he had this conduct disorder at age fifteen and that Lard continued this behavior throughout his life. In her testimony, Rocho also noted problems in the manner in which Crown administered the IQ test. She further testified that Lard did not have a mental disease or defect and that he was functioning appropriate to his age of thirty-seven years old at the time of her examination. Rocho stated that Lard could think ahead and that he had the ability to deliberate and make a choice of conduct among different options. She expressed the view that Lard had the capacity to appreciate the criminality of his conduct and that he had the ability to conform his conduct to the requirements of the law.
Dr. Raymond Molden, a psychiatrist, concurred in the diagnosis of antisocial personality disorder. In addition to the behavioral criteria noted by Dr. Rocho, he also noted that a lack of remorse was consistent with that diagnosis. Molden further testified that he did not find any evidence of brain damage, noting that the PET scan revealed no frontal-lobe damage and showed only slightly less than average brain activity at the mesial temporal lobes. He also stated that Lard’s level of functioning was inconsistent with someone who had brain damage. Molden testified that Lard did not have a mental disease or defect, and he stated that Lard had the capacity both to appreciate the criminality of his conduct and conform his conduct to the requirements of the law. He said that his opinion was influenced in part by Lard’s description of how he once had a family member pawn a gun for him because he knew that, as a felon, he could not pawn the weapon himself.
In rebuttal, the State also presented the testimony of a jailer who overheard Lard say 114to an inmate, “It’s funny that I shot one cop and the other one is still walking. I should have shot him, too.” Another jailer also testified that he heard Lard tell an inmate that the only thing he regretted about that night was that he “didn’t get the other motherfucker, too.”
On appeal, Lard contends that the circuit court erred in overruling his objections scattered throughout the testimony of these witnesses identifying multiple instances of other bad acts and character evidence. He also claims error in the admission of testimony indicating a lack of remorse. We disagree with Lard’s argu ments. Rule 703 of the Arkansas Rules of Evidence provides that, if the facts upon which an expert bases his or her opinion are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject, the facts need not be admissible in evidence. Under this rule, an expert witness must be allowed to disclose to the jury the factual basis for his or her opinion because the opinion would otherwise be unsupported, and the jury would be left with little, if any, means of evaluating its correctness. See House v. Volunteer Transp. Inc., 365 Ark. 11, 223 S.W.3d 798 (2006); J.E. Merit Constructors v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001).
In this case, Lard squarely placed his mental status in issue by asserting the defense of mental disease or defect. In support of that defense, he offered expert testimony that he had sustained brain damage as evidenced by a low IQ and a PET scan showing decreased activity in the mesial frontotemporal lobes. In rebuttal, the State presented opposing expert testimony diagnosing Lard with antisocial personality disorder. According to the testimony, this disorder is characterized by a pervasive pattern of certain behaviors exhibited since age fifteen. The State’s witnesses testified that the history of misconduct related by Lard and his lack of 11sremorse following the incident formed the basis for the diagnosis.
It is clear to this court that the testimony of the State’s experts revealing other bad acts committed by Lard was offered for the purpose of supporting the opinions reached by the State’s experts by apprising the jury of the factual basis underlying the diagnosis of antisocial personality disorder. For that reason, the testimony was independently relevant and admissible. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264 (holding that testimony concerning previous acts of violence was admissible where the information formed the basis of the forensic evaluator’s opinion). We also note that the circuit court properly instructed the jury that the evidence of alleged crimes, wrongs, and acts was not to be considered as proof that Lard acted in conformity with those behaviors and that the evidence was merely offered as a factor considered by the expert witnesses in evaluating Lard’s mental status.
We also conclude that the circuit court did not abuse its discretion by permitting the jailers’ testimony indicating that Lard lacked remorse for killing Officer Schmidt. As noted by Dr. Molden, lack of remorse is one of the criteria for diagnosing antisocial personality disorder. The jailers’ testimony did not violate Rule 404(b) because it was not offered as character evidence. Rather, the testimony was independently relevant to refute Lard’s claim of mental disease or defect, as the testimony provided support for the experts’ opinions that Lard had this disorder and not a mental disease or defect. See Wood v. State, 280 Ark. 248, 657 S.W.2d 528 (1983) (holding in murder prosecution that testimony of the defendant’s sexual relationship with his daughter was admissible to rebut the defense of mental disease or defect).
[(With one exception, the State was also entitled to question Dr. Crown regarding the acts of misconduct. This court has traditionally taken the view that the cross-examiner should be given wide latitude because cross-examination is the means by which to test the truth of the witness’s testimony and the witness’s credibility. McCoy v. State, 2010 Ark. 373, 370 S.W.3d 241; Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). This court has held that once an expert is qualified, the weaknesses in any factual under pinning of the expert’s opinion may be exposed on cross-examination, and such a weakness goes to the weight and credibility of the expert’s testimony. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995). Here, it was permissible for the State to challenge the factual basis for Dr. Crown’s opinion that Lard did not have antisocial personality disorder and to test whether Dr. Crown’s rejection of that diagnosis was made with full knowledge of Lard’s past behaviors and history. Even if there was error in the State’s cross-examination of Dr. Crown, the error would be harmless because the evidence was properly admitted during the rebuttal testimony of the State’s witnesses. Prejudice cannot be demonstrated where erroneously admitted evidence is merely cumulative to other evidence that is properly admitted. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462.
The exception is the question asked of Dr. Crown about Lard’s manufacturing of methamphetamine. In this respect, the circuit court allowed the State to inquire if Lard disclosed that he had manufactured this substance. Unlike the other behaviors, we perceive little independent relevance for this testimony. However, we discern no reversible error. Lard relied on his past use of methamphetamine in support of his claim of brain damage, and |17he introduced testimony indicating his chronic use of that substance. The reference to manufacturing methamphetamine during the State’s cross-examination of Dr. Crown was brief, and no other testimony on the subject was elicited. We have held that, even when a circuit court errs in admitting evidence, we may declare the error harmless and affirm when the evidence of guilt is overwhelming and the error is slight. Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373; see also Miller, supra (recognizing that the components of harmless-error analysis applicable to an evidentiary ruling in the guilt phase of a capital-murder trial are whether there is overwhelming evidence of guilt and the error is slight). That is the case here. Given the overwhelming evidence of guilt, we conclude that the error in admitting this testimony was harmless.
C. Tattoo
Lard contends that the circuit court abused its discretion by admitting two photographs of a large tattoo on his back entitled “Hell Bound,” which purportedly portrays the gates of hell. He asserts that the tattoo had no bearing on any relevant issue and that the photographs were admitted solely to prejudice the jury against him. Lard also notes that he proffered another one of his drawings as a substitute for the photographs of the tattoo.
During the State’s case in rebuttal, Lard’s brother identified the photographs as depicting Lard’s tattoo, and he testified that Lard designed the image. The State utilized the photographs in its examination of the expert witnesses. Dr. Crown, who testified that Lard’s age equivalency was age ten and five months, stated that the design did not suggest a high order of function, and he remarked that “fifth and sixth graders are pretty artistic, too.” Dr. 11sRocho testified that the intricate design of the tattoo demonstrated that Lard had the ability to plan and organize and that the design was indicative of substantial and significant executive functioning. Dr. Molden described the tattoo as being complex and detailed. He stated that the design required abstraction, attention to detail, and a high degree of concentration and planning. Dr. Garrett Andrews, another expert witness for the State, disagreed with Dr. Crown’s opinion about the tattoo and said that it was not a drawing that a ten year old could complete.
