text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
PHILLIP T. WHITEAKER, Judge.
|tC. Bean Transport, Inc. Creditors Trust (“C. Bean Transport”) appeals from a Sebastian County Circuit Court order dismissing its declaratory-judgment action against Claude B. Kennedy, Jr., Mickey J. Durden, and the Phoenix and Cherokee Insurance Companies. C. Bean Transport argues that the trial court erred by failing to strike Kennedy’s answer and by finding that it lacked the subject-matter jurisdiction to hear the matter. Because we find that the trial court did not abuse its discretion in declining to exercise subject-matter jurisdiction, we affirm.
Claude Kennedy was injured in an automobile accident in Louisiana while working for his employer, C. Bean Transport. Kennedy sought workers’ compensation benefits from C. Bean Transport, who was self-insured, and C. Bean Transport paid Kennedy approximately $68,000 in workers’ compensation benefits as a result of this accident.
| ^Kennedy then brought suit in Louisiana against Durden (the driver of the other vehicle) for damages he suffered in the accident and against Phoenix Insurance Company (his insurer) and Cherokee Insurance Company (C. Bean Transport’s insurer) under their uninsured-motorist provisions. C. Bean Transport sought to intervene in the Louisiana action.
The Louisiana court denied C. Bean Transport’s request to intervene, finding that C. Bean Transport’s policy with Cherokee excluded any coverage for workers’ compensation benefits paid to C. Bean Transport’s employees. When C. Bean Transport learned that Kennedy was attempting to settle the litigation without consideration of C. Bean Transport’s rights of subrogation, C. Bean Transport filed a declaratory-judgment action in Arkansas seeking to determine that any funds payable by Durden, Phoenix, and/or Cherokee were subject to C. Bean Transport’s statutory right of subrogation. An appeal from the denial of C. Bean Transport’s motion to intervene was pending before the Louisiana appellate courts at the time of filing of the Arkansas declaratory-judgment action.
Kennedy filed a pro se answer to the complaint. He admittedly received assistance in drafting his answer from his Louisiana counsel who was not licensed to practice law in Arkansas. C. Bean Transport moved to strike Kennedy’s answer as a sanction for filing a pro se answer that was drafted by an attorney not licensed to practice law in Arkansas and requested that a default judgment be entered.
Phoenix and Cherokee filed a motion to dismiss the Arkansas petition based on Arkansas Rules of Civil Procedure 12(b)(1) (lack of subject-matter jurisdiction) and 12(b)(6) |3(failure to state facts upon which relief can be granted). Phoenix and Cherokee argued that, because there was litigation pending in the state of Louisiana involving the same parties, the same issues, and arising out of the same motor-vehicle accident, the court would be abusing its discretion in entertaining subject-matter jurisdiction over C. Bean Transport’s petition. Kennedy joined in the motion.
The trial court dismissed the action on the basis that another action between the parties was pending in Louisiana. The court also declined to strike Kennedy’s answer, stating that it would not punish a litigant under these circumstances for the actions on the part of an attorney.
The trial court’s order stated:
Plaintiff has filed its petition seeking declaratory judgment. Defendants seek to dismiss on the grounds the same parties and issues are already subject of a Louisiana lawsuit. Declaratory judgment is intended to supplement rather than supersede ordinary causes of action. When another action between the same parties, in which all issues could be determined, is actually pending at the time of the commencement of an action for declaratory judgment, the court abuses its discretion if it entertains jurisdiction. Mid-State Construction Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968).
The task for this court then becomes to ascertain whether the pending Louisiana matter involves the same parties and invokes the same issues as the instant case. A cursory reading of the Louisiana pleadings reveal [sic] the parties to be the same in each case. In addition, the Petition for Intervention filed on behalf of Plaintiff in Caddo Parish plainly sets forth the grounds for intervention as being reimbursement for Workers’ Compensation benefits from any award Mr. Kennedy might receive in that pending lawsuit. The pending petition seeks the same relief. The Order of the Louisiana court denying intervention is currently on appeal to the Court of Appeal, Second Circuit, in that state.
Plaintiff cites Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007) in support of its position opposing dismissal. However, as pointed out by Defendants, that matter dealt solely with dismissal pursuant to ARCP 12(b)(8), which is not the Lease here. In addition, the Potter court points out the filings at issue there involved different parties and different issues.
Therefore, it appears to the Court this case and the Louisiana case involve the same parties and issues. In addition, because Plaintiffs interests are still at issue in that state based on the appeal it filed, it remains pending in the Court’s view. Therefore, this matter must be dismissed. To do otherwise would open the door to contradictory and confusing results in two states, thereby muddling and prolonging a final disposition of the issues.
As a separate matter, Plaintiff at hearing urged the Court not to address or consider the motion of Separate Defendant Kennedy because his Answer to the petition was “ghostwritten” by a Louisiana attorney. Counsel has raised concerns about the ethical propriety of such action. Even if such issues exist, which the Court need not and does not address, the Court will not punish a litigant under these circumstances for such actions on the part of an attorney. If Plaintiff feels such actions were inappropriate, it should file a complaint with the appropriate Louisiana authority.
In declaratory-judgment actions, we review a trial court’s decision on whether to exercise its jurisdiction under an abuse-of-discretion standard. See UHS of Ark. v. Charter Hosp. of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988). C. Bean Transport argues that the trial court erroneously determined that it lacked subject-matter jurisdiction. We disagree. We hold that the trial court was not expressing a determination that it completely lacked subject-matter jurisdiction to hear the matter as C. Bean Transport contends; instead, the court’s analysis clearly contemplates that it could exercise its jurisdiction if it so chose. However, because the same parties and issues were involved in both the Arkansas and the Louisiana actions, it simply declined to exercise that jurisdiction because to do so would be problematic. This was not error.
It is well settled that subject-matter jurisdiction is considered to be a court’s authority to hear and decide a particular type of case. Edwards v. Edwards, 2009 Ark. 580, 357 S.W.3d 445 (citing David Newbern & John J. Watkins, Arkansas Civil Practice and Procedure § 2:1, at 19-20 (4th ed.2006)). An Arkansas court lacks subject-matter jurisdiction if it cannot hear a matter “under any circumstances” and is “wholly incompetent to grant the relief sought.” Id. (quoting J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352-53, 836 S.W.2d 853, 858 (1992)). An Arkansas circuit court obtains subject-matter jurisdiction when it is conferred under the Arkansas Constitution or by means of constitutionally authorized statutes or court rules. Id. The declaratory-judgment statutes give courts of record the power to declare rights, status, and other legal relations within their respective jurisdictions. Travelers Indem. Co. v. Olive’s Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596 (1989). Here, the trial court had the authority to act on the pending declaratory request. The statutes, however, do not confer subject-matter jurisdiction. Bryant v. Picado, 338 Ark. 227, 996 S.W.2d 17 (1999); UHS of Ark., supra. Thus, declaratory judgment is procedural, not jurisdictional. Martin v. Equitable Life Assur. Soc. of the U.S., 344 Ark. 177, 181, 40 S.W.3d 733, 736-37 (2001). In other words, the declaratory-judgment statutes empower the court to grant relief, but do not mandate such.
Declaratory-judgment statutes are intended to supplement rather than supersede ordinary causes of action. As a result, there exists a requirement that the trial court consider the “propriety” of exercising jurisdiction, not merely whether it has the legal authority to do so. Id. The propriety of exercising jurisdiction depends in large part on whether the issue may be resolved in another court. Id. Consequently, when another action between the same Riparties, in which all issues could be determined, is actually pending at the time of the commencement of an action for a declaratory judgment, the court abuses its discretion when it entertains jurisdiction. UHS of Ark., supra.
The trial court clearly considered the nature and substance of the two state-court actions, as well as the possibility that the exercise of jurisdiction could give rise to potentially contradictory and confusing results, before declining to exercise its jurisdiction. Under these circumstances, we find no abuse of discretion.
Because we have determined that the trial court did not abuse its discretion in declining to exercise subject-matter jurisdiction in this matter, we need not address C. Bean Transport’s argument on the trial court’s failure to strike Kennedy’s answer.
Affirmed.
GLADWIN, C.J., and HIXSON and WOOD, JJ., agree.
VAUGHT and BROWN, JJ., dissent. | [
-76,
-4,
-43,
44,
10,
96,
58,
-86,
85,
-93,
103,
83,
-7,
-17,
20,
41,
-25,
89,
85,
107,
-43,
-105,
17,
114,
-46,
-45,
-85,
69,
-109,
75,
100,
-34,
76,
88,
-118,
-43,
38,
73,
-59,
24,
-50,
4,
-5,
96,
89,
19,
56,
-22,
22,
79,
17,
-115,
-77,
44,
25,
66,
12,
108,
121,
41,
-45,
-15,
-118,
5,
103,
17,
33,
36,
-98,
35,
-8,
26,
-112,
49,
41,
-24,
114,
-74,
-118,
84,
99,
-103,
-120,
98,
99,
-127,
4,
-57,
-68,
-72,
54,
-2,
-97,
-58,
-58,
57,
67,
75,
-105,
-97,
94,
22,
6,
-4,
126,
77,
22,
101,
-125,
-50,
-112,
-93,
-83,
69,
-98,
23,
-17,
-107,
52,
113,
-52,
-30,
93,
-57,
59,
-101,
86,
-73
] |
PAUL E. DANIELSON, Justice.
1 Appellants Thomas W. Kimbrell, Commissioner of the Arkansas Department of Education, in his official capacity only; the Arkansas Department of Education; and Martha Shoffner, the Treasurer of the State of Arkansas, in her official capacity only (hereinafter collectively, “ADE”), appeal from the circuit court’s judgment enjoining ADE from seeking repayment of any portion of the twenty-five-mill uniform rate of tax (URT) revenues levied and assessed for purposes of school funding from appellees Bob Allen McCleskey, individually and as a representative of all similarly situated taxpayers- who pay ad valo-rem school taxes for the support of the Fountain Lake School District; the Fountain Lake School District; Rusty Windle, individually and as a representative of all similarly situated taxpayers who pay ad valorem school taxes for the support of the Eureka Springs School District; and the Eureka Springs School District (hereinafter collectively, “the School Districts”). In addition, the order enjoined ADE from “levying, assessing, withholding, or setting off [monies belonging to the School Districts for the repayment of any portion of the twenty-five-mill URT revenues required for school funding] from or against any state or federal monies” owed to the districts and incorporated the circuit court’s findings of fact and conclusions of law, which were entered that same day. ADE further appeals from the circuit court’s order of January 20, 2012, in which the circuit court declined to hold ADE in contempt and clarified its prior judgment, stating that its injunction applied to any amounts that were currently being set off and withheld by ADE and ordering ADE to pay those amounts to the School Districts.
ADE asserts two points on appeal: (1) that the circuit court erred in its finding that ADE was not authorized by the legislature to recoup and redistribute any UTR revenues | ¡.received from the School Districts that were in excess of the foundation-funding amount; and (2) that the circuit court erred in finding that ADE lacked the authority to withhold monies from the School Districts where they had submitted deficient budgets that erroneously budgeted as ongoing revenue the amounts of URT revenue in excess of the foundation-funding amounts. The School Districts cross-appeal, urging that the circuit court erred in finding that the revenues generated by the URT were state-tax revenues. We affirm on direct appeal and reverse and remand on cross-appeal.
The instant appeal stems from issues involving the current school-funding system and the disbursement of URT revenues to Arkansas’s public-school districts. On May 10, 2011, the School Districts filed their complaint for declaratory judgment and injunctive relief, in which they sought a declaration that any attempt by ADE to demand URT revenues in excess of the foundation-funding amount from the School Districts was illegal and unconstitutional. They contended that the twenty-five-mill URT, which is mandated by Ark. Const, amend. 74, is a special, local-ad valorem-school tax, rather than a state tax, in the amount of twenty-five mills that must be levied and collected and may only be used by these school districts for the maintenance and operation of each school district’s schools. The School Districts further sought injunctive relief, enjoining ADE from making such demands for these funds or withholding other funds due to ADE’s position that it was entitled to the excess funds.
ADE moved to dismiss the School Districts’ complaint. In its motion, ADE asserted that the School Districts had received more revenue from the twenty-five-mill URT than necessary to fund the foundation-funding amount for the districts due to the strong tax base |3in those districts. ADE claimed that it was unconstitutional for the State to allow the tax base of the districts to determine the amount of support they would receive, and therefore, ADE was required to take action to cor rect the increase in foundation funding that the districts received. For this reason, ADE maintained, its motion to dismiss the School Districts’ complaint should be granted.
The School Districts subsequently filed a motion for preliminary injunction, wherein they requested an injunction directing ADE to cease and desist from any attempt to have the School Districts pay to ADE the monies they received in excess of the foundation-funding amount or any attempt to set off amounts otherwise due to the districts. ADE responded to the motion, stating that the School Districts’ alleged monetary harm failed to demonstrate irreparable harm and that the School Districts did not demonstrate a likelihood of success on the merits.
In addition, the School Districts filed a response to ADE’s motion to dismiss, asserting that “the ‘special local ad valorem school taxes’ (25 mill URT) levied, generated and collected locally for these two (2) School Districts have nothing to do with the amount of foundation funding, which was set statutorily by the General Assembly for the 2010-2011 school year, save and except that the amount of such foundation funding represents the iminimum amount’ of monies that the state must assure that all school districts in the State of Arkansas have available for the maintenance and operation of the respective schools.” They denied receiving any overpayment and asserted that the “special local ad valorem school tax” was a loeal-ad valorem tax and not a state-ad valorem tax, which was constitutionally prohibited.
|40n September 12, 2011, the circuit court held a hearing on both motions, and on September 20, 2011, the circuit court entered its findings of fact and conclusions of law and its separate order of judgment. In its findings of fact and conclusions of law, the circuit court concluded that the revenues generated from the twenty-five-mill URT were state-tax revenues and not local-tax revenues. In addition, it found that the excess monies were not an-overpayment and that there was no legislative authority for ADE to make demands^ on the School Districts. In its judgment, the circuit court treated the motions as ones for summary judgmént and enjoined ADE from undertaking any action against the School Districts seeking repayment of the monies they had received as URT revenues. It further enjoined ADE from withholding or setting off those amounts received in excess of the foundation-funding amount from other monies to which the School Districts were entitled, and it rendered the injunctions in force and effect until the General Assembly passes legislation authorizing ADE to take such measures. Both ADE and the School Districts filed notices of appeal from the circuit court’s orders.
On November 8, 2011, the School Districts moved to have the circuit court hold ADE in contempt of court for failing to send to the districts “all amounts of state or federal funds that have been ‘withheld’ or ‘setoff ” by ADE. ADE filed a motion for stay of the circuit court’s injunctions, and it responded to the contempt motion, asserting that the motion should be dismissed. The circuit court held a hearing on the motion for contempt on January 17, 2012. At the hearing, the circuit court denied ADE’s motion for stay and declined to hold ADE in contempt. It then entered its order, in which it clarified its previous judgment, 1 Sstating that
by the language of paragraph 8 of the Judgment entered herein on September 20, 2011, that no categorical funding amounts would be withheld by the ADE defendants from these two school districts that should have been paid during the 2010-11 school years.
It further ordered ADE- to pay and release to the School Districts the contested amounts by 12:00 p.m., January 20, 2012, unless ADE requested a stay from this court. ADE filed an amended notice of appeal, and on February 6, 2012, the circuit court denied the School Districts’ previously made motion for reconsideration of the circuit court’s ruling on their motion for contempt. Both parties now appeal.
I. Direct Appeal
A. Authority of ADE to Recoup and Redistribute Excess Monies
For its first point on appeal, ADE argues that the circuit court erred in its finding that ADE was not authorized by the General Assembly to recoup and distribute to other school districts any UTR revenues from the School Districts that were in excess of the statutory foundation-funding amount. It urges that the URT is a state tax producing state revenue and that it is unconstitutional for the State to provide state revenue to a school district based solely on the properly wealth of the district. Contending that the School Districts are receiving a bonus based solely on the value of the property in their districts when they receive the total amount of revenues, which exceeds the foundation-funding amount, ADE asserts that the bonuses are inequitable and therefore unconstitutional. ADE maintains that the state’s |fieducation-funding statutes cannot be read to provide excess foundation funding to the School Districts based simply on their favorable loeal-property-tax collections. It avers that Ark.Code Ann. § 6-20-2306 (Supp.2009) grants ADE the authority to determine that an overpayment has been made and provides it with remedies. In addition, ADE contends that Ark. Code Ann. § 26-80-101 (Supp.2009) further provides that URT revenues collected may be distributed to other school districts and that this language cannot be ignored.
The School Districts respond that the circuit court was correct in its finding that ADE did not have statutory authority to act as it did regarding any monies in excess of the foundation-funding amount. They contend that the mere processing of the funds through the State Treasurer in no way renders the URT funds state taxes and that Ark.Code Ann. § 26-80-101(a), (b), and (c) statutorily direct that all URT funds be finally distributed to the school districts from which the funds were derived, not just those funds meeting the foundation-funding amount. The School Districts point to this court’s recognition that variances in revenues may exist and may allow some school districts to enhance curricula, facilities, and equipment such that they are superior to what is deemed adequate by the State; therefore, they counter, ADE’s assertion that excess funds run counter to this court’s directives is without merit.
Here, ADE asserts that it was within its authority to recoup excess funds from the School Districts and to set off such amounts against other funds due to those districts. It is wholly mistaken. In Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), this court held that the State has “an absolute duty under our constitution to provide |7an adequate education to each school child” and declared that the school-funding system then in place was unconstitutional. 351 Ark. at 71, 91 S.W.3d at 495. Of particular concern to this court in Lake View were the four following matters:
(1) the Department of Education has not conducted an adequacy study; (2) despite this' court’s holding in DuPree v. Alma Sch. Dist. No. 30, [279 Ark. 340, 651 S.W.2d 90 (1988) ], that equal opportunity is the touchstone for a constitutional system and not merely equalized revenues, the State has only sought to make revenues equal; (3) despite Judge Imber’s 1994 order to the same effect, neither the Executive Branch nor the General Assembly have taken action to correct the imbalance in ultimate expenditures; and (4) the State, in the budgeting process, continues to treat education without the priority and the preference that the constitution demands.
Id., 91 S.W.3d at 495. The General Assembly and Executive Branch were vigilant in their efforts to remedy the unconstitutional .school-funding system and, five years later, this court held that the system of public-school financing was in constitutional compliance. See Lake View Sch. Dist. No. 25 v. Huckabee, 370 Ark. 139, 257 S.W.3d 879 (2007).
Serving as the basis of our school-funding system, article 14, § 3 of the Arkansas Constitution, which incorporates Amendment 74 to the constitution, provides, in pertinent part:
(a) The General Assembly shall provide for the support of common schools by general law. In order to provide quality education, it is the goal of this state to provide a fair system for the distribution of funds. It is recognized that, in providing such a system, some funding variations may be necessary. The primary reason for allowing such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district. It is further recognized that funding variations or restrictions thereon may be necessary in order to comply with, or due to, other provisions of this Constitution, the United States Constitution, state or federal laws, or court orders.
(b)(1) There is established a uniform rate of ad valorem properly tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of the schools.
ls(2) Except as provided in this subsection the uniform rate of tax shall not be an additional levy for maintenance and operation of the schools but shall replace a portion of the existing rate of tax levied by each school district available for maintenance and operation of schools in the school district. The rate of tax available for maintenance and operation levied by each school district on the effective date of this amendment shall be reduced to reflect the levy of the uniform rate of tax. If the rate of tax available for maintenance and operation levied by a school district on the effective date of this amendment exceeds the uniform rate of tax, the excess rate of tax shall continue to be levied by the school district until changed as provided in subsection (c)(1). If the rate of tax available for maintenance and operation levied by a school district on the effective date of this amendment is less than the uniform rate of tax, the uniform rate of tax shall nevertheless be levied in the district.
(3) The uniform rate of tax’ shall be assessed and collected in the same manner as other school properly taxes, but the net revenues from the uniform rate of tax shall be remitted to the State Treasurer and distributed by the state to the school districts as provided by law. No portion of the revenues from the uniform rate of tax shall be retained by the state. The revenues so distributed shall be used by the school districts solely for maintenance and operation of schools.
Ark. Const, art. 14, § 3(a), (b)(1) — (3). In Fort Smith School District v. Beebe, 2009 Ark. 333, 322 S.W.3d 1, we explained that Amendment 74 established the uniform rate of taxation of twenty-five mills for each school district to be levied on the assessed value of property and to be used solely for the maintenance and operation of the schools; the revenues collected are sent to the State, and the State later distributes the total funds back to the school districts.
As article 14, § 3 states, after the URT net revenues are remitted to the State Treasurer, they shall be distributed by the State to the school districts as provided by law. See Ark. Const, art. 14, § 3(b)(3). This court must then construe both our constitutional provision and the school-funding statutory scheme to determine how URT revenues in excess of the foundation-funding amount may be distributed. On appeal, our task is to read the laws as they are written and interpret them in accordance with established principles of statutory and constitutional construction. See Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). The fundamental rule is that the words of the constitution or statute should ordinarily be given their obvious and natural meaning. See id. We review issues of statutory construction de novo; it is for this court to decide what a statute means. See id. We are not bound by the decision of the circuit court; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. See id.
The structure of the school-funding system as set forth by the General Assembly in Ark.Code Ann. § 6-20-2305 (Supp. 2009), provides that for each school year,
each school district shall receive state foundation funding aid computed as the difference between the foundation funding amount pursuant to subdivision (a)(2) of this section and the sum of ninety-eight percent (98%) of the uniform rate of tax multiplied by the property assessment of the school district plus the miscellaneous funds of the school district.
Ark.Code Ann. § 6-20-2305(a)(l)(A). For the 2010-2011 school year, “the foundation funding amount is equal to six thousand twenty-three dollars ($6,023) multiplied by the school district’s average daily membership for the previous school year.” Ark. Code Ann. § 6-20-2305(a)(2)(B). This amount represents what the General Assembly has determined to be the amount expended by school districts “for the provision of an adequate education for each student.” Ark.Code Ann. § 6-20-2303(6) (Supp.2009) (defining “foundation funding”). Pursuant to section 6-20-2305(a)(1)(A), the State typically makes up the difference between this amount and the revenue generated by the twenty-five-mill URT in any given school district; this difference is known as “foundation funding aid.” See, e.g., Ark.Code Ann. § 6-20-2303(21); Fort Smith Sch. Dist., supra. We have observed that this very | mprocedure assures that basic per-student foundation funding is being met. See Lake View, 370 Ark. 139, 257 S.W.3d 879.
For the School Districts here, however, their URT revenues generated more than the foundation-funding amount, therefore the State was not required to provide any foundation-funding aid to them. It is the URT revenues of the School Districts in excess of $6,023 that are at issue in the instant case. As required by article 14, § 3(b)(3), Ark.Code Ann. § 26-80-101 establishes the procedures to be followed by both the school districts and the State Treasurer for remitting and distributing URT revenues. Specifically, that section provides, in relevant part:
(b)(1)(A) The uniform rate of tax shall be assessed and collected in the same manner as other school property taxes, but the net revenues from the uniform rate of tax shall be remitted to the Treasurer of State and distributed by the state to the county treasurer of each county for distribution to the school districts in that county as provided by subsection (c) of this section.
Ark.Code Ann. § 26-80-101(b)(l)(A). While the State Treasurer obtains the funds from the school districts, the statute, in accord with art. 14, § 3, reiterates that the State (or ADE) is not permitted to retain any portion. of the revenues but, instead, must distribute them back to the school districts. ADE claims that the statute permits it to redistribute excess monies to other school districts, rather than to the district from which the funds were derived; however, an examination of the statute’s plain language reveals the fallacy of ADE’s argument. Subsection (b)(1)(B) of the statute quite clearly provides:
(B) No portion of the revenues from the uniform rate of tax shall be retained by the state but shall be distributed back to the school district from which the revenues were received or to other school districts pursuant to subsection (c) of this section.
lnArk. Code Ann. § 26-80-101(b)(l)(B) (emphasis added). Accordingly, subsection (c) controls the distribution of the funds and provides that “[f]or each school year, each county treasurer shall remit the net revenues from the uniform rate of tax to each local school district from which the revenues were derived.” Ark.Code Ann. § 26-80-101(c) (emphasis added). While subsection (b)(1)(B) may refer to distribution of the funds to other school districts, clearly lacking from subsection (c) is any authority by which such a distribution may be carried out by the county treasurer. Because there is no provision “by law” to actually distribute the funds to another school, district than that from which the funds came, ADE’s argument that it is permitted to redistribute the funds to other school districts fails.
ADE argues that such an interpretation would violate the constraints of our decisions in the Lake View cases, but it is again mistaken. ADE claims that permitting the school districts from which the excess revenues came to retain those revenues would result in wealth-enhanced districts in violation of our Lake View decisions. But ADE sorely misconstrues our holdings in the Lake View line of cases.
At issue in Lake View, 351 Ark. 31, 91 S.W.3d 472, was the fact that the State was neglecting its duty to determine first and foremost what was necessary for an adequate and substantially equal education. The General Assembly’s subsequent adoption of the foundation-funding scheme and its determination of the appropriate foundation-funding amount remedied that problem. As our school-funding scheme currently provides, every district is entitled to those monies required for an adequate education, hence the provision of foundation funding. Of notable importance is the fact that those funds not raised by the |12school districts will be supplemented by the State in the form of foundation-funding aid to ensure an adequate education for each student.
Indeed, allowing the School Districts to retain any URT revenues in excess of the foundation-funding amount will result in some variations, but variations were clearly contemplated and are explicitly permitted under the plain language of art. 14, § 3. Ark. Const: art. 14, § 3(a) (“It is recognized that, in providing such a system, some funding variations may be nec essary. • The primary reason for allowing such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district.”). And further, contrary to ADE’s claims, this, court has made it abundantly clear that it is not concerned solely with whether revenues are doled out equally to the districts:
It is clear to this court that in DuPree [v. Alma School District Number 30, 279 Ark. 340, 651 S.W.2d 90 (1983)], we concentrated on expenditures made per pupil and whether that resulted in equal educational opportunity as the touchstone for constitutionality, not on whether the revenues doled out by the State to the school districts were equal.... We agree that the focus for deciding equality must be on the actual expenditures.
Lake View, 351 Ark. at 74-75, 91 S.W.3d at 497. We have further recognized that,
according to its plain language, amendment 74 “allows for variances in school district revenues above the base millage rate of 25 mills, which may lead to enhanced curricula, facilities, and equipment which are . superior to what is deemed adequate by the State.”
Fort Smith Sch. Dist., 2009 Ark. 333, at 11, 322 S.W.3d at 7 (quoting Lake View Sch. Dist. No. 25 v. Huckabee, 358 Ark. 137, 155, 189 S.W.3d 1, 13 (2004)). Most notably, we have stated, “This does not mean that if certain school districts provide more than an adequate education, 113all school districts must provide more than an adequate education with identical curricula, facilities, and equipment.” Lake View, 358 Ark. at 155, 189 S.W.3d at 13.
In addition, ADE’s contention that Ark. Code Ann. § 6-20-2306, which permits ADE to adjust for overpayments, sanctions its actions must also fail. That statute provides certain remedies for ADE where an overpayment has been made to a school district under any appropriation authorized by the subchapter. While the term “overpayment” has not been defined by the General Assembly, it is patently clear that the URT revenues in excess of the foundation-funding amount at issue here were not overpayments in the traditional sense of the word. Section 26-80-101 simply provides that the “net revenues from the uniform rate of tax” shall be remitted to the State Treasurer and distributed by the State to the county treasurer of each county for distribution “pursuant to subsection (c).” Ark.Code Ann. § 26-80-101(b)(l)(A). It does not distinguish between revenues meeting the foundation-funding amount and excess revenues; instead, it simply dictates that “the” net URT revenues “shall” be remitted and distributed. In other words, all URT revenues shall be remitted and distributed. Because the statutory scheme in no way suggests a distinction between the URT revenues meeting the foundation-funding amount and those in excess thereof, it cannot be said that the excess funds constituted an overpayment, such that ADE could implement the remedies set forth in section 6-20-2306.
Admittedly, the School Districts here have not “voted in” the excess funds at issue; nonetheless, we consider it a distinction without a difference between excess monies earned as a result of properly values in collecting the twenty-five mills and excess monies raised from an additional ad valorem-property tax enacted by a district. This is so because each and every school district in Arkansas has received, or will receive, funds in the amount that the General Assembly has determined appropriate to provide an adequate education, by virtue of their receipt of the foundation-funding amount. And further, the statutory scheme for the disbursement of URT revenues has no provision establishing a procedure by which ADE might redistribute one district’s excess funds to another district.
The dissenters’ protestations to our decision today are positively confounding and have absolutely no basis in the law. While they so subtly suggest that the majority’s decision is in violation of our decisions in DuPree and Lake View, nothing could be further from the truth. First, the dissenters have a.fundamental misunderstanding of both the facts and the holding in Du-Pree. In that case, this court was faced with a school-funding system, which bore “no relationship to the educational needs of the individual districts,” but was “determined 'primarily by the tax base of each district.” DuPree, 279 Ark. at 345, 651 S.W.2d at 93 (emphasis added). It was a funding system based on district wealth, and we held that such a system of funding had “no rational bearing on the educational needs of the districts.” Id. at 346, 651 S.W.2d at 93.
|1fiIn complete contrast, the system in place today is based entirely on the need to provide an adequate and substantially equal education to every student — a system that this court, including two of the dissenters, upheld in Lake View, 370 Ark. 139, 257 S.W.3d 879. It is no longer reliant on the state treasury’s prosperity, nor is it left to the ever-fluctuating wiles of our school districts’ wealth. Instead, it is based on a determination, first and foremost, of what amount is required to provide the students of this state with an adequate and substantially equal education. Utterly absent from the dissenting opinions is any mention of the foundation-funding amount, which serves as the basis of the instant funding system. Because every school district receives this amount per student, each student is guaranteed an adequate education as demanded by our constitution and mandated by our decisions in the Lake View cases. Indeed, no one in the instant case alleges any inadequacy -or inequality in the education being received by Arkansas students today, but for the dissenters’ machinations.
The dissenters further profess that they are adhering to the General Assembly’s intent. But again, nothing could be further from the truth. The very plain language of our constitution requires that the URT revenues be distributed “as provided by law.” The General Assembly made clear its intent when it included subsection (c) in section 26-80-101(b)(l)(A), a subsection quite conveniently discounted or ignored by the dissenters. This subsection, in no uncertain terms, requires the return of the URT net revenues “to each local school district from which the revenues were derived.”
Our General Assembly has painstakingly set forth the law, in accord with this court’s decisions, and this majority recognizes that law and interprets it herein. While the dissenters |1fiwould have us ignore the General Assembly’s efforts, we simply will not do so. Should the General Assembly wish to provide a mechanism or procedure by which excess funds may be distributed to other districts, it is certainly within its purview to do so — no time machine required.
In sum, pursuant to our constitution, URT revenues must be distributed as provided by law, and the General Assembly has seen fit to authorize and set forth a procedure that, at least currently, requires that those funds be returned to the sole district from which they were derived. Accordingly, we cannot say that the circuit court erred in so finding.
B. ADE’s Authority over Budgets
For its second point on appeal, ADE argues that the circuit court erroneously found that it had wrongly withheld funds from the School Districts based on their failure to submit approved budgets. ADE urges that because the School Districts’ budgets included as ongoing revenue the projected excess funds from the URT revenues, the budgets were deficient, and it was required to withhold state grants and aids, namely categorical funding, from the School Districts. ADE asserts that the funds were not withheld for repayment of the URT revenues in excess of the foundation-funding amount, but were withheld because the budgets were deficient in planning to expend l’evenues above and beyond the foundation-funding amount. ADE further claims that sovereign immunity barred the circuit court from ordering it to -pay money damages
The School Districts respond that ADE “set off’ amounts of categorical funding due to the School Districts merely because ADE subjectively determined that their budgets were |17deficient, when in reality they were not. They aver that sovereign immunity has no bearing on the issue.
As a part of the Arkansas Educational Financial Accounting and Reporting Act of 2004, Ark.Code Ann. § 6-20-2202(a)(l) (Supp.2009) requires that the board of directors of each school district in the state shall prepare a budget of expenditures and receipts that shall be filed with ADE each year. The budgets are to be reviewed by the auditors of ADE’s financial accountability office to determine whether the requirements of state law and the rules of the State Board of Education regarding the use of school funds and expenditure requirements are being met. See Ark. Code Ann. § 6-20-2202(c)(l)(A). If the financial records are deficient, then the school district shall be notified and shall have thirty days to respond prior to suspension of grants and aids. See Ark.Code Ann. § 6-20-2202(c)(l)(B). If the auditors determine that the financial records of any school district
are not,properly maintained or that the financial affairs of the school district ... are not administered in accordance with state law or state board rules, grants and aids from the state to which the school district ... may be entitled shall be withheld until it is determined that the fiscal records of the school district ... are in order or that the financial affairs are being properly administered as established by statute or by rule promulgated by the state board, provided that the Department of Education has met all deadlines for providing information to school districts, open-enrollment public charter schools, or education service cooperatives.
ArtCode Ann. § 6-20-2202(d)(2).
In the instant case, ADE considered the School Districts’ submitted budgets deficient in that they included within their budgeted revenue the URT revenues in excess of the foundation-funding amount that ADE believed did not belong to the School Districts. As already set forth above, any belief by ADE that those monies were not to be returned solely 11Rto the districts from which they were derived was mistaken. Accordingly; the School Districts’ budgets were not deficient in this manner, and any withholding of categorical funds by ADE from the School Districts on this basis was in error.
In its order of January 20, 2012, the circuit court ordered ADE to pay and release to the School Districts the sums of categorical funding that had been withheld or set off by ADE from the School Districts. According to the circuit court’s order, ADE had previously given notice that it would be holding those funds in a separate escrow account. The circuit court found that its prior injunction issued September 20, 2011, applied to the categorical funding due the School Districts, and it directed that those monies be paid to the School Districts.
Because ADE wrongly determined that the School Districts’ budgets were deficient and therefore wrongfully withheld the categorical funds to which the School Districts were otherwise entitled, the circuit court did not err in directing ADE to release those funds to the School Districts. They were legally entitled to those funds, and ADE wrongfully withheld them. Any argument by ADE that the circuit court assessed money damages against it in contravention of sovereign immunity is untenable.
For all the foregoing reasons, we affirm the circuit court’s orders on direct appeal.
II. Cross-Appeal
For their sole point on cross-appeal, the School Districts argue that the circuit court erred in its conclusion that URT revenues are state-tax revenues. They contend that Amendment 47 to the Arkansas Constitution prohibits any ad va-lorem tax levied upon property by the State and that Amendment 74 lacks any language therein suggesting that the |!9twenty-five-mill URT ad valorem-school-pfoperty tax constitutes a state tax. They aver that the twenty-five-mill URT was not levied by Amendment 74, but was simply established by the Amendment, as evidenced by its language of “to be levied.” They further assert that, merely because the revenues pass through the State Treasurer, the funds are in no way converted from local to state revenues. ADE counters that the URT was passed and levied by a collective vote of the people, to be remitted to the State Treasurer, and distributed by the State; therefore; it claims, it is a state tax.
Amendment 47 quite clearly and succinctly provides that “[n]o ad-valorem tax shall be levied upon property by the State.” Ark. Const, amend. 47. An ad valorem is a tax on the value of property. See Weiss v. McFadden, 353 Ark. 868; 120 S.W.3d 545 (2003). Here, art. 14, § 3(b)(1), as amended by Amendment 74, provides, in relevant part, that “[tjhere is established a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility properly in the state to be used solely for maintenance and operation of the schools.” The URT was deemed not to be an additional levy, but was to replace a portion of the existing rate of tax levied by each school district. See Ark. Const, art. 14, § 3(b)(2). Further, the URT is to be assessed and eol-lected |gnin the same manner as other school-property taxes, but the net revenues are to be remitted to the State Treasurer and distributed to the school districts as provided by law. See Ark. Const, art. 14, § 3(b)(3). However, no portion of the revenues from the URT shall be retained by the State. See id.
In Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997), this court rejected the notion that school-district taxes were county taxes. Instead, this court noted that “under the constitution school taxes and county taxes are treated differently.” 327 Ark. at 594, 939 S.W.2d at 839. This court then noted the distinction drawn by the General Assembly in that it had consistently treated school districts, counties, and municipalities as separate taxing units. See id. Such a distinction is evidenced by Ark. Code Ann. § 26-80-1.04 (Repl.2008), wherein the General Assembly has directed that “[t]he school tax shall be collected in the same manner as county taxes are collected, at the same time and by the same person, and shall be paid into the county treasury.” Ark.Code Ann. § 26-80-104(b).
Clearly, the URT is not a county tax, but further absent is any suggestion whatsoever that it is a state tax. To the contrary, both the General Assembly and this court seem to have recognized school taxes as a breed of their own that are neither state nor local. As such, the URT is not converted to a state tax solely because the revenues are remitted to the State Treasurer and then back to the school districts. In Arco Auto Carriers, Inc. v. State, 232 Ark. 779, 341 S.W.2d 15 (1960), Arco challenged the validity of certain ad valorem taxes on trucks and equipment used to haul for hire into and through the state in interstate commerce. Arco argued, among other things, that Amendment 47 prohibited the levy of an ad-valorem tax by l^the State; however, this court disagreed that the tax was a violation of Amendment 47:
Here the State has levied no ad valorem tax. An agency of the State has merely ascertained the value of the property. True, under the provisions of Act 168 of 1953 (Ark.Stats. § 84-614) the Commissioner of Revenues collects the tax, but the same act provides that the State Treasurer shall pay the amounts so collected to the County Aid Fund and in turn shall distribute same to the various counties on a proportionate basis as set out therein (Ark.Stats. § 84-615). It can readily be seen that this is a county tax merely administered by a State agency for the purpose of efficiency, and therefore is not in violation of Amendment 47.
232 Ark. at 783, 341 S.W.2d at 18.
Similarly, the instant tax was approved by the voters, is imposed or levied by local school districts, and is assessed and collected by local county treasurers. While the funds are remitted to the State Treasurer for a brief period, they are then redistributed to the county treasurers for distribution to the school districts from which they came.
There simply is no basis on which to find that the URT is a state-ad valorem tax. Instead, it is a one-of-a-kind tax, a school-district tax, approved by the voters of the State of Arkansas, and levied, assessed, and collected by the counties for the sole use of the school districts. Any conclusion by the circuit court that the URT revenues were state revenues was simply erroneous. We therefore reverse this sole finding by the circuit court and remand on cross-appeal for entry of an order consistent with this opinion.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
HANNAH, C.J., BROWN, J., and Special Justice GEORGE D. ELLIS dissent.
GUNTER, J., not participating.
. This court granted ADE's motion to stay on February 9, 2012.
. Subsection (c)(1) of art. 14, § 3 permits a school district to levy, by a vote of its qualified electors, an annual ad valorem-property tax for the maintenance and operation of the schools and the retirement of indebtedness. Subsection (c)(3) specifically prohibits any tax so levied from being appropriated to any other district than that for which it was levied.
. Indeed, ADE conceded this in its response to the School Districts’ motion for preliminary injunction, wherein it asserted that receipt of the foundation-funding amount equates to a district’s receipt of a "constitutional level of revenue.”
. In addition, the School Districts ask this court to remedy the language used in City of Fayetteville v. Washington County, 369 Ark. 455, 255 S.W.3d 844 (2007), which they claim suggests the twenty-five-mill URT is a state tax. We disagree that it does. The language is this:
The 25 mills under Amendment 74, as the circuit court correctly emphasized, is a tax adopted by the collective voters of the state, who levied the uniform rate of 25 mills as a matter of constitutional law when they approved Amendment 74.
369 Ark. at 473, 255 S.W.3d at 856-57. This language in no way holds that the URT or school-district taxes are state taxes.
. The parties seem to agree that the funds are in the hands of the State Treasurer for no more than twenty-four hours at most. | [
84,
-18,
-10,
60,
-70,
-128,
114,
-114,
81,
35,
101,
83,
109,
-33,
20,
121,
-29,
111,
112,
120,
-42,
-77,
83,
96,
54,
-69,
-7,
-41,
-71,
-4,
-28,
-34,
78,
49,
-30,
85,
70,
-62,
-51,
80,
-90,
-126,
-85,
77,
-7,
-61,
56,
37,
58,
11,
33,
-114,
-13,
45,
-104,
67,
76,
46,
-39,
-93,
1,
-77,
-102,
15,
95,
6,
-127,
53,
-101,
-125,
72,
42,
-112,
57,
8,
-24,
122,
-90,
-62,
84,
73,
-119,
9,
96,
98,
3,
-79,
-25,
-68,
8,
22,
-33,
13,
-26,
-110,
89,
106,
13,
-74,
21,
116,
22,
1,
-10,
-92,
-59,
86,
125,
-92,
-50,
-52,
-77,
-90,
37,
6,
66,
-21,
0,
48,
117,
-115,
-58,
84,
87,
50,
-101,
-42,
-12
] |
COURTNEY HUDSON GOODSON, Justice.
| Appellants Elizabeth Worden and Douglas Spires, as the heirs at law of Alfred Spires, deceased, appeal an order entered by the Pulaski County Circuit Court dismissing their complaint alleging claims for malpractice and wrongful death against appellees Dr. Jeffrey Kirchner, M.D.; Arkansas Health Group, d/b/a North Little Rock Emergency Doctors Group (Arkansas Health); Baptist Health, d/b/a Baptist Health Medical Center-North Little Rock (Baptist Health); and Baptist MedCare, Inc., d/b/a Practice Plus (Baptist MedCare). For reversal, appellants contend that the circuit court erred by granting summary judgment prior to the completion of discovery; by dismissing their complaint against Dr. Kirchner |2pursuant to Arkansas Rule of Civil Procedure 12(b)(6) (2013); by dismissing their complaint against Arkansas Health, Baptist Health, and Baptist MedCare on the ground that appellants’ claims were barred by the statute of limitations; and by ruling that they could not assert claims on behalf of the decedent. We granted appellants’ petition for review from the court of appeals’ decision in Worden v. Kirchner, 2013 Ark. App. 168, 2013 WL 831102. Therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(e) (2013). We find no error and affirm.
On November 21, 2011, appellants, pro se, instituted the present lawsuit against appellees alleging “medical injury and the wrongful death of Alfred Spires (Deceased).” According to the complaint, on June 27, 2008, the decedent, Alfred Spires, who was a resident of Florida, became ill while visiting relatives in Sheridan, Arkansas. On that date shortly before 10:00 a.m., an ambulance transported him to the emergency room at Baptist Health Medical Center in North Little Rock. The decedent died later that day at 1:55 p.m., after collapsing in a hallway between emergency-room departments.
As grounds for their claims of negligence, appellants alleged that, upon arrival at the emergency room, the decedent relayed a history of myocardial infarction, yet hospital staff failed to perform a cardiovascular assessment. Appellants al leged that emergency-room personnel misdiagnosed the decedent’s condition as abdominal pain because, in fact, the decedent was having a heart attack, as evidenced by the findings of the decedent’s autopsy listing arteriosclerotic cardiovascular disease as the cause of death. Appellants further asserted that a myocardial infarction requires immediate medical attention and that treatment was delayed in the care of the decedent.
|sAppellees filed a joint answer to the complaint, and later each appellee filed separate motions to dismiss. In Kirchner’s motion for dismissal, he argued that appellants’ complaint should be dismissed pursuant to Rule 12(b)(6) because it failed to state facts upon which relief could be granted. In particular, Kirchner asserted that the complaint did not set forth facts pertaining to the applicable standard of care, how he failed to act in accordance with that standard, or how that alleged failure proximately caused the decedent’s death. Kirchner stated that “nothing in the Complaint even indicates that [I] personally saw [the decedent] or provided him with any medical care or treatment.” Kirchner further alleged that appellants’ complaint against him should be dismissed with prejudice because the statute of limitations had since expired. In addition, Kirchner argued that appellants’ complaint was a nullity, insofar as appellants were seeking damages for injuries sustained by the decedent. He asserted that such an action to recover damages for injuries to a decedent can only be brought by an administrator or executor on behalf of the decedent’s estate. Kirchner claimed that appellants, as the decedent’s heirs, lacked the ability to assert claims sought in the complaint for the decedent’s pain and suffering, loss of life, medical expenses, funeral and burial expenses, or any other alleged injury to the decedent.
In their motions to dismiss, Arkansas Health, Baptist Health, and Baptist Med-Care argued primarily that dismissal was warranted because appellants did not commence an action against them within the applicable two-year statute of limitations. On this issue, appellees alleged that appellants previously had nonsuited their cause of action. Appellees stated that the original lawsuit was instituted against other defendants on June 24, 2010, within the | limitations period. Appellees asserted, however, that they were not named as defendants in that lawsuit until appellants filed an amended complaint on October 1, 2010, which was outside the limitations period. They also argued that appellants could not seek damages for injuries suffered by the decedent for the same reason offered by Kirchner.
Appellants did not file responses to ap-pellees’ motions to dismiss. After appellants’ response time had lapsed, appellees submitted a proposed order of dismissal to the circuit court. On February 3, 2012, the circuit court granted appellees’ motions and dismissed appellants’ complaint with prejudice. Subsequently, appellants filed a motion for the circuit court to reconsider its decision, and they requested a hearing on the motions. The circuit court did not hold a hearing, nor did it act on the motion to reconsider. Therefore, the motion to reconsider was deemed denied by operation of law. Appellants timely filed a notice of appeal.
The court of appeals affirmed the circuit court’s order in Worden v. Kirchner, supra. We subsequently granted appellants’ petition for review. When this court grants a petition for review, we treat the appeal as if it had been originally filed in this court. McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91, 2013 WL 5859515.
Appellants first argue that the circuit court erred in granting appellees’ motions for “summary judgment” before the completion of discovery. In support of this argument, appellants refer us to our decision in First National Bank v. Newport Hospital & Clinic, Inc., 281 Ark. 332, 663 S.W.2d 742 (1984), where we held that a plaintiff is entitled to have the benefit of adequate discovery “as the nature of the case requires” before a motion for summary | ¡¿judgment should be granted. First Nat’l Bank, 281 Ark. at 335, 663 S.W.2d at 744. However, in this case, appellants did not alert the circuit court that any discovery efforts were ongoing that were pertinent to their defense of motions to dismiss, nor did they urge the court to delay consideration of the motions to dismiss until discovery was completed. Therefore, it is clear that appellants failed to bring this issue to the attention of the circuit court. It is well settled that this court will not consider arguments raised for the first time on appeal. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427. Moreover, to prevail on this issue, appellants had to show that additional discovery would have changed the outcome of the case. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994). Appellants have failed to meet this burden. Accordingly, we affirm on this point.
Next, appellants contend that they alleged sufficient facts in their complaint to survive Kirchner’s motion for dismissal under Rule 12(b)(6). Specifically, they argue that their complaint clearly stated facts pertaining to the care that the decedent received, the negligence of Kirehner, and their claims for damages.
Our standard of review regarding a motion to dismiss is well established. In reviewing a circuit court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393, 430 S.W.3d 29, 2013 WL 5571202. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. Our standard of review for the granting of a motion to dismiss under Rule 12(b)(6) is whether the circuit judge abused his or her discretion. St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761.
Arkansas Rule of Civil Procedure 8(a)(1) requires that a complaint state facts, not mere conclusions, in order to entitle the pleader to relief. Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324. Only facts alleged in the complaint are treated as true, not the plaintiffs theories, speculation, or statutory interpretation. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377. Rules 8(a)(1) and 12(b)(6) must be read together in testing the sufficiency of a complaint. Id. In an action concerning medical injury, the elements to be proved are the applicable standard of care, that the medical provider failed to act in accordance with that standard, and that such failure was a proximate cause of the plaintiffs injuries. Ark. Code Ann. § 16-114-206 (Repl.2006); Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002).
The gravamen of appellants’ claim against Kirehner is the allegation that Kirchner “deviated from the acceptable standard of care resulting in the misdiagnosis of Plaintiff, Alfred Spires’s condition delaying life saving treatment on June 27, 2008.” However, the complaint provides no facts in support of this allegation. Bereft of any factual support, this statement is conclusory, as it does not state in specific terms how Kirchner “deviated from the acceptable standard of care resulting in the misdiagnosis” of the decedent. Moreover, the complaint does not contain sufficient facts on the element of proximate causation. In this regard, the complaint states only that “[a]s a proximate cause of the aforesaid actions and negligence, Plaintiffs have sustained damages.” Yet, the complaint fails to allege how Kirchner’s actions 17—or lack thereof—specifically caused the decedent’s death. We conclude that these conclusory statements are not sufficient under the Arkansas Rules of Civil Procedure, which identify Arkansas as a fact-pleading state. See Ark. R. Civ. P. 8(a)(1); see also DeSoto Gathering Co., LLC v. Smallwood, 2010 Ark. 5, 362 S.W.3d 298. For this reason, the circuit court did not abuse its discretion in granting Kirchner’s motion to dismiss.
Next, appellants argue that the claims they asserted against appellees Arkansas Health, Baptist Health, and Baptist MedCare are not barred by the statute of limitations. Appellants maintain that they filed their complaint in the original action within the statute of limitations. Further, appellants contend that the amended complaint in that lawsuit naming these appel-lees as defendants related back to the date of the original complaint pursuant to Arkansas Rule of Civil Procedure 15(c) (2013), thereby satisfying the statute of limitations.
In their motions to dismiss, appellees Arkansas Health, Baptist Health, and Baptist MedCare did not argue that appellants failed to refile their complaint within the one-year period following the nonsuit, as accorded by the savings statute found at Arkansas Code Annotated section 16-62-102(c)(2) (Repl.2005). Instead, it was their argument that, in order to invoke the protections of the savings statute, the appellants must have commenced the original action against them within the statute of limitations. See, e.g., Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003) (holding that a plaintiff must timely commence the original lawsuit for a savings statute to apply). Here, the statute of limitations for appellants’ cause of action against appel-lees was two years pursuant to Arkansas Code Annotated section 16-114-203 (Repl. 2006). See St. Paul Mercury Ins. Co. v. Circuit Ct. of Craighead Cnty., 348 Ark. 197, 73 S.W.3d 584 (2002) (holding that the two-year statute-of-limitations period for medical-malpractice actions set forth in section 16-114-203 applies to all causes of action for medical injury, including wrongful-death actions). The alleged wrongful acts occurred on June 27, 2008. Therefore, the statute of limitations expired two years later on June 27, 2010. As alleged by appellees, appellants filed the complaint in the original action on June 24, 2010, a few days before the statute of limitations expired. Subsequently, on October 1, 2010, appellants filed an amended complaint adding appellees as defendants. However, appellants filed this October 1, 2010 amended complaint against appellees outside the two-year statute of limitations, as this period expired on June 27, 2010. Because appellees were not named as party defendants until after the statute of limitations had expired, the savings statute does not apply, and the suit against them is time-barred.
Nonetheless, appellants argue that their claims are not barred by the statute of limitations because the amended complaint filed on October 1, 2010, relates back to the filing of the initial complaint on June 24, 2010. This argument is based on the provisions of Arkansas Rule of Civil Procedure 15(c) (2013):
(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 |9defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
However, appellants neglected to raise this issue in the circuit court. It is axiomatic that this court will not consider arguments raised for the first time on appeal. Boellner v. Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745. Because this issue was not raised below, there is nothing in the record to support appellants’ argument that they met the relation-back requirements set out in Rule 15(c)(2). Therefore, we are unable to decide this issue.
Finally, appellants contest appellees’ assertions that they could not bring claims on behalf of the decedent. We need not address this argument. Because we are affirming the circuit court’s dismissal order on other grounds, any question of appellants’ ability to assert claims on behalf of the decedent is moot. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001) (observing that an issue becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy).
Affirmed; court of appeals’ opinion vacated. | [
52,
108,
-35,
-84,
9,
-95,
58,
34,
83,
-117,
101,
115,
-19,
-7,
93,
111,
-29,
61,
65,
113,
-79,
-73,
95,
96,
-46,
-41,
-93,
-122,
-72,
-49,
-12,
-1,
77,
104,
-54,
21,
-62,
78,
-19,
-40,
-58,
0,
11,
-16,
89,
-47,
56,
-2,
94,
7,
117,
30,
-14,
-88,
62,
-61,
108,
44,
89,
-68,
80,
-80,
-54,
13,
95,
16,
33,
-122,
-71,
7,
80,
60,
-104,
48,
8,
-18,
50,
-74,
-62,
5,
103,
-99,
12,
100,
-26,
-96,
5,
-27,
-96,
-72,
14,
46,
29,
-89,
-118,
121,
91,
-117,
-105,
-67,
125,
60,
6,
-8,
-84,
-44,
94,
44,
-124,
-114,
-112,
-77,
-73,
-32,
-100,
-1,
-25,
-49,
118,
117,
-115,
-14,
85,
-57,
51,
-65,
26,
-80
] |
LARRY D. VAUGHT, Judge.
hA Poinsett County jury convicted John Allen Woods of raping C.N., his minor stepdaughter, and the trial court imposed a forty-year prison sentence. On appeal, Woods argues that the trial court erred by allowing the introduction of prior bad acts into evidence under the pedophile exception to Arkansas Rule of Evidence 404(b). He also argues that there is insufficient evidence to support the rape conviction. We affirm.
On July 11, 2012, the State filed a felony information charging Woods with one count of rape, pursuant to Arkansas Code Annotated section 5-14-103 (Supp.2011), occurring on or about March 8, 2012, and one count of sexual indecency with a child, pursuant to Arkansas Code Annotated section 5-14-110 (Supp.2011), occurring on or about March 8, 2012. In an amended felony information, the State changed the dates of the alleged offenses to March 2, 2011-March 2, 2012.
1 ¡Woods moved in limine, pursuant to Arkansas Rules of Evidence 404(b) and 403, to exclude evidence of a 1998 Missouri conviction for first-degree child molestation. At a pretrial hearing, Woods argued that evidence of his prior conviction was not independently relevant and that the danger of prejudice greatly outweighed any probative value of the evidence. He also argued that because the conviction occurred fifteen years ago, it was inadmissible under Arkansas Rule of Evidence 609. The State responded that the evidence was admissible under the pedophile exception to Rule 404(b) because the facts surrounding the sexual abuse of the victim in Missouri were similar to the allegations made by C.N. The trial court found that the evidence was admissible under the pedophile exception and denied Woods’s motion in limine.
A jury trial followed, wherein twenty-four-year-old K.L. testified that from the time she was four years old until she was about seven, Woods, her stepfather at the time, sexually abused her. She said that he touched her vagina with his hands; kissed her on her mouth, chest, and vagina; and rubbed her breasts with his hands. K.L. said that the abuse occurred three times a week—sometimes more— when her mother was away and after Woods instructed KL.’s younger siblings to stay in the front room and watch televi sion. She told the jury that she did not tell anyone about the abuse because Woods told her that he would kill her mother. He also told K.L. that no one would believe her. She testified that Woods pleaded guilty to sexually abusing her. At the conclusion of K.L.’s testimony, the trial court sua sponte gave a cautionary instruction to the jury that Woods was not on trial for the allegations made by K.L.
|SC.N., thirteen years old at the time of trial, testified that she lived with her mother, her stepfather Woods, and two siblings. C.N. said that between August 2011 and March 2012, while her mother was at work and after Woods told C.N.’s siblings to watch a movie, play video games, or play outside, Woods took her to a bedroom and sexually abused her. C.N. said that approximately fifteen times, he held her down, felt her breasts, and inserted his fingers in her vagina. C.N. added that Woods kissed her on the mouth and watched her take showers. She said that she did not tell anyone because he told her that she would be taken away from her mother and that no one would believe her.
C.N.’s siblings, J.W. (eleven years old) and M.W. (nine years old), testified that between the dates of August 2011 and March 2012, they remembered, on more than one occasion, Woods telling them to go outside or watch TV and then taking C.N. into their parents’ room and shutting the door. Ellen Sharp, C.N.’s mother, testified that on March 8, 2012, she received a text message from C.N., stating that Woods had been touching her. Ellen said that Woods denied the allegations.
Gary Hefner of the Harrisburg Police Department testified that he investigated C.N.’s rape allegations against Woods, interviewing all the parties involved. He said that he did not take C.N. to a medical facility for an examination.
Woods testified that on March 8, 2012, he and C.N. argued when Woods would not let her go to a friend’s house. C.N. screamed at Woods, and he sent her to her room and told her that she could not go to a dance. In response, she told him she was going to get her way. He |4denied C.N.’s allegations of abuse. While admitting his prior child-molestation conviction, he denied most of K.L.’s allegations.
At the conclusion of the evidence, counsel for Woods renewed prior motions for directed verdict on the rape and sexual-indecency-of-a-child charges. The trial court granted the motion as it related to the sexual-indecency-of-a-child charge, but denied the motion as it related to the rape charge. The case was submitted to the jury, which found Woods guilty of rape and recommended a sentence of forty years’ imprisonment. The trial court accepted the jury’s sentencing recommendation, and the sentencing was formalized in an order entered by the trial court on January 29, 2013. Thereafter, Woods filed a motion for judgment notwithstanding the verdict, arguing that he did not receive a fair trial because KL.’s testimony inflamed the jury, the trial court’s cautionary instruction following K.L.’s testimony was improper, and the evidence was insufficient to support the verdict. The trial court, on February 12, 2013, entered an order denying the motion for judgment notwithstanding the verdict. Woods timely appealed.
Woods raises two points on appeal. The first is that the trial court erred in admitting evidence of the 1998 child-molestation conviction under the pedophile exception to Rule 404(b). Second, he argues that there is insufficient evidence to support the rape conviction. Because of double-jeopardy concerns, we address Woods’s second point on appeal first. Breeden v. State, 2013 Ark. 145, at 3, 427 S.W.3d 5, 8.
In reviewing 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 verdict. Richey v. State, 2013 Ark. App. 382, at 2, 2013 WL 3149240. This court will affirm a conviction when there is | Ssubstantial evidence to support it, and substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion without resorting to speculation or conjecture. Id. Moreover, the jury is responsible for determining the weight and credibility of evidence. Id.
For his sufficiency-of-the-evidence argument, Woods contends that the trial court erred in admitting evidence of the Missouri child-molestation conviction and that without the evidence of his prior bad acts, the only evidence supporting the rape conviction was C.N.’s testimony. He adds that there was no physical evidence supporting the allegations and that he denied the allegations.
A person commits the offense of rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark.Code Ann. § 5-14-103(a)(3)(A) (Supp.2011). “Deviate sexual activity” is defined as “any act of sexual gratification” involving “[t]he penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person.” Ark.Code Ann. § 5—14—101(1)(B) (Supp.2011).
We first note that when we consider an appeal where sufficiency of the evidence is an issue and there are also arguments that certain evidence introduced during trial was inadmissible, we consider all the evidence, even that which may have been erroneously admitted at trial. Ryan v. State, 30 Ark.App. 196, 199, 786 S.W.2d 835, 837 (1990). Therefore, for purposes of reviewing the sufficiency of the evidence, contrary to Woods’s argument, we consider KL.’s testimony in the light most favorable to the State.
| ^Additionally, according to C.N.’s testimony, on fifteen occasions between August 2011 and March 2012, when C.N. was twelve years old, Woods put his fingers in her vagina. A rape victim’s uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Breeden, 2013 Ark. 145, at 4, 427 S.W.3d at 8. The rape victim’s testimony need not be corroborated, and scientific evidence is not required. Id. at 4-5, 427 S.W.3d at 8-9. Moreover, it is the function of the jury, and not the reviewing court, to evaluate the credibility of witnesses and to resolve any inconsistencies in the evidence. Id. at 5, 427 S.W.3d at 9. Finally, a lack of physical findings is not conclusive evidence that no rape occurred. See Benson v. State, 357 Ark. 43, 47, 160 S.W.3d 341, 343 (2004). Based on the testimony of C.N. and K.L., we hold that there is sufficient evidence to support the rape conviction and affirm on this point.
Woods’s second point on appeal is that the trial court abused its discretion by admitting his prior conviction under Arkansas Rules of Evidence 404(b) and 403. Rule 404(b), entitled “Other Crimes, Wrongs, or Acts,” generally excludes evidence of a defendant’s prior bad acts; however, it also contains an exemplary, but not exhaustive, list of exceptions. Craigg v. State, 2012 Ark. 387, at 6, 424 S.W.3d 264, 267-68. We have explained that 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. at 6-7, 424 S.W.3d at 267-68.
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. Id. at 7, 424 S.W.3d at 268. The pedophile exception 17allows 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., 424 S.W.3d at 268. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Id., 424 S.W.3d at 268.
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., 424 S.W.3d at 268. We also require that there be an “intimate relationship” between the defendant and the victim of the prior act. Id., 424 S.W.3d at 268. 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. Id., 424 S.W.3d at 268.
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. Id. at 8, 424 S.W.3d at 268. Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Id., 424 S.W.3d at 268.
Woods argues that the pedophile exception is inapplicable to his 1998 Missouri child-molestation conviction because the facts surrounding the 1998 conviction and C.N.’s rape allegations are factually dissimilar. He asserts that the ages of the two alleged victims and the facts surrounding the sexual abuse are not the same. We disagree. In this case, there were sufficient similarities to satisfy the pedophile exception. In both instances, Woods engaged his | ^stepdaughters, who were both minors at the time and with whom he lived. He touched the breasts and vagina of both children with his hands. In both instances, he created opportunities for the abuse by waiting until the children’s mothers were away and by intentionally isolating the victims from their siblings. Finally, he threatened both girls not to report the abuse.
Woods also argues that the 1998 child-molestation conviction, which occurred fifteen years ago, is too remote to be admissible under Rule 404(b). Again, we disagree. In Craigg, our supreme court held that the defendant’s seventeen-year-old prior conviction for lewd molestation fell within the pedophile exception of Rule 404(b) and was admissible in the defendant’s rape trial. 2012 Ark. 387, at 11-12, 424 S.W.3d at 270-71. See also Lamb v. State, 372 Ark. 277, 285, 275 S.W.3d 144, 150 (2008) (holding that the 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). Therefore, we cannot say that the trial court abused its discretion in admitting Woods’s 1998 conviction under the pedophile exception.
Alternatively, Woods argues that if the pedophile exception does apply, the prejudicial value of the 1998 conviction far outweighs its probative value under Rule 408, and that Arkansas Rule of Evidence 609, which governs the impeachment of witnesses, precludes the admission of the evidence due to the age of the conviction. On these points, the trial court found that the |91998 conviction had prejudicial value; however, citing Craigg, the trial court concluded that prejudicial value of the evidence was outweighed by its probative value based on the similarities of the two incidents in question. Further, regarding the time limit imposed in Rule 609, the trial court concluded that it applied to the introduction of prior convictions for purposes of impeachment in terms of truthfulness. In contrast, in the instant case, the trial court found that the evidence at issue was being offered, under the pedophile exception, to show the particular sexual depravity of Woods—not to show that he was untruthful. We cannot say that the trial court abused its discretion on these points. Therefore, we affirm.
Affirmed.
WHITEAKER and BROWN, JJ„ agree.
. The State also introduced certified copies of the Missouri judgment and sentence entered against Woods in 1998.
. Woods also argues that the trial court’s sua sponte cautionary instruction following the testimony of K.L. failed to correct the prejudice caused by the admission of his prior conviction and that the trial court should have instructed the jury with AMI Crim.2d 203A, which states that evidence of other crimes, wrongs, or acts of the defendant may not be considered to prove his character in order to show that he acted in conformity therewith. However, Woods neither objected to the trial court’s cautionary instruction when it was given nor requested or proffered AMI Crim.2d 203A when the jury instructions were read at the end of the trial. Issues not raised at trial will not be addressed for the first time on appeal. Rohrbach v. State, 374 Ark. 271, 281, 287 S.W.3d 590, 598 (2008). Woods first questioned the propriety of the trial court’s cautionary instruction in his post-trial motion for judgment notwithstanding the verdict but cites no authority for such a motion in a criminal proceeding. Id. at 281, 287 S.W.3d at 598. | [
48,
-18,
-51,
-4,
29,
64,
10,
56,
50,
-13,
-15,
-45,
-81,
-62,
0,
123,
-94,
123,
84,
112,
-44,
-73,
55,
65,
-78,
-73,
57,
-41,
117,
75,
-84,
-44,
78,
112,
-50,
-15,
98,
74,
-11,
80,
-114,
10,
-117,
-44,
80,
-62,
46,
39,
74,
15,
49,
-66,
-13,
43,
22,
-53,
105,
12,
75,
-65,
88,
19,
-102,
23,
-81,
52,
-93,
-92,
-101,
0,
104,
32,
-40,
57,
0,
-23,
115,
-110,
6,
116,
77,
-119,
13,
96,
-30,
33,
60,
-25,
-96,
-119,
-89,
126,
-103,
-89,
-40,
104,
67,
109,
-73,
-44,
100,
84,
8,
-6,
-29,
110,
113,
104,
-115,
-115,
-76,
-103,
77,
-87,
84,
51,
-13,
63,
16,
101,
-49,
-14,
84,
-43,
88,
-37,
-98,
-73
] |
RITA W. GRUBER, Judge.
| j Robert Colquitt and Linda Colquitt married in 1989. They separated in 2011, and Mr. Colquitt filed a complaint for divorce in the Circuit Court of Columbia County. Ms. Colquitt answered and counterclaimed for divorce, requesting both an unequal division of property and spousal support. Mr. Colquitt withdrew his complaint and waived corroboration of grounds at the final hearing on September 12, 2012, and Ms. Colquitt was granted an absolute divorce. After hearing the parties’ testimony and receiving exhibits into evidence, the court took the matter of property division under advisement and ordered post-trial briefs. The court commented that the parties could “still make this work a whole lot better yourselves than I’m going to be able to do,” and urged them to “try to [settle] this yourselves while I’ve got this under advisement.” No settlement was reached.
The circuit court subsequently issued a letter opinion and a decree of divorce, entered on April 17, 2013. Mr. Colquitt now appeals, challenging the unequal division of four houses 12in Magnolia, Arkansas, which the parties owned as tenants by the entirety. He contends that the court’s decision to make an unequal division was clearly erroneous and, as to the marital home itself, was an error of law. We affirm.
A circuit court may order an unequal distribution" of marital property if the court finds an equal division to be inequitable; in such cases, the court shall recite its basis and reasons for not dividing the marital property equally. Ark.Code Ann. § 9-12-315(a). Our statute specifies the following:
(1)(A) All marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital properly, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of properly.
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter;
|s(2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1) of this section, in which event the court must state in writing its basis and reasons for not returning the properly to the party who owned it at the time of the marriage.
Ark.Code Ann. § 9-12-315(a) (Repl.2009).
In its letter opinion, the court noted that it had not received a stipulation of the rental property’s value despite a docket entry reflecting that counsel were to do so while the court had the case under advisement. The court also expressed its disappointment that neither party had done “a very good job” of establishing values for the personal property that each desired. From its review of the evidence and post-trial briefs, the court found that the case called for an unequal division of the marital estate and that the equities favored awarding Ms. Colquitt a larger share.
The court’s decree of divorce ordered the unequal division of the marital property after discussing the factors that the court had considered. Mr. Colquitt was awarded his three individual IRAs, Ms. Colquitt was awarded her individual IRA, and the parties were to divide equally an IRA held in their joint names. Mr. Col-quitt received all tools and diagnostic equipment necessary for his automobile-repair work, and the parties individually received various other items of personal property located within the marital residence. Ms. Colquitt was awarded the parties’ marital home at 623 West Monroe, where she had continued to live Rafter their separation, as well as their properties at 615 West Monroe and 318 South Kelso, which were two of three rental houses. Mr. Colquitt was awarded the property at 405 South Walnut, the parties’ third rental home. Each party was to be responsible for any debt related to property awarded by the decree. In light of the unequal division of property, the court denied Ms. Colquitt’s request for spousal suppoi’t.
Point on appeal: Whether the unequal division was dearly erroneous and, as to the marital home, was an error of law.
Mr. Colquitt first argues that the circuit court’s unequal division of real estate, which was held as tenants by the entirety, was clearly erroneous because it was “inappropriate on the evidence presented, especially because the court acknowledged it had no values to rely upon.” Second, he argues that “as to one tract, the marital home, an unequal division was an error of law” because it was purchased before 1997, when a statutory amendment first authorized unequal division of property owned as tenants by the entirety. See Cole v. Cole, 53 Ark.App. 140, 920 S.W.2d 32 (1996) (holding that the trial court could not rely on Ark.Code Ann. § 9-12-317(c) in awarding wife the entire interest in the marital residence because the statute was not passed until 1997, after the parties had acquired the property, and that doing so would impair a vested interest).
We do not address the second argument presented to us. An issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). Where nothing appears in the record reflecting that a particular argument was formulated before the trial court, or that any ruling was given, the appellant has waived review of that issue. Id. Furthermore, an appellant cannot complain on ^appeal that the trial court erred if the appellant induced, consented to, or acquiesced in the court’s position. Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001). Here, Mr. Col-quitt did not develop his argument regarding section 9-12-317 below, nor did the trial court rule upon it; as such, it is waived and cannot be addressed on appeal.
The parties testified at length about their real properties. Mr. Colquitt testified that the marital home at 623 West Monroe Street had sentimental value to him because he grew up there with his siblings. He acknowledged that the home had been appraised for $92,000 and had debt of about $3,500; however, he alternatively testified that he did “not know” its worth and that it was worth approximately $90,000. Regarding the rental houses, he testified that 405 South Walnut Street had an estimated value of about $38,000, on which about $12,000 was owed; 318 South Kelso had an approximate value of $33,000, with $15,000 or $16,000 being owed; and 615 West Monroe was valued at about $42,000, with $30,000 owed. He stated that the value of the tools he wished to retain for his automobile-repair business was “probably pretty similar” to the value of the marital home’s furniture and furnishings Ms. Colquitt wanted. He said that he could “buy COBRA for $538 a month” and would work until at least age sixty-five because he had no health insurance. He further testified:
If I kept my tools and was able to work and she kept all the furniture, then I would sell all the real property and divide the money. I see Ms. Colquitt’s figures here, if they are correct, there’s about $150,000 equity in the four pieces of real property. So she would get $75,000.00. She has her separate properly of $18,000 and we have about $60,000 in IRAs together. That’s about $30,000. She would have about $125,000 cash. I would have about $125,000 cash. She would have all the furniture and I would have all the tools.
IrMs. Colquitt testified that although her interrogatory answers valued 623 West Monroe at the appraised value of $92,000, “with the ... the neighborhood that we’re in it would not bring $90,000.” She related that the South Walnut property was appraised at $38,000, the Kelso properly was appraised at $33,000, and 615 West Monroe was “worth $42,000.” She acknowledged that her statement of financial means showed debt of $55,072 on the four properties’ total value of $205,000, leaving equity of about $150,000 to be divided equally, but she testified that she did not think a sale would bring “anything close” to their appraised value.
Ms. Colquitt testified that she had last worked as an LPN in 2009, when she retired from a clinic; that she currently was in her third year of employment at the Magnolia Housing Authority; that she planned to work two years more until age seventy; and that there was not much job market in Magnolia for her as a nurse unless she wanted nursing-home work. She said that her two small retirement checks and her social security combined for about $1,250 monthly. She testified that rental income was $500 for 615 West Monroe, $400 for Kelso, and $450 for South Walnut, totaling $1,350. She said that she did “not collect enough money in the rental account to almost exactly service the notes,” on which payments were $1,486; that nothing was left in the rental account after taxes and insurance; and that in the past year, the parties had paid significant upkeep on the houses. She asked the court to award the rental properties to her:
I know they’re upkeep but I’ve managed this past year. I would like to have them so that would be a retirement for me once they’re paid for. Other than what we just talked about in terms of retirement, that is the only additional income that I could receive. Assuming that I can keep renters in those houses I will have those rent houses 17paid off at some point in the future. I’m fairly close to paying off the marital home. I’ve made all those payments on the marital home in the last year.
The potential future income on these rental houses [is] more important to me at this age and station in my life than any proceeds I might realize from the sale. The future rental income is more important to me than the potential sale value of these properties at this time.
Ms. Colquitt noted that she would “have to pay a lot of taxes” should the properties be sold and were she to receive a lump sum of cash. In her posttrial brief, she stated that tax implications could be significant because both parties would have capital gains, further reducing the estate and diminishing her share.
On appeal, Mr. Colquitt asserts that the circuit court’s primary basis for an unequal property division was a perceived discrepancy in the parties’ present and future incomes. He complains that Ms. Colquitt now will have additional monthly income of $890 in rental income from the Kelso and West Monroe properties—the difference between what they bring in and the amount of the mortgage payments. He refers to evidence valuing the various properties as “questionable,” and he asserts that the court acknowledged having no information on their value.
The court’s decree of divorce included ten findings of fact considered by the court in rendering the unequal division of property under Arkansas Code Annotated section 9-12-315(1). First, the parties were married for twenty-three years; both contributed financially to the acquisition of the marital estate and the payment of monthly bills; both contributed financially and personally to the car-repair business established by Mr. Colquitt; and Ms. Colquitt contributed her talents as homemaker. Second, Ms. Colquitt was sixty-eight years |sold at the time of the hearing and Mr. Colquitt was fifty-nine.
Third, Ms. Colquitt had retired from the profession of nursing but continued to work for the housing authority, and her monthly income was $888.54 from her job, $1,052.90 from social security, APERS retirement of $133.15, and Aetna retirement of $77.14—totaling $2,151.73. Fourth, Ms. Colquitt planned to retire at age seventy, which was less than two years away and would reduce her income to $1,263.19. Fifth, Mr. Colquitt’s weekly income of $613.14, or $2,637.68 monthly, was $485.95 more than Ms. Colquitt’s monthly income. Sixth, there was presently a “significant difference in annual income” of $5,831.40, and upon Ms. Colquitt’s retirement in two years, there would be “a most significant difference in annual income” of $16,493.88.
Seventh, the difference in annual income did not take into consideration social-security benefits that Mr. Colquitt would be entitled to receive at age sixty-five or sixty-six “nor ... the possibility of his earning even more in his chosen field of work.” Eighth, Mr. Colquitt testified that “he inherited some amounts from his mother’s estate” over the past five or more years and would continue to receive $1,000 to $10,000 a year for oil-and-gas leases and timber leases; Ms. Colquitt, on the other hand, had no prospect of any inheritance. Ninth, Mr. Colquitt asked to have two boats and a trailer, a 1990 Dodge pickup, a 1990 Ford S10 [sic] pickup, a 1996 Geo, a 1994 GMC, and a 1972 pickup—with an assessed value on the parties’ 2012 personal-property tax assessment of $2,160 and at least a minimum value of $10,800. Tenth, Ms. Colquitt “traded in her older model Suburban for a newer more dependable vehicle, and she shall be responsible for the debt thereon.”
[We review division-of-marital-property cases de novo, but the trial court’s findings of fact are affirmed unless they are clearly erroneous or against the preponderance of the evidence. Grantham v. Lucas, 2011 Ark. App. 491, 385 S.W.3d 337. A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed; in reviewing the trial court’s findings, the reviewing court gives due deference to the trial court’s superior position to determine the credibility of the witnesses and the weight to be accorded to each witness’s testimony. Carroll v. Carroll, 2011 Ark. App. 356, 384 S.W.3d 50. The burden is upon the appellant to bring up a record sufficient to demonstrate that the circuit court was in error. McCormick v. McCormick, 2012 Ark. App. 318, 416 S.W.3d 770.
Here, there was evidence and argument before the court on all factors to be considered in an unequal division of marital property under Arkansas Code Annotated section 9-12-315, and the court discussed most of those factors in its decree of divorce. The parties agreed that their houses would not sell for the appraiser’s valuation that Ms. Colquitt presented. The unequal division of real property gave Ms. Colquitt, who was within two years of retirement, a house in which to reside and a means of generating current and future income from rental property. From our de novo review of the record, we cannot say that the circuit court clearly erred in the ten findings that support awarding Ms. Colquitt three of the four houses.
Affirmed.
GLADWIN, C.J., and WALMSLEY, J., agree.
. Mr. Colquitt testified that the parties had “about $60,000 in IRA's together” and that Ms. Colquitt had separate property of $18,000. Ms. Colquitt testified that her IRA was worth about $19,000 and that her halves of two Edward Jones accounts would be about $10,000 and $20,000. | [
18,
106,
-12,
108,
-88,
-64,
10,
-88,
114,
-117,
39,
83,
119,
-18,
16,
121,
34,
91,
97,
105,
-44,
-77,
21,
67,
126,
-13,
-71,
-58,
-65,
-23,
-91,
-33,
92,
32,
-58,
-35,
68,
-22,
-25,
92,
-114,
0,
-117,
109,
88,
-42,
60,
-93,
82,
31,
85,
-82,
-16,
-85,
61,
-61,
104,
110,
89,
-72,
88,
58,
-102,
85,
107,
7,
-111,
36,
-56,
39,
104,
72,
-104,
61,
0,
-20,
51,
-74,
-74,
116,
69,
-101,
9,
112,
118,
18,
12,
-17,
-7,
8,
6,
127,
13,
-90,
-118,
9,
75,
10,
-66,
-100,
108,
70,
75,
-2,
111,
13,
24,
108,
-116,
-113,
-106,
-95,
36,
40,
-104,
-125,
-5,
-62,
112,
113,
-49,
-30,
94,
71,
91,
-101,
-42,
-76
] |
PER CURIAM.
hOn recommendation of the Supreme Court Committee on Professional Conduct, we hereby accept the voluntary surrender, in lieu of impending disbarment proceedings, of the license of Frank David Rees of Jonesboro, in Craighead County, Arkansas, to practice law in the State of Arkansas. In his petition to voluntarily surrender his license to practice, filed with this court on March 20, 2014, Mr. Rees acknowledges that the many rules violations he is alleged to have committed likely would be proved at trial and would constitute serious misconduct as defined in section 17.B of the Arkansas Supreme Court Procedures Regulating Professional Conduct. Mr. Rees also states that he wishes to avoid the expense, stress, and publicity of disbarment proceedings. The name of Frank David Rees shall be removed from the registry of licensed attorneys, and he is barred and enjoined from engaging in the practice of law in the State of Arkansas.
It is so ordered. | [
48,
-22,
-12,
124,
8,
96,
50,
-83,
83,
-85,
103,
115,
-25,
-18,
20,
121,
99,
79,
-48,
121,
-59,
-74,
119,
72,
48,
-45,
-47,
-57,
-72,
-49,
-12,
-67,
93,
56,
-54,
85,
70,
-54,
-55,
24,
-90,
1,
11,
116,
83,
-128,
52,
33,
16,
11,
37,
-66,
-127,
46,
59,
-55,
45,
108,
73,
44,
80,
-103,
-104,
29,
111,
36,
-77,
-92,
29,
7,
112,
126,
-104,
49,
13,
-8,
115,
54,
-114,
116,
79,
-69,
24,
116,
98,
34,
17,
-17,
-88,
-96,
20,
122,
29,
-90,
-71,
89,
75,
10,
-106,
-11,
43,
16,
11,
-2,
33,
-59,
29,
108,
14,
78,
-44,
-79,
-34,
125,
-100,
11,
-5,
79,
48,
85,
-63,
-10,
80,
3,
50,
-101,
-98,
-11
] |
BRANDON J. HARRISON, Judge.
11 Jeremy A. Royal died in a workplace accident in 2010. Jeremy was survived by his widow, Crystal Royal, her children A.M. and D.S., Jeremy’s ex-wife, Rosana Royal, and her children T.R. and A.R. The Commission found that Crystal Royal had no expectation of monetary support from Jeremy and therefore could not receive survivor benefits because she was separated from him and had already filed for a divorce when he died. The Commission also found that Bypass Diesel & Wrecker, Inc., Jeremy’s | ^employer, was entitled to a credit against its obligations to the Death & Permanent Disability Trust Fund for the weekly death benefits it had paid to Crystal. Crystal appeals the Commission’s denial of benefits to her; the Trust Fund cross-appeals the credit issue. We affirm the Commission’s decision to deny Crystal benefits but reverse the credit and remand the case for proceedings consistent with this opinion.
I. The Direct Appeal — Death Benefits
A. Factual & Procedural History
Jeremy Royal married his second wife, Crystal Royal, in 2006. The couple had no children together but each had minor children from other marriages. Jeremy worked for Bypass Diesel when he was killed in a work-related accident in August 2010. Crystal and Jeremy had been separated for three months when he died. According to Crystal, she filed for divorce in early June after Jeremy beat her badly. In her divorce complaint, Crystal did not ask for spousal support. After filing for divorce, Crystal removed Jeremy from her phone plan and dropped him from her health and life insurance.
Crystal’s and Jeremy’s finances are relevant given the death-benefits issue. Crystal has worked for the Bowie Correctional Center for the past six years. Even with both spouses working, the Royals had a hard time making ends meet. They had numerous debts, and the IRS had frozen Jeremy’s checking account for failure to pay taxes. Crystal’s checks were to be direct-deposited into an account with only her name on it. Jeremy would sign his paychecks over to Crystal, and she would deposit them into her account. The couple had a mortgage on the marital home, a loan for siding, a loan for a refrigerator, a loan for Crystal’s brother’s truck, other vehicle loans, all-terrain vehicle 1 Joans, charges for gas and groceries at a local store, unpaid utility bills, and unpaid credit-card balances.
Crystal testified at the agency hearing about their finances and relationship when Jeremy died. Crystal was unsure if she and Jeremy would have gotten back together. She testified that he beat her up over thirty times but this was the first time that she had filed for divorce. She indicated that “it was over.” She did not drop the divorce before Jeremy passed away in August. In fact, in terms of the assets, she and Jeremy were just splitting up debt. She explained that they were not splitting up anything else because there were no assets.
Crystal also testified that, on several occasions during their separation, Jeremy gave her money to help support her. The payments ranged between $200-$300. Crystal said that they would meet somewhere other than the marital home because Jeremy was under a restraining order and wore an ankle bracelet to monitor him. Crystal also testified that nobody else was giving her money to help pay the bills except Jeremy and that she did not expect anyone other than Jeremy to help her.
Ida Calloway and Iona Jones testified on Crystal’s behalf, telling the administrative law judge that Jeremy had financially supported Crystal during the separation and that the couple would have likely reunited eventually. The parties also presented the deposition testimony of Rosana Royal, Jeremy’s first wife. Rosana stated that Jeremy was in love with a woman named Trista, planned on marrying her, and was living with her before he died. Rosana also mentioned that, a day or two before he died, Jeremy promised to pay $75 to sign A.R. up for football but he “didn’t have the money right then.”
14After the hearing the administrative law judge issued a written opinion denying Crystal weekly death benefits. The law judge wrote: “I find that the parties were dividing debts for the things they needed but there was simply insufficient income to expect continuing support.... Crystal Royal had no expectation of support from Jeremy Royal who died after divorce proceedings were initiated.”
Based on Rosana Royal’s deposition testimony, the law judge found that Jeremy was living with another woman that he planned on marrying and “there just wasn’t enough income to go around” for him to support Crystal. “[I]f Jeremy Royal was giving Crystal Royal money to make payments on the loans, she did not do so. According to Rosana Royal, Crystal was saving money to leave [him].” The law judge emphasized Rosana’s testimony that Jeremy Royal didn’t have the $75 needed to pay for his son’s football-enrollment fee.
Conversely, the law judge placed little weight on Ida Calloway’s and Iona Jones’s testimony because they did not know anything about the domestic abuse Crystal had suffered or Jeremy’s troubles with the IRS. The law judge found it significant that Calloway could not specify the amount of money that Jeremy had given Crystal and that Jones admitted to having a failing memory.
The law judge ultimately concluded that there was “no evidence that the parties were trying to reconcile,” observing that Jeremy had stopped paying for Crystal’s brother’s truck, and that Crystal had cut ties with Jeremy because of domestic abuse, filed for divorce, removed him from her phone plan, dropped his health and life insurance, and |Bwas unable to contact him until she obtained his phone number from Rosana Royal to discuss the court-ordered restitution in the criminal domestic-abuse case.
The Commission affirmed and adopted the law judge’s opinion on this point. So we must consider the law judge’s order and the Commission’s order in our review. Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003).
B. Analysis
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commis sion’s decision and affirm if that decision is supported by substantial evidence. Smith v. City of Ft. Smith, 84 Ark.App. 430, 143 S.W.3d 593 (2004). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the reviewing court might have reached a different result from the Commission. If reasonable minds could have reached the Commission’s result, then we affirm. Id.
Arkansas Code Annotated section 11 — 9— 527(c) (Repl.2007) outlines the benefits to be paid to the family of a worker who dies. The statute requires that compensation “be paid to those persons who were wholly and actually dependent upon the deceased employee.” A widow is a family member who is eligible for survivor benefits. Ark. Code Ann. § 11 — 9—527(c)(1)—(2). Section ll-9-102(20)(A) states that “a [w]idow shall include only the decedent’s legal wife, living with or dependent for support upon him at the time of his death.”
|fiWhether Crystal was actually dependent upon Jeremy when he died is a fact question. Death & Permanent Total Disability Trust Fund v. Rodriguez, 104 Ark.App. 375, 378, 292 S.W.3d 827, 830 (2009); Ark.Code Ann. § ll-9-527(h) (dependency determined at time when injury occurred). “Actual dependency” does not require a finding of total dependency. It may be established by showing either actual dependency or a reasonable expectancy of future support — even if no actual support has been provided. Id.
Was the Commission’s decision to deny Crystal benefits supported by substantial evidence? Crystal argues that she is entitled to benefits because she, Ida Callaway, and Iona Jones proved that Jeremy was paying household bills, loans, and giving Crystal money after they had separated. Crystal also notes that Jeremy was giving her money that she relied on to maintain her standard of living while they were separated. Although they were not living together when he died, Crystal maintains that “there was no evidence that [she and Jeremy] were destined for a final decree of divorce.”
Crystal makes good points, but substantial evidence supports the Commission’s decision that she was not actually dependent on Jeremy when he died. When Jeremy died, Crystal was working full time to support herself and her children. She lived apart from Jeremy and had filed for divorce without asking for any support from him. Her own testimony caps his monthly contributions to the family at $200-$300, which, when added together with all the expenses, was “insufficient,” as the law judge’s order determined. Crystal did not produce documents tending to establish that Jeremy gave her money that she would deposit into her bank account. The debt-collection schedule in the record 17showed that she was behind on her loan payments. The law judge concluded that if Jeremy was giving Crystal money for the loan payments, then Crystal did not use it for that purpose because she was saving up money to leave him and was therefore not actually dependent on him. The law judge’s conclusion that Crystal was not actually dependent on Jeremy was not unreasonable under the circumstances.
Did Crystal have a reasonable expectation of support from Jeremy when he died? No; or at least the record contains substantial evidence that Crystal did not have the statutorily required expectation. Again, the law judge placed little weight on Calloway’s and Jones’s testimony that Jeremy had supported Crystal — and that it was likely they would reunite — because they did not know about the domestic abuse or Jeremy’s tax problems. And Crystal herself could not say with certain ty that they would have reconciled had Jeremy not died. On cross-examination, she agreed that the relationship “was over.” Moreover, Crystal had not withdrawn the divorce papers, had not asked for spousal support in her complaint, and a valid protection order was in place against Jeremy when he died. And as we have also mentioned, Crystal had removed him from her phone plan and dropped his health and life insurance. The law judge’s conclusion that Crystal did not have a reasonable expectation of support from Jeremy when he died is a supportable one given this record.
Crystal had the burden to establish facts showing dependency upon Jeremy before being entitled to benefits. See Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). The Commission was charged to find the facts and assess the credibility of the witnesses. Its decision carries the force of a jury verdict. Finley v. Farm Cat, Inc., 103 Ark. App. 292, 288 S.W.3d 685 (2008). Because we are not left with a firm and definite conviction that the Commission made a mistake when it concluded that Crystal was not dependent on Jeremy, we affirm the Commission’s decision to deny Crystal weekly death benefits.
III. The Cross-Appeal
A. Procedural & Factual History
Bypass Diesel and its insurance carrier realized at some point that Jeremy and Crystal were separated when he died, controverted Crystal’s claim for $246.16 in weekly death benefits, and asked for reimbursement and a credit for the money it had mistakenly paid her. This issue was tried at the agency hearing in 2012.
The Trust Fund argued to the law judge that if Crystal was not entitled to benefits, then the payments that Bypass Diesel made to her were void from the start because they were made to an unqualified individual. The Trust Fund also argued that Bypass Diesel should not get any credit against its obligation to the Fund for the erroneous payments. The law judge concluded that Bypass Diesel and its insurance carrier were “not entitled to a credit or reimbursement.”
The Commission reversed on this point, relying on a good-faith strand:
We find that [Bypass Diesel and its carrier] [are] entitled to classify and credit all benefits paid to Crystal Royal as weekly benefits for death pursuant to Ark.Code Ann. § ll-9-502(b)(l)(B) (Repl.2007). Benefits were paid to Crystal Royal as weekly benefits for death pursuant to Ark.Code Ann. § 11-9 — 502(b)(1)(B) (Repl.2007). Benefits were paid to Crystal Royal in good faith based on information provided to [Bypass Diesel and its carrier] at the time of the claimant’s injury and the filing of the requested Commission forms.
19Upon later learning that Crystal Royal did not qualify for benefits, [Bypass Diesel and its carrier] ceased payment. Accordingly, [Bypass Diesel and its carrier] paid benefits pursuant to Ark.Code Ann. § ll-9-527(c) (Repl. 2002) which accrues toward their liability under Ark.Code Ann. § 11-9-502(b)(1)(B) (Repl.2007) even though such benefits were paid in error.
The Trust Fund filed a motion for reconsideration and clarification from the Commission’s order. In that motion the Trust Fund argued that no statute or the case-law permits a credit when an employer made weekly payments “in good faith” to a person who was not legally entitled to receive benefits. This is because benefits that are paid to someone who is not entitled to them do not fall under the definition of “compensation” under the statute. The Commission, in the Fund’s view, im-permissibly expanded the statute’s plain terms to include a “good faith” exception when none exists and unlawfully accelerated the date upon which the Fund would have to take over payments.
In the alternative, the Fund argued that if Crystal Royal had somehow willfully misled Bypass Diesel into paying her benefits, then the appropriate solution would be to refer the case to the Fraud Unit or award costs for bringing a proceeding without reasonable grounds, not awarding the employer a credit for payments. And if there was no willful misrepresentation, then Bypass Diesel and its carrier should bear the cost of the erroneous payments because they failed to be diligent in examining the circumstances of the case. The Fund reasoned that if Bypass Diesel had investigated in a timely manner after Jeremy’s death, it would have discovered the same set of facts that were revealed after it had been erroneously paying survivor benefits for almost a year.
The last argument the Trust Fund made in its motion was that the Commission’s majority opinion did not take into account the “serious financial damage” done to A.R., hpwho, according to the Trust Fund, “is the only survivor beneficiary entitled to benefits.” The Trust Fund argued that an employer credit hurts A.R. because A.R. must receive $182,650 in order for the Fund’s obligation to arise and by the Trust Fund’s count, A.R. had been underpaid approximately $36,732 because Crystal was wrongly included in his beneficiary class. The credit also hurt A.R. because he received no financial benefit from the money paid to Crystal as he was living in a different household.
The Commission denied the Fund’s motion for reconsideration and clarification. In its order the Commission repeated its reasoning for the credit: Bypass Diesel and its carrier paid weekly death benefits to Crystal “in good faith” based on the information provided to it. As for Jeremy’s biological child, A.R., the Commission wrote that “the parties stipulated that he was the natural child of the deceased. Therefore, his rights are statutorily controlled.”
B. Analysis
The sole issue here is whether Bypass Diesel and its insurance carrier are entitled to a credit for the money they paid Crystal Royal. This question of law is one of first impression that we will review de novo. See Craven v. Fulton Sanitation Serv., Inc., 361 Ark. 390, 206 S.W.3d 842 (2005). We are, however, required to strictly construe workers’ compensation statutes, meaning that nothing may be taken as intended unless clearly expressed in them. Parker v. Advanced Portable X-Ray, LLC, 2014 Ark. App. 11, at 5, 431 S.W.3d 374, 378, 2014 WL 67685.
When an employee dies from a work-related event, those who were “wholly and actually dependent” on the deceased may be compensated. Ark.Code Ann. § 11 — 9— |n527(c). Compensation is the “money allowance payable to the employee or his or her dependents.” Ark.Code Ann. § 11-9-102(5). An employer must pay weekly death benefits in the amount of 325 times the maximum total-disability rate established for the date of the injury; after that, the Fund takes over the weekly payments. Ark.Code Ann. §§ 11 — 9— 502(b)(1)(B), 502(b)(2)(B). Section 119807(a) provides that “if the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.”
No statutory provision permits an employer to receive a credit against its obligations to the Trust Fund when it paid a person who is not an employee or a dependent of an employee. The Commission relied on Ark.Code Ann. § 11-9-502(b)(1)(B) to support its credit, but that statute only provides the maximum amount of money that an employer must pay as compensation for an employee’s work-related death. The statute is wholly silent on whether a credit for good-faith, but ultimately mistaken, payments may be given. Because Crystal was not Jeremy’s dependent, the $246.16 that Bypass Diesel paid her each week cannot be counted as weekly death benefits or as compensation. Consequently, these payments do not accrue as a credit against its responsibility to the Trust Fund. We therefore reverse the Commission’s credit to Bypass Diesel and its insurance carrier and remand the case for further proceedings consistent with this opinion.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
WYNNE and GLOVER, JJ„ agree. | [
16,
-24,
-35,
-68,
41,
32,
-101,
26,
70,
-61,
99,
-43,
-65,
-2,
93,
47,
-87,
93,
68,
107,
115,
-77,
7,
-128,
-13,
-77,
-15,
-19,
-80,
79,
-4,
-3,
72,
58,
-86,
85,
102,
-34,
-20,
80,
-124,
6,
35,
-28,
89,
-126,
54,
111,
2,
25,
117,
-114,
-29,
46,
21,
110,
12,
94,
89,
-24,
-44,
-24,
-93,
7,
-37,
17,
-78,
4,
-75,
47,
-38,
15,
-104,
-71,
8,
-23,
18,
-74,
-42,
116,
67,
-119,
13,
36,
98,
-108,
20,
-35,
-27,
-72,
-113,
-50,
-97,
5,
-37,
121,
35,
47,
-98,
-97,
126,
86,
42,
124,
110,
-60,
93,
-64,
19,
-53,
-10,
-109,
-51,
-103,
-36,
-118,
-25,
-61,
50,
117,
-53,
-22,
92,
-90,
127,
-97,
7,
-78
] |
CLIFF HOOFMAN, Associate Justice.
| íAppellant Theresa Holbrook, individually and on behalf of a class of all other Arkansans similarly situated, appeals from the Pope County Circuit Court’s July 17, 2013 amended order granting defendants’ and third-party defendant’s motion for partial summary judgement and denying plaintiffs motion for partial summary judgment in favor of appellees Healthport, Inc.; Healthport Technologies, LLC f/k/a Smart Document Solutions, LLC; Health-port Incorporated f/k/a Companion Technologies Corporation (collectively “Health-port”); and Richard Weiss, in his official capacity as director of the Arkansas | gDepartment of Finance and Administration (“DF & A”). This court has jurisdiction pursuant to Arkansas Supreme Court Rule l-2(a)(7) (2013), as this ease is a subsequent appeal following an appeal that has been decided in the supreme court. On appeal, Holbrook contends that (1) the gross-receipts tax does not apply to a patient’s attempt to obtain a patient’s own medical information and (2) the Arkansas Access to Medical Records Act exempts a patient’s attempt to obtain a patient’s medical information from any otherwise applicable tax or charge. We affirm.
This case arose after Holbrook requested her medical records from Millard Henry Clinic located in Russellville, Arkansas. Healthport, a private company that has a contract with Millard Henry Clinic to fulfill such requests, obtained and sold to Holbrook copies of her requested medical records. Healthport sent Holbrook two invoices for the two sets of records, including sales tax, and Holbrook remitted two money orders to Healthport, paying both invoices in full.
Holbrook, both individually and on behalf of all other Arkansans similarly situated, filed a class-action complaint on October 12, 2010, seeking damages and requesting the court (1) to find that Healthport violated the Arkansas Deceptive Trade Practices Act; (2) to declare that Healthport illegally collected sales tax on charges for retrieving and copying her medical records; and (3) to find that Healthport was unjustly enriched. Subsequently, Healthport impleaded DF & A by filing a counterclaim and third-party complaint seeking declaratory judgment as to whether any person, entity, or organization is required to collect a sales tax on charges associated with the production of copies of medical records pursuant to Ark.Code |3Ann. § 16-46-106 (Supp.2013). On May 24, 2011, Holbrook filed an amended complaint, including an alternative count for illegal exaction and alternative class-action allegations against DF & A. Holbrook’s illegal-exaction claim was dismissed without prejudice on her motion on August 10, 2011.
All parties filed cross-motions for partial summary judgment on the declaratory-judgment claims. The parties also filed a stipulation that allowed the class-certification proceedings to follow the circuit court’s adjudication of the cross-motions for partial summary judgment. After a hearing, the circuit court entered an order granting defendants’ and third-party defendant’s motion for partial summary judgment and attached a Rule 54(b) certificate. Holbrook appealed; however, this court dismissed the appeal, holding that this court lacked jurisdiction to review the non-final order when the attached Rule 54(b) certificate failed to comply with the rule. Holbrook v. Healthport, Inc., 2013 Ark. 87, 2013 WL 776240.
After this court’s dismissal, the circuit court filed an amended order granting defendants’ and third-party defendant’s motion for partial summary judgment and attached a proper Rule 54(b) certificate on July 17, 2013. The circuit court specifically granted the motions for partial summary judgment filed by Healthport and DF & A and denied Holbrook’s motion for partial summary judgment. The circuit court further found (1) “[tjhat there [were] no genuine issues of material fact”; (2) “[t]hat providing paper copies of medical records pursuant to Ark.Code Ann. § 16-46-106 constitute^] a sale of tangible personal property and as such [was] subject to the Arkansas Gross Receipts Tax Act under Ark.Code Ann. § 26-52-103”; and (3) ‘‘[tjhat HealthPort Inc.’s providing paper copies of medical |4records to the Plaintiff in exchange for payment of the costs stated in Ark.Code Ann. § 16-46-106 constitute[d] a transfer of the possession of tangible personal property for a valuable consideration and [was] therefore a ‘sale’ as defined in Ark.Code Ann. § 26-52-103(19)(A).” Finally, the circuit court entered the following declaratory judgment:
Any person, entity or organization providing copies of medical records pursuant to Ark.Code Ann. § 16^6-106 is required to collect a sales tax on the charges for the production of copies of medical records requested pursuant to Ark.Code Ann. § 16-46-106.
This appeal followed.
Holbrook contends in her first point on appeal that the circuit court erred when it determined that the gross-receipts-tax statute imposed a sales tax on a patient’s ability to obtain a copy of his or her own medical records for three independent reasons. First, Holbrook contends that the circuit court’s finding leads to “a legislative absurdity.” She argues that the legislative intent of Ark.Code Ann. § 16-46-106 was to ensure that she would be charged nothing more than the actual cost of reproducing her medical information, and this intent was further demonstrated by the “isolated sale exemption” pursuant to Ark.Code Ann. § 26-52-401(17), which exempts “gross receipts or gross proceeds derived from isolated sales not made by an established business” from tax. Therefore, she alleges that the circuit court’s decision leads to the absurd result that if her healthcare provider directly fulfills her request for medical records, then no sales tax will be imposed pursuant to Ark.Code Ann. § 26-52-401(17) (Supp. 2013); however, if her healthcare provider contracts with a third-party vender to fulfill her request, then a sales tax will be imposed. We disagree.
|fiThis case involves the interpretation and construction of the Arkansas Gross Receipts Act of 1941 (“Gross Receipts Act”), Ark. Code Ann. §§ 26-52-101 to -914 (Repl.2008 & Supp.2013), and Ark. Code Ann. § 16-46-106. This court’s rules regarding statutory construction are clear and well established. This court reviews issues of statutory interpretation de novo and is not bound by the circuit court’s determination. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. However, this court will accept a circuit court’s interpretation of the law unless it is shown that the court’s interpretation was in error. Cockrell v. Union Planters Bank, 359 Ark. 8, 194 S.W.3d 178 (2004). 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, this court determines legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, this court construes it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous, or insignificant, and this court gives 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. Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). However, this court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Brock, supra.
A statute is considered ambiguous if it is open to more than one construction. Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007). When a statute |Ris ambiguous, this court 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, this court will reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Williams v. Little Rock Sch. Dist., 347 Ark. 637, 66 S.W.3d 590 (2002). In addition, this court must look at the legislative history, the language, and the subject matter involved. Id. However, when a statute is clear, it is given its plain meaning and this court will not search for legislative intent. Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). This court is very hesitant to interpret a legislative act in a manner that is contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
The language in the statutes relevant to this case is clear and unambiguous, and furthermore, the provisions can be read in a consistent, harmonious, and sensible manner, giving effect to every part. Arkansas Code Annotated § 16-46-106(a)(l) provides that, in “contemplation of, preparation for, or use in any legal proceeding,” a patient may obtain copies of his or her medical records “upon the tender of the expense of such copy or copies.” Furthermore, in pertinent part, the statute specifically sets the maximum fee for the cost of each photocopy, sets the maximum fee for labor charges, and allows the actual cost of any required postage to be charged. Ark. Code Ann. § 16-46-106(a)(2). Ark.Code Ann. § 16-46-106 does not, however, mention taxation or contain any language to indicate that the specified charges are to exclude any other fees, charges, assessments, or taxes that may be 17required by a different statute.
In fact, the Gross Receipts Act generally levies an excise or sales tax on “the gross proceeds or gross receipts derived from all sales to any person of ... tangible personal property.” Ark.Code Ann. § 26-52-301. A “sale” is defined as the “transfer of either the title or possession except in the case of a lease or rental for a valuable consideration of tangible personal properly regardless of the manner, method, instrumentality, or device by which the transfer is accomplished.” Ark. Code Ann. § 26-52-103(19)(A). “Tangible personal property” is defined as “personal property that can be seen, weighed, measured, felt, or touched or that is in any other manner perceptible to the senses.” Ark.Code Ann. § 26-52-103(21)(A). Therefore, based on our reading of the clear and unambiguous language of the statutes in a consistent, harmonious, and sensible manner, and giving effect to every part, we conclude that the circuit court did not err in finding that Healthport’s transfer of the paper copies of Holbrook’s medi cal records for money was a sale of tangible personal property and subject to sales tax.
As recognized by appellant, there are several expressed exemptions from the taxes levied under the Gross Receipts Act, and the “isolated sales exemption” pursuant to Ark.Code Ann. § 26-52-401(17) exempts “[gjross receipts or gross proceeds derived from isolated sales not made by an established business.” However, Hol-brook’s conclusory argument that the application of the isolated sales exemption to the sale of copies of medical records leads to “a legislative absurdity” and that no tax should be levied at all, despite the clear language of the statutes, lacks merit. The legislature’s expressed isolated sales exemption applies to all |ssales and not just sales of copies of medical records. Id. When a statute is clear, it is given its plain meaning and this court will not search for legislative intent. Cave City Nursing Home, 351 Ark. 13, 89 S.W.3d 884. Furthermore, as noted earlier, this court is very hesitant to interpret a legislative act in a manner that is contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent.
Second, Holbrook contends that the tax does not apply because reasonable minds have differed as to whether the gross-receipts tax applies to a patient’s medical-information request. Holbrook cites to this court’s holding in Gaddy v. DLM, Inc., 271 Ark. 311, 609 S.W.2d 6 (1980), as support for the proposition that the intent of the legislature to impose a tax “must be so clear that no reasonable mind should conclude that the intent was otherwise.” Id. at 318, 609 S.W.2d at 10. Therefore, she argues that a tax should not be imposed under these circumstances because reasonable minds have differed as to this issue, namely the Arkansas Attorney General and DF & A.
We disagree. Holbrook cites to an attorney-general opinion, issued on October li, 2010, as support for her argument. See Op. Ark. Att’y Gen. No. 095 (2010) 19(http://ag.arkansas.gov/opinions/docs/ 2010-095.pdf). In the opinion, the attorney general opines that a health care facility or entity may not charge sales tax to a patient or a patient’s attorney who requests copies of a patient’s medical records pursuant to Ark.Code Ann. § 16-46-106. Op. Ark. Att’y Gen. No. 095, at 1. However, seven days later, the attorney general supplemented his opinion, in pertinent part, with the following paragraph;
It has since come to my attention that the Arkansas Department of Finance and Administration (“DF & A”) has taken a different approach to this issue in nonpublic letter opinions, deeming the provisions of such records subject to sales taxation. Although I still subscribe to the reasoning set forth in my previous opinion, I must acknowledge that DF & A in administering the tax laws is not subject to my opinion on this matter. This office has often noted that the power to determine issues relating to imposition of taxes is vested in the Revenue Division of the Department of Finance and Administration. See Gross Receipts Tax Rules, GR-75(E) (2008) (“Opinions issued by any other agency, whether formal or informal, are not binding on the Department of Finance and Administration, Revenue Division”). I therefore suggest that any individual or entity with questions relating to this issue submit its concerns to the [Arkansas Department of Finance and Administration.]
Id. No. 095A (http://ag.arkansas.gov/ opinions/docs/2010-095A.html). Therefore, the attorney general in essence retracted his previous opinion and referred the addressee to DF & A for any questions.
This court has held that while a statutory interpretation by the agency responsible for its execution is not conclusive, it is highly persuasive and should not be reversed unless it is clearly wrong. Citifinancial Retail Servs. Div. of Citicorp Trust Bank, FSB v. Weiss, 372 Ark. 128, 271 S.W.3d 494 (2008). Pursuant to Ark. Code Ann. § 26-52-105(b) (Repl.2008), the Director of the Department of Finance and Administration is directed to promulgate rules and regulations for the proper enforcement of the Gross Receipts Act. In this case, the DF & A’s |instatutory interpretation regarding copies of the medical records is consistent with the unambiguous language of the relevant statutes, and the circuit court did not err in its interpretation of the statutes in finding that a sales tax was properly levied.
Third, Holbrook contends that a sales tax does not apply because there was no exchange of “valuable consideration” as required in the legislature’s definition of “sale.” Ark.Code Ann. § 26-52-401(17). We disagree. While Ark.Code Ann. § 26-52-401 does not specifically define “valuable consideration,” BLACK’S LAW DICTIONARY defines it as “Consideration that is valid under the law; consideration that either confers a pecuniarily measurable benefit on one party or imposes a pecuniarily measurable detriment on the other.” BLACK’S LAW DICTIONARY 326 (8th ed.2004). Here, there should be no question that Holbrook’s payment by two money orders constituted valuable consideration. Therefore, we affirm the circuit court on this point on appeal, as the Gross Receipts Act clearly applies to requests for copies of medical records pursuant to Ark.Code Ann. § 16-46-106.
Holbrook contends in her second point on appeal that Ark.Code Ann. § 16-46-106 exempted her request for copies of her medical information from any sales tax because the statute does not specifically authorize the imposition of a sales tax. Arkansas Code Annotated § 26-18-313 (Repl.2012) provides that “[t]he standard of proof for a taxpayer to establish facts to support a claim for a tax exemption, tax deduction, or tax credit is clear and convincing evidence.” Furthermore, there is a presumption in favor of the taxing power of the state, and all tax-exemption provisions must be strictly construed against the exemption. Ark. Teacher Ret. Sys. v. Short, 2011 Ark. 263, 381 S.W.3d 834. Taxation is the rule, and I,exemption is the exception; therefore, any doubts should be resolved to deny the exemption. Id. Holbrook failed to demonstrate that her request for copies of medical records was exempted from taxation under the Gross Receipts Act, when Ark. Code Ann. § 16-46-106 does not specifically provide for an exemption or even generally address the issue of any form of taxation. Therefore, we affirm the circuit court on this point on appeal, as Ark.Code Ann. § 16-46-106 does not exempt Hoi- brook’s request from the Gross Receipts Act.
Affirmed.
. The Arkansas Department of Finance and Administration, in its brief, alleges that Hol-brook has failed to sufficiently develop this argument, citing to this court's case precedent that we will not consider an argument when appellant has failed to provide sufficient citation to authority and this court cannot determine whether an argument is well taken absent further research. See Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). However, we find that the DF & A’s assertion lacks merit. Holbrook cited to two attorney-general opinions and one case for support. While we agree that Holbrook's argument is not meritorious, we think Holbrook has sufficiently developed her argument for this court to address it. | [
22,
-20,
-3,
61,
40,
-29,
48,
-70,
66,
-93,
101,
19,
-67,
0,
-99,
127,
99,
127,
97,
113,
-25,
-73,
17,
107,
-46,
-5,
-5,
-41,
-7,
-53,
-28,
-43,
92,
105,
-54,
101,
70,
-38,
-17,
24,
-42,
2,
-117,
77,
81,
65,
20,
46,
90,
71,
113,
-114,
-3,
44,
30,
75,
-51,
14,
121,
-68,
-103,
-78,
-72,
13,
-33,
23,
48,
52,
-103,
17,
-40,
10,
-112,
49,
64,
-4,
50,
38,
-126,
100,
74,
-99,
0,
96,
98,
48,
20,
-1,
-96,
-86,
35,
-82,
-67,
-89,
-102,
41,
67,
15,
-90,
-107,
126,
82,
-119,
-6,
-82,
77,
27,
109,
-119,
-18,
-44,
-73,
7,
72,
-100,
51,
-9,
110,
48,
113,
-49,
-26,
-35,
-58,
59,
-101,
30,
-110
] |
WAYMOND M. BROWN, Judge.
| lAppellant Robert Lewis was convicted in Pulaski County Circuit Court of possession of a controlled substance with intent to deliver and maintaining a drug premises. He received concurrent sentences of ten years’ imprisonment followed by five years’ suspended imposition of sentence. On appeal, he challenges the circuit court’s denial of his motion to suppress evidence. We affirm.
On March 29, 2011, appellant’s parole officer, Barbara Douglas, received information from a confidential informant that appellant was trafficking in narcotics and that the narcotics and a purse containing a large sum of money could be found in appellant’s padlocked room. Douglas had appellant report to her office. The vehicle appellant arrived in was searched. The search of the vehicle turned up a knife and some pepper spray. Douglas decided to do |¡>a home visit on appellant based on the information she received from her confidential informant. The Little Rock Police Department was subsequently called in to assist in the search. They secured a search warrant based on information relayed by Douglas to Detective Hallee Hughes. The search of the room turned up nearly $5,000 in cash and 24.5693 grams of cocaine.
Appellant waived his right to a jury trial on April 27, 2012. He filed a motion to suppress the evidence on March 27, 2013. In the motion, appellant alleged that: (1) the alleged contraband was seized at another person’s residence, which was not his residence on file with the Department of Community Correction; (2) the search warrant was invalid because the Little Rock Police Department obtained a search warrant after the parole officers entered the residence unlawfully; (3) the search was a violation of appellant’s right to be free from unreasonable searches and seizures as guaranteed by the United States Constitution and the Arkansas Constitution. The State filed a response on March 29, 2018, stating that; (1) the “home visit” and subsequent search took place at the residence on file for appellant; (2) the Little Rock Police Department was enlisted by Douglas to assist in the search of appellant’s residence; (3) the search warrant was in compliance with Arkansas Rule of Criminal Procedure 13.3, the Fourth Amendment of the United States Constitution, and the Arkansas Constitution.
Appellant’s bench trial took place on April 18, 2013. The court dealt with appellant’s suppression motion as part of his bench trial. Debra James testified that she was currently appellant’s parole officer. She stated that she was not assigned as his parole officer on March |s29, 2011, but that she became his parole officer in August 2011 after Douglas’s employment had ended. James said that appellant had executed a Conditions of Release Form on December 3, 2010, agreeing to a search of his person, place of residence, or vehicle at any time with or without approval, by any Department of Correction officer. She stated that appellant was originally paroled to 76 West Windsor Street, but that as of January 25, 2011, his address was listed as 4200 West 25th Street. James testified that as appellant’s parole officer, she does not need a warrant to search his person or residence because he signed the form. However, she stated that she would have to have a reason to conduct a search pursuant to the form.
Arzo Johnson testified that he was a state parole agent from the North Little Rock office. He stated that he was part of the abscond recovery team, and that he was working in that capacity on March 29, 2011, when he assisted Douglas with a home visit of appellant. He said that he placed appellant in the car and that they went to 4200 West 25th Street. He testified that as they were going to the address, he overheard a conversation between appellant and Douglas. According to Johnson, appellant told Douglas that his “door was to the left and it had a lock on it.” He said that Douglas asked appellant for the combination to the lock and that appellant gave it to Douglas. Johnson testified that they searched the room and found a lot of cash. He stated that at that time, they backed out of the room and called the Little Rock Police Department for help. He said the police department secured a warrant and took possession of the money. Johnson stated that the reason they call the police department for assistance is because they do not have a lockup or a place to store the things they confiscate. | Johnson contended that appellant identified the room as his and gave Douglas the combination to the lock.
On cross-examination, Johnson stated that appellant identified the money as being his student-loan money. He conceded that it was not illegal to have money and that having money was not an indicia of a crime. According to Johnson, appellant gave a valid reason for having the money.
On redirect, Johnson testified that money was not the only thing found in appellant’s room. He continued that, as a parole officer, “finding money in a room would be an indication that the room needed to be searched. Usually when we find money like that, there’s drugs around.”
Jeffrey Plunkett of the Little Rock Police Department testified that he conducted the search of appellant’s residence on March 29, 2011, while working as a narcotics detective. According to Sergeant Plunkett, once they received the search warrant, they searched appellant’s bedroom and found $4,557 in a purse sitting on top of the bed. He also stated that they found two off-white rocks that, based on his experience and training, appeared to be crack cocaine on the floor in the bedroom. Sergeant Plunkett stated that he was given a folding knife, some dog-repellant mace, and $342 by the parole officers. He said that the parole officers also found a house key fitting the front door of the residence on appellant’s person. Sergeant Plunkett stated that the amount of narcotics discovered in appellant’s room was not considered a personal-use amount.
|fiOn cross-examination, Sergeant Plunk-ett stated that he received all of his facts for the search warrant from Douglas and that he relayed that information to Detective Hughes. He said that he had no personal knowledge of what Douglas had done. He testified that the room was unlocked when he arrived and that the purse was laying on the bed. He stated that the narcotics were not in plain view, but that they were found during the search of the room. He said that he did not recall seeing any paperwork about a student loan.
On redirect, Sergeant Plunkett stated that the room contained men’s clothing in it and paperwork belonging to appellant.
Detective Hughes of the Little Rock Police Department testified that she was contacted by Douglas on March 29, 2011, saying that she found evidence of narcotics and narcotics trafficking during a search of a parolee. She stated that Douglas indicated that she had received information from a confidential informant about appellant’s possible drug trafficking. She said that she typed a search and seizure warrant in good faith based on the information obtained from Douglas. Detective Hughes stated that she signed the affidavit and that the warrant was signed by a judge. She said that appellant had a key to the front door of the house on a key ring. She testified that she found paperwork belonging to appellant in the room and some miscellaneous handwritten notes. According to Detective Hughes, one item found in the room was an order of dismissal for an order of protection filed against appellant by Mia Bennett, the mother of Lewis’s child. Detective Hughes stated that the cocaine found in the room weighed almost an ounce and that she considered that to be a distribution amount.
IflOn cross-examination, Detective Hughes stated that all the facts constituting probable cause for the search warrant came from Douglas. She said that Bennett was Douglas’s confidential informant and that Bennett and appellant “had been squabbling back and forth.” She also stated that Bennett was on parole. Detective Hughes said that when they arrived at the residence, it appeared that they had not been given all of the information prior to their arrival. For example, she stated that they had not been told that Bennett had a child with appellant and that they were involved in a dispute over paternity and custody. She said that she was also unaware that appellant had been in court the morning of March 29 over an order of protection that was dismissed because of Bennett’s failure to appear. She also stated that they were not informed about what took place at the parole office prior to their involvement. Detective Hughes testified that she “felt like [they] should have been given more information if it was known at the time that [they] were not given.”
Christy Williford, a chemist at the Arkansas State Crime Lab, testified that the narcotic discovered in appellant’s room were cocaine, a Schedule II drug.
The State rested its case. At that time, appellant argued that the evidence should be suppressed for a number of reasons: (1) that there was a lack of probable cause for a search warrant based on Douglas, who did not even appear to testify, finding money in a bedroom allegedly belonging to appellant; (2) that there was no competent evidence, other than hearsay, to indicate that appellant lived at the residence or that the bedroom searched belonged to him; (3) that the State failed to bring any competent evidence showing that Douglas had any basis for the search of the residence or appellant; (4) that there was no |7evidence that appellant had exclusive control of the room; (5) that the probable cause for the warrant was defective; (6) that there was no evidence that the vehicle in which the folding knife and dog repellant were found belonged to appellant or that the items were in his exclusive control; (7) that possessing money was not probable cause of anything, especially in this case where appellant had a legitimate reason for possessing the money. The court overruled the suppression motion:
The Court finds that the State had consent to enter the premises, consent having been given by defendant. The defendant gave the law enforcement the combination of the padlock that was on the door and that he identified as his bedroom and gave them consent, and, therefore, that addresses the issue of the legitimacy of the entrance into the premises.
The Court overrules the suppression with regard to items seized. The defendant identified items seized as his properly, whether it was currency or other items, paperwork and, therefore, the Court overrules the suppression motion.
Ida Spears testified that she leased the house located at 4200 West 25th Street. She stated that appellant was her nephew, but denied that he lived at the address at the time of the search. She said that he would stay some nights at the house but that he did not reside there prior to the search. She testified that the room in which the money and narcotics were found belonged to her niece, Nikki Smith. According to Spears, she thought the purpose of Douglas’s visit on March 29, 2011, was a requirement before appellant could move in with her. She denied telling anyone that appellant lived there or that the room with the lock on it belonged to appellant. She also denied that appellant had the combination to the lock on the bedroom door. Spears stated that the purse and money found in the bedroom belonged to her niece, Tasha Smith. She said that to her knowledge, appellant did not have a key to lsher house. According to Spears, Nikki was a drug user who was in the process of being evicted by Spears. She stated that since his release from jail, appellant has lived with her at the address in question. She also stated that Bennett filed two petitions against appellant that were subsequently dismissed.
On cross-examination, Spears stated that appellant spent the night at her house on March 28. She also said that appellant received mail at the address, but that he was not living there “yet.” Spears testified that the cocaine found in the bedroom belonged to Nikki. She further stated that only she and Nikki had the combination to the padlock on the bedroom door. She said that the money found in the bedroom belonged to both Tasha and appellant.
Tasha testified that she married appellant on July 7, 2011. She stated that she went to court with appellant on March 29, 2011, but that Bennett did not show up. She said that appellant received a call from his parole officer right after court, and he was asked to come in. Tasha stated that appellant went into the office and that a security guard and two parole officers came out and searched the car. She said that the knife and mace were found in her purse. She stated that appellant lived with his sister, not at the residence that was searched, in March 2011. Tasha testified that the bedroom where the money and narcotics were found belonged to Nikki. She stated that she and appellant slept on separate couches when they stayed overnight at Spears’s house. Tasha said that Spears allowed her to leave her purse in Nikki’s room while they went to court. She stated that they planned to go and purchase a vehicle after court, but that they did not want to leave that large sum of money, $8,500, in |flthe car while they were in court. She testified that she had no idea what happened to the other $4,000 that was confiscated.
On cross-examination, Tasha stated that Nikki had a long-standing problem with drugs. She said that she left the money in Nikki’s room because Nikki was leaving with them and would not be able to get to the money. She contended that appellant was not living at 4200 West 25th Street on March 29, 2011. Tasha testified that she “guessfed] half of [the money] just came missing mysteriously and the purse is gone.”
Appellant renewed his suppression motion at the conclusion of the evidence. The court denied the motion stating that it had previously ruled “that the issue of probable cause was vitiated by consent. As the Supreme Court has held that whereas probable cause is a prerequisite for a search pursuant to the Fourth Amendment, that consent is an exception to the requirement of probable cause.” The court found that Johnson’s testimony established that appellant granted consent for the search of the front bedroom and that appellant also gave the combination to the padlock on the bedroom door. The court stated that this information was disclosed by appellant, thereby giving consent. The court also found that appellant had a key to the front door of the residence on his person.
Appellant was found guilty of possession of a controlled substance with intent to deliver and maintaining a drug premises. He was sentenced to ten years’ imprisonment followed by an additional five years’ suspended. He filed a timely notice of appeal. This appeal followed.
ImOn appeal of a trial court’s ruling on a motion to suppress, we conduct an independent review based on the totality of the circumstances to determine whether the disputed evidence was unlawfully obtained. We will reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence.
As a general rule, “[a] warrant-less entry into a private home is presumptively unreasonable.” The burden is on the State to prove that the warrantless activity was reasonable. The presumption may be overcome if the law-enforcement officer obtained consent to conduct a warrantless search. For instance, our supreme court has held that a parolee’s advance consent is valid because the parolee remains in the custody of the penal institution from which he is released, and the “special needs of the parole process call for intensive supervision of the parolee mak- mg the warrant requirement impractical.” Additionally, a parole officer may enlist the aid of the police, and a police officer may act at the direction of the parole officer without overreaching the scope of the search.
hAppellant argues on appeal that the court erred by denying his suppression motion because he never gave the Little Rock Police Department consent to search, and because the affidavit did not set forth particular facts supporting a probable-cause finding, i.e., the informant’s reliability. The State contends that appellant’s arguments are not preserved for appeal because he either failed to raise them below or failed to get a ruling on them. We agree. It is well settled that our appellate court will not consider arguments raised for the first time on appeal. Moreover, failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Accordingly, we affirm.
Affirmed.
PITTMAN and WYNNE, JJ., agree.
. Mitchell v. State, 321 Ark. 570, 906 S.W.2d 307(1995).
. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008).
. Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999).
. Id.; Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).
. Ark. R.Crim. P. 11.1 (2013).
. Cherry v. State, 302 Ark. 462, 467, 791 S.W.2d 354, 357 (1990).
. Id.; Hatcher v. State, 2009 Ark. App. 481, 324 S.W.3d 366.
. Dowty v. State, 363 Ark. 1, 210 S.W.3d 850 (2005).
. Norris v. State, 2013 Ark. 205, 427 S.W.3d 626. | [
49,
-17,
-11,
28,
24,
-95,
58,
56,
67,
-89,
108,
83,
-91,
114,
4,
41,
-85,
61,
117,
121,
-55,
-74,
67,
99,
-26,
-13,
88,
-57,
61,
-37,
-20,
-108,
29,
48,
-30,
85,
68,
88,
-25,
88,
-114,
9,
27,
87,
83,
66,
32,
43,
42,
15,
53,
-98,
-93,
42,
17,
-54,
77,
44,
75,
39,
88,
-6,
-102,
31,
-113,
4,
-95,
-92,
-111,
5,
-8,
92,
-36,
48,
1,
-22,
115,
-106,
-126,
116,
99,
-101,
44,
32,
-30,
78,
21,
-49,
-92,
-116,
20,
-66,
-107,
-90,
-40,
73,
97,
76,
-106,
-107,
124,
22,
10,
-4,
35,
-60,
17,
108,
-114,
-50,
-16,
-109,
13,
112,
-106,
-77,
-61,
33,
80,
52,
-57,
-30,
92,
87,
121,
-101,
-50,
-105
] |
PER CURIAM.
hln 2011, appellant Jackie Breeden, Jr., was found guilty by a jury of one count of rape of his biological daughter, a minor, and a sentence of life imprisonment was imposed. This court affirmed. Breeden v. State, 2013 Ark. 145, 427 S.W.3d 5.
Subsequently, appellant timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The trial court denied the petition without a hearing. Appellant lodged an appeal of that order in this court. Both appellant and the State have filed timely briefs. Now before us is appellant’s motion |2to provide a certified record in which he requests a copy of the “trial transcript and docket entry records.” As it is clear from the record and the filed briefs that appellant could not prevail if the appeal were permitted to go forward, the order is affirmed, and the motion is moot.
In his petition, appellant alleged that he was entitled to relief based on ineffective assistance of counsel and related trial errors. This court has held that it will reverse the trial court’s decision grant ing or denying postconviction relief only when that decision is clearly erroneous. Johnson v. State, 2014 Ark. 74, 2014 WL 688981; Pankau v. State, 2013 Ark. 162, 2013 WL 1694909. 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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.
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 13cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. 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 identifying 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. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner 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. Id. 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. Id. “[Tjhere is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
On appeal, appellant first makes a number of claims for relief stemming from his allegation that he was removed from the courtroom during the testimony of his former wife, Paula Breeden, who testified on behalf of the State in both the guilt and sentencing phases of the trial. Appellant contends that his alleged removal from the courtroom constituted fundamental error, a denial of his right to due process and a fair trial, and a denial of his right to confront witnesses. He also seems to contend that counsel’s failure to object to his alleged removal amounted to ineffective assistance and that prosecutorial misconduct occurred to the extent that the prosecuting attorney directed his removal. To the extent that appellant’s claims are cognizable under the Rule, there is no factual substantiation for the underlying allegation as the trial record does not support his claim that he was not present in the courtroom during the testimony of his former wife. During Ms. Breeden’s testimony during the guilt phase of the trial, she was asked to identify appellant, and she pointed him out in the courtroom. Then, prior to reading the jury’s verdict, the trial court stated for the record that appellant was present in the courtroom. Immediately after the guilty verdict was announced, the trial court proceeded with the sentencing phase of the trial and the State called Ms. Breeden as its first witness. Because | Bthe trial record does not support appellant’s allegations, his argument must fail.
In his second argument on appeal, appellant contends that he “listed and requested several witnesses to offer exculpatory evidence and was denied.” He then refers to his “children!,] who could not have been totally ignorant of claimed activity of taking place over seven years.” Appellant attached to his petition a handwritten note signed by his father, Jackie Breeden, Sr., that stated that if appellant’s father had been called to testify during the guilt phase of the trial, he would have testified that appellant’s mother spent time taking care of appellant’s children. On appeal, however, appellant only references “witnesses” and does not specifically refer to any error based on his father not being called as a witness.
To the extent that appellant has made the argument on appeal that counsel provided ineffective assistance based on the decision not to call as witnesses appellant’s father or his children, who are the younger siblings of the victim, this claim is ■without merit. The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call a certain witness 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); Greer v. State, 2012 Ark. 158, 2012 WL 1223760 (per curiam) (citing Woody v. State, 2009 Ark. 413, 2009 WL 2971758 (per curiam)). When a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Boatright v. State, 2014 Ark. 66, 2014 WL 585976 (per curiam). The decision to call or not to call a particular witness is largely a matter of professional judgment. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. The fact that there was a witness or witnesses who could | nhave offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Id. (citing Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000)). In order to demonstrate prejudice, appellant must establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Greer, 2012 Ark. 158.
Here, appellant’s argument presumably rests on the contention that witnesses could have provided evidence that individuals living in the home did not observe any suspicious activity evidencing the rape of his daughter for which he was convicted. However, appellant fails to substantiate his conclusory claim or offer any facts from which it could be said that counsel’s decision not to call as witnesses appellant’s younger children or his father was anything more than an exercise of professional judgment. Moreover, the failure to call witnesses whose testimony would be cumulative to testimony already presented does not deprive the defense of vital evidence. Moten, 2013 Ark. 503. The testimony that would have been provided by appellant’s father, according to the handwritten note, was presented through the testimony of appellant’s mother. She testified that, during the last several years in which she was living with her son and his family in their three-bedroom trailer, she spent a lot' of time taking care of the children and had not seen anything “untoward” between appellant and his oldest child.
In his third point on appeal, appellant argues that his attorney was remiss in not moving to suppress his confession on the basis that he was not read his Miranda warnings prior to giving his statement. A person seeking postconviction relief on a claim of ineffective assistance that is based on the failure of counsel to make a motion or objection must show that counsel could |7have made a successful argument in order to demonstrate the prejudice required under the Strickland test. Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam) (citing Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (per curiam)). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).
Prior to trial, counsel moved to suppress appellant’s statement; however, counsel moved to withdraw the motion after further investigation, and the trial court granted the motion to withdraw. At trial, Wes Bryant, a criminal investigator with the Benton County Sheriffs Office, testified that, as part of his investigation into the allegations against appellant, he asked appellant’s former wife to call appellant and request that he go to the sheriffs office for an interview. According to Investigator Bryant, when appellant arrived at the sheriffs office, he was taken to an interview room and told that he was not under arrest and was free to leave whenever he chose. Investigator Bryant further testified that, if appellant had decided to leave the sheriffs office, he would have been allowed to do so. The recording of investigator Bryant’s interview of appellant, which was introduced into evidence at trial, does not support appellant’s bald allegations that he was threatened with arrest and the imprisonment of his parents or that he made a request to call his father that was denied.
Miranda warnings are required only in the context of a custodial interrogation. Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). A person is in custody for purposes of the Miranda warnings when he or she is “deprived of his freedom by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580; Hall, 361 Ark. 379, 206 S.W.3d R830 (quoting Wofford, 330 Ark. 8, 28, 952 S.W.2d 646, 656). In resolving the question of whether a suspect was in custody at a particular time, the only relevant inquiry is how a reasonable person in the suspect’s shoes would have understood the situation. Wallace, 2009 Ark. 90, 302 S.W.3d 580; Hall, 361 Ark. 379, 206 S.W.3d 830. As previously noted, appellant was asked to go to the sheriffs office by his former wife, he arrived at the office of his own volition, and he was told by the investigating officer that he could leave at any time. In view of these circumstances, appellant was not “in custody” when he gave his statement such that the procedural safeguards of Miranda were inapplicable. Because appellant cannot establish that a motion to suppress would have had merit, he has failed to state a claim for ineffective assistance of counsel.
Appellant raises the argument in his fourth point on appeal that he was not brought to trial until 435 days after his arrest and that the only excluded period of delay of which he is aware is a 60-day period for a mental evaluation. Appellant states that he complained to counsel and to the court about the delay and that counsel had “no excuse to ignore” the speedy-trial violation. An allegation of a speedy-trial violation is a claim of trial error and is not cognizable in a Rule 37.1 petition. Meek v. State, 2013 Ark. 314, 2013 WL 4774470 (per curiam). Such claims of trial error, even those of a constitutional dimension, must be raised at trial and on appeal. Watson v. State, 2012 Ark. 27, 2012 WL 234634 (per curiam).
To the extent that appellant has stated a claim for ineffective assistance of counsel based on counsel’s failure to file a motion to dismiss based on a speedy-trial violation, he fails to show that such a motion would have been meritorious. As noted herein, a person seeking postconvietion relief on a claim of ineffective assistance that is based on the failure of counsel lflto make a motion or objection must show that counsel could have made a successful argument in order to demonstrate the prejudice required under the Strickland test. Hogan, 2013 Ark. 223 (citing Lowe, 2012 Ark. 185, 423 S.W.3d 6).
Under the speedy-trial rule, if a criminal defendant is not brought to trial within twelve months, the charges shall be dismissed with an absolute bar to prosecution. Ark. R.Crim. P. 28.1(c) (2011); Ark. R.Crim. P. 30.1 (2011). Arkansas Rules of Criminal Procedure 28.2 and 28.3 set out the calculation of time under the speedy-trial rule and authorize time periods resulting from necessary delays to be excluded from the calculation. See Moten, 2013 Ark. 503.
Appellant was arrested on August 28, 2010, and was brought to trial on December 14, 2011. For the purpose of determining time under Rule 28.1, the time for trial commenced running on the date of appellant’s arrest and ended on the day of appellant’s trial. See Moten, 2013 Ark. 503; Ark. R Crim. P. 28.2(a). By this court’s calculation, a total of 475 days elapsed between appellant’s arrest and trial. This time period exceeded the twelvemonth limitation in Rule 28.1(c). However, attached to the State’s response to appellant’s petition are defendant’s motion to continue the trial date and orders denoting continuances of the trial date and the time that is excluded for the purpose of calculating speedy trial. The trial court found that 143 days had been properly excluded from the speedy-trial calculation based on periods of delay resulting from a motion to continue filed by defense coun sel, a mental evaluation of appellant, the scheduling of a suppression hearing, and docket congestion. See Ark. R.Crim. P. 28.3. When these periods of delay are excluded from the 475-day period, 332 days are left, which was within the one-year period of speedy trial. Appellant fails to show on appeal that these periods of delay |inshould not have been excluded from the speedy-trial calculation such that counsel could have made a successful argument based on a speedy-trial violation. Accordingly, he fails to demononsrate the prejudice required by Strickland.
Appellant also contends that counsel was ineffective based on the failure to seek his release after he was in jail for nine months awaiting trial. Arkansas Rule of Criminal Procedure 28.1(a) mandates that an incarcerated defendant be released on his own recognizance if not brought to trial within nine months following arrest. The Rule does not provide for an absolute discharge but, at most, would have entitled appellant to be released and then to be tried within the time allowed. See Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); Cash v. State, 271 Ark. 881, 611 S.W.2d 510 (1981); Bell v. State, 270 Ark. 1, 603 S.W.2d 397 (1980). In his reply brief, appellant makes the conclusory allegation that, if he had been released after nine months, he could have gathered “crucial evidence and testimony.” However, he does not describe what evidence he would have discovered if he had been released. Because appellant fails to show that the outcome of the trial would have been any different if he had been released on his own recognizance while awaiting trial, he is not entitled to relief. See Wilburn v. State, 292 Ark. 416, 730 S.W.2d 491 (1987) (Even if counsel could have made a meritorious motion, the judgment must stand unless the petitioner demonstrates that the failure to file the motion had a prejudicial effect on the outcome of the trial.).
Finally, appellant makes the con-clusory claim that counsel was ineffective based on the failure to present a defense or conduct an investigation. Appellant also contends that counsel |nwould not discuss the case or charges with him, and he alleges that he asked the trial court to relieve counsel because their relationship was adversarial.
Counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary; but, when a petitioner under Rule 37.1 alleges ineffective assistance for failure to perform adequate investigation, he must delineate the actual prejudice that arose from the failure to investigate and demonstrate a reasonable probability that the specific materials that would have been uncovered with further investigation could have changed the outcome. Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam). The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. Abernathy, 2012 Ark. 59, 386 S.W.3d 477. Here, appellant’s arguments are limited to conclusory allegations, and he fails to provide any facts to support his claims. He does not describe any convincing defense that counsel could have presented, show how further investigation would have been fruitful, or state how the defense suffered from any lack of communication.
Order affirmed; motion moot.
. Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should be held in postconviction proceedings unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352, 2011 WL 4092485 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1 petition without an evidentiary hearing, it "shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark. R Crim. P. 37.3(a); see Ea-son, 2011 Ark. 352. In the instant case, the circuit court’s order denying postconviction relief complies with the requirements of Rule 37.3.
. In the prayer for relief in his reply brief, appellant sought appointment of counsel for the appeal. He did not develop any argument to support his request. Moreover, postconviction matters are considered civil in nature, and there is no absolute right to appointment of counsel. Ellis v. State, 2014 Ark. 24, 2014 WL 260991 (per curiam). We have held that, if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. Evans v. State, 2014 Ark. 6, 2014 WL 197783. However, in the instant case, appellant has not demonstrated merit to his appeal and, therefore, he has not met his burden of establishing that he is entitled to appointment of counsel.
. On direct appeal, appellant raised the argument that he was removed from the courtroom during some of the proceedings. This court did not consider the argument, holding that the allegation was conclusory and that appellant made no objection at trial. Breeden, 2013 Ark. 145, 427 S.W.3d 5.
. Appellant argues for the first time on appeal that counsel failed to explore a defense based on the theory that the victim made the allegations against him in an attempt to avoid punishment when her mother overhead her having an inappropriate conversation with her boyfriend. Because arguments raised for the first time on appeal could not have been considered by the trial court, they will not be addressed by this court. Green v. State, 2013 Ark. 455, 2013 WL 5968933 (per curiam); Williams v. State, 2013 Ark. 375, 2013 WL 5524467 (per curiam). Accordingly, we do not consider any argument raised by appellant for the first time on appeal. | [
112,
-22,
-27,
-84,
10,
97,
18,
62,
67,
-117,
107,
83,
-81,
-102,
4,
127,
107,
45,
84,
-31,
-41,
-73,
71,
-31,
-14,
-78,
-7,
-42,
55,
111,
-12,
-68,
76,
-16,
-30,
-43,
70,
-54,
-55,
82,
-114,
9,
-102,
-3,
88,
-61,
48,
35,
86,
15,
49,
-34,
-29,
107,
29,
-62,
105,
44,
91,
-67,
72,
-112,
-117,
5,
-49,
20,
-79,
-76,
-66,
68,
88,
46,
-100,
57,
10,
-7,
112,
-106,
-122,
20,
107,
25,
32,
98,
98,
-95,
84,
-19,
-71,
-120,
14,
63,
-115,
-90,
-38,
1,
75,
45,
-106,
-75,
125,
22,
45,
126,
-18,
-99,
57,
108,
10,
-113,
-112,
-75,
-81,
48,
52,
-117,
-21,
32,
20,
117,
-50,
-32,
92,
87,
57,
-38,
-114,
-74
] |
CLIFF HOOFMAN, Justice.
| ^Appellant Johnathan Johnston appeals from his convictions for three counts of rape of his daughter. He was sentenced to forty years’ imprisonment on each count, with all sentences to be served concurrently. On appeal, Johnston argues that the circuit court erred (1) in permitting the State to introduce pornographic images from his computer without sufficient evidence that he viewed the.pornography; (2) in admitting the pornographic images under Ark. R. Evid. 404(b) (2013); and (3) in admitting the pornographic images under Ark. R. Evid. 403 (2013). We assumed jurisdiction of this case pursuant to Ark. Sup.Ct. R. l-2(b)(4), (5), and (6) (2013), as it involves a significant issue needing clarification or development of the law. We affirm.
On November 4, 2011, Johnston was charged with three counts of rape of his then nine-year-old daughter, C.J. The rapes were alleged to have occurred between December 21, | g2006, and September 5, 2011. At trial, C.J. testified that Johnston had been raping her since she was four or five years old during her weekly visitation with her father, which was established following her parents’ divorce. She stated that the rapes occurred several times during each weekend visit and that Johnston raped her vaginally, orally, and anally. C.J. testified that Johnston had occasionally used a condom but that he typically ejaculated on her, and she described the smell of his semen. She further testified that Johnston had filmed her “sucking on his penis” and that he had taken photographs of her in suggestive poses. C.J. stated that the rapes were painful and that Johnston would anally rape her when he was “really mad” because he knew that hurt her the most.
According to C.J., she did not tell anyone about the abuse because her father threatened that “demons would kill me and him.” C.J. stated that Johnston would tell her that he saw demons or vampires in the mirror and try to scare her. She testified that she finally decided to tell her grandmother about the abuse after a visit with her father over Labor Day weekend in 2011, when she asked him when he would stop raping her, and he replied that he did not know. C.J. stated that he made a “pinkie promise” to stop but that he then raped her again on that Monday. While Johnston would normally make C.J. change her clothes and shower after the rapes, she decided not to change her underwear before she went home that weekend because she had a feeling that she was going to disclose the rapes. C.J. told her grandmother after school on Tuesday, and she was taken to Arkansas Children’s Hospital, where she underwent a sexual-assault exam. A swab taken from C.J.’s vagina tested positive for sperm cells, although the cells were unable to be DNA typed. The underwear that |3C.J. had worn home that weekend was also examined, and Johnston’s semen was found in the crotch area. His semen was also found on four other pairs of C.J.’s underwear seized from Johnston’s home. A forensic sexual-assault examination conducted two weeks later revealed that C.J. had a major tear in her hymen that indicated sexual abuse involving penetrating trauma.
Following the evidence presented at trial, the jury convicted Johnston of all three counts of rape and sentenced him to forty years’ imprisonment on each count, with the sentences to be served concurrently. The judgment and commitment order was entered on February 7, 2013, and Johnston filed a timely notice of appeal.
Johnston’s sole argument on appeal concerns the circuit court’s admission of pornographic images found on his laptop computer. At a pretrial hearing on this issue, Investigator Chris Cone, with the Arkansas Internet Crimes Against Children Task Force, testified that he had performed a forensic search of Johnston’s computer and that the pornographic images were found in the temporary Internet files of Johnston’s computer under the username “Johnathan.” All of the approximately 2200 images had been downloaded in a nineteen-minute time span on June 2, 2011, and Cone prepared a report containing about 188 of these images. Cone indicated that the vast majority of the pornographic images were incest related, with filenames and website names watermarked on them such as “wholefamilyin-cest,” “dads permindaughters,” “homein-cestvideos,” “daughterdestruction.com,” “trjdncest.com,” and “incestsexcite.net.” Cone stated that the images did not necessarily feature underage females, although many of the actors were dressed |4or posed in such a manner as to appear young. Cone testified that, because the Internet search history had been deleted on the computer, he did not have any proof that these websites had actually been visited. He indicated that many of the images on a webpage download automatically when the visitor enters a website and that some of the images in his report appeared to be from “banner ads,” which the user does not even have to click on for the image to automatically download.
Johnston argued that the report prepared by Cone should not be admitted into evidence because the images were not relevant to the issue of whether he raped his daughter, because they were also inadmissible under Ark. R. Evid. 404(b), and because the probative value of the images was outweighed by their prejudicial effect under Ark. R. Evid. 403. The circuit court ruled that two of the images believed to be banner ads would be excluded but that the other images were admissible pursuant to Rule 404(b). Johnston filed a motion for reconsideration, which was denied by the circuit court, and the court granted Johnston’s standing objection to the admission of this evidence at trial. Cone’s testimony at trial was similar to that at the pretrial evidentiary hearing, although the State admitted into evidence only thirty-seven images, less than half the images that it had initially relied on at the pretrial hearing.
Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on the admissibility of evidence are not reversed on appeal absent an abuse of discretion. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. Under Ark. R. Evid. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show |fithat he acted in conformity therewith; however, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Thus, evidence admitted under Rule 404(b) must be independently relevant to a material issue in the case. Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001). For evidence to be independently relevant, the evidence must have a tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. Ark. R. Evid. 401 (2013). Even relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.
Johnston challenges the circuit court’s ruling admitting the pornographic images on several grounds. He first contends that the images were inadmissible because there was no proof that he had viewed the pornography, pointing to Cone’s testimony that all the images had been downloaded within a nineteen-minute interval and that there was no proof that anyone, including Johnston, had actually visited the websites. Johnston also argues that the circuit court abused its discretion in ruling that the images were admissible under Ark. R. Evid. 404(b). He asserts that the pornographic images were admitted purely as propensity evidence, introduced to show that he had a propensity for incestuous acts and that he acted in conformity with this propensity when he raped his daughter. As set forth above, Rule 404(b) prohibits such propensity evidence unless it is independently relevant to an issue in the case, such as to show the defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ark. R. Evid. 404(b). Johnston | ^contends that the issue of whether pornography is admissible in a rape or sexual-abuse trial under Rule 404(b) has not yet been addressed by our appellate courts and instead cites cases from other jurisdictions, claiming that these cases have unanimously held that the admission of such evidence is error absent a showing that the pornographic materials were shown to or used to seduce the victim. Finally, in Johnston’s third argument, he contends that, even if the circuit court properly admitted the evidence in question, it erred by concluding that the probative value of the evidence outweighed its prejudicial effect under Ark. R. Evid. 403.
The State responds that there was sufficient circumstantial evidence presented to show that the pornography found in the temporary Internet files of Johnston’s computer belonged to him, given that he was the only resident of the house and that the images were all found under his user-name on his computer. With regard to Johnston’s argument that the images were downloaded to his computer within such a short time frame that it would not have been possible for him to view them, the State contends that this argument goes to the weight of the evidence, not to its admissibility, and also notes that Johnston could have been saving the images for later viewing.
The State also asserts that the incestuous images are admissible under Rule 404(b) to show Johnston’s motive and intent in raping his daughter. As support for its argument, the State cites to Snell v. State, 290 Ark. 503, 721 S.W.2d 628, 629 (1986), in which we upheld the admission of evidence of the defendant’s sympathies for a white-power organization as evidence of his motive to commit felony murder in the course of a robbery that was carried out to obtain money for the organization, and to Donovan v. State, 71 Ark.App. 226, 32 S.W.3d 1 (2000), in which the court of appeals affirmed the admission of Rule 404(b) evidence of the defendant’s drug addiction as proof of motive to steal the victim’s money in order to purchase more narcotics. The State contends that both of these cases demonstrate that the Rule 404(b) evidence was independently relevant because it tended to prove that the defendant had a particular attribute that explained his motive for committing the crime. With respect to Johnston’s argument that the probative value of the images is outweighed by their prejudicial effect, the State notes that there was testimony by C.J. that Johnston took photographs and video of her engaged in sexual acts with him and asserts that this renders the pornographic images in this case more probative than prejudicial under Rule 403.
Finally, even if this court finds that the pornographic images were erroneously admitted under either Rule 404(b) or Rule 403, the State contends that any error was harmless under the facts in this case. We agree with the State that the harmless-error doctrine applies in this case. Even when a circuit court errs in admitting evidence, we may declare the error harmless and affirm if the evidence of guilt is overwhelming and the error is slight. Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373. In determining whether the error is slight, we look to see if the defendant is prejudiced. Id.
Even assuming that the admission of the photos was error, there was overwhelming evidence of Johnston’s guilt. In addition to C.J.’s detailed testimony recounting the many years of rapes by her father, there was also corroborating medical and forensic testimony. Johnston’s semen was found on the crotch area of five pairs of C.J.’s underwear, including the pair that she had worn home following her Labor Day visitation, during which, she testified, |sJohnston had raped her three times. Further, a vaginal swab from the sexual-assault exam performed the next day tested positive for sperm cells, and a major tear in C.J.’s hymen, which was consistent with sexual abuse involving penetration, was also found. Thus, there was overwhelming evidence of Johnston’s guilt in this case. See, e.g., Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002) (holding that, even if the testimony of a prior rape victim was erroneously admitted by the trial court, it was harmless error where there was also physical evidence that corroborated the victim’s testimony). In addition, given the lengthy and detailed testimony of C.J. regarding the years of abuse by her father, we find that any error in admitting the pornographic images in this case was slight. While Johnston argues that the incest-related website names and commentary contained on many of the images were prejudicial and would have invoked “disgust, repulsion, and even anger” by the jury, any prejudice resulting from these images pales in comparison to all the evidence presented regarding his repeated rapes of his daughter. As Johnston admits, there is no allegation in this case that the images themselves involved child pornography. We therefore hold that any error in the admission of these images by the circuit court was harmless, and we affirm Johnston’s convictions.
Affirmed.
HANNAH, C.J., dissents. | [
48,
-18,
-116,
-68,
26,
98,
-22,
38,
83,
-109,
-9,
-13,
-81,
-50,
0,
123,
-94,
111,
84,
101,
-43,
-73,
55,
-31,
-78,
-5,
-8,
-41,
-78,
79,
-20,
-12,
92,
112,
-36,
113,
98,
-118,
-23,
-42,
6,
19,
-102,
-23,
16,
2,
36,
59,
64,
15,
53,
-97,
-25,
46,
28,
-58,
73,
78,
75,
-67,
-36,
17,
-70,
5,
29,
52,
-77,
34,
-97,
0,
-40,
60,
-40,
57,
0,
-20,
-13,
-124,
-122,
116,
79,
-117,
-87,
32,
66,
1,
-51,
-41,
53,
-103,
-81,
126,
-104,
-89,
-101,
32,
1,
101,
-81,
-75,
96,
-44,
13,
126,
-5,
76,
116,
100,
-92,
-49,
-124,
-119,
-113,
45,
-36,
48,
-13,
61,
32,
117,
-59,
-32,
68,
87,
58,
-41,
-82,
-78
] |
BILL H. WALMSLEY, Judge.
|! Peter Brave and Marie Brave own a very successful restaurant in Little Rock called Brave, Incorporated d/b/a Brave New Restaurant (hereafter, BNR). When the parties divorced after twenty-two years of marriage, Peter was ordered to pay $420,000 for Marie’s interest in BNR. In a subsequent order following Peter’s request for additional findings, the trial court found that the restaurant held goodwill that was corporate and, consequently, marital property. Peter raises two points on appeal: 1) the trial court erred in failing to find that the restaurant’s goodwill was personal goodwill and thus non-marital property, and 2) the trial court erred by “double dipping” into his future earnings when it both divided the goodwill and awarded alimony. We agree with Peter’s first point, and therefore reverse and 12remand.
At the time the parties met, Peter was working as a chef at the Capital Hotel, and Marie was employed as a waitress there. The parties married and, in August 1991, opened BNR. Peter testified that he creates and executes the menu at BNR and that his job is to know what the customers want. The parties agreed that, while Peter worked in the kitchen, Marie handled the “front end” of the business, including scheduling staff and ordering liquor for the restaurant. According to Peter, although Marie was very helpful in the beginning, she became less involved after their two children were born. Peter testified that Marie was no longer involved in operating the restaurant once it moved to its current location in 2000.
Both Peter and Marie offered expert real-estate appraisers who gave their opinions as to the value of the restaurant space. Peter also introduced testimony from Gus Dobbs, a business consultant employed by the Braves to handle accounting and payroll for BNR. Dobbs asserted that BNR’s goodwill amounted to $819,057; however, Dobbs also testified that the business itself could not be separated from Peter because, “In a very real sense, the business is Peter Brave. The whole business is his personality.” Dobbs described BNR as a unique operation in a hard-to-find location and stated that Peter simply could not be replaced. Dobbs further tes tified that he would not say whether the goodwill of the business was professional (marital) or personal (non-marital).
In the divorce decree, the trial court found that the value of the real estate for the | Sbusiness entity was $495,000 and that the value of BNR, including the furniture, fixtures, goodwill, and equipment, was $895,000. The trial court then deducted debt of $550,000 and concluded that the net value of the business, including the real property, was $840,000. The trial court awarded Marie $420,000 for her interest in the restaurant and later ruled that the goodwill in BNR was corporate goodwill and therefore marital property and that Marie was entitled to one-half.
With respect to the division of property in a divorce case, we review the trial judge’s findings of fact and affirm them unless they are clearly erroneous. Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005). 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 Arkansas Supreme Court has held that, for goodwill to be marital property, it must be a business asset with value independent of the presence or reputation of a particular individual. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). In other words, it must be an asset that may be sold, transferred, conveyed, or pledged. Id. Whether goodwill is marital property is a fact question and a party, to establish goodwill as marital property and divisible as such, must produce evidence establishing the salability or marketability of that goodwill as a business asset. Id. Any value that attaches to the entity solely as a result of personal goodwill represents nothing more than probable future earning capacity, which, although relevant in determining alimony, is nót a proper consideration in dividing marital property in a divorce proceeding. Tortorich v. Tortorich, 50 Ark.App. 114, 902 S.W.2d 247 (1995). “The Tortorich and Wilson cases confirm that the burden is on the party who seeks todisestablish goodwill as a marital asset to produce convincing proof delineating between professional goodwill on the one hand and personal goodwill on the other.” Williams v. Williams, 82 Ark.App. 294, 314, 108 S.W.3d 629, 642 (2003).
Arkansas has not recognized personal goodwill in a non-professional business; however, under the unique facts of this particular case, we are extending the concept to BNR because Peter’s presence is essential to the success of the restaurant. The trial judge credited Dobbs’s testimony and appeared to recognize that there was what amounts to personal goodwill in BNR. The trial judge commented, “I think [Peter] has some goodwill” and “[Peter] has built up goodwill.” The judge stated that the loss of Peter to the restaurant would be “very, very damaging” and agreed that, if Peter left the restaurant, “it would not be the same.” The trial judge also recognized that Marie had contributed very little to the restaurant over the previous ten years and that the success of the restaurant was due to Peter’s hard work. Further, the trial judge stated that she had no basis on which to allocate how much of the restaurant was personal goodwill, as opposed to corporate goodwill. We hold that the trial court clearly erred in finding that Marie sustained her burden of proving that the goodwill in BNR was entirely marital property, given that the evidence showed that the restaurant held personal goodwill attributable to Peter.
We do not reach the merits of Peter’s second point because we remand and direct the |fitrial court to determine what portion of BNR’s value was personal goodwill, which is Peter’s separate property, and to divide the remaining marital assets of the business, including the real estate, furniture, fixtures, and equipment. The trial court may then reassess alimony accordingly.
Reversed and remanded.
GLADWIN, C.J., and WHITEAKER and VAUGHT, JJ., agree.
HARRISON and HIXSON, JJ., dissent.
. Marie filed a motion to dismiss the appeal; however, we find the motion to be without merit, and it is therefore denied.
. Other jurisdictions have recognized personal goodwill in connection with commercial or non-professional business enterprises. See, e.g., McQuay v. McQuay, 217 P.3d 162 (Okla.Civ.App.2009); Bertholet v. Bertholet, 725 N.E.2d 487 (Ind.Ct.App.2000); Hough v. Hough, 793 So.2d 57 (Fla.Dist.Ct.App.2001). | [
19,
110,
-55,
126,
-120,
36,
58,
-8,
82,
-83,
103,
-13,
-25,
-29,
17,
107,
-14,
-53,
69,
120,
-33,
-77,
7,
34,
-14,
-69,
-47,
-39,
-79,
-49,
-11,
-44,
-52,
80,
-54,
-43,
114,
-53,
-55,
84,
6,
20,
11,
113,
81,
-124,
52,
99,
-64,
3,
48,
-100,
-45,
45,
56,
70,
108,
126,
29,
31,
112,
-71,
-114,
5,
77,
87,
-127,
36,
31,
7,
-48,
12,
-104,
57,
8,
-88,
114,
52,
46,
116,
67,
-97,
1,
32,
98,
18,
21,
-5,
-44,
-84,
38,
125,
-115,
-121,
-80,
88,
3,
107,
-67,
-100,
73,
22,
3,
-38,
-19,
84,
61,
96,
-119,
-50,
-44,
-125,
-123,
124,
28,
22,
-13,
83,
48,
103,
-49,
-22,
125,
7,
123,
-109,
-49,
-77
] |
DAVID M. GLOVER, Judge.
|! Jack Jones filed a complaint against Charles McLemore and Roger McLemore, brothers, alleging malicious prosecution, defamation, conspiracy, and violations of his civil rights. He filed suit against the McLemores both as individuals and as agents of the Arkansas State Police. The McLemores subsequently moved for summary judgment, contending that there were no issues of material fact, that they were entitled to judgment as a matter of law, and that some of the claims were barred by statutes of limitation. The trial court granted the motion for summary judgment. This appeal followed, with Jones contending that the trial court erred 1) in granting summary judgment concerning the malicious-prosecution claim and 2) in ruling that Jones’s claims under the Arkansas Civil Rights Act (ACRA) were barred Rby the statute of limitations. We affirm.
Background
The facts and personalities are both plentiful. Jack Jones was County Judge for Jefferson County, first elected in 1989 and still serving when these events transpired. The McLemore brothers were employed by the Arkansas State Police at the time, both serving as special agents. They have since retired. In December 2004 or January 2005, Jones and Charles McLe-more engaged in what Jones described as a heated verbal altercation concerning the naming of a road located near property owned by Charles. According to Jones, Charles’s brother Roger later came to Jones’s office several times, telling Jones that he had better make things right with Charles. At least one other person was reportedly told by Charles that he was “going to get” Jones. However, Charles and one of his neighbors, who was present, disputed Jones’s account of the encounter and described Jones as the one who was agitated.
In February 2005, the Jefferson County Sheriffs Office began investigating allegations of theft at the Jefferson County tire shredder. In May 2005, Prosecuting Attorney Stevan Dalrymple referred the matter to the Arkansas State Police for further investigation. Roger McLemore was assigned to the investigation. The scope of the investigation thereafter expanded to include allegations of wrongdoing by Jones. Dalrymple was notified by Arkansas State Police Sergeant Ron Stay-ton in late summer 2005 that Jones was considered a “person of interest” in the investigation. In September 2005, because Dalrymple was concerned that he had conflicts of interest, efforts were made to coordinate the appointment of a special prosecutor to investigate whether charges should be filed against Jones and other county | semployees. On November 8, 2005, a Jefferson County circuit judge granted Dalrymple’s motion for appoint ment of a special prosecutor and entered an order appointing Lona McCastlain, Prosecuting Attorney of the Twenty-Third Judicial Circuit (West), as special prosecutor. Also on November 8, 2005, Roger formally notified McCastlain that Arkansas State Police protocol required the prosecuting attorney to present a written request for the investigation to proceed because Jones was an elected official. She did so the next week, requesting that the state police investigate Jones, Tommy Tid-well, Tery Carlisle, and Richard Barranco. The formal Jones investigation was opened in December 2005.
In August 2006, Roger submitted his investigation summary to McCastlain. In the spring of 2007, McCastlain stepped down as special prosecutor because of the workload in her home district. Robert Dittrich, Prosecuting Attorney for the Eleventh Judicial Circuit (East), was appointed to take her place. He remained in the role of special prosecutor for this matter through the May 2010 trial.
On April 13, 2007, Roger executed several probable-cause affidavits that were reportedly based on information he had obtained during the investigation. On June 30, 2007, the Legislative Audit Division reported to Dittrich findings of several possible ethical violations. Dittrich subsequently filed a criminal information against Jones, and a warrant for his arrest was issued on February 13, 2008. Several of the charges were eventually nolle prossed by Dittrich, and others were dismissed on directed verdict. Jones went to trial on the remaining charges in May 2010, and he was found not guilty. Charles’s official role in the actual investigation was minimal, consisting of serving several subpoenas and sitting in on two |4witness interviews.
On March 4, 2011, Jones filed his complaint against the McLemores, alleging malicious prosecution, defamation, violations of the Arkansas Civil Rights Act, and civil conspiracy to commit malicious prosecution and defamation. As previously explained, the trial court eventually granted the McLemores’ request for summary judgment, and this appeal followed.
I. Malicious Prosecution Claim
For his first point of appeal, Jones contends that the trial court erred in granting summary judgment concerning the malicious-prosecution claim. We disagree.
Summary judgment is regarded as simply one of the tools in a trial court’s efficiency arsenal. Brooks v. First State Bank, 2010 Ark. App. 342, 374 S.W.3d 846. However, the granting of the motion is approved only when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that there is no genuine remaining issue of fact, and the moving party is entitled to judgment as a matter of law. Id. Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Id. The burden of proving that there is no genuine issue of material fact is upon the moving party. Welsher v. Mercy Health Sys., 2012 Ark. App. 394, 2012 WL 2337804. 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. Davis v. Schneider Nat’l, Inc., 2013 Ark. App. 737, 431 S.W.3d 321. The object of summary-judgment proceedings is not to try the issues, but to determine if there are any | .¡issues to be tried. Brooks, supra.
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. Davis, supra. 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. Id.
There is no disagreement among the parties concerning the elements that must be proved in order to establish malicious prosecution: 1) a proceeding instituted or continued by the defendant against the plaintiff; 2) termination of the proceeding in favor of the plaintiff; 3) absence of probable cause for the proceeding; 4) malice on the part of the defendant; and 5) damages. Id. Here, a proceeding was definitely instituted against Jones; it terminated in his favor; and it is fair to say that he suffered damages as a result. However, all five elements must be proved in order to prevail on such a claim. The two elements that are disputed are malice on the part of the McLemores and the absence of probable cause for the proceeding. Even if we were to conclude that a material question of fact exists regarding the McLemores’ motivation, which is something we are not deciding in this appeal, we agree with the trial court that there is no genuine issue of fact remaining concerning the element that requires the absence of probable cause. The failure of one element renders a malicious-prosecution case defunct. Brooks, supra.
In the context of malicious prosecution, probable cause means such a state of facts or | ^credible information that would induce an ordinarily cautious person to believe that the accused is guilty of the crime for which he is charged. Id. When the defendant makes a full, fair, and truthful disclosure of all facts known to him to competent counsel (or the prosecuting attorney) and then acts in a bona fide manner upon such advice, then this will be a good defense to a claim of malicious prosecution. Id. Arrests are evaluated from the standpoint of prudent and cautious officers at the time an arrest is made, but continuation of a prosecution in the face of facts that undermine probable cause can support a malicious-prosecution claim. Coombs v. Hot Springs Village Prop. Owners Ass’n., 98 Ark.App. 226, 254 S.W.3d 5 (2007). Once probable cause is established for one offense, it becomes immaterial whether it existed for other offenses. Martin v. Hallum, 2010 Ark. App. 193, 374 S.W.3d 152.
Here, the McLemores submitted with their motion for summary judgment numerous exhibits, including: documents that established the active involvement of at least two special prosecutors in this ease, McCastlain and Dittrich; reports of the information developed by Roger during the Arkansas State Police investigation; and reports generated by the Division of Legislative Audit in its investigation (which was specifically requested by the special prosecutor). The motion and its supporting exhibits established the presence of probable cause to pursue charges against Jones. The trial court determined, and we agree, that Jones did not meet that proof with sufficient proof of his own to create a material question of fact about probable cause. Jones contends in this appeal that the charges against him were based solely upon affidavits of Roger McLe-more, which he claims either embellished the truth or presented false information to create the appearance of probable cause. The bulk of his |7argument, however, focuses on Jones’s version of facts that he claims demonstrate malice on the part of the McLemores, rooted in the altercation over the road name, rather than on the lack of probable cause. Moreover, although Jones cites some examples of instances by which he claims Roger either lied or embellished the truth, Jones does not do so with respect to all of the charges, and he ignores instances where there is competing proof. The existence of contradictory evidence regarding some matters does not automatically eliminate the existence of probable cause. Actually, the decision to pursue the charges against Jones was made by Dittrich, not the McLemores, and that decision was not based solely on Roger’s affidavits. For example, Dittrich had the benefit of the report filed by the Division of Legislative Audit concerning allegations that had been made against Jones; that report, although inconclusive on some matters, did not clear Jones of all impropriety. In short, questions of fact that will defeat a motion for summary judgment must be material to the claim. Jones’s efforts to create questions of fact were either not material, not related to the existence of probable cause, or both. We find no error in the trial court’s grant of summary judgment.
II. Arkansas Civil Rights Act Violations
For his final point of appeal, Jones contends that the trial court erred in ruling that his claims under the ACRA were barred by the statute of limitations. In its October 24, 2012 order, the trial court ruled in pertinent part: “The following claims are barred by the statute of limitations: (1) all claims made under the Arkansas Civil Rights Act — failure to disclose exculpatory evidence (Brady violations), submission of false affidavits (Franks violations), and due process!.]” Jones does not disagree that a three-year limitations period is applicable to LACRA claims; rather, he takes issue with the point at which the three-year period begins to run. He takes the position that the primary “underlying tort” supporting his claim that his civil rights were violated under ACRA was malicious prosecution; that because “termination of the proceeding in favor of the plaintiff’ is an essential element of a malicious-prosecution claim, his ACRA cause of action could not commence until the proceedings had been terminated in his favor; that the proceedings terminated in his favor on May 26, 2010, when he was acquitted of the charges at trial; and that he filed his lawsuit against the McLemores on March 4, 2011, well within the applicable statute of limitations.
The McLemores, on the other hand, contend that the very latest that the three-year period began to run was with Jones’s arrest in February 2008, and that because he filed his suit in March 2011, the trial court was correct in barring the ACRA claims based on the statute of limitations.
The problem with Jones’s argument is that, while the alleged acts that he relies upon to make his ACRA claims may well be encompassed within the overall tort of malicious prosecution, it is the separate acts that control the limitations period. That is, the complaint filed by Jones lays out his ACRA claim as Count I, alleging:
Defendants Charles McLemore and Roger McLemore, while acting under color of state law, have violated Plaintiffs constitutional rights by the manner in which they carried on a five-year investigation and subsequent criminal prosecution of Plaintiff which was replete with intentional false affidavits, withholding of exculpatory evidence, and outrageous conduct by government officials.
The probable-cause affidavits executed by Roger McLemore were prepared in 2007 and Jones’s actual arrest took place in February 2008, both of which occurred more than three Inyears before he filed his lawsuit. The actual trial and his acquittal were not necessary prerequisites to establish his ACRA claim.
Affirmed.
WALMSLEY and GRUBER, JJ., agree.
. Jones’s arguments regarding the conspiracy-to-commit-malicious-prosecution claim have not been pursued in this appeal. Although the argument heading includes it, the body of the argument itself does not address it. | [
48,
-28,
-18,
60,
8,
-63,
58,
-52,
67,
-126,
116,
83,
-83,
-49,
77,
49,
-31,
91,
-44,
107,
64,
-93,
117,
99,
-94,
-77,
-7,
87,
50,
79,
-4,
-3,
92,
52,
-54,
89,
66,
76,
-123,
94,
-122,
33,
41,
100,
-55,
64,
52,
39,
20,
15,
117,
62,
-126,
46,
21,
75,
73,
44,
-49,
-98,
64,
-37,
-101,
13,
-35,
22,
-109,
38,
-113,
7,
-6,
24,
-48,
49,
-112,
-24,
-13,
-78,
-90,
-12,
79,
-103,
8,
102,
99,
12,
-115,
-17,
-84,
-120,
13,
-70,
-103,
38,
-118,
96,
74,
7,
-74,
-108,
120,
65,
14,
126,
-25,
5,
124,
40,
-121,
-50,
-42,
-125,
-83,
32,
20,
51,
-21,
3,
116,
117,
-51,
-30,
93,
70,
19,
91,
-106,
112
] |
KENNETH S. HIXSON, Judge.
_JjIn this divorce case, the Garland County Circuit Court issued a divorce decree in October 2012 that awarded Cathy Dozier a divorce from appellee John Dozier; found that certain property, real and personal, was John’s separate nonmarital property; awarded Cathy rehabilitative alimony of $2,500 per month for seven years; and equally divided the parties’ marital property. For reversal, Cathy argues that the circuit court erred in its award of alimony and in its classification of John’s separate, nonmarital property. Finding no error, we affirm.
The parties were married in May 1993 and did not have children. On April 4, 1994, John’s father established the John B. Dozier Land Trust for the benefit of John and John’s daughter. The attorney who prepared the trust and related documents was Dan Felton. The trust was irrevocable. John Dozier served as the trustee and had the ability to appoint a successor trustee by naming one in his will or in some other instrument. On the same day, 12John’s parents also deeded 250 acres of real property to John. The warranty deed provides that the consideration was “the love and affection which we have for our son.” Six months later, Felton discovered that he had made a scrivener’s error in the warranty deed in that the grantee in the warranty deed was mistakenly John individually instead of the trust. Accordingly, on September 23, 1994, Felton prepared a Correction Deed wherein the 250 acres was conveyed to the “John B. Dozier Land Trust dated April 4, 1994.” The Correction Deed states in pertinent part: “The purpose of this Deed is to correct the name of the intended Grantee in that certain Warranty Deed dated April k, 199k, and filed for record on September 20, 199k, in Book 333 at Page 58k of the records of Lee County, Arkansas.” During the marriage, John conveyed other parcels of real property he had acquired prior to the marriage into his land trust. He also acquired several hundred acres during the marriage in his capacity as trustee.
In January 2011, Cathy filed a complaint for separate maintenance from John. At that time, Cathy was 58 years old, and John was 61 years old. She later amended her complaint to seek an absolute divorce. She sought permanent alimony for the remainder of her life and an unequal division of the parties’ marital property. John answered and counterclaimed for divorce.
A hearing was held in August 2011 for temporary maintenance. Following the hearing, the circuit court entered a temporary order that required John to pay the house payments, utilities, taxes, and lawn care for the marital residence at 239 Osprey Drive in Hot Springs; allowed Cathy temporary possession of the home; and required John to pay Cathy |s$3,500 as monthly support, as well as her medical insurance. The court also ordered John to pay her $10,000 to replenish her 401(k) and another $10,000 to cover future attorney’s fees.
A trial on the merits of the divorce was subsequently conducted over four days scattered over several months. At the conclusion of the trial, the circuit court requested each party to submit proposed findings of fact and conclusions of law. Each side presented those to the circuit court. The circuit court issued a letter opinion adopting, with modifications, John’s proposed findings and conclusions. A thirty-eight page decree was entered on October 11, 2012, and amended on October 25, 2012.
The circuit court granted Cathy a divorce on grounds of eighteen-months’ separation. The circuit court ordered the marital residence sold by the circuit clerk and the net proceeds after payment of the mortgage and costs of sale divided equally. The balance of the mortgage on the residence was approximately $400,000 and it had been put on the market to sell at an asking price of $975,000. The contents of the marital home were ordered to be sold, as well as a 2007 Cadillac, a 2011 Harley Davidson, a 2004 pontoon boat, a 1991 Buick, a 1999 utility trailer, a 1994 trailer, and a 1994 boat. The circuit court found that two “Labor Houses” built by John should be sold, with John given credit for the first $20,000 before the remainder was equally divided. After setting aside certain personal property to John as being his nonmarital property, the circuit court ordered all marital property sold and the proceeds divided equally. The decree also divided the funds held in marital accounts equally, ordered |4the marital portion of each party’s retirement account to be divided equally, and granted each party their own life insurance policies. Cathy’s IRA held $100,000 in marital value, and John’s held $242,400, approximately half of which was marital.
Turning to Cathy’s request for alimony, the circuit court listed the various factors it considered and concluded that Cathy was not entitled to permanent alimony. Instead, the court awarded Cathy rehabilitative alimony of $2,500 per month for seven years, to cease upon her remarriage, death, or cohabitation. The circuit court also found the John B. Dozier Land Trust to be nonmarital and granted John all trust property, real and personal. It awarded Cathy $665 in costs and $10,000 for final attorney’s fees. This appeal followed.
Cathy first argues that the circuit court abused its discretion in awarding alimony of only $2,500 per month and only for seven years. The decision to grant alimony lies within the sound discretion of the circuit court and will not be reversed on appeal absent an abuse of discretion. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007); Ary v. Ary, 2013 Ark. App. 677, 430 S.W.3d 780. A circuit court abuses its discretion when it exercises its discretion improvidently, or thoughtlessly and without due consideration. Delgado v. Delgado, 2012 Ark. App. 100, at 6, 389 S.W.3d 52, 57.
The purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties, in light of the particular facts of each case. Spears v. Spears, 2013 Ark. App. 535, at 5, 2013 WL 5424819. The primary factors to consider are the financial need of one spouse and the other spouse’s ability to pay. Id. at 6. Other factors include the | ^financial circumstances of both parties; the couple’s past standard of living; the value of jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party’s spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. Id. The amount of alimony has never been reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty. Page v. Page, 2010 Ark. App. 188, 373 S.W.3d 408. If alimony is awarded, it should be set in an amount that is reasonable under the circumstances. Id.
Cathy asserts that the circuit court did not properly consider all of the relevant factors in the paragraph of the decree entitled “Alimony Conclusion.” We disagree. The circuit court devoted over four pages of its decree to a discussion of the various factors for the award of alimony. The circuit court specifically considered and included the following factors in its decree: length of marriage, age of the parties, health of the parties, station of the parties, assets of the parties, lack of debts of the parties, lifestyle of the parties, income of the parties, temporary support previously ordered by the court and Supreme Court Administrative Rule 10. Given the extensive analysis of alimony in the decree, we cannot say that the circuit court failed to consider the proper factors or abused its discretion.
Cathy further argues that she is entitled to permanent alimony because she is fifty-eight years old and has not worked in over thirteen years and, as a result, has no marketable | (¡skills to obtain a job making much over minimum wage. After careful consideration of the factors set forth above, the circuit court decided to award the alimony award for a period of seven years in part because after seven years, Cathy would be able to draw on John’s Social Security retirement benefits and she could draw from her IRA without penalty. The circuit court further noted that Cathy was in good health, but that she did not feel that she should have to look for work. See Ary, supra. Rehabilitative alimony is alimony that is payable for a short, specified duration of time in order to afford the recipient a specific period of time in which to become self-supportive. Page, supra.
This court and the supreme court have in the past emphasized that the circuit court is in the best position to view the needs of the parties in connection with an alimony award. See, e.g., Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007); Bailey v. Bailey, 97 Ark.App. 96, 244 S.W.3d 712 (2006). In reviewing an alimony award, our role is simply to determine whether the circuit court abused its discretion. Whitworth v. Whitworth, 2009 Ark. App. 410, 319 S.W.3d 269. We are not to substitute our judgment for that of the circuit court. Id. Cathy’s argument asks us to do so. Based on this record, the circuit court considered the proper factors, and we cannot say that the alimony award was an abuse of the court’s discretion.
Cathy next challenges the circuit court’s classification of certain property as John’s separate, nonmarital property. Property classification is a question of fact. See Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). We review the circuit court’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; the division of property itself is also reviewed and the same standard applies. Id. Cathy’s arguments focus on two issues: Whether the 250 acres of real property was non-marital property; and, whether the John B. Dozier Land Trust was an “illusory trust” so that its assets were marital property to be divided. We affirm the trial court’s findings because they are not clearly erroneous.
In finding that the 250 acres were John’s separate property, the circuit court relied in part on the fact that the property was never titled in Cathy’s name in any capacity. This was in error because our marital-property statute defines marital property as “all property acquired by either party during the marriage” except for certain enumerated exceptions. Ark.Code Ann. § 9-12-315(b) (Repl.2009). A gift is one of those exceptions. Id. at subsection (b)(1). The circuit court ultimately found that the 250 acres was a gift from John’s parents in 1994, relying on testimony from John and the attorney responsible for preparing the trust instrument and the deed conveying the real property. The first part of Cathy’s argument is that Felton’s testimony does not meet the requirement that an inter vivos gift be proven by clear and convincing evidence because he failed to provide a factual basis for his assertion that the property was a gift from John’s parents. See Bellis v. Bellis, 75 Ark.App. 213, 56 S.W.3d 396 (2001). However, the question on appeal is not whether we are convinced there was clear and convincing evidence to support the findings of the circuit court, but whether we can say the findings are clearly erroneous. Hearne v. Banks, 2009 Ark. App. 590, 376 S.W.3d 444. Moreover, the trial court also found that Cathy agreed in her testimony that this 250 acres was a gift to John from his parents in 1994, as borne out by Cathy’s proposed findings of fact and conclusions of law.
Cathy’s final argument- is that the land trust was “illusory” and, therefore, the assets held by the trust were marital property subject to division. Although John argues that her argument is not preserved for our review because Cathy failed to obtain a specific ruling from the circuit court, we disagree and hold that the issue is properly preserved for our review.
Cathy’s attorney argued orally and in written proposed findings of fact and conclusions of law that the trust was illusory and invalid in that John is both the trustee and the beneficiary of the trust and that he used the illusory trust to divest Cathy of marital property. The trial court found that the marital money paid out of the parties’ farming operation to the trust was shown to be legitimate rent owed to the landlord, the trust. John and Cathy ceased farming in 2002. The trial court found that the couple’s final profits from farming were used to pay taxes and debts, with the remaining money spent by the parties over nine years. In sum, the trial court rejected Cathy’s argument that John defrauded her of marital assets by tunneling marital money and assets into the “illusory” trust and found that the trust was a valid irrevocable trust. Based on the record before us, we cannot conclude that the circuit court was clearly erroneous.
Affirmed.
PITTMAN and WALMSLEY, JJ., agree.
. John's personal property included items such as bedroom furniture, various antiques, and a gun safe. Cathy stipulated that most of this property was John's separate property. As for the items that Cathy did not stipulate were John’s separate property, she did not introduce any evidence showing that the items were, in fact, marital property.
. Cathy testified that she had only a high-school education. She also testified that she had previously worked in the banking industry prior to becoming a stay-at-home wife. The circuit court noted both of these facts in its discussion of the alimony factors. | [
-16,
108,
-43,
108,
-54,
-32,
10,
-84,
122,
-115,
99,
83,
-21,
-62,
80,
105,
-30,
107,
65,
-22,
-41,
-78,
7,
-63,
82,
-77,
-7,
94,
-96,
93,
-12,
-41,
76,
56,
-54,
-43,
64,
-119,
-49,
80,
-122,
70,
11,
77,
-39,
-122,
52,
35,
4,
13,
81,
-114,
-80,
-83,
117,
103,
108,
12,
93,
57,
80,
-78,
-102,
14,
127,
6,
-111,
37,
-64,
14,
90,
42,
-112,
61,
-120,
-88,
51,
54,
86,
116,
9,
-97,
9,
116,
102,
16,
69,
-1,
-96,
-120,
14,
-65,
13,
-90,
-46,
72,
26,
78,
-66,
-108,
124,
116,
-52,
-10,
102,
76,
84,
96,
2,
-22,
-42,
-127,
-59,
120,
-100,
17,
-21,
-25,
48,
113,
-49,
-30,
93,
70,
57,
-101,
-114,
-14
] |
KENNETH S. HIXSON, Judge.
| ]This is a workers’ compensation case. Connie Parker worked for Advanced Portable X-Ray, LLC (“APX”), a mobile x-ray company. Parker’s duties included driving the company van that carried the portable x-ray machine and providing x-ray services to patients. It is not disputed that on September 29, 2011, Parker was driving the company vehicle and providing employment services when she was rear-ended by another vehicle and sustained whiplash-type injuries. APX continued to pay Parker her regular wages while she was off work, but on January 26, 2012, prior to Parker being released to return to work, APX terminated Parker, and her last paycheck was for the pay period ending January 15, 2012.
On January 30, 2012, Parker sent a letter to the EEOC explaining her claim of wrongful termination in layman’s terms. In March 2012, Parker filed a formal EEOC discrimination charge against APX, claiming that APX violated the Americans with | ¡¿Disabilities Act when it fired her. In April 2012, Parker and APX settled the EEOC charge in a confidential mediation session wherein APX agreed to pay Parker “lost wages” of $60,000, less applicable taxes, in exchange for Parker not instituting a lawsuit under the Americans with Disabilities Act and Parker agreeing to “resign.” On April 26, 2012, after withholding the appropriate taxes, APX wrote a check to Parker in the amount of $47,485 referencing a single pay period, the date of April 27, 2012. The following day, on April 27, 2012, Parker tendered a one-sentence “resignation” from her job with APX “in keeping with the terms of our settlement” of the EEOC charge.
In August 2012, Parker’s workers’ compensation claim proceeded to a hearing. Parker alleged she was entitled to medical benefits, temporary-total-disability (TTD) benefits, and attorney’s fees. APX controverted the claim and further alleged in the alternative that APX was entitled to a credit in the amount of $60,000 against any workers’ compensation benefits as a result of the EEOC settlement proceeds. The Administrative Law Judge (ALJ) concluded that Parker had established the com-pensability of her injuries; that APX was responsible for medical treatment as reasonably necessary in connection with the compensable injuries; and that Parker was entitled to TTD benefits beginning January 16, 2012, until a date yet to be determined. However, the ALJ rejected APX’s arguments (1) that Parker was “judicially estopped” from seeking TTD in light of her assertion in the EEOC documents that she was |sable to work, and (2) that APX was entitled to a statutory credit for the money it paid Parker in the EEOC mediation settlement.
APX appealed to the full Commission. After its de novo review, the Commission awarded Parker medical benefits that were reasonably related to treat her compensa-ble thoracic and cervical injuries, TTD to a date yet to be determined, and her attorney’s fees. The Commission declined to find Parker “judicially estopped” from claiming TTD. The Commission, in contrast to the ALJ, determined that APX was entitled to a credit for “lost wages” it sought pursuant to Ark.Code Ann. § 11—9— 807(b) (Repl.2012). Parker filed a direct appeal, and APX filed a cross-appeal.
Parker contends on direct appeal that the Commission erred in awarding the $60,000 credit to APX. We reverse and remand on direct appeal. On cross-appeal, APX contends that the Commission erred in refusing to apply the doctrine of judicial estoppel to Parker’s claim for TTD benefits, and, alternatively, that the Commission’s decision to award her TTD benefits was not supported by substantial evidence. We affirm on cross-appeal.
We first address Parker’s direct appeal. She contends that the Commission erred by awarding APX a credit pursuant to Ark.Code Ann. § 11-9-807 (Repl. 2012), which states:
Credit for compensation or wages paid.
(a) If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
(b) If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period.
14As relevant here, the Commission noted the following language of Parker and APX’s EEOC mediation settlement agreement:
7. As evidence of a good faith effort to resolve EEOC Charge Number 493-2012-00562, [APX] offers and [Parker] accepts the following proposal of settlement or (the parties agree): A. [APX] agrees to pay [Parker] and her attorney the sum of Sixty Thousand Dollars ($60,-000.00) as lost wages, in which all applicable federal, state and local taxes will be withheld on this sum....
(Emphasis added.)
The ALJ found that APX had not shown that both parties intended for the settlement to be considered advance payments for compensation under subsection (a) and therefore, refused to grant APX the $60,000 credit. The ALJ did not discuss the applicability of subsection (b) and whether the settlement proceeds were full wages received during her disability.
Before the Commission, whose decision we review, APX did not argue that it was entitled to a credit for advanced wages under subsection (a) as discussed by the ALJ; rather, APX instead argued that it was entitled to a credit for “full wages” received during disability under subsection (b). The Commission decided that APX was entitled to a $60,000 “credit for lump sum wages that it paid the claimant in April 2012” under subsection (b) as “full wages” received during disability. The Commission did not discuss the applicability of “advanced wages” under subsection (a).
Parker argues in this appeal that subsection (b) does not apply in this instance and that APX did not prove its entitlement to this statutory credit. We cannot address the merits of her argument at this time because the Commission failed to render adequate findings upon which we can perform appellate review.
Lin the Commission’s “Opinion and Order” on this issue, the Commission recites the bare statute; states that APX is no longer seeking credit as “advance payments” under subsection (a); and repeats APX’s request for a $60,000 credit in lost wages it paid to Parker. The Commission then simply concludes:
The Full Commission agrees. Ark.Code Ann. § ll-9-807(b) (Repl.2002) [sic] expressly provides that an injured employee shall not be entitled [to compensation] during the period that she receives full wages. Pursuant to a Mediation Settlement Agreement, the respondent-employer paid the claimant the sum of $60,000.00 in “lost wages, in which all applicable federal, state and local taxes will be withheld on this sum.” The Full Commission finds that the respondent-employer is entitled to a credit for lump sum wages that it paid the claimant in April 2012.
The Commission provides no explanation of how Parker’s EEOC mediation settlement proceeds described therein as “lost wages” equates to “full wages” under § ll-9-807(b). We are required to strictly construe workers’ compensation statutes, meaning that we are to narrowly construe the statute, nothing to be taken as intended unless clearly expressed. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, 424 S.W.3d 881.
The Commission is not an appellate court. Serrano v. Westrim, Inc., 2011 Ark. App. 771, 387 S.W.3d 292. The Commission reviews cases appealed to it de novo, and the duty of the Commission is not to determine whether there was sub stantial evidence to support the ALJ’s findings; rather, it must make its own findings in accordance with the preponderance of the evidence. Id., see also Pharmerica v. Seratt, 103 Ark.App. 9, 285 S.W.3d 699 (2008).
The Commission is obliged to make findings and conclusions with sufficient detail and particularity to allow us to decide whether its decision is in accordance with the law. Vijil v. Schlumberger Tech. Corp., 2011 Ark. App. 87, 2011 WL 386996; Peters v. Doyle, 2009 Ark. App. 722, 2009 WL 3644305. When |fithose details are lacking, it is appropriate to reverse and remand to the Commission so that it can provide a decision upon which we can conduct a meaningful review. See Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992). Here, the Commission did not make findings and conclusions with sufficient detail and particularity to allow us to decide whether its decision is in accordance with the law. We remand on direct appeal for the Commission to make findings and conclusions with sufficient detail and particularity on the applicability of Ark.Code Ann. § 11-9-807(b) and the amount of the credit, if any, available to APX under the facts of this case.
On cross-appeal, APX asserts that the Commission erred in not finding Parker to be judicially estopped from claiming entitlement to TTD, and furthermore, that even absent estoppel, the decision to award TTD is not supported by substantial evidence. We disagree with both arguments and affirm on cross-appeal.
APX asserts that Parker alleged inconsistent positions pertaining to her ability/inability to work. In grossly simple terms, APX asserts that in her EEOC claim, Parker alleged she was able to work with reasonable accommodation. On the other hand, in her workers’ compensation claim, Parker asserted she was unable to work so as to receive TTD benefits. As to judicial estoppel, the Commission found, “The respondent [APX] did not prove that the claimant is judicially estopped from asserting entitlement to temporary total disability benefits in accordance with Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004).” This is unlike the direct appeal in which the Commission did not cite any authority or rationale to support its decision and we were unable to perform a meaningful review. Here, the 17Commission expressly relied on Dupwe as precedent for its conclusion, and, therefore, that requires us to analyze Dupwe within the context of this case.
The Arkansas Supreme Court in Dupwe undertook an exhaustive analysis into the doctrine of judicial estoppel beginning with the first Arkansas case to use the term “judicial estoppel” and expanded its analysis through the use of the legal encyclopedias Corpus Juris Secundum and American Jurisprudence and case law from the United States Supreme Court and other states. Some pertinent legal principles quoted in Dupwe are particularly appropriate and relevant to our analysis:
The best beginning point in our analysis is Muncrief [v. Green, 251 Ark. 580, 473 S.W.2d 907 (1971) ] where this court stated that the appellee in that case was asserting judicial estoppel, “by which a party may be prevented from taking inconsistent position in successive cases with the same adversary.”
In discussing judicial estoppel in Daley [v. City of Little Rock, 36 Ark.App. 80, 818 S.W.2d 259 (1991)], the court of appeals cited to Rinke [v. Weedman, 232 Ark. 900, 341 S.W.2d 44 (1960) ], for the proposition that the doctrine of judicial estoppel is of “vague application.”
In House [v. Wakefield, 42 Tenn. 325 (1865) ], the Tennessee Supreme Court noted that the judgment at issue was:
a judgment regularly rendered upon the solemn admissions of the parties made in the court of the suit, and with the view of such admission being acted upon by the court.
The principle laid out in House and characterized as “judicial estoppel” in C.J.S. is not a principle unfamiliar to this court.
J& • • •
In Cox v. Harris, 64 Ark. 213, 215, 41 S.W. 426 (1897), this court stated, “It is a familiar principle of law that one is not, as a rule, allowed to avail himself of inconsistent positions in a litigation concerning the same subject matter.”
Dupwe, 355 Ark. at 529-30, 140 S.W.3d at 467-70. (Emphasis added.)
It is to be noted that each of the precedents set forth above and relied on by the Dupwe court discusses actual successive cases between the same parties concerning the same subject matter, and the previous court relied upon the alleged prior inconsistent position. The Dupwe court went on to distinguish between the doctrine of judicial estoppel and the doctrine against inconsistent positions. There is a difference. The doctrine of judicial estoppel applies to cases actually litigated; the doctrine against inconsistent positions has a broader purview. The Dupwe court explained the difference:
The doctrine against inconsistent positions is much broader than judicial es-toppel. Judicial estoppel prohibits a party from manipulating the courts through inconsistent positions to gain an advantage. The doctrine against inconsistent positions may also apply to positions taken outside of litigation.
Dupwe, 355 Ark. at 531, 140 S.W.3d at 470. (Citation omitted.)
The Dupwe court cited examples of how inconsistent positions taken outside of litigation may violate the doctrine against inconsistent positions but not violate the doctrine of judicial estoppel. In Wenderoth v. City of Ft. Smith, 256 Ark. 735, 510 S.W.2d 296 (1974), the appellants previously in a public proceeding contended that a strip of land was public property; and, later in a lawsuit against the city, the appellants contended that the same strip of land was private. The court estopped the appellants from taking inconsistent positions. In Dicus v. Allen, 2 Ark.App. 204, 619 S.W.2d 306 (1981), the appellees previously relied on |9a Whitfield survey and later in court, the appellees attempted to reject the Whitfield survey. The court stated, ‘We believe it would be inherently unfair to permit these appellees to take these inconsistent positions, and we, therefore, hold that they are estopped[.]” Dicus, 2 Ark.App. at 209, 619 S.W.2d at 308.
The Dupwe court concluded its analysis of judicial estoppel vis-a-vis the doctrine of inconsistent positions by stating: “Thus, it is apparent that the rule against assuming inconsistent positions in litigation, or in other words, judicial estoppel, is a branch of the doctrine against inconsistent positions.” Dupwe, 355 Ark. at 532, 140 S.W.3d at 471. The Dupwe court then set about to define the elements of judicial estoppel in Arkansas. The Dupwe court adopted the rationale from New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001): “A party’s earlier position must have been judicially accepted such that the inconsistent position in the later proceeding creates the perception that the first or second court was misled[.]” (Emphasis added.) The Dupwe court adopted the rationale from 21 C.J. Estoppel, § 233 at 1229-30 (1920): “1. The position must have been successfully maintained in a former trial.” (Emphasis added.) Finally, the Dupwe court concluded that the following elements must be present to state a prima facie case of judicial estoppel: (1) a party must assume a position inconsistent with a position taken in an earlier case, or with a position taken in the same case; (2) a party must assume the inconsistent position with the intent to manipulate the judicial process to gain an unfair advantage; (3) a party must have successfully maintained the position in an earlier proceeding such that the court relied upon the position taken; and (4) the | ^integrity of the judicial process of at least one court must be impaired or injured by the inconsistent positions taken.
The Dupwe opinion provides an exhaustive analysis by our supreme court, making a distinction between the doctrine of judicial estoppel and the doctrine against inconsistent positions. We must adhere to the language carefully selected by the Dupwe court in its four prima facie elements of judicial estoppel. Applying Dupwe, it is apparent to this court that for the doctrine of judicial estoppel to apply, the alleged inconsistent positions must be contained within an “earlier case” as set forth in element (1), and that the alleged inconsistent positions must have been successfully maintained in an earlier proceeding such that the earlier court relied upon the position taken, as in element (3). Here, the alleged previous inconsistent position regarding the appellant’s ability to work was made, if at all, in an EEOC proceeding that was settled prior to litigation and not within an “earlier case”; and, no earlier court relied upon that alleged inconsistent position. We hold that the Commission did not err in finding that the doctrine of judicial estoppel was not applicable in this case, and we affirm on this issue.
Moving to the issue of Parker’s entitlement to TTD, we review the evidence in a workers’ compensation appeal in the light most favorable to the decision of the Commission and affirm if it is supported by substantial evidence. Tucker v. Bank of Am., 2013 Ark. App. 585, 2013 WL 5745033. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. On review, the issue is not whether we might have reached a Indifferent result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id.
APX contends that there is no substantial evidence to support the Commission’s award of TTD to Parker from January 16, 2012, to a date yet to be determined. We disagree. TTD is that period within the healing period in which the employee suffers a total incapacity to earn wages. RPC, Inc. v. Hargues, 2011 Ark. App. 264, 2011 WL 1319384. The healing period is that period for healing of the compensable injury, which continues until the employee is as far restored as the permanent character of the injury will permit. Smallwood v. Ark. Dep’t of Human Servs., 2010 Ark. App. 466, 375 S.W.3d 747. If the underlying condition causing disability has become stable, and nothing further in the way of treatment will improve the condition, then the healing period has ended; it is a question of fact for the Commission to answer. Id.
The evidence presented at the hearing demonstrated that Dr. Katz of Northwest Arkansas Neurosurgery Clinic took Parker off work in December 2011. Dr. Ennis, an interventional pain specialist, opined that as of January 9, 2012, Parker was unable to travel due to the pain caused by her compensable injury. APX’s office manager stated in writing on January 9, 2012, that Parker “will NOT be allowed to. return to work until we have received a medical release from her attending physician and she can totally perform all areas of her job description.” (Emphasis in original.) There was no evidence that Parker had ever been released from her attending physician’s care. On May 22, 2012, Dr. Piechal, an osteopathic physician from the Healing Arts Medical Center, stated that Parker was to remain off work “indefinitely.” This was the evidence that the Commission deemed most credible 112and persuasive, and we cannot say that reasonable minds could not conclude that Parker was entitled to TTD from and after January 16, 2012. We affirm the award of TTD.
Reversed and remanded on direct appeal; affirmed on cross-appeal.
HARRISON, WYNNE, and GLOVER, JJ., agree.
PITTMAN and WOOD, JJ., dissent.
. Parker contended that she had compensable injuries to her cervical and thoracic spine, as well as to her head, lower back, left shoulder and arm. Only her cervical and thoracic spine injuries were deemed compensable. She does not appeal from the denial of her claim with regard to her head, lower back, left shoulder and arm. Our discussion is limited to the injuries for which she was compensated. | [
24,
122,
-112,
-83,
9,
-95,
50,
18,
117,
-121,
7,
23,
-81,
-29,
93,
63,
-13,
125,
81,
105,
-41,
35,
49,
10,
-30,
-73,
-21,
81,
-87,
74,
-12,
-11,
77,
48,
-126,
69,
102,
82,
-19,
80,
-52,
38,
-86,
-24,
-71,
-128,
32,
63,
-64,
75,
51,
-100,
51,
44,
52,
71,
40,
46,
127,
-83,
-128,
98,
-74,
5,
-17,
2,
-109,
4,
30,
39,
-40,
30,
-120,
56,
104,
-86,
50,
-74,
-62,
118,
99,
-103,
4,
39,
98,
-79,
21,
-27,
-4,
-104,
62,
-66,
-113,
37,
-79,
92,
19,
11,
-79,
-100,
88,
21,
4,
76,
-2,
69,
12,
72,
-55,
-114,
-98,
-125,
-49,
102,
-100,
-81,
-17,
-74,
17,
83,
-52,
-126,
93,
7,
107,
23,
107,
-86
] |
LARRY D. VAUGHT, Judge.
| Leonard Bean appeals from the order entered by the Sebastian County Circuit Court, finding him guilty of two counts of second-degree sexual assault and one count of attempted rape. He was sentenced to a total of seventy years’ imprisonment along with a $15,000 fíne. On appeal, Bean argues that the trial court (1) abused its discretion by denying his motion for continuance, (2) abused its discretion by excluding relevant evidence of the victim’s prior sexual conduct and “alternate sexual knowledge,” and (3) erred by permitting the State to make two amendments to the felony information. We affirm.
Bean does not challenge the sufficiency of the evidence; therefore, only a brief summary of the facts is necessary. Bean (DOB May 24, 1946) was charged by felony information on May 5, 2011, with second-degree sexual assault. The affidavit for the warrant for his arrest alleged that between April 29, 2007, and April 28, 2008, he committed the offense of sexual assault in the second degree, being eighteen years of age or older and having engaged in sexual contact 12with another person, T.H., who was less than fourteen years of age and not his spouse. While Bean was charged with only one offense, the affidavit alleged that T.H., who was seven years old at the time and was Bean’s wife’s nephew’s daughter, reported that Bean engaged in sexual contact with her on three separate occasions — once at a residence and twice in a car parked at Wal-Mart.
On October 20, 2011, Bean filed a motion to dismiss, claiming that the alleged second-degree sexual-assault charge was committed during the same criminal episode as Crawford County cases previously filed against him for rape and sexual-assault. The trial court entered an order denying the motion to dismiss, and Bean filed an interlocutory appeal. In Bean v. State, 2012 Ark. App. 643, 2012 WL 5439928, we affirmed the trial court’s denial of Bean’s motion to dismiss.
Bean’s jury trial was set for January 15, 2013. Approximately three weeks prior to trial, the State moved to amend the felony information to add a second count of sexual assault in the second degree and one count of attempted rape. Bean moved to dismiss the State’s amended information, arguing that it constituted unfair surprise, required a new round of discovery and intensive investigation, was untimely, and was prejudicial. The trial court denied the motion.
In a pretrial hearing, Bean’s counsel moved for a continuance, arguing that he needed additional time to prepare his defense to the attempted-rape charge. Bean’s counsel also told the trial court that he had been having a medical problem with his leg that caused pain for which he was taking prescription narcotics. Counsel asked for a continuance, stating “I would rather not |shave to try this case on hydrocodone. I just think that I could do a better job if I weren’t.” The trial court denied the motion for continuance.
At the same pretrial hearing, the State argued its motion to exclude evidence of the victim’s prior sexual conduct, claiming it would violate the rape-shield statute. In response, Bean argued that he had two witnesses, females the same age as the victim, who were expected to testify that when they were all in elementary school, the victim put her hands down their pants. Bean also sought to introduce evidence of the victim’s specific knowledge about sexual matters. He claimed this evidence was relevant, and therefore admissible, because it demonstrated that T.H. had advanced knowledge about sexual matters and was sexually aggressive. The trial court disagreed and granted the State’s motion, excluding the evidence.
At trial, T.H., who was thirteen years old, told the jury about two incidents, when she was seven years old, when she and Bean were waiting in a car in the Wal-Mart parking lot while her great aunt shopped inside. T.H. testified that on those occasions, Bean grabbed her hand, put it on his penis (on the outside of his pants), and rubbed her hand up and down over him. She told the jury about another occasion, when she was seven and was at one of Bean’s rent houses, where he pulled his pants down, pushed her down, and tried to force his penis into her mouth. He also pulled her shirt up and licked her chest.
Several other witnesses testified, including T.H.’s father; the father of T.H.’s friend, to whom T.H. first reported the incidents; an investigator with the Arkansas State Police; a Fort Smith Police Officer; a patrol officer with the Arkansas State Police; a relative of Bean and the victim; one of T.H.’s former teachers; Bean’s wife; and a former girlfriend of T.H.’s father. Bean |4proffered the testimony of two girls, K.M. and M.C., who were fourteen years old at the time of trial and were in elementary school with T.H. There was also in camera testimony from T.H., proffered by Bean, describing her knowledge about sexual matters. Finally, Bean’s recorded statement was introduced into evidence. In that statement, Bean admitted that he had touched T.H.; that on more than one occasion T.H. climbed on top of him while he was lying in bed and tried to insert his penis into her vagina; that her hand had been on his penis through his clothes; that T.H. would take his hand and “guide” it “on spots” “anywhere she’d feel — feel like she needed my hand”; and that she grabbed his hand “[a]nd went through the masturbating, uh, action.”
At the conclusion of the trial, the jury found Bean guilty of both counts of sexual assault in the second degree and of attempted rape. The trial court entered a sentencing order on January 18, 2013. Bean appealed from the sentencing order on February 4, 2013. Thereafter, on February 15, 2013, Bean filed a motion to substitute counsel and a motion for new trial, alleging ineffective assistance of counsel due to his counsel’s pain and consumption of prescription narcotics. In a letter filed February 19, 2013, the trial court cited Ark. R.App. P.-Crim. 16(a)(iii), and found that it did not have the authority to grant the motions filed by Bean because Bean’s notice of appeal had been filed and the appellate court had exclusive jurisdiction to release counsel and appoint new counsel. The trial court wrote that Bean’s motions “will not be dealt with by this Court at this time.”
Bean’s first point on appeal is that the trial court abused its discretion in denying his motion for continuance. Bean argues that his counsel’s statements concerning his leg pain and |Bconsumption of prescription narcotics, coupled with his subsequent representation at trial, resulted in an ineffective-assistanee-of-counsel claim and a deprivation of his Sixth Amendment right to counsel. Bean further argues that his counsel’s in-eourt statements should have alerted the trial court and caused it to conduct “a meaningful inquiry” into the level of counsel’s competence or lack thereof.
While Rule 37 of the Arkansas Rules of Criminal Procedure provides the primary vehicle for postconviction relief due to ineffective assistance of counsel, such relief may be awarded a defendant on direct appeal in limited circumstances. In order for a defendant to argue ineffective assistance of counsel on direct appeal, he must first have presented the claim to the lower court either during the trial or in a motion for new trial. VanOven v. State, 2011 Ark. App. 46, at 8-9, 380 S.W.3d 507, 513. The reason for this rule is that an evidentiary hearing and finding as to the competency of appellant’s counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation. Id. at 9, 380 S.W.3d at 513. The trial court is in a better position to assess the quality of legal representation than we are on appeal. Id., 380 S.W.3d at 513. Our supreme court has clearly held that a direct appeal on a claim of ineffective assistance of counsel is appropriate only when it is raised before the trial court and the facts and circumstances surrounding the claim have been fully developed at the trial level. Rounsaville v. State, 374 Ark. 356, 361, 288 S.W.3d 213, 217 (2008). Therefore, ineffective-assistance claims that are not made below will not be considered for the first time on direct appeal. VanOven, 2011 Ark. App. 46, at 8, 380 S.W.3d at 513.
Ir,At no time before the entering of the sentencing order or the notice of the appeal of that order did Bean argue an ineffective-assistance-of-counsel claim. Therefore, no evidentiary hearing was conducted and no findings of competency were made. It was not until after the sentencing order was entered, and after Bean filed a notice of appeal of that sentencing order, that he filed motions for substitution of counsel and for a new trial, alleging — for the first time — ineffective assistance of counsel. We acknowledge that one way a defendant may raise a claim of ineffective assistance of counsel in the trial court is by filing a motion for a new trial pursuant to Rule 33.3 of the Arkansas Rules of Criminal Procedure. Rounsaville, 374 Ark. at 361, 288 S.W.3d at 217. However, as set forth above, the trial court did not enter an order ruling on these motions. And a sufficient order on which we can conduct an appellate review of such a claim is required. Maxwell v. State, 359 Ark. 335, 339, 197 S.W.3d 442, 445 (2004). To the extent it could be argued that the motion for new trial was “deemed denied,” eliminating the need for a formal order, this argument is flawed for two reasons. First, our supreme court has held that a “deemed denied” ruling is an insufficient order from which to raise on direct appeal a claim of ineffectiveness because such a ruling necessarily precludes any consideration by the trial court of the relevant facts pertaining to the claim. Id. at 339, 197 S.W.3d at 444-45. Second, Bean did not file an amended notice of appeal within thirty days from the “deemed denied” posttrial ruling; accordingly, any arguments raised in Bean’s posttrial motions are not preserved for |7appeal. Ayala v. State, 365 Ark. 192, 194, 226 S.W.3d 766, 768 (2006) (citing Ark. R.App. P.-Crim. 2(b)(2)).
In sum, we are unable to reach the merits of Bean’s ineffective-assistance-of-counsel argument on direct appeal. We have nothing other than Bean’s bare allegations of ineffective assistance of counsel set out in his posttrial motion. Therefore, we are unable to consider the merits of this claim, and accordingly, we are unable to hold that the trial court abused its discretion in denying Bean’s motion for continuance on that basis. We affirm on this point.
For his second point on appeal, Bean argues that the trial court abused its discretion in excluding evidence, pursuant to the rape-shield statute, of two of T.H.’s former elementary-school classmates. The excluded evidence includes the in camera testimony of K.M. and M.C., who testified that when they were in elementary school with T.H., she put her hand down their pants, touching K.M.’s buttocks and M.C.’s vaginal area. Bean argued that the evidence was relevant because it demonstrated that T.H. had the “propensity and proclivity” to touch people in public places without consent, which was consistent with evidence that T.H. had “thrust” herself on Bean and grabbed his penis. Bean also argued that the evidence was relevant because it disproved the element of sexual contact, which is required for sexual assault, because it showed that Bean did not contact T.H. for sexual gratification but rather to fend off her |8advances. The trial court excluded the proffered evidence, finding it was irrelevant because it was not similar to the charges against Bean and consent was not at issue in the case.
The rape-shield statute, Arkansas Code Annotated section 16-42-101 (Repl. 1999), was enacted with the purpose of protecting victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Keller v. State, 371 Ark. 86, 89, 263 S.W.3d 549, 551 (2007). The statute provides that in a criminal prosecution for a sex crime the following evidence is not admissible:
[Ojpinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
Ark.Code Ann. § 16-42-101(b). A defendant may, however, file a rape-shield motion requesting that the trial court make a determination as to the admissibility of the proposed evidence. Ark.Code Ann. § 16-42 — 101 (c)(1). Upon holding a hearing, if the trial court determines that the offered proof is relevant to a fact in issue, “and that its probative value outweighs its inflammatory or prejudicial nature,” the trial court may grant the defendant’s motion to admit the evidence. Ark.Code Ann. § 16-42-101(c)(2)(C). Thus, the rape-shield statute is not a complete bar to the introduction of evidence of a victim’s prior sexual conduct, but the trial court is vested with a great deal of discretion in ruling whether the evidence is relevant. Keller, |n371 Ark. at 89-90, 263 S.W.3d at 552. We will not reverse the trial court’s decision as to the admissibility of rape-shield evidence unless its ruling constituted clear error or a manifest abuse of discretion. Id. at 90, 263 S.W.3d at 552.
We hold that the trial court’s ruling, excluding the testimony of K.M. and M.C. pursuant to the rape-shield statute, did not constitute clear error or a manifest abuse of discretion. The excluded testimony about T.H. putting her hands down the pants of two of her classmates is not similar to the testimony T.H. gave detailing what Bean did to her on the three occasions in question. The parties involved in the former allegations were all elementary-school-aged children, while the parties involved in the later allegations involved a seven-year-old child and a sixty-year-old man. The nature and extent of the touching alleged by K.M. and M.C. was not similar to the nature and extent of the touching alleged by T.H. Finally, unlike the allegations made by K.M. and M.C., the allegations T.H. made against Bean did not occur in public places. The attempted rape occurred in the privacy of Bean’s rent house, and the second-degree sexual assaults occurred in the privacy of Bean’s vehicle.
And while Bean contends that the evidence is relevant to show that T.H. was the aggressor or initiated the contact, this is effectively an argument that T.H. consented to Bean’s sexual contact. Our supreme court has held that when consent is not an issue, whether the victim had sexual relations with a third person is entirely collateral, and therefore is not relevant. State v. Townsend, 366 Ark. 152, 156, 233 S.W.3d 680, 683 (2006). In cases involving the rape of a minor, our supreme court has uniformly and consistently excluded evidence of the minor’s prior sexual activity, because in those cases the only two issues to be determined are the fact of the occurrence of the prohibited activity and the age of the minor. Id. at 156, 233 S.W.3d at 683. Anything not pertaining to one of those two issues is not relevant in cases involving the rape of a minor. Id., 233 S.W.3d at 683.
Furthermore, we reject Bean’s argument that the excluded evidence was relevant to show that his contact with T.H. was not sexual in nature because he was merely defending himself from her sexual advances. Whether T.H. put her hands down the pants of two of her classmates simply does not have any probative value on whether Bean’s contact with T.H. was sexual in nature.
Under this same point, Bean argues that the trial court abused its discretion in excluding evidence of T.H.’s “alternate sexual knowledge.” The excluded evidence includes the in camera testimony of T.H. recalling her testimony from Bean’s Crawford County rape trial that she had seen and/or was familiar with various sexual matters. Bean argued that the evidence was relevant and therefore admissible because it demonstrated that she had specialized knowledge of sex at a young age. The trial court excluded the evidence, finding it was not relevant.
Bean contends on appeal that this evidence was relevant under State v. Townsend, 366 Ark. 152, 233 S.W.3d 680 (2006). In Townsend, the trial court granted the defendant’s motion to admit evidence that the victim had been sexually assaulted two years prior. 366 Ark. at 154-55, 233 S.W.3d at 682. The State appealed, and the defendant argued that the evidence was relevant | ubecause the victim’s knowledge of sexual matters could have been attributed to the prior encounter and not the defendant. Id. at 157, 233 S.W.3d at 684. In determining whether such evidence was admissible, our supreme court adopted a relevancy test articulated in State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325 (1990). Id. at 158, 233 S.W.3d at 685.
However, Bean did not advance the Townsend relevancy test below. Therefore, there are no findings and no ruling made by the trial court related to this test. Nevertheless, Bean did preserve a general relevancy argument for appeal. And on that point we hold that the trial court did not abuse its discretion in excluding the proffered testimony about T.H.’s knowledge of sexual matters. What T.H. knew about sex as a seven year old is not relevant to whether Bean sexually assaulted her or attempted to rape her. Also, Bean suffered no prejudice resulting from the exclusion of this proffered evidence. Decay v. State, 2009 Ark. 566, at 9, 352 S.W.3d 319, 327 (holding that an appellate court will not reverse a trial court’s evidentiary ruling absent a showing of prejudice). T.H.’s knowledge about sexual matters was admitted into evidence from another source, i.e., Bean’s statement to investigators in the Crawford County case. Thus, he suffered no prejudice, and we affirm on this point.
Bean’s third point on appeal contains two arguments, both of which involve amendments to the felony information. The first is that the trial court erred by permitting the State, three weeks prior to trial, to amend the information to include an additional second-degree sexual-assault charge and an attempted-rape charge. The second argument is that the trial court erred by permitting the State, during trial, to amend the information, changing the time period of the |12alleged occurrence from April 29, 2007, to April 29, 2006. For both points, Bean argues that the amendments resulted in unfair surprise and prejudice.
The State is entitled to amend an information at any time prior to the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. Stewart v. State, 338 Ark. 608, 612, 999 S.W.2d 684, 687 (1999). The mere fact that an amendment authorizes a more severe penalty does not change the nature or degree of the crime. Id., 999 S.W.2d at 687.
Bean suffered no unfair surprise as a result of the amendment to the informa tion adding the second sexual-assault and attempted-rape charges. The record reflects that on September 13, 2011, the State forwarded a facsimile transmission to Bean’s counsel advising that should the case proceed to trial, the State would amend the information to include the two new charges. Furthermore, the State forwarded a letter to Bean’s counsel on October 19, 2011, advising once again that should the case proceed to trial, the State would amend the information to include the two additional charges. Because Bean was advised nearly two years prior to trial that the amendments were possibilities should a plea agreement not be reached, his claim of unfair surprise is not well taken.
Likewise, we hold that Bean was not unfairly surprised by the State’s amendment that changed the time period of the alleged offense. The information stated the offense date as April 29, 2007, and the affidavit for the warrant of arrest alleged that the offenses occurred between April 29, 2007, and April 28, 2008. The affidavit for the warrant of arrest also stated that the allegations occurred when T.H. was seven years old. Because T.H. was born April 29, 1999, the | ^reference to T.H.’s age would have had the charged conduct occurring in 2006. At a minimum, the inconsistencies between the allegations in the information and arrest warrant affidavit concerning when the offenses occurred should have alerted Bean that the time of the charged conduct could have been in 2006.
Moreover, Bean cannot show that he was prejudiced by the amendment that changed the time of the alleged offenses. Generally, the time a crime is alleged to have occurred is not of critical significance, unless the date is material to the offense. Martin v. State, 354 Ark. 289, 295, 119 S.W.3d 504, 508 (2003) (citing Ark.Code Ann. § 16-85-405(d) (Repl.2005)). This is particularly true with sexual crimes against children and infants. Martin, 354 Ark. at 295, 119 S.W.3d at 508. Any discrepancies in the evidence concerning the date of the offense are for the jury to resolve. Id., 119 S.W.3d at 508. In cases of rape, the evidence is sufficient if the victim gave a full and detailed accounting of the defendant’s actions. • Id., 119 S.W.3d at 508. Moreover, where the defense is that the sexual acts never occurred and were entirely fabricated, the lack of exact dates is not prejudicial to the defendant. Id. at 295-96,119 S.W.3d at 508.
In the instant case, Bean cannot establish that his rights were prejudiced because the exact dates of the offenses are immaterial. Id. at 295, 119 S.W.3d at 508. The testimony of T.H. showed that Bean attempted to rape her and had sexual contact with her while she was under the age of fourteen. Whether she was six or seven is of no significance. Also, Bean’s defense was that he did not attempt to rape T.H. and had no sexual contact with her — the only contact he had with her resulted when he resisted her advances. In other words, he contends that the sexual acts alleged by T.H. never occurred. In such circumstances, the lack of exact dates is not | ^prejudicial. Id. at 295-96,119 S.W.3d at 508. For these reasons, we hold that the trial court did not err by permitting the State to amend the information to include the additional sexual-assault and attempted-rape charges and to change the alleged time of offense, and we affirm on this point.
Affirmed.
GRUBER and WHITEAKER, JJ„ agree.
. On April 28, 2010, a Crawford County jury acquitted Bean of rape. On March 16, 2011, the Crawford County Circuit Court dismissed a second-degree sexual-assault charge filed against Bean after he was acquitted of rape. In both of those Crawford County cases, T.H. was the alleged victim.
. At oral argument, in response to preservation concerns, Bean's counsel conceded that he was "cobbling” the ineffective-assistance-of-counsel argument (which was not made prior to the filing of his notice of appeal) to his motion for continuance (which was made prior to trial). Moreover, he cited no authority supporting his position that moving for a continuance based on counsel’s pain and consumption of prescription narcotics was sufficient to preserve an ineffective-assistance-of-counsel claim.
. A person commits the offense of second-degree sexual assault if he, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age and not the person’s spouse. Ark.Code Ann. § 5 — 14—125(a)(3) (Supp.2011). "Sexual contact” is defined as "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.” Ark.Code Ann. § 5-14-101(10) (Supp.2011).
. Arkansas Code Annotated section 5-14-103(a)(3)(A) (Repl.2006) provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Section 5-14-103(b) further provides that it is no defense to a prosecution under subdivision (a)(3) that the victim consented to the conduct. Therefore, consent is not at issue in this case. | [
-80,
-22,
-51,
61,
46,
-96,
26,
60,
82,
-93,
114,
83,
-19,
-14,
4,
107,
-78,
127,
77,
104,
-43,
-73,
51,
-31,
50,
-69,
42,
-44,
-75,
-49,
-28,
-12,
15,
80,
-126,
-43,
38,
72,
-27,
20,
-114,
21,
-53,
104,
17,
67,
46,
-82,
76,
15,
49,
-68,
-78,
8,
21,
66,
73,
108,
89,
61,
90,
-39,
-104,
23,
-51,
22,
-93,
-92,
-98,
7,
-8,
58,
-104,
49,
-128,
104,
51,
-74,
-122,
118,
127,
-103,
-120,
104,
98,
1,
-99,
-57,
-83,
-23,
31,
-1,
-111,
-90,
-104,
73,
75,
109,
-68,
-97,
70,
116,
14,
-8,
99,
-50,
61,
108,
-94,
-50,
-80,
-111,
-113,
108,
-106,
115,
-29,
63,
16,
113,
-51,
-94,
84,
86,
120,
-37,
-50,
-73
] |
WAYMOND M. BROWN, Judge.
| TAppellant Juan Martinez was convicted in the Benton County Circuit Court of second-degree sexual assault involving his then four-year-old stepgranddaughter, L.H. He was sentenced to twenty years’ imprisonment. Appellant argues that the trial court erred by allowing the State to amend the information charging him with rape to include the charge of second-degree sexual assault after the State had rested its case. More specifically, he argues that the amendment changed the nature of the crime charged and that it unfairly surprised him. We agree and reverse and dismiss appellant’s conviction.
| ?The State filed a criminal information on December 15, 2011, charging appellant with rape, pursuant to Arkansas Code Annotated section 5-14-103(a)(l)(C). In the information, the State alleged, “to wit: On or about October 3, 2011, the defendant engaged in sexual intercourse and /or deviate sexual activity with L.H., a minor under the age of fourteen (14) in Benton County, Arkansas, against the peace and dignity of the State of Arkansas.” Appellant waived his right to a jury trial, and his bench trial took place on October 16, 2012.
At the trial, Ana Calderon, L.H.’s mother, testified that appellant is her mother’s husband. She stated that she went to visit her mother on October 3, 2011, at the home her mother shared with appellant. Calderon said that she took L.H. with her because appellant wanted to see “the baby.” She testified that at some point she and her mother went out to get lunch and left L.H. in appellant’s care. According to Calderon, they were gone between thirty and forty minutes. She stated that after she and L.H. arrived home, she gave L.H. a bath. During the bath, L.H. informed her that she was hurting in her vaginal area and that appellant had touched her down there. Additionally, Calderon stated that she noticed a little blood when L.H. went to the bathroom.
Detective Larry Taylor testified that he worked for the Rogers Police Department, and that on October 3, 2011, he worked the case involving appellant. His testimony reiterated the report of the incident from Calderon. The investigative report from Calderon was consistent with her trial testimony. According to Detective Taylor, Calderon said that L.H. told her that appellant touched her with his finger. Detective Taylor testified that he talked to appellant the next morning, and appellant denied the allegations. He stated that appellant |ssaid that L.H.’s injuries must have been the result of him bouncing her on his knee or something. Detective Taylor said that when he talked to appellant a second time, appellant admitted to wiping L.H. after she used the restroom. Detective Taylor testified that he obtained an arrest warrant and arrested appellant after further investigation revealed that semen had been located on the anal swab from L.H. and also in her underwear.
Stacie Wassell, a forensic serologist of the Arkansas State Crime Lab, testified that she found semen in L.H.’s rectal swabs and underwear. Kelly Wells, a forensic DNA examiner with the Arkansas State Crime Lab, testified that appellant’s DNA was found in L.H.’s underwear.
The State attempted to call L.H. as a witness, but the court found that she was not competent to testify after she did not identify appellant in the courtroom. At that point the State rested. Appellant made a motion to dismiss the charge against him, arguing that the State failed to put on evidence of penetration. Before ruling on the motion, the following colloquy took place:
Mr. Cearley: Clearly there is a lesser included offense of sexual assault in the second degree. There is uncon-troverted testimony the child told her mother that her grandpa, Juan Carlos Martinez, touched her in the private area, caused her pain. The mother actually noted some bleeding after that, and in the child’s underwear, and inside her rectum there was semen found. That semen in her underwear was identified as being the semen of Mr. Juan Carlos |4Martinez. That is sufficient evidence, Your Honor, to convict Mr. Martinez of sexual assault in the second degree.
Mr. MoElveen: Your Honor, I would argue against that. First, he is not charged with sex[ual] assault second, and that is not a lesser included offense of the charge of rape.
Mr. Cearley: We can amend to conform to the proof, and in this fact scenario we would ask that you convict him of sexual assault in the second degree.
The Court: ... It is my understanding that [the] State is moving to amend the information?
Mr. Cearley: That’s correct. We would like to add count two, sex assault, second degree, a class B felony, in violation of Ark.Code Ann. § 5-14-125.
The Court: Mr. McElveen?
Mr. MoElveen: We would object. I believe that such an amendment does change the nature, or if not the nature, at least the degree of the offense charged, and provides at least some degree of surprise to the defense. I would ask for a ruling on that objection.
The Court: Do you have any authority for that?
Mr. McElveen: No Your Honor.
The Court: I don’t find there is any surprise to the defendant as to the underlying facts for this offense and it is of the same nature. It would be reducing it from a rape, class Y felony to the lower charge of sex assault second degree, a class B felony.
Mr. Cearley, your response to the argument that it is changing the nature and degree?
MR. Cearley: I agree with the Court. It is clearly the same operative facts. It is not changing the nature. There is case law that states the State can add a kidnapping charge if on the face of the information |5that the defense has, the charge of kidnapping could be supported. So the State could even bring a brand new charge of a different nature if it was still within those operative facts.
The Court: I’ve ruled there is no surprise. We are looking now at whether it changes the nature or degree.
Mr. Cearley: I think it doesn’t, and it has to be both.
The Court: Mr. McElveen, do you have any authority for your proposition, Sir?
Mr. MoElveen: I’m not familiar with Rueda, but the essence of this case is penetration and that does distinguish it from what the amendment on this is. It is a surprise as far as they are not going with the full elements of what they proceeded with initially.
Mr. Cearley: There is no surprise. The information has been there all along that child told mother that grandpa touched her privates and caused pain. The information has been there since January that semen was found on the rectal swabs and underwear. That has always been the information in this case.
The Court: That information was in the probable cause affidavit.
Mr. MoElveen: That is true, Your Hon- or. However, had we known we were facing a different set of elements prior to the State resting them case in this matter, we probably would have prepared a defense along those lines to encompass both these charges. There are additional elements that we would have to defend against.
The Court: I’m going to do a bit of research. We are in recess.
Ark.Code Ann. § 16-85-407 permits the prosecuting attorney to amend the information as to matters of form or to file a bill of particulars with leave of the Court; however, it may not be amended to change the nature of the crime charged or the degree of the crime charged.
In research, I see that in Green v. State, a 2012 case, in which the Supreme Court discussed whether the amending of a criminal information was changing the nature of the charges. It was not 10a rape but more along the lines of terroristic threatening and kidnapping but somewhat similar to the case at hand and therein they concluded it didn’t change the nature of the charges. In that case the amendment changed the manner of the kidnapping and I do think that’s somewhat analogous to the situation here. It is changing the manner of the offense as charged from — by the amendment and adding the additional charge of sexual assault in the second degree of Ark. Code Ann. § 5-14-125, a class B felony. I’m going to grant leave of the Court to allow the amendment to the criminal information.
Appellant moved to dismiss both charges. The court granted appellant’s motion to dismiss the rape charge. The court then told appellant’s attorney to call his first witness. At that time, his attorney stated, “Mr. Martinez had originally planned on testifying; however, given these changes that had just transpired here he would like now to assert his Fifth Amendment right and not take the stand. We don’t have any other witnesses for our case in chief.” Appellant renewed his motion to dismiss the charge of second-degree sexual assault. The court denied the motion and subsequently found appellant guilty. He was sentenced to twenty years’ imprisonment. The sentencing order was filed on October 31, 2012. Appellant filed a notice of appeal on November 14, 2012. This timely appeal followed.
Appellant argues that the trial court erred by allowing the State to amend the information to include the charge of second-degree sexual assault because the amendment changed the nature of the crime charged and it unfairly surprised him.
The State is entitled to amend an information at any time prior to the case being submitted to the jury. There are three exceptions to this rule. Amendments that change the |7nature or the degree of the charge or create unfair surprise are prohibited. With regard to the first two exceptions, an amendment does not change the nature or degree of the criminal offense when it addresses only the manner of the alleged commission of the crime. With regard to the third exception, a defendant must also show that the amendment resulted in prejudice through unfair surprise. Prejudice is not shown where a defendant fails to move for a continuance or fails to claim surprise after he is put on notice that the State plans to amend the information.
Appellant claims that the amendment was improper because it changed the nature of the charge and unfairly surprised him. In support of this argument, appellant cites Harmon v. State. In Harmon, the information originally charged that the appellant committed capital-felony murder in the course of a kidnapping. After the jury was sworn, the circuit court allowed the State to amend its information to alternatively charge that the appellant committed capital-felony murder in the course of a robbery. Our supreme court reversed, Isconcluding that the amendment was not permissible in the absence of any notice to the appellant that he was required to defend an essentially different charge.
In the instant case, the State argues that there was no unfair surprise to appellant and that the amendment did not change the nature of the offense charged. It farther argues that even if the nature of the offense was different, appellant failed to demonstrate prejudice. We disagree. Although the State laid out the facts leading to appellant’s arrest in its affidavit of probable cause, it made the decision to charge appellant with rape, which had, as an essential element, penetration. The appellant came prepared to defend against this essential element of penetration. Appellant did not learn that the State intended to amend the information until after the State had presented its case and appellant made a motion to dismiss for failure to prove penetration. By this time, the State’s witnesses had been able to testify, without objection from appellant, to acts that did not go to the elements of appellant’s rape charge. After the amendment, appellant invoked his right not to testify. Under these facts, we agree that appellant was unfairly surprised by the amendment. We also agree that the amendment ^changed the nature of the offense charged. The elements of the crimes were different, and appellant essentially had to defend a different charge.
Additionally, appellant was prejudiced by the amendment. Although he did not seek a continuance, he claimed unfair surprise. He was subsequently found guilty of second-degree sexual assault and sentenced to the maximum sentence allowed for a Class B felony, twenty years’ imprisonment. We hold that the trial court committed reversible error by allowing the State to add the charge of second-degree sexual assault to the information at trial, after the State had rested its case. Ae-cordingly, we reverse and dismiss appellant’s conviction.
Reversed and dismissed.
WHITEAKER and VAUGHT JJ„ agree.
GLADWIN, C.J., concurs.
GRUBER and WOOD, JJ., dissent.
. This is the second time that this case has been before us. We originally ordered re-briefing due to deficiencies in appellant's brief, abstract, and addendum. See Martinez v. State, 2013 Ark. App. 557, 2013 WL 5509167.
. Ark.Code Ann. § 5-14-103(a)(3)(A) (Supp. 2011) provides that a person commits rape if he engages in "sexual intercourse” or "deviate sexual activity” with another person who is less than fourteen years of age. By definition both "sexual intercourse” or "deviate sexual activity” require penetration. See Ark. Code Ann. § 5-14-101 (Supp.2011).
. E.g., Phavixay v. State, 2009 Ark. 452, 352 S.W.3d 311; see also Ark.Code Ann. § 16-85-407(b) (Repl.2005).
. Green v. State, 2012 Ark. 19, 386 S.W.3d 413.
. Walker v. State, 2012 Ark. App. 61, 389 S.W.3d 10.
. Hill v. State, 370 Ark. 102, 257 S.W.3d 534 (2007).
. 277 Ark. 265, 641 S.W.2d 21 (1982), overruled on other grounds by White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).
. Id.
. Id.
. When the State sought the amendment, it argued that second-degree sexual assault was a lesser-included offense of rape. However, the State now concedes that second-degree sexual assault is not a lesser included offense of rape. See Webb v. State, 2012 Ark. 64, 2012 WL 503885 (Second-degree sexual assault is not a lesser-included offense of rape of a person less than fourteen years of age because second-degree sexual assault requires proof of additional elements that rape does not.).
. Ark.Code Ann. § 5 — 14—103(a)(3)(A) (Supp. 2011) provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. A person commits sexual assault in the second degree under Ark.Code Ann. § 5 — 14—125(a)(3) (Supp. 2011) if he is eighteen years of age or older and engages in sexual contact with another person who is not his spouse and is less than fourteen years of age. Sexual contact is defined as "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of any person or the breast of a female.” Ark.Code Ann. § 5-14-101(9) (Supp.2011). | [
112,
108,
-19,
-84,
56,
65,
42,
-68,
123,
-125,
-93,
83,
-17,
-62,
4,
121,
-125,
127,
69,
121,
-45,
-73,
23,
97,
-14,
-13,
56,
87,
-74,
-113,
-82,
-9,
94,
48,
-54,
-47,
66,
-54,
-17,
92,
-126,
-125,
-53,
104,
18,
7,
36,
55,
102,
7,
49,
31,
-77,
107,
30,
-54,
109,
108,
69,
61,
88,
47,
-38,
21,
-113,
20,
-95,
38,
-97,
13,
-16,
16,
-100,
49,
8,
-18,
115,
-78,
-126,
116,
125,
-119,
29,
96,
98,
-95,
-115,
-41,
32,
-119,
-105,
-82,
-104,
-89,
-104,
97,
75,
8,
-65,
-44,
44,
-44,
8,
-6,
103,
101,
113,
68,
-96,
-49,
-108,
-103,
-52,
96,
84,
50,
-29,
63,
84,
101,
-57,
-26,
116,
95,
59,
-37,
-114,
-14
] |
LARRY D. VAUGHT, Judge.
hOn May 22, 2013, the Jefferson County Circuit Court entered a divorce decree that granted appellant Elvin Marks a divorce from appellee Leona Marks; declared that certain real and personal property was Elvin’s nonmarital property and awarded it to him; awarded Leona Elvin’s nonmarital real property located at 5410 W. 11th Street in Pine Bluff, Arkansas; found that Elvin gave Leona a .38 special revolver and oak bedroom furniture; and awarded Leona alimony in the amount of $250 a month for three years. For reversal, Elvin argues that the trial court erred in awarding Leona his nonmarital realty located at 5410 W. 11th Street; in finding that he had given Leona the firearm and furniture; and in awarding her alimony. Finding no clear error, we affirm.
Elvin and Leona (now sixty-seven and sixty-eight years old, respectively) were married for a year or two in the 1970s, had one child (Láveme Antonette Marks), and divorced in December 1976. On January 26, 2010, the parties remarried. Six months later, in July 2010,12Elvin filed for divorce; however, the case was dismissed. In June 2011, Elvin filed another complaint for divorce, alleging that the parties separated on June 11, 2011. Leona answered, stating that Elvin had filed for divorce the year before, that the case had been dismissed because he failed to prove grounds, and that the June 2011 complaint also failed to state facts to support his claim. Leona also filed an amended answer, alleging that Elvin’s income was considerably greater than hers, that Elvin had been providing financial support to her before and after their second marriage, that she could not survive without financial assistance from Elvin, and that she was entitled to spousal support.
On March 13, 2013, Elvin filed an amended complaint for divorce, alleging that the parties had been living separate and apart for more than eighteen months. He also alleged that Leona had possession of his nonmarital realty (5410 W. 11th Street) and personalty that should be restored to him. Leona answered the amended complaint, stating that she had been living in the house at 5410 W. 11th Street for many years, that she had an equitable interest in it, and that Elvin had given it to her. She also sought alimony.
At the divorce hearing, Elvin testified that he acquired the lot at 5410 W. 11th Street in 1989, he built a house on the property, and he allowed Leona and Lá-veme to move into the home in 1991. Elvin said that he lived in the home for a couple of months after he and Leona re married in 2010. He added that he paid for the home’s repairs and taxes and that Leona did not make any improvements to the home. He denied giving Leona the home or telling anyone that he was going to give it to her, stating that he allowed her to live there — rent free — because he was a good person. He also denied giving her the firearm and oak bedroom furniture. He | ¡¡said that he bought the furniture fifteen-to-twenty years ago and left it at the house and that he merely loaned the firearm to her. He told the trial court that he wanted the house, the gun, and the furniture returned to him.
Elvin, who is retired, also testified that his monthly income consisted of social-security benefits of $1414 and retirement benefits of $980. His monthly expenses were $2407. He added that he owned several other real properties, Entergy stock, an IRA account with approximately $120,000 in it, and a checking account with over $19,000 in it. He had no mortgage payments for his current home.
The parties’ daughter, Laverne, who was thirty-nine years old at the time of the hearing, testified that her mother, Leona, had lived in the home at 5410 W. 11th Street for the past nineteen years and that she had made improvements to the home. Laverne said that she lived in the home approximately eight years and that she lived there after she had her son — the parties’ grandson. Laverne said that her father, Elvin, had made comments that he would give Leona the home.
Leona told the trial court that she had lived at 5410 W. 11th Street for nineteen years. She said that she had made improvements to the home and had paid the utility bills. She contended that Elvin gave her the home. She testified about a discussion she had with Elvin about putting her name on the deed. She said he did not do so, stating, “I don’t have to put your name [on the deed] because you can stay there until the day you die.”
Leona, also retired, stated that her only source of income was monthly social-security benefits of $817 and that her expenses were $645. She said that she had not paid rent or a 14mortgage payment in over nineteen years and did not have the funds to do so. She said that she did not own any property or have bank or retirement accounts. She said that on behalf of her disabled adult son (who also lives with her) she received approximately $600 a month in social-security disability benefits. Finally, Leona testified that the bedroom furniture and firearm were gifts from Elvin.
Following the hearing, the trial court entered a decree of divorce and relevant to the issues on appeal, found that (1) the real property at 5410 W. 11th Street was Elvin’s nonmarital property but, based on Arkansas Code Annotated section 9-12-315(a)(2), it should be distributed to Leona; (2) Elvin gave the bedroom furniture and firearm to Leona; and (8) Elvin was required to pay alimony to Leona in the amount of $250 per month for three years. This appeal followed.
Elvin’s first point on appeal is that the trial court erred in awarding his separate nonmarital real property located at 5410 W. 11th Street to Leona. This court reviews division of marital property cases de novo. Copeland v. Copeland, 84 Ark.App. 303, 307, 139 S.W.3d 145, 148 (2003). The trial court has broad powers to distribute property in order to achieve an equitable distribution. Id. at 307-08,139 S.W.3d at 148. A trial court’s division of nonmarital property will not be reversed unless it is clearly erroneous. See Dial v. Dial, 74 Ark.App. 30, 37-38, 44 S.W.3d 768, 773 (2001). A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed; in reviewing the trial court’s findings, the reviewing court gives due deference to the trial court’s superior | .^position to determine the credibility of the witnesses and the weight to be accorded to each witness’s testimony. Arnoult v. Arnoult, 2014 Ark. App. 82, at 4, 2014 WL 579934.
The relevant statute is Arkansas Code Annotated section 9-12-315, which provides
(a) At the time a divorce decree is entered:
(1)(A) All marital property shall be distributed one-half (V2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration: .
(1) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(Hi) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii)Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; '
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of property.
(2) All other properly shall be returned, to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1) of this section, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.
Ark.Code Ann. § 9-12-315(a)(l)(A), (a)(2) (Repl.2009) (emphasis added). The overriding purpose of this statute is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Copeland, 84 Ark.App. at 308, 139 S.W.3d at 148-49. And the trial court is given broad powers, under the statute, to distribute all property in divorce cases, marital and non-marital, in order to achieve an equitable distribution. Ark.Code Ann. § 9 — 12—315(a)(1), (a)(2); Copeland, 84 Ark.App. at 308, 139 S.W.3d at 149.
lfiElvin points out that 5410 W. 11th Street was undisputedly his nonmarital property (the trial court reached the same conclusion), and he acknowledges that the trial court under section 9-12-315 has the flexibility to distribute both marital and non-marital property to make an equitable division of marital property. However, he argues that section 9 — 12—315(a)(2), which deals with the division of nonmarital property, does not apply when there is no marital property to be divided. According to Elvin, the true intent of subdivision (a)(2) is to allow the trial court to award nonmarital property only when marital property cannot be equally divided. He claims that the statute was not intended to be used to take nonmarital property from one party and give it to the other when there is no inequity in the division of marital property.
Elvin cites no authority to support his argument, and it contradicts the plain language of the statute, which expressly authorizes the trial court to do precisely what it did. Furthermore, in distributing Elvin’s nonmarital property, the trial court complied with the requirements of subdivision (a)(2) by taking into consideration the factors enumerated in subdivision (a)(1) and stating in writing its basis and reasons for not returning the property to Elvin. In awarding Leona title to Elvin’s nonmar-ital property located at 5410 W. 11th Street, the trial court found that the parties had been married twice; were both in their mid sixties, retired, and receiving social-security benefits; Leona’s monthly income was $817 and her expenses were $645; Elvin’s monthly income was $2344 and his expenses were $2407; Elvin had $118,312 in an IRA and $19,262 in a cheeking account; Leona had no bank account or other funds; Elvin had debts of $5288; Leona had no debts; she had very little opportunity or ability to further acquire assets or income; Elvin had the opportunity for further acquisitions |7of assets and income; he had nonmarital assets, including several homes; Leona lived in the house at 5410 W. 11th Street, with Elvin’s permission, for twenty years; she maintained and preserved the property; she rendered homemaker services; and she cared for an adult child with a disability.
We acknowledge Elvin’s claim that the trial court clearly erred in giving Leona his nonmarital property because he and Leona lived together as a married couple in 2010 for only a few months. However, the record demonstrates that the parties had a much longer and more involved history together. Furthermore, and most significantly, in this case, section 9-12-315(a)(2) authorized the trial court to distribute Elvin’s nonmarital property to Leona based on the equities of them particular situation. Accordingly, we cannot say that the trial court clearly erred in awarding Leona Elvin’s nonmarital property located at 5410 W. 11th Street, and we affirm on this point.
Under his first point on appeal, Elvin also argues that the trial court erred in finding that he gave Leona the revolver and furniture. He contends that insufficient evidence supports the findings, that there was no reason for him to give the furniture to Leona, and that he merely loaned the firearm to her. We first note that sufficiency of the evidence is not the proper standard of review; instead, we must determine whether the trial court’s findings are clearly erroneous. Under the appropriate standard, we hold that the trial court did not clearly err in concluding that Elvin gifted the furniture and firearm to Leona.
We have defined a gift as a voluntary transfer of property, without consideration, to another. Massey v. Massey, 2014 Ark. App. 111, at 2, 432 S.W.3d 134, 135-36, 2014 WL 554452. In the very nature | sof a gift, the donor ceases to exercise control over it. Davis v. Jackson, 232 Ark. 953, 958, 341 S.W.2d 762, 764 (1961). In this case Leona presented evidence that Elvin voluntarily transferred the bedroom furniture and firearm to her and ceased to exercise control over the property. She said he gave her the bedroom furniture for her birthday and that he gave her the firearm for home protection. The trial court specifically found that Leona’s testimony was credible, and we give due deference to the trial court’s superior position to determine the credibility of the witnesses and the weight to be accorded to each witness’s testimony. Arnoult, 2014 Ark. App. 82, at 4, 2014 WL 579934. And we affirm the trial court’s findings unless they are clearly erroneous. Taylor v. Taylor, 369 Ark. 31, 34, 250 S.W.3d 232, 235 (2007). Under the facts of this case, we hold that the trial court’s findings that Elvin gave the bedroom furniture and the revolver to Leona were not clearly erroneous and affirm on this point.
Turning to Elvin’s final point on appeal, he contends that the trial court erred in awarding Leona alimony. The decision to grant alimony lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Dozier v. Dozier, 2014 Ark. App. 78, at 4, 432 S.W.3d 82, 84-85, 2014 WL 324557. A trial court abuses its discretion when it exercises its discretion improvidently, or thoughtlessly and without due consideration. Id., 432 S.W.3d at 84-85.
The purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties, in light of the particular facts of each case. Id., 432 S.W.3d at 84-85. The primary factors to consider are the financial need of one spouse and the other spouse’s ability to pay. Id., 432 S.W.3d at 84-85. Other factors include the financial 19circumstances of both parties; the couple’s past standard of living; the value of jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party’s spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. Id. at 4-5, 432 S.W.3d at 84-85. The amount of alimony has never been reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty. Id. at 5, 432 S.W.3d at 85. If alimony is awarded, it should be set in an amount that is reasonable under the circumstances. Id., 432 S.W.3d at 85.
Elvin contends that the trial court did not properly consider all of the relevant factors in its decree. He also argues that there is no justification for alimony in this case because both parties are retired and on fixed incomes, the difference in their fixed incomes is not “staggering,” and the parties’ marriage lasted only a few months. He concedes that he owns more nonmarital assets than Leona, but states that he should not be penalized for managing his funds wisely.
We hold that the trial court did not abuse its discretion in awarding Leona alimony. The trial court’s decree specifically stated that it considered all of the relevant alimony factors. It further noted that
[t]here is a considerable disparity in income and resources between the parties .... [Leona] has very limited income and is below the federal poverty guidelines. She lives on a limited and frugal budget. She has a home that is in need of repairs. In addition, she will be required to pay property taxes and insure her home. This will require additional expense as part of her budget.
|, nAfter finding that Leona had the need for financial support, the trial court found that Elvin had the resources to pay. We also note that the alimony award is not permanent-it is limited to a three-year period. Given the analysis of alimony in the decree, we cannot say that the trial court failed to consider the proper factors or abused its discretion. Accordingly, we affirm.
Affirmed.
GLADWIN, C.J., and HIXSON, J., agree. | [
-79,
108,
-11,
60,
-55,
32,
10,
-119,
114,
-125,
99,
87,
-25,
-54,
16,
105,
-94,
75,
97,
104,
17,
-77,
31,
97,
86,
-77,
-7,
-43,
-88,
95,
-28,
-43,
92,
112,
-86,
85,
64,
-56,
-27,
28,
14,
-128,
11,
108,
72,
66,
48,
46,
72,
11,
21,
-114,
-13,
-81,
61,
75,
108,
46,
81,
59,
80,
-104,
-102,
77,
-17,
6,
-109,
22,
-100,
4,
88,
10,
-104,
49,
0,
-88,
115,
54,
-122,
116,
68,
-97,
9,
38,
103,
3,
29,
-33,
-96,
-120,
-57,
-65,
-117,
7,
-102,
88,
91,
79,
-74,
-100,
117,
-44,
14,
-14,
104,
-115,
61,
108,
3,
-18,
-106,
-111,
13,
56,
-100,
27,
-21,
103,
48,
113,
-49,
-30,
125,
6,
120,
-101,
-97,
-77
] |
WAYMOND M. BROWN, Judge.
| Appellant appeals from the Board of Review’s (Board) decision to affirm the Appeal Tribunal’s (Tribunal) denial of benefits to claimant under Arkansas Code Annotated section ll-10-514(a) on finding that the claimant was discharged from last work for misconduct in connection with the work. We affirm.
Ethan Moody was a crew leader with the Arkansas Highway and Transportation Department (AHTD). The position of Finish Grader became available in his crew. Moody’s direct supervisor, Ricky Sharp, intended to give the position to the current rough operator on his crew. Moody believed that person was incapable of performing the duties required of the finish grader position. He informed Sharp’s supervisor, Bruce Street, of his belief that the position should not be given to the particular employee Sharp had in mind. Moody asserted that the rough grader’s current level of work was bringing crew morale down and “it was gonna [sic] hit the fan” if Sharp promoted him to the vacant ^position. Street advised Sharp that he and Moody should resolve the issue between the two of them. Due to Moody’s assertions, Sharp decided to interview the crew individually about the particular employee in an effort to see if they were in agreement with Moody. He began interviewing the crew on October 18, 2010.
At the conclusion of each interview, Sharp would ask if there was anything else the interviewee wanted to discuss. At the close of their respective interviews, Belinda Rogers and Rebecca Bohannon came forward with allegations against Moody. Rogers stated that in August 2010, she “felt something on the top of my boot in between my leg, and it run up my leg, high up on my leg, and I turned around and it was Odell L [sic] Moody.” She stated that Moody had a “flag paddle, putting it up between my legs.” She stated that she told him to stop, after which he left, and there had been no other occurrences like that since. Sharp testi fied that a fellow crew member, Elvis Garrett, acknowledged witnessing the paddle incident between Rogers and Moody. Bo-hannon alleged that on a day when she was wearing a coat, Moody told her if she didn’t take off her coat, “you’re going to sour the mike [sic] in those things,” referring to her breasts. She also alleged that Moody Ijjhad patted her “on the cheek of [her bottom]” after giving her instructions and had stuck his finger in a hole in her pants twice. Both contacts were unwel-comed. According to the EEO report, Bohannon told Rogers about each of these three incidences shortly after they occurred. At a later date, Sharp brought the ladies in for a meeting with Street, to whom they repeated the same allegations.
Following the meeting, Street discussed the allegations with his supervisor, Linda Waite. Street and Waite forwarded the allegations to the personnel department in Little Rock as required by policy. Waite also contacted James Moore in EEO on October 29, 2010, asking him to review the allegations and get back to them with findings thereon.
No one from the AHTD spoke with Moody during the investigation. This was due in part to Moody’s being off on sick leave when Street and Waite turned the matter over to the EEO, and in part due to the AHTD no longer being involved in the investigation once it was turned over to the EEO. Once the allegations were turned over to the EEO, the EEO instructed Street and Waite to locate Moody and place him on leave without pay pending the outcome of the investigation. This was accomplished on November 2, 2010. When interviewed by Wanda Bynum of the EEO, Moody denied all the allegations. At the Tribunal’s hearing, he attributed the allegations of Rogers and Bohannon to retribution for safety violations he had previously reported against them. He 14asserted that Garrett was retaliating against Moody because of Moody’s prior decision to recommend another employee for a promotion over Garrett.
Upon completion of its investigation, the EEO found the allegations to be substantiated and determined that Moody would be terminated. Waite concurred with the EEO’s recommendation to terminate Moody in an interoffice memorandum dated November 16, 2010. Moody was terminated November 29, 2010.
On December 27, 2010, the Department of Workforce Services (Department) issued a notice of agency determination denying Moody benefits under Arkansas Code Annotated section ll-10-514(a) on finding that Moody was discharged from last work for misconduct in connection with the work. Moody filed a timely appeal of this determination to the Appeal Tribunal. Following an in-person hearing on May 11, 2011, the Tribunal issued its decision which affirmed the Department. Claimant filed a timely appeal to the Board of Review. The Board affirmed the Tribunal. This timely appeal followed.
We do not conduct a de novo review in appeals from the Board of Review. On appeal, we review the findings of the Board of Review and affirm if they are supported by substantial evidence. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. If fair-minded persons could reach the ^Board’s conclusions on the same evidence, we must affirm its decision. We review the evidence and all reasonable inferences deducible from the evidence in the light most favorable to the Board of Review’s findings. Issues of credibility and the weight of evidence are matters for the Board to determine.
On appeal, Moody argues that there was not sufficient evidence to support the administrative law judge’s (ALJ) decision. Throughout his brief, Moody’s counsel refers to the ALJ. We advise Moody counsel that there is no ALJ in an unemployment compensation matter. Accordingly, because the only hearing occurred before the Tribunal, we assume that the ALJ references are meant to refer to the Tribunal hearing officer, and we treat them as such.
In a related matter, we note that though Moody is appealing the Board’s decision to affirm the Tribunal’s decision, Moody’s arguments are all erroneously directed at the hearing officer and the Tribunal’s resulting decision. That decision was appealed to the Board, which affirmed in a separate decision; therefore, no basis exist for referring to the Tribunal’s decision. Accordingly, we address the Board’s decision only and determine whether there was sufficient evidence to support it.
A person will be disqualified for unemployment benefits if it is found that he was discharged from his employment on the basis of misconduct in connection with thelfiwork. Misconduct is defined in unemployment compensation jurisprudence as (1) disregard of the employer’s interests; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has a right to expect of his employees; or (4) disregard of the employee’s duties and obligations to the employer. Mere unsatisfactory conduct, ordinary negligence, or good-faith errors in judgment or discretion are not considered misconduct unless they are of such a degree or recurrence as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. In addition, dishonesty is defined as “a disposition to lie, cheat or defraud; untrustworthiness; lack of integrity.”
The AHTD’s sexual-harassment policy defines sexual-harassment as “un welcome ... physical or verbal conduct of a sexual nature when ... the harassment substantially interferes with an employees work performance or creates and intimidating, hostile, or offensive work environment.” It specifically states that sexual-harassment can include joking; physical assaults, including inappropriate touching; and “language of a sexual nature including comments about a person’s body or sexually degrading words to reference or describe an individual.” A non-exhaustive list of inappropriate conduct |7considered to be grounds for dismissal included noncompliance with department policy, derogatory acts, and sexually or otherwise harassing an employee.
The employees are not given a copy of the personnel manual which contains the sexual-harassment policy, but the employees have access to it and they are told to read the manual. On April 2, 2009, Moody signed an acknowledgement that he’d been advised of the policies therein and that he would “familiarize” himself with the information in the manual. Moody testified at the hearing that “I do agree with the policies, I signed every one of them. I read them all. I read the personel [sic] book from one end to the other[.]” Additionally, the employer goes over the sexual-harassment policy in a sexual-harassment course. Moody last completed the course on September 27, 2006. There is no doubt that Moody was very aware of the policies.
The totality of this case hinges on credibility. The only evidence to support Moody is his own testimony. Facts established by the testimony of an interested witness, or one whose testimony might be biased, cannot be considered as undisputed or uncontradicted. While the testimony of such a witness may not be arbitrarily disregarded, a trier of facts is not required to accept any statement as true merely because so testified.
On the other hand, the employer’s case was multi-sourced. Two employees testified detailing four separate instances of sexual-harassment by Moody. The paddle 1 ^incident was witnessed by a fellow employee according to Sharp’s testimony. We note that the sexual-harassment policy states that any employee believing he or she has been harassed “should tell the harasser to stop and/or report the behavior to his or her supervisor or another higher-up.” However, Rogers stated that she didn’t report the incident initially because she “worked with the man [Moody] everyday” and Bohannon stated that she didn’t report initially because “he is a supervisor” and “it’s kind of hard to.”
Sharp’s testimony and notes corroborated both Rogers’s and Bohannon’s testimony. Sharp arranged a meeting with his supervisor, Street, who heard Rogers’s and Bohannon’s allegations for himself. Street’s testimony and interoffice memorandum corroborated their allegations. In accordance with department policy, Street spoke to his supervisor, Waite, and they contacted the EEO, which took over the investigation from that point. The EEO completed its own investigation and concluded that the allegations were substantiated. Waite agreed with the EEO’s decision to terminate.
Moody now asks us to find his version of events more credible. He asks us to find that this case is the result of a conspiracy of his inferiors to get rid of him because he was a tough boss. We are precluded from doing so. In our review, we do not pass on the credibility of the witnesses; it is a matter that is left to the Board of Review. Substantial evidence supports the Board’s finding that the employer’s evidence was credible. The sexual-harassment policy states that “[m]anagers and supervisors will be held personally accountable for ensuring that no form of ... harassment occurs in .the workplace.” | nSubstantial evidence shows that Moody was a perpetrator of harassment in the workplace. Accordingly, substantial evidence supports the Board’s decision to affirm the Tribunal on finding that Moody was discharged from his last work for misconduct in connection with the work.
In support of his insufficiency claim, Moody alleges that the hearing officer failed to develop the record. The Board specifically addressed this claim below. In its decision, it stated:
[TJhere is no indication on the record that the hearing officer limited the hearing to one hour and fifteen minutes, as the hearing is more than one hour and twenty-eight minutes long. While the testimony of the employer’s four witnesses and the claimant’s cross-examination of those witnesses took up the majority of the time on the record, the claimant testified for approximately 26 minutes, was not prevented from testifying at any time in the hearing, and when the hearing officer asked if there was anything that the claimant cared to add before the close of the hearing, the claimant proceeded to testify uninterrupted for approximately nine minutes. The claimant was also allowed to offer additional testimony after the employer’s closing statement.
We find no reason to disagree with the Board on this matter. Substantial evidence supports its conclusion; therefore, we find that the record was sufficiently developed.
We do not address Moody’s due-process argument because it was not raised below. It is well settled that the appellate courts will not consider arguments made for the first time on appeal.
Affirmed.
PITTMAN and WYNNE, JJ„ agree.
. Moody was known on the job by his middle name, Odell.
. Bohannon made a similar allegation against Moody regarding a third party. Bohannon alleged that Moody used the paddle handle in a similar manner against Lisa Carlton, another female crew member. Carlton denied that it happened. The EEO found the allegation unsubstantiated; however the EEO report states that another employee stated that he saw Moody point the stick end of the flagging paddle toward Carlton’s crotch area approximately three years ago.
. At the hearing, Moody asserted that he did not make the comment, but that she had "raised her shirt and exposed her breasts to the crew.” Bohannon denied the allegation.
. Street refers to his supervisor as "Linda Waite” according to the hearing transcript; however, the record shows that his supervisor was named Lyndal Waits.
. Moody testified that he reported both Rogers and Bohannon to Sharp for swimming while they were on a job and Bohannon for hosing herself with an herbicide hose.
. Law Offices of Craig L. Cook v. Dir., Dep’t of Workforce Servs., 2013 Ark. App. 741, at 1, 431 S.W.3d 337, 2013 WL 6493194 (citing Snyder v. Dir., 81 Ark.App. 262, 101 S.W.3d 270 (2003)).
. Bergman v. Dir., Dep’t of Workforce Servs., 2010 Ark. App. 729, at 5, 379 S.W.3d 625, 628 (citing Walls v. Dir., 74 Ark.App. 424, 49 S.W.3d 670 (2001)).
. Id.
. Law Offices of Craig L. Cook, supra.
. Id. at 1-2, 431 S.W.3d 337, 2013 Ark. App. 741
. Id. at 2, 431 S.W.3d 337, 2013 WL 6493194 (citing Ballard v. Dir., Ark. Dep’t of Workforce Servs., 2012 Ark. App. 371, 2012 WL 1943622).
. Coker v. Dir., Dep’t of Workforce Servs., 99 Ark.App. 455, 262 S.W.3d 175 (2007) (citing Ark.Code Ann. § 1 l-10-514(a)(l) (Repl.2002)).
. Bergman v. Dir., Dep't of Workforce Servs., 2010 Ark. App. 729, at 5, 379 S.W.3d 625, 628 (citing Maxfield v. Dir., 84 Ark.App. 48, 129 S.W.3d 298 (2003)).
. Id.
. King v. Dir., 80 Ark.App. 57, 60, 92 S.W.3d 685, 686-87 (2002) (quoting Olson v. Everett, 8 Ark.App. 230, 231, 650 S.W.2d 247, 248 (1983)).
. Burnett v. Philadelphia Life Ins. Co., 81 Ark.App. 300, 308, 101 S.W.3d 843, 849 (2003) (citing Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 1039, 436 S.W.2d 829, 835-36 (1969)).
. Id.
. Bergman, 2010 Ark. App. at 7-8, 379 S.W.3d at 629 (citing Maxfield v. Dir., supra).
. Courtney v. Ward, 2012 Ark. App. 148, at 14, 391 S.W.3d 686, 694 (citing Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008)). | [
16,
-18,
-40,
-115,
41,
65,
27,
-76,
81,
-57,
103,
83,
47,
-12,
29,
123,
-29,
15,
81,
43,
-45,
119,
19,
-31,
-30,
83,
-13,
71,
-70,
79,
-32,
-68,
73,
113,
-118,
-47,
-26,
66,
-18,
88,
-62,
7,
-87,
-23,
24,
-124,
40,
-18,
22,
79,
53,
-98,
-13,
108,
28,
-61,
108,
126,
117,
-84,
66,
115,
-38,
13,
-17,
0,
-125,
36,
-101,
9,
-16,
61,
-104,
49,
5,
-8,
115,
-90,
-126,
100,
15,
-99,
69,
32,
113,
49,
-99,
-25,
44,
-24,
63,
-66,
-99,
-90,
-104,
41,
10,
77,
-105,
-108,
-54,
22,
-114,
126,
98,
77,
30,
108,
-118,
-54,
-76,
-111,
13,
-124,
-108,
-101,
-53,
-61,
22,
101,
-114,
-94,
93,
69,
51,
87,
-58,
-78
] |
DAVID M. GLOVER, Judge.
|, This appeal arises from a suit filed by appellants George and Montie Hobson against appellee Entergy Arkansas for actual and constructive fraud, breach of contract, and promissory estoppel. The suit claimed that Entergy failed to honor its promise to purchase the Hobsons’ home in connection with a job relocation. Prior to trial, the circuit court entered three summary-judgment orders that are pertinent to this appeal. The first order dismissed the Hobsons’ claims for actual and constructive fraud. The second and third orders limited the types of damages the Hobsons could recover on their remaining claims for breach of contract and promissory estoppel. Those two claims went to trial, and the jury awarded the Hobsons $21,935.95. For reversal, the Hobsons argue that the circuit court erred in entering each of |2the summary-judgment orders. We affirm in part and reverse and remand in part.
I. Factual Background
In 2000, appellant George Hobson was living in Rogers, Arkansas, with his family. He operated an electrical-contracting business, kV Electric, Inc., and his wife, appellant Montie Hobson, worked as an accountant for St. Mary’s Hospital. Before operating his own business, Mr. Hobson was employed at Entergy for over twenty years.
In the summer of 2000, Jerry Tanner of Entergy approached Hobson with an offer to return to work for Entergy in central Arkansas. Hobson told Tanner that he could not consider the offer unless Enter-gy gave him his time back for seniority and vacation purposes and bought his house in Rogers and moved him to central Arkansas. According to Hobson, Tanner told him that this would be “no problem” but that, if he took the job, he would have to sell his interest in kV Electric to avoid a conflict of interest. Tanner would later testify that he was aware of Entergy’s employee-relocation policy and believed that Hobson would qualify for the policy’s benefits. There is no evidence, however, that Tanner provided Hobson with a copy of the relocation policy or discussed its provisions in detail.
Entergy’s written employee-relocation policy, as effective in the year 2000, is not in the record before us. However, other documents of record indicate that the policy applied to Entergy employees and new hires with a Responsibility Level of 21 or higher. The 2003 relocation policy, which is in the record, includes “home sale and home purchase benefits” under a Third Party Purchase Program. The program provides that a company called Cendant Mobility Services Corporation will establish the appraised value of the employee’s home, then 1¡¡deliver a sales contract to the employee, who has ninety days to elect to sell the home to Cendant.
In July 2000, Hobson accepted the job with Entergy and began working there almost immediately. He stayed in Little Rock at Entergy’s expense while Mrs. Hobson and the children remained in Rogers, pending the sale of the house. As required by Entergy, Hobson made arrangements to sell his interest in kV Electric. Mrs. Hobson quit her job to prepare the Rogers house for sale.
A short time later, a conflict arose as to whether Mr. Hobson qualified for the home-buyout benefit. According to notes prepared by Cendant, Hobson had been hired at a responsibility level of 17 and was not eligible for the home-buyout package. The notes also reflect that the Hob-sons complained to Cendant that Enter-gy’s purchase of their home was part of Mr. Hobson’s agreement to accept employment with Entergy. After several email communications, Entergy and Cendant apparently concluded that Tanner had misunderstood the policy’s provisions and had in fact offered Hobson the home-buyout benefit. Tanner asked Cendant to appraise the Hobsons’ house and proceed with a buyout. The house, which the Hob-sons had been trying to sell on their own for $279,000, appraised for $245,000. According to Cendant, the house was overpriced and needed certain improvements.
The Hobsons incurred expenses in making repairs and improvements to their home. Nevertheless, Entergy and Cen-dant decided in December 2001 not to buy the home.
Thereafter, the Hobsons continued to try and sell their home on the open market while simultaneously urging Entergy executives to honor the company’s promise to buy the |4home. At one point, they pled their case to Entergy’s CEO, Wayne Leonard, who sympathized with their situation and acknowledged Entergy’s possible legal exposure.
In June 2003, Mr. Hobson received a letter from Entergy executive Doug Mad-er, stating that “the decision has been reached to provide you home buyout benefits.” The letter further stated that, in accordance with Entergy’s relocation policy, an appraisal would be done on the Rogers home and “an appraised value offer will be extended to you.”
The Hobsons believed that Entergy’s decision to provide “home buyout benefits” meant that Entergy would at last fulfill its promise to buy their home. In August 2003, they received a contract of sale from Cendant. The contract named the Hob-sons as sellers; named a Cendant subsidiary, Cendant Mobility Financial Corporation, as the buyer; stated an agreement to buy the home for $245,000 “based upon your employer’s relocation policy and an average of independent appraisals”; stated that the Hobsons would give Cendant Financial full possession as “the new owner” within sixty days after signing the sales contract; and provided that, after the possession date, Cendant Financial would “assume all benefits and burdens of ownership” in the home “until sale and transfer of title to a third party.” However, Mrs. Hobson (who has a law license) determined that some of the contract’s terms differed significantly from an ordinary real-estate contract. Among her objections were that the Hobsons were required to guarantee (rather than warrant to the best of their knowledge) the lack of material defects in the physical condition of the home; that Cendant had the choice to either pay off the Hobsons’ mortgage or continue to service it; and that Cendant was permitted to rescind the sales contract if Mr. Hobson did not remain an employee of Entergy Lor if Entergy failed to abide by the terms of its relocation-management agreement with Cendant.
Mrs. Hobson sent detailed letters to En-tergy explaining that Entergy had promised to buy their home and that the Cen-dant contract did not in fact constitute a purchase. Entergy reviewed Mrs. Hob-son’s correspondence but refused to alter the sales contract. As a result, the Hob-sons did not enter into a sales contract with Cendant. The house remained unsold, and Mrs. Hobson and the children stayed in Rogers while Mr. Hobson continued to work for Entergy in central Arkansas. At some point, Mrs. Hobson returned to work for less money than she had previously made as an accountant. In mid-2005, Mr. Hobson submitted a letter of resignation to Entergy. The letter stated that Entergy had refused to honor its representations, made as part of its offer of employment, to purchase his house and relocate his family. It also stated that Hobson would have continued working for Entergy if Entergy had purchased his house. Upon resigning, Hobson returned to Rogers and accepted employment at an annual salary of approximately $19,000 less than he had been making at Entergy.
On September 15, 2006, the Hobsons sued Entergy based on Entergy’s refusal to purchase their home. They alleged that Mr. Hobson’s acceptance of employment with Entergy was predicated on En-tergy’s agreement to purchase their home and that Entergy’s |firefusal to do so constituted a breach of contract. They further alleged that they relied to their detriment on Entergy’s false promises and representations that it would purchase their home, for which Entergy should be liable on theories of promissory estoppel, actual fraud, and constructive fraud. En-tergy denied the allegations.
On July 30, 2010, Entergy filed a motion for summary judgment directed to the Hobsons’ claims for actual and constructive fraud. Entergy argued, in pertinent part, that the Hobsons’ fraud claims should be dismissed because the claims were based on representations of future events rather than on misrepresentations of fact. Following a hearing, the circuit court granted Entergy’s motion.
Thereafter, to support their claims on the remaining counts of breach of contract and promissory estoppel, the Hobsons produced the report of an economics expert, Dr. Ralph Scott. Dr. Scott opined that the Hobsons had suffered approximately $3,000,000 in damages as the result of relinquishing their interest in kV Electric and Mrs. Hobson’s giving up her job to prepare the Rogers house for sale. Based on this report, Entergy filed its second motion for summary judgment, arguing that Dr. Scott incorrectly employed a “but-for” measure of damages. According to Entergy, the proper measure of damages for breach of contract and promissory estoppel would have been to place the Hobsons in the same position as if Entergy’s alleged promise had not been breached.
The Hobsons responded that their lost income was actually “consequential damage” |7and was, in any event, recoverable under their theory of promissory estoppel. The circuit court granted Entergy’s motion for summary judgment but implied that it would consider other types of damages. Accordingly, the Hobsons gave notice that they would seek damages for repairs and improvements to the Rogers house; for Mr. Hobson’s loss in taking a lower-paying job after leaving Entergy in 2005; and for Mr. Hobson’s inability to participate in a retirement-buyout package that Entergy offered in October 2003.
In response, Entergy filed its third motion for summary judgment, arguing again that the Hobsons’ damages were not recoverable under their breach-of-contract or promissory-estoppel theories. The circuit court granted Entergy’s motion in part, prohibiting Mr. Hobson’s claim for reduced income after leaving Entergy. The court denied the motion as it related to the Hobsons’ claim for home-improvement and repair expenses. It is not clear whether the court ruled on Mr. Hobson’s claim for lost opportunity with regard to the retirement buyout.
At trial, the Hobsons sought damages of $27,285.98 for various repairs and improvements to their home. They offered testimony that some of the repairs and improvements were done to facilitate the sale of the home or at Cendant/Entergy’s request. Other testimony indicated that the Hobsons benefited from some of the improvements or would have performed them regardless of the planned move. The jury returned a verdict in favor of the Hobsons for $21,935.98.
hOn appeal, the Hobsons challenge the summary-judgment order that dismissed their fraud claims and the two summary-judgment orders that limited their damages.
II. Standard of Review
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. Killian v. Gibson, 2012 Ark. App. 299, 423 S.W.3d 98. In reviewing a grant of summary judgment, we determine whether the evidentia-ry items presented by the moving party in support of the motion left a material question of fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed and resolve all doubts and inferences against the moving party. Id. When a litigant cannot present proof of an essential element of their claim, the party moving for summary judgment is entitled to judgment as a matter of law. Worley v. City of Jonesboro, 2011 Ark. App. 594, 385 S.W.3d 908.
III. Actual and Constructive Fraud
Actual fraud consists of the following elements: 1) the defendant made a false representation of material fact; 2) the defendant knew that the representation was false or that there was insufficient evidence upon which to make the representation; 3) the defendant intended to induce action or inaction by the plaintiff in reliance upon the representation; 4) the plaintiff justifiably relied on the representation; 5) the plaintiff suffered damage as a result of the false representation. First Ark. Bank & Trust v. Gill Elrod Ragon Owen & Sherman, P.A., 2013 Ark. 159, 427 S.W.3d 47. Constructive fraud, as opposed to actual fraud, does not |3include the elements of actual dishonesty or intent to deceive. Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324. It is defined as a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others. Id.
As described in their brief, the Hobsons’ fraud claims are based on their allegations that Jerry Tanner’s statements and Entergy’s relocation policy falsely represented that Entergy would buy their home; that Entergy did not buy their home; that Entergy’s intent was to induce Mr. Hobson to accept employment with the company; that Mr. Hobson justifiably relied on the misrepresentations; and that the Hobsons suffered damages as a result. On appeal, the Hobsons make arguments with regard to each of these allegations. Our focus, however, will be whether the Hobsons presented proof of one essential element of their claim: that Entergy made a misrepresentation of a material fact. Both actual and constructive fraud require proof of this element. S. Cnty., Inc. v. First W. Loan Co., 315 Ark. 722, 871 S.W.2d 325 (1994); Rice v. Ragsdale, 104 Ark.App. 364, 292 S.W.3d 856 (2009). Further, because they claim fraud on the premise that Entergy induced Mr. Hobson to accept employment, the relevant statements for our purposes are those made by Jerry Tanner in seeking to hire Mr. Hob-son.
At the trial level, Entergy moved for summary judgment on the ground that the misrepresentations cited by the Hob-sons were promises of future events rather than statements of fact. It is well-established that representations that are promissory in nature, or of facts that will exist in the future, though false, will not support an action for fraud. Anthony v. First Nat’l Bank of Magnolia, 244 Ark. 1015, 431 S.W.2d 267 (1968). In P.A.M. Transport, Inc. v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993), our supreme court stated the following:
One of the elements of deceit is that the misrepresentation alleged must typically be a misrepresentation of fact. In the context of negotiating a contract, a misrepresentation sufficient to form the basis of a deceit action may be made by one prospective party to another and must relate to a past event, or a present circumstance, but not a future event. “An assertion limited to a future event may be a promise that imposes liability for breach of contract or a mere prediction that does not, but it is not a misrepresentation as to that event.”
315 Ark. at 240, 868 S.W.2d at 36 (citations omitted). Broken promises are therefore generally within the realm of breaeh-of-contract actions, and not fraud actions. See S. Cnty, Inc., supra; Chandler v. Kirkpatrick, 270 Ark. 74, 603 S.W.2d 406 (1980); Moore v. Keith Smith Co., 2009 Ark.App. 361.
Based on these authorities, we agree with Entergy that Tanner’s statements were promises of future events rather than misrepresentations of fact, or statements of a present circumstance. Tanner made the representations regarding Entergy’s relocation policy in a contractual setting, pertaining to something Entergy would do in the future. His alleged misrepresentations cannot be distinguished from other statements that our courts have held to be promises rather than misrepresentations of fact. See S. Cnty, Inc., supra (holding that a bank’s commitment to provide financing was a promise of future conduct made in a contractual setting and, therefore, not fraud); Chandler, supra (holding that a borrower’s failure to pay a loan amount after promising his co-borrower he would do so was not fraud); Moore, supra (holding that a lien breeder’s representation that he would continue to place flocks with |na farmer alluded to the breeder’s policy and its future performance of a contract and was not fraud).
The Hobsons cite an exception to the “future events” rule, which is that fraud may be based on a promise of future conduct if the promisor, at the time of making the promise, has no intention to carry it out. See Delta Sch. of Commerce, Inc. v. Wood, 298 Ark. 195, 766 S.W.2d 424 (1989); Stine v. Sanders, 66 Ark.App. 49, 987 S.W.2d 289 (1999). However, the exception does not apply in this instance. The Hobsons produced no evidence that would permit an inference that Jerry Tanner lacked an honest belief about the promises he made to Mr. Hobson. Thus, there is no genuine issue of material fact on this point, and the general rule that promises of future conduct do not constitute fraud is not abrogated. See generally Anthony v. First Nat’l Bank of Magnolia, supra.
The Hobsons also argue that En-tergy had a duty to disclose that its relocation policy would not involve the outright purchase of their home. Fraud-based liability for nondisclosure, as opposed to an affirmative misrepresentation, arises in special circumstances where there is a duty to communicate a concealed material fact or where one party knows another is relying on misinformation to his detriment. Worley v. City of Jonesboro, 2011 Ark. App. 594, 385 S.W.Bd 908. Such liability may occur where the parties have a relation of trust and confidence or where there is inequality of condition and knowledge, or where there are other attendant circumstances. Holiday Inn Franchising, Inc. v. Hotel Assocs., Inc., 2011 Ark. App. 147, 382 S.W.3d 6.
To prevail in a case of fraudulent nondisclosure, the plaintiff must prove that the | ^defendant concealed a material fact known to it. Downum v. Downum, 101 Ark.App. 243, 274 S.W.3d 349 (2008). The Hobsons, however, produced nothing to show that Tanner concealed any material fact known to him with regard to Enter-gy’s relocation. The only inferences supported by the proof are that Tanner told Hobson what he thought to be true and correct.
Based on the foregoing, we affirm the circuit court’s grant of summary judgment on the Hobsons’ fraud claims.
IV. Breach of Contract
The Hobsons argue that the circuit court erred in its second and third summary-judgment orders that involved their claim of consequential damages for breach of contract. The damage claims at issue are the Hobsons’ lost earnings from relinquishing kV Electric; Mrs. Hobson’s lost wages from giving up her employment at St. Mary’s; Mr. Hobson’s lost opportunity to participate in a retiremeni/severance package offered by Entergy; Mr. Hobson’s reduced income after leaving En-tergy in 2005; and certain costs incurred regarding an offer the Hobsons made on a home in Cabot, Arkansas.
The purpose of damages in a contract action is to place the injured party in the same position he would have been in had the contract been performed. Howard W. Brill, Law of Damages § 17:1 (5th ed.2004); Acker Constr., LLC v. Tran, 2012 Ark. App. 214, 396 S.W.3d 279. The law makes a distinction between the general damages suffered in a breach-of-contract case and consequential damages. General damages are those that necessarily flow from the breach. Brill, swpra § 4:2. Consequential damages refer to damages that are only indirectly caused by the breach — instead of flowing directly from the breach, they result from some of the consequences of the breach. Id.; Acker, supra.
With regard to consequential damages, Arkansas follows the “tacit agreement” rule. This rule provides that, in order to recover consequential damages, the plaintiff must prove more than the defendant’s mere knowledge that a breach of the contract will entail special damages to the plaintiff; it must also appear that the defendant at least tacitly agreed to assume responsibility for such damages. See Deck House, Inc. v. Link, 98 Ark.App. 17, 249 S.W.3d 817 (2007).
In light of these standards, we conclude that the circuit court correctly ruled that three of the Hobsons’ damage claims must fail as a matter of law. Their claim for lost earnings from the relinquishment of kV Electric was neither a direct nor an indirect consequence of Entergy’s alleged breach of the alleged contract to buy the house. That is to say, the breach of the contract, if any, did not cause the loss of the business. Further, while there is evidence that Entergy knew that the Hobsons were giving up their business, a plaintiff seeking consequential damages must prove more than mere knowledge by the defendant that a breach will entail special damages. Deck House, supra. There must be some evidence that the defendant tacitly agreed to assume responsibility for such damages. Id. We see no proof from |14which any inference may be drawn of a tacit agreement by Entergy to be responsible for the loss of business income in the event of a breach.
As for Mrs. Hobson’s lost income from leaving her job, such damages are, at most, an indirect result of the alleged breach. However, the Hobsons have not made a convincing argument that Entergy committed to be bound for anything more than ordinary, direct damages in the event of a breach. See Stiff’s Jewelers v. Oliver, 284 Ark. 29, 678 S.W.2d 372 (1984); Morrow v. First Nat’l Bank of Hot Springs, 261 Ark. 568, 550 S.W.2d 429 (1977). As a result, Mrs. Hobson’s lost income does not meet the definition of consequential damages, and no genuine issue of material fact remains on this point. Similarly, the Hob-sons have not convinced us that Entergy arguably agreed, even tacitly, to be responsible for Mr. Hobson’s special damages incurred in losing the opportunity to participate in Entergy’s 2003 retirement buyout.
Finally, we turn to Mr. Hobson’s claim that his reduction in income upon leaving Entergy’s employment in 2005 was the result of Entergy’s breaching its promise to buy the Hobsons’ home. We agree with the Hobsons that a fact question remains on this point. According to Mr. Hobson’s resignation letter, Entergy’s failure to buy the house was the precise reason for his leaving to find another job. It is therefore arguable that these damages flowed directly, rather than indirectly, from the breach, in which case the tacit-agreement rule does not apply. Acker Constr., LLC, supra. Accordingly, we reverse and remand the summary judgment on this aspect of damages. See generally Durham v. Smith, 2010 Ark. App. 329, 374 S.W.3d 799.
Affirmed in part; reversed and remanded in part.
HARRISON and WYNNE, JJ„ agree.
. We previously ordered rebriefing in this case. Hobson v. Entergy Arkansas, Inc., 2013 Ark. App. 447, 2013 WL 4557214.
. See Byme, Inc. v. Ivy, 367 Ark. 451, 241 S.W.3d 229 (2006), involving a similar contract.
. The Hobsons originally sued Entergy in 2003 but nonsuited the action in 2005. They refiled the case on September 15, 2006.
.The Hobsons’ counsel indicated at one of the summary-judgment hearings that these counts were pled in the alternative.
. Accepting the buyout would have required Mr. Hobson to release all claims against En-tergy.
. The Hobsons’ brief makes a cursory mention of their promissory-estoppel claim with regard to one of their elements of damage but otherwise makes no semblance of an argument that the court erred in dismissing that claim. Their argument on appeal focuses on the concept of consequential damages and the accompanying "tacit-agreement” rule that applies in a breach-of-contract case. We therefore analyze the Hobsons’ argument on this point solely in terms of their contract cause of action.
. We do not address the Hobsons’ argument that they were entitled to damages for certain costs associated with an offer made on a central Arkansas home. That claim was not pressed below nor did the circuit court rule on the matter. | [
81,
124,
-40,
60,
24,
-32,
58,
-102,
115,
-95,
39,
-45,
-25,
-20,
21,
107,
-29,
123,
96,
113,
85,
-77,
5,
99,
-46,
-77,
-79,
-59,
-72,
95,
100,
-42,
76,
32,
-54,
85,
-58,
-62,
-51,
-40,
42,
5,
-120,
96,
-7,
-64,
48,
-87,
20,
15,
97,
-114,
-1,
44,
25,
74,
104,
46,
125,
-68,
80,
-6,
-69,
5,
127,
7,
-128,
69,
-102,
3,
-16,
46,
-112,
48,
41,
-56,
114,
54,
-122,
116,
75,
29,
9,
98,
98,
16,
1,
-25,
-24,
8,
14,
-66,
15,
-89,
-46,
56,
19,
75,
-65,
-100,
80,
18,
6,
-10,
-26,
-99,
31,
109,
1,
-50,
-44,
-9,
13,
-31,
-100,
19,
-17,
103,
48,
116,
-113,
-94,
92,
71,
51,
27,
-114,
-14
] |
KAREN R. BAKER, Associate Justice.
|!Appellant, Derek Coy Holcomb, was convicted by a Crawford County Circuit Court jury of one count of internet stalking of a child. Holcomb was sentenced to a five-year suspended sentence and an $8,000 fine. This court has jurisdiction pursuant to Ark. Sup.Ct. R. l-2(b)(l), (5), and (6) (2013), as this case presents issues of first impression, substantial public interest, and the constitutionality of the statute.
Between October 23, 2009, and June 10, 2010, Holcomb engaged in online chats with a person identified on Yahoo internet service as “Amanda,” who used the screen name “pageant_gurl43.” “Amanda” or “pageant_gurl43” was actually Detective Donald Eversole with the Van Burén Police Department; Detective Eversole set up a profile for a fictional fifteen-year-old girl on an internet-romance chat room. Holcomb and Eversole exchanged 846 instant messages through the chat room. The two exchanged messages about age, sexual experience, residence, and photos of each other, as well as sexually explicit exchanges. After Rthese exchanges, on June 28, 2010, Holcomb was arrested for internet stalking of a child in violation of Ark.Code Ann. § 5-27-306. Holcomb’s first trial ended in a hung jury; he was retried on March 11, 2013, and the jury found him guilty. This appeal followed.
Holcomb raises two points on appeal: (1) the circuit court erred by denying Holcomb’s motion for directed verdict, and (2) the circuit court erred in denying Holcomb’s motion to declare Ark.Code Ann. § 5-27-306 unconstitutional under the First Amendment.
Sufficiency of the Evidence
For his first point on appeal, Holcomb asserts that the circuit court erred in denying his motion for directed verdict on one count of internet stalking of a child.
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006). We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994). We need consider only that testimony which supports the verdict of guilty. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Finally, “we strictly construe criminal statutes and resolve any doubts in favor of the defendant. There is no better settled rule in criminal jurisprudence than that criminal statutes must be strictly construed and |spursued. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature.” Williams v. State, 347 Ark. 728, 742, 67 S.W.3d 548, 556 (2002) (internal citations omitted).
Holcomb’s first point on appeal requires us to interpret the statute at issue, Ark.Code Ann. § 5-27-306(a)(2) (Supp.2009). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Madness v. State, 2012 Ark. 16, 386 S.W.3d 390. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis need go no further. Id. We review issues of statutory interpretation de novo because it is for this court to decide what a statute means. Id. When dealing with a penal statute, this court strictly construes the statute in favor of the party sought to be penalized. Id.
The relevant statute, Ark.Code Ann. § 5-27-306(a)(2), provides:
(a) A person commits the offense of internet stalking of a child if the person being twenty-one (21) years of age or older knowingly uses a computer online service, internet service, or local internet bulletin board service to:
(2) Seduce, solicit, lure, or entice an individual that the person believes to be fifteen (15) years of age or younger in an effort to arrange a meeting with the individual for the purpose of engaging in:
(A) Sexual intercourse;
(B) Sexually explicit conduct; or
(C) Deviate sexual activity....
A violation of this subsection is a Class B felony if the person “attempts to arrange a meeting with a child fifteen (15) years of age or younger,” even if a meeting never takes place, and it is a Class A felony if an actual meeting with the child does takes place. Ark.Code Ann. |4 § 5-27-306(b).
Holcomb contends that the circuit court erred in denying his motion for directed verdict because the State failed to put forth sufficient evidence that he had seduced, solicited, lured, or enticed Eversole in an “effort to arrange a meeting” with a person he believed to be fifteen years old. Further, citing to multiple cases from our court of appeals, Holcomb contends that our appellate courts have never upheld a conviction under this statute absent a defendant’s specific arrangement to meet with the victim.
The State responds that the statute does not require a specific arrangement to meet the victim and that the discussions between Holcomb and Eversole were suffi cient to show an effort to arrange a meeting for the purpose of sexual activity.
At issue is whether there is sufficient evidence to demonstrate that Holcomb acted in an effort to arrange a meeting with Eversole. In applying our rules of statutory interpretation, we must give the words their ordinary and usually accepted meaning. Oxford American Dictionary defines “effort” as “determined attempt.” “Arrange” is defined as “organize or make plans.” Meeting is defined as “a coming together of two or more people.” Oxford American Dictionary 544, 87 (2001). Applying these ordinary definitions to the statutory language, Holcomb must have made a determined attempt to organize or plan a coming together with Eversole, who he believed was fifteen years old.
Turning to the facts of Holcomb’s case, we review the evidence in the light most |fifavorable to the State. The record contains 846 messages that were exchanged between Eversole and Holcomb between October 23, 2009, and June 10, 2010. The State introduced the transcript of messages exchanged through Detective Ever-sole. The State specifically points to the following exchanges and asserts that the nature of the exchanges demonstrates Holcomb’s effort to arrange a meeting. On March 19, 2010, the two exchanged the following messages:
Holcomb: I think you should drive to lr [Little Rock] when you turn 16.
Eversole: u can drive here ... here now....
Holcomb: hmmmm.
Holcomb: but you still live with your parents.
On June 4, 2010, the two exchanged the following messages:
Holcomb: where are u at? fort smith?
Eversole: van burén...! u know where that is?
HolCOmb: yeah.
Holoomb: my buddy lives there.'
Eversole: cool.
Holoomb: ... im going to rogers tomorrow.
Eversole: why.
HolCOmb: for work shit.
Holoomb: want me to go up a night early to go to see my buddy in van burén?
| bEversole: really.
Holoomb: Yeah maybe.
Eversole: really ... .just to see me .... really
HolCOmb: well im heading that direction this weekend anyway.
Holcomb: i havent visited my boy in a while
Eversole: cool ... .that would be fun
Holcomb: just text messaged my boy
HolCOmb: he isnt in van burén tonight
Holoomb: he’ll be back tomorrow for a sec.
Holoomb: but then has to go to dallas
Eversole: so u aint coming
HolCOmb: guess not
Eversole: yeah yeah.... ok.... sounds like all talk.... gonna come and see me ... then change ur mind.... but its cool.
Holoomb: youre 15 and live with your mom!
Eversole: so.
Later on June 4, 2010, the two exchanged the following messages:
Holcomb: you’d be scared to death if i really did come over? ? ? ?
EveRSOLE: what ... heck ... no ... we have talk for a while ... not scared .... anxious..worried u wouldnt like me thats all.
17H0LCOMB: well, i would
Eversole: u have said that and then u said that it was too far to drive.
HolCOmb: it is 3 hours, babe.
Eversole: i get ... no worries
HolCOmb: and no definite place to stay the night
Eversole: get a room ... i could tell my mom that i was staying the night with a friend.
Holoomb: thats a great idea
Holcomb: except im broke.
Eversole: yeah yeah ... another excuse ... its cool
Holoomb: my boy isnt in town
Holoomb: too broke for a hotel room
Eversole: ok ... then we r out of luck then
Holoomb: try another time?
Eversole: yeah and u will come up with another excuse.
In reviewing the record in the light most favorable to the State, we note the following additional exchanges. On April 2, 2010, the two exchanged the following messages:
Holcomb: old enough for guys to come see you.
1 sEversole: well yeah.
Holoomb: too bad im not closer.
Eversole: yep.
HolCOmb: sorry.
On June 4, 2010, the two also exchanged the following messages:
Holcomb: come up there an bang you all night? ? ?
Eversole: how long would it take u to get here ... lol
Holcomb: it would take forever.
Eversole: wow. ... k ... thats far
Holoomb: i know
Eversole: ... how much does it cost for a room ... .i got a lil money ... damn u
Holcomb: depends on the place
Eversole: i got like 65 dollars....
Eversole: u think that would be enough
Holcomb: prolly
Eversole: k
Holcomb: ok i gotta go eat
On June 10, 2010, the two also exchanged the following messages:
[ 9H0LCOMB: if you lived any closer, we’d get together tonight
Eversole: mmm that would be fricking nice
The State asserts that the discussions described supra serve as substantial evidence to support that Holcomb engaged “in an effort to arrange a meeting” with Eversole and satisfies the statutory requirement of acting “in an effort to arrange a meeting.” We disagree. These passages do not support that Holcomb made a determined attempt to arrange a meeting with Eversole. A review of the record demonstrates a lack of substantial evidence to support that Holcomb attempted to plan or arrange a meeting with Ever-sole. This court must strictly construe statutes in favor of the defendant, and the record is simply absent substantial evi dence to support that Holcomb acted in an effort to arrange a meeting with a person he believed to be fifteen years old. Although Holcomb’s messages pose hypo-theticals, they do not demonstrate that he made a determined attempt to plan to meet Eversole. In fact, the record demonstrates that Holcomb declined Ever-sole’s request to meet several times. We hold, therefore, that there was not substantial evidence to find that Holcomb’s conduct satisfied the statutory requirements. Thus, the circuit court erred in denying Holcomb’s motion for |indirected verdict.
Accordingly, Holcomb’s conviction and sentence are reversed and dismissed. Because we have reversed and dismissed on Holcomb’s first point, we do not reach his remaining point on appeal.
Reversed and dismissed.
HANNAH, C.J., and CORBIN and DANIELSON, JJ„ dissent.
. See, e.g., Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257; Todd v. State, 2012 Ark. App. 626, 425 S.W.3d 25; Tipton v. State, 2011 Ark. App. 166, 2011 WL 714940; Kelley v. State, 103 Ark.App. 110, 286 S.W.3d 746 (2008); Gikonyo v. State, 102 Ark.App. 223, 283 S.W.3d 631 (2008).
. The dissent states that “[t]he majority appears to agree with Holcomb’s assertion that the State failed to prove that he had made an effort to arrange a meeting with Amanda because, during his conversations with her, he was only playing a game and had no intention on ever meeting her[J” This is incorrect. We do not refer to Holcomb's intent. Rather, we review the evidence in the light most favorable to the State and conclude that there is not substantial evidence to support the State's assertion that Holcomb acted "in an effort to arrange a meeting” as required by the statute. Additionally, there is no question as to credibility, as the dissent asserts. Instead, the exchanges between Holcomb and Eversole are precisely reproduced in the record and are undisputed. While those exchanges are undoubtably reprehensible, they simply fail to prove that Holcomb acted "in an effort to arrange a meeting.” | [
48,
110,
-116,
-68,
12,
33,
50,
-74,
18,
-29,
-30,
-45,
109,
-62,
16,
115,
-101,
33,
81,
105,
-43,
-77,
7,
-32,
-78,
-5,
-101,
-41,
-77,
-37,
-92,
-4,
72,
112,
-54,
-59,
100,
78,
-57,
92,
-118,
-122,
-101,
-16,
82,
-61,
36,
47,
26,
15,
37,
-106,
-13,
46,
26,
67,
105,
58,
89,
-67,
66,
19,
-38,
21,
-18,
54,
-93,
36,
-103,
17,
-8,
46,
-40,
57,
0,
-8,
119,
-122,
-126,
-12,
79,
-103,
12,
96,
98,
5,
-120,
-57,
-83,
8,
35,
127,
-65,
-89,
-104,
9,
73,
111,
-74,
29,
118,
16,
-82,
-22,
115,
-52,
17,
108,
39,
-114,
-76,
-105,
111,
56,
-44,
50,
-29,
55,
80,
117,
-49,
-62,
87,
-59,
59,
-37,
-122,
-9
] |
COURTNEY HUDSON GOODSON, Associate Justice.
|, This court granted appellant Donnie R. Robinson’s petition for review from a court of appeals’ decision affirming the circuit court’s denial of his motion to suppress evidence. For reversal, Robinson argues that the circuit court erred in denying his motion to suppress because a cracked lens on a taillight, causing a vehicle to display both white light and red light, is not sufficient to create probable cause to initiate a traffic stop. We affirm.
The facts underlying Robinson’s arrest are undisputed. After a traffic stop, Trooper David Outlaw of the Arkansas State Police arrested Robinson and charged him with driving while intoxicated (DWI), refusing to submit to a chemical test, having a broken windshield, and having a broken taillight. He was convicted in district court of DWI, refusal to submit, having a broken windshield, and having defective equipment. He appealed to the circuit court and filed a motion to suppress, alleging that there was no | ^probable cause for the initial traffic stop and requesting that the court suppress evidence obtained as a result of the stop.
During a hearing on Robinson’s motion to suppress, Trooper Outlaw testified that while traveling west on Highway 278, he encountered Robinson’s Ford pickup truck. According to Trooper Outlaw, he observed that the passenger taillight was busted, so he stopped Robinson for that offense. Trooper Outlaw testified that, while he could not remember the exact statute that governed taillights, he was aware of a statute that addressed defective taillights. During cross-examination, Trooper Outlaw agreed that Robinson’s taillight showed both white and red light and “part wasn’t broken.”
The circuit court denied Robinson’s motion to suppress, finding that Trooper Outlaw had cause to believe that Robinson had committed a traffic offense in violation of Arkansas Code Annotated sections 27-36-215 and -216 and, thus, there was reasonable cause for the traffic stop. After a trial, a jury convicted Robinson of refusal to submit to a chemical test, but found him not guilty of DWI. The circuit court dismissed the broken-windshield and defective-equipment charges. The court sentenced Robinson to twelve months’ suspended imposition of sentence. On appeal, Robinson challenges the circuit court’s conclusion that Trooper Outlaw had probable cause to stop his vehicle. Specifically, Robinson maintains that because there is no Arkansas statute prohibiting a cracked taillight, Trooper Outlaw did not have probable cause to stop his vehicle.
On a petition for review, this court reviews the case as if the appeal had originally been filed in this court. Thompson v. State, 342 Ark. 365, 368, 28 S.W.3d 290, 292 (2000). Our standard of review for a trial court’s decision to grant or deny a motion to suppress | ..¡requires us to make an independent determination based on the totality of the circumstances, to review findings of historical facts for clear error, and to determine whether those facts give rise to reasonable suspicion or probable cause, while giving due weight to inferences drawn by the trial court. Holsombach v. State, 368 Ark. 415, 421, 246 S.W.3d 871, 876 (2007).
The issue before this court is whether a partially broken taillight that displays both white light and red light creates probable cause to initiate a traffic stop. Arkansas Code Annotated sections 27-36-215 and 27-86-216 (Repl.2008) set out the requirements for taillights, brake lights, and signal lights in Arkansas. Specifically, section 27-36-215 requires any motor vehicle registered in this state and manufactured or assembled after June 11, 1959, to be equipped with at least two (2) tail lamps mounted on the rear which, when lighted as required, “shall emit a red light plainly visible from a distance of five hundred feet (500’) to the rear.” Ark.Code Ann. § 27-36-215(a)(l)-(3). This statute does not contemplate a taillight that displays a white light in addition to a red light. Moreover, section 27-36-216 provides that no stop lamp or other signal lamp shall project a glaring light. Ark.Code Ann. § 27-36-216(e).
Apart from the requirements of sections 27-36-215 and 27-36-216, this court has a long line of precedent affirming that a defective taillight or brake light is sufficient to support a finding of probable cause to initiate a traffic stop. Malone v. State, 364 Ark. 256, 217 S.W.3d 810 (2005) (holding that there was nothing illegal about the initial traffic stop, which was based on a defective taillight); Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004) (holding that there was nothing inherently unconstitutional or invalid about the | ¿initial traffic stop where the officer observed that the left taillight and brake light of the appellant’s vehicle was not functioning, in violation of Ark.Code Ann. § 27-36-216(a) & (b)); State v. Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003) (holding that a pretextual traffic stop of appellant, whom the police officer suspected of engaging in illegal drug activity, on the basis that appellant had a broken brake light, did not violate our constitution’s prohibition against unreasonable searches and seizures); Burris v. State, 330 Ark. 66, 72, 954 S.W.2d 209, 212 (1997) (holding that probable cause to initiate a traffic stop exists where the lens of a trailer’s left taillight was partially broken causing it to shine white instead of red); Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977) (holding that a traffic stop was lawful and justified when the officer observed that one of the four brake lights on the appellant’s vehicle was not operative) ; Hileman v. State, 259 Ark. 567, 535 S.W.2d 56 (1976) (holding that it cannot be said that the officer stopped the vehicle without probable cause when brake lights were not working).
| .^Furthermore, we have repeatedly held that the degree of proof sufficient to sustain a finding of probable cause is less than that required to sustain a criminal conviction. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996). In order to make a valid traffic stop, a police officer must have probable cause to believe that a traffic law has been violated. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Probable cause is defined as “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Burks v. State, 362 Ark. 558, 559-60, 210 S.W.3d 62, 64 (2005). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). Whether the defendant is actually guilty of the traffic violation is for a jury or a court to decide, and not an officer on the scene. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998) (citing Burris, 330 Ark. 66, 954 S.W.2d 209 (1997)). Thus, Robinson’s argument that Trooper Outlaw could not have developed probable cause to initiate a traffic stop because Robinson did not violate any statute is unavailing.
Trooper Outlaw testified that the red lens on Robinson’s taillight was broken in such a way that it emitted both white light and red light. Consequently, a person of treasonable caution could believe that Robinson had violated either the red-light requirements set out in section 27-36-215 or the prohibition against glaring lights found in section 27-36-216. However, this court need not decide whether such a crack results in a violation of one or either of these statutes because probable cause requires only that facts or circumstances within a police officer’s knowledge be sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Travis, 331 Ark. 7, 959 S.W.2d 32. In the present case, the fact that Robinson’s taillight was visibly broken is sufficient probable cause to believe that he may have committed a traffic violation. Thus, the circuit court correctly concluded that there was probable cause for Officer Outlaw to stop Robinson.
Affirmed; court of appeals’ opinion vacated.
DANIELSON, J., concurs.
HANNAH, C.J., and HART, J., dissent.
. The dissent makes a fundamental error in stating that there is no probable cause in the instant case because Robinson did not actually violate section 27-36-215 or section 27-36-216. The probable cause inquiry does not require that this court find that the defendant is guilty of the underlying offense for which he was charged. Whether Robinson is actually guilty of violating either of these statutes is simply not at issue in a probable cause hearing. While we acknowledge that criminal statutes are construed strictly, with doubts resolved in favor of the defendant, this court has never held, and does not hold today, that a defendant must actually be guilty of violating a traffic law before an officer can develop probable cause to initiate a traffic stop. The question of guilt is one for the juiy or a court, not the officer. A probable-cause inquiry that requires an officer to have the foresight to know whether a driver will ultimately be convicted of a traffic offense before pulling that driver over is untenable. | [
48,
-22,
-16,
-100,
11,
1,
18,
46,
-47,
-127,
-19,
19,
-91,
-62,
20,
59,
-18,
95,
117,
89,
-34,
-73,
38,
0,
-78,
-45,
-62,
87,
51,
-53,
108,
-78,
94,
48,
-54,
-43,
36,
72,
-91,
88,
-58,
7,
-119,
97,
80,
88,
44,
42,
2,
15,
113,
-105,
-64,
46,
24,
-49,
-23,
108,
-53,
-91,
89,
112,
-40,
29,
-113,
4,
51,
52,
27,
5,
82,
59,
-36,
49,
65,
-8,
115,
-94,
-120,
84,
105,
-103,
8,
36,
102,
33,
61,
-115,
-84,
-120,
14,
59,
-113,
-74,
-102,
73,
75,
45,
-105,
-105,
110,
50,
14,
-18,
123,
69,
81,
104,
38,
-49,
48,
-127,
109,
116,
-108,
115,
-21,
103,
48,
100,
-59,
-10,
84,
7,
81,
27,
-50,
-106
] |
JOHN MAUZY PITTMAN, Judge.
_JjIn this divorce case, Larry Cooper appeals from the Pulaski County Circuit Court’s entry of two qualified domestic relations orders (QDRO) dividing his rail road-retirement benefits with his wife, ap-pellee Annette Cooper. We affirm.
The parties were married in 1963 and separated in September 2011, when appel-lee filed for divorce. At the time of the divorce, the parties owned a marital home in Sherwood that was unencumbered and valued at $275,000. Appellee accepted appellant’s offer at trial to buy her interest in the home for $130,000. The parties also owned three Scottrade accounts valued at $869,000. Before the temporary hearing, they had an account containing $135,000 and a $100,043 certificate of deposit at Regions Bank; both parties made withdrawals from Regions before trial. They also owned vehicles, a credit-union account, and life-insurance policies. During the marriage, appellant worked at Union Pacific Railroad and Missouri-Kansas-Texas Railroad. He retired before the divorce and began receiving | ¡¡retirement benefits from both (administered by Union Pacific and distributed in one payment each month).
The circuit court entered a divorce decree on May 30, 2012, granting appellee a divorce. It accepted the parties’ agreement concerning the marital home; ordered the Scottrade accounts to be divided equally; ordered appellant to pay appellee $10,135.50 to equalize the parties’ withdrawals from Regions Bank; awarded the $300 in the credit-union account to appel-lee (with appellant’s consent); equalized the values of the vehicles it awarded to the parties by directing appellee to pay appellant $7,000; ruled that each party would retain ownership of his or her life-insurance policy; distributed the remaining items of personal property; and directed appellant to pay alimony to appellee in the amount of $1,000 per month for twelve months.
The circuit court addressed the retirement accounts as follows:
26. Retirement accounts. Both parties are retired. [Appellant] was an employee of Union Pacific Railroad and receives a pension from Union Pacific Railroad as well as one from the Missouri-Kansas-Texas Railroad.
27. The Court orders that the parties divide, pursuant to Hisquierdo v. Hisquierdo, 439 U.S. 573 [572], 99 S.Ct. 802 [59 L.Ed.2d 1] (1979), the Defendant’s Tier 2 benefits. The [Appellant] worked at Union Pacific and Missouri-Kansas-Texas Railroad during the parties’ marriage and these benefits should be divided between the parties based on the number of years worked at the railroad and the number years of marriage. It is the court’s understanding that all of [appellant’s] employment with the railroad occurred during the parties’ marriage.
Appellee filed a motion for reconsideration or to amend the final decree on June 15, 2012. She asked the court to direct appellant to pay her for her share in the marital home |sand the Regions account within thirty days and to divide the Union Pacific pension equally and/or to increase alimony.
|,The circuit court granted the motion for reconsideration on July 16, 2012. It directed appellant to pay appellee $140,135.50 within thirty days and stated that appellee had correctly pointed out that it had failed to divide appellant’s Union Pacific pension. The court also stated: “The Court orders that this pension be divided equally between the parties and that any documents necessary to effectuate the division of this asset be prepared by [appellee’s] attorney with cooperation from [appellant] and his attorney. In all other respects, the Divorce Decree shall be affirmed.”
On September 26, 2012, using the language provided by Union Pacific, the court entered two QDROs (for Union Pacific and for Missouri-Kansas-Texas) that stated that appellee was the “alternate payee.” It also provided that following the alternate payee’s death, any payments that otherwise would be made to the alternate payee if the alternate payee had survived would be made to Tim Cooper (the parties’ adult child). On October 5, 2012, appellant filed a motion for reconsideration of the QDROs, asserting that they were |finot qualified under the Employee Retirement Income Security Act (ERISA) because of the inclusion of a third party, Tim Cooper. He asserted that Tim was not an “alternate payee” within the statute’s meaning.
Appellant filed a second motion for reconsideration of the QDRO on the Missouri-Kansas-Texas Railroad pension on October 12, 2012. He stated:
6. That no Court Order exist [sic] which Divides [appellant’s] interest in the Missouri-Kansas-Texas Pension Plan to support entry of a Qualified Domestic Relations Order giving [appel-lee] any portion of those proceeds.
7. [Appellant] moves this Court to Reconsider the Qualified Domestic Relations Order issued in this case dividing an asset of [appellant’s] which was not divided in the parties Decree or in it’s [sic] Order for Reconsideration filed July 16, 2012.
8. That without a provision for its division, the Qualified Domestic Relations Order pertaining to the Missouri-Kansas-Texas Pension Plan should be withdrawn and vacated.
On November 5, 2012, the trial court denied appellant’s motions for reconsideration, stating:
8. The Supreme Court case, Boggs v. Boggs, 520 U.S. 833 [117 S.Ct. 1754, 138 L.Ed.2d 45] (1997) [cited by appellant], is inapplicable to the matter at issue here. In Boggs, the Court was addressing whether or not benefits of a nonparticipant spouse could be passed by testamentary devise. There was no QDRO at issue in Boggs; therefore, the Court did not rule on the issue of an inclusion of a third-party as an alternate payee in a QDRO.
9. However, the Court in Boggs did discuss QDROs in dicta. In the opinion, the Court defines a QDRO as “a limited exception to the pension plan anti-alienation provision and allows courts to recognize a nonparticipant spouse’s community property interest in pension plans under specific circumstances.” Id. at 839 [117 S.Ct. 1754]. The Court also recognizes that QDROs “are exempt from both the pension plan anti-alienation provision ... and ERISA’s general preemption clause.” Id. at 846 [117 S.Ct. 1754]. This Court’s reading of the Boggs opinion does not support the proposition that [appellee] would be unable to pass her interest in the pension plans to a third-party of her choosing.
RIO. [Appellant] also relies on a case decided by the state appellate court in California, In re Marriage of Shelstead, 66 Cal.App.4th 893 [78 Cal.Rptr.2d 365] (1998). While the court in Shelstead invalidated a devise to a third-party that was made in a QDRO, the court made the following statement: “We stress the narrowness of our decision. Our holding concerns only the order before us today. We do not decide ... that any testamentary devise contained in a QDRO is invalid.” Id. at 904-905 [78 Cal.Rptr.2d 365].
11. Most significantly, the decision in Shelstead is in no way binding on this Court, and the California court’s interpretation of ERISA is not a primary source of law which must be followed by this Court.
In this order, the circuit court also denied appellant’s second motion for reconsideration of the QDRO concerning the Missouri-Kansas-Texas Railroad. It rejected appellant’s claim that it had not previously ordered the division of that pension, stating:
14. However, as stated above, the Decree, entered on May 30, 2012, specifically stated that [appellant] receives a pension from Union Pacific and from Missouri-Kansas-Texas and that those benefits were to be divided equally among the parties. While it is correct that the Missouri-Kansas-Texas Railroad pension is not specifically named in the Order of Reconsideration, filed on July 16, 2012, the Order of Reconsideration stated that, “[i]n all other respects, the Divorce Decree shall be affirmed.”
15. Further, it is the understanding of this Court that both pension plans were earned during the marriage and that [appellant] receives the payments from both pensions in a single payment. Based on these facts, it is unreasonable that the pensions would be divided differently.
16. Therefore, this Court has previously ordered the division of the Missouri-Kansas-Texas pension plan, and as such, the QDRO related to that plan was proper, and [appellant’s] Motion is denied.
Appellant then pursued this appeal.
We review traditional equity cases on both factual and legal questions de novo on the record, but will not reverse a finding of fact by the trial court unless it is clearly erroneous. Allen v. Allen, 99 Ark.App. 292, 259 S.W.3d 480 (2007). We do not defer to the trial 17court’s determinations of law. Id. When the issues on appeal do not involve factual questions but rather the application of a legal doctrine, we determine whether the appellee was entitled to judgment as a matter of law. Spears v. ReconTrust Co., N.A., 2013 Ark. App. 272, 2013 WL 1760516.