We have held that the admission of photographs is a matter left to the sound discretion of the circuit court, and we will not reverse absent an abuse of that discretion. Anderson v. State, supra. Even inflammatory photographs are admissible in the sound discretion of the circuit court if they tend to shed light on any issue or are useful to enable the jury to better understand the testimony or to corroborate the testimony. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984). Here, the State introduced the photographs in conjunction with expert testimony to demonstrate that Lard had the ability to complete intricate drawings and to think abstractly in order to show that he possessed a degree of cognitive abilities beyond that claimed by Dr. Crown. As the photographs were relied on by the State’s experts and were offered to refute Lard’s claim of brain damage and the defense of mental disease and defect, the photographs were independently relevant and admissible for those purposes. We acknowledge that the admission of the photographs resulted in some prejudice, but we find no manifest abuse of discretion in the circuit court’s conclusion that the probative value of the photographs exceeded their prejudicial effect. Nor can we say that the circuit court erred by |1flrejecting Lard’s offer to introduce the proffered drawing instead of the photographs of the tattoo. The proffered drawing is comparatively simple and does not contain the degree of complexity as the tattoo. We find no error on this point.
III. Dash-Camera Videos
Lard next argues that the circuit court erred by allowing the State to play the two videos recorded from the dash cameras mounted on both Officer Schmidt’s and Sergeant Overstreet’s cruisers. In addition, Lard claims error because the circuit court permitted the State to play different versions of the videos, which included a compilation or side-by-side view of both videos; the video from Officer Schmidt’s vehicle in slow motion starting at the first shot without audio; the video from Sergeant Overstreet’s vehicle in slow motion beginning at the first shot without audio; and a slow-motion compilation or side-by-side view from both vehicles starting at the first shot without audio. Lard contends that the videos were prejudicial, cumulative, and unnecessary because there were eyewitnesses who observed the events and because he did not dispute that he killed Officer Schmidt while Schmidt was acting in the line of duty. He maintains that the videos were offered for no other purpose than to arouse the passions of the jurors.
As a general matter, all relevant evidence is admissible. Ark. R. Evid. 402. Relevant evidence is evidence that has a “tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Ark. R. Evid. 401. Evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. 12oEvid. 403.
Video evidence is admissible “if it is relevant, helpful to the jury, and not prejudicial.” Hickson v. State, 312 Ark. 171, 176, 847 S.W.2d 691, 694 (1993). The same requirements for the admission of photographs apply to the admission of video evidence. Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008). We have held that the admission of photographs is a matter left to the sound discretion of the circuit court, and we will not reverse absent an abuse of that discretion. Breeden v. State, 2013 Ark. 145, S.W.3d. When photographs are helpful to explain testimony, they are ordinarily admissible. Blanchard v. State, 2009 Ark. 335, 321 S.W.3d 250. Moreover, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Decay v. State, 2009 Ark. 566, 352 S.W.3d 319.
Yet, we have rejected a carte blanche approach to the admission of photographs. Robertson v. State, 2011 Ark. 196, 2011 WL 1688317; Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003). We have cautioned against “promoting a general rule of admissibility which essentially allows automatic acceptance of all the photographs of the victim and crime scene the prosecution can offer.” Berry v. State, 290 Ark. 223, 228, 718 S.W.2d 447, 450 (1986). We require the trial court to consider whether such evidence, although relevant, creates a danger of unfair 121 prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997).
We find no abuse of discretion in the circuit court’s decision that the probative value of the various video recordings substantially outweighed the danger of unfair prejudice. Typically, the commission of a crime is not video recorded, as was the case here. Although there were witnesses to the events, the recordings represent an objective portrayal of what occurred during the traffic stop and served both to corroborate and to explain the eyewitnesses’ testimony. From our review of the videos, the footage of the actual shootings lasts less than fifty seconds. Because the incident unfolded so quickly, showing the events as they transpired from different perspectives and at slowed speeds allowed the actions of all involved to be clarified and placed in context. Although Lard did not deny committing the offenses, this court has repeatedly held that a defendant cannot prevent the admission of evidence simply by conceding to the facts of the crime. Holloway v. State, 363 Ark. 254, 213 S.W.3d 633 (2005); Garcia v. State, 363 Ark. 319, 214 S.W.3d 260 (2005); Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003). More specifically, we have held that photographic evidence is not inadmissible on grounds that it is cumulative or unnecessary due to admitted or proven facts. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992); Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). Equally as clear, the State is entitled to prove its case as conclusively as it can. Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007); Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). Here, the circuit court exercised its discretion to disallow a portion of the recordings that it deemed overly inflammatory. Undeniably, there is a degree 12g°f prejudice attached to showing the videos, but we cannot conclude that the prejudice was unfair. Accordingly, we affirm on this point.
To the extent that Lard argues that the State should not have been allowed to show portions of the videos during closing arguments, we observe that he did not object when that was done. We will not consider arguments that are raised for the first time on appeal. Scamardo v. State, 2013 Ark. 163, 426 S.W.3d 900.
IV. Witness Sequestration
With this point on appeal, Lard asserts that the circuit court erred by not following the strict dictates of Rule 615 of the Arkansas Rules of Evidence to allow Officer Schmidt’s wife, his father, and his brother to remain in the courtroom during the guilt phase of trial and then to permit them to offer victim-impact testimony at sentencing. On this issue, the record reflects that, at the beginning of trial, Lard invoked the witness-sequestration rule pursuant to Rule 615. The State asked that Officer Schmidt’s wife and other family members be excused from the rule because they would be testifying only during the sentencing phase of trial, depending on the jury’s verdict, but not the guilt phase of trial. Lard objected, arguing that the rule was mandatory and that there was no exception for adult members of the victim’s family. The circuit court ruled that Rule 615 applied to victim-impact witnesses who might testify at sentencing, and the court ordered Officer Schmidt’s family members who proposed to testify at sentencing to remain outside the courtroom during trial.
Following opening statements, the State asked the circuit court to reconsider its decision to exclude Officer Schmidt’s family members, particularly his wife, because their 12?,testimony would only be offered at a sentencing hearing if the jury rendered verdicts of guilt. The circuit court altered its ruling. Although recognizing that the rule is mandatory, the court noted that the family members had reduced their victim-impact statements to writing and ruled that they would be allowed to stay in the courtroom during the guilt phase of trial on the condition that they confine their testimony to the written statements. In its ruling, the circuit court reasoned that the purpose of the rule would not be thwarted by allowing their presence during the guilt phase of trial and that it could conceive of no possible prejudice resulting from their remaining in the courtroom. Lard raised the issue again at sentencing, but the circuit court declined to exclude the witnesses’ testimony. As a result, Officer Schmidt’s wife, father, and brother testified at sentencing by reading their written statements concerning the emotional impact the murder had on them and their family. Additionally, Mrs. Schmidt identified and gave brief descriptions of photographs of Officer Schmidt and his family members for the admission of the photographs into evidence.
Rule 615, which sets out the rule on witness sequestration, provides as follows:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize the exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
The purpose of Rule 615 is to expose inconsistencies in the testimony of different witnesses and to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. Exclusion is mandatory upon request by either party, and only specific exceptions exist to allow | ^witnesses to remain in the courtroom. Id. In addition to the exceptions listed in the rule, Rule 616 of the Arkansas Rules of Evidence provides that the victim of the crime, as well as the parent, guardian, or custodian of a minor victim, has the right to be present during the trial notwithstanding Rule 615. However, a murder victim’s family members do not fit within this exception to the rule. See Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996) (holding that a murder victim’s daughters were subject to the rule of sequestration).