Appellant argues in his first point that Tim’s designation as the recipient of appellee’s benefits if she predeceases appellant prevents the QDROs from being in compliance with ERISA’s requirements. ERISA is a comprehensive federal statutory scheme designed to protect the interests of employees and their beneficiaries in employee benefit plans. Boggs v. Boggs, 520 U.S. 833, 845, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997). It contains a preemption clause providing that its provisions preempt any state law relating to an employee-benefit plan. 29 U.S.C. § 1144(a) (2006). ERISA also contains an anti-alienation or spendthrift provision, stating, “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” 29 U.S.C. § 1056(d)(1) (2006). Congress included the spendthrift provision to protect employees and their dependents from the participant’s financial improvidence and to ensure benefits were available upon retirement. See Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365, 376, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990).
Soon after ERISA’s enactment, courts struggled with whether the transfer of pension benefits incident to a divorce was a prohibited assignment or alienation. To address this issue, Congress amended ERISA in the Retirement Equity Act of 1984(REA). Ablamis v. Roper, 937 F.2d 1450 (9th Cir.1991). Congress sought to protect the rights of nonemployee spouses and dependents by allowing state Courts to make equitable divisions of property in |8a divorce or dissolution and provision for support of dependents. Id. It did not permit all interspousal transfers of pension benefits upon divorce, however. It declared that the transfers of pension benefits between spouses in a divorce context were prohibited alienations within the meaning of the anti-alienation provision, but set forth a limited exception to the rule if the order is determined to be a QDRO. 29 U.S.C. § 1056(d)(3)(A). Thus, a court may divide spousal rights in pension benefits through the mechanism of a QDRO and award the nonemployee spouse her appropriate share of those benefits if the domestic-relations order is a “qualified” one as defined in the REA. Consistent with this language, Congress added an exception to the preemption provision, stating that it would not apply to QDROs. 29 U.S.C. § 1144(b)(7).
A QDRO is any judgment, decree, or order made pursuant to a state domestic-relations law that (1) “creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan,” and (2) “relates to the provision of child support, alimony pay ments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant.” 29 U.S.C. § 1056(d)(3)(B). “Alternate payee” is defined as “any spouse, former spouse, child, or other dependent of a participant.” 29 U.S.C. § 1066(d)(3)(E).
Appellant contends that Tim is not an “alternate payee” because he is an adult child and is no longer dependent upon appellant. He states that ERISA does not define “child”; therefore, the IRS definition, which “clearly defines child as under the age of 19 or under |3the age of 24 if they’re a full-time student,” applies. He adds: “It is clear from the wording of the statute that only dependents of the participant would be considered alternate payee and therefore be eligible to receive any benefit from the plan.” Other than referring to his counsel’s argument at the October 31, 2012 hearing, appellant cites no authority for these assertions. We will not consider an argument on appeal that has no citation to authority or convincing legal argument, nor will we research or develop an argument for an appellant. Recon-Trust, supra.
It is true that Congress did not intend to classify state court orders effecting testamentary transfers as QDROs. In Boggs, supra, the United States Supreme Court held that ERISA preempts state law permitting a predeceasing nonemployee spouse to transfer undistributed pension benefits by testamentary instrument. 520 U.S. at 842-54, 117 S.Ct. 1754. Unlike the case before this court, however, Boggs did not concern a domestic-relations order. We agree with the trial court’s conclusion that the California Court of Appeals’s decision in Shelstead v. Shelstead, 66 Cal.App.4th 893, 78 Cal.Rptr.2d 365 (1998), is not on point because the domestic-relations order in that case simply gave the non-employee spouse the right to name a “successor in interest.” Id. at 366. In the absence of any authority to support appellant’s argument, we affirm on this point.
In his second point, appellant contends that the QDRO for the Missouri-Kansas-Texas Railroad was an impermissible modification of the divorce decree because it was entered more than ninety days after the divorce decree and because Arkansas Code Annotated section 9-12-315 (Repl.2009) does not authorize a division of marital property 110after the divorce decree has been entered, in the absence of fraud or other grounds for relief from the original judgment. We disagree.
Arkansas Rule of Civil Procedure 60(a) provides that a court may modify or vacate a judgment, order, or decree within ninety days of its filing “[t]o correct errors or mistakes or to prevent the miscarriage of justice.” Under subsection (b), it may correct clerical mistakes at any time. Subsection (c) authorizes the setting aside of a judgment after ninety days for circumstances not applicable here.
The trial court’s entry of a QDRO past the ninety-day deadline found in Rule 60(a) was not an improper modification of the decree in this case. Trial courts have an inherent power to enter orders correcting their judgments where necessary to make them speak the truth and reflect actions accurately. Harrison v. Bradford, 9 Ark.App. 156, 655 S.W.2d 466 (1983). However, this power is confined to correction of the record to make it conform to the action that was actually taken at the time, and does not permit a decree or order to be modified to provide for action that the court, in retrospect, should have taken but which, in fact, did not take. Jones v. Jones, 26 Ark.App. 1, 759 S.W.2d 42 (1988).
In this case, the trial court ruled that in the divorce decree, it had attempted to make an equal division of all of appellant’s retirement benefits. It is clear to us that the QDRO did not alter the decree but, instead, interpreted it and clarified the meaning of the provision dividing appellant’s retirement benefits. Entering an order to interpret the decree and to enforce its terms falls squarely within the trial court’s authority to make the record speak the 1 n truth. Hapney v. Hapney, 37 Ark.App. 100, 824 S.W.2d 408 (1992); Ford v. Ford, 30 Ark.App. 147, 783 S.W.2d 879 (1990). Accordingly, we reject this argument.
Affirmed.
HARRISON and WYNNE, JJ., agree.
. Appellee stated:
6. Prior to the Divorce Decree [appellee] was receiving $1,374.00 per month in Tier 1 benefits and $543.41 per month from her Tier 2 benefits for a total of $1,917.41 per month. [Appellant] was receiving $2,257.00 per month in Tier 1 benefits and $1,250.62 per month in Tier 2 benefits. In addition, [appellant] receives a pension from Union Pacific in the amount of $2,059.41 per month. [Appellant’s] monthly income totaled approximately $5,567.03 per month.
7. After the Divorce Decree was entered the [appellant’s] Tier 1 benefits were reduced to approximately $315.00 per month and she lost dll of her Tier 2 benefits. [Appellant], on the other hand, kept all of his Tier 1 benefits totaling $2,257.00 and the Court ordered that [Appellant's] Tier 2 benefits be divided evenly, which equals an amount of $625.31 per person per month. The Court acknowledged [appellant] was receiving a pension from the Union Pacific railroad and the parties testified at trial that 100% of the pension was earned during the marriage. However, the Court did not address the pension further or provide an award of [appellee’s] interest in [appellant’s] pension, meaning that [appellant] kept all of his pension benefits totaling $2,059.41 per month.
8. Under this Order [appellee's] income is reduced to $315.00 (the remainder of her Tier 1 benefits) plus $625.31 (half of [appellant's] Tier 2 benefits) for a total of approximately $940.31 per month. [Appellant’s] income remains at $2,257.00 (the total amount of his Tier 1 benefits) plus $625.31 (half of [appellant’s] Tier 2 benefits) plus $2,059.41 (the undivided amount of his Union Pacific pension) for a total of approximately $4,941.72 per month.
9. Based on [appellee’s] approximate income of $940.31 per month and [appellant’s] approximate income of $4,941.72 per month, the Court has awarded [appellant] a monthly income that is over 5 times what [appellee] is receiving per month. Additionally, the Court only awarded alimony in the amount $1,000.00 per month for a limited 12 months with the burden to prove that she requires additional alimony at the expiration of the 12 months.
10. As noted by the Court, the parties were married for 48 years and [appellee] suffers from COPD, emphysema and osteoporosis. This amount of monthly income that has currently been awarded will not be sufficient for [appellee] to continue and maintain her current lifestyle in her current condition, especially after the termination of alimony when [appellee] will return to only receiving an income of $940.31 per month compared to the $4,941.72 per month that [appellant] will continue to receive.
11. Moreover, as there is no dispute that the pension is vested and was earned during the course of the marriage, it is appropriate that the Union Pacific pension be divided equally between the parties. See Skelton v. Skelton, 339 Ark. 227, 231, 5 S.W.3d 2 (Ark.1999) (finding that Arkansas follows the well-established rule that retirement benefits earned during marriage are considered marital property subject to division. See Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); Meinholz v. Meinholz, 283 Ark. 509, 678 S.W.2d 348 (1984)). | [
80,
108,
-67,
-36,
-104,
-80,
42,
-72,
122,
-56,
37,
83,
-21,
-22,
80,
43,
-30,
111,
97,
100,
-11,
-77,
87,
-64,
90,
-77,
-7,
-51,
-92,
92,
-92,
-41,
93,
114,
-120,
85,
70,
64,
-57,
24,
-114,
-128,
-117,
96,
-39,
-60,
52,
-25,
2,
14,
16,
-114,
-14,
44,
29,
98,
72,
46,
-33,
-7,
-48,
-88,
-118,
4,
127,
7,
33,
4,
-36,
38,
-40,
10,
-104,
56,
0,
-87,
114,
38,
-106,
116,
106,
-97,
5,
98,
114,
3,
17,
-17,
-124,
-120,
14,
-70,
31,
-121,
-78,
-103,
83,
10,
-74,
28,
68,
117,
11,
-4,
104,
4,
93,
108,
-127,
-50,
-106,
-109,
-116,
116,
-100,
-101,
-1,
-91,
48,
97,
-53,
-94,
79,
86,
59,
-101,
-49,
-90
] |
JIM HANNAH, Chief Justice.
| Appellant, Willie Author McDaniels, appeals from the denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. Appellant was convicted of two counts of rape of his step-granddaughter, Q.A., and sentenced to a total of 480 months in the Arkansas Department of Correction. The court of appeals affirmed on direct appeal. See McDaniels v. State, 2012 Ark. App. 219, 2012 WL 1021529. Appellant then filed a petition for postconviction relief, which the circuit court denied without an evidentiary hearing. On appeal, Appellant contends that the circuit court clearly erred in rejecting without a hearing his claims that (1) trial counsel was ineffective for failing to object to defective charging language and jury instructions, and (2) trial counsel was ineffective for failing to adequately investigate and utilize evidence of a third party’s semen found on the victim’s pants. We affirm the circuit court’s order.
On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this Rcourt will not reverse the cir cuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id., 402 S.W.3d at 74.
The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In asserting ineffective assistance of counsel under Strickland, the petitioner must first show that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, at 4, 385 S.W.3d 228, 232. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id., 385 S.W.3d at 232. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id., 385 5.W.3d at 232. Second, the petitioner must show that counsel’s deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id., 385 S.W.3d at 232. In doing so, the petitioner 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, which means that the decision reached would have been different absent the errors. Id., 385 S.W.3d at 232. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id., 385 S.W.3d at 232-33. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from ^breakdown in the adversarial process that renders the result unreliable. Id., 385 S.W.3d at 233.
In his first point on appeal, Appellant contends that the circuit court clearly erred in rejecting without a hearing his claim that trial counsel was ineffective for failing to object to defective charging language and jury instructions. Count Two of the felony information charged Appellant with committing rape, in violation of Arkansas Code Annotated section 5-14-103, and alleged that on or about June 23, 2007, through October 17, 2008, Appellant “unlawfully, feloniously, did engage in sexual intercourse or deviate sexual activity with Q.A. ... who was less than eighteen (18) years of age, and the actor was the victim’s guardian, to wit: step-grandparent, against the peace and dignity of the State of Arkansas.” At trial, the circuit court instructed the jury that, to sustain the charge of rape as to Count Two, the State had to prove beyond a reasonable doubt (1) that Appellant engaged in sexual intercourse or deviate sexual activity with Q.A.; (2) that Q.A. was less than eighteen years old at the time of the offense; and (3) that Appellant was Q.A.’s guardian or step-grandparent. Appellant alleged in his petition for postconviction relief that trial counsel was ineffective for failing to object to the language in the charging document because the definition of “guardian” found in Arkansas Code Annotated section 5-14-101 does not specifically include a step-grandparent. He also claimed that there was insufficient evidence presented at trial to demonstrate that he was Q.A.’s guardian. Appellant contended that the felony information 14showed that he was charged pursuant to the “guardian” subsection of the rape statute and that, “[o]nce the trial commenced without amendment to the information, any evidence or references accusing the Defendant of rape for being in the position of ‘step-grandparent’ should have been objected to by trial counsel.” He further contended that trial counsel was ineffective for failing to object to the language in the jury instruction “making reference to the Defendant as ‘step-grandparent.’ ”
The circuit court found that trial counsel committed error by failing to object to the language of Count Two. Nevertheless, the circuit court found that under Arkansas Code Annotated section 5-14-103, Appellant could be convicted of rape for engaging in sexual intercourse or deviate sexual activity with Q.A. if he was either Q.A.’s guardian or her step-grandparent, and the circuit court found that the evidence at trial demonstrated that Appellant met the definition of both. The circuit court further found that, had trial counsel objected to the use of the term “guardian” in Count Two of the felony information, “based solely on the defendant’s status as step-grandparent, the information could have been amended at any point prior to the submission of the case to the jury to reflect that he was being charged as a step-grandparent and the jury so instructed, as there would have been no change in the nature or degree of the charge.” Accordingly, the circuit court found that Appellant had not “suffered such prejudice as a result of his attorney’s error as to warrant relief’ pursuant to Rule 37.
|sA person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than eighteen years of age and the actor is the victim’s guardian, see Ark. Code Ann. § 5-14-103(a)(4)(A)(i) (Repl. 2006), or step-grandparent, see id. § 5-14-103 (a)(4) (A) (ii). A “guardian” is defined as “a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor.” Id. § 5-14-101(3) (Repl.2006) (emphasis added). The State contends that, in this case, although it is not entirely clear from the felony information whether the State intended to charge Appellant with rape under part (i) or part (ii) of Arkansas Code Annotated section 5-14-103(a)(4)(A), the circuit court correctly found that any error by trial counsel in failing to object to the charging language did not prejudice Appellant in light of evidence presented by the State that Appellant was both Q.A.’s guardian and her step-grandparent.
Appellant did not contest the fact that he was Q.A.’s step-grandfather. He testified at trial that he had been married to Q.A.’s grandmother, Gloria McDaniels, for thirty-three years. Q.A. testified at trial that Appellant was her step-grandfather, and that she called him “Paw Paw” while growing up. As to the allegation that Appellant was also Q.A.’s guardian, there was testimony at trial from Q.A., Q.A.’s relatives, and Appellant himself that Q.A. had spent a great deal of time at Appellant’s home from the time she was a young child. Yolanda Allen, Appellant’s stepdaughter, testified that Q.A. was around Appellant “from birth,” because she was the “first born grandchild,” and that Q.A. went places -with Appellant and rode in the car with him “all the time.” Bridget White, Q.A.’s mother, testified that Q.Á. | ñwent on vacation with Appellant and Q.A.’s grandmother to Florida and that when Q.A. moved back to Arkansas from Texas in the summer of 2007, Q.A. often spent the night with them. White also testified that Appellant bought clothes and a cell phone for QA. Q.A. testified that, when she returned from Texas, she lived at both her mother’s house and Appellant’s house, stating that, if she had school the next day, she spent the night with Appellant and her grandmother because Appellant “was like transportation ... [a]nd my mom didn’t have a car at the time, so that’s how we would get back and forth to school.” Q.A. testified that her grandmother would leave for work around 6:00 a.m., and Appellant would walk through the house to make sure everyone else was still sleeping and then he would “come in [my] room ... pull my pants down, ... pull his pants off, and [he’d] take his penis and stick it inside me.” Q.A. stated that Appellant bought her food and clothes, paid her cell-phone bill, and gave her money and told her that, if she told anyone about the rapes, he would “stop me from coming around my granny,” and “he’ll stop doing stuff for me.” Q.A. also said that Appellant told her that if she accused him of rape, nobody would believe her. Q.A.’s grandmother testified that Q.A. was at the McDaniels home “mostly ... on the weekends, and through the summer she was there all the time.” She also stated that, when Q.A.’s mother was working at the state fair, Q.A. spent the night at the McDaniels home during the school week. Q.A.’s grandmother also testified that she and Appellant bought clothes and a cell phone for Q.A., stating that they “pretty much [did] the same thing for” Q.A. that they did for their son, Jacob, who was a year younger than Q.A. Appellant testified that he treated Jacob and Q.A. the same, stating, “I raised ‘em — when I do something for 17one of ‘em, I do for all of ‘em. I wouldn’t do nothing for one if I didn’t do it for all of ‘em ‘cause I didn’t want ‘em thinking that I picked one out of, you know, just picked one and not helping the other one.”
The State contends that, given the evidence presented at trial, Appellant could have been convicted as either a “guardian” or a “step-grandparent.” As previously noted, Appellant did not dispute that he was Q.A.’s step-grandparent. In his petition for postconviction relief, however, Appellant contended that there was insufficient evidence that he was Q.A.’s guardian. The circuit court found that there was testimony at trial from Q.A. and Q.A.’s relatives, including Appellant, that Q.A. had spent a great deal of time at Appellant’s home from the time she was a young child and that this visitation would often include staying over nights and weekends. The circuit court also found that the pattern of staying at Appellant’s residence would, due to its extended nature and repetition, qualify as a “living arrangement” under Arkansas Code Annotated section 5 — 14—101(a)(4)(A)(i), and would have placed Appellant in a position of power or authority over a minor, thus meeting the definition of “guardian.” We conclude that the circuit court did not clearly err in finding that there was sufficient evidence that Appellant was both Q.A.’s guardian and step-grandparent.
We also conclude that the circuit court did not clearly err in finding that even if trial counsel had objected to the language used in the information or in the subsequent jury instruction, the State could have corrected any mistake by amending the information. It is axiomatic that the State is entitled to amend an information at any time prior to the case | «being submitted to the jury as long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. E.g., Rueda v. State, 2012 Ark. 144, at 9, 400 S.W.3d 226, 231. In the instant case, amending the information would not have changed the nature or degree of the crime charged in Count Two because the victim was less than eighteen years old, and Appellant was the victim’s guardian or step-grandparent. Moreover, Appellant has failed to demonstrate that an amendment would have created an unfair surprise or prevented him from preparing an adequate defense. Appellant knew before trial that the State intended to offer evidence that he was Q.A.’s guardian and step-grandparent because the felony information alleged that he was both. See, e.g., Madewell v. State, 290 Ark. 580, 582-83, 720 S.W.2d 913, 914-15 (1986) (holding that trial counsel was not ineffective in failing to object when the information charged appellant with three counts of aggravated robbery, a Class Y felony, but the prosecutor listed the statute for robbery, a Class B felony); Andrews v. State, 265 Ark. 390, 404, 578 S.W.2d 585, 592 (1979) (holding that listing the wrong statutory subsection in the felony information was harmless error when (1) it was apparent that the mistake was a typing error, (2) the trial court correctly stated the substance of the charge when instructing the jury, and (3) there was no showing by the appellant that he was in any way prejudiced by the mistake in the information); Ridgeway v. State, 251 Ark. 157, 158-59, 472 S.W.2d 108, 109 (1971) (rejecting appellant’s argument that there was a | ¡fatal variance between an information and the proof entitling him to a directed verdict when the information charging him with assault with the intent to kill asserted that the assault had been made with a deadly weapon, namely, a knife, but the State’s proof at trial was that appellant shot the victim with a pistol, because appellant did not plead surprise and if appellant had objected, the defect in the information could readily have been corrected). Even assuming that counsel erred in failing to object to the language in the information, Appellant has failed to show that counsel’s error prejudiced the defense to the extent that there is a reasonable probability that, but for counsel’s error, the jury would have had a reasonable doubt respecting his guilt.
In addition, we find no merit in Appellant’s argument that he was entitled to an evidentiary hearing to “explore” whether the State would have amended the charge in response to an objection from trial counsel and because it “may well be discovered that trial counsel was unaware of the defect and would have approached the trial completely differently had trial counsel not have overlooked the error.” This court will not grant an evi-dentiary hearing on an allegation that is not supported by specific facts from which it can be concluded that the petitioner suffered some actual prejudice. E.g., Whitmore v. State, 299 Ark. 55, 66, 771 S.W.2d 266, 271 (1989). To the extent that Appellant argues that a hearing |inshould have been held to bolster the conclusory allegations contained in his petition, the strong presumption in favor of counsel’s effectiveness cannot be overcome by a mere possibility that a hearing might produce evidence to support an allegation contained in a petition for postconviction relief. E.g., Hickey v. State, 2013 Ark. 237, at 7, 428 S.W.3d 446, 453 (per curiam). In sum, the circuit court did not clearly err in rejecting without a hearing Appellant’s claim that trial counsel was ineffective for failing to object to defective charging language and jury instructions.
Appellant next contends that the circuit court clearly erred in rejecting without a hearing his claim that trial counsel was ineffective for failing to adequately investigate and utilize evidence of a third party’s semen found on the victim’s pants. North Little Rock Police Detective Julie Rose testified at trial that she took Q.A.’s initial statement that led to the rape charges against Appellant. Q.A. testified that she thought a pair of ROTC pants she was wearing during one of the assaults might have Appellant’s DNA on them because something that “[cjomes out of him got on the pants on the bed.” Rose testified that a pair of ROTC pants and other clothing were brought to her by Q.A.’s mother. Rose then submitted the clothing to the Arkansas State Crime Laboratory for testing. Forensic serologist Tonia Silas testified that she examined the clothing submitted for testing and that she discovered semen on the ROTC pants. Forensic DNA examiner Mary Simonson compared the DNA from the semen found on the ROTC pants with Appellant’s DNA. Si-monson testified that after she compared the DNA samples, she excluded Appellant as a contributor of the DNA found on the ROTC pants.
Inin his petition for postconviction relief, Appellant contended:
Although trial counsel reached a stipulation to introduce the results of the test, she failed to fully investigate and introduce evidence related to the circumstances related to this discovery which was pivotal to the motivation and the credibility of the alleged victim and an explanation for the victim’s alleged “disclosure” that the Defendant had engaged in sexual intercourse with her.
As this case fell squarely upon the testimony of the alleged victim, her credibility was a pivotal matter. Trial counsel’s failure to fully investigate and introduce evidence on her reasons and motivations and explanation for the semen found upon her pants was ineffective and prejudiced the Defendant by depriving the jury of information relevant to their credibility assessment.
In rejecting this claim, the circuit court made the following findings:
The defendant does not state what use could or should have been made of this evidence by defendant’s trial counsel, other than referencing the victim’s credibility and her “reasons and motivations and explanation for the semen found upon her pants.”
Evidence was put before the jury of the existence of semen found on the victim’s clothing which was not that of the defendant. The allegation that trial counsel was ineffective in her use of this evidence is a conclusory allegation. Furthermore, there is no showing that there was any additional evidence available regarding the circumstances of how the semen got on the pants, or that any such evidence or testimony would have been admissible even had it existed. The determination of what use to make of the evidence and testimony regarding the testing of the ROTC pants was a matter of trial tactics and strategy, and the defendant has not demonstrated ineffective assistance in this regard.
On appeal, Appellant asserts that “[t]he issues of who produced the semen, when it was produced, how it arrived there, and possible lies regarding [it] being [Appellant’s] semen were never probed by trial counsel.” He further asserts that he “was entitled to a hearing on the failure to fully investigate and utilize this information.” When a petitioner alleges ineffective assistance of counsel for failure to perform adequate investigation, he or she must delineate the actual prejudice that arose from the failure to investigate and demonstrate a | ^reasonable probability that the information that would have been uncovered with further investigation could have changed the trial outcome. E.g., Mason v. State, 2013 Ark. 492, at 8, 430 S.W.3d 759, 765. The burden is entirely on the petitioner to provide facts that affirmatively support his or her claims of prejudice; neither conelusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. E.g., Bryant v. State, 2013 Ark. 305, at 9-10, 429 S.W.3d 193, 200-01 (per curiam). In this case, the jury was made aware, through the testimony of Simonson, that the DNA extracted from the semen found on Q.A.’s pants did not match Appellant’s DNA. Appellant fails to delineate the actual prejudice that arose as a result of trial counsel’s alleged ineffectiveness, and his bare assertion of prejudice is a conelusory allegation that cannot form the basis of relief. E.g., Eastin v. State, 2010 Ark. 275, at 4, 2010 WL 2210924.
Finally, Appellant has failed to demonstrate that he was entitled to a hearing on his failure-to-investigate claim. There is no requirement that the court grant an evidentiary hearing on an allegation other than one of specific facts from which it can be concluded that the petitioner suffered some actual prejudice. E.g., Preston v. State, 306 Ark. 408, 410, 815 S.W.2d 389, 390 (1991). Furthermore, the supporting facts must appear in the petition, and the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a hearing is held. Id., 815 S.W.2d at 390. Postconviction relief is not available to the petitioner who wishes to have a hearing in the hopes of finding some ground for relief. E.g., Hayes v. State, 280 Ark. 509, 509-C, 660 S.W.2d 648, 651 (1983). The circuit court did not clearly | iserr in rejecting without a hearing Appellant’s claim that trial counsel was ineffective for failing to adequately investigate and utilize evidence of a third party’s semen found on the victim’s pants.
Affirmed.
. The felony information cites the rape statute, Arkansas Code Annotated section 5-14- 103, but it does not cite a specific subsection of that statute.
. Pursuant to Arkansas Code Annotated section 5-14-103(a)(4)(A), a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than eighteen years of age and the actor is the victim's (i) guardian, (ii) uncle, aunt, grandparent, step-grandparent, or grandparent by adoption; (iii) brother or sister of the whole or half blood or by adoption; or (iv) nephew, niece, or first cousin.
. We note that Appellant also contends that trial counsel was ineffective in failing to object to the jury’s consideration of evidence that he was Q.A.'s step-grandparent, "despite the fact that he could not be guilty of rape as a step-grandparent under the provision he was charged with.” Although raised in Appellant's petition, the circuit court’s order denying relief does not contain a ruling on this claim. It is the appellant's obligation to obtain a ruling on any omitted issues in order to preserve those issues for appeal. E.g., Beshears v. State, 340 Ark. 70, 72-73, 8 S.W.3d 32, 34 (2000). | [
-80,
-24,
-17,
-84,
-54,
-63,
66,
60,
67,
-125,
117,
83,
47,
-10,
8,
123,
-29,
123,
85,
-31,
-46,
-73,
19,
97,
-46,
-14,
57,
-41,
-73,
-54,
-27,
63,
76,
98,
-30,
-47,
70,
-54,
-1,
80,
-114,
3,
-5,
-20,
80,
9,
48,
110,
-106,
15,
49,
-98,
-29,
42,
29,
-54,
-119,
44,
91,
53,
72,
-72,
-118,
23,
79,
20,
-95,
36,
-72,
35,
112,
62,
-100,
49,
1,
-7,
114,
-106,
-126,
84,
75,
29,
45,
104,
98,
32,
9,
-17,
-71,
-84,
6,
30,
-99,
-82,
-40,
17,
75,
77,
-105,
-75,
49,
22,
12,
120,
106,
-115,
60,
44,
-54,
-113,
-112,
-79,
-114,
61,
-108,
19,
-29,
69,
52,
53,
-49,
-14,
92,
-41,
57,
95,
-98,
-15
] |
JOHN MAUZY PITTMAN, Judge.
_JjThe appellant, David R. Tilley, appeals from an order granting a motion for a new trial in favor of appellee, Debbie Sparrow, following a jury verdict for appellant. He argues that the trial court abused its discretion in granting the motion. We affirm.
This case arose out of a vehicular accident that took place on April 8, 2005, at an intersection controlled by traffic lights in Russellville, Arkansas. The intersection was of two multi-lane streets, Parkway and El Paso. Parkway is a four-lane street without turning bays. Immediately before the accident occurred, appellant was stopped in the eastbound left lane of Parkway, waiting to turn left (north) onto El Paso. He was directly opposite a truck stopped in the westbound left lane of Parkway that was likewise attempting to turn left (south) onto El Paso. When the light turned green, appellant waited until several cars in the outside westbound lane passed the truck opposite him and cleared the intersection. He then turned left, heard something strike the rear of his car, and saw appellee’s motorcycle on the 12ground in the center of the intersection. Appellant testified that he “looked as best he could” before turning but never saw appellee’s motorcycle until after the collision. At the time of the accident, appellant was a seventy-year-old retired high school social studies teacher, coach, and driver’s education instructor.
Appellee, at the time of the accident, was in her late 30s and was employed as a nuclear plant safety inspector. She had completed a motorcycle-safety course and was an experienced motorcyclist. The only witness to the accident other than the parties testified that appellee was riding a Harley-Davidson motorcycle two or three car lengths ahead of him in the westbound lanes of Parkway immediately before the collision. Because a truck in front of ap-pellee was signaling a left-hand turn at the intersection, appellee changed from the inside lane to the outside lane. The witness testified that appellee was traveling within the speed limit at between twenty-five and thirty miles per hour; that she signaled and executed the lane change smoothly, under control, and without accelerating or decelerating; and that she completed her lane change in front of a body shop located two lots away from the intersection. Morgan Barrett, a civil engineer who owned a surveying company in Russellville, testified that he inspected the intersection and that the body shop was approximately 220 feet from the point of impact. Officer Lee Goemmer of the Russellville Police Department, who responded to the accident scene, testified that a person turning left is required to yield right-of-way to oncoming traffic at that intersection; that he measured a thirty-four foot skid mark made by appellee’s motorcycle to the point of impact; and that there were no skid marks made by appellant’s vehicle. Finally, Officer Goemmer testified | athat appellant stated at the scene that he did not see appellee’s motorcycle until after the collision.
After a jury returned a verdict for appellant on this evidence, appellee moved for a new trial on the grounds that the jury’s verdict was clearly contrary to the preponderance of the evidence. The trial court granted the motion, and this appeal followed.
The law affecting the granting of a new trial and appellate review of that decision is settled. The Arkansas Rules of Civil Procedure permit a circuit judge to order a new trial if the jury’s verdict is clearly contrary to the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6). The test we apply on review of the grant of the motion is whether the trial court abused its discretion. Razorback Cab v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). We will not reverse the grant of a new trial unless the trial court has clearly and manifestly abused its discretion by acting improvidently or thoughtlessly without due consideration. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). A showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id.
Appellant cites Arkansas Model Instructions-Civil 603 (2012) for the proposition that the mere fact that an accident occurs is not, of itself, evidence of negligence or fault on the part of any person. He argues that the jury could have found that he exercised proper care in making his left turn and that appellee swerved suddenly from a position of concealment behind the westbound, left-turning truck into the outside lane, making it impossible for him 14to see her in time to avoid the collision. We cannot, on this record, say that the trial court manifestly abused its discretion by granting a new trial.
In finding that a new trial was properly granted in Richardson v. Flanery, 316 Ark. 310, 313, 871 S.W.2d 589, 590-91 (1994), the court said:
The only evidence tending to disprove the allegations of negligence against Mrs. Richardson is her own testimony regarding the cause of the accident. However, it is unrefuted that the Flan-erys had the right-of-way when the accident occurred. Even Mrs. Richardson offered no explanation for how the accident occurred, other than to claim that the Flanerys struck her, rather than vice versa: ‘Yeah, I did not see. I slowed down. I looked. I did not see him. I mean, I didn’t see their automobile, truck.”
In the present case, it is likewise unrefut-ed that appellee had the right of way, and the only defense asserted was that appellant did not see appellee before the collision. Furthermore, although appellant suggests that appellee may have swerved from behind the turning truck at the last moment, this is pure speculation and is contrary to the detailed testimony of the eyewitness and the physical evidence of thirty-four feet of motorcycle skid marks all in the outside lane of traffic. We hold that the trial court did not abuse its discretion in granting appellee’s motion for new trial, and we affirm.
_JjAffirmed.
GLADWIN, C.J., and WALMSLEY, WYNNE, and GRUBER, JJ., agree.
HARRISON, J., dissents.
. The dissenting judge would reverse ”[b]e-cause the jury was properly instructed and its verdict was not clearly against the preponderance of the evidence.” Even were we to agree with that statement, it would provide no basis for reversing the trial court’s grant of a new trial. Our standard of review is well-established, and perhaps the clearest exposition of that standard appears in Hall v. W.E. Cox & Sons, 202 Ark. 909, 911-13, 154 S.W.2d 19, 20 (1941):
Appellant earnestly urges here that the cause was submitted to the jury under proper instructions, on conflicting testimony, and that the jury having decided the issues of fact in appellant’s favor, the trial court erred in setting the judgment aside and granting a new trial. We cannot agree with this contention.
It has long been the established rule that the trial court not only has the power, but that it is his duty, to set aside a jury's verdict and grant a motion for a new trial if he concludes that the verdict is against the clear preponderance of the evidence.
In McDonnell v. St. Louis S.W. Ry. Co., 98 Ark. 334, 135 S.W. 925, this court said:
It is reversible error for the trial court to direct a verdict for one party where there is any substantial evidence to warrant a verdict for the other party. The trial court can not take from the jury its prerogative to determine disputed questions of fact (citing cases).
... It is not invading the province of the jury for the trial judge to set aside its verdict where there is a conflict in the evidence. On the contrary, it is the duty of the trial court to set aside a verdict that it believes to be against the clear preponderance of the evidence. But it should not, and the presumption is that it will not, set aside a verdict unless it is against the preponderance of evidence. This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance. Taylor v. Grant Lumber Co., 94 Ark. 566, 127 S.W. 962; Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922.
And in Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851, 854, one of our leading cases on the subject, this court said:
[Ajfter the juiy has concluded its deliberations and returned its verdict, if there is a motion for a new trial setting up that the verdict is not sustained by sufficient evidence, or that it is contrary to law, or both, it is then the province of the trial court to review the verdict and to determine whether or not the jury has correctly applied the law as contained in the court’s instructions, and whether or not the verdict is responsive to the preponderance of the evidence.
... Where there is a decided conflict in the evidence, this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for a new trial or overruling same.
The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore, his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused. See, also, McDonnell v. St. L. S.W. Ry. Co., 98 Ark. 334, 135 S.W. 925 (1911); McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596, 141 S.W. 196 (1911).
The only tribunal, under our judicial system, vested with the power to determine whether or not a verdict is against the preponderance of the evidence, is the trial court. Where there is a conflict in the evidence, and the trial court finds that the verdict, upon a material issue of fact, is against the preponderance of the evidence, the logical and necessary result of such finding, as matter of law, is that the verdict must be set aside; otherwise it would be impossible to correct the error.
(Emphasis added.) See also Missouri Pacific Railroad Co. v. Clark, 246 Ark. 824, 440 S.W.2d 198 (1969). | [
80,
-20,
112,
108,
30,
64,
112,
-72,
64,
-105,
101,
19,
-89,
-13,
21,
57,
-21,
127,
81,
-21,
-10,
-93,
7,
-96,
-14,
-13,
-95,
-33,
-106,
-49,
116,
-9,
76,
112,
-54,
85,
70,
73,
-92,
88,
-50,
6,
-118,
97,
89,
-125,
-96,
122,
6,
15,
33,
-113,
-61,
46,
25,
-54,
-23,
44,
123,
-83,
-47,
112,
-37,
5,
103,
4,
-93,
52,
-102,
5,
120,
8,
-36,
49,
8,
-72,
114,
-90,
-46,
116,
97,
-117,
4,
0,
98,
1,
69,
-19,
-67,
-88,
14,
58,
13,
-121,
-102,
25,
73,
5,
-105,
-107,
126,
52,
12,
126,
-2,
21,
92,
108,
23,
-50,
-108,
-79,
-17,
16,
-108,
4,
-21,
7,
48,
117,
-49,
-14,
94,
68,
115,
-101,
-33,
-106
] |
KENNETH S. HIXSON, Judge.
| Appellant Sarah Wilson appeals the entry of an order awarding permanent guardianship of her daughter EJW (born in November 2011) to appellees Randy and Donna Wilson, the child’s paternal grandfather and stepgrandmother (hereinafter “Randy” or “the grandparents”). EJW’s biological father, Billy Wilson, did not contest the guardianship and does not appeal. Billy is Randy’s son and Sarah’s husband. Sarah contends on appeal that the Ouachi-ta County Circuit Court clearly erred in finding that EJW needed permanent guardianship or that it was in her best interest to be placed with the grandparents. The grandparents assert that the trial court’s order is not clearly erroneous as it is supported by the evidence and compatible with Arkansas law. We affirm.
Our appellate courts review guardianship proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Witham v. Beck, 2013 Ark. App. 351, 428 S.W.3d 537. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a distinct and firm impression that a mistake has been made. Id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Id. Moreover, in cases involving children, we afford even more deference to the trial court’s findings because our appellate courts have made clear that there is no other case in which the superi- or position, ability, and opportunity of the trial judge to observe the parties carries a greater weight than one involving the custody of a child. Id.
EJW, only one year old at the time the permanent guardianship was ordered, falls under the definition of an incapacitated person because she is under the age of majority. Ark.Code Ann. § 28-65-104(1) (Repl.2012). The purpose of guardianship over an incapacitated person is set forth in Ark.Code Ann. § 28-65-105 (Repl.2012). As relevant here, guardianship is to be used “only as is necessary to promote and protect the well-being of the person and his or her property.” Id. at subsection (1). Arkansas Code Annotated section 28-65-210 (Repl.2012) provides what must be proved to the trial court in order to appoint a guardian: (1) the person is a minor or is otherwise incapacitated, (2) a guardianship is desirable to protect the interests of the incapacitated person, and (3) the person to be appointed guardian is qualified and suitable to act as such. There is a statutory preference to be given to the parent, “if qualified and, in the opinion of the court, suitable” to be appointed guardian, as set out in Ark.Code Ann. § 28-65-204(a). This natural-parent preference does not automatically attach to a child’s natural parents; it is within the circuit court’s discretion |sto make a determination as to whether a parent is “qualified” and “suitable” under section 28-65-204(a). Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413.
When the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. A determination of parental fitness is not necessary in guardianship proceedings as between a natural parent and a third party; the best interest of the child is paramount. Id. To the extent that any prior cases suggest a standard of fitness or unfitness in guardianship proceedings involving the statutory natural-parent preference, those cases were overruled in Fletcher. The natural-parent preference is but one factor that the circuit court must consider in determining who will be the most suitable guardian for the child. Id. Any inclination to appoint a parent or relative must be subservient to the principle that the child’s interest is of paramount consideration. Id.
With this framework, we examine the evidence presented to the trial court. These family members resided in Camden, Arkansas. Sarah has two sons, SC and CM, and a daughter, EJW. Sarah’s children were fathered by three different men. Sarah is in her early twenties. Sarah’s husband, Billy, also in his early twenties, is the biological father of EJW and stepfather to the boys. By all accounts, Billy has a violent streak, a criminal record, and problems with drug addiction. Billy was physically abusive to Sarah on more than one occasion. By way of example, Sarah said that Billy, threw a television at her while she was holding EJW in her arms. Sarah developed a pattern of reporting Billy’s abusive behavior to law enforcement and seeking orders of protection, only to later drop the charges and resume her relationship with him. Billy was in and out of jail. He did not participate in any of the 14guardianship proceedings other than to consent to the grandparents being appointed guardians of EJW.
In late September 2012, Sarah left ten-month-old EJW with the grandparents and checked herself into Bridgeway Hospital for what she described as stress and anxiety. Sarah was diagnosed with a borderline-personality disorder. Sarah left Bridgeway after a week, saw her children for one day, and then she left them to go to Conway for a few days to visit a woman named Brandi Richardson, whom she met at Bridgeway Hospital.
In early October 2012, the paternal grandparents petitioned for guardianship over EJW. The grandparents were con cerned over Sarah’s living arrangements— she and her children were living with Sarah’s mother, sisters, and grandmother in Sarah’s grandmother’s mobile home, which was in deplorable condition. The paternal grandparents also had grave concerns about the chaotic life that accompanied Sarah’s marriage to Billy, her refusal to cut ties with him, and her general instability and lack of income. The trial judge took testimony, including that from Sarah despite her hours-late arrival to the hearing, where she appeared pro se.
Sarah explained that she went to Conway to see her friend Brandi and to attend a support group for people with emotional problems. She said that she became aware that the grandparents were trying to establish a guardianship over her daughter when she returned to Camden. Sarah agreed that Billy was abusive but stated that she was ready to get a divorce. IfiSarah agreed that the grandparents had kept EJW almost every weekend, but that was because they asked to have her. She also stated that there had been a lot of cleaning effort at her grandmother’s residence.
Randy testified that he and his wife had EJW practically every weekend, and that over time, they worried about EJW having so many mosquito bites, severe diaper rash, knots on her head, and bruising. He said that EJWs condition would improve over the weekend, but that by the following Friday, “it would start all over.” Randy expressed worry over the uncleanliness of Sarah’s living situation, stating that there were animal feces and odor associated with Sarah’s mother’s home. Randy stated his concerns about his son Billy and his desire to give EJW safety and stability while Sarah and Billy resolved their domestic problems in some fashion.
The trial court entered a temporary order appointing the grandparents as EJW’s guardians and ordering that Sarah and Billy be permitted reasonable visitation at the discretion of, and supervised by, the grandparents. This order was filed on October 12, 2012.
Shortly after that hearing, Sarah packed up her belongings and moved to northwest Arkansas, where a male friend of hers lived. This male friend, Scott Parker, happened to be in Bridgeway at the same time she was. She signed a lease for an apartment in Fort Smith, but she changed her mind within days and came back to Camden to live with her mother.
Sarah filed a formal response in opposition to temporary and permanent guardianship on November 12, 2012, after she had hired an attorney to represent her. Sarah contended, Rin part, that EJW received WIC benefits and Medicaid coverage, and that guardianship over EJW should be terminated.
The final hearing was conducted over two days, December 27 and 28, 2012. Sarah testified that she earned her room and board by living with and taking care of her grandmother; that her mother paid any extra bills; that she earned $70 one time for cleaning an elderly man’s house; and that she received occasional child support for her oldest son. Sarah contended that her grandmother’s home had been substantially cleaned and repaired, offering photographs to prove it. Sarah explained her use of prescription medications, including longstanding prescriptions for narcotic pain medication to treat arthritis and en-dometriosis. She had been permitted limited, supervised visitation with EJW, but she believed that Randy and his wife Donna were trying to take EJW away without a good reason. Sarah asserted that her three children deserved to be together, with her.
Sarah’s mother testified that she paid Sarah’s bills in exchange for Sarah taking care of her mother (Sarah’s grandmother). Sarah’s mother said that Sarah received food stamps for herself and her two young sons. Various friends and co-workers of Sarah’s mother, as well as Sarah’s pastor, testified to their observations in public of Sarah being a good mother.
The paternal grandparents testified to having a strong bond with EJW, having had her most weekends leading up to their original petition for guardianship. The grandparents stated that they were financially and emotionally capable of providing a safe, secure home for EJW, and that they only wanted to provide for EJW’s safety and well being when it was jeopardized by both Sarah and Billy.
17After hearing testimony and taking evidence, the trial judge took the matter under advisement. A four-page letter opinion followed on December 31, 2012, which was incorporated into the guardianship order on appeal. The letter recited the relationship of the parties and the grandparents’ desire to be appointed guardian of EJW. The letter opinion recited the trial court’s understanding that in guardianship proceedings, there is a statutory parental preference, but that this preference is not absolute but rather subservient to the best interest of the child. The trial court found the grandparents suitable and qualified to be guardians, but stated its obligation to consider the parents’ suitability to serve as guardians.
Billy had earlier consented to the grandparents being guardians. Nonetheless, the trial court’s letter opinion noted Billy’s history of domestic violence, his current incarceration, and his drug problem as reasons that Billy was unsuitable to care for EJW or any other child.
The letter opinion recounted Sarah’s circumstances-and the testimony of witnesses she brought on her behalf, who recounted observations of her behaving as a suitable parent. The letter opinion then set forth the following findings and conclusions regarding Sarah:
Despite what these witnesses have seen publicly, respondent’s life away from the public eye has been quite chaotic. Respondent has subjected her children to several and repeated acts of domestic violence over the last year and a half.... Sarah Wilson testifies that it was a mistake to go back to Billy Wilson, and that now he is not allowed near her boys or anywhere near her grandmother’s property.... Respondent Sarah Wilson lacks credibility on this point, and the Court does not believe that she has ended her relationship with Billy Wilson.... From the evidence, the Court finds and concludes that it is in the best interest of [EJW], that a guardianship of the person be granted in favor of [the grandparents].
|SA formal order was filed of record on January 2, 2013, permitting Sarah and Billy reasonable visitation with EJW at the discretion of and under the supervision of the grandparents. Sarah filed a notice of appeal from this order.
Sarah appeals, arguing two points for reversal: (1) that permanent guardianship should not have been ordered where the reasons that supported temporary guardianship were resolved; and (2) that it was not in EJW’s best interest to be placed with anyone other than Sarah, her biological mother. Sarah has failed to demonstrate clear error in the findings of the circuit court.
Sarah asserts in her appellate brief that the circuit court - failed to give any consideration to the natural-parent prefer ence in the guardianship statutes and case law. We disagree. The trial court’s letter opinion, which was incorporated into the order on appeal, specifically addresses the suitability of the natural parents to be guardians over EJW. Sarah also asserts that the reasons that supported a temporary guardianship were no longer in existence at the time of the permanent guardianship. Sarah admits, though, that one problem that “arguably still existed ... involved the less than appropriate relationship” of Sarah with Billy. This was the primary problem that was an impediment to Sarah being considered a qualified and suitable guardian for EJW, and it supports the trial court’s decision.
Sarah’s secondary point on appeal contends that it was not in EJW’s best interest for the grandparents to be named guardians because it results in a separation of EJW from her two half-siblings. We note that the hesitation to separate siblings is not applied with equal force when the relationship is among half-siblings. Donato v. Walker, 2010 Ark. App. 566, 377 S.W.3d 437. Trial courts are not always able to provide flawless solutions to unsolvable problems, especially where there are only limited options available. Id. Here, the trial judge was faced with a decision focused on EJW’s best interest, and we cannot conclude on de novo review of this record that his decision was clearly erroneous. Sarah asserts also that the trial court’s letter opinion did not set forth the words, “best interest” or delineate the relevant factors bearing on EJWs best interest. To the contrary, a trial court’s order need not contain “magic words” if it is obvious that the trial court considered the child’s best interest. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699.
Sarah raises additional arguments surrounding a parent’s fundamental due-process right to raise her child, implicating constitutional concerns. However, those arguments are raised for the first time on appeal and are, therefore, not preserved for our review. TEMCO Const., LLC v. Gann, 2013 Ark. 202, 427 S.W.3d 651; Smith v. Thomas, 373 Ark. 427, 284 S.W.3d 476 (2008).
We hold that the trial court applied Arkansas case law and statutes correctly in this instance, and we affirm its findings of fact as not clearly erroneous.
Affirmed.
WYNNE and BROWN, JJ., agree.
. Sarah limited the record on appeal and did not include the original petition for temporary and permanent guardianship filed by the grandparents. | [
83,
108,
-27,
-68,
24,
97,
59,
24,
83,
-109,
-91,
-47,
-85,
-34,
20,
43,
65,
79,
81,
105,
-45,
-77,
87,
96,
82,
-14,
-79,
-41,
-78,
102,
-27,
-34,
92,
48,
-50,
-59,
102,
-64,
-19,
80,
-114,
3,
-117,
109,
97,
66,
52,
63,
-110,
79,
113,
-66,
-73,
47,
57,
74,
104,
14,
91,
45,
90,
-6,
-50,
21,
-53,
22,
-79,
100,
-102,
38,
120,
60,
-112,
49,
10,
-24,
51,
-74,
-118,
116,
75,
25,
24,
-10,
99,
34,
76,
-9,
-80,
-120,
62,
62,
29,
-91,
-102,
41,
75,
5,
-73,
-75,
93,
-108,
14,
126,
-26,
13,
62,
102,
0,
-115,
86,
-79,
-100,
-72,
-68,
19,
-29,
-31,
48,
117,
-34,
-30,
93,
-43,
115,
-101,
-122,
-69
] |
RITA W. GRUBER, Judge.
| (Appellant, Chesapeake Exploration, LLC, appeals from an order of the Van Burén County Circuit Court granting summary judgment to appellees, Thomas and Gayla Whillock, and from an order clarifying the summary judgment. The court ruled that, as a matter of law, Chesapeake could not recover a $120,000 oil-and-gas-lease bonus it had paid to the Whillocks. The court also dismissed the Whillocks’ counterclaim for estoppel and misrepresentation. With regard to the summary-judgment orders, we affirm in part and reverse and remand in part. We also reverse and remand, on cross-appeal, the order dismissing the Whillocks’ counterclaim.
| ?Mr. and Mrs. Whillock own eighty acres of land in Van Burén County. In 2005 or 2006, an oil-and-gas company other than Chesapeake asked Mr. Whillock to lease the mineral rights to his property. The transaction was never consummated because Mr. "Whillock learned that he did not own the mineral rights.
In 2008, Gary Beavers, a representative of Chesapeake, asked Mr. Whillock to enter into an oil-and-gas lease. Mr. Whillock told Beavers that he did not own the mineral rights. "When Beavers insisted to the contrary and offered an additional signing bonus, the Whilloeks executed a five-year oil-and-gas lease with Chesapeake on January 21, 2008. That same day, Chesapeake gave the Whilloeks a bonus draft in the amount of $120,000. The draft contained the following language:
Payable on or before 10 business days sight with approval of title and form of agreement. Not subject to recall by depository bank before due date. Redrafting privileges granted.
The record does not reveal whether Chesapeake conducted a title search of the Whilloeks’ minerals interests at the time this sight draft was issued, or within ten days thereafter. In any event, Chesapeake paid the draft on or about February 11, 2008. The Whilloeks paid taxes on the $120,000 and spent the remainder.
On April 21, 2009 — approximately fourteen months after the draft was paid— Chesapeake wrote to the Whilloeks requesting a refund of the $120,000. The letter stated that a “drilling title opinion” reflected that the Whilloeks did not own the minerals in the leased property. Attached to the letter was a “Release of Oil, Gas and Mineral Lease.” |sThe release recited that Chesapeake
does hereby release, relinquish and surrender unto THOMAS W. AND GAYLA L. WHILLOCK, husband and wife, their
successors, heirs or assigns all their right title and interest in and to that certain Oil and Gas Lease made and entered into by and between [the Whil-locks] as Lessor, and [Chesapeake] as Lessee, said lease dated the 21st day of January, 2008, covering the following described property in Van Burén County in the State of Arkansas, to wit: [attached description] said Oil and Gas Lease dated January 21, 2008, being recorded in the Official Records of Van Burén County, Arkansas under Document # 200881824.
Chesapeake filed the release in Van Burén County on May 22, 2009.
The Whilloeks declined to refund the bonus money. As a result, Chesapeake sued them for breach of the warranty of title contained in section 18 of the oil-and-gas lease and for unjust enrichment. The Whilloeks responded that Chesapeake misrepresented the facts when it induced them to sign the lease; that Chesapeake’s claim was barred by estoppel; and that title work should have been completed before the bonus draft was paid. The Whil-locks also filed a counterclaim for estoppel and fraud based on Gary Beavers’s representation that the Whilloeks had good title to the minerals.
Both sides filed motions for summary judgment. Chesapeake argued that the Whilloeks undisputedly breached section 13 of the oil-and-gas lease because they did not own title to the minerals and that the Whilloeks were unjustly enriched by receiving $120,000 for minerals they did not own. The Whilloeks argued that the release filed by Chesapeake waived any right to sue for breach of the lease and that the doctrine of unjust enrichment did not apply because the parties had entered into an express contract. To this latter argument, Chesapeake claimed that there was no meeting of the minds on the lease contract and, therefore, unjust enrichment was available as a cause of action.
^Following a hearing, the circuit court entered an order granting the Whillocks’ motion for summary judgment. The court ruled that Chesapeake had “no cause of action for breach of contract against the Whillocks” because Chesapeake “rescinded the Lease through their Release of Oil, Gas and Mineral Lease on May 22, 2009.” In response to the court’s order, Chesapeake filed a motion for clarification and supplemental findings of fact, correctly noting that the court had not addressed Chesapeake’s unjust-enrichment claim. Chesapeake also asked the court to explain why, if the lease had been rescinded, the Whillocks were not liable for restitution in the amount of $120,000.
The court issued a clarifying order in which it stated that the release filed by Chesapeake was a “general release” of all of Chesapeake’s claims, including those for unjust enrichment or restitution. The court also rejected Chesapeake’s argument regarding a meeting of the minds and ruled that Chesapeake’s payment of the bonus draft established that Chesapeake “approved of title when it entered into the lease agreement.” Chesapeake appeals from the clarifying order and from the order granting summary judgment.
We begin by addressing the effect of the release, which the circuit court characterized as a general release that waived all of Chesapeake’s causes of action against the Whillocks. A general release is not restricted by its terms to particular claims or demands, and it ordinarily covers all claims and demands due at the time of its execution that were within the contemplation of the parties. See Union Pac. R.R. Co. v. Mullen, 966 F.2d 348 (8th Cir.1992); 66 Am.Jur.2d Release § 28 (2012).
The release filed by Chesapeake was not a general release. It did not purport to absolve |sthe Whillocks from any and all liability to Chesapeake, nor did it state that Chesapeake waived any and all claims against the Whillocks. Instead, it relinquished and surrendered Chesapeake’s right, title, and interest in the lease. Consequently, it did not affect Chesapeake’s right to pursue other, extra-contractual remedies. The circuit court therefore erred in treating the release as a general waiver of all of Chesapeake’s claims against the Whillocks.
The court did not err, however, in holding that the release prohibited Chesapeake’s claim for breach of the lease. The meaning of a writing should be interpreted in accordance with the plain language employed. Po-Boy Land Co. v. Mullins, 2011 Ark. App. 381, 384 S.W.3d 555. Chesapeake drafted the release in broad terms, stating that it “does hereby release, relinquish, and surrender” to the Whillocks “all right, title, and interest” in the lease. There were no equivocal expressions nor any reservation of Chesapeake’s contractual claims. Rather, there was a complete surrender of Chesapeake’s rights under the lease, which would necessarily include the right to sue for breach of the warranty of title contained in the lease’s section 13. Moreover, the oil-and-gas lease itself provided that Chesapeake could “surrender or cancel” the lease by delivering or mailing a release to the Whil-locks, or by placing a release of record in the proper county. These are the precise actions taken by Chesapeake. We therefore conclude that Chesapeake relinquished its right to sue for breach of the lease. See Farmers’ Cotton Oil Co. v. Brint, 184 Ark. 1193, 40 S.W.2d 789 (1931) (holding that, where a contract was extinguished and canceled by a party, the party could not recover damages for breach of the contract).
Chesapeake argues that the release was a mere “abandonment” of the lease, which | ^preserved its right to seek damages for breach. We disagree. First, it does not appear that Chesapeake raised this argument below. An appellant is bound by the scope and nature of his arguments at trial. Pope v. John Hancock Mut. Life Ins. Co., 2013 Ark. App. 189, 426 S.W.3d 557. Secondly, regardless of how the release is described, its language removes any doubt that Chesapeake’s rights under it were fully surrendered.
Chesapeake also contends that its intent in filing the release was not to forego its right to sue the Whillocks but to meet a statutory obligation to remove a cloud on the record owner’s title, once it was determined that the Whillocks did not own the minerals. See Ark.Code Ann. § 15-73-203 (Repl.2009).' While this may be true, we must discern Chesapeake’s intent from the plain wording it employed in the release. Po-Boy Land Co., supra. The release clearly evidences an intent to relinquish all rights under the lease contract.
We therefore affirm the circuit court’s dismissal of Chesapeake’s breach-of-contract action. Our holding makes it unnecessary to reach Chesapeake’s argument that the court erred in ruling that the terms of the bonus draft waived the warranty-of-title provision of the lease.
We turn now to Chesapeake’s equitable claims of unjust enrichment and restitution. As stated earlier, the circuit court erred in ruling that these claims were waived in the release. But that does not end our inquiry. We must still determine if the particular facts of this case warrant summary judgment in favor of the Whil-locks on these theories.
With regard to restitution, Chesapeake argues that, because the circuit court ruled that the oil-and-gas lease was rescinded, restitution must accompany the rescission in order to return the parties to the status quo. Given the court’s decision to characterize the lease as prescinded, Chesapeake could properly seek a restitu-tionary remedy. See generally Maumelle Co. v. Eskola, 315 Ark. 25, 865 S.W.2d 272 (1993); Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Howard W. Brill, Arkansas Law of Damages § 31:3, at 573 (5th ed.2004); Dan B. Dobbs, Remedies § 4.3, at 254 (1973).
The Whillocks argue, however, that Chesapeake is barred from seeking restitution because it did not plead this remedy in its complaint. We see no procedural bar. Chesapeake’s complaint sought a return of the $120,000 bonus. And, Chesapeake raised the issue of restitution in response to the court’s ruling that the oil- and-gas lease had been rescinded.
The Whillocks also argue that, where the right to rescind derives from a contract, any right to restitution must be derived from the same contract. They contend that the lease in this case did not provide for restitution, and they rely on McKinney v. Jones, 210 Ark. 912, 198 S.W.2d 415 (1946), for its language that, in the event of a mutual rescission, no claim for restitution can be made unless it is expressly or impliedly reserved in the contract. This, however, was not a case of mutual rescission but of Chesapeake unilaterally releasing the oil-and-gas-lease. Chesapeake is therefore not prohibited from asserting a claim for restitution.
Chesapeake’s unjust-enrichment claim is likewise viable. Unjust enrichment applies when a party has received something of value to which he is not entitled and which he must restore. Edwards v. MSC Pipeline, LLC, 2013 Ark. App. 165, 2013 WL 840697. Arguably, the Whillocks’ receipt of money for property they did not own falls within these requirements. The Whillocks contend, however, that unjust enrichment cannot apply when the parties’ dealings are governed by an express contract. This argument is not well taken. While it is true that there | ^generally can be no recovery for unjust enrichment where there is an express contract, there are exceptions to that rule. Unjust enrichment is not barred in appropriate cases, such as where there has been a rescission at law, or the contract is void or has been discharged by impossibility or frustration of purpose, or the parties have made a mistake about something important to the contract. See Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. Here, according to the circuit court, the lease contract was rescinded or voided. Unjust enrichment is therefore not precluded as a cause of action for Chesapeake.
Based on the foregoing, there is no legal impediment to Chesapeake’s claims for restitution and unjust enrichment. However, we do not hold that Chesapeake should prevail on these claims as a matter of law. Restitution and unjust enrichment are equitable theories and necessarily involve a weighing of the equities as to all parties. The Whillocks have set forth several matters to be considered in deciding where the equities lie, including Chesapeake’s alleged misrepresentation of the ownership of the minerals and Chesapeake’s waiting more than a year before informing the Whillocks that there was a problem with the title to the minerals. We therefore conclude that fact-finding involving a weighing of the equities is necessary on these claims. Accordingly, we reverse the summary-judgment order as it pertains to Chesapeake’s actions for unjust enrichment and restitution and remand for further proceedings on these issues. In light of our remand, we also reverse the circuit court’s dismissal of the Whillocks’ counterclaim, which set forth their assertions of misrepresentation 19and estoppel.
Affirmed in part and reversed and remanded in part on direct appeal; reversed and remanded on cross-appeal.
WHITEAKER and VAUGHT JJ., agree.
. We previously ordered rebriefing in this case and dismissal for lack of finality. Chesapeake Exploration, LLC v. Whillock, 2013 Ark. App. 339, 2013 WL 2243834, and Chesapeake Exploration, LLC v. Whillock, 2012 Ark. App. 397, 2012 WL 2337882. The parties have obtained a final order, and the briefing error has been corrected.
. Our holding makes it unnecessary to address Chesapeake’s alternative contention that there was no express contract between the parties because there was no meeting of the minds. | [
117,
110,
-34,
76,
-86,
-32,
48,
-70,
73,
-117,
55,
19,
-65,
-22,
0,
57,
-29,
89,
100,
105,
-42,
-93,
69,
-95,
-42,
-13,
57,
-59,
120,
-50,
-82,
71,
76,
48,
-62,
21,
70,
-78,
-57,
92,
6,
-123,
-102,
69,
105,
-54,
52,
26,
16,
11,
97,
-99,
-15,
46,
29,
98,
-88,
46,
-21,
-67,
73,
-39,
-29,
-121,
79,
20,
-128,
20,
-104,
-58,
-40,
42,
-112,
56,
0,
-24,
59,
-74,
-58,
116,
75,
27,
-84,
34,
99,
3,
52,
-51,
-4,
-72,
5,
-2,
-115,
-89,
-46,
48,
27,
98,
-89,
-65,
126,
14,
39,
124,
110,
-124,
31,
109,
22,
-49,
-42,
-95,
13,
-28,
-100,
3,
-57,
19,
52,
116,
-51,
-14,
92,
71,
113,
27,
7,
-70
] |
WAYMOND M. BROWN, Judge.
|,Appellant appeals from the circuit court’s denial of her motion to dismiss for lack of jurisdiction and its subsequent entry of a divorce decree addressing custody, visitation, and division of property. On appeal, appellant argues, generally, that (1) the State of Arkansas did not have jurisdiction over the divorce of appellee from appellant at the commencement of divorce proceedings on April, 10, 2012; (2) the State of Arkansas did not have jurisdiction over the. minor children at the commencement of divorce proceedings on April 10, 2012; and (3) the circuit court ruled inequitably against appellant following the non-jury trial on October 24, 2012. We affirm.
On October 7, 2011, appellee moved from Arizona to Arkansas with the parties’ two minor children, A.A., born December 6, 2005, and C.A., born March 11, 2011. Appellee and the children moved into her mother’s home in Harrison, Arkansas. Appellee asserted that she moved to Arkansas for employment. As part of that employment, she was |?.required to obtain counseling at a place of her employer’s choosing. Her employer chose to send her to a counseling center in Minnesota for which she left around November 18, 2011. She took the minor children with her. Ap-pellee returned to Arkansas for two weeks around Christmas 2011, but returned to Minnesota thereafter. She completed the required counseling and returned to Arkansas on March 10, 2012.
On April 10, 2012, appellee filed for divorce from appellant in Arkansas. In the complaint for divorce, appellee asserted, among other things, that although married in Arkansas on June 20, 1998, she and appellant had been living separate and apart since October 7, 2011; that the two minor children had resided in Arkansas for more than the six months immediately pri- or to commencement of the action; that Arkansas was the home state of the children; that she should have primary custody of the children; and that there was marital property to be divided by the court.
Appellant filed for divorce from appellee in Arizona on April 25, 2012. On May 18, 2012, appellant filed a motion to dismiss appellee’s Arkansas complaint for divorce for lack of jurisdiction in Arkansas. In her brief in support of- her motion to dismiss, appellant asserted that the parties separated on October 8, 2011, after appellant had been twice diagnosed with gender identity disorder and had acknowledged her gender identity issues. She further asserted that appellee said she was taking the children to “visit” her mother, but stayed in Arkansas until she took them to Minnesota. Appellant was served with ap-pellee’s complaint for divorce on June 3, 2012.
Is A hearing on the motion to dismiss was held on July 11, 2012. The court denied appellant’s motion to dismiss on July 23, 2012, without written order. Appellee requested entry of an order denying appellant’s motion to dismiss and an order for mediation. On July 31, 2012, appellant filed a motion for Rule 54(b) certification of the requested order denying appellant’s motion to dismiss and order for mediation so that an immediate appeal could be undertaken. On August 17, 2012, the court entered an order denying the motion to dismiss and ordering mediation. On the same date, the court entered an order denying appellant’s motion for Rule 54(b) certification.
On August 27, 2012, appellant filed an answer to appellee’s complaint for divorce. As ordered, the parties completed mediation, without agreement, on October 22, 2012. Following a trial on October 23-24, 2012, the court entered a decree on November 29, 2012, granting appellee an absolute divorce from appellant. In the decree, the court found the following:
1. That the Plaintiff is a resident of Washington County, Arkansas, and has been a resident of Arkansas for more than sixty (60) days prior to the commencement of this action.
2. That venue and jurisdiction are proper in this Court.
5. The minor children of the parties hereto resided within the State of Arkansas for more than the six (6) months immediately prior to the commencement of this action.
6. The State of Arkansas is the “home state” of the minor children and no other proceeding involving the custody of said children is pending before the Court of any other jurisdiction.
7. This Court has and may properly exercise jurisdiction of and over issues regarding the custody of and visitation with the above named minor children by and between these parties.
8. That the Court finds that the allegations contained in the Complaint are sustained by the proof, and that the plaintiff is entitled to an absolute decree of divorce from the defendant.
149. The evidence before the court, and uncontroverted by credible testimony, was that the plaintiff relocated to Fay-etteville Arkansas, with the agreement of the defendant.
10. The parties attended a Bible college which was administered by the Assemblies of God, and they both worked as missionaries for the Assemblies of God church during the majority of their marriage.
11. The uncontroverted evidence is that the parties moved to Arizona so that Danielle Adams could pursue two PhD’s that would further her career either in world mission work in the church, or in education as a teacher or professor.
12. The uncontroverted evidence is that since the children’s births, Ms. Rebecca Adams has been their primary caregiver, by virtue of Ms. Danielle Adams being the primary bread winner. Danielle Adams was the lead missionary as between the parties during their employment, All paychecks were in the name of William Benjamin Adams (Danielle Adams’ former name). Danielle was considered to be the person who was employed full-time.
14. Further uncontroverted evidence is that in approximately January 2011, Mrs. Danielle Adams determined that she, as she had suspected for some time, had gender identity disorder.
15. According to the credible evidence before the Court, it was jointly decided by the parties that Ms. Danielle Adams would go to Oregon for intensive counseling.
16. After that counseling, it was determined by Danielle Adams that she would continue living as a female full-time. At that time, it became obvious that the marriage could not continue, as Ms. Rebecca Adams did not wish to be married to a woman.
21. The parties have agreed, absent an Order of this Court, before the date of this trial, that the parties’ children would not yet be privy to information about the divorce, or about the transition of Danielle Adams.
26. Until the child is introduced to the transition of Danielle Adams, pursuant to the expert the parties agree upon, video chats shall be conducted by Danielle Adams in an appearance that does not indicate to the minor child that Danielle is a woman.
49. ... [T]he Court finds that there is no personal property to divide as the parties have already decided on an equitable division, except as to the following items:
a. Rebecca Adams drives a 2002 Honda CRV that does not have any debt against it. It is, based on the evidence before the court, worth anywhere between $8,500 and $4,700, depending on the condition. The court awards the CRY to Rebecca Adams as her sole and separate property. She is responsible for all costs associated with the vehicle, including but not limited to, past, current, and future personal property taxes. The court determines | sthat an unequal division of property in this circumstance is fair and equitable based on the fact that Miss Rebecca Adams has primary custody of the children, and has since the parties’ separation, and has not received any support for the children from Danielle Adams during that time. Further, Rebecca Adams, based on the evidence before the court, does not have the means to acquire another vehicle at the time of this order.
b. Danielle Adams is in possession of a 2011 Nissan Juke. It will be the sole and separate property of Danielle Adams, as well as all debt associated with said vehicle, including but not limited to, past, current, and future personal property taxes.
53. The defendant has a retirement account through her employment with World Missions in the Assemblies of God church. The account is a MBA 403(b) Select Retirement Account with a balance of approximately $33,327.29. The entirety of that account was obtained during the marriage of the parties, and the Court finds that it is marital property. It shall be divided 50/50 with a division date of October 23, 2012.
54. The plaintiff has an investment account, all of which was accrued subsequent to the separation of the parties. The Court awards those to the plaintiff, based on when the investments were accrued.
55. The plaintiff has a savings account with approximately $3,600 in it. That sum has been set aside for taxes that will be owed exclusively by the plaintiff. Therefore, that account is awarded as the sole and separate property of the plaintiff, for the purpose of allowing the plaintiff to satisfy' tax responsibilities.
56. Danielle Adams inherited a sum of money at some point prior to the marriage of the parties. At some point during the marriage, Danielle Adams added the name of Becky Adams to the account, resulting in the need for both parties to sign off on dispersals from said account. The Court finds that act was a gift to the marriage, and all funds remaining in said account are therefore marital in nature. The evidence shows that the money was placed in the joint- account of the parties, and that money from that account was used regularly for the benefit of the family and was regularly applied to joint marital expenses. The court finds that whatever balance is in said account as of October 23, 2012 shall [sic] divided evenly between the plaintiff and defendant.
60. The Capital One Sony Visa credit card debt in the amount of approximately $20,562 is the sole and separate debt and responsibility of the defendant.
61. The Chase auto loan on the Nissan Juke, in the approximate amount of $21,000 shall be the sole and separate responsibility of the defendant, for reasons set forth above.
62. ... There is a debt of $475 to the World Financial Network that is associated with the defendant’s pursuit of education at the University of Arizona. That debt shall be the sole and separate responsibility of the defendant.
| fi63. The evidence before the court is that there is a NELNET student loan in the name of the defendant in the amount of approximately $33,000. The court determines that $8,000 of that student loan is the joint marital debt of the parties. The evidence before the court was that there is a Citibank student loan in the amount of approximately $38,000. The court determines that $8,000 of that student loan is the joint marital debt of the parties.
64. In an effort to effectuate payment toward the marital portions of these student loans in the most economical and least complicated manner, the court will require Rebecca Adams to pay back half of the $16,000 in student loans which the Court has determined are marital. Because the NELNET loan can no longer be borrowed against, and the Citibank loan appears to still be growing, the Court orders Rebecca Adams to apply her $8,000 of Debt payment towards student loans to the NELNET loan. The remaining student loan debt shall be the sole and separate property and responsibility of the defendant.
65. The court acknowledges that the student loan debts assigned to Danielle Adams are greater than the student loan debts assigned to Rebecca Adams. The Court finds that this unequal division of debt between the parties is fair and equitable due to the increase in earning potential of Danielle Adams as a result of the increase in educational status with the assistance of the student loans. The majority of the student loans were incurred in order to further the degrees of Danielle Adams, while Rebecca Adams cared for the minor children and the home of the parties.
This timely appeal followed.
I. Standard of Review
On appeal, divorce cases are reviewed de novo. We will not reverse the circuit court’s findings unless they are clearly erroneous. When the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the | ./witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child’s best interest. With respect to the division of property in a divorce case, we review the circuit court” findings of fact and affirm them unless they are clearly erroneous. The decision whether to award alimony is a matter that lies within the circuit court’s sound discretion, and we will not reverse the decision to award alimony absent an abuse of that discretion.
II. Jurisdiction — Divorce
Appellant’s first argument on appeal is that the Arkansas court did not have jurisdiction over the divorce because appellant was not an Arkansas resident as she was not actually present in the state for the time required by statute. The plaintiff in a divorce case must prove Arkansas residence by either the plaintiff or the defendant for sixty days next before the commencement of the action, and for three full months before the final judgment granting the decree of divorce. Without proof of Arkansas residency, a circuit court has no jurisdiction to enter a divorce decree. Residence, as used in section 9-12-307(a)(l)(A), means:
| ^actual presence, and upon proof of that the party alleging and offering the proof shall be considered domiciled in the state, and this is declared to be the legislative intent and public policy of the State of Arkansas.
In support of this argument, appellant argues further that residence alone is the requirement for jurisdiction over a divorce and that domiciliary intent alone may not be used in its stead.
This court recently addressed this very argument, stating that “[djespite the fact that our supreme court once indicated that subsection (b) designates actual presence as the sole basis for jurisdiction, the court subsequently clarified that domicile ‘is still and always has been sufficient’ to confer jurisdiction.” In denying appellant’s motion to dismiss for lack of jurisdiction, the court stated from the bench “that domicile requires residence and intent, but there is no length of time required to establish domicile.” Referring to appel-lee’s stay in Minnesota for counseling, it went on to state that a “[cjhange of residence for one’s health does not effect a change in domicile.” It then found that it had jurisdiction over the divorce. Without further explanation, the order entered denying appellant’s motion to dismiss found that the court had both personal and subject-matter jurisdiction over the divorce and the parties thereto. It is evident from the court’s findings, despite citing residency in its order, that it asserted jurisdiction based on appellee being domiciled in Arkansas; therefore, we now determine whether appellee was domiciled in Arkansas during the requisite statutory time period.
[aPomicile focuses on a party’s subjective intent to remain more or less permanently in a particular state. It is a person’s true, fixed, and permanent home, the place to which, when absent, he intends to return and from which he has no present purpose to depart. Once established, domicile continues until it is superseded by a new domicile. To effect a change of domicile, there must be actual abandonment of the first domicile, coupled with the intention not to return to it, and there must be a new domicile acquired in another jurisdiction with the intention of making it a permanent home. A party’s intention to abandon his domicile and take up another must be ascertained from all the facts and circumstances in a particular case.
The record before us shows that both parties, who were married in Arkansas, working and living here before doing missionary work abroad, only moved to Arizona because appellant was accepted to a postgraduate-degree program there. Upon their separation, appellant helped appellee divide their belongings in their family home in Tucson, Arizona, and helped her pack a moving truck, which she no doubt knew was |10headed to Arkansas. Following her move to Arkansas, appellee (1) obtained an Arkansas driver’s license within days of her move on October 18, 2011; (2) registered the 2002 Honda CRV in Arkansas; (8) legally registered A.A. as a homeschool student in the Valley Springs School District for the 2011-2012 school year; (4) acquired an Arkansas cellular phone number; and (5) changed her ministerial credentials to Arkansas. Furthermore, her Minnesota-based counseling was a prerequisite for a job she was offered by her Arkansas-based employer, which existed only in Fayetteville, Arkansas. And though she did take her children with her to Minnesota during her employment-mandated counseling, she temporarily lived with a pastor friend from the church and took only suitcases and a few toys. It is clear that appellee abandoned her domicile in Arizona, had no intention of returning to Arizona, and intended to make Arkansas her new domicile; therefore, appellee was domiciled in Arkansas.
Because we hold that appellee was domiciled in Arkansas, we do not address appellant’s argument that appellee was not a resident according to Arkansas Code Annotated § 9-28-307, nor do we address her argument that Arkansas Code Annotated § 9-23-307 does not permit temporary absences within the required sixty-day statutory period.
| uIII. Jurisdiction — Children
Appellant’s second argument on appeal is that Arkansas was not the home state of the minor children. The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) is the exclusive method for determining the proper state for jurisdictional purposes in child-custody proceedings that involve other jurisdictions. A stated purpose of the UCCJEA is to avoid relitigation of child-custody determinations in other states. Child-custody jurisdiction is a matter of subject-matter jurisdiction. Subject-matter jurisdiction can be raised at any time by the parties or sua sponte by a court of review and cannot be conferred by the parties’ agreement, consent, or waiver. Subject-matter jurisdiction relates to the competence of a court to hear a matter, and custody determinations are status adjudications not dependent upon personal jurisdiction over the parents. The fact that a state has subject-matter jurisdiction to enter a divorce decree does not necessarily confer jurisdiction to make a child-custody determination.
112The UCCJEA sets forth jurisdictional requirements for four types of situations: (1) initial child-custody determinations; (2) continuing jurisdiction; (8) jurisdiction to modify a prior determination; and (4) temporary emergency jurisdiction. With regard to initial child-custody jurisdiction, except as otherwise provided in Arkansas Code Annotated § 9-19-204, a court of this state has jurisdiction to make an initial child-custody determination only if this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. The UCCJEA defines “home state” as the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child-custody proceeding. A period of temporary absence of any of the mentioned persons is part of the period.
The parties’ children left Arizona with their mother, who came to Arkansas where she established a domicile. The children have not been back to Arizona since they left Arizona in October 2011. Appellee was domiciled in Arkansas at the commencement of her divorce proceedings and her children were domiciled in Arkansas at that time as well. 11sThe definition of “home state” specifically includes a temporary absence; therefore the children’s stay in Minnesota with their mother, who all parties agree had no intent to remain in Minnesota, was a temporary absence. Based on these facts, Arkansas is the home state of the children, as they have lived with appellee in Arkansas since October 2011, only being absent from the state temporarily during appellee’s stay in Minnesota for employer-mandated counseling.
Alternatively, appellant argues that Arizona was the state with the most significant connections to the children. No testimony or evidence was given on significant contacts between the children and the state of Arizona. The only evidence before the circuit court was that the family resided in Arizona because of appellant’s doctoral program there and that they had no other significant ties in that state. Appellant is their only tie to the state at this point. Both parties testified to the children being active in each state, with the addition that appellee’s family resides in Arkansas. We cannot say that Arkansas does not have significant connections to the children or that Arizona has more significant contacts. The circuit court did not err in finding that it had jurisdiction over the parties’ children.
IV. Visitation
Appellant’s next argument on appeal is that the court erred in its allocation of her visitation. Appellant states that she should have received the majority of the summer as annual visitation and that ap-pellee should be required to split the expenses of transporting the children to Arizona for spring break just as the court required of appellee with all other visitation. Beyond conclusory statements, appellant does not develop an argument 114and cites no authority. A mere conclu-sory statement without convincing argument or authority is not effective to raise a point on appeal.
V. Apportionment of Marital Assets and Debts
Appellant argues that the court awarded marital assets and debts inequitably without giving reasons for the unequal division. While appellant listed various inequalities in the division of property and debts, she did so without any supporting arguments or authority on all but two. She only cited legal authority with her claims that her inheritance money should have been separate property and that the court erred in awarding marital debt without explanation; therefore, we only address these claims.
In support of her argument that her inheritance should have been separate property, appellant asserts that the money remained in its original account and the parties never put money into the account though they both withdrew funds from the account. Property that is acquired by inheritance is not considered marital property. However, when property is placed in the names of a husband and wife, a presumption arises that they own the property as tenants by the entirety. This presumption can be overcome only by clear and convincing evidence that a spouse did not intend a gift. A gift is a | í ¡(voluntary transfer of property, without valuable consideration, to another. Appellant’s contention requires that we determine whether she produced clear and convincing evidence that she did not intend to bestow a gift of the inheritance money to rebut the presumption of gift that arose when she placed appellee’s name on her inheritance account. For reasons discussed below, we find that she failed to overcome the presumption.
The court stated the following with regard to appellant’s inheritance:
Danielle Adams inherited a sum of money at some point prior to the marriage of the parties. At some point during the marriage, Danielle Adams added the name of Becky Adams to the account, resulting in the need for both parties to sign off on dispersals from said account. The Court finds that act was a gift to the marriage, and all funds remaining in said account are therefore marital in nature. The evidence shows that the money was placed in the joint account of the parties, and that money from that account was used regularly for the benefit of the family and was regularly applied to joint marital expenses.
Based on this information, as admitted to by appellant, we find that the trial court did not commit error in allocating the inheritance account as marital property and dividing it equally between the parties.
In support of her argument that the court erred in awarding marital debt without explanation, appellant erroneously cites Copeland v. Copeland, in which this court- reversed the trial court’s unequal division of property for failure to cite reasons. Copeland, which dealt with division of property, does not apply here. Appellant’s argument deals with marital debts.
hfiThe allocation of marital debt is an essential item to be resolved in a divorce dispute, and must be considered in the context of the distribution of all of the parties’ property. ' However, Arkansas Code Annotated § 9-12-315 and its presumption of equal division does not apply to the division of marital debts. There is no requirement that the marital debt must be subtracted from the marital assets to determine the “net” value of the total award made to each party in all divorce cases. A determination as to how debts should be allocated between the parties will not be reversed unless it is clearly erroneous.
The court apportioned student loans by allocating each party’s own student loans to themselves, with the exception of $16,000 of student loans in appellant’s name that were used for marital expenses; that debt was split evenly between the two parties. This was equitable because appellant will be able to benefit from the increased earning potential she will receive as a result of the degrees the student loans allowed her to obtain. Ap-pellee was awarded the 2002 Honda CRV because it was unencumbered and she could not afford to obtain another vehicle at the time of the order. Since appellant was awarded the 2011 Nissan Juke, she received the outstanding loan still owed on it. All the other debts were minor except the Capital One Sony Visa, which was awarded to appellant. While the court did not explain why this debt was not divided between the parties, the facts show | i7that appellant was the breadwinner during the parties’ marriage, with appellee staying home to care for the children. It is not clearly erroneous to make appellant solely responsible for the debt. Considering such division of the parties’ debts within the context of the circuit court’s division of property as a whole, we cannot find that it was clearly erroneous; therefore, the circuit court committed no error in dividing the parties’ debts.
VI. Gender Identity Discrimination
Finally, appellant argues that the court discriminated against her by (1) ignoring the alleged discriminatory bias of the counselor chosen by appellee; (2) preventing appellant from questioning the counselor on his religious beliefs; and (3) ordering appellant to present herself as male with her children for a time. While asserting that there is no Arkansas law dealing with “the civil liberty of gender expression” or prohibiting discrimination against gender identity, she submits no permissive or persuasive authority from any other jurisdictions, directly addressing or distinguishing her claim. It is not the duty of this court to research or develop arguments for an appellant on appeal. Indeed, our courts have often said that failure to develop an argument precludes review of the issue on appeal. We do not address the merits of this argument.
Affirmed.
Gladwin, C.J., and Wood, J., agree.
. Appellant was bom a man and was named William Benjamin Adams at birth.
. Appellant’s notice of appeal was due on December 29, 2012; however, that date fell on a Saturday. Pursuant to Rule 9 of the Arkansas Rules of Civil Procedure, the notice of appeal was due on the next business day, which was December 31, 2012. Appellant filed her notice of appeal on December 31, 2012.
. Cummings v. Cummings, 104 Ark.App. 315, 322, 292 S.W.3d 819, 823 (2009) (citing Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005)).
. Brown v. Brown, 2012 Ark. 89, at 7, 387 S.W.3d 159, 163.
. Id. (citing Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002)).
. Cummings, 104 Ark.App. at 322, 292 S.W.3d at 824 (citing Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005)).
. Id.
. Freeman v. Freeman, 2013 Ark. App. 693, at 1, 430 S.W.3d 824, 827 (citing Ark.Code Ann. § 9 — 12—307(a)(7 )(A) (Repl.2009)).
. Id. at 1-2, 430 S.W.3d at 827 (citing Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886).
. Id. (citing Ark.Code Ann. § 9-12-307(b) (Repl.2009)).
. Id. (citing Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958); and Weaver v. Weaver, 231 Ark. 341, 344, 329 S.W.2d 422, 424 (1959)).
. Id. at 2, 430 S.W.3d 827 (citing Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958)).
. Id. (citing David Newbern, John J. Watkins, & D.P. Marshall, Jr., Ark. Civ. Prac. & Proc. § 6:3, at 128 (5th ed.2010)).
. Id. (citing Oakes v. Oakes, 219 Ark. 363, 242 S.W.2d 128 (1951)).
. Id. at 2-3, 430 S.W.3d at 827 (citing Oakes, supra).
. Id.
. In an email to appellee sent on January 19, 2012, appellant stated, "I wish I hadn't agreed to let you take them so far away.” (Emphasis added.)
. The registration showed appellant’s former name, William Benjamin Adams, as the registrant. Appellee stated that she was able to register the car, though it was not titled in her name, because she was the wife of the titleholder.
. Appellant was permitted to practice her ministry anywhere despite being credentialed in New Jersey; therefore, she was not required to transfer her credentials.
. Harris v. Harris, 2010 Ark. App. 160, at 9, 379 S.W.3d 8, 13 (citing Ark.Code Ann. §§ 9-19-101 to -401 (Repl.2008) and West v. West, 364 Ark. 73, 216 S.W.3d 557 (2005)).
. Piccioni v. Piccioni, 2011 Ark. App. 177, at 4, 378 S.W.3d 838, 840 (citing West v. West, 364 Ark. 73, 216 S.W.3d 557 (2005)).
. Czupil v. Jemigan, 103 Ark.App. 132, 134, 286 S.W.3d 753, 755 (2008) (citing Dorothy v. Dorothy, 88 Ark.App. 358, 360, 199 S.W.3d 107, 109 (2004)).
. Id. (citing Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007); Dorothy, supra; and Larson v. Dunn, 474 N.W.2d 34, 39 (N.D.1991)).
. Id. (citing Dorothy, 88 Ark.App. at 361, 199 5.W.3d at 110).
. Id. (citing Dorothy, 88 Ark.App. at 361, 199 S.W.3d at 110).
. Piccioni, 2011 Ark. App. at 4, 378 S.W.3d at 840 (citing Ark. Code Ann. §§ 9-19-201 to -204 (Repl.2009)).
. Ark.Code Ann. § 9-19-201(a)(l). Three other grounds are available under § 9 — 19— 201(a), but none are pertinent to the case before us.
. Ark.Code Ann. § 9-19-102(7).
. Id.
. Hall v. Ark. Dep’t. of Human Servs., 2012 Ark. App. 245, at 11, 413 S.W.3d 542, 542 (citing Ball v. Ark. Dep’t of Human Servs., 2011 Ark. App. 307, 2011 WL 1573103).
. McCracken v. McCracken, 2009 Ark. App. 758, 358 S.W.3d 474 (citing Ark.Code Ann. § 9-12-315(b)(1) (Repl.2008)).
. Id. (citing Young v. Young, 101 Ark.App. 454, 278 S.W.3d 603 (2008)).
. Id.
. Kelly v. Kelly, 2011 Ark. 259, at 8, 381 S.W.3d 817, 824 (citing Davis v. Jackson, 232 Ark. 953, 341 S.W.2d 762 (1961)).
. 84 Ark.App. 303, 139 S.W.3d 145 (2003).
. Friend v. Friend, 2010 Ark. App. 525, at 11, 376 S.W.3d 519, 526 (citing Boxley v. Boxley, 77 Ark.App. 136, 73 S.W.3d 19 (2002)).
. Id. (citing Gilliam v. Gilliam, 2010 Ark. App. 137, 374 S.W.3d 108).
. Id.
. Id.
. Smith v. Heather Manor Care Ctr., Inc., 2012 Ark. App. 584, 424 S.W.3d 368 (citing Martin v. Pierce, 370 Ark. 53, 63-64, 257 S.W.3d 82, 90 (2007)).
. Id. (citing Davis v. State, 375 Ark. 368, 375, 291 S.W.3d 164, 169 (2009)). | [
-112,
-24,
-11,
60,
8,
-31,
114,
-68,
114,
-125,
109,
-13,
-25,
99,
20,
121,
66,
43,
97,
121,
-63,
-74,
21,
64,
122,
-77,
-104,
95,
-68,
-7,
-27,
-34,
76,
112,
-54,
-43,
68,
75,
-61,
24,
70,
0,
-117,
108,
88,
-58,
56,
-29,
90,
15,
53,
-97,
-13,
-83,
25,
-62,
108,
108,
93,
-76,
80,
90,
-118,
15,
47,
6,
-79,
-76,
-110,
4,
96,
40,
-108,
57,
33,
-20,
115,
-74,
-110,
116,
87,
-103,
8,
112,
103,
3,
12,
-25,
-8,
9,
6,
60,
29,
-26,
-102,
73,
75,
11,
-74,
-107,
124,
22,
9,
-6,
107,
-52,
30,
108,
-124,
-50,
-44,
-79,
-124,
41,
52,
3,
-29,
-57,
48,
112,
-49,
-30,
93,
70,
51,
-101,
-34,
-46
] |
KENNETH S. HIXSON, Judge.
l;The Law Offices of Craig L. Cook (hereinafter “Cook” or “the law firm”) appeals the decision of the Arkansas Board of Review that awarded unemployment-compensation benefits to appellee June Gurgel-Anteski. Appellee was found to have been an employee of the law firm who was discharged for reasons other than misconduct connected with the work. Cook contends that the findings are not supported by substantial evidence, requiring reversal. We affirm.
We do not conduct a de novo review in appeals from the Board of Review. Snyder v. Director, 81 Ark.App. 262, 101 S.W.3d 270 (2003). Instead, we review the evidence and all reasonable inferences deducible from the evidence in the light most favorable to the Board |⅞741 of Review’s findings. Id. The Board of Review’s findings of fact are conclusive if supported by substantial evidence, which is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. If fair-minded persons could reach the Board’s conclusions on the same evidence, we must affirm its decision. Id. When the Board affirms and adopts the decision of the Appeal Tribunal, the Appeal Tribunal decision becomes the decision of the Board for purposes of appellate review. Ferren v. Director, 59 Ark.App. 213, 956 S.W.2d 198 (1997). Issues of credibility and the weight of evidence are matters for the Board to determine. Ballard v. Dir., Ark. Dep’t of Workforce Servs., 2012 Ark. App. 371, 2012 WL 1943622.
The evidence revealed the following. The Law Offices of Craig L. Cook had offices in Ft. Smith, Ozark, and Paris. Anteski completed her law degree and started working for Cook in his Paris office in November 2007. By early 2012, there were disagreements between Cook and Anteski. Cook was generally unhappy with Anteski’s performance as an attorney for his firm, and Anteski believed that Cook owed her money. Cook terminated Anteski by phone and followed the phone call with a letter on April 13, 2012, listing the reasons as “your unprofessional conduct, numerous client complaints, conflicting ideals regarding company procedures, as well as entertaining the idea of suing me, which was discussed during our earlier telephone conversation.” Anteski admitted that she did remark that she could sue Cook over what she was allegedly owed, although she said it was meant as a joke.
Two weeks after her termination, on April 27, 2012, Anteski filed a claim for unemployment benefits claiming she had been discharged from her employment with The |sLaw Offices of Craig L. Cook because “Craig owed me income. I asked him numerous times for an accounting. He kept saying he would, but never did.” She explained that Cook subsequently provided an accounting, but it was not complete. Further, Anteski stated that “he controlled the cases I worked and insisted on proofreading and approving, editing, etc. the pleadings and orders that I drafted. He controlled me just like he did the secretaries. But, he paid me and the other attorneys as independent contractors in order to dodge paying one-half of our tax obligation!.]”
The Department of Workforce Services sent a notice of Anteski’s claim to Cook. On May 1, 2012, Cook responded to the notice and stated in pertinent part that “Anteski was not an employee of my law firm, she was an independent contractor who is self employed.” Cook clarified his position that Anteski was an independent contractor in another letter by explaining how Anteski fit all the independent-contractor criteria listed on the Department’s website, mirroring the requirements of Ark.Code Ann. § ll-10-210(e) (Repl.2012), specifically describing “control (e)(1),” “service performed (e)(2),” and “independently established trade or business (e)(3).”
On June 1, 2012, the Department issued its Notice of Agency Determination, finding that Anteski had been discharged “due to alleged contemplation of suing the employer. The claimant denies this allegation and the employer has failed to provide evidence to substantiate this allegation. It is determined that the claimant was released for reasons other than misconduct.” The Department decided that Anteski was not disqualified pursuant to Ark.Code Ann. § 11-10-514 because she was not discharged for misconduct.
|4In Cook’s “Petition For Appeal to the Appeal Tribunal,” the sole issue listed was “Section 514(a).” However, Cook appended a letter with attachments that pertained to the issues of misconduct as well as Anteski’s status as an independent contractor. Among the attachments were two police reports, the Independent Contractor Agreement, Cook’s prior letters discussing independent-contractor status, and an affidavit. Cook also included a copy of a domestic-relations docket sheet in Logan County Circuit Court showing Anteski currently employed as a plaintiffs attorney.
The telephone hearing before the Arkansas Appeal Tribunal was conducted on September 12, 2012. At the beginning of the hearing, the hearing officer indicated that the only issue was whether Anteski voluntarily left or was discharged from her employment as defined by Ark.Code Ann. § ll-10-514(a). Cook responded that there was another issue, which was whether Anteski was an employee. Anteski objected to the inclusion of the issue of employment status. The hearing officer stated that the issue was whether Anteski was disqualified for misconduct under section 11-10-514, but that:
Now within that issue, I will take testimony and make a determination as to whether or not the claimant—or the employer exercised enough control over the claimant so that the employer is considered to be the claimant’s last work.... I will make a determination as to whether the employer, The Law Offices of Craig Cook, was the claimant’s last employer.
Angie Jennings, secretary and bookkeeper for Cook, testified that she was aware of numerous client complaints toward Anteski; that Anteski had refused to take files from other attorneys within the firm because they were too complicated; that Anteski did not want to travel to other counties to go to court; and that clients told her that they would never use the |,daw firm again because of Anteski. Sue McGee, another secretary for Cook, testified that there were several instances of confrontation between Anteski and clients of the firm. McGee also testified regarding an instance where Anteski told a circuit judge that a defendant had been served, when in fact, the defendant had not, and Cook had to intervene with the judge. Cook did not testify.
Anteski testified that she graduated law school and worked for the Witt Law Firm in Ozark for a few months. She then began to work for Cook in his Paris office. Anteski and Cook executed the Independent Contractor Agreement, which was introduced into evidence. The Agreement provided, among other things, that all files originating through Cook and referred to Anteski remained the property of Cook; that all files opened by Anteski would be the property of Cook; that the fees would be divided in half after the deduction of costs expended on that file; and that Cook would pay for malpractice insurance, signs, and secretarial staff.
Anteski testified that Cook paid for most of her continuing-education expenses, provided her sample pleadings, and told her how to present a case in court. She indicated that Cook provided her guidance and training on how to handle her cases. Several emails between Cook and Anteski supported her assertion as to his guidance and advice on specific files and pleadings. Anteski testified that when Cook did not accompany her to court, Cook wanted her to call and give him a report afterward. She signed her pleadings “June Anteski, of the Law Offices of Craig L. Cook.”
| r,Anteski testified that Cook initially paid her a draw of $600 per week and that all fees went into “a big pot” and that at some point Cook “would square up the monies due.” Anteski stated that in April 2011, Cook advised her that he was no longer going to pay her $600 per week but that he would only pay her one-half of what she brought in, less the costs. Ante-ski later requested an accounting, which she said Cook was tardy in providing. Anteski said that she discovered numerous errors in the accounting and brought it to the attention of Sue McGee, whom she asked to provide the backup invoices. When asked by McGee why else she wanted the invoices, Anteski said, “Well, I could always use them to sue him with.”
Cook terminated Anteski shortly thereafter. Anteski testified that her comment about potentially suing Cook was obviously a joke. The parties stipulated that there was disagreement between them over the issue of money.
The Appeal Tribunal issued its decision on October 11, 2012, and determined that Anteski was entitled to benefits. The Tribunal made the following findings of fact:
The claimant’s initial job training was provided by the employer, she received day to day instruction from the employer, and worked from the employer’s office. The claimant was discharged from work for threatening to sue the employer due to a dispute as to whether or not the employer owed monies to the claimant for work performed.
The Tribunal set forth its reasoning and conclusions, stating that the weight of the evidence indicated there was a genuine dispute as to whether Anteski was owed money and that Anteski’s actions did not constitute misconduct. As to Cook’s contention that Anteski was an independent contractor, the Tribunal stated that, “[t]he employer exerted sufficient | direction and control over the claimant to conclude that the claimant was an employee, not an independent contractor.”
Cook timely appealed the decision to the Board of Review. The Board of Review affirmed the Tribunal’s decision and found that the Tribunal’s decision was correct as to its findings of fact and conclusions of law. Cook timely appealed to this court.
We first address the finding that Anteski was terminated for reasons other than misconduct. Cook argues that this finding is not supported by substantial evidence because he proved that Anteski was guilty of misconduct. We disagree.
An individual shall be disqualified from receiving benefits if she is discharged from her last work for misconduct in connection with the work. Ark.Code Ann. § 11—10—514(a)(1) (Repl.2012). Misconduct in this context is not ordinary negligence or good-faith errors in judgment or discretion. Rodriguez v. Director, 2013 Ark. App. 361, 2013 WL 2368801. It is the employer’s burden to establish misconduct on the part of the employee by a preponderance of the evidence; it is a question of fact for the Board. Id. Typically, misconduct involves disregard of the employer’s interests, violation of the rules, disregard of the behavior standards rightfully expected of employees, and disregard for job duties and obligations. Id. There is an underlying requirement of intent with misconduct. Cochran v. Director, 2013 Ark. App. 72, 2013 WL 458002.
| ^Although Cook argues that his evidence was more plausible and persuasive on the issue of misconduct, we disagree that he has shown reversible error. We hold that there is substantial evidence of record to support a finding that the ending of this working relationship resulted from the genuine dispute between Cook and Anteski over monies owed. The law firm and Anteski had diametrically opposed views of her job performance and level of professionalism, a matter to be resolved by the faet-finder and obviously not found to be the reason she was terminated. We affirm the finding that Anteski was discharged from her last work with the law firm for reasons other than misconduct in connection with the work. See West v. Director, 94 Ark.App. 381, 231 S.W.3d 96 (2006).
Cook also argues on appeal that it was error to find that Anteski was an employee, as opposed to an independent contractor. The Department urges us not to address this issue, contending that Cook failed to preserve this issue for our review. We affirm on the merits because the Appeal Tribunal squarely addressed the issue of whether Anteski was an independent contractor or an employee of the law firm, and substantial evidence supports that finding.
Cook consistently argued that Anteski was not his employee, referencing the three factors enumerated in Ark.Code Ann. § 11—10—210(e)(1), (2), and (3), and pointing to the Independent Contractor Agreement executed by the parties. That statute defines “employment” in the unemployment context:
Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the director that:
|9(1) Such individual has been and will continue to be free from control and direction in connection with the performance of the service, both under his or her contract for performance of the service and in fact;
(2) The service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
See Ark.Code Ann. § ll-10-210(e) (Repl. 2012). There are statutory exemptions set out in the remainder of Ark.Code Ann. § 11-10-210, but they do not apply to the present appeal.
There is substantial evidence to support a finding that Cook maintained direction and control over Anteski. Cook provided Anteski the physical space in which to work, as well as support staff. Cook provided sample pleadings, training, and guidance on specific files and pleadings, evidenced by emails Anteski entered into evidence, spanning from 2008 through 2010. Cook had Anteski call him to report on cases after she attended court proceedings, and at other times, he attended court with her. It was Cook’s burden to demonstrate that all three statutory elements of section ll-10-210(e) were present. Having failed to do so, there is substantial evidence to support the Board’s finding on this issue. See Western Land Servs., Inc. v. Dir., Ark. Dep’t of Workforce Servs., 2012 Ark. App. 161, 2012 WL 559070.
For the foregoing reasons, the Board’s decision is affirmed.
GLOVER and WOOD, JJ., agree.
. This appeal has returned to us after we ordered rebriefing due to abstract and addendum deficiencies. See Cook v. Dir., Dep’t of Workforce Servs., 2013 Ark. App. 486, 2013 WL 4830491. Those deficiencies were cured, and we now address the merits of this appeal.
. The Board did make a correction to the Tribunal’s decision that is immaterial to this appeal. The Board found that the Tribunal’s decision was incorrect wherein it stated that "Joe Cook, attorney testified.” The record reflected that the correct name of the attorney was Craig L. Cook and that he did not testify but only questioned the witnesses. | [
-74,
106,
-36,
-84,
8,
96,
26,
-69,
97,
-117,
39,
-45,
-81,
-15,
28,
111,
-61,
61,
69,
107,
-41,
-77,
23,
65,
-26,
-9,
-13,
-57,
113,
-50,
-12,
92,
76,
48,
10,
-59,
102,
-24,
-53,
84,
-120,
7,
-69,
72,
88,
-124,
56,
47,
-14,
7,
48,
-2,
-13,
44,
24,
-61,
-24,
46,
91,
-83,
80,
-79,
50,
13,
95,
0,
-111,
4,
-66,
11,
-40,
46,
-112,
56,
-126,
-24,
114,
-74,
-46,
84,
65,
-71,
9,
100,
115,
34,
20,
-27,
104,
-56,
38,
127,
15,
-90,
-39,
25,
11,
105,
-106,
-72,
124,
22,
15,
124,
98,
69,
62,
108,
-120,
-50,
-128,
-125,
23,
45,
20,
27,
-17,
3,
20,
117,
-114,
-30,
93,
-57,
25,
95,
-50,
-78
] |
BRANDON J. HARRISON, Judge.
|, Pamela Hooks appeals a circuit court order that imprisoned her for forty-seven years after a jury convicted her of murdering John Davis in the second degree. We .affirm the conviction because we reject Hooks’s argument that the State failed to carry its burden of proof.
In October 2010, Hooks and her boyfriend, John Davis, fought physically inside an apartment they shared. Davis col lapsed sometime during the fight, and Hooks called 911. When the police arrived they saw Hooks performing CPR on Davis in the kitchen. Davis was pronounced dead later the same day.
Hooks was charged with murdering Davis in the first degree. She went to trial on that charge and some lesser-included charges (second-degree murder, manslaughter, and negligent homicide). At trial, a primary issue was Davis’s poor heart health. The forensic pathologist who performed the autopsy, Dr. Charles Kokes, testified that Davis had several 1preexisting heart conditions, including a main artery that was 90% blocked. Dr. Kokes testified that Davis died of a heart attack that was caused by the stress and physical exertion brought on by his fight with Hooks. Dr. Kokes told the jury that Davis incurred sixty-eight separate injuries—including cuts, scratches, scrapes, and “superficial” stab wounds—to his arms, hands, face, and head. Some of those injuries were consistent with defensive wounds. Dr. Kokes also testified that none of Davis’s injuries were life-threatening. “[Y]ou take a healthy individual and inflict the same type of injuries on them, at most, you’re probably looking at a trip to the emergency room and some stitches but they would otherwise be alright.” The official cause of death was “complications of cardiac arrest due to physical struggle, multiple superficial injuries and arterial sclerotic cardiovascular disease.” Dr. Kokes classified Davis’s death as a homicide.
The State alleged that Hooks murdered Davis by cutting him with scissors, which caused an increase in Davis’s heart rate' and blood pressure and resulted in his death. According to the State Crime Lab’s tests, scissors that were recovered from the apartment were stained with Hooks’s and Davis’s blood.
Without objection, the jury also heard about the couple’s prior troubles. Police officer John Alberson testified during the trial that he arrested Hooks in 2008 after he found Davis with several lacerations on his head and his nose hanging off his face. Officer Alberson said that Hooks told him when he arrested her that “she was attempting to kill [Davis] and if she didn’t do it, she was going to have somebody do it for her.” Hooks testified too, admitting that she had pled guilty to first-degree battery for the 2008 incident that Officer Alberson described. She also described to the jury the events surrounding | ¡¡Davis's death. Hooks said that, before he died, Davis hit her in the back of the head with a skillet and then held her around her neck. She said that Davis’s injuries were caused by her grabbing some broken glass and a piece of broken plate and “hitting him blindly” as she tried to free herself. According to Hooks, Davis suddenly stopped fighting and collapsed. When he didn’t get up, Hooks called 911 and tried to resuscitate him. Hooks testified that nobody, including herself, knew that Davis, who was sixty years old when he died, had coronary-artery disease. The State offered no evidence that either Hooks or Davis knew about his heart condition.
Hooks also testified about her personal relationship with Davis. She told the jury that she called him “Daddy” and they had an open sexual relationship that sometimes turned violent. Hooks said that she and Davis were fighting over her involvement with another man the day Davis died.
At trial, Hooks moved for a directed verdict on the first-degree murder charge and the lesser-included charges. The circuit court granted her motion on the first-degree-murder charge. The court denied the rest of her motions and instructed the jury on second-degree murder, manslaughter, negligent homicide, and the self de fense of justification. The jury found Hooks guilty of committing second-degree murder after receiving this instruction:
The State must have proved beyond a reasonable doubt that Hooks, with the purpose of causing serious physical injury to John Davis, caused the death of John Davis.
A person acts purposely with respect to his conduct or the result of his conduct when it is his “conscious object to engage in conduct of that nature or to cause the result.”
14Serious physical injury is a “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.”
Our supreme court has stated that a person commits second-degree murder in either of two ways. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007). A person commits this crime if she “[kjnowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-10-103(a)(l) (Repl.2006). The second way to commit the crime is when a person, “[w]ith the purpose of causing serious physical injury to another person ... causes the death of any person.” Ark.Code Ann. § 5-10-103(a)(2) (Repl.2006). In this case, the jury was instructed on the second way to commit second-degree murder.
Hooks’s point on appeal is that the circuit court erred in denying her directed-verdict motion on the second-degree murder charge because the State failed to place substantial evidence before the jury that Hooks acted with the purpose of causing Davis serious physical injury. Hooks thus challenges the sufficiency of the State’s proof on the mental-state element of Ark.Code Ann. § 5-10-103(a)(2).
Motions for a directed verdict are challenges to the sufficiency of the evidence. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). In reviewing Hooks’s challenge, we ask whether the verdict is supported by substantial evidence; the evidence may be direct, circumstantial, or some combination of the two. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). For circumstantial evidence to be substantial, it must exclude every reasonable hypothesis other than the accused’s guilt. The jury decides whether the circumstantial evidence excludes every hypothesis consistent with innocence. Substantial Uevidence forces or compels a conclusion one way or the other so that the jury does not have to speculate to reach a decision. We will not overturn its determination unless the jury had to speculate to reach the verdict it did. The jury also weighs the evidence and judges witness credibility. Id.
A criminal defendant’s state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). A person is presumed to intend the natural and probable consequences of her actions. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). Intent also can be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the trauma suffered by the victim. Wyles v. State, 368 Ark. 646, 651, 249 S.W.3d 782, 786 (2007). The existence of criminal intent or purpose is a matter for the jury to determine when criminal intent may be reasonably inferred from the evidence. McClard v. State, 2012 Ark. App. 573, 2012 WL 4832293.
As we have pointed out, Hooks’s directed-verdict motions limit her sufficiency challenge to one element of second-degree murder: intent. The State’s argument is likewise limited because it prosecuted her solely under the bodily-injury section of the statute.
The State asks us to interpret Ark.Code Ann. § 5—10—103(a.)(2) to mean that it does not have to prove that Hooks actually inflicted serious physical injury. The only mental state it must prove for second-degree murder, the State contends, is that Hooks had the purpose to cause serious physical injury, not that she actually caused a serious physical injury. (Recall Dr. Kokes’s testimony that all of Davis’s cuts, scrapes, and stab | ^wounds would not have alone killed him and many would not have even required stitches.) Hooks argues the evidence cannot support the conviction because the State failed to prove that the injuries she inflicted were serious physical injuries and that it failed to prove the mental state required for second-degree murder.
We return to the statute, which reads: “A person commits murder in the second degree if ... with the purpose of causing serious physical injury to another person, the person causes the death of any person.” Ark.Code Ann. § 5-10-10S(a)(2) (Repl.2006). Our supreme court has differentiated between first-degree and second-degree murder by emphasizing that first-degree murder requires a person to act with the purpose of causing the death of another person. But second-degree murder requires a lesser mental state— the person must only act with the purpose of causing serious physical injury. Reynolds v. State, 341 Ark. 387, 391, 18 S.W.3d 331, 333 (2000). So according to the controlling caselaw, Hooks did not have to intend to kill Davis for the jury to convict her of second-degree murder. Instead, a second-degree, bodily injury type murder requires Hooks to have acted with the conscious objective to cause something more than a plain “bodily injury” but something less than death. Consequently, if substantial evidence supports the jury’s decision that Hooks intended to seriously injure Davis, though not to kill him, then she could be found guilty of second-degree murder and we must affirm.
We agree with the State that the statute does not, by its express terms, require that it prove Hooks actually inflicted serious physical injuries. Yet Hooks’s argument has traction because most of our caselaw addressing second-degree murder involved far more serious injuries than the “superficial” (albeit numerous) wounds Hooks inflicted. In Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007), for example, our supreme court upheld a second-degree-murder conviction for serious physical injury. But there the evidence showed that a wife had sustained several serious injuries—multiple rib fractures, a jaw fracture, and a punctured lung—that were inflicted using a considerable amount of force. In another case, a jury convicted a defendant of second-degree bodily-injury murder, which the supreme court upheld, when the evidence showed that the victim died from repeated blows to the head. Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993). And in Johnson v. State, 2010 Ark. App. 153, 375 S.W.3d 12, a jury convicted a wife of second-degree murder when she calmly watched her husband bleed to death after shooting him in the wrist. Another case involved a victim who died from a severe stab wound to the arm. Edwards v. State, 40 Ark.App. 114, 842 S.W.2d 459 (1992).
Having considered the record as a whole and the caselaw applying the applicable murder statute, we hold that substantial evidence supports the jury’s finding that Hooks acted with the purpose to seriously injure Davis. As we stated earlier, a jury may infer criminal intent in light of the surrounding circumstances, including the use of a deadly weapon, the manner in which the weapon was used, and whether it was calculated to cause serious bodily injury. Wyles, supra. And here, the jury could have reasonably inferred that Hooks intended to seriously injure Davis because she used scissors, an instrument that may be a deadly weapon. See Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996) (holding that scissors, when used to stab someone, were a deadly weapon). The cumulative number of injuries (sixty-eight) gives rise to the inference that she intended serious harm. Some of those injuries were defensive wounds. Most of the |8injuries were inflicted to vital parts of Davis’s body, his face and head. And had Davis lived, these injuries may have caused scarring or permanent disfigurement, or at least the jury could have so inferred from the photographs and testimony received during the trial.
We are also mindful that the jury was not required to believe Hooks’s side of the story. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). Indeed, the jury apparently did not because it rejected the lesser charges and her affirmative defense of justification. Also ripe for the jury’s consideration and weighing was Officer Alber-son’s testimony that Hooks told him that she had wanted to kill Davis. Hooks also told the jury that she was in love with another man and that she had seriously injured Davis with scissors before.
Affirmed.
GLOVER and PITTMAN, JJ., agree. | [
-80,
107,
-99,
-1,
57,
32,
10,
-8,
-31,
-62,
-16,
123,
-83,
-31,
77,
109,
56,
-11,
69,
113,
-111,
51,
21,
103,
-10,
-41,
41,
-45,
-13,
-17,
-15,
-3,
76,
112,
-62,
101,
98,
10,
-11,
88,
-118,
16,
-23,
-15,
26,
-109,
48,
107,
-118,
7,
52,
12,
-69,
11,
22,
-26,
73,
40,
90,
-73,
96,
33,
-119,
37,
-56,
16,
-93,
-89,
-68,
14,
-38,
36,
-103,
-80,
0,
-2,
51,
-106,
-58,
84,
103,
-119,
-60,
98,
98,
52,
93,
-115,
0,
-120,
47,
110,
-101,
-89,
-102,
96,
73,
14,
-76,
-9,
78,
116,
-122,
-8,
117,
95,
93,
44,
-58,
-42,
-76,
-101,
71,
32,
28,
-14,
-45,
43,
48,
101,
-49,
-22,
94,
-28,
91,
-5,
43,
-78
] |
DONALD L. CORBIN, Associate Justice.
11 Appellant, Amalie “Amy” E. Singletary (now Bishop), appeals the order of the Lonoke County Circuit Court awarding a change in custody of her minor daughter to her former husband, Appellee Joseph E. Singletary. For reversal, she contends that the circuit court erred in failing to consider her status as a custodial parent and in failing to apply the presumption announced in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003) that relocation by a custodial parent is not alone a material change in circumstances; she also contends that the circuit court erred in not articulating the standard of analysis for ordering a change in custody. We granted Appellee’s petition for review of the decision of the Arkansas Court of Appeals that reversed and remanded the circuit court’s order. Bishop v. Singletary, 2013 Ark. App. 394, 428 S.W.3d 566. Jurisdiction of this appeal is therefore properly in this court pursuant to Arkansas Supreme Court Rule l-2(e) (2013). We cannot [2say the circuit court was clearly erroneous; therefore, we affirm the circuit court’s order granting a change in custody to Appellee. The opinion of the court of appeals is vacated.
Appellant and Appellee were divorced by decree in April 2010. They had one child, their daughter C.S., who was born in 2007. Regarding custody of C.S., the decree states that “[t]he parties shall have joint custody of the minor child with [Appellant] having primary custody. Child support and visitation shall be in accordance with the settlement agreement attached hereto and incorporated herein as if set out word-for-word.” The stipulation and property-settlement agreement states that “the parties shall have joint legal custody of the parties’ minor child ... with the [Appellant] being the primary physical custodian.” The agreement further states that, unless agreed upon otherwise, “the parties shall alternate custody of the minor child on a weekly basis, with visitation exchange to occur every Friday at 5:00 p.m.” Finally, with respect to custody, the agreement states that the parties “shall attempt to consult with one another concerning the health, welfare, education and activities of the minor child.” As for child support, the agreement makes no provision for either party to pay or receive child support. The agreement does provide, however, that Appellee would provide health insurance for C.S., that all other expenses such as orthodontic, ophthalmic, and daycare expenses would be divided evenly, and that Appellee would claim C.S. as a dependent for federal and state income-tax purposes.
Both parties remarried after the divorce. In April 2011, Appellant filed a motion for change of custody and child support, alleging therein that a material change in circumstances had occurred since the decree was entered because her current spouse was being transferred |sto Fort Worth, Texas. Appellant acknowledged in the motion that the parties “were granted joint custody of the minor child with [Appellant] having primary custody.” Appellant acknowledged further that neither party had been ordered to pay child support. Appellant alleged that the , relocation to Texas with her new husband was a change in circumstances and requested that she be granted sole custody of the child, subject to liberal visitation by Appel-lee, with the costs of visitation to be shared between the parties.
Appellee responded and counterclaimed for sole custody and support. He also filed several motions, including one for the appointment of an attorney ad litem and one for mediation. Prior to the hearing on the cross-motions for change of custody, the parties and the attorney ad litem attended mediation. They reached a detailed agreement as to the visitation arrangement or “parenting plan” they wanted the court to implement once the court determined who was to be granted sole custody. The gist of their agreement was that the noncustodial parent would have visitation one weekend per month, every spring break, the majority of the summer, and every- other Christmas.
At the hearing on the motions for change of custody, both Appellant and Ap-pellee testified that they had originally agreed to joint custody with Appellant as primary physical custodian; both parties testified that they understood this to mean that they would each have equal time with their daughter, but that Appellant would be the parent with the ultimate Irresponsibility to make final decisions about C.S.’s care. Appellant and her new husband, Gerald Bishop, testified that he had obtained a new position in Texas with a higher salary that would allow Appellant to be a stay-at-home mother to C.S. and C.S.’s younger half-siblings. Both Appellant and Appellee testified that there were no disagreements with the custody arrangement until after Appellant’s relocation.
Appellant’s-counsel presented closing argument at the hearing and contended that Appellant should receive the presumption in favor of relocation by a custodial parent set out in Hollandsworth, 353 Ark. 470, 109 S.W.3d 653. Counsel for Appellee argued that Hollandswortk did not apply because the parties had joint custody of their child. The attorney ad litem for C.S. also presented closing argument and agreed with Appellee that the parties had a true joint-custody arrangement and that Hollandswortk should therefore not apply. The attorney ad litem pointed out -that both parties were fit parents who had agreed to share custody of their daughter on a “fifty-fifty” basis, but that that agreement could no longer work. The attorney ad litem opined that the parties were equal in light of the factors stated in this court’s Administrative Order No. 15, but did observe that all of C.S.’s extended family ties were in Arkansas and none were in Texas. The attorney ad litem stated that joint custody was in C.S.’s best interest and that he did not see how breaking the joint-custody agreement would be in C.S.’s best interest. The ad litem ultimately recommended that Appellee be given custody of C.S.
On May 8, 2012, the circuit court entered an order in which it found that the parties had joint custody of C.S. and that Appellant’s relocation and the parties’ inability to cooperate ^constituted a material change in circumstances. The order re- fleets that the circuit court then considered the child’s extended family relationships in Arkansas and the recommendation of the child’s attorney ad litem when concluding that a change in custody to Appellee would be in the child’s best interest. Accordingly, the circuit court’s order awarded sole custody of the child to Appellee. The circuit court did not apply Hollandsworth in making its decision, but did cite Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002), for the general proposition that, when a trial court changes custody of a child, the court must first determine that a material change in circumstances has transpired since the time of the divorce, and then determine that a change in custody is in the child’s best interest.
Appellant’s appeal to the court of appeals followed. The court of appeals decided the appeal in Appellant’s favor and reversed and remanded the case to the circuit court. Bishop, 2013 Ark. App. 394, 428 S.W.3d 566. As noted, we granted Appellee’s petition for review of that decision.
When this court grants a petition to review a decision by the court of appeals, we review the appeal as if it had been originally filed in this court. Lewellyn, 351 Ark. 346, 93 S.W.3d 681. This court has traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. Id. We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. Id. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a | ^mistake has been committed. Id. We also give due deference to the superior position of the chancellor or circuit court to view and judge the credibility of the witnesses. Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823. These common-law principles continue to apply after the adoption of amendment 80 to the Arkansas Constitution. Lewellyn, 351 Ark. 346, 93 S.W.3d 681.
Appellant’s first and third points for reversal are so closely related that we consider them together. Appellant’s first point for reversal is that the circuit court erred in failing to take into consideration her status as primary custodial parent. Her third point for reversal is that, as the alleged custodial parent, she was entitled to the presumption announced in Hollandsworth, 353 Ark. 470, 109 S.W.3d 653, that relocation by a custodial parent alone does not constitute a material change in circumstances. In short, Appellant takes the position that her status as “primary physical custodian” in a “joint-custody” arrangement is the equivalent of having been given sole custody such that her petition for change of custody should be analyzed under Hollandsworth. Appellant argues that the circuit court erred in disregarding the Hollandsworth analysis and applying the analysis of Lewellyn instead.
Appellee acknowledges Appellant’s status as primary physical custodian, but contends that status does not alter the joint-custody relationship the parties agreed to and in fact enjoyed with their child prior to Appellant’s relocation. Appellee responds that Lewellyn is the controlling precedent here because Lewellyn applies when the parties share joint custody. Because the parties do have joint custody, Appellee’s argument continues, Hollandsworth’s presumption that a custodial parent’s relocation does not alone constitute a material change 17in circumstances simply does not apply to Appellant. In short, Appellee contends that Hollandsworth does not apply to a joint-custody arrangement.
We begin our analysis with a review of the Hollandsworth opinion. First and foremost, we observe that the term “joint custody” does not appear anywhere in the Hollandsworth decision, although the term “primary custody” does, as do the terms “custodial parent” and “noncustodial parent.” When describing the custody agreement of the parties in Hollandsworth, this court stated as follows:
According to the divorce decree, appellant was awarded primary custody of the parties’ two children, subject to visitation by appellee. The divorce decree went on to find that appellant and appel-lee were each entitled to one-half of the children’s free time, which the trial court set out as being weekends, holidays, and summer vacations. The trial court further set out a schedule of visitation if the parties could not otherwise agree. The parties thereafter negotiated a more liberal visitation schedule that allowed ap-pellee to be with the children three and one-half days per week until the eldest child began kindergarten.
Id. at 472-73, 109 S.W.3d at 655 (emphasis added). The foregoing relationship described in Hollandsworth was not a joint-custody arrangement. Rather, Hollands-worth involved a situation of sole custody with primary custody of the children being given to one parent, the custodial parent, and visitation during half of the children’s free time being given to the other parent, the noncustodial parent. That the Hollandsworth case involved a sole- or primary-custody arrangement, as opposed to a joint-custody arrangement, is further evident in the language of this court announcing its holding:
We agree and hold that relocation of a primary custodian and his or her children alone is not a material change in circumstance. We announce a presumption in favor of relocation for custodial parents with primary custody. The noncustodial parent should have the burden to rebut the relocation presumption. The custodial parent no longer has |sthe responsibility to prove a real advantage to herself or himself and to the children in relocating.
The polestar in making a relocation determination is the best interest of the child, and the court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (8) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and, (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.
Id. at 476, 485, 109 S.W.3d at 657, 663-64 (emphasis added).
We clarify today that the Hollands-worth relocation presumption applies only in those cases where a parent has been granted sole or primary custody of a child. We further clarify that the Hollandsworth relocation presumption simply does not apply when the parents share joint custody of a child. This is so because the rationale for the Hollandsworth presumption simply does not apply to a joint-custody arrangement. The purpose of the Hollandsworth decision was to recite and adhere to this court’s historical recognition of the right of a custodial parent to relocate and take the children with him or her and to thereby correct the court of appeals’ erroneous de parture from that historical precedent in favor of the erroneous “real advantage” test. See id. at 475, 109 S.W.3d at 657. The rationale behind Hollandsworth was to preserve and protect the stability of the relationship between the child and the custodial parent with whom the child spent the majority of his time, while balancing the custodial-parent’s right to relocate. Id. However, in a true joint-custody arrangement, both parents share equal time and custody with the child; therefore, there is not one child-parent 19relationship to take preference over the other. The rationale of the Hollandsworth relocation presumption simply does not apply to a parent who has joint custody and desires to relocate. We do not retreat from the relocation presumption announced in Hol-landsworth, but clarify that it is not applicable when the divorcing parents have joint custody of their children.
We further clarify that the proper analysis for a court facing a change-in-custody request due to relocation of one parent when the parents have joint custody was announced by this court in Lewel-lyn. That analysis, however, is essentially the same as a change-in-custody analysis when relocation is not involved. See Lewellyn, 351 Ark. at 357, 93 S.W.3d at 687 (stating that the trial court was correct in refusing to apply relocation analysis and instead analyzing case as “purely one involving change of custody”). Thus, as this court stated in Lewellyn when a change-of-custody was sought in a joint-custody arrangement, the trial court “must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change of custody is in the best interest of the child.” Id. at 355, 93 S.W.3d at 686 (citing Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001)).
Having determined that Lewellyn applies to relocation cases where parents share joint custody and that Hollands-worth applies to relocation cases where one parent has sole or primary custody, we must now consider the propriety of the circuit court’s finding that the parties in the present case had agreed to and did in fact share joint custody of their daughter. We begin by looking to the contracts involved—in this case that is the divorce decree, which also incorporates by reference a property-settlement agreement as to custody and visitation.
ImThis court set forth the applicable standard of review for issues of contract interpretation in Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 371, 255 S.W.3d 424, 429 (2007) (citations omitted) (quoting Alexander v. McEwen, 367 Ark. 241, 244, 239 S.W.3d 519, 522 (2006)):
The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement.
This court has explained further that when an ambiguity exists in a contract, we are permitted to look outside the contract to determine the actual intent and conduct of the parties. Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998). In arriving at the intention of the parties, the courts may consider and accord considerable weight to the construction of an ambiguous contract or deed by the parties themselves, evidenced by subsequent statements, acts, and conduct. Id.
Referring to the contract language recited at the beginning of this opinion, we see that the issue in this case is the interpretation of the following language in the divorce decree: “The parties shall have joint custody of the minor child with [Appellant] having primary custody.” The decree’s use of the term “joint custody” along with the term “primary custody” is ambiguous on its face. According to the above-cited rules of contract interpretation, we resolve the ambiguity by looking to other parts of the contract and to the |nparties’ testimony about what they intended, as well as to their conduct. See id. In looking at all these factors, it is uncontroverted that the parties intended a true joint-custody arrangement and that they did in fact enjoy a true joint-custody arrangement. Other parts of the decree, as well as the separation agreement that was incorporated therein, indicate that C.S.’s time would be divided between the parties on a weekly basis and that decisions regarding C.S.’s care, as well as expenses associated with her care, would be divided equally. We observe the recent definition of “joint custody” adopted by the General Assembly in a 2013 amendment to Arkansas Code Annotated § 9-13-101(a)(5) (Supp.2013): “joint custody’ means the approximate and reasonable equal division of time with the child by both parents individually as agreed to by the parents or as ordered by the court.” The testimony at the hearing in this case of the parties’ intent was undisputed that equal time with their daughter was intended, and the parties conduct confirmed that, as both parties testified that they did, in fact, share equal time with OS. And that is indeed what the circuit court found when it concluded that these parties had agreed to a “true 50/50 arrangement with the parties having equal time with their child with both parties in close proximity in Arkansas.”
Because the circuit court correctly found that the parties in the present case enjoyed a true joint-custody relationship despite the designation of Appellant as “primary physical custodian” for the purpose of having the final decision as to the child’s care, we conclude that the circuit court did not err in failing or refusing to apply the Hollandsworth presumption in favor of Appellant. Likewise, because the circuit court correctly found that the parties have |12a true joint-custody relationship, we conclude that the analysis of Lewellyn was the controlling precedent to be applied by the circuit court.
Turning now to Appellant’s second point on appeal, we consider her argument that the circuit court erred in failing to articulate the analysis it used in granting a change of custody. Initially, we note that Appellant has not pointed us to anything in the record to demonstrate that she made a timely request for specific findings and conclusions pursuant to Rule 52 of the Arkansas Rules of Civil Procedure. Even assuming arguendo that she did make such a timely request, we conclude that her argument is wholly without merit. The circuit court expressly articulated that it was applying the change-in-custody analysis of Lewellyn, whereby it must first find that a material change in circumstances has transpired since the divorce and that a change in custody is in the best interest of the child. The circuit court then found as follows:
8. With [Appellant’s] move to Texas, along with the impracticality of the parties’ continuing to exercise joint custody and the parties’ lack of cooperation in decisions that affect the child’s welfare, the Court finds there to be a material change in circumstances.
9. The Court then considers the child’s best interests in determining whether to grant a change in custody.
10. In determining the child’s best interest, the Court has considered, the moral fitness, stability, and love and affection of the parties. The Court has also considered the child and all her family relationships, including her extended family relationships in Arkansas. The Court further finds that both [Appellant]’s husband and [Appellee]’s wife are positive influences in the child’s life. The Court has also considered the recommendation of ... the child’s attorney ad litem.
11. In sum, the Court has weighed the totality of the considerations in favor of [Appellee] being granted custody of [C.S.], though not to a significant degree.
| ^[Appellant] shall have visitation with [C.S.] as previously agreed to by the parties.... The Court specifically finds said custody and visitation to be in [C.S.]’s best interest.
12. Since [Appellant] is currently unemployed, the Court sets her child support at the chart minimum, which is $26/week.
Given the foregoing analysis of the circuit court, Appellant’s argument that the circuit court failed to articulate an analysis is wholly without merit. In addition, we simply cannot say on this record that the circuit court’s findings were clearly erroneous. The circuit court’s order granting a change in custody from joint custody to sole custody in Appellee with visitation to Appellant is affirmed. The opinion of the court of appeals is vacated.
Affirmed; court of appeals’ opinion vacated.
BAKER and HART, JJ., dissent.
. At the hearing on this motion, the circuit court accepted the stipulation of Appellant’s counsel that it was attorney error that the motion stated that Appellant’s new husband was being transferred to Texas when in truth he was seeking an elective position there. | [
16,
104,
-11,
124,
26,
97,
51,
-80,
82,
-77,
101,
-13,
-29,
-2,
24,
121,
-125,
107,
97,
121,
-63,
-73,
86,
96,
112,
-13,
-79,
90,
-70,
125,
108,
-42,
76,
112,
-117,
81,
70,
75,
-49,
-48,
-114,
2,
106,
-20,
88,
-122,
52,
105,
26,
15,
85,
-114,
-73,
-87,
61,
-62,
-24,
42,
25,
-66,
89,
58,
-117,
7,
111,
7,
-77,
52,
-110,
-124,
88,
44,
-108,
49,
8,
-7,
115,
-122,
-114,
112,
71,
-39,
9,
112,
119,
0,
12,
-25,
-80,
-120,
110,
62,
13,
-26,
-38,
89,
75,
67,
-90,
-76,
124,
84,
12,
124,
-14,
-51,
94,
68,
-92,
-49,
84,
-91,
12,
40,
-108,
19,
-29,
-62,
112,
53,
-53,
-94,
117,
70,
51,
-45,
-74,
-14
] |
CLIFF HOOFMAN, Justice.
| Appellant appeals from the Pulaski County Circuit Court’s January 24, 2013 order finding him in criminal contempt and issuing a $250 fine for failing to appear and answer a valid legislative subpoena. The Arkansas Court of Appeals certified this case to us, stating that it involves issues of first impression and of substantial public interest; issues needing clarification or development of the law; and substantial questions of law concerning the validity, construction, or interpretation of an act of the General Assembly. Therefore, jurisdiction is properly in this court pursuant to Arkansas Supreme Court Rule l-2(b) and (d) (2013). On appeal, appellant contends that (1) the circuit court erred in denying his motion to dismiss for lack of service pursuant to Ark. R. Civ. P. 4 (2012); (2) the circuit court erred in ruling that the subpoena issued by the legislative audit committee was a valid subpoena; and (3) the circuit court erred in finding appellant in criminal contempt. We affirm.
lüThis case arose after appellant had failed to appear and testify during a meeting of the Legislative Joint Auditing Committee’s Standing Committee on Counties and Municipalities after he had been subpoenaed to do so by the Legislative Auditor, Mr. Roger A. Norman. The subpoena specifically stated that appellant would be compensated as a witness after his appearance and included an authorization form to complete and return for reimbursement pursuant to Ark.Code Ann. § 10-4-421 (Repl.2012). The subpoena also specifically quoted Ark.Code Ann. § 10-4-421(d)(l), which provides,
If any person subpoenaed to appear by the Legislative Auditor fails to appear or to produce books, documents, or records subpoenaed, the fact shall be certified to the circuit court of the county in which the hearing is held, and the circuit court shall punish the person for contempt in the same manner as punishment for contempt is imposed for failure to respond to a subpoena or directive of the circuit court.
After appellant had failed to appear as subpoenaed, Mr. Norman filed a petition for adjudication of contempt in the Pulaski County Circuit Court. In the petition, Ark.Code Ann. § 10-4-421(d)(l) and Ark. Code Ann. § 16-10-108(a)(3) (Repl.2010) were cited and quoted as the statutory bases for further proceedings. Additionally, Mr. Norman, through counsel, requested the circuit court to determine that a prima facie showing of criminal contempt had been shown, to issue an order to show cause, to direct the service of the order to show cause with the petition to appellant, to find appellant guilty of criminal contempt after a hearing, and to punish appellant pursuant to Ark.Code Ann. § 16-10-108. On November 2, 2012, the circuit court issued an order to appear and show cause, citing Ark.Code Ann. §§ 10-4-421(d)(1) and 16-10-108(c), and ordered Mr. Norman to serve the order on appellant by any means provided for under Ark. R. Civ. P. 4. An affidavit that appellant Igwas served by process server with the order to appear and show cause, the petition for adjudication of contempt, exhibit A, and the subpoena were filed on November 28, 2012.
On December 5, 2012, a hearing was held with Mr. Larry Jegley, the Pulaski County Prosecuting Attorney, and Mr. D. Franklin Arey, III, counsel on behalf of Mr. Norman, present. At the hearing, there was a brief discussion as to whether the proceedings against appellant were for civil or criminal contempt. Mr. Arey contended that the proceedings needed to continue as a matter of criminal contempt, and Mr. Jegley requested that he be appointed to proceed on behalf of the State in the case. Subsequently, an order was filed on January 8, 2013, appointing Mr. Jegley to represent the State of Arkansas in these proceedings and relieving Mr. Arey of any further responsibilities in this matter.
Appellant filed a motion to dismiss on December 10, 2012, alleging that the case should have been dismissed against him as he was never served a summons in compliance with Ark. R. Civ. P. 4. On January 8, 2013, the circuit court held a pretrial hearing on the motion to dismiss. It was undisputed that a summons was never served. However, the State argued that the criminal contempt-statute did not require a summons but only required that appellant have notice of the accusations, and the circuit court denied the motion to dismiss.
A trial was held immediately after the court denied the motion to dismiss. Mr. Norman testified that a state trooper had served appellant with a subpoena to attend a legislative committee meeting on October 11, 2012, at 1:30 in the State Capitol. He further testified, without objection, that Mr. Arey, legal counsel, had received a voicemail from appellant on the afternoon of October 10, 2012, informing him that appellant would not Rappear at the meeting. On cross-examination, Mr. Norman testified that a witness-fee check had not been submitted with the subpoena and that there is no mechanism or person at the legislative audit division to hear motions to quash subpoenas.
After the State presented its evidence, appellant moved to dismiss the petition, alleging that there was no testimony of willful disobedience of a court order and that appellant should not be held in contempt of an invalid subpoena, since it was not accompanied by a witness fee pursuant to Ark. R. Civ. P. 45(d) (2012). After the State argued that Ark. R. Civ. P. 45 was inapplicable, the circuit court denied appellant’s motion to dismiss.
Appellant testified that he appeared on behalf of his clients in Phillips County District Court on October 11, 2012, and did not finish until 12:30 that afternoon. He further testified that he had not received a witness fee with the subpoena. He spoke with Mr. Arey after receiving the subpoena but did not inform him that he had a conflict. Instead, appellant left Mr. Arey a voicemail on October 10, 2012, that he was not going to appear, despite the fact that he knew that he was scheduled to be in court prior to that day.
On rebuttal, Mr. Arey testified that the legislative audit division does not send witness fee checks with the subpoenas. Rather, the division sends a form with the subpoena to inform a person that they will be compensated after they appear and testify. At the conclusion of the rebuttal testimony, the State rested its case, and appellant’s counsel responded to the court’s inquiry that he had nothing further. The circuit court announced that it would take the case under advisement and explained that it would wait to make its ruling until after appellant had an opportunity to present any case law for its consideration.
| fiBoth the State and appellant filed post-hearing briefs, and appellant’s brief requested that the circuit court dismiss his case because the subpoena failed to comply with Ark. R. Civ. P. 45. However, the circuit court filed an order on January 24, 2018, finding that the subpoena was valid. The circuit court held that Ark.Code Ann. § 10-4-421 did not require compliance with Rule 45. Furthermore, the circuit court made the following findings of fact in holding appellant guilty of criminal contempt:
The undisputed testimony at trial established that Mr. Valley had two communications with Frank Arey, counsel for the audit committee, following his receipt of the subpoena. These were the only communications Valley had with the Committee. The first was shortly after receipt of the subpoena to inquire as to the nature of the hearing. The second communication was made the day before the hearing and consisted of Mr. Valley leaving a voice message that he did not plan to attend the hearing the following day. Mr. Valley testified at the hearing that the reason he did not appear was because he had other court business in Helena. The Court finds that Mr. Valley’s reasons for failing to answer the subpoena do not amount to good cause. The Court further finds that Mr. Valley is guilty of criminal contempt for failing to appear and answer a valid legislative subpoena. Mr. Valley is fined $250 for his contempt of the Arkansas General Assembly.
This appeal followed. In addition to the parties filing their briefs on appeal, the Arkansas Court of Appeals also granted the Arkansas Legislative Council, President Pro Tempore of the Senate, and the Speaker of the House of Representatives’ motion to file an amicus curiae brief in support of the appellee on November 13, 2013.
Appellant contends in his first point on appeal that the circuit court erred in denying his motion to dismiss for lack of service pursuant to Ark. R. Civ. P. 4. Specifically, he alleges that the State served him a petition for adjudication of contempt along with an order to show | f,cause but failed to include a summons as required by the Rule. However, appellant is mistaken. This court specifically held in Arkansas Department of Human Services v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998), that the rules of civil procedure do not apply in a criminal contempt proceeding. Furthermore, this court rejected that a criminal summons was necessary under Ark. R.Crim. P. 6.3. Id. Instead, this court held that
the governing provision is Ark.Code Ann. § 16-10-108, which sets forth the court’s power to punish for criminal contempt and provides in part that “the party charged shall be notified of the accusation and shall have a reasonable time to make his defense.” Moreover, the Due Process Clause requires that an alleged contemnor be given notice of the charge of contempt pending against him and be informed of the specific nature of the charge.
Id. at 539-40, 970 S.W.2d at 237 (citing Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988)). The petition and order to show cause sufficiently provided appellant with notice that 17he was accused of criminal contempt for failing to appear in compliance with the subpoena, and the circuit court did not err in failing to grant appellant’s motion to dismiss. Therefore, we affirm on this point on appeal.
Appellant contends in his second point on appeal that the circuit court erred in ruling that the subpoena issued by the legislative audit committee was valid. Specifically, appellant alleges that the subpoena was invalid because it was not accompanied by a witness fee calculated at the rate of thirty dollars per day for attendance and twenty-five cents per mile for travel from the witness’s residence to the place of the hearing in compliance with Ark.Code Ann. § 10-4-421(e) and Ark. R. Civ. P. 45(d). Therefore, appellant alleges that he could not be held in criminal contempt for not complying with an invalid subpoena.
This court reviews issues of statutory interpretation de novo and is not bound by the circuit court’s determination. Nolan v. Little, 359 Ark. 161, 196 S.W.3d 1 (2004). This court’s 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, this court determines legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, this court construes it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous or insignificant, and this court gives 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 |sto 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. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007). When a statute is ambiguous, this court 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, this court will reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Williams, supra. In addition, this court must look at the legislative history, the language, and the subject matter in volved. Id. However, when a statute is clear, it is given its plain meaning and this court will not search for legislative intent. Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). This court is very-hesitant to interpret a legislative act in a manner that is contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Arkansas Code Annotated § 10-4-421 empowers the Legislative Auditor with subpoena powers. Subsection (c) provides that “[a]ny person summoned to appear before the Legislative Auditor ... as required in this section shall receive the same compensation as is received by persons serving as witnesses in circuit courts of this state.” Furthermore, subsection (d) provides that “[i]f any person subpoenaed to appear by the Legislative Auditor fails to appear'... the fact shall be certified to the circuit court of the county in which the shearing is held, and the circuit court shall punish the person for contempt in the same manner as punishment for contempt is imposed for failure to respond to a subpoena or directive of the circuit court.”
Appellant alleges that the legislature in subsection (c) is making a reference to Ark. R. Civ. P. 45(d), which provides that a “subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witnesses] residence to the place of the trial or hearing[,]” and argues that both the amount and procedural manner provided under Ark. R. Civ. P. 45(d) should apply to subpoenas issued by the Legislative Auditor. However, the plain language of Ark.Code Ann. § 10-4-421(c) only references the fact that a person “shall receive the same compensation” and does not reference the time or manner in which the same amount of compensation should be tendered. Furthermore, the subsection does not reference any other applicable procedural rules. Therefore, appellant’s interpretation would have this court read a requirement into the statute that the legislature has not intended. See Cave City Nursing Home, Inc., supra. As such, the circuit court did not err in finding the subpoena valid, and we affirm on this point on appeal.
Appellant contends in his last point on appeal that the circuit court erred in finding him in criminal contempt and appears to be challenging the sufficiency of the evidence. | 10However, the State con tends that appellant failed to preserve a sufficiency-of-the-evidence claim because appellant failed to move for dismissal at the close of evidence in compliance with Arkansas Rule of Criminal Procedure 38.1(b) as stated in Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001). We agree with the State. In Etoch, this court held that Ark. R.Crim. P. 33.1 applied in criminal-contempt proceedings and that because Mr. Etoch failed to make a timely motion for directed verdict, Mr. Etoch waived his challenge to the sufficiency of the evidence. Id.
Affirmed.
. Additionally, appellant states that many additional rules were not followed if this court "is persuaded to accept this matter as a criminal matter,” including Arkansas Rules of Criminal Procedure, Arkansas Rules of Professional Conduct, and Arkansas Rules of Judicial Conduct. Specifically, he mentions (1) that an ex parte hearing took place on December 5, 2012, after he had already been served with a petition of adjudication of contempt and order to show cause; (2) that his case was initially improperly styled "In the Circuit Court of Pulaski County, Arkansas, James Valley, Third Division, Case No. 60 CV-12-5140” instead of in the name of the State of Arkansas as required by Ark. R.Crim. P. 1.5; (3) that a citation was never issued as required by Ark. R.Crim. P. 5.4; (4) that no information was filed or summons issued pursuant to Ark. R.Crim. P. 6.1; and (5) that the State failed to comply with Ark. R.Crim. P. 7.2 and 7.3. However, appellant failed to raise any of these allegations other than the failure to comply with Ark. R. Civ. P. 4 in his motion to dismiss before the circuit court. Furthermore, appellant failed to cite any convincing argument or legal authority, other than merely quoting the rules themselves at times in his brief. This court has held on numerous occasions that it will not consider the merits of an argument, even a constitutional one, if the appellant fails to cite any convincing legal authority in support of the argument, and it is otherwise not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Omni Holding & Dev. Corp. v. S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004).
. Appellant again mentions several other alleged deficiencies that he alleges require his case to be reversed and dismissed, including (1) a witness fee and mileage check was not attached to the subpoena; (2) a criminal summons should have been issued to him; (3) his due process was violated when his case became one of criminal contempt in an ex-parte hearing without any notice provided to him and, therefore, failed to apprise him of the issues, burden of proof, and potential penalty; (4) the subpoena only quoted Ark.Code Ann. § 10-4-421 and failed to contain any specific language in the subpoena to apprise him that his failure to attend could result in a Class C Misdemeanor charge; and (5) there was no procedure in place to reschedule “the general assembly meeting” or "process in place for quashing a subpoena.” Statements (1) and (2) have already been addressed in points one and two on appeal. As this court indicated in footnote one, appellant failed to raise any of the other allegations to the circuit court. Furthermore, appellant failed to cite any convincing argument or legal authority, other than to merely quote the rules themselves at times in his brief. This court has held on numerous occasions that it will not consider the merits of an argument, even a constitutional one, if the appellant fails to cite any convincing legal authority in support of the argument, and it is otherwise not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Omni Holding & Dev. Corp. v. S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). | [
20,
-20,
-9,
29,
42,
-64,
50,
0,
74,
-93,
109,
-45,
37,
82,
16,
123,
-21,
-65,
125,
105,
-52,
-74,
87,
73,
98,
-13,
16,
86,
-77,
-17,
-19,
-98,
73,
49,
-54,
85,
69,
-56,
-25,
-36,
-114,
10,
9,
-7,
89,
81,
28,
-23,
-110,
15,
113,
-26,
-14,
46,
24,
74,
-24,
108,
93,
-75,
64,
-46,
-98,
29,
95,
4,
1,
-106,
-104,
5,
120,
62,
-104,
57,
0,
-3,
115,
-74,
-122,
101,
75,
-103,
41,
100,
96,
2,
28,
-105,
44,
-20,
47,
58,
-99,
-90,
-110,
105,
75,
14,
-106,
-99,
124,
-42,
7,
-8,
109,
-60,
91,
44,
-122,
-50,
-62,
-109,
-97,
37,
-98,
114,
-29,
68,
16,
117,
-60,
-10,
86,
-61,
49,
-101,
-50,
-78
] |
ROBIN F. WYNNE, Judge.
|! John Wesley Magness appeals from his convictions on multiple charges by a Van Burén County jury. He makes the following arguments on appeal: (1) that his conviction on charges of sexual assault in the fourth degree and possession of a firearm by certain persons are not supported by substantial evidence; (2) that the trial court erred by denying his motion for a mistrial based on alleged juror misconduct; and (3) that the trial court erred by denying his motions to suppress or exclude certain physical evidence as well as his custodial statement. We affirm the judgment of the trial court.
On December 5, 2009, the Van Burén County Sheriffs Department received a report that V.W., who was fifteen years old, had left home with her belongings. Her parents informed authorities that appellant had worked for them and had been terminated from that employment after they noticed a bond forming between appellant and V.W. While driving 1 adown the road on which appellant lived, Investigator Jeffrey Bittle came across V.W. and appellant, who were in an embrace on the side of the roadway. When he asked the two who they were, the girl refused to answer and the man identified himself as “Shane.” When Bittle asked the girl if she was the missing juvenile, she began to cry, and Bittle had her sit in the back of his vehicle. The man fled into the woods. V.W. informed Bittle that she and appellant had sexual relations on three occasions and indicated that appellant’s DNA from two of those encounters would be present on the bed sheets located on the floor of the bedroom in his residence. Bittle requested and received a warrant to search appellant’s residence for the following items: bed sheets, bed linens, pillow cases, and clothes that could contain DNA evidence. The warrant erroneously stated that the items would be subject to seizure under Arkansas Code Annotated section 5-64-401, which pertains to possession of controlled substances. The report of return of the search warrant stated that the following evidence was seized from appellant’s residence: bed linen found in a living room chair, men’s underwear found in the floor of the first bedroom closet, bed linen found in the first bedroom floor, pornographic books with hand-written notes found in the night stand in the bedroom, and bed linen found on the bed in the second bedroom.
After appellant was apprehended, he was interviewed by Bittle and Investigator Bob Leal with the Arkansas State Police Crimes Against Children Division. Prior to the interview, appellant signed a written waiver of his Miranda rights. During the interview, appellant first denied having intercourse with V.W. but later admitted to engaging in intercourse with her. Appellant, who was forty-six years old at the time, also admitted that he knew she was fifteen | ¡¡years old.
Appellant was charged by information with four counts of sexual assault in the fourth degree, one count of possession of a firearm by certain persons, two counts of fleeing, and one count of resisting arrest. Prior to trial, appellant filed a motion to suppress in which he sought to suppress his custodial statement and evidence taken following the search of his residence. At the suppression hearing, Bittle testified that he and Bob Leal interviewed appellant and that he explained appellant’s Miranda rights and had him sign the form. According to Bittle, appellant never asked to speak to an attorney.
Bittle testified that, as he was recovering bed linens off of the floor in appellant’s bedroom, he saw the pornographic written material in an open drawer in the night stand. He further testified that when he took V.W. back to appellant’s residence to retrieve her belongings prior to obtaining the search warrant, he saw a gun that was “head high” right as the front door was opened. He stated that he retrieved the gun for safety purposes because appellant had not been apprehended at that time. Bittle knew at the time he took the gun that appellant was a convicted felon.
Leo Phillips testified that he owns the cabin in which appellant was staying and that appellant was living there while doing some work for him and his wife. The gun taken from the cabin belongs to Mr. Phillips and had been in the cabin for a year or so.
Appellant testified that at the time he signed the Miranda form and was interviewed, he had not slept in two days and had not had any food or water. He claimed that he asked for an attorney twice before he was interviewed. He also claimed that he was told that if he | ¿answered their questions there would be no charges filed.
The trial court stated that appellant moved to suppress his statement because he asked for an attorney. The trial court found that there was no evidence to support appellant’s claim and denied the motion. The trial court denied the motion to suppress the gun because it was removed for safety reasons. The trial court also denied the motion to suppress the pornographic materials because they were in plain view during the execution of the search warrant.
On December 14, 2010, appellant filed a motion to dismiss without prejudice in which he argued that the search warrant was defective because it cited Arkansas Code Annotated section 5-64^01. The trial court treated the motion as one to suppress the items seized during the search and found that the citation to section 5-64-401 was a scrivener’s error, as the rest of the affidavit in support of the warrant dealt with facts leading up to the discovery of DNA evidence, and denied the motion.
Appellant filed a motion in limine on June 17, 2011, in which he sought to exclude from trial certain evidence, including the DNA results from the bed linens seized from his residence and the pornographic materials taken from his residence. He argued in the motion that the items were not relevant, their prejudicial nature outweighed their probative value, and they were cumulative. The trial court denied the motion as to the DNA results and the pornographic material.
After the jury was sworn in, appellant moved for a mistrial, arguing that witnesses for the State were “visiting with” the jury. Bittle admitted to talking to jurors outside but denied |sthat he was talking to them about the case. He was asked a question regarding the health of a former sheriff, and he answered it. Clovis Lewis, one of the jurors, testified that he had a conversation with officers but also denied that it had anything to do with the case. He stated that the conversation would not affect how he felt about the case. Another juror, James Burns, also testified that he talked to the officers but it had no connection to the case and was about the former sheriff. The trial court denied appellant’s motion for a mistrial.
During the trial, V.W. testified that on December 5, 2009, she was fifteen years old. She testified that after she went to appellant’s residence, she indicated that she did not want a romantic relationship with him, and he told her that if she did not do what he wanted she would have to leave. He then disrobed her and himself, and they had intercourse. V.W. stated that the two of them went to a party at a neighbor’s house and that they had intercourse again during the party. V.W. testified that she told appellant that she was fifteen years old. She admitted to telling Mr. Phillips that she was nineteen at appellant’s request. V.W. said that she smoked, drove a car, and was applying to college at the time. She denied ever telling appellant that she was nineteen. She testified that she saw a gun in appellant’s residence but that he never picked it up or said anything about it. She stated that no one else was staying there with appellant until she got there.
V.W.’s mother testified that she told appellant that V.W. was fifteen years old. Mary Simonson, a forensic DNA examiner with the Arkansas State Crime Laboratory, testified that vaginal swabs taken from V.W. contained a mixture of DNA from both V.W. and appellant.
Jeffrey Bittle testified that as he was searching for V.W. after she was reported as a | Brunaway, he encountered appellant and V.W. embracing in a ditch by the side of the road. He put V.W. into his vehicle, and appellant fled into the woods. Bittle testified that while he was executing the search warrant, he saw an open drawer with sexually explicit magazines inside. He also testified that a rifle was removed from the residence that was right in front of the door. The State moved to introduce the pornographic material. The trial court noted appellant’s previous objection to the introduction of the material, overruled it, and admitted the material into evidence. Bittle testified that, during his interview of appellant, appellant denied knowledge of the gun taken from the cabin. He stated that appellant eventually admitted to having sexual relations with V.W. and indicated that he knew she was around fifteen years old. According to Bittle, appellant had been fed and given a chance to sleep prior to the interview.
The parties stipulated before the jury that appellant was a convicted felon. After the State rested, appellant moved for a directed verdict on the sexual-assault charges, arguing that the State failed to introduce any official documentation indicating V.W.’s age. He also moved for a directed verdict on the felon-in-possession-of-a-firearm charge, arguing that the State failed to prove that he had actual care and control or dominion over the firearm. The trial court denied the motions.
Leo Phillips testified that V.W. told him she was eighteen or nineteen years old. He also testified that the gun found in the cabin was his and that he did not believe appellant knew the gun was in the cabin.
Appellant testified that at the time he was interviewed by Bittle and Leal, he had not 17eaten or slept in two days. He also stated that he requested an attorney six times. Appellant testified first that he thought V.W. was nineteen and later that he thought she was twenty-three. Appellant denied being aware that there was a firearm in the cabin. He stated that, had he known there was a weapon in the cabin, he would have asked Mr. Phillips to remove it. Appellant denied that V.W.’s mother told him V.W. was fifteen.
At the close of all the evidence, appellant renewed his motions for directed verdict and they were denied. The jury returned verdicts of guilty on all counts. The trial court sentenced appellant to 300 months’ imprisonment in a judgment and commitment order entered on June 23, 2011. This appeal followed.
Sufficiency of the Evidence
Appellant’s first point on appeal is that the trial court erred by denying his motions for directed verdict because the jury’s verdicts on the charges of sexual assault in the fourth degree and possession of a firearm by certain persons are not supported by substantial evidence. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Sims v. State, 2012 Ark. App. 472, 2012 WL 4009602. We will affirm the circuit court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Furthermore, this court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
|sl. Sexual Assault in the Fourth Degree
A person commits sexual assault in the fourth degree if the person, being twenty years of age or older, engages in sexual intercourse or deviate sexual activity with another person who is less than sixteen years of age and not the person’s spouse. Ark.Code Ann. § 5-14-127(a)(1)(A)(i) and (ii) (Supp.2011). Appellant’s argument on appeal is that the verdicts on the charges of sexual assault in the fourth degree should be reversed because he believed V.W. was nineteen years old at the time they had intercourse. In his directed-verdict motion, he argued that the State failed to produce official documentation of V.W.’s age. Appellant is advancing an argument on appeal that is different from the one that he made in his directed-verdict motion at trial. A party cannot change the grounds for a directed-verdict motion on appeal but is bound by the scope and nature of the argument presented at trial. Clayton v. State, 2012 Ark. App. 199, 2012 WL 723239. As appellant has raised this argument for the first time on appeal, we will not consider it. See id.