Based on the rule, the circuit court committed error by not sequestering the victim-impact witnesses. The rule is mandatory and requires the exclusion of witnesses when it is invoked, and the members of a murder victim’s family do not fall within any recognized exception. Even so, this court has consistently held that it will not reverse the circuit court’s decision regarding this issue absent a showing of prejudice, as prejudice is not presumed. Adams, supra. However, to hold as harmless an error occurring in the penalty phase of a capital-murder trial, we must be able to reach the conclusion that the error was harmless beyond a reasonable doubt. See Miller, supra. We reach that conclusion here. The witnesses in this instance gave victim-impact testimony limited to previously written statements concerning how the loss of Officer Schmidt affected their lives. In addition, Mrs. Schmidt gave brief descriptions of the photographs that were introduced into evidence. The witnesses otherwise did not offer any testimony about the facts surrounding the murder that were disclosed during the guilt phase of trial, nor could they, because victim-impact witnesses in a capital trial may not state “characterizations and opinions about the crime, the defendant, and the appropriate sentence.” Id. at 34, 362 S.W.3d at 285 (quoting Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir.1999)). Thus, the witnesses’ testimony did not contravene the purpose of the sequestration rale, as theirs was not the kind of testimony that is susceptible to being materially altered by any testimony presented during the guilt-phase of trial. Therefore, we hold that the circuit court’s failure to abide by Rule 615 was harmless beyond a reasonable doubt.
Lard asserts that there was a “possibility” of prejudice because “the very presence of these witnesses in the courtroom for ten days made their testimony all the more poignant for the jury, and stoked the flames of passion and empathy for someone the jury had come to know during the course of trial.” However, the purpose of the rule is to prevent witnesses from adjusting their testimony based on what they have heard prior witnesses say. Adams, supra. The rule is not intended to shield potential witnesses from the view of the jury. Moreover, this argument dehors the record, as there is nothing to indicate what effect, if any, the presence of the family members may or may not have had on the jury. We will not engage in such speculation.
V. Closing Arguments
In this issue on appeal, Lard first argues that the circuit court erred in allowing the prosecuting attorneys to make improper remarks during closing argument in the guilt stage of trial. He contends that the prosecutors improperly referred to the bad-acts evidence complained of in the first point on appeal. Lard also asserts that the prosecuting attorneys interjected their personal beliefs and made objectionable remarks concerning his defense and claim of brain damage by calling the evidence a “magic act,” “a ploy,” “misleading,” an | ¡^attempt to “derail and confuse,” an effort to “harbor voluntary conduct,” an “excuse,” a “joke,” a “red herring,” “ridiculous,” and “insulting to the [jurors’] intelligence.” The State counters Lard’s assertions by arguing that the remarks were proper commentary on the evidence that merely urged the jury to give little weight to Lard’s defense.
Closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences and deductions which can be drawn therefrom. Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (2008). “Although it is not good practice for counsel to inject their personal beliefs into the closing arguments, mere expressions of opinion by counsel in closing argument are not reversible error so long as they do not purposely arouse passion and prejudice.” Jefferson v. State, 372 Ark. 307, 321-22, 276 S.W.3d 214, 225 (2008) (quoting Neff v. State, 287 Ark. 88, 94, 696 S.W.2d 736, 740 (1985)). We have stated many times that the trial court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of discretion. Rohrbach v. State, supra; Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999); Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).
Here, Lard concedes that he raised no objection to any of the prosecutors’ remarks. Absent a contemporaneous objection at trial, we will not review alleged errors in the State’s closing argument. See Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004); see also Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). Despite the absence of an objection at trial, Lard urges this court to apply the third exception to the contemporaneous-objection rule set forth in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In Wicks, we said,
|27A third exception is a mere possibility, for it has not yet occurred in any case. That relates to the trial court’s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial. We implied in Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916), that no objection is necessary if the trial court fails to control a prosecutor’s closing argument and allows him to go too far: “Appellant can not predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same. See Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256 [85 S.W. 428 (1905) ]; Harding v. State, 94 Ark. 65 [126 S.W. 90 (1910) ].”
Wicks, 270 Ark. at 786, 606 S.W.2d at 369-70. Our case law is clear that Wicks presents only narrow exceptions that are to be rarely applied. Chunestudy v. State, supra. Specifically, this court has held that the third exception is limited to only those errors affecting the very structure of the criminal trial, such as the fundamental right to a trial by jury, the presumption of innocence, and the State’s burden of proof. White v. State, 2012 Ark. 221, 408 S.W.3d 720. The remarks Lard complains of here do not rise to this level. Therefore, we decline to address Lard’s arguments that are being raised for the first time on appeal.
Lard further contends that the prosecuting attorney’s closing argument at the sentencing phase of trial was also objectionable. Lard claims error in that portion of the argument where the prosecutor stated that the death penalty served as a deterrent to prevent others from killing a police officer. He argues that the remarks were improper because they had the effect of telling the jury that they were the conscience of the community and that they should send a message to others who might consider killing a police officer.
Arkansas Code Annotated section 16-90-801(a)(5) (Repl.2006) provides that a primary purpose of sentencing a person convicted of a crime is to “deter criminal behavior 128and foster respect for the law.” Therefore, we cannot conclude that the circuit court abused its discretion in overruling Lard’s objection to the State’s comment. Also, contrary to Lard’s assertion, this court has held that “send a message” themes from the prosecutor in closing arguments are not improper. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000); Muldrew v. State, 331 Ark. 519, 963 S.W.2d 580 (1998); Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). Consequently, we find no merit in Lard’s contention.
VI. Ex Post Facto
As the final point on appeal, Lard argues that the death penalty was not a permissible sentencing option in his case because, approximately one month before his trial, this court struck down as unconstitutional the Method of Execution Act in Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. Lard presented this argument by pretrial motion to prohibit the State from seeking or imposing the death penalty and to prohibit the death qualification of the jury. As he argued below, Lard asserts on appeal that any method-of-execution statute enacted subsequent to the date of the offenses would violate the prohibition against ex post facto laws under the United States and Arkansas Constitutions, and in turn, the guarantees of due process and the prohibition against cruel and unusual punishment found in the constitutions. Lard contends that, because there was no valid constitutional method of execution in existence at the time of the crime or when he was convicted, any subsequently enacted statute proscribing a method of executing him would clearly provide a greater punishment than was permitted Rgat the time of his crime and conviction.
An ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal or one that aggravates a crime, or makes it greater than it was, when committed. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006); Garrett v. State, 347 Ark. 860, 69 S.W.3d 844 (2002). For the Ex Post Facto Clause to apply, there must be a change in the law that either criminalizes a previously innocent act or that increases the punishment received for an already criminalized act. Young, supra; Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002). “[TJwo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). A law is retrospective if it “changes the legal consequences of acts completed before its effective date.” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), overruled in part on other grounds, Cal. Dep’t of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).
The constitutional inhibition of ex post facto laws was intended to secure substantial personal rights against arbitrary and oppressive legislative action, and not to obstruct mere alteration in the conditions deemed necessary for the orderly infliction of humane punishment. Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915). The constitutional prohibition is not intended “to limit the legislative control of remedies and modes of procedure which doj^not affect matters of substance.” Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Thus, even though it may work to the disadvantage of the accused, a procedural change is generally considered not to be ex post facto. Id.
In Jones, supra, we determined that the Method of Execution Act, codified at Arkansas Code Annotated section 5-4-617 (Supp.2011), was unconstitutional on its face. This court held that the statute violated separation of powers because the General Assembly had improperly delegated legislative authority by giving unfettered discretion, without sufficient guidelines for the use of that discretion, to the Arkansas Department of Correction to determine all protocol and procedures, most notably the chemicals to be used, for a state execution.
Relevant here is the Supreme Court’s decision in Dobbert, supra. In that case, the Florida death-penalty statute in effect at the time Dobbert committed the offense was declared unconstitutional before his trial. The Florida legislature subsequently enacted a new death-penalty procedure. Dobbert was tried under the new sentencing scheme, and he made several arguments based on the Ex Post Facto Clause. In one of those arguments, he asserted, like Lard does in the present case, that there was no valid death-penalty law in effect as of the date of his actions because the law in effect at that time had been ruled unconstitutional. The Supreme Court unequivocally rejected this contention, saying that “this sophistic argument mocks the substance of the Ex Post Facto Clause.” Dobbert, 432 U.S. at 297, 97 S.Ct. 2290. The Court reasoned that whether or not the death-penalty statute in effect at the time of the offenses was subsequently deemed unconstitutional, the statute, nonetheless,
hi clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.
Here the existence of the statute served as an “operative fact” to warn the petitioner of the penally which Florida would seek to impose on him if he were convicted of first-degree murder. This was sufficient compliance with the ex post facto provision of the United States Constitution.
Id. at 297-98, 97 S.Ct. 2290.
In light of the decision in Dobbert, Lard’s ex post facto claim fails. In Jones, our concern was the improper delegation of legislative authority with respect to the procedures to be utilized in the implementation of the death penalty, not the death penalty itself. At the time of Lard’s offense, capital murder was punishable by death. Ark.Code Ann. § 5—10—101 (c)(1). Any change in the method of execution does not result in an increase in the quantum of punishment for capital murder, because the punishment, the option of death, remains the same. Accordingly, we find no error in the circuit court’s rejection of Lard’s argument that principles of ex post facto precluded the State from seeking the death penalty.
VII. Rule 10
We take this opportunity to note that, while we have held that several of Lard’s arguments on appeal have not been preserved for our review, we are mindful of our obligations pursuant to Rule 10 of the Arkansas Rules of Appellate Procedure-Criminal when a sentence of death has been imposed. Pursuant to Rule 10, the entire record has been reviewed, including those issues that we have held were not properly preserved for appeal, |a2and we hold that no reversible error exists. The record has also been reviewed pursuant to Arkansas Supreme Court Rule 4—3(i) (2013), and no reversible error has been found. For the foregoing reasons, we affirm the convictions and sentences.
Affirmed.
HANNAH, C.J., and CORBIN, J., dissent.
. The information also included a count of felon in possession of a firearm. The circuit court severed this offense from the other charges, and the court granted the State’s request to nolle prosse this charge after trial.
. Although Trumann lies in Poinsett County, the case was tried in Greene County after the circuit court granted Lard’s motion for a change of venue.
. As used in the Arkansas Criminal Code, “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Ark.Code Ann. § 5-2-312(b) (Repl.2006).
. Lard did not object when Swanner mentioned that the warrant involved child support. He also does not claim error for the violation of the circuit court’s ruling prohibiting testimony about the nature of the offense underlying the warrant. We also note that Dr. Raymond Molden, a State rebuttal witness, testified that Lard owed $42,000 in back child support. Lard raised no objection to Molden’s testimony, but Dr. Molden did not testify that there was a warrant for Lard's arrest for the nonpayment of child support.
. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the diagnostic criteria for antisocial personality disorder involves a pervasive pattern of disregard for and violation of the rights of others occurring since age fifteen, as indicated by three (or more) of the following: (1) the failure to conform to social norms with respect to lawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest; (2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure; (3) impulsivity or failure to plan ahead; (4) irritability and aggressiveness, as indicated by repeated physical fights or assaults; (5) reckless disregard for safety of self or others; (6) consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations; and (7) lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.
. At Lard’s request, the circuit court admonished the jury to disregard this comment.
. Following Lard’s trial, the General Assembly passed new legislation to provide a method of administering lethal injections. See Act 139 of 2013. The new law is not under consideration in this appeal. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Tonia Ingle brings this appeal from an order entered by the Washington County Circuit Court placing permanent custody of her son, C.N., with his biological father and closing the dependency-neglect case. For reversal, Ingle contends that the circuit court lacked the authority to vest permanent custody in the father and to close the dependency-neglect proceeding, sua sponte, and without notice at the six-month review hearing. She also argues that there is insufficient evidence to support the circuit court’s decision not to return C.N. to her custody. We agree with the second point and reverse and remand for the entry of an order consistent with this opinion.
The record reflects that the Arkansas Department of Human Services (DHS) filed a petition in the Washington County Circuit Court on May 7, 2012, seeking emergency custody of C.N., who was born on- September 7, 2009. According to the affidavit, the child |2had no caretaker following Ingle’s arrest on charges of possession of drug paraphernalia that had been found in her home. At the time of her arrest, Ingle identified Jason Neal of Missouri as C.N.’s father, but she declined to disclose any further contact information because, according to the affidavit, Ingle stated that Neal had been abusive to her in the past, and as a result, she did not want C.N. to live with him. That same day, the circuit court entered an ex parte order placing the child in the emergency custody of DHS. In this order, the circuit court appointed an attorney ad litem for C.N.
On May 11, 2012, the circuit court entered a probable-cause order finding that returning C.N. to Ingle’s custody was contrary to the child’s best interest. The circuit court placed custody of C.N. with Neal on the condition that the child not be left unsupervised with Neal’s wife, who had a suspended driver’s license and two active warrants for her arrest. The court also found that Ingle had a clean drug test that date, and it ordered that she be allowed weekly, supervised visitation once she passed two more drug tests. The circuit court ordered DHS to conduct a home study on Ingle’s parents. The order contained no provision for a study to be completed of Neal’s home in Missouri.
The circuit court held the adjudication hearing on June 8, 2012. In the adjudication and disposition order entered following the hearing, the circuit court determined that C.N. was dependent-neglected based on a finding that the child had been left without a legal caretaker upon Ingle’s arrest for possession of drug paraphernalia after a drug pipe and a drug straw were found in the home where C.N. was present, “which placed the child in a dangerous situation.” The court maintained custody of the child with Neal and continued lsweekly visitation with Ingle under the supervision of her parents. The circuit court also set the goal of the case as reunification with Ingle or Neal. The court directed Ingle to undergo a psychological evaluation, to participate in individual counseling, to submit to random drug testing on a weekly basis, to maintain stable housing and employment, and to complete parenting classes. The circuit court also ordered Ingle to pay Neal child support in the amount of $25 per week. In conjunction with this requirement, the court abated Neal’s current child-support obligation for C.N. and ordered him to pay his ar-rearage in child support. Finally, the adjudication order contained a provision advising Ingle that the “clock is ticking.” This provision informed Ingle that the court would hold a permanency-planning hearing in one year and warned that the court at that time could place permanent custody in someone else or terminate her parental rights if she had not corrected the conditions that caused her child’s removal or if she had not made substantial progress toward reunification. The record also reveals that Ingle passed a drug test on the date of the hearing.
The circuit court held the six-month review hearing on November 14, 2012. Ta-meika Rector, a family-service worker, testified that Ingle had been cooperative with DHS during the pendency of the case. Rector reported that Ingle had completed parenting classes, that she had participated in counseling and had been released, and that all of Ingle’s drug screens had been negative. She said that Ingle had completed a substance-abuse | ¿assessment, and the evaluation report, which was admitted into evidence, stated that Ingle did not have a substance-abuse disorder. To Rector’s knowledge, Ingle had visited C.N. on a weekly basis. Rector also testified that Ingle’s home was appropriate and that she had maintained stable employment. In addition, Rector verified that the prosecutor had dismissed Ingle’s drug-paraphernalia charges. Rector said that she could not locate Ingle’s psychological evaluation, but she stated that a referral had been made. Rector recommended that C.N. be returned to Ingle’s custody.