2. Possession of a Firearm by Certain Persons
Subject to an exception not applicable in this case, no person shall possess or own any firearm who has been convicted of a felony. Ark.Code Ann. § 5-73-103(a)(l) (Supp.2011). Appellant argues that the State failed to prove that he possessed the firearm that was removed from the cabin. The testimony at trial was that appellant had been living in Leo Phillips’s cabin for a week and the gun that was in the cabin belonged to Mr. Phillips. Appellant denied ever seeing the gun; however, the State produced evidence that the gun was plainly visible as soon as one walked into the cabin. V.W. testified that she saw the gun while in the |9cabin and no one was living in the cabin with appellant before she got there. Appellant stated during his testimony that if he had known there was a gun in the cabin, he would have asked Mr. Phillips to remove it, which is an indication that he was aware that he was prohibited from possessing a gun.
To sustain a conviction for possession of contraband, neither exclusive nor actual physical possession is necessary. Bridges v. State, 46 Ark.App. 198, 878 S.W.2d 781 (1994). Constructive possession, which is control or right to control, is sufficient. Franklin v. State, 60 Ark.App. 198, 962 S.W.2d 370 (1998). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995). Where there is joint occupancy of the premises where the contraband is seized, some additional factor must be found to link the accused to the contraband. Em bry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). In such instances, the State must prove that the accused exercised care, control, and management over the contraband and also that the accused knew that the object possessed was contraband. Mayo v. State, 70 Ark.App. 453, 20 S.W.3d 419 (2000). This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).
. The State put before the jury substantial evidence that appellant possessed the firearm. He lived by himself in a cabin for a week in which there was a gun in plain sight right in front of the door. Although he denied being aware of the presence of the gun, the jury is not |inrequired to believe any witness’s testimony, especially the testimony of the accused, because he is the person most interested in .the outcome of the trial. Winbush v. State, 82 Ark.App. 365, 107 S.W.3d 882 (2003). Appellant’s conviction for possession of a firearm is supported by substantial evidence.
Denial of Motion for Mistnal
Appellant’s next point on appeal is that the trial court erred by denying his motion for a mistrial. A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. Harrison v. State, 371 Ark. 652, 656, 269 S.W.3d 321, 324 (2007). A circuit court has wide discretion in granting or denying a mistrial motion, and, absent an abuse of that discretion, the circuit court’s decision will not be disturbed on appeal. Id. The moving party bears the burden of. proving prejudice. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). Prejudice will not be presumed. See id. Whether prejudice occurred is also a matter for the sound discretion of the trial court. Id.
After the jury was sworn in but before the opening arguments, some of the jurors spoke with officers who were later called as witnesses. The jurors and officers were questioned before the trial court, and everyone stated that the conversations had nothing to do with the case and only regarded the health of a former sheriff. Appellant argues that the conversations should be grounds for a mistrial regardless of their content. However, as stated above, appellant bears the burden of proving prejudice and prejudice will not be presumed. |n Here appellant has made no showing of any prejudice from what appears to have been a brief exchange between the jurors and the officers concerning a matter completely unrelated to the case and that would have no bearing on the jurors’ views of the case. . We hold that the trial court did not abuse its discretion by denying appellant’s motion for a mistrial.
Evidentiary Rulings
Appellant’s final point on appeal is that the trial court erred in denying his motion to suppress evidence based on a defective warrant, which was styled as a motion to dismiss, his motion to suppress the pornographic materials taken from the cabin, and his motion to suppress his custodial statement. In reviewing the denial of a motion to suppress evidence, our appellate courts conduct a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Moss v. State, 2011 Ark. App. 14, 380 S.W.3d 479. Because a determination of the preponderance of the evi dence depends heavily on questions of the weight and credibility of the testimony, we defer to the superior position of the trial court on those questions. Id.
1. The Search Warrant
Appellant filed a motion to suppress the evidence seized during the search of his cabin based on his allegation that the warrant’s reference to section 5-64-401 in the description of the property to be seized rendered it defective. Highly technical attacks on search warrants are not favored because the success of such attacks could discourage law-enforcement officers from utilizing search warrants. Id. Moreover, to uphold the validity of an affidavit made in support of a search warrant, it is not necessary that the affidavit be completely without 112inaccuracy as long as the inaccuracies are relatively minor when viewed in the context of the totality of the circumstances, including the affidavit taken as a whole and the weight of the testimony of the participants who procured and executed the search warrant. Moss, supra.
In this case, reading the affidavit and warrant as a whole, it is abundantly clear that the citation to section 5-64-401 was a minor error that did not render the warrant defective. The three-page affidavit and the warrant, which incorporates the affidavit, clearly state that the police were searching for items that might contain DNA linked to an alleged sexual assault. There is no possibility that the warrant caused any confusion for either the judge who signed it or the officers who executed it regarding what could be seized. Accordingly, the trial court did not err by finding that the warrant was not defective.
2. Pornographic Materials
Appellant argues that the trial court erred by not suppressing the pornographic materials taken from his cabin. He contends that the pornographic materials were illegally seized because they were outside of the scope of the warrant. Appellant is correct that the materials were not listed in the warrant and were taken during the execution of the warrant. However, the State introduced testimony that the materials were plainly visible in an open night-stand drawer. The observation of evidence in plain view is not a search, and therefore the resulting seizure is not the result of an unreasonable search. Washington v. State, 42 Ark.App. 188, 192, 856 S.W.2d 631, 638 (1993). The basic test is whether the officer had a right to be in the position he was when the objects fell into his plain view. Id. Investigator Bittle was executing a valid search warrant and was retrieving an item listed in the warrant when | ishe saw the pornographic materials in plain view inside an open drawer. Appellant’s argument on this point is without merit.
Appellant also argues that the materials were not relevant and that it was error for the trial court to admit them into evidence. The admissibility of evidence is within the sound discretion of the trial court, and its decision to admit or exclude evidence will not be disturbed absent an abuse of discretion. Mathis v. State, 2012 Ark. App. 285, 423 S.W.3d 91. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would have been without the evidence. Ark. R. Evid. 401 (2012). Evidence which is relevant is generally admissible; evidence which is not relevant is not admissible. Ark. R. Evid. 402 (2012). A trial court’s ruling on the admission of evidence will not be reversed absent a showing of prejudice because appellate courts do not reverse for harmless error. Wilson v. State, 2012 Ark. App. 566, 2012 WL 4833808.
We hold that appellant has failed to demonstrate prejudice from the admission of the pornographic materials. In this case, V.W. testified that she and appellant had sex and appellant never challenged that testimony. In addition, there was DNA evidence indicating that the two had sexual intercourse. As stated above, the State produced testimony from V.W. and her mother that appellant knew V.W. was fifteen as well as appellant’s own statements that he knew she was fifteen. There was ample evidence aside from the pornographic materials that appellant committed the offense of sexual assault in the fourth degree, which was the only charged crime of a sexual nature. As appellant has failed to demonstrate prejudice, we affirm on this point.
|143. Custodial Statement
Finally, appellant argues that the trial court erred by not suppressing his custodial statement. He argues that the statement was not voluntarily given because at the time he was interviewed, he had not had sleep, food, or water for two days. At trial, appellant made this argument and also argued that he requested an attorney. The trial court denied the motion to suppress the statement, finding that there was no evidence that appellant requested an attorney. The trial court never ruled on appellant’s argument regarding his physical state at the time of the interview. Failure to obtain a ruling on an issue at the trial court level precludes review on appeal. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007). Appellant’s argument is not preserved for review, and we will not consider it.
Affirmed.
VAUGHT, C.J., and BROWN, J., agree. | [
48,
-24,
-19,
60,
43,
97,
10,
-68,
66,
-109,
-16,
83,
-89,
-56,
0,
123,
58,
127,
116,
105,
-47,
-73,
7,
97,
-78,
-13,
-16,
-43,
55,
75,
-68,
-36,
77,
112,
-54,
81,
66,
74,
-27,
88,
-114,
1,
-120,
-29,
80,
66,
40,
43,
90,
15,
49,
62,
-9,
41,
27,
-53,
105,
12,
67,
-67,
72,
19,
-69,
31,
-17,
22,
-125,
36,
-101,
5,
120,
58,
-100,
49,
0,
-8,
115,
-74,
-122,
116,
77,
-101,
40,
96,
-30,
0,
-115,
-25,
-83,
-120,
6,
47,
-67,
-89,
-104,
105,
75,
77,
-105,
-43,
122,
80,
8,
-2,
99,
-43,
60,
108,
-124,
-50,
-92,
-127,
13,
-88,
84,
58,
-29,
37,
112,
117,
-49,
-30,
92,
68,
89,
-101,
-114,
-77
] |
PAUL E. DANIELSON, Justice.
| Appellant Benefit Bank appeals from the Sebastian County Circuit Court’s order finding that the mortgage it held to certain property was second and subordinate to the interest of appellee Marilyn Rogers obtained in her divorce. Benefit Bank originally appealed the circuit court’s order to our court of appeals, which reversed and remanded the matter. See Benefit Bank v. Rogers, 2012 Ark. App. 134, 2012 WL 387864. Rogers petitioned for review, which this court granted. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Orr v. Hudson, 2010 Ark. 484, 374 S.W.3d 686. Benefit Bank asserts two points on appeal: (1) that the circuit court erred in finding that Rogers’s interest was prior to its interest because the divorce court lacked authority to impose |ga lien on real property to secure alimony payments, and (2) that the circuit court erred in finding that the lis pendens filed by Rogers created or perfected a lien. We affirm the circuit court’s order.
The underlying facts are these. On November 30, 2007, a divorce decree was entered, pursuant to “the stipulated agreement of the parties,” granting Marilyn Rogers a divorce from William Morgan. In the decree, Rogers was granted right, title, interest, and possession to a home located on Beverly Drive in Fort Smith, and William Morgan was granted right, title, interest, and possession to a home and twenty-seven acres located on Cook Terrace in South Sebastian County, “provided however, [Rogers] shall retain a lien, and a lis pendens shall be filed, as collateral security for [Morganj’s obligations to [Rogers] hereunder.” In addition, the decree awarded Rogers spousal support in the amount of $3600 per month for seven and one-half years, “provided, however, that [Rogers] shall retain a lien against the home and 27 acres on Cook Terrace in Sebastian County, Arkansas, as collateral security for the continued payment of spousal support and an appropriate lis pendens or other such document shall be recorded to evidence said lien.”
The record reflects that a notice of lis pendens was filed in the Sebastian County Circuit Court. The notice stated that Rogers had begun an action against Morgan and referenced the docket number of the divorce proceedings. It further stated that a lien had been granted by Morgan in Rogers’s favor upon the property now at issue and noted that, by |sagreement of the signatories, which included Rogers; Morgan, individually; and Morgan, as authorized representative of W.C.M. Investments, LLC, the lis pendens “shall continue to be in effect” on the properly in accordance with the terms of the divorce decree.
On July 16, 2010, Benefit Bank filed in the' Sebastian County Circuit Court its complaint for foreclosure against Morgan and W.C.M. Investments, LLC. The complaint alleged that the action was to foreclose a mortgage on real property owned by W.C.M. Investments, of which Morgan was the owner and managing member. It further alleged that on or about May 19, 2008, for value received, W.C.M. Investments executed a note for $323,000 on the property at issue and that the mortgage was recorded on May 20, 2008. In addition, the complaint averred, Morgan executed and delivered a continuing guaranty, as additional collateral for the note, thereby unconditionally promising to pay all indebtedness of W.C.M. Investments. Alleging that W.C.M. Investments and Morgan had defaulted on their obligations, Benefit Bank asserted that it was entitled to foreclose its mortgage on the property and that its mortgage should be declared a first lien on the properly.
Subsequently, Benefit Bank filed an amended complaint, in which it added Rogers as a defendant and asserted that Rogers may have, or claim to have, an interest in the property involved “by virtue of a Notice of Lis Pendens recorded November 13, 2007.” Benefit Bank claimed that any interest of Rogers was secondary and subordinate to its first mortgage lien. Rogers answered, asserting that her lien/lis-pen-dens interest had priority over Benefit Bank’s 14lien.
Following a bench trial, held November 80, 2010, the circuit court entered its order on January 14, 2011, in which it concluded that a lien was established to Rogers’s benefit by lawful order of the divorce court. The circuit court further found that the divorce court’s order that a lis pendens be executed and filed was satisfied and that Benefit Bank was or should have been on notice of Rogers’s interest in the properly. Accordingly, the circuit court found for Rogers as to Benefit Bank’s prayer that her interest be found second and subordinate to the mortgage held by Benefit Bank. It further found in favor of Rogers as to Benefit Bank’s prayer that its mortgage be declared a first lien on the property and found W.C.M. Investments and Morgan in default, awarding Benefit Bank judgment for $308,676.55 along with late fees, costs, prejudgment interest, and additional prejudgment interest. Benefit Bank also moved for and was awarded attorney’s fees. Benefit Bank now appeals.
For its first point on appeal, Benefit Bank asserts that the circuit court erred in finding that Rogers’s interest in the subject property was superior to its mortgage interest because the divorce court lacked authority to impose a lien on real properly to secure alimony payments. It 'avers that the long-standing rule in Arkansas has been that alimony cannot constitute a lien on a husband’s land and that, accordingly, a divorce court cannot order a lien to secure alimony payments. Benefit Bank urges that where the alimony payments granted to Rogers Rwere in the form of monthly payments rather than a fixed amount upon which execution might issue, the decree could not create a lien to secure alimony.
Rogers counters, asserting that divorce courts have every right to use marital property to secure alimony payments if it is done with the consent of the parties. She contends that the “no-security-for-alimony rule” applies only if it is imposed involuntarily. She further urges that a lien is not defeated merely because payments on the debt secured by the lien are made periodically.
In bench trials, the standard of review on appeal is whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. See McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998); Ark. R. Civ. P. 52(a) (2012). We view the evidence in the light most favorable to the appellee, resolving all inferences in favor of the appellee. See McQuillan, 331 Ark. 242, 961 S.W.2d 729. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. See id.
A review of this court’s precedent does reveal that, as early as 1881, this court held that there was no lien on a husband’s land for future alimony payments, and that by 1921, this concept was held to have become a rule of property. See Warren v. Warren, 273 Ark. 528, 537-A, 623 S.W.2d 813, 819 (1981) (supplemental opinion on denial of rehearing) (citing Kurtz v. Kurtz, 38 Ark. 119 (1881); Whitmore v. Brown, 147 Ark. 147, 227 S.W. 34 (1921)). As we noted in Massengale v. Massengale, 186 Ark. 917, 56 S.W.2d 763 (1933), “[t]his court has several times held that a decree or order for future payments of alimony does not ^constitute a lien upon real estate; that only sums ordered to be paid at once and for which execution may then issue constitute a lien upon lands as other judgments. The reason given for the rule denying liens for future alimony is that it would likely embarrass alienation.” 186 Ark. at 919-20, 56 S.W.2d at 764 (internal citations omitted).
That being said, the instant record reflects no dispute that Rogers and Morgan agreed to the lien being imposed as part of the divorce decree. It was not unilaterally imposed against Morgan by the circuit court, which would have been in contravention of our case law set forth above. On the contrary, Morgan voluntarily agreed to the condition and subsequently signed the lis pendens, evidencing his agreement thereto, and we think that is an important distinction. Indeed, our precedent has at least suggested that where it is done so voluntarily, a lien imposed for the payment of alimony may not run afoul. In Casteel v. Casteel, 38 Ark. 477 (1882), this court, albeit dicta, observed,
We need not modify the decree, as it is not urged upon us to do so. Otherwise it would be proper to remand the cause for its correction. The alimony should not have been made a lien upon the lands of complainant. ■ This is equivalent to charging them -with an annuity, which the owner might do voluntarily, but the court should not in invitum, as it embarrasses alienation. If objection had been made, or were now insisted upon, the court might have secured the payment of the alimony by sequestration, or by exacting sureties. (See Gantt’s Dig., Sec. 2205.) The appellant ■ has, however, chosen to stand on other ground.
38 Ark. at-482 (emphasis added).
“In invitum” is defined as “[ajgainst an unwilling person.” Black’s Law Dictionary 854 (9th ed.2009). In this case, Morgan was not unwilling and in no way challenges the lien to which he agreed. Therefore, we cannot say that the divorce court lacked the authority to impose the lien as it did, when it was stipulated to by the divorcing parties.
17Moreover, we cannot agree with Benefit Bank that because the award of alimony was in the form of monthly payments or a continuing general decree, no lien could be created. We have observed that
a decree for future payments of permanent alimony [is not] a final decree upon which an execution might be issued or which might become a lien upon real estate. In order to collect on such a continuing general decree, it would be necessary to ascertain from time to time the amount of arrearages due in the payment of alimony and render a decree for the specific amount due.
Jones v. Jones, 204 Ark. 654, 656, 163 S.W.2d 528, 529 (1942). However, as already well established, the imposition of the lien in.this case was done so pursuant to the stipulation of the divorcing parties. But, in addition, in this case, alimony was awarded to Rogers on a monthly basis to expire after seven and one-half years. We find no credence in Benefit Bank’s argument regarding the nature of the payments.
For its second point on appeal, Benefit Bank argues that the lis pendens filed by Rogers did not create a lien. It further contends that the lis pendens at issue was not actually a lis pendens because at the time of filing, “there was no complaint, action, or lawsuit filed against Morgan — or, more importantly, W.C.M. Investments — that challenged or affected the agreed lien.” Finally, Benefit Bank claims, the lis pendens was of no effect because it was not acknowledged in accord with Arkansas Code Annotated §§ 16^47-101 to -110 (Repl.1999). Rogers responds that a lis pendens serves to put the world on notice that the title to or lien on real estate is subject to litigation. She urges that the lis pendens in the instant case provided such notice to Benefit Bank. She further asserts that there is no statutory requirement that a lis pendens be notarized.
|sHere, the circuit court found that Be-neit Bank was correct in its assertion that a lis pendens was not a lien. Therefore, we turn to its next claim that the lis pen-dens was not a lis pendens because there was no pending litigation. The purpose of a lis pendens is to put bona fide purchasers or mortgagees on notice that the title to certain real or personal property is being litigated. See Ashworth v. Hankins, 241 Ark. 629, 408 S.W.2d 871 (1966) (citing 54 C.J.S. Lis Pendens § 1). We have held that the statutory effect of a ¡is pendens follows the litigation to its conclusion. See id.
A review of the instant record reveals that the lis pendens was filed of record on November 13, 2007. Rogers’s and Morgan’s divorce decree was not filed until November 80, 2007. Clearly, litigation relating to the subject property was pending at the time of the lis-pendens filing, and Benefit Bank was therefore on notice that the property at issue was being litigated in some fashion. Benefit Bank’s argument is wholly without any merit.
Finally, Benefit Bank argues that the lis pendens was of no legal effect because it was not acknowledged in accord with Ark.Code Ann. §§ 16-47-101 to-110. Section 16-47-101 provides that
[a]ll deeds and other instruments in writing for the conveyance of any real estate, or by which any real estate may be affected in law or equity, shall be proven or duly acknowledged in conformity with the provisions of this act, before they or any of them shall be admitted to record.
The question then becomes: is a lis pen-dens an instrument in writing for the conveyance of any real estate or by which any real estate may be affected in law or equity, such that acknowledgment is required? Simply put, it is not.
First, a lis pendens is “[a] pending lawsuit” or “[a] notice, recorded in the chain of title |3to real property ... to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome.” Black’s Law Dictionary 1015 (9th ed.2009). In other words, the lis pendens does not itself convey property, nor does it affect property. Instead, it simply “notifies potential purchasers that there is pending litigation that may affect their title to real property and that the purchaser will take subject to the judgment, without any additional substantive rights.” 51 Am.Jur.2d Lis Pendens § 2 (2012) (internal footnotes omitted).
But too, Chapter 59 of Title 16 of the Arkansas Code governs lis pendens. See Ark.Code .Ann. §§ 16-59-101 to -107 (Repl.2005). Section 16-59-101 states that to render the filing of any suit at law or in equity affecting the title or lien on real estate or personal property constructive notice to a bona fide purchaser or mortgagee of that property, “it shall be neces sary” for the plaintiff, his attorney, or his agent to “file a notice of the pendency of the suit, for record with the recorder of deeds of the county in which the property to be affected by the constructive notice is situated.” It is further required that “[t]he notice of the pendency of the suit shall set forth the title of the cause and the general object thereof, together with a correct and full description of the property to be affected thereby, the names of the parties to the suit, and the style of the court where the suit is pending.” Ark.Code Ann. § 16-59-102. Absent is any mention that an acknowledgment is required.
Because a lis pendens serves simply as a notice to others, and because the specific statutes governing the filing of a lis pen-dens do not require an acknowledgment, we cannot say that the circuit court erred in its finding that a lis pendens is not subject to the | ^requirements of section 16-47-101.
For each of the foregoing reasons, we affirm the circuit court’s order.
Affirmed; Court of Appeals’ opinion vacated.
. The order also entered judgment in favor of Benefit Bank against then defendants W.C.M. Investments, LLC, and William Morgan, neither of which is a party to the instant appeal.
. The notice was filed on November 13, 2007, after a hearing in the divorce court and before the decree of divorce was filed.
. Rogers further asserted that she had a dower interest in the properly that was superior to other property transfers, including liens and mortgages. | [
48,
108,
-3,
44,
-54,
-32,
10,
40,
74,
-95,
39,
83,
-77,
-30,
84,
73,
-31,
11,
101,
105,
-41,
-73,
23,
98,
82,
-77,
57,
87,
-79,
93,
101,
-41,
76,
48,
-54,
93,
68,
-112,
-57,
20,
78,
-125,
11,
109,
89,
66,
48,
-82,
80,
15,
85,
-73,
-79,
-84,
-67,
66,
76,
14,
93,
44,
80,
-70,
-118,
12,
127,
5,
-79,
4,
-8,
7,
88,
42,
-112,
57,
0,
-23,
50,
38,
-122,
52,
106,
-103,
9,
100,
98,
2,
53,
-33,
-28,
-88,
-122,
-34,
-97,
-90,
-110,
25,
59,
34,
-65,
-100,
127,
84,
79,
-4,
110,
70,
29,
108,
13,
-34,
-106,
-111,
-123,
57,
28,
2,
-25,
-53,
48,
117,
-53,
-30,
125,
-58,
59,
-37,
-114,
-79
] |
DONALD L. CORBIN, Justice.
| ¶Appellant Brandon Clark Fritts appeals the order of the Sebastian County Circuit Court convicting him of first-degree murder and sentencing him, as a habitual offender, to life imprisonment. Appellant’s sole argument on appeal is that the circuit court erred in denying his motion to suppress an incriminating statement that he made after invoking his right to remain silent. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We find no error and affirm.
Because Appellant does not challenge the sufficiency of the evidence against him, a brief recitation of the facts is all that is necessary. The record reflects that on January 3, 2012, a person called the Fort Smith Police Department to report seeing a dead body in an alley near South 17th and Q streets. Police responded and discovered the body of Jamie Lee Czeck, | ¿who had been shot multiple times. Police also discovered the victim’s cell phone and several 9 mm shell casings in the immediate area of the body.
During the course of the investigation, police questioned Appellant as a possible witness because he was one of the last people seen with Czeck. This interview occurred on January 5, 2012, and Appellant denied knowing anything about the death of the victim and stated that the last time he saw him, Czeck was alive and well. Later that same day, police again questioned Appellant after cell-phone records obtained by authorities contradicted statements made by Appellant.
As the investigation continued, authorities developed Appellant as a suspect. At that time, Appellant and his girlfriend, Charitie Clawson, were being held in the Sequoyah County jail in Oklahoma on drug charges. Officers from the Fort Smith Police Department traveled to Oklahoma to interview Clawson and Appellant. Clawson led police to the murder weapon and made statements implicating Appellant. During a subsequent interview with Fort Smith detectives, Appellant admitted that he shot Czeck but denied that it had anything to do with the Aryan Circle. According to the affidavit for warrant of arrest completed by Fort Smith Police Detective Jeff Carter, Appellant stated that Czeck “would not shut up and would not stay where he was supposed to stay.” Appellant admitted that he shot Czeck one time in the face, several times in the chest, and one last time in the back of the head “for good measure.”
Fort Smith police subsequently issued a warrant for Appellant’s arrest, and Appellant was returned to Arkansas. During his transport from Sequoyah County to Fort Smith, |sAppellant began talking to the officers about the murder and denied that it had anything to do with the Aryan Circle and insisted that it was just a personal matter. During a subsequent formal interview at the Fort Smith Police Department, Appellant, after being advised of his Miranda, rights, again confessed to the murder.
Appellant was charged by felony information with one count of murder in the first degree in violation of Arkansas Code Annotated § 5-10-102 and being a habitual offender in violation of Arkansas Code Annotated § 5-4-501. The State subsequently filed an amended information to include one count of felon in possession of a firearm in violation of Arkansas Code Annotated § 5-73-103. Prior to trial, Appellant filed three separate motions to suppress, seeking to suppress statements he made to officers on January 30 and February 2, as well as suppression of evidence related to the location of his phone, and his subsequent statements, which he argued were fruit of the poisonous tree.
A suppression hearing was held on June 5, 2012. Officer Eric Helms, an investigator with the Sequoyah County Sheriffs Department, testified that officers with his department obtained a consent to search the home of Michael Weatherton, Appellant’s father, after Fort Smith investigators learned from Charitie Clawson that Appellant had hidden a gun at his father’s house. The officers went to the residence of Mike Weatherton on January 30, 2012, and obtained his consent to search the premises. As a result of this search, officers found a black gun box that contained a Clock 9 mm semiautomatic pistol, two Clock 9 mm magazines, and one speed loader. The gun box and its contents were located in the garage under an upright freezer.
^Detective Carter testified about his work on the homicide of Jamie Czeck. He stated that early in the investigation he learned that Appellant was one of the last people seen with the victim before his death. Detective Carter stated that he initially interviewed Appellant as a witness to the murder but subsequently developed him as a suspect. Detective Carter traveled to Sallisaw, Oklahoma, after learning that Appellant and Clawson were being held in the Sequoyah County jail. According to Detective Carter, he spoke with Clawson first and she stated that Appellant was angry with Czeck because Czeck was going to “lay down his patch and ride with the Hell’s Angels.” Clawson also told the officers that she knew Appellant was going to kill Czeck and that she was with Appellant when he went to his father’s house in Sallisaw, Oklahoma, and hid the murder weapon under a freezer in the garage.
After officers located the gun, Detective Carter returned to the jail to talk with Appellant. Carter stated that he told Appellant that he knew the truth and wanted his side of the story. Appellant responded that he had told Detective Carter all he knew on January the 5th. According to Detective Carter, he did not end the interview at this point because Appellant stated that he would answer Carter’s questions. Detective Carter then told Appellant that they had recovered the murder weapon and showed the gun to him. In response, Appellant stated that if Carter would let him have a cigarette, he would talk to him.
After allowing Appellant to smoke a cigarette, Detective Carter advised Appellant of his Miranda rights and began taping his interview of Appellant. At the beginning of the tape-recorded interview, Appellant stated that he had said everything he was going to say but that |fihe would answer the officers’ questions. Appellant initially denied any involvement in Czeck’s murder but ultimately confessed to the crime.
Detective Kyle Story of the Fort Smith Police Department testified that he and Detective Adam Creek traveled to the Se-quoyah County jail on February 2, 2012, to pick up Appellant after a warrant was issued for his arrest in connection with the Czeck murder. Detective Story stated that he did not read Appellant his Miranda rights until they returned to Fort Smith, but denied questioning him about the crime. According to Detective Story, during the drive back to Fort Smith, he asked Appellant about a letter that involved the Aryan Circle and also asked Appellant if he and the victim were involved in the Aryan Circle. Detective Story commented that it sounded like Appellant was taking care of business for the Aryan Circle, to which Appellant replied he did not want to talk anymore. Upon returning to Fort Smith, Detectives Story and Creek Mirandized Appellant, who stated that he understood his rights and agreed to talk to the officers.
Detective Creek also testified at the suppression hearing and stated that neither officer advised Appellant of his Miranda rights at the time that they picked him up, but that they did not ask him any questions other than some questions about how he was treated while in jail and then about a letter concerning the Aryan Circle that had been sent from prison. Then, according to Detective Creek, Appellant began telling the officers about the murder and denied that it had anything to do with the Aryan Circle. Detective Creek also testified that the officers advised Appellant of his Miranda rights once they returned to Fort Smith, and |fiAppellant signed the rights form, indicating that he understood those rights. Thereafter, Appellant admitted that he was the one who had murdered Czeck.
At the close of the hearing on the suppression motions, Appellant argued that the court should suppress the incriminating statements he made on January 30 because he indicated to the officers that he did not want to speak with them when he told Detective Story that he had already told him everything he knew. Appellant further argued that even if that initial statement did not constitute a Miranda violation, later when he told officers during the video-recorded interview that “[tjhat’s all I got to say,” this statement was another attempt by Appellant to stop the interrogation. Appellant also argued that the statements should be suppressed because they were not made voluntarily and were the fruit of the poisonous tree based on the officers’ impermissible intrusion into Appellant’s phone records to ascertain the location of his phone.
The circuit court denied each of the motions to suppress. Thereafter, Appellant was tried before a jury and convicted as previously set forth. This appeal followed.
Appellant’s sole argument on appeal is that the circuit court erred in denying his motion to suppress a statement he made to officers on January 30, 2012, while he was being held in the Sequoyah County jail in Oklahoma. According to Appellant, Detective Carter came to the jail to question him, and Appellant’s response that he had already told him everything he knew was a clear indication that he had nothing further to say. Thus, when ^Detective Carter then showed him the murder weapon, prompting Appellant to say he would talk to police if he were allowed to first smoke a cigarette, this was the functional equivalent of Carter further questioning him after Appellant invoked his right to remain silent. The State counters that the circuit court properly denied the motion to suppress.
This court reviews a circuit court’s decision denying a defendant’s motion to suppress a confession by making an independent determination based on the totality of the circumstances, and the ruling will be reversed only if it is clearly against the preponderance of the evidence. Williamson v. State, 2013 Ark. 347, 429 S.W.3d 250. Conflicts in testimony at a suppression hearing about the circumstances surrounding a defendant’s in-custody statement are for the trial judge to resolve. Id.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily. Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152. A person subject to a custodial interrogation must first be informed of his right to remain silent and right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See id. A defendant may cut off questioning at any time by unequivocally invoking his right to remain silent. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); see also Whitaker v. State, 348 Ark. 90, 71 S.W.3d 567 (2002). Our criminal rules ^similarly provide that a police officer shall not question an arrested person if that person indicates “in any manner” that he does not wish to be questioned. Ark. R.Crim. P. 4.5 (2013). Notably, the Supreme Court further explained that “interrogation” not only includes express questioning, but also its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). According to the Court, the functional equivalent of questioning is any statement or conduct which the police should know is “reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. 1682 (footnote omitted).
When the right to remain silent is invoked, it must be “scrupulously honored.” Miranda, 384 U.S. at 479, 86 S.Ct. 1602; Whitaker, 348 Ark. at 95, 71 S.W.3d at 570; see also Robinson v. State, 373 Ark. 305, 309, 283 S.W.3d 558, 561 (2008). The meaning of “scrupulously honored” was discussed in James v. Arizona, 469 U.S. 990, 992-93, 105 S.Ct. 398, 83 L.Ed.2d 332 (1984):
To ensure that officials scrupulously honor this right, we have established in Edwards v. Arizona, [451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ], and Oregon v. Bradshaw, [462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) ], the stringent rule that an accused who has invoked his Fifth Amendment right to assistance of counsel cannot be subject to official custodial interrogation unless and until the accused (1) “initiates” further discussions relating to the investigation, and (2) makes a knowing and intelligent waiver of the right to counsel under the standard of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and its progeny. See Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984).
Since the decision in Miranda, the United States Supreme Court has held that when invoking a Miranda right, the accused must be unambiguous and unequivocal. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). With regard to a suspect invoking the right to counsel, the Court has said:
[H]e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be |9a request for an attorney. If the statement fails to meet the requisite level of clarity, [the law] does not require that the officers stop questioning the suspect.
Id. at 459, 114 S.Ct. 2350. This court has held that there is no distinction between the right to counsel and the right to remain silent with respect to the manner in which they are effected. Standridge v. State, 329 Ark. 473, 951 S.W.2d 299 (1997); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). Both must be unambiguously and unequivocally invoked. Whitaker, 348 Ark. 90, 71 S.W.3d 567. This court has held, however, that the right to remain silent must be made unequivocally, but answering questions following a statement that attempts to invoke the right to remain silent may waive that right by implication. Bowen, 322 Ark. 483, 911 S.W.2d 555. In other words, an accused may change his mind and decide to talk to law enforcement officials. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995) (citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)).
More recently, the Supreme Court has addressed this issue of whether a person’s silence constitutes an unequivocal invocation of his Miranda rights, and explained as follows:
The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal, but there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination, by requiring an interrogation to cease when either right is invoked.
There is good reason to require an accused who wants to invoke his or her right' to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that “avoid[s] difficulties of proof and ... provide[s] guidance to officers” on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression “if they guess wrong.” | ^Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights “might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.” But “as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.”
Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (citations omitted). Thus, the Court concluded that where the suspect did not say that he wanted to remain silent or that he did not want to talk with the police, there was no unequivocal invocation of his Miranda right. Id. Thus, both our court and the United States Supreme Court have made clear that an invocation of a right to remain silent must be unequivocal and unambiguous.
With this in mind, we turn to Appellant’s argument that his statement was an unequivocal invocation of his right to remain silent and that his rights were violated when Detective Carter subsequently engaged in the functional equivalent of questioning him by showing him the murder weapon. The record reflects that Detective Carter visited Appellant in the Sequoyah County jail after officers retrieved the gun, which Charitie Clawson stated was the murder weapon. Detective Carter testified at the suppression hearing that he informed Appellant that the police knew the truth about the murder of Czeek and wanted to get Appellant’s side of the story. His testimony further revealed that Appellant responded that he had told Detective Carter all he knew on January the 5th. It is this statement that Appellant claims was his unequivocal invocation of his right to remain silent. We simply cannot agree.
J^This court has held that a suspect’s series of “no’s” followed by an “[h]uh-uh” and a subsequent statement that “I don’t want to talk about it,” in response to attempted police questioning evidenced her unequivocal invocation of the right to remain silent. Whitaker, 348 Ark. at 96-97, 71 S.W.3d at 571. In so ruling, this court explained that the word “no” certainly demonstrated a desire not to speak and was in no way an equivocal answer. Id. This decision may be contrasted with the court’s decision in Standridge, 329 Ark. at 478, 951 S.W.2d at 301, where this court held that a suspect’s statement that “I ain’t ready to talk” was not an unequivocal invocation of his right to remain silent when the defendant continued to talk and answer questions. Likewise, this court held in Bowen, 322 Ark. at 504, 911 S.W.2d at 564, that the statement that the accused wanted to “think about” whether to waive his rights and make a statement was not sufficiently definite. This court also rejected the notion that a suspect’s statement that “Okay, then we’re through -with this interview then” was an unequivocal invocation of the right to remain silent. Bryant, 2010 Ark. 7, at 15, 377 S.W.3d at 161. Finally, in Sykes v. State, 2009 Ark. 522, 357 S.W.3d 882, this court held that comments such as, “I don’t feel like that I need to be discussing this at all,” “I think it’s really plumb ignorant to answer any questions right now,” and “the best thing I can do is, for myself, is to shut the hell up and not talk about this without first talking to a lawyer” did not unambiguously and unequivocally indicate a right to remain silent or a right to counsel. In so ruling, this court noted as follows:
In reviewing the entire conversation, it is clear that appellant was conscious of his Miranda rights and that he continued to talk to the officer and answer his questions even though he knew it was against his best interest. In fact, after each statement ^regarding counsel or whether appellant should be discussing the details of what happened, appellant continued the conversation. A reasonable officer in the situation would not have understood that appellant was clearly and unequivocally invoking his right to remain silent or his right to an attorney.
Id. at 15, 357 S.W.3d at 891.
Here, like the aforementioned cases, we simply cannot say that Appellant’s statement that he had already told officers all that he knew was an unambiguous and unequivocal invocation of his right to remain silent. A statement that you had already told officers everything you know in no way indicated an unwillingness to answer further questions. At best, it put the officers on notice that Appellant had no new information to share with them. Accordingly, we cannot say that the circuit court erred in denying Appellant’s motion to suppress. Having so determined, it is unnecessary for us to consider Appellant’s contention that Detective Carter’s showing him the murder weapon was the functional equivalent of continued questioning.
Pursuant to Arkansas Supreme Court Rule 4—3(i) (2013), the record has been reviewed for all objections, motions, and requests that were decided adversely to Appellant, and no prejudicial error has been found.
Affirmed.
. Appellant raises no arguments on appeal related to the other motions to suppress that were denied by the circuit court.
. On appeal, the State points out that the instant case involves a purported invocation of the right to remain silent before officers provided the Miranda warnings. Because Appellant’s argument, both below and on appeal, simply focuses on the issue of whether his statement was an unequivocal invocation of his right to remain silent that should have caused officers to stop all questioning, our review of the issue will be so limited. | [
48,
-18,
-31,
-100,
41,
-32,
50,
56,
-46,
-29,
-28,
115,
45,
-38,
69,
111,
-21,
31,
117,
105,
-42,
-73,
39,
105,
114,
-13,
26,
-41,
-78,
73,
-3,
-100,
11,
96,
78,
69,
102,
-88,
-89,
90,
-114,
-128,
-119,
112,
82,
0,
8,
47,
78,
15,
53,
-97,
-30,
42,
22,
-127,
9,
44,
75,
-82,
64,
82,
-56,
15,
-100,
52,
-93,
52,
-100,
6,
112,
28,
-39,
49,
0,
120,
115,
4,
-126,
116,
109,
-103,
12,
32,
-29,
4,
-104,
-22,
41,
-119,
-113,
62,
-123,
-89,
-104,
97,
75,
13,
-106,
-97,
126,
20,
14,
-6,
108,
101,
88,
108,
-121,
-34,
-112,
-111,
45,
56,
-106,
-14,
-21,
-123,
114,
113,
-51,
-30,
94,
87,
-7,
-37,
-122,
-48
] |
ROBIN F. WYNNE, Judge.
I,Vernon Hardesty and Martha Hardesty appeal from an order of the circuit court granting summary judgment in favor of Baptist Health d/b/a Baptist Health Medical Center (Baptist), Dr. Raymond Rem-mel, and Patrick O’Connell, R.N. Summary judgment was granted based on certain requests for admission that were deemed admitted after appellants failed to respond to them or file their responses with the circuit court. We affirm the order of the circuit court.
At the time of the events that gave rise to the litigation, Vernon Hardesty was a seventy-year-old man with a history of chronic obstructive pulmonary disease. He was unable to use his right arm due to an injury. On or around May 14, 2010, Martha Hardesty, Mr. Hardesty’s wife, summoned emergency medical assistance after he began acting disoriented |2and confused. He was taken by ambulance to Baptist Health Medical Center in Little Rock. Mr. Hardesty was initially diagnosed with symptoms of dementia and placed in the hospital’s geriatric psychiatry unit under the care of Dr. Remmel. Due to disorientation and combative behavior on the part of Mr. Hardesty, he was identified as a “fall risk” and certain precautions were ordered as a result. At one point while he was in the unit, Mr. Hardesty walked away from his safety-belt-equipped wheelchair. While Mr. Hardesty was being returned to his wheelchair, his left elbow was allegedly fractured. It was later determined that Mr. Hardesty’s initial symptoms of disorientation and confusion were the result of a urinary tract infection.
Appellants filed a complaint in May 2012 in which they alleged that appellees unreasonably failed to diagnose Mr. Hardesty’s urinary tract infection, used excessive force in returning him to his wheelchair, failed to adequately protect him from wandering away from his wheelchair, and failed to properly recognize and treat his arm fracture. Appellants further alleged that the fracture resulted in Mr. Hardesty losing the use of his left arm and being required to take strong pain medication.
On June 12, 2012, Dr. Remmel answered the complaint and propounded the following requests for discovery on appellants:
REQUEST FOR ADMISSION NO. 1: Admit that you do not have any written or recorded documentation to sustain any of the allegations in your Complaint which may be directed against Dr. Rem-mel.
REQUEST FOR ADMISSION NO. 2: Admit that, other than Plaintiffs, you have no persons who have indicated to you a willingness to appear at trial and testify that Dr. Remmel was or is guilty of any of the allegations contained in the Complaint.
hREQUEST FOR ADMISSION NO. 3: Admit that you have no evidence of any kind or nature to sustain any allegations in your complaint which might be attributable to Dr. Remmel.
REQUEST FOR ADMISSION NO. h: Admit that you have no person to testify that Dr. Remmel did or failed to do anything that caused injury, harm, or damage to Plaintiffs.
Appellants did not respond to the requests within the time allowed.
Baptist answered the complaint and propounded the following requests for admission to appellants on June 15, 2012:
REQUEST FOR ADMISSION NO. 1: Admit that you do not have any qualified medical support for the allegations of negligence in your complaint against Baptist.
REQUEST FOR ADMISSION NO. 2: Admit that you do not have any qualified medical support for the allegation against Baptist that any act of negligence was a proximate cause of injury to Vernon Hardesty.
REQUEST FOR ADMISSION NO. 3: Admit that you do not have any qualified medical support for your allegation that Vernon Hardesty’s condition was caused by negligent care and treatment by Baptist.
REQUEST FOR ADMISSION NO. Í: Admit that Baptist was not negligent in the care and treatment of Vernon Har-desty.
REQUEST FOR ADMISSION NO. 5: Admit that any actions or inactions on the part of Baptist were not the proximate cause of any damages or injuries alleged in your complaint.
Appellants did not respond to Baptist’s requests within the time allowed. Patrick O’Connell also answered the complaint and propounded requests for admission on appellants that were identical in substance to those propounded by Baptist. Appellants timely answered the requests propounded by O’Connell, but failed to file the responses with the circuit court.
In August 2012, both Baptist and Dr. Remmel filed motions for summary judgment |4in which they argued that their requests for admission were deemed admitted, that the admissions left no genuine issue of material fact, and that they were entitled to judgment as a matter of law. After the motions for summary judgment had been filed, appellants filed a motion to withdraw and amend the admissions. Patrick O’Connell filed a motion for summary judgment in October 2012 arguing the same grounds alleged by Baptist and Dr. Remmel.
Following a hearing on the outstanding motions, the circuit court entered its written order. In the order, the circuit court denied appellants’ motion to withdraw and amend admissions. The circuit court found that requests for admission numbers one through three propounded by Baptist were deemed admitted. The circuit court did not consider Baptist’s fourth and fifth requests, finding that they were legal in nature. The requests by Dr. Remmel were deemed admitted in their entirety. The circuit court further found that requests for admission numbers one through four by Patrick O’Connell were deemed admitted and that request number five was legal in nature and thus not considered. The circuit court granted summary judgment to Baptist, Dr. Remmel, and O’Con-nell. This appeal followed.
Appellants first argue that the circuit court erred by deeming the requests for admission admitted. A trial court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by the appellate court absent an abuse of discretion that is prejudicial to the appealing party. Deering v. Supermarket Investors, Inc., 2013 Ark. App. 56, at 7, 425 S.W.3d 832, 836. To have abused its discretion, the trial court must have not only made an error in its decision, but also must have acted improvidently, thoughtlessly, 15or without due consideration. Id.
Appellants assert that the requests should have been invalidated as frivolous and against the rules of discovery. For support, they cite Widmer v. Fort Smith Vehicle Co., 244 Ark. 626, 427 S.W.2d 186 (1968). Appellees respond that Widmer is distinguishable from this case. We agree with appellees. In Widmer, the supreme court upheld a trial court’s decision to quash requests for admission by a plaintiff. The plaintiff had submitted the requests to the defendant, who timely responded. The plaintiff subsequently took a voluntary nonsuit and resubmitted identical requests after refiling the complaint. In this case, appellants never responded to the requests by Baptist and Dr. Remmel and failed to file responses to the requests by O’Con-nell. Appellants have made no showing that the requests were propounded for any illegitimate purpose. Their argument is without merit.
Appellants next argue that the circuit court erred by not invalidating the fourth request for admission propounded by Patrick O’Donnell. The circuit court invalidated the fourth request propounded by Baptist but not the fourth request by O’Connell, which was substantively identical. We do not presume that prejudice has resulted from a trial court’s error, and will not reverse for error unless prejudice is demonstrated. Davis v. Davis, 2013 Ark. App. 180, 2013 WL 1007249. Here, any error by the circuit court was harmless because Baptist was granted summary judgment based on the deemed admissions to its first three requests, and O’Connell’s first three requests were substantively identical to Baptist’s. As appellants have failed to demonstrate any prejudice from the circuit court’s ruling regarding O’Con-nell’s request, their argument is without merit.
| (Appellants also argue that O’Con-nell’s requests should not have been deemed admitted because the responses were served. They contend that they complied with the requirements of Arkansas Rule of Civil Procedure 36 by responding to the requests. They admit their failure to comply with Arkansas Rule of Civil Procedure 5’s requirement that the responses be filed, but argue that the remedy for that failure should be limited to any applicable to Rule 5 and would not, according to appellants, include deemed admission of the requests. All papers after the complaint required to be served upon a party or his attorney shall be filed with the clerk of the court either before service or within a reasonable time thereafter. Ark. R. Civ. P. 5(c) (2012). Responses to requests for admission are required to be served on the opposing party and are thus subject to Rule 5(c). Rule 5 itself contains no consequence for failure to abide by the rule. Our supreme court has held that it was error for a trial court to fail to strike an answer and enter a default judgment based on the failure of a party to timely file an answer. Webb v. Lambert, 295 Ark. 438, 748 S.W.2d 658 (1988). Default judgment is also a consequence of failure to respond to a complaint. Ark. R. Civ. P. 55(a) (2012). The same rationale that our supreme court has applied to failure to file an answer should likewise apply to a failure to file responses to requests for admission. Therefore, we hold that the circuit court did not abuse its discretion by deeming O’Connell’s requests for admission admitted when appellants’ responses were not filed as required.
Appellants next argue that the circuit court erred by denying their motion to withdraw and amend the admissions. They cite several cases which state that a trial court may allow a party to withdraw and amend admissions. That is not the relevant question. Arkansas Rule 17of Civil Procedure 36(b) (2012) clearly states that a trial court can permit withdrawal or amendment of responses to answers to requests for admission. However, the rule does not make it mandatory that a trial court grant a request to withdraw and amend. The relevant question here is whether the circuit court in this case abused its discretion by denying appellants’ motion to withdraw and amend. Appellants have not demonstrated an abuse of discretion by the circuit court, especially considering that the admissions are based on their failure to timely respond or file their responses.
Appellants’ final argument is that the circuit court erred by granting summary judgment in favor of appellees despite the admissions. 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. Midkiff v. Crain Ford Jacksonville, LLC, 2013 Ark. App. 373, 2013 WL 2457272. 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. Id. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in 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 is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable people might reach different conclusions from those undisputed facts. Id.
^Appellants’ complaint alleged negligence on the part of appellees. Arkansas Code Annotated section 16-114-206 (Repl.2006) states as follows:
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 provided only by a medical care provider of the same specialty as the defendant, 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) By means of expert testimony' provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
By failing to respond to the requests for admission, appellants admitted that they had no expert testimony to support the allegations in their complaint. Appellants assert in their brief that the admissions should apply only at the time they were made and should not have applied at the time of the hearing on the summary-judgment motions. However, they provide no support for this argument. We do not consider arguments without convincing argument or citations to authority. Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 420, 291 S.W.3d 179, 185 (2009). Appellants also make passing reference to the issues asserted as being within the common knowledge of the jury; however, they again offer no support for this assertion, nor do they explain how the issues would be within the common understanding of the jury. We will not consider the argument on appeal. Id. As appellants failed to provide any expert | ¡¡evidence on the issue of negligence, appellees were entitled to judgment as a matter of law, and the grant of summary judgment was not in error.
Affirmed.
PITTMAN and HARRISON, JJ., agree. | [
-112,
-20,
-60,
94,
10,
33,
48,
-86,
83,
-125,
101,
51,
-83,
-8,
1,
47,
-13,
127,
-43,
119,
-45,
51,
83,
-32,
114,
-45,
114,
-57,
-13,
-17,
-28,
-99,
93,
72,
-118,
117,
-94,
-53,
-19,
28,
-122,
7,
-104,
-59,
-111,
-125,
112,
46,
94,
7,
53,
-99,
-13,
46,
62,
79,
76,
108,
123,
37,
-48,
-15,
-120,
5,
-23,
5,
-95,
38,
-103,
101,
-6,
56,
-104,
-79,
0,
-84,
49,
-74,
-126,
116,
75,
-99,
12,
103,
99,
-125,
29,
-33,
-72,
-70,
15,
46,
29,
-90,
-101,
41,
65,
1,
-73,
-67,
90,
92,
6,
-8,
127,
-52,
30,
108,
-128,
-114,
-106,
-79,
-35,
120,
-100,
115,
-21,
111,
52,
117,
-113,
-64,
89,
-60,
51,
-69,
-98,
-78
] |
PAUL E. DANIELSON, Justice.
| Appellants Desiree Kolbeck, Amy Eddy, Jeanette Orlando, Nicole Farr, Summer Hagan, Jamie Rodriguez, Pebbles Rodriguez, Spencer Ondrisek, Seth Calag-na, Jeanne Estates Apartments, Inc., Tony Alamo a/k/a Bernie LaZar Hoffman, Steven Johnson, Cherry Hill Printing Company, Inc., Angela Morales, Jim Myers, David Romero, Nina Romero, Jennifer Kolbek, Joni Johnson, Suzanne Streit, Marty Moan, Anna Moan, Rob Walker, June Walker, Twenty-First Century Holiness Tabernacle Church, Inc., Music Square Church, Inc., SJ Distributing, Inc., Action Distributors, Inc., Advantage Sales, LLC, Rite Way Roofing, Inc., Donn Wolfe, Steve Lovellette, Sally Demoulin, Terri White, Sandford White, Tommy Scareello, Ron Decker, Douglas “Sonny” Brubach, and Sharon Alamo appeal from an order of the Sebastian County Circuit Court granting summary judgment in favor of appel-lees Truck Insurance Exchange (TIE) and Farmers Insurance Exchange (FIE). Appellants collectively present seven arguments on appeal: (1) the circuit court erred by considering extrinsic evidence outside the pleadings, specifically evidence from an underlying case; (2) the circuit court erred by holding that the insurance carrier negated all possibility that any allegation in the underlying lawsuit might lead to an award of covered damages; (3) the |2evidence at the very least created a material issue of fact on the insurance carrier’s duty to defend; (4) the circuit court erred in deciding the insurance carrier had no duty to pay prior to the conclusion of the underlying lawsuit; (5) the circuit court erred by failing to give effect to the terms “and operations necessary or incidental to those premises” in interpreting a limitation clause in the insurance contract; (6) the circuit court erred by failing to recognize that the alleged negligence of an insured’s employees constituted a potential ground for liability and mandated the duty to defend; and (7) the circuit court erred by granting summary judgment in this declaratory-judgment proceeding because at least one of the claims against the insureds was within the scope of coverage of the insurance contract. We find no error and affirm the circuit court’s order of summary judgment.
The relevant facts are these. TIE issued an apartment-owners insurance policy to appellant Jeanne Estates Apartments (JEA) that became effective on July 2,1998. From the policy period beginning August 7, 2006, FIE renewed the policy and continued to provide coverage through the 2008-2009 policy year. In 2008 and 2010, due to its connection to Tony Alamo and the Tony Alamo Christian Ministries, JEA became involved in three underlying lawsuits, which involved several of the appellants: the Coie case, the Ondrisek case, and the Kolbeck case. Claims for coverage were submitted by JEA to TIE/FIE in regard to those cases.
On May 20, 2011, TIE/FIE filed a complaint for declaratory judgment seeking that the circuit court find the following: that TIE/FIE owed no coverage to any person for any of the alleged misconduct that formed the basis of the claims in the underlying Coie, Ondiresk, Rand Kolbeck lawsuits; that TIE/FIE owed no coverage for any person upon any refiling or renewal of said claims under a new docket number or in a new lawsuit; that TIE/FIE had no duty to provide a defense to any person who was a defendant in the underlying lawsuits; that TIE/FIE would have no duty to provide a defense to any such person should claims be renewed under a new docket number or refiled in a new lawsuit; and for all other proper relief to which they may be entitled. The complaint was subsequently amended several times; however, the prayer for relief remained the same. Several answers were also filed in response.
On June 6, 2012, TIE/FIE filed a motion for summary judgment, again requesting that the circuit court declare that they owed no coverage to any person for any of the alleged misconduct which formed the basis of the claims in the underlying lawsuits, that they would owe no coverage for any person upon any refiling or renewal of said claims under a new docket number or in a new lawsuit, that they had no duty to provide a defense to any person or entity who is a defendant in the underlying lawsuits or in a new suit, and that they had no duty to provide a defense to any such person or entity should such claims be renewed under a new docket number or refiled in a new lawsuit. The circuit court held a hearing on the motion on October 12, 2012, and issued a letter order containing its findings of facts and conclusions of law on November 5, 2012. An order granting summary judgment in favor of TIE/FIE was entered on November 26, 2012. The order was modified slightly by an agreement between the parties on January 3, 2018. The order specifically stated in pertinent part:
3. The Court finds that the policy issued to Jeanne Estates Apartments, Inc. | ¿applies only to “bodily injury,” “property damage,” “personal injury,” or “advertising injury,” which arises out of the “ownership, maintenance or use of the premises shown on the Schedule (Jeanne Estates Apartments, Inc. in Fort Smith) and operations necessary or incidental to those premises.” The three tort claims underlying this declaratory judgment action do not fall within the scope of such coverage and do not involve injuries arising out of the “ownership, maintenance and use” of said Jeanne Estates Apartments, Inc.
4. The Court finds that the policy only provides coverage to “insureds,” which includes the organization (Jeanne Estates apartments), its “executive officers and directors” but only with respect to their duties as officers and directors; to stockholders but only with respect to their liability as stockholders; and to employees, but only while acting within the scope of their employment or performing duties related to the conduct of the business. No covered act by any “insured” relating to the scope of duties to the Jeanne Estates Apartments is found to exist in regard to any of the three underlying tort claims.
5. The Court finds that the policy does not cover acts or events which transpired before the policy was issued, and that some of the wrongful acts alleged in the three underlying tort cases occurred prior to the inception of this policy. The “Coie” claim occurred before the July 1998 inception of coverage, as did some aspects of the “Kolbeck” claim. Such events that occurred before July 1998 are not covered.
6. The Court finds that the policy does not cover any person or organization with respect to any current or past partnership, joint venture or limited liability company which is not shown as a named insured on the declarations. The only named insured shown on the declarations is Jeanne Estates Apartments, Inc. No other person or entity is covered regardless of allegations in the three underlying tort cases.
7. The Court finds that the policy does not cover punitive or exemplary damages.
8. The Court finds that the policy does not cover “bodily injury” or “property damage” expected or intended from the standpoint of an insured. The harms involved in all three underlying tort claims were expected or intended harms.
9. The Court finds that the policy contains an “abuse or molestation exclusion” which bars coverage for the abuse or molestation of any person, including any negligence in employment, investigation, supervision, reporting to the proper authorities, and retention. The Court finds that the three underlying tort claims constitute abuse or molestation of persons (or, in the Coie claim, abuse of a corpse), such that coverage for all such claims is excluded.
10. The Court finds that the policy excludes coverage for “personal injury” arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured.
11. The Court finds that the policy excludes coverage for “personal injury” arising out of the willful violation of a penal statute or ordinance committed by or with Isthe consent of the insured.
12. The Court finds that the Tenant’s liability coverage identified on the declaration page, which is the core of the counterclaim by the alleged wives, has no language that bears on the issues of coverage. The remainder of the counterclaim is moot and is dismissed.
13. That, therefore, the Court finds that Plaintiffs, Truck Insurance Exchange and Farmers Insurance Exchange, owe no coverage for, have no duty to defend, and have no duty to indemnify any person or entity in regard to Coie v. Alamo et al. (Sebastian County Circuit Court, No. CV-2009-1854); Kolbek v. Twenty First Century et al. (USDC, Western District of Arkansas No. 10-4142) and Ondrisek and Calagna v. Hoffman et al. (USDC Western District of Arkansas, 08-4113). Further, that Farmers Insurance Company and Truck Insurance Exchange do not owe any coverage, duty to defend, or duty to indemnify if any of the three aforesaid lawsuits are dismissed and refiled under new docket numbers.
Appellants now appeal this summary-judgment order.
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. 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. See id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of the motion leave a material fact unanswered. See id. We view 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. See id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. See id.
Where the appeal is from the grant of summary judgment in cases involving an | (¡insurance policy, we liberally construe any ambiguities in the policy in favor of the insured. See Scottsdale Ins. Co. v. Morrow Land Valley Co., LLC, 2012 Ark. 247, 411 S.W.3d 184. The court, and not the jury, determines the construction and legal effect of the policy, except when the meaning of the language depends upon disputed extrinsic evidence. See id.
As a general rule, when determining a liability carrier’s duty to defend, the pleadings against the insured determine the insurer’s duty to defend. See Murphy Oil USA, Inc. v. Unigard Sec. Ins. Co., 347 Ark. 167, 61 S.W.3d 807 (2001). The duty to defend is broader than the duty to indemnify; the duty to defend arises when there is a possibility that the injury or damage my fall within the policy coverage. See id. Where there is no possibility that the damage alleged in the complaint may fall within the policy coverage, there is no duty to defend. See id.
The insured in the instant ease was JEA. Before reviewing the allegations against JEA in the underlying complaints, it is important to note that the circuit court found that the inception of coverage of the applicable insurance policy began in July 1998. The judgment received by plaintiff Coie was entered on September 14, 1995. Therefore, the allegations against JEA in the Coie claim occurred prior to the inception of coverage and it is clear that no genuine issue of material fact exists as to coverage of those claims. For that reason, the circuit court did not err in granting summary judgment in favor of TIE/FIE as to the Coie claim.
It is also clear after review that no genuine issue of material fact exists as to TIE/FIE’s coverage of the Ondrisek claim. JEA was not a named defendant in the Ondrisek claim; |7however, JEA made a demand for the defense of Tony Alamo in that case. The plaintiffs in that case asserted that when they were teenage members of the Alamo religious organization, they suffered several beatings administered by either Tony Alamo or John Kol-bek, acting at Alamo’s direction. Their complaint asserted causes of action for battery, false imprisonment, outrage, and conspiracy. Plaintiffs specifically asserted that the damage they sustained was in the form of physical pain and suffering, emotional distress, and scarring/disfigurement, and was caused by the defendants “intentionally” and “with malice.”
The initial apartment-owners policy issued to JEA, which was renewed each year, defined the insureds, in pertinent part, as follows:
C. Who Is An Insured
1. If you are designated in the Declarations as:
d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your “Executive Officers” and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders.
2. Each of the following is also an insured:
a. Your “employees” other than either your “Executive Officers” (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.
(Emphasis added.) Tony Alamo was not acting as an officer or director for JEA, nor with respect to any liability as a stockholder of JEA, nor as an employee performing duties related to the conduct of the business of JEA when he caused harm to the plaintiffs in Ondrisek. Therefore, Tony Alamo was not an insured party under JEA’s insurance policy. Additionally, the complaint did not contain any specific allegation that any of the actions that | ^caused harm to the plaintiffs were carried out on JEA’s property. Finally, all allegations were comprised of intentional tor-tious acts. JEA’s policy specifically excluded coverage for “ ‘body injury1 or ‘property damage’ expected or intended from the standpoint of the insured.” Therefore, even were we to assume that Tony Alamo could have been considered an insured under the policy, the policy coverage was not applicable to the actions that Alamo was accused of in the Ondrisek complaint. For these reasons, we affirm the circuit court’s summary judgment in favor of TIE/FIE on the duty to defend in the Ondrisek claim.
We now turn to the final underlying case, the Kolbek case, which is the subject of the arguments presented on appeal. The Kolbek case began in 2010 when seven young women initiated a lawsuit against a number of persons and entities affiliated with Tony Alamo, including JEA. The women were all minor members of the Alamo organization who were married to Tony Alamo at young ages. The complaint’s initial allegations against JEA asserted that JEA (1) was negligent in hiring Tony Alamo; (2) was negligent in supervising and retaining Tony Alamo; (3) was vicariously hable as the employer of Tony Alamo for Alamo’s acts “in the course and scope of his employment”; (4) was negligent in allegedly maintaining property that housed the plaintiffs; (5) violated 18 U.S.C. § 1585, which involves the interstate transportation of minors for immoral purposes; (6) was responsible on a theory of premises liability; and (7) was involved with all other Alamo Christian Ministries’ entities in a joint venture. The women amended their complaint several times.
faThe final complaint, the fifth amended complaint, added defendants and reaffirmed allegations of negligence against the various entities, including JEA. This alleged negligence included (1) “allowing Tony Alamo unfettered access” to young girls; (2) endorsing or facilitating “spiritual weddings” with underage girls; (3) failure to protect the girls from sexual abuse and beatings; (4) failure to prevent Alamo from taking and distributing nude photos of the girls; (5) failure to prevent “others” from physically abusing the girls at the instruction of Tony Alamo; (6) and failure to keep locations they managed in a reasonably safe condition. The fifth amended complaint also reasserted the negligent hiring, retention, and supervision claims against all the Alamo entities, including JEA, but changed its claims regarding Alamo and stated that “Alamo was not an employee or member of TACM or any Defendant entity.” New allegations for false imprisonment, invasion of privacy, and defamation were advanced against all defendants, including JEA. Claims were additionally advanced that JEA and other defendants were liable for trafficking and transporting minors for sexual purposes, and were liable for failure to report child abuse to the appropriate authorities. Finally, all defendants, including JEA, were accused of the tort of outrage.
As previously noted, the circuit court also granted summary judgment in favor of TIE/FIE regarding its duty to defend in the Kolbek case. Some of the appellants argue that the circuit court acted prematurely because the insureds’ liability had not been established in the underlying lawsuit. However, this court has, on multiple occasions, allowed a carrier to obtain a ruling on the duty to defend and/or indemnify when appropriate. See, e.g., McSparrin v. Direct Ins., 373 Ark. 270, 283 S.W.3d 572 (2008); Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001). Nonetheless, this argument was not well developed, nor is it convincing.
Appellants also collectively argue that the circuit court erred in granting summary judgment because it improperly considered evidence outside the pleadings. Generally, insurers are not allowed to refuse to defend on the grounds that they are in possession of information establishing that the allegations in the complaint giving rise to coverage are untrue. See Allan D. Windt, Insurance Claims and Disputes § 4:4 (6th ed.2013). The evidence cited by TIE/FIE in support of its summary-judgment motion did not provide facts to disprove the merits of the allegations; rather, they helped illustrate what the allegations lacked in order to assert injury or damages that would fall within policy coverage and how certain facts were not in dispute. Furthermore, even though the letter order of the circuit court did comment on the fact that TIE/FIE presented evidence that no witnesses made a connection between JEA and the three underlying claims and that the appellants had failed to offer countervailing proof, the final order issued by the court cited only to the insurance policy itself in granting the summary judgment. It is clear that the circuit court found that none of the allegations, even assuming each was true, were encompassed by the policy based on the policy language alone.
The majority of the remaining arguments presented by appellants—that the circuit court erred by holding that JEA negated all possibility that any allegation might lead to an award of covered damages, that the evidence did not at least create a material issue of fact on the duty to defend, and that not one claim, including the alleged negligence, was within the | n scope of coverage—are found to be without merit as this court concludes that the allegations made in the Kolbelc case are simply not the type of claims covered by the insurance policy issued to JEA. The insurance policy issued by TIE/FIE to JEA states that the insurance applies only to “bodily injury,” “property damage,” “personal injury,” “advertising injury,” and medical expenses arising out of the ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises. None of the allegations in the Kolbek complaint were connected to the ownership, maintenance, and use of JEA’s premises, nor were they connected to the necessary or incidental operations of JEA.
While this court has not interpreted the “arising out of’ language in a liability policy of an apartment complex, we have done so in other types of liability policies. In Owens v. Ocean Accident & Guarantee Corp. Ltd., 194 Ark. 817, 109 S.W.2d 928 (1937), the plaintiff funeral home/ambulance operator had an automobile insurance contract on its ambulance that covered any “damages on account of bodily injuries ... caused by the ownership, maintenance, or use” of the ambulance. Id. at 818, 109 S.W.2d at 928. The ambulance officer took a stretcher out of the ambulance, went into a patient’s home with it, and negligently allowed the patient to slide off the stretcher before she was loaded into the ambulance, which injured her. See id. We held that the injuries were covered because they did arise out of the use of the ambulance and stated as follows:
1,2“Ownership, maintenance, and use” are general terms. These words were selected by the insurer to indicate or circumscribe the scope of coverage contemplated; and, where such expressions are adopted, it is not a perversion or extension of the contract, when applied to the instant case, to say that, although use of the stretcher to convey Mrs. Mason from her home to the waiting ambulance was not a necessary incident to use of the automobile as a motor vehicle, it was an essential transaction in connection with use of the automobile as an ambulance. When we add to these conclu sions appellee s knowledge that the veto.-cle insured was, by express terms of the contract, to be used as an ambulance, it necessarily follows that any transaction so closely identified with the operation of the vehicle as an ambulance as to form a link in its general utility and functions would fall within the purview of the risk insured against, and appellee would become liable.
Owens, 194 Ark. at 822, 109 S.W.2d at 930 (1937) (emphasis added). However, in Hartford Fire Insurance Co. v. State Farm Mutual Automobile Insurance Co., 264 Ark. 743, 574 S.W.2d 265 (1978), we found that an accidental death caused by the discharge of a gun left in an insured recreational vehicle while the gun was being held by a person also inside the parked vehicle was not an injury “arising out of the ownership, maintenance or use” of the insured camper because the accidental death could not be said to be causally related to the use of the camper. Therefore, we have recognized this contractual language in insurance policies to require some sort of causal connection between a transaction or occurrence that is essential to the .use of the insured property and the injury. That connection fails to exist in the instant case.
Furthermore, while appellants allege that the circuit court failed to give effect to the term “and operations necessary or incidental to those premises,” the injuries alleged also did not arise out of any operations necessary or incidental to JEA’s premises. This court has not interpreted the necessary or incidental language; however, other jurisdictions have and behave required that the same causal connection exist between the injury and the insured’s business/operations. See Newman v. United Fire & Cas. Co., NO. CV-13-47-M-DLC, 995 F.Supp.2d 1125, 2014 WL 494529 (D.Mont. Jan. 15, 2014) (the district court found the duty to defend had been triggered because the complaint drew a causal connection between the services provided by the insured and the damages); Szczeklik v. Markel Int’l Ins. Co., Ltd., 942 F.Supp.2d 1254 (M.D.Fla.2013) (the district court found that the policy provided coverage because the injury stemmed from the negligence in connection with the assembly and preparation of a product that the insured distributed (i.e., it arose out of the business being conducted by the insured)); Servants of the Paraclete, Inc. v. Great Am. Ins. Co., 857 F.Supp. 822 (D.N.M.1994) (the district court found a “reasonable causal connection” between the ownership, maintenance or use of the premises and the alleged sexual abuse of minors because the specific mission of the premises insured was the rehabilitation of pedophilic priests). Again, there is no such connection in the instant case.
Even were we to find that a causal connection existed here between the allegations and the business operations of JEA such that the insurance policy provided coverage, there are several exclusions in the policy that also apply to a majority of the allegations in the 114instant case. , , , , , While the Kolbek complaint was amended several times to add and alter contains. See Comcast of Little Rock, Inc. v. Bradshaw, 2011 Ark. 431, 385 S.W.3d 137. See also Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987). The injuries and damages in the Kolbek case truly all stem from the abuse suffered by the plaintiffs below. No court could help but be sympathetic to those individuals and the injuries they suffered. However, the apartment-liability contract issued by TIE/ FIE simply does not exist to provide an insured coverage for this type of alleged harm. Therefore, we affirm the circuit court’s grant of summary judgment in favor of TIE/FIE.
Affirmed; motion to dismiss denied.
. Deceased.
. According to the policy at issue, TIE and FIE are members of the Farmers Insurance Group based out of California.
. Nicole Farr is the exception here, as she escaped before she could be married to Alamo.
. The premises shown are located in Fort Smith, Arkansas.
. No person or organization is insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations.
. Regardless of any other provision, this policy does not cover punitive or exemplary damages or the cost of defense related to such damages.
. This insurance policy does not apply to:
a. Expected or Intended Injury
"Bodily injury” or "property damage” expected or intended from the standpoint of the insured.
. This insurance policy does not apply to "bodily injury,” "property damage,” "advertising injury” or "personal injury” arising out of:
(a) The actual or threatened abuse or molestation of anyone or any person while in the care, custody or control of any insured; or
(b) the negligent
(i) Employment;
(ii) Investigation;
(iii) Supervision;
(iv) Reporting to the property authorities, or failure to report; or
(v) Retention of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by (a) above.
. "Personal Injury” means injury, other than "bodily injury” arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, by or on behalf of its owner, landlord or lessor;
d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization’s goods, products or services; or
e. Oral or written publication of material that violates a person’s right of privacy.
. This insurance does not apply to;
p. Personal Or Advertising Injury "Personal Injury” or "advertising injury”;
(1) Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity;
(3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured | [
-12,
116,
-7,
-83,
8,
35,
112,
42,
83,
-96,
39,
83,
-19,
-26,
89,
111,
-17,
61,
101,
88,
-25,
-77,
17,
98,
-42,
-69,
-21,
-59,
-80,
75,
-10,
-33,
93,
96,
-54,
69,
102,
72,
-51,
24,
-54,
-120,
-7,
-20,
-55,
-63,
48,
-21,
20,
71,
53,
-113,
-30,
40,
57,
-53,
104,
44,
123,
33,
66,
-80,
-54,
5,
127,
23,
-95,
36,
-103,
3,
-24,
8,
-112,
49,
8,
-8,
115,
38,
6,
116,
127,
-103,
1,
38,
103,
32,
20,
-59,
108,
-104,
46,
94,
31,
-25,
-110,
25,
27,
8,
-73,
31,
116,
54,
7,
124,
-2,
84,
11,
108,
-123,
-113,
-47,
-77,
-81,
-32,
-100,
-93,
-49,
23,
-80,
113,
-55,
-86,
92,
69,
55,
63,
95,
-128
] |
COURTNEY HUDSON GOODSON, Associate Justice
11 Appellants Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction, and the Arkansas Department of Correction (collectively “ADC”) appeal the orders entered by the Pulaski County Circuit Court denying their motions to dismiss and for summary judgment against multiple claims challenging the constitutionality of Act 1096 of 2015 brought by appellees Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams, Don Davis, and Ledell Lee (collectively “Prisoners”). For reversal, ADC contends that the Prisoners failed to sufficiently plead and prove them asserted constitutional violations in order to overcome the defense of sovereign immunity. We reverse the circuit court’s decision in toto and dismiss the Prisoners’ amended complaint.
|2I. Factual Background
This litigation was initiated by the Prisoners who are under sentences of death for capital murder, and the issues are centered on Act 1096 of 2015 (the “Act”), which is codified at Arkansas Code Annotated section 5-4-617 (Supp. 2015). The Act establishes the current method by which executions are to be conducted in Arkansas.
The Act amends the previous method-of-execution statute, formerly found at Arkansas Code Annotated section 5-4-617 (Repl. 2013), that was passed into law by Act 139 of 2013. Under Act 139, the protocol entailed the intravenous administration of a benzodiazepine to be followed by a “lethal injection of a barbiturate in an amount sufficient to cause death.” Ark. Code Ann. § 5-4-617(a) & (b) (Repl. 2013). It also exempted information about execution procedures and their implementation from the Arkansas Freedom of Information Act (FOIA). Ark.Code Ann. § 5-4-617(g) (Repl. 2013). The Prisoners, with the exception of Ledell Lee, previously brought a declaratory-judgment action against ADC in regard to Act 139. In that complaint, the Prisoners asserted, among other things, that Act 139 violated the separation-of-powers doctrine under the Arkansas Constitution because the statute delegated unbridled discretion to ADC in determining which drug was to be used for lethal injection. In connection with that lawsuit, the parties entered into a settlement agreement on June 14, 2013. Because ADC had decided not to employ the then existing lethal-injection protocol, the Prisoners agreed to forgo their as-applied claims contesting the constitutionality of the protocol in exchange for ADC’s agreement to not raise the defense of res judica-ta should the Prisoners reassert an as-applied claim. Also as part of the settlement, ADC agreed to provide a copy of the new protocol, |3and once the selected drugs were obtained, to “disclose the packaging slips, package inserts, and box labels received from the supplier.” Ultimately, the Prisoners prevailed in the circuit court on their facial challenge to Act 139. However, this court reversed, holding that Act 139 did not violate separation of powers because the statute provided, reasonable guidelines to ADC in determining the method to use in carrying out the death penalty. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707.
Act 1096 became effective on April 6, 2015, soon after our decision in McGehee. The salient features of the present'Act are two-fold. First, it modifies the permissible means of execution by lethal injection:
(c) The department shall select one (1) of the following options for a lethal-injection protocol, depending on the availability of the drugs:
(1) A barbiturate; or
(2) Midazolam, followed by vecuroni-um bromide, followed by potassium chloride.
Ark.Code Ann. § 5-4-617(c) (Supp. 2015). Further, the Act provides that the drugs used to carry out the lethal injection shall be (1) approved by the United States Food and Drug Administration (FDA) and made by a manufacturer approved by the FDA; (2) obtained by a facility registered with the FDA; or (3) obtained from a compounding pharmacy that has been accredited by a national organization that accredits compounding pharmacies. Ark, |4Code Ann. § 5-4-617(d) (Supp. 2015). Like Act 139 of 2013, the Act also provides that the ADC shall carry out the sentence of death by electrocution if execution by lethal injection is invalidated by a final and unap-pealable court order. Ark.Code Ann. § 5-4-617(k) (Supp. 2015).
The second departure from the former law lies in the Act’s nondisclosure provisions. While the Act maintains the previous FOIA exemption, it also contains the following confidentiality requirements:
(2) The department shall keep confidential all information that may identify or lead to the identification of:
(A) The entities and persons who participate in the execution process or administer the lethal injection; and
(B) The entities and persons who compound, test, sell, or supply the drug or drugs described in subsection (c) of this section, medical supplies, or medical equipment for the execution process.
(3) The department shall not disclose the information covered under this subsection in litigation without first applying to the court for a protective order regarding the information under this subsection.
Ark. Code Ann. § 5 — 4—617(i) & (j)- As pertinent here, the Act permits ADC to make available to the public the following information, so long as the identification of the seller, supplier, or testing laboratory is redacted and maintained as confidential: package inserts and labels, if the drugs used in the protocol have been made by a manufacturer approved by the FDA; reports obtained from independent testing laboratories; and ADC’s procedure for administering the drugs, including the contents of the lethal-injection drug box.
The Prisoners first filed suit in April 2015 against ADC in the Pulaski County Circuit Court, challenging the constitutionality of the Act. ADC removed the action to federal | scourt. However, the Prisoners promptly dismissed the federal case without prejudice and returned to the circuit court with the filing of an amended complaint, asserting claims only under the Arkansas Constitution. In response to a motion to dismiss filed by ADC, the Prisoners filed the present action under a new case number.
During the course of the litigation, ADC informed the prisoners of its intent to execute them using the three-drug combination of Midazolam, vecuronium bromide, and potassium chloride. In connection with that disclosure, ADC provided to the Prisoners package inserts and labels for the drugs, redacting the identity of the supplier of the drugs, in accordance with the Act. ADC also provided the Prisoners with the lethal-injection protocol to be used in the executions. The protocol calls for a total dose of 500 milligrams of Mi-dazolam, 100 milligrams of vecuronium bromide, and 240 milliequivalents of potassium chloride. On September 9, 2015, the State set execution dates for each of the Prisoners, except Ledell Lee. On application of the Prisoners, the circuit court issued a temporary restraining order staying the scheduled executions. On October 20, 2015, this court granted ADC’s petition for writ of certiorari to lift the stays of execution erroneously ordered by the circuit court, based on the holding that a circuit court, in no uncertain terms, lacks the authority to stay executions. Kelley v, Griffen, 2015 Ark. 375, 472 S.W,3d 135. However, we simultaneously granted the Prisoners’ request to stay their executions pending the resolution of the underlying litigation. Id.
Meanwhile, on September 28, 2015, the Prisoners filed an amended complaint, which is the operative pleading at issue in this appeal. The amended complaint contains separate causes of action that fall into two categories: claims challenging the constitutionality | fiof the Act’s nondisclosure provisions regarding the identity of the supplier of the drugs, and claims challenging the constitutionality of the selected method of execution. Each claim is made under the Arkansas Constitution. With respect to nondisclosure, the Prisoners alleged that the confidentiality provisions of the Act (1) violate the Contract Clause, found at article 2, section 17, by impairing the disclosure obligations undertaken by ADC in the June 2013 settlement agree ment; (2) offend the freedoms of speech and of the press guaranteed by article 2, section 6; (3) violate their rights to procedural protections that are part of the Cruel or Unusual Punishment Clause set forth in article 2, section 9; (4) transgress the right to procedural due process under article 2, section 8; (5) violate separation of powers by precluding adequate judicial review of the means of execution; and (6) are contrary to the Publication Clause found at article 19, section 12. Regarding the means of execution, the Prisoners alleged that (1) implementation of the Act violates the right of substantive due process found in article 2, section 8 of the Arkansas Constitution; (2) the Act violates separation of powers under article 4 by delegating unfettered discretion to ADC; (3) execution using either the three-drug-Midazolam protocol, compounded drugs, or electrocution constitutes cruel or unusual punishment under article 2, section 9; and (4) the Act violates the Ex Post Facto Clause of article 2, section 17.
ADC filed a motion to dismiss the amended complaint on the ground of sovereign immunity. In the motion, ADC argued that the Prisoners’ claims were barred by sovereign immunity because the complaint failed to state cognizable claims of any constitutional violation. In an order dated October 9, 2015, the circuit court dismissed the Prisoners’ separation-of-powers claim as to the allegation of improper delegation of authority, based |7on this court’s decision in McGehee, supra, but the court denied the motion to dismiss with regard to the contract-clause claim, the freedom-of-speech and press claim, the claims regarding procedural due process, the separation-of-powers claim with respect to the function of the judiciary, and the method-of-execution claims that the lethal-injection procedure violates the ban on cruel or unusual punishment and the alleged right of substantive due process to be free of objectively unreasonable risks of substantial and unnecessary pain and suffering.
ADC subsequently filed a motion asking the circuit court to address its request for dismissal with regard to three of the Prisoners’ claims that the circuit court had neglected to rule on in its October 9, 2015 order. On October 22, 2015, the circuit court entered a supplemental order to provide a decision concerning the omitted claims. The court dismissed the Prisoners’ contention that the Act violated the ex post facto clause of the Arkansas Constitution, but the court denied the motion to dismiss the claim regarding the publication clause of the Arkansas Constitution and the due-process claim asserted in conjunction with the allegation of cruel or unusual punishment. The circuit court also ruled that the Prisoners had pled sufficient facts demonstrating feasible alternatives to the current method of execution. ADC filed a notice of appeal from the two orders ruling on their motion to dismiss.
The Prisoners moved for partial summary judgment, and ADC moved for summary judgment on all the remaining claims asserted by the Prisoners. In its motion, ADC argued that it was entitled to summary judgment on grounds of sovereign immunity because the Prisoners had not proved viable claims of any constitutional violation. The circuit court ^entered an order on December 3, 2015, granting summary judgment on the disclosure claims and .denying summary judgment on the means-of-execution claims. Specifically, the court granted ADC’s motion for summary judgment on the remaining separation-of-powers claim. The circuit court granted the Prisoners’ motion for summary judgment on their contract-clause claim, their claim regarding freedoms of speech and the press, their claims regarding due process, and the publication-clause claim. The circuit court denied ADC sum mary judgment on the Prisoners’ substantive due-process claim and the cruel-or-unusual-punishment claim, ruling that those issues could not be decided as a matter of law because material questions of fact remained in dispute. ADC filed a timely notice of appeal from this order.
The parties also litigated the question of a protective order. In its December 3, 2015 order, the circuit court denied ADC’s request for a protective order and directed it to identify the manufacturer, seller, distributor, and supplier of any lethal-injection drugs to be used in executions by no later than noon on December 4, 2015. On December 3, 2015, ADC applied to this court for an immediate stay of the circuit court’s order. On that same day, we granted a temporary stay of the circuit court’s disclosure order pending briefing. On January 7, 2016, we issued an immediate stay of all proceedings in the circuit court during the pendency of this appeal.
II. Propriety of the Appeal
In their brief, the Prisoners contend that this court lacks jurisdiction to hear the appeal because the circuit court did not specifically rule on the issue whether ADC is entitled to sovereign immunity. In response, ADC argues that the appeal is proper because sovereign |9immunity was the sole basis on which it moved for dismissal and for summary judgment and that the circuit court has ruled on all the issues raised in their motions.
The general rule is that the denial of a motion for summary judgment is neither reviewable nor appealable. Ark. R.App. P.-Civ. 2(a)(10); Bd. of Trs. v. Pulaski Cty., 2013 Ark. 230. However, Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure — Civil permits an appeal from an interlocutory “order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity.” The rationale justifying an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Ark. State Claims Comm’n v. Duit Constr. Co., 2014 Ark. 432, 445 S.W.3d 496.
As we have explained, sovereign immunity is jurisdictional immunity from suit, and jurisdiction must be determined entirely from the pleadings. Fitzgiven v. Dorey, 2013 Ark. 346, 429 S.W.3d 234. This defense arises from article 5, section 20 of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts.” This court has extended the doctrine of sovereign immunity to include state agencies. Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731. In determining whether the doctrine of sovereign immunity applies, the court should determine if a judgment for the plaintiff will operate to control the action of the State or subject it to liability. Ark. Dep’t of Human Servs., v. Fort Smith Sch. Dist., 2015 Ark. 81, 455 S.W.3d 294. If so, the suit is one against the State and is barred by the doctrine of sovereign immunity, unless an exception to sovereign immunity applies. Ark. Dep’t of Envtl. Quality v. Al-Madhoun, 374 Ark. 28, 285 S.W.3d 654 (2008). This court has recognized three ways hnin which a claim of sovereign immunity may be surmounted: (1) the State is the moving party seeking specific relief; (2) an act of the legislature has created a specific waiver of sovereign immunity; or (3) the state agency is acting illegally, unconstitutionally, or if a state-agency officer refuses to do a purely ministerial action required by statute. Bd. of Trs. v. Burcham, 2014 Ark. 61. The third exception is at issue in this appeal.
In arguing that the appeal is improper, the Prisoners refer to our decision in Arkansas Lottery Commission v. Alpha Marketing, 2012 Ark. 23, 386 S.W.3d 400, where we held that, before an interlocutory appeal may be taken under Rule 2(a)(10), a circuit court must provide a ruling on the defense of sovereign immunity. In that case, Alpha Marketing had filed a declaratory-judgment action against the Lottery Commission claiming that it was entitled to the exclusive use of certain trademarks that had been registered to it. Alpha Marketing also asserted that the Lottery Commission was infringing on its trademarks, and as relief, it sought damages for lost profits and an injunction to prohibit the Lottery Commission from manufacturing, using, displaying, or selling any imitations of its registered trademarks. The Lottery Commission moved to dismiss the complaint on multiple grounds, including arguments that the trademark registrations had been improperly granted and that the marks were not entitled to trademark protection. In addition, the Lottery Commission moved for dismissal on the independent ground that the doctrine of sovereign immunity barred Alpha Marketing’s request for damages and injunctive relief for trademark infringement. In a detailed written order, the circuit court denied the Lottery Commission’s motion to dismiss regarding its arguments that Alpha Marketing had not stated a valid cause of action for trademark infringement. However, the court did not rule on the Lottery | n Commission’s contention that the relief sought by Alpha Marketing was barred by sovereign immunity. Because the circuit court did not rule on the defense of sovereign immunity, and because only that claim is subject to an interlocutory appeal, we dismissed the appeal for the lack of an express ruling on the separate issue of immunity.
Here, the circuit court did rule on the issue of sovereign immunity. Therefore, Alpha Marketing does not warrant the dismissal of this interlocutory appeal. In moving to dismiss and for summary judgment, ADC argued that it was entitled to judgment as a matter of law on the basis of sovereign immunity because the Prisoners failed either to plead or to prove viable and cognizable claims to demonstrate the unconstitutionality of the Act. In its orders, the circuit court accepted a few of ADC’s arguments, while rejecting others. Thus, the circuit court ruled on each and every contention advanced by ADC to support its defense of sovereign immunity. This appeal contests the court’s adverse rulings. By explicitly rejecting ADC’s asserted grounds for being immune from suit, the court did, in fact, rule on the issue of sovereign immunity. Consequently, jurisdiction lies over this interlocutory appeal.
III. Method of Execution
As its opening argument on appeal, ADC asserts that the Prisoners failed to plead and to prove that the use of the three-drug Midazolam protocol imposes cruel or unusual punishment, as prohibited by article 2, section 9 of the Arkansas Constitution. It argues that the Prisoners did not meet their burden of establishing either that the alternative execution methods proposed by the Prisoners in their amended complaint are feasible and readily implemented by the ADC or that a 500-milligram intravenous dose of Midazolam is sure | ij>or very likely to cause needless suffering. The Prisoners respond that they pled sufficient facts regarding the alternative methods of execution and that a genuine factual dispute remains on that issue, as well as the question whether the Midazolam protocol causes a demonstrated risk of severe pain.
The law is well settled regarding the standard of review used by this eourt in reviewing a grant of summary judgment. Fed. Nat’l Mortg. Ass’n v. Taylor, 2015 Ark. 78, 455 S.W.3d 811. A circuit court will 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. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark. 112, 488 S.W.3d 613. “[W]e only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law.” Town of Lead Hill v. Ozark Mountain Reg’l Pub. Water Auth., 2015 Ark. 360, at 3, 472 S.W.3d 118, 121-22 (quoting Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 569-70, 11 S.W.3d 531, 536 (2000)). The standard is whether' the evidence is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a conclusion. Talbert v. U.S. Bank, 372 Ark. 148, 271 S.W.3d 486 (2008); see also Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49. The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Walls v. Humphries, 2013 Ark. 286, 428 S.W.3d 517.
|13(⅛ review, this court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. Lipsey v. Giles, 2014 Ark. 309, 439 S.W.3d 13. 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. Hotel Assocs., Inc. v. Rieves, Rubens & Mayton, 2014 Ark. 254, 435 S.W.3d 488.
When reviewing a circuit court’s decision on a motion to dismiss, we treat as true the facts alleged in the complaint and view them in the light most favorable to the plaintiff. Key v. Curry, 2015 Ark. 392, 473 S.W.3d 1. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Sanford v. Walther, 2015 Ark. 285, 467 S.W.3d 139. This court’s rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ballard Grp., Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, 436 S.W.3d 445.
Article 2, section 9 of our constitution provides that “cruel or unusual punishments [shall not] be inflicted.” ADC’s arguments under this point are based on the United States Supreme Court’s decisions in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and Glossip v. Gross, — U.S. -, 135 S.Ct. 2726, 192 L,Ed.2d 761 (2015), where the Court addressed the substantive elements of method-of-execution claims under the Eighth Amendment. To prevail on such a claim, a prisoner bears the burden of proving two distinct but interrelated propositions. First, he must establish that the method presents a risk that is “sure or very likely to cause serious illness and needless suffering” and that gives rise to “sufficiently imminent dangers.” Baze, 553 U.S. |at 50, 128 S.Ct. 1520 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). The Court explained that there must be a “substantial risk of serious harm” or an “objectively intolerable risk of harm” associated with the method of execution that prevents prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Second, a prisoner must prove that “any risk posed by the challenged method is substantial when compared to known and available alternative methods of execution.” Glossip, 135 S.Ct. at 2737-38. Under this prong of the test, a prisoner “must identify an alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’ ” Id. at 2737 (quoting Baze, 553 U.S. at 52, 128 S.Ct. 1520). This burden is not met “by showing a slightly or marginally safer alternative.” Id.
In setting these standards, the Court recognized that, because capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” Glossip, 135 S.Ct. at 2732-33 (quoting Baze, 553 U.S. at 47, 128 S.Ct. 1520). The standards were also shaped by the Court’s dual observations that, “because some risk of pain is inherent in any method of execution,. we have held that the Constitution does not require the avoidance of all risk of pain” and that “[h]olding that the Eighth Amendment demands the elimination of essentially all risk Of pain would effectively outlaw the death penalty altogether.” Id. at 2733.
As we have noted in the past, this court has interpreted article 2, section 9 in a manner that is consistent with precedents under federal law regarding the Eighth Amendment. See Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).. In Bunch, we said that we will continue 11Bto do so unless a party offers “legal authority or persuasive argument to change our legal course.” Id. at 739, 43 S.W.3d at 138. In this case, the Prisoners urge us to disavow the requirement established in Baze, as amplified by the Court in Glossip, that a prisoner bears the burden of proving a known and available alternative to a state’s current execution protocol. They assert that we should construe our provision differently because the Eighth Amendment uses the words “cruel and unusual punishment,” whereas the Arkansas Constitution contains the disjunctive phrase “cruel or unusual punishment.” As the Court made clear in Glossip, the burden of showing a known and available alternative is a substantive component of an Eighth Amendment method-of-execution claim. We are not convinced that the slight variation in phraseology between the two constitutions denotes a substantive or conceptual difference in the two provisions that would compel us to disregard any part of the test governing a challenge to a method of execution. Accordingly, we decline the Prisoners’ invitation to depart from our practice of interpreting our constitutional provision along the same lines as federal precedent, and we hereby adopt the standards enunciated in both Baze and Glossip. Accordingly, in challenging a method of execution under the Arkansas Constitution, the burden falls squarely on a prisoner to show that (1) the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and (2) there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain. We now proceed to a discussion of ADC’s arguments that are based on these standards.
lif,ÁDC first contends that the Prisoners failed to meet their burden of pleading and proving that their proposed alternative methods o'f execution are feasible and capable of being readily implemented. In opposing this argument, the Prisoners maintain that they sufficiently pled five alternatives to the Midazolam protocol and that, for purposes of summary judgment, they presented sufficient evidence to support their contention that the alternative methods are known and readily available for use.
In their amended complaint, the Prisoners pled that a number of alternative execution procedures are available that would significantly reduce the risk of pain and suffering than the use of the Midazolam protocol. First, the Prisoners proposed execution by firing squad as an alternative. They supported this allegation with the affidavit of Dr. Jonathan Groner, who stated that execution by firing squad, if skillfully performed, would result in “nearly instantaneous and painless death” because “[disruption of blood flow to the brain, which would result from lacerations to the heart by multiple bullets, causes almost immediate loss of consciousness, resulting in rapid death with little or no pain.” In addition to the firing squad, the Prisoners advocated the use of a massive dose of an FDA-approved, fast-acting barbiturate, such as Brevital and Nembutal. They also offered the option of a massive dose of an anesthetic gas, namely sevoflurane, desflu-rane, or isoflurane. In addition, the Prisoners proposed the use of a massive dose of an injectable opioid, such as Sublimaze, or a massive dose of a transdermal patch like Duragesic. The Prisoners supported the use of these lethal agents with the report of Dr. Craig Stevens, who holds a doctorate in pharmacology. Stevens opined in his report that any of these drug protocols would produce |17a rapid and painless death. Further, he identified the manufacturers of the various drugs and stated that the drugs were commercially available.
To counter the Prisoners’ proposed alternatives, ADC presented the affidavits of Executive Director Kelley and of Rory Griffin, ADC’s deputy director. In her affidavit, Kelley stated that, before the current protocol was adopted, she had made unsuccessful attempts to obtain a barbiturate to use in carrying out capital punishment by lethal injection. Kelley said that potential suppliers of lethal drugs declined to sell them to the ADC, and she explained that the sellers were concerned about adverse publicity and the loss of business if they were identified as suppliers of drugs used for executions. She further stated that the supplier who sold the FDA-approved drugs currently in ADC’s possession agreed to sell the drugs only after receiving a copy of the Act and confirming that ADC is required by law to keep its identity confidential, unless ordered to disclose the information in litigation. Finally, she averred that the supplier has taken the position that it will not provide any additional drugs for use in executions and that she is unaware of the identity of any supplier or manufacturer that will sell drugs for use in executions.
In his affidavit, Griffin stated that he had conducted an investigation into the availability of drugs for use in executions. The investigation consisted of a series of phone calls Griffin made the day before swearing out the affidavit. He reported that Akorn Inc. was not willing to sell Nembutal Sodium Solution for that purpose and that Akorn requires its buyers to sign a form stating that they will not divert Akorn’s products to any department |18of correction. Griffin reported the same information with respect to the drug Bre-vital after contacting a representative of Par Pharmaceuticals. He inquired of Baxter Health Corp. about the anesthetic gases of desflurane and isoflurane and was told that Baxter was not willing to sell the gases for executions. Griffin stated that he contacted Jannsen Pharmaceuticals Co. about Sublimaze and Duragesic patches. He was advised to relay his questions in writing and that he could expect a response from them in six to eight weeks. Griffin said that he submitted a written request but that he had not received a response. Griffin stated that he also contacted a wholesale distributor from Louisiana, Morris & Dickson Co., LLC. Paul Dickson, the owner, reported that he would have to obtain approval from the manufacturers before selling drugs to ADC for use in executions.
ADC contends that the Prisoners failed to “plead and prove” that the proposed alternative methods of execution to the Midazolam protocol are feasible and readily implemented by the ADC, as required under the decision in Glossip. However, we observe that the procedural posture of Glossip is much different from that which is involved in this appeal, which comes to us from motions to dismiss and for summary judgment. In Glossip, the case involved the prisoners’ request for. a preliminary injunction that was denied after a three-day evidentiary hearing. The Supreme Court’s decision upholding the findings of the lower court approving the Midazolam protocol was based on the evidence developed in that record and the Court’s application of its deferential standard of review to the lower court’s findings. This places the Court’s statement that the “Eighth Amendment requires a prisoner to plead and prove a known and available alternative” in its proper context. Glossip, 135 S.Ct. at 2739. Nonetheless, we agree with ADC that the Prisoners have not met their |inburden of demonstrating, even at this stage of the proceedings, that the proposed alternative drugs are available to ADC for use in an execution. In their amended complaint, the Prisoners pled only that the drugs they offered as alternatives were “commercially available.” That the drugs are generally available on the open market says nothing about whether ADC, as a department of correction, is able to obtain the drugs for the purpose of carrying out an execution. Consequently, the Prisoners failed to even allege that the proposed drug protocols are “feasible” and “readily implemented” by ADC. Accordingly, the circuit court erred in concluding that the Prisoners pled sufficient facts as to the proposed alternative drugs.
We reach the same result with respect to the Prisoners’ alternative method of a firing squad. In their effort to show that death by firing squad significantly reduces a substantial risk of severe pain, the Prisoners pled that this method would result in instantaneous and painless death. In terms of whether this method is capable of ready implementation, the Prisoners merely alleged in their amended complaint that ADC has firearms, bullets, and personnel at its disposal to carry out an execution. However, these allegations are entirely conclusory in nature. Conclu-sory statements are not sufficient under the Arkansas Rules of Civil Procedure, which identify Arkansas as a fact-pleading state. Worden v. Kirchner, 2013 Ark. 509, 431 S.W.3d 243; Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324, In this case, the Prisoners failed to substantiate the conclusory allegations contained in their amended complaint.
We wish to emphasize that merely reciting bare allegations is not sufficient to show that a firing squad is a readily implemented alternative. The law in Arkansas calls for | ¡^execution by means of intravenous lethal injection. Ark.Code Ann. § 5-4-617(a). The other authorized method is electrocution, which is to be utilized only after execution by lethal injection is invalidated by a final and unappealable order. Ark.Code Ann. § 5-4-617(k). Execution by firing squad is not identified in the statute as an approved means of carrying out a sentence of death. As such, this proposal does not comply with the current statutory scheme. In our history, the General Assembly has never seen fit to authorize this form of execution. For these reasons, it cannot be said that the use of a firing squad is a readily implemented and available option to the present method of execution. See Boyd v. Myers, No. 2:14-CV-1017, 2015 WL 5852948 (WKW) (M.D.Ala. Oct. 7, 2015). As a consequence, ADC was entitled to dismissal on this'proposed alternative.
Because the Prisoners failed to satisfy this prong of the test for establishing a claim of cruel or unusual punishment, the circuit court erred by denying ADC’s request for dismissal of the Prisoners’ method-of-execution challenge. Consequently, we reverse and dismiss the Prisoners’ claim.
Before leaving this point on appeal, we must address the Prisoners’ assertion that the Midazolam protocol violates the substantive component of article 2, section 8 of the Arkansas Constitution because the lethal-injection procedure using Midazolam entails objectively unreasonable risks of substantial and unnecessary pain and suffering. On this issue, the circuit court ruled that the Prisoners need not satisfy the requirement of offering a feasible and readily implemented alternative to the Midazolam protocol. We agree with ADC’s contention that this claim must be analyzed under the two-part test we have herein adopted for method-of-execution challenges. “If a constitutional claim is covered by a |¾1 specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (citing Graham v, Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In applying this principle, courts have concluded that an Eighth Amendment claim that is conterminous with a substantive due-process claim supersedes the due-process claim. Curry v. Fed. Bureau of Prisons, No. 05-CV-2781, 2007 WL 2580558 (PJS/JSM) (D.Minn. September 5, 2007) (collecting cases); see also Oregon v. Moen, 309 Or. 45, 786 P.2d 111, 143 (1990) (recognizing that “if the imposition of the death penalty satisfies the Eighth Amendment, it also satisfies substantive due process”). This claim also fails because, as we have discussed, the Prisoners failed to establish the second prong of the Glossip test.
IV. Confidentiality
In this appeal, ADC also contests the circuit court’s ruling — that the Act’s provision keeping the identification of the drag supplier confidential — offends the Arkansas Constitution on a number of grounds. The circuit court determined that disclosure of the supplier is compelled as a matter of procedural due process and that the confidentiality requirement violates the provision regarding freedom of speech and of the press, the contract clause, and the publication clause.
|22These questions appear to be moot. However, we address them under the exception to the mootness doctrine as concerning issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Gray v. Mitchell, 373 Ark. 560, 285 S.W.3d 222 (2008). “Where considerations of public interest or prevention of future litigation are present,” this court may, at its discretion, “elect to settle an issue, even though moot.” Owens v, Taylor, 299 Ark. 373, 374, 772 S.W.2d 596, 597 (1989). We discuss each issue in turn.
A. Procedural Due Process
In their amended complaint, the Prisoners asserted that the right of due process found in article 2, section 8 of our constitution compels disclosure of the identity of the supplier of the drugs. Article 2, section 8 provides that no person “shall be deprived of life, liberty, or property, without due process of law.” The argument made by the Prisoners is based on the notion that the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful ' manner. See Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999). Thus, they contend that, if the State proposes to deprive them | Mof their lives, they are entitled to a meaningful opportunity to challenge the deprivation. Consequently, the Prisoners argue that the disclosure of the identity of the supplier is essential for them to have a meaningful opportunity to litigate their claim of cruel or unusual punishment. ADC contends that the circuit court erred by accepting this argument to require disclosure. We agree.
To sustain their allegation that the Mi-dazolam protocol violates the ban on cruel or unusual punishment, it is incumbent on the Prisoners to show that the method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers. However, the Prisoners have failed to establish that the identity of the supplier of the drugs bears any relevance to that claim. Here, the provenance of the drugs is not in question. ADC voluntarily submitted the drugs it had obtained to an independent laboratory for testing. The test results confirmed that the contents of the vials match the FDA-approved labeling and revealed that all three drugs meet applicable potency requirements. In light of this evidence, identifying the supplier of the drugs serves no useful purpose in establishing the Prisoners’ claim. Discovering the identity of the supplier does not aid their cause, nor will the lack of knowledge hinder their ability to prove their contention that the protocol is constitutionally suspect. The circuit court clearly erred in ruling that disclosure is required as a matter of due process. We are in agreement with other courts who have reached a similar conclusion. See, e.g., Zink v. Lombardi, 783 F.3d 1089 (8th Cir.2015); Wellons v. Comm’r, 754 F.3d 1260 (11th Cir.2014); In re Lombardi, 741 F.3d 888 (8th Cir. 2014); Sepulvado v. Jindal, 729 F.3d 413 (5th Cir.2013); Valle v. Singer, 655 F.3d 1223 (11th Cir.2011); Phillips v. DeWine, 92 F.Supp.3d 702 (S.D.Ohio 2015); Par- do v. State, 108 So.3d 558 (Fla.2012); Lockett v. Evans, 330 P.3d 488 (Okla.2014); West v. Schofield, 460 S.W.3d 113 (Term. 2015). Accordingly, we reverse the circuit court’s decision on this point.
In their amended complaint, the Prisoners also asserted that the substantive right to be free from cruel or unusual punishment implies certain procedural safeguards, which include access to information necessary to determine a violation of that right. They alleged that the Act violates this implied procedural protection by restricting access to information that leads to the identification of the persons or entities who supply lethal-injection drugs. The question whether the right to be free from cruel or unusual punishment includes a complementary right of due process is an issue of first impression in our court. However, we need not resolve that question in this appeal. It is enough to say that, based on the foregoing discussion, the Prisoners have failed to demonstrate that the identity of the supplier of the drugs is germane to their cruel-or-unusual-punishment claim. Consequently, we also reverse on this issue.
B. Liberty of Speech and of the Press
In this point on appeal, ADC contends that the circuit court erred in concluding that the Prisoners satisfied then-burden of proving the elements of their claim that is made pursuant to article 2, section 6 of the constitution. In support of the circuit court’s decision that disclosure is required under this provision, the Prisoners contend that the State has a tradition of publicizing information about the suppliers of execution drugs and that openness and debate are essential to the functioning of the criminal-justice system, including the implementation of the death penalty.
J^Article 2, section 6 governs the rights of free speech and freedom of the press, and it is Arkansas’s equivalent to the First Amendment. To determine whether a First Amendment right of access attaches to a particular proceeding, courts consider “whether the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). This right of access is not absolute. Id.
From our review of the record, even if it may be said that there is a tradition in Arkansas of identifying the supplier of drugs used in executions, we cannot conclude that disclosure is compelled under the second prong of the test. As revealed in the decisions of Baze and Glossip, it has become a matter of common knowledge that states which sanction capital punishment have encountered increasing difficulties in obtaining drugs that are used to carry out the sentence of death by lethal injection. The undisputed affidavits of Kelley and Griffin reflect this predicament by demonstrating ADC’s own obstacles to acquiring the drugs and the unwillingness of suppliers to sell the drugs to a department of correction. As stated by Kelley, the current supplier of the drugs agreed to provide them only on the condition of anonymity, and that supplier is no longer inclined to sell the drugs to ADC. Griffin’s affidavit also shows that manufacturers prohibit distributors from selling the drugs to departments of correction. Given the practical realities of the situation, as borne out by this record, the circuit court erred in ruling that public access to the identity of the supplier of the three drugs ADC has obtained would positively enhance the functioning of executions in Arkansas. As has been well documented, disclosing the information is actually [ 2fidetrimental to the process. See Zink, 783 F.3d at 1113 (hold ing that public access to the identity of suppliers of drugs for lethal injections does not play a significant role in the functioning of the process “given that the practical effect of public disclosure would likely be frustration of the State’s ability to carry out a lawful sentence”). Disclosure is not required as a matter of free speech. See Wellons, supra; Phillips, supra.
In concluding this issue, we observe that the General Assembly has declared, as a matter of public policy, that capital murder may be punishable by death. As recognized by the Supreme Court, a state “has a legitimate interest in carrying out a sentence of death in a timely manner.” Baze, 553 U.S. at 61, 128 S.Ct. 1520. In aid of that process, the General Assembly has determined that there is a need' for confidentiality. The question whether the enactment is wise or expedient is a matter exclusively for the General Assembly to decide. State v. Martin, 60 Ark. 343, 30 S.W. 421 (1895). We reverse the circuit court’s ruling on this issue.
I27C. Contract Clause
The contract clause is found in article 2, section 17 of the constitution, and it provides that “[n]o ... law impairing the obligation of contracts shall ever be passed.” Under this point, ADC asserts that the Act does not offend the contract clause because the settlement agreement the Prisoners rely on to require disclosure of the identity of the supplier applied only to litigation that has since been concluded. Alternatively, it argues that the contract clause is not absolute and that the Act is a valid exercise of police power. ADC’s first argument has merit, which obviates the need for us to discuss the second contention.
The settlement agreement at issue was entered into by ADC and the Prisoners, with the exception of Ledell Lee, in connection with their previous lawsuit, designated as Case No. 60-CV-13-1794, challenging the validity of Act 139 of 2013 and the lethal-injection protocol that had been adopted pursuant to that legislation in April 2013. The agreement also touched on a separate action, Case No. 60CV-13-1204, involving a FOIA request where the circuit court had ruled in favor of ADC but had not yet issued a final order. According to the settlement agreement, ADC had decided to not use the April 2013 execution protocol, which rendered moot the Prisoners’ as-applied constitutional challenges to the protocol. As its purpose, the parties “agreed that the pending litigation between them can be streamlined in a man ner that allows for the efficient litigation of their disputes.” To that end, the Prisoners agreed to amend their complaint concerning Act 139 to omit them | ^as-applied claims with the understanding from ADC that, “in the event that ADC adopts a new lethal-injection protocol before Case No. 60CV-13-1794 has been litigated to a final judgment,” the Prisoners had the right to amend their complaint to reassert as-applied challenges to the new lethal-injection procedure without ADC asserting the defense of res judicata. ADC also agreed to not raise that defense if the Prisoners initiated a separate lawsuit to present as-applied challenges to “ADC’s new protocol” on the ground “that such claims are barred because they should have been asserted in Case No. 60CV-13-1794 or Case No. 60CV-13-1204.” The settlement agreement contained the following disclosure requirements:
The defendants agree that, within 10 business days after ADC adopts a new lethal-injection protocol, "ADC will provide a copy of the new protocol to counsel for the plaintiffs. In addition, the defendants agree that, within 10 days after they obtain possession of any drugs that ADC intends to use in a lethal-injection procedure, the defendants will notify the plaintiffs’ counsel that it has'obtained the drugs and will specify which drugs have been obtained and disclose the packaging slips, package inserts, and box labels received from the supplier.
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. HPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408, 424 S.W.3d 304. In interpreting the meaning of a contract, the first rule of construction is to give to the language the meaning that the parties intended. Asbury Auto. Used Car Ctr. v. Brosh, 2009 Ark. 111, 314 S.W.3d 275. To arrive at the intention of the parties to a contract, courts may acquaint themselves with the persons and circumstances and place themselves in the same situation as the parties who made the contract. Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968).
| ¡aJudged by these standards, we hold that the settlement agreement does not require the disclosure of the identity of the supplier of the drugs used in the present lethal-injection protocol. The agreement reflects that the parties were in the midst of litigation concerning Act 139 of 2013 that allowed execution by means of a ben-zodiazepine followed by a barbiturate. It is clear that the disclosures required by the agreement with respect to any new protocol were tied to those adopted pursuant to the 2013 Act. The settlement agreement cannot be read as expressing an intention to create a continuing obligation on the part of ADC to make similar disclosures based on protocols adopted in accordance with not yet conceived future legislation. The circuit court’s interpretation of the agreement does not reflect the parties’ intent, so we must reverse its decision that the Act violated the contract clause. Because there is no existing contractual obligation of disclosure, the Act cannot offend the contract clause of the constitution,
D. Publication Clause
Article 19, section 12 of the Arkansas Constitution provides,
An accurate and detailed statement of the receipts and expenditures of the public money, the several amounts paid, to whom and on what account, shall, from time to time, be published as may be prescribed by law.
In contesting the circuit court’s decision that the confidentiality requirement of the Act violates the constitution, ADC con tends that the phrase, “as may be prescribed by law,” indicates that the provision is not self-executing and thus does not give rise to a private cause of action. Again emphasizing that phrase, it argues that the General Assembly has the authority to prescribe the time and the means of disclosure.
| soThis court reviews a circuit court’s interpretation of a constitutional provision de novo. City of Fayetteville v. Wash. Cty., 369 Ark. 455, 255 S.W.3d 844 (2007). We are not bound by a circuit court’s decision, but in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted on appeal. Kimbrell v. McCleskey, 2012 Ark. 443, 424 S.W.3d 844. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Smith v. Wright, 2015 Ark. 189, 461 S.W.3d 687. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Richardson v. Martin, 2014 Ark. 429, 444 S.W.3d 855.
In Griffin v. Rhoton, 85 Ark. 89, 95, 107 S.W. 380, 382 (1907), this court established the general rules for determining whether provisions of the constitution are self-executing:
A constitutional provision may be said to be self-executing if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.
Cooley’s Const. Lim. (7th Ed.) p. 1121. The same learned author in further comment on the subject says: But, although none of the provisions of a constitution are to be looked upon as immaterial or merely advisory, there are some which, from the nature of the case, are as incapable of compulsory enforcement as are directory provisions in general. The reason is that, while the purpose may be to establish rights or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right may be protected or such duty enforced. In such cases, before the constitutional provision can be made effectual, supplemental legislation must be had, and the provision may be in its nature mandatory to the Legislature to enact the needful legislation, though back of it there lies no authority to enforce the command.
In Cumnock v. City of Little Rock, 168 Ark. 777, 271 S.W.2d 466 (1925), we added that the question in every case is whether the language of the constitutional provision is addressed |s1to the court or to the General Assembly, meaning whether the provision was intended as a present enactment, complete in itself as definitive legislation, or whether it contemplates subsequent legislation to carry it into effect. If there is language indicating that the subject is referred to the General Assembly, the provision is not construed as self-executing. Cumnock, supra. In Griffin, supra, we held that the framers did not intend the provision under consideration to be self-executing because it contained the phrase “as shall hereafter be directed by appropriate legislation.” Accordingly, we also held that a citizen and taxpayer’ did not have a legal right to enforce obedience to the provision.
We take this opportunity to develop our limited case law concerning article 19, section 12. This court has said that the disclosure requirement is limited to expenditures. Snyder v. Martin, 305 Ark. 128, 806 S.W.2d 358 (1991). We also have held that the-provision authorized the General Assembly to enact the Publicity Act of 1914, which provided for the publication of laws, reports, and miscellaneous matters, including claims allowed against counties. See Clark v. Hambleton, 235 Ark. 467, 360 S.W.2d 486 (1962); Jeffery v. Trevathan, 215 Ark. 311, 220 S.W.2d 412 (1949). Thus, there is no doubt that the General Assembly has the authority to pass laws to implement this, constitutional provision. The phrase “as may be prescribed by law” supports this conclusion, and under the authorities cited above, this language also indicates that the provision is not self-executing.
Article 19, section 12 states that expenditures of public money, the amounts paid, to whom an expenditure is paid, and on what account “shall” be published “from time to time” “as may be prescribed by law.” It is undisputed that an expenditure of public money was made for the purchase of the . drugs to be used in executions. The issue is whether the [^General Assembly has the authority to direct the circumstances under which the information is to be revealed. In our view, the constitution left it to the General Assembly to determine the time and the manner for the disclosure of public expenditures. In this instance, the General Assembly discharged its obligation in a manner that is consistent with the constitution. In adopting this legislation, it did not completely shield the identity of the supplier from disclosure. Instead, the General Assembly determined that any disclosure is to be made by the ADC in litigation on the condition that it first apply for a protective order. As a matter of general principle, we have recognized that the General Assembly, unless restricted by the constitution, has the full and plenary powers to adopt such policies and prescribe the duties that it demands of officers carrying out such policies when it is deemed best for the peace and welfare of the people. Campbell v. Ark State Hosp., 228 Ark. 205, 306 S.W.2d 313 (1957). Here, the constitution granted the power to the General Assembly to determine the time and means by which article 19, section 12 is to be implemented. Consequently, the Act does not offend the constitution.
Reversed and dismissed; motion to strike moot.
Wynne, J., concurs in part; dissents in part.
Danielson and Hart, JJ., dissent.
. Prior to the decision in McGehee, supra, this court struck down the 2009 Methods of Execution Act on a separation-of-powers claim because the legislation granted ADC the unfettered discretion to determine all protocols and procedures for implementing executions, including the chemicals to be used. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844.
. The Prisoners attached and incorporated Groner’s affidavit and Stevens's report into the amended complaint.
. In its brief, ADC presents the argument that the Prisoners’ claims of cruel or unusual punishment concerning the electric chair and compounded drugs are speculative and not ripe for review. We agree that the scope of our review is limited to the three-drug protocol that ADC has chosen as the current method of execution.
. In dissent, Justice Hart is mistaken in her belief .that the disclosure claims cannot be considered because ADC has presented no separate argument contesting the circuit court’s denial of its request for a protective order. ADC filed its motion seeking a protective order in response to the circuit court's scheduling order requiring disclosure of the supplier of the drugs following the court’s denial in part of ADC’s motion to dismiss. The request for a protective order was made in accordance with the Act and was not presented in connection with its claims of sovereign immunity. Therefore, the denial of the motion for protective order was not subject to being appealed on an interlocutory basis pursuant to Rule 2(a)(10). Otherwise, an appeal from the denial, of a protective order is not granted as a matter of right under Rule 2(0. Instead, this court may, in its discretion, accept review and only when a circuit court malees the findings required by the rule. The circuit court made no findings in this instance to support an interlocutory appeal.
. Arkansas is not alone in adopting legislation imposing confidentiality requirements with regard to executions by lethal injection. See Ariz.Rev.Stat. Ann. § 13-757(0 (2010); Ga. Code Ann. § 42-5-36(d)(2) (2014); Fla. Stat. Ann. § 945.10(l)(g) (2014); La. Stat. Ann. § 15:570(G) (2014); Mo. Ann. Stat. § 546.720 (2007); Ohio Rev.Code Ann. § 2949.221 (2015); Okla. Stat. Ann. tit. 22, § 1015 (2016); S.D. Codified Laws § 23A-27A-31.2 (2014); Tenn.Code Ann. § 10-7-504(h)(l) (2016). Courts that have addressed the issue have upheld the laws keeping the identity of the supplier of lethal-injection drugs confidential. Phillips, supra; Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794 (2014); Bryan v. State, 753 So.2d 1244 (Fla.2000); Evans, supra.
. In connection with this point on appeal, the Prisoners filed a motion to strike the portion of ADC’s reply brief where it cited Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), to argue that the First Amendment does not provide a right of access to documents that are not open to the public generally. The Prisoners contend that this discussion should be struck because ADC is raising a new argument in the reply brief, a practice that is not countenanced by this court. See JurisDictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 183 S.W.3d 560 (2004) (observing that a new issue may not be raised for the first time in the appellant’s reply brief). Given our disposition of this issue, the motion to strike is moot.
. Under the guise of Arkansas Supreme Court Rule 5-1®, the parties have favored us with a series of what can only be described as letter briefs. We do not condone this practice. Although the rule requires a litigant to furnish this court and opposing counsel the citation to a case that will be referred to at oral argument that was not cited in his or her brief, it does not permit parties to present argument along with the citation.
. Appellees made no effort to comply with the rule. | [
16,
-17,
-35,
14,
42,
-63,
120,
-104,
83,
-125,
-28,
115,
-83,
-43,
1,
107,
-31,
65,
81,
125,
69,
-73,
115,
97,
-30,
-13,
-55,
87,
50,
75,
-26,
-68,
72,
96,
-54,
81,
-58,
-86,
-5,
28,
-50,
10,
-53,
115,
-47,
-128,
57,
103,
30,
-121,
49,
-99,
-30,
45,
30,
-54,
105,
100,
91,
-20,
89,
17,
-104,
-49,
-53,
22,
-95,
-123,
-103,
33,
-6,
52,
-120,
48,
9,
-24,
115,
-122,
-126,
116,
107,
-39,
36,
34,
99,
-128,
24,
-49,
-80,
-84,
54,
-65,
-115,
-122,
-40,
81,
75,
12,
-121,
125,
122,
20,
-122,
-2,
118,
-28,
85,
76,
-60,
-34,
-108,
-77,
109,
121,
-100,
-29,
-21,
5,
64,
117,
-59,
-30,
85,
-57,
19,
-97,
-50,
-14
] |
DAVID M. GLOVER, Judge
hThe issue in this workers’ compensation appeal is whether the Arkansas Workers’ Compensation Commission’s decision that appellee Deanna Secrist successfully proved she suffered a mental injury in the form of depression as a result of her com-pensable back injury is in error. The administrative law judge (ALJ) found Secrist had not proved she suffered a compensable mental injury; the Commission reversed that finding. Appellants Lincoln Public Schools and the Arkansas School Boards Association now appeal, arguing the Commission’s decision is not supported by substantial evidence and is in error as a matter of law. We reverse.
Secrist suffered a compensable back injury in September 2010 while employed by appellant Lincoln Public Schools and was assigned a seven percent anatomical-impairment rating for that injury in May 2011, In April 2012, she underwent an osteotomy of the spine at L5-S1 for a correction of sagittal and coronal plane balance, with a postoperative diagnosis of L5-S1 disk herniation with grade 5 annular tear at L5-S1 with sagittal plane imbalance and extreme lateral disk herniation with bilateral lower extremity pain L5 distribution. Secrist | ¿underwent physical therapy after surgery and reported she was progressing well; however, she began to have pain, and she was referred to Dr. Mary Daut in January 2014 for pain management. Dr. Daut’s assessment of Sec-rist in January 2014 included “[djepressive order, not otherwise classified.” -Rhonda Finley, an APN who had seen and followed Secrist since her surgery, noted in January 2014 she had exhausted all she knew to do regarding Secrist’s complaints of pain and opined that Secrist would benefit from seeing a physiatrist and a pain specialist.
Secrist began treating with Dr. John Childers, a psychologist and licensed professional counselor, in March and April 2014. Secrist did not return to Dr. Child-ers until October 2014. In his notes of October 14, 2014, Dr. Childers wrote the following:
Symptoms of depression
• Crying more
• Want to leave the house and go do things but body doesn’t- allow me
• Wanting to sleep
• Sleeping 1-2 hours due to pain
• Social withdrawal
• Fatigue; low energy
• [Unintelligible] is an effort
• Bad days I don’t get dressed 3-4 days out of 7
• No,suicidal ideation
In a fax to Dr. Regina Thurman, Dr. Childers attached his October 14, 2014 notes, as well as a document entitled “Symposium Checklist 90-R”; he noted Secrist appeared to be experiencing symptoms of depression and anxiety and requested coordination from Dr. Thurman in prescribing an antidepressant. Appellants denied Dr. Childers’s treatment on the basis that Secrist’s depression was not a compensable injury. The ALJ denied benefits for [sSecrist’s depression; the Commission reversed the ALJ, finding Secrist had proved her depression was a result of her compensable injury and was therefore compensable.
When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Flores v. Wal-Mart Distrib., 2012 Ark. App. 201. If the Commission’s decision is supported by substantial evidence — evidence that a reasonable mind might accept as adequate to support the Commission’s conclusion — this court must affirm. Id. The Commission’s decision is reversed only if the appellate court is convinced that fair-minded persons could not have reached the same conclusion with the same facts before them. Id.
Arkansas Code Annotated section 11 — 9— 113 (Repl.2012) provides the framework under which a mental injury may be deemed compensable for purposes of workers’ compensation law:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
It is the Commission’s duty to make and enter findings of fact and conclusions of law; the Commission must make findings on all facts that are relevant to the contested issues in order pthat the appellate courts may determine whether the Commission has resolved the issues in conformity with the law. Arkansas Dep’t of Parks & Tourism v. Price, 2016 Ark. App. 109, 483 S.W.3d 320. Workers’ compensation statutes are strictly construed; when a statute is clear, it is given its plain meaning, and legislative intent must be gathered from the plain meaning of the language used. CNA Ins. Co. v. Arkansas Children’s Hosp., 2011 Ark. App. 671, 386 S.W.3d 631. Issues of statutory and rule construction are reviewed de novo, as it is for the appellate courts to decide what a statute means. Id.
It is undisputed Secrist suffered a compensable physical injury to her back, and Dr. Childers, a licensed psychologist, stated in a note to Dr. Regina Thurman on October 23, 2014, that Secrist appeared to be experiencing depression and anxiety. The issue on appeal is whether the diagnosis meets the established criteria for depression in the most current issue of the DSM such that it can be considered to be a compensable consequence of Secrist’s com-pensable back injury. We hold that it does not.
The Commission found Secrist suffered from major depressive disorder. The diagnostic criteria for major depressive disorder include:
A. Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous func tioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
Note: Do not include symptoms that are clearly attributable to another medical condition.
1. Depressed mood most of the day, nearly every day, as indicated by either a subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful). (Note: In children and adolescents, can be irritable mood.)
2. Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation).
| ¡¡3. Significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. (Note: In children, consider failure to make expected weight gain.)
4. Insomnia or hypersomnia nearly every day.
5. Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down).
6. Fatigue or loss of energy nearly every day.
7. Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
8. Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).
9. Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.
B. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
C. The episode is not attributable to the physiological effects of a substance or to another medical condition.
Diagnostic and Statistical Manual of Mental Disorders, 160-61 (5th ed.2013).
In its decision awarding Secrist benefits, the Commission found
Dr. Childers reported on October 14, 2014, that the claimant was suffering symptoms which included increased crying, fatigue, insomnia, and social withdrawal. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, p. 160, lists the diagnostic criteria for Major Depressive Disorder. At least five or more symptoms must be present during a two-week period, including 1. Depressed mood most of the day; 2. Markedly diminished interest or pleasure in all, or almost all, activities most of the day; 4. Insomnia or hyper-somnia nearly every day; 6. Fatigue or loss of energy nearly every day; and 8. Diminished ability to think or concentrate nearly every day. The evidence in the present matter, based on the medical records, Dr. Childers’ reports, and the claimant’s testimony, demonstrates that Dr. Childers’ diagnosis of depression meets the criteria in the DSM-5.
The Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a com-pensable mental injury, Major Depressive Disorder, jfiwhich was caused by physical injury to the claimant’s body. The evidence shows that the claimant’s complaints of pain emanating from her compensable injuries resulted in a diagnosis of Major Depressive Disorder. The evidence shows that a licensed psychologist diagnosed the mental injury, and the evidence shows that the diagnosis meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders, namely, the DSM-V.
In accordance with statutory law, as a licensed psychologist, Dr. Childers was the only medical professional who saw Secrist who could diagnose depression as a com-pensable injury under the workers’ compensation statute. The DSM criteria for depression were not admitted into evidence before the Commission, and Dr. Childers never referred to the DSM in his minimal notes regarding Secrist’s depression and anxiety. In Hope Livestock Auction Co. v. Knighton, 67 Ark. App. 165, 992 S.W.2d 826 (1999), this court held that, while it was preferable for a psychiatrist or psychologist to correlate the basis of his opinion to the DSM criteria when diagnosing a mental injury or illness, it also recognized the Commission’s expertise and its ability to translate medical testimony into findings of fact. In Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001), we held that the Commission can, and indeed should, refer to a manual that is not in the record when by law the manual must be consulted to decide an issue in dispute.
For a diagnosis of major depressive disorder, the DSM-5 requires five or more of the nine symptoms listed above; those symptoms must be present during the same two-week period; the symptoms must represent a change from previous functioning; and at least one of the symptoms must be either depressed mood or loss of interest or pleasure. The Commission found Secrist presented with five of the nine symptoms — specifically, depressed mood most of the day; markedly diminished interest or pleasure in all, or almost all, activities most of the 17day; insomnia or hypersomnia nearly every day; fatigue or loss of energy nearly every day; and diminished ability to think or concentrate nearly every day.
The only discussion of Secrist’s symptoms was found in Dr. Childers’s notes of October 14, 2014. Applying the Commission’s findings to these notes, the finding of a depressed mood is arguably supported by the notations that Secrist was crying more, was socially withdrawn, and did not get dressed three or four days per week; the finding of markedly diminished interest or pleasure in all, or almost all, activities is arguably supported by the finding that Secrist was socially withdrawn; the finding of insomnia or hypersomnia is supported by Dr. Childers’s findings that Sec-rist wanted to sleep, but was in fact only sleeping one to two hours due to her pain; and the finding of fatigue or loss of energy is supported by Dr. Childers’s specific finding that Secrist was fatigued and had low energy. However, none of Dr. Child-ers’s findings provide a foundation for the Commission’s finding that Secrist had a diminished ability to think or concentrate. While we recognize the Commission’s ability to translate medical evidence into findings of fact, there must be substantiated medical evidence from which the Commission could glean support for such a finding of fact. Additionally, there is no time frame in Dr. Childers’s October 2014 notes to indicate that these symptoms all occurred within the same two-week period as required by the DSM, and there is nothing to indicate the frequency of the symptoms, i.e., most of the day or nearly every day, also required by the DSM.
Arkansas Code Amnotated section 11-9-113 requires that the diagnosis of a mental injury or illness, in this case major depressive disorder, must meet the criteria estab lished in |sthe most current issue of the DSM in order to be compensable under our workers’ compensation statutes. Here, the Commission found Secrist had established five of the nine symptoms listed in the DSM for major depressive disorder and had proved a compensable mental injury; however, Dr. Childers’s medical evidence establishes, at best only four of the five symptoms found by the Commission, and it does not comport with the requirement that all of these symptoms be present in the same two-week period or with the frequency requirements. Because the supporting medical evidence does not meet the established criteria for depression in accordance with the DSM-5, we hold Secrist did not meet her burden of proving a compensable mental injury under the workers’ compensation statutes. Therefore, we reverse.
Reversed.
Abramson and Hixson, JJ., agree.
. We will refer to the Diagnostic and Statistical Manual of Mental Disorders as the DSM or the DSM-5, which is the most current issue at this time. | [
16,
-24,
-35,
-68,
27,
-32,
58,
10,
113,
-101,
101,
51,
-81,
-83,
-99,
47,
-31,
-17,
65,
101,
-42,
-77,
83,
73,
-30,
-37,
59,
71,
-77,
79,
-12,
-107,
79,
56,
-54,
-43,
102,
75,
-51,
28,
-62,
-106,
-117,
-20,
89,
-64,
56,
46,
26,
7,
49,
-66,
-94,
44,
6,
79,
105,
42,
88,
-68,
-64,
-94,
-102,
13,
-21,
4,
-95,
36,
30,
15,
-40,
56,
-104,
48,
8,
-20,
51,
-74,
-62,
20,
75,
-103,
-124,
97,
98,
33,
12,
-43,
120,
-72,
30,
-65,
-83,
-122,
-85,
25,
123,
11,
-109,
-75,
94,
84,
94,
60,
-11,
77,
9,
108,
-118,
-58,
-108,
-79,
-17,
33,
28,
-94,
-17,
79,
48,
21,
-34,
-14,
93,
-106,
51,
-101,
110,
-98
] |
RAYMOND R. ABRAMSON, Judge
h Keith Crozier appeals his conviction of theft by receiving. He argues that the circuit court erred in denying his motions to suppress and for a directed verdict. We affirm.
On July 12, 2011, Sean Cree’s Dodge truck was stolen from Texarkana, Arkansas. Nearly three years later, on April 29, 2014, Officer Jimmy Bennett and Chief Deputy David Huffmaster located the truck in Crozier’s shed. After finding the truck, Bennett and Huffmaster obtained a warrant to search Crozier’s house, and they discovered drug paraphernalia. On May 2, 2014, the State charged Crozier with theft by receiving in violation of Ark. Code Ann. § 5-36-106(e)(l) (Repl.2013) and possession of drug paraphernalia in violation of’Ark.Code Ann. § 5-64-443(b) (Repl.2016).
On June 25, 2014, Crozier filed a motion to suppress the truck and the drug paraphernalia. He asserted that even though Bennett and Huffmaster had a warrant to search |2his house, the warrant was defective because he did not voluntarily consent to the search of his shed.
On October 1, 2014, the court held a hearing on Crozier’s motion. At the hearing, Bennett testified that he received information that Crozier had a stolen Dodge truck in his shed. He explained that upon receiving that information, he went to Crozier’s house with Huffmaster and asked Crozier if he had a Dodge truck. Crozier informed them that he had a truck in his shed. Bennett testified that he then asked Crozier if they could examine the truck in the shed and specifically explained that he could refuse the search. Bennett stated that Crozier consented to the search and opened the shed for them. Bennett testified that he identified the truck in Crozier’s shed as Cree’s vehicle from the VIN number. He explained that he then obtained a search warrant for Crozier’s house and returned to the property two days later to tow the truck and search the house. He testified that while searching the house, he found drug paraphernalia. Huffmaster also testified at the hearing that Crozier gave Bennett permission to enter the shed and that Bennett informed Crozier that he did not have to consent to the search. Crozier testified on his own behalf. He admitted that he consented to the search of the shed; however, he denied that Bennett informed him that he could refuse the search.
At the conclusion of the hearing, the court found that Crozier consented to the search of the shed and denied Crozier’s motion to suppress the Dodge truck. However, the court found that the search warrant lacked probable cause and granted Crozier’s motion to suppress the drug paraphernalia found in the house. The State proceeded with the charge of theft by receiving, and the court held a jury trial on October 21,2015.
Is At trial, Cree testified that his Dodge truck was stolen on July 12, 2011. He testified that officials informed him that they found his truck and that he inspected the vehicle that they found. He confirmed that the Dodge truck found in Crozier’s shed was his vehicle.
Bennett recounted his testimony from the earlier suppression hearing and testified that he discovered a Dodge truck in Crozier’s shed on April 29, 2014. He further testified that the shed was packed full of items and that the truck had been dismantled. Specifically, he stated that the truck’s dashboard, door panels, and fuel tank had been removed but the parts remained in the shed. He noted that the truck’s radio and speakers had also been dismantled but they were not in the shed. He further noted that the license plate had been removed. He testified that he initially had trouble finding the VIN number because a black piece of plastic concealed the number, but he removed the plastic and identified the number. He stated that he called a dispatcher to verify whether the number matched the YIN number for the stolen truck, and while he waited for her response, he questioned Crozier about the truck. He testified that Crozier told him that he was hiding the truck for a friend who was getting a divorce but Crozier did not tell him the friend’s name.
Huffmaster also testified at the hearing that they found the Dodge truck in Crozier’s shed and that the truck had been dismantled. He noted that the inner door panels and the dash had been removed. He explained that the shed also contained numerous stacks of boxes and clothes.
After the State rested, Crozier moved for a directed verdict. He argued that the State was not entitled to the presumption of theft by receiving under Ark. Code Ann. § 5-36-106(c) because the evidence did not show he was in possession of recently stolen property. 14The State responded that it did not rely on the presumption from section 5-36-106(c) and asserted that it presented evidence that Crozier knew or had reason to know he was in possession of stolen property. The court denied the motion.
Crozier did not present any evidence, and the jury convicted him of theft by receiving and sentenced him to seventy-two months’ imprisonment in the Arkansas Department of Correction. He then filed this timely appeal. On appeal, Crozier argues that the circuit court erred when it (1) denied his motion to suppress and (2) denied his motion for a directed verdict.
Because of double-jeopardy concerns, we consider challenges to the sufficiency of the evidence before addressing other arguments. Gillean v. State, 2015 Ark. App. 698, 478 S.W.3d 255. A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Woodson v. State, 2009 Ark. App. 602, 374 S.W.3d 1. When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. LeFever v. State, 91 Ark. App. 86, 208 S.W.3d 812 (2005). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other. Id. On review, this court neither weighs the evidence nor evaluates the credibility of witnesses. Cluck v. State, 91 Ark. App. 220, 209 S.W.3d 428 (2005).
A person commits theft by receiving when he receives, retains, or disposes of stolen property of another person, knowing it was stolen or having good reason to believe it was stolen. Ark.Code Ann. § 5-36-106(a). Pursuant to Ark.Code Ann. § 5-36-106(c), the | ¡^unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen.
In this case, Crozier argues that the evidence is insufficient to support his conviction because the State was not entitled to the presumption from section 5-36-106(c). He points out that Bennett and Huffmaster discovered the truck in his shed nearly three years after Cree had reported the truck stolen. Thus, he asserts that he was not in possession of recently stolen property.
Crozier’s argument is misplaced. The State conceded at trial that the presumption from section 5-36-106(c) did not apply to this case. Instead, the State offered evidence that Crozier knew or had good reason to believe the truck was stolen. Specifically, Bennett and Huffmaster testified that the truck was concealed in Crozier’s shed; the truck had been dismantled and parts were missing; the license plate was not on the vehicle; a piece of plastic concealed the VIN number; and Crozier did not know how his friend acquired the vehicle. See Doubleday v. State, 84 Ark. App. 194, 138 S.W.3d 112 (2003) (upholding a theft-by-receiving conviction even though section 5-36-106(c) did not apply because the State presented evidence that the defendant knew or had reason to believe that the property was stolen). Viewing this evidence in the light most favorable to the State, we hold that there was substantial evidence to support Crozier’s conviction.
Crozier next argues that the circuit court erred in denying his motion to suppress the Dodge truck because Bennett did not inform him that he could refuse the search. In making his argument, he cites Arkansas Rule of Criminal Procedure 11.1(c), which holds that “a |fisearch of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent,” and argues that the rule applies to the shed because it falls within the curtilage of his home.
When reviewing a circuit court’s denial of a motion to suppress evidence, the appellate 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 the inferences drawn by the circuit court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. We defer to the circuit court’s superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.
Here, we need not determine whether Rule 11.1 applies to the shed. Bennett and Huffmaster testified that Bennett- advised Crozier that he was not required to consent to the search of the shed, and the circuit court specifically found that Crozier consented to the search. Accordingly, the court did not err in denying his motion to suppress.
Affirmed.
Glover and Hixson, JJ., agree.
. The State asserts that Crozier did not raise the informed-consent issue below, and it therefore was not preserved for appeal. However, we hold that tire issue was properly raised and ruled on. | [
16,
-24,
124,
28,
40,
-63,
42,
56,
99,
-97,
102,
-45,
-17,
-64,
5,
43,
-20,
95,
117,
113,
-43,
-73,
79,
113,
-62,
-13,
43,
-57,
50,
75,
-84,
-44,
28,
112,
-62,
-99,
101,
64,
39,
-40,
-114,
1,
-88,
113,
-7,
72,
40,
42,
4,
15,
49,
-98,
-30,
47,
24,
-53,
105,
56,
-55,
-83,
-48,
-46,
-71,
15,
-113,
22,
-95,
52,
-103,
1,
112,
127,
-108,
57,
2,
-8,
-5,
-78,
-126,
116,
71,
-101,
8,
36,
98,
16,
45,
-115,
-68,
-88,
-82,
126,
-97,
-90,
-40,
41,
107,
41,
-106,
-97,
110,
18,
12,
-6,
123,
-60,
13,
108,
-94,
-49,
-108,
-111,
44,
48,
-124,
122,
-49,
33,
52,
112,
-51,
-26,
125,
21,
83,
-117,
-122,
-109
] |
BART F. VIRDEN, Judge
[ jAppellant Danny Bennett appeals from the White County Circuit Court’s December 1, 2014 order that divided the parties’ marital property and debt, awarded per manent alimony, and awarded attorney’s fees. Danny raises four points on appeal: (1) the second circuit court judge misinterpreted the prior judge’s temporary order concerning the mortgage payments, and, after the marital home was sold, Danny should not have been ordered to continue making $1600 more each month in payments toward the marital debt than Sheila was required to pay; (2) the circuit court abused its discretion in awarding Sheila the amount of attorney’s fees that it did; (3) the circuit court erred in not making Sheila equally liable for the Audio Express debt; and (4) the circuit court abused its discretion in awarding the amount of alimony that it did. We affirm.
12I. Fads
In August 2013, Sheila Bennett filed for divorce after thirty years of marriage to Danny Bennett. Danny answered and filed a counterclaim for divorce, citing general indignities, though he eventually withdrew his counterclaim. Sheila requested temporary alimony. On September 17, 2013, the circuit court (at that time Judge Craig Hannah) held a hearing on the matter.
Sheila Bennett testified at the hearing. Sheila stated that her weekly income was about $420 and that her ex-husband made about twice her income. Sheila requested that the circuit court allow her to live in the marital home, that it award her the truck she drove, that it grant her temporary possession of the home’s furnishings, and that it grant her spousal support and attorney’s fees. Sheila requested that the circuit court order Danny to continue paying the mortgage and other bills. Sheila testified that she gave Danny $200 a week and that he had been using that money to pay bills. Sheila testified that although she could live with her mother temporarily she could not live there long-term.
Danny Bennett also testified. He denied that he had spent any money on his girlfriend, and he denied that she accompanied him on any trips. He also testified that he could make many of the repairs to the marital home that were necessary before selling it. Danny requested that the court allow him to stay in the marital home to make the necessary repairs in order to prepare it for sale. Danny disagreed that Sheila paid him $200 once a week, stating that she actually paid him $400 a month and that he was paying the bulk of the debt. Danny stated that he made either two or three times Sheila’s income.
lsThe circuit court made the following statement in response to the testimony presented at the hearing:
It appears that the parties have more debts than they can pay and neither one alone can pay all of these debts. The fair thing to do on some of these bills is to make the minimum payments on each one. Mr. Bennett will pay the first $1600 and then both will be equally obligated to pay their half. By doing that I think that it will get this to where their disposable income is down to about the same amount. On the home, if the parties can’t agree within thirty days then both parties will have to move out. The house will go on the market within forty-five days.
Later, at the end of the hearing, the following clarification occurred:
The CouRt: Mr. Bennett will be liable for some sort of alimony, or shifting of the debt, or something, because that is what the law is going to require. On a temporary basis, I think Mr. Bennett can pay the first $1600 of the debt. That gets him fairly close to the same equivalent as paying alimony.
Counsel for Sheila: I am trying to make sure I understand what the Court is telling me.
The Court: He will pay the first $1600 and then the balance of the debt they are equally responsible for.
Counsel for Sheila: So it’s up to us to determine what that $1600 is going to be made up of?
The Court: Pay the house payment and the second mortgage and that just about eats it right there.
Counsel for Danny: Certainly they can work toward listing it while the repairs are being made. Looking at the Affidavit of Financial Means and the supplements provided by the parties, the monthly debt obligation of the parties is $5375, but what this Court is ordering is that Danny Bennett will pay the first $1,600.00 of that sum?
The Court: I think the mortgage ...
Counsel for Danny: The mortgage and the second mortgage.
The Court: The first and the second mortgage gets you right there at that amount. I don’t know if these other payments are minimum payments or ...
I ¿Counsel for Sheila: We really don’t either. We haven’t received any discovery yet.
The Court: I am going to say that you all are equally responsible. If we come back to court and somebody needs to pay more than the other, then it will be balanced out at the final.
The Court: Both of them are going to have to find a place to live and nothing will change because they will both have new expenses. Mr. Bennett will still be responsible for—
Counsel for Danny: The first and second—
The Court: —paying the first and second mortgage and if—
Counsel For Danny: They’ll—
The Court: —they’re fortunate and the house sells quick, then he’ll pay $1600 on something else.
On the same day, the circuit court entered a temporary order in which it found that the parties had agreed to sell their home to help pay down marital debt. The circuit court also found that “Danny Bennett will pay the first $1600 of marital debt which would be the first and second mortgage on the parties’ marital home. The parties will each be responsible for payments of one-half the remaining monthly payments on the parties’ marital debt on a temporary basis.” The court awarded temporary spousal support to Sheila and deferred making a ruling on her request for temporary attorney’s fees until the final hearing.
Judge Thomas Hughes was later assigned the case, and he entered the decree of divorce on October 2, 2014, which set forth that a property-settlement agreement would be entered at a later date. On December 1, 2014, the circuit court entered the order settling the property issues. The circuit court found that the April 2014 sale of the parties’ marital home resulted Lin a net profit of $22,157.96. The circuit court also found that the original temporary order ordered Danny to pay $1600 per month “toward the payment of the parties’ marital debts. This would be the first and second mortgage on the parties’ marital home.” In its order, the circuit court noted that Danny had admitted not making all of those payments since the entry of the temporary order; therefore, Danny’s share of the $22,157.96 would be reduced by the amount of the outstanding mortgage payments, which totalled $2,096.21. The circuit court found that Danny spent $4,541.25 getting the house ready to sell, and Sheila owed him half of that amount, totaling $2,270.63. The circuit court found that each party was equally responsible for the remaining marital debt.
The order also settled the issues surrounding the stock in Danny’s business. The circuit court found that Danny had obtained 40% of the stock in Audio Express, and had given a promissory note for $90,000 for this stock and that he had also given another promissory note for $24,000 for capital for the business. The circuit court ordered that Sheila would receive one-half of the stock, “subject to the outstanding debt for the purchase of the stock in the amount of $114,000.” The circuit court also found that each party would receive half of the proceeds of the marital IRA accounts.
On the issue of permanent alimony, the circuit court awarded $1500 per month in alimony to Sheila in light of the length of the marriage, in order to allow her to maintain a similar lifestyle, and in order to fairly divide the equities. In support of its award, the circuit court made the following findings: during the thirty-year marriage, Danny was the primary income earner; during the last five years, Danny earned 73% of the income, and Sheila earned |r27%; Danny had been able to pay his girlfriend’s household expenses and had moved in with her; Danny had the ability to pay alimony based on his current salary; and Sheila must obtain medical insurance and housing.
Sheila was awarded $6,641.10 in attorney’s fees, and the circuit court awarded her costs of $165. Both parties were held in contempt-Sheila for failing to pay costs associated with preparing the house for sale, and Danny for destroying personal property that had been claimed by Sheila and for not paying certain marital debt-but neither party was sanctioned.
On December 12, 2014, Danny filed a motion for reconsideration. In the motion he asserted that the court’s adoption of Sheila’s proposed findings of fact and conclusions of law was not supported by the evidence. In his motion, Danny disputed the circuit court’s decision to reimburse Sheila for outstanding mortgage payments from the net amount garnered from the sale of the marital home, that the circuit court erred in continuing the order to pay $1600 per month toward the marital debt after the home sold, that Sheila was not entitled to attorney’s fees or, alternatively, she should not have been awarded attorney’s fees in the amount awarded, and that the amount of alimony awarded was unfair in light of their current financial status. The motion was denied, and Danny filed a timely notice of appeal.
II. Points on Appeal
A. The $1600 Monthly Payments
As a general rule, judgments are construed like any other instruments; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Chester v. Pilcher, 2013 Ark. App. 571, at 8, 430 S.W.3d 130, 135. To the extent that |7the circuit court’s bench ruling conflicts with its written order, if at all, the written order controls over the court’s oral ruling. Stills v. Stills, 2010 Ark. 132, at 12, 361 S.W.3d 823, 830.
At the hearing on the matter, the circuit court pronounced from the bench that the $1600 payments toward the marital debt would continue after the sale of the marital home occurred, stating that when the house sold, “then he’ll pay $1600 on something else.”
The subsequent temporary order set forth the following:
Danny Bennett will pay the first $1600 of marital debt which would be the first and second mortgage on the parties’ marital home. The parties will each be responsible for payments of one-half the remaining monthly payments on the parties’ marital debt on a temporary basis.
In the permanent order entered on October 2, 2014, the circuit court found that Danny had failed to make the $1600 per month payments after the home had sold, and that .he owed $9600 for six months of missed payments. Danny argues that the circuit court erred when it ordered that he was to continue to make $1600 payments toward the marital debt-over and above his required payment of half of the amount of the monthly payments on the marital debt-after the home sold because it misinterpreted the original, temporary order. We disagree.
In its ruling from the bench, the circuit court made it clear that Danny would continue to make $1600 in payment toward the marital debt after the mortgage payments ceased with the sale of the home. The temporary order was entered, and when the second circuit court entered the order, the circuit court interpreted the temporary order to mean that Danny would pay $1600 either as mortgage payments, or if the home sold and mortgages were no |slonger at issue, then the $1600 payments would go toward some other debt. After he paid the initial $1600 payment, he was still required to contribute half of the amount of the remaining monthly payments on the remaining marital debt. As we set forth above, the determinative factor in interpreting the order is the intention of the court, as gathered from the judgment itself and the record. Chester, supra. From our review of the language in the initial temporary order and in consideration of the original court’s statements from the bench, we cannot say that the oral pronouncement conflicted with the language of the written orders, or that the circuit court misconstrued the temporary order. On this point, we affirm.
B. Attorney’s Fees
In domestic-relations proceedings, the circuit court has the inherent power to award attorney’s fees, and whether the circuit court should award fees and the amount thereof are matters within the circuit court’s discretion, Tiner v. Tiner, 2012 Ark. App. 483, at 15-16, 422 S.W.3d 178, 187. When addressing a circuit court’s award of attorney’s fees, our courts have often observed that there is no fixed formula in determining what is reasonable. Id.
In the present case, Danny argues that the only evidence concerning attorney’s fees consisted of Sheila’s testimony that she had' about $1000 in fees, thus, she should be limited to that amount. At the hearing, Sheila testified that she had paid her attorney around $1000, that she owed more beyond that amount, and that she “had no idea” what she owed in total to her attorney. The circuit court did not ask for an accounting.
Danny relies on Coker v. Coker, 2012 Ark. 383, at 7, 423 S.W.3d 599, 604, in which our supreme court reversed the circuit court’s award of attorney’s fees based on the appellee’s | ¡failure to submit an affidavit concerning her fees and costs; however, Coker is distinguishable from the present case. In Coker, the appellee asked the circuit court for direction concerning her request for attorney’s fees and costs, and the circuit court ordered appel-lee to provide an affidavit. Instead of submitting the affidavit, appellee submitted the following statement, which she included in her proposed findings of fact and conclusions of law:
Attorney’s Fees. The Plaintiff filed a contempt motion pertaining to the payment of support, medical bills and ar- rearages. Moreover, in light of the disparity in income, the Defendant should also be ordered to pay the Plaintiffs attorney’s fees. The Plaintiff has incurred fees and expenses in the amount of $11,376.12.
Our supreme court reversed the circuit court’s award and held that the circuit court abused its discretion because it awarded fees in excess of the amount requested and in light of appellee’s failure to provide the requested affidavit and her failure to define the requested expenses in the decree.
In the present case, no affidavit or accounting was requested by the circuit court. Furthermore, this court has been very clear that the circuit court has wide discretion on the issue of the award and amount of attorney’s fees. In Tiner, supra, this court held:
A court need not, however, conduct an exhaustive hearing on the amount of attorney’s fees because it has presided over the proceedings and gained familiarity with the case and the services rendered by the attorney. Further, we have not strictly required documentation of time and expense in a divorce case where the trial court has had the opportunity to observe the parties, their level of cooperation, and their obedience to court orders. Due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Accordingly, an award of attorney’s fees will not be set aside absent an abuse of discretion. An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently.
|Tiner, 2012 Ark.App. 483, at 16, 422 S.W.3d at 187 (citations omitted).
As stated above, Tiner sets forth that there need not be an exhaustive hearing on the matter of the amount of attorney’s fees, and in that case there was no hearing on the matter. Our holding in Tiner that “we have not strictly required documentation of time and expense” has come to mean that we require no documentation unless the circuit court had previously ordered such documentation. Or, alternatively, Tiner imposes a duty on the non-prevailing party to file a Motion for Findings of Fact and Conclusions of Law. Thus without the benefit of a hearing, any documentation, or analysis by the circuit court, we are required to determine if the circuit court abused its discretion.
In the present case, the circuit court did not request an accounting in order to determine fees. Furthermore, over the course of the case, from September 2013 to October 2014, the circuit court had plenty of opportunity to observe the parties, their level of cooperation, the attorney’s resolution of the issues outside of court, and the quality of the attorney’s work. In light of our case law and our standard of review on the issue of attorney’s fees, we find that the circuit court did not abuse its discretion in awarding Sheila $6,641.10 in attorney’s fees. On this point, we must affirm.
C. Stock Debt
Danny argues that the circuit court’s order concerning the debt attached to the Audio Express stock was ambiguous, and he asks this court to reverse and remand with instructions Into the circuit court to modify the order to specifically state that the Bennetts are equally respon sible for the debt. We do not agree that the circuit court’s order is ambiguous, and on this point we affirm.
The circuit court set forth in its order that “[t]he parties will each be equally responsible for the remainder of the marital debt.” The Audio Express stock asset was split evenly by the court, and the debt from the stock logically falls under marital debt. Furthermore, the circuit court stated from the bench that “if I give it [the stock] to her, I’m going to give her the debt, too. And she’d like to have that?” Counsel for Sheila assented. There is no question that the stock debt is marital debt, which was clearly split evenly by the circuit court’s order. As a general rule, judgments are construed like any other instruments; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Magness v. McEntire, 305 Ark. 503, 506, 808 S.W.2d 783, 784 (1991). We have followed this general rule stating that judgments should be reviewed by looking to the judgment itself, pleadings, and any evidence presented. Id, In light of the language of the order splitting the marital debt, the circuit court’s clarifying question from the bench, and Sheila’s attorney’s clear response that the stock debt would be assumed by Sheila, we find no ambiguity in the circuit court’s order and no need for clarification through remand.
D. Alimony
The decision whether to award alimony is a matter that lies within the circuit court’s sound discretion, and on appeal, this court will not reverse the circuit court’s decision to award alimony absent an abuse of that discretion. Delgado v. Delgado, 2012 Ark. App. 100, at 6, 389 S.W.3d 52, 57, An abuse of discretion means discretion improvidently exercised, i.e., | ^exercised thoughtlessly and without due consideration. Id. The circuit court is in the best position to view the needs of the parties in connection with an alimony award. Jones v. Jones, 2014 Ark. App. 614, at 3, 447 S.W.3d 599, 601. The award of alimony is not mandatory, but is instead discretionary, and the circuit court’s decision regarding any such award will not be reversed absent an abuse of discretion. Powell v. Powell, 82 Ark. App. 17, 110 S.W.3d 290 (2003). The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced parties in light of the particular facts of each case. Holaway v. Holaway, 70 Ark. App. 240,16 S.W.3d 302 (2000). The primary factors to be considered in awarding alimony are the need of one spouse and the other spouse’s ability to pay; secondary factors that may also be considered in setting alimony include (1) the financial circumstances of both parties, (2) the amount and nature of the income, and (3) the extent and nature of the resources and assets of each of the parties. Id. As this court explained in Foster v. Foster, 2015 Ark. App. 530, at 7, 472 S.W.3d 151, neither this court, nor our supreme court, has ever attempted to reduce the amount of alimony to a mathematical formula. Presumably, it has been thought that the need for flexibility outweighs the corresponding need for relative certainty. Id. In setting the amount of alimony, the circuit court may consider a range of acceptable alternatives. Id,
Danny argues that the circuit court im-permissibly awarded alimony to Sheila to punish him for adultery and that a gross disparity in their incomes resulted from the award. We disagree with both assertions.