In her testimony, Ingle stated that it was her desire to have C.N. return to her home. She testified that the charges against her had been dismissed based on the affidavit of Christopher Robin Cozine, who averred that the paraphernalia discovered in Ingle’s home belonged to him and that Ingle did not know of its presence. Ingle introduced into evidence an order nolle prossing the charges. She testified that she did not recall being given a copy of DHS’s referral for a psychological evaluation. Ingle explained that there might have been a miscommunication in that her caseworker had recently had a baby. Ingle further testified that she and her fiancé, Tommy Bausinger, had recently purchased a home together and that her seventeen-year-old daughter lived with her on the weekends. She said that her daughter stayed during the week with a woman named Patti, whom she had met at God’s Pantry, so 15that her daughter could attend school in another school district. However, she could not recall Patti’s last name.
Neal testified that C.N. was doing great and had adjusted well in his care. He was opposed to C.N. returning to Ingle’s custody because he was “scared about her lifestyle” in that Ingle had been “in and out of jail.” Neal testified that he had taken Ingle to court over custody of C.N. two years ago and that he did not obtain custody at that time. Neal stated that his wife and her children no longer lived with him and C.N. because his wife had a gambling problem, and he testified that they would all live together in a new home once his wife resolved her problems. Neal admitted that he was behind in his child-support payments. He added that Ingle’s parents had legal custody of Ingle’s daughter.
Ingle testified in rebuttal. She said that it was not true that she had been in and out of jail as Neal had claimed. Ingle also testified that she had obtained a protective order against Neal and that Neal had not obtained custody of C.N. “because of the five years of extreme abuse.” Ingle attempted to introduce into evidence photographs that she said portrayed the injuries Neal had inflicted on her. Although there was no objection, the circuit court refused to admit them because “[tjhat was litigated.”
Following the presentation of testimony, the parties presented closing arguments. The ad litem for C.N. agreed with DHS’s recommendation that C.N. be returned to Ingle’s custody. After recounting the testimony, the circuit court announced from the bench that C.N. was no longer dependent-neglected and that it was ceasing reunification services, granting Neal permanent custody, and closing the case. In the review order and order of ^closure, the circuit court incorporated its oral ruling from the bench and made findings that Neal had complied with the court’s orders and the case plan by maintaining stable housing and employment, that C.N. was doing well in Neal’s custody, and that the child no longer needed services from DHS because Neal was meeting the child’s needs. The circuit court further found that Ingle had complied with
some of the court orders and the case plan. Specifically, she has passed weekly drug screens, except she was positive for opiates Nov. 13, 2012 (she has a prescription). She has completed parenting [classes], maintained stable housing, completed hair follicle [testing] that was negative, completed counseling, resolved her criminal charges, which were dropped, [and] completed [a] drug/alcohol assessment. She has not had her psych eval and has not paid child sup port-however, her obligation is going towards the $2813.00 [arrearage] owed by dad. She is not credible in her testimony today.
The circuit court set Ingle’s visitation schedule and continued the requirement that her parents provide supervision. The court also ordered Ingle to pay $25 per week in child support once Neal satisfied his arrearage.
Ingle appealed, and the court of appeals affirmed the circuit court’s decision. Ingle v. Ark. Dep’t of Human Servs., 2013 Ark. App. 418, 2013 WL 3089035. This court granted Ingle’s petition for review. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Walls v. Humphries, 2013 Ark. 286, 428 S.W.3d 517.
Ingle first argues on appeal that the circuit court’s disposition of halting reunification services, placing C.N. in Neal’s permanent custody, and closing the case at the six-month review hearing is not authorized under the juvenile code. DHS and C.N.’s ad litem have |7filed a joint brief, and they concur with Ingle’s overall contention that the circuit court failed to adhere to the requirements of the applicable statutes before granting permanent custody and ceasing reunification services, particularly when the circuit court halted services without notice, which they contend is required by Arkansas Code Annotated section 9-27-365 (Repl.2009).
Unfortunately, we are not able to resolve this issue because it is being raised for the first time on appeal. In Lamontagne v. Arkansas Department of Human Services, 2010 Ark. 190, 366 S.W.3d 351, this court reaffirmed the necessity of interposing a contemporaneous objection in order to preserve an issue for appeal. In so holding, we reiterated the principle that “[d ]e novo review does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below, and that opportunity was not seized.” Lamontagne, 2010 Ark. 190, at 4, 366 S.W.3d at 353 (quoting Roberts v. Yang, 2010 Ark. 55, at 7, 370 S.W.3d 170, 174). In that case, Lamon-tagne argued on appeal that the circuit court erred by applying an outdated version of a statute to her case. We declined to address the argument in the absence of an objection below. As in Lamontagne, Ingle did not argue before the circuit court that its actions were not authorized under the code. As a consequence, the issue Ingle raises has not been preserved for appeal.
Ingle also contends that the circuit court’s decision is not supported by the evidence. She argues that there is no basis in the evidence for the circuit court’s conclusion that returning custody of C.N. to her was contrary to his best interest. Ingle points out that she was in compliance with the case plan and orders of the court and that both DHS and the ad Rlitem recommended that C.N. be restored to her custody. Again, DHS and the ad litem agree with Ingle’s argument. Unlike the previous issue, this contention is properly before us. In a long line of cases, we have ruled that, in a nonjury trial, a party who does not challenge the sufficiency of the evidence does not waive the right to do so on appeal. $15,956 in U.S. Currency v. State, 366 Ark. 70, 233 S.W.3d 598 (2006) (citing Oates v. Oates, 340 Ark. 431, 435, 10 S.W.3d 861, 864 (2000); Firstbank of Ark. v. Keeling, 312 Ark. 441, 445, 850 S.W.2d 310, 313 (1993); Bass v. Koller, 276 Ark. 93, 96, 632 S.W.2d 410, 412 (1982)).
This court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the circuit court’s findings unless they are clearly erroneous. Porter v. Ark. Dep’t of Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008). 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. Seago v. Ark. Dep’t of Human Servs., 2011 Ark. 184, 380 S.W.3d 894. We give great deference to the circuit court as it is in a far superior position to judge the credibility of the witnesses. Krantz v. Ark. Dep’t of Human Servs., 2011 Ark. 185, 380 S.W.3d 927.
In the present case, the circuit court declared that C.N. was dependent-neglected because he had no legal caretaker following Ingle’s arrest. Since that time, Ingle’s criminal charges have been resolved in her favor. She passed every drug test, and a substance-abuse evaluation revealed that she has no substance-abuse disorder. Ingle had also fully cooperated with DHS and had complied with the requirements of the case plan and orders of the court. In a scant six months’ time, only the obligation of undergoing a psychological evaluation 19remained unsatisfied, and the circuit court accepted In-gle’s explanation for not having completed the evaluation. Although the circuit court stated that Ingle was not a credible witness, the facts as found by the circuit court demonstrating Ingle’s compliance with the case plan are unaffected by the court’s credibility determination. While there is admittedly some evidence to support the circuit court’s decision, when the entire record is considered, we are left with a definite and firm conviction that a mistake was committed when the circuit court found that it was in C.N.’s best interest to be placed in the permanent custody of Neal. On de novo review of a fully developed record, when we can plainly see whether the equities lie, we may enter the order that the circuit court should have entered. See Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979); Fye v. Tubbs, 240 Ark. 634, 401 S.W.2d 752 (1966); Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). Accordingly, we reverse the circuit court’s order and remand with directions for the court to return custody of C.N. to Ingle. Of course, this court cannot know what has transpired since the circuit court entered its order vesting custody in Neal. If facts have developed during the pendency of the appeal that would cause serious concern about returning C.N. to Ingle’s care, any party may file a petition requesting the circuit court to address those matters.