Danny points to the circuit court’s finding that he had “spent sums on his girlfriend, including moving in with her and paying the household expenses while she was not 113working.” He argues that the circuit court’s consideration of his ex penditures towards his girlfriend’s bills can only indicate punishment for adultery, and that punishment is not the purpose of alimony. See Russell v. Russell, 275 Ark. 193, 205, 628 S.W.2d 315, 321 (1982).
Nothing in the record indicates that the circuit court awarded alimony to Sheila punish Danny. See Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006) (upholding alimony award where nothing in the record indicated that the circuit court relied on an improper factor in awarding alimony even though there was testimony related to the factor by the supported spouse). In the present case, the circuit court referred to other evidence in the record that was relevant to the proper economic factors. Contrary to Danny’s assertion that the evidence did not support any ground for alimony other than punishment or entitlement, the circuit court considered both parties’ extensive testimony regarding their income, assets, work history, standard of living, living arrangements, transportation needs, and future ability to earn money.
Danny also argues that the amount of the award of alimony to Sheila resulted in a gross disparity in their incomes. We hold that the circuit court did not err in the amount alimony it awarded. Sheila testified that she required $1500 per month to cover her living expenses without having to borrow money or move in with her mother. Sheila testified that the $1500 amount included the cost of utilities, maintaining a vehicle that was more than ten years old, housing, health insurance, and payments toward the $54,409.98 in marital debt. She testified that her income was $643.84 semi-monthly and that she had experienced health problems recently. By contrast, the circuit court considered evidence that Danny drove a car provided and maintained by his employment, that he received health insurance and life insurance with 114his employment, and that he benefitted in the form of expenses-paid trips out of town through his job.
Danny claims that Sheila lives rent-free with her mother, and that there was no evidence that she had to obtain housing or “was being forced out of her mother’s house.” The record does not support this assertion. In her'testimony, Sheila explained that she had asked her mother if she could live with her, and that her mother agreed “if it was for a very short term. She does not want me there long term.” Sheila further testified that she was unable to bring anything but her clothes to her mother’s house and had to rent a storage unit for her belongings.
The court found that alimony was appropriate given the length of the marriage, that Danny earned 73% of the income during their marriage, and that Sheila, at her current income, would be unable to maintain “anything close” to her lifestyle when she was married to Danny. The appropriateness of an alimony award is determined in light of the facts in each case, and the circuit court is in the best position to view the needs of the parties in connection with an alimony award. See Stuart v. Stuart, 2012 Ark. App. 458, at 9, 422 S.W.3d 147, 153. We hold that the circuit court in this case applied the correct legal standard, found facts that were supported by the evidence presented, and did not abuse its discretion in awarding alimony in the amount it did to Sheila.
Affirmed.
Vaught and Hoofman, JJ., agree.
. We previously ordered Danny to supplement the record and rebrief the appeal. Bennett v. Bennett, 2015 Ark. App. 646. The errors have been sufficiently corrected to allow consideration of the merits.
. This court overruled Stout v. Stout, 2011 Ark. App. 201, 378 S.W.3d 844, with its holding in Tiner. In Stout, the rule was that the circuit court must evaluate the matter of at-tomey’s fees in line with the factors set forth in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). | [
-112,
-24,
-97,
94,
-70,
-96,
-118,
-120,
104,
-109,
-77,
83,
-81,
-30,
16,
111,
-10,
111,
69,
106,
-45,
-77,
39,
98,
-30,
-77,
-71,
-35,
-79,
-49,
-11,
-43,
76,
56,
-93,
-43,
102,
3,
-25,
80,
6,
-125,
-85,
69,
-39,
66,
48,
127,
0,
13,
81,
-113,
51,
45,
-72,
106,
72,
40,
27,
33,
-40,
-46,
-117,
15,
95,
2,
-109,
20,
-98,
6,
88,
46,
-112,
56,
0,
-23,
115,
-74,
-126,
116,
98,
-69,
13,
32,
98,
21,
13,
-51,
-7,
-120,
15,
119,
-97,
-89,
-102,
41,
3,
0,
-76,
-97,
116,
20,
7,
-4,
76,
5,
28,
100,
-118,
-82,
-106,
-112,
14,
88,
-116,
-102,
-25,
-58,
1,
113,
-51,
-96,
94,
38,
59,
59,
78,
-78
] |
RITA W. GRUBER, Judge
1 íThis case arises out of the 2008 divorce proceedings between Curtis Balcom and Lisa Balcom (Crain). While the case was pending, the parties entered into a mediated property settlement agreement requiring Mr. Balcom to make certain payments to Ms. Crain. In 2016, the court entered an order finding Mr. Balcom in contempt for failing to make his contractually obligated payments. He appeals, arguing that the trial court was without authority to modify the parties’ agreement and that it erred in holding him in civil contempt. We find no error and affirm the court’s order.
On April 9, 2008, the parties were divorced pursuant to a divorce decree. The parties’ mediated property settlement agreement was accepted by the Garland County Circuit Court and incorporated into the decree. Among other things, the agreement provided that Mr. Balcom would pay Ms. Crain a sum of $200,000, and in exchange she would forgo her interest in a family-owned business owned by Mr. Balcom’s family. The parties agreed that IjjMr. Balcom would make an initial $50,000 payment to Ms. Crain, then make payments in the amount of $1,123.60 per month through March 1, 2015, with the remaining balance due in a balloon payment on April 1, 2015. The parties also agreed that he would obtain a life insurance policy in the amount of $150,000 to secure the amount owed to Ms. Crain. Mr. Balcom paid the initial $50,000 and made a total of twenty monthly payments to Ms. Crain before ceasing payments entirely. Between 2010 and 2014, the court found Mr. Balcom in contempt on four separate occasions for failing to make his contractually obligated payments to Ms. Crain. On one such occasion, the court converted the payments to alimony, which neither party appealed.
In a hearing on the fifth contempt action against him, Mr. Balcom admitted that he owed the debt but claimed that' he was without the financial means to make the payments. He testified that he “would like to pay $400.00 a month[,] which is over and above the $344 I have been paying for child support. I am not saying pay $400 a month in addition” to the child support. He requested that the court “direct” him to “pay Ms. Crain $400.00 per month.”
Following the hearing, the court entered judgment against Mr. Balcom and ordered him to make alimony payments in 180 equal monthly payments of $976.97. The court also ordered him to obtain a life insurance policy in the amount of $100,000. The court further ordered that if at any point in time he failed to pay “an amount equal to two (2) monthly payments, or more, an order of arrest shall immediately issue upon the verified motion of [Ms. Crain] with a cash bond being set in the amount of the unpaid arrearages.”
laMr. Balcom’s first, second, and third points on appeal go to the court’s authority to modify the agreement. He contends that his obligations to Ms. Crain were “contractual in nature” and therefore the court did not have authority to modify those obligations. He argues that the court “could only award Ms. Crain a judgment on the contract” or find him in contempt for “not performing his end of the bargain” but the court could not “rewrite the terms of the agreement.”
It is elementary that this court will not consider arguments that are not preserved for appellate review. Stacks v. Stacks, 2009 Ark. App. 862, at 4, 377 S.W.3d 266, 269. We will not do so because it is incumbent upon the parties to raise arguments initially to the trial court in order to give that court an opportunity to consider them. Id. Otherwise, we would be placed in the position of reversing a trial court for reasons not addressed by that court. Id. Mr. Balcom did not make his arguments regarding authority to modify the agreement to the trial court. Instead, at the hearing, he specifically requested that the court modify the agreement by allowing him to pay $400 per month in lieu of the required $1,123.60 payment. Because he failed to raise his arguments to the trial court, we will not address them for the first time on appeal.
For his fourth point on appeal, Mr. Balcom argues that, because he was not in “willful contempt” of the decree, the court erred in holding him in civil contempt. Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt, and punishment for such contempt is an inherent power of the court. Brock v. Eubanks, 102 Ark. App. 165, 288 S.W.3d 272 (2008). Contempt is categorized into criminal | ¿contempt and civil contempt. Shields v. Kimble, 2016 Ark. App. 151, at 9, 486 S.W.3d 791. The distinction between relief that is civil in nature and relief that is criminal in nature has repeatedly been stated and followed by our appellate courts. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). An unconditional penalty is criminal in nature because it is solely and exclusively punitive in character. Id. A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act. Id. Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. Applegate v. Applegate, 101 Ark. App. 289, 293, 275 S.W.3d 682, 685 (2008). This is the source of the familiar refrain that civil contemnors “carry the keys of their prison in their own pockets.” Id. at 293, 275 S.W.3d at 685 (quoting Penfield Co. v. S.E.C., 330 U.S. 585, 593, 67 S.Ct. 918, 91 L.Ed. 1117 (1947)). Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Shields, 2016 Ark. App. 151, at 9, 486 S.W.3d 791. Civil contempt can be either compensatory or coercive in nature. Id. In order to establish civil, contempt, there must be willful disobedience of a valid court order. Fowler v. Hendrix, 2016 Ark. App. 7, at 5, 479 S.W.3d 591, 594. Lack of ability to pay is a defense in civil-contempt cases. Ivy v. Keith, 351 Ark. 269, 284, 92 S.W.3d 671, 680 (2002).
We will not reverse a circuit court’s finding of civil contempt unless that finding is clearly against the preponderance of the evidence. Fowler, 2016 Ark. App. 7, at 5, 479 S.W.3d at 594. A finding is clearly against the preponderance of the evidence if, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm 1 Bconviction that a mistake has been committed. Catt v. Catt, 2014 Ark. App. 616, at 2, 2014 WL 5697149. Issues of credibility are for the fact-finder. Id. Here, although Mr. Bal-com testified that he was without sufficient financial means to make the payments, there was evidence that he was regularly employed and additionally that he received tax refunds and sold various vehicles but never used any of the proceeds to make payments toward his obligation. We hold that the court’s order was not clearly against the preponderance of the evidence.
Affirmed.
Gladwin, C.J., agrees.
Kinard, J., concurs. | [
-112,
122,
-107,
77,
-54,
32,
26,
-128,
122,
107,
7,
81,
-7,
-10,
24,
107,
-30,
105,
96,
104,
-41,
-78,
13,
99,
-14,
-13,
-71,
-43,
-79,
-23,
-4,
-36,
77,
40,
-126,
-43,
102,
-125,
-123,
18,
18,
-126,
-104,
116,
-55,
6,
52,
-21,
16,
15,
17,
-114,
-77,
45,
57,
111,
12,
106,
93,
-79,
-48,
-94,
-53,
-124,
127,
3,
-111,
20,
-36,
6,
-40,
46,
-104,
57,
8,
-24,
59,
-74,
-90,
116,
10,
-85,
9,
48,
102,
16,
13,
-35,
-40,
-104,
-89,
-1,
31,
-90,
-102,
88,
27,
10,
-74,
-98,
92,
28,
15,
-36,
42,
5,
61,
-28,
2,
-50,
-42,
-79,
12,
126,
-100,
-126,
-17,
67,
112,
65,
-49,
-28,
127,
-57,
91,
-101,
-9,
-89
] |
COURTNEY HUDSON GOODSON, Associate Justice
| ]The resolution of this appeal, involving a challenge to the constitutionality of this State’s judicial-retirement statutes, confirms the future identity and character of our judiciary. By this opinion, we join the unanimous voice of the courts in this country, including the United States Supreme Court, which- hold -that judicial-retirement provisions are constitutional.
Appellants, Judges Michael Lan-ders, David Guthrie, Kenneth Johnson, and J.W. Looney, appeal the order entered by the Pulaski County Circuit Court granting summary judgment in favor of appel-lees Gail Stone/ Executive Director of the Arkansas Judicial | ^Retirement System; Judge Robert Edwards, its Chairman; and Judges Gayle Ford, Mark Hewett, Charles Yeargan, and Marcia Hearnsberger, who are members of the system’s board of trustees. In the order granting summary judgment, the circuit court rejected appellants’ arguments contesting the forfeiture provisions found in Arkansas Code Annotated sections 24-8-215 and 24-8-710 (Repl.2014) that pertain to the Arkansas Judicial Retirement System. . For reversal, appellants contend that (1) the forfeiture provisions constitute an additional qualification for holding judicial office in violation of the Arkansas Constitution; (2) the statutes violate their rights of equal protection -under the law; (3) the statutes appear to provide for an unconstitutional taking without due process of law; and (4) the provisions operate to constructively discharge judges. We affirm the circuit court’s decision.
I. Factual Background
The General Assembly established the Arkansas Judicial Retirement System sixty-three years ago with the passage of Act 365 of 1953, which is presently codified at Arkansas Code Annotated sections 24-8-201 et seq. (Repl.2014). With its enactment, the General Assembly declared that “it is the public policy of the state to provide sufficient retirement and survivors’ benefits” for judges and justices “to attract and retain highly capable members of the legal profession for service in the state judiciary.” Ark. Code Ann. § 24-8-201. According to the legislative scheme, participation in the plan is mandatory, and • each judge and justice covered by the plan contributes a percentage of their annual salary into the retirement system. See Ark. Code Ann. §§ 24-8-207(a), 24-8-209(a) & 24-8-706(a). By and large, eligibility for the receipt of retirement benefits 'is based on years of service, which is set at a minimum of eight years. Ark. Code Ann. § 24-8-215(d). The controversy in this pease concerns the laws providing that any judge who is vested in the judicial retirement system forfeits his or her retirement benefits if the judge runs for, is elected to, and serves in a new term of office after reaching the age of seventy. See Ark. Code Ann. §§ 24-8-215(c) & 24-8-710(b).
Three of the appellants are current members of the Arkansas judiciary, while one has retired from the bench. Judge Landers is a circuit judge in the Thirteenth Judicial District, and he was reelected in 2010 for an additional six-year term that expires at the close of 2016. Judge Guthrie is currently serving as a circuit judge in the Thirteenth Judicial District, and he was reelected in 2014 to a six-year term ending in 2020. Similarly. Judge Johnson is a circuit judge who sits in the Tenth Judicial District and was reelected in 2014 for a six-year term that will expire in 2020. Judge Looney is retired from his position as a circuit judge in the Eighteenth Judicial District. Appellants joined in filing a complaint for declaratory judgment seeking a determination that sections 24-8-215(c) and 24-8-710(b) are unconstitutional and are otherwise contrary to the law. Appellants alleged that these provisions violate amendment 80 to the Arkansas Constitution by adding a qualification for serving as a judge. They also asserted that the statutes deny them equal protection, as well as due process of law, as a taking without just compensation. Their complaint included the additional claim that the forfeiture provisions effect a constructive discharge from employment. In the complaint, . appellants Landers, Guthrie, and Johnson alleged that they wish to- seek reelection when their terms expire but that they had reached the age that | continued service would result in the forfeiture of their retirement benefits. Appellant Looney avowed that he had wanted to run for reelection but that he chose to retire “because of the chilling effect of the forfeiture statute[s].” As relief, appellants sought an injunction to prohibit the enforcement of the statutes.
Appellees responded to the complaint and subsequently moved for summary judgment, asserting that there were no material facts in dispute and that the contested issues involved questions of law. In their motion, they first argued that appellants did not have standing to mount a challenge to the statutes and that their claims were not ripe for review. Appellees also contended that they were entitled to judgment as a matter of law. Appellants also moved for summary judgment. They agreed with appellees .that summary disposition was appropriate because the issues raised in their complaint concern purely matters of law. However, appellants disagreed with appellees’ assertion that they did not have standing and that their claims were not ripe for review. After a hearing, the circuit court ruled that appellants had standing to seek declaratory relief but that their claims were not well taken. Accordingly, the circuit court granted appellees’ motion for summary judgment. This appeal followed.
II. Standards of Review
Generally, on appeal from a summary-judgment disposition, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences | ,-are resolved against the moving party. Ark. State Bd. of Election Comm’rs v. Pulaski Cty. Election Comm’n, 2014 Ark. 236, 437 S.W.3d 80. However, when the parties agree on the facts, we simply determine whether -the appellee was entitled to judgment as a matter of law. Waters v. Millsap, 2015 Ark. 272, 465 S.W.3d 851. As to issues of law, our review is de novo. Washington Cty. v. Bd. of Trustees, 2016 Ark. 34, 480 S.W.3d 173.
III. Standing
In their brief, appellees continue to argue, as they did below, that appellants lack standing to challenge the statutes. Appellees contend that appellants do not have standing and that the issues are not ripe for review because the future applica-' tion of the retirement provisions are contingent on an eligible circuit judge running for election, winning the election, and taking the bench for a new term after reaching the age of seventy. In making this argument, appellees rely on the principle that a declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote. See Nelson v. Ark. Rural Med. Practice Loan & Scholarship Bd., 2011 Ark. 491, 385 S.W.3d 762.
We treat the question of standing to sue as a threshold issue. Grand Valley Ridge, LLC v. Metro. Nat’l Bank, 2012 Ark. 121, 388 S.W.3d 24. However, this court has held that the issue of standing raised by an appellee is not preserved for appeal in the absence of a cross-appeal. Gallas v. Alexander, 371 Ark. 106, 263 S.W.3d 494 (2007). Here, appellees did not file a cross-appeal to contest the circuit court’s adverse ruling on this point. Consequently, we decline to address this issue.
|fiIV. Amendment 80
As their primary point on appeal, appellants contend that sections 24-8-215(c) and 24-8-710(b) violate amendment 80 to the Arkansas Constitution. They argue that the amendment establishes the qualifications for becoming a judge in this state and that the forfeiture provisions of the statutes add an additional age-based qualification by creating a de facto prohibition against retaining office past the age of seventy. Their argument is based on the principle that the General Assembly does not possess the authority to augment the qualifications contained in the constitution. Appellants assert that, by exacting a penalty on their constitutional eligibility to serve, the laws indirectly accomplish what the General Assembly lacks the direct authority to do.
The retirement provisions found in both section 24-8-215(c) and section 24-8-710(b) generally provide that (1) any judge who turns seventy while on the bench may complete his or her term of office without forfeiting retirement benefits; (2) any judge who is not eligible for retirement benefits may continue to serve until the completion of the term in which he or she receives sufficient time of service to retire without losing benefits; and (3) any judge forfeits retirement benefits who continues to serve after reaching age seventy and after the term in which the judge accrues sufficient service time to retire.
Acts of the legislature are presumed constitutional, and the party challenging the statute has the burden to prove otherwise. McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641. If it is possible to construe a statute as constitutional,, we must do so. Our Cmty., Our Dollars v. Bullock, 2014 Ark. 457, 452 S.W.3d 552, An act will be struck down only when 17there is a clear incompatibility between the act and the constitution. Bakalekos v. Furlow, 2011 Ark. 505, 410 S.W.3d 564.
The qualifications for judicial office are found in amendment 80, section 16 of the constitution. The requirements are relatively simple. Justices of the supreme court and judges of the court of appeals are required to be licensed attorneys in Arkansas for eight years immediately preceding the date of taking office, while circuit judges must be licensed attorneys in this state for six years before assuming the bench. Ark. Const, amend. 80. § 16(A) & (B). This requirement for district judges is set at four years. Id. § 16(C). The amendment also contains geographic limitations. Id. § 16(D).
It is beyond dispute that the General Assembly does not have the authority to impose qualifications for judicial office in addition to those set out in the constitution. For instance, in Daniels v. Dennis, 366 Ark. 338, 229 S.W.3d 880 (2006). this court held that Act 1148 of 2006. which provided that a person appointed as a circuit judge was ineligible to run as a candidate in the same judicial district to which she was appointed, was unconstitutional because it added a qualification required of candidates for judicial office. Also, we have held that a statute prohibiting a judge who had been removed from office from thereafter being appointed or elected to serve as judge was unconstitutional because the law imposed an additional qualification. Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360.
We have applied this rule of law in other contexts, as well. In Allred v. McLoud, 343 Ark. 35, 31 S.W.3d 836 (2000). this court held that a local initiative that fixed term limits for county officials at five two-year terms was unconstitutional because it added a new qualification for candidacy that was not contained in the Arkansas Constitution, In the case |sof Mississippi County v. Green, 200 Ark. 204, 138 S.W.2d 377 (1940), we noted that article 7, section 29 of the Arkansas Constitution fixed the qualifications for county judge, and we held unconstitutional a statute requiring a county judge to be “learned in the law,” because it provided an additional qualification not found in the Arkansas Constitution. This court recently held that the voter-identification law was unconstitutional on its face because it imposed a qualification for voting beyond what is recognized by the constitution. Martin v. Kohls, 2014 Ark. 427, 444 S.W.3d 844.
It is equally understood that the General Assembly cannot accomplish indirectly what it may not do directly. An example of this rule of law is found in Gravett v. Villines, 314 Ark. 320, 862 S.W.2d 260 (1993). There, this court held that an ordinance passed by a quorum court removing the operation of a county jail from the office of the sheriff to the office of the county judge was unconstitutional because, under the circumstances, such a measure had to be submitted to the voters at an election. As a logical corollary to that holding, we declared that a related ordinance removing funding from the sheriffs office to achieve the operational transfer of the jail was also unconstitutional because- the quorum court as a “legislative body cannot do indirectly that which the constitution prohibits it from doing directly.” Gravett, 314 Ark. at 327, 862 S.W.2d at 264.
While the principles appellants rely on are indeed firmly established in our jurisprudence, they have no application here. In Dennis and Proctor, the statutes prohibited persons who were qualified under the constitution from being elected to, and serving in, judicial office. Likewise, in Allred, the law barred a constitutionally qualified incumbent from running for office, and in Green, the statute banned a qualified person from serving as 19a county judge. In Kohls, the statute was deemed unconstitutional because it prevented a duly registered voter from exercising the right to vote. In each of these situations, the statutes worked an absolute disqualification not found in the constitution. By contrast here, the statutes do not suffer from the same infirmity because the laws impose neither a direct nor an indirect qualification for holding judicial office. The statutes do not prohibit any judge from holding office past the age of seventy. Judges at that age may freely seek reelection and may serve in office. If elected past age' seventy, no judge is subject to being ousted from his or her position as a result of the statutes. Instead, the laws pertain only to a judge’s eligibility to receive retirement benefits, which are, after all, a «matter of grace bestowed by the General Assembly. The age-seventy eligibility requirement found in section 24-8-215(c) first appeared in Act 139 of 1965, and it has been a continuing part of the retirement system since that time. Therefore, for over fifty years, the General Assembly has conditioned the eligibility for receiving benefits upon retirement at the age of seventy. Eligibility for benefits demonstrably is not the equivalent of a qualification for holding judicial office. Simply stated, the statutes do not constitute an additional qualification in contravention of the constitution. Accordingly, we affirm the circuit court’s ruling that the statutes do not violate amendment 80.
ImV. Equal Protection
Appellants’ second argument on appeal is that the forfeiture provisions of the statutes offend the equal protection clauses of the United , States and Arkansas Constitutions. Their contention is that, if the goal of the legislation is to prevent older persons from serving as judges, the means chosen by the General Assembly do not accomplish that end because the system allows someone who is first elected as a judge after the age of seventy to serve until eligibility for retirement is achieved. Ark. Code Ann. §§ 24-8-215(c)(2)(A) & 24-8-710(b)(2)(A). They assert that the statutory scheme prevents only, experienced older persons from serving as judges.
Appellants correctly concede that the statutes need only pass a rational-basis test to withstand scrutiny under the equal-protection clauses. When considering an equal-protection challenge to a state legislative classification scheme that does not involve either a “suspect” classification or a “fundamental” right, the proper test is whether the classification bears some rational relationship to a permissible state objective. In re Estate of Epperson, 284 Ark. 35, 38, 679 S.W.2d 792, 793-94 (1984) (citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). Age is not a suspect classification under the Equal Protection Clause. Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Neither the right of governmental employment nor the right to run for elective office is a fundamental right. Trafelet v. Thompson, 594 F.2d 623 (7th Cir.1979) (citing Murgia, supra, and Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972)); see also Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997) (observing that holding public office is a political privilege and not a civil right). Judicial office is no exception. Id. Accordingly, the applicable standard is whether the Indassification is rationally related to a legitimate legislative purpose. Gregory, supra; Murgia, supra.
Equal protection does not require that persons be dealt with identically; it requires only that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that their treatment be not so disparate as to be arbitrary. McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641. When reviewing an equal-protection challenge, it is not this court’s role to discover the actual basis for the legislation. Graves v. Greene Cty., 2013 Ark. 493, 430 S.W.3d 722. Rather, we consider whether there is any rational basis that demonstrates the possibility of a deliberate nexus with state objectives so that legislation is not the product of arbitrary and capricious government purposes. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., 2012 Ark. 157, 400 S.W.3d 701. If we determine that any rational basis exists, the statute will withstand constitutional challenge. McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006). Under the rational-basis test, legislation is presumed constitutional and rationally related to achieving any legitimate governmental objective under any reasonably conceivable fact situation. Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002). This presumption places the burden on the party challenging the legislation to prove its uneonstitutionality. Whorton v. Dixon, 363 Ark. 330, 214 S.W.3d 225 (2005).
On several occasions, the United States Supreme Court has taken the opportunity to address equal-protection claims in the context of retirement provisions. In Mur-gia, supra, at issue was a Massachusetts statute that mandated the retirement of uniformed state police officers at age fifty. Applying the rational-basis test and recognizing that physical ability 112generally declines with age, the Court concluded that the state had a legitimate interest in seeking to protect the public by assuring the physical preparedness of its uniformed police officers. Because the statute furthered that legitimate goal, the Court ruled that there was no denial of equal protection. In its decision, the Court observed that the means chosen to achieve a legitimate goal need not be flawless:
That the State chooses not to- determine fitness more precisely through individualized testing after age fifty is not to say that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation. It is only to say that with regard to the interest of all concerned, the State perhaps has not chosen the best means to accomplish this purpose. But where rationality is the test, a State “does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161.
Murgia, 427 U.S. at 316, 96 S.Ct. 2562.
In Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). the Court considered whether Congress had violated the Equal Protection Clause by requiring retirement at age sixty of federal employees covered by the Foreign Service retirement system but not those employees covered by the Civil Service retirement system. A stated purpose for mandating compulsory retirement for persons in the Foreign Service at that age was to remove older persons that may be less dependable than younger persons in facing the rigors of overseas duty. In concluding that the statutory scheme did not violate the Equal Protection Clause, the Court reasoned that the mandatory retirement age of sixty attempts to “stim ulate the highest performance in the ranks of the Foreign Service” and found that the mandatory provision was not invalid because it was rationally related to the goal of superior performance. Vance, 440 U.S. at 101, 99 S.Ct. 939. In so holding, the Court also recognized that “it was quite rational to avoid the risks connected with having older employees in the Foreign Service” and [ 1s“[w]hether or not individual judges may agree with this assessment, it is not for the courts to reject it.” Id. at 106, 99 S.Ct. 939.
Finally, in Gregory, supra, the Supreme Court upheld against an equal-protection challenge a Missouri constitutional provision requiring judges to retire at age seventy. There, the Court emphasized that a state’s citizens “have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform,” observing that voluntary retirement, impeachment procedures, and the election process may not be sufficient to ensure this objective. Gregory, 501 U.S. at 472, 111 S.Ct. 2395. Significantly, the Court recognized that
[t]he Missouri mandatory retirement provision, like all legal classifications, is founded on a generalization. It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all. But a State “does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.”
Gregory, 501 U.S. at 473, 111 S.Ct. 2395 (quoting Murgia, 427 U.S. at 316, 96 S.Ct. 2562). Even before the decision in Gregory, courts across the country had upheld mandatory retirement provisions for state judges. Those decisions include Hatten v. Rains, 854 F.2d 687 (5th Cir.1988); Malmed v. Thornburgh, 621 F.2d 565 (3d Cir.1980); Trafelet, supra; Rubino v. Ghezzi, 512 F.2d 431 (2d Cir.1975); Lerner v. Corbett, 972 F.Supp.2d 676 (M.D.Penn. 2013); Zielasko v. Ohio, 693 F.Supp. 577 (ND.Ohio 1988); Saetre v. State, 398 N.W.2d 538 (Minn.1986); O’Neil v. Baine, 568 S.W.2d 761 (Mo.1978); Maresca v. Cuomo, 105 A.D.2d 198, |14483 N.Y.S.2d 690 (1984); State v. Eyrich, 489 N.E.2d 259 (Ohio 1986); Aronstam v. Cashman, 132 Vt. 538, 325 A.2d 361 (1974).
It is against this backdrop in the law that appellants assert the narrow argument that the statutes deny equal protection because the laws permit a person after the age of seventy to serve as a judge until eligibility for retirement benefits is achieved. However, the underinclusiveness of a particular provision, or its failure to fully remedy a certain problem, does not make the provisions unconstitutional. The Supreme Court has been clear on this point. “Even if the classification involved here is to some extent both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it is nevertheless the rule that in a case like this ‘perfection is by no means required.’” Vance, 440 U.S. at 108, 99 S.Ct. 939 (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 51, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). See also Murgia, 427 U.S. at 316, 96 S.Ct. 2562 (stating that, where rationality is the test, a State “does not violate the Equal Protection Clause merely because the classifications made by its law are imperfect”); Dandridge, 397 U.S. at 485, 90 S.Ct. 1153 (observing that a law does not offend the Constitution simply because the classification is not made with “mathematical nicety”).
Further, when we examine the justifications offered by appellees for encouraging retirement at age seventy, we can only conclude that the statutes bear a rational relationship to legitimate legislative purposes. Appellees assert, and we agree, that the laws advance the State’s interest in protecting and maintaining the integrity of the judiciary. As stated by the | ^Supreme Court, “[i]t is an unfortunate fact of life that physical and mental capacity sometimes diminish with age.” Gregory, 501 U.S. at 472, 111 S.Ct. 2895. Thus, it is not irrational for the State to promote retirement at an advanced age in order to attain the highest possible standards for the judiciary. In the same vein, we also accept that encouraging voluntary retirement “eliminates the unpleasantness of selectively removing aged and disabled judges” through formal disciplinary proceedings. Malmed, 621 F.2d at 572; see also Trafelet, 594 F.2d at 628 (recognizing that the cumbersome process of individualized removal is unlikely to be used “except in the most extreme cases”); Zielasko, 693 F.Supp. at 586 (accepting as reasonable the justification that “mandatory retirement eliminates the unpleasant task of removing aged” and senile judges).
In addition, promoting voluntary retirement advances the State’s legitimate interest in maintaining high performance for the judiciary by providing greater opportunities for younger attorneys to take the bench. Relatedly, retired judges are allowed to return to service as appointed judges without forfeiting retirement benefits. See Ark.Code Ann. §§ 16-10-902 & - 903 (Repl.2010). Therefore, the retirement system also “substantially increases judicial manpower by bringing in younger judges while retaining the part-time services of willing and able retired judges.” Malmed, 621 F.2d at 572; see also Rubino, 512 F.2d at 433 (recognizing the reasonableness of a mandatory age limitation at age seventy by encouraging younger attorneys with judicial aspirations).
|1fiIn sum, we hold that the statutes are rationally related to the achievement of legitimate state objectives. This is the lowest form of constitutional scrutiny, and the statutory scheme in question easily passes the test. That the laws are under-inclusive, by allowing a select few to briefly evade their strictures, provides no reason at all to hold that the statutes are unconstitutional. The General Assembly could well conclude, without being arbitrary, that allowing some to serve a short time to achieve eligibility for retirement benefits is but to place repose and confidence in the voters to not elect as a first-time judge one who is past the prime of his or her abilities. With that said, it is worth repeating the Court’s admonition that “[wjhether or not individual judges may agree with this assessment, it is not for the courts to reject it.” Vance, 440 U.S. at 106, 99 S.Ct. 939. The lines drawn by the General Assembly may not be flawless, but for purposes of equal protection, perfection is simply not required.
Under this point on appeal, appellants also assert that the statutory scheme lacks a rational basis because it limits judges who are elected later in life from obtaining full retirement benefits. Essentially, appellants complain that judges who serve longer terms in office receive greater benefits than those who serve less time on the bench. The entirety of the argument that appellants present on this point is confined to the statement that “[t]his discrimination is unrelated to any legitimate state interest.” However, this, too, is a policy decision that was made by the General Assembly. In our view, it is far from irrational to base retirement benefits on length of judicial service. Appellants have failed in their burden of demonstrating that the laws lack a rational basis. We sustain the circuit court’s decision that the statutes do not deny equal protection.
|17VI. Due Process
In this argument on appeal, appellants contend that the forfeiture provisions appear to constitute an unconstitutional taking without due process because the forfeiture statutes can be read to provide that a judge would forfeit not only the payment of monthly retirement benefits, but also a judge’s personal contributions paid into the system that were deducted from his or her salary. In response, ap-pellees assert that no taking will occur in reliance on the affidavit of the executive director that appellees presented in support of their motion for summary judgment. In her affidavit, the executive director averred that, if a judge elects to remain in office past age seventy and suffers the forfeiture of monthly retirement benefits, the judge’s personal contributions will be refunded to the judge, just as a judge’s personal contributions are refunded if a judge never attains retirement eligibility in the first instance under Arkansas Code Annotated section 24-8-209(b).
It is the appellant’s burden to demonstrate the existence of reversible error. Burdine v. Ark Dep’t of Fin. & Admin., 2010 Ark. 455, 379 S.W.3d 476. In this case, appellants have failed in that burden because they have provided no argument showing that the circuit court erred in denying their due-process claim by relying on the executive director’s assurance that contributions will be refunded if a judge remains in office past age seventy. We summarily affirm on this point.
VI. Constructive Discharge
In this last issue, appellants cite Sterling Drug v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), for the proposition that a constructive discharge occurs when an employer intentionally renders an employee’s working conditions intolerable and thus forces the |1Remployee to leave the employment. Appellants assert that the arbitrary and capricious withdrawal of a judge’s retirement benefits is an intentional act that effectively renders a judge’s working conditions so intolerable that a judge is forced to surrender his or her occupation.
Appellants’ attempt to create an analogy between statutes that encourage retirement and an intolerable work-place environment fails. The two are not comparable, as providing an incentive to retire at an advanced age is not the equivalent of a hostile work environment. Moreover, this court has steadfastly refused to consider an issue that is not supported by convincing argument or citation to authority. Rose v. Ark. State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). There is no merit to this argument.
Affirmed.
Baker and Hart, JJ., concur.
Brill, C.J., and Danielson, J., dissent.
. This spring, and after the complaint was filed, Judge Landers stood unopposed for reelection and is scheduled to begin a new term on January 1, 2Q17.
. Following his retirement, Judge Looney was appointed as á district judge in Polk County.
. In Jones v. Cheney, 253 Ark. 926, 489 S.W.2d 785 (1973), this court held that, when the General Assembly establishes a retirement system to which employees make contributions, it may not constitutionally impair the rights of those employees with legislation enacted after their rights become vested. Here, the legislation was in effect decades before appellants took office, much less before they became vested in the retirement system. Consequently, the dissenting justices' preoccupation with the concept of vested property rights is entirely misplaced. See Robinson v. Taylor, 342 Ark. 459, 29 S.W.3d 691 (2000). We also observe that, when appellants became judges, they were on notice that this requirement was in place.
. In dissent, Justice Danielson appears to maintain that some of these decisions are inapposite because the retirement provisions were set forth in a constitution rather than by legislative enactment However, for purposes of equal protection, the analysis is the same whether the challenged law is a constitutional provision or a statute.
. Section 4 of amendment 80 provides that the supreme court has the authority to temporarily assign judges. | [
20,
-18,
-41,
92,
8,
67,
123,
-120,
19,
-103,
7,
81,
-81,
-102,
17,
119,
-13,
79,
85,
107,
-105,
-73,
117,
65,
10,
-77,
-39,
-59,
-70,
79,
-92,
-33,
72,
48,
-22,
-44,
-58,
104,
-51,
28,
-86,
2,
75,
105,
123,
-60,
56,
107,
16,
-97,
-75,
-1,
-5,
-81,
24,
66,
-56,
108,
89,
-92,
81,
-101,
-114,
-113,
-33,
21,
49,
5,
-101,
-125,
120,
110,
28,
49,
9,
-8,
115,
-90,
-118,
52,
107,
-103,
13,
98,
115,
-109,
56,
-121,
-112,
42,
22,
-38,
-83,
-124,
-46,
17,
67,
8,
-106,
-100,
-6,
28,
-57,
-10,
38,
-123,
31,
44,
13,
-50,
-34,
-79,
10,
109,
-106,
74,
-21,
99,
80,
117,
-119,
-30,
93,
71,
19,
11,
-50,
-10
] |
DAVID M. GLOVER, Judge
| t This is the second time the Kelly divorce has been before our court. In Kelly v. Kelly, 2015 Ark. App. 147, we dismissed the appeal for lack of finality. The Arkansas Supreme Court accepted the case on a petition for review, addressed only the finality issue, and remanded the case to our court to decide the merits. Kelly v. Kelly, 2016 Ark. 72, 483 S.W.3d 296.
Thus, the remaining issue for decision is whether the trial court abused its discretion in setting the amount of alimony and by directing Owen Kelly’s alimony obligation to automatically increase as child-support payments decreased to ensure that Mandy Kelly continued to receive the total support she requested in the amount of $16,659 per month. We hold that the trial court abused its discretion both in its determination of the initial award Rof alimony and in the provision of an “escalator clause” for alimony each time child support was automatically reduced. We reverse and remand for entry of an order consistent with this opinion.
Owen and Mandy were married on April 24, 1994; they were divorced by decree entered on March 24, 2014, in the Washington County Circuit Court. Two children were born of the marriage, K.G.K. in November 1999, and H.K. in October 2002. Mandy was awarded custody of the children. The trial court determined Mandy needed $16,659 per month for expenses. Owen was ordered to pay $7,528 in child support and $9,131 in alimony monthly beginning on April 1, 2014. We note that Owen further agreed to pay $1,000 per month outside of his child-support obligation for H.K. to attend the New School, and that tuition will increase as H.K. advances in grade.
Of particular significance to this appeal, the divorce decree provided that when Owen’s child support is reduced to $5,366 per month (when K.G.K. attains the age of majority), the $9,131 per month alimony amount would automatically increase to $11,293 per month, thereby keeping the total amount of support Owen was to pay to Mandy at $16,659. The decree further provided that when H.K. attained majority and child support ceased, Owen’s alimony obligation to Mandy would increase to the full $16,659 sum.
On appeal, divorce cases are reviewed de novo. Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265. An award of alimony is not mandatory, but is solely within the circuit court’s discretion, Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998); we will not reverse absent an abuse of that discretion. Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (20051,. An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Foster v. Foster, 2015 Ark. App. 530, 472 S.W.3d 151. However, if alimony is awarded, it should be set at an amount that is reasonable under the circumstances. Mitchell, supra.
The division of marital property and an award of alimony are complementary devices that may be utilized by the circuit court to make the dissolution of a marriage financially equitable. Webb, supra. The purpose of alimony is to rectify the economic imbalances in earning power and standard of living in light of the particular facts of each case. Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006). The primary factors that a court should consider in awarding alimony are the financial need of one spouse and the other spouse’s ability to pay. Gilliam v. Gilliam, 2010 Ark. App. 137, 374 S.W.3d 108. The circuit court may also consider other factors, including the couple’s past standard of living, the earning capacity of each spouse, the resources and assets of each party, and the duration of the marriage. Johnson v. Cotton-Johnson, 88 Ark. App. 67, 194 S.W.3d 806 (2004). We adhere to no mathematical formula or bright-line rule in awarding alimony. Valetutti v. Valetutti, 95 Ark. App. 83, 234 S.W.3d 338 (2006).
Owen is and has been an orthopaedic surgeon since 2003; He testified, and his affidavit of financial means indicated, that his gross monthly salary was $35,000, but his net monthly take-home pay was $19,975 for the first three’ months of the year (when social-security taxes were taken out of his paycheck) and $20,170 for the remainder of the year. He showed monthly expenses of $10,665, which included mortgage payments on both the marital homeland the residence he now occupies. When the parties married in 1994, Owen was preparing to go to medical school, and Mandy had completed two or three years of college. Early in the marriage, Mandy worked at Sam’s Club in the marketing department and then for Metropolitan National Bank as a vault teller making a salary in the low $30,000 range. After K.G.K’s birth, the parties agreed that Mandy would not continue to work outside the home.
Within the divorce decree, by prior agreement of the parties, Mandy was awarded $367,000 as an equal distribution of marital property, as well as all personal property currently in her possession (with the exception of two 12-piece place settings of silver from Owen’s family that were awarded to Owen) and any personal property located in the former marital residence. Mandy was also awarded $12,220 as her marital share of two businesses: Owen’s medical practice and Leasing Services of Arkansas. Mandy testified during the divorce hearing she had about $350,000 of the $367,000 division remaining; she further testified she would rather not spend that money but instead get alimony from Owen because that was all the money she had. She testified she had not looked into obtaining any type of employment from which to derive income. She acknowledged the marital home was on the market; Owen was paying the mortgages on it; the divorce decree ordered Owen to continue making the mortgage payments until it sold; and the parties would divide equally the net proceeds from the sale of the house after the payment of the mortgages and other costs.
On her affidavit of financial means, Mandy calculated that she needed $16,659 per month for expenses. Specifically, Mandy listed monthly expenses as follows:
12,400 Rent/house payment
$350 Gas & electricity
$43 Water
$150 Telephone
$1,382 Food
$1,764 Clothing
$350 Laundry & cleaning
$2,000 Anticipated taxes
$600 Car payment
$125 Medical
$1,000 Entertainment
$150 School
$50 Drugs
$48 Life insurance
$750 Health insurance
$152 Auto insurance
$250 Fire insurance
$400 Transportation
$225 Lawn care
$2,500 Vacations
$175 Pets
$1,000 Gifts
$175 Cable/internet
$175 Gym membership
$450 Counseling
Without discussion, the trial court awarded Mandy every penny she requested.
Mandy testified the $2,000 per month “anticipated taxes” she requested was to be used to pay taxes on the alimony she was requesting Owen to pay her. She conceded it was just an estimate; she had no basis for that amount. Our law is clear that there is simply no basis for such an award. Alimony is generally taxable income to the recipient and deductible to the payor. Wadley v. Wadley, 2012 Ark. App. 208, 395 S.W.3d 411; see also Ark.Code Ann. §§ 26-51-404 and -417 (Repl.2012). The trial court abused its discretion by requiring Owen to pay the taxes on the alimony award to Mandy.
IfiThe vast majority of Mandy’s above-requested expenses are nonexistent, overstated, or excessive. Mandy claimed $225 per month for lawn care, but it was her testimony that lawn care was provided for by her landlord. She allocated $250 per month for fire insurance but testified she did not pay fire insurance. She claimed $750 per month for health insurance but admitted under cross-examination her health insurance would cost at most $463 per month. We find these items — her $1,000 per month for gifts, $1,000 per month for entertainment and $2,500 per month for vacations — were excessive. Mandy conceded that her monthly figures for food ($1,382), clothing ($1,764), and vacations ($2,500) were based on a family of four, not her current family of three further requiring these figures to be reduced. Our review of the record before the circuit court recognizes the circuit court awarded the above $16,659 total support from Owen’s net monthly take-home pay of $19,-975-$20,170. Though we could modify alimony and set an amount that is reasonable under the circumstances, see Spears v. Spears, 2013 Ark. App. 535 (40-year-old stay-at-home wife with a year of college education showed $9,455 of expenses on affidavit of financial means; circuit court ordered doctor husband to pay $4,000 per month in alimony; court of appeals reduced alimony to $2,500 per month), we are remanding to the circuit court to do so in compliance with our findings from our de novo review of the record created in this case before the circuit court.
Owen further argues that the automatic “escalator clause” increasing his alimony payments to Mandy to maintain the level of total financial support he provided when hisjjchildren were still living with Mandy is an abuse of discretion. We agree. Modification of an alimony award must be based on a significant and material change in the parties’ circumstances, and the burden of showing such a change in circumstances is always on the party seeking the modification. Hix v. Hix, 2015 Ark. App. 199, 458 S.W.3d 743; see also Weeks v. Wilson, 95 Ark. App. 88, 234 S.W.3d 333 (2006).
On this point, Mandy argues the recent case of Jones v. Jones, 2014 Ark. App. 614, 447 S.W.3d 599, is directly on point and requires that our court affirm the trial court’s automatic increases of alimony. We disagree that Jones mandates this automatic increase of alimony be affirmed; the facts in this case are distinguishable from those in Jones. In Jones, the parties had no savings or real property, and the trial court determined that Mrs. Jones was working at her highest and best use of her talents and resources. In Jones, Mr. Jones did not dispute that Mrs. Jones would be unable to meet her basic monthly needs of $3,388 on her $1,690 monthly income without assistance from him.
In Jones, we held it was a certainty that Mrs. Jones would need additional alimony as child support abated; that is not the case here. Mandy was awarded a large property settlement in the divorce, and she is a 44-year-old woman with no physical health problems. While the trial court found that she had no marketable skills and was not currently able to hold a job, Dr. Brad Diner, a psychiatrist hired by her own counsel to evaluate her, testified that, while it could be difficult for Mandy to hold a job at the moment, it would be helpful for her to find work and that she should be able to do so in three or four years. Dr. Diner said that |8would give her time to rehabilitate herself and retrain and educate herself.
We have established from the record that there is no need for $16,659 in monthly expenses, and it is beyond speculation that Mandy will not need almost $17,000 per month to meet her needs when the children are no longer living with her (especially given that many of her expenses are nonexistent, are speculative, are excessive, or have been based on the children’s needs). We hold that it was an abuse of discretion for the trial court to automatically increase Mandas alimony as child support abates. The circuit court’s approach, applying the “escalator clause” where no justification exists, ignores the fact that modifications in alimony require proof of a change in circumstances, and the burden of proof is on the party seeking to modify the alimony. Hix, supra. Without financial need established, by employing the use of the “escalator clause” to increase alimony as child support decreases and then abates, the circuit court has relieved Mandy of her burden to prove that such an increase is necessary and justified. It has disincentivized her, contrary to her psychiatrist’s opinion, to ever seek employment. If Mandy needs additional support as child support abates, she is free to return to court to seek an increase in alimony. Likewise, if Owen’s financial situation changes, he is also free to return to court to seek a decrease in alimony.
Reversed and remanded for entry of an order consistent with this opinion.
Gruber and Brown, JJ., agree. | [
-48,
-23,
-84,
124,
-38,
-64,
11,
-116,
96,
-125,
51,
-47,
-85,
-26,
16,
121,
-96,
79,
104,
104,
-43,
-73,
7,
64,
-46,
-13,
-79,
-57,
-71,
-51,
-83,
-42,
92,
40,
-94,
-43,
68,
-54,
-55,
24,
42,
-118,
-85,
-51,
91,
-121,
48,
97,
18,
6,
37,
-113,
-110,
-23,
62,
-49,
76,
46,
93,
-84,
80,
-30,
-110,
15,
95,
6,
-77,
-76,
-98,
6,
80,
102,
-100,
57,
46,
-24,
50,
-90,
22,
116,
121,
-103,
9,
116,
98,
16,
-87,
-1,
-3,
-120,
86,
-2,
31,
-74,
-98,
121,
10,
15,
-74,
52,
116,
20,
30,
118,
99,
13,
92,
108,
-126,
-37,
-44,
-71,
-116,
57,
-112,
27,
-21,
79,
-80,
101,
-51,
-30,
92,
-58,
59,
-109,
-10,
-10
] |
Tom Glaze, Justice.
This is the second appeal before this court involving Gary Axley and the Southern College of Naturopathy. See Axley v. Hardin, 353 Ark. 529, 110 S.W.3d 766 (2003). In the present case, the State filed a complaint against the Southern College of Naturopathy, doing business as the Southern College of Naturopathic Medicine (“SCN” or “the College”), Gary Axley, the president of SCN, and others, alleging that the defendants had violated the Arkansas Deceptive Trade Practices Act.
In particular, the State contended that SCN purported to confer upon its students a “doctoral degree in naturopathic medicine” after a two-week course at SCN’s campus in Waldron. In addition, SCN informed its students that, once they had completed their “degree,” they would be able to apply to the American Association of Drugless Practitioners, the International Association of Naturopathic Physicians, and the American Naturopathic Medical Association for membership and board certification. However, the State alleged, these claims were fraudulent and misleading, because none of those entities are recognized by the United States Department of Education as authorized accreditation entities in the field of naturopathic medicine. Therefore, the State claimed, contrary to SCN’s assertions, students who enroll at SCN and complete the two-week program are not eligible to take the Naturopathic Physicians’ Licensing Examination (“NPLEX”), nor are they eligible to transfer their SCN credits to any of the nationally recognized or regionally accredited naturopathic medical institutions in the United States.
In addition, the State’s complaint alleged that Axley was holding himself out to the public as an authorized naturopathic physician, contrary to Arkansas law, and that these and other activities constituted the unlicensed practice of medicine, thereby creating a public nuisance.
On April 4, 2003, the State filed a petition for preliminary injunction, in which it alleged that Axley and SCN offered a two-week training course to become a licensed naturopathic physician; in doing so, the State contended, Axley and SCN “encourage[d] and allow[ed] unlicensed and otherwise unqualified students to engage in clinical trials where invasive medical techniques are performed.” These activities, according to the State, presented a substantial danger to the health, welfare, and safety of the public. After a hearing on the State’s petition for injunction, the trial court issued a preliminary injunction barring Axley and SCN from certain enumerated business practices.
On September 9, 2003, the State filed a motion to compel discovery. After a hearing, the trial court granted the State’s motion, directing Axley and SCN to produce all information requested by the State by December 31, 2003; the material sought included, among other things, student information and records. However, on February 12, 2004, the State filed a motion for discovery sanctions, alleging that Axley and SCN had redacted all identifying information from the material provided. The State pointed out that this had been precisely the information that was requested in several of its interrogatories and requests for production, and that the redaction appeared to have occurred on original copies of the records.
On May 3, 2004, the trial court entered an order granting the State’s motion for discovery sanctions and issuing a default judgment against SCN and Axley, thereby making the preliminary injunction permanent. From this order, Axley and SCN bring the instant appeal, in which they contend the trial court erred in the following three respects: 1) by refusing to consider the rules and regulations of the Arkansas State Board of Acupuncture and Related Techniques; 2) by “extending its injunction to cover health procedures that Axley is licensed to perform; and 3) by “entering summary judgment [sic] for failure to allow the State to discover certain information because the discovery request was too broad in scope.”
In their first point on appeal, SCN and Axley, who holds a license to practice acupuncture, assert that the trial court erred when it refused to consider the rules of the Arkansas State Board of Acupuncture and Related Techniques (“ASBART”) that define the scope of practice for licensed acupuncture practitioners. We review evidentiary errors under an abuse-of-discretion standard. Southern Farm Bureau Cas. Ins. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003); Arkansas Department of Human Services v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002). The trial court has broad discretion in its evidentiary rulings; hence, the trial court’s findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Id.
At the hearing on the State’s motion for preliminary injunction, Axley and SCN attempted to introduce what was purported to be a “certified copy” of the Rules and Regulations of AS-BART, which describe the scope of practice for an acupuncturist or practitioner of oriental medicine. Axley sought to introduce the rules in order to argue that his conduct fell within his scope of practice. Although the court initially agreed to allow the rules into evidence, when defense counsel gave the court a copy of the rules, the following colloquy ensued:
The Court: Well, this is only part of a document.
Counsel: Your Honor, it’s all their regulations that they have on file.
The State: Your Honor, letter A usually precedes letter B.
The Court: Yeah. This is not a complete document.
Counsel: Your Honor, they filed this Title One on August 9th of 2001. They filed B and Title One on August 9,2001; they filed B before they filed the rest of it, if you look at the time and date stamp.
The Court: I’m not going to allow it. I’m not going to allow any testimony about it.
Counsel: For what reason,Your Honor?
The Court: It doesn’t make sense to me.
Counsel: But Your Honor, it’s a certified copy.
The Court: Well, you need —
Counsel: The fact that the Secretary of State organized it in this fashion does not mean that it doesn’t make sense.
The Court: Well, you’ll need to get somebody here to testify about this.
Counsel: So you’re not admitting it on what basis?
The Court: It’s in the — I already said I would admit it as Defendant’s Exhibit Number 1. But I don’t — I’m not going to allow any testimony about it because it doesn’t — I was iffy on admitting it. Now, I look at it and it’s not in any kind of order. If you’ll have somebody to testify about this, I will listen to it.
Counsel: I guess I’m confused, Your Honor. The Secretary of State filed these regulations in reverse order. They filed B before they filed one, so they provided the packet.
The Court: Then you’ll need to get somebody here to testify about that because just looking at it, it doesn’t make a lick of sense.
Counsel: And so the reason that you’re not allowing testimony is because it doesn’t make sense.
The Court: Yes.
Counsel: And does that go to relevance or what, Your Honor? I’m just trying for purposes of the record to determine the reason for the court’s denying this after having first admitted it.
The Court: It goes to the competency of this evidence. I look at it and it doesn’t make sense, so I’m not going to allow testimony about it until you get somebody here to tell me what it means and how it’s organized. On its face, it doesn’t make sense.
Counsel: And that refers to which rule of evidence,Your Honor?
The Court: Hearsay rule.
Counsel: Which part of the hearsay rule? Just that it’s hearsay?
The Court: That it’s hearsay, sure. It’s not competent; it’s not relevant. Move on.
On appeal, Axley and SCN assign error to this ruling, asserting that the court was required to take judicial notice of the Board of Acupuncture’s rules and regulations. They assert that, had the court considered the rules and regulations, it would have found that the procedures about which the State complained was a procedure covered by the scope of practice of ASBART and Axley’s license. Axley and SCN conclude that the court’s failure to consider the rule should be reversed because the injunctions issued prohibited conduct by Axley and SCN that was otherwise lawful under ASBART’s rules.
We do not reach the merits of Axley’s judicial notice argument, because he has changed his argument on appeal. It is well settled that an appellant may not change the grounds for objection on appeal, but is limited by the scope and nature of his or her objections and arguments presented at trial. Divers v. Stephenson Oil Company, Inc., 354 Ark. 695, 128 S.W.3d 805 (2003); Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). At the trial court level, Axley did not ask the court to take judicial notice of the rules; instead, he attempted to introduce a document into evidence. The court never refused to take judicial notice of the rules, because it was never asked to take judicial notice.
Under Ark. R. Evid. 201(c), a trial court “may take judicial notice [of adjudicative facts] whether requested or not,” although under Rule 201(d), a court “shall take judicial notice if requested by a party and supplied with the necessary information.” As stated above, Axley never asked the trial court to take judicial notice of the Acupuncture Board’s rules and regulations. Instead, he proffered a copy of the rules for introduction into evidence, and the trial court concluded that the copy was not properly admissible. Because Axley did not raise the issue ofjudicial notice before the trial court, we do not consider his judicial notice argument on appeal.
We also note, however, that the court gave Axley an opportunity to clear up the confusion surrounding the document. The court offered to allow Axley to call someone from the Secretary of State’s office to come in and testify how the documents were organized. Axley failed to take the court up on that offer, and should not be heard to complain about the situation on appeal. See Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997) (not an abuse of discretion for trial court to refuse to admit property deeds when no witness was offered to explain confusion surrounding those deeds).
In his second point on appeal, Axley argues that the trial court erroneously enjoined him from engaging in practices that he is licensed to perform. The State sought to enjoin Axley’s activities pursuant to the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. § 4-88-101 et seq. (Repl. 2001). In particular, Ark. Code Ann. § 4-88-107(a)(1) (Repl. 2001) prohibits, among other things, “[k]nowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods or services[.]” Further, Ark. Code Ann. § 4-88-104 (Repl. 2001) provides the following:
In addition to the criminal penalty imposed hereunder, the Attorney General of this state shall have authority, acting through the Consumer Counsel, to file an action in the court designated in § 4-88-112 for civil enforcement of the provisions of this chapter, including, but not limited to, the seeking of restitution and the seeking of an injunction prohibiting any person from engaging in any deceptive or unlawful practice prohibited by this chapter.
This court has held that when the Attorney General has a specific statutory mandate to protect the public interest, the traditional common-law prerequisites for an injunction in civil litigation, such as irreparable harm and likelihood of success on the merits, are not applicable. See Mercury Marketing Tech. Of Delaware v. State, 358 Ark. 319, 189 S.W.3d 414 (2004) (citing Commonwealth v. Mass. CRINC, 392 Mass. 79, 466 N.E.2d 792 (1984); People ex rel. Hartigan v. Dynasty Sys. Corp., 128 Ill. App.3d 874, 471 N.E.2d 236 (1984)). It is a violation of the Act that triggers the prayer for an injunction. Id. On appellate review, this court determines whether the trial court’s factual finding of a violation of the DTPA was clearly erroneous. Id. (citing Ark. R. Civ. P. 52(a); Thompson v. Bank of America, 356 Ark. 576, 157 S.W.3d 174 (2004)).
As stated above, Axley argues on appeal that the trial court enjoined him from engaging in activities which he is licensed to perform. He points out that he is a licensed acupuncturist; his license, dated January 10, 1998, provides the following:
[The] Board of Acupuncture and Related Techniques hereby decrees that Gary Axley has fulfilled the requirements of Doctor of Oriental Medicine, D.O.M. and is hereby licensed to practice Acupuncture, herbal medicine and related techniques, under authority of the State of Arkansas.
He asserts that, for his activities to be illegal, those actions and activities must be outside the scope of practice of his acupuncture license.
It is not apparent from Axley’s brief whether he is challenging the preliminary injunction, issued on May 15, 2003, or the permanent injunction, entered on May 3, 2004. He offers no citations or references to any Addendum page numbers that would indicate with which order he takes issue on appeal. We assume, however, that he is challenging the permanent injunction, because any appeal from the preliminary injunction would be moot. See, e.g., Galloway v. Ark. State Hwy. & Transp. Dept., 318 Ark. 303, 885 S.W.2d 17 (1994) (where appellant never perfected an appeal from the lower court’s preliminary injunction order, point on appeal challenging that order was moot).
In any event, as we assume that Axley is arguing about the permanent injunction, that order provided as follows:
Pursuant to Ark. Code Ann. § 4-88-104 and the common law authority of the Attorney General, Defendants Southern College of Naturopathic Medicine and Gary Axley are permanently enjoined from: (a) facilitating or permitting unlicensed persons from engaging in clinical trials where medical techniques are performed, including, but not limited to, blood purification and detoxification, reflexology, acupressure, iridology, and chelation therapy; (b) engaging in clinical trials or procedures that involve invasive medical techniques outside of Defendant Gary Axley’s scope of practice, as defined by Ark. Code Ann. §§ 17-102-101 et seq., and any regulations promulgated thereunder; (c) disseminating documents or certificates stating that the holder is a naturopathic doctor or “N.D.”; (d) facilitating or permitting unlicensed persons to hold themselves out as being able to suggest, recommend, prescribe, or administer forms of treatment or healing for the intended relief or cure of physical diseases, ailments, injuries, or conditions; (e) offering medical, healthcare, or healing arts services while using the title “Doctor of Naturopathy” or “Naturopathic Physician” or the use of the abbreviation “M.D.”, “N.D.”, or “N.M.D.” in connection with Defendant Gary Axley’s name or likeness, so as to indicate that he is a medical or naturopathic doctor; (f) selling any medical, healthcare, or healing art product or service while using the title “Doctor of Naturopathy” or “Naturopathic Physician” or the use of the abbreviation “M.D.”, “N.D.”, or “N.M.D.” in connection with Defendant Gary Axley’s name or likeness, so as to indicate that he is a medical or naturopathic doctor; and (g) entering into, forming, organizing, or reorganizing into any partnership, corporation, or other legal structure for the purpose of avoiding compliance with the terms of this Order.
Axley argues on appeal that the injunction “prohibits procedures that are specifically included in the acupuncture scope of practice.” As he phrases the issue, the trial court enjoined him from engaging in the following: 1) the sale of any medical, healthcare, or healing art product or service; 2) acupressure; 3) iridology; 4) application of parasites and worms; 5) chelation; 6) reflexology; 7) blood purification and detoxification; 8) clinical trials; and 9) “the gratuitous offering of medical, healthcare or healing arts services while using the title doctor of naturopathy or naturopathic physician and the use of the abbreviations Dr., M.D. and N.D. in connection with the defendant’s name or likenesses so as to indicate that said defendant is a medical or naturopathic doctor.”
We address the most obvious point first. The language in the injunction pertaining to the “application of parasites and worms” was found only in the preliminary injunction, not in the permanent injunction quoted above. Therefore, any reference to or argument about the topic of “parasites and worms” is moot. See Galloway, supra.
Next, we consider Axley’s claim that he was enjoined from engaging in “acupressure, iridology, chelation, reflexology, blood purification and detoxification, and clinical trials.” An examination of the language of the injunction reveals that Axley himself is not enjoined from engaging in these activities. Rather, he is enjoined from “facilitating or permitting unlicensed persons from engaging in clinical trials where medical techniques are performed, including, but not limited to, blood purification and detoxification, reflexology, acupressure, iridology, and chelation therapy.” (Emphasis added.) The plain language of the injunction does not bar Axley himself from engaging in acupressure or any of the other enumerated activities. Instead, he is barred from allowing unlicensed persons to engage in these activities. Facilitating and permitting persons to engage in activities that they are not licensed to perform simply does not fall within the scope of Axley’s license to practice acupuncture. Therefore, there is no merit to his argument that the trial court improperly enjoined him from engaging in legal activities.
Next, Axley assigns error to the court’s barring him from, as he phrases it, “the sale of any medical, healthcare, or healing art product or service.” However, a complete reading of the injunction reveals that Axley has again quoted only a portion of the court’s ruling, thereby distorting its true meaning. The actual language of the order prohibits Axley from “selling any medical, healthcare, or healing art product or service while using the title ‘Doctor of Naturopathy’ or ‘Naturopathic Physician’ or the use of the abbreviation ‘M.D.’, ‘N.D.’, or ‘N.M.D.’ in connection with Defendant Gary Axley’s name or likeness, so as to indicate that he is a medical or naturopathic doctor.”
The trial court did not enjoin Axley from engaging in legal, licensed activities. Arkansas does not recognize, license, or authorize the professional terms “Doctor of Naturopathy,” “Naturopathic Physician,” “N.D.”, or “N.M.D.” Therefore, Arkansas cannot and does not recognize Axley as naturopathic doctor. In addition, Axley is not a licensed medical doctor, and therefore may not legally indicate that he is one, pursuant to Ark. Code Ann. § 17-80-113 (Repl. 2001), which provides as follows:
[The medical licensing statutes] shall not be construed to authorize any person to use the title “Doctor,” unless that title is authorized under§ 17-1-101 etseq., in which case that person shall use the title in accordance with the statutes and regulations governing the particular health care profession or unless that person has been granted a doctoral degree in any healing arts profession and is licensed in that profession under § 17-1-101 et seq.
Axley is, however, licensed as a Doctor of Oriental Medicine pursuant to Ark. Code Ann. § 17-102-101 et seq. (Repl. 2001), and he is not enjoined from utilizing that title. Under these statutes, the Arkansas State Board of Acupuncture and Related Techniques is empowered to adopt, publish, and revise such rules and regulations as are necessary to enable it to carry into effect the provisions of§ 17-102-101 etseq. See Ark. Code Ann. § 17-102-206(a)(5) (Repl. 2001). The Board’s rules and regulations define a “Doctor of Oriental Medicine” as “an individual licensed to practice acupuncture and related techniques, including oriental medicine, pursuant to the Act and as such has responsibility for his or her patient as an independent specialty care provider.” As noted above, the injunction does not preclude Axley from referring to himself as a Doctor of Oriental Medicine, or using the abbreviation “D.O.M.” after his name, or performing any activities that lie within the scope of his practice as a Doctor of Oriental Medicine.
The Board’s rules do not, however, mention, recognize, or authorize the issuance of a “Doctor of Naturopathy” title. Therefore, the court’s order prohibiting Axley from selling medical, healthcare, or healing arts products or services in such as way as to indicate that he is either a medical doctor or naturopathic doctor does not enjoin a legal activity, because under Arkansas law, Axley is neither a medical nor a naturopathic doctor.
Finally, Axley raises a brief argument to the effect that there was insufficient evidence to support the trial court’s decision to issue the injunction. However, the testimony to which he refers — that is, the testimony of Dr. Scott Hathcott, Dr. Ray Jouett, and Dr. Cynthia Bye — was all offered in support of the State’s motion for preliminary injunction. As mentioned above, Axley failed to pursue an interlocutory appeal from the issuance of the preliminary injunction, despite the fact that, under Ark. R. App. P.-Civ. 2(a)(6), he could have undertaken such an appeal. Thus, any arguments pertaining to the issuance of the preliminary injunction are moot. See Galloway, supra.
Axley’s final point on appeal is that the trial court erred in entering a default judgment in the State’s favor in response to the State’s motion for discovery sanctions. Under Ark. R. Civ. P. 37(b)(2), if a party fails to obey an order to provide or permit discovery, the trial court may “make such orders in regard to the failure as are just,” including an order “rendering a judgment by default against the disobedient party.” See Ark. R. Civ. P. 37(b)(2)(C). The imposition of sanctions, including dismissal, for failure to provide discovery rests in the trial court’s discretion; this court has repeatedly upheld the trial court’s exercise of such discretion in fashioning severe sanctions for flagrant discovery violations. Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998). “There is no requirement under Rule 37, or any of our rules of civil procedure, that the trial court make a finding of willful or deliberate disregard under the circumstances before sanctions may be imposed for the failure to comply with the discovery requirements.” Id. at 608, 970 S.W.2d at 799; accord National Front Page, LLC v. State, 350 Ark. 286, 86 S.W.3d 848 (2002); Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992); see also Rodgers v. McRaven’s Cherry Pickers, Inc., 302 Ark. 140, 788 S.W.2d 227 (1990).
As noted above, on September 9, 2003, the State filed a motion to compel discovery. In its motion, the State pointed out that it had sent its interrogatories and requests for production twice, but SCN claimed it had never received them. In response to this claim, the State faxed SCN’s counsel another copy of the Second Set of Interrogatories and Requests for Production. SCN responded to each request with the following:
Objection: Southern College of Naturopathic Medicine is the educational branch of the Church of Natural Healing. As a result of the injunction, the Southern College of Naturopathic Medicine has been forced to close, thus all files and records are in the possession of the Church of Natural Healing. Since the Church of Natural Healing is not a party, any request for information would be outside the scope of this lawsuit and the discovery process.
After a hearing, the trial court entered an order granting the State’s motion to compel discovery and finding that, under Ark. R. Civ. P. 33(b), SCN and Axley had “waived all objections not specifically pled.” In addition, the order directed SCN and Axley to produce all information requested by the State by December 31, 2003. Following entry of this order, the parties entered into an agreed stipulation and protective order by which the State agreed to treat all “medical information” and “student records” as confidential. The stipulation stated that the parties “specifically agree not to disclose to any third party any of the information contained in the medical and/or student recordsf.]”
On February 12, 2004, the State filed a motion for discovery sanctions. In this motion, the State alleged that, despite the protective order, Axley and SCN had redacted “all personal identifying information, including the name, address, telephone number, and social security number of SCN’s “students.” The State pointed out that this was precisely the information that had been requested in several of its interrogatories and requests for production, and that the redactions appeared to have occurred on original copies of the records. This destruction of the documents, the State claimed, authorized the imposition of discovery sanctions. The State therefore sought a default judgment, pursuant to Ark. R. Civ. P. 37(b)(2)(C).
The trial court held a hearing on the State’s motion for sanctions on March 12, 2004. At this hearing, Debbie Axley, the wife of appellant Gary Axley, testified that, as registrar of SCN, she could have created a list of students’ names, addresses, telephone numbers, and social security numbers, and that she was aware that she was under a court order to provide that information. Nevertheless, Mrs. Axley stated, she redacted that information on the original copies of approximately 425 student files. At the conclusion of the hearing, the court found that Axley and SCN had “willfully disobeyed the court’s order” compelling discovery. The court also informed the parties that it would take that willful disobedience into consideration when it issued sanctions. The court stated that it would have to do more research before it would decide whether to grant the State’s motion for default judgment.
On May 3, 2004, the trial court entered an order granting the State’s motion for discovery sanctions and issuing a default judgment against SCN and Axley. In addition, the court’s order made its injunction permanent, and found Debbie Axley in contempt for the redaction of the documents.
On appeal, Axley argues first that the trial court erred in denying its motion to dismiss, filed on April 30, 2003, in which Axley alleged that the State had failed to respond to Axley’s discovery requests within thirty days. This motion was filed the same day as the hearing on the State’s motion for preliminary injunction. The trial court held a hearing on Axley’s motion prior to considering the merits of the petition for preliminary injunction. At that time, Axley argued that the State was “stonewalling” on discovery, and complained that the State had answered many of the interrogatories with a promise to provide information as it became available. The State responded that many of the questions asked in the interrogatories were ones to which Axley already knew the answers, and others involved information that was irrelevant to the issue of whether the injunction was warranted. After considering both parties’ arguments, the trial court denied Axley’s motion to dismiss without comment. The trial court’s denial was not an abuse of discretion. When a party has in its own possession the information it seeks to discover, it is not an abuse of discretion on the part of the trial court to decline to impose discovery sanctions. See Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002).
Next, Axley complains that it should not have been required to compile lists of information, such as lists of the names, addresses, and phone numbers of all students who have enrolled in classes at SCN, in response to the State’s discovery requests. He argues that the rules governing discovery do not “contemplate that a party would be forced to compile any new documents.” However, the rules themselves contemplate that interrogatories are to be “answered separately and fully in writing under oath.” Ark. R. Civ. P. 33(b)(1). Nothing in Rule 33 prevents a request to a party to compile the information sought to be discovered. It is true that Rule 33(d) gives a party the option of providing business records, but nothing in the plain language of the rule states that it is improper to request lists of information.
Finally, Axley appears to argue that the trial court erred in basing the decision to grant the State’s motion for default judgment on the fact that Debbie Axley redacted the identifying information from the student records that the State had sought to discover. At a hearing on March 12, 2004, the State reminded the court that it had already granted the State’s motion to compel discovery, and yet Axley had destroyed the very information that the State sought when he redacted the student files. The court informed Axley that it was going to take the request for sanctions under advisement, and that it was considering granting the State’s motion for default judgment.
In Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992), this court upheld the imposition of a default judgment as a discovery sanction, holding that the trial court did not abuse its discretion in entering the sanctions when the “sanctions were imposed only after the trial court considered all of the circumstances surrounding the defendant’s refusal to obey the court order to produce its ‘entire claim file.’ ” Viking Ins. Co., 310 Ark. at 325. In addition, this court affirmed the entry of a default judgment where the trial court was faced with a defendant that refused to answer any requests for discovery, failed to appear at a hearing on a motion to compel discovery, and refused to appear for trial. See National Front Page, 350 Ark. at 294.
In this case, as in all discovery cases, the trial court was in a superior position to judge the actions and motives of the parties, and this court will not second guess the trial court in the instant case. See Calandro, supra. We hold that the trial court did not abuse its discretion in imposing discovery sanctions against Axley and SCN.
Affirmed.
The other named defendants were The Herbal Healer Academy, Inc., Marijah McCain, the Natural Path Massage Clinic, and Robert Maki, LMT. None of these defendants are parties to the instant appeal.
These practices included the following: facilitating or permitting persons not licensed to practice medicine to engage in clinical trials involving invasive medical techniques; engaging in clinical trials or procedures that involve invasive medical techniques outside of Axley’s scope of practice; disseminating documents or certificates stating that the holder is a naturopathic doctor or “N.D.”; facilitating or permitting unlicensed persons to hold themselves out as being able to suggest, recommend, prescribe, or administer forms of treatment or healing; offering medical or other services or selling any medical product or service while using the title “doctor of naturopathy” or “naturopathic physician”; and entering into or forming any legal structure for the purpose of avoiding compliance with the terms of the injunction.
“Iridology” involves the study of the iris of the eye, “especially as associated with disease.” Tlte American Heritage College Dictionary 717 (3d ed. 1997). Chelation involves the “remov[al] of heavy metals from the bloodstream by means of a chelate, such as BDTA.” Id. at 239.
Oriental medicine is defined as a “distinct system of primary health care with the goal of prevention, cure, or correction of any illness, injury, pain, or other physical or mental condition by controlling and regulating the flow and balance of energy and functioning of the person to restore and maintain health. Oriental medicine includes all traditional and modern diagnostic, prescriptive and therapeutic methods utilized by practitioners of acupuncture and oriental medicine world wide.” Rules and Regulations of the Arkansas State Board of Acupuncture & Related Techniques, Title I.B. | [
84,
-22,
29,
-68,
8,
-63,
112,
30,
81,
-117,
101,
19,
-81,
-64,
-107,
11,
-95,
47,
80,
73,
-9,
-74,
67,
96,
66,
-5,
75,
-57,
49,
111,
-28,
-67,
73,
-80,
-54,
85,
-62,
74,
-55,
-104,
-114,
9,
-101,
-27,
121,
-57,
36,
-94,
-46,
79,
113,
-106,
-95,
36,
89,
79,
104,
108,
91,
-83,
73,
-79,
24,
5,
109,
4,
-109,
37,
25,
-123,
-50,
44,
-104,
-95,
10,
-8,
114,
-90,
31,
21,
15,
-39,
-128,
102,
99,
-94,
56,
-27,
-116,
-84,
111,
62,
29,
6,
-110,
73,
98,
9,
-105,
53,
118,
80,
15,
124,
35,
-36,
22,
120,
37,
-114,
-108,
-79,
-123,
-96,
-108,
1,
-9,
103,
-112,
81,
69,
118,
-43,
70,
50,
26,
14,
-105
] |
Donald L. Corbin, Justice.
At issue in this case is the propriety of a trial court’s order regarding attorneys’ fees. In Butt v. The Evans Law Firm, P.A., 351 Ark. 566, 98 S.W.3d 1 (2003), this court reversed the trial court’s award of attorneys’ fees and remanded the matter to the circuit court. On appeal, the Appellant Springdale School District No. 50 argues that the trial court erred in ordering it to pay an additional $280,974.00 in attorneys’ fees to Appellees The Evans Law Firm, P.A., and Hirsch Law Firm, P.A. As this is a subsequent appeal, ourjurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(7). Because the trial court erred in modifying the award of attorneys’ fees where there was no proper plaintiff before it, we reverse and dismiss this case.
It is unnecessary for us to recite the detailed facts set forth in Butt I. Some procedural background leading up to that case will be helpful, though. In 1997, a series of illegal-exaction lawsuits were filed in Washington County, Arkansas. These separate lawsuits were eventually consolidated, but settlement of each separate lawsuit was ultimately reached between the respective class representatives and the taxing units. Each settlement addressed the issue of attorneys’ fees to be paid to class counsel. Thereafter, William Jackson Butt, acting on his own behalf and on behalf of 3,019 taxpayers, appealed the award of attorneys’ fees to this court.
In Butt I, this court determined that Mr. Butt was the only proper Appellant, as he had timely intervened on the issue of attorneys’ fees, and the 3,019 taxpayers were dismissed from the appeal. This court then addressed the issue of “what is a ‘reasonable part of the recovery of the class members’ to be apportioned as attorneys’ fees.” Id. at 585, 98 S.W.3d 12. In reaching this issue, this court reversed the order of the circuit court awarding Appellees attorneys’ fees based on the settlement pool. This court then remanded the matter to the circuit court with instructions that the court determine the appropriate amount of attorneys’ fees based on the amount of the actual recovery of illegally paid taxes. In remanding, this court further noted that the issue of the fees that had been voluntarily paid was moot; thus, only the fees owed by the Springdale School District were at issue on remand. This court also noted that the issue of whether Mr. Butt had standing to challenge the fees paid by the Springdale School District was to be decided by the trial court.
Once remanded, a hearing was held on October 31, 2003. At that hearing, Lee Ann Kizzar, Washington County Assessor, testified. According to Ms. Kizzar, Mr. Butt owned property in both the Fayetteville and West Fork School Districts but owned no property in the Springdale School District. Ms. Kizzar also testified that her records indicated that her office refunded $1,635,838.01 to Washington County taxpayers. According to her, the amount of the payments were ascertained by using a formula set out in the Settlement Agreements. She elaborated that the amount paid out by her office was the amount claimed by the taxpayers reduced by the amount of attorneys’ fees paid, as well as administrative expenses.
Appellee Marshall Dale Evans also testified about his experience in negotiating the settlement agreements, including the one with the District. In that agreement, the parties agreed that the maximum amount to be paid out by the District would be $5,000,000. Evans further explained that it was understood that not all monies available for refund would be claimed thus neces sitating the need for a multiplier formula to determine the appropriate refund amounts. Evans then explained that the total amount owed by the District was $2,265,071.28, an amount which includes costs paid as well as the attorney’s fees. According to Evans, this court awarded counsel a fee of twenty-five percent, of which half had already been paid by the District. Evans then opined that when he multiplied twelve-and-one-half percent by the total amount owed by the District, the sum equaled $283,133.91 in remaining attorneys’ fees owed to Appellees.
At the conclusion of the hearing, the trial court announced several findings from the bench. First, he opined that Mr. Butt lacked standing on remand but determined that the lack of standing was irrelevant in light of this court’s opinion in Butt I. The trial court then stated that he agreed with Appellees’ position that a reasonable award of attorneys’ fees was $283,133.91. These findings were included in a written order filed on February 3, 2004. This appeal followed.
There is a threshold issue involving standing that must be resolved before this court can reach the merits of the propriety of the award of attorneys’ fees. The District argues that the trial court erred in ruling that Mr. Butt had no standing on remand, but further notes that the issue is irrelevant because, as the trial court ruled, the opinion of this court in Butt I is law of the case and is binding on all parties. Appellees counter that the trial court correctly determined that Butt had no standing on remand. Additionally, they cross-appeal the trial court’s modification of the attorneys’ fee award, arguing not only did Mr. Butt lack standing on remand, but he also lacked standing to pursue the appeal in Butt I and, thus, the trial court erred in applying the doctrine of law of the case to the issue of Butt’s standing. In their reply to the cross-appeal, the District counters that Butt appealed the award of the attorneys’ fees on behalf of the class and because this court remanded the whole case, the issue of Butt’s standing was resolved.
Appellees are correct that the trial court erred in modifying the award of attorneys’ fees, despite this court’s analysis in Butt I, but their logic supporting that conclusion is erroneous. In sum, once the trial court determined that Butt had no standing on remand, the case should have ended. As explained below, it was error for the trial court to proceed in this case with the District unofficially substituting itself as the plaintiff.
In Butt I, this court stated:
We note on this point that class counsel question Mr. Butt’s standing to contest attorneys’ fees paid by the Springdale School District, but we leave that issue for the circuit court to resolve.
Id. at 591, 98 S.W.3d at 16.
During the hearing in this matter on remand, Appellees argued that Butt had no standing. The trial court stated in response:
I tend to agree with you on that, and I’ve read your briefs. I’m not making a final ruling, and I’ll give Charlie a chance to respond, but I don’t think — and he’s not here today, but I think it’s pretty clear he doesn’t have any financial interests in this matter, and I don’t think at this point has any standing. But I can’t tell that it matters. He filed the appeal, the Supreme Court took his appeal, and they wrote an Opinion, and they remanded it back to me with regard to the Springdale School District. And the law that they stated is the law of the case independent of whether Mr. Butt is here or not. I mean, it’s just the law of the case.
Later, in his actual findings, the trial court stated from the bench that Butt did not have any standing on the remand portion of this case. Despite this determination, the trial court concluded that it was obligated by the doctrine of law of the case to determine the appropriate amount of attorneys’ fees to be awarded to Appellees.
We begin our analysis by reviewing our general rules on the issue of standing. This court has held that a person must have suffered an injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994). Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them. Chapman v. Bevilacqua, 344 Ark. 262, 42 S.W.3d 378 (2001). Moreover, our courts have recognized the concept of “standing to appeal.” See Arkansas State Hwy. Comm’n v. Perrin, 240 Ark. 302, 399 S.W.2d 287 (1966); see also First Natal Bank v. Yancey, 36 Ark. App. 224, 826 S.W.2d 287 (1991). Only a party aggrieved by the court’s order can appeal that order. Beard v. Beard, 207 Ark. 863, 183 S.W.2d 44 (1944).
We are convinced that the trial court correctly determined that Mr. Butt lacked standing on remand. The evidence demonstrated that Mr. Butt owned no property and thus was not a taxpayer in the Springdale School District. He was simply not aggrieved by this court’s decision that the fee award to be paid by the District was in error. A determination that he lacked standing on remand does not equate, however, with a conclusion that he lacked standing in Butt I, as Appellees now argue. In that case, this court specifically stated:
We deny the motion to dismiss with regard to Mr. Butt, who did specifically intervene on the issue of attorneys’ fees before the circuit court and, thus, is not subject to the Haberman decision. Furthermore, we conclude that Mr. Butt does have a financial interest in this matter because he has a pecuniary interest affected by the circuit court’s disposition of the attorneys’-fees issue. See In Re: $3, 166, 199, 337 Ark. 74, 987 S.W.2d 663 (1999). Therefore,he has standing to appeal. See id.
351 Ark. at 578, 98 S.W.3d at 7. In light of our clear holding on this issue, it would have been error for the trial court to determine that Mr. Butt lacked standing in the prior appeal.
Having so determined, our analysis must then focus on the question of how the trial court proceeded on the issue of attorneys’ fees on remand after it properly determined Mr. Butt, as the only remaining plaintiff, lacked standing at that point. This issue is made more confusing by an examination of the record which reveals that Mr. Butt withdrew from participation in this case on remand.
The record reflects that immediately after the case was remanded by this court, Appellees filed a motion to dismiss. Therein, Appellees alleged that Mr. Butt lacked standing to pursue this matter on remand and requested that the court decline to further address the issue of attorneys’ fees. Moreover, in their supporting brief, Appellees argued that the District never participated in the appeal and, as such, was precluded from doing so now. The District filed a response to the motion to dismiss, claiming that it was allowed to participate on remand because it is the entity that would be required to pay the fees. The District also argued that its agreement with Appellees concerning the payment of attorneys’ fees was now void because it would require the payment of fees deemed illegal by this court. Despite Appellees’ objection to the District’s participation, the trial court allowed the District to proceed on remand. In its final order, the trial court summarily overruled Appellees’ objection on this point. We must now determine if the District was a proper party on remand, thus, providing the trial court with an opportunity to revisit the issue of attorneys’ fees and subsequently modify them.
In deciding this issue, we first note that the District asserts no argument regarding the issue of whether it was entitled to participate in this action on remand. Instead, the District argues that the trial court erred in ruling that Mr. Butt lacked standing on remand. In their cross-appeal, Appellees argue that the District lacked standing to participate on remand as it never appealed the award of attorneys’ fees. According to Appellees, the District’s standing would necessarily be premised on Mr. Butt’s standing, and since Mr. Butt had no standing, neither did the District.
With regard to the District’s arguments that Mr. Butt had standing, we note that the District cannot pursue the standing of another party. See Boyle v. A.W.A, Inc., 319 Ark. 390, 892 S.W.2d 242 (1995); Insurance From CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992). In the latter case, this court noted that “[¡judgments, though erroneous as to parties who do not appeal, will not be reversed upon the appeal of a party as to whom there is no error.” Id. at 610, 839 S.W.2d at 202 (citing Mann v. State, 37 Ark. 405 (1881)). Moreover, a party who does not appeal from an order of the trial court cannot benefit on remand. See Scott v. State, 230 Ark. 766, 326 S.W.2d 812 (1959) (holding that this court will not disturb a trial court’s order for errors committed against a party who does not appeal that order). It is well settled that a party cannot appeal the claim of another party. Falbo v. Howard, 271 Ark. 100, 607 S.W.2d 369 (1980).
Finally, we disagree with the District’s contention that Appellees’ argument regarding standing raised in their cross-appeal is moot. On this point, the District contends that this court clearly “decided the circuit court had the power to hear the issue of the amount of attorneys’ fees owed by the District by this Court’s remand of the matter over the objection of class counsel and Mr. Butt himself.” As previously stated, this court determined that Mr. Butt had standing to pursue the initial appeal but specifically left to the trial court a determination of his standing on remand. Thus, our review of the trial court’s determination of standing is not now barred by law of the case. See First Commercial Bank, N.A. v. Walker, 333 Ark. 100, 969 S.W.2d 146, cert. denied, 525 U.S. 965 (1998).
In sum, we are not persuaded by the District’s argument that our ruling in Butt I would constitute an advisory opinion if we accept Appellees’ argument that Butt lacked standing and the trial court erred in modifying the award of attorneys’ fees. It is clear from our opinion in the preceding appeal that the trial court, as a threshold issue, was to determine whether or not Mr. Butt had standing on remand. Such was a factual determination properly left to the discretion of the trier of fact. If the trial court had determined that Mr. Butt had standing, then it was obligated to follow our mandate regarding the proper method for ascertaining attorneys’ fees. However, once the trial court determined that Mr. Butt had no standing on remand, the case should have ended, as there was no remaining party to pursue the issue on remand. Accordingly, we affirm the trial court’s determination that Mr. Butt lacked standing but reverse and dismiss its modification of the attorneys’ fee award. Because we are dismissing this case, the cross-appeal is moot.
Reversed and dismissed.
Glaze and Gunter, JJ., not participating. | [
-48,
-8,
-28,
108,
8,
-32,
26,
-97,
89,
-93,
35,
83,
-17,
-49,
17,
33,
-93,
-103,
113,
106,
86,
-73,
115,
96,
-124,
-77,
41,
-57,
-71,
79,
-27,
-33,
70,
56,
-30,
-43,
70,
67,
-25,
80,
78,
2,
-101,
100,
121,
71,
48,
37,
22,
67,
49,
-116,
-77,
42,
21,
67,
76,
44,
-97,
42,
81,
-109,
-102,
15,
95,
5,
-79,
-74,
-102,
-126,
-40,
44,
-104,
57,
2,
-24,
115,
-90,
2,
85,
73,
-103,
12,
104,
100,
17,
41,
-49,
-72,
-88,
14,
-65,
45,
-90,
-101,
89,
91,
13,
-74,
-97,
114,
20,
7,
-6,
-15,
-51,
29,
44,
-127,
-50,
-44,
-77,
-82,
100,
-36,
3,
-17,
7,
16,
101,
-120,
-30,
92,
78,
58,
-101,
30,
-43
] |
LARRY D. VAUGHT, Judge
It This appeal arises from the circuit court’s February 25, 2016 order terminating the parental rights of Jill McGaugh to G.C. (born 4-20-12) and A.M. (born 8-26-14). Pursuant to Linker-Flores v. Arkansas Department of Human Services, 859 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6—9(i) (2016), McGaugh’s counsel has filed a motion to be relieved and a no-merit brief asserting that there are no issues of arguable merit to support an appeal. Counsel’s brief contains an abstract and addendum of the proceedings below, ^discusses the adverse rulings, and explains that there is no meritorious ground for reversal. See Linker-Flores, supra, Ark; Sup. Ct. R. 6-9(i). We affirm the order terminating McGaugh’s parental rights and grant counsel’s motion to withdraw.
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App. 715, at 2, 451 S.W.3d 231, 233. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9—27—341(b)(3)(B), (b)(3)(A) (Repl. 2015); Harbin, 2014 Ark. App. 715, at 2, 451 S.W.3d at 233.
We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, at 6, 396 S.W.3d 272, 276. The grounds for termination of parental rights must be proved by clear and convincing evidence, which is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, at 2. When the burden- of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. 356, at 7.
IsArkansas Supreme Court Rule 6-9(i)(l) allows counsel for an appellant in a termination case to file a no-merit petition and motion to withdraw if, after studying the record and researching the law, counsel determines that the appellant has no meritorious basis for appeal, The petition must include an argument section that “shall list all adverse rulings to the appellant made by the circuit court on all objections, motions, and requests made by the party at the hearing from which the appeal arose and explain why each adverse ruling is not a meritorious ground for reversal.” Ark. Sup. Ct. R. 6-9(i)(l)(A). Additionally, the petition’s abstract and addendum “shall contain all rulings adverse to the appellant” made by the circuit court at the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-9(i)(l)(B). Here, counsel explains in her no-merit brief that any argument challenging the statutory grounds .for termination or the circuit court’s best-interest finding, would be wholly frivolous. She also explains that there was only one other adverse ruling— the circuit court’s denial of a motion for continuance—and that there is no meritorious ground for reversal on that ruling.
After exercising a hold on the children and placing them in foster care, on November 18, 2014, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect. The accompanying affidavit stated that on August 27, 2014, DHS received a report that McGaugh had tested positive for opiates following the birth of A.M. and that she had admitted metham-phetamme use throughout her pregnancy. A child-protective-services case was opened on the family. On November 11, 2014, DHS representatives made a weekly visit to McGaugh’s home and were informed by her parents, Marilyn Newton and Alvin McGaugh, that McGaugh had been incarcerated the day before and that they would not be able to care for the children after December 1, 2014. Marilyn stated |4that McGaugh had been abusing methamphetamine in the past months, threatening them, and vandalizing their home. They also admitted that they had been covering for her when DHS had attempted to locate her or provide services. Two days later, when DHS representatives interviewed McGaugh in the detention center, she reported that she did not know how long she would be incarcerated and that she believed her parents would care for her children. DHS representatives returned to McGaugh’s parents the following day, and they confirmed that they would not be willing to care for G.C. and A.M.
On November 18, 2014, the court entered an ex parte order for emergency custody. In a December 30, 2014 order, the circuit court found probable cause that the emergency conditions necessitating G.C. and A.M.’s removal from McGaugh’s custody continued and that it was contrary to their welfare to be returned home. The juveniles were adjudicated dependent-neglected on March 16, 2015, due to McGaugh’s incarceration with no appropriate persons willing to provide for their care and custody; their mother’s drug use while pregnant with A.M.; and her sentence to seven years’ imprisonment on December 1, 2014. The circuit court noted that McGaugh’s parents had changed their mind about caring for the children; however, the court did not authorize placement with them due to concerns about Marilyn Newton’s criminal history, child maltreatment, drug abuse, lack of income, and lack of adequate space for the children. At a June 2015 review hearing, the circuit court found that DHS had made reasonable efforts to provide services and that McGaugh had not complied with the case plan or the court’s orders. The goal of the case continued to be reunification.
DHS filed the petition for termination of parental rights on July 6,-2015. The petition set forth three.statutory grounds for terminating parental rights applicable to McGaugh: (1) Uother factors, or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s .circumstances that prevent the placement of the juvenile in the custody of the parent; (2) the parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile’s life; and (3) the parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to have subjected any juvenile to aggravated circumstances. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(U), (viii), (i&)(a)(8)(A). The petition also alleged that termination of parental rights was in the juveniles’ best interest.
At the termination hearing held on February 2, 2016, DHS caseworker Alexis Lampkins testified that except for attending one parenting class, McGaugh had completely failed to comply with the case plan and had not reached the goal of reunification. She stated that during the period of time in which McGaugh was not incarcerated, September-November 2015, the department scheduled a drug-and-alcohol assessment, a psychological evaluation, and counseling; however, McGaugh had failed to attend the appointments. Lampkins added that McGaugh had failed to secure stable housing and employment, she had missed several visits with the children, she had failed to maintain contact with DHS, and she had failed to support the children.
LDHS adoption specialist Lisa Forte testified that G.C. and A.M. are adoptable and that there were several adoptive, placements for the children. -Linda Larey, a CASA volunteer, stated that G.C. and A.M. were thriving in their foster placements. In recommending termination, La-rey said that the children had been in foster care for over one year—most of A.M.’s life—and that they needed a permanent placement.
McGaugh testified that DHS became involved with her family in August 2014 when she tested positive for drugs following the birth of A.M. She said that her children were removed from her custody in November 2014 when she was incarcerated for a probation violation and was sentenced to seven years’ imprisonment. She conceded that she did not complete any services while, incarcerated. She stated that she was released from prison in September 2015 and was aware that she was required to comply with the DHS case plan. She said that she completed parenting classes and visited her children, but she conceded that she did not attend the psychological evaluation or counseling.
McGaugh further testified that she was currently incarcerated for another probation violation and that she had been incarcerated twelve of the past fifteen months. She stated that she expected to be released on March 22, 2016, and had no housing (but for her plan to live in a halfway house), no employment, and no transportation. While admitting to past drug addictions, which included opiates, methamphetamine, and marijuana, she tes tified that drug screens performed by her probation officer since being released in September 2015 were negative.
On February 26, 2016, the circuit court entered an order granting DHS’s petition to terminate McGaugh’s parental rights. The circuit court found that six grounds supported ^termination: (1) Ark. Code Ann. § 9—27—341(b)(3) (B) (i) —the failure-to-remedy ground; (2) Ark. Code Ann. § 9—27—341(b)(3)(B)(ii) C—the failure-to-provide-significant-support ground; (3) Ark. Code Ann. § 9-27-341(b)(3)(B)(iv)— the abandonment ground; (4) the other-factors ground; (5) the sentenced-in-a-criminal-proeeeding ground; and (6) the aggravated-circumstances ground. The circuit court further found that it was in the best interest of the children to terminate McGaugh’s parental rights. The court specifically considered the testimony of the adoption specialist and the potential harm to the health and safety of the children caused by returning them to McGaugh.
At the onset of her argument, counsel points out that the circuit court found that DHS had proved six grounds supporting termination despite the fact that DHS alleged only three grounds in its petition. In Jackson v. Arkansas Department of Human Services, 2013 Ark. App. 411, at 6-7, 429 S.W.3d 276, we held that the circuit court’s reliance on a ground not pled in DHS’s termination petition of father’s parental rights was clearly erroneous. This is not a meritorious ground for reversal, however, because only one ground need be proved to support termination, Sims v. Arkansas Department of Human Services, 2015 Ark. App. 137, at 7, and the circuit court found that DHS proved, by clear and convincing evidence, all three grounds alleged in the termination petition.
Counsel continues by adequately explaining why the circuit court did not clearly err in finding that the aggravated-circumstances ground supported termination. McGaugh testified that she was well aware of the requirements of the case plan, yet she failed to complete any of it. She said that she had been incarcerated twelve of the past fifteen months and three times in the last three years. On one occasion, she was imprisoned for violating her probation only | sthree months after having been released because she had failed to report to her probation officer. She was incarcerated at the time of the termination hearing for another probation violation-failing to provide an address to her probation officer. She said that she expected to be released from prison in March 2016, yet she had no housing, employment, or transportation arranged or available. While imprisoned, she failed to complete services. During the short periods of release from prison, McGaugh failed to obtain stable housing, employment, or transportation. She failed to attend scheduled counseling, a psychological evaluation, and a drug-and-alcohol assessment; she missed visits with her children; she attended only one parenting class; and she failed to maintain contact with DHS.
In sum, this evidence demonstrates that McGaugh has consistently failed to follow the rules of her probation and to follow the requirements of her case plan. A parent’s past behavior is often a good indicator of future behavior. Harbin, 2014 Ark. App. 715, at 2, 451 S.W.3d at 232. Accordingly, we hold that clear and convincing evidence supports the circuit court’s finding of aggravated circumstances; specifically, that there was little likelihood that services to McGaugh would result in successful reunification.
Counsel further argues that it would be frivolous to challenge the circuit court’s best-interest finding. We agree. There was testimony from an adoption specialist that G.C. and A.M. are adoptable. The children have spent fifteen months in DHS . care; they are thriving in foster care; McGaugh has been incarcerated twelve of the past fifteen months; she has no plan for housing, employment, or transportation upon her release, whenever that may be; and based on her history, there is a question as to how long her release will last. In determining potential harm, which is forward-looking, the court may consider past behavior as a predictor of likely 19potential harm should the child be returned to the parent’s care and custody. Harbin, 2014 Ark. App. 715, at 2-3, 451 S.W.3d at 233. Therefore, we hold that the circuit court’s finding that termination of McGaugh’s parental rights were in her children’s best interest is not clearly erroneous.
The only other adverse ruling was the circuit court’s denial of McGaugh’s motion for continuance of the February 2, 2016 termination hearing. McGaugh’s counsel argued that a continuance was necessary because McGaugh expected to be released from prison on March 22, 2016, and needed additional time to complete the case plan. In denying the motion, the circuit court found that the hearing had been continued twice and that the court had the responsibility to try these cases within a certain amount of time.
A motion for continuance should be granted only upon a showing of good cause. Martin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 407, at 4, 465 S.W.3d 881, 883. We will not reverse a denial of a motion for continuance absent an abuse of discretion amounting to denial of justice. Id., 465 S.W.3d at 883. Lack of diligence by the moving party is a sufficient reason to deny a motion for continuance. Id., 465 S.W.3d at 883-84. Additionally, we will not reverse absent a showing of prejudice from the denial of the motion for continuance. Id., 465 S.W.3d at 883-84.
Here, the circuit court did not abuse its discretion, and McGaugh cannot demonstrate prejudice. McGaugh did not request the continuance until the beginning of the termination hearing, which demonstrated a lack of diligence sufficient to support the denial. Id. at 4, 465 S.W.3d at 884-85. Moreover, the record reflects that the circuit court had already granted two continuances to McGaugh. Finally, there was no prejudice because McGaugh’s past behavior | ^indicated that, even if the court allowed a continuance until she was released from prison, she was not likely to follow through with all of the' steps necessary for reunification. Id., 465 S.W.3d at 885. Therefore, we hold that the circuit court did not abuse its discretion in denying the motion for continuance.
Based on our de novo review of all the relevant evidence and our examination of the record and the brief before us, we conclude that the circuit court did not clearly err in terminating. McGaugh’s parental rights to G.C. and A.M. We therefore affirm the order of termination and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
Hixson and Brown, JJ., agree.
. The order also terminates the parental rights of Ferrell Collins, the legal father of G.C., and Marcus Leslie, the putative father of A.M. Collins and Leslie are not parties to this appeal.
. The clerk of this, court attempted to deliver to McGaugh, by certified mail, a packet with a copy of her attorney’s motion and brief, along with a letter informing her of her right to file pro se points for reversal in the case. The packet, sent to McGaugh’s last-known address, was not delivered or returned to the clerk’s office. The clerk attempted to deliver the packet a second time, and the certified packet was returned to the clerk’s office marked "Return to sender, unable to forward.” No pro se points have been filed.
. "Aggravated circumstances” means a determination has been made or is made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i). | [
-79,
-18,
-12,
108,
42,
-31,
90,
60,
83,
-37,
99,
83,
-17,
-30,
21,
121,
-61,
47,
65,
41,
-45,
-77,
87,
64,
120,
-14,
-71,
-45,
-73,
79,
100,
84,
76,
120,
-54,
-43,
66,
-54,
-17,
80,
-86,
3,
41,
121,
88,
-50,
56,
51,
26,
15,
49,
-66,
-93,
40,
25,
-54,
-84,
78,
95,
61,
72,
-72,
-101,
15,
-33,
22,
-95,
116,
-102,
-62,
80,
59,
24,
56,
9,
-24,
50,
-74,
-114,
96,
75,
25,
8,
117,
-17,
-127,
24,
-25,
-71,
-120,
110,
-116,
-103,
-26,
-40,
105,
3,
1,
-73,
-80,
68,
-108,
13,
120,
98,
-115,
54,
-20,
8,
-113,
-42,
-91,
22,
-55,
92,
19,
-21,
-29,
52,
117,
-51,
-32,
84,
-57,
59,
-39,
-50,
-46
] |
Tom Glaze, Justice.
Appellant Judy Davis brings this appeal after the circuit judge held a hearing and entered an order dismissingjudy’s petition for order of protection entered in case number DR 2003-5841. Judy’s petition was filed pursuant to the State’s Domestic Abuse Act, codified at Ark. Code Ann. § 9-15-101 to -216 (Repl. 2003). The circuit judge initially issued an ex parte temporary order of protection on November 5, 2003, which would have expired on December 4, 2003. However, at a hearing held on December 4, 2003, the judge dismissed the domestic abuse case, number DR 2003-5841, because her husband, appellee Tony Davis, had sued Judy for divorce in a separate case, number DR 2003-6143, in which, on November 26, 2003, the judge had already issued a restraining order enjoining both Judy and Tony “from doing, attempting to do, or threatening to do, any act injuring, mistreating, molesting, or harassing the adverse party, or any of the children of the parties.”
In this appeal, Judy raises the following issues:
(1) Did the circuit court misapply the state’s Domestic Abuse Act by dismissingjudy’s petition for an order of protection just because a mutual restraining order had been entered in the parties’ divorce case?
(2) Did the dismissal of Judy’s petition for a protection order run contrary to the legislative intent of the Domestic Abuse Act in case number DR2003-5841, because of the mutual restraining order entered in the divorce case number DR2003-6143?
(3) Does the reconciliation of the parties render the above two issues moot?
In our attempt to consider and decide the issues raised on appeal, we are met with considerable difficulty because of the inadequate and confusing record filed in this appeal. At the December 4, 2003, hearing below, in the domestic abuse case number DR 2003-5841, Judy appeared without counsel and Tony appeared with an attorney; however, Judy was the only witness who testified. At the end of Judy’s testimony, the judge stated she would dismiss Judy’s domestic abuse case and the parties could pursue the dispute in their divorce suit. The judge entered an order dismissing Judy’s domestic abuse suit on the same day of the hearing, December 4, 2003. At that hearing, Judy testified that Tony had abused her since 1990, and he recently threatened to beat, choke, and kill her. Judy said that she had prior problems with Tony in 1996 and 1997, but the parties had reconciled.
Judy’s testimony at the hearing then led to the custody and visitation problems regarding the parties’ four children; two of their children had been born prior to the Davises’ marriage in 1994, and two were born during their marriage. Judy testified that the children were living mostly with Tony at his parents’ home, and Tony would let her see the children from time to time, but added, “half the time he would not bring the children after he had set a time and place for her to see them.” Tony’s attorney countered that Tony had not seen the children since October 2003, to which the judge remarked, “That’s why you need to set ... a temporary hearing [in the divorce proceeding].”
After listening to Judy’s testimony and Tony’s attorney’s comments, the circuit judge suggested that the questions concerning custody, visitation, and paternity would have to be worked out in a divorce or separate maintenance action. After Tony’s attorney told the judge that Tony had already filed a divorce action, the judge then pointed out to Judy and Tony that they were protected by a mutual restraining order entered in the divorce action which “binds both” parties wherever they may be. The judge then stated the existing restraining order in the divorce case was actually “better” than the domestic abuse order, so what the judge would probably do was to “fold” the domestic abuse action into the divorce case.
The judge then informed Judy that she needed an attorney and that she should request a temporary hearing to be set in the divorce action. Judy said, “OK,” and Tony’s attorney said, “I understand.” The judge admonished Judy and Tony that they did not need to be around each other and the “true cause of action” for them was one for divorce, whereby the court could fully address all issues, the divorce, paternity, custody, visitation, child support, and abuse, if any. At the hearing’s end, the judge invited Judy to get a hearing set and again advised Judy that she would need an attorney. At the judge’s urging, the parties quickly asked for a temporary hearing date in the divorce case, DR 2003-6143, and a hearing was set for December 17 — only thirteen days after the December 4th hearing on Judy’s petition for a protective order.
The record now before us in this appeal does not reflect anything further regarding the divorce action or what occurred on December 17th. The two separate cases were apparently not formally consolidated at the trial level, although it does appear that the circuit court expressed to the parties that they should seek their relief in the divorce case. It is also clear that the cases were not consolidated in this appeal, nor is there a record of the divorce case in this appeal. If and when the divorce occurred is not shown in the record.
The major hurdles to our reaching and resolving the three issues Judy argues on appeal are that neither Judy nor Tony objected below to anything the circuit court did. In fact, both parties agreed to pursue their paternity, custody, visitation, and restraining order issues in their divorce case, and, as already discussed, the parties obtained a prompt temporary hearing date of December 17, 2003, in the divorce case for such purposes. Judy’s objection to the circuit judge’s dismissal of Judy’s domestic abuse action was asserted only after she obtained attorneys who raised these issues and arguments for the first time on appeal. See Collins v. Collins, 347 Ark. 240, 61 S.W.3d 818 (2002).
This appeal is a one-brief case with Tony making no appearance with counsel or filing a responsive brief/ Only now, Judy offers an argument that relief and protections are available to the abused party in an order of protection under the State’s domestic abuse statute that are not available through the mutual restraining order entered by the circuit court in the divorce case. While this may be true, this issue and argument were not posed to the judge, nor was Tony permitted to testify to rebut Judy’s charges, since the parties agreed with, or at the very least acquiesced in, the judge’s direction for them to pursue their several and various differences in their divorce suit.
Citing Smith v. Campbell, 71 Ark. App. 23, 26 S.W.3d 139 (2000), Judy argues further that a court’s erroneous interpretation of the law manifests an abuse of discretion, and contends that is what happened here. See also Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000). Once again, however, Judy made no such argument to the judge; in addition, as already mentioned, the parties had a number of marital issues to resolve, and the judge concluded that these matters could best be addressed in the divorce case that was pending at the same time as Judy’s petition for a protection order.
Confronted with these facts and the dual actions pending, it is not at all clear that the judge abused her discretion by taking the parties’ collective marital problems and directing Judy and Tony to resolve them in the divorce proceeding. In accordance with the judge’s instructions, the parties obtained a temporary hearing in the divorce case for December 17, 2003, which was only thirteen days after the December 4, 2003, hearing held in the domestic abuse proceeding.
Because the issues raised by Judy in this appeal have not been preserved, we must affirm.
Imber, J., concurs.
Brown, J., dissents.
Gunter, J., not participating.
Among other things, Judy argues that anyone who violates a mutual restraining order is subject only to penalties for civil contempt which are less than the penalties provided by the domestic abuse statutes, and the judge misinterpreted and misapplied the statute. Again, Judy did not raise that argument below. | [
-111,
-32,
-44,
-52,
14,
-31,
-70,
-92,
-30,
-125,
-13,
-45,
-17,
106,
25,
109,
-6,
121,
113,
121,
-6,
-89,
21,
66,
118,
-37,
24,
-43,
-89,
78,
-28,
54,
72,
112,
-120,
-47,
6,
-32,
-51,
20,
78,
-127,
-29,
-19,
89,
-54,
48,
51,
88,
15,
53,
14,
-29,
45,
56,
65,
40,
104,
91,
101,
-14,
24,
-113,
23,
126,
34,
-77,
36,
30,
37,
-8,
111,
-104,
56,
0,
-86,
50,
-106,
-126,
116,
79,
-39,
9,
112,
114,
2,
-128,
-17,
-40,
-88,
-81,
52,
-97,
38,
-38,
41,
105,
46,
-74,
-71,
117,
-44,
-81,
-2,
111,
-51,
95,
108,
6,
-114,
-108,
-69,
5,
120,
-68,
-117,
-21,
-77,
16,
49,
-59,
-32,
92,
67,
51,
-39,
-50,
-106
] |
Robert L. Brown, Justice.
Appellant Marrio Terrell oDednam appeals from his judgment of conviction for capital murder and his sentence to life imprisonment without parole. His sole allegation of error is that the circuit court erred in allowing a police detective to testify to statements made to her by the murder victim with respect to another case, which allegedly constituted a motive for Dednam’s acts. We find no reversible error, and we affirm the judgment and sentence.
The facts, which are garnered from the testimony at trial, are these. On December 4, 2002, Dednam and his friend, Willie Davis, contacted Alissa “Lisa” Jackson and asked her to call her friend Jerry Otis, the victim in this case. Lisa was instructed to tell Otis that she wanted to meet him at a trailer park in southwest Little Rock. Otis agreed and had his friend, Herman Stevenson, drive him to the rendezvous spot. Upon arriving, Stevenson drove his car down the dead-end street in the park and saw Lisa Jackson. He reached the end of the road, turned around, and pulled his car up to Ms. Jackson. Otis got out of the passenger-side front seat of Stevenson’s vehicle and began to enter the car’s back seat on the passenger side so that Ms. Jackson could get in the front seat. As he was getting in the back seat of the car, he was fatally shot in the right side of the head. Dednam was arrested for the crime and charged with capital murder.
At the ensuing jury trial, the State sought to prove that Dednam’s motive in the killing was to silence Otis for the benefit of Dednam’s cousin, Antoine Baker, who was in jail at the time due to a crime allegedly perpetrated against Otis. Baker had allegedly tried to rob Otis some months earlier, and Otis was the prosecuting witness against him. To establish motive, the State put on proof that earlier on the day of December 4, 2002, the date of Otis’s murder, Dednam had visited Baker in the Pulaski County Jail. In addition, both Stevenson and Ms. Jackson identified Dednam at the trial as Otis’s murderer. Dednam was convicted of premeditated and deliberate capital murder and sentenced to life imprisonment without parole.
Dednam argues on appeal that this case is governed by the United States Supreme Court’s decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), which he claims stands for the proposition that formal statements given by a declarant in the course of a police interrogation of the declarant are testimonial in nature and not admissible. He claims that Crawford is directly on point for purposes of the instant case in that in this case, the circuit court permitted the State to introduce statements made to a police detective by the victim, Otis, which served as the probable cause to arrest Antoine Baker. Dednam asks this court to apply Crawford retroactively and asserts that Otis’s out-of-court statements to the police detective were admitted to establish the truth of the matter asserted therein, which was that Baker robbed Otis. He maintains that without Otis’s statements, which provided the motive for the crime, the State’s proof of Dednam’s guilt consisted solely of the uncorroborated identification testimony of Stevenson and Jackson. He claims that the erroneous admission of this evidence could not be considered harmless, because the jury’s consideration of Otis’s statements describing the robbery by Baker influenced the jury’s finding of Dednam’s guilt for the capital murder.
This court has been constant and adamant that matters pertaining to the admissibility of evidence are left to the sound discretion of the circuit court. See, e.g., Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001). Moreover, we will not reverse a circuit court’s ruling on a hearsay question unless the appellant can show that the circuit court abused its discretion. See id.
At issue in the case before us is the testimony of Detective Lynda Keel of the Little Rock Police Department. She was called as a witness for the State at trial and testified that Antoine Baker was arrested on November 26, 2002, on an aggravated-robbery warrant. Upon further questioning by the prosecutor, Detective Keel continued:
Prosecutor: And what caused that warrant to be issued?
Detective Keel: On August the 5th, 2002, there was [an] aggravated robbery reported where Jerry Otis was the victim, and I consequently, about five days later, interviewed him, showed a photo spread. He knew the initials of the suspect and the name and I showed a photo spread.
At that time, defense counsel objected on the grounds that anything Otis said to Detective Keel constituted hearsay and violated Dednam’s Sixth Amendment right to confront and cross-examine a witness against him, as well as his due-process rights under both the United States and Arkansas Constitutions. The State responded that it was not offering Detective Keel’s testimony as evidence that Baker did in fact commit aggravated robbery or for the truth of the matter asserted but, instead, was offering it to show that Otis made the statements, true or not true, and that as a result, Baker was arrested and charged. The circuit court overruled Dednam’s objection.
Later in Detective Keel’s testimony, the following, and most pertinent, colloquy occurred:
Prosecutor: You said that Jerry Otis made a report that Antoine Baker robbed him. Tell the jury briefly what he said that Antoine Baker did to him.
Defense Counsel: May we approach?
(Conference at the bench, out of the hearing of the jury, as follows:)
Defense Counsel: What Jerry Otis said is hearsay, and there is no exception that fits. This denies us our right to confront and cross-examine witnesses under the U.S. Constitution’s Sixth Amendment and the due process clause of both Constitutions, Arkansas and U.S.
Prosecutor: This is the same objection counsel made a moment ago, and I had the same response. This is not the trial of Antoine Baker, and we are certainly not offering this evidence as proof that Antoine Baker did, in fact, commit this crime. That would be for another trial and another place, but simply that Jerry Otis made these statements, true or not true, and Antoine Baker was arrested because of these statements. And so they are not being offered for the truth of the matter asserted. They are not hearsay, and the Court should admit those statements.
Defense Counsel: I would also argue to the Court that this would be confusing to the jury about the issues in this case.
The Court: Okay. I will overrule it, but I think you have already — all right.
(Return to open court.)
Prosecutor: Just summarize what this aggravated robbery case was.
Detective Keel: Jerry Otis went to an address on Crenshaw to visit a female friend. When he arrived at that address, he was confronted by several subjects outside who pointed a gun at him, made him undress and took his clothes from him, $500 in cash and then fired shots at him.
Prosecutor: And this was Antoine Baker?
Detective Keel: Yes. He identified Antoine Baker.
Prosecutor: And as a result of statements Jerry Otis made to you, what did you do in response?
Detective Keel: Had a warrant issued.
Dednam relies on the United State’s Supreme Court decision in Crawford v. Washington, supra, as his primary authority. In that case, the petitioner, Michael Crawford, was accused of stabbing Kenneth Lee, who had allegedly tried to rape Crawford’s wife, Sylvia. Following Crawford’s arrest, he and his wife gave statements to police officers regarding the stabbing, and Crawford was charged with the crime. At his trial, Crawford asserted self-defense, and Sylvia did not testify because of the state’s marital privilege which prohibited a spouse from testifying without the other spouse’s consent. The prosecutor attempted to refute Crawford’s defense using a tape recording of Sylvia’s statement to police officers in which she stated that she did not see anything in Lee’s hand at the time Crawford attacked him. The Washington State Court of Appeals reversed Crawford’s conviction and held that Sylvia’s statement lacked any indicia of reliability, as required by Ohio v. Roberts, 448 U.S. 56 (1980). The Washington Supreme Court, however, reinstated the conviction and held that while the statement did not fall within a firmly-rooted hearsay exception, it did possess guarantees of trustworthiness. The United States Supreme Court granted certiorari to determine whether the State’s use of Sylvia’s statement violated Crawford’s confrontation-clause rights.
The United States Supreme Court reversed the decision of the Washington Supreme Court. The Court noted that the principal evil at which the clause was directed was the use of ex parte examinations as evidence against an accused and added that the framers of the United States Constitution would not have allowed the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. The Court further said that “[statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” 124 S. Ct. at 1364. It concluded that where testimonial evidence is at issue, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 1374. The Court added with respect to Crawford:
In this case, the State admitted Sylvia’s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.
Id.
In order for Crawford to apply in the instant case, Otis’s statements to Detective Keel must in fact constitute testimonial hearsay. The Arkansas Rules of Evidence define 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.” Ark. R. Evid. 801(c) (2004). With respect to an out-of-court statement, however, this court has held that it is not hearsay under Rule 801(c), where the statement is offered to show the basis for the witness’s actions. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Furthermore, we have held that out-of-court statements are not hearsay if they are not offered for the truth of the matter asserted in the statement. See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). Statements may be admissible to show they were made, however, as opposed to showing the truth of the matter asserted. See Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981).
In Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994), this court examined Martin’s contention that the circuit court erred in allowing a police officer to testify regarding information he received from an alleged informant on the basis that the information was inadmissible hearsay. The police officer’s testimony consisted of his explanation of how he learned that the suspect in an aggravated robbery “left the store in a dark blue, dirty, Ford pickup, with the driver’s window covered with plastic rather than glass.” 316 Ark. at 723, 875 S.W.2d at 85-86. The police officer further explained that in reliance on the information, he broadcast a description of the truck to other police units in the area and that another sergeant was alerted that a truck he had seen matched the description of the robber’s vehicle, causing another police officer to be on the lookout for it. While not addressing Martin’s constitutional arguments because they were not raised below, this court, on appeal, did conclude that the statements were not hearsay:
An out-of-court statement is not hearsay if it is offered to show the basis of action. Ark. R.Evid. 801(c); Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). Officer Otis’s testimony was given in order to explain why Sergeant Bailey instructed [Officer] Zeke to locate the truck and determine the identity of the driver and why Martin’s photograph was placed in a lineup to show to the victim. See Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987). Because his testimony was provided in order to show the “basis of action,” we hold that the trial court did not err in overruling Martin’s hearsay objection.
Id., 875 S.W.2d at 86.
In the case at hand, Otis’s statements to Detective Keel were not introduced to establish the truth of the matter asserted regarding Baker’s crime against Otis, but, instead, were introduced to demonstrate Otis’s connection to Baker and, thus, Dednam’s connection to Otis. As evidenced from Detective Keel’s testimony, she relayed the information that she received from Otis and the actions she took based upon that information, which were to secure a warrant for Baker’s arrest. As the statements were presented to establish the basis for her actions in obtaining an arrest warrant for Baker and not the truth of whether Baker actually robbed Otis, which was a separate crime, we hold that Otis’s statements to Detective Keel did not constitute hearsay.
We recognize that there is no question but that Detective Keel’s testimony was helpful in establishing Dednam’s motive for the crime. The State’s theory in the instant case was that Dednam killed Otis as a favor to Baker, perhaps either in retaliation for identifying Baker as the one who robbed him or to eliminate the testimony of the victim of Baker’s alleged crime. While the state is not required to prove motive, this court has held that the state is entitled to introduce evidence showing all circumstances which either explain the act, show a motive for acting, or illustrate the accused’s state of mind. See Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). But even so, establishing motive does not equate to proving the truth of whether Otis was robbed or not. Where a statement is admitted for a legitimate, non-hearsay purpose, that is, not to prove the truth of the assertions therein, the statement is not hearsay under the traditional rules of evidence and the non-hearsay aspect raises no confrontation-clause concerns. See Tennessee v. Street, 471 U.S. 409 (1985) (holding that Street’s confrontation-clause rights were not violated by the introduction into evidence of an accomplice’s confession for the non-hearsay purpose of rebutting Street’s testimony that his confession was coercively derived from the accomplice’s statement) (cited by the Supreme Court in Crawford v. Washington, supra, for the proposition that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted).
Dednam argues further that the admission of the statements by Otis to Detective Keel violated his rights under the Confrontation Clause. This too is a meritless argument. In Crawford v. Washington, supra, the Court noted that “[t]he [Confrontation] Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” 124 S. Ct. at 1369, n.9. While Otis’s statements to Detective Keel may have been testimonial in nature, they were admitted to demonstrate the basis of Detective Keel’s actions in seeking an arrest warrant for Baker, whom Dednam subsequently visited in jail the night of Otis’s murder, and further to establish motive, and not to prove that Baker actually robbed Otis. Because the statements were not admitted for the truth of the matter asserted, cross-examination was not required to test their veracity. Hence, the statements are not barred by the Confrontation Clause. See Tennessee v. Street, supra.
Because we affirm on the basis that the circuit court did not abuse its discretion in admitting Detective Keel’s testimony, we need not address the State’s alternative argument of harmless error.
The record in this case has been reviewed for other reversible error pursuant to Supreme Court Rule 4-3 (h), and none has been found.
Affirmed.
Gunter, J., not participating.
At the time, Davis was Jackson’s boyfriend. | [
80,
-20,
-35,
-65,
59,
96,
10,
-110,
114,
-127,
100,
-13,
47,
-53,
16,
57,
-79,
125,
84,
105,
-44,
-121,
6,
97,
-14,
-77,
82,
-44,
-78,
-51,
-2,
-3,
72,
112,
74,
73,
102,
72,
117,
-40,
-50,
-118,
-119,
96,
67,
82,
52,
46,
76,
14,
-27,
-114,
-118,
42,
26,
-50,
105,
44,
75,
-83,
80,
113,
0,
39,
-51,
20,
-93,
-90,
-101,
7,
-8,
44,
-40,
57,
0,
120,
50,
-124,
-126,
68,
107,
-103,
60,
102,
-14,
0,
25,
109,
-88,
-120,
47,
126,
-107,
-89,
24,
65,
9,
109,
-105,
-3,
75,
85,
12,
-4,
114,
68,
81,
104,
33,
-34,
-76,
-111,
-51,
63,
-106,
-21,
-21,
5,
50,
117,
-49,
-30,
92,
71,
113,
-69,
-105,
-76
] |
Per Curiam.
Appellant Arthur E. Dickerson a/k/a Bolden was convicted of first-degree murder in the Sebastian County Circuit Court and sentenced to life imprisonment. He was represented at trial by two public defenders, Ben Beland and John Joplin. Recently, we issued a per curiam opinion granting Joplin’s motion to withdraw as counsel on appeal, on the ground that he is a full-time public defender with a full-time state-salaried secretary and is thus ineligible to receive compensation for appellate work. See Dickerson v. State, 360 Ark. 305, 200 S.W.3d 899 (2005). We declined to appoint substitute counsel at that time, however, as we noted that Beland remained attorney of record and had not filed a motion to withdraw.
Since our order, Joplin has filed a motion on behalf of Beland, asking that Beland also be relieved as counsel on appeal. The motion reflects that Beland left the public defender’s office as of December 31, 2004, following his election as Fort Smith District Judge. We grant the motion and appoint J. Brent Standridge to represent Appellant in this case. Our clerk is directed to set a new briefing schedule for this appeal.
It is so ordered. | [
-76,
-24,
-27,
28,
26,
96,
26,
56,
83,
-5,
-12,
81,
-31,
30,
0,
121,
-69,
47,
85,
121,
-59,
-74,
118,
73,
66,
-45,
-71,
-44,
-78,
78,
-12,
-98,
76,
112,
-54,
85,
70,
104,
-57,
20,
-114,
1,
105,
-19,
-37,
-125,
48,
97,
16,
15,
53,
30,
-77,
46,
27,
107,
-56,
44,
89,
39,
88,
-111,
-118,
-121,
93,
21,
-93,
-108,
-104,
71,
88,
42,
-104,
49,
9,
-8,
55,
38,
-122,
84,
79,
121,
44,
98,
96,
2,
120,
-1,
-92,
-128,
31,
-66,
29,
-26,
-38,
57,
-37,
45,
-106,
-97,
123,
52,
15,
-4,
102,
-51,
17,
44,
13,
-50,
-108,
-111,
63,
57,
-122,
-53,
-21,
1,
96,
113,
-116,
-30,
92,
-42,
51,
-37,
-126,
-12
] |
DAVID M. GLOVER, Judge
_JjThis appeal and cross-appeal arise from an October 17, 2014 order entered by the White County Circuit Court in a pending probate case involving the estate of Freddie Hyde, who is deceased. Appellant Michelle Treat is the Executrix of his estate. The pertinent issues before the trial court were whether certain real property located in Pulaski County was properly part of Mr. Hyde’s estate, and whether Mr. Hyde’s change of beneficiary on his life-insurance policy to his son, Jason Scott Hyde, was effective, entitling Jason to the life insurance proceeds. The trial court concluded the real property was not part of the estate because the trustee’s deed was null and void, thereby leaving the property in a family trust, but that Jason Hyde was entitled to his father’s life-insurance proceeds-as beneficiary of'the policy. In -her direct appeal, ‘ the executrix contends the trial court erred in ruling that the September 12, 2013 trustee’s deed was null and void. On cross-appeal, Freddie’s widow, 12Jerry, contends 1) the trial court erred in not finding the change of beneficiary on the life insurancé policy violated the trial court’s restraining order, and 2) the change of beneficiary violated Mr. Hyde’s duties as trustee of the family trust; ’We reverse on direct appeal and affirm on cross-appeal.
Jerry and Freddie Hyde married in 1980. They both had children from other marriages, but no children were born of their marriage. On June 23, 2008, they executed .the Hyde- Family Revocable Trust. At the time, they deeded their marital home to the trust and placed other marital assets into the trust. The trust was subsequently amended' to address concerns that are not pertinent to this appeal.
On August 19, 2013, Mrs. Hyde filed a complaint for separate maintenance in the Pulaski County Circuit Court. In contemplation of the divorce action, she transferred several hundred thousand dollars from joint bank accounts, including at least one account that was held in the trust, and put those funds in her personal name to the exclusion of Mr. Hyde. On August 21, 2013, the Pulaski County Circuit Court issued its standard restraining order. On September 12, 2013, Mr. Hyde executed and filed a trustee’s. deed purporting to convey to himself, as an individual, the marital home then held by the trust. On September 18, 2013, Mr. Hyde filed for divorce.
On February 23, 20Í4, Mr. Hyde died while the divorce action was pending. Mr. Hyde was living in White County at the time, and his will was admitted to probate in the White County Circuit Court. On March 14, 2014, as part of the probate proceedings, Mrs. Hyde filed her objection to the appointment of personal representative and several [amotions for relief, asking the court, inter alia, to set aside the trustee’s deed and to set aside the change-in-beneficiary designation on the New York Life insurance policy.
On July 16, 2014, a hearing was held on Mrs. Hyde’s objections and requests for relief. At that hearing, the trial court heard testimony from the attorney who had drafted the trust documents and from Mrs. Hyde. Following tee hearing, the trial court entered its order, portions of which are the subject of this appeal and cross-appeal.
As her sole point on direct appeal, the executrix contends that the trial court erred in concluding that the September 12, 2013 trustee’s deed, conveying the marital home to Mr. Hyde, individually, was null and void. We agree.
.The cardinal rule,in.construing a trust instrument is that the intention of the settlor must be ascertained. Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004). In construing a trust, we apply the same rules applicable to the construction of wills. Id. The paramount principle in the interpretation of wills is that the intent of the testator (or the set- tlor, in the case of a trust) governs. Id. This intention is to be determined by viewing the four corners of the instrument, considering the language used, -and giving meaning to all of its provisions, whenever possible. Id. This court will construe the words and sentences used in a will or trust in their ordinary sense in order to arrive at- the testator’s true intention. Id. In order to determine the intentions of the testator, consideration must be given to every part of the will, Id. Extrinsic evidence may be received on the issue of the testator’s intent only if the terms of the will are ambiguous. Id. The determination of whether there is an ambiguity is a matter of law. Id. Absent a finding of ambiguity by the court, testimony about the | ¿settlor's intent should not be considered. Id. Collateral evidence will be considered only when there is uncertainty about the testator’s intentions from looking at the language of the instrument. Thinn v. Parks, 79 Ark. App. 20, 83 S.W.3d 430 (2002). Absent a finding of ambiguity by the court, a witness’s testimoiiy about his or her understanding of the settlor’s intent, including -the attorney who drafted the trust, should not be ■ considered. Id.
In' support of her position, the- executrix cites Arkansas Codé Annotated section 28-73-815(a)(l) and (a)(2), explaining that under that section, a trustee may exercise all powers conferred by the trust’s terms over all trust property. She then relies upon pertinent portions of the trust in arguing that Mr. Hyde had the power'under the terms of the trust to execute the trustee’s deed and convey the marital home to himself.
Trust Provisions
The executrix relies upon the following trust provisions to support her .argument:
•1,04 ■ Grantor Ownership. Interests. Unless noted otherwise on an attached schedule -(to be denoted as Exhibit “A”) with the character ascribed thereto, the property comprising the -original Trust and any other property subsequently transferred to the Trust will be treated as if each Grantor has an undivided one-half (½) interest therein. Any interest received by a Grantor that is disproportionate and received from the other Grantor will be considered a gift from one Grantor to the other. All trust income payable or principal amount distributable to either of them will have the same character as the property producing the income.
(Emphasis added.) Exhibit “A” to the trust — Grantor Ownership Interest Schedule — provides as follows:
The following property shall be deemed to be owned 100% by Grantor Freddie E. Hyde’s- Separate Share of the Hyde Family Revocable Trust, and upon the death of- Freddie E. Hyde, provided Jerry L. Hyde survives Freddie E. Hyde (...) | K100% of said property shall be distributed ⅛ accordance with the terms and conditions of Section 2.05:
1, Lot 8, Block 1, Chevaux Court, ... Phase 2, an Addition to the City of Little Rock, Pulaski County, Arkansas,
The introductory portion of Article II and section 2.01 of the trust provide that:
[t]he Trustee will hold,'■ manage, • invest and reinvest the assets of the Trust, collect the income thereof, and will dispose of the net income and principal pursuant to the terms and conditions as hereinafter set forth in this Article II.
2.01 Income and Principal Distributions. During the lifetime of each Grantor, the Trustee shall pay to each Grantor his or her entire respective share of the annual net in come of the Trust on demand. In addition, during the joint lifetimes of the Grantors, each Grantor may at any time during his or her lifetime withdraw all or any part of the income and principal of his or her interest, free of trust, by delivering an instrument in writing duly signed by him or her to the Trustee describing the property or portion thereof desired to be withdrawn. Upon receipt of any such withdrawal request, the Trustee shall thereupon convey and deliver to the withdrawing Grantor, free of trust, the property described in the instrument.
The introductory portion of Article III and section 3.03 of the trust provides as follows:
Except as otherwise provided below, the Trustee(s) will have the following powers with respect to the Trust and any trust created hereunder, to be exercised as the Trustee(s), in his/her/its sole discretion, and without approval of any court determines to be in the best interests of the beneficiaries:
3.03 To sell any property of the Trust for cash or on credit at public or private sale, to exchange any property of the Trust for other property, to grant options to purchase or acquire any property of the Trust and to determine the prices and terms of sales, exchanges and options.
Section 5.01 (amended in 2010) provides in pertinent part:
|fi5.01 Trustees. The Grantors, Freddie E. Hyde and Jerry L. Hyde, shall serve as the initial Trustees of this Revocable Trust. While Freddie and Jerry are both able and willing, they shall serve jointly and severally and either shall have full authority for the Trust without the consent, notice, or joinder of the other, to act independently in performing transactions on behalf of the Trust. This authority shall extend to all powers granted to the Trustees under the Trustees Powers hereof and shall include the right to contract for and in behalf of the Trust and to execute, negotiate, and compromise such instruments as may be necessary to carry out the purposes and intents of the Trust.
The October 17, 2014, Order
In the portion of the order dealing with the trustee’s deed, the trial court summarized relevant paragraphs, reasoning as follows:
6. Section 1.04 of the trust provided that, unless noted otherwise, property transferred to the Trust will be treated as if each Grantor had a one-half (½) interest therein.
7. The Hyde Family Revocable Trust provided that Jerry L. Hyde and Freddie E. Hyde were collectively the Trustee of the Hyde Family Revocable Trust.
8. Section 2.01 of the Trust provides that during the joint lifetime of the Grantors, each Grantor may at any time during his or her lifetime withdraw all or any part of the income and principal of his or her interest, free of Trust, by delivering an instrument in writing duly signed by him or her to the Trustee describing the property or portion thereof withdrawn.
9. Section 2.01 of the Trust requires that upon receipt of any such withdrawal request, the Trustee shall thereupon convey and deliver to the ■ withdrawing Grantor, free of Trust, the property described in the instrument.
10. Freddie E.. Hyde never delivered an instrument in writing duly signed by him to the Trustee describing the real estate referred to in paragraph 5 hereinabove nor any interest in said real property as property to be withdrawn from the Hyde Family Revocable Trust.
11. The Trustee never conveyed any interest in the real property described in paragraph 5 hereinabove to Freddie E. Hyde.
1712. The deed titled, Trustee’s Deed, dated September 12, 2013, and recorded on September 12, 2013, was executed not by the Trustee, but only by Freddie E. Hyde. At the time Freddie E. Hyde executed the deed the real property was an asset of the Hyde Family Revocable Trust. The deed is null and void. The real estate is an asset of the Hyde Family Revocable Trust,
The executrix challenges the trial court’s order by arguing that: 1) Section 5.01 contradicts the trial court’s finding that Jerry and Freddie were collectively the Trustee; 2) Section 1.04 and Schedule A support the position that Jerry did not have only a one-half interest in the house; and 3) the trustee’s deed constitutes the required written instrument described in Section 2.01 that was delivered from the grantor of the trust (Freddie), to the trustee (Freddie),-requesting 100% withdrawal of the real estate in question. We conclude that many of her challenges are valid. .
It is undisputed the trust was created for estate-planning purposes. However, while the trial court did not specifically determine that pertinent language within the trust was ambiguous, we can infer it did because the court allowed testimony both from the attorney who drafted the document and from Mrs. Hyde concerning the grantors’ intent. Such extrinsic evidence should not be considered absent a finding of ambiguity. Bailey, supra. Regardless, our review of the four corners of the trust instrument convinces us that the trust is ambiguous concerning the Hydes’ intent-with respect to pertinent provisions. Furthermore, our review of the trust instrument and the extrinsic evidence presented to the trial court convinces us that the trial court erred in concluding that the trustee’s deed was null and void. .
|sWe begin'with paragraph 6 of the October 17, 2014 order in which the trial court summarized section 1.04 as providing that property transferred to the trust was to be treated as if each grantor had a one-half (½) interest therein. Although - paragraph 6 mentions “unless noted otherwise,” the order never addresses Exhibit A to the trust. As we have previously set forth in the pertinent trust provisions, Exhibit A “noted otherwise.” Specifically, Exhibit A provided the real property at issue here-“shall be deemed to be owned 100% by Grantor Freddie E. Hyde’s Separate Share of the Hyde Family Revocable Trust[.]”
Paragraph 7 of the trial ¡court’s order provides -that Mr. - and Mrs. Hyde were “collectively” the Trustee, i.e.,- they had to act in concert. - There is language in the trust that definitely supports this finding. However, in examining the four corners of the trust instrument, we have also found language indicating the parties intended for each of themto be able to act separately and independently. -For example, the introductory paragraph preceding section 3.03 of the trust contains language that the “Trustee(s)” will have powers to be exercised “as the Trustee(s), in his/her/its sole discretion.” ’ Section 3.03-provides that one of those powers is to.“sell any property of the Trust for . cash or on. credit at publie or private sale[.]” Similarly, section 5.01 is entitled “Trustees” and provides in part that, while able, Mr. and Mrs. Hyde
shall- serve jointly and severally and either shall have full authority for. the Trust without the consent, notice, or joinder of the other, to act independently in performing transactions on behalf of the Trust. This authority shall extend to all powers granted to the Trustees under the Trustees Powers hereof and shall include the right-to contract for and in behalf of the Trust and to execute, negotiate, , and compromise such instruments as may be necessary to curry out the purposes and intents of the Trust.
19As discussed previously, we conclude, at a minimum, that the trust language is ambiguous concerning the Hydes’ intent in this regard. Because the language is ambiguous, we turn to the testimony presented by the drafting • attorney and Mrs. Hyde, Mr. Hyde, of course, is deceased and was not available to testify.
The attorney testified hé did not believe the intent of section 5.01 was to allow one trustee to remove the property from the trust. He considered section 5.01 as specifying “how a trustee or trustees are to act with primarily ministerial type decisions, whether it required both signatures, both trustees, or if it just required one signature.” . He candidly acknowledged on cross-examination that the trustee’s powers are. addressed in Section 3 of the trust, and that section 5.01 gives either party the ability to act on behalf of the trust with regard to the trustee’s powers in Section 3; “[rleading 3.03 by itself, I guess you could make the argument.that a single trustee has the power to sell property by themselves since 3.03 says to sell any property of- the trust for cash or on credit.” He further explained he would “disagree that 5.01 deals with all of the powers of the trust, and [he] would not have just one trustee sign.”
Mrs. Hyde’s testimony is perhaps the most revealing regarding the' Hydes’ intent. She, too, candidly acknowledged that after she had filed her complaint for separate maintenance and “[i]n contemplation of the divorce action, [she] actually secured hundreds of thousands of dollars from bank accounts that were jointly owned by [her and her husband, including] one account that was in the name of the trust, and put them in [her] own -personal name,” | staking them “to the exclusion of [her] husband.” She clearly thought that the terms of the; trust entitled her to do so.
Our review of the trust instrument and the extrinsic evidence presented to .the trial court convinces us that, under section 5.01, Mr. Hyde, severally, had “full authority for the Trust without the consent, notice, or joinder of the ■ other, to act independently in performing transactions on behalf of the Trust,” including “the right to contract for and .in behalf of the Trust and to execute,, negotiate, and compromise such instruments as may be necessary to carry out the purposes and intents of the Trust”; that pursuant to section 3.03, he had the power to “sell any property of the Trust for cash or on credit at public or private sale....”; and that pursuant to Exhibit A of the trust, he was. deemed to own 100% of the property at issue here.
We also conclude section 2.01 of the trust does not provide an avenue to affirm the trial court because it provides that “each Grantor may at any time during his or her lifetime withdraw all or any part of the income and principal .of his or her interest,' free of trust, by delivering an instrument in writing duly signed by him or. her to the Trustee describing the property or portion thereof desired to be with drawn.” This section of the trust does not provide a right of refusal. The trust language provides, “[u]pon receipt of any such withdrawal request, the Trustee shall thereupon convey and deliver to the withdrawing Grantor, free of trust, the property described in the instrument.” Paragraphs 10, 11, and 12 of the October 17, 2014 order are based upon the trial court’s determination that the Hydes had to act collectively as one trustee. Because we reach a different conclusion based on our l^review of the trust instrument and the testimony, we find error in the trial court’s conclusion that the trustee’s deed executed by Mr. Hyde was null and void.
We reverse the trial court’s conclusion in that regard, and conclude instead that the trustee’s deed was valid arid transferred the real property out of the trust and to Mr. Hyde, individually, making that property part of his estate. For the same reason, because we conclude that the trust instrument authorized Mr. Hyde to execute the trustee’s deed in the manner that he did, we find no violation of his fiduciary duties under the trust. Furthermore, we agree with the executrix that a contempt proceeding would have been the appropriate action to take by Mrs. Hyde if she wanted to rely upon the restraining order in challenging Mr. Hyde’s actions.
The cross-appeal by Mrs. Hyde challenges the trial court’s ruling with respect to the life-insurance policy, contending 1) that the trial court erred in not finding the change of beneficiary to violate the trial court’s restraining order, and 2) that the trial court erred in not finding the change of beneficiary violated Mr. Hyde’s duties as trustee. We find no error.
The October 17, 2014 order provided in pertinent part:
18. Freddie E. Hyde purchased New York Life Insurance Policy No. ... on his life prior to June 23, 2008. He changed the policy beneficiary on June 28,2008, to the Hyde Family Revocable Trust, Freddie E. Hyde and . Jerry L. Hyde, Co-trustees, or successors. Ownership of this policy was never placed in the Hyde Family Revocable Trust. Ownership of the policy remained in Freddie E. Hyde at the time of his death.
14. Freddie E. Hyde and Jerry L. Hyde remained husband and wife until the death of Freddie E. Hyde on February 28, 2014.
15. Freddie E. Hyde, subsequent to June 23, 2008, designated his son, Jason Scott Hyde, as beneficiary of the New York Life Insurance policy.
11⅞16. Jason Scott Hyde, as beneficiary of the New York Life Insurance Policy, is entitled to all policy proceeds of New York Life Insurance Policy No....
The pertinent portion of the restraining order provides that:
[e]ach party is hereby enjoined and restrained from selling, encumbering, mortgaging, contracting to sell, or otherwise disposing of, or removing from the jurisdiction of this Court, any of the property belonging to the parties, except-in the ordinary course of business, or except by agreement of the parties, or except by the further Orders of the Court.
Ownership of the life insurance policy was never placed in the trust; instead, its ownership remained in Mr. Hyde at the time of his death, and he retained the power to change the beneficiary of the policy. There was no vested interest in the proceeds of the life insurance policy as long as Mr. Hyde was alive. Dinwiddie v. Metro politan Life Ins. Co., 204 Ark. 677, 163 S.W.2d 625 (1942). Consequently, as owner of the policy, he had the power to change the beneficiary, and, in doing so, he did not dispose of any property belonging “to the parties,” he did not violate the terras of the restraining order, and he did not violate his fiduciary duties as trustee.
Reversed on direct appeal; affirmed cross-appeal.
Whiteaker and Brown, JJ., agree. | [
-12,
108,
-36,
12,
-70,
-32,
58,
35,
67,
-29,
55,
115,
63,
-30,
20,
41,
112,
79,
101,
105,
-45,
-77,
23,
33,
-46,
-77,
-7,
95,
-75,
-33,
-27,
-33,
76,
32,
-86,
85,
66,
-50,
-19,
88,
-124,
2,
106,
100,
89,
65,
60,
-17,
86,
13,
85,
-98,
-77,
45,
22,
-50,
76,
44,
89,
-72,
88,
-96,
-117,
5,
123,
3,
1,
4,
-40,
11,
120,
106,
-104,
17,
8,
-23,
115,
54,
22,
100,
75,
27,
73,
102,
-30,
16,
1,
-1,
-71,
-104,
14,
126,
11,
-90,
-14,
121,
97,
11,
-83,
31,
120,
20,
79,
-4,
-18,
-116,
73,
108,
-92,
-49,
-106,
-127,
-87,
-16,
-112,
2,
-25,
9,
-80,
81,
-53,
-30,
119,
-25,
57,
-5,
-34,
-14
] |
RITA-W. GRUBER, Judge
11 This appeal arises out of a mineral-rights dispute. Mountain Piné Timber, Inc. (MPT), sold land located in Cleburne County, Arkansas, to Bruce Smith and Jan Smith (the- Smiths) and claimed to convey all rights to the land to them. However, MPT had previously conveyed the mineral rights to the land to another entity. The Smiths learned of the previous conveyance when they attempted to sell the mineral rights. Following this discovery, the Smiths sued MPT and its former shareholders for breach of warranty of title. The result was a $250.22 jury verdict in the Smiths’ favor. This appeal followed.
I, Facts
In 1987, the Smiths purchased two tracts of land from MPT. MPT was an Arkansas corporation owned by Joe Benton, Russell Benton (the Bentons), and .Danny Snowden. On February 12, 1987, the Smiths agreed to purchase 130.22 acres of land from MPT. |2They paid for the land over time and eventually obtained a warranty deed to the land on April 22, 1993. On March 27, 1987, the Smiths purchased an additional 120 acres from MPT; they paid for the land immediately and were given a warranty deed to the land on that date. Neither deed contained a reservation or exception of minerals.
Prior to the execution of these warranty deeds, MPT conveyed the minerals underlying both tracts of land to CenArk Oil and Gas Company (CenArk). CenArk was also owned by the Bentons and Danny Snow-den. In 2008, the Smiths contracted to sell the mineral rights to both tracts of land for $1,500 per acre. It was at this time that the Smiths discovered the prior mineral deed from MPT to CenArk. Because of the prior deed, the Smiths were unable to effectuate their sale of the mineral rights.
In October 2010, the Smiths initiated this ■ litigation against MPT suing it for breach of warranty of title. MPT responded by filing a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6) arguing that the statute of limitations had expired on the Smiths’ claim. The circuit CQurt denied MPT’s motion to dismiss finding that the breach occurred at the time of constructive eviction and concluding that the statute of limitations did not bar this action.
During the pendency of the litigation, the Smiths learned that MPT was a dissolved corporation. Upon this discovery, they amended their complaint to add the Bentons and the Estate of Danny Snow-den, the former shareholders of MPT, as parties.
As the litigation progressed, the Smiths filed a motion to determine the measure of damages applicable to their claim for breach of warranty of title. The Smiths argued that |stheir damages should be based on the value of the minerals at the time of constructive eviction, while the Bentons and the Estate of Danny Snowden argued that damages should be based on the value of the minerals at the time of conveyance'"' but limited to the purchase price. The circuit court ultimately found in favor of the Bentons and Danny Snow-den’s estate on this issue.
The case proceeded to a jury trial on November 6, 2014. At trial, the circuit court precluded the Smiths from presenting evidence of the value of the mineral rights at the time of constructive eviction and limited the proof to the value of the minerals at the time of conveyance. The jury returned verdicts in favor of the Smiths against all defendants, but awarded only $1 per acre in damages for a total of $250.22. A judgment reflecting the verdicts was entered on January 8, 201'5. The Smiths filed a timely notice of appeal. The Bentons and the Estate of Snowden each fñed a timely notice of cross-appeal.
II. The Direct Appeal
The Smiths raise three points in this appeal: (1) that the circuit court erred in adopting a measure of damages for their breach-of-warranty-of-title claim that limited damages to the value of the mineral rights at the time of conveyance, (2) that the circuit court erred in rejecting their proffered jury instructions on damages, and (3) that the circuit court erred in excluding evidence proffered by them regarding the value of the property at the time of constructive eviction. Our primary consideration is whether the circuit court utilized the proper measure of damages for the Smiths’ breach-of-warranty-of-title claim. The answer to this question is determinative of all of the issues in the Smiths’ appeal.
14A. The Proper Measure of Damages
outlines the general standard for the measure of damages in these types of cases. The Belleville case stands for the proposition that “the measure of damages would be the value of the mineral rights or whatever the vendor did not have the right to convey.” Id. As we endeavor to analyze when the mineral rights are to be valued for the purpose of assessing damages, we note that if there is a total failure of title, the damages are equal to the purchase money, with interest. Carvill v. Jacks, 43 Ark. 439 (1884). “Nothing can be allowed for improvements and the increased valúe of the land.” Id. If a total failure of title can only result in damages equal to the amount used to purchase the land, it stands to reason that a partial breach could not result in damages greater than the purchase price. Arkansas case law supports this theory. Where title to only a portion of the land conveyed fails, the measure of damages “is so much of the Belleville Land & Lumber Co, v. Griffith, 177 Ark. 170, 6 S.W.2d 36 (1928), consideration paid as is proportioned to the value, of the land lost, with interest.” Lane v. Stitt, 143 Ark. 27, 219 S.W. 340 (1920) (citing Alexander v. Bridgford, 59 Ark. 195, .27 S.W. 69 (1894)). Therefore, damages for breach of warranty of title are to be calculated based on the value of the -mineral rights at the time of the conveyance.
The Smiths make an alternate argument in favor of measuring damages from the time of constructive' eviction. They assert that in cases where a grantor knows that he or she does not own the land the grant- or is selling, the grantee is entitled to the value of the land at the time of eviction. In support of this proposition, they cite Clark v. Zeigler, 79 Ala. 346 (1885) and Sietsema v. Anderson, 188 Iowa 651, 176 N.W. 611 (1920), At best, these decisions from other jurisdictions are only persuasive authority, and we decline to adopt an | ¿exception to the general rule limiting damages for breach of warranty of title to the value of the property at the time of conveyance.
Accordingly, we hold that the circuit court did not err in adopting a measure of damages for the Smiths’ breach-of-warranty-of-title claim that limited their damages to the value of the mineral rights at the time of conveyance. With this standard in mind, we easily dispose of the Smiths’ remaining points on appeal.
B. The Proffered Jury Instructions
The Smiths argue that the circuit court erred in its refusal to give two jury instructions on the measure of damages. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Williams v. First Unum Life Ins. Co., 358 Ark. 224, 188 S.W.3d 908 (2004). This court should reverse a circuit court’s refus al to give a proffered jury instruction if there was an abuse of discretion. S. Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112,118 S.W.3d 525 (2003).
First, the Smiths challenge the circuit court’s refusal to'give an instruction providing that they were entitled to damages equal to the fair market value of’the minerals at the time of constructive eviction. This instruction was refused, and the circuit court selected a damages instruction limiting the Smiths’ recovery to the value of the minerals at the time of the conveyance. Following that decision, the Smiths requested that an additional'instruction be read in conjunction with this damages instruction. That proffered jury instruction provided that the Smiths were allowed to recover damages based on the value of the mineral rights at the time of constructive eviction because the sellers knew that they lfidid not own the minerals at the time of the conveyance. This instruction was also refused by the circuit court. As discussed previously, neither of these proffered instructions is a correct statement of our law on the measure of damages for breach of warranty of title.' Accordingly, we hold the circuit court did not abuse its discretion in refusing to give these instructions.
C. The Proffered Evidence
The circuit eourt also éxcluded evidence proffered by the Smiths‘regarding the value of the minerals at the time of constructive eviction. This court will not reverse a circuit court’s ruling on the admissibility of evidence absent an abuse of discretion. ■Willis v. Crumbly, 371 Ark. 517, 268 S.W.3d 288 (2007). Again, our analysis 'hinges on whether the circuit court adopted the proper measure of damages in this case. Because the circuit court adopted the proper measure of damages, it was not error to refuse to admit the proffered evidence regarding-the value of the minerals at the time of constructive eviction.
III. The Cross-Appeals
The Bentons and the Estate of Snowden both cross-appeal. The Bentons contend that the circuit court erred by denying their motions for directed verdict because (1) there was no proof that MPT’s assets were distributed to its individual shareholders during corporate liquidation, and (2) the Smiths failed to present any evidence of damages regarding the value of the mineral rights at the time of conveyance. The Estate of Snowden argues that the circuit court erred in ruling that this action was not barred by the statute of limitations.
|7A. The Bentons’ Cross-Appeal
Both of the Bentons’ points on cross-appeal pertain to whether the circuit court properly denied their motions for directed verdict. The standard of review for the denial of a motion for directed 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). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or.the other. Stewart Title Guar. Co. v. Am. Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005). In determining whether there is substantial evidence, this court “views the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered.” ConAgra Foods, Inc., supra.
As a preliminary matter, the Smiths contend that the Bentons failed .to preserve either of their points on cross-appeal. It is undisputed that at the close of the evidence in the Smiths’ case-in-chief, the Bentons made motions for directed verdict based on both points challenged on appeal. Those motions were denied. At the close of all of the evidence in the case, the Bentons simply renewed “all motions that we made at the close of [the Smiths’] case.” The Smiths contend that the Ben-tons’ failure to reiterate the grounds on which their motions for directed verdict were made precludes this court from reaching the merits of this issue. We disagree. Our supreme court has held that the renewal of motions for directed verdict was entirely sufficient to preserve the issue on appeal. Aronson v. Hamman, 321 Ark. 359,.901 S.W.2d 832 (1995).
|sWe first consider whether the circuit court erred by allowing the jury to consider whether the former shareholder^ of MPT could be liable to the Smiths for damages. Arkansas Code Annotated section 4-27-1407(d)(2)(Supp. 2015) pertains to enforcement of unknown claims against shareholders and is the statute by which the Smiths successfully sought to have personal liability imposed on the former shareholders of MPT. It applies only when “the assets [of the corporation] have been distributed in liquidation.” Ark.Code Ann. § 4-27-1407(d)(2). When liquidation occurs, enforcement of claims against an individual shareholder is permitted “to the extent of .,, the corporate assets distributed to him in liquidation.” Id.
The Bentons argue that judgment against them as individuals cannot stand because there was not substantial evidence that the assets of MPT were distributed in liquidation. The outcome of this issue depends on the meaning of the settlement agreement entered into by the former shareholders of MPT, which divided all of MPT’s property and debt between the individual shareholders. Additionally, Russell Benton testified that the settlement agreement was a division of MPT’s assets and resulted in a transfer of those assets to MPT’s- shareholders. He stated that MPT had assets of over $2 million, that Danny Snowden was a 50 percent shareholder, and that Russell and his brother Joe were 25 percent shareholders. While not specifically termed liquidation in the settlement agreement, we conclude that there was substantial evidence that, ,the settlement agreement liquidated MPT’s assets and distributed them to its individual shareholders and/or their assignees.
RNow, we turn our attention to the second argument presented by the Ben-tons. They also contend that the Smiths failed to 'present substantial evidence of their dámages and that the circuit court improperly denied their motions for directed verdict on this issue.
The Smiths were required to present some evidence of the value of the mineral rights, at the time of. conveyance. Lane, supra. The evidence reflects that the mineral fights were.worth $1 per acre at the time of the conveyance. According to the testimony of Russell Benton,. MPT sold CenArk the mineral rights for $1 per acre in 1985. In reviewing the evidence in the light most favorable to the .Smiths, we conclude that the circuit .court did not err in denying the Bentons’ motion for directed verdict on the issue of damages.
Accordingly, we .affirm on the Bentons’ cross-appeal. - ■
B. The Estate.of. Snowden’s Cross-Appeal
The -Estate of Snowden argues that the circuit court erred in ruling that the statute of limitations did not bar the Smiths’ claim. We summarily dispose of this argument. The Estate of Snowden failed to raise the statute-of-limitations issue before the circuit court. While both MPT and the Bentons filed motions to dismiss On the grounds that the statute of limitations barred this action, the Estate of Snowden did not seek a ruling from the circuit court regarding whether the statute of limitations barred the Smiths’ claim. Because the Snowden Estate did not obtain a ruling on this issue, this court is precluded from considering it on appeal. Garcia v. Estate of Duvall, 375 Ark. 520, 293 S.W.3d 389 (2009). Additionally, the Estate of Snowden’s cross-appeal can be disposed of for an alternative reason. The Estate argues to this court that the statute of limitations began to run at the time of conveyance because the land was “wild and unimproved.” Seldon v. Dudley E. Jones Co., 74 Ark. 348, 85 S.W. 778 (1905) (holding that “where the land is wild and unimproved, actual eviction is not necessary”). However, whether the land was wild and unimproved was not addressed by the circuit court. We are precluded from considering this argument on appeal. Garcia, supra.
Affirmed.
Abramson and Vaught, JJ., agree.
. The Bentons filed a motion to dismiss on the same statute-of-limitations grounds raised previously by MPT, and the circuit court again rejected this argument. | [
84,
122,
-8,
28,
13,
-32,
120,
-102,
73,
-29,
37,
83,
-17,
68,
21,
59,
-93,
63,
97,
106,
-42,
-77,
3,
98,
-46,
-77,
123,
-49,
-68,
75,
-84,
-42,
76,
52,
-54,
85,
68,
-48,
-17,
88,
78,
0,
11,
109,
73,
-112,
60,
-117,
0,
79,
113,
-98,
-14,
45,
25,
-61,
73,
46,
111,
56,
88,
-8,
-69,
4,
-1,
22,
1,
20,
-104,
-127,
72,
74,
-112,
49,
8,
-24,
115,
-78,
-58,
116,
45,
-103,
12,
36,
99,
33,
28,
-17,
-40,
-120,
14,
-6,
-99,
-90,
-30,
24,
51,
104,
-74,
-99,
124,
6,
70,
-6,
-30,
5,
28,
109,
-121,
-18,
-44,
-95,
5,
-24,
-100,
19,
-21,
-109,
50,
112,
-51,
-86,
92,
71,
51,
-113,
7,
-13
] |
Larry D. Vaught, Judge
■ h This appeal follows, a Cleburne County Circuit Court’s award of attorney’s fees, costs, postjudgment interest, and prejudgment interest to Bruce and Jan Smith (the Sihiths) in a case involving the conveyance of mineral rights. On appeal, we consider (1) whether the Smiths were the prevailing party and thus entitled to receive an award of attorney’s fees and costs; (2) whether the circuit court’s award of attorney’s fees was excessive; and (8) whether the circuit court properly awarded the Smiths prejudgment interest from the. date, of the conveyance. We affirm in part and reverse and remand in part.
Because this appeal arises out of the same circuit-court case as the .appeal in CV-15-341, we briefly recite the necessary facts. In 1987, Mountain Pine Timbér, Inc. (MPT), |g.sold two tracts of land to the Smiths and claimed to convey all rights to the land to them. ' However, upon the Smiths’ attempt to sell the mineral rights to the land to a third party in 2008, they learned that MPT had previously conveyed the mineral rights to the land to another corporation they owned. The Smiths sued MPT and its former shareholders — the Bentons and Sheila Snowden, in her capacity as the personal representative for the estate of Danny Snowden (the.Estate of Snowden), for breach of warranty of title. There were three central issues raised during the course of this litigation; namely, whether the statute of limitations barred the Smiths’ lawsuit, the proper measure of damages, and whether the former shareholders of MPT could be held personally hable. A jury ultimately awarded the Smiths damages in the amount of $250.22 on their breach-of-warranty claim. ' This figure represents an award of $1 per acre of land conveyed to the Smiths by MPT. .
’ Following the jury trial, the Smiths petitioned the’circuit court for attorney’s fees, costs, postjudgihent interest, and prejudgment interest from the date of the conveyance. After a hearing bn the petition, the circuit court awarded the Smiths $165 in costs, $17,500 in attorney’s fees, 6 percent prejudgment interest from the date of the conveyantíe, and 10 percent postjudgment interest. Both the Bentons and the Estate of Snowden -timely appealed.
I.Issues on Appeal
On appeal, the Bentons and the Estate of Snowden contend that the circuit court’s award of attorney’s fees, costs, and prejudgment interest to the Smiths was improper because |athe Smiths were not the prevailing party. Additionally, they claim that the circuit court erred in awarding the Smiths prejudgment interest from the date of the conveyance because (1) the award of prejudgment interest was not authorized by law because-the damages were not definitely ascertainable, and-(2) prejudgment interest, if authorized, was only recoverable from the date of constructive eviction. An additional argument raised solely by the Bentons is that the .award was? excessive.
II.The Prevailing Party
A threshold issue in this appeal is whether the Smiths were the prevailing party in this matter. Arkansas Code Annotated section 16-22-308 (Repl. 1999) controls the award of attorney’s fees in contract cases and provides that “the prevailing party may be allowed a reasonable attorney fee.” “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.” Harrill & Sutter, PLLC v. Kosin, 2012 Ark. 386, *10, 424 S.W.3d 272, 278 (citing CJ Bldg, Carp, 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.
The Smiths sued for breach of warranty of title and prevailed on their claim. However, the parties disputed whether the Smiths’. damages were to be calculated from the date of the conveyance or the date of constructive eviction. The Bentons and the Estate of Snowden contend that they conceded a breach of warranty of title prior to trial, that the only issue litigated was the proper measure of damages, and that they prevailed at trial | ¿because they successfully argued that the Smiths’ damages were limited to the value of the mineral rights at the time of the conveyance.
We disagree. The parties, fiercely contested several issues in this case. The Smiths successfully defended their breach-of-warranty claim against multiple motions to dismiss. Additionally, contrary to their assertion, the Bentons and the Smiths did not admit full liability. Liability was admitted only by MPT. The parties disputed the liability of MPT’s former shareholders, and the Smiths successfully held those shareholders liable for breach of warranty of title. Although the Smiths did not receive the full amount of damages they requested, they prevailed on their breach-of-warranty claim against MPT and its former shareholders. We review the circuit court’s decision for an.abuse of discretion and conclude that the circuit court did not abus'e its discretion in determining that the Smiths were the prevailing party in this action.
III.Whether the Award is Excessive
Arkansas Code Annotated section 16-22-308 authorizes a circuit court to award a reasonable attorney fee. A circuit court’s decision to grant or deny attorney’s fees, and in what amount, lies within the sound discretion of the court, and the appellate court will not reverse absent a showing of abuse of discretion. Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). The factors courts should analyze when deciding an attorney’s-fee motion are set forth in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990):
1. The experience and ability of the attorney;
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 legal services;
6. Whether the fee is fixed or contingent;
7. The time limitations imposed on the client or by 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.
Id.
The Bentons contend that the circuit court’s award of $17,500 in attorney’s fees and $165 in costs to the Smiths is excessive in light of the $250.22 judgment in their favor. In assessing the reasonableness of this award, we consider the factors enumerated in Chrisco. The Bentons take issue with the disparity between the results obtained and the fee awarded. However, the results obtained are just one factor to consider when awarding attorney’s fees. According to the circuit court, this litigation was contentious and presented novel and difficult issues that were litigated well. The circuit court clearly considered the Chrisco factors as a whole and determined that the award was appropriate. For these reasons, we conclude that the circuit court did not abuse its discretion in awarding $17,500 in attorney’s fees and $165 in costs to the Smiths.
IV. The Award of Prejudgment Interest
The Bentons and the Estate of Snowden challenge the circuit court’s award of prejudgment interest to' the Smiths. On appeal, we address whether prejudgment interest was proper and, if so, when that interest began to accrue.
The Bentons and the Estate of Snowden argue that the circuit court was not authorized to award prejudgment interest. Arkansas law provides that prejudgment interest is intended to be “compensation for recoverable damages wrongfully withheld from the time of the loss until judgment.” Dorsett v. Buffing-ton, 2013 Ark. 345, *11, 429 S,W.3d | ñ225, 232. An award of prejudgment interest “is only allowable if the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that make it possible to compute the amount without reliance on opinion or discretion.” Id. “Where conflict exists over the validity of the damages sought by the plaintiff and the fact-finder is required to use its discretion to determine the amount of damages, prejudgment interest should not be awarded.” Spann v. Lovett & Co., 2012 Ark. App. 107, *22, 389 S.W.3d 77, 94. Here, the evidence furnished data that made it possible to compute the amount of damages without reliance on opinion or discretion. The value of the mineral rights at the time of the conveyance was $1 per acre. Because the amount of damages were definitely ascertainable, we hold that the circuit court did not err in awarding prejudgment interest.
With this holding, we must also consider whether the circuit court erred in ruling that prejudgment interest was to be calculated from the date of the conveyance. Our law is well-settled that in all cases involving breach of the covenants in a deed, including breach of the covenant of warranty, interest should be awarded from the date of the breach. Dillahunty v. Little Rock & Ft. Smith Ry. Co., 59 Ark. 629, 27 S.W. 1002 (1894), see also Lynn Poster and J. Cliff McKinney, II, Deed Covenants of Title and the Preparation of Deeds: Theory, Law, and Practice in Arkansas, 34 U. Ark. Little Rock L.Rev. 53, 86 (2011).' The breach occurred when the Smiths were constructively evicted from the land,, and therefore, we reverse the circuit court’s decision to award prejudgment interest from the date of the conveyance and hold that the award of prejudgment interest should be calculated from the date of constructive eviction.
^Affirmed in part; reversed and remanded in part.
Abramson and Gruber, JJ,, agree.
. This circuit court’s judgment in this mineral-rights case is the subject of-the related appeal ha,nded down by this court today; CV-15-341.
. MPT was owned'by Joe T. Benton III, Rus- ■ sell A.. Benton (the Bentons), and Danny Snowden.
. Only the Bentons-challenge the reasonableness of the award. ■ • | [
-48,
-2,
-3,
-100,
28,
96,
58,
-70,
105,
-31,
-32,
83,
-5,
-50,
17,
43,
-32,
59,
101,
104,
70,
-77,
83,
-80,
-97,
-77,
123,
-58,
-80,
75,
-92,
-42,
76,
36,
-54,
93,
66,
-54,
-49,
-40,
78,
-128,
9,
109,
-55,
16,
56,
-61,
20,
77,
113,
-98,
-14,
44,
57,
66,
72,
46,
127,
-72,
-47,
-7,
-70,
12,
-33,
22,
17,
-41,
-88,
-126,
72,
10,
-112,
57,
8,
-56,
115,
-78,
-122,
-12,
5,
-103,
12,
46,
-29,
32,
88,
-25,
-24,
-56,
14,
-66,
31,
-121,
-46,
24,
19,
108,
-74,
-99,
124,
4,
7,
-8,
-26,
13,
28,
105,
-127,
-49,
-42,
-125,
-123,
116,
-36,
19,
-18,
-105,
50,
113,
-51,
-86,
124,
71,
113,
-97,
71,
-80
] |
PER CURIAM
| petitioner, Russell J. Berger, was found guilty by a jury of two counts of rape of a five-year-old boy, D.C., and was sentenced to two consecutive terms of life imprisonment. Berger’s conviction and sentences were affirmed on direct appeal by this court. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). Berger filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1999), which was denied by the trial court. On appeal, this court remanded the matter to the trial court for the limited purpose of obtaining from the trial court written findings of fact and conclusions of law pursuant to Rule 37.3. Berger v. State, CR-02-350, 2003 WL 649141 (Ark. Feb. 28, 2003) (unpublished per curiam). On remand, the trial court entered findings and conclusions in accordance with our order and denied relief. We affirmed. Berger v. State, CR-02-350, 2004 WL 253518 (Ark. Feb. 12, 2004) (unpublished per curiam).
laNow before us is a pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, together with a pro se motion to subpoena the transcript of the proceedings in a separate custody action because it contains testimony from the victim, D.C., and a motion to supplement information provided in the petition with the transcribed testimony from the custody action. For the reasons stated below, the petition is denied and the motions are moot.
The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, at 5, 354 S.W.3d 61, 65. In making a determination to grant such leave, we look to the reasonableness of the ¿negations in the petition and to the existence of the probability of the truth thereof. Howard v. State, 2012 Ark. 177, at 5, 403 S.W.3d 38, 43. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 406, 17 S.W.3d 87, 93 (2000). Coramnobis pro ceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4,456 S.W.3d 374, 376.
The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, at 4-5, 354 S.W.3d at 65. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56,- at 11, 425 S.W.3d 771, 777.
RThe writ is allowed only under compelling circumstances to achieve justice and to address errors- of the most fundamental nature. Id. A writ of error coram nobis is available for addressing 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. Howard, 2012 Ark. 177, at 4, 403 S.W.3d at 43.
In support of his petition for relief, Berger cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and asserts that authorities withheld evidence that D.C.’s uncle, Daniel Coker, had also been implicated in the sexuál abuse of D.C. According to Berger, in September 2015, he was contacted by a reporter for' an online newspaper, the Log Cabin Democrat. The reporter sent Berger a copy of an article published by 'that newspaper which recounted an ongoing custody battle that arose when allegations emerged that Daniel Coker had sexually abused his own children. It was diming the course of the custody hearings that additional allegations surfaced that Daniel Coker had a history of abusing his nephew, D.C. Berger attaches the article to his petition as Exhibit A.
Berger points to the following facts chronicled in Exhibit A as a basis for his request for coram-nobis relief: (1) that D.C. testified in a 2013 custody hearing that Daniel Coker had abused him at the same time he had been abused by Berger; (2) that Daniel Coker’s sister — D.C.’s mother — Ronna Coker, testified that her son, D.C.,. disclosed Daniel Coker’s abuse to investigators in 1998; (3) that Ronna Coker dismissed D.C.’s accusation against his uncle because she believed that D.C. was merely transferring to Daniel Coker what had been done to him by Berger; (4) that D.C. told his babysitter, Crystal Ferguson, |4that both Berger and Daniel Coker had been sexually abusing him; (5) that Crystal Ferguson testified in the 2013 custody hearing that she reported D.C.’s allegations regarding his uncle’s abuse to the Arkansas State Police and to DHS.
There are three élements necessary to establish a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it. is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Howard, 2012 Ark. 177, at 8, 403 S.W.3d at 44. Evidence is material “if there is a reasonable probability that, had. the evidence been disclosed to the defense, the result of the proceeding would have been different.” Newman, 2009 Ark. 539, at 13-14, 354 S.W.3d at 69. The rule set out in Brady also pertains to evidence known only to police investigators and not-to the prosecutor. Id. Thus, in order to comply with the standard set forth in Brady, a-prosecutor has a duty to discover any favorable evidence that is known to individuals who are acting on behalf of the State. Id. When determining whether a Brady violation has occurred, it must first be established that the material was available to the' -State prior to trial and the defense did not have it. Cloird v. State, 357 Ark. 446, 452, 182 S.W.3d 477, 480 (2004).
In support of his contention that police and other authorities were aware of D.C.’s additional allegation of sexual abuse, Berger relies on information contained in Exhibit A which recounts testimony provided'by D.C.- and Ferguson in 2013 that Coker’s sexual abuse'was report ed to investigators at the same time Berger’s abuse was reported. However, this testimony was based on recollections of events that had taken place ten years earlier. According to information set forth in Exhibit A, a written statement provided by Crystal | -Ferguson to police, in 1998 made no mention of Daniel Coker. Moreover, in the previous petition Berger filed pursuant to Rule 37.1, he alleged that counsel was ineffective for failing to “present sexual abuse history of the relatives of the alleged victim.” This prior allegation contradicts Berger’s current allegation that he was unaware that D.C. had made similar allegations with respect to other individuals.
Even if Berger’s allegations had sufficiently demonstrated that evidence was withheld, he fails to establish that such evidence was favorable to him; that it would have' been admissible at trial; or that its disclosure would have changed the trial’s outcome. Evidence that D.C. implicated Daniel Coker as well as Berger is neither exculpatory nor favorable. The 2013 testimony of D.C. and Ferguson does not exonerate Berger, but reaffirms that D.C. was sexually abused by Berger. Berger fails to éxplain how evidence that D.C. also reported having been molested by his uncle would have had an impact on a determination of Berger’s guilt.
Berger’s contention that evidence of D.C.’s accusations against his uncle would have undermined the credibility of D.C.’s' testimony is without merit. First, such evidence cannot be admitted to impeach the credibility of a rape victim, especially if the victim is a minor. The admissibility of evidence that D.C. accused his uncle of rape is governed by the rape-shield statute, Ark.Code Ann. § 16-42-101(b) (Repl.1994), which states in pertinent part that evidence of a victim’s prior allegations of sexual conduct with any other | (¡person, which the victim asserts to be true, is not admissible by the defendant to attack the credibility of the victim or for any other purpose. Neither Berger’s assertions nor the information contained in Exhibit A establish that D.C.’s allegation of sexual conduct with another person constituted relevant evidence that outweighed the prohibition mandated by the rape-shield statute. Second, allegations involving the sexual abuse of a minor by individuals other than the defendant has no bearing on a. defendant’s guilt or innocence. This court has stated that when consent is not an issue, whether the victim had sexual relations with a third person is entirely collateral, and therefore is not relevant. See, e.g., State v. Townsend, 366 Ark. 152, 155-57, 233 S.W.3d 680, 683-84 (2006). In cases involving the rape of a minor, this court has uniformly and consistently excluded evidence of the minor’s prior sexual activity,' because in those cases the only two issues to be determined are the fact of the occurrence of the prohibited activity and the age of the minor. Id.
As stated above, coram-nobis relief is attended by a strong presumption that the judgment of conviction is valid. Westerman, 2015 Ark. 69, at 4, 456 S.W.3d at 376. Berger’s allegations are insufficient to demonstrate that material evidence known to authorities was withheld from the defense; therefore, he does not overcome the strong presumption that his conviction was valid. Berger does not assert a ground sufficient to entitle him to the extraordinarily rare remedy of coram-nobis relief. Larimore, 341 Ark. 397, 17 S.W.3d 87. Because Berger has failed to establish that he is entitled to relief, his motions to subpoena transcripts and to supplement his petition are moot.
Petition denied; motions moot.
. The allegation that was made by Berger in his petition for postconviction relief was not raised on appeal from the postconviction order. Therefore, this court considered this ineffective-assistance-of-counsel claim to have been abandoned, and it was not addressed on appeal. See Berger, CR-02-254 (Ark. Feb. 28, 2003)(unpublished per curiam). | [
52,
-30,
-27,
124,
11,
-31,
58,
60,
67,
-101,
39,
115,
-89,
-58,
0,
121,
-61,
-81,
116,
105,
-42,
-74,
87,
65,
114,
-78,
-79,
-41,
-74,
-17,
-68,
-76,
76,
97,
-54,
-44,
70,
-56,
-21,
80,
-114,
1,
-104,
-11,
80,
87,
48,
114,
82,
15,
49,
-36,
-21,
108,
27,
-54,
-88,
44,
75,
-83,
88,
-103,
-103,
13,
-53,
50,
-95,
-124,
-74,
70,
112,
58,
-36,
-71,
8,
-24,
50,
-108,
-126,
86,
99,
25,
-88,
96,
102,
9,
92,
-47,
-88,
-120,
39,
47,
-99,
-26,
-5,
104,
75,
35,
-106,
-79,
95,
20,
13,
122,
-1,
77,
61,
100,
10,
-113,
-80,
-77,
-34,
40,
12,
65,
-29,
9,
48,
100,
-41,
-12,
88,
71,
123,
-45,
-18,
-109
] |
RAYMOND R. ABRAMSON, Judge
| A Pulaski County jury convicted Tyrun Lamont Jones of second-degree murder. The jury sentenced him to 300 months’ imprisonment with a firearm enhancement of 180 months. On appeal, he argues that his conviction should be overturned because the circuit court abused its discretion in excluding a witness pursuant to Arkansas Rule of Evidence 615. He also argues that the case should be remanded for resentencing because the prosecutor made improper statements during closing remarks at the sentencing stage of trial. We affirm.
On February 13, 2015, the State charged Jones with first-degree murder of Alex Booker. The case proceeded to trial on May 3, 2016. On the first day of trial, Brianna Jordan | ^testified that she lived in an apartment with Anita Henderson and that she had a sexual relationship with both Jones and Booker. She further testified that on December 24, 2014, she was at her apartment with Jones and Henderson and that. Jones texted Booker on her phone to come to the apartment. She explained, that Booker later came to the apartment, that Booker and Jones had a disagreement, and that Jones shot Booker with a gun. Jordan could not recall how many times Jones fired the gun or where Booker had been shot. She stated that immediately after Jones fired the gun, she, Booker, and Henderson fled the. apartment. * . ’'
On the second day of trial, Henderson testified that she saw Jones shoot Boókér four times in his back with a gun in her apartment. She also testified that she and Booker fled the apartment after the shooting. Omcross-examination, defense counsel asked Henderson whether, following Booker’s death, she had spoken with Jones in prison while she was visiting her brother. Henderson denied it. Defense counsel then asked Henderson whether she had told Jones that Jordan killed Booker, and Henderson further denied speaking to Jones,
Following Henderson’s testimony, defense-counsel informed the court that it wanted to call Georgette Giles, who was not on the witness list and who had been present in the courtroom that day, to impeach Henderson’s testimony. Defense counsel explained that Giles had discussed with him certain information .that could be used for impeachment purposes “after the close of business yesterday” and that he did not notify the State about Giles’s testimony because he believed Henderson would tell the-truth on the stand. Defense counsel proffered Giles’s testimony that about two months prior to -the trial, while she wasJ^visiting Jones in prison, -she heard Henderson tell Jones, “[L]et’s put it all on [Jordan.]” Giles stated that she did not attend the first day of trial but that she was in the courtroom for -the entirety of, Henderson’s testimony on the second day. .
The State objected to Giles’s testimony, assorting that it violated Arkansas Rule of Evidence 615 because the rule had been invoked and Giles had been in the courtroom during Henderson’s testimony. The court found that
the problem the Court sees in’this case in addition to the inconsistencies in her "testimony, is the fact that she reported this last night. That’s before today. Defense counsel let this witness be called this morning and testify in this witness’s presence to something he knew she was [going to] refute ... Defense counsel knew'... that this witness, this witness ‘right here, that she was going to refute the testimony of Anita Henderson or might refute it depending on what Miss Henderson said. Yet you allowed the State to call that witness without bringing to the attention of the Court that a found contrary witness was in the Court Room ... the Court’s striking the witness from the list.
Jones later testified on his own behalf. He stated that Jordan shot Booker in Henderson and Jordan’s apartment and that Henderson was not present during the shooting. He explained that after he saw Jordan shoot Booker, he immediately fled the apartment, He admitted that he initially told police that a man named Quincy shot Booker,
The jury convicted Jones of second-degree murder and found that he had used a firearm in committing the felony. The case then proceeded to the sentencing phase, and the prosecutor stated the following during closing remarks:
And you get to hear the emotional impact that [Hendersonjs out in the hall suicidal. And [Henderson] is a nice person. She’s a good person. If she had ever been in trouble before, you would have heard it. She has. She’s got emotional problems for seeing the violence that she has, that she had seen. And who started that? This man. So, [Henderson] had the same, the same opportunities as he did, yet he has people that he could go to for help. Who does [Henderson] have to go to for help, her psychiatrist. l/The State further told the jury that [there are] two courts involved. There’s the one court where you’ll be judged at the end, but there’s another court right here right now to take care of society.
The jury later sentenced Jones to 300 months’ imprisonment for second-degree murder with a 180-month firearm enhancement. Jones timely appealed his conviction to this court.
On appeal, Jones first argues that his convictions should be overturned because the circuit court abused its discretion in excluding Giles’s testimony pursuant to Arkansas Rule of Evidence 615. Rule 615 provides that “at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.” 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 her testimony to match that given by other witnesses at trial. Lard v. State, 2014 Ark. 1, 431 S.W.3d 249 (citing Adams v. State, 2013 Ark. 174, 427 S.W.3d 63).
“There are three possible methods of enforcement of an exclusion order that are available to a trial judge: (1) citing the witness for contempt; (2) permitting comment on the witness’s noncompliance in order to reflect on her credibility; and (3) refusing to let the witness testify.” Mooney v. State, 2009 Ark. App. 622, at 13, 331 S.W.3d 588, 595 (citing Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987)). “A trial judge can exercise narrow discretion to exclude a witness’s testimony only when the noncompliance is had with the consent, connivance, or procurement of a party or his attorney” but that discretion should be “rarely exercised.” Id. at 10, 12, 331 S.W.3d at 594, 595. The violation by a witness of | ¡¿he rule of sequestration through no fault of, or complicity with, the party calling him, should go to the credibility rather than to the competency of the witness. Id. Our supreme court has consistently held that it will not reverse the circuit court’s decision regarding this issue absent a showing of prejudice. Adams, 2013 Ark. 174, 427 S.W.3d 63. Further, our supreme court has held that an appellant failed to establish prejudice based on the exclusion of testimony when the testimony was essentially inconsequential. Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987).
In this case, we hold that Jones cannot show prejudice as result of the court excluding Giles’s testimony. Giles’s testimony would have attacked Henderson’s credibility only on whether she spoke with Jones in prison about implicating Jordan for Booker’s death. Nonetheless, at trial, both Jordan and Henderson testified that Jones shot Booker in their apartment. Furthermore, defense counsel asked Henderson at trial whether she and Jones discussed implicating Jordan for Booker’s death, and Henderson denied it. Given this evidence, we cannot say that Jones has demonstrated reversible error.
Jones also argues that this case should be remanded for resentencing because the prosecutor made improper statements regarding Henderson and “a higher court” during closing remarks at the sentencing stage. He asserts that the comments are fundamentally unfair and violated his due-process rights. He concedés that he did not object to the statements at trial and thus the issue is not normally preserved for our review, but he argues that this court should consider the issue pursuant to the third Wicks exception.
The third Wicks exception to the contemporaneous-objection rule applies when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court |flon its own motion to instruct the jury correctly. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Our supreme court has allowed issues to be considered under the third exception when the error affects the very structure of the criminal tidal. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). Our caselaw is clear that Wicks presents only narrow exceptions that are to be rarely applied. Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55 (citing Anderson, 353 Ark. 384, 108 S.W.3d 592). Specifically, the third exception has been applied very rarely to cases including the right to a twelve-person jury, violations of Arkansas Code Annotated section 16-89-125(e) (Repl. 2005), and statements by a prosecutor in voir dire that have the effect of shifting the burden of proof. Id. (citing Ayala v. State, 365 Ark. 192, 226 S.W.3d 766 (2006); Anderson, 353 Ark. 384, 108 S.W.3d 592; Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995)).
On the other hand, our supreme court has refused to apply the exception where a prosecutor was erroneously allowed to make statements during closing arguments that violated a defendant’s right to remain silent. Chunestudy, 2012 Ark. 222, 408 S.W.3d 55. In this case, we hold that the prosecutor’s statements are more, similar to those statements in- Chunestudy , and are not errors that fall into the third. Wicks exception. Accordingly, we decliné to. address Jones’s argument concerning the statements.
Affirmed.
Hixson and Murphy, JJ,, agree.
. The jury also convicted Jones of possession .. of a firearm by certain persons, but that conviction is not at issue on appeal.
. Jones filed a pro se notice of appeal, apd his attorney also filed a notice of appeal. | [
112,
-24,
-20,
31,
56,
67,
72,
-100,
50,
-93,
-32,
-46,
-31,
-18,
80,
57,
-95,
89,
-11,
105,
-48,
-89,
-67,
97,
-77,
-77,
0,
-41,
51,
-39,
-4,
-3,
8,
112,
-54,
65,
70,
92,
-25,
94,
-118,
-95,
-101,
112,
-114,
-127,
36,
55,
86,
7,
117,
-82,
-77,
106,
20,
75,
104,
124,
91,
-87,
90,
25,
-126,
-121,
-54,
20,
-109,
-91,
-101,
-90,
-8,
40,
-48,
53,
32,
-24,
115,
-122,
2,
116,
77,
-103,
13,
102,
98,
40,
93,
13,
104,
-127,
63,
-89,
-115,
-121,
24,
115,
75,
76,
55,
-43,
94,
-12,
34,
126,
127,
92,
56,
108,
-118,
-49,
-76,
-111,
109,
33,
-122,
-77,
-29,
5,
112,
116,
-49,
-30,
85,
4,
113,
-101,
75,
-43
] |
PHILLIP T. WHITEAKER, Judge
h This appeal arises from a child-custody modification. ítobin Emis appeals the Pulaski County Circuit Court order modifying the custody arrangement of the parties’ minor children placing primary custody in Keith Emis and providing Robin with visitation. She also appeals the trial court’s award of attorney’s fees and its denial of other posttrial motions. We affirm.
The procedural history is as. follows. Robin and Keith divorced in September 2011 when their -twin boys were twenty-two months of age. Robin was awarded custody, and Keith was awarded visitation. Subsequently, Robin and Keith reached an agreement modifying the custody, support, and visitation provisions of the decree. They agreed that each would have “joint physical custody of the minor(s), with legal custody vested in Plaintiff Robin Emis.” On September 5, 2014, the trial court entered an order modifying support, custody, and visitation pursuant to their agreement, nunc pro tunc to May 1, 2012.
|^Eventually both Robin and .Keith sought an award of primary custody, and Robin requested the court’s permission to relocate with the children to Florida. Their respective claims were tried by the court during a three-day hearing. On August 27, 2015, the trial court entered a formal order denying Robin’s motions and granting Keith’s request for a change in custody. Robin filed a timely notice of appeal from this order. See Emis v. Emis, 2017 Ark. 52, 508 S.W.3d 886.
Posttrial, Robin filed a motion for recusal, which was denied by the court. Keith filed a motion to strike an affidavit and a motion for attorney’s fees, which were both granted by the court. The court also granted a motion for attorney’s fees filed by the attorney ad litem. Robin timely filed notices of appeal from those orders as well.
On appeal, Robin argues that the trial court erred in denying her motion to relocate by finding that she had engaged in a constructive fraud with respect to the entry of the September 2014 child-custody agreement and by construing that agreement to be one of “true joint custody.” She also challenges the trial court’s finding that a material change of circumstances existed to support modification. Finally, she challenges the trial court’s award of attorney’s fees to the attorney ad litem and opposing counsel; its denial of her motion for recusal without benefit of a hearing; its decision to strike an affidavit without a hearing and while the motion to recuse was still pending; and its order denying her request to vacate the appointment of the attorney ad litem without a hearing. We consider each-of these issues in turn. -
|⅞1. Child Custody and Relocation
We first consider the issue of whether the trial court erred in awarding primary custody of the children to Keith and in denying Robin’s request to relocate. In reviewing this equity matter, we conduct a de novo review- of the record and do not reverse a finding by the trial court unless it is clearly erroneous or clearly against the preponderance of the evidence. Foley v. Foley, 2014 Ark. App. 351, 2014 WL 2559518. We also give due deference to the trial court in judging the credibility of the witnesses, and this deference is even greater in cases involving child custody, since 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. With these standards in mind, we turn oui; consideration to the issues of custody and relocation before the trial court.
A. Custody Determination
We begin our consideration with the trial court’s decision to award primary custody of the twins to Keith. 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. Nichols v. Teer, 2014 Ark. App. 132, 432 S.W.3d 151. Thus, we must conduct a de novo review of the nature of the custody relationship created by the September 2014 agreed order so that we may properly evaluate the trial court’s finding of a material change. of circumstances in this case.
The trial court found that the September 2014 agreed order established joint custody of the children between Robin and Keith. In reaching this conclusion, the court found that the “joint- custody arrangement” agreed to by the parties was ambiguous. As a result, the court | considered the circumstances surrounding the entry of the order in its determination. Robin challenges the trial court’s characterization of the child-custody arrangement. She contends that the order was not ambiguous as it related to the legal custody of the children; therefore, the trial court erred in its determination. We disagree.
We find no error in the trial court’s conclusion that the September 2014 agreed order was ambiguous. Both Robin and Keith agreed to the terms and to the entry of the September 2014 order. In fact, the September 2014 agreed order was drafted by Robin. That order states that “the parties have joint physical custody of the minor(s), with legal custody vested in [Robin].” The September 2014 agreement, however, refers to “visitation” rather than alternating physical custody and provides for a large award of child support despite “shared physical custody.” In other words, it is unclear from the agreement itself exactly what the nature of the September 2014 modification to the divorce decree was intended to be.
The first rule of interpretation of a contract is to give the language employed the meaning that the parties intended. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the | ¿parties themselves viewed it. Id. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id. Using these standards of law, we agree with the trial court that the September 2014 order is ambiguous.
Because the nature of custody provided for in the September 2014 agreed order is ambiguous, the trial court’s consideration of extrinsic evidence' of the intent of the parties was not clearly erroneous. Our supreme court has explained that when an ambiguity exists in a contract, we are permitted to look outside the contract to determine the actual intent and conduct of the parties. Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998). In arriving at the intention of the parties, the courts may consider and accord considerable weight to the construction of an ambiguous contract or deed by the parties themselves, evidenced by subsequent statements, acts, and conduct. Id. We will now consider the extrinsic evidence of record, beginning with the pleadings from the parties.
In her original motion to modify the decree and to relocate, Robin asserted that the parties had entered into a “joint custody arrangement” on September 5, 2014. She averred that, prior to the execution of the “joint custody agreement,” the parties had “co-parented peacefully and visitation was relatively conflict-free.” She then claimed that, since the entry of the order, the parties had been engaged in “consistent hostility/conflict/upheaval.” In fact, she described the arrangement as a “hybrid joint custody arrangement, with shared parenting responsibilities.” As a result, she claimed that, given the latent hostilities that had erupted between the parties, coparenting on a “joint-custody” basis was no longer possible. She then | ^requested that the court “modify the joint custody arrangement” to revert “primary custody” back to her.
Aftér Keith had filed his' motion to change custody, Robin’s' perspective of the agreement changed. In her response to Keith’s motion, she denied that the parties had a true “joint custody arrangement”; instead claiming that she retained “full legal custody” of the children and that they shared a “hybrid joint visitation arrangement.” (Emphasis in original.)
We next consider the extrinsic evidence found in the testimony. At the time of the September 2014 agreed order, the parties had rekindled their relationship and were romantically involved. In fact, Keith was frequently eohabitating with Robin. Despite this rekindled relationship, Keith became involved in an unrelated paternity action. Robin, a licensed attorney, discussed the matter with him, and they determined that it would be advantageous to Keith in the paternity action if there was a custody order portraying him in the most positive light. Robin drafted the September 2014 agreed order with this goal in mind and informed Keith that “[t]his is as true joint custody as we can get.” Ambiguities in a written contract are' construed strictly against the drafter. Byme, Inc. v. Ivy, 367 Ark. 451, 459, 241 S.W.3d 229, 236 (2006); Universal Sec. Ins. Co. v. Ring, 298 Ark. 582, 586, 769 S.W.2d 750, 752 (1989). While Robin testified that she never intended to share joint legal custody with Keith, Keith testified that he believed at the time they entered into the 17September 2014 custody agreement that he, was receiving joint custody of the .children. The court clearly-found Robin’s testimony to be less than credible. The trial court specifically stated that Robin’s testimony and demeanor on the witness stand showed an erratic but consistent effort to manipulate events to support .future litigation. When the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the circuit court to evaluate the - witnesses, their testimony, and the child’s best interest. Riddick v. Harris, 2016 Ark. App. 426, 501 S.W.3d 859. Based on the foregoing, we cannot hold that the trial court’s decision to treat the September 2014 order as one granting joint custody was clearly erroneous.
B. Material Change of Circumstances
Next, we turn to whether there had been a material change of circumstances. When a change of custody is sought in a joint-custody arrangement, the circuit court first must determine that there has been a material change of circumstances. Singletary, supra. Only after meeting that threshold will the court then consider what is in the-best interest of the children. Id.
Here, at the time the September 2014 custody order was entered, Robin and Keith were engaged in a romantic relationship and were practically, if not actually, cohabitating, |sNot long after, their relationship soured, and the parties once again separated. After the separation, Robin and Keith’s relationship devolved into disharmony and discord. Evidence of the deterioration and troubled nature of their relationship was presented to the court by both Keith and Robin during a highly contested and adversarial three-day hearing. When the parties have fallen into such discord that they are unable to cooperate in sharing physical care of their children, this constitutes a material change in circumstances affecting the children’s best interest. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). We have reversed the continuation of a joint-custody arrangement on a motion to modify custody when “there was a mountain of evidence ... demonstrating that the parties could no longer cooperate in reaching shared decisions in matters affecting their children.” Doss v. Miller, 2010 Ark. App. 95, at 9, 377 S.W.3d 348, 355; see also Stibich v. Stibich, 2016 Ark. App. 251, at 5, 491 S.W.3d 475, 479 (quoting Gray v. Gray, 96 Ark. App. 155, 157, 239 S.W.3d 26, 29 (2006)) (“Regardless of whether joint custody is favored; our law remains that ‘the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the children’s welfare is a crucial factor bearing op the propriety of an award of joint custody, and such an award is reversible error where the cooperation between the parents is lacking.’ ”). Based on our de novo review of the extensive and voluminous record before us, we cannot conclude that the trial court’s determination that there had been a material change of | ^circumstances was clearly erroneous; nor do we have a definite or firm conviction that a mistake- has been made.
C. Best Interest
Next, we must determine whether the trial court erred in determining that it was in the best interest of the children to award custody to Keith. Once the material change of circumstances threshold requirement has been met, the court must then determine, who should. have custody with the. sole consideration being the best interest of the child. Acklin v. Acklin, 2017 Ark. App. 322, 521 S.W.3d 538, 2017 WL 2180797. Here, other than noting the'attorney ad litem’s recommendation that it was in the best interest of the children to grant Keith primary custody of the children, the trial court’s opinion in this regard is practically silent. However, because there is a presumption that a circuit court made the findings necessary, to support its judgment, we presume that the court considered the children’s best interest when it awarded custody to Keith. See Hoover v. Hoover, 2016 Ark. App. 322, at 8, 498 S.W.3d 297, 301. Here, Robin presented evidence that she had been, the primary-caretaker for the children since their birth and that, while Keith was á good father to the children, he was not actively involved in the day-to-day parenting of the children. Instead, she asserted that she was primarily responsible for feeding, bathing, and dressing the children; taking them to school, doctor’s appointments, |inand extracurricular activities; and interacting with their school and teachers. Keith testified regarding the actions he took with respect to the care of the children, his relationship with them, their relationship with their extended family, his educational concerns, and his parenting philosophy. The trial court also had before it evidence of the parties’ relationship with each other and their ability to interact with each other with respect to the- children and visitation issues. The court even noted that it had considered the children’s stated preference as to their living arrangements before reaching its best-interest determination. The trial court weighed the evidence before it and determined that it was in the best interest of the children to award primary custody of the children to Keith. As stated above, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child’s best interest. Riddick, supra. We hold that on the facts before us and given our deference to the trial court in' these circumstances, the trial court’s decision was not clearly erroneous.
D. Relocation
Robin asserts that she retained sole legal custody of the children and therefore had the absolute right to relocate under our supreme court’s decision in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). As a result, she insists that the trial court erred in refusing her request to relocate and in awarding custody to Keith. Because we affirm the trial court’s decision to award custody to Keith, Robin’s relocation argument is moot,
lull. Posttrial Motions
We now turn to Robin’s appeal of the trial court’s posttrial rulings. Those issues suffer from procedural difficulties. After the final order had been entered, Robin sought to have the trial court re-cuse. On appeal, Robin spends the majority of her argument on the recusal issue. She goes into great detail regarding how the judge’s alleged bias and impropriety affected or could, have affected his decision on the merits and the evidentiary matters leading up to his, custody determination. However, the posttrial motion to recuse only sought recusal; Robin never requested a new trial or to have the custody award set aside on the grounds of judicial bias or appearance of impropriety. Because she never requested that the custody award be vacated or set aside due to bias, any discussion of recusal would have no effect on the custody determination and would amount to an advisory opinion. It is well settled that this court does not render advisory opinions or answer academic question’s. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997).
Finally, Robin devotes one paragraph to her remaining issues on appeal: the award of attorney’s fees to opposing counsel and the ad litem; the order striking an affidavit in support 112of the recusal motion; and the order denying her request to vacate the ad litem appointment. She cites no facts or authority to support her arguments; in fact, she makes no independent argument in her brief whatsoever other than to incorporate her trial motions and briefs by reference. This is inadequate. Our supreme court has specifically stated that to allow counsel to incorporate trial arguments by reference would eviscerate our rules regarding briefing length and would render meaningless our holdings that we do not address arguments that are not sufficiently argued or briefed to this court. See Ligón v. Stilley, 2010 Ark. 418, at 20, 371 S.W.3d 615, 632. As a result, we cannot reach these issues on appeal.
For the foregoing reasons, we affirm.
Affirmed.
Gladwin and Murphy, JJ., agree.
. Robin is an attorney licensed to practice in the State of Arkansas.
. Compare the imprecise language in the September 2014 order with the clear language of the initial divorce decree, which expressly stated that Robin “shall have full legal and physical custody of the minor(s), subject to set visitation of [Keith].” The divorce decree referred to Keith as the “non-custodial parent.”
. At the time the order, was drafted and was entered, Robin was not technically acting as Keith’s counsel, although she admitted that she provided him with legal advice regarding ' the order. She further admitted her actions could be construed' as having acted as his attorney during the drafting and the negotiation of the September 2014 agreed order. Shortly thereafter, the parties began a formal attorney-client relationship.
. We note that Robin also argues that the trial court erred in concluding that her actions constituted a constructive fraud. A de novo review of the record, however, reveals that there was sufficient evidence from which to support the trial court’s findings without resorting to the trial court’s constructive-fraud determination. Thus, even assuming Robin's argument is correct in this regard, the outcome remains the same. We can affirm the circuit court when it reaches the right result, even though it may have announced the wrong reason. Delgado v. Delgado, 2012 Ark. App. 100, 389 S.W.3d 52.
. In fact, in her initial motion, Robin asserted that the 'parties had been engaged in "consistent hostility/conflid/upheaval” such that co-parenting on a "joint-custody” basis was no longer possible.
. We are aware that the trial court, as part of its material-change-of-circumstances analysis, found that Robin's conduct constituted a violation of Arkansas Code Annotated section 9-13-101(b)(l)(A)(iii) and that Robin challenges this particular finding. However, we.need not address the correctness of the trial court’s ruling, because there was sufficient other evidence of a material change of circumstances without the need to rely on that particular factor. As stated above, we can affirm the circuit court when it reaches the right result, even though it may have announced the wrong reason. Delgado v. Delgado, supra.
. The ad litem testified that the children spontaneously asserted their preference to live with their mother. However, because of the circumstances surrounding the spontaneous declaration, the ad litem believed that the children may have been coerced into making the declaration.
. In her recusal argument, Robin alleges that the trial court erred in not allowing her to present testimony of several witnesses at the hearing and alleges that the trial court’s failure to do so violated her due-process rights. However, it does not appear from our review of the record that Robin ever made these particular arguments below. It is well settled that only the specific objections and requests made at trial will be considered on appeal. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990); Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). Arguments not raised below, even constitutional ones, are waived on appeal. Tracy v. Dennie, 2012 Ark. 281, 411 S.W.3d 702.
. “An advisory opinion is ... an interpretation of the law without binding effect.” Hartness v. Nuckles, 2015 Ark. 444, at 13, 475 S.W.3d 558, 567 (quoting Black's Law Dictionary, 35-36 (6th ed. 1990)), | [
-48,
-24,
-35,
45,
58,
97,
46,
50,
121,
-45,
103,
115,
-81,
-46,
16,
107,
-69,
109,
97,
113,
-47,
-77,
70,
-63,
-73,
-13,
113,
86,
-10,
77,
53,
87,
92,
96,
-54,
85,
86,
74,
-19,
-112,
-50,
3,
59,
-32,
-39,
-121,
52,
-25,
50,
14,
53,
-114,
-77,
45,
60,
-62,
-56,
46,
25,
-71,
-44,
56,
-125,
5,
127,
2,
-111,
20,
58,
-52,
88,
44,
-104,
56,
8,
-23,
115,
-106,
-110,
116,
67,
-101,
-119,
48,
70,
3,
73,
-9,
-8,
-52,
78,
90,
-102,
-90,
-37,
89,
3,
3,
-89,
-68,
113,
16,
43,
-4,
72,
-115,
61,
108,
-92,
-49,
66,
-125,
-114,
96,
-116,
18,
-29,
23,
48,
81,
-49,
-94,
92,
-122,
59,
-61,
-66,
-78
] |
ROBERT J. GLADWIN, Chief Judge
| Joanne B. and Charles Black, their children, Clay and Travis Black, and Yan-cey Reynolds appeal the Hempstead County Circuit Court’s November 18 and 30, 2015 orders that found null and void a deed transferring an interest in 180 acres and the transfer of a share in the Hemp-stead County Hunting Club (Grassy Lake) and ordered judgment against appellants Joanne and Charles in the amount of $52,605.56. Appellants also appeal the circuit court’s January 6, 2016 order awarding attorney’s fees in the amount of $31,069.36 to appellee Jack Duffie, Jr., as guardian of the estate of Ellen Annabelle Duffie (Annabelle). Appellants argue four points on appeal: (1) the circuit court erred in declaring null and void the transfer of the Grassy Lake share; (2) the claims regarding the Grassy Lake share were barred by the statute of limitations; (3) the circuit court erred in declaring null and void the | ¡.deed for 180 acres to Joanne and Charles Black; and (4) the circuit court erred in awarding attorney’s fees to appellee. We affirm.
I. Fads
Annabelle, born May 16, 1938, and her adult brother, Jerome Duffie, resided together during Annabelle’s entire adult life until Jerome’s death. Annabelle never married. Jerome took care of Annabelle’s finances until he died on April 4, 2006, leaving Annabelle his property, which included a three-quarter interest in 180 acres located near Hope, Arkansas, and a share of stock, along with a cabin, in Grassy Lake. Appellee, Annabelle’s nephew, was appointed guardian of the person and estate of Annabelle on June 17, 2013.
Appellee filed a complaint alleging that on June 21, 2006, less than three months after Jerome’s death, Annabelle transferred her share in Grassy Lake to appellants without consideration and that appellants had intentionally misrepresented to her that she would retain ownership in Grassy Lake and would be giving them only hunting and fishing privileges. It alleged that Annabelle had not been told that, by giving up her share of stock, she would forfeit her right to continue using the hunting club and living in the cabin. It was alleged that, after the stock had been transferred, appellants moved Annabelle from Grassy Lake to a “run down, substandard housing unit.”
The complaint described that Annabelle executed a warranty deed with vendor’s lien on August 20, 2009, granting her interest in the 180-acre tract to appellants Joanne and | ¡¡Charles. It was alleged that Joanne and Charles intentionally misrepresented the value of the tract, that the tract was transferred for a payoff to Annabelle of $150,000, and that the land was worth $400,000 or more. Also, Annabelle financed the sale of the property, only receiving monthly payments of $1000, while the Blacks maintained possession and use of the land, having sold the timber in June 2012.
Appellee alleged in the complaint that any statutes of limitation were tolled because Annabelle had been mentally incompetent, citing Arkansas Code Annotated section 16-56-116 (Repl. 2005). He alleged that the transfers of the 180-acre tract and the share in Grassy Lake should be declared void for failure of a contract because Annabelle, having been incompetent her entire life, had been incapable of en tering into a valid and binding contract, no consideration had been paid for the hunting club stock, and there had been no mutual agreement due to undue influence, duress, and fraud. Appellee also alleged the conversion of timber cut from the 180-acre tract and sought rescission of the contracts, an accounting, damages, punitive damages, and attorney’s fees. Appellants answered, generally denying the complaint, and pled all applicable statutory limitations, waiver, estoppel, laches, and unclean hands.
At the bench trial held November 9 and 10, 2015, Betty J. Feir, a licensed psychologist, testified that she had conducted a psychological evaluation of Annabelle and had made a report in January 2013. She said that Annabelle was “functioning retarded” at |4that time and that her IQ score was 59, which Feir considered to be mild mental retardation. She said that a person of Annabelle’s intelligence would be incapable of determining the value of her assets or making financial decisions without assistance. Feir explained that an IQ of 100 is average and that 70 is considered borderline retarded. Feir said that Annabelle’s mental retardation did not begin in January 2013, but had occurred over a period of years, and that a person functioning with a 59 IQ would not be able to make decisions that were logical and relevant. Feir’s impression was that Annabelle was not able to say “no” when it was needed for her well-being because she appeared to want to please people. It was Feir’s opinion that Annabelle would be vulnerable in a business transaction. Feir said that Annabelle did not have the necessary intellectual or cognitive functioning at “this point in her life,” or even earlier, because the decline had been gradual, and Annabelle had the beginning of dementia.
James Burton Clem testified that he is a real-estate broker and is licensed in Texas and Arkansas. He gave his opinion that the total value of the 180-acre tract was $425,000, and in addition, the timber on the land was worth $177,000. In making his analysis, Clem testified that he had reviewed an expert report prepared by Jeff Neill, who had valued the land at $300,000, which included the timber value. He believed that Neill had not included what Clem considered to be the commercial value of the “front 40 acres.”
Appellee testified that he thought Annabelle was too trusting of people. He said that Annabelle had never married and had never worked. He said that Jerome had bought her a building that had school supplies in it, known as the School Box, and she had spent time there. Neither Jerome nor Annabelle had depended on income from it for their livelihood. |fiHe said that Annabelle was living at the Grassy Lake cabin at the time of Jerome’s death, but within a month or two, Annabelle moved. In 2009, Annabelle deeded the 180-acre tract to Joanne and Charles and signed a warranty deed with vendor’s lien retained transferring her ownership to them. At the time of the transfer, Annabelle owned a three-quarter interest in the property, and her sister Patricia Holloman owned one-fourth. He testified that it was his understanding that Reynolds had helped to negotiate a price of $150,000 for Annabelle’s interest, with $1000 monthly payments to Annabelle. He said that Annabelle was supposed to receive 5 percent interest under the transaction, but she had not been receiving anything but a flat $1000 pay- raent with no interest. He also said that the Blacks had not given Annabelle a down payment. He testified that some timber had been cut off the property and sold for $58,886.73 and $11,254.01. He asked that the contract for the sale of the 180 acres be nullified, for all amounts paid to Annabelle be declared rents for use and possession of the property, and for a judgment doubling the amount for which the timber had sold. He also asked that the share in Grassy Lake be returned to Annabelle because she had not been paid any money for it. He asked that any improvements made to the cabin by Reynolds be retained by Annabelle in exchange for the Blacks’ use and possession of it.
Joanne testified that her son Clay had called her one afternoon after bush hogging on the 180 acres for Annabelle. Clay told Joanne that a man said that Annabelle had given him permission to look at the property because he was thinking about buying it. Joanne said she left work early, went to the School Box, asked Annabelle if she planned to sell the 180 acres, and “she didn’t answer me.” When Joanne told her that she would like an | ^opportunity to buy it, Annabelle did not “make any comment one way or another,” and Joanne went home. Joanne said that she then asked Reynolds to negotiate a sales price on the property because he was knowledgeable in timberland sales, property sales, and large tracts of land because he sold timberland tracts for a living. Joanne said that she was Reynolds’s personal secretary and bookkeeper and that she held a real-estate license in Arkansas. She said that she had never sold any timberland when she had been active in real estate, and she never had a discussion with Annabelle about the price of the land before Reynolds became involved. She also said that Annabelle knew what the property was worth because Annabelle “had an appraisal when Jerome died.”
Joanne said that she bought Annabelle’s three-quarter ■ interest for $150,000. She testified that she had never obtained a bank loan to purchase the property “because I thought maybe [Annabelle] could finance it and by financing it she could make interest on her money, on the property, at 5 percent interest on me instead of the bank making interest on me. She liked that idea.” Joanne said that she did not provide Annabelle with an amortization schedule, and she did not know how much she had paid on the principal amount. She said that she had sold timber off the property on two occasions for a little over $70,000, and that she had used that money to purchase Patricia’s one-fourth interest for $45,000. She had obtained a bank loan for that purchase, but when she got the money for the timber sale, she applied some “plus the interest on that.” She said that she and her husband do not live on the property but that her family hunted on the land during deer season.
|7She said that at some point in 2006, her sons, Clay and Travis, gained ownership of the share of stock at Grassy Lake and the cabin located there. “We did not pay anything for that share of stock, to my knowledge,” she said. She acknowledged that Jerome did not leave her anything in his Will. She said that the improvements made to the cabin could be valued at $70,000 and that Reynolds paid for those “because he wanted to. He told me he wanted to do it for the boys and me.” She said that she had worked for Reynolds for a long time and that he had paid for the improvements because of their friendship. She said that her boys pay the dues at Grassy Lake, and she did not know how much a share of stock was worth!
Joanne testified that when Jerome had been sick before his death, she had applied for guardianship over him. She ad mitted that she could have characterized Annabelle as having limited business experience and having limitations that would prevent her from being Jerome’s guardian. She read from her petition filed in Jerome’s guardianship proceeding and acknowledged that Jerome had taken care of business affairs for himself and his sister and that Annabelle was described therein as being “limited and unable to serve” as guardian over Jerome. Joanne admitted that it was three years later that she had offered Annabelle $150,000 for her interest in the 180 acres and that Annabelle did not have representation during the negotiation. She said that she had felt that Annabelle could not serve as guardian of Jerome at the time because she was distraught because of her brother, but that Annabelle had insisted to her shortly thereafter that she was quite capable. She said she had not seen Annabelle since 2011 because she had received a letter from a Hot Springs attorney telling Isher not to have any more contact with Annabelle. The Hot Springs attorney had handled the sale of the mobile-home park owned by Annabelle after Jerome’s death.
Joanne described her family’s relationship with Annabelle and Jerome as close and loving. She said that Jerome had taught the boys to shoot and had taken them for weekends with him and Annabelle at Grassy Lake “all the years they were growing up.” She said Annabelle got mad at her when she had told Annabelle “it’s either those people or me,” referring to Robert Bonnette and Marilyn McRoy, who had bought the mobile-home park from Annabelle. Joanne said that when Annabelle “chose them,” she left Annabelle alone and then shortly thereafter she had received the letter from the Hot Springs attorney. Joanne said that she thought Annabelle had been afraid that if she “didn’t stay with those folks that they were going to somehow get her out of there.” She also testified that Jerome had asked her and her husband to “keep an eye on Annabelle while he was in the hospital, which meant getting her to town from the hunting club cabin to her shop every day and back to the cabin. One of us would stay with her.” She said that she had been Annabelle’s friend for over twenty years.
Reynolds testified that he had become involved in negotiating the sales price between Joanne and Annabelle in 2009 after he had an update of the property appraisal. He had discussed the price with Annabelle when she had come to his office in 2009, and he said Bill Cason, Annabelle’s confidant, had been with her. He testified that Annabelle had answered “yes” when asked if she wanted to sell her property. He said that Joanne offered Annabelle $150,000 for the property and, following that discussion, he had “immediately” sent Annabelle and Cason to Mr. Pilkington’s office (an attorney). Reynolds testified that |9he assumed Annabelle had consulted with Cason about the sales price, as Cason had heard the entire discussion. He said that no other figure than $150,000 had been discussed, and Annabelle had been told that she would be paid on an installment, with 5 percent interest, for fifteen years, when a balloon payment would become due. Reynolds also testified that he had spent $75,000 on improvements at the Grassy Lake cabin, and he had done so because he had regard for Joanne and her family. He said that he had no ownership interest in that cabin and that he was a member of Grassy Lake, had a cabin there, and was on the board of directors. When first asked, he said that he was not at liberty to say how much shares of Grassy Lake stock were worth, but he later said that he had no idea for what the recent share had sold.
Annabelle testified that she did not remember when she had sold her land to Joanne and Charles, and she did not remember having gone to Reynolds’s office. She later said that she seemed to remember going to Reynolds’s office and that it seemed like she remembered she was offered $150,000, which sounded like a lot of money to her. She said that she had not done any investigation to determine what her property was worth, she had been receiving $1000 per month, and she hoped it would continue. She also testified that she did not remember when she had transferred her share of Grassy Lake to Travis and Clay. She said that she did not know why she had done it, and she did not know at the time why she was doing it. She said that no one told her it was what Jerome had wished, she did not think she could stay in the cabin after the transfer, and she did not remember how long she had stayed there after the transfer. She said that she thought Clay or Travis had told her she must move out of the cabin. Annabelle later testified that she recalled the 2009 deed transfer | into Joanne and Charles, as well as other transactions that occurred regarding other properties she had sold since that time.
Clay testified that he owned half of the share in Grassy Lake with his brother Travis, and neither of them paid Annabelle for it. He testified that he spent considerable time hunting with Jerome at Grassy Lake and that Annabelle had told him that she gave them the stock because Jerome had wanted it like that. He said that he had been living with Annabelle at Grassy Lake after the stock transferred and that he had told Annabelle before the transfer that “somebody is going to make a statement and let us know we can’t stay up here anymore. Otherwise, it’s going to come down on Travis. It’s no reflection on me because I’m not the active member. Travis is held accountable.” He said that in 2008,
[w]e took her and Bill over to the duplex which she owned. She owned a couple of trailers out there and the duplex ... She appeared to be very happy there and at the same time she was able to take care of her day-to-day operations .... Once she got to the duplex, I don’t know who took care of paying the utilities.
He said that Annabelle took care of herself during the time he had lived with her and that when Jerome had been alive, Jerome would hand her money and tell her to get what they needed for that night, and she would keep what was left over. He said that when Bill, her boyfriend, became ill and could not drive, Annabelle had to rely on others for transportation and “stuff.”
Travis testified that he and his brother had split the share of stock at Grassy Lake, there was only one membership per share, and he utilized the membership from that stock. He testified that Jerome had been like a grandfather to him and his brother and that some people at Grassy Lake thought he was related to Jerome. After the Grassy Lake board had met in the fall of 2008, Travis told Clay something must be done with his and Annabelle’s 11 Jiving situation because to continue to live at the cabin was “illegal.” He said that if the rules of Grassy Lake were broken, members were suspended or expelled and never allowed back on the property. He said that he had never told Annabelle she could not “come and hang out at the cabin,” and that she was welcome so long as he was there. He said that he did not feel like he had taken advantage of Annabelle and that he loved her. Travis testified that he had a copy of a letter that Jerome had left with his Will, which he found when Jerome’s brother apparently had left it with the Will at the cabin. The letter was introduced as an exhibit, and it is a handwritten list of Jerome’s assets and states in a parenthetical, “Annabelle, it is my wish that you put in your will to let Clay and Travis Black get the share [in Grassy Lake] when you die.” Travis also testified,
She has not ever asked me to transfer the share of stock back to her. If she did, I would discuss it with her and if she felt that’s what was best then I’d probably talk to my brother because I can’t make decisions without him but I would probably say it wouldn’t be a good idea because I’d lose my membership and then nobody would be allowed on the property.
Charles Black testified that his family had been friends with Jerome and Annabelle for years, and he had never thought there was anything wrong with Annabelle, that Annabelle took care of herself and had a business, that she knew how to make a dollar, and, when it was needed, she would call on him. He said his wife had negotiated the purchase of the 180-acre tract and that, after they had received the letter from the attorney in Hot Springs, he had not bothered Annabelle anymore.
Damon Young testified that he had been the president of the Grassy Lake board of directors at the time of the stock transfer to Travis and Clay. He said Reynolds had contacted him about the transfer and had delivered transfer paperwork to his office in June 11⅞2006. Young said that Travis and Clay had received a stock certificate dated June 21, 2006, for one share and that the membership committee had approved Travis’s application for membership. He did not know if Annabelle had been paid for the share, and although Annabelle had signed the documents to transfer, this had not been done in his presence. He said that he did not know for how much the most recent shares of stock had sold, but he did know that one had sold for $400,000 when he was serving as president. He said that he had not been personally aware since that time of any other shares selling for more than that. Young said that when the transfer took place, it had been his understanding that Jerome had willed his share to Travis and Clay.
Bobby Kesterson testified that he was a real-estate appraiser living in Hope, Arkansas, and he had valued the 180-acre tract at $750 per acre, considering the property as if the timber had been harvested and it was bare land. His appraisal was that the land was worth $139,000, not including the value of the merchantable timber.
The circuit court filed an order on November 18, 2016, finding that, when the evidence and testimony were taken as a whole, it was clear and convincing that Joanne and Reynolds had taken undue advantage of their relationship with Jerome and Annabelle, and they had systematically taken control of manipulating the assets given to Annabelle so that they could benefit from those assets, including a less-than-market-value price for the real estate and no value paid for a share of stock in Grassy Lake, worth at least $400,000 plus improvements. As a result of this influence, Clay and Travis had become owners of said stock and improvements and were the beneficiaries of the actions of Joanne and Reynolds. The order states,
11sAt a time in the life of an aging individual who needed the sound advice and counsel of trusted individuals Annabelle Duffie received advice and counsel from those bent on taking advantage of her. The law is to protect individuals such as Annabelle Duffie and the law is not a tool for those who wish to use it as their means of depriving others of their property rights.
The circuit court found the transfer of the three-quarter interest to Joanne and Charles to be null and void for lack of adequate consideration and due to the undue influence on Annabelle by the Blacks, which made her unable to competently enter into the transaction. Further, the circuit court voided the transfer of the share of Grassy Lake, finding that it lacked any consideration and that due to the undue influence placed on her by the Blacks, she did not understand what she was signing when she was presented with the documents for transfer of said share. The circuit court ordered the Blacks to execute a deed- to Annabelle transferring the 180 acres back to her, notify Grassy Lake of the circuit court’s ruling, and transfer the stock back to Annabelle. Further, the circuit court awarded appellee judgment against Joanne and Charles in the amount of $70,140.74 for the timber that was cut and ordered the attorney for appellee to submit an affidavit in support of attorney’s fees and expenses for the circuit court to consider.
On November 25, 2015, appellants filed a motion to amend under Arkansas Rule of Civil Procedure 52 (2015) and/or for a new trial under Arkansas Rule of Civil Procedure 59. Appellants asserted their defense of limitations on actions and claimed that Annabelle was not found to be incompetent until January 2013, which was six years after the transfer- of the share in Grassy Lake. Therefore, they claimed that the statute of limitations-had run on that-claim prior to her having been deemed incompetent. Appellants asked the circuit court to amend its order to reflect that they convey Annabelle’s three-quarter interest in the 180 acres, rather than the entire 114180 acres. Further, they asked that the judgment amount for the sold timber be reduced to a three-quarter interest as well. Appellants asked that the circuit court find that appellee did not meet his burden of proof of clear and convincing and that his complaint be dismissed. They also asked for fees and costs.
On November 30, 2015, the circuit court amended its November 18 order to reflect that Joanne and Charles should execute a deed conveying to Annabelle a three-quarter interest in the 180.85 acres and amended the judgment for the timber cut to $52,605.56. The circuit court denied any further relief. On January 6, 2016, the circuit court ordered that appellants were jointly and severally liable for $31,069.36-in attorney’s fees. The order reflects that appellee’s counsel had submitted an affidavit for fees and costs. After timely notices of appeal were filed, this appeal followed.
II. Standard of Review and Applicable Law
This court has stated that
[w]e review traditional equity cases de novo. The test on review is a clearly erroneous standard (ie., whether we can say that the trial court’s findings are clearly erroneous). Berry v. Walker, 2012 Ark. App. 16, 2012 WL 11263. 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 was made. Id. In reviewing a trial court’s findings of fact, we give due deference to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Munzner v. Kushner, 2010 Ark. App. 196, 375 S.W.3d 647.
Hughes v. Dalton, 2013 Ark. App. 142, at 4, 2013 WL 765298. This court has also held that where the pivotal issue is the credibility of interested parties whose testimony is in direct conflict, we defer to the trial court’s determination. Hankins v. Austin, 2012 Ark. App. 641, at 13, 425 S.W.3d 8, 16.
hJII. Undue Influence and Competency
Appellants contend that the circuit court erred in declaring null and void the 2006 transfer of the Grassy Lake share and the 2009 deed transferring Annabelle’s interest in the 180-acre tract and argue that there was no undue influence and that Annabelle was not incompetent. We consider appellants’ arguments regarding undue influence and Annabelle’s competency together. See Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997) (Questions of undue influence and mental capacity are so closely interwoven that they are sometimes considered together.). We note that
[i]t is generally recognized that, in order to invalidate a contract on the ground of undue influence, a party must be deprived of his free will. Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995). The questions of undue influence and mental capacity are so closely interwoven that they can be considered together. See Noland v. Noland, supra. 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 his free agency. Id. Undue influence may be inferred from the facts and circumstances of a case. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992).
Hooten v. Jensen, 94 Ark. App. 130, 136, 227 S.W.3d 431, 435 (2006).
This court recently addressed the issue of mental capacity to execute a deed as follows:
The determination of whether a deed is void because of the mental incapacity of the grantor is measured by his or her mental ability at the time of the execution of the deed. Munzner v. Kushner, 2010 Ark. App. 196, at 6, 375 S.W.3d 647, 651 (citing Andres v. Andres, 1 Ark. App. 75, 83, 613 S.W.2d 404, 409 (1981)). If the grantor is mentally competent at the time he executes the deed at issue, the deed is valid. Id. The test of mental competency to execute a deed was set forth by our supreme court in Donaldson v. Johnson, 235 Ark. 348, 359 S.W.2d 810 (1962), as follows:
If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and hato whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.
Id. at 352, 359 S.W.2d at 813 (citations omitted). The mental capacity of the maker of a trust or deed is presumed, and the burden rests on the contestants to prove incapacity by a preponderance of the evidence. Munzner, supra (citing Rose v. Dunn, 284 Ark. 42, 46, 679 S.W.2d 180, 183 (1984)).
Marston v. Taylor, 2015 Ark. App. 176, at 4-5, 457 S.W.3d 688, 691 (emphasis added).
Appellants argue that appellee did not meet his burden of proof because there was no false representation made to Annar belle to induce the 2006 stock transfer, there was no evidence that Travis or Clay exerted any fraud or undue influence on her to obtain the stock, and the record is devoid of evidence of fraud, fear, or coercion to induce Annabelle to execute the 2009 deed. Appellants maintain that Travis and Clay were not strangers to Jerome and Annabelle and that Jerome treated them as a grandfather would. Appellants assert that there was ample evidence that the Blacks were close family friends of Jerome and Annabelle and there was no evidence of any malign influence on Annabelle by any appellant.
They point to the evidence that their relationship spanned over twenty years; they spent holidays and birthdays with Jerome and Annabelle; Jerome taught Travis and Clay how to shoot their guns and spent weekends with them at Grassy Lake; and until the boys left for college, they attended church with Jerome and Annabelle. Appellants admit that Annabelle testified that she did not know why she made the transfer of stock to Travis and Clay in 2006 and that she did not receive money for it. Appellants point to Clay’s testimony that Annabelle told him that she gave them the stock as a gift because that is what Jerome 117had wanted. Further, Travis and Clay testified that Annabelle never expressed to them that she wanted the stock back. They contend that Annabelle’s testimony—that no one told her that it was Jerome’s wish for the boys to have the stock—belies appellee’s theory that Annabelle was defrauded by false promises with respect to the stock. Also, appellants claim that Annabelle understood that she could not continue to live at the cabin following the transfer. Appellants emphasize that Travis and Clay allowed Annabelle to continue to live at the cabin with Clay until 2008 when they had to move due to the club rules.
Appellants contend that Joanne offered to purchase Annabelle’s interest in the 180 acres for $150,000, and Joanne testified that Annabelle “liked that idea,” which is consistent with Annabelle’s testimony that she hoped she would continue to receive monthly payments. Annabelle testified that she thought there had been an appraisal done of the 180 acres by Jeff Neill in 2006. Reynolds testified that the purchase price was based on an update of Neill’s appraisal, and Reynolds said that the purchase price was discounted because Annabelle possessed only a partial interest in the property. Reynolds said that he met with Annabelle and Bill Cason regarding the offer to purchase and advised Annabelle that the price would be paid in installments. Annabelle accepted the offer and subsequently executed a written acknowledgment of such. Appellants also point to the fact that Joanne and Charles acquired the remaining quarter interest in the property from Broadway Bank, trustee of the Hollomon Living Trust, for $45,000.
11sAppellants argue that the law condemns malign influence due to fear or coercion, not legitimate influence resulting from natural affections. Hooten, supra. They point to Jerome’s letter to Annabelle and insist that the transfer of stock to Clay and Travis was consistent with Jerome’s express wishes. See Petree v. Petree, 211 Ark. 654, 201 S.W.2d 1009 (1947) (where part of the evidence considered in upholding a contract was a decedent’s letter expressing wishes that were fulfilled under the contract). Appellants admit that at trial, nearly nine-and-a-half years after the transfer, Annabelle could not recall why she had made the transfer. However, they contend that she offered no testimony that Travis, Clay, or any other appellant had pressured her into making the transfer or had otherwise fraudulently induced the transfer.
Appellants insist that the timing is important in relation to the 2009 deed transfer because Annabelle had waited three years to sell Joanne and Charles the property. Further, appellants contend that the transaction was not unique or irregular; rather, it was one in a series of conveyances by which Annabelle disposed of property she had inherited from Jerome. They point to six transactions made by Annabelle between 2009 and 2012, which included her sale of four lots, a mobile-home park, and the School Box. Appellants assert that a property owner who is competent may dispose of property as he or she sees fit. Rose, supra. They argue that there is no evidence that any appellant exerted any fraud or undue influence on Annabelle to obtain her property, and the circuit court should be reversed.
Appellants also contend that the law presumes that Annabelle had the capacity to make the 2006 transfer. Appellants argue that the relevant time for determination of mental capacity is the time the will or deed is executed or, in this case, the time the stock transfer 119was made—June 2006. They argue that Jack was not appointed guardian of Annabelle until June 2013, and the testimony of Dr. Feir, who evaluated Annabelle in 2013, contradicts appellee’s allegation that Annabelle had been incompetent her entire life. They emphasize Dr. Feir’s testimony that Annabelle’s IQ of 59 was due to a cognitive decline and that Annabelle presented as a person with an IQ of 80. Further, they assert that Dr. Feir did not testify that Annabelle was incompetent at the time of the stock transfer in 2006. Appellants contend that Dr. Feir’s testimony was not conclusive, but must be considered with all other evidence bearing on the issue of competency. They cite Reed v. Radebaugh, 8 Ark. App. 78, 648 S.W.2d 816 (1983), where this court stated that the law presumes every person is sane, fully competent, and capable of understanding the nature and effect of his contracts.
Appellants assert that Joanne testified that Annabelle had taken care of her business and property interests following Jerome’s death in 2006. Further, Annabelle had served as executrix of Jerome’s estate. Following the stock transfer in 2006, Annabelle had lived with Clay at Grassy Lake until 2008. Clay testified that Annabelle had been in control of her own money and did -with it what she wanted, that she cooked for herself, took her medications on time, and was a bargain shopper. When she moved out of the cabin, she moved to a duplex she had inherited from Jerome and lived there with her partner Bill Cason. Appellants also point to Annabelle’s testimony recalling the members of her family, including her parents’ names, their years of death, and her dead siblings’ names and places of residence. Annabelle recalled working at Jerome’s hardware store and the School Box and the sale of the School Box. She testified that she did her own banking and recalled the name of her bank teller. She said that she presently lived at Hope Haven Assisted Living 120Center because she had fallen and could no longer live on her own. She recalled the sale of her interest in the 180 acres to the Blacks and said that she had received $1000 per month and hoped to continue to do so. Appellants emphasize that Annabelle wrote to Joanne after she had moved to Hope Haven to advise Joanne where to send the monthly payments. Finally, Annabelle testified to several conveyances from her to others not parties to this case spanning from 2009 through 2012.
Appellants argue that appellee’s testimony, that it would have been Annabelle’s decision what to do with the money had she received $150,000 at the time of the sale of her interest in the 180-acre tract, belies his assertion that Annabelle was incompetent. They claim that appellee offered no testimony of Annabelle’s incompetence in 2006, 2009, or any other material time prior to 2013. Appellants argue that, even though it may have been eccentric for Annabelle to live with her brother and work at the School Box, these things do not add up to incompetency under the law. They argue that Annabelle recalled the extent of her property, including what was owned at Jerome’s death, how she disposed of it, and to whom, and generally upon what consideration, and appellants claim that the law’s requirements were met. See Marston, supra. Appellants contend that Annabelle’s cognitive decline does not compel a finding that she lacked capacity to execute the 2006 stock transfer.
Appellants also contend that Annabelle was competent when she made the 2009 deed, and it was appellee’s burden to prove otherwise. See Noland, supra. They argue that appellee offered evidence that Annabelle was incompetent in 2013, but not in 2009, making the same argument made in relation to the 2006 transfer and pointing to Dr. Feir’s testimony. Appellants contend that Annabelle’s testimony contradicts a finding of incapacity |g1in 2009, as she testified to the details of her family, her property, and the disposal of her property. They further contend that it is speculation that Annabelle was incompetent in August 2009, and that speculation cannot overcome the presumption in the law that Annabelle had the mental capacity to execute the deed. See Petree, supra (no expert testimony of incapacity at time of contract); Pledger, supra (experts opining on incapacity not acquainted with the grantor until years after execution of deeds).
Appellee argues that Annabelle was incompetent and that there was ample evidence of her mental incapacity. We agree with his contention. Appellate courts defer to the superior position of the trial court to weigh the credibility of the witnesses and to resolve conflicts in witness testimony. See Hankins, supra.
Annabelle, was unable to recall when the property had been conveyed to Joanne and Charles, and she had difficulty recalling being present in Reynolds’s office during the negotiations to sell the property. Annabelle also exhibited a complete inability to comprehend the financial ramifications of the sale, expressing her belief that getting $10,000 was better than receiving $150,000. Joanne testified regarding her petition for appointment as Jerome’s guardian and her contention in 2006 that Annabelle could not serve as Jerome’s guardian because she had limited business experience and intelligence. Within two months of Jerome’s death, Annabelle transferred the stock in Grassy Lake to Clay and Travis. Reynolds initiated the discussions regarding the transfer of the stock share, Reynolds was Joanne’s employer for nearly thirty years, and both were in the real-estate business. Further, Reynolds was a stockholder in Grassy Lake and was on the board of directors at the time of Jerome’s death and subsequent transfer of his stock to Clay and Travis. Damon Young, |%>then-president of the hunting club, testified that he had never spoken to Annabelle about the transfer, Reynolds had initiated the discussion about the transfer in early June 2006, and his impression was that Jerome had left the stock share to Clay and Travis in his Will. Joanne testified that she did not know why the stock was transferred to her sons, but later stated that it was Jerome’s wish. Jerome’s note states that Annabelle was to leave the stock to Clay and Travis when she died, not during her lifetime. Reynolds testified that he could not say how much the share was worth, and later said that he did not know its worth. Young testified that the last stock sold for $400,000.
Testimony revealed that appellants were very close to Annabelle prior to and after Jerome’s death. However, after acquiring the share in Grassy Lake without payment, purchasing the real estate with owner financing, and moving Annabelle out of the cabin, appellants and Annabelle became estranged. Appellants testified that they had known and taken care of Annabelle for many years and knew that someone had always taken care of her. After her brother’s death, members of the Black family stayed with Annabelle. Annabelle was dependent on others, including the Blacks, for her transportation needs. The circuit court’s order sets out the relevant findings, and, in weighing the evidence and the credibility of the witnesses, it concluded that appellants had taken undue advantage of their relationship with Jerome and Annabelle and that they had systematically taken control of manipulating the assets given to Annabelle. As a result, appellants had obtained the share in Grassy Lake without any consideration.
We hold that the circuit court’s decision that Annabelle “did not understand what she was signing when presented with the documents for transfer of [the] share” was not | ^clearly erroneous. Appellee cites Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974), where the Arkansas Supreme Court set forth the rule as follows:
In the oft cited case of Kelly’s Heirs v. McGuire, 15 Ark. 555 (1855), the court announced that if one is ‘of such great weakness of mind, as to be unable to guard himself against imposition, or to resist importunity or undue influence, a contract, made by him under such circumstances, will be set aside. And it is not material from what cause such weakness arises. It may be from temporary illness, general mental imbecility ... the infirmity of extreme old age.’ The fact that a grantor is old and in feeble health is a circumstance bearing on the question of mental capacity as is gross inadequacy of price. Campbell v. Lux, 146 Ark. 397, 225 S.W. 653 (1920), McEvoy v. Tucker, 115 Ark. 430, 171 S.W. 888 (1914). Of course, we will not set aside contracts for mere inadequacy of price. Hawkins v. Randolph, 149 Ark. 124, 231 S.W. 556 (1921). The grantor’s disability must render him incapable of ‘intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his act.’ McEvoy v. Tucker, supra. Each case dealing with mental capacity must be decided on its own peculiar facts and circumstances. Hawkins v. Randolph, supra.
Id. at 912-13, 503 S.W.2d at 898.
Dr. Feir believed that Annabelle could not make appropriate financial decisions, and she thought Annabelle was not able to say “no” when it was needed for her well-being because she needed to please others. Dr. Feir stated that, with an IQ of 59, Annabelle could not make decisions that were logical or relevant. Addressing appellants’ contention that Dr. Feir did not testify that Annabelle was incompetent at the time of the 2006 and 2009 transfers, we note that under Noland, supra, proof of a grantor’s mental condition may be taken both before and after a conveyance as being relevant to determining her condition at the time of the conveyance. Dr. Feir’s evaluation was conducted in January 2013, and her findings were relevant because she concluded that Annabelle had never reached a level of average intelligence during her adult years, and her cognitive decline had been gradual and | a.jwould have occurred over a period of, potentially, more than six years before Dr. Feir’s evaluation. This period of decline encompasses the times when both conveyances occurred.
Joanne testified that she considered Annabelle to be “limited” in 2006 when Joanne petitioned to be appointed Jerome’s guardian. In making that application, a few months prior to the June 2006 transfer, Joanne made representations that Annabelle was an inappropriate guardian for her brother because she had limited business experience and intelligence. The fact that Annabelle had always lived with her brother and that he had cared for her is evidence reflective of Annabelle’s mental capacity at the time of both transfers. Prior to his hospitalization, Jerome requested that Joanne watch over Annabelle, and during his hospitalization and in the years following Jerome’s death, members of the Black family stayed with, and lived in the same home with, Annabelle. When it was discovered that Jerome had designated Annabelle as the executrix of his Will, Annabelle’s siblings objected to her serving due to her incompetency.
The circuit court, in its superior position to judge witness credibility and resolve disputed facts, found that appellants had exerted undue influence over Annabelle in the conveyance of the 180-acre tract, and due to the undue influence, Annabelle had been unable to competently enter into the transaction. Appellee contends that ample evidence supports the decision. We agree. Joanne testified that when she approached Annabelle about selling, Annabelle would not respond, completely ignoring Joanne. Joanne, being unable to elicit a favorable response on her own, turned to Reynolds to intervene to work out an agreement for the purchase. The only negotiation took place in Reynolds’s office, and Annabelle had not done any investigation into the value of the property. Annabelle |SKwas unable to recall when she had sold the property and initially testified that she could not remember going to Reynolds’s office, but later stated that she seemed to remember the meeting, adding that she had “had so much on [her].”
Reynolds convinced Annabelle to sell her interest in the property to Joanne and Charles for $150,000, and Annabelle was to self-finance the sale, with Joanne and Charles paying 5 percent interest and $1000 per month. Reynolds and Joanne were realtors. Joanne knew that, three years earlier, Annabelle had not been qualified to serve as her brother’s guardian because she had limited business experience and mental capacity, yet Annabelle was not represented during the sale process. The $1000 payments Annabelle was receiving showed no additional payment for interest, and Joanne was unable to testify as to the balance remaining under the conveyance nor was there a promissory note supporting the terms of the transaction or an amortization schedule to provide information as to the current debt owed to Annabelle.
Mental weakness, although not to the extent of incapacity to execute a deed, may render a person more susceptible to fraud, duress, or undue influence, and, when coupled with any of them, or even with unfairness, such as great inadequacy of consideration, may make a contract voidable, when neither such weakness nor any of these other things alone would do so. Watson, supra. When all the evidence in the record is considered, the circuit court’s determination that Annabelle was incompetent and subject to undue influence is not clearly erroneous.
12fiIV- Consideration
A property owner who is competent may dispose of property as he or she sees fit, and the question of consideration is immaterial when a conveyance is voluntary. Rose, supra. Appellants claim that the issue of consideration is irrelevant in regard to the 2006 transfer of the Grassy Lake share, not only because it was a voluntary conveyance, but also because it was a gift. Fletcher v. Fletcher, 2011 Ark. App. 89, 381 S.W.3d 129 (elements of an inter vivos gift: (1) sound mind of donor; (2) delivery of the property; (3) intent to make an immediate, present, final gift; (4) release by the donor of future dominion and control over the property; and (5) acceptance by donee)). Appellants claim that each of the elements of a valid gift were met here.
Appellee contends that lack of consideration is a relevant factor because it must be viewed in conjunction with the undue influence found by the circuit court. A present grant, absent fraud, mistake, or undue influence, which is delivered, accepted, and recorded, is valid without consideration. Goodwin v. Lofton, 10 Ark. App. 205, 662 S.W.2d 215 (1984). Gross inadequacy of price is a circumstance bearing on the question of mental capacity. Watson, supra. We agree that the transfer of the Grassy Lake stock worth at least $400,000 for no consideration is relevant to Annabelle’s mental capacity.
Appellants argue that $150,000 was adequate consideration for the purchase of Annabelle’s three-quarter interest in the 180 acres. They point to their acquisition of the remaining one-quarter interest for $45,000. Accordingly, they paid $195,000 for the 180-acre tract. Appellants argue that Bert Clem, a real-estate broker, testified that in his opinion the property was worth $425,000, but he did not opine what an undivided three-fourths ^interest was worth in 2009. Bobby Kesterson, a certified real-estate appraiser, testified that the best use of the property was for timberland, that in 2009 the bare land was worth $750 per acre, and his written appraisal reflected a value of $139,000. Kesterson also assumed that Jeff Neill’s appraisal of the timber at $117,000 was correct, and he testified that a house located on the property was worth about $50,000.
The circuit court concluded that the value of the 180 acres, including timber and improvements, was $302,637.50, and that the Blacks paid “less than market value price” for the property. Appellants contend that this is not a ground for setting aside the conveyance. Rose, supra (inadequacy of consideration does not afford grounds for setting aside a voluntary conveyance). Appellants claim that the inadequacy of price must be so great that it shocks the conscience before it may constitute setting aside a deed. Aberdeen Oil Co. v. Goucher, 235 Ark. 787, 362 S.W.2d 20 (1962); Sims v. Stovall, 127 Ark. 186, 191 S.W. 954 (1917); McDonald v. Smith, 95 Ark. 523, 130 S.W. 515 (1910).
Appellants argue that the terms of their purchase, $150,000 at 5 percent interest for a three-fourths interest in the property, would have been 66 percent of the amount that the circuit court determined the property to be worth. They contend that their purchase price does not shock the conscience. Annabelle testified that Jeff Neill had appraised the property in 2006, and Reynolds testified that the purchase price had been based on that and was discounted because of the partial interest. Appellants claim that this is not a situation where Annabelle was ignorant of the facts or did not have access to the same information as Joanne and Charles. They also claim that they paid significantly less for the remaining interest in the property—$45,000, or $250 per acre. Using the circuit court’s $302,637.50, the | ^remaining one-fourth interest was worth about $75,000. Therefore, appellants maintain that the consideration for the deed in 2009 does not shock the conscience, and even though the price might have been inadequate as viewed by appellee, that is not a sufficient basis to undo a voluntary conveyance under Arkansas law.
However, we agree with appellee’s assertion that inadequate consideration is a relevant factor in determining Annabelle’s mental capacity. Appellee argues that appellants incorrectly focus on inadequate consideration as the sole reason for the circuit court’s holding the 2009 deed null and void. We hold that the circuit court’s finding regarding consideration is but one factor in its determination of the existence and effect of undue influence and mental incapacity in the execution of the deed. Watson, supra. All the evidence supports the finding that Annabelle was underpaid for her interest in the land, and the supreme court has recognized that the fact that a grantor is old and in feeble health is a circumstance bearing on the question of mental capacity, as is gross inadequacy of price. Id. Therefore, we affirm on this issue.
V. Judgment for Cut Timber and Rescission
Appellants contend that the judgment against Joanne and Charles in the amount of $52,605.56, representing three-fourths of the timber proceeds, was based on the circuit court’s erroneous order declaring null and void the 2009 deed. Because the circuit court was not clearly erroneous in its decision to void the 2009 deed from Annabelle, the judgment against Joanne and Charles for harvesting timber off the property is valid and affirmed.
|a9Appellants also argue that, as a matter of law, the parties must be put into the same position as they were prior to the transaction, and the circuit court’s order does not return the parties to their prior positions. Cardiac Thoracic & Vascular Surgery, P.A. Profit Sharing Trust v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992). They argue that the monthly payments made to Annabelle should have been returned to them, along with the $75,000 in improvements to the cabin at Grassy Lake.
In cases of rescission, the parties are entitled to be placed, as nearly as circumstances will permit, in their respective positions at the time of the conveyance. Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292 (1976). Restoration or return to status quo is governed by equitable principles. Id. Equity requires that if two parties must suffer, the burden must be borne by the one who induced the loss. Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965). In cases of rescission, the party in possession of the land is deemed to owe payments for the rental value of the property, in addition to interest on those amounts. Bates, supra. The testimony at trial was that the fair rental value of the property was $1000 per month, and appel-lee requested that these payments be applied as rents.
Further, we agree with appellee’s contention that the evidence does not support any return on the improvements made by Reynolds on the cabin. There was no evidence of any increase in value to the property, and absent such evidence, trial courts do not err in not awarding these damages. Heifner v. Hendricks, 13 Ark. App. 217, 682 S.W.2d 459 (1985). Further, appellee requested that the trial court consider the value of any improvements to be in compensation for the use of the stock and its hunting rights. Accordingly, the circuit court’s order is not clearly erroneous.
lanVI. Statute of Limitations
Appellants argue that appellee’s claims regarding the 2006 stock transfer were barred by the statute of limitations. They contend that Arkansas Code Anno tated section 16-56-105 (Repl. 2005) imposes a three-year statute of limitations for claims founded on any contract or liability not in writing, as well as for claims of fraud. An action on a writing, including setting aside a deed, has a five-year limitations period. Ark. Code Ann. § 16-56-111. Appellants contend that appellee’s claims arise out of alleged fraud or undue influence on the part of appellants. They claim that the three-year statute applies, but argue that, even if the five-year limitation applies, the claims are time-barred because over seven years passed after June 2006 before the complaint was filed on November 18, 2013.
Appellants also contend that the statute tolling the limitation would not apply, as argued by appellee, because Annabelle was not under a disability at the time of the stock transfer. See Ark. Code Ann. § 16-56-116(a). Appellants contend that there was no testimony by Dr. Feir that Annabelle was incompetent in June 2006, and Annabelle did not have a guardian until 2013. Therefore, appellants argue that to say Annabelle was incompetent at the time of the transfer would be speculation.
Appellee first contends that the statute of limitations is an affirmative defense and appellants failed to raise this defense at trial and did not get a ruling on the issue. He contends that “it is well established that ‘something more than a mere assertion of an argument in the pleadings is required to preserve the issue for appellate review.’ ” Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 188, 60 S.W.3d 458, 461 (2001). However, regardless of whether the issue is preserved, appellee’s claim is not time-barred. Appellants’ |S1 contention that Annabelle’s disability did not exist at the time the cause of action accrued is inaccurate, as set forth above, and is contrary to our affirmation of the circuit court’s finding that Annabelle was acting under a mental incapacity in June 2006.
VII. Attorney’s Fees
Appellants contend that the circuit court erred in awarding attorney’s fees. Appellants first claim that there is no evidence in the record that appellee requested an award of attorney’s fees or specified the statute, rule, or agreement expressly authorizing an award of fees, pointing out that even though the circuit court’s order states that appellee’s counsel submitted an affidavit for fees and costs, neither the circuit court docket nor the record on appeal reflect any such affidavit. Appellants argue that this is fatal to the award, citing Crawford & Lewis v. Boatmen’s Trust Co., 338 Ark. 679, 1 S.W.3d 417 (1999), where the Arkansas Supreme Court could not reach the merits of whether the chancellor inadvertently omitted in the order any provision for attorney’s fees to the bank for its successful defense against Crawford & Lewis’s petition because Boatmen’s failed to submit a proper motion for fees under Arkansas Rule of Civil Procedure 54(e) (1999).
Second, appellants claim that there is no applicable statute, rule, or agreement authorizing an award of fees, which is fatal to the award. Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998). Appellants argue that this was not a breach-of-contract action that entitled ap-pellee to fees because the entire case centered on a theory of fraud and undue influence, which are tort theories to which Arkansas Code Annotated section 16-22-308 does not apply.
|S2Third, appellants contend that an attorney’s-fee award must be reasonable and, here, there was no motion or affidavit filed of record and, therefore, no way to assess reasonableness of the request. And fourth, appellants complain that the judgment is joint and several, yet the circuit court did not adjudicate any cause of ac tion against Reynolds or award relief against him. Thus, appellants claim that the fee award is error.
Nevertheless, we hold that any objection appellants may have had was not preserved for appeal, and this court cannot address the merits of their argument. Ap-pellee asserts that appellants never objected to (1) the circuit court’s directions, during the trial or in its posttrial order, that attorney’s fees would be determined post-trial, (2) appellee’s application for attorney’s fees to the circuit court, or (3) the order awarding such fees. Nor did appellants file a posttrial motion objecting to the award. Failure to object to an award of attorney’s fees to the circuit court constitutes a waiver of the objection. To preserve the issue of attorney’s fees for review on appeal, an appellant must raise the issue to the circuit court at least by filing a motion to amend the judgment pursuant to Arkansas Rule of Civil Procedure 52(b). Washington v. Kingridge Enters., 2014 Ark. App. 705, 450 S.W.3d 685.
In their reply brief, appellants contend that the issue of attorney’s fees is preserved, arguing that there was no fee petition for them to challenge. Further, they claim that in their posttrial motion under Rule 52, they asked for dismissal of appel-lee’s complaint “at Plaintiffs cost,” among other relief. They argue that, in other words, appellants asked that | ssappellee bear his own costs, which includes attorney’s fees, as set forth in the circuit court’s order, and the circuit court denied that request. Appellants contend that their request for relief on this issue via posttrial motion is sufficient to preserve the issue for appeal under Washington, supra. Regardless, appellants contend that reversal of the circuit court’s order on the merits of this case necessarily requires reversal of the attorney’s fee award.
Appellants’ argument is not well taken because, in order to preserve an issue for appellate review, appellants were obligated to obtain a specific ruling on it from the circuit court. The Arkansas Supreme Court has held that it will not review a matter on which the trial court has not ruled, and a ruling should not be presumed. Fordyce Bank & Trust Co. v. Bean Timberland, Inc., 369 Ark. 90, 94, 251 S.W.3d 267, 270 (2007). Accordingly, we cannot presume that the circuit court considered attorney’s fees when it ruled on appellants’ request for appellee to bear his own costs.
Affirmed.
Kinard and Hixson, JJ., agree.
. We address appellants’ arguments by combining the issues contained within their arguments related to the transfers of the share and deed under three headings: (III) Undue Influence and Competency; (IV) Consideration; and (V) Judgment for Cut Timber and Rescission.
. Appellee's first amended complaint added Reynolds as a defendant and alleged that, after appellees took possession of it, Reynolds paid for substantial improvements to the cabin at Grassy Lake in the amount of $78,519.24. Appellee’s second amended complaint added Clay as a defendant.
. The one-fourth interest in the 180-acre tract was owned previously by Patricia Holloman, Jerome’s and Annabelle’s sister.
. We acknowledge that appellants contend that, contrary to the statement by the circuit court, an affidavit was not filed and the circuit court awarded attorney's fees without proper documentation. In that event, appellants should have filed a postjudgment objection to bring the issue to the attention of the circuit court. See Washington, supra. | [
-16,
-20,
-52,
60,
8,
-31,
42,
-72,
90,
-13,
97,
83,
-81,
-54,
17,
41,
-32,
77,
69,
105,
-45,
-77,
55,
-96,
16,
-13,
25,
-57,
-80,
77,
-10,
-41,
12,
48,
-118,
29,
-58,
-94,
-123,
88,
-106,
75,
-117,
100,
73,
67,
48,
-69,
30,
79,
17,
-66,
-14,
41,
-71,
107,
72,
44,
127,
47,
88,
120,
27,
14,
-37,
22,
49,
-76,
-112,
-95,
106,
74,
-112,
53,
0,
-24,
115,
-76,
-106,
116,
11,
-103,
-116,
118,
115,
1,
76,
-49,
-15,
-118,
6,
62,
-99,
-89,
-38,
88,
18,
14,
-105,
-105,
92,
-48,
68,
124,
102,
-115,
28,
96,
-96,
-50,
-108,
-111,
-91,
-72,
-36,
19,
-29,
111,
52,
85,
-51,
-62,
80,
68,
48,
27,
-122,
-109
] |
MIKE MURPHY, Judge
|tOn June 10, 2016, Kevin Spencer Owens, Sr., was convicted by a jury of three counts of delivery of methamphetamine and sentenced to twenty-three years’ imprisonment. On appeal, he argues that the trial court erred by (1) granting the State’s motions in limine precluding him from questioning the criminal informant about his prior convictions and sentences; (2) prohibiting him from eliciting testimony from four witnesses about his family and work history; and (3) allowing the State’s rebuttal witness to testify. We find no error, and affirm.
I. Background
In November 2014, the Fort Smith police set up a controlled buy with Owens through a paid criminal informant. In exchange for $100, the criminal informant, who had a long criminal history, purchased an eighth of an ounce of methamphetamine from Owens 12for $250. The police provided the money for the purchase to the informant, and he wore a wire during the transaction.
The criminal informant set up another controlled buy in January 2015. This time, the informant introduced Owens to an undercover police officer, David Stewart, who made the purchase. Stewart, while wearing a wire, purchased about half an ounce of meth for $750. For facilitating the delivery, Stewart let Owens keep 1/16 of an ounce of the meth.
Stewart set up a third controlled buy directly with Owens in February 2015 for another half ounce. Owens received 1/16 of an ounce of meth as payment for the delivery on that occasion, as well.
Owens was charged with three counts of delivery of methamphetamine. At trial, Owens argued the affirmative defense of entrapment, contending the police and the informant lured or baited Owens to commit the crime by preying on his addiction when they tempted him with meth in exchange for delivering the drugs.
II.Entrapment
Entrapment occurs when a law-enforcement officer or any person acting in cooperation with a law-enforcement officer induces the commission of an offense by using persuasion or other means likely to cause a normally law-abiding person to commit the offense. Ark. Code Ann. § 5-2-209 (Repl. 2013). Conduct merely affording a defendant an opportunity to commit an offense does not constitute entrapment. Id. When proving the affirmative defense of entrapment, a defendant is allowed reasonable latitude in presenting whatever facts and circumstances he claims constitute an entrapment, subject to ordinary rules of admissibility. E.g., Young v. State, 308 Ark. 647, 651, 826 S.W.2d 814, 816 (1992). Evidence having any tendency to make the existence of entrapment more probable is admissible. See, e.g., id.; Ark. R. Evid. 401.
III.Standard of Review
Trial courts are afforded wide discretion in evidentiary rulings. McCoy v. State, 354 Ark. 322, 325, 123 S.W.3d 901, 903 (2003). Specifically, in issues relating to the admission of evidence under Arkansas Rule of Evidence 401, we have held that a trial court’s ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Id. Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004).
IV.Motions in Limine
Prior to trial, the State filed two motions in limine seeking to prohibit Owens from attacking the credibility of the criminal informant through his convictions that were more than ten years old and from eliciting testimony about the sentences the informant received for those convictions. The trial court granted the motions, and Owens argues this was in error, Owens contends he was not seeking the testimony for impeachment purposes, but instead because the testimony was independently relevant to his entrapment defense under Arkansas Rule of Evidence 401.
Owens asserts the informant’s criminal history and sentences were necessary to determine what the informant may have told Owens to establish he was not a snitch or a cop, thereby persuading or inducing Owens to commit the crime.
l4We disagree. It seems rather attenuated that an informant discussing his reputation should induce or persuade someone to commit a crime. To be fair, it might make a would-be criminal more likely to trust the informant, but this is not the same thing as inducing one to act through persuasion. See Ark. Code Ann. § 5-2-209 (Repl. 2013). Furthermore, Owens could not demonstrate any prejudice on this point, as the jury had already heard, through the criminal informant’s own testimony during the State’s case-in-chief, that he had an extensive criminal history. Because the testimony Owens sought to elicit was already in evidence, he could not dem onstrate any prejudice on appeal, and court will not reverse an evidentiary ruling absent a showing of prejudice. Sauerwin v. State, 363 Ark. 324, 327, 214 S.W.3d 266, 269 (2005).
V. Exclusion of Witnesses
At trial, the court sustained several of the State’s relevancy objections to testimony regarding Owens’s life history, including his marriage, job history, and interactions with his children, Owens argues this was relevant to establish that he was a normally law-abiding person, because the testimony would have established that, prior to 2005 when Owens became addicted to methamphetamine, he had a solid job, a good marriage, and a good relationship with his son.
In the context of this case, “relevant” means evidence that had any tendency to make the existence of entrapment any more or less probable. See Ark. R. Evid. 401. While evidence may be relevant even though it is somewhat remote in time from the occurrence of the crime, see Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991), whether or not Owens was a good person in 2005 does nothing to demonstrate if he was a normally law-abiding person ten years later when the crimes were committed.
The balancing of probative value against prejudice is a matter left to the sound discretion of the trial court, and the court did not abuse its discretion in finding the testimony too remote and therefore irrelevant in this instance.
VI. Rebuttal Witness
“Deliver” or “delivery” requires actual, constructive, or attempted transfer of a controlled or counterfeit substance from one person to another in exchange for money or anything of value, Ark. Code Ann. § 5-64-101(6)(Repl. 2016), and the State had the burden to prove that occurred here.
It is within the trial court’s discretion whether to admit rebuttal testimony, and the appellate court will not reverse this determination absent an abuse of that discretion. Kincannon v. State, 85 Ark. App. 297, 303, 151 S.W.3d 8, 12 (2004). Rebuttal evidence is evidence that is offered in reply to new matters, even if it overlaps the evidence presented in the State’s case-in-chief, as long as the testimony is responsive to evidence presented by the defense. Id. The scope of a rebuttal witness’s testimony is accorded wide latitude and will not be restricted merely because it could have been presented on direct examination. Id.
At trial, Owens consistently testified that he did not keep any of the money exchanged for the methamphetamine, and that he received only a fraction of the drugs as payment. The State called Paul Smith, the director of the Drug Task Force for Sebastian and Crawford Counties, to establish that the drugs Owens received for the transaction | (¡constituted something of value. Owens objected, arguing that, because he never denied receiving the drugs as payment, the testimony was irrelevant and should have been excluded.
Owens reasons that the evidence of whether payment was received is not relevant under Rule 401 because “when the defense of entrapment is invoked, it is necessarily assumed that the act charged was committed,” and “the only relevant issue in the case was whether or not entrapment had occurred.” He cites Young v. State, 308 Ark. 647, 826 S.W.2d 814, but Young was abrogated in 2011 by Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257, which concluded that a defendant could, in fact, assert the entrapment defense even if he denies one or more elements of the crime. Despite Owens’s argument on appeal, the State was never relieved of its burden to prove that he facilitated the transaction in exchange for money or something of value beyond a reasonable doubt. Owens denied taking any money but did concede he received drugs as payment. The State put Smith on to testify that drugs constituted something of value as contemplated by the statute. This is appropriate rebuttal testimony, and the trial court was not remiss in allowing it.
Affirmed.
Whiteaker and Vaught, JJ., agree. | [
16,
-24,
-23,
-67,
58,
96,
58,
56,
3,
-13,
108,
113,
-17,
84,
1,
51,
-115,
95,
116,
97,
-44,
-77,
101,
96,
-48,
-45,
58,
-61,
-75,
79,
36,
-44,
29,
48,
-58,
21,
98,
80,
-13,
88,
-118,
33,
-125,
82,
115,
2,
60,
-89,
21,
71,
97,
14,
59,
42,
24,
-53,
73,
40,
75,
-67,
-8,
89,
-109,
103,
-20,
52,
-77,
36,
-71,
36,
-8,
94,
-40,
51,
33,
104,
123,
-74,
-110,
116,
73,
11,
-116,
32,
98,
32,
-52,
-17,
-76,
-20,
62,
-85,
-97,
-89,
88,
65,
75,
13,
-66,
-9,
62,
18,
14,
-8,
115,
12,
113,
108,
-121,
-25,
20,
-112,
47,
32,
22,
-109,
-21,
21,
16,
84,
-50,
-26,
84,
20,
120,
-101,
-114,
-109
] |
BART F. VIRDEN, Judge
| iThis case involves alleged inadequacies in the assignment and foreclosure of a mortgage. Appellant Brad Davenport claims that the Faulkner County Circuit Court erred in granting the motion for summary judgment filed by appellee Deutsche Bank Trust Company, as trustee, in trust for the registered holders of Morgan Stanley ABS Capital I Trust 2006-HE7 Mortgage Pass-Through Certificates, Series 2006-HE7 (“Deutsche Bank”). The motion for summary judgment covered both the claims in Davenport’s complaint and in Deutsche Bank’s counterclaim for foreclosure on the mortgage. On appeal, Davenport presents a multitude of theories as to why Deutsche Bank lacked legal possession over both his mortgage and the accompanying notes, making it an improper party to | ^foreclose. However, we are without jurisdiction due to an untimely notice of appeal and, therefore, have no choice but to dismiss the appeal.
In June 2006, Davenport gave a first and second mortgage on his home to New Century Mortgage. Wesley Snodgrass of American Residential Mortgage brokered the deal. Some months later, Deutsche Bank bought these two mortgages and the related notes in a secondary market. Bank of America (BOA) serviced the notes, including accepting payments for Deutsche Bank.
By letter dated June 9, 2009, Davenport sent Deutsche Bank and BOA a notice that purported to rescind the loan transaction based on constructive fraud. Thereafter, Davenport filed several suits against Deutsche Bank and other lenders involved with Davenport’s notes and mortgages. These cases were originally filed in state courts and removed to federal court. The claims were ultimately dismissed and are not at issue in this appeal.
In December 2010, Davenport filed suit in Lonoke County Circuit Court against Snodgrass and TBS Investments doing business as American Residential Mortgage for fraud, violation of the Truth in Lending Act (TILA), violation of the Arkansas Deceptive Trade Practices Act (ADTPA), breach of contract, and outrage. These claims were based on allegations that Snodgrass had forged Davenport’s signature to certain documents and had failed to provide Davenport with certain required disclosures. The Lonoke County Circuit Court entered judgment in Davenport’s favor in the sum of $250,000 on July 26, 2012.
On January 10, 2014, Davenport filed the present action to stop Deutsche Bank and its attorneys, Marinosci Law Group, P.A., from proceeding with a nonjudicial statutory foreclosure on the notes and mortgages. The allegations of his complaint make it clear that |ahe is unhappy with the securitization process by which much of the residential-mortgage lending is funded. He asserted causes of action for violations of the ADTPA and the nonjudicial foreclosure act. One of his allegations was that, because the note and mortgage had been securitized, it could no longer be enforced through foreclosure. In addition, he asserted that Deutsche Bank was guilty of unclean hands and that he was entitled to a setoff of the judgment he had received against Snodgrass and TBS Investment in the amount of $250,000.
After Davenport had obtained a temporary restraining order from the circuit court enjoining the sale of the property, Deutsche Bank agreed to cancel the foreclosure sale. The circuit court would later find that Davenport’s request for a temporary restraining order was moot.
Deutsche Bank answered, denying the material allegations of the complaint. It filed an amended answer and counterclaim seeking a judicial foreclosure. The bank asserted that Davenport was in default and had failed to cure the default after notice. The counterclaim asserted that the note was indorsed in blank by New Century and, with the mortgage, assigned to Deutsche Bank, but that the assignment was lost and could not be found. Deutsche Bank further attached an affidavit regarding the lost or misplaced assignment. Davenport denied the material allegations pertaining to the assignment of the note and mortgage and his default in payment.
On June 15, 2015, Deutsche Bank filed a motion for summary judgment as to both Davenport’s complaint and its own counterclaim for foreclosure. Davenport filed a response and supporting brief to the bank’s motion for summary judgment. The court held a hearing |4on the motion for summary judgment and, at the conclusion of the hearing, took the matter under advisement. While awaiting the court’s ruling on the motion, on December 4, 2015, Davenport filed an amended complaint. In addition to the claims contained in his original complaint, Davenport asserted a claim for damages and for rescission based on alleged violations of the TILA.
On December 18, 2015, Deutsche Bank filed a motion to strike the amended complaint as prejudicial for unduly delaying resolution of the case. In the alternative, the motion asserted that the amended complaint should be dismissed for failure to state facts upon which relief could be granted. Davenport responded to the motion to strike.
On January 27, 2016, the circuit court granted Deutsche Bank’s motion for summary judgment and granted it a decree of foreclosure. The court granted Davenport’s request that he be declared the owner of the property, subject to Deutsche Bank’s mortgage interest. The court found that Davenport was in default in making his payments under the note and had failed to cure the default. The court found that Davenport’s claim for injunctive relief was moot. The court further found that Davenport’s ADTPA claims failed as a matter of law because the ADTPA did not apply to Deutsche Bank’s actions. The court further concluded that, assuming the ADTPA applied, such claims failed as a matter of law because they were barred by the applicable statute of limitations, Davenport lacked standing to challenge the validity of the mortgage securitization or the validity of the assignment, and the assignment was not required to be recorded. The court further found that Davenport’s request to setoff the $250,000 judgment against Snodgrass against any sums owed to Deutsche Bank was barred by res judicata. Additionally, the court found that Deutsche Bank |sbore no responsibility for Snodgrass’s actions or the judgment entered against him. Based on these findings, the court granted summary judgment to Deutsche Bank on its counterclaim for foreclosure. Deutsche Bank was granted judgment in the amount of $219,310.75, representing $173,346.05 in unpaid principal, $34,047.44 in accrued and unpaid interest as of May 21, 2015, and $11,917.26 in other fees and charges. The judgment was in personam against Davenport and in rem against the property. Deutsche Bank was awarded attorney’s fees of $40,289. The circuit clerk was appointed as commissioner to sell the property.
On February 1, 2016, the circuit court granted Deutsche Bank’s motion to strike the amended complaint. Davenport filed his notice of appeal on February 11, 2016, from both the order granting summary judgment and the order striking his amended complaint.
An agreed order was entered on February 18, 2016, dismissing Davenport’s claims against the Marinosci Law Group.
We begin by addressing whether we have jurisdiction of this appeal. While neither party raises the issue, the timely filing of a notice of appeal is a jurisdictional issue this court is obligated to raise sua sponte. See, e.g., Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, 363 S.W.3d 321; Tissing v. Ark. Dep’t of Human Servs., 2009 Ark. 166, 303 S.W.3d 446. We must therefore determine whether Davenport has filed a timely notice of appeal.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil states that an appeal may be taken from a final judgment or decree. A final order is one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy. Stewart v. Estate of Herring, 2016 Ark. App. 83, 2016 WL 637227. Absent a final order or a properly | (¡executed certificate from the circuit court making an “express determination, supported by specific factual findings, that there is no just reason for delay,” then an order that fails to adjudicate all of the parties’ claims cannot be appealed. Ark. R. Civ. P. 54(b). The summary-judgment order entered on January 27, 2016, disposed of Davenport’s claims against Deutsche Bank and the bank’s counterclaim seeking foreclosure. However, at the time, Davenport’s claims against the Marinosci Law Group had not been disposed of, making the summary-judgment order not final for purposes of appeal. Thus, Davenport’s notice of appeal from the summary judgment and the order striking his amended complaint was a nullity. See Servewell Plumbing, LLC v. Summit Contractors, Inc., 360 Ark. 521, 202 S.W.3d 525 (2005) (per curiam).
We recognize that the law firm was named as a party solely as part of Davenport’s request for a temporary restraining order to prevent a foreclosure sale from proceeding. Deutsche Bank later canceled the sale and proceeded with its counterclaim seeking judicial foreclosure. The circuit court would later find Davenport’s claim for a temporary restraining order moot. The order striking Davenport’s amended complaint was entered on February 1, 2016. Davenport filed his notice of appeal from both orders on February 11, 2016. It was not until an agreed order was entered on February 18, 2016, that the Marinosci Law Group was actually dismissed from the ease. However, the first notice of appeal was a nullity, and Davenport did not file another notice of appeal after the summary judgment had become final upon the dismissal of the law firm.
Although the notice of appeal complies with Ark. R. App. P.-Civ. 3(e)(vi) by stating that Davenport abandons all pending and unresolved claims, that does not save the appeal. |70ur supreme court has held that the rule does not allow an appealing party to dismiss a party from the action by such a statement in a notice of appeal or notice of cross-appeal. See Ford Motor Co. v. Washington, 2012 Ark. 354, 2012 WL 4471126. Instead, that rule allows the dismissal of stray claims. Here, we are dealing with a stray party.
Because no notice of appeal was filed after the summary judgment had become final, we must dismiss the appeal.
Appeal dismissed.
Abramson and Gladwin, JJ., agree. | [
-10,
102,
-40,
110,
10,
96,
60,
-102,
-46,
4,
47,
-45,
109,
-58,
20,
109,
-28,
13,
-28,
96,
-41,
-78,
39,
96,
-46,
-78,
-55,
71,
-66,
107,
-11,
-107,
76,
32,
-54,
-9,
102,
-94,
-25,
92,
14,
5,
41,
69,
-7,
65,
52,
-81,
28,
77,
17,
-67,
-4,
45,
-71,
72,
108,
42,
-41,
45,
-64,
-71,
-101,
7,
-7,
19,
-95,
37,
-120,
3,
-22,
-72,
-112,
57,
5,
-23,
115,
22,
-122,
116,
69,
25,
9,
100,
98,
0,
5,
-49,
-96,
-120,
47,
-35,
-97,
-90,
-102,
72,
67,
47,
-66,
-100,
124,
22,
6,
-36,
102,
-52,
25,
109,
-125,
-50,
-44,
-109,
28,
-12,
24,
11,
-10,
-98,
52,
112,
-51,
-16,
93,
85,
27,
58,
-98,
-11
] |
ROBERT J. GLADWIN, Judge
hAppellants Lester Fulmer, Rob Bentley, Robert Best, and Carl Chilson appeal the October 8, 2015 order entered by the Cleburne County Circuit Court granting the motion for summary judgment filed by appellees William Hurt, Michael Hoover, and Mobility Lift Systems, LLC (“MLS”). On appeal, appellants argue that the trial court imposed a higher standard of misconduct by appellees needed to support piercing the corporate veil than is required by Arkansas law. This appeal initially arose from an earlier lawsuit and related appeals in the Cleburne County Circuit Court between the plaintiffs/appellants and Hurt-Hoover Investments, LLC (“HHI”) d/b/a MLS, of which individual defendants/appellees Hurt and Hoover are the sole members.
|2I. Facts
The events leading to this particular appeal began with the signing of an “Interests Purchase and Sale Agreement” (“Agreement”) dated June 19, 2008, between appellants and HHI. In the Agreement, appellants agreed to sell, and HHI agreed to purchase, all the interests of appellants in H20 Lifts and Ramps, LLC (“H20”), of which appellants were the sole owners.
HHI agreed to pay appellants $955,000, with an initial payment of $400,000 in cash at closing, and the remaining $550,000 to be paid by promissory notes from HHI to the respective appellants as follows: (i) Lester Fulmer, $249,750; (ii) Rob Bentley, $194,250; (iii) Robert Best, $55,500; and (iv) Carl Chilson, $55,500. Each note was to be paid in thirty-six monthly installments, starting October 1, 2008, and continuing on the first day of each month thereafter until September 1, 2011, when the final installments of all remaining principal were due.
The Agreement was drafted by HHI’s attorney, Robert Jones, at the request of Hoover. Hoover specifically directed Jones to include a right of HHI to offset against appellants’ promissory notes in the Agreement. In addition, Jones included the procedure that HHI would follow to assert any offsets.
Appellants were not represented by counsel in the negotiation and execution of the Agreement, and the terms of the indemnity provisions therein were not explained to them at closing. Immediately after the closing on June 19, 2008, HHI assumed control of the business, but Hoover did not conduct an inventory of the assets before the closing because there was a provision in the Agreement to offset any difference that existed after the sale. IsOnly in September 2008 did HHI actually take possession of and move the parts and equipment to Jonesboro. On July 3, 2008, Hoover and Hurt formed a limited liability corporation named “Lifts, People-Mobility, LLC,” the name of which was changed to MLS on September 3, 2008. The acquired assets of H20 were transferred to MLS, and that new LLC continued to operate the business under its name.
The initial installment payments on the promissory notes to appellants were due on October 1, 2008. However, when those payments became due, HHI, through Hoover, notified appellants by letter that it was claiming offsets against the notes, and then immediately deducted those offsets without following the procedure set out in the Agreement. Additional offsets against subsequent installment payments were similarly claimed by HHI without notifying appellants or following the procedures.
Appellees acknowledge that appellants’ ownership in H20 was purchased as a “going business” and that they assumed the liabilities of H20 as well as its assets. Notwithstanding, Hoover testified that he did not accept the current normal business expenses of H20 incurred before closing. Offsets claimed included H20’s normal business expenses prior to closing; charges for services ordered by Hoover after the closing; charges for the value of equipment the parties had, prior to the sale, agreed was obsolete; and estimates of future sales that did not develop. Those offsets collectively amounted to more than the cumulative total of all the promissory notes.
After appellants objected to these offsets, HHI made a partial payment on one installment of the notes on April 3, 2009. Fulmer received a check for $135.75; Bentley was |4paid $105.58; and Best and Chilson each received $30.16. Those checks were not cashed or deposited by appellants.
Appellants filed suit against HHI d/b/a MLS on August 28, 2012, alleging breach of contract by appellees. The suit resulted in the following jury verdicts in favor of appellants: for Fulmer, $294,705; for Bentley, $229,215; for Best, $65,490; and for Chilson, $65,490. A judgment totaling $651,490, including interest, was entered on August 22, 2012. A garnishment served on HHI’s bank account in May 2013, realized $4,391.44. That is the only sum that has been paid on the judgment, and Hurt and Hoover have individually paid nothing on the obligation since that time. HHI, doing business as MLS, is continuing to operate H20. Hoover and Hurt have stated that they plan to pay the remainder of the judgment when the profits from the business are sufficient.
This suit filed on August 28, 2012, attempted to pierce the corporate veil of HHI based on the actions of HHI, and Hurt and Hoover individually, to use the corporate shield of HHI to avoid payment of and render valueless the promissory notes given by HHI to appellants as a major portion of the consideration for H20. Appellees filed a motion for summary judgment, to which appellants responded, and appellees then replied. Following a hearing, the trial court granted the motion pursuant to an order entered on October 8, 2015. A notice of appeal and a supplemental notice of appeal were timely filed on November 4 and 12, 2015, respectively.
II. Standard of Review and Applicable Law
Summary-judgment motions are governed by Arkansas Rule of Civil Procedure 56(c)(2) (2016), which provides:
IfiThe judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion. A partial summary judgment, interlocutory in character, may be rendered on any issue in the case, including liability.
Summary judgment is appropriately granted by a trial court only when there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Delanno, Inc. v. Peace, 366 Ark. 542, 237 S.W.3d 81 (2006). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof to demonstrate the existence of a material issue of fact. Id. On appellate review, the court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. The appellate court reviews the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. That review focuses not only on the pleadings, but also on the affidavits and other documents. Id.
III. Grant of Summary Judgment Regarding Piercing the Corporate Veil
At issue in this case attempting to pierce the corporate veil is whether the persons acting through the corporation or LLC form have, in some way, abused that form to perpetuate a “fraud or an injustice.” Appellants note that, at the hearing on the motion for summary judgment, the trial court accepted appellees’ argument that appellants must prove an illegal act or fraud in order to pierce the corporate veil. The trial court stated that “in order for this court to pierce the corporate veil—and I’m citing out of the Anderson v. Stewart case—the court will disregard the corporate form when the corporate form has been illegally abused to the injury of a third party.” Appellants do not disagree with that statement; however, they assert that there is authority from Arkansas appellate court decisions that supports the piercing of the veil in the absence of an illegal or fraudulent act where the actions by the corporation or corporate officer perpetrate an injustice on the plaintiff. See McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007); Ark. Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994); Woodyard v. Ark. Diversified Ins. Co., 268 Ark. 94, 594 S.W.2d 13 (1980); Winchel v. Craig, 55 Ark. App. 373, 934 S.W.2d 946 (1996) (holding that courts will ignore the corporate form where fairness demands).
While the word “fraud” appears in some cases relating to veil-piercing, appellants submit that it is not the only type of conduct that courts have held will support a piercing of the corporate veil. Other less heinous conduct, such as “hindering and delaying creditors” and “evading a contract obligation” have also been held out to be acts that will support piercing the veil. See Anderson, supra; EnviroClean, Inc. v. Ark. Pollution Control & Ecology Comm’n, 314 Ark. 98, 858 S.W.2d 116 (1993); Winchel, supra. Appellants reiterate that not all of the conduct referred to by the decisions involves activity that rises to the level of actual fraud or criminal equivalent conduct.
Appellants agree that appellees must be shown to have engaged in some kind of deceptive activity, but they urge that the trial court, in adopting appellees’ argument that fraud or illegal conduct must be shown, held appellants to too high a standard. Appellants argue that Arkansas’ appellate decisions have frequently held that common instances in 17which the separate corporate identity may be disregarded are when the corporation attempted to, among other things, hinder, delay, and defraud creditors, or evade a contract or tort obligation. See Fausett Co. v. Rand, 2 Ark. App. 216, 619 S.W.2d 683 (1981).
Appellants claim that these cases are consistent with a standard more open to proof of deception supporting the piercing of the corporate veil than the more rigorous standard of criminal fraud or illegal activity that was urged by appellees and adopted by the trial court.
We disagree and hold that the trial court applied the correct legal standard and appropriately granted summary judgment because appellants failed to meet proof with proof in their summary-judgment pleadings. The record reflects that appellants offered no proof that appellees illegally abused HHI or engaged in fraud, deception, or conduct sufficient to justify piercing the veil.
In K.C. Properties of Northwest Arkansas, Inc. v. Lowell Investment Partners, LLC, 373 Ark. 14, 280 S.W.3d 1 (2008), our supreme court analyzed piercing the veil of an entity and stated that “the court will disregard the corporate facade when the corporate form has been illegally abused to the injury of a third party.” Id., at 32, 280 S.W.3d at 15 (citations omitted). The issue of whether the corporate entity has been fraudulently abused generally is a question for the trier of fact, and the one seeking to pierce the corporate veil and disregard the corporate entity has the burden of proving that the corporate form was abused to his or her injury. See id.
Though our courts have stated that whether the corporate form has been abused is a factual issue, summary judgment has been granted when a plaintiff lacked sufficient proof to proceed. See, e.g., K.C. Props., supra; Nat’l Bank of Commerce v. HCA Health Servs., of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990); Bonds v. Hunt, 2010 Ark. App. 415, 379 S.W.3d 57; Fausett, supra.
Recent decisions from this court have followed the standards espoused in K.C. Properties, supra, and Anderson, supra. And in Bonds, supra, we held that the trial court erred when it permitted a plaintiff to pierce a corporate veil and hold its shareholder personally liable simply because he knew of an amount owed by the corporation and the course of conduct between parties—there was no evidence of fraud or abuse of the corporation to justify piercing the veil and holding him personally liable. Id.
Similarly, in Rhodes v. Veith, 80 Ark. App. 362, 96 S.W.3d 734 (2003), the plaintiff could not pierce a corporate veil to satisfy the judgment against the corporation with the shareholders’ assets. The trial court specifically found “that there was no fraud, illegality, or overreaching,” id. at 363, 96 S.W.3d at 736, nor was there “evidence of an improper motive, of an illegal objective, or of overreaching,” id. at 365, 96 S.W.3d at 737, by the shareholders.
These cases support the proposition that in order to pierce a corporate veil, a plaintiff must have evidence of fraud, illegal conduct, or abuse of an entity for the specific purpose of injuring a third party. See also EnviroClean, supra; Winchel, supra; Fausett, supra. Despite appellants’ argument that appellees abused their right of setoff contained in the Agreement by (1) claiming numerous setoffs that had no basis in law or fact to the point where the amount of those setoffs exceeded the total amount of the debt; and (2) totally disregarding the indemnification procedures, further showing their lack of good faith, we hold that the record before us is void of evidence of any action by the trial court to indicate that a higher standard of misconduct was required by appellees or required appellants to prove criminal | nbehavior. In response to the motion for summary judgment, appellants were required to meet the correct burden of proof and nothing more, and we hold that they failed to do so.
Appellees were granted summary judgment because appellants produced insufficient proof to justify piercing the veil of HHI. HHI has incurred annual losses, yet Hurt and Hoover have contributed money every year to keep HHI in business, have not dissolved HHI or formed another entity to avoid payment of the judgment, and have not taken assets from the business, either personally or for the benefit of any third party. The requisite business formalities set out in the Arkansas statutes have been followed, and appellants failed to demonstrate in their summary-judgment pleadings that HHI, as a separate legal entity, has been abused in any form to cause them injury. When there is no evidence of fraud, individual investors are entitled to be dismissed. See Bonds, supra. Because we agree that there is no material issue of fact left unanswered, we affirm the trial court’s grant of summary judgment.
Affirmed.
Abramson and Virden, JJ., agree.
. See Hurt-Hoover Investments, LLC v. Fulmer, 2013 Ark. App. 621 (Hurt-Hoover I), affirming a jury verdict of $651,490 entered in favor of appellants in a suit filed for breach of contract against HHI, and ultimately affirmed by Hurt-Hoover Investments, LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696 (Hurt-Hoover II).
. Anderson v. Stewart, 366 Ark. 203, 234 S.W.3d 295 (2006). | [
-12,
120,
-119,
44,
8,
-30,
26,
-70,
123,
-85,
103,
91,
-29,
-36,
1,
123,
-29,
127,
-59,
99,
-39,
-77,
67,
49,
-62,
-13,
121,
67,
-80,
79,
52,
-43,
92,
12,
-50,
13,
-58,
-62,
-17,
94,
-82,
0,
11,
108,
-23,
65,
48,
-13,
20,
69,
17,
-98,
58,
108,
61,
-53,
76,
46,
123,
60,
-46,
-16,
-85,
13,
-33,
5,
-96,
6,
-100,
35,
-6,
94,
-104,
-71,
33,
-56,
18,
54,
-126,
-12,
65,
11,
4,
36,
115,
16,
81,
-25,
112,
-68,
15,
-114,
-115,
-105,
-16,
9,
18,
11,
-1,
-99,
82,
6,
28,
124,
-6,
12,
89,
105,
-126,
-50,
-110,
-125,
55,
100,
92,
3,
-18,
7,
52,
116,
-113,
-30,
84,
6,
59,
-121,
68,
-78
] |
BRANDON J. HARRISON, Judge
_JjThomas Stuart appeals from the circuit court’s order affirming the Arkansas Department of Finance and Administration’s Office of Driver Services’ (DFA) decision to suspend his commercial driving privileges for one year and his noncommercial driving privileges for six months. He argues that the police officer did not have reasonable grounds for initiating a traffic stop and that the statement-of-rights form did not adequately inform him of the consequences of refusing a chemical test. We affirm.
On 19 July 2015, Stuart was arrested and charged with driving while intoxicated (DWI) and refusal to submit to chemical test. As a result, Stuart’s driver’s license was suspended, and his commercial driver’s license (CDL) was disqualified. He requested an administrative hearing to contest the suspension, and DFA conducted a hearing on 6 August 2015. The written summary from that hearing found as follows:
laTHIS CONTESTED HEARING WITH LICENSEE AND ATTORNEY IS BEING HELD TO CONTEST PROBABLE CAUSE. PROBABLE CAUSE IS NOT AN ISSUE TO BE DETERMINED BY THIS HEARING OFFICER. WE FIND AGAINST THE LICENSEE AND SUSTAIN THE SUSPENSION. CDL DISQUALIFIED 08-18-15 TO 08-18-16 FOR DUI ALCOHOL/REFUSED TEST. NON COMMERCIAL SUSPENSION 08-18-15 TO 02-18-16.
Stuart timely sought de novo review by the Drew County Circuit Court.
On 4 December 2015, Stuart filed a motion to suppress evidence obtained as a result of the traffic stop, which he argued was made without probable cause or reasonable suspicion. DFA responded and first argued that while Arkansas had not addressed the issue, the majority of jurisdictions have held that the exclusionary rule does not apply to administrative or civil driver’s-license-suspension proceedings. DFA also argued that Ark. Code Ann. § 5-65-402 (Supp. 2013) limits the scope of an administrative proceeding or circuit court de novo appeal and does not authorize a petitioner to argue constitutional issues, so Stuart should not be allowed to raise constitutional claims or request suppression of the evidence. And finally, DFA asserted that Stuart’s argument was barred by collateral estoppel and res judicata because he had “previously litigated the same issues of the officer lacking probable cause resulting in an illegal traffic stop at Petitioner’s corresponding criminal trial for the charges of DWI and Refusal to Submit.” Alternatively, if the circuit court did find that the exclusionary ruled applied, DFA argued that the traffic stop was supported by reasonable suspicion that Stuart had violated a traffic law.
The circuit court held a hearing on 16 December 2015. Stuart clarified that he was challenging both the probable cause to arrest him for DWI and whether he had been properly advised or warned that he would lose his driving privileges if he refused to submit | sto a chemical test. Stuart also explained that his criminal case was still ongoing in circuit court. DFA reiterated that this was a civil case and that probable cause was not under review. Stuart countered that the case was “quasi-criminal” due to the punitive nature of his driving privileges being suspended.
Officer James Slaughter, a patrol officer with the Monticello Police Department, testified that on 19 July 2015, he was traveling north on Highway 425 and was behind Stuart’s vehicle. Slaughter said that they stopped at a red light at the intersection of Highways 425 and 278; that after the light turned green, Stuart proceeded through the intersection; and that Stuart momentarily drove his vehicle into the southbound turning lane before veering back into his lane. Because of that, Slaughter stopped Stuart for careless and prohibited driving. Slaughter approached Stuart’s vehicle, spoke to him, and could smell alcohol on his breath; Stuart admitted having had a beer several hours earlier. Slaughter asked Stuart to perform several field-sobriety tests, the results of which indicated to Slaughter that Stuart was intoxicated. Slaughter also administered a preliminary breath test (PBT), which indicated a .15 blood-alcohol content.
Slaughter arrested Stuart for DWI and transported him to the county detention facility. Slaughter then read to Stuart the DWI statement-of-rights form and asked Stuart if he understood it. Stuart said yes and initialed and signed the form. Slaughter next asked Stuart if he would submit to a breath test, and Stuart said no and also initialed the “no” answer on the form. Ac cording to Slaughter, Stuart said that he knew what the PBT result was and that “he was not going to blow because he did not want to lose his CDLs.” Stuart was subsequently booked for DWI and refusal to submit.
|4On cross-examination, Slaughter confirmed that he read the following sections from the statement-of-rights form to Stuart:
If you refuse to take a chemical test, none will be given, but you will subject yourself to the penalties provided by law, which includes, but is not limited to, the suspension or revocation of your driving privileges, and if you are a commercial driver’s license holder, the disqualification of your commercial driving privileges.
If you choose to take a chemical test, and the results reflect an alcohol concentration of eight-hundredths (0.08) or more, or the presence of a controlled substance, or any other intoxicant, your driving privilege will be suspended or revoked, and if you are the holder of a commercial driver’s license, your commercial driving privileges will be disqualified.
Slaughter also stated that he told Stuart that the breath test was different than the PBT administered before, but Stuart declined to take the test.
Stuart testified that he worked for Grant Garrett Excavating and that he was required to have a CDL. He claimed that during the traffic stop, he blew into the PBT device two different times, which resulted in a .08 reading the first time and .12 or .13 the second time. He said that he thought the test administered at the detention facility would be the same type of test. Regarding the statements on the form that were read to him, he said that he understood the first statement to mean that it was his option to take the test or not, and he did not understand that his license would be suspended. He acknowledged that the second statement meant that his license would be suspended if the result was over .08, so based on the PBT results, he did not want to take the test and lose his CDL. Stuart claimed that Slaughter never requested that he (Stuart) take a test at the detention facility.
The defense proffered a different statement-of-rights form in which the first statement read “If you refuse, upon the request of a law enforcement officer, to take a | schemical test, none will be given, but your privileges to drive, including your commercial driving privilege if you have a commercial driver’s license, will be revoked, disqualified, suspended or denied.” (Emphasis in original.) The form also included a sentence after the statements that read, “You are now requested to take the test chosen by the officer.” Stuart claimed that if he had seen the information as it was on this form, he would have taken the test.
In closing arguments, Stuart’s counsel continued to argue that Stuart had not been advised that his license would be suspended or disqualified if he refused the test; the form only advised Stuart that by refusing he would be subject to penalties including the suspension or revocation of driving privileges. Counsel also argued that Stuart had not committed the violation of careless or prohibited driving, so the traffic stop itself was not based on probable cause.
In its oral pronouncement, the court found,
[T]he officer had reason to stop the vehicle. The vehicle, I mean, it was, you know, reasonable cause.... [A]s the vehicle pulled up and took off, it was just on top of that line just for a short while. It could have been eight feet or so. But it just doesn’t—and that’s sufficient for a police officer to stop somebody.
And I do uphold the findings of the previous findings which have been made in this case. And the reason—well, the true reason would be the refusal, and— yeah, I’ll say refusal. That will be the Court’s ruling.
Defense counsel requested clarification, and the following exchange occurred:
Me. Gibson: Is the Court ruling that the first initial paragraph on the rights form complies with the state code that says he’s supposed to be advised that he will lose his driving privileges by suspension or disqualification by saying it’s subject to happen?
The Court: Well, it’s been that way for years, hasn’t it? I mean—
|bMe. Gibson: Well, the form doesn’t track the language of the statute. The second paragraph does, but the first paragraph on refusal doesn’t say he will lose—his license will be suspended or his commercial driver’s license disqualified.
The Court: Well, that’s my finding. I find that—
Mr. Gibson: Find that that language it uses does tell him that.
The Court: Sure, I find that there is basis for the action taken by the officer, you know, when you take into consideration the totality of the circumstances. That will be the Court’s ruling.
The court entered a written order affirming the suspension of Stuart’s noncommercial driving privileges and disqualification of his commercial driving privileges. Stuart has timely appealed to this court.
Pursuant to Ark. Code Ann. § 5-65-402(c)(4)(A), the circuit court reviews the case de novo and determines, based on a preponderance of the evidence, whether a ground exists for revocation, suspension, disqualification, or denial of the person’s privilege to drive. On appeal, we review the circuit court’s order and determine whether the circuit court’s findings were clearly erroneous. Burdine v. Ark. Dep’t of Finance & Admin., 2010 Ark. 455, 379 S.W.3d 476. 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 firm conviction that a mistake has been committed. Id.
I. Reasonable Grounds
Stuart frames his first argument as an appeal from the circuit court’s denial of his motion to suppress. While the circuit court did rule that the traffic stop was based on reasonable grounds, it did not address suppression or whether the exclusionary rule applied, so we likewise will not address these arguments. The failure to obtain a ruling on an issue precludes our review on appeal. Meador v. Total Compliance Consultants, Inc., 2013 Ark. 22, 425 S.W.3d 718. We note that Stuart concedes in his brief that this issue is not on appeal.
Stuart also disagrees with the circuit court’s finding that his crossing into the southbound turning lane constituted “reasonable cause” for the stop. Stuart argues, as he did below, that there is no evidence that he committed the offense of careless and prohibited driving. The State counters that “[b]y allowing his vehicle to drift into the oncoming turn lane, [Stuart] operated his vehicle in an inattentive manner and failed to maintain control of his vehicle under Ark. Code Ann. § 27-51-104 [Repl. 2014].” The State argues that the circuit court, as the finder of fact, determined that Slaughter had reasonable grounds to initiate the traffic stop and that the court’s determination should be affirmed.
We hold that we need not address the validity of the traffic stop because such a review is not contemplated by § 5-65-402. The statute provides that the administrative hearing shall cover the issues of whether the arresting law enforcement officer had reasonable grounds to believe that the person (1) had been operating a motor vehicle while intoxicated or impaired or (2) “[rjefused to submit to a chemical test of the blood, breath, saliva, or urine for the purpose of determining the alcohol concentration or controlled substance contents of the person’s'breath or blood and whether the person was placed under arrest.” Ark. Code Ann. § 5-65-402(a)(8)(D)(i) & (ii). As noted by the hearing officer, probable cause for the stop was not an issue to be decided administratively.
Likewise, the circuit court’s review is limited to “whether a ground exists for revocation, suspension, disqualification, or denial of the person’s privilege to drive,” Ark. Code Ann. § 5—65—402(c)(4)(A), and we review the circuit court’s order and determine |swhether the circuit court’s findings were clearly erroneous. Burdine, supra. Regardless of the validity of the stop, there is no doubt that Stuart refused to submit to a chemical test, and the circuit court found this refusal was the “true reason” for the disqualification and suspension of Stuart’s commercial and noncommercial driving privileges. We hold that the circuit court did not clearly err in making this determination.
II. Properly Informed
On this point, Stuart argues that he was not informed that his license would be revoked or disqualified if he refused to submit to the' chemical test. Instead, he says that he was merely given the “option” of taking the test and that he “did not know that you would ‘automatically’ lose your license if you refuse the test; he thought that would be decided later in court.” Stuart asserts that the circuit court gave “little or no thought” to whether the statement-of-rights form complied with the statute and that “[t]he circuit judge’s failure to expand the scope of the hearing to include the issue of whether [Stuart] was informed that his driving privileges would, in fact, be affeeted if he refused to take the breath test was clearly erroneous.”
The State counters that Stuart indicated that he understood his rights, as evidenced by his initials and signature on the statement-of-rights form; that he was asked by Slaughter if he would take the breath test, and that Stuart declined. The State argues that the circuit court correctly determined that Stuart had been informed that he had the right to refuse chemical testing and that his refusal would subject him to possible criminal penalties as well as the suspension of driving privileges.
|9We find Stuartfs argument unpersuasive. Stuart’s rights were explained to him, and he indicated that he understood those rights. Any attempt to now argue that he did not understand his rights is not well taken. The statement-of-rights form adequately communicated the choices available and the possible consequences of those choices; and Stuart made his choice.
Affirmed.
Hixson and Brown, JJ., agree. | [
52,
-21,
-51,
-116,
43,
65,
-78,
-90,
81,
-61,
110,
83,
39,
-46,
20,
115,
-21,
125,
117,
73,
-33,
-74,
86,
67,
-74,
-13,
26,
67,
-77,
75,
-12,
-72,
92,
56,
-54,
-43,
70,
76,
-91,
88,
-122,
0,
-71,
108,
89,
-40,
40,
34,
2,
15,
49,
-105,
-64,
62,
25,
-54,
-23,
76,
-55,
-95,
-56,
80,
-99,
-97,
-17,
20,
-77,
116,
-101,
5,
88,
26,
-40,
49,
16,
-7,
51,
-74,
-126,
-12,
107,
-103,
9,
38,
97,
0,
25,
-49,
-84,
-84,
20,
58,
31,
-74,
-104,
1,
75,
12,
-106,
-67,
63,
20,
14,
-4,
122,
85,
81,
108,
-121,
-50,
48,
-79,
111,
-80,
-106,
65,
-21,
-61,
52,
117,
-59,
-10,
84,
21,
81,
27,
-41,
-108
] |
RAYMOND R. ABRAMSON, Judge
| Appellant Brian Dawayne Austin (DOB: 03-24-00) appeals from the circuit court’s denial of his motion to transfer his case to the juvenile division of circuit court. He argues that the trial court’s denial of his motion to transfer was clearly erroneous. We affirm.
Austin was charged, along with a code-fendant, G.S., in the Pulaski County Circuit Court with aggravated robbery and first-degree battery stemming from two robberies that occurred on January 31 and February 1, 2016. On May 23, 2016, the public defender entered his appearance and moved that the cases be transferred to the juvenile division of circuit court. A juvenile-transfer hearing was held on June 20, 2016, and the circuit court denied the motion from the bench. An order reflecting such was entered on July 11, 2016. The interlocutory appeal is properly before this court.
At the hearing on the motion to transfer, the investigating officer in the case, [ ¡¡Detective Robert Martin, testified that on January 31, 2016, officers responded at 5:06 p.m. to the shooting of Edward Avery. Avery was in his car when he was approached by two African-American males. Avery recounted to officers that the smaller of the two males put a gun to his head, and when Avery attempted to grab the gun, he was shot in the mouth. The two males then fled. Avery later identified both G.S. and Austin from a photo line-up; he described G.S. as the gunman and Aus tin as the lookout. Ironically, Avery was able to first identify his assailants after seeing local news coverage on area crime in which both G.S. and Austin gave interviews where they stated their fear of violence and their intention to stay off the streets. The televised interviews aired at both 6:00 p.m. and 10:00 p.m. on February 1,2016.
That same night, around 11:40 p.m., Austin approached Luis Reyes while he was pumping gas and begged for money; Reyes complied with Austin’s demands. When Austin asked for more money and Reyes refused, Austin intimated that he was armed and took all of Reyes’s belongings including his car. Austin and G.S. were subsequently stopped in Reyes’s car, and Reyes later identified them as the males who had robbed him. Upon his arrest, Austin admitted his involvement in the robbery of Reyes. The State also introduced evidence of at least one prior juvenile case that resulted from a criminal trespass, as well as one truancy case.
Dewayne Wilkins, Austin’s former probation officer, testified that Austin had been placed on probation in 2013. While on probation, Austin’s mother had died, and he had not exhausted the services available to him. Wilkins testified that he had not seen Austin since he was thirteen years old.
I ¾Juvenile ombudsman Scott Tanner testified that there are services that would be available to Austin in juvenile court. Austin’s father, Eric, explained that he obtained custody of his son in 2013 after Austin’s mother died. Eric Austin testified that his son went into a “huge depression” after her death, so Eric sent him to receive treatment at Pinnacle Pointe.
On appeal, Austin challenges the circuit court’s findings and argues that the decision should be reversed because the circuit court clearly erred in finding that the case should not be transferred. The substantive and procedural requirements for the transfer of a case to the juvenile division of circuit court are set forth in Arkansas Code Annotated section 9-27-318 (Repl. 2015). On motion of the court or any party, the court in which the charges have been filed shall conduct a transfer hearing to determine whether to transfer the case to another division of circuit court. See Ark. Code Ann. § 9-27-318(e).
The moving party bears the burden of proving that the case should be transferred. Z.T. v. State, 2015 Ark. App. 282, 2015 WL 1952969. 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. R.W.G. v. State, 2014 Ark. App. 545, 444 S.W.3d 376. We will not reverse a circuit court’s determination of whether to transfer a case unless that decision is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.
| .(Arkansas Code Annotated section 9-27-318(g) sets forth all of the factors the court shall consider 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 persons or 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 circuit court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. Neal v. State, 2010 Ark. App. 744, 379 S.W.3d 634.
Here, the circuit court heard the evidence, weighed it, reached its decision, and enumerated its conclusions in an order. The circuit court considered the evidence on all of the factors, as required by the statute, and it was free to use its discretion in the weight | ^afforded to each factor. D.A.S. v. State, 2010 Ark. App. 144, at 6, 2010 WL 502977. As noted, the circuit court is not required to give equal weight to each of the statutory factors; it can rely on any of the factors so long as it considered and made written findings with regard to all the factors.
In the instant case, the circuit court considered all of the factors and determined that the seriousness of the offenses, that the offenses were committed against persons, the need for societal protection, and the level of participation in the offenses outweighed any other factors. This determination is supported by the record. Moreover, when reviewing the entire evidence, we cannot say with firm conviction that a mistake has been committed. We hold that the circuit court properly considered all of the factors in section 9—27—318(g) and did not clearly err in denying the motion to transfer. Accordingly, we affirm.
Affirmed.
Virden and Gladwin, JJ., agree. | [
80,
111,
-20,
-68,
58,
113,
30,
32,
-45,
-29,
102,
-109,
111,
-22,
17,
107,
-13,
127,
85,
89,
-92,
-9,
-17,
97,
-14,
-77,
91,
-41,
-73,
-21,
-28,
-41,
13,
64,
-54,
81,
70,
24,
-93,
120,
-114,
1,
-88,
64,
-111,
73,
32,
38,
26,
14,
21,
-116,
-13,
107,
24,
-54,
-55,
40,
91,
-69,
-48,
56,
-109,
7,
-50,
22,
-93,
53,
-102,
4,
-6,
120,
-107,
53,
0,
-24,
50,
-74,
-122,
116,
105,
-97,
-116,
34,
39,
1,
108,
-115,
-27,
-120,
110,
62,
-101,
-89,
-40,
97,
11,
5,
-105,
-33,
122,
52,
70,
-4,
111,
84,
81,
108,
-28,
-57,
-108,
-109,
-113,
48,
-106,
-5,
-53,
5,
36,
49,
-49,
-30,
84,
69,
113,
-45,
110,
-112
] |
RHONDA K. WOOD, Associate Justice
11 After a jury trial, Heather Swain was convicted as an accomplice to capital murder and kidnapping. She received sentences of life without parole for murder and twenty-five years for kidnapping. She now contends that she received ineffective assistance of counsel when her defense counsel allowed one of her accomplices to testify in her defense without first interviewing him. She also contends that her life sentence was cruel and unusual and penalized her right to trial. The circuit court rejected both claims. We affirm the circuit court’s judgment on the ineffective assistance of counsel claim. However, we decline to address the remaining claims because they are not properly before us.
Heather Swain was charged as an accomplice to capital murder and kidnapping. Testimony at her trial showed that she and three other men kidnapped their victim, beat him to death while they drove around in an SUV, and finally left him lying face down in a ditch next to a dirt road in rural Washington County. The jury convicted on both charges. |2We subsequently affirmed the conviction on direct review. See Swain v. State, 2015 Ark. 132, 459 S.W.3d 283.
After we affirmed, Swain filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37. First, Swain argued that defense counsel had been ineffective by allowing one of her accomplices to testify in her defense without first interviewing him. Second, Swain argued that her sentence of life imprisonment for capital murder was disproportionate to the crime charged and was actually a penalty for exercising her right to trial. This second argument was based on her accomplices’ receiving lower sentences after pleading guilty. After holding a hearing, the circuit court rejected Swain’s petition by written order. Swain has now filed this appeal.
We do not reverse the grant or denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. 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. State v. Lacy, 2016 Ark. 38, 480 S.W.3d 856.
The first issue involves defense counsel’s decision to call one of Swain’s accomplices to testify. On cross-examination by the State, this accomplice, Alan Swinford, testified that Swain had slapped the victim and instigated her accomplices to further violence. Swain alleged in her petition that her counsel should have never allowed Swinford to testify without first interviewing him.
Defense counsel testified to rebut this charge at the Rule 37 hearing. He admitted that he did not interview Swinford before trial because Swinford’s attorneys had indicated |athat he did not want to talk. However, counsel did have access to five transcripts of previous interviews Swinford had given. None of these contained the allegation that Swain had physically touched the victim. Counsel maintained that the decision to call Swinford originated with Swain. Even so, counsel thought Swinford’s testimony would be “helpful to us in pointing out who did what and what her role was compared to his.” The circuit court concluded that counsel’s decision to call Swinford was based on trial strategy.
Under the two-prong standard from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner seeking postconviction relief must show that his counsel’s performance was deficient and that the deficient performance resulted in prejudice. See Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. “There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and the petitioner has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment.” Id. at 4, 454 S.W.3d at 738. “Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel.” Noel v. State, 342 Ark. 35, 41, 26 S.W.3d 123, 127 (2000). A matter of reasonable trial strategy does not constitute deficient performance. Fukunaga v. State, 2016 Ark. 164, 489 S.W.3d 644.
On appeal, Swain argues that defense counsel’s calling Swinford without interviewing him, hoping that he would exculpate Swain, was a “random stab in the dark” rather than a coherent trial strategy. This argument misses the mark. Counsel never testified that Swinford would exculpate Swain. Rather, his testimony merely indicated that calling | ¿Swinford could put Swain’s participation in perspective; it could highlight that Swinford, rather than Swain, was the primary aggressor. Counsel testified, “I wanted to show them what really caused the death and remind [the jury] that she was ... fairly helpless against [Swinford].” Indeed, during direct examination, Swinford testified that he had been drinking and using drugs; that he blamed the victim for his wife’s death; and that he had been the first one to physically assault the victim.
We cannot say that the circuit court clearly erred when it concluded that counsel’s decision was reasonable trial strategy. Even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. The decision whether to call particular witnesses is a matter of trial strategy that is outside the purview of Rule 37. Id. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Accordingly, we affirm on this point.
The next issue involves Swain’s claim that her sentence of life imprisonment was disproportionate and unduly penalized her right to a jury trial. The premise for this argument is that Swain’s accomplices, who all pleaded guilty to first-degree murder and kidnapping, received lesser sentences: Alan Swinford received 80 years; Timothy Swinford received 50 years; and James Patton received 30 years. Swain maintains that these accomplices were more culpable than her and that she should not have received a longer sentence. She also maintains that she received a more “onerous” sentence because, unlike her accomplices, she 1 ¿chose to exercise her right to a jury trial. Neither of these arguments of trial error were raised at trial or on direct appeal.
We cannot address these issues now and summarily affirm. “Rule 37 is not available as a direct challenge to the admissibility of evidence or to raise questions of trial error. Questions of constitutional dimension must even be raised in the trial court in accordance with the controlling rules of procedure, or else the issues are waived, unless they are so fundamental as to void the judgment absolutely.” Finley v. State, 295 Ark. 357, 362-63, 748 S.W.2d 643, 646 (1988). The issue in Finley was a speedy-trial claim based on an alleged violation of the Interstate Agreement on Detainers Act. We held that such a violation “did not involve the waiver of such a fundamental right that would void a judgment.” Id. at 363, 748 S.W.2d at 646.
We addressed this issue again in Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996). There, we reaffirmed the rule from Finley, stating that “constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings.” Id. at 326, 920 S.W.2d at 848. However, we noted an exception for “errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack.” Id. We subsequently found that the right to trial by a twelve-member jury was fundamental and that the issue could be raised for the first time in Rule 37 proceedings. Id.; see also Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000) (holding that double-jeopardy protection is a fundamental right and could be raised for the first time in a Rule 37 petition).
Because Swain failed to raise these issues at trial, she must show there is a fundamental error in order for us to address them here. Swain asserts, but does not develop, the argument |fithat her disproportionate sentence relative to her accomplices constitutes a fundamental error and that it penalized her for faffing to enter a plea. We hold that the facts presented here do not involve a fundamental error. We have held that “we will not reduce or compare sentences that are imposed within the statutory limits.” Philyaw v. Kelley, 2015 Ark. 465, at 8, 477 S.W.3d 503, 507. When Swain chose to exercise her right to jury trial, the only sentence available upon a finding of guilt was the one imposed. Further, “what sentence another defendant has received is not relevant evidence as to guilt, innocence, or punishment.” Bradley v. State, 2013 Ark. 58, at 15, 426 S.W.3d 363, 372 (citing Robinson v. State, 278 Ark. 516, 517, 648 S.W.2d 444, 444 (1983)). Because the error Swain asserts is not fundamental in nature, she cannot raise the argument for the first time in a Rule 37 proceeding.
Affirmed.
. Capital murder is punishable by either death or life in prison without parole. Ark. Code Ann. § 5-10-101(c)(1) (Supp. 2011). The State waived the death penalty, so Swain received the only sentence allowable by statute. | [
80,
-30,
-20,
-84,
8,
99,
26,
56,
82,
-125,
-32,
81,
-81,
-19,
65,
123,
-5,
113,
117,
105,
-44,
-73,
53,
105,
19,
-13,
57,
-43,
-77,
75,
-4,
-3,
72,
112,
-18,
-63,
102,
8,
-3,
90,
-114,
1,
-102,
-12,
-77,
-125,
112,
-89,
28,
7,
117,
-100,
-93,
-87,
50,
-50,
76,
108,
91,
119,
72,
-103,
-118,
-121,
-49,
16,
-93,
-76,
-70,
3,
120,
118,
-104,
53,
1,
-24,
115,
22,
-126,
116,
107,
-103,
12,
102,
99,
32,
-108,
41,
-68,
-127,
54,
62,
-100,
-89,
-40,
33,
75,
77,
-122,
-11,
127,
86,
45,
-8,
-2,
69,
28,
-28,
-87,
-51,
-106,
-79,
13,
17,
84,
51,
-29,
4,
48,
101,
-51,
-30,
85,
7,
120,
-37,
-114,
-110
] |
John Mauzy Pittman, Judge.
Appellant, Joe Don Jones, appeals from his conviction at a jury trial of criminal conspiracy to commit capital murder, for which he was sentenced to fifteen years in the Arkansas Department of Correction. He contends that the trial court erred in denying his motion for a directed verdict; in denying his motion to suppress; in allowing the State to use a peremptory strike to excuse a black male from the jury; in admitting into evidence a beer can and a sponge; in allowing two expert witnesses to testify about the beer can and sponge; and in denying appellant’s two motions for mistrial. We affirm.