Reversed and remanded with directions; court of appeals’ opinion vacated.
HANNAH, C.J., CORBIN and DANIELSON, JJ., concurs in part; dissents in part.
. Rector had been involved in the case for four weeks, replacing the assigned case worker who had recently given birth to a child.
. The most recent drug screen showed the presence of opiates, but the circuit court accepted the explanation that Ingle had a prescription for pain medication following the recent birth of another child by cesarean section.
. The attorney for DHS introduced into evidence a referral that had been completed but not signed by a DHS supervisor.
. Previously, the circuit court had entered an order permitting Bausinger to supervise In-gle's visits with C.N. while her parents were on an extended vacation.
.In its oral ruling, the circuit court accepted Ingle’s explanation that the family service worker did not follow up on this requirement because she left on maternity leave. | [
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CLIFF HOOFMAN, Justice.
| ] This 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 (2013). On March 7, 2013, we accepted the certified question in Smith v. ConAgra Foods, Inc., 2013 Ark. 103, 2013 WL 841759. The certified question is as follows:
Are employment-related retaliation claims under the Arkansas Civil Rights Act, Ark.Code Ann. § 16-123-108, subject to the one-year statute of limitation provided in another part of the Act, Ark.Code Ann. § 16-123-107(c), or the three-year limitation period applicable when a statutory cause of action contains no limitation period? Ark.Code Ann. § 16-56-105; Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 901, 935 S.W.2d 258, 261 (1996).
We conclude that the answer is that the three-year limitation period applies.
|2On November 29, 2011, Petitioner, Tanya Smith, (“Smith”) filed her initial action against Respondents, ConAgra Foods, Inc. (“ConAgra”) and Terry Steen (“Steen”), (collectively “respondents”) in Pulaski County, Arkansas. The Pulaski County Circuit Court granted Smith’s motion to nonsuit on April 30, 2012. Subsequently, Smith filed the current action in Pope County, Arkansas, against the respondents on May 7, 2012, which was removed to federal court on August 18, 2012. In pertinent part, Smith asserts retaliation claims against her former employer, Con-Agra, and against her former supervisor, Steen, individually, pursuant to Ark. Code Ann. § 16-123-108 (Supp.2011) of the Arkansas Civil Rights Act (“ACRA”). Smith alleged she was terminated in February or March of 2010 after seeking an accommodation.
After removing the case to federal court, respondents filed a motion to dismiss the retaliation claims as barred by a one-year statute of limitations. Respondents argued that although section 16-123-108 does not provide an explicit limitation period for employment-related retaliation claims, the one-year statute-of-limitations period pursuant to Ark.Code Ann. § 16-123-107(c)(3) (Supp.2011) of the ACRA, established by the 1993 General Assembly, should apply. Smith argued that the three-year statute-of-limitations period applied pursuant to Ark.Code Ann. § 16-56-105 (Supp.2011). On February 4, 2013, the United States District Court for the Eastern District of Arkansas filed a certification order, requesting this court to accept the certified question to decide the appropriate statute-of-limitations period applicable to section 16-123-108 retaliation claims. After we accepted the certified question, all parties filed briefs, and the Arkansas State Chamber of Commerce, the Arkansas | ¡¡Hospitality Association, and the Associated Builders and Contractors of Arkansas (as amici curiae) filed a brief as well.
The certified question presents an issue of statutory construction. Our rules regarding statutory construction are clear and well established. The basic rule of statutory construction is to give effect to the intent of the legislature. Calaway v. Practice Mgmt. Servs., Inc., 2010 Ark. 432, 2010 WL 4524659. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation. Williams v. Little Rock Sch. Dist., 347 Ark. 637, 66 S.W.3d 590 (2002). A statute is considered ambiguous if it is open to more than one construction. Pulaski Cnty. v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007). When a statute is ambiguous, we must interpret it according to legislative intent, and our review becomes an examination of the whole act. Helena-W. Helena Sch. Dist. v. Fluker, 371 Ark. 574, 580, 268 S.W.3d 879, 884 (2007). In reviewing the act in its entirety, we will reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Williams, supra. In addition, we must look at the legislative history, the language, and the subject matter involved. Id.
|4Section 16-123-108 was added to the ACRA by the 1995 General Assembly and provides in pertinent part:
(a) RETALIATION. No person shall discriminate against any individual because such individual in good faith has opposed any act or practice made unlawful by this subchapter or because such individual in good faith made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
(c) REMEDIES AND PROCEDURES. The remedies and procedures available in § 16-123-107(b) shall be available to aggrieved persons for violations of subsections (a) and (b) of this section.
The section 16-123-107(b) remedies and procedures specifically referenced in section 16-123-108 provide, “Any person who is injured by an intentional act of discrimination in violation of subdivisions (a)(2)-(5) of this section shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover compensatory and punitive damages, and, in the discretion of the court, to recover the cost of litigation and a reasonable attorney’s fee.”
Petitioner now argues before this court that a five-year statute-of-limitations period applies pursuant to the “catch-all” contained in Ark.Code Ann. § 16-56-115 (Supp.2011) or alternatively, that a three-year statute-of-limitations period applies pursuant to Ark.Code Ann. § 16-56-105 (Supp.2011), since section 16-123-108 fails to provide a limitations period. In Kassees v. Satterfield, 2009 Ark. 91, 303 S.W.3d 42, we offered the following guidance in determining which period of limitations applies:
When making a determination about what statute of limitations applies in a case, the court must look to the facts alleged in the complaint itself to ascertain the area of law in which they sound. If two or more statutes of limitations apply to a cause of action, generally the statute with the longest limitation will be applied. However, we look to the gist of the action to determine which statute of limitations to apply. Kassees, 2009 Ark. 91, at 5, 303 S.W.3d at 44-45 (emphasis added) (citations omitted).
It is undisputed that the claims at issue are filed pursuant to the provisions in section 16-123-108. Although we have not decided this issue, the Arkansas Court of Appeals faced a similar issue in Crites v. Cowan, 2011 Ark. App. 11, 2011 WL 51464, as the federal court recognized in its certification order. There, appellant’s section 16-123-108 retaliation claim would have been untimely if either a one-year or three-year limitations period applied but not if a five-year limitations period applied. The court of appeals did not determine whether a one- or three-year period was proper, since such a determination was not necessary. However, the court found,
[E]ven if the one-year statute of limitations contained within the Arkansas Civil Rights Act itself did not apply, claims of retaliation are still dependent upon the rights created by section 16-123-107, and the three-year period of limitations contained in section 16-56-105 has been applied to liabilities that exist only by statute. See Chalmers v. Toyota Motor Sales, 326 Ark. 895, 935 S.W.2d 258 (1996); Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980); see also Medical Liability Mut. Ins. Co. v. Alan Curtis LLC, 519 F.3d 466 (8th Cir.2008). The “catch-all” limitations of section 16-56-115 would not be applicable when there are two, more appropriate limitations periods available.