We first consider appellant’s argument that the trial court erred in denying his motion for a directed verdict of acquittal. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988). On appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, and will affirm if the finding of guilt is supported by substantial evidence. Smith v. State, 34 Ark. App. 150, 806 S.W.2d 391 (1991). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without requiring resort to speculation or conjecture. Leach v. State, 38 Ark. App. 117, 831 S.W.2d 615 (1992).
Appellant is a former DeQueen, Arkansas, police officer. He resigned in 1991. At the time of his alleged crime, Tim'Litch-ford was a police officer with the same department. Officer Litch-ford testified that, while they worked together, he and appellant had conversations about the lax security at Lewis Food Center and how easy it would be to kill and rob the owner as he left the store at night. Litchford testified that he received a phone call from appellant on February 8, 1992. According to Litchford, appellant asked him to recall their prior discussions about robbing the Lewis Food Center and stated, “Well, I am fixing to do it.” When Litchford asked appellant if he were serious, appellant replied, “You’re God-damned right I’m serious.” Appellant stated that he had obtained a .22 rifle but needed a scope for it. Litchford agreed to try to find a scope and to meet with appellant the following day. Litchford then reported his conversation with appellant to his police chief, who in turn contacted the Arkansas State Police.
On February 10, 1992, Officer Litchford, wired with a body microphone, went to appellant’s apartment. They discussed how the store owner would be killed, how to dispose of the body, and whether the crime should be committed on a week night or a Saturday night. Officer Litchford again agreed to try to find a rifle scope, and appellant agreed to wait at least two days while Litch-ford sought it. They also discussed how the planned crime was a two-man job, how they would mount the scope on the rifle, how much money they thought they would get, and how they would have to burn any checks that were taken during the robbery.
On February 12, 1992, Officer Litchford returned to appellant’s apartment with a rifle scope. Appellant opened the door, Litchford handed the scope to him, and appellant took it. At that point, appellant and his girlfriend, Donna Bobb, were arrested, and appellant’s apartment was searched pursuant to a warrant.
A person commits capital murder if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Ark. Code Ann. § 5-10- 101(a)(4) (Supp. 1991).
A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:
(1) He agrees with another person or other persons:
(A) That one (1) or more of them will engage in conduct that constitutes that offense; or
(B) That he will aid in the planning or commission of that criminal offense; and
(2) He or another person with whom he conspires does any overt act in pursuance of the conspiracy.
Ark. Code Ann. § 5-3-401 (1987). Under this section, the State was required to prove that there was an agreement by the parties to commit the crime and that one of the conspirators did at least a minimal act in furtherance of that agreement. Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989); Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987). It is well settled that a conspiracy may be proved by circumstances and the inferences to be drawn from the course of conduct of the alleged conspirators. Lee v. State, supra; Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988). Furthermore, it is not a defense to a prosecution for conspiracy that the person with whom the defendant conspires is immune to prosecution or has feigned agreement. Ark. Code Ann. § 5-3-103(b)(2) (1987); Guinn v. State, supra.
From our review of the record, we cannot conclude that appellant’s conviction for conspiracy to commit capital murder is not supported by substantial evidence. While the agreement between appellant and Officer Litchford may not have been expressly stated in so many words, the substance of their conversation and the inferences to be drawn therefrom were sufficient to demonstrate an agreement between them to kill and rob another person. The fact that Officer Litchford stated on cross-examination that he had no real intention of actually carrying out the murder provides appellant no defense. Ark. Code Ann. § 5-3-103(b)(2) and Commentary thereto; Guinn v. State, supra. And Officer Litchford’s procurement of a rifle scope as requested by appellant and appellant’s acceptance of it is sufficient proof of an overt act in furtherance of their agreement.
Appellant next contends that the trial court erred in denying his motion to suppress evidence obtained from his apartment during a search pursuant to a warrant. He contends that, because it mistakenly listed his apartment as “4A” instead of “4B,” the warrant failed to describe his apartment with sufficient particularity. Under the circumstances of this case, we find no error.
. The Fourth Amendment to the United States Constitution provides in pertinent part that no search warrants shall issue except those “particularly describing the place to be searched.” Likewise, Rule 13.2 of the Arkansas Rules of Criminal Procedure provides that all warrants shall describe with particularity the location and designation of the places to be searched. The requirement of particularity is to avoid the risk of the wrong property being searched or seized. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).
The test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.
Pike v. State, 30 Ark. App. 107, 110, 783 S.W.2d 70, 72 (1990) (quoting Lyons v. Robinson, 783 F.2d 737 (8th Cir. 1985)). Search warrants should not be subjected to a hypercritical view in deter mining whether they meet constitutional requirements, and the sufficiency of the description to permit identification of the premises with certainty by appropriate effort and inquiry must be decided in light of the particular facts and circumstances of each case. Perez v. State, 249 Ark. 1111, 463 S.W.2d 394 (1971); Pike v. State, supra.
Here, appellant lived in a building made up of four apartments. The warrant incorrectly showed appellant’s apartment as 4A when in fact he lived in apartment 4B. In all other respects, however, the warrant correctly described the place to be searched. It gave detailed directions as to how to get to the building, it correctly described the building, and it stated that the apartment to be searched was that of appellant, Joe Don Jones, and Donna Bobb. Moreover, Officer Litchford both applied for and participated in executing the warrant. He testified that the incorrect apartment number in the warrant was merely a typographical error. He clearly knew appellant and the particular apartment in which appellant lived. The same was true of several of the other police officers involved in executing the warrant, including one who actually lived in another apartment in the same building. Under these circumstances, we conclude that a mistaken search was unlikely and that the incorrect apartment number in the warrant was not a fatal defect. See Lyons v. Robinson, 783 F.2d 737 (8th Cir. 1985); Pike v. State, supra.
Appellant, a white male, next argues that the trial court erred in allowing the State to use a peremptory strike to excuse a black male from the jury. We cannot agree.
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude potential jurors of the defendant’s race solely on account of their race. In Powers v. Ohio, 499 U.S. 400 (1991), the Court held that a criminal defendant has standing to object to race-based peremptory challenges regardless of whether the defendant and the excluded jurors share the same race. The initial burden is on the defendant to establish a prima facie case of unconstitutional discrimination by showing facts and circumstances that give rise to an inference of discriminatory purpose in the exercise of peremptory challenges. If the defendant succeeds in making a prima facie case, the burden shifts to the State to show that the challenges were not based upon race. If the defendant establishes a prima facie case and the State fails to give a satisfactory, racially neutral explanation for the exclusion, the court must then conduct a “sensitive inquiry” into the matter. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); Hollamon v. State, 312 Ark. 48, 846 S.W.2d 663 (1993). On appeal, we will not reverse a trial court’s findings regarding the sufficiency of the prosecutor’s explanation unless those findings are clearly against the preponderance of the evidence. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990); Kidd v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988).
In this case, we cannot conclude that the trial court erred in denying appellant’s Batson motion. Clearly, the burden was upon appellant to establish a prima facie case of purposeful discrimination. On appeal, the burden is on an appellant to bring up a record sufficient to demonstrate error. Irvin v. State, 28 Ark. App. 6, 771 S.W.2d 26 (1989). The abstract is the record on appeal. Id. Here, the parties’ abstracts show that the State moved to excuse potential juror Ernest Greenlee, a black man, by a peremptory strike. When appellant objected under Batson, one of the prosecuting attorneys stated that he had represented Mr. Greenlee in the past, that there had been “friction” between them at times during that relationship, and that on one occasion Mr. Greenlee had even become “accusatory” of the prosecuting attorney. The trial court ruled that, while the explanation would not support a strike for cause, it was racially neutral and sufficient to support a peremptory strike. Neither party’s abstract shows whether there were other blacks in the jury pool, whether there was a pattern of strikes against blacks, whether any black jurors were seated, or that there was any racially-based questioning during voir dire. See Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Givens v. State, 42 Ark. App. 173, 856 S.W.2d 33 (1993). Nor is there any indication of racial overtones associated with either the crime or the trial. See Franklin v. State, supra.
From our review of this record, we cannot conclude that appellant established a prima facie case. However, even assuming that he did, the State offered a racially neutral explanation for the strike of Mr. Greenlee, and we cannot conclude that the trial court clearly erred in finding that explanation sufficient.
Appellant next contends that the trial court erred in allowing the introduction of State’s exhibits 3 and 4, a beer can with a hole in it and a sponge that had been inside the can. It was the State’s position that appellant had experimented with using these items as a silencer for his rifle. Appellant contends that the exhibits were inadmissible because: (1) they were discovered as the result of a custodial statement given by appellant’s girlfriend, Donna Bobb, after she was arrested without probable cause; (2) Ms. Bobb’s statement telling the officers where to find the can and sponge was hearsay and not within any exception to the hearsay rule; and (3) without any evidence linking the two items to appellant, they were simply irrelevant.
The fact that Ms. Bobb’s arrest may have been without probable cause, standing alone, would not serve to prohibit use of her custodial statement, or evidence discovered as a result thereof, against appellant. Fourth Amendment rights are personal, and appellant cannot vicariously assert the Fourth Amendment rights of Ms. Bobb. Burkhardt v. State, 301 Ark. 543, 785 S.W.2d 460 (1990); Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986).
We agree with appellant that a statement or a confession offered against the accused in a criminal case, made by a codefendant or other person implicating both herself and the accused, is not within the “statement against interest” exception to the hearsay rule. Ark. R. Evid. 804(b)(3). However, appellant’s argument based on that rale is unavailing. The trial court excluded any evidence of Ms. Bobb’s statement implicating appellant. The witness through whom the exhibits were introduced stated only that Ms. Bobb described the items and showed the police where the items could be found. No “statement” by Ms. Bobb was offered by the State to prove “the truth of the matter asserted therein.” Therefore, there was no violation of the hearsay rule. See Ark. R. Evid. 801(c).
We do not address appellant’s argument that the exhibits were irrelevant. Appellant first objected to introduction of the exhibits prior to trial. He made the two arguments discussed immediately above and also argued that, without Ms. Bobb’s statement to link the items to appellant, the exhibits would be irrelevant. The court reserved ruling on the relevancy objection at that time and instructed him to make his objection “as it comes up.” When the evidence was subsequently referred to and offered for admission, appellant restated his first two arguments. However, the abstract fails to disclose that appellant either restated or obtained a ruling on his relevancy objection. Under the circumstances, we conclude that appellant has failed to preserve the issue for appeal. See Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).
Appellant also argues that the trial court erred in allowing two employees of the Arkansas State Crime Laboratory to testify about the beer can and the sponge. Lisa Sakevicius, a crim-inalist, testified that the beer can contained pieces of sponge and that a gun had been fired through the can and sponge at contact range. Berwin Monroe, a firearms expert, testified as to his experience with silencers and explained how the can and sponge could be used as a silencer to lessen the sound of a gunshot. Appellant argues that, because it was error to allow the can and sponge to be introduced, “it follows that it was also error to allow expert testimony regarding those objects.” We find no error.
First, we find no objection by appellant to the testimony of either Ms. Sakevicius or Mr. Monroe, and we need not address his argument. During Monroe’s testimony, appellant did state his understanding of the court’s prior ruling regarding introduction of the exhibits, and the court corrected appellant’s misunderstanding by restating its prior ruling. However, such a comment or statement by appellant did not constitute an objection to the testimony. See Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984).
Nevertheless, there is no merit in appellant’s contention. All but one of appellant’s arguments on this point were decided adversely to him in our discussion regarding the issue of introduction of the exhibits. We need not repeat that discussion here. The one additional argument made under this point is that the probative value of the testimony was substantially outweighed by the possibility of prejudice. See Ark. R. Evid. 403. However, that argument was not made below and will not be addressed on appeal. Segerstrom v. State, 301 Ark. 314, 783 S.W.2d 847 (1990); Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992).
Appellant finally contends that the trial court erred in denying his two motions for mistrial made during the testimony of DeQueen Police Chief Jim Smith. In explaining how the police came into possession of the beer can, sponge, and a plastic Diet Coke bottle, Chief Smith stated that Ms. Bobb “told us where they were” and “showed us where to find them.” Appellant’s motion for mistrial, alleging violation of the court’s order prohibiting proof of Ms. Bobb’s statements implicating appellant, was denied. Chief Smith later testified, “The investigation early on had revealed that [appellant] experimented with manufactured silencers.” Appellant again moved for a mistrial, contending that Chief Smith’s “investigation” in this sense could only have referred to Ms. Bobb’s excluded statements. Again, appellant’s motion was denied.
A mistrial is a drastic remedy and should be granted only upon the occurrence of an error so prejudicial that justice cannot be served by continuing the trial. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990). The trial court is in a superior position to determine the possibility of prejudice, and its decision will not be reversed in the absence of a manifest abuse of discretion. Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993).
Clearly, there was no error in denying appellant’s first motion. As we have already said, appellant cannot vicariously assert Ms. Bobb’s Fourth Amendment rights, proof that Ms. Bobb told and showed the police where to find the items includes no hearsay, and Chief Smith’s statement was not violative of the court’s earlier order. In response to appellant’s second motion, the prosecutor stated that the source for the testimony about appellant’s experimentation was the audio tape of Officer Litchford’s conversation with appellant. That tape, made before Ms. Bobb’s statement and before discovery of the alleged silencers, included appellant expressing his concern over the noise that a gunshot would cause, followed by Officer Litchford’s question to appellant, “Well, what about what you were talking about with the cans?” From our review, we cannot conclude that Chief Smith’s testimony was referring to Ms. Bobb’s state ment. However, even if the testimony should not have been admitted, we cannot conclude that the trial court abused its discretion in finding that this isolated statement did not warrant the drastic remedy of a mistrial.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
48,
-20,
-7,
-100,
26,
96,
58,
-68,
96,
-109,
-27,
-45,
-91,
86,
12,
123,
97,
95,
93,
105,
-42,
-89,
7,
97,
-78,
-77,
25,
-43,
48,
79,
-12,
-44,
78,
48,
-58,
-59,
-58,
24,
-57,
92,
-114,
-127,
-69,
64,
82,
16,
48,
102,
52,
15,
-79,
-68,
-30,
42,
27,
-63,
105,
44,
75,
62,
80,
56,
-54,
-115,
-49,
54,
-77,
36,
-97,
37,
-16,
46,
-104,
49,
8,
120,
115,
-94,
-126,
-12,
109,
-103,
12,
110,
98,
2,
29,
-18,
-88,
-39,
14,
126,
-115,
-89,
-40,
65,
75,
37,
-106,
-67,
106,
20,
14,
118,
-9,
4,
113,
108,
-126,
-34,
-80,
-79,
-115,
60,
20,
-7,
-55,
35,
96,
117,
-52,
-30,
92,
71,
113,
-37,
-114,
-107
] |
Per Curiam.
The appellant in this workers’ compensation case filed a timely notice of appeal from a decision of the Arkansas Workers’ Compensation Commission, but tendered the record to the Clerk of this Court more than ninety days from the filing of the notice of appeal. The Clerk refused to file the record, and the appellant has filed a motion for a rule to require that it be filed.
The record on appeal from the Workers’ Compensation Commission must be filed in the Court of Appeals within ninety days from the filing of the notice of appeal, as is required in other civil actions. Davis v. C & M Tractor Co., 2 Ark. App. 150, 617 S.W.2d 382 (1981). In support of his motion, the appel lant asserts that the record was not timely filed because he was not notified that the record was available until he received a letter from the Commission dated January 13, 1994, four days before the ninety-day period expired. However, we find these circumstances to be insufficient grounds for the appellant’s motion for a rule on the Clerk.
The responsibility for seeing that the record on appeal is timely filed lies with the appellant or his attorney, and cannot be shifted to the court appealed from or its staff. Id.; see Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986). We have said that, in civil cases, the failure to discharge that responsibility is excused only by the most extraordinary circumstances. Davis v. C & M Tractor Co., supra. No such circumstances have been presented in the case at bar, and the appellant’s motion is consequently denied.
However, we want to call attention to our opinion in Evans v. Northwest Tire Service, 21 Ark. App. 75, 728 S.W.2d 523 (1987). There, we pointed out that the Arkansas Supreme Court had issued a per curiam providing that in appeals from administrative agency or commission cases, the Clerk of this Court, before the time for filing the record expires, may issue a writ of certiorari which would allow additional time to file the record on appeal. That rule now appears as Rule 3-5 of the Rules of the Arkansas Supreme Court and Court of Appeals.
Motion for Rule on the Clerk denied. | [
-12,
-24,
-36,
-100,
-118,
-31,
50,
-86,
65,
-57,
39,
83,
-89,
-58,
-100,
109,
-29,
15,
117,
121,
-52,
-77,
115,
65,
98,
-13,
-5,
85,
61,
107,
-12,
-2,
76,
112,
-118,
-43,
-58,
64,
5,
24,
-50,
3,
-103,
-20,
121,
0,
56,
106,
88,
15,
21,
126,
-31,
46,
24,
-57,
13,
104,
107,
-91,
-64,
-79,
-117,
13,
127,
20,
-79,
-107,
-98,
5,
112,
42,
-100,
16,
2,
-20,
48,
-90,
-121,
116,
111,
25,
8,
66,
98,
35,
-107,
-25,
24,
-88,
6,
62,
29,
-122,
-70,
56,
107,
35,
-106,
-107,
122,
20,
100,
-2,
-18,
-35,
87,
44,
-126,
-114,
-112,
-77,
47,
96,
-84,
11,
-21,
-109,
-110,
53,
-33,
-26,
94,
71,
51,
-37,
-34,
-112
] |
Per Curiam.
The appellee has filed a motion to dismiss the above appeal because the transcript was not filed within seven months from the entry of the judgment from which the appeal was taken as required by Rule 5(b) of the Rules of Appellate Procedure. The problem comes from the fact that the transcript was not completed by the court reporter in time to be filed within the seven-month period.
We find the motion to dismiss must be granted. It has been held that in the absence of unavoidable casualty an appeal should be dismissed when the record is filed outside the seven-month period. Pierce v. Pierce, 238 Ark. 46, 377 S.W.2d 868 (1964); see also Thomas v. Arkansas State Plant Board, 254 Ark. 997-A, 497 S.W.2d 9 (1973).
Here, the trial court extended the time for filing the record to a time which was outside the seven-month period, but the court had no authority to take that action. In the case of In Re Estate of Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992), the supreme court said, “when an appellant seeks an extension of time beyond the seven months to file his or her record, his or her remedy is to file a partial record in the supreme court and seek an extension for a compelling reason, such as unavoidable casualty.” See also Arkansas Supreme Court and Court of Appeals Rule 3-5, which was formerly Rule 26, and the case of Evans v. Northwest Tire Service, 21 Ark. App. 75, 728 S.W.2d 523 (1987).
Cooper, J., not participating. | [
-12,
105,
-68,
28,
-120,
97,
50,
-66,
80,
35,
101,
81,
47,
-62,
20,
121,
99,
47,
101,
-5,
-44,
-77,
38,
64,
98,
-77,
114,
87,
53,
-17,
-12,
-2,
76,
112,
-86,
-43,
70,
-56,
-119,
88,
-50,
7,
-103,
-20,
121,
66,
48,
107,
94,
15,
49,
-10,
-29,
-81,
28,
-57,
72,
40,
-55,
-71,
64,
-80,
-118,
15,
127,
20,
-79,
-107,
-70,
-59,
112,
44,
8,
49,
33,
-20,
48,
38,
-122,
84,
107,
25,
40,
102,
98,
48,
13,
-17,
108,
-88,
6,
58,
-115,
-122,
-102,
105,
73,
109,
-98,
-107,
60,
16,
7,
-2,
-18,
-116,
92,
44,
2,
-50,
-44,
-77,
31,
104,
-108,
11,
-29,
-121,
48,
112,
-51,
-22,
92,
71,
51,
-101,
-106,
-78
] |
Melvin Mayfield, Judge.
Appellants Terry Hardin and Danny J. Fields were tried for first degree murder along with Toby Hardin, Jr. and Jackie Hardin. The jury found Toby Hardin, Jr. not guilty; Jackie Hardin guüty of second degree murder; and both appellants guilty of manslaughter. Each appellant was sentenced to three years in the Arkansas Department of Correction. On appeal they argue only that the trial court erred in refusing to grant a mistrial after the judge made a statement in the presence of the jury which, they contend, was a comment on the testimony.
Mistrial is an extreme and drastic remedy and is proper only if the action on which it is predicated has infected the trial with so much prejudice to the defendant that justice cannot be served by a continuation of the trial. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990). Since the trial judge is in a superior position to assess the possibility of prejudice, he is vested with great discretion in acting on motions for mistrial, and this court will reverse only where that discretion is manifestly abused. Jimenez v. State, 24 Ark. App. 76, 749 S.W.2d 331 (1988). In addition, a mistrial should be granted only when any possible prejudice cannot be removed by an admonition to the jury. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988).
The facts in this case are not crucial to the determination of the issue on appeal. Briefly, the defendants were all present at the home of Ricky Hargo in the early hours of the morning of December 29, 1991. There was a fight and Hargo was stabbed in the throat with a knife, causing his death.
Appellant Terry Hardin was testifying for the defense when the following exchange took place.
BY MR. TINER [DEFENSE COUNSEL]
Q. Now, you said that you knew you were on Ricky Har-go’s property?
A. Yes, sir.
Q. You knew your wife was over there, too, didn’t you?
A. Yes, I did.
Q. And you knew that she really didn’t have any business over there?
A. Yes, sir, I knew that.
Q. And that bothered you?
A. Yes, sir, it did, bad.
MR. HUNTER [PROSECUTOR]: Your Honor, will the Court caution Mr. Tiner about leading this witness? Let the witness testify.
THE COURT: Yes, Mr. Tiner, avoid leading.
MR. TINER CONTINUING:
Q. Would you tell us, please, whether or not it bothered you to know that your wife—
MR. HUNTER: That’s repetitious, Your Honor. The witness has already answered that question.
MR. TINER: Well, I hadn’t finished my question, Judge.
THE COURT: I think it’s been asked and answered. You told him and he ratified. So, let’s move it on.
MR. TINER: Let me have— I believe I have a motion I need to make, Judge.
THE COURT: All right.
(THEREUPON, the following conference was had at the bench outside the hearing of the jury.)
MR. TINER: At this time the defendant would move for a mistrial for the reason that the Court has stated that I told the defendant something and that is a comment on the evidence and that is highly prejudicial and we are asking for a mistrial at this time because the Court made a comment upon the evidence.
THE COURT: Your motion for a mistrial is denied. Mr. Tiner, you have been throughout all these defense witnesses!’] testimony leading grossly. For example, you asked this witness—
MR. TINER: Wait, wait. Judge, I don’t need this in here. If you’re going to proceed with this I’d rather we be in chambers.
THE COURT: Nobody can hear this excepting you. You told this witness, did you see Ricky jump off the porch onto him and stab Jackie. He says no, I didn’t see that, but that’s grossly leading and you have been grossly leading permitting and inviting them to answer or ratify. It was not a comment on the evidence, it’s merely a ruling on your admission and a caution against repeated leading.
Appellants argue that the statement the judge made was a comment on the evidence and warranted a mistrial. Appellants take the position that “I think it’s been asked and answered,” indicates that the unfinished question has been answered; and that, “You told him and he ratified,” is a comment on the evidence. Appellants say it is a comment on the way the evidence is being elicited and a comment that would tend to indicate to the jury that counsel was telling the witness what to say. Further, appellants argue, by using the word “ratify” instead of the word “answer” the court commented not only upon the evidence but upon the weight of the evidence. They contend there is a significant difference between telling the jury that a witness testified to a fact and saying that a witness ratified a fact.
In support of this argument appellants cite West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973); Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989); Jones v. State, 301 Ark. 530, 785 S.W.2d 218 (1990); Chapman v. State, 257 Ark. 415, 516 S.W.2d 598 (1974); and McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944). These cases are distinguishable.
In West v. State, supra, the trial court had directly questioned a witness. The Arkansas Supreme Court reversed the conviction because of a question by the trial judge. The court said:
Even though we are confident that the judge in this case had no intention of invading the province of the jury in its evaluation of Stracener’s credibility and weighing his testimony, the question “How much were you paid to come up with this information?” could only have the effect of intimating that the trial judge believed the witness’ testimony was of questionable value.
255 Ark. at 673, 501 S.W.2d at 774.
In Oglesby v. State, supra, an obscenity case, during the viewing of certain pornographic films the trial judge, within the hearing of the jury, said, “I’m feeling ill. How much longer[?]” In reversing, our supreme court stated:
No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. In recognition of the great influence a trial judge has on a jury, we have stated that the judge should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might intend to influence the minds of the jury. A comment by the trial judge expressing his opinion as to facts or evidence presented to the jury is reversible error.
... As the trial judge instructed and the state argued in this case, two of the elements of the crime with which the appellants were charged — promoting obscene materials — require that the jury find that the materials depict in a patently offensive manner sexual conduct, and appeals to the prurient interest of the average person. The trial judge’s comment obviously reflected his own feelings on these legal aspects in the case, and as a consequence, may have influenced the jury’s decision.
299 Ark. at 407, 773 S.W.2d at 444-45. (Citations omitted.)
In Jones v. State, supra, during voir dire of the jury, the trial judge told a potential juror, whose car had been burglarized, that the attorney general had said it would be against the law to shoot someone who was breaking into your car, but the judge said he did not think that was the law. He then asked the jury panel how many of them would convict someone who shot another person caught breaking into their car. The Arkansas Supreme Court held the judge’s comments constituted “error per seS It stated:
We have consistently acknowledged the great influence that a trial judge has on jurors. He must, therefore, refrain from impatient remarks or unnecessary comments which might indicate his personal feelings or which might tend to influence the minds of jurors to the prejudice of a litigant.
The trial judge is the one person who controls the conduct of all participants in the course of a trial, from beginning to end, and instructs the jury regarding the law which must be applied to the facts. Hence, a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case.
301 Ark. at 533-34, 785 S.W.2d at 220. (Citations omitted.)
In Chapman v. State, supra, there was friction between the trial judge and the defendants’ attorneys. Most of the conflicts between court and counsel took place outside the presence of the jury, but there were two exchanges that were witnessed by the jury. Confusion arose about the exhibit numbers of certain pictures and the court said, “Now, Mr. [Defense attorney], you know how to conduct yourself in court.” Our supreme court said that there was no basis for the court’s implication that the attorney had not conducted himself with propriety. The second incident occurred while another defense attorney was questioning a police officer.
Q. So up to the point where he took his shirt off, in your judgment, he had not done anything to cause you to arrest him?
THE COURT: The witness will not answer the question. It is repetitious. It is not a matter for the judgment of this witness, but it is a matter from all the facts that the jury will determine.
257 Ark. at 419, 516 S.W.2d at 601. Our supreme court held that the motion for mistrial should have been granted. It stated:
As we said in Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S.W.2d 676 (1937), and repeated in McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944): “No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury.”
In the case at bar the trial judge’s reprimand in each instance was unnecessarily severe and critical, as there had been no conduct on the part of counsel calling for such a rebuke.
257 Ark. at 420, 516 S.W.2d at 602.
In McAlister v. State, supra, the trial court told counsel within the hearing of the jury, “To grant your motion would be just silly,” and, when counsel objected to the remarks of the court, “I am not going to put up with any more of this foolishness.” 206 Ark. at 1002, 178 S.W.2d at 69. The Arkansas Supreme Court held that the unfortunate wording could lead the jury to believe that the motion was silly and that the court was belittling the motion and holding counsel up to ridicule for having made it; therefore, it was a reflection upon counsel’s knowledge and skill as an attorney and indicated that he was guilty of improper conduct. Furthermore, when counsel objected to the judge’s remarks, his comment constituted an unmerited reprimand and prejudicial error calling for reversal. 206 Ark. at 1003, 178 S.W.2d at 69.
It has been held, however, that remarks by the trial judge which are not inaccurate in summing up the proof, do not constitute a comment on the evidence. Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985). See also, Hill v. State, 258 Ark. 164, 522 S.W.2d 660 (1975), in which it was held that the State’s characterization of appellant, who was fairly active in the sale of marijuana, as a “drug pusher” was a fair comment on the evidence; and Conley v. State, 267 Ark. 713, 590 S.W.2d 66 (1979), where the Arkansas Court of Appeals held that where the trial court’s remarks were merely a restatement of the witness’s testimony and did not constitute a comment on the evidence.
It has also been held that a comment by the trial judge is not prejudicial when the evidence of guilt is overwhelming. Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981). There, at the beginning of a thirteen-year-old girl’s testimony, she had to be calmed down by the trial judge. When her testimony was concluded the judge told her, “You did a good job.” Appellant sought a mistrial arguing that this was a comment on the child’s credibility. Our supreme court held that because the evidence against the appellant was overwhelming and the child was not a “material witness” any possible error was harmless when considered in the context of the entire record. The court cited the test set out in Walker v. Bishop, 408 F.2d 1378 (8th Cir. 1969).
[Tjhe only way to ascertain the true meaning or import of any isolated remark is to consider it in the light and context in which it is uttered. This is just plain common sense as well as good law.
273 Ark. at 357, 620 S.W.2d at 290.
Here, we do not think the cases cited by appellants require reversal of their convictions. The trial court accurately stated that the question had been asked and answered several times and that the appellant had admitted it bothered him that his wife was with another man. Appellants make much of the usage of the word, “ratified.” According to Black’s Law Dictionary 1135 (5th ed. 1979), “ratify” means “To approve and sanction; to make valid; to confirm; to give sanction to. See Approval; Confirm; Ratification.” Under the circumstances in this case, we do not believe the use of the word “ratified” prejudiced the appellants, and we do not think the trial court erred in refusing to grant a mistrial.
Affirmed.
Jennings, C.J., and Cooper, J„ agree. | [
112,
-22,
-11,
61,
9,
-64,
26,
28,
112,
-77,
118,
83,
-19,
-41,
69,
107,
58,
9,
85,
105,
114,
-78,
37,
67,
98,
-5,
25,
87,
-77,
79,
-9,
-4,
72,
80,
-62,
-59,
-90,
72,
-57,
84,
-114,
49,
-117,
84,
-62,
2,
52,
127,
20,
-97,
49,
-114,
-13,
43,
21,
-53,
72,
108,
83,
62,
88,
49,
26,
-121,
-19,
4,
-77,
-91,
-102,
3,
82,
127,
-48,
49,
34,
-8,
115,
-106,
-126,
116,
41,
9,
12,
-26,
102,
17,
20,
-49,
-88,
-23,
55,
62,
29,
-89,
-104,
73,
67,
12,
-74,
-108,
122,
116,
-118,
-24,
-25,
14,
-39,
108,
6,
-50,
-108,
-111,
39,
20,
-110,
51,
-21,
67,
116,
117,
-49,
-18,
85,
71,
83,
-13,
31,
-74
] |
ROBERT J. GLADWIN, Judge
| Appellee Clarissa Gochnauer and appellant William (Bill) A. Buckingham, Jr., fil'ed' competing motions for summary judgment, and the Pulaski County Circuit Court granted Clarissa’s motion and simultaneously denied Bill’s, finding that Bill had contractually bound himself to pay a portion of his military-retirement benefits to Clarissa. The trial court also granted Clarissa an- attorney’s-fee award and filed a “Military Pension Division . Order” (MPDO). Bill argues on appeal that the trial court erred by (1) granting Clarissa summary judgment;- (2) awarding attorney’s fees to Clarissa; (3) filing the MPDO; and (4) modifying the parties’ contract. We affirm.
I. Statement of the Case
The parties were divorced on March 9, 2009, after having been married for about twelve years. Their decree provides that “[t]he Memorandum of Understanding executed 12as a contract between the parties is hereby incorporated in this Decree and the Court shall enforce said agreement[.]”
The contract contains the mediation agreement the parties entered into after formal negotiation and encompasses their joint-custody arrangement and visitation, child-support, and property-settlement agreements. Bill’s retirement account is listed as a marital asset under the heading “Property Settlement & Financial Considerations.” Paragraph 38 provides as follows:
Bill will contact the appropriate Air Force retirement account personnel to inform them of the divorce and obtain and execute the necessary documents for Clarissa’s one-half interest which accrued during the course of the marriage in his retirement account. He will give Clarissa copies of these documents and attach them to this agreement and Clarissa shall be responsible for effecting the QDRO[ ] order for her one-half interest.
Bill filed a motion for declaratory judgment arguing that when the parties divorced, he had served only fifteen years in the military and had accrued no entitlement to military-retirement benefits. He claimed that Clarissa was demanding entitlement to a portion of the military retirement that he had begun receiving after twenty years of service, subsequent to the divorce. He sought a declaratory judgment “clarifying for the parties that since [he] had not served time sufficient to have earned the right to receive military-retirement benefits as of the time of their divorce, no property right in same had vested |sand, therefore, there was no such asset to be divided.” Clarissa responded that she was entitled to the retirement “per the terms of the Decree.”
Clarissa filed a motion for summary judgment and claimed that Bill had retired from the United States Air.Force on February 1, 2015, after twenty years and that he had begun thereafter to receive military retirement. She cited the decree and the attached “Memorandum of Understanding” as set forth above. She argued that she was entitled to one-half of the portion of retirement that had accrued during their eleven-year ten-month marriage.
Bill responded to Clarissa’s summary-judgment motion and argued that as of the time of their divorce, he had accrued no entitlement to any military-retirement benefits. He cited Christopher v. Christopher, 316 Ark. 215, 871 S.W.2d 398 (1994), and Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000), for the proposition that if a service member has not served enough time in the military at the time of the parties’ divorce to have earned the right to military-retirement pay, then that right has not vested, and there is no asset to be divided upon the divorce. He argued that because his rights had not vested by the time they were divorced, Clarissa was not entitled to a portion of the benefit. Bill filed a countermotion for summary judgment and sought the same relief that he had requested in his declaratory-judgment motion, and he filed an amended motion for declaratory judgment that also asked for the same relief.
On August 10, 2016, the trial court filed an order granting Clarissa’s motion for summary judgment and denying Bill’s countermotion for summary judgment. The trial | ¿court held that even though Bill had not served enough time in the military at the time of the divorce to have earned the right to military-retirement benefits, the parties had contemplated his future retirement and had chosen to enter into a binding contractual agreement to award Clarissa
one-half of the funds which accrued during the course of the marriage. While there was no asset to be divided at the time, the parties made no mention of whether the right was vested at the time and [Bill] was free to contractually bind himself to payment according to the terms of the Memorandum of Understanding, which he has effectively done.
The trial court found that the parties had been married for eleven years and ten months of Bill’s twenty years of military service. Thus, the trial court awarded Clarissa one-half “of [Bill’s] military retirement for that period of time.” In the trial court’s letter to the parties dated August 10, 2016, the trial court wrote that the parties had contemplated Bill’s future retirement when they contracted for Clarissa to receive one-half of the sum that had accrued during the marriage. The letter ended with the statement, “[Clarissa] is responsible for preparing and submitting the [QDRO].[ ] [Bill] shall execute any documents necessary to effectuate the military-retirement-payments to [Clarissa].”
A letter to the trial court from Clarissa’s attorney, dated and filed on August 15, 2016, purported to enclose the QDRO and to copy Bill’s attorney, allowing five days for any objection to the form of the order. On August 22, 2016, a letter to the trial court from | ^Bill’s attorney was file-marked, and it contained detailed objections to the QDRO that Clarissa’s attorney had submitted.
In an August 12, 2016 motion, Clarissa asked for attorney’s fees and costs in the amount of $3,909.30. The proposed order had been delivered to the trial court with an August 12, 2016 cover letter from Clarissa’s attorney. The letter stated that opposing counsel had been copied and that he had five days to lodge any objections to the proposed order. The order granting attorney’s fees and costs totaling $3,909.30 was filed on August 23,2016.
On August 24, 2016, the MPDO was filed. On the same day, Bill filed a motion for relief under Arkansas Rule of Civil Procedure 59 (2016), arguing that the finding that Clarissa was entitled to one-half of his military retirement for the period, of time they were married is “clearly contrary to the law.” In his attached brief, he argued that the contract was unambiguous and provided that no benefits had “vested” or “accrued,” and thus, there was nothing for the parties to divide once he retired.
On September 6, 2016,, Bill filed a motion for relief under Arkansas Rules of Civil Procedure 59 and 60, complaining that his attorney, did not receive the correspondence with the motion for attorney’s fees and that the order was filed without his having the opportunity to respond as he was entitled, citing Arkansas Rule of Civil Procedure 6. A similar motion was filed on September 8, 2016, arguing that the MPDO was entered without his having due process and an- opportunity to be heard. No orders resulted from these motions, and Bill filed his notice of appeal on October 20, 2016. He filed an Ramended notice of appeal on January 16, 2017, but no changes were included in the amended notice. This appeal followed.
II. Summary Judgment
The law on summary judgment is well settled. Summary judgment should be granted- only when there is no issue of material fact left to be determined and the moving party is entitled to judgment as a matter of law. Po-Boy Land Co., Inc. v. Mullins, 2011 Ark. App. 381, 384 S.W.3d 555. All evidence is viewed in the light most favorable to the “resisting party.” Id. When the parties agree on the facts, such as when there are cross-motions for summary judgment on agreed facts, then we simply determine whether the appellee was entitled to judgment as a matter of law. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. In reviewing questions of law, appellate review is de novo. Id.
Bill argues that because no military-retirement pay had accrued during the course of the marriage, the trial court erred in granting Clarissa summary judgment and by denying his motion for summary judgment. He urges this court to interpret “accrued” to mean “vested.” In doing so, he claims that because his retirement had not “vested” at the time of the parties’ divorce and agreement, he did not contractually bind himself to pay anything because the precise language of then-agreement limits her portion to half of that “which accrued during the' course of the marriage,”
The first rule of interpretation of a .contract is to give the language employed the meaning that the parties intended. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. In construing any contract, we must consider the sense and meaning of the words.used by [7the parties as they are taken and understood in their plain and ordinary meaning. Id. The best construction is that which is made'by viewing the subject of the contract as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. Id. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id.
This court recently reviewed a circuit court’s decision to construe an agreement contained within a divorce decree by using the following framework:
A court has no authority to modify an independent contract that is made part of a divorce decree. While the agreement is still subject to judicial interpretation, we must apply the rules of contract construction in interpreting the agreement. When a contract is unambiguous, its construction is a question of law for this court, and the intent of the parties is not relevant. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed.
The parol-evidence rule is a rule of substantive law;in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. When a contract is plain; unambiguous, and complete in its terms, parol evidence is not. admissible to. contradict or add to the written terms. When the meaning of the words is ambiguous, par-ol evidence is admissible to explain the writing.
Haggard v. Haggard, 2017 Ark. App. 542, at 5-6, 530 S.W.3d 903, 906-907 (internal citations omitted).
Clarissa contends that a latent ambiguity exists and that parol evidence is necessary to interpret their agreement. Bill argues that by ruling as it did, the trial court, in effect, found that the language was unambiguous. We agree with Bill. The trial court did not I «find that the agreement was ambiguous; instead, it determined that the parties had agreed that Clarissa should receive one-half of the military retirement that had accrued during the parties’ marriage and that, despite the fact that Bill did not owe her anything at the time of the divorce, he had bound himself to a contract to pay her a portion of his military retirement. Parol evidence was not necessary for the trial court’s determination.
But, we also agree with Clarissa’s contention that the common understanding .of “accrued” is not “vested.” She claims that it is commonly understood that retirement accrues, or adds up, as time goes forward, and that is a reasonable and honest interpretation. We further agree that Bill’s interpretation would render the paragraph meaningless. If Bill’s interpretation had prevailed, the paragraph would have simply stated that Clarissa would not receive any of Bill’s military-retirement pay. See Cont’l Cas. Co. v. Davison, 250 Ark. 35, 463 S.W.2d 652 (1971) (holding that construction that neutralizes any provision of a contract should not be adopted if the contract can be construed to give effect to all provisions).
We also agree with Clarissa’s reasoning that paragraph 38’s existence is the best indication inside the document of what the parties intended “accrued” to mean. There was no valid reason to place obligations on Bill to contact individuals, execute documents, give Clarissa copies of the documents, and then have Clarissa draft a QDRO if “accrued” meant “vested,” which in turn would equate to “zero.” See Cont’l Cas. Co., supra. Instead, as the trial court interpreted in its order, both parties were using “accrued” to differentiate between Clarissa receiving a portion of one-half of Bill’s military retirement and her 1 ¡^receiving one-half of his entire military retirement, reflecting his twenty-year service. Accordingly, we affirm the trial court’s order granting Clarissa summary judgment and denying Bill’s motion for summary judgment.
III. Attorney’s Fee
Bill argues that the trial court abused its discretion in awarding Clarissa an attorney’s fee and costs without affording him an opportunity to appear and be heard on the motion.
The motion for attorney’s fees was filed on August 12, 2016, and Bill was served on the same day. The order granting the fees and costs was filed on August 23, 2016. Included in the addendum of Bill’s brief is a cover letter to the trial court dated August 12, 2016, and purporting to copy Bill’s attorney with the letter, which enclosed the motion for attorney’s fees and presented the proposed order, giving Bill’s attorney five days to object. However, Bill argues that his' attorney did not receive the letter and proposed order, discovering it only, after he had “downloaded that order from the electronic filing system.”
Bill argues that Rule 6 allows ten days to respond to a motion and that weekends are to be excluded in the computation. Ark. R. Civ. P. 6(a) & (c). Thus, he contends "that the order was filed before his response was due. He also argues that he was denied procedural due process under the Fourteenth Amendment to the United States Constitution, citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). He contends that the premature entry, of the trial court’s order without having given him an opportunity to Imoppose the motion was an error of law, which is' an abuse of discretion. Downum v. Downum, 101 Ark. App. 243, 274 S.W.3d 349 (2008).
However, Bill’s argument is not preserved for appellate review. Bill failed to preserve his argument because his post-judgment motion—wherein he argues that his attorney did not receive the correspondence with the motion for attorney’s fees and that the order was filed without his having the opportunity to respond as he was entitled—-was not appealed. The deemed-denied ruling was not mentioned in Bill’s notice of appeal or amended notice of appeal. See Rose Care, Inc. v. Ross, 91 Ark. App. 187, 209 S.W.3d 393 (2005) (where this court held that because Rose Care’s notice of appeal did not mention the deemed denial of the new-trial motion or that an appeal was being taken from any order other than the original judgment, we could not reach the issues that were solely raised in the new-trial motion).
Bill’s, notice of appeal lists the order on attorney’s fees; however, Bill does not mention in his' notice of appeal or the amended notice of appeal the deemed denial of his postjudgment motion that included the arguments presented to the trial court regarding the attorney’s-fees order. Without the postjudgment motion and the deemed denial included in the appeal, we cannot reach Bill’s argument because the trial court’s ruling is not before this court. Ark. R. App. P.—Civ. 3(a) & (e) (2016); Tate-Smith v. Cupples, 355 Ark. 230, 244 n.3, 134 S.W.3d 535, 543 n.3 (2003) (holding that when a posttrial motion has been deemed denied, the only appealable matter is the original order and that any h previously filed notice of appeal must be amended to appeal from the deemed-denied motion).
IV. MPDO and Due Process
The trial court entered its MPDO on August 24, 2016. Bill claims that the order is void ab initio because he was afforded no opportunity to appear and be heard in opposition, which was in derogation of his right to due process. Further, Bill asserts that this order was entered without any motion being filed by Clarissa requesting it, in violation of Arkansas Rule of Civil Procedure 7 (2016).
In contrast, Clarissa contends that the MPDO should be affirmed. We agree'. The trial court asked Clarissa to prepare the MPDO in its August 10, 2016 letter to the attorneys, which explained the trial court’s reasoning for granting Clarissa summary judgment and notified the parties of its decision. The MPDO was submitted to the trial court and delivered to opposing counsel on August 15, 2016. Bill responded to the proposed order with his objections on August 22, 2016. He did not include a request for a hearing in his letter outlining his objections. The MPDO was then filed on August 24, 2016.
Bill responded in writing to the proposed order, and he never asked for a hearing prior to the MPDO’s filing. Accordingly, we hold that Bill’s argument that he was denied | t2due process is without merit given that no request for a hearing was raised before the entry of the MPDO. See Ark. R. Civ. P. 78(c) (providing in part that unless a hearing is requested by counsel or is ordered by the court, a hearing will be deemed waived, and the court may act on the matter without further notice after the time for reply has expired).
V. MPDO and Modification of Contract
The MPDO entered in this case provides that Clarissa shall receive one-half of the “marital share” of Bill’s military-retirement pay. “Marital share” is defined in the order as “a fraction made up of 154 months of marital pension services, divided by the total months of [Bill’s] military service.” Bill contends that there is no “marital share” because, as the trial court recognized, at the time of the divorce, Bill’s right to military-retirement pay had not vested. Bill contends that by ordering that Clarissa is entitled to a portion of his military retirement, the trial court fundamentally and impermissibly modified the parties’ contract.
Bill made the same argument when he addressed the summary-judgment ruling. Because we affirmed the trial court’s ruling that Clarissa was entitled to summary judgment based on the contract, Bill’s argument that the MPDO modified the parties’ agreement cannot be sustained.
Affirmed.
Glover and Hixson, JJ., agree.
. "QDRO” stands for Qualified Domestic Relations Order, which is an order that provides for an alternate payee’s right to receive all or part of any benefits due a participant under a pension or retirement-benefit plan. See Black’s Law Dictionary, pg. 1275 (8th ed. 2004).
. The trial court uses the term QDRO and MPDO interchangeably, even though QDRO refers to the division of civilian-retirement or pension plans and MPDO refers to military-retirement plans.
. Rule 7 provides that an application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. | [
-80,
-18,
-55,
76,
42,
32,
8,
-68,
122,
-93,
39,
-45,
-25,
-6,
16,
107,
96,
11,
64,
105,
83,
-77,
70,
-64,
-9,
-77,
-23,
-35,
-80,
78,
-12,
87,
-36,
40,
-126,
-43,
102,
-109,
-89,
28,
6,
-108,
-85,
97,
-39,
-63,
48,
115,
16,
9,
49,
-2,
-15,
47,
21,
-62,
44,
110,
93,
-87,
-64,
-120,
-113,
-124,
111,
21,
-111,
4,
-100,
110,
-40,
14,
-104,
57,
1,
-55,
51,
-74,
-110,
116,
75,
56,
1,
96,
114,
3,
101,
-3,
20,
-72,
-126,
124,
-115,
-89,
-37,
80,
115,
8,
-66,
31,
124,
21,
5,
126,
46,
-124,
61,
100,
10,
-50,
-58,
-79,
12,
112,
-66,
-110,
-17,
67,
16,
116,
-49,
-32,
92,
71,
59,
-71,
-57,
-86
] |
JIM HANNAH, Chief Justice
11 Appellant, Sanders M. Carter, appeals from the circuit court’s denial of his motion for postconviction forensic DNA testing pursuant to Arkansas Code Annotated sections 16-112-201 to-208 (Repl. 2006). We reverse and remand for an evidentiary hearing.
The following facts, except where supplemented .in footnote 1, were recited by this court on direct appeal:
On November 18, 1986, a criminal committed the felonies of rape and aggravated robbery of the prosecutrix and the burglary of her home. During the forty to forty-five ainute ordeal, the criminal, who had entered the home through a kitchen window off a deck, threatened to Ml the prosecutrix with a knife, and also told her that if she called the police he would come back at a later time and slit her throat. In spite of his threat, she called the police, reported the crimes, and gave a description of the criminal. •
| P.One night about a month and one-half later, on January 4, 1987, she heard someone on the deck and saw a man pass by the window. She called the police and they immediately caught the appellant on the deck. Later that day, and again at trial, she identified the appellant as the person who had committed the earlier rape, aggravated robbery, and burglary. The appellant was charged with those three felonies and was also charged with the later attempted burglary. The attempted burglary charge was severed and later dismissed.
Carter v. State, 295 Ark. 218, 220, 748 S.W.2d 127, 127 (1988). On June 3, 1987, Carter was convicted of rape, aggravated robbery with a deadly weapon, and burglary. For his convictions, Carter was sentenced as a habitual offender to consecutive terms of imprisonment totaling life plus forty years. This court affirmed oh direct appeal. See id., 748 S.W.2d at 127. Carter subsequently filed numerous unsuccessful petitions for postconviction relief.
On May 16, 2012, Carter filed a motion for postconviction forensic DNA testing and requested that he be allowed to conduct DNA testing of so-called “touch DNA” purportedly [ -¡located on the handle of the knife that was admitted into evidence at trial and identified by the victim as the knife Carter used during the rape, aggravated robbery, and burglary. Carter alleged that DNA testing of the knife could produce evidence materially relevant to his assertion of actual innocence. The State responded that Carter was not entitled to relief because he failed to satisfy the statutory requirements for postconviction DNA testing.
The circuit court denied the motion without a hearing and ruled that Carter was entitled to. no relief, because he (1) failed to satisfy the chain-of-custody requirements of section 16-112-202(4), (2) failed to satisfy the timeliness requirement of section 16-112-202(10), and (3) failed to demonstrate that he should be permitted to file a subsequent petition for postconviction relief. Carter appeals.
In appeals of postconviction proceedings, we will not reverse a circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. E.g., Pankau v. State, 2013 Ark. 162, at 5, 2013 WL 1694909. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction, that a mistake has been committed. Id. The same standard of review applies when a circuit court denies DNA testing under Arkansas Code Annotated sections 16-122-201 to-208. Id. Unless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the petition and response, promptly determine the issues, make findings' of fact and conclusions' of law, and either deny the petition or enter an .order granting the appropriate relief. Ark. Code Ann. § 16-122-205(a).
^Except when direct appeal is available, a person convicted of a crime may make a motion for the performance of ... DNA testing, or other tests which may become available through advances in technology to demonstrate the person’s actual innocence if a number of requirements are satisfied. See Ark. Code Ann. § 16-122-202. The statutory requirements at issue in this case are chain of custody and timeliness.
I. Chain of Custody
Section 16-112-202(4) requires demonstration that “[t]he specific evidence to be tested is in the possession of the státe and has been subject to a chain of custody and retained under conditions sufficient to ensure that the evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed testing.” The statute has three components: the requirement that the specific evidence to be tested is in the possession of the State, the requirement of chain of custody, and the requirement that there has been no alteration of evidence material to DNA testing. See United States v. Fasano, 577 F.3d 572, 576 (5th Cir. 2009) (construing chain-of-custody requirements under 18 U.S.C. § 3600(a)(4) of the Innocence Protection Act of 2004). Carter alleged in his petition that the Little Rock Police Department recovered the knife Rfrom the scene and sent it to the Arkansas State Crime Laboratory, which then returned it to the Little Rock Police Department. Carter further alleged that the knife was admitted into evidence as Exhibit 6 at his trial and then delivered to this court’s office of the clerk in 1987 when the record was lodged in his direct appeal. Finally, Carter alleged that in August 2011, he confirmed through a telephone conversation with a clerk’s office employee that the clerk’s office was still in possession of the knife.
The State responded that Carter failed to satisfy the chain-of-custody requirements because the knife was “introduced at trial as an exhibit and therefore could have been and was held by any number of people, including the prosecutor, detective, judge, bailiff, court reporter, and jurors, who did not wear gloves,” and because the knife “was sent with the trial transcript to the Arkansas Supreme Court where it was held in a manila envelope which became torn at some point.” In addition, the State averred that the knife “was ... sent to the prosecutor’s office when it requested the transcript in this matter, thereby showing that anyone who viewed the transcript in this matter or handled the transcript could have touched the knife.”
In its order denying relief, the circuit court found that the knife had been delivered to this court’s office of the clerk when the record was lodged in Carter’s direct appeal on December 1, 1987, and that the transcript has been available for checkout. Further, the circuit court found that the records of the clerk’s office “reflect that the appellate transcript, including the knife, has been checked out and removed from the custody of that office on | fiat least three occasions since 2002.” Accordingly, the circuit court ruled that Carter had failed to meet the chain-of-custody requirements of section 16-112-202(4).
We conclude that the circuit court erred in failing to hold an evidentiary hearing to determine whether Carter satisfied the chain-of-custody requirements of section 16-112-202(4). Carter alleged in his petition that the knife was in the possession of the State, that the knife had been subject to a chain of custody, and that the knife had been retained under sufficient conditions. The State agreed that the knife was in the possession of the State, but it maintained that the chain of custody had been compromised because the knife “could have been and was held by any number of people.” As Carter points out, the State presented no documentation to support its claim that a break in the chain of custody had occurred and it presented no evidence to support its claim that the knife had not been retained under conditions sufficient to ensure that it had not been contaminated, tampered with, or altered in any respect material to the proposed testing. In addition, because no hearing was held, Carter had no opportunity to disprove the State’s claim that a break in the chain of custody had occurred, and he had no opportunity to present evidence regarding the ability—via modem DNA testing procedures—to obtain probative results from the evidence despite the conditions of retention. We hold that, under the facts of this case, the dispute over chain-of-custody requirements must be resolved in an evi-dentiary hearing.
II. Timeliness
A motion for postconviction DNA testing must be made in a timely fashion. Ark. lyCode Ann. § 16-122-202(10). There is a rebuttable presumption against timeliness for testing if the motion is not made within thirty-six months of the conviction. Id. § 16-122-202(10)(B). The presumption may be rebutted upon a showing (1) that the movant was or is incompetent and the incompetence substantially contributed to the delay in the motion for a test, (2) that the evidence to be tested is newly discovered evidence, (3) that the motion is not based solely upon the movant’s own assertion of innocence and a denial of the motion would result in a manifest injustice, (4) that a new method of technology that is substantially more probative than prior testing is available; (5) or good cause. Id. § 16-122-202(10)(B)(i)-(v).
Carter was convicted in 1987, and he filed his motion in 2012. A rebuttable presumption therefore arose that the motion was untimely filed. The circuit court found that Carter’s request for DNA testing was untimely because he had known about the existence of the knife since June 3, 1987, when it was admitted into evidence at his trial.
To rebut a presumption against untimeliness, a petitioner need only satisfy one of the enumerated bases for rebuttal. Here, Carter rebutted the presumption against untimeliness by showing that a new method of technology that is substantially more probative than prior testing is available. See Ark. Code Ann. § 16-122-202(10)(B)(iv). Carter was convicted in 1987, and in a previous petition, he presented evidence that DNA testing was unavailable at the Arkansas State Crime Laboratory at that time. See Carter v. State, CR-03-148, 2004 WL 309063, at *1 (Ark. Feb. 19, 2004) (unpublished per cu-riam). This court has observed that DNA profiles have been admissible evidence in Arkansas since 1991. See Whitfield v. State, 346 Ark. 43, 45, 56 S.W.3d 357, 358 (2001) (citing Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991)). Carter asserts that, because no DNA testing methods were available-at the .time of his trial, today’s DNA testing methods are, by definition, substantially more probative.
The State contends that, even accepting Carter’s representations regarding the availability of STR testing in Arkansas—1996—and Y-STR testing—2007— his motion still fails to overcome the presumption of untimeliness because he could have verified the knife’s location at any time after those dates by a simple phone call to the clerk of this court and petitioned to have the knife tested using those technologies. We disagree. Despite the State’s assertion to the contrary, the statute imposes no time limitation for rebutting a presumption against timeliness. See Ark. Code Ann. § 16-112-202(10)(B). We hold that the circuit court erred in finding that Carter failed to meet the timeliness requirement of section 16-112-202(10).
III. Successive Petition
Carter contends that the circuit court abused its discretion in failing to permit him to file a subsequent petition under section 16-112-205(d), which states that the “court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition if the issues raised in it have previously been decided by ... the Arkansas Supreme Court in the same case.” The State correctly points out that the circuit court did not “summarily deny” Carter’s motion because it considered and ruled on his arguments regarding the chain of custody and timeliness. To the extent that the circuit court ruled that Carter was not entitled to seek postconviction forensic DNA | Resting because his motion in this case amounted to a successive petition for similar relief, we disagree. Carter’s previous petitions did not request the use of the DNA technologies at issue here, specifically STR and Y-STR testing.
Because the files and records in this case do not conclusively show that no relief was warranted, we reverse the circuit court’s denial of Carter’s motion for post-conviction forensic DNA testing, and we remand to the circuit court to conduct a hearing on the motion. In holding a hearing on the motion, the circuit court can consider the issues discussed in this appeal and determine whether each of the other statutory requirements have been met such that testing shall be ordered.
Reversed and remanded.
, Detective Ronnie Smith of the Little Rock Police Department responded to the scene on November 18, 1986, and he testified that, while there, he recovered a knife that was lying in the grass on the north side of the victim’s home. The knife was admitted into evidence at trial and identified by the. victim as the knife used by Carter during the rape, aggravated robbery, and’burglary.
. See Carter v. State, CR-87-209, 1989 WL 121061 (Ark. Oct. 16, 1989) (unpublished per curiam) (rejecting petition to pursue Rule 37 relief in circuit court); Carter v. State, CR-90-187, 1990 WL 175927 (Ark. Nov. 5, 1990) (unpublished per curiam) (dismissing appeal of circuit court’s order denying habeas corpus relief); Carter v. State, CR-03-148, 2004 WL 309063 (Ark. Feb. 19, 2004) (unpublished per curiam) (affirming circuit court’s denial of petition for further scientific testing of evidence collected at the crime scene because the evidence either no longer existed or could not be located); Carter v. Norris, 367 Ark. 360, 240 S.W.3d 124 (2006) (per curiam) (affirming circuit court's denial of petition for habe-as corpus relief); Carter v. State, 2010 Ark. 29, 2010 WL 199646 (per curiam) (affirming circuit court’s .denial of successive petition for further scientific testing of hairs collected at the crime scene because Carter did not offer a factual basis for his claim that the evidence was available with'an unbroken chain of custody); Carter v. State, 2011 Ark. 481, 2011 WL 5437537 (per curiam) (denying petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis).
. The Innocence Protection Act of 2004, codified at 18 U.S.C. § 3600, "allows federal prisoners to move for court-ordered DNA testing under certain specified conditions.” See Dist. Atty's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 63, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). An applicant seeking DNA testing under the Innocence Protection Act must demonstrate, inter alia, that "[t]he specific evidence to be tested is in the possession of the Government and has been subject to a chain of custody .and retained under conditions sufficient to ensure that such evidence has not been .substituted, contaminated, tampered with, replaced, or altered in any' respect material to the proposed DNA testing,” 18 U.S.C. § 3600(a)(4).
. There is no evidence in the record to support this finding. | [
16,
-24,
-19,
-68,
57,
-31,
-102,
56,
66,
-61,
103,
115,
-91,
66,
5,
106,
-88,
109,
117,
105,
-41,
55,
39,
109,
-14,
-69,
-77,
-41,
-77,
75,
-27,
-106,
12,
96,
-54,
-47,
70,
-118,
-89,
-36,
-114,
11,
-7,
108,
80,
80,
40,
58,
-36,
15,
53,
-100,
-13,
104,
21,
-53,
-119,
108,
91,
-68,
120,
57,
-101,
31,
-97,
16,
-93,
39,
-101,
33,
-8,
30,
-104,
-79,
0,
105,
114,
-74,
-128,
-44,
109,
-103,
4,
98,
99,
0,
72,
-57,
9,
-127,
-50,
-82,
-75,
-90,
-37,
41,
73,
45,
-105,
-75,
104,
20,
12,
120,
119,
-2,
21,
108,
-114,
-97,
-16,
-111,
-119,
49,
-108,
122,
-29,
39,
54,
113,
-51,
-22,
87,
-59,
120,
-37,
-50,
-13
] |
N. MARK KLAPPENBACH, Judge
|, Appellant Marla Shook appeals the entry of summary judgment in favor of ap-pellee Love’s Travel Stops &' Country Stores, Inc. (Love’s). On August 17, 2011, Shook tripped and fell over' a folded rug near the store’s doorway. In Juhe 2014, Shook filed suit against Love’s for injuries she sustained as a consequence of the fall. Shook alleged that Love’s owed her, as a business invitee, the duty to use ordinary care; that Love’s was required to maintain its premises in a reasonably safe condition; and that Love’s failed to use ordinary care to eliminate the dangerous condition or warn Shook of its ..presence. In the course of | ^discovery, Shook filed two motions to compel, seeking in.part. to. have Love’s produce the incident report created by the store manager immediately after Shook had fallen. The trial court denied those motions. Subsequently, Love’s moved for summary judgment, contending that the folded rug was an open and obvious danger. The trial court agreed with Love’s and entered summary judgment. On appeal, Shook argues that (1) the trial court erred in entering summary judgment by finding that Love’s had no duty to Shook as a matter of law because the open-and-obvi-. ous-danger exception applied here; and (2) the trial court abused its discretion in not compelling' the production of Love’s incident report. We agree that summary judgment was inappropriate, at this juncture, and we agree that the trial court abused its discretion in not compelling production of the incident report. Thus, we reverse and remand.
Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a-matter of law. Tillman v. Raytheon Co., 2013 Ark. 474, 430 S.W.3d 698. On appellate review, we determine if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of the motion leave a material question of fact unanswered. Id. 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 | aparties. Id. Summary judgment is not proper where the evidence reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).
Because the underlying cause of action is based in negligence, the existence of a duty of care is crucial. Under Arkansas law, in order to prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate causé of the plaintiffs injuries. Yanmar Co. v. Slater, 2012 Ark. 36, 386 S.W.3d 439. Because the question of what duty is owed is one of law, we review it de novo. Lloyd v. Pier W. Prop. Owners Ass’n, 2015 Ark. App. 487, 470 S.W.3d 293. If the court finds that no duty of care is owed, the negligence count is decided as a matter of law. D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254 (2002); First United Methodist Church of Ozark v. Harness Roofing, Inc., 2015 Ark. App. 611, 474 S.W.3d 892.
A business invitee visits “for a purpose connected with the business dealings of the owner.” Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546, 549 (1994). In Arkansas, a landowner generally does not owe a duty to a business invitee if a danger is known or obvious. Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974). The duty to warn an invitee of a dangerous condition applies only to defects or conditions that are in the nature of hidden 14dangers, traps, snares, pitfalls and the like, in that they are known to the invitor but not known to the invitee and would not be observed by the latter in the exercise of ordinary care. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001); Jenkins v. Hestand’s Grocery, 320 Ark. 485, 898 S.W.2d 30 (1995); Kroger Co. v. Smith, 93 Ark. App. 270, 275, 218 S.W.3d 359, 363 (2005).
The evidence before the trial court on this motion for summary judgment included still shots of the store’s surveillance camera provided by Love’s. These were grainy photographs depicting Shook walking in the door, walking beyond and just past the folded rug in the direction of the restroom, and walking back toward the door and tripping over the rug. The end of the folded rug appears to touch the edge of the doorway. Shook was wearing a cervical collar. The photographs do not clearly demonstrate that Shook looked at or observed the rug. In Shook’s response to the motion, she asserted that she did not look down and see the rug so she did not know of the dangerous condition. Shook further asserted that whether this was an “open and obvious” danger was a question of fact. Shook appended her deposition testimony in which she said (1) she walked into the store looking for the restroom | ¿sign, (2) she walked to and used the restroom, (3) she tripped on the rug lying in the aisle near the door but never saw the rug before she tripped, and (4) she was wearing a cervical collar due to a recent neck surgery, so she was looking outward and not downward. Shook also appended the deposition testimony of the manager on duty that night, who stated that the person who folded up the rug should have unfolded it as soon as the task calling for it to be folded (mopping) was completed. The manager stated that, according to procedure, the rug was not where it was supposed to be because it could be a tripping hazard.
At the hearing on the motion for summary judgment, the trial court agreed to consider and to look at the actual video-surveillance footage provided by Love’s to Shook in discovery. The trial court permitted Shook to show the brief portion in which Shook entered and attempted to exit the store when she fell. The trial court noted that the video was two hours long, and “if I care to watch it for two hours I can.” In that video, as asserted by Shook, other people tripped over the rug that night, although they did not fall. Shook’s attorney pinpointed the exact time on the video to locate these other instances, and the video was Centered as an exhibit at the hearing. After hearing arguments of counsel, the trial court took the matter under advisement for a few days.
The trial court filed an order granting summary judgment to Love’s. In that order, the trial court recited that it considered all the pertinent pleadings, the exhibits, and the surveillance video. The trial court ruled that Love’s did not owe a duty to Shook “because the subject rug on which Shook tripped was open and obvious.” This appeal followed.
At the outset, we note that, despite Shook’s arguments to the contrary, the trial court did not find that Shook “knew” of the danger of the rug or “saw” it. The trial court clearly could not so find because in considering a motion for summary judgment, the evidence and all reasonable inferences deduced therefrom must be viewed in the light most favorable to Shook as the plaintiff. “Known” in this context means “not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.” Van DeVeer v. RTJ, Inc., 81 Ark. App. 379, 386, 101 S.W.3d 881, 884 (2003). “Thus the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated.” Id. Shook vehemently denied having seen the rug before she tripped and fell over it, and the video and photographic evidence do not definitively demonstrate that she did see it. Love’s appellate brief on this issue focuses solely on its contention that the video definitely shows that Shook |7saw the rug and knew it was in her walkway. Viewing all the evidence in the light most favorable to Shook at the summary-judgment stage, a finding that she knew the rug was there would be in error.
The trial court’s entry of summary judgment was premised on the conclusion that the folded rug was, as a matter of law, an open and obvious danger. Shook argues that this too is in error, and we agree. A dangerous condition is “obvious” when “both the condition and the risk are apparent to .and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Van DeVeer, 81 Ark. App. at 386, 101 S.W.3d at 886. In this case, Shook presented evidence that a reasonable person in Shook’s position— wearing a cervical collar with limited ability to look down—would not have recognized or appreciated the risk of the folded rug in her path on her way out of the store. Moreover, the video demonstrates other persons with no apparent obstructions to their ability to view the floor walked and tripped over the rug in the hour before Shook’s fall. At this stage of the proceedings, the record presents an issue of fact not properly resolved by summary judgment. We cannot say that Love’s proved as a matter of law that the danger | presented in this case was open and obvious. See Hergeth, Inc. v. Green, 293 Ark. 119, 124, 733 S.W.2d 409, 411 (1987).
Our reversal of the entry of summary judgment and remand for further proceedings necessitates that we address Shook’s second point on appeal. Shook argues that the trial court abused its discretion in refusing to compel Love’s to produce the incident report filled- out by the store manager on the night that Shook fell. The trial court found that it was “work product” that was prepared in anticipation of litigation, providing-a.privilege not to disclose that information. We agree with Shook that the trial court abused its discretion because this was not work product but was rather a document prepared in the ordinary course of business.
The standard of review is well settled. The trial court has wide discretion in matters pertaining to -discovery, and a circuit court’s decision will not be reversed absent an abuse of discretion. Parker v. S. Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). Although we recognize the magnitude of the circuit court’s discretion in discovery matters, our supreme court has found an abuse of discretion where there has been an undue limitation of substantial rights of the appellant under the prevailing circumstances. Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971). A motion for production of documents must be considered in light of the particular | .¡circumstances which give rise to it, and the need of the movant for the information requested. Grand Valley Ridge, LLC v. Metro. Nat’l Bank, 2012 Ark. 121, 388 S.W.3d 24. In cases in which the appellant is relegated to proving his or her claim by documents, papers, and letters kept by the appellee, the scope Of discovery should be broader. Id. We consider this factor in deciding whether there has been an abuse of discretion in denying a discovery request. Id. The goal of discovery is, to permit a litigant to obtain whatever information he or she may need to-prepare adequately for issues that may develop without imposing an onerous burden on his adversary. Id.
The party asserting the privilege to bar discovery bears the initial burden of proving a factual basis establishing the applicability of the work-product privilege. Rabuska v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997). Ordinary work product includes “raw data collected in the course of litigation and included in an attorney’s file.” Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). Regardless of the type.of work product at issue, the threshold question governing application of the doctrine is whether the contested documents were-prepared in anticipation of litigation. Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109 (7th Cir. 1983). The mere possibility that litigation may result is not sufficient to trigger the protection of the work-product doctrine. See Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604 (8th Cir. 1977) (holding that more than a remote prospect of future litigation is ¡^required to trigger work-product protection). More than a remote prospect of litigation is required because prudent parties anticipate litigation and begin preparation before the time suit is formally commenced. In re Advanced Pain Centers Poplar Bluff v. Ware, 11 F.Supp.3d 967 (E.D. Mo. 2014). Thus the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. Id. There is no work-product immunity for documents prepared in the regular course of business rather than for purposes of the litigation. Id.
Here, the undisputed evidence is that this incident report was prepared by the store manager within an hour of Shook’s fall. Shook argues that- she needed the report to learn who witnessed the event, what procedures or protocols might have been violated,- and how the manager may have been critical of any employee who left the folded rug near the entrance. Shook contends that merely alleging that this immediately prepared incident report was made in anticipation of litigation did not make it so.
To explain in more detail, after the first motion to compel had been filed, the trial court entered a protective order in May 2015, protecting Love’s privacy interests but commanding Love’s to produce the contact and location information of former Love’s employees, any of Love’s corporate policies and procedures, and the architectural plans or similar documents |nwith regard to this particular Love’s store. It declined to compel production of the incident report “at this time.”
In July 2015, Shook’s attorney deposed the store manager on duty that night, Justin Siler, who had prepared the incident report. Siler testified that he had prepared the report within an hour after Shook and her husband had left the store. Siler stated that he had never filed such a report before;- Siler filled it out in order to make his superiors aware of what happened. Siler had spoken to the Shooks and had watched the store’s security video. He stated that the form requested the person’s name, what happened, and which employees were on duty when the event.,happened. He spoke to Angela, a Subway employee inside the Love’s store, who told him that she did not see the fall. Siler identified some other Love’s employees by name, although he did not remember who had been working that night. Siler said that proper procedure would have been for him to take oral statements from other employee witnesses and put them “verbatim” in the report. Siler did not remember the contents of any statements he received that night. He was unaware of anyone being disciplined in connection with this fall in the store, although he agreed that whoever folded the rug was responsible for unfolding it right after that area had been mopped.
As it argued to the trial court, Love’s asserts on appeal that this incident report constitutes work product, like thé materials deemed work product in Schipp v. Gen. Motors Corp., 457 F.Supp.2d 917 (E.D. Ark. 2006). We disagree. In that case, notes taken during witness interviews by the insurer and provided to the insured’s attorney following a car accident involving a fatality were protected by the work-product doctrine. The federal court went on to hold, however, that any verbatim nonparty-witness statements were neither privileged nor work product and had to be produced. In the present case, this incident report was required by Love’s internal practices and procedures, was1 prepared by a- store manager- immediately after Shook’s -fall for the express purpose of informing his superiors of what happened, and was prepared years before any litigation ensued. We hold that the report constituted a document prepared in the regular, course of business rather than for purposes;of the litigation. The.trial court erred in finding that it constituted “work product” as defined under Arkansas law.
Lové’s argues that, regardless of whether this was properly considered privileged material, Shook suffered no prejudice because she had been provided the store’s video and had deposed the store manager. While there were other pieces of evidence provided in discovery, we are not persuaded that the report was cumulative to what had already been provided. The store manager noted .that he would have taken down verbatim statements from employees on duty that night, but he could not remember who had been working or what they had said. The scope of discovery is designed to permit a litigant to obtain whatever'information he or | iashe may need to prepare adequately for issues that may develop, and providing this single report would not unduly burden Love’s. We hold that the trial court abused its discretion in not compelling production of this document.
For the foregoing reasons, we reverse and remand;;
Reversed and remanded.
Whiteaker and Vaught, JJ., agree.
. We note that Shook’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). Shook has abstracted portions of the depositions, and Love’s provided a supplemental abstract of those depositions. We could order rebriefing to correct the defects in the addendum. See Skalla v. Canepari, 2013 Ark. 249, 2013 WL 2460166; GSS, LLC v. Centerpoint Energy Gas Transmission Co., 2013 Ark. App. 465, 2013 WL 4766692. We decline to order rebriefing, but we caution Shook's counsel against such practices in the future. See Davis v. Schneider Nat'l., Inc., 2013 Ark. App. 737, 431 S.W.3d 321.
. Notably, Arkansas Model Jury Instruction 1104 (2017) defines the “Duty Owed to Invitee,” and it provides, in addition to the "ordinary care” standard, that the jury may be instructed to consider whether the dangerous condition was "known by or obvious to” the plaintiff. The commentary recites that this portion of the instruction is to be used when there is substantial evidence that the plaintiff had knowledge of the dangerous condition "or where there is substantial evidence that such condition was open and obvious.” | [
-111,
-4,
-40,
-52,
40,
99,
48,
-72,
75,
-124,
51,
83,
-83,
-64,
28,
107,
-10,
91,
85,
121,
-45,
-77,
7,
-31,
-26,
-77,
-80,
-123,
-79,
106,
100,
-10,
76,
113,
-118,
-43,
102,
-56,
-47,
90,
-122,
15,
42,
-28,
-7,
-128,
32,
123,
28,
15,
49,
28,
-14,
44,
25,
-61,
40,
41,
123,
61,
112,
-8,
-79,
5,
109,
17,
-109,
38,
31,
39,
90,
10,
-108,
56,
2,
-24,
112,
-74,
-110,
84,
67,
-67,
5,
99,
99,
32,
13,
-25,
-84,
-112,
47,
90,
-99,
-25,
-104,
104,
81,
15,
-66,
-67,
116,
22,
14,
110,
-82,
84,
91,
-84,
-97,
-62,
-12,
-109,
-113,
52,
-44,
-25,
-49,
-109,
18,
113,
-52,
-24,
92,
68,
18,
-117,
-34,
-42
] |
MIKE MURPHY, Judge
| Appellant Joanna Hudson appeals the May 4, 2017 order of the Carroll County Circuit Court terminating her parental rights to her minor child, H.G. She argues that the circuit court erred in granting the termination-of-parental-rights petition because appellee Arkansas Department of Human Services (DHS) failed to present sufficient 'evidence that termination was in H.G.’s best interest. We affirm.
On July 20, 2016, DHS filed a petition for emergency custody and dependency-neglect, alleging that then three-year-old H.G. was dependent-neglected as a result of abuse, neglect, and parental unfitness to the juvenile. The affidavit attached to the petition alleged that on July 16,2016, DHS received a call from the Carroll County Sheriffs Office in regard |2to a juvenile, H.G., with second-degree burns on the inside of her thighs. The officer stated that the mother (appellant) was being arrested for an outstanding warrant. Appellant was then screened for drugs at the Carroll County Detention Center where she tested positive for methamphetamine, amphetamine, THC, and benzodiazepines. The affidavit also noted the history this family has had with DHS including a true finding for inadequate supervision in 2001 relating to appellant’s two other children, as well as a true finding for inadequate supervision in 2013 regarding H.G., when appellant was arrested for public intoxication and possession of methamphetamine. An emergency order was entered on July 21, 2016. The court found that immediate removal of H.G. from appellant was in the best interest of the juvenile and was necessary to protect her health and safety as evidenced by appellant’s illegal drug use, unconvincing explanation of the injury to H.G., and the arrest of appellant, which left no legal caretaker for H.G.
Appellant did not appear at the probable-cause hearing, and the circuit court ordered that H.G. remain in DHS custody. On October 3, 2016, DHS filed a petition for termination of parental rights. The petition alleged multiple grounds and stated that subsequent to removal, H.G. disclosed allegations of abuse and sexual abuse by her mother and her mother’s male friend. On November 3, 2016, H.G. was adjudicated dependent-neglected. Per the adjudication order, the case-plan goal remained reunification, yet the circuit court authorized service of the termination-of-parental-rights petition by warning order.
IsOn February 16, 2017, the circuit court conducted the termination-of-parental-rights hearing and appellant appeared by telephone. At the conclusion of the hearing, the circuit court left the record open in order to give appellant an opportunity to consider the testimony presented and to decide if she wanted to voluntarily terminate her rights. The circuit court stated that the case would be recessed and heard again. on March 16, 2017. On March 2, 2017, DHS filed an amended petition for termination, which alleged the abandon ment ground; the criminal-sentence-for-a-substantial-period ground; and the aggravated-circumstances ground. The case was then continued to May 4, 2017. Thereafter, on, April 28, 2017, appellant filed a letter explaining that she was doing everything she could at the Arkansas Department of Correction (ADC) and that she did not want her rights terminated; she also requested visitation with H.G.
On May 4,- 2017, the circuit court terminated appellant’s parental rights pursuant to the subsequent-factors ground; aggravated circumstances (including chronic abuse, sexual abuse, and little likelihood that services to the family would result in successful reunification); and the fact that appellant was currently serving a sentence in a criminal proceeding for a period of time that would constitute a substantial period of H.G.’s life. The circuit court also found that termination was in H.G.’s best interest as she would be at risk of potential harm if returned to appellant due to H.G.’s credible disclosure of physical and sexual abuse by appellant; appellant’s past substance abuse and indifference to remedy it; appellant’s lack of contact with DHS since the case had been filed; indifference to remedy the cause for removal; and appellant’s current incarceration. This timely appeal followed. •
|4We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of Human Servs., 2015 Ark. App. 181, at 4-5, 456 S.W.3d 383, 386. On appeal, the inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. We give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before-it and judge the credibility of the witnesses. Id.
The- termination-of-parental-rights analysis is twofold; it requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. The first step requires proof of one or more of the nine enumerated statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B)' (Repl. 2015). The best-interest determination must consider the likelihood that the children will be adopted and the potential harm caused by returning custody of the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The court, however, does not have to determine that every factor considered be established by clear and convincing evidence. Spencer v. Ark. Dep’t of Human Servs., 2013 Ark. App. 96, at 5-6, 426 S.W.3d 494, 498. Instead, after considering all the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. Id.
On appeal, appellant challenges only the circuit court’s best-interest finding. She does not challenge the grounds for termination and therefore waives that issue on appeal.
In determining the best interest of the child, the circuit court should consider factors such as the likelihood of adoption and the potential harm to the health and safety of a child Rif subjected to continuing contact with the parent. Ark. Code Ann. § 9—27—341(b)(3)(A)(i), (ii). Parental rights will not be enforced to the detriment of the health and well-being of the child. Christian-Holderfield v. Ark. Dep’t of Human Servs., 2011 Ark. App. 534, at 7-8, 378 S.W.3d 916, 920. The court is not required to find that' actual harm would result or to affirmatively identify a potential harm. Jones v. Ark. Dep’t of Human Servs., 2017 Ark. App. 125, at 11-12, 515 S.W.3d 151, 158. Furthermore, the supreme court has directed that.the potential-harm analysis be conducted in broad terms. Id.
Appellant does not challenge the circuit court’s adoptability finding. She does, however, challenge the circuit court’s potential-harm finding. Appellant asserts that the caseworker’s testimony that appellant had not complied with the case plan and that her behavior had not changed is purely speculative.- Appellant claims that the caseworker lacked any personal knowledge about appellant’s compliance with the case plan. Appellant claims that there was no indication that she was aware of the case plan or that one was ever provided to her. We disagree.
We find that clear and convincing evidence supports the circuit court’s conclusion that termination of appellant’s parental rights was in H.G.’s best interest based on the following facts. In her testimony, appellant conceded that “she figured there had been [a case plan], but [she] ran on the 19th of July,” three days after H.G. had been removed from her custody. She did nothing to contact H.G. until she was eventually arrested and incarcerated on December 2, 2016. She testified that she wrote a letter from ADC and had H.G.’s paternal grandmother notify DHS that appellant was in jail. When asked what she was currently doing to get custody back, she.answered that she was taking care of her legal | fissues. Moreover, it is undisputed that H.G. was' sexually abused by appellant. The record revealed testimony of a forensic interviewer who testified regarding H.G.’s disclosure of the sexual abuse, and the DHS caseworker’s testimony confirmed that the allegations of sexual abuse were true. In Blanchard v. Arkansas Department of Human Services, 2012 Ark. App. 215, at 10, 395 S.W.3d 405, 410, we explained, “It would seem obvious that [children] would face potential harm if placed back in the custody of a father who has been found to have sexually abused one of them.”
Lastly, this is appellant’s second attempt at maintaining sobriety and having custody of H.G. She cannot currently seek custody because she is still incarcerated, serving a fivé-year sentence—a sentence longer than thé amount of time H.G., has been alive. We have held that past behavior is correctly viewed as a predictor of potential harm that may likely result if a child is returned to the parent’s custody. Jones, 2017 Ark. App. 125, at 12, 515 S.W.3d at 158. Living in continued uncertainty is, itself, potentially harmful to 'children. Id. Testimony revealed that- appellant cannot provide permanency to H.G. in a reasonable period of time as viewed from the child’s perspective. Accordingly, we hold that the circuit court did not clearly err in finding -that termination of appellant’s parental rights was in H.G.’s best interest.
Affirmed.
Abramson and Brown; JJ., agree.
. H.G.’s legal father was not present at the termination _ hearing; the termination order directed that the style of the case be changed to "DHS v. Justin Gatlin” and that the clerk accept filings under that style.
. In that case, H.G. was placed in foster care, and appellant completed the case plan and eventually regained custody. | [
-79,
-20,
-19,
44,
10,
97,
88,
30,
83,
-109,
119,
-45,
-81,
-26,
20,
111,
106,
107,
101,
121,
-47,
-73,
83,
96,
-46,
-14,
-72,
-41,
-69,
79,
-28,
-44,
94,
112,
-114,
81,
68,
-126,
-17,
80,
-118,
3,
-53,
-23,
81,
-126,
32,
59,
26,
15,
53,
-97,
-26,
44,
27,
-53,
12,
76,
89,
-67,
88,
104,
-101,
23,
-33,
18,
-79,
100,
-102,
-91,
122,
119,
-64,
48,
-120,
-24,
51,
-106,
-126,
116,
75,
-99,
32,
48,
102,
-127,
44,
-25,
-7,
-120,
94,
-84,
-119,
-90,
-102,
41,
73,
11,
-106,
-76,
108,
20,
30,
-6,
99,
13,
116,
108,
68,
-50,
20,
-127,
14,
-87,
28,
59,
-25,
37,
48,
117,
-33,
-96,
85,
68,
51,
-37,
-18,
-14
] |
Judith Rogers, Judge.
On appeal from municipal court, the appellant, Walter Richmond Haynes, was convicted in a jury trial of driving while intoxicated, driving on a suspended license and carrying a weapon. For DWI, appellant was sentenced to a year in the county jail, assessed a fine of $1,000 and his driver’s license was suspended for a period of 120 days. For driving on a suspended license, he was sentenced to six months in jail and fined $500. For carrying a weapon, appellant was sentenced to a year in jail with a fine of $1,000. As his sole issue, appellant contends that the trial court erred in denying his motion to withdraw the appeal from municipal court. We find no error and affirm.
On July 22, 1992, the appellant was found guilty of the above-mentioned offenses in the Union County Municipal Court. Appellant thereafter perfected an appeal to the Circuit Court of Union ■ County. Immediately before the trial began, on March 11, 1993, appellant moved to dismiss the appeal from municipal court. The prosecution objected to a dismissal, stating that it was prepared for trial and that the county had gone to great expense in summoning a jury. The trial court declined appellant’s request to withdraw the appeal, a jury was impaneled and the case proceeded to trial.
On appeal, appellant contends that he possessed an unqualified right to dismiss the appeal. In so arguing, appellant concedes that his contention is contrary to the supreme court’s opinion in Newberry v. State, 261 Ark. 648, 551 S.W.2d 199 (1977), where it was held that the dismissal of such an appeal is a decision lying within the discretion of the circuit judge, and not a matter subject to the unilateral control of the accused. The court explained:
The court did not abuse its discretion in denying the motion to dismiss the appeal. When an appeal takes a case to a purely appellate court, for a review of the judgment of a trial court, the appellant has a right to dismiss the appeal and submit to the judgment, if there is no prejudice to the appellee. But when the appeal is to an intermediate court for a trial de novo, the prosecution is as much a party to the transaction as it was in the court below. The intermediate court, and not the accused, is then vested with the power of dismissal. The court might, for example, find the original sentence to be inappropriate or think a trial to be a necessary step toward discouraging dilatory appeals. In the case at bar we perceive no basis for saying that the circuit judge abused his discretion in the matter.
Id. at 649, 551 S.W.2d at 200 (citations omitted).
While appellant acknowledges the Newberry decision, he nevertheless argues that the opinion is inconsistent with provisions of the Arkansas Constitution which repose in the individual the right to a jury trial, and the right to a public and speedy trial. This argument, however, was not presented to the trial court, and thus it is not preserved for appeal. Under our well-settled rule, this court does not consider issues raised for the first time on appeal. Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992). Even constitutional issues may not be raised for the first time on appeal. Duvall v. State, 41 Ark. App. 148, 852 S.W.2d 144 (1993). We otherwise cannot conclude that the trial court abused its discretion in refusing to dismiss the appeal, and we affirm.
Affirmed.
Pittman and Cooper, JJ., agree. | [
112,
-22,
-43,
28,
43,
64,
18,
-98,
82,
-89,
102,
115,
-89,
-46,
5,
121,
-29,
127,
85,
107,
-59,
-73,
103,
35,
-74,
-77,
91,
-41,
-73,
-49,
-28,
-12,
12,
48,
-54,
21,
102,
73,
-123,
80,
-114,
4,
-87,
72,
104,
90,
48,
42,
64,
-113,
17,
-97,
-21,
46,
27,
-61,
-23,
104,
-37,
-71,
88,
-71,
-118,
13,
95,
4,
-95,
38,
-104,
3,
120,
56,
-104,
57,
8,
-8,
50,
-92,
-128,
-44,
107,
-101,
-116,
102,
102,
1,
125,
-49,
-67,
-120,
38,
62,
31,
-89,
-104,
81,
67,
-117,
-105,
-39,
114,
54,
15,
-4,
111,
-60,
81,
108,
4,
-50,
-80,
-77,
-81,
104,
6,
82,
-29,
33,
48,
84,
-50,
-42,
94,
5,
115,
27,
-34,
-105
] |
John Mauzy Pittman, Judge.
Ira Thurman appeals from an order of the Arkansas Workers’ Compensation Commission awarding him permanent partial disability benefits in an amount equal to a twenty-five percent impairment to his left lower extremity. Appellant contends that the Commission erred in finding that his healing period had ended and in denying his claim for additional temporary total and temporary partial disability benefits. We affirm.
On October 10, 1988, appellant suffered a compensable injury to his left knee. Temporary total disability benefits were paid by appellee until November 13, 1989. Those benefits were discontinued when appellant refused to undergo the arthroscopic knee surgery that had been recommended by his treating physicians. Appellant then filed a claim for additional temporary total disability benefits. The Commission found that appellant’s refusal to have'surgery was unreasonable and, in reliance on Ark. Code Ann. § 11-9-51-2 (1987), denied appellant’s claim for any additional benefits. Section 11-9-512 provides as follows:
Except in cases of hernia, which are specifically covered by § 11-9-523, where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two (2) qualified physicians and where the recommended operation does not involve unreasonable risk of life or additional serious physical impairment, the Commission, in fixing the amount of compensation, may take into consideration such refusal to submit to the advised operation.
Appellant appealed to this court. See Thurman v. Clarke Industries, Inc., 35 Ark. App. 171, 819 S.W.2d 286 (1991). We noted that, although all four of appellant’s physicians had at one time recommended that appellant submit to surgery, three of the four “later retracted their recommendation of surgery on the ground that appellant’s subjective fear of surgery was so great as to jeopardize the chances of success.” Id. at 173, 819 S.W.2d at 287. Therefore, we found that there was no substantial evidence that surgery was in fact recommended by at least two physicians and concluded that § 11-9-512 was inapplicable. We held that “the Commission erred in taking the appellant’s refusal to submit to surgery into consideration in fixing the amount of his compensation” and remanded the case to the Commission for “further proceedings not inconsistent with this opinion.”. Id. at 173, 819 S.W.2d at 287.
On remand, appellant contended that he was entitled to temporary total benefits from November 13, 1989, through May 25, 1990 (when he began driving a school bus part-time), and temporary partial benefits from May 25, 1990, through a date yet to be determined. Alternatively, appellant contended that, if the Commission found that his healing period had ended, he was entitled to permanent partial disability benefits.
In its opinion, the Commission acknowledged this court’s decision in Thurman I and correctly described our holding. The Commission then proceeded to determine appellant’s entitlement to additional temporary disability benefits. The Commission found that, without the arthroscopic knee surgery, appellant’s healing period had ended on August 28, 1989, and, therefore, that he was not entitled to any additional temporary benefits. The Commission further found, in accordance with the opinion of appellant’s treating physician, that appellant had a twenty-five percent permanent impairment to the left lower extremity and awarded him permanent partial disability benefits therefor.
On appeal, appellant contends that the Commission erred in finding that he was not entitled to additional temporary disability benefits. He argues that there is no substantial evidence to support the Commission’s finding that his healing period had ended and that the Commission violated this court’s decision in Thurman I by considering his refusal to have knee surgery. We find no merit in either argument.
Temporary disability is that period within the healing period in which an employee suffers a total or partial incapacity to earn wages. Arkansas State Highway and Transportation Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. Arkansas Highway and Transportation Dep’t v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id.; Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Arkansas Highway and Transportation Dep’t v. McWilliams, supra; J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990).
The determination of when the healing period ends is a factual determination to be made by the Commission. Arkansas Highway and Transportation Dep’t v. McWilliams, supra; Mad Butcher, Inc. v. Parker, supra. Where the sufficiency of the evidence to support the Commission’s findings of fact is challenged, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. We must uphold those findings unless there is no substantial evidence to support them. Arkansas Highway and Transportation Dep’t v. McWilliams, supra.
Here, as early as August 28, 1989, Dr. Melvin Mumme opined that, without surgery, appellant would experience no further recovery. In light of appellant’s refusal to accept that one remaining form of treatment, Dr. Mumme went ahead and assigned appellant a permanent impairment rating. His report stated:
I have told the patient that he probably needs to consider having an arthroscopy of his knee to evaluate for internal derangement and tear of the medial meniscus. He does not want to consider this. I would not expect him to recover further as it has been 10 months. His limitation without correcting his knee derangement would be 25% on the basis of his motion. . . . With arthroscopy and correction of what we think is a torn meniscus the patient’s impairment would be expected to be approximately 10%.
(Emphasis added.) The report of Dr. Richard Back, a psychologist who evaluated appellant in January 1990, stated that “[t]here is no successful treatment available for this patient’s phobia [of having surgery] under the existing conditions.” At the hearing on remand, appellant testified that his condition was no better or worse than it was at the time of the original hearing. He also testified that he was still unwilling to undergo surgery.
From our review of the record, we cannot conclude that there is no substantial evidence to support the Commission’s finding that appellant’s healing period ended August 28, 1989. On that date, Dr. Mumme stated that there was no treatment available for appellant’s condition, other than surgery, and that without surgery appellant could expect no further recovery. Since that time, no treatment for the healing or improvement of appellant’s condition has been administered. While undergoing surgery might still improve appellant’s condition, surgery was in no way a realistic possibility at the time of the most recent hearing, nor had it been since at least the time of Dr. Mumme’s report. We con- elude that the mere existence of one remaining form of treatment does not prohibit a finding that a claimant’s healing period has ended when the claimant steadfastly refuses to undergo that treatment. See Savage Welding Supplies v. Industrial Commission, 120 Ariz. 592, 587 P.2d 778 (1978); Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 625 P.2d 453 (1981); Brown Shoe Co. v. Pipes, 581 S.W.2d 140 (Tenn. 1979). Were surgery to continue to be a reasonable and necessary treatment option and were appellant to change his mind and submit to surgery, he could be entitled to additional temporary benefits during his recovery. See Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987) (it is possible for there to be a second, distinct healing period after the original one has ended).
Appellant next contends that the Commission erred in considering appellant’s refusal of surgery. Although appellant cites no authority and does not use the phrase “law of the case,” it appears as though he is arguing that our decision in Thurman I became law of the case and that the Commission violated our order by considering, for any purpose, appellant’s decision not to have surgery. We find no error.
The doctrine of res judicata, which is applicable to decisions of the Workers’ Compensation Commission, forbids the reopening of matters once judicially determined by competent authority. Lunsford v. Rich Mountain Electric Coop., 38 Ark. App. 188, 832 S.W.2d 291 (1992). Moreover, matters decided on a prior appeal to this court are the law of the case and govern our actions on a subsequent appeal to the extent that we are bound by them even if we were inclined at the latter time to say that we had been wrong initially. Id.
Neither of these principles serve to require reversal of the case before us. In Thurman I, we held § 11-9-512 inapplicable to appellant’s case because there was no evidence that at least two physicians were recommending that appellant have surgery. Accordingly, we held that the Commission erred in taking appellant’s refusal to submit to surgery into consideration “in fixing the amount” of compensation to which he might be entitled. The Commission’s action on remand in no way violated our prior decision. Stated simply, the Commission did not consider appellant’s refusal in fixing the amount of his compensa tion. This is evidenced by the fact that the Commission’s award was based on its acceptance of the twenty-five percent impairment from which appellant’s treating physician opined appellant was actually suffering (/. e., without the surgery) rather than the lesser ten percent impairment from which he would suffer if he underwent the surgery. The Commission considered appellant’s refusal, completely independent of § 11-9-512, only for the purposes of deciding whether his healing period had ended and, therefore, determining the type of disability benefits (temporary or permanent) to which he was entitled. Clearly, the Commission’s original order did not find that appellant remained within his healing period and our order in Thurman I did not limit the Commission to awarding appellant temporary benefits on remand. We conclude that the Commission committed no error.
Affirmed.
Mayfield, J., dissents. | [
16,
-23,
-43,
60,
26,
-29,
50,
6,
82,
-77,
103,
83,
-17,
126,
21,
47,
-23,
127,
113,
113,
-35,
-93,
21,
72,
-29,
-45,
59,
87,
-79,
107,
-28,
52,
79,
48,
-126,
-43,
-26,
8,
-81,
20,
74,
-122,
-117,
109,
89,
64,
48,
46,
8,
11,
49,
-114,
-85,
46,
24,
-49,
104,
44,
91,
58,
113,
-104,
-117,
13,
-17,
4,
-95,
4,
60,
39,
-40,
58,
-104,
48,
72,
-24,
16,
-90,
-126,
52,
106,
-71,
12,
99,
98,
48,
57,
-3,
-36,
-72,
31,
-65,
-97,
-92,
-46,
121,
90,
13,
-110,
-67,
107,
28,
4,
120,
-12,
13,
60,
108,
10,
-98,
-106,
-77,
79,
117,
-116,
-125,
-29,
15,
-108,
117,
-50,
-14,
92,
4,
115,
27,
-10,
-70
] |
Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s opinion. The ALJ found that appellee was entitled to recover temporary total disability benefits from January 20, 1991, the day after he last received his regular salary, through January 12, 1992. On appeal, appellants contend that there is no substantial evidence to support the Commission’s decision. Appellee cross-appeals arguing that there is no substantial evidence to support the Commission’s finding that he was not a lent employee of the Drug Task Force (DTF) or El Dorado Police Department. We reverse with respect to the issue on direct appeal, and affirm the issue on cross-appeal.
Appellee, Edward Davis, is a police officer with the Arkansas State Police. He was working in the narcotics division prior to the time of his injury. Part of appellant’s duties as an Arkansas State Police officer included assisting the DTF in the control of illegal drug activities in the thirteenth judicial district. On July 30, 1990, appellee was placed on suspension with pay and a written notice of suspension was provided to appellee specifically instructing him not to engage in any enforcement action during the suspension period. On or about December 10th through the 13th, 1990, during his suspension period, appellee received information from one of his informants that a drug shipment was arriving in El Dorado. Appellee relayed this information to the DTF. On the day the drug shipment was expected to arrive, appellee contacted the DTF. Appellee was requested by the DTF to go with them to the suspected house. During the service of the warrant, appellee was shot in the chest. Compensation for appellee’s ensuing injuries was controverted by the appellants. The Commission awarded benefits.
Appellants contend that appellee was not acting in the course and scope of his employment when he was injured because he was performing enforcement actions which were prohibited under his rules of suspension. Appellants argue that appellee was voluntarily providing assistance to the DTF and El Dorado Police Department outside his duties as an officer of the Arkansas State Police. The Commission found that the actions taken by appellee advanced the interest of his employer even though the conduct took place during a prohibited time. The Commission thus reasoned that appellee was acting within the course and scope of his employment with the Arkansas State Police when the injury occurred.
When reviewing the sufficiency of the evidence to support a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if the Commission’s decision is supported by substantial evidence. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). These rules insulate the Commission from judicial review and properly so, as it is a specialist in this area and we are not. But a total insulation would obviously render our function in these cases meaningless. Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987).
Section 31.00 of 1A A. Larson, The Law of Workmen’s Compensation (1993) provides that “[w]hen the misconduct involves a prohibited overstepping of the boundaries defining the ultimate work to be done by the claimant, the prohibited act is outside the course of employment.” Likewise, § 31.14(a) provides that:
It has already been observed that the modern tendency is to bring within the course of employment services outside regular duties performed in good faith to advance the employer’s interests, even if this involves doing an unrelated job falling within the province of a coemployee. This, of course, assumes that no prohibition is thereby infringed. But if the unrelated job is positively forbidden, all connection with the course of the claimant’s own employment disappears, for he has stepped outside the boundaries defining, not his method of working, but the ultimate work for which he is employed.
Larson’s discusses the case of Fowler v. Baalmann, 361 Mo. 204, 234 S.W.2d 11 (1950), which applies the principles above. We find the case of Fowler illustrative. In that case, the decedent, James Fowler, a flight instructor for Baalmann, Inc., was forbidden to fly on a particular night of bad weather by his superior and was aware that the flight had been canceled. However, the decedent proceeded with the flight which resulted in his death. In denying benefits the Missouri Supreme Court observed:
Mere disobedience of an order as to the detail of the work in hand or the mere breach of a rule as to the manner of performing the work are not generally sufficient to deprive an employee of his right to compensation so long as he does not go out of the sphere of his employment. But compensation cannot be allowed when the employee goes outside of the sphere and scope of his employment and is injured in connection with an activity he has been expressly forbidden to undertake.
An employer has the unqualified right to limit the scope of a servant’s employment and activity and to determine what an employee shall or shall not do. The employer likewise has the unqualified right to determine when an employee shall do a certain thing. The prohibition which the employer laid down in this case (the direct order expressly canceling the flight) goes deeper into the relationship of the parties than any mere rule, for it severed utterly and terminated completely the employer-employee relationship for the day.
In this case, the record reveals that appellee was placed on suspension and was specifically prohibited from engaging in enforcement action. However, appellee provided the DTF information related to a drug bust and participated in the execution of the search warrant. Appellee testified that during his suspension he maintained contact with his informants and forwarded that information to the DTF. Appellee also admitted that he wrote out the search warrant used in the drug bust and that he accompanied officers to the house.
Mike Hall, sergeant for the Arkansas State Police, testified that maintaining contact and keeping one’s network of informants active, are law enforcement activities. He also stated that he would have reprimanded appellee had he known that appellee was engaged in this type of activity during the suspension period.
The record clearly reflects that appellee was prohibited from performing his duties as an officer because of the suspension. Under these circumstances, appellee was engaged in a prohibited act not only forbidden by his written suspension but unknown to and unaccepted by Mike Hall, his superior. Consequently, appellee was outside the scope and course of his employment when he was injured. Therefore, we do not think fair-minded persons with the same facts before them could have reached the same conclusion as the Commission.
On cross-appeal, appellee contends that there is no substantial evidence to support the Commission’s finding that he was not a lent employee of the DTF and the El Dorado Police Department.
In the case of Howe Lbr. Co. v. Parnell, 243 Ark. 686, 421 S.W.2d 621 (1967), the supreme court stated:
When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) The employee has made a contract of hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work.
The record reveals that the Arkansas State Police did not lend appellee to the DTF during his suspension nor had any knowledge that appellee was assisting the DTF during his suspension. Sergeant Hall testified that he was unaware that appellee was engaged in the activities he was performing during his suspension. Again, Sergeant Hall stated that he would have reprimanded the appellee if he had known. In fact, the record reveals that appellee was reprimanded for his participation in the drug raid in violation of his written rules of suspension. Jerry Bradshaw, a lieutenant with the Arkansas State Police, testified that during all times appellee was subject to the control of the State Police.
Appellee argues however that a contract of hire was formed when Officer Robert Gorum requested appellee’s assistance on the night of the drug raid because chiefs of police have the authority to draft citizens into service under Ark. Code Ann. § 14-52-202(c) (Supp. 1993).
It is apparent from the record that Officer Gorum was not a chief of police during the time appellee was requested to participate in the execution of the search warrant. It was established during Officer Gorum’s testimony that, at the time of the raid, he was not a chief of police, but a close personal friend of appellee. Therefore, appellee’s reliance on Ark. Code Ann. § 14-52-202(c) is misplaced.
The record further reveals that the parties stipulated that appellee was an employee of the Arkansas State Police at the time of his injury. The record also reflects that appellee was not receiving a salary from the DTF or the El Dorado Police Department and he only provided assistance to the DTF if he was available to do so. Also, appellee testified that he contacted the DTF to provide them with information from his informant. Appellee also testified that he was not under direct control of anyone on the DTF or the El Dorado Police Department.
Based on this evidence, the Commission determined that appellee was not a lent employee. The Commission found that there was not a contract of hire and that appellee was at all relevant times solely the employee of the Arkansas State Police. After reviewing the record, we cannot say there is no substantial evidence to support the Commission’s decision.
Reversed on appeal; affirmed on cross-appeal.
Pittman and Robbins, JJ., agree.
879 S.W.2d 473
Frank Gobel, for appellant.
Floyd Thomas and Chris Bradley, for appellee. | [
-112,
-22,
-11,
28,
58,
-31,
58,
-80,
83,
-101,
-25,
81,
-81,
99,
21,
59,
-23,
127,
116,
73,
-45,
-74,
101,
107,
-26,
-41,
121,
-57,
-77,
79,
-28,
-44,
79,
48,
-122,
-43,
102,
64,
-49,
24,
-54,
1,
-118,
111,
121,
2,
48,
46,
24,
15,
49,
-114,
-22,
106,
16,
-61,
109,
44,
91,
-74,
80,
121,
-102,
13,
-5,
4,
-93,
4,
-99,
47,
-8,
62,
-39,
49,
0,
104,
50,
-90,
-62,
116,
115,
-103,
4,
96,
98,
36,
29,
-115,
-80,
-120,
22,
-66,
-113,
-92,
-112,
49,
107,
79,
-108,
-99,
122,
20,
6,
-4,
114,
-51,
87,
108,
-121,
-34,
-108,
-111,
-17,
32,
-100,
-61,
-49,
1,
18,
37,
-50,
-30,
92,
71,
83,
27,
-61,
-42
] |
Robert J. Gladwin, Judge.
This is a one-brief appeal challenging an ex parte order entered by the Calhoun County Circuit Court that granted temporary custody of the two minor daughters of appellees Donald E. Kirby, deceased, and Terri Kirby Stell to their paternal grandmother, appellee Maxine McManus. Appellant Arkansas Department of Human Services (DHS) raises several points on appeal: (1) that the trial court did not correctly apply the Arkansas Rules of Civil Procedure; (2) that the trial court did not have personal jurisdiction; (3) that the trial court erroneously found that the children were at risk of harm. Because the order appellant appeals from is not a final appealable order, we dismiss the appeal.
A. K. and P. K. are the minor daughters of appellees Donald E. Kirby and Terri Kirby Stell, who were married on or about July 31, 1990, and divorced on December 19, 2001. Joint custody was awarded to the parents, with Donald ICrby having physical custody of the children during the school year. Donald Kirby died on July 1, 2002, at which time the children went to live with their mother.
The children maintained contact with, and frequently visited, their paternal grandmother, appellee Maxine McManus. On June 2, 2004, Mrs. McManus called DHS concerning possible abuse and neglect of the children by their mother and her current husband, Scotty Stell. Mrs. McManus made allegations that Mr. Stell had pinched A. K. on the breasts as well as whipped, choked, and slapped her, and pulled her hair. Mrs. McManus also alleged that Mr. Stell had whipped P. K. to the point of inflicting bruises. Finally, Mrs. McManus alleged that A. K. told her that Mr. Stell “stuck needles in his arm” and that her mother might be using illegal drugs. Based on these allegations DHS placed A. K. and P. K. into emergency custody on June 2, 2004.
The following day, Mrs. McManus filed a petition for ex parte emergency custody in the Calhoun County Circuit Court. The petition was filed under the case number for the original divorce action between appellees Donald E. Kirby, deceased, and Terri Kirby Stell, and listed Mrs. McManus as an intervenor, and DHS as a third-party defendant. That same day, on June 3, 2004, the trial judge entered an ex parte temporary order granting Mrs. McManus temporary custody of the children. Both the petition and order listed DHS as a third-party defendant; however, DHS was neither served with the petition nor given the opportunity to present evidence in the matter before the order was granted.
On June 11, 2004, DHS filed a motion for reconsideration and/or transfer, arguing that the domestic-relations division of Calhoun County Circuit Court did not have proper jurisdiction to issue the ex parte order and that the juvenile division was the proper division for such matters. Moreover, DHS argued that Calhoun County Circuit Court did not have proper jurisdiction to hear the case because Mrs. Stell and her children were residents of Dallas County when the ex parte order was entered. DHS also argued that Mrs. McManus had not filed a motion to intervene before filing her petition for custody, nor did she attempt to serve DHS with the petition. DHS asked that the ex parte temporary custody order be vacated or that the entire issue be transferred to the juvenile division of Dallas County Circuit Court, which is the county in which the children lived and the alleged abuse occurred. Meanwhile, on June 24, 2004, Mrs. McManus filed a motion to intervene in the original divorce case between appellees Donald E. Kirby and Terri Kirby Stell. Neither motion was ruled upon by the court, and DHS filed a notice of appeal as to the temporary order on July 23, 2004.
We note that it is a well-established principle that death abates a divorce suit. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003). Our cases hold that a court will lose jurisdiction to decide matters relating to alimony or to the custody of children upon the death of one party after the decree. See Speer v. Speer by Campbell, 298 Ark. 294, 766 S.W.2d 927 (1989); see also Brown v. Brown, 218 Ark. 624, 238 S.W.2d 482 (1951) (holding that the general rule applicable in cases of this kind is that on the death of a parent, the power of the court over custody of the child derived from the divorce action, together with the effectiveness of the decree, terminates, and the surviving parent ordinarily succeeds to the right of custody). In fact, the majority view is that the custody provisions of a divorce decree ordinarily come to an end upon the death of one of the parents, of necessity and because they were intended to operate only as between the parents. See W.W. Allen, Right to Custody of Child as Affected by Death of Custodian Appointed by Divorce Decree, 39 A.L.R.2d 258, § 3. Accordingly, upon the death of appellee Donald E. Kirby, the jurisdiction of the divorce court to provide, in the divorce suit, for the custody of the children terminated.
DHS asserts that the ex parte order granting temporary custody is appealable, claiming that it is a mandatory injunction and that, when the trial court failed to have a hearing on appellant’s motion and did not set aside its order of temporary custody, the order became permanent for all practical purposes. DHS maintains that this matter is somewhat similar to the situation in Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638 (1951), in that there is no trial on the merits of the case that is pending. We disagree. The ex parte order, as it was entered in the original divorce action, is not a final appealable order. Given our resolution of this question regarding the lack of an appealable order, we need not address appellant’s other arguments.
Dismissed.
Griffen and Baker, JJ., agree. | [
-48,
-28,
-19,
-84,
42,
97,
24,
-84,
82,
-77,
117,
-45,
-85,
-26,
13,
105,
-38,
45,
97,
121,
-13,
-73,
87,
96,
66,
-13,
-80,
-42,
-77,
79,
100,
-42,
88,
112,
-118,
85,
-58,
-62,
-17,
-112,
-122,
2,
-87,
101,
81,
-122,
60,
-69,
88,
15,
49,
-81,
-78,
41,
60,
-54,
104,
78,
-55,
-82,
88,
105,
-101,
69,
111,
22,
-77,
4,
-104,
-92,
88,
62,
-104,
57,
0,
-24,
49,
38,
-126,
116,
91,
-39,
13,
101,
98,
2,
-72,
-27,
-4,
-88,
14,
63,
-99,
-90,
-118,
105,
10,
69,
-90,
-76,
72,
-43,
10,
-2,
111,
13,
38,
108,
-128,
-49,
-108,
-79,
6,
40,
-52,
18,
-29,
11,
50,
117,
-39,
-78,
85,
-57,
51,
-101,
-74,
-14
] |
Sam Bird, Judge.
This is the second appeal to come before us in this action brought by appellant, Shelly Turner, administratrix of the estate of Ricky Turner, for negligent hiring, supervision, and retention against appellee Northwest Arkansas Neurosurgery Clinic, P.A. In Turner v. Northwest Arkansas Neurosurgery Clinic, P.A., 84 Ark. App. 93, 133 S.W.3d 417 (2003), we reversed the Washington County Circuit Court’s entry of summary judgment to appellee and remanded the case for trial. We also reversed that court’s orders concerning discovery and the admissibility of evidence. Upon remand, the circuit court did not conduct a trial as we directed it to do but again granted summary judgment to the Clinic, which Mrs. Turner argues was error. We agree.
Mrs. Turner’s husband, Ricky Turner, died after complications following an operation performed by the Clinic’s employees, Dr. Kelly Danks and Dr. Luke Knox. Dr. Knox is also the Clinic’s president. Mrs. Turner sued the doctors for negligence, alleging that, at the time of her husband’s surgery, Dr. Danks was suffering from undiagnosed bipolar disorder, was being improperly treated by Dr. Knox with the contraindicated antidepressant Prozac, and was inhaling nitrous oxide gas because the Prozac exacerbated his mental disorder. On those claims, she sought to hold the Clinic vicariously liable for the actions of Dr. Danks and Dr. Knox. She also alleged that the Clinic and Dr. Knox had been negligent in the hiring, supervision, and retention of Dr. Danks. The circuit court granted the Clinic’s motion in limine prohibiting the admission of any evidence relating to Dr. Danks’s mental illness, use of Prozac, abuse of nitrous oxide gas, and suspension from the practice of medicine. The court also denied Mrs. Turner’s request to take the depositions of Dr. Danks’s physicians. Mrs. Turner later settled all of her claims against Dr. Danks and Dr. Knox. On September 30, 2002, the circuit court granted summary judgment to the Clinic on all of Mrs. Turner’s claims against it.
In her first appeal, Mrs. Turner argued that the circuit court had erred in its rulings concerning discovery and the motion in limine and in granting summary judgment to the Clinic. In an opinion dated December 3, 2003, we agreed, holding that the evidence that Mrs. Turner sought to introduce was admissible and that she should have been permitted to depose Dr. Danks’s physicians. We also held that, in deciding whether to grant summary judgment, the circuit court had impermissibly weighed the evidence and determined that Mrs. Turner’s experts were not credible. We reversed the summary judgment for the Clinic, stating:
The evidence discussed above, which should have been ruled admissible, clearly establishes the existence of genuine issues of material fact as to whether Dr. Danks breached his standard of care when operating on Mr. Turner and whether the Clinic knew or should have known that Dr. Danks would pose an unreasonable risk ofharm to patients. Accordingly, we reverse the award of summary judgment to the Clinic and remand this case for trial.
84 Ark. App. at 105, 133 S.W.3d at 424. Our mandate issued on February 17, 2004, stated that the case was “reversed and remanded for the reasons set out in the attached opinion.”
On April 20, 2004, the Clinic moved for summary judgment on the negligent supervision, hiring, and retention claim against it on the ground that Mrs. Turner’s settlement of her claims against Dr. Knox inured to its benefit, because a corporation acts only through its officers, authorized agents, or employees, and the release of an agent also relieves the principal of responsibility. Mrs. Turner argued in response that this principle did not apply when a direct action was brought against the employer for its own acts; that appellee could have made that argument on the first appeal; and that our December 3, 2003 opinion was the law of the case. In its reply, the Clinic contended that this issue was not ripe for determination on the first appeal. On July 20, 2004, Mrs. Turner moved for a jury trial in accordance with our mandate.
On August 6, 2004, the circuit court denied Mrs. Turner’s motion for a jury trial and granted the Clinic’s motion for summary judgment. In its letter opinion, the court stated:
The first question to be answered by this Court is whether this Court can proceed on the Motion for Summary Judgment or whether the law of the case doctrine or the Mandate prevents this Court from the Motion for Summary Judgment which raises a different and new issue.
In the case at bar, the Court of Appeals did not address the current issue nor could it have in that the issue did not become ripe for argument until after this Court had already ruled that summary judgment should be granted to the Clinic for other reasons. After the oral ruling from the bench on September 23rd, 2002, (which was reduced to a written order and filed on September 30th, 2002) the plaintiff setded the negligent supervision claims against Dr. Luke Knox individually. The law of the case doctrine provides that the decision of an appellate court established the law of the case for the trial court upon remand and for the appellate court itself upon subsequent review and is conclusive of every issue of law or fact previously decided by the appellate court. See Ward v. Williams, 80 Ark. App. 69 (2002); Lender v. Lender, 248 Ark. 322 (2002). Therefore, since the Clinic had no opportunity to raise the settlement issue, because there had been no settlement at the time of the Court’s ruling, the law of the case doctrine is simply inapplicable to these facts.
The plaintiff also argues that the Mandate prevents this Court from considering this new summary judgment issue. After reading the cases cited by both parties, I find that the Mandate does not divest this trial court of jurisdiction to hear and determine the Motion for Summary Judgment under consideration at this time and it does not preclude a defendant from asserting a defense that was not available at the time of the first appeal and which defense is not inconsistent with the appellate court’s ruling in that case. Clearly, there has been no decision by the appellate court on whether or not the settlement with Dr. Knox on the negligent supervision claim extinguishes the claim against the Clinic.
MOTION FOR SUMMARY TUDGMENT
The Court now turns to the pending Motion for Summary Judgment which was orally argued on June 24th, 2004, in this Court. This issue before the Court at that hearing on the Motion for Summary Judgment is as follows: Given that a professional corporation, such as the Clinic, can only act through its officers, authorized agents, and employees[,] does the release of the only officer, agent or employee whom the plaintiff claims to have committed the tortious conduct amounting to negligent supervision inure to the benefit of the Clinic so as to eliminate the Clinic’s liability as a matter of law?
At the hearing I indicated that I thought that the defendant had the better argument and that the settlement does eliminate the liability of the Clinic for negligent supervision. The only person plaintiff alleged committed the negligent supervision was the president of the Clinic, Dr. Luke Knox, with whom the plaintiff settled for his individual liability for negligent supervision. The plaintiff has not alleged in the Second Amended Complaint that any other agent, employee, or officer of the defendant committed any negligent hiring, retention or supervision. The complaint only alleges conduct by the president, Dr. Luke Knox. After the hearing on June 24th, 2004, I requested that supplemental briefs be prepared and filed concerning how any other state has handled this issue. I have reviewed the briefs filed by both parties as well as all subsequent motions and replies.
A corporation, of course, has no capacity to commit ... a tortious act or omission in its own right, but can only act through its officers, agents or employees. In Rhoads v. Progressive Casualty Ins. Co., 36 Ark. App. 185 (1991) the Arkansas Court of Appeals ruled that when a plaintiff settled with the insurance agent for his negligence the principle [sic] or insurance company is released from any liability. Of course, the insurance company could only act through its agents just as this Clinic could only act through its agents, officers or employees. We have the same situation in the case at hand. The plaintiff settled with Dr. Knox for his negligent supervision and which was the basis of the claim against the Clinic. Therefore, based on the Rhoads decision the Clinic is no longer potentially liable because the plaintiff has released Dr. Knox for all his alleged negligent acts or omissions for negligent supervision, hiring and retention. Since the claims against Dr. Knox have been eliminated by settlement and there are no other agents, officers or employees of the Clinic who have been alleged to have acted in any negligent fashion, consistent with the holding of Rhoads, the plaintiffs settlement with Dr. Knox has eliminated the Clinic’s independent liability.
On August 13, 2004, Mrs. Turner filed a notice of appeal. On August 16, 2004, she filed a motion for recusal and to set aside the summary judgment. The court denied this motion on September 8, 2004. Mrs. Turner filed a notice of appeal from that order on September 29, 2004.
On appeal, Mrs. Turner argues: (1) the circuit court lacked jurisdiction to act inconsistently with this court’s mandate, and the award of summary judgment to the Clinic was such an inconsistent act; (2) whether the settlement with Dr. Knox inured to the Clinic’s benefit could have been argued in the previous appeal and is now barred by the law-of-the-case doctrine; (3) the release of Dr. Knox did not effect a release of the Clinic on her negligent-hiring, supervision, and retention claim; (4) the circuit judge abused his discretion in refusing to recuse. Because we agree with appellant that our December 3, 2003 opinion is the law of the case and that the trial court failed to follow our mandate, we need not decide whether the release of Dr. Knox inured to the Clinic’s benefit on the negligent-hiring, supervision, and retention claim against it. We affirm on the recusal issue but reverse the grant of summary judgment in favor of the Clinic.
The Mandate Rule and the Law-of-the-Case Doctrine
Appellant’s first two points on appeal are so interrelated that we will address them together. Mrs. Turner argues that the circuit court exceeded its jurisdiction in acting outside the scope of the mandate by awarding summary judgment to the Clinic on remand, pointing out that we directed the circuit court to permit her to conduct discovery of Dr. Danks’s treating physicians and to proceed with a trial. She also contends that the legal effect of the settlement with Dr. Knox could have been argued by the Clinic on the first appeal and that it is now the law of the case. The Clinic responds that, on remand, the circuit court had jurisdiction to determine motions that were not inconsistent with the mandate or available to the moving party prior to the first appeal. It argues that Mrs. Turner’s settlement with Dr. Knox was not effective until after the first summary judgment and, therefore, this defense was not available until after the case was remanded; that neither the circuit court nor this court decided the legal effect of that settlement; and that our mandate contained no specific instructions to the trial court. In reply, Mrs. Turner states that there has been no change in the relevant facts since before the mandate was issued. She also points out that, in its brief on the first appeal, the Clinic called attention to the fact that all claims against Dr. Knox had been settled but did not assert that the settlement inured to its benefit. Mrs. Turner further correctly notes that the law-of-the-case doctrine applies to every issue that could have been, but was not, decided on the first appeal.
In order to decide the issues presented in this appeal, the chronology of events occurring between September 23, 2002, and our December 3, 2003 opinion must be discussed. A hearing on the Clinic’s motion for summary judgment based on the settlement of the claims against Dr. Danks was held on September 23, 2002. At that hearing, the trial judge said that he would grant the motion as to the claims for which the Clinic could be held vicariously liable for Dr. Danks’s acts. He also said that he would grant summary judgment to the Clinic on the direct claim against it for negligent hiring, supervision, and retention because Mrs. Turner had failed to demonstrate any proof in support of that claim. On September 26, 2002, the Clinic moved for summary judgment on the claims for which it could be held vicariously liable for Dr. Knox’s negligence. In its motion, the Clinic stated: “[T]he plaintiff recently settled with and will release Dr. Luke Knox and enter an Order of Dismissal as against Dr. Luke Knox.” In her response, Mrs. Turner admitted that she had recently settled all of her claims against Dr. Knox. It is, therefore, apparent that the Clinic and the trial judge had knowledge of the settlement with Dr. Knox by September 26, 2002.
On September 30, 2002, the circuit court entered summary judgment for the Clinic and Dr. Knox on Mrs. Turner’s claims against them for vicarious liability for the negligence of Dr. Danks, because she had settled with Dr. Danks and the claims against him had been dismissed. The court also entered summary judgment to the Clinic and Dr. Knox on Mrs. Turner’s negligent-supervision claims because she had “no admissible evidence to support these claims beyond pure speculation and conjecture. . . .” On the same day, and with Mrs. Turner’s consent, the court entered a separate order granting summary judgment to the Clinic on Mrs. Turner’s claim against it for vicarious liability for Dr. Knox’s negligence, as a result of her settlement with Dr. Knox. Because of Mrs. Turner’s settlements with the doctors, the only remaining claim in dispute was her direct claim against the Clinic for negligent hiring, supervision, and retention.
The notice of appeal was filed on October 25, 2002. Mrs. Turner’s claims against Dr. Knox were dismissed with prejudice on October 29, 2002. The record was filed with the supreme court clerk on June 4, 2003. In its August 5, 2003 briefin the first appeal, the Clinic noted that Mrs. Turner had settled her claims against Dr. Knox. We held oral argument on November 12, 2003. The Clinic did not argue in its brief or at oral argument that the settlement and release of Mrs. Turner’s claims against Dr. Knox inured to its benefit on the negligent-supervision claim against it. In our December 3, 2003 opinion, we noted that the claims against Dr. Knox had been settled.
A mandate is the official notice of the appellate court’s action, directed to the court below, advising that court of the action taken by the appellate court and directing the lower court to have the appellate court’s judgment duly recognized, obeyed, and executed. Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998). A trial court must give deference to an appellate court’s mandate, implementing both the letter and spirit of the mandate, given the appellate court’s opinion and the circumstances it embraces. Id. In Briggs v. Pennsylvania Railroad Co., 334 U.S. 304 (1948), the United States Supreme Court noted that, since its earliest days, that Court had consistently held that an inferior court has no power or authority to deviate from the mandate issued by an appellate court.
As explained below, the “mandate rule” is a subset of the law-of-the-case doctrine and is followed by the appellate courts of Arkansas. The question of whether the lower court followed the mandate is not simply one of whether the lower court was correct in its construction of the case but also involves a question of the lower court’s jurisdiction. See Dolphin v. Wilson, supra. The lower court is vested with jurisdiction only to the extent conferred by the appellate court’s opinion and mandate. Id. If an appellate court remands with specific instructions, those instructions must be followed exactly, to ensure that the lower court’s decision is in accord with that of the appellate court. Id. Any proceedings on remand that are contrary to the directions contained in the mandate from the appellate court may be considered null and void. Id. “[Ejither new proof or new defenses cannot be raised after remand when they are inconsistent with this court’s first opinion and mandate. Indeed, to allow such to occur undermines the finality of this court’s decision and denies closure on matters litigated.” Id. at 120, 983 S.W.2d at 117. Accord City of Dover v. A.G. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000); Little Red River Levee Dist. No. 2 v. Moore, 199 Ark. 946, 137 S.W.2d 234 (1940); White v. Gregg Agric. Enters., 72 Ark. App. 309, 37 S.W.3d 649 (2001).
The mandate rule has been described as “simply a subspecies of the venerable ‘law of the case’ doctrine, a staple of our common law as old as the Republic” that has remained essentially unchanged for approximately 150 years. Federated Rural Elec. Ins. Corp. v. Arkansas Elec. Coops., Inc., 896 F. Supp. 912, 914 (E.D. Ark. 1995). The inferior court cannot vary the appellate court’s mandate; examine it for any other purpose than execution; give any other relief; review for error any matter decided on appeal; or meddle with it, other than to settle what has been remanded. Id. However, the courts have recognized some exceptions that might allow a matter to be revisited. They are: (1) the availability of new evidence; (2) an intervening change of controlling law; (3) the need to correct a clear error or prevent manifest injustice. Id.
The law-of-the-case doctrine provides that the decision of an appellate court establishes the law of the case for the trial court upon remand and for the appellate court itself upon subsequent review and is conclusive of every question of law and fact previously decided in the former appeal, and also of those that could have been raised and decided in the first appeal, but were not presented. See Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002); Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001); Helena/W. Helena Schs. v. Hislip, 78 Ark. App. 109, 79 S.W.3d 404 (2002); see also Miller County v. Opportunities, Inc., 334 Ark. 88, 971 S.W.2d 781 (1998). The rule is grounded on a policy of avoiding piecemeal litigation. First Am. Nat’l Bank v. Booth, 270 Ark. 702, 606 S.W.2d 70 (1980). Thus, the law-of-the-case doctrine prevents consideration of an argument that could have been made at trial and also prevents consideration of an argument that could have been raised in the first appeal and is not made until a subsequent appeal. McDonald’s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994); Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990). However, when the evidence materially varies, the law-of-the-case doctrine has no application. See Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998); Hartwick v. Hill, 11 Ark. App. 185, 73 S.W.3d 15 (2002). The law-of-the-case doctrine is conclusive only where the facts on the second appeal are substantially the same as those involved in the prior appeal and does not apply if there was a material change in the facts. Weiss v. McFadden, 360 Ark. 76, 199 S.W.3d 649 (2004); Wilson v. Wilson, 301 Ark. 80, 781 S.W.2d 487 (1989).
By September 26, 2002, the Clinic knew of Mrs. Turner’s settlement with Dr. Knox, and there was no change of material facts for over a year before we issued our opinion and mandate. We therefore hold that this issue is now the law of the case and that the circuit court failed to follow our mandate. Accordingly, we reverse and remand this case for trial as set forth in our December 3, 2003 opinion.
Recusal
Mrs. Turner also argues that the circuit judge abused his discretion in refusing to recuse. She asserts that his consistent rulings against her on the discovery and evidentiary issues, his award of summary judgment to the Clinic before the first appeal, and his failure to follow our mandate evidence his prejudice and bias against her.
When recusal is in issue, a judge has a duty to sit on a case unless there is a valid reason to disqualify. Perroni v. State, 358 Ark. 17, 186 S.W.3d 206 (2004). It is a rule of long standing that there is a presumption of impartiality on the part of judges. Kimbrough v. Kimbrough, 83 Ark. App. 179, 119 S.W.3d 66 (2003). A judge’s decision whether to recuse is within his discretion and will not be reversed absent abuse of that discretion. Id. The party seeking recusal must demonstrate bias. Id. Further, unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. Id. The fact that a judge has ruled against a party is not sufficient to demonstrate bias. Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003). On the record currently before us, we cannot say that the circuit judge abused his discretion in refusing to recuse.
For these reasons, we affirm the circuit judge’s refusal to recuse, reverse the entry of summary judgment to the Clinic, and remand for trial, in keeping with our December 3, 2003 decision.
Affirmed in part; reversed and remanded in part.
Griffen and Vaught, JJ., agree. | [
16,
108,
-36,
60,
57,
-95,
56,
14,
83,
-93,
55,
113,
-81,
-15,
29,
107,
97,
-1,
100,
105,
-41,
-77,
3,
40,
-14,
-13,
58,
-57,
-8,
79,
-28,
-106,
77,
36,
-118,
21,
-30,
74,
-51,
80,
-126,
23,
-117,
101,
89,
-61,
50,
62,
-106,
79,
49,
30,
-45,
45,
23,
-49,
104,
42,
91,
-84,
80,
48,
-104,
5,
-17,
22,
-96,
-92,
-69,
-81,
-40,
110,
-102,
-71,
0,
-22,
113,
-74,
-126,
116,
74,
-99,
4,
98,
98,
-95,
13,
-11,
96,
-120,
15,
-82,
63,
-121,
-72,
41,
75,
15,
-74,
-68,
122,
28,
30,
124,
106,
-36,
93,
44,
-120,
-50,
-108,
-79,
-57,
-4,
-100,
51,
-21,
79,
36,
85,
-51,
-96,
125,
70,
115,
-69,
94,
-78
] |
John F. Stroud, Jr., Judge.
This appeal comes from the Arkansas Workers’ Compensation Commission’s denial of a claim for a knee injury sustained by Jean Flowers when a co-worker pulled a chair out from under her. The Commission’s decision reversed the administrative law judge’s finding that the claim was compensable. Ms. Flowers now appeals to this court, contending that the Commission erred in holding that her injury was barred under our workers’ compensation statutes. Appellee, the Arkansas State Highway and Transportation Department, has filed no brief regarding her appeal. We find that Ms. Flowers’s injury was not statutorily barred and that it was compensable. We therefore reverse the Commission’s denial of her claim.
Where, as here, the Commission denies a claim because the claimant has failed to show entitlement by a preponderance of the evidence, the substantial evidence standard of review requires that we affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Barnard v. B & M Constr., 52 Ark. App. 61, 915 S.W.2d 296 (1996). Substantial evidence is that which reasonable minds might accept as adequate to support a conclusion. Id. On appeal, this court must view the evidence in the light most favorable to the Commission’s findings and give the testimony its strongest probative force in favor of the Commission’s action. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). We reverse the Commission’s findings only when we are convinced that fair-minded people with the same facts before them could not have arrived at the conclusion reached by the Commission. Id.
This action began as a claim for two separate injuries to appellant’s right knee. The first was sustained in 1995 when appellant twisted her knee getting out of a highway crew truck, and the second occurred on January 30, 1996, in a locker room at highway department facilities. The administrative law judge found that both injuries were compensable. The Commission affirmed the law judge’s finding regarding the first injury but reversed the finding that the second was compensable.
Appellant states that her appeal raises questions of legal significance regarding Arkansas Code Annotated section 11-9-102(5)(B) (Supp. 1997). She presents two points: 1) whether the Commission erred in holding that her injury was barred by the statute, and 2) whether the Commission erred in determining that the statute barred her claim for benefits as a result of her injury. Viewing these two points as one, we hold that the Commission improperly applied the statute to appellant’s claim.
The Commission based its denial of appellant’s claim for her 1996 injury on Arkansas Code Annotated section 11-9-102(5)(B) (Supp. 1997). The statute reads in pertinent part:
(B) “Compensable injury” does not include:
(i) Injury to any active participant in assaults or combats which, although they may occur in the workplace, are the result of nonemployment-related hostility or animus of one, both, or all of the combatants, and which said assault or combat amounts to a deviation from customary duties; further, except for innocent victims, injuries caused by horseplay shall not be considered to be compensable injuries[.]
Subsection (5) (A) (i) states that an accidental injury causing physical harm to the body, arising out of and in the course of employment and which requires medical services, is a compensable injury. Under subsection (5)(E), the burden of proving such an injury shah, be on the employee and shall be by a preponderance of the evidence.
The only testimony before the Commission was that given by appellant at the hearing before the administrative law judge. Appellant testified that all employees were required to clock in at the beginning of each work day and then change into work clothes in a room provided by the employer, and that they were required to change back into street clothes before being allowed to clock out at the end of the day. She testified that on January 30, 1996, while she was seated and changing from work clothes into street clothes, a co-worker approached her and demanded, “What are you doing in my damn chair?” Appellant’s testimony continued:
And, she put her hand on the back of the chair. And, I never thought anything of it. And, the next thing I knew, the chair was pulled out from underneath me, and I went to the floor. And, my right knee got bent from, I guess, trying to brace myself. And, when I landed, my right knee was turned — my — the bottom part of my leg was turned towards the back, and I had heard it pop.
Medical records reveal that after the incident with her co-worker, appellant received medical treatment culminating in arthroscopic surgery to her knee.
In denying appellant’s claim, the Commission cited Arkansas Code Annotated section 11-9-102(5)(B)(i) and stated:
No one contends that the incident involving the co-worker was horseplay. Rather, the incident where the chair was pulled out from underneath claimant is clearly an assault upon claimant by her co-worker. There is no evidence that this assault arose out of the employment relationship between claimant and claimant’s co-worker. Claimant filed a grievance against her co-worker for the assault which occurred. Claimant’s co-worker was disciplined by the supervisor regarding the incident. There is insufficient evidence in the record to suggest what precipitated the event. All the record reveals with regard to why the incident occurred is that claimant sat down in a chair which claimant’s coworker contended was hers. In our opinion, such incident does not arise out of a work related animus or hostility between claimant and her co-worker. Therefore, we find that claimant has failed to prove by a preponderance of the evidence that the January 30, 1996 incident is compensable.
It is clear to us that the injury suffered by appellant does not fall under the exclusion of Arkansas Code Annotated section ll-9-102(5)(B)(i). The first words of the subsection plainly state that coverage is barred for injury “to any active participant in assaults or combats” (emphasis added). Evidence before the Commission shows that appellant had not clocked out and was sitting in a chair changing clothes. She was doing exactly what her employer required her to do and thus was performing services for the employer. There was no evidence before the Commission from which reasonable minds could have concluded that appellant was an active participant in the assault upon her. Therefore, there is no evidence to uphold the Commission’s decision that appellant’s claim was barred by Arkansas Code Annotated section 11 — 9— 102(5)(B)(i).
Reversed and remanded for an award of benefits in keeping with this opinion.
Jennings and Neal, JJ., agree. | [
16,
-21,
-43,
-100,
13,
67,
18,
62,
81,
-123,
101,
83,
-89,
-24,
-100,
127,
-29,
63,
84,
99,
-41,
-78,
19,
105,
-14,
-13,
123,
-41,
-77,
75,
100,
52,
77,
48,
-54,
-43,
-26,
-64,
-51,
26,
-62,
18,
-117,
109,
25,
-128,
56,
43,
80,
31,
49,
-114,
-86,
44,
24,
-49,
109,
-84,
91,
36,
88,
-71,
-118,
5,
111,
21,
-77,
36,
-98,
13,
-38,
24,
-104,
48,
0,
-56,
18,
-74,
-126,
116,
123,
-71,
4,
96,
99,
0,
28,
-51,
56,
-72,
22,
123,
-99,
-92,
-110,
56,
91,
3,
-105,
-107,
74,
20,
44,
-4,
-11,
93,
94,
44,
-117,
-114,
-110,
-79,
71,
104,
-44,
-26,
-17,
-113,
-112,
117,
-50,
-14,
93,
67,
19,
-101,
-50,
-98
] |
Wendell L. Griffen, Judge.
General Electric Railcar Repair Services (General Electric) challenges a decision by the Workers’ Compensation Commission that required them to continue paying for medical treatment by Dr. C.C. Alkire on behalf of Ace Hardin. The Commission held that Hardin’s continuing treatments by Dr. Alkire were reasonable and necessary. For reversal, General Electric argues that the Commission’s decision that Hardin’s continuing treatments by Dr. Alkire were reasonable and necessary is not supported by substantial evidence, and that the Commission erred, as a matter of law, because it failed to use the “major cause” analysis in deciding this issue. We disagree; therefore we affirm.
Ace Hardin worked primarily as an electrician and maintenance man for General Electric for more than thirty-seven years. On September 30, 1993, Hardin sustained a compensable injury when he fell from a ladder and injured his neck, back, and shoulders. Hardin initially consulted Dr. M. Leon Purifoy, who diagnosed him with a cervical spine strain. Dr. Purifoy subsequently referred him to Dr. C.C. Alkire, an orthopedic surgeon. Dr. Alkire treated Hardin several times over a period of two-and-a-half years. General Electric accepted the injury as compensable and paid for his medical treatment through June 1996. However, in July 1996, General Electric decided not to pay for the treatments by Dr. Alkire any longer. Hardin then filed a workers’ compensation claim seeking continued payment for medical treat7 ments by Dr. Alkire.
After a hearing, an administrative law judge found that Hardin was entitled to ongoing visits with Dr. Alkire for maintenance of pain and is entided to medications which Dr. Alkire may prescribe. General Electric appealed this decision to the Commission, which affirmed and adopted the findings of the administrative law judge. General Electric then brought this appeal.
In considering appeals from decisions of the Commission, we view the evidence and all reasonable inferences therefrom in the fight most favorable to the Commission’s findings and will affirm the decision if the findings are supported by substantial evidence. See Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. If reasonable minds could reach the Commission’s decision, we must affirm the decision. Id. It is the exclusive function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995) (citing Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994)). This court may reverse the decision of the Workers’ Compensation Commission only when convinced fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Tiller v. Sears, Roebuck & Co., 27 Ark. App. 159, 767 S.W.2d 544 (1989).
First, General Electric argues that the Commission erred by finding that continuing treatments by Dr. Alkire were reasonable and necessary because Hardin no longer suffered from the job-related injury. General Electric also argues that Dr. Alkire was treating Hardin for only a preexisting condition and, therefore, Dr. Alkire’s treatments were no longer reasonable and necessary for the job-related injury. The Commission, however, found that Hardin was entided to ongoing visits with Dr. Alkire for maintenance of pain and is entitled to medications which Dr. Alkire may prescribe. What constitutes reasonable and necessary treatment under Arkansas Code Annotated § 11-9-508 (Repl. 1996), is a fact question for the Commission. See Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
It is undisputed that Hardin was diagnosed with a preexisting degenerative disc disease by Dr. Alkire. However, Dr. Alkire also opined that Hardin’s degenerative disc disease was exacerbated by his job-related injury. When asked whether Har din was being treated “strictly” for degenerative disc disease, Dr. Alkire noted that,
As I’m sure you’re well aware having dealt with workers’ compensation insurance claims for years, most workers’ compensation injuries, particularly those in the cervical spine and lumbar spine are always related to some degenerative process, regardless of the type of injury a patient may have. In Mr. Hardin’s case if you will review my notes, he had an on-the-job injury that almost for sure exacerbated a pre-existing degenerative condition. At this time (March 4, 1996), I’m currently treating Mr. Hardin for his on-the-job injury that just happens to involve some degenerative changes in his cervical spine.
According to Dr. Alkire, Hardin was still being treated for his cervical spine strain as late as March 1996. The Commission specifically stated that, “There is nothing in Dr. Alkire’s reports, after careful review, that indicates to this examiner that the treatment being rendered by Dr. Alkire is unreasonable and/or unnecessary.” Accordingly, Dr. Alkire’s notes constitute substantial evidence in support of the Commission’s finding that continued treatments by Dr. Alkire were reasonable and necessary.
Next, General Electric argues that the Commission erred, as a matter of law, because it faded to use the “major cause” analysis, pursuant to Arkansas Code Annotated § 11-9-102(5)(E)(ii) (Repl. 1996). This argument, however, is meritless because the “major cause” analysis applies to injuries that are not identifiable by time and place pursuant to Arkansas Code Annotated § ll-9-102(5)(E)(ii) (Repl. 1996), and to claims where a claimant is seeking permanent disability benefits pursuant to Arkansas Code Annotated section 11-9 — 102(F) (ii) (b) (Repl. 1996). In the present case Hardin was seeking the continued payment of medical treatments by Dr. Alkire, not permanent disability benefits. Also, his claim involved an injury that was identifiable by time and place.
Affirmed.
Robbins, C.J., and Meads, J., agree. | [
16,
106,
-35,
-99,
72,
-32,
58,
26,
113,
-85,
-25,
83,
-19,
-88,
-103,
39,
-77,
127,
81,
115,
-9,
-77,
83,
105,
-46,
-41,
121,
-59,
49,
110,
-28,
-36,
77,
56,
-118,
-43,
-26,
74,
-51,
80,
-50,
20,
-70,
-19,
89,
-64,
48,
110,
-44,
31,
57,
-98,
-29,
46,
24,
-49,
105,
38,
91,
-67,
-48,
-80,
-102,
5,
109,
0,
-94,
4,
-104,
39,
-4,
62,
-104,
48,
8,
-84,
19,
-74,
-62,
52,
73,
-103,
4,
98,
98,
33,
29,
-3,
-40,
-72,
31,
-114,
15,
-89,
-70,
25,
-5,
43,
-74,
-67,
114,
20,
30,
126,
-14,
85,
95,
44,
11,
-122,
-108,
-79,
-1,
100,
-98,
-93,
-17,
15,
48,
81,
-50,
-78,
92,
4,
115,
-101,
30,
-98
] |
John B. Robbins, Chief Judge.
Appellant William R. Vier and appellee Tammy Vier (now Hart) were married on December 23, 1983. Although they separated in October 1991, their child, Jessica Vier, was born on March 20, 1992. The parties divorced on March 31, 1992, and the divorce decree provided that Mrs. Hart was to have custody of the child. Mr. Vier was given liberal visitation, but limited to the presence of either Mrs. Hart or Mr. Vier’s parents. Mr. Vier visited with Jessica on several occasions, but it is undisputed that his last visit occurred on February 13, 1993.
On July 18, 1994, Mrs. Hart and her current husband, David P. Hart, filed a petition for adoption in the Faulkner County Probate Court. In the petition, it was alleged that Jessica had had no contact with her natural father for more than one year, and that she had been reared by the petitioners since the time of her birth. Mr. Vier contested the adoption, contending that he had failed to visit Jessica only because the appellees had prohibited him from doing so. In addition, Mr. Vier filed a motion for visitation on November 29, 1994, in which he requested that the chancery court enter an order establishing his entitlement to specific visitation with the child. After hearings were conducted before the chancery and probate courts on these pleadings, the probate court granted the appellee’s petition for adoption, finding that Mr. Vier failed without justifiable cause to have any meaningful contact with Jessica since February 1993, and that adoption by Mr. Hart was in the child’s best interest. Mr. Vier now appeals this ruling, arguing that the probate court erred in finding that he failed to maintain meaningful contact with Jessica and that such failure was without justifiable cause. We affirm.
Mrs. Hart testified at the hearings and expressed her desire that Mr. Hart adopt Jessica. Mrs. Hart indicated that Mr. Vier moved to Louisiana after they separated and that she has continued to reside in Mayflower, Arkansas, with Mr. Hart, Jessica, and a child that was born of her current marriage. According to Mrs. Hart, Mr. Vier visited Jessica fairly regularly until February 13, 1993. Then, in March 1993, when he came to Mayflower for visitation, he was arrested for failing to pay child support. Mr. Vier did not see Jessica on that occasion, and had not returned to Mayflower prior to the institution of these proceedings. Mrs. Hart acknowledged that, since the March 1993 incident, Mr. Vier has stayed current on his child-support obligation. However, she asserted that his parental rights should be terminated because “he [Mr. Hart] is the only father she [Jessica] has known.” With regard to Mr. Vier’s efforts to visit with Jessica, Mrs. Hart testified that, “I have done nothing to prevent Bill Vier from visiting or seeing his child.” Mrs. Hart stated that she is a veterinarian and her husband is the Mayflower Chief of Police, and asserted that they are financially able to support both of her children.
Mr. Hart testified that he frequently spends time with Jessica and wants to adopt her because he has raised her since she was seven months old. He further testified that he has never discouraged visitation between Jessica and Mr. Vier.
Mr. Vier testified that he has remarried, and that for the past three years he has lived with his wife in Ventress, Louisiana. He acknowledged that he has not seen Jessica since February 1993, but indicated that he had repeatedly tried to do so, but his efforts were thwarted by Mrs. Hart. Mr. Vier testified that he did not know Mrs. Hart’s home phone number because it was unlisted, but that he attempted to contact her on a monthly basis at her veterinary clinic. Mr. Vier insisted that on each occasion he would leave a message asking Mrs. Hart to return his call and set up a time for visitation, but that Mrs. Hart never returned any of his calls. In her testimony, Mrs. Hart acknowledged that phone records revealed that Mr. Vier called the clinic for one minute each in March, September, October, November, and December 1993, and also in January 1994. However, she testified that she rarely answers the telephone at the clinic, and that she never instructed anyone to hang up on him or be uncooperative. Indeed, two of her employees, who were responsible for answering the telephone, could not recall receiving any calls from Mr. Vier. Mrs. Hart asserted that she never received any messages or had any other contact with Mr. Vier during this time frame, and surmised that Mr. Vier must have been calling and hanging up.
Mr. Vier also testified that, in the spring of 1994, he sent Mrs. Hart a letter and asked her to call him, but that she failed to do so. However, Mrs. Hart denied receiving such a letter. Mr. Vier acknowledged that, despite his repeated failed efforts to set up visitation with Jessica, he never had Mrs. Hart cited for contempt, nor did he take any other legal action until after he was served with the petition for adoption. However, he explained that although he had planned to take legal action earlier he did not have enough money to hire a lawyer.
For reversal in this case, Mr. Vier asserts that the probate court erred in ordering Jessica’s adoption. Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 1993) provides:
(a) Consent to adoption is not required of:
(2) A parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree[.]
Mr. Vier does not dispute that he failed to communicate with Jessica for more than one year. However, he notes that “failed significantly” means a failure that is “meaningful or important,” see Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983), and submits that his failure to communicate was not significant because any communication would not have been meaningful to the young child because of her age and the fact that the only father figure that she knew was Mr. Hart. Mr. Vier further argues that the probate court erred in finding that his failure to visit was without justifiable cause, and notes that parental rights should not be terminated unless the lack of visitation was willful in the sense of being voluntary and intentional. See Taylor v. Hill, supra. Mr. Vier contends that he justifiably failed to visit Jessica because he repeatedly attempted to contact Mrs. Hart but was unable to do so, and because he was afraid to enter Faulkner County for fear of getting arrested. He points out that, in the past few years, he had twice been arrested in Faulkner County for allegedly writing hot checks, and his wife had been arrested once. The last time Mr. Vier presented for visitation in March 1993, he drove a long distance, was arrested, and was never able to see the child.
We have held that the party seeking to adopt a child without the consent of the natural parent bears the heavy burden of proving by clear and convincing evidence that the party failed significantly and without justifiable cause to communicate with the child. Taylor v. Hill, supra. We review probate proceedings de novo, and the decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987). We have stated that the personal observations of the trial judge are entitled to even more weight in cases involving the welfare of a small child. In the Matter of Adoption of Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984). In the instant case, giving due regard to the trial court’s assessment of the credibility of the witnesses, we find its decision that the appellees met their burden by clear and convincing evidence was not clearly erroneous.
From March 1993 until appellees filed their petition for adoption on July 18, 1994, there was evidence that Mr. Vier placed six one-minute telephone calls to Mrs. Hart’s veterinary clinic. There was also some evidence that he attempted to write her a letter in the spring of 1994, but the trial judge was entitled to believe Mrs. Hart’s statement that the letter was never received. Other than these efforts, Mr. Vier made no attempt to contact or visit his daughter. It is undisputed that he did not return to Faulkner County until after the adoption action was brought in July 1994. Mrs. Hart and Mr. Hart both testified that they did not prevent Mr. Vier from visiting the child. On these facts, we cannot find error with the probate judge’s finding that Mr. Vier unjustifiably failed to maintain contact with Jessica. It is significant that Mr. Vier never attempted to effect his visitation through legal intervention, and he never apprised the trial court of any alleged interference with his visitation rights until nineteen months after his last visit with Jessica. It has been held that, for purposes of determining whether a parent willfully deserted his child or intended to maintain his or her parental role, the trial court may consider as a factor the parent’s failure to seek enforcement of his or her visitation rights during the relevant one-year period. See Mead v. Roberts, 702 P.2d 1134 (Or. App. 1985). As for Mr. Vier’s contention that his parental rights were not waived because any visitation would not have been meaningful due to his anonymity and the child’s young age, suffice it to say that the pertinent statute did not contemplate such an exception and this argument is unsupported by any authority or convincing argument. See Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994).
Affirmed.
Bird and Roaf, JJ., agree. | [
-15,
44,
-59,
62,
42,
-96,
34,
8,
86,
-93,
99,
-45,
-21,
-38,
20,
125,
56,
63,
81,
120,
-61,
-77,
71,
96,
114,
-6,
-104,
-33,
-77,
75,
-27,
-12,
76,
96,
-54,
-33,
98,
-54,
-115,
84,
-122,
2,
-117,
-19,
19,
-61,
34,
105,
90,
15,
37,
-82,
-9,
46,
63,
-46,
108,
14,
91,
61,
-128,
56,
-97,
21,
95,
22,
-79,
36,
17,
36,
88,
47,
-120,
49,
-128,
-23,
115,
-74,
-126,
116,
79,
57,
9,
96,
103,
-127,
109,
-1,
-68,
-104,
110,
30,
-99,
-90,
-112,
89,
74,
15,
-66,
-73,
109,
20,
11,
-6,
-18,
-60,
31,
-28,
12,
-114,
-42,
-79,
-51,
-16,
-56,
2,
-21,
-27,
48,
113,
-54,
-16,
85,
-59,
51,
-101,
-114,
-70
] |
John B. Robbins, Judge.
This appeal concerns whether ap-J pellees Ben and Sharon Bixler neglected their children as defined in Ark. Code Ann. § 12-12-503(12)(G) (Supp. 2001), and whether their names should be placed upon the child-abuse registry as a consequence. Appellant Department of Human Services (“DHS”) appeals the reversal of a finding of child neglect by the Van Burén County Circuit Court following an appeal from an administrative decision. DHS argues that the administrative decision is supported by substantial evidence and should be reinstated. The administrative law judge (“ALJ”) found that a preponderance of the evidence supported the finding that the Bixlers violated Ark. Code Ann. § 12-12-503(12)(G) by failing to protect their children. We disagree with DHS’s argument, and we will not reinstate the administrative decision because it is not supported by substantial evidence.
The facts are essentially undisputed. DHS investigated a hotline phone call made on October 16, 2002, stating that the Bixlers allowed their children to have unsupervised overnight visits with their step-grandfather, Roger Bonds, a convicted sex offender. At that time, the Bixler children were ages ten (Rebecca), eleven (Rachel), twelve (Sarah), and fourteen (Dustin). Roger Bonds was married to Ben Bixler’s mother, Juanita, and had lived with her since 1995. The Bixler family lived a few hundred feet from the home of Juanita and Roger. They had been in close contact on a nearly daily basis since 1995, and the children often went to Juanita and Roger’s house to visit. Juanita died suddenly in her home on April 29, 2002. Though the children did not visit the house for a couple of months, they resumed visiting Roger, sometimes overnight, that summer.
In response to the October 2002 phone call, a DHS investigator went to the Bixler home and interviewed the parents. The Bixlers did not dispute that they were aware that Roger had a criminal conviction, which they had heard was for sexual abuse, but the Bixlers denied any specific knowledge of the details surrounding his conviction, except that Sharon had claimed to have seen “court papers.”
The Bixlers agreed that their children visited Juanita and Roger by walking across the field to their home, often spending the night. The Bixlers explained that the houses were within “hearing” distance of one another. They agreed that after Juanita died in her home, the children had been grieving her loss and did not want to go back for a while. They said that Rebecca, Rachel, and Dustin resumed visiting their step-grandfather overnight in July 2002, usually on a couple of Fridays per month, and in pairs. They also visited occasionally in the daytime for a few hours, also in pairs. The Bixlers said that they had known Roger and had observed him with their children for seven years, and they had no reason to fear him. In the reports of the parental interview, Ben and Sharon Bixler stated their belief that Sharon’s mother and sister had made this call in revenge for leaving the Pentecostal church and allowing the girls to wear pants.
DHS’s position was that the parents were neglecting their children by allowing them to stay overnight with Roger without supervision. With that, Ben assured DHS that from that point forward, the children would not be allowed to spend time alone with Roger without parental supervision. Ben wrote a letter to DHS for their files commemorating that assurance.
The DHS investigator interviewed Roger. The investigative notes revealed that Roger stated that he did not have any restriction from being around minors and was not mandated to register, as he had been released from prison before that law existed. These notes reveal no further information about Roger’s conviction.
The DHS interview with Rachel revealed that she and Rebecca liked to spend the night, sometimes accompanied by Dustin. She said Sarah did not like to go since their grandmother died. They ate ice cream and candy, listened to music, and went to bed. Rachel said Roger did not like for all four children to spend the night at once because the noise would get on his nerves. She said Roger was never inappropriate with any of them.