Crites, 2011 Ark. App. 11, at 2, 2011 WL 51464. We agree with this analysis that a section 16-56-105 three-year limitations period would apply to retaliation claims rather than the section 16-56-115 five-year “catch-all.”
Respondents contend that a one-year limitations period should apply based on the fact that there is a limitations period found for another type of ACRA claim in section 16-123-107(c)(l)(A). As support, respondents argue that the plain language of the ACRA produces an absurd result for employment-based-retaliation claims. Respondents contend that the | (¡legislature did not intend for employment-based-retaliation claims to have different remedies and procedures, including a different limitations period, than those of employment-based-discrimination claims, and that this court should interpret the provisions of section 16-123-107(c) to apply to these claims despite the clear language in section 16-123-108(c) that section 16-123-107(b) applies. We do not find this argument to have merit.
Where the language of a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation. Williams, supra. This court has held that policy concerns should be addressed by the legislature and that this court should not interpret a statute to say something that it clearly does not. King v. Ochoa, 373 Ark. 600, 285 S.W.3d 602 (2008). Furthermore, we have already recognized that the legislature intended there to be some important distinctions between retaliation and employment-discrimination claims. See Calaway, supra. For example, only the employer is subject to liability for employment discrimination in section 16-123-107(c)(l)(A), while a person, including “a human being or an entity that is recognized by law as having the rights and duties of a human being,” is subject to liability in section 16-123-108(a). Calaway, 2010 Ark. 432, at 4, 2010 WL 4524659. (emphasis added). Additionally, after reviewing the statute’s plain language, we find that the legislature provided that different remedies and procedures should be applied to retaliation claims than those for employment-based-discrimination claims under section 16—123—107(a) (1). Therefore, the legislature by its very wording intended the two types of claims to be distinct from one another. Thus, we find that the three-year statute-of-limitations |7period provided in section 16-56-105 applies to retaliation claims filed pursuant to section 16-123-108.
Certified question answered. | [
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JOSEPHINE LINKER HART, Justice.
| Appellee, Rufus Brian Matthews, as special administrator of the estate of Rufus Owens, deceased, and on behalf of the wrongful death beneficiaries of Rufus Owens, brought claims against appellants, Pine Hills Health and Rehabilitation, LLC (“Pine Hills”) and others, for injuries sustained by Owens arising out of his care and treatment at Pine Hills. Appellants filed a joint motion to dismiss the complaint and compel arbitration pursuant to an “Arbitration Agreement.” The circuit court denied the motion, and appellants bring this interlocutory appeal, as permitted by Ark. RApp. P.-Civ. 2(a)(12) (2018). On appeal, appellants assert that the circuit court erred in finding that the Arbitration Agreement was unenforceable because of the absence of a signature of a Pine Hills representative. We hold that there was no objective evidence of mutual assent, and we affirm the circuit court’s decision.
| ¡According to appellee’s complaint, Owens was admitted in December 2007 to a facility then known as Golden LivingCen-ter in Camden, Arkansas. According to the complaint, ownership of the facility changed on July 1, 2009, and the name of the facility was changed to Pine Hills Health and Rehabilitation, LLC. The complaint also stated that, except for times when he was hospitalized, Owens remained a resident of the facility until March 7, 2012, when he was transferred to the Oua-chita County Medical Center, where he died on March 15, 2012. Following Owens’s death, Rufus Brian Matthews was appointed special administrator of Owens’s estate and brought this lawsuit against appellants, asserting various claims, including negligence, medical malpractice, and violations of statutes relating to long-term care. Appellee sought compensatory and punitive damages.
Appellants answered, filed amended answers, and then moved to compel arbitration, arguing that Matthews, who held Owens’s power of attorney, previously had signed an Arbitration Agreement. Attached to appellants’ motion was the Arbitration Agreement. It was signed by Matthews as the “Responsible Party,” and his signature was dated June 29, 2009. The Arbitration Agreement provided as follows:
This Arbitration Agreement (the “Agreement”) is hereby entered between Pine Hills Health and Rehabilitation, LLC (the “Facility”) and Rufus Owens (the Resident or the Responsible Party) in conjunction with an agreement for admission and for the provision of nursing facility services (the “Admission Agreement”) by Facility to Resident. The “Responsible Party” means an agent, some other individual, or family member who agrees to assist the Facility in providing for the Resident’s admission, health care, payment, maintenance, and discharge. The Resident and the Responsible Party shall be collectively referred to as the “Resident.” The Resident and the Facility shall be collectively referred to as the “parties.”
The parties to this Agreement acknowledge and agree that upon execution, this IsAgreement becomes part of the Admission Agreement, and that the Admission Agreement evidences a transaction involving interstate commerce governed by the Federal Arbitration Act. The Responsible Party acknowledges further that execution of this Agreement affects his or her individual rights. It is understood and agreed by Facility and Resident that any and all claims, disputes, and controversies (hereafter collectively referred to as a “claim” or collectively as “claims”) arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the Parties, or in the absence of such an agreement, at the Facility, in accordance with the National Arbitration Forum Code of Procedure, (“NAF”) which is hereby incorporated into this Agreement, and not by a lawsuit or resort to court process. This agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
(Footnote omitted.)
The Arbitration Agreement also provided, in bold type, as follows:
THE PARTIES UNDERSTAND AND AGREE THAT THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES, AND THAT BY ENTERING INTO THIS ARBITRATION AGREEMENT, THE PARTIES ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY, AS WELL AS ANY APPEAL FROM A DECISION OR AWARD OF DAMAGES.
The Arbitration Agreement further provided that the “Resident” understood that he had the “right to seek legal counsel concerning this Arbitration Agreement,” that the “execution of the Agreement is not a precondition to admission or to the furnishing of services to the Resident by the Facility,” and that the Arbitration Agreement “may be rescinded by written notice to the Facility from the Resident within thirty days of signature.”
Immediately above the signature blocks for the “Resident” and for the “Responsible Party,” the Arbitration Agreement provided as follows:
|4The undersigned certifies that he or she was read this Arbitration Agreement and that it was [sic] been fully explained to him or her, that he or she understands its contents, and has received a copy of the provision and that he or she is the Resident, or the person duly authorized by the Resident or otherwise to execute this Agreement and accept its terms.
The Arbitration Agreement was signed by Matthews as the “Responsible Party” at the bottom of the second page. Language at the top of the second page, however, indicated that the Arbitration Agreement was a three-page document, but the third page was not attached to the other two pages.
Appellee responded, attaching to the response an exemplar of what would have constituted the third page of the Arbitration Agreement, which contained a signature block for the “Facility,” including lines for the “Signature of Facility Representative” and a date. Appellee argued that the Arbitration Agreement was unen forceable because there was “no evidence of mutual assent,” as the Arbitration Agreement did not bear the signature of a representative of Pine Hills. In reply to appellee’s response, appellants asserted that the signature of a representative of Pine Hills was unnecessary and that Pine Hills had manifested its assent to the Arbitration Agreement as evidenced by its conduct and the language of the Arbitration Agreement.
The circuit court held a hearing on appellants’ motion to compel arbitration. No testimony was presented, but a copy of an “Admission Agreement” for Owens’s admission into Pine Hills was introduced into evidence. That document was signed by Matthews as the “Responsible Party[]” and by a Pine Hills “Facility Representative! ].” The signature block indicated that it was signed July 1, 2009, two days after the date of Matthews’s signature on |5the Arbitration Agreement. The Admission Agreement contained a provision relating to arbitration, providing as follows:
The Resident acknowledges that disputes arising out of this Agreement, including the provision of care and services, may be submitted to arbitration, if the Resident elects to do so, by signing a separate agreement executed between the Nursing Facility and the Resident. Agreeing to arbitration is not a condition of admission or to continuing care.
In a written order, the circuit court denied the motion to compel arbitration. The court found that the “lack of a signature indicating [Pine Hills’s] consent to be bound by the agreement renders the agreement deficient and non-binding under basic contract law.” Appellants appeal from that decision.
On appeal, appellants argue that the absence of a signature by a representative of Pine Hills does not render the Arbitration Agreement unenforceable. Appellants assert that their conduct—specifically, preparing a form Arbitration Agreement and Admission Agreement, presenting a nonmandatory offer of arbitration to incoming residents, retaining both agreements, and attempting to enforce the Arbitration Agreement—indicate Pine Hills’s manifestation of its assent to the Arbitration Agreement. Further, appellants focus on the language of the Arbitration Agreement, which they argue indicates Pine Hills’s assent to the Arbitration Agreement. Particularly, appellants assert that the Arbitration Agreement provided that the Resident, and not Pine Hills, may rescind the Arbitration Agreement within thirty days of signing and that the Resident may wish to consult an attorney. Appellants also note that, above the signature block for the Resident and Responsible Party, the Arbitration Agreement provided that the “undersigned” certified that he read and understood the [(-Arbitration Agreement and is either the Resident or the person authorized by the Resident to execute the Arbitration Agreement. Appellants observe that there was no similar certification above the signature block for the “Facility Representative.” Appellants also focus on the language in the Admission Agreement, as “reflecting] the intent to invite the Resident’s assent,” by providing that the “Resident acknowledges that disputes arising out of this Agreement ... may be submitted to arbitration, if the Resident elects to do so, by signing a separate agreement executed between the Nursing Facility and the Resident.” Appellants further suggest that this language indicates that “signing” is not synonymous with “executing]” an agreement, that “executed” means “commencement of the contract,” and that ambiguities must be resolved in favor of arbitration. Appellants conclude that “Pine Hills made an offer that was accepted, demonstrating mutual assent and a valid contract.”
The issue here—whether there is an enforceable arbitration agreement between Pine Hills and appellee—is a matter of contract construction; to answer that question, we look to the language of the agreement and apply principles of state contract law. Courtyard Gardens Health & Rehab., LLC v. Quarles, 2013 Ark. 228, at 6, 428 S.W.3d 437, 442. The construction and legal effect of an agreement to arbitrate are to be determined by this court as a matter of law. DIRECTV, Inc. v. Murray, 2012 Ark. 366, at 4, 423 S.W.3d 555, 559.
The essential elements of a contract are competent parties, subject matter, legal consideration, mutual agreement, and mutual obligations. Independence Cnty. v. City of Clarksville, 2012 Ark. 17, at 6, 386 S.W.3d 395, 399. Both parties must manifest assent to the | particular terms of a contract. DIRECTV, Inc., 2012 Ark. 366, at 9, 423 S.W.3d at 562. This court employs an objective test for determining mutual assent, by which we mean objective indicators of agreement and not subjective opinions. Ward v. Williams, 354 Ark. 168, 180, 118 S.W.3d 513, 520 (2003).
Though a hearing was held on the issue of whether Pine Hills had manifested its assent to the contract, no testimony was presented at the hearing. What we have before us then are the first two pages of the Arbitration Agreement, an exemplar of the missing third page, and the Admission Agreement. There is no signature on the Arbitration Agreement by a representative of Pine Hills to indicate mutual assent. Rather, there is a document whose missing third page contained a signature block for a representative of Pine Hills. Certainly, “manifestation of assent may be made wholly or partly by written or spoken words or by other acts or by failure to act.” Restatement (Second) of Contracts § 19(1) (1981). Moreover, a “written contract, not required to be in writing, is valid if one of the parties signs it and the other acquiesces therein.” Parker v. Carter, 91 Ark. 162, 167, 120 S.W. 836, 838 (1909). Though appellants assert that their conduct indicated Pine Hills’s manifestation of its assent to the Arbitration Agreement, there was no testimony presented concerning any conduct that would have manifested assent. Appellee cites provisions in the Arbitration Agreement that they assert evidence Pine Hills’s manifestation of its assent: the provisions stating that the Responsible Party could rescind the Arbitration Agreement and the certification that he read and understood the Arbitration Agreement. This language, however, does not establish Pine 18HiIls’s manifestation of its assent. Rather, it establishes only the Responsible Party’s manifestation of assent.
Further, appellants’ reliance on language in the Admission Agreement—a separate agreement signed by a Pine Hills representative two days after Matthews had signed the Arbitration Agreement— does not illuminate whether Pine Hills also manifested its assent to the Arbitration Agreement. We note that the Arbitration Agreement provides that the “parties to this Agreement acknowledge and agree that upon execution, this Agreement becomes part of the Admission Agreement.” Also, we note that the Admission Agreement provided that the “Resident acknowledges that disputes arising out of this Agreement ... may be submitted to arbitration, if the Resident elects to do so, by signing a separate agreement executed between the Nursing Facility and the Resident.” While appellants assert that “signing” is not synonymous with “executing]” an agreement and that “executed” means “commencement of the contract,” we observe that no testimony was presented regarding any acts that would have indicated the “commencement of the contract.” In employing an objective test for determining mutual assent, we hold that the Arbitration Agreement does not establish that Pine Hills manifested its assent to the Arbitration Agreement. Because there was no manifestation of mutual assent, the Arbitration Agreement was unenforceable. We affirm the circuit court’s decision.
Affirmed.
. The claims against separate defendant Michael Hunter were dismissed without prejudice.
. Appellants also argue on appeal that the circuit court erred in finding that the Arbitration Agreement was unenforceable because the arbitrator named therein was no longer available to act as the arbitrator and because the Arbitration Agreement was unconscionable. Because we hold that the Arbitration Agreement was unenforceable for the reason discussed infra, we do not decide these arguments or discuss matters relating to those arguments. See DIRECTV, Inc. v. Murray, 2012 Ark. 366, at 9-11, 423 S.W.3d 555, 562-63. | [
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PER CURIAM.
|,Appellants Linda Marston, Patsy Elli-fritz, Dennis Taylor, and Wanda Gragg, filed a motion for rule on clerk seeking an order of this court directing the Arkansas Supreme Court Clerk to accept their record for filing. Appellants tendered the record on December 30, 2013, under an extension of time granted by the circuit court on November 8, 2013. The clerk refused to file the record because the extension order did not comply with Ark. R.App. P.-Civ. 5(b)(1), which provides as follows:
(b) Extension of time.
(1) If any party has designated steno-graphically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
12(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the steno-graphically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
This court has made clear that it expects compliance with the requirements of Rule 5(b) and that it does not view the granting of an extension as a mere formality. Byrer v. Colvard, 372 Ark. 460, 277 S.W.3d 209 (2008).
Rule 5 and our case law require that the circuit court consider and make findings that the conditions listed in subdivision (b)(l)(A)-(E) of Rule 5 have been met. The order before us recites the following:
On this 8th day of November, 2013, this matter comes before the Court, the Court being well and sufficiently advised does find as follows:
1. That this Court grants an extension of 30 days.
Although we have the appellants’ motion to the circuit court before us, we do not infer from its averments that Rule 5 has been complied with, and the circuit court’s order must reflect that each condition has been met. Byrer, supra. Because the order of extension in this case makes no reference to the consideration of the Rule 5 requirements, we remand this matter to the circuit court for compliance with Rule 5(b)(1). Byrer, supra.
Remanded. | [
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