The interview with Sarah revealed that she did not like to spend the night anymore since her grandmother died, but that when she did spend time with Roger, he never did anything to make her uncomfortable. She said that all the children liked Roger because he is fun. Sarah was the most upset of the children about Juanita’s death.
The interview with Rebecca revealed that she enjoyed spending the night with Roger, where they would play games, watch television, go to bed, get up and get dressed, and walk home. Rebecca agreed that Sarah did not like to go anymore because she missed their grandmother but that Sarah had not said anything bad about Roger.
The interview with Dustin showed that he was mentally retarded. Dustin said they spent the night with Roger, where Dustin helps with the chickens and with picking up wood. Dustin said they ate ice cream at night and ate breakfast with Roger on Saturday morning. He said he and his sisters were not uncomfortable with Roger, and he also described Roger as fun.
In testifying at the hearing, the investigator related that the parents thought that it was alright to allow the children to go over to Roger’s house as part of the grieving process, despite what they knew about Roger’s past. The DHS investigator stated that her files showed two sexual-abuse investigations involving Roger, and she believed the latter one regarding a niece led to his conviction for sexual abuse. DHS had no evidence, nor did it allege, that the Bixler children were ever harmed or abused by Roger at any time, and the investigator believed that the children were truthful in their interviews.
The Bixlers testified that they had taught their children that if any person ever touched them inappropriately, the children should inform them. They also stated that given their long standing relationship with Roger and their close proximity to Roger’s house, they did not feel that they had been neglectful of their children.
On this evidence, the ALJ noted the burden of proof on DHS to show by a preponderance of the evidence that the allegation of neglect was true. Ark. Code Ann. § 12-12-512(a). The ALJ found that DHS had proved violation of section 12-12-503(12) (G), defining neglect as failing to appropriately supervise that results in a child being left alone at an inappropriate age or in an inappropriate circumstance that puts the child in danger. The ALJ noted the internal DHS protocol defining “failure to protect” as failing to take reasonable action to protect a child from maltreatment when the person has reasonable cause to believe that the child is “in significant danger of being maltreated.”
The ALJ’s factual findings explained that after Juanita died, the Bixlers had a duty to inquire more about Roger’s conviction and a duty to ensure that the children were not left alone with Roger, especially overnight, even though they had known and observed him for seven years. The ALJ’s decision read:
I find that the agency met its burden of proof against the Petitioners; and I find that the Petitioners’ actions in this matter constitute a violation of Ark. Code Ann. § 12-12-503(G) because the Petitioners allowed their children to be left alone overnight in inappropriate circumstances; i.e. in the home of a convicted sexual offender. The Petitioners’ names shall remain on the Arkansas Child Maltreatment Central Registry based on the October 16, 2002 report.
The Bixlers appealed this decision to the circuit court, which reversed the ALJ’s decision that found the Bixlers to have violated section 12-12-503(12)(G). After the circuit court reversed the finding of neglect, DHS appealed the circuit court decision to our court.
On appeal from the circuit court, our review of administrative decisions is directed to the decision of the administrative agency, rather than the decision of the circuit court. Vallaroutto v. Alcoholic Bev. Control Bd., 81 Ark. App. 318, 101 S.W.3d 836 (2003). We review the case only to ascertain whether there is substantial evidence to support the agency’s decision or whether the decision runs afoul of one of the other criteria set out in Ark. Code Ann. § 25-15-212(h) (2002). Judicial review is limited in scope; the administrative agency decision will be upheld if supported by substantial evidence and if it is not arbitrary, capricious, or an abuse of discretion, reviewing the entire record to make that determination. DHS v. Burgess, 86 Ark. App. 96, 161 S.W.3d 319 (2004). Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. Bohannon v. Ark. Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995); see also Ark. State Highway & Transp. Dep’t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996). We defer to the credibility determinations made at the administrative level, if there are any to be made. Ark. State Racing Comm’n v. Wayne Ward, Inc., 346 Ark. 371, 57 S.W.3d 198 (2001).
DHS acknowledges in its brief that “there are no bright lines to determine what are inappropriate circumstances, or what constitutes an unreasonable danger.” This query is necessarily fact-driven. DHS urges affirming the ALJ because there is a duty to protect, the harm was foreseeable, and the gravity of danger was unreasonable; therefore, the children “had been subjected to potential danger when they spent the night.” While it is clear that parents have a duty to protect their children, we hold that there is no substantial evidence to support a finding that the Bixler children were placed in danger on these facts. Indeed, the ALJ did not make any specific finding that the children were put in danger, but only found that the circumstances were inappropriate.
Arkansas Code Annotated section 12-12-503(12) (Repl. 2003) defines “neglect” as follows:
(A) Failure or refusal to prevent the abuse of the juvenile when the person knows or has reasonable cause to know the juvenile is or has been abused;
(B) Failure or refusal to provide necessary food, clothing, shelter, and education required by law, excluding the failure to follow an individualized educational program, or medical treatment necessary for the juvenile’s well-being, except when the failure or refusal is caused primarily by the financial inability of the person legally responsible and no services for relief have been offered or rejected;
(C) Failure to take reasonable action to protect the juvenile from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of the condition was known or should have been known;
(D) Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile;
(E) Failure to provide for the juvenile’s care and maintenance, proper or necessary support, or medical, surgical, or other necessary care;
(F) Failure, although able, to assume responsibility for the care and custody of the juvenile or to participate in a plan to assume such responsibility; or
(G) Failure to appropriately supervise the juvenile that results in the juvenile’s being left alone at an inappropriate age or in inappropriate circumstances that put the juvenile in danger[.]
To consider the application of subsection (G), we consider relevant the following. The DHS investigator’s recollection of the children’s interviews was accepted as true, and there was never any allegation that Roger abused the children, before or after Juanita’s death. DHS had no concerns with the children visiting overnight while Juanita was alive. Once the Bixlers were informed that DHS had concerns, they immediately ceased allowing any overnight visitation without adult supervision. DHS’s allegation of neglect is narrowed to this: the Bixlers allowed the children to visit overnight in pairs on approximately six occasions during which no abuse was ever alleged to have occurred. There is no substantial evidence that the three Bixler children that visited Roger overnight were in danger.
DHS’s appellate counsel also argues that the law since 1997 has required sex offenders to register in order to protect the public due to the risk of re-offending, which supports the agency decision. We recognize that the sex-offender registry has as its purpose the goal of offering information so that the citizenry can better protect themselves and those who cannot protect them selves. Nevertheless, what is properly before us today is whether the Bixlers in this particular situation neglected their children. “Courts may not accept the appellate counsel’s post hoc rationalizations for an agency action; an agency’s action must be upheld on a basis articulated by the agency itself.” DHS v. Haen, 81 Ark. App. 171, 177, 100 S.W.3d 740, 744 (2003) (citing Motor Vehicle Mfr. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) and AT & T Communications of Southwest, Inc. v. Ark. Pub. Serv. Comm’n, 40 Ark. App. 126, 843 S.W.2d 855 (1992)).
The purposes of the Child Maltreatment Act are to protect the best interest of the child, to prevent further harm to the child, to stabilize the home environment, and to preserve family life. Ark. Code Ann. § 12-12-501 (Repl. 2001). We hold that reasonable minds could not conclude on these undisputed facts that the Bixlers neglected their children by allowing three of them to spend the night on a few occasions with Roger following Juanita’s death, especially where those visits went without any suggestion of abuse. To hold otherwise would not comport with the purposes of the Child Maltreatment Act.
The administrative decision is reversed, and the circuit court decision is affirmed.
Hart, Neal, Crabtree, and Roaf, JJ., agree.
Griffen, J., dissents.
The dissent argues that it does not make any difference whether the children only visited in pairs because “sexual abuse often happens when others are present in the same house.” Under that rationale, the children were subjected to neglect regardless of parental (or grandparental) presence in the same house, in direct conflict with DHS’s position. We focus our review upon the evidence before the ALJ and DHS’s arguments to support the administrative decision.
DHS did not allege a specific number of overnight visits, but the parents said the children visited overnight in pairs and usually on one or two Friday nights per month.
The “purpose” section was rewritten in 2003, generally providing the same goals, but the law in effect at the time of these accusations in 2002 is applicable. | [
-15,
-20,
-27,
-84,
10,
-95,
62,
12,
70,
-29,
-16,
-45,
-81,
-5,
16,
123,
114,
43,
84,
121,
-45,
-73,
119,
-128,
114,
-13,
-80,
-41,
-69,
73,
-84,
-106,
94,
112,
-114,
-47,
98,
64,
-49,
88,
-122,
3,
-120,
109,
25,
83,
36,
47,
94,
15,
53,
15,
-77,
47,
-70,
-29,
40,
78,
91,
53,
-40,
-43,
-38,
23,
75,
22,
-125,
84,
-78,
5,
120,
58,
-120,
49,
-128,
-24,
51,
-78,
-122,
52,
83,
57,
-123,
100,
-30,
-79,
-116,
-26,
-96,
9,
6,
126,
-99,
-89,
-102,
104,
67,
47,
-73,
-67,
92,
84,
14,
-6,
103,
68,
108,
100,
-116,
-49,
-106,
-95,
-35,
-120,
-108,
-86,
-29,
101,
54,
113,
-35,
-32,
84,
-58,
49,
-103,
-58,
-46
] |
Wendell L. Griffen, Judge.
Rebecca Thomas was convicted following a jury trial in Madison County Circuit Court of first-degree murder after shooting and killing her husband, Delmer Thomas. The trial court sentenced her to a twenty-year prison term. She contends on appeal that the trial court abused its discretion by admitting hearsay testimony from the decedent’s ex-wife concerning her phone conversation with the decedent the evening of the shooting, and that the trial court erred by refusing to instruct the jury concerning self-defense. We hold that although the trial court was mistaken in overruling appellant’s objection under the dying declaration exception to the hearsay rule found at Rule 804(b)(2) of the Arkansas Rules of Evidence, the trial court’s ruling that the alleged hearsay testimony by the decedent’s ex-wife concerning the decedent’s statements during their phone call was admissible is affirmable based upon the exceptions to the hearsay rule found at Rule 803(1) — present sense impression — and (3) — then existing mental, emotional, or physical condition. We further hold that appellant’s allegation of error concerning the trial court’s refusal to instruct the jury about self-defense is procedurally barred because appellant’s counsel failed to submit a written jury instruction. Therefore, we affirm appellant’s conviction and sentence.
On February 16, 1997, appellant shot and killed Delmer Thomas at their home in the Georgetown area of Madison County. They arrived home at approximately 3:30 p.m. after a day of drinking and visiting at the home of another couple, and had been quarreling about a child that Delmer Thomas had supposedly fathered out of wedlock. Appellant contended at trial and argues in her appeal that the decedent had a history of being physically abusive by pushing her, slapping her, and yelling at her. Appellant testified at trial that during their argument on February 16, 1997, the decedent placed a gun in her hands, cocked it, but told her that it was unloaded. Appellant testified that the decedent lunged toward her while she was trying to reset the hammer of the gun, and that it discharged.
During the case in chief for the prosecution, the State called Marilyn Thomas, the ex-wife of Delmer Thomas, to testify about a phone conversation that she had with the decedent immediately before he was shot. Appellant objected to her testifying about that phone conversation based on the rule against admitting hearsay, and the trial court initially sustained appellant’s objection. After the State requested a bench conference, the trial court excused the jury and allowed the State to proffer the proposed testimony from Marilyn Thomas. The trial court then ruled that the challenged testimony about the phone conversation could be admitted into evidence as an exception to the hearsay rule. Marilyn Thomas then testified as follows during direct examination by the prosecution:
Q At around 5:30 on the 15th of February, you received —
A Sixteenth.
Q Oh, the 16th? You received a phone call from Delmer Thomas, is that correct?
A (Nods head.)
Q What did he tell you?
A He said, “Becky wanted me —”
Q I can’t hear you.
A “Becky wanted me to call and tell you what she’s about to do. She’s going — she has a gun pointed at me. She wanted me to call and tell you what she’s going to do. She’s going to shoot me.” He said, “Talk to her.”
Q What happened after that?
A Becky got on the phone and she said, “I have a gun pointed at Delmer,” and she called him some names.
Q What names did she call him?
A She said, “I have a gun pointed at Delmer. He’s a fing son-of-a-bitch and I’m going to shoot him.” I said, “Becky, that’s not funny.” I said, “Is the gun loaded?” And she said, “Yeah, it’s loaded” — no, I said, “Somebody is going to get hurt.” She said, “Yeah, Delmer, and I’m going to shoot him.”
Q Did this conversation go on for a period of time?
A It seemed like an hour.
Q Do you know how long it actually was?
A No, I know what time I got off the phone.
Q What was the conversation about after that? I mean, that seems kind of like the pinnacle of my phone conversations. What did you talk about for the rest of the time?
A He said, “She’s sitting on the couch. She has two guns pointed at me. She has a loaded .22.” I said, “Delmer, hang up so I can call the cops.” He said, “No, because then she will shoot me. If I try to get the gun, she’ll shoot me. If I hang up, she’s going to shoot me.” I said, “Is it really loaded?” And at one time, he did hang up and then he called me back. I said, “Is the gun loaded?” He said, “Yeah, she just shot past my head through the roof.” And then she was yelling at him.
Q What was she yelling?
A He said, “She’s sitting on the couch with a loaded .22, cocking it and she has it pointed at my head.” She said, “No, Delmer, it’s pointed at your feet.” At one time, he said, “Now she wants me to call the neighbors, Carl and Mary Lou, and tell them what she’s going to do to me.” It was crazy.
Q When you hung up, what did you do?
A Well, he started —• before that, he was very calm and scared. He said, “Becky, please just leave and take your guns with you.” Then he started yelling, “Don’t touch that hammer, don’t.” Then he said, “I’ll call you right back.” And I said, “You better.” And he said, “Don’t call the cops.” That was it.
Q He hung up or did you hang up?
A He hung up.
Rule 801(c) of the Arkansas Rules of Evidence 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. A declarant is a person who makes a statement. Ark. R. Evid. 801(b). Hearsay is not admissible except as provided by law or by the rules of evidence. Ark. R. Evid. 802. However, Rules 803 and 804 of the Arkansas Rules of Evidence provide for exceptions to the general rule against the admissibility of hearsay.
At trial, counsel for the State argued that the testimony by Marilyn Thomas about her phone conversation with Delmer Thomas was admissible based upon the exception to the general rule against admitting hearsay stated at Rule 804(b). Rule 804 lists several situations whereby statements that would otherwise be nonadmissible as hearsay may nevertheless be admitted because the declarant is unavailable as a witness, such as when the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his or her statements; or when a declarant persists in refusing to testify concerning the subject matter of his or her statement despite an order of the court to do so; or when a declarant testifies to a lack of memory of the subject matter of his or her statement; or is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity'; or is absent from the hearing and the proponent of the statement has been unable to procure his or her attendance (or in specified instances, attendance or testimony) by process or other reasonable means. See Rule 804(a), Arkansas Rules of Evidence. Rule 804(b) states:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
This exception to. the general hearsay rule is known in our case law as the dying declaration exception. The Arkansas Supreme Court has stated that in order to qualify as a dying declaration, the statement must be made by a witness who believed at the time of the statement that his death was imminent and whose declaration referred to the cause of his death. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). This fact need not be shown by the declarant’s express words alone, but can be supplied by inferences fairly drawn from his condition. Id. It is the declarant’s belief in the nearness of death when he makes the statement, not the swiftness with which death actually ensues, that is most important. Bargery v. State, 37 Ark. App. 118, 825 S.W.2d 831 (1992). The appellate court will reverse the determination of the trial court that evidence is admissible as a dying declaration only if there is an abuse of discretion-. Id.
In this case, we do not find evidence that Delmer Thomas was possessed of a sense of imminent and inevitable death. Neither the words reported during the trial testimony of Marilyn Thomas, nor other circumstances surrounding his situation, indicated that Delmer Thomas believed that he was - going to die, although they certainly indicate his belief that he was in danger of being shot. We are unable to extend the dying declaration exception to the hearsay rule to situations involving people who are not dying or who do not believe that they are dying when they make statements that are later offered into evidence.
However, this does not mean that we must reverse the trial court’s ruling concerning the admissibility of Marilyn Thomas’s testimony. Rule 103(a) of the Arkansas Rules of Evidence states that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and, in the case of a ruling admitting evidence, a timely objection or motion to strike appears of record which states the specific ground of objection if the specific ground is not apparent from the context. This is simply another acknowledgment of the harmless-error rule found at Rule 61 of the Arkansas Rules of Civil Procedure.
It is well settled that we will affirm a trial court if it reaches the right result, although for a different reason. See Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990). This case presents such a situation. Although the trial court was mistaken when it admitted the testimony from Marilyn Thomas about her phone conversation with Delmer Thomas based upon the State’s reliance upon the dying declaration exception to the hearsay rule, the challenged testimony was admissible under either or both of two other hearsay exceptions. Rule 803 of the Arkansas Rules of Evidence fists a number of exceptions to the hearsay rule whereby statements may be admitted into evidence regardless of the availability of the declarant. Rule 803(1), regarding present sense impression, and 803(3) regarding then existing mental, emotional, or physical condition, are applicable to this case. They read as follows:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
Marilyn Thomas’s testimony about what Delmer Thomas said during their phone conversation shortly before he was shot meets both exceptions. She testified about Delmer Thomas’s statements describing being held by appellant at gunpoint during their phone conversation. He plainly was relating his present sense impression of the event and his condition. He was also communicating his then existing state of mind, emotion, and physical condition when he told Marilyn Thomas that appellant was pointing a .22 at his head, that she had shot past his head, and that she had threatened to shoot him.
Finally, we can affirm the trial court’s ruling to admit this testimony on another basis. Marilyn Thomas testified that appellant told her that she was going to shoot Delmer Thomas, and that she had a loaded gun, and that the loaded gun was pointed at Delmer Thomas. Thus, the hearsay testimony can be considered admissible for the reasons already stated, and because appellant’s statements to Marilyn Thomas established its relevancy. See Ark. R. Evid. 402.
The other point raised by appellant is that the trial court erred by refusing to instruct the jury concerning self-defense. At the close of the trial, counsel for appellant requested that the trial court instruct the jury regarding self defense in connection with the shooting based on what she terms in her brief as “a continuous and systematic pattern of physical abuse.” Appellant argues that the only reason the trial court refused to give the self-defense instruction was because the prosecutor forced the appellant to choose between accident and self-defense.
We are unable to review appellant’s allegation of error, however, because neither the abstracted record nor the trial transcript contains the requested instruction. Instead, counsel for appellant has appended to the appellant’s brief what he argues was the requested instruction on self-defense. Our supreme court has held that where an appellant was denied a jury instruction, her failure to proffer or abstract the desired instruction as part of her appeal was fatal to her appellate argument. Kelley v. Medlin, 309 Ark. 146, 827 S.W.2d 655 (1992). Moreover, it is well settled that where a requested instruction does not appear in either the abstract or the transcript, the appellate court will not consider it error to refuse to give the instruction. Pharo v. State, 30 Ark. App. 94, 783 S.W.2d 64 (1990).
Affirmed.
Pittman and Arey, JJ., agree. | [
-16,
-22,
-107,
-99,
9,
97,
120,
-72,
114,
-94,
113,
115,
107,
-38,
81,
57,
42,
75,
85,
105,
-48,
-77,
4,
65,
-66,
-13,
-80,
-41,
-78,
-53,
-4,
-33,
89,
48,
-22,
-47,
102,
10,
-25,
88,
-126,
-110,
-119,
81,
91,
82,
48,
54,
100,
7,
49,
-82,
-29,
42,
29,
-49,
72,
108,
74,
-23,
80,
25,
-117,
-121,
-53,
6,
-77,
6,
-98,
-90,
-40,
56,
-47,
57,
0,
-88,
115,
-106,
-126,
116,
75,
-103,
45,
102,
114,
0,
-116,
-35,
-80,
-87,
39,
118,
-99,
-89,
-102,
97,
67,
76,
-105,
-3,
122,
52,
14,
-20,
108,
-36,
88,
108,
8,
-33,
20,
-71,
7,
48,
-106,
-94,
-21,
-75,
48,
53,
-49,
98,
85,
5,
113,
-101,
-100,
-76
] |
Judith Rogers, Judge.
This appeal is brought from an order of the Lafayette County Chancery Court decreeing that appellant should recover nothing on his complaint against appellee for the breach of two lease contracts. We reverse.
On August 30, 1988, appellee executed two contracts whereby he leased certain parcels of land from Mrs. Lanie Adkin-son, appellant’s mother. The first contract (hereafter “the pasture lease”) encompassed 510 acres of pasture land. It called for an annual rental payment of $3,000 and was to run from January 1989 to December 1998. The second contract (hereafter “the crop lease”) encompassed 250 acres of farm land and called for an annual rental payment of $17,500. It is disputed whether this contract was to run through 1992 or 1998.
Appellee paid all rentals required by the contracts through 1990. In May of that year, the Red River flooded, and the lands leased by appellee sustained considerable damage. Only one acre of the pasture land and twenty-five acres of the farm land escaped the ravages of the flood. The damage consisted of fences being washed away, debris and sand being deposited on the property, scouring of the land, and large sinkholes being left in the ground.
After the flood, appellee contacted Mrs. Adkinson and informed her that he could not rebuild the fences and make other necessary repairs while still paying $3,000 per year on the pasture lease. He orally renegotiated his lease with Mrs. Adkinson to pay $1,500 per year on the pasture land. When the pasture’s grass began to grow back faster than expected, appellee decided to pay Mrs. Adkinson $2,000 per year rather than $1,500. Accordingly, he paid $2,000 per year on the pasture lease from 1991 through 1995. As far as the repair expenses incurred by appellee, he testified that he spent between $6,000 and $7,000 on fencing material, between $10,000 and $12,000 to level the land, and between $4,000 and $6,000 for grass fertilizer. With reference to the land covered by the crop lease, appellee testified that he rebuilt a road that led to the land and that he made efforts to get organic matter back into the soil. He did not testify that he renegotiated his lease with Mrs. Adkinson as to this particular property. Consequently, he continued to pay $17,500 per year on the crop lease through 1993.
Shortly after the flood occurred in 1990, Mrs. Adkinson deeded the leased property to appellant; however, Mrs. Adkinson continued to deal with all matters concerning the leases until 1994. In that year, appellant and appellee spoke for the first time regarding the leases. Appellee informed appellant that he could no longer afford to pay $17,500 for the crop lease. He proposed instead a rental of $12,000, with $6,000 to be paid up front and $6,000 to be paid later. Appellee paid $6,000 on May 7, 1994, but made no further payments on the 1994 crop lease. In early 1995, appellee contacted appellant again and asked for a reduction on the crop lease payment. According to appellee, a figure of $35 per acre was agreed upon, which would have amounted to a yearly rental of $8,750 for the 1995 crop lease. When no money was received from appellee by mid-1995, appellant’s attorney sent correspondence to appellee seeking payments due on the lease contracts. According to appellant, he was owed $6,000 on the 1994 crop lease and $12,000 on the 1995 crop lease. No mention was made of the agreement to reduce the 1995 rental payment to $8,750. Further, appellant sought payment of an additional $1,000 per year for 1994 and 1995 on the pasture lease. No mention was made of the renegotiated payment of $2,000 per year.
On July 10, 1995, appellee received another letter from appellant’s counsel, wherein counsel stated that appellant “advises me that he will accept your $11,000.00 payment on the past due rental together with your note for $9,000.00 plus an additional $1,000.00 for attorney’s fees making the note for $10,000.00.” The note was to bear a 9% interest rate payable on December 1, 1995. On July 21, 1995, appellee wrote two checks which totaled $11,000, but there is no evidence that a note was drawn up to cover the remaining $10,000 referred to in the letter. Later in 1995, appellee vacated the property.
On November 3, 1995, appellant filed suit against appellee, seeking past-due rents for 1994 and 1995. In his complaint, appellant sought $12,500 for 1994 (figured as the original $17,500 contract price on the crop lease, plus an additional $1,000 owed on the pasture lease, less the $6,000 already paid by appellee) and $7,500 for 1995 (figured as the $17,500 original contract price, plus an additional $1,000 on the pasture lease, less $11,000 already paid by appellee). Appellee answered by alleging as set-off the value of improvements and repairs made by him and further claimed that appellant’s retention of the improved land without such a set-off would unjustly enrich appellant.
A trial was held on March 7, 1997, during which the chancellor heard the testimony of appellant, appellee, and other witnesses. In his seven-page letter opinion dated May 7, 1997, the chancellor found that appellee and Mrs. Adkinson had modified the pasture lease rental from $3,000 per year to $2,000 per year; that there was an agreement between appellee and Mrs. Adkinson that appellee would be compensated for the cost of improvements to the property; and that it would unjusdy enrich appellant to keep all improvements made by appellee and still recover $20,000 for unpaid rent. Finally, the chancellor noted that, based upon the evidence at trial, the value of the improvements made by appellee, whether measured by their cost or by the difference in the value of the land before and after improvements, exceeded any amount of rent claimed by appellant. Therefore, the chancellor ordered that appellant take nothing by his complaint. This appeal followed.
We begin by noting that chancery cases are reviewed de novo. Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997). However, a chancellor’s findings will not be reversed unless they are clearly erroneous. Brown v. Cole, 27 Ark. App. 213, 768 S.W.2d 549 (1989). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).
Appellant argues first that the chancellor erred in finding that there was an agreement between his mother and appellee to reduce the rental payment on the pasture lease until appellee could recoup the cost of his improvements. He cites E.E. Terry, Inc. v. Cities of Helena and West Helena, 256 Ark. 226, 506 S.W.2d 573 (1974), and Jones v. Felker, 72 Ark. 405, 80 S.W. 1088 (1904), for the proposition that a landlord is not liable for repairs made by a tenant where there was no agreement by the landlord to pay for repairs. According to appellant, there was no evidence of such an agreement with regard to the pasture lease other than appellee’s testimony as to the $1,000.00 per year reduction of the pasture rental, and appellant’s and his mother’s acceptance of such an amount for 1991, 1992 and 1993. Appellee’s testimony coupled with appellant’s and Mrs. Adkinson’s acceptance of the $2,000 payments obviously convinced the chancellor that Mrs. Adkinson had agreed to allow appellee to reduce the amount paid on the pasture lease to recoup the cost of his improvements. Further, there was no testimony to the contrary by appellant. In fact, appellant admitted that his mother had handled all matters regarding the leases prior to 1994 and that, if she had renegotiated a lease, he probably would not have known about it. Giving due regard to the chancellor’s ability to observe the witnesses, we cannot say that the chancellor’s finding on this point is clearly erroneous. See Ballentine v. Ballentine, 275 Ark. 212, 628 S.W.2d 327 (1982).
Appellant’s next argument is the same as the first but concerns the crop lease rather than the pasture lease. According to appellant, there is no evidence that his mother and appellee agreed to reduce the rental on the crop lease in exchange for appellee’s improvements to the land. Appellant is correct. Appellee never testified that he renegotiated the crop lease with Mrs. Adkinson with an eye toward recouping the cost of his improvements. His testimony mentions only a renegotiation of the pasture lease in that regard. In fact, appellee paid the original rental price on the crop lease during the years 1991, 1992, and 1993 and renegotiated the 1994 and 1995 leases without reference to cost of improvements. Therefore, the chancellor erred in determining that appel-lee was entitled, by virtue of an agreement, to set off the value of improvements against money owed by him on the crop lease.
Appellant’s final argument concerns the amount that remains due and owing in rent for the years 1994 and 1995. Appellant contends that the amount should be calculated based on the July 10, 1995, letter written by his counsel to appellee. As evidenced by this letter, appellant agreed to accept for all past-due rent an immediate payment of $11,000 to be followed by a note in the amount of $10,000. The record does reflect that appellee made a payment of $11,000 shordy thereafter, on July 21st. If appellant’s contention is correct, then appellee owes $10,000.
On the other hand, the record discloses that the parties negotiated a rental price of $12,000 for 1994, of which only $6,000 was paid. The record also contains appellee’s testimony that the 1995 rent for the crop land was to be $35 an acre, for a total of $8,750. Based on this evidence, appellee would have owed a total of $20,750 for both years ($12,000 for 1994 and $8,750 for 1995). The record shows that appellee paid $6,000 in 1994 and $11,000 in 1995, thus leaving a balance due of $3,750.
Upon de novo review of a fully developed chancery record, where we can plainly see where the equities lie, we may enter the order that the chancellor should have entered. Mathews v. Oglesby, 59 Ark. App. 127, 952 S.W.2d 684 (1997). While the chancellor noted the conflicting proof, he made no finding as to which version was to be believed, finding instead that the cost of improvements made by appellee greatly exceeded any claim of past-due rent. Given the conflicting evidence in the record, we cannot plainly see where the equities lie, and we believe that the interests of justice will best be served by remanding the case for the chancellor to determine the amount of past-due rent.
Before leaving this issue, however, we must address appellee’s contention that appellant would be unjustly enriched by the receipt of rental payments and retention of improvements to the property. The doctrine of unjust enrichment is applied in cases in which services have been performed, whether requested or not, which have benefitted a party. Dews v. Halliburton Indus., Inc., 288 Ark. 532, 708 S.W.2d 67 (1986). It has been said that, in the case of consensual contracts, the agreement defines the duty, while in the case of quasi-contracts, the duty defines the contract. Sparks Regional Med. Ctr. v. Blatt, 55 Ark. App. 311, 935 S.W.2d 304 (1996). The duty that forms the foundation of a quasi-contractual obligation is frequently based upon the doctrine of unjust enrichment. Id. Unjust enrichment is the principle that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly. Id. To be unjustly enriched, a party must have received something of value to which he was not entitled and which he should restore. Id. However, there must also be some operative act, intent, or situation to make the enrichment unjust and compensable. Dews v. Halliburton Indus., Inc., supra. Courts will only imply a promise to pay for services where the services were rendered in such circumstances as authorized the party performing them to entertain a reasonable expectation of payment. Id.
In this case, there is no question that appellee was authorized to expect reimbursement for his improvements by reduction of the rentals on the pasture lease. However, there is no evidence that he could rightfully expect any such reimbursements to come from a reduction in the crop lease payments. The doctrine of caveat lessee, which states that unless a landlord agrees with his tenant to repair leased premises he cannot, in the absence of a statute, be compelled to do so, is firmly established law in this state. Propst v. McNeill, 326 Ark. 623, 932 S.W.2d 766 (1996). Appellee should not be permitted to frustrate this law in circumstances where he had no basis to expect recoupment of his costs of improvement. Further, one who officiously confers a benefit upon another is not entitled to restitution therefor. Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995). Finally, where there is an express contract in existence, the law will not imply a quasi-contract. Coleman’s Serv. Ctr. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). The law never accommodates a party with an implied contract where there has been a specific one on the same subject matter. Id. By appellee’s own testimony, the parties herein agreed to certain rental amounts on the crop lease for 1994 and 1995 without reference to appel-lee’s expenses incurred for improvements.
In fight of the foregoing, we hold that appellant is entitled to the payment of rent for the 1994 and 1995 crop leases and that he is not unjustly enriched by retention of the improvements on the property that is the subject of the leases. We reverse and remand for proceedings not inconsistent with this opinion.
Reversed and remanded.
Crabtree and Meads, JJ., agree.
Mrs. Adkinson died in 1996 and was thus unavailable to testify at the trial held on March 7, 1997. | [
-16,
-20,
-111,
108,
-119,
97,
120,
-102,
95,
-93,
-16,
83,
-21,
-110,
0,
107,
-26,
125,
101,
105,
71,
-78,
117,
98,
-14,
-37,
121,
-51,
-70,
109,
-28,
85,
74,
16,
-118,
-105,
-62,
-128,
-51,
92,
6,
-57,
-117,
108,
-51,
66,
52,
43,
38,
13,
49,
-114,
-5,
44,
53,
-57,
73,
46,
127,
45,
89,
-16,
51,
-114,
95,
7,
-95,
4,
-76,
65,
74,
42,
-112,
57,
0,
-24,
114,
38,
-122,
116,
14,
-117,
13,
38,
98,
1,
69,
-49,
100,
8,
38,
-34,
-113,
-92,
-48,
25,
83,
100,
-105,
-97,
84,
-42,
39,
126,
-12,
-123,
31,
-20,
3,
-50,
-42,
-77,
-113,
-88,
-108,
3,
-17,
35,
49,
117,
-49,
-26,
89,
71,
115,
-101,
-118,
-5
] |
BART F. VIRDEN, Judge
_jjThe Miller County Circuit Court terminated the parental rights of appellant Crystal Hooks to.her son, J.H.(DOB: 11-23-2013). She argues that the trial court erred (1) in terminating her parental rights because there was insufficient evidence of grounds and potential harm and (2) in permitting a Texas ICPC (Interstate Compact on the Placement of Children) home study to be introduced into evidence.
I. Procedural History
On April 17, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on J.H. Attached to the petition was the affidavit of Chalonda Williamson, a family-service worker for DHS, in which she attested that on February 13, 2015, DHS had received an allegation of child maltreatment | ¿with regard to J.H. in that .the child-abuse hotline had received a report of inadequate shelter for J.H. Specifically, the report indicated that then one-year-old J.H. was living with Hooks in the home of Hooks’s mother and stepfather; that the home had no running water and no heat; that there were holes in the, floor; that ten or more dogs lived in the home; that thé home smelled horrible; and that Hooks’s stepfather admitted smoking marijuana in the home. Williamson attested that the matter had been referred to the Differential Response (DR) Unit, which interviewed the family and found that a big tree had fallen onto the back side of the mobile home and' that insulation from, the ceiling was visible; that a hole in the bathroom floor had been covered with plywood; that a water .line had broken; and that the family had no gas and used electric space heaters instead.
The family relocated to Satterfield-Lane in Texarkana, Arkansas, on March 13, .2015. On April 9, 2015, a DR specialist visited the new address to assess the safety of the home. The specialist noted that Hooks’s mother, Rebecca Lorance, had been hesitant to allow the specialist and family-service worker inside the home; that Rebecca had said that one dog would bite but that she would hold onto that dog; that a couple of the dogs appeared to be “extremely malnourished”; that the home was cluttered to' such an extent that they could not walk' through the living room; that Hooks appeared with J.H., who was dirty and wearing a diaper that was full of urine and falling off of him; that the laundry room revealed clothes piled everywhere and feces on the floor and on the clothes; that the bedroom from which Hooks had emerged had a mattress on the floor with clothes and trash strewn around it; that, despite Rebecca’s assurance, one of the dogs had attacked and | ¡¡tried to bite one of the workers; and that-Hooks reported that the toilet in the home did not work. The affidavit went on to say that the DR referral had been converted back into an investigation.
Williamson assessed the health and safety of J.H. on April 14, 2015, and observed that four or five dogs were outside the trailer home; that the home smelled strongly of dog urine and feces and mildew; that there was no sitting space in the living room, which contained boxes and trash bags; that at least four dogs lived inside the home and that two of them had recently given birth to puppies under the love seat; that Rebecca had said that she was unsure how many dogs they had; that J.H.’s body appeared to ,be small for his age, his head appeared large, and he, made no .noise; that.the floors of the home appeared weak and, sunken; that the carpet was so soiled that the worker was unsure of its original color; that there were; wood blocks under the refrigerator but that the refrigerator was full of food; that the worker offered to assist Hooks in securing a shelter to prevent removal of J.H. but that Hooks “did not appear to want to leave the home”; and that Hooks cried and said that they had an open CPS case in Texas for the “same thing’-’ and that her daughter, E.H., now lived with her biological father. Williamson further attested that there was a true finding of neglectful supervision against Hooks in 2010 concerning her then th'ree-year-old daughter while they were living In Texas. Williamson noted that DHS put a seventy-two-hour hold on J.H.
An ex parte order was entered, and the trial court later found probable cause existed -for issuance-of the order. On June 23, 2015, J.H. was adjudicated dependent-neglected due |4to Hooks’s failure to provide for , the essential and necessary physical, mental, or emotional needs of the juvenile, including failure to provide a shelter that did not pose a risk to the health or safety of the juvenile. The trial court ordered Hooks to submit to random drug screens, obtain a drug-and-alcohol assessment and complete any recommended treatment, participate in counseling and obtain a psychological evaluation if recommended, complete parenting classes, maintain safe and stable housing, and secure stable employment.
On September 29, 2015, a review order was entered finding that DHS had made reasonable efforts to provide the family with services and that Hooks had complied with the case plan. The goal was reunification with a concurrent goal of adoption. Another review order was entered on December 18, '2015, in which the trial court found that DHS had made reasonable efforts to provide services and that Hooks had complied with the case plan. A permanency-planning order was entered on March 29, 2016, in which the trial court again found that Hooks had complied with the case plan. The trial court noted that a trial placement would begin if Hooks’s home was approved. The fifteen-month review hearing was continued because the results of an ICPC home study from Texas were pending. On August 31, 2016, the fifteen-month review order was entered in which the trial court found that the goal of reunification would continue because Hooks had been complying with the case plan and court orders, had made significant measurable progress, and had been diligently working toward reunification, which was expected to occur by November 16, 2016. On December 9, 2016, DHS filed a petition to terminate Hooks’s parental rights. A review order was entered on December 16, 2016, finding that DHS had | ¿made reasonable efforts to provide family services and that Hooks had complied with the case plan. The trial court, however, scheduled a termination hearing, which was held on February 21, 2017.
II. Termination Hearing
Alexis Lampkins, a family-service-worker supervisor at DHS, testified that Hooks had not yet completed counseling; that she had submitted to a psychological evaluation and completed the recommendations; and that she had completed parenting classes. Lampkins testified, however, that Hooks had not had stable housing, that she had not kept DHS informed of her whereabouts, and that she did not. have stable employment. She said that Hooks had submitted to a drug-and-alcohol assessment but had not completed the recommended outpatient substance-abuse treatment. Lampkins testified that Hooks had an appointment to start treatment on December 23, 2015, but that Hooks had not shown up and that the appointment had not been rescheduled.
Lampkins said that the results for the random drug testing showed that on April 30, 2015, Hooks was positive for amphetamines, methamphetamine, and THC; that on May 14, 2015, she was positive for methamphetamine and amphetamines; that her May 28, 2015 test was negative; that on June 24, 2015, Hooks was positive for amphetamines, methamphetamine, opiates, cocaine, THC, and methadone; that on July 2, 2015, she ^tested positive for amphetamines, methamphetamine, PCP, and methadone; and that on July 23, 2015, her test results were “questionable” but that Hooks admitted having used methamphetamine three days before the drug screen. Hooks tested negative on August 14 and 27, 2015; September 3, 2015; October 1, 8, 15, 23, and 29, 2015; December 17, 2015; January 7, 2016; February 11, 2016; and April 14, 2016. On June 14, 2016, Hooks’s test was positive for THC; that on October 27, 2016, her test was negative; and that on February 2, 2017, she tested positive for methamphetamine and amphetamines.
Lampkins said that J.H. had been diagnosed with dysphasia, that he suffered from developmental delays, and that he required consistent medical care and treatment. She stated that appointments had been set up for Hooks to learn from medical staff how to care for J.H. and that she had not shown up for those appointments on October 4, 2016, December 21, 2016, and February 1, 2017. Lampkins stated that Hooks had difficulty taking instructions and had not followed the recommendation to use Thick-It in J.H.’s bottles and cups, which caused him to aspirate during visits.
Lampkins testified that a caseworker had falsely reported to the court that Hooks had completed certain services when she had not. She further stated that a home study, which had been denied, was not brought to the court’s attention.
Chalonda Williamson, a supervisor at DHS, admitted that the court had received at least four' or five false reports about Hooks’s compliance.' She said that a caseworker had not been honest with the court and that the caseworker was no longer working-at DHS. She stated that an ICPC home study had been conducted by Texas CPS, that it had been 17signed in June or July 2016, and that the home study had been denied. Williamson said that she had not been copied on the results of the home study. According to Williamson, the ICPC home study was consistent with what she had observed when she removed J.H. from Hooks’s custody. She testified that Hooks had not made any significant changes to remedy the problems that led to J.H.’s removal.
Lisa Forte, an adoption specialist at DHS, testified that J.H. is adoptable, that he is very young and affable, and that his foster parents hope to adopt him.
Crystal Hooks testified that she had lived in six residences in the last three years but that she now lives on Hazel Street. She testified that the home study that had been denied pertained to a home in which she no longer lives. She denied living in filthy conditions and stated that the family no longer has fourteen dogs.
Hooks stated that she had completed parenting classes, submitted to a psychological evaluation, and was still- attending counseling. Hooks stated that the doctors had given her all the training about J.H.’s care, and she then described how his Thick-It was to be mixed and how often he needed breathing treatments. Hooks said that she had cut back on her habit of smoking two packs of cigarettes a day and that she “vapes” instead.
Hooks stated that she had not gotten any paperwork about the recommendation from her drug assessment and that she had not known about an appointment to start outpatient treatment. She asked, “Why should, I need treatment if I’m not addicted?” She said that she had not done any drugs since she had been told to quit and denied having a drug problem, but she later testified that she started using drugs because her son had been Rtaken away. When asked about the most recent positive drug screen, Hooks said that she did not know how she had tested positive unless it was from medication she had taken for her “nearly broken” ankle. She stated that, although she had used methamphetamine, she was “not bad on it.”
Hooks testified that she thought she had been doing everything requested of her. She conceded that she had a history with Texas CPS but stated that she could think of only three cases involving her daughter, E.H., who is no longer in her custody. She claimed that she had voluntarily handed over custody to the child’s biological father because she was going to lose custody. She said that, although she had been in the National Guard, she had gotten a “hardship discharge” due to CPS’s involvement with her daughter. She stated .that she cared about J.H., as shown by the fact that his pictures were “plastered all over [her] Facebook pages.”
Ill, Order Terminating Parental Rights
On March 7, 2017, the trial court issued a sixteen-page letter opinion and subsequently entered its order , terminating Hooks’s parental rights on March 27, 2017. The trial court relied on four grounds: . Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(U) (Supp. 2017) (the juvenile has been adjudicated dependent-neglected and has continued 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); ' Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(o) (the juvenile has lived outside the home of the parent for a period of I fltwelve months, and the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the juvenile); Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that the placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy those issues or rehabilitate the parent’s circumstances, which prevent the placement of the juvenile in the custody of the parent); and Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B) (“aggravated circumstances” means, among other things, that a determination has been made by a judge that there is little likelihood that services-to the family will result in successful reunification).
The trial court found evidence from the adoption specialist that J.H. is adoptable. The trial court also found potential harm in that Hooks had not maintained stable employment or housing, that she had been sporadic in visiting J.H., that she had not followed recommendations from medical professionals regarding how to cáre for J.H., and that she had tested positive for methamphetamine in February 2017.
IV. Standard of Review
We review termination-of-parental-rights cases de novo. Williams v. Ark. Dep’t of Human Servs., 2013 Ark. App. 622, 2013 WL 5872757. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The hnappellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding, is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id, In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, 344 S.W.3d 670.
Pursuant to Ark. Code Ann. § 9-27-341(b)(3), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A), The order .must also find by clear and convincing evidence one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B).
The purpose of the termination-of-parental-rights statute, Ark. Code Ann. § 9-27-341(a)(3), is to provide permanency in'a juvenile’s life in all instances in which the return |nof 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. Even , full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able, to care for his or her child. Shaffer v. Ark Dep’t of Human Servs., 2016 Ark. App. 208, 489 S.W.3d 182.
V. Discussion
A. Grounds
Proof of only one statutory ground is sufficient to terminate parental rights. Sharks v. Ark. Dep’t of Human Servs., 2016 Ark. App. 436, 502 S.W.3d 569; Although Hooks challenges all four grounds found by the trial, court, we limit our discussion to the aggravated-circumstances ground. Hooks argues that she was “always .in compliance” and that, of the services she did not complete, there is no indication that such services were available or offered to her by DHS.
A finding of aggravated circumstances does not require that DHS prove that meaningful services toward reunification were provided. Willis v. Ark. Dep’t of Human Servs., 2017 Ark. App. 559, 2017 WL 4800490; Draper v. Ark. Dep’t of Human Servs., 2012 Ark. App. 112, 389 S.W.3d 58. Besides, Hooks did not appeal from the orders in which the trial court specifically found that DHS had made reasonable efforts to provide services. Fredrick v. Ark. Dep’t of Human Servs., 2010 Ark. App. 104, 377 S.W.3d 306; Edwards v. Ark. Dep’t of Human Servs., 2010 Ark. App. 739, 379 S.W.3d 609.
11aThe testimony from DHS employees demonstrated that Hooks was not “always in compliance” and that the trial court’s findings in that regard resulted from false reports from a former caseworker. Before DHS had taken custody of J.H., Hooks said that she had experienced the “same thing” with her daughter. She testified that three cases had been opened by CPS in Texas involving her daughter and that-she had.finally given custody of her daughter to the father because Texas CPS was going to take her. Hooks had not learned her lesson by the- time J.H. came along. Although Hooks moved from home to home in an attempt to improve her environmental situation, the trial court could have concluded that all that really changed was her address; While Hooks had received some training on how to take care of J.H., the caseworkers did not think that she had grasped the importance of proper care for J.H.’s conditions as she continued to smoke and do drugs. We cannot say that the trial court clearly erred in finding aggravated circumstances as a ground for termination.
B. Best Interest
Hooks does not challenge the trial court’s adoptability finding. She argues that there was no potential harm to J.H. because she was drug free, was employed, had visited J.H., had complied with counseling, and had attended J.H.’s medical appointments when given the opportunity.
In determining potential harm, the trial court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent’s care and custody. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. The h«trial court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Id.
Hooks was not drug free, as she claims. There was a significant amount of time when she consistently tested negative, but she testified positive for methamphetamine and amphetamines only nineteen days before the termination hearing, knowing full well that her parental rights were on the line. Her continued drug use in and of itself is sufficient to support the trial court’s finding of potential harm. Furnish v. Ark. Dep’t of Human Servs., 2017 Ark. App. 511, 529 S.W.3d 684. We cannot say that the trial court clearly erred in finding that it was in J.H.’s best interest to terminate Hooks’s parental rights.
C. ICPC Home Study
At the termination hearing, Hooks objected to introduction of the Texas ICPC home study without having someone available for cross-examination. The trial court admitted the evidence, ruling that the home study had previously been admitted as an exhibit and was part of the case file.
We will not reverse a trial court’s ruling on admissibility of evidence absent a manifest abuse of discretion. Olivares v. Ark. Dep’t of Human Servs., 2013 Ark. App. 94, 2013 WL 543325. Furthermore, a mere showing that the trial court erroneously admitted evidence will not support a reversal, absent a showing of prejudice. Id. Without any showing of prejudice, | 14any judicial error as to the admissibility of evidence is harmless error and cannot be grounds for disturbing a trial court’s order. Id When evidence is improperly admitted but the same evidence is admitted through another source, there is no reversible error. Id.
The home study had been denied because of the following risk factors: 1) Hooks’s lack of parenting skills posed a safety threat because she did not recognize signs of danger and safety threats or hazards for a child of J.H.’s age; 2) social isolation; 3) criminal history of household members; 4) prior CPS history of household members; 5) lack of financial resources to meet the child’s basic needs; 6) inappropriate child-care plans with persons who lack child-care knowledge and parenting skills, and proposed caregivers have medical issues that limit their ability to care for and supervise the child; 7) negative references; 8) inability to provide references; and 9) little to no behavior change from the circumstances that caused the child’s removal.
Hooks argues that the trial court erred in introducing the ICPC home study into evidence over her objection. She argues that introduction of the home study prejudiced her case because the trial court referenced the home study in its decision to terminate her rights. Also, she points out that the home study was on a home where she no longer lived.
Hooks does not deny that the home study had been introduced at an earlier hearing. All of the hearings, testimony, and evidence from earlier proceed •ings are incorporated into the hearing on the termination of parental rights. Osborne v. Ark. Dep’t of Human Servs., 98 Ark. App. 129, 252 S.W.3d 138 (2007). Moreover, Hooks waived any objection to the home study when she failed to object during the termination hearing at |1Rthe first opportunity. Before DHS sought to admit the home study, both Lampkins and Williamson had testified about the home study that had been denied.
Hooks relies on the result in Arkansas Department of Human Services v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002), in which our supreme court affirmed the trial court’s refusal to admit an ICPC home study because it would have been too prejudicial in the absence of someone who could be cross-examined about its contents. In that case, DHS sought to admit the home study based on a hearsay exception, unlike here, where it had been admitted as an exhibit from a prior hearing. We cannot say that the trial court abused its discretion in admitting the home study. In any event, any error in admitting the home study was harmless because there was sufficient evidence to support termination without consideration of the home study.
VI. Conclusion
We cannot say that the trial court clearly erred in terminating Hooks’s parental rights to J.H.; therefore, we affirm its decision.
Affirmed.
Gruber, C.J., and Harrison, J., agree. | [
-79,
-20,
-19,
108,
10,
97,
26,
28,
67,
-125,
-14,
-13,
-17,
-60,
29,
105,
10,
111,
112,
121,
-61,
-78,
81,
96,
-45,
-13,
-79,
-41,
-77,
79,
-91,
-44,
88,
112,
-54,
-35,
66,
-64,
-25,
88,
-126,
1,
-119,
116,
83,
-126,
38,
107,
28,
15,
53,
-97,
-9,
44,
60,
-21,
76,
14,
83,
-67,
88,
105,
-38,
23,
94,
2,
-79,
100,
-110,
5,
-38,
124,
-112,
52,
0,
-24,
115,
-74,
-126,
100,
71,
-99,
13,
112,
106,
-94,
28,
-27,
-8,
12,
-89,
-82,
-99,
-90,
-104,
105,
3,
15,
-65,
-75,
76,
80,
78,
-8,
103,
101,
124,
100,
14,
-49,
86,
-127,
4,
-96,
84,
43,
-25,
75,
48,
113,
-49,
-8,
116,
-121,
115,
-37,
-82,
-14
] |
Sam BIRD, Judge.
This case involves a boundary-line dispute in Perry County. The Roman Catholic Diocese of Little Rock, represented by Bishop Andrew J. McDonald, filed a petition against appellant Doris Carden and two other defendants to quiet title to certain land owned by the Diocese in Perry County. The other two defendants defaulted and are not involved in this appeal. This appeal involves a question about the enforceability of a settlement agreement entered into between the parties and dictated into the record. The chancellor decided that the agreement was enforceable, and we affirm.
On December 16, 1998, a hearing was held on Bishop McDonald’s motion for summary judgment. An agreement was reached between the parties, and it was read into the record at the hearing. Soon thereafter, Ms. Carden changed her mind about the settlement, discharged her attorney, and employed a new one. Carden’s original attorney notified the court and the Bishop’s attorney that Ms. Carden had “withdrawn her consent to the agreement.” Carden’s new attorney entered an appearance and protested entry of a judgment based on the setdement agreement. Nevertheless, on January 11, 1999, the chancellor entered a judgment that contained the terms of the agreement that had been read into the record on December 16.
On January 14, 1999, Ms. Carden filed a motion to set aside the judgment and for a new trial. A hearing was held on the motion on February 8, 1999, and on February 16, 1999, the chancellor entered an order denying the motion. Ms. Carden now appeals the denial of her motion for new trial, arguing that the chancellor erred in entering the decree on January 11, 1999, and further erred in denying her motion for new trial.
At the December 16, 1998, hearing there was evidence that in 1967 the Diocese and the adjacent property owners, including Ms. Carden’s predecessors in title, her grandparents, the Malones, entered an agreement that the fences that existed at that time between their properties were for convenience and were not the actual boundary lines. Quitclaim deeds were exchanged that established the property lines as the surveyed boundary lines. Ms. Carden agreed that the fences had not been moved since that time, but she claimed adverse possession to the fences or, in the alternative, boundaries along the fences by acquiescence.
At the hearing on December 16, 1998, no testimony was taken. The record consists of a colloquy between the chancellor, the attorney for the Diocese, and Ms. Carden’s attorney. It is unclear exactly what Ms. Carden was seeking, but her attorney kept repeating that “they,” meaning the Church, had “jerked culverts” out of an area, and that “they” were trying to block Ms. Carden’s access to the county road, which Bishop McDonald denied. A recess was taken. When the parties returned to court, the following exchange took place:
Mr. NlSWANGER [Bishop McDonald’s attorney]: Your Honor, the plaintiff and separate defendant Doris Carden have reached an agreement with respect to this dispute and I’d like to read it into the record, and ask Mr. Allison [Ms. Carden’s attorney] if I miss something to chime in.
The parties have agreed to recognize the survey boundary lines as the actual boundary lines of the property. The plaintiff will give an easement to Ms. Carden to use the gravel drive, and she’s agreed that she will permit the church to use that easement during church when people park out there and other special events, such as weddings, whenever parking is required. The church will continue to allow Ms. Carden to have an access easement in front of her property, excuse me, in front of the house. And, further down, on her southern boundary she’s got another access that she created recently that we will continue to allow her to use for access to the gravel county road.
Ms. Carden has agreed to be responsible for moving the old, wire fence on the southern boundary of the property up to the survey boundary line. The church has agreed to be responsible for replacing the stakes that mark the survey boundary line. The church will pay to move the fence along the northern boundary line of Doris Carden’s property to the survey boundary line.
The COURT: Anything to add, Mr. Allison?
MR. Allison: Your Honor, the only — the fence on the west side, Ms. Carden, if she wants it moved, will move that herself, would be the only other —
MR. NlSWANGER: Yes.
Mr. ALLISON: And I believe that’s everything.
The COURT: Is that your agreement, Ms. Carden?
Ms. Carden: Yes.
The COURT: Okay. And you’ve obviously bound the church.
Mr. NiSWANGER: I’m sorry?
The Court: You’ve obviously bound the church.
Mr. NiSWANGER: Yes, Your Honor.
The Court: Okay. Thank you-all.
Ms. Carden’s attorney admitted at the new-trial hearing that the judgment that was entered on January 11, accurately reflected the agreement that was read into the record on December 16, 1998. However, his argument is that Ms. Carden later thought better of her assent to the agreement and withdrew her consent. He contends that until the order had been actually written, signed by the chancellor, and filed of record, either party could withdraw his or her consent to the settlement agreement.
At the new-trial hearing, Ms. Carden testified that Mr. Allison had led her to believe they were going into court that day only to “get a trial date set.” She claimed she did not know there was a motion for summary judgment pending or that the merits of the case might be discussed or even decided on that date. She said that when the recess was taken, she and Mr. Allison conferred, and,
He told me that I had to go out and agree to it, that we had to come to some agreement and I had to say I agreed to it when we went back out into the courtroom, even though he was well aware I did not agree to any of it.
Ms. Carden admitted that she had told the chancellor that she agreed to the settlement, but that she was “just shocked,” “floored by it,” “I wasn’t expecting anything like that.”
On cross-examination, Ms. Carden insisted that she had not agreed to the stipulation, even though she had said she did. “I agreed as he told me to do. He told me I had to agree.” She added, “I was furious with the decision. I was floored by the whole thing. I said yes because I was instructed to say yes.” She also admitted, however, that she was involved in negotiating some of the details of the agreement, including that she be granted three easements.
On February 16, an order was filed, holding that the agreement read into the record had the full force and effect of a valid and binding agreement. On appeal, appellant argues that she could withdraw her consent to the agreement any time before it was signed by the chancellor and filed of record. She asserts, “The consent of all parties must exist at the very moment the court enters judgment of record. It is not sufficient that their consent may at one time have been given.”
We review chancery cases de novo on appeal and the chancellor’s findings of fact will not be reversed unless they are clearly erroneous (clearly against the preponderance of the evidence), giving due regard to the chancellor’s superior opportunity to assess the credibility of the witnesses. Ark. R. Civ. P. 52(a); Kunz v. Jarnigan, 25 Ark. App. 221, 756 S.W.2d 913 (1988).
Appellant bases her position that her agreement could be revoked solely upon the case of McIlroy Bank & Trust v. Acro Corp., 30 Ark. App. 189, 785 S.W.2d 47 (1990). In McIlroy Bank, the bank and Ralston Purina, an intervenor, sued Aero in a foreclosure action. Eventually, Aero’s attorney and the other parties’ attorneys appeared and announced to the court that the case had been settled. The parties agreed that the court would enter a consent judgment in favor of Mcllroy Bank against Aero for $541,772.24, that the settlement would have no effect on a related lawsuit pending in another county, and that Ralston Purina would be awarded a reasonable attorney’s fee. The attorney for the bank was asked to prepare the decree. When the proposed order was submitted to him for approval, Aero’s counsel refused to sign it because it awarded an attorney’s fee of more than $54,000, and because he did not like the language reserving the rights of the parties in the other lawsuit. Aero’s counsel then prepared his own decree, in which the attorney’s fee was only $1,000, and which also substantially altered the retained rights for the other lawsuit. Both decrees were presented to the judge, who signed the one presented by Aero’s attorney, even though none of the other attorneys had approved it. Mcllroy Bank appealed, and this court held that “it was error to sign the consent decree under these circumstances.”
In McIlroy Bank, we relied on several cases from other jurisdictions to support our ruling. In Burnaman v. Heaton, 240 S.W.2d 288 (Tex. 1951), a rule of civil procedure required any settlement agree ment to be “in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” 240 S.'W2d at 290-91. The agreement in that case was overturned because one of the plaintiffs was in the hospital at all times, and was never present in the courtroom during the settlement negotiations. The Texas Supreme Court held that the court had the duty to make sure all parties agreed to the settlement before entering the order.
Van Donselaar v. Van Donselaar, 87 N.W.2d 311 (Iowa 1958), also cited in Mcllroy Bank, held that the court could not enter a judgment based on a settlement agreement when it had been advised that one of the parties either denied the agreement, repudiated it, or for any other reason was no longer consenting to the judgment. 87 N.W.2d at 314. That decision was overruled by the Iowa Supreme Court in In the Matter of the Property Seized on or About November 14-15, 1989, 501 N.W.2d 482 (1993):
To the extent that our decision in Van Donselaar v. Van Donselaar, 249 Iowa 504, 87 N.W.2d 311 (1958), suggests that consent to judgment may be withdrawn as of right at any time prior to actual entry of judgment, that view is now specifically disapproved. We have recognized that a stipulation for disposition of an entire issue is entitled to all of the sanctity of an ordinary contract if supported by legal consideration. Graen’s Mens Wear, 329 N.W.2d at 300. [Graen’s Mens Wear, Inc., v. Stille-Pierce Agency, 329 N.W.2d 295 (Iowa 1983)].
501 N.W.2d at 485. And, more recently, the Iowa Supreme Court stated in In re the Marriage of Ask and Ask, 551 N.W.2d 643 (Iowa 1996):
A party is not entitled as a matter of right to withdraw a stipulation for disposing of an entire issue at any time before actual entry of judgment. Such stipulations are entitled “to all of the sanctity of an ordinary contract if supported by legal consideration.”
551 N.W.2d at 646. (Citations omitted.)
In McIlroy Bank, we also cited Overton v. Overton, 129 S.E.2d 593 (N.C.1963), for its statement that “A consent judgment rendered without the consent of a party will be held inoperative in its entirety.” 129 S.E.2d at 598. However, that case included a party who had been declared non compos mentis, and whose consent to the judgment was given by a guardian ad litem who had been appointed for her.
We are now convinced that our language in McIlroy Bank, supra, was overly broad. In Grumbles v. Grumbles, 238 Ark. 355, 381 S.W.2d 750 (1964), during a divorce hearing, the parties conferred, and reached an agreement on the division of property. They returned to court, and appellant informed the judge that an agreement had been reached, stated the terms thereof, and the court approved the agreement. When the prepared precedent was presented to the court, appellant objected to it being entered as a decree, not because it did not embrace the agreement as made, but because appellant had apparently changed her mind. In affirming the entry of a judgment according to the recorded agreement, the Arkansas Supreme Court stated that the agreement appeared to be fair to both sides, and that, under the circumstances, the trial court had the discretion to overrule appellant’s objection to entering the decree to which appellant had previously consented, and that the court had not abused its discretion.
Clearly, Grumbles stands for the proposition that the trial judge has the discretion to enter a judgment based on a settlement agreement read into the record, even over the objection of a party, at least when it appears there is no disagreement as to the terms of the agreement. That rule is clearly applicable here. There is no disagreement in this case that the January 11, 1999, order accurately reflected the agreement of the parties as it was read into the record in open court. Furthermore, the judge specifically asked the appellant if she agreed to the settlement agreement and appellant stated that she did. When it was dictated into the record of the hearing, it became valid and binding on all parties. “The fact that appellant entered into an agreement which later appeared improvident to her is no ground for relief.” Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994). We hold that the chancellor did not abuse her discretion in entering the judgment in the case at bar. Although we believe the result we reached in Mcllroy Bank was correct, our language went too far. To the extent that it conflicts with Grum-Wesand with our opinion here, Mcllroy Bank is overruled.
Affirmed.
Jennings and Meads, JJ., agree. | [
-11,
-20,
-12,
44,
-118,
64,
58,
-88,
82,
-101,
119,
87,
-17,
-39,
12,
125,
-29,
121,
81,
105,
-63,
-78,
87,
96,
114,
-13,
-111,
85,
-79,
109,
-11,
87,
76,
32,
-120,
-43,
70,
-30,
77,
90,
-122,
6,
-102,
78,
-39,
67,
52,
57,
16,
-113,
37,
-66,
-13,
-83,
61,
-29,
105,
44,
91,
45,
16,
-72,
-66,
13,
125,
5,
-127,
37,
-102,
1,
88,
42,
-112,
49,
-88,
-24,
115,
-74,
-122,
116,
3,
-71,
40,
102,
114,
0,
-52,
-1,
-32,
-119,
71,
62,
5,
-90,
-14,
24,
99,
6,
-89,
-107,
116,
80,
39,
-2,
-28,
-123,
30,
108,
-123,
-18,
-106,
-73,
31,
-104,
-128,
7,
-21,
-77,
116,
81,
-49,
-26,
92,
87,
50,
-101,
-98,
-15
] |
JOHN B. Robbins, Chief Judge.
Appellant Suellen Lloyd reported a work-related shoulder injury to appellee United Parcel Service (UPS) on January 5, 1997. The injury was accepted as compensable, and Mrs. Lloyd received related medical services and total disability benefits through April 30, 1997. Then, on May 16, 1997, Mrs. Lloyd filed a claim for benefits for carpal tunnel syndrome (CTS) in both hands. She contended that her condition was caused by her work, and she sought continuing temporary total disability benefits through a date yet to be determined, as well as medical benefits. The claim was controverted by UPS, and after a hearing the Workers’ Compensation Commission denied compen-sability pursuant to its finding that Mrs. Lloyd’s CTS did not arise out of and in the course of her employment. Mrs. Lloyd now appeals, arguing that the Commission erred in failing to find that she established a compensable CTS injury. We reverse and remand for an award of benefits.
In a workers’ compensation case, the claimant has the burden of proving that the claim is compensable. Maxwell v. Carl Bierbaum, Inc., 48 Ark. App. 159, 893 S.W.2d 346 (1995). When the Commission denies coverage because the claimant failed to meet her burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id. In reaching our determination, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings. Id.
At the hearing, Mrs. Lloyd testified that she had worked as a package driver for UPS since 1981. She injured her shoulder while lifting a package on January 5, 1997, and during her treatment for that injury she related symptoms of CTS to her doctors. She was ultimately diagnosed as having CTS, and release surgery was performed on her right wrist on June 13, 1997, and on her left wrist on August 22, 1997. Since the surgeries, Mrs. Lloyd had shown only limited improvement, had continued to experience pain, and had not returned to work.
Mrs. Lloyd testified that it was her belief that her CTS was gradually caused by her employment duties. She stated that her job entailed lifting and loading packages, as well as delivering and picking up hundreds of packages on a daily basis. Mrs. Lloyd testified that she had been driving a new work vehicle since October 1995. However, prior to that time, she was assigned a truck that had been wrecked and was difficult to handle. She stated that the truck was particularly difficult on gravel roads, and that “[i]t pulled to the right so you had to keep your left hand pulled.” She testified that “it was a constant struggle from when I left [on my route] until I got back just to keep the package car centered on the road.” Mrs. Lloyd indicated that, due to the problems that accompanied her driving responsibilities prior to October 1995, she experienced numbness in her fingers and pain in her arms.
Two co-employees testified on Mrs. Lloyd’s behalf. Both of these witnesses had operated the previously wrecked truck that had been temporarily assigned to Mrs. Lloyd. They testified that the truck had no power steering or automatic transmission, that it pulled to the side so that a constant firm grip on the steering wheel was necessary, and that the steering wheel vibrated.
There was only one medical opinion in the record that addressed the cause of Mrs. Lloyd’s CTS. Dr. Marcia Hixson conducted an independent medical evaluation, and on December 2, 1997, reported:
Suellen Lloyd seen on 12/2/97 for purposes of IME in order to determine whether or not her carpal tunnel syndrome is related to her job as a UPS package driver.
She is a 45-year-old, right-hand dominant woman who has worked at UPS for about 16 years. She did not have any problems with her arms until about two and one-half years ago when she began noticing pain in the forearms and arms with numbness and tingling in both hands. Just prior to this, she had been placed in a different vehicle to drive which she describes as a “wrecked package truck.” She states that steering this vehicle was difficult and she was only able to keep the truck on the road by forcefulpy] gripping the wheel with both hands. She states that after 15 minutes or so of driving, her hands would go numb and tingly and fall completely asleep. She would have to stop and shake her hands out in order to get them to awaken. She started taking non-sterodial medications for this and she had some splints that she wore which seemed to help her problem a litde bit. However, she continued to complain of increasing arm and forearm pain and numbness in her hands. She was treated for an injury to her left shoulder in January of this year and started receiving treatment for carpal tunnel syndrome by Dr. Woloszyn in April 1997. She had a nerve conduction study performed which showed bilateral moderate carpal tunnel syndrome. She was treated nonoperatively and eventually had surgical release of both carpal tunnels, the right being 6/13/97, and the left in August 1997. Ms. Lloyd states the right hand was originally the most severely affected, and since surgery, it has very few problems. The left hand, since surgery, no longer falls asleep, but she continues to complain of muscle pain in the forearm and arm. Ms. Lloyd has not worked since January of this year.
As to the cause of her carpal tunnel syndrome, it appears to relate temporally to her job change in which she was asked to drive a truck that was difficult to steer. Although this does not classify as a rapid or repetitive job, with respect to her hands, it appears that the constant gripping of the steering wheel, along with the vibration of the truck, was a significant factor in the development of her carpal tunnel syndrome. Since Ms. Lloyd does not have any medi cal problems which would predispose her to a neuropathy, and denies any other activities during that time which would bring on carpal tunnel syndrome, it is my conclusion that her carpal tunnel syndrome was most likely brought about by the driving of the previously wrecked vehicle. It is my opinion, within a reasonable degree of medical certainty, that Ms. Lloyd’s work activity was the major cause of her symptoms and the need for the medical treatment and surgery of carpal tunnel syndrome.
On appeal, Mrs. Lloyd contends that the Commission’s decision to deny benefits was not supported by the evidence. She points out that, in light of our supreme court’s recent decision in Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998), she did not have to prove that her CTS was caused by rapid, repetitive motion. Mrs. Lloyd further asserts that, in light of her testimony and the medical evidence, she established that her CTS was causally related to her employment responsibilities. She notes that her job involved constant use of her hands and that, for several months in 1995, her hands were subjected to unusually tight gripping and vibrations as a result of driving the wrecked truck. She also submits that her claim of compensability is supported by the opinion of Dr. Hixson, who thought that Mrs. Lloyd’s work activity was the major cause of her symptoms and need for treatment.
We hold that the Commission erred in finding that Mrs. Lloyd failed to prove that her condition arose out of and in the course of her employment as required by Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996). Mrs. Lloyd’s testimony indicated that her work activities caused and aggravated the symptoms in her hands, and there was little, if any, evidence to suggest that her CTS was caused by anything other than work. In denying this claim, the Commission has seized upon some minor inconsistencies in the evidence regarding the onset of Mrs. Lloyd’s CTS symptoms. While credibility calls are for the Commission and its findings are insulated to a certain degree from appellate review, its decisions are not, and should not be, so insulated that it would make appellate review meaningless. See Patterson v. Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). Mrs. Lloyd provided witnesses to corroborate her assertion that the previously wrecked truck to which she had been temporarily assigned required constant firm gripping of the steering wheel and that the steering wheel vibrated. Significantly, Dr. Hixson gave the opinion that Mrs. Lloyd’s CTS was work-related, and there was no medical opinion to the contrary. Under these circum stances, we find that the Commission’s opinion fails to display a substantial basis for denial of the relief requested.
Reversed and remanded for an award of benefits.
Hart, Bird, Griffen, and Roaf, JJ., agree.
Jennings, Stroud, Crabtree, JJ., and Hays, S.J., dissent. | [
-112,
120,
-36,
-116,
8,
-31,
58,
-118,
97,
-92,
37,
81,
-89,
-57,
-107,
63,
-11,
101,
83,
107,
87,
-93,
83,
-53,
-45,
-41,
59,
87,
-79,
75,
-28,
84,
77,
48,
-62,
-47,
102,
65,
-59,
24,
-52,
6,
-119,
105,
57,
-110,
40,
42,
-8,
79,
49,
-114,
41,
6,
24,
71,
45,
38,
123,
49,
-64,
-24,
-118,
5,
127,
17,
-93,
4,
-100,
110,
-46,
26,
-120,
48,
32,
-24,
50,
-74,
-126,
116,
107,
-71,
-124,
97,
98,
32,
-100,
117,
124,
-72,
6,
-2,
-65,
-124,
-77,
8,
74,
3,
-107,
-67,
112,
4,
46,
126,
-13,
76,
14,
108,
-113,
-122,
-110,
-111,
-33,
96,
-100,
-93,
-17,
-117,
-112,
97,
-52,
-14,
92,
1,
107,
-101,
-17,
-70
] |
WAYMOND M. BROWN, Judge
| t Shawn Adams (hereinafter, “appellant”) appeals the decision of the Arkansas Board of Review (Board) in which she was disqualified from receiving unemployment benefits pursuant to Arkansas Code Annotated section ll-10-513(b), finding, that she voluntarily left last work without good cause connected with the work due to illness'but without making reasonable efforts to preserve her job rights. We hold that substantial evidence does not support the Board’s decision and reverse for an award of benefits.
Om appeal from the Board of Review, we do not conduct a de novo review; instead, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings of fact. We will affirm the’ Board’s findings if they are supported by substantial evidence, which is such relevant evidence as a reasonable 12mind might accept as adequate to support a conclusion. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether it could have reasonably reached its decision based upon the evidence before it. We are not here to merely ratify the decision of the Board, but to ensure that the standard of review has been met.
■ In the instant case, appellant was employed as a Utilization Review Nurse for the employer for approximately two years. In a letter attached to her appeal to our court, she stated that the employment was detrimental to her health “because of an over abundant amount of mismanagement, hostility,, devaluing, social exclusion, innuendos, sarcasm, intimidation and the administration of''unsustainable workloads.” She applied for unemployment benefits on September' 8, 2015, after leaving her job with the employer. The Department of Workforce Services disqualified her from receiving unemployment benefits upon a finding that she. voluntarily left last work without good cause connected with the work due to illness but without making reasonable efforts to preserve her job rights.
Our statute providing for disqualification of benefits for voluntarily leaving work |;iand the law cited by the Board in reaching its decision provides, in pertinent part, as follows:
(a)(1) If so found by the Director of .the Department of Workforce-Services, an individual shall be disqualified for benefits if he or she, voluntarily and without good cause connected with the work, left his or her last work..
(b) No individual shall be disqualified under this section if after making reasonable efforts to preserve his or her job rights, he or she left his or her last work:
(1) Due to personal' emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification.
Good cause, for the purpose of unemployment benefits, is defined as a cause that would reasonably impel the 'average able-bodied, qualified worker to give up his or her employment.
Appellant appealed the Department’s determination to the Appeal Tribunal, which conducted a hearing on October 22, 2015, at which she appeared to testify, but the employer did not. The Appeal Tribunal, in its findings of fact, stated that appellant felt “that the company was unorganized and that there was tension between herself and her supervisor. [She] did not address such feelings regarding the behavior.” , The Board .affirmed the Appeal Tribunals denial of benefits, but specifically noted, in making its decision, that appellant answered “No” when asked whether she requested a change of duties or hours and when asked if she requested a leave of absence before quitting. It, | ¿therefore, found that'she did not make an effort to preserve her job rights.
There exists an exception, however, in which an employee is not required to take measures to resolve problems with her employer before leaving the employment if such measures would be futile. Here, contrary to the findings of the Appeal Tribunal, appellant testified to the following instances where she attempted to rectify her unfavorable employment situation:
APPELLANT: I have .... the letter here that I presented to them in regard to my complaints ... I think the first one was on the 6/18/14, where I had complained to Yvette Coleman that I’ve felt like [my son’s] confidentiality had been broken because my supervisor at the time, Kelly Noble, had gone into his file five , or six times and I had requested that by no means did I want her in my son’s personal information ... So I was sent up to the attorney’s office,.. And I was told I was being disruptive by complaining about my son’s possible breach.
After that I did what they asked me. I didn’t bring up any further discussion with management or staff about ... concerns or complaints about my son anymore because I could see that it was futile ... the first letter to the Office of Civil Rights, it was on 6/23/14, and I even stated in this letter that ... upon my complaint I was sent to the company’s attorney and was ... told that I better not complain because I was perceived as being disruptive.
| r,Kathy Fleming ... was mad because I transferred a phone call to her without telling her before I transferred it ... we ended up in the supervisores] office, and ... I pointed out that I wasn’t the only person who had complained about her rudeness. And she told me ... “Well, you can’t believe what they are saying about you in the office.” I’d already felt there was animosity ... While we were in that meeting, [the supervisor] told us that if there was one word said after we left out of that meeting that we would be written up. And we walked out of that meeting and Kathy Fleming proceeded to call me a bitch, and I went back to [the supervisor’s] office to tell her what she had said. And I realized that nothing was going to be done about it.
So that’s when I went ahead and wrote an addendum to my first complaint on 6/19/14.
I kept asking and asking if they were going to be hiring any more utilization review nurses because there were only four of us at the time, and they kept telling me, “No. We are not.” And I was telling them the workload was not going to be sustainable, and I said this in two different meetings with all the employees in the meeting ... after about the third time I had mentioned it I was told ... that I didn’t need to bring up that subject. And I said, “Well, I just had some concerns about it.” It was then that I was called into the office by [the supervisor] and with Cindy Ferguson, and that was on 2/12/15. I had made several attempts to talk to them about my concerns ... when I went into that meeting [Ferguson’s] attitude towards me was just hostile.
H. OFFICER: What was the final incident that made you decide to quit? Let’s go there.
APPELLANT: It was ... the unsustainable workload ... I said, “I’m not going to be able to do all this. There’s just — there’s no way. There’s just-no way.”
H. OFFICER: And what did they tell you?'
APPELLANT: There was never any response. There was just never any response. It — it was like it didn’t matter. It — it never mattered what I had to say.
[ ^Reasonable efforts to preserve job rights include taking appropriate measures to prevent an unsatisfactory situation on the job from continuing. Appellant took such measures only to realize, over time, they were futile.
Because appellant repeatedly brought her complaints to the attention of her superiors to no avail, and because the employer was unavailable to respond to such claims, we hold that it was futile for her to either request a leave of absence or an adjustment of her workload/hours. Therefore, substantial evidence does not support that she voluntarily left last work without good cause connected with the work.
Accordingly, we reverse and remand for an award of benefits.
Reversed and remanded.
Virden and Hixson, JJ., agree.
. West v. Dir., 94 Ark. App. 381, 231, S.W.3d 96 (2006).
. Id.
. Id.
. Boothe v. Dir., 59 Ark. App. 169, 954 S.W.2d 946 (1997).
.The Department also found that she was disqualified pursuant to Arkansas Code Annotated section 11-10-507(3)(A) because she was not able and available to perform suitable work. However, the. Appeal Tribunal found that she was “able and available” and, there- • fore, such determination is not pertinent for purposes of this appeal.
. Ark.Code Ann. § 11-10-513.
. Buck v. Dir., 2014 Ark. App, 685, 449 S.W.3d 705.
. Id.
. (Certain parts of appellant’s testimony found to be redundant or confusing are excluded for clarity).
. Appellant’s son; who was covered under her'employer’s insurance, Was at a rehabilitation facility, and she did not want that known by her co-workers.
. Gunter v. Dir., 82 Ark. App. 346, 107 S.W.3d 902 (2003). | [
26,
-24,
-43,
-68,
8,
-63,
59,
-78,
81,
-113,
39,
81,
-25,
-16,
29,
123,
-29,
45,
-47,
107,
-45,
55,
21,
65,
114,
-9,
-79,
69,
-71,
123,
-12,
124,
76,
48,
74,
-43,
70,
72,
-51,
80,
-126,
7,
-118,
109,
89,
-64,
40,
39,
-16,
79,
48,
-98,
-21,
44,
25,
-62,
108,
46,
89,
62,
112,
-71,
-102,
13,
125,
0,
-77,
4,
-65,
3,
-40,
46,
-104,
48,
1,
-8,
114,
-74,
-126,
52,
99,
-103,
8,
96,
98,
-127,
28,
-25,
-84,
-24,
-106,
118,
29,
-90,
-40,
57,
75,
9,
-99,
-75,
88,
20,
12,
120,
-30,
-28,
30,
44,
10,
-113,
-76,
-79,
-114,
101,
54,
-69,
-17,
-125,
18,
117,
-34,
-30,
92,
-123,
51,
95,
-50,
-112
] |
ROBERT J. GLADWIN, Judge
JjAppellant Christopher Shawn Williams appeals his bench trial conviction on charges of possession of methamphetamine with purpose to deliver, a Class B felony, and possession of drug paraphernalia, a Class B felony. He argues that the trial court’s denial of his motion to suppress all physical evidence that was obtained, pursuant to what appellant claimed was an illegal search and seizure of his person, was clearly erroneous. We affirm.
I. Facts
Appellant was charged by felony-information with a single count of possession of methamphetamine with purpose to deliver, a Class B felony, possession of drug paraphernalia (scales), a Class B felony, a count of Class' D felony possession 'of drug paraphernalia (pipe), • and an unclassified misdemeanor of driving on a suspended driver’s- license. Appellant waived a jury trial and subsequently filed a motion to suppress physical evidence on April 16, 2015, asserting an illegal search and seizure of his person in violation |aof the Fourth .Amendment .to the U.S. Constitution, article 2, section 15 of the Arkansas Constitution, and state statutes regarding searches and seizures.
The April 25, 2016 bench trial began with a hearing on appellant’s motion to suppress. .Following testimony and arguments of counsel, the trial court denied the motion. The bench trial included testimony from three State witnesses: Tony Ball and Tina McMillan, sheriffs deputies at the time of the stop and arrest of appellant, and Kim Brown, &■ drug chemist at the Arkansas State Crime Laboratory. Deputy Ball testified that he saw appellant driving a vehicle, and he conducted a traffic stop based on his belief that appellant’s driver’s license had been suspended. After the stop, Deputy Ball confirmed the suspended license and advised appellant that an inventory search was, going to be conducted. Deputy Ball testified that appellant consented to a search of .the vehicle.-The search resulted in the confiscation of suspected contraband, and appellant was .taken into custody.
Deputy McMillan responded to the location of appellant’s stopped vehicle. ■ She described searching the vehicle and finding a suspicious object wrapped in black electrical- tape. Following a K-9 alert, Deputy McMillan took, a closer look at the taped object and noticed a plastic baggie with a white crystalline substance inside. She also described looking in a backpack and finding a pipe and scales.
The final witness for the State was'Ms. Brown, who was qualified as an expert in drug analysis. Ms. Brown identified State’s exhibit 2 as-am item she had tested and found to be methamphetamine in excess of four grams.
At the conclusion of the State’s case-in-chief, appellant moved for á directed verdict on each count, individually. The trial court denied the motions. Appellant chose not to | «¡testify, and counsel renewed the previous motions, including the motion to suppress the evidence. The trial court de: nied those motions and announced that appellant was guilty on Counts I and II— possession of methamphetamine with purpose to deliver, a Class B felony, possession of drug paraphernalia (scales), a Class B felony, respectively—but that Counts III and IV were dismissed.
,, A sentencing hearing was conducted on May 26, 2016, at which time appellant was sentenced to four years of probation, fines, fees and court costs, drug treatment, and a driver’s-license suspension. That sentencing order was entered on June 2, 2016. Appellant filed a timely notice of appeal on June-20, 2016. .
II. Standard of Review
When reviewing a trial. court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by the trial court. Bathrick v. State, 2016 Ark. App. 444, 504 S.W.3d 639. We defer to the trial court’s superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. This court defers to the superiority of the trial court to evaluate the credibility of witnesses who testify at a suppression hearing. Medlock v. State, 2016 Ark. App. 282, 493 S.W.3d 789.
| JII. Discussion
After testimony was taken and arguments of counsel were made on the suppression motion, the trial court ruled that after “looking at the law and the evidence presented, the policy, the reports and all of that, [the] motion to suppress will be denied.” The testimony by Deputy Ball, the sheriffs deputy who conducted the traffic stop, includes the following statements on direct examination: “I had prior knowledge of Mr. Williams ... I knew his vehicle and that he was on a suspended driver’s license ... I observed his truck and that he was driving. I had prior knowledge of [appellant’s] suspended driver’s license so ■ I eased up behind him to initiate a traffic stop.” He explained that appellant pulled into his driveway and stopped. “They contacted and advised [me] that the driver’s license was suspended ... When I confirmed that his driver’s license was suspended, I told him we were going to inventory his vehicle or that the vehicle was going to be towed to do an inventory search.” On cross-examination, Deputy Ball testified:
I knew [appellant] prior to the stop. I saw him pass by me. When I saw him driving the car, I thought he had a suspended driver’s license. I had stopped him, I’m not sure, two weeks or a month prior maybe.... I don’t recall when that prior stop occurred. I don’t know the date his driver’s license was suspended. I have no idea the date the suspension would have lasted through. But I did stop him before I called in to find out and verify whether his driver’s license was suspended ... After I stopped him and we were standing in the driveway, an ACIC check was conducted on Mr. Williams to make sure he didn’t have any outstanding warrants or anything and it was verified that he had a suspended driver’s license.
Appellant’s counsel’s argument at the conclusion of testimony regarding the suppression motion included that
[Deputy Ball] did not have reasonable suspicion to stop and detain my client. He did not know the date of the suspension when he had previously stopped Mr. Williams. He didn’t even remember the date that he had stopped Mr. Williams or how much time had passed from the earlier stop until the one [at issue here.] He Rsuspected he had a suspended driver’s license, but it was not reasonable because he didn’t know the date that suspension occurred or when that suspension was supposed to end.
The State countered that there was probable cause in this case because Deputy Ball had personal knowledge of appellant. The State reiterated Deputy Ball’s testimony that recently before this encounter he knew that appellant’s license had been suspended. At that point, he made valid contact with appellant and then confirmed that his license was, indeed, still suspended. ' •
In order for a police officer to make a traffic stop, he must'have probable cause to believe that a traffic law has been violated. Lockhart v. State, 2017 Ark. 13, 508 S.W.3d 869. Probable cause is defined as facts or circumstances within a police officer’s knowledge, that are sufficient to permit a person of reasonable caution to believe, that an offense has been committed by, the person suspected. Id. In assessing the existence of probable cause, our review is liberal rather than strict. Id. Whether a police officer has probable cause to make a traffic .stop does not depend on whether the driver was actually guilty of the violation that the officer believed to have occurred. Id.
-Driving on a suspended license is an unclassified misdemeanor offense. Ark. Code Ann. § 27-16-303 (Repl. 2014). Appellant submits that, had Deputy Ball confirmed the suspension of appellant’s license before initiating the traffic stop, he would have .had probable cause for the stop. However, the mere fact that he had, some two to four weeks earlier, known that appellant’s license was at that time suspended, would not cause a person with reasonable caution to believe the license was still ’ suspended. Appellant-urges that Deputy Ball did not know the circumstances of the suspension because, theoretically, appellant could |fihave gone to driver control the next business day -after his previous ticket and cured the suspension.
Deputy Ball admitted seeing appellant driving, thinking his license might still be suspended, stopping appellant, and only then' checking the status of appellant’s driver’s license: While acknowledging that several extenuating circumstances led to the search of appellant’s "vehicle and the confiscation of the physical' evidence he sought to have suppressed, appellant submits that had the illegal traffic stop not occurred, the resulting search of the vehicle would also likely not have occurred. He argues that the violation of his right to be free from an unlawful seizure calls for suppression of the evidence and requests that his case be reversed and remanded to the trial court with a holding that the physical evidence obtained after the illegal traffic stop be suppressed.
We disagree and hold that the trial court did not err by denying appellant’s motion to suppress. Arkansas Rule of Criminal Procedure 4.1(a)(iii) (2016) permits a warrantless arrest if an officer has reasonable cause to.believe that a defendant has committed any violation of law in the officer’s presence.. Additionally, under Arkansas Code Annotated section 5-65-105 (Repl. 2016), it is unlawful to operate a motor vehicle with a suspended license.
Probable cause is defined as “the facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Lockhart, 2017 Ark. 13, at 5, 508 S.W.3d at 873. The degree of proof sufficient to sustain a finding of probable cause is less than that required to sustain a criminal conviction. Robinson v. State, 2014 Ark. 101, 431 S.W.3d 877. When determining whether probable cause existed, the review is liberal rather than strict. Id.
The evidence presented to support the conviction was that on August 29, 2014, Deputy Ball saw appellant driving near the intersection of Arch and Pratt Streets in Little Rock. Deputy Ball knew from a prior traffic stop that appellant was driving on a suspended license. Although at the suppression hearing, Deputy Ball could not recall the exact date of the prior stop, he estimated that it was between two weeks and a month prior to the August 29, 2014 stop. When he saw appellant driving again on August 29, 2014, he attempted to initiate a traffic stop by activating his lights and pulling behind appellant. Appellant continued driving approximately a quarter of a. mile, passing several businesses at which.he could have pulled over. Appellant finally turned into the driveway of his own residence and stopped.
‘ Deputy Ball then exited his vehicle and approached appellant’s driver-side window. He asked appellant, who was still sitting in the: driver’s seat, why he did not stop. Appellant replied that he had not seen Deputy Ball behind him before pulling into his driveway. Deputy Ball then ran appellant’s information through ACIC and confirmed that his driver’s license remained suspended. Deputy Ball informed appellant that his car was going to be towed and that Deputy Ball was going to conduct an inventory search of it. Deputy Ball also asked for and obtained appellant’s consent to search appellant’s car. As a result of the search of' appellant’s car, deputies recovered a green glass pipe, a set of black digital scales, and what was later determined to be 4.0969 grams of methamphetamine.
I «We hold that Deputy Balks belief regarding the suspension of appellant’s driver’s license was reasonable, as it was based on “facts ... within [his] knowledge.” Robinson, 2014 Ark. 101, at 5, 431 S.W.3d at 880. And those facts, as detailed above, were “sufficient to permit a person of reasonable caution to believe that an offense [had] been committed.” Id. Deputy Ball could not recall at the suppression hearing exactly how long before the August 29, 2014 traffic stop that he had knowledge that appellant’s license was suspended. But he testified that he knew that it had been between two and four weeks earlier.
A belief that appellant was still committing the traffic violation, and not confirmation of appellant’s guilt, is all that was required for Deputy Ball to have probable cause sufficient to initiate a traffic stop. See Robinson, supra; Travis v. State, 331 Ark. 7, 10, 959 S.W.2d 32, 34 (1998); see also Prickett v. State, 2016 Ark. App. 551, 506 S.W.3d 870 (where an officer had probable cause to believe that Prickett’s license was still suspended on the day of a traffic stop when he had learned it was suspended two weeks prior to the stop and had verified the day before the stop that it was still suspended). In Boyd v. State, 758 So.2d 1032 (Miss. Ct. App. 2000), the Mississippi Court of Appeals held that the determinative factor in these cases is the relative “freshness” or “staleness” of the officer’s information. See State v. Harris, 236 Ga.App. 525, 513 S.E.2d 1 (1999) (arresting officer informed by other officers in his department that the defendant’s driver’s license had been suspended “in the last few weeks”); State v. Leyva, 599 So.2d 691 (Fla. Dist. Ct. App. 1992) (holding officer’s knowledge that driver’s license had been suspended four to five weeks prior provided him with a reasonable suspicion upon which to make a valid legal stop); State v. Duesterhoeft, 311 N.W.2d 866 (Minn. 1981) (policeman had learned one month earlier that defendant’s license was suspended).
The United States Supreme Court held in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), that the interest of the state in ensuring that only properly licensed drivers are operating motor vehicles on the roadways of the state is a vital interest. Our supreme court has held that the operation of a motor vehicle, upon a public road is a privilege and not a right. See Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). Where the interest of the, state is great and the intrusion on individual liberty is minimal, a stop to investigate is constitutionally permissible if accompanied by reasonable ar-ticulable suspicion that the individual is violating the laws of the state. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Accordingly, we hold that Deputy Ball had probable cause to initiate a traffic stop and that the denial of appellant’s motion to suppress evidence obtained as a result of the stop was not clearly erroneous.
Affirmed.
Gruber, C. J., and Vaught, J., agree. | [
-80,
-20,
-28,
28,
11,
65,
43,
-68,
67,
-89,
-12,
115,
39,
-46,
4,
57,
-29,
93,
117,
-7,
-49,
-73,
103,
81,
-94,
-13,
73,
-41,
-8,
-53,
-20,
-44,
28,
48,
-22,
69,
68,
88,
-25,
88,
-122,
0,
-71,
81,
113,
65,
44,
42,
62,
15,
49,
-98,
-126,
44,
26,
-53,
73,
56,
75,
-76,
72,
-15,
-103,
23,
-49,
20,
-93,
54,
-101,
13,
-6,
120,
-48,
48,
0,
-24,
115,
-74,
-62,
-12,
105,
-101,
-96,
100,
98,
32,
29,
-83,
-68,
-88,
54,
-66,
-99,
-90,
-39,
65,
75,
8,
-105,
-67,
126,
22,
-114,
-6,
107,
85,
21,
108,
-121,
-49,
-76,
-127,
15,
40,
-122,
114,
-21,
33,
16,
54,
-59,
-30,
84,
71,
81,
-101,
-50,
-105
] |
BRANDON J. HARRISON, Judge
Ijn, April 2015, the St. Francis County Circuit Court dismissed this ten-year-old case without prejudice for lack of prosecution. The court’s order stated that there had been no activity during the two years before the dismissal; our review of the record and the parties’ arguments indicates that there was no case activity for the past four years. In either event, the issue here is whether the circuit court abused its discretion when it dismissed the case without prejudice under Arkansas Rule of Civil Procedure 41(b).
I.
This case’s particular history informs our decision to reverse the dismissal and remand for further proceedings. Only the highlights follow. The litigation began in 2005, when Robert Stewart filed a complaint against Gary Miehaelis, and several other defendants, for malicious prosecution, abuse of process, defamation, and more. Stewart had apparently 12complained to the State Plant Board that Miehaelis was flying a crop-dusting plane too close to Stewart’s house, which frightened his family; Stewart also said that chemicals released from the plane rained death on his fruit trees and other vegetation. The parties dispute the content and meaning of what Stewart said during a telephone call to the State Board. Apparently the words “shoot the plane” were uttered, but how the phrase should be taken is disputed. Miehaelis, having learned about Stewart’s call to the Board, urged a criminal prosecution against him. Stewart’s civil complaint alleged, among other things, that Miehaelis pressed criminal charges against him in retaliation for Stewart’s complaint to the State Plant Board.
A difficult discovery process ensued in the civil case. Eventually, the parties entered a confidentiality agreement; and the circuit court entered a protective order in March 2006. About two years later, in April 2008, the circuit court granted summary judgment to one of the defendants. In August 2008, the court notified the parties that the case would be dismissed under Arkansas Rule of Civil Procedure 41(b) unless good cause was shown why it should stay on the docket. Three days later Stewart responded in a letter that “Plaintiff is ready to try this matter. Please set this matter for a two day jury trial at the court’s earliest convenience.” The court set the case for a one-day jury trial to be held in May 2009. But the case was not tried because the court continued the matter on defendant Michaelis’s motion, ordered the parties to mediation, and required “the district court and circuit court records in issue [meaning the related criminal prosecution] be opened for its examination.” The circuit court further stated: “After the Court examines the [criminal] records in camera, the Court will determine who else may examine the records and then will define the limited | ¡¡purposes for which the documents may be used.” Meanwhile, Michaelis tried to collaterally attack court orders issued in the criminal cases against Stewart. See Michaelis v. Cir. Ct. of St. Francis Cty., 2009 Ark. 633, 2009 WL 4893194.
In October 2010, Stewart asked the circuit court to order the parties to mediation and to set a three-day jury trial. The parties continued to wrangle over issues. Mi-chaelis moved for summary judgment in March 2011—and Stewart resisted the effort—but the motion was never decided.
Fast forward .... four years .... to 12 March 2015, when the circuit court issued a “Notice of Possible Dismissal Pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure.” Plaintiff Stewart responded by letter:
Today, I received the Court’s Notice of Possible Dismissal Pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure, which included the above-referenced matter. I would ask that the matter remain on the Court’s docket and be set for trial at the Court’s convenience. I anticipate receiving a scheduling order, but if I need to prepare a precedent to allow the case to remain open I will be happy to do so. By copy of this letter, I am advising opposing counsel of the same.
About one month later, on April 24, the circuit court entered the dismissal order:
The Court is in receipt of a letter dated March 12, 2015, from the attorney for the Plaintiff [Stewart], requesting this matter remain on the active docket and set for trial. This request is denied due to the fact this case is over ten (10) years old and there is no evidence of any activity in the last two years.
IT IS THEREFORE ORDERED AND ADJUDGED that this case is hereby dismissed without prejudice for lack of prosecution.
Stewart moved to vacate the order and recited many facts about the case when he did so, including that the parties had attended an unsuccessful December 2010 mediation and that a summary-judgment motion (the one filed in March 2011) was still pending. The court denied Stewart’s motion because it could “find no good cause why this matter should remain |4on the docket.” Stewart appealed the court’s Rule 41(b) dismissal and the denial of his motion to vacate.
II.
Our analysis begins with Arkansas Rule of Civil Procedure 41, which provides that a case may be dismissed for failing to advance it when “there has been no action shown on the record for the past 12 months ... unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket.” Ark. R. Civ. P. 41(b) (2016). The rule is “a tool for trial courts to dispose of cases filed and forgotten.” Prof'l Adjustment Bureau v. Strong, 275 Ark. 249, 251, 629 S.W.2d 284, 285 (1982). Apart from the rule-based authority, circuit courts have the inherent power to dismiss mossy cases. Florence by Matthews v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996). But this appeal deals specifically with a Rule 41(b) dismissal, and they are typically reviewed under an abuse-of-discretion standard. Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc., 2011 Ark. 501, at 3, 385 S.W.3d 797, 799. Some state and federal courts use multi-factor tests to decide whether a dismissal for failing to prosecute a case was an abuse of a trial court’s discretion, but no Arkansas appellate court has expressly done so thus far. Id.; see also Almara Sepanian, Cleaning House with Rule 41(b): An Empirical Study of the Multi-Factor Tests for Involuntary Dismissals, 44 Sw. L. Rev. 411 (2014) (collecting cases). That streak won’t end today, though we acknowledge Stewart’s invitation to apply such a test.
This decade-old case has become textbook “protracted litigation” for whatever reason, good or bad. Still, given the specific procedural history, we hold that the circuit court abused its discretion when it dismissed the case.
IsFor a number of years there was significant activity in the case. Although no party seems to have requested a hearing on the pending March 2011 motion for summary judgment, or prompted the court to rule on it without a hearing, the fact remains that the court did not decide it before the case was dismissed under Rule 41(b). Stewart could have provided a more robust initial explanation why nothing had happened for so long when prompted to do so by the court’s most recent notice. (Granted, he did so in his motion to vacate.) Stewart did, however, respond quickly to the circuit court’s notice and unequivocally asked—for at least the third time since this case began—that a trial be scheduled. For its part, the circuit court had not prompted or ordered the parties to act (in any manner the record reflects) during the past two years by its own account, and perhaps as many as four years.
III.
Rule 41(b) embodies the truism that a circuit court’s duty to manage its docket must be weighed against a plaintiffs right to have his day in court. Given the record before us, the case should not have been dismissed. Our decision to reverse the dismissal order and remand for further proceedings is limited to this case’s particular circumstances. Because we reverse the court’s order and reinstate the case, there is no need to decide Stewart’s second point on appeal.
Reversed and remanded.
Virden and Glover, JJ., agree. | [
48,
-24,
-20,
28,
41,
-31,
56,
-80,
83,
-61,
102,
-45,
111,
-25,
13,
123,
-30,
75,
116,
105,
-57,
-78,
20,
-94,
114,
-13,
72,
-59,
-67,
79,
-20,
-2,
28,
48,
-54,
-43,
66,
96,
-123,
-38,
-122,
2,
41,
100,
89,
71,
112,
-78,
22,
15,
21,
62,
-30,
47,
17,
-53,
105,
44,
75,
-19,
-63,
81,
26,
31,
79,
0,
-93,
-92,
-98,
7,
120,
60,
-48,
57,
40,
-4,
115,
34,
-126,
100,
3,
-39,
13,
38,
98,
0,
13,
-17,
-20,
-88,
7,
-65,
29,
-90,
-104,
73,
11,
9,
-98,
-107,
116,
17,
44,
-4,
99,
12,
24,
108,
11,
-50,
84,
-77,
47,
5,
-98,
42,
-21,
67,
52,
84,
-115,
-32,
84,
71,
17,
91,
-41,
-106
] |
RHONDA K. WOOD, Associate Justice
| jEdward Lockhart was convicted of driving while intoxicated, his sixth conviction for this offense, and failure to submit to a chemical test. He now asserts a plethora of arguments in this appeal, challenging the sufficiency of the evidence, the initial traffic stop, the validity of the criminal information, and various sentencing issues. We accepted certification of this case from the Arkansas Court of Appeals under Arkansas Supreme Court Rule 1—2(d). We affirm on all grounds Lockhart asserts for reversal.
I. Facts
This appeal comes from Edward Lock-hart’s convictions for driving while intoxicated and for failing to submit to a chemical test. A jury sentenced him to twenty years in prison. The relevant facts, which were adduced at trial, are as follows. In the early morning in November 2013, Officer Troy White observed a car driving ten miles under the speed limit on Highway 5 in Bryant. Officer White testified that, after following the car for some time, |?he saw the car weaving and crossing the cen-terline a number of times. Officer White then turned on his patrol car’s blue lights and pulled the car over.
Edward Lockhart was the car’s driver. Officer White approached the car and smelled a strong odor of alcohol. Lockhart asked if he could step out of the car, and Officer White agreed. After Lockhart exited his car, Officer White saw “a little stagger to his walk.” At one point, Lock-hart asked where he was stopped. Officer White answered that he was in Bryant. Lockhart said he lived just up the road in Bryant, but Officer White later determined that Lockhart actually lived on 24th Street in Little Rock, at least a twenty-five-minute drive away.
Officer White also performed three field-sobriety tests. The first test, the horizontal gaze nystagmus, yielded no conclusion. The second test, the one-leg stand, Lock-hart barely completed, and this test, too, yielded no conclusion. Lockhart indicated that he could not complete this test due to a military-related injury. The final test, the field breathalyzer, yielded no conclusion because Lockhart refused to submit. Based on all the foregoing, Officer White arrested Lockhart and took him to the station.
At the station, Officer White again attempted to have Lockhart complete a breathalyzer test. Before attempting this, Officer White read Lockhart a statement-of-rights form regarding the driving-while-intoxicated laws. Officer White asked Lockhart if he understood these rights and whether he would consent to the test. Lockhart said that he did not understand and would not take the test. Lockhart also asked to speak with his attorney. Officer White refused, telling Lockhart that he had no right to an attorney before taking the machine-breathalyzer test. Lockhart ultimately refused to take this test as well.
| all Discussion
A. Sufficiency of evidence
Lockhart’s first argument on appeal is that substantial evidence does not support either conviction. First, he asserts that no evidence was ever admitted to show that his motor skills were impaired. Second, he argues that his failure to submit conviction should have been dismissed because the police officer never informed him that he had no right to counsel when deciding to take the machine-breathalyzer test. These arguments lack merit.
In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Jeffries v. State, 2014 Ark. 239, 434 S.W.3d 889. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. It is well settled that it is the province of the fact-finder to determine the weight of evidence and the credibility of witnesses. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999).
The law in effect at the time provided that “[i]t is unlawful and punishable as provided in this chapter for a person who is intoxicated to operate or be in actual physical control of a motorboat on the waters of this state or a motor vehicle.” Ark. Code Ann. § 5-65-103(a)(l) (Supp. 2013). Intoxicated is defined by statute as follows:
[Influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself or herself or another person;
UArk. Code Ann. § 5-65-102(2) (Repl. 2005). We have recognized that refusal to submit to a chemical test can be properly admitted as circumstantial evidence showing a knowledge or consciousness of guilt, and that such evidence possesses independent relevance bearing on the issue of intoxication. Medlock v. State, 332 Ark. 106, 109, 964 S.W.2d 196, 198 (1998). In addition, the observations of police officers regarding the smell of alcohol constitutes competent evidence on the issue of intoxication. See Johnson v. State, 337 Ark. 196, 202, 987 S.W.2d 694, 698 (1999). Further, opinion testimony regarding intoxication is admissible. Mace v. State, 328 Ark. 536, 540, 944 S.W.2d 830, 833 (1997).
Viewing the evidence in the light most favorable to the State, we hold that the evidence was sufficient to support the jury’s verdict. Lockhart here manifestly failed to submit to testing twice. This reveals a consciousness of guilt on his part and is independently relevant to prove he was intoxicated. In addition, Officer White testified that after he pulled Lockhart over, Lockhart emitted a strong odor of alcohol and had a stagger to his walk. Lockhart also appeared to be confused about his location and where he actually lived. We therefore affirm Lockhart’s conviction for driving while intoxicated because the officer’s observations, coupled with Lockhart’s refusal to submit to testing and apparent confusion, amount to substantial evidence.
Lockhart also challenges the sufficiency of the evidence regarding his refusal to submit to a chemical test under Ark. Code Ann. § 5-65-205(a) (Supp. 2013). He points out that he asked for an attorney at the police station when Officer White read him his statement of rights form regarding the driving-while-intoxicated laws. He maintains, in addition, that Officer White should have told him that he, Lockhart, had no right to an attorney at this | ¡¡stage. For support, he directs us to precedent that states “[A]n accused does not have the right to contact an attorney before taking, or refusing to take, the test.” Wright v. State, 288 Ark. 209, 212, 703 S.W.2d 850, 852 (1986). Lockhart maintains that this non-right should be explained to a person before the test is administered. However, this explanation happened in this case. Officer White told Lockhart that “you do not have the right to an attorney before this test.” We therefore affirm the conviction for refusal to submit.
B. Motion to suppress
Lockhart next challenges the traffic stop. He argues that Officer White never obtained probable cause to pull him over before he activated his blue lights. In order for 'a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Sims v. State, 356 Ark. 507, 512, 157 S.W.3d 530, 533 (2004). Probable cause is defined as facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Id. In assessing the existence of probable cause, our review is liberal rather than strict. Laime v. State, 347 Ark. 142, 153, 60 S.W.3d 464, 472 (2001). Whether a police officer has probable cause to make a traffic stop does not depend Ron whether the driver was actually guilty of the violation which the officer believed to have occurred. Travis v. State, 331 Ark. 7, 10, 959 S.W.2d 32, 34 (1998)
Officer White testified that he observed Lockhart’s vehicle weaving and crossing the center line a number of times:
[The car] would cross the fog then it would go over and cross the center line. He weaved back and forth between the two lines. Gross the fog line a couple more times and the center line a couple more times while I was following.
A video-recording of the moments leading up to and including the stop was also introduced and portrayed the events from Officer White’s point of view. The circuit court eventually found that “probable cause was demonstrated prior to and subsequent to the activation of the blue lights.”
We conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003). We have affirmed a denial of a motion to suppress on similar facts. See Webb v. State, 2011 Ark. 430, 385 S.W.3d 152. There, the police officer pulled a car over after it had crossed the centerline. We held that the stop was “entirely legal.” Id. at 7, 385 S.W.3d at 156. Additionally, in this case, Officer White testified that Lockhart’s car “weaved back and forth in between the two lines.” Cf. Piercefield v. State, 316 Ark. 128, 133, 871 S.W.2d 348, 351 (1994) (holding that officer had reasonable suspicion to stop a motorcycle that was “weaving from the centerline of the highway to the shoulder”).
|7And while we agree with Lockhart that the video introduced at trial does not clearly show Lockhart’s vehicle crossing the centerline, this fact does not destroy probable cause. Officer White testified that he followed White for two and a half miles before activating his blue lights. But the video records only 45 seconds before the blue lights are activated. Further, it is not necessary that Lockhart be actually guilty of the traffic violation. See Travis, supra. There must only be probable cause, which is a much lower standard than proof beyond a reasonable doubt. Officer White’s testimony, combined with the video account, established probable cause that Lockhart had violated Ark. Code Ann. § 27-51-301(a) (Supp. 2013), which provides that “a vehicle shall not be driven upon the left half of the roadway.” The stop was therefore legal, and we affirm the court’s denial of the motion to suppress.
C. Postconviction motion
The next issue involves sentencing. The jury sentenced Lockhart to 20 years in prison, the maximum allowable under the statute. A sentencing order was entered to this effect on May 13, 2014. On May 30, 2014, Lockhart filed a motion for posttrial relief, arguing that the jury did not consider a presentencing screening report, which, according to Lockhart, is mandatory under Ark. Code Ann. § 5-65-109 (Supp. 2013), the statute in force at the time. Lockhart maintained that this failure justified resentencing. A hearing was held on this motion, which the court ultimately denied, finding that Lockhart was not prejudiced because he received the maximum possible sentence. Lockhart appeals this ruling.
We cannot address the merits of this argument because Lockhart failed to raise this issue in a timely manner. In order to preserve an issue for appeal, a defendant must object |8at the first opportunity. E.g., Vance v. State, 2011 Ark. 243, 383 S.W.3d 325. And here, the first opportunity to object was when the judge asked Lockhart’s counsel if he had anything else before the jury was sent out to deliberate the sentence; counsel replied that he did not. A second opportunity presented itself right before the court pronounced sentence. At that time, the circuit court asked Lockhart’s attorney whether there was any reason he should not impose the sentence. Lockhart’s attorney responded, “I know of no legal reason why the Court should not impose sentence.” Counsel missed two opportunities to apprise the court of the issue and failed to object that the sentence was being imposed without a presentence report. Because Lockhart’s attorney failed to object to the imposition of sentence at the first opportunity, this issue is not preserved.
The dissent argues that, per Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995), Lockhart has preserved his argument about the lack of a presentence report by raising it in a posttrial motion. However, the Williams court did not hold that raising the issue in a posttrial motion would have preserved the issue; rather, it only noted, in dicta, that the defendant in that case had not filed a posttrial motion. Id. at 500, 898 S.W.2d at 39. Because the defendant there did not file a posttrial motion, the Williams court had no occasion to address whether such a motion would have been sufficient to preserve the issue. We have Lthat occasion now and hold that waiting to raise the lack of a presentence report for the first time in a posttrial motion does not preserve the issue for appellate review.
D. Jurisdiction
Lockhart next argues that the criminal information was defective because it failed to cite the statute for the crime of driving while intoxicated, Ark. Code Ann. § 5-66-103. Rather, the amended criminal information cited only Ark. Code Ann. § 5-65-122, which provided the sentence for the sixth offense of driving while intoxicated. Because the information failed to include this statute, Lockhart argues, the circuit court never acquired jurisdiction.
This argument is meritless and, we should note, made without a single citation to relevant authority. Our precedent provides that “[a]n information is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense.” State v. Johnson, 326 Ark. 189, 194, 931 S.W.2d 760, 762 (1996). The information here was not defective. The information stated that Lockhart “did unlawfully and feloniously on or about November 15, 2013, operated [sic] a motor vehicle while intoxicated.” The information informed Lockhart of the specific elements of the crime he was being charged with, as well as the date on which he was alleged to have committed it. To the extent that Lockhart wanted additional information, he could have filed a bill of particulars. See id. And at any rate, the statute that |inwas cited, § 5-65-122, included a cross-reference to Ark. Code Ann. § 5-65-103. Lockhart therefore should have been aware, from the statute’s plain text, of the operative criminal statute.
E. Prior convictions
Last, Lockhart argues that two of his prior DWI convictions should not have been admitted. The sentencing statute here provided that “[a] sixth or subsequent offense of violating § 5-65-103 within ten (10) years of a prior offense is a class B felony.” Ark. Code Ann. § 5-65-122(a)(l) (Supp. 2013). To prove that Lockhart had at least five prior DWI convictions, the State admitted certified copies of DWI convictions from 2010 and from 2011. First, Lockhart argues that the 2010 conviction should not have been admitted because the date he appeared in court was crossed out. (Though the sentencing order was file-marked by the circuit clerk on October 12, 2010.) Second, Lockhart argues that the 2011 conviction should not have been admitted because the State violated Ark. Code Ann. § 5-65-111 (Supp. 2013) when it charged him with a misdemeanor rather than a felony. Because the 2011 conviction was his fourth offense, the State was barred from plea-bargaining.
Lockhart does not provide any authority to support the argument that these two “defects” render these prior convictions inadmissible. The State offered certified copies of both convictions. The file-markings on both indicate that the convictions occurred within the past ten years. The DWI sentencing statute contains no other requirements. Lockhart’s argument is otherwise made without citation to authority or convincing argument. See Roberts v. State, 324 Ark. 68, 71, 919 S.W.2d 192, 194 (1996). Therefore, we affirm on this point.
Affirmed.
. Citing McCulley v. State, 2014 Ark. App. 330, 2014 WL 2443124, the State argues that the suppression issue is not preserved because Lockhart failed to make a contemporaneous objection to the officer’s testimony and failed to obtain a ruling on suppression before trial. But Lockhart could not have obtained a ruling before trial because the court explicitly stated that it would have to hear the officer’s testimony before making a ruling. After the officer’s testimony, Lockhart immediately raised the issue and obtained a ruling. The issue, therefore, is properly preserved. See Pyle v. State, 340 Ark. 53, 58, 8 S.W.3d 491, 495 (2000) ("The law is well settled that to preserve an issue for appeal a defendant must object at the first opportunity.”).
. We recognize that in a prior case we held that the statute contained “mandatoiy” language and that it was error for the court to sentence the defendant without first receiving the presentence report. Watson v. City of Fayetteville, 322 Ark. 324, 328, 909 S.W.2d 637, 638 (1995). But the timing of the objection was not at issue in Watson, as it is in this case. Thus, Watson does not control the outcome here.
. The dissent also argues that raising the lack of a presentence report in a posttrial motion would have given the circuit court an opportunity to correct the error. But that presupposes that the presentence report should be received by the court rather than the jury, as Lockhart argues. Again, we decline to reach the merits of this argument because Lockhart failed to object at the first opportunity. | [
16,
-22,
-36,
-84,
-87,
-64,
18,
-104,
82,
-33,
-25,
48,
-89,
-47,
5,
49,
-87,
127,
101,
73,
-57,
-73,
87,
17,
-30,
-45,
123,
-29,
51,
75,
108,
-4,
30,
120,
-61,
-35,
38,
-52,
-89,
-40,
-114,
4,
121,
96,
82,
-48,
58,
42,
5,
15,
49,
-98,
-29,
46,
24,
-54,
73,
108,
75,
-84,
120,
-15,
-104,
31,
-49,
20,
-93,
116,
-71,
5,
88,
95,
-36,
49,
1,
-8,
115,
-90,
-62,
-12,
109,
-103,
12,
34,
-24,
32,
25,
-17,
-84,
-120,
-122,
42,
-115,
-93,
-40,
121,
73,
12,
-106,
-97,
42,
22,
14,
-8,
123,
101,
81,
104,
6,
-53,
48,
-127,
77,
-96,
-62,
83,
-23,
101,
112,
113,
87,
-26,
116,
-59,
115,
-101,
-58,
-78
] |
ROBERT J. GLADWIN, Chief Judge
h This is the fifth appeal in a dispute between appellant Gary Howard and ap-pellee Lauren Adams over attorney’s fees. In the most recent appeal, Howard TV, we affirmed the circuit court’s decision to foreclose on forty-six acres of property in order to satisfy Adams’s attorney-fee lien and other matters. While Howard TV was pending, the foreclosure sale took place and was confirmed by the circuit court. The court also awarded additional fees to Adams for the work of her attorney Tamra Cochran, who has represented her throughout |athis dispute. Gary now appeals from the order confirming the sale and the order awarding additional attorney’s fees. We affirm.
I. Background
The lengthy history of this case is set forth in our earlier opinions. To summarize past events, Adams represented Gary in a lawsuit to recover forty-six acres of property that had been owned by Gary’s late father, Odis Howard. Adams obtained a successful outcome, which resulted in the forty-six acres being placed into the Odis Howard estate. Gary was the administrator and sole beneficiary of the estate, subject to the dower interest of his stepmother, Mabel Howard.
Afterward, Adams sought a one-third contingency fee from Gary in accordance with her representation contract. When Gary refused to pay, Adams filed an attorney-fee lien on the forty-six acres and a claim against the estate for thirty-three percent of the property’s value. Following a lengthy period in which the forty-six acres remained unsold, Adams began seeking foreclosure of her attorney-fee lien through a judicial sale of the property.
In November 2014, the circuit court ordered foreclosure and public sale of the forty-six acres. The order provided that Adams would receive one third of the sale proceeds in satisfaction of her attorney-fee lien, less $110,500 distributed to Mabel Howard for her dower interest: and that Adams would receive another $18,529.09 from the sale proceeds for fees payable to her lawyer, Tamra Cochran. We affirmed these rulings in Howard IV, supra.
While the appeal in Howard TV was pending, the foreclosure sale was held, and Adams and her law partner bought the forty-six acres for $450,000. The circuit court confirmed Rthe sale and awarded Adams additional fees of $69,037.50 for the Cochran firm’s representation. Gary appeals and raises five arguments for reversal.
II. Judicial Sale of the Property
Gary argues that three errors occurred in connection with the sale of the forty-six acres. As explained below, we find no error in the sale process.
We begin by recognizing that we accord great discretion to the circuit court in matters pertaining to judicial sales. The circuit court is the vendor in judicial sales, and, in the exercise of sound judicial discretion, it may confirm or refuse to confirm a sale made under its order. Williams v. Hall, 98 Ark. App. 90, 250 S.W.3d 581 (2007). In determining whether the circuit court abused its discretion, we do not substitute our decision for that of the circuit court: instead, we merely review the case to see whether the circuit court’s decision was within the latitude of decisions that it could make in the particular case. See Kellett v. Pocahontas Fed. Savings & Loan Ass’n, 25 Ark. App. 243, 756 S.W.2d 926 (1988).
Gary argues first that notice of the sale was not published the requisite number of times in the newspaper. The circuit court’s foreclosure decree set forth the following requirement:
That the Commissioner of this Court hereinafter appointed shall, after advertising the time, terms, and place of sale for twenty (20) or more days by publication in a newspaper published or circulated in Benton County, Arkansas, having a bona fide circulation therein, by at least two insertions, sell at the front door of the Benton County Courthouse ... [the described property],
(Emphasis added.) The Commissioner complied with the decree by inserting notice of the sale in the Northwest Arkansas Democrat Gazette two times within twenty days of the sale. RHowever, Gary contends that the notice should have been inserted three times. He cites Arkansas Code Annotated section 28-51-304 (Repl. 2012), which reads in pertinent part:
(a)(1) In all sales of real property at public auction, the personal representative shall give notice of the sale, particularly describing the property to be sold, and stating the time, place, and terms of sale.
(2) The notice shall be printed one (1) time a week for three (3) consecutive weeks in a newspaper published or having a general circulation in the county in which the property is situated.
The circuit court refused to apply section 28-51-304 on the ground that it governs those situations in which the personal representative is selling the property. The court was correct. Section 28-51-304 imposes duties on the personal representative with regard to publication of notice, but it makes no such demand on the seller in a judicial sale. Here, as in all judicial sales, the court was the seller, not the personal representative. Williams, supra.
Gary argues next that the $450,000 price paid for the property was inadequate. He cites Arkansas Code Annotated section 28-51-303(b)(2)(A), which provides that “if the sale [of the property] is to be at public auction, the property shall be sold for not less than three-fourths , (3/4) of its appraised value.” According to Gary, $450,000 was less than three-fourths of the property’s appraised value.
Initially, we observe that section 28-51-303(b)(2)(A), like section 28-51-304 discussed above, is inapplicable because it is part of the Probate Code that governs the personal representative’s sale of estate property. See Keirs v. Mt. Comfort Enters., Inc., 266 Ark. 523, 526, 587 S.W.2d 8, 10 (1979) (emphasis added) (involving a judicial sale and stating that “by analogy... when real property is sold at public auction by a representative of the decedent, the law requires that such property be sold for not less than 75% of its appraised 1 ¿value). But, in any event, the proof taken by the circuit court does not bear out Gary’s claim that the sale price was inadequate.
Gary testified that the forty-six acres had been appraised at $2 million, but subsequent testimony indicated that he may have been referring to a 2006 appraisal. He offered no qualified appraisal of the property’s value at the time it was sold in 2015. Moreover, the property had been on the market for many years without being sold, and a realtor testified that she would list the property for $600,000 to $750,000 in order to sell it quickly. Under these circumstances, the $450,000 sale price was not inadequate and does not shock the conscience of the court. See Looper v. Madison Guar. Savings & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987) (holding that the question of whether the price at a judicial sale shocks the conscience of the court is dependent on the various circumstances of the case).
For his third point, Gary argues that the sales notice contained a misleading description of the sale’s location. The notice stated that the sale would take place “at the West Front Entrance of the Benton County Courthouse” on June 22, 2015, at 9:15 a.m. At the hearing below, Gary testified that he thought the sale would be held at the entrance, outside the courthouse. He said that he arrived at 8:30, waited on the steps, and intended to bid on the property. He further testified that, when nothing occurred, he entered the building about 9:30 but found no activity.
At the same hearing, court commissioner Brenda DeShields, who conducted the sale, testified that the sale was held in the courthouse’s second-floor lobby, which may be considered inside the west, front entrance. According to DeShields, the west, front-entrance door is typically locked, and part of the stairs leading up to it are barricaded. She [ ^testified that she usually asks attorneys to modify their notices to state that the sale will take place in the lobby, but that was not done in this case. DeShields also testified that the usual practice was to look out the locked west-entrance door to see if anyone was waiting, but she could not recall if that had been done here. However, she said that she announced the sale so that anybody waiting inside the front doors would have heard it. DeShields also said that Gary’s attorney, Harry McDermott, attended the sale and was waiting on his client. DeSh-ields agreed to delay the sale but McDer-mott did not object to it continuing.
Appellee Lauren Adams attended the sale and testified that she and another person checked outside to see if anyone was there before the sale occurred. She said that she did not see anyone, in particular Gary Howard. Another witness testified similarly.
After hearing this evidence, the circuit court ruled that the entrance door had been checked: that Gary was not there: that McDermott was present at the sale and did not object to its location: and that Gary was familiar enough with the courthouse to find his way in. Given the deference we accord to the circuit court’s credibility rulings, see Eifling v. Southbend, Inc., 2016 Ark. App. 393, 500 S.W.3d 756, we affirm on this point.
III. Additional Attorney’s Fees
Next, Gary argues that the circuit court erred in awarding additional attorney’s fees to Adams for the work of her lawyer, Tamra Cochran. The following facts are helpful in explaining this issue.
After Adams had filed her attorney-fee lien against the forty-six acres in 2005, Gary, acting individually and as administrator of the Odis Howard estate, sued her for breach of contract, deceit, and negligence. Following a February 2011 trial, the jury found in Adams’s |7favor. Thereafter, the circuit court awarded $168,745.50 in fees to Adams’s malpractice attorneys and $50,502.50 in fees to Cochran based on Adams being the prevailing party in a contract case. See Ark. Code Ann. § 16-22-308 (Repl. 1999). In Howard II, we reversed the malpractice attorneys’ award on the ground that the case sounded primarily in tort rather than in contract. As for Cochran’s fees, we noted that at least some of her time had been spent defending Adams in the lawsuit, for which we had determined that fees were not recoverable. We therefore remanded Cochran’s fee award for reconsideration in light of our ruling.
On remand, the court understood, and the parties agreed, that Cochran would not be entitled to fees for the work she had conducted after Adams’s lien had been established by the court in February 2007. Gary and Cochran settled the fee amount in open court for $30,030. The court then awarded that amount for the fees Cochran had accrued through February 21, 2007, in establishing Adams’s attorney-fee hen against the estate.
Moving forward to more recent events, Adams filed a petition after the 2015 foreclosure sale in which she sought an additional $78,600 in fees that Cochran had accrued between March 14, 2011 (after the abovementioned jury trial), and October 1, 2015. The circuit court awarded Adams $69,037.50. Gary now argues that the fee award was in error.
Gary’s argument is difficult to follow in many respects. It is interspersed with matters that were long ago resolved in prior appeals, and it is unclear what newer matters he attempts |sto present. As best we can understand, Gary’s primary contention is that the $30,030 awarded to Cochran following our opinion in Howard II is res judicata on the subject of Cochran’s fees, and, consequently, no additional fees are owed to her. We disagree in light of the context in which the $30,030 award was made.
In Howard II, our purpose in ordering a recalculation of Cochran’s original $50,502.50 fee bill was to ensure that she would not receive compensation for defending Adams in the 2011 tort suit. On remand, the parties settled the fee amount, and the circuit court entered the necessary order. We see nothing in the order or the settlement that precludes Adams from recovering additional fees for Cochran’s work after the 2011 trial.
As a second part of his res judicata argument, Gary cites our ruling in Howard III, where we denied Adams’s request for additional attorney’s fees. Our denial in that case was based on the fact that Adams lost the appeal and was not the prevailing party below on the particular points at issue. Our holding did not prevent Adams from seeking additional fees on future aspects of the case.
Gary further claims that Adams is not entitled to an award for Cochran’s fees because the fees were incurred due to “probate issues” rather than “contract issues.” It is the appellant’s burden to demonstrate reversible error. Watkins v. Paragould Light & Water Comm’n, 2016 Ark. App. 432, 504 S.W.3d 606. Moreover, we follow the established rule that we will not make a party’s argument for him or her. Wilson v. Pulaski Bank & Trust, 2011 Ark. App. 383, 383 S.W.3d 919. Here, Gary’s argument is simply not developed well enough for us to consider it. We therefore do not address its merits.
|9The same principle applies to Gary’s assertion that the circuit court erred in awarding Adams past-due property taxes and related expenses on the forty-six acres. The argument is not developed enough for us to consider,
TV. Dower Interest
Finally, Gary argues that the circuit court erred in refusing to correct the amount paid for Mabel Howards dower interest in the forty-six acres. He claims that the court made a clerical error when it improperly stated the amount as $110,500 rather than $127,000.
The records in this appeal and the four prior appeals reveal the following. Gary and Mabel agreed in 2005 to settle the amount of her dower interest for $127,000. In June 2006, the court ordered the forty-six acres sold and directed that Mabel be paid the agreed-on amount out of the sales proceeds. Later, the court ordered Gary to make a partial payment to Mabel of $94,000 with money that had been received by the estate.
In March 2007, Gary and Mabel jointly petitioned the court for approval of a settlement of her dower interest. The petition recited that Gary had already paid Mabel $94,000, and that “in compromise settlement” of the remaining amount, Gary was offering to pay Mabel $16,500. The court approved the settlement on March 16, 2007, stating that the settlement was a full, final, and complete compromise of Mabel’s claims. The same day, Mabel filed a satisfaction of her claims and waived her dower and homestead rights. Based on the foregoing, Gary’s payments to Mabel were $94,000, plus the $16,500 settlement, for a total of $110,500.
ImLater in the case, the circuit court, with no objection from Gary, began referring to $110,500 as the amount of the dower payment. Likewise, our 2014 opinion in Howard III referenced the same amount, again with no objection from Gary. However, in subsequent motions filed in this court and in the circuit court, Gary asserted that the $110,500 figure was a clerical error and that the proper amount of his payment to Mabel was $127,000.
In the current proceeding, the circuit court refused Gary’s request to alter the $110,500 amount, stating that it had lost jurisdiction to modify its previous orders. Gary now argues that the circuit court erred because Rule 60(b) of the Arkansas Rules of Civil Procedure provides that a court may correct clerical mistakes at any time. We conclude that Rule 60(b) is inapplicable because no clerical mistake occurred in this instance.
As outlined above, the history of the parties’ dealings shows that Gary paid Mabel $110,500 for her dower interest pursuant to a 2007 settlement. Thus, the court used the proper amount, and there is no ground for reversal. We may affirm the circuit court if it reaches the correct result. Almobarak v. McCoy, 84 Ark. App. 152, 137 S.W.3d 440 (2003).
Affirmed.
Harrison and Vaught, JJ., agree.
. The four previous appeals were Howard v. Adams, 2009 Ark. App. 621, 332 S.W.3d 24 (Howard I): Howard v. Adams, 2012 Ark. App. 562, 424 S.W.3d 337 (Howard II): Adams v. Howard, 2014 Ark. App. 328, 436 S.W.3d 473 (Howard III): Howard v. Adams, 2016 Ark. App. 222, 490 S.W.3d 678 (Howard IV).
. One of the court’s fee orders in this case incorrectly stated the date as February 11, 2011. We also note that the court later deducted certain costs owed to Gary and reduced Cochran's fee to $18,529.09.
. We may take judicial notice of the record in a prior appeal. Berks v. State, 2016 Ark. 364, 501 S.W.3d 366 (per curiam). | [
112,
-4,
-4,
108,
-104,
-30,
10,
-120,
104,
-63,
-14,
-45,
63,
-30,
17,
47,
-15,
121,
97,
109,
69,
-79,
87,
98,
88,
-13,
51,
-35,
-88,
126,
-11,
-105,
92,
64,
-54,
93,
66,
-128,
-19,
80,
14,
7,
91,
117,
-19,
66,
48,
57,
56,
15,
53,
-97,
-73,
109,
61,
106,
12,
44,
27,
-85,
64,
-88,
-81,
-116,
127,
21,
-111,
36,
-102,
-127,
-54,
78,
-112,
53,
0,
-24,
115,
-74,
-122,
116,
72,
-101,
12,
38,
102,
0,
73,
-17,
-16,
-104,
6,
-4,
-98,
-90,
-37,
9,
80,
102,
-66,
29,
120,
80,
21,
126,
-20,
4,
-100,
108,
-87,
-50,
-42,
-111,
-115,
88,
-100,
26,
-1,
5,
112,
101,
-49,
-126,
93,
70,
61,
-69,
14,
-13
] |
RAYMOND R. ABRAMSON, Judge
11 Daniel Greenberg sued Horizon Arkansas Publications, Inc., et al. (sometimes referred to as appellees) for defamation. Greenberg’s lawsuit arose out of a series of editorials published in 2010 in the Benton Courier and written by Kristal Kuykendall who served as editor of the paper at the time. The Saline County Circuit Court granted summary judgment in favor of appellees, and Greenberg appealed. We affirm,
I. Background
Daniel Greenberg served as a staté representative in the Arkansas General Assembly from 2006 to 2010. In 2010, Green-berg was a candidate in the Republican primary for Arkansas State Senate District 22, a portion of which is located in Saline County. Greenberg’s opponent was former state representative Jeremy Hutchinson.
| ^During the course of the election, the Benton Courier published a series of editorials written by Kristal Kuykendall about Greenberg, Hutchinson, and their respective campaigns. The editorials were published on March 7, 2010 (First Editorial), March 28, 2010 (Second Editorial), April 19, 2010 (Third Editorial), and April 26, 2010 (Fourth Editorial).
The First Editorial addressed two topics pertinent to Greenberg. Kuykendall began by engaging in a general discussion of what she considered to be dishonest political advertising. She mentioned a television advertisement by Greenberg in which he quoted the Benton Courier. “You should appreciate having legislators like Dan Greenberg on your side.” This quote had been written in á 2009 editorial praising Greenberg’s work for open government. Kuykendall believed that the use of the quote made it appear that the newspaper was endorsing Greenberg when it was not. She also disagreed with the use of this quote because it was written by a previous editor of the Benton Courier. Later in the editorial, Kuykendall wrote that she had previously “swor[n] on the spot that [Greenberg would] never have [her] support as a candidate for anything” as a result of a comment he was said to have made about access to healthcare. Kuyken-dall explained that, “basically, when someone questioned whether the nation’s health care system was broken because not everyone has access to health care, Green-berg’s response was something like: Of course everyone in America has access to health care; all they have to do is go to the emergency room.”
Unhappy with the First Editorial, Greenberg requested and was granted a meeting with Kuykendall and her publisher, Bryan Bloom. Greenberg agreed to modify the | ¡television advertisement to state, “[Y]ou should appreciate having legislators like Dan Greenberg on your side because of his work for open government.” Kuykendall indicated in an email to Green-berg that the revisions adequately addressed their concerns.
Shortly thereafter, Kuykendall wrote the Second Editorial. In that editorial, she favorably addressed Greenberg’s modified television advertisement and his meeting with the Benton Courier staff that led to the modification. She praised Greenberg for “paying attention to the small-town local paper” and “for being flexible and for striving for the most honest political campaign commercial possible in this situation.” She also raised an issue reported to her by one of Greenberg’s constituents— that Greenberg promised to have the mailboxes of the elderly moved closer to their front doors and, according to his constituent, broke the promise. Further, Kuyken-dall praised Greenberg’s volunteerism at a community-care clinic.
Greenberg’s case hinges on Kuyken-dall’s Third Editorial, in which Kuykendall addressed four issues relating to Green-berg. First, she discussed polls that showed Greenberg trailing Hutchinson in their state-senate race. Secondly, she noted that Greenberg was using the same address for both his legislative and his campaign offices and mentioned that this “would appear to be a violation of Arkansas campaign ethics.” Next, she wrote that Greenberg had listed as supporters on campaign materials individuals who were either neutral or supported Hutchinson. Lastly, she characterized Greenberg’s allegation in a campaign mailer that Hutchinson lobbied for new taxes as “hatefully dishonest.”
Following the publication of the Third Editorial, Greenberg requested to publish a responsive guest column in the Benton Courier, and appellees agreed to the request. ^Greenberg’s column generally rebutted Kuykendall’s criticisms of him and challenged her journalistic methods. -
Finally, the Benton Courier published the Fourth Editorial, which presented no new information but Kuykendall wrote, “I stand firmly behind every fact I presented in [the Third Editorial] column. I’m afraid I can’t say much more right now....”
In 2018, Greenberg sued appellees for libel. The circuit court ultimately granted a motion for summary judgment filed by appellees after thorough briefing and an extensive hearing. Greenberg timely appealed from the order granting summary judgment.
The sole issue presented in this appeal is whether the circuit court erred by granting summary judgment to appel-lees on Greenberg’s defamation claim. When reviewing whether a motion for summary judgment should have been granted, our court determines whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007). 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. Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001).
II. The Elements of the Defamation Claim
“A defamation action turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation.” Thomson Newspaper Publ’g, Inc. v. Coody, 320 Ark. 455, 461, 896 S.W.2d 897, 901 (1995). A plaintiff claiming defamation must establish (1) the defamatory nature of the statement of fact; (2) the statement’s identification of or reference to the plaintiff; (3) publication of the statement by | Ethe defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) the damages suffered by the plaintiff. Southall v. Little Rock Newspapers, Inc., 332 Ark. 123, 132, 964 S.W.2d 187, 192 (1998).
It is uncontroverted that, at the time of publication, Greenberg was a public figure, and a public figure may not recover for defamation without clear and convincing proof that any false statements were made with actual malice. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). A public figure “invite[s] attention and comment.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The heightened level of scrutiny in public-figure cases is imposed to protect the free exchange of ideas.
To grant summary judgment, the circuit court was required to determine whether the evidence presented by appellees left a material question of fact unanswered. Bomar, supra. The only elements in controversy are (1) whether actual malice was shown by appellees, (2) whether the statements made were false and defamatory, and (3) whether Greenberg was damaged. A holding that there is insufficient evidence to create a material question of fact with regard to any of these elements requires our court to affirm the circuit court’s ruling.
III. Actual Malice
In public-official cases, our review is based on whether the evidence “could support a reasonable jury’s finding that actual malice was shown by clear and convincing evidence.” Southall, 332 Ark. at 133, 964 S.W.2d at 193. A finding of actual malice requires that a statement be -made with knowledge that it is false or with reckless disregard of whether it Rwas false. Harte-Hanks, 491 U.S. at 659, 109 S.Ct. 2678 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).
The meaning of actual malice and more particularly reckless disregard is not readily captured in one infallible definition. Harte-Hanks, 491 U.S. at 686, 109 S.Ct. 2678 (citing St. Amant v. Thompson, 390 U.S. 727, 730, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). “The actual-malice standard is not satisfied merely through a showing of ill will or malice in the ordinary sense of the term.” Harte-Hanks, 491 U.S. at 666, 109 S.Ct. 2678. There must be sufficient evidence to permit the conclusion that the defendant entertained serious doubts as to the truth of his publication. Id. at 688, 109 S.Ct. 2678. In other words, the defendant must have an “awareness of the probable falsity of the statements.” Fuller v. Russell, 311 Ark. 108, 113, 842 S.W.2d 12, 15 (1992).
Direct evidence of actual malice is undoubtedly rare. Accordingly, “[although courts must be careful not to place too much reliance on such factors, a plaintiff is ■ entitled to prove the defendant’s state of mind through circumstantial evidence.” Harte-Hanks, 491 U.S. at 668, 109 S.Ct. 2678. Here, Greenberg seeks to establish a material question of fact with regard to actual malice through circumstantial evidence. This evidence is primarily in the form of evidence of Kuykendall’s hostility toward Greenberg and her alleged inadequate investigation into the information contained in the editorials. Nevertheless, our guidepost is whether there was clear and convincing evidence presented that Kuykendall made statements about Greenberg with the knowledge that they were false or with reckless disregard of whether they were false. Id. at 659, 109 S.Ct. 2678. We hold that the evidence does not rise to the level necessary to create a material question of fact regarding actual malice.
|7We acknowledge that there is evidence tending to-show that Kuykendall harbored hostility toward Greenberg. Viewing the evidence in the light most favorable to Greenberg, one could conclude that Kuyk-endall had hostility toward him before she wrote her First Editorial. Kuykendall admitted in that editorial that she did not support Greenberg’s candidacy due to a comment he purportedly made regarding access to healthcare.
Discovery also produced emails written by Kuykendall after the Third Editorial was published indicating that Kuykendall was hostile toward him. She wrote to Jeremy Hutchinson that Greenberg “makes [her] want to vomit,” “brings shame to the name of Christ,” and that “his actions have greatly inspired [her] to want to expose him for who and what he really is.” Kuyk-endall also wrote to Dennis Milligan, the Republican party chairman, and said, “[Greenberg] is a f-ing liar,” “[i]t is personal now,” and “he is a fake and he is making it my mission to expose him for who and what he really is—a snake.” These emails certainly indicate that Kuykendall harbored anger and hostility toward Green-berg.
Nevertheless, Kuykendall’s hostility toward Greenberg is not actionable unless there are material facts in evidence tending to show that she published a statement about him with the knowledge that it was false or with reckless disregard of whether it was false. Kuykendall wrote that she wanted to “expose” Greenberg and that he was a liar. In an email to Milligan, she wrote, “[i]f his advertising was aboveboard and honest ... none of this would be an issue.” She also wrote to Milligan that Greenberg was threatening to sue the Benton Courier even though “he doesn’t have a FREAKING. LEG TO STAND ON LEGALLY.” Kuykendall’s emails ■. reveal that she believed what she had written.
| «Greenberg also criticizes Kuyk-endall’s investigative and1 journalistic methods and contends they constitute circumstantial evidence of actual malice. We acknowledge that “reckless conduct is not measured by whether a reasonably prudent man would have investigated before publishing, but whether he, in fact, entertained serious doubts as to the truth of the publication.” Coody, 320 Ark. at 465, 896 S.W.2d at 903. The evidence on Kuyken-dall’s investigative measures fails to show that she entertained serious doubts regarding the truth of any of her publications.
Greenberg objects to Kuykendall’s journalistic techniques, specifically her lack of communication with • him and later her communication with his opponent, Jeremy Hutchinson. Although Greenberg questions the quality of' her investigation, the evidence demonstrates .that Kuykendall did, in fact, investigate- each, of the statements made in her columns. Specifically, Kuykendall spoke to Whit Jones, the former editor of the Benton Courier; Bryan Bloom; Jeremy Hutchinson; Greenberg’s elderly constituent; Greenberg’s office landlord; a representative from The Northwest Arkansas Home Builders Association; Rita Looney, an attorney at the Arkansas Ethics Commission;. and various persons .listed as supporters, on Green-berg’s campaign material. Additionally, she requested documents to support the information she received, reviewed those documents, and conducted her own research.
Greenberg places much emphasis on Kuykendall’s discussion with Rita Looney as being evidence of actual malice. Kuyk-endall contacted Looney about what she believed “would appear to be a violation of Arkansas campaign ethics” because Green-berg was using the same address for his campaign and legislative offices. Looney executed an affidavit about | aher conversation with Kuykendall that was filed by Greenberg with his response to the motion for summary judgment. In her affidavit, she recalls her conversation with Kuyken-dall and her impression that Kuykendall had ■ concluded that Greenberg had committed an ethics violation irrespective of Looney’s explanation. A writer’s “perception, even though possibly mistaken, of a conversation which admittedly occurred must be protected.” Coody, 320 Ark. at 464, 896 S.W.2d at 902. Considering Looney’s ■ affidavit in the light most favorable to Greenberg in fact benefits appellees’ position because- it demonstrates that Kuykendall did investigate Greenberg’s alleged ethical violation and indicates that Kuykendall actually believed Greenberg committed an ethics violation.
The standard of proof in defamation cases involving public figures is high. Evidence of actual malice must be proved by clear and, convincing evidence, and, the mere presence of some circumstantial evidence is insufficient to- create a factual question. Coody is particularly instructive on the evidence sufficient to prove actual malice. 320 Ark. 455, 896 S.W.2d 897. In the Coody opinion, our supreme court acknowledged that hostility is circumstantial evidence of actual malice but held that the evidence in that case was insufficient to establish, malice with convincing clarity to reach a jury.
Here, the circumstantial evidence presented by Greenberg was insufficient to create a material question of. fact regarding whether Kuykendall made any statements with knowledge they were false or with .reckless disregard of whether they were false. Because the evidence could not support a reasonable jury’s finding that actual malice was shown by clear and convincing evidence, we agree with the circuit court that Greenberg’s defamation claim cannot survive.
ImlV. False, Defamatory Nature of Statements
Irrespective of whether there are facts to demonstrate that appellees had actual malice toward Greenberg, an “allegedly defamatory statement must also imply an assertion of an objective verifiable fact.” Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 956, 69 S.W.3d 393, 402 (2002). In cases with media defendants, statements on matters of public concern must be provable as false before there can be liability for defamation. Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). This “ensure[s] that the debate on public issues remains ‘uninhibited, robust, and wide-open.’” Id. at 20, 110 S.Ct. 2695. (citing New York Times Co. v. Sullivan, 376 U.S. at 270, 84 S.Ct. 710 (1964)).
Arkansas has set forth several factors that must be weighed in order to determine whether a statement may be viewed as implying an assertion of fact. Faulkner, 347 Ark. 941, 69 S.W.3d 393. These factors are (1) whether the author used figurative or hyperbolic language that would negate the impression that he or she was seriously asserting or implying a fact; (2) whether the general tenor of the publication negates this impression; and (3) whether the published assertion is susceptible of being proved true or false. Id. at 956, 69 S.W.3d at 402-03.
We begin our analysis by acknowledging that the general tenor of the publication negates the impression that facts are being asserted in any of the editorials. Each editorial appeared on the opinion page of the Benton Courier and included a disclaimer that “[a]ny opinions expressed in this column are hers alone and do not represent the opinions of the Courier.” Additionally, Kuykendall wrote in the First Editorial, “I would like to reiterate that these are all my opinions and NOT the opinions of the newspaper.”
InTurning our attention to the individual statements, there are two remarks directed toward Greenberg in the First Editorial. Kuykendall accused Greenberg of dishonest advertising when he included a quote from the Benton Courier that “you should appreciate having legislators like Dan Greenberg by your side.” Kuykendall perceived that Greenberg took the statement in the Benton Courier out of context to make it appear as though the newspaper endorsed him. Whether Greenberg’s advertisement was dishonest is not provably false. Greenberg admitted as much when he submitted to the appellees a proposed retraction commenting “whether a quote is taken out of context.is often a matter of opinion that people can reasonably disagree about....” Kuykendall also wrote that “basically, when someone questioned whether the nation’s health care system was broken because not everyone has access to health care, Greenberg’s response was something like: Of course everyone in America has access to health care; all they have to do is go to the emergency room.”' Kuykendall prefaced her statement by offering that this was not a direct quote by Greenberg but rather her understanding of what he had said. Her understanding of what Greenberg said is not objectively verifiable. Additionally, Kuykendall utilized hyperbolic language in her discussion of Greenberg’s alleged comments. She said Greenberg’s comments left her “so speechless” and “dumbfounded” that she “swore on the spot” that she would not support him. We hold that no statements in the First Editorial are defamatory.
Similarly, no statements in the Second Editorial qualify as defamatory. In the Second Editorial, Kuykendall praised Greenberg’s volunteerism, favorably discussed Greenberg’s revised television advertisement, and relayed a report from a disgruntled constituent who 112claimed Greenberg offered to have her mailbox moved and did not deliver on his promise. The first two statements were favorable to Greenberg, and Greenberg does not dispute that the exchange regarding the mailbox occurred.
The Third Editorial has four statements that require our consideration. First, Kuykendall discussed two election polls that allegedly showed Greenberg trailing Hutchinson. Greenberg does not give much credence to the results of the polls because they were unscientific. Nevertheless, he does not dispute that the results of these polls showed him trailing Hutchinson. Accordingly, this statement is not provably false. Second, Kuykendall wrote about Greenberg’s use of an inaccurate list of supporters on his campaign mailers. In Greenberg’s brief, he mentioned that “most if not all” of his supporters were listed correctly. That, in and of itself, is a virtual concession that this was not a provably false statement. Green-berg’s deposition testimony also indicates this was not false. Third, Kuykendall characterized one of Greenberg’s campaign mailers as “extraordinarily misleading” and “hatefully dishonest” because it accused Hutchinson of lobbying for new taxes. The evidence reflects that Kuykendall investigated whether Hutchinson had lobbied for new taxes and determined that he had not. Thus, there is evidence tending to show that this was a subjective determination and not provably false. Additionally, these statements included clear hyperbolic language. Therefore, none of these statements are defamatory.
The fourth and final statement that we must examine is Kuyken-dall’s remark that Greenberg’s use of the same office for legislative and campaign headquarters “appears to be a violation of Arkansas' campaign ethics.” -In oral argument, Greéhberg asserted that this [^statement serves as the crux' of his case. An ethics complaint was lodged by a citizen against Greenberg apparently as a result of this column. Greenberg was ultimately cleared of any wrongdoing. However, we must consider the statement in the context of whether the words “appears to be” made this statement incapable of being proved true or false. This distinction depends on whether Kuyken-dall gave an opinion rather than an assertion of fact. If an opinion implies an assertion of fact, it is a statement for purposes of a defamation claim. Milkovich, 497 U.S. at 19, 110 S.Ct. 2695. Here, we hold, that Kuykendall’s statement does not imply an assertion of fact. She set forth the facts that led to her conclusion that Greenberg had committed an ethics violation. Her conclusion is based on her subjective determination from the evidence before her, and her subjective determination is not provable as true or false.
With regard to the Fourth Editorial, Kuykendall makes no new statements about Greenberg, and accordingly, nothing in the Fourth Editorial is provable as false. Without any assertions of fact that are provably false, Greenberg’s claim for defamation cannot survive summary judgment.
V. Damages
Because we hold that the defamation claim cannot go forward, we need not ad dress whether there is a material question of fact regarding whether Greenberg was damaged by the editorials.
VI. Conclusion
There.is insufficient evidence to create a material question of fact with regard to whether appellees had actual malice toward Greenberg and whether the statements made in |14the editorials were false and defamatory. Accordingly, the circuit court’s order granting summary judgment in favor of appellees is affirmed.
Affirmed.
Gladwin and Glover, JJ., agree.
. Horizon Arkansas Publications, Inc., owns and publishes the Benton Courier, a Saline County newspaper. | [
28,
-20,
-7,
14,
-119,
-127,
82,
2,
122,
-125,
-25,
83,
-27,
-52,
5,
105,
-29,
43,
-43,
75,
-106,
-73,
101,
-26,
-30,
-101,
59,
67,
-77,
-53,
-4,
-3,
76,
26,
-53,
93,
7,
66,
15,
-40,
66,
10,
-85,
113,
88,
-64,
8,
47,
16,
79,
53,
-67,
-15,
44,
-78,
-29,
-116,
8,
-41,
53,
19,
-77,
88,
15,
79,
19,
1,
36,
-101,
-125,
118,
40,
-48,
48,
96,
-20,
115,
-90,
-126,
71,
95,
-71,
28,
96,
99,
101,
-104,
-27,
44,
40,
15,
-57,
13,
-91,
-126,
43,
74,
8,
-73,
-107,
124,
26,
3,
-6,
125,
68,
31,
44,
-128,
-90,
-44,
-95,
-122,
72,
20,
-22,
-25,
66,
0,
117,
-127,
-10,
117,
-57,
114,
63,
74,
-80
] |
JOHN DAN KEMP, Chief Justice
[!Appellants, City of North Little Rock; Mayor Joe Smith; Alderman Debi Ross; Alderman Beth White; Alderman Linda Robinson; Alderman Maurice Taylor; Alderman Steve Baxter; Alderman Bruce Foutch; Alderman Murry Witcher; and Alderman Charlie Hight (“the City”), in their official capacities, appeal an order of the Pulaski County Circuit Court granting a writ of mandamus filed by Eugene M. Pfeifer III and the Pfeifer Family Limited Partnership # 1 (“Pfeifer”). For reversal, the City challenges the subject-matter jurisdiction of the circuit court and contends that the circuit court abused its discretion in granting the writ of mandamus. We affirm the circuit court’s ruling as modified.
|2I. Facts
On May 12, 2015, Pfeifer petitioned the City to create Northshore Lane Multipurpose Municipal Improvement District No. 36 and claimed to be a majority owner in the assessed value of the property within the district. Pfeifer estimated his land’s value as $17,300 while the proposed district’s total assessed value was $28,990. Also, included in the proposed improvement district were two properties owned by the City. These two properties assessed for $530 and $8200. The City petitioned the Pulaski County Board of Equalization (“the Board”) to reassess the properties after Pfeifer’s petition had been filed. Subsequently, on June 22, 2015, the City held a public hearing on Pfeifer’s petition. At that time, the City did not vote on the petition or establish the district by ordinance.
On August 13, 2015, the City’s attorney appeared before the Board, explained the uses of its properties within the proposed district, and requested a reassessment. The Board then raised the assessed value of the City’s larger parcel from $530 to $82,850 and lowered the assessment of its smaller parcel from $8200 to $8196. Based on the Board’s updated calculations, the assessed value of the land within the district totaled $111,306 with the assessed value of the City’s land noted as $91,046. On November 23, 2015, the City’s attorney sent a letter to the mayor and the aider-men opining that Pfeifer’s petition did not contain the requisite signatures from a majority of owners, as required by law, and that the City was the majority owner of the land within the proposed improvement district. That same day, the city council met and voted seven to one against Pfeifer’s petition.
On October 15, 2015, before the city council’s vote, Pfeifer filed a complaint and petition for writ of mandamus requesting the circuit court to order the City to enact an | .^ordinance to establish the proposed improvement district. Pfeifer requested a hearing and submitted subpoenas for the mayor and the aldermen to appear. Pfeifer later amended his complaint to include an appeal of the city council’s decision. The City answered the original complaint, pleading affirmative defenses, and filed a motion to quash the subpoenas.
On December 10, 2015, the circuit court conducted a hearing on the matter and heard arguments from counsel. On December 23, 2015, the circuit court granted the petition for writ of mandamus and ordered the city council to make a finding that the petition was signed by a majority in assessed value of the property owners; establish the district by ordinance; designate the boundaries and object of the proposed improvement as described in the petition; provide a name and number for the district; publish notice of the ordinance as required by law; appoint commissioners; and take necessary steps to establish the district. The court also ruled that the writ of mandamus mooted the conditional appeal pleaded in Pfeifer’s amended complaint. The City then timely filed its notice of appeal.
II. Subject-Matter Jurisdiction
As an initial matter, the City raises several subject-matter-jurisdiction challenges to the circuit court’s grant of Pfeifer’s petition for writ of mandamus and order to compel the city council to establish the improvement district by ordinance. Specifically, the City contends that the circuit court lacked subject-matter jurisdiction because (1) it did not have the power to grant the relief requested; (2) a justiciable controversy did not exist, and the matter was moot; (3) Pfeifer failed to exhaust his administrative remedies; and (4) Pfeifer had an adequate remedy by appeal. The City asserts that because the circuit court lacked subject-matter jurisdiction, this court also lacks subject-matter jurisdiction to hear the instant |4appeal. If the circuit court lacked subject-matter jurisdiction, this court also lacks subject-matter jurisdiction. Barrows v. City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117; Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997).
In support of its position, the City cites Powell v. Bishop, 279 Ark. 365, 652 S.W.2d 9 (1983), for the proposition that mandamus is not a proper method to review a city’s decision on whether to create an improvement district. However, the City’s argument ignores the fact that mandamus is allowed pursuant to Arkansas statute. Arkansas Code Annotated section 14-88-101 (Repl. 1998) allows for mandamus in an improvement-district action. Section 14-88-101 states that “[a]ny duty required to be performed by this act may, at any time, be enforced by mandamus at the suit of any person or board interested in it.” In this instance, Pfeifer, in his amended complaint, sought mandamus and requested the circuit court to compel the City to follow the proper statutory scheme set forth in Arkansas Code Annotated section 14-88-207 (Repl. 1998). Thus, we conclude that, pursuant to section 14-88-101, the circuit court had subject-matter jurisdiction to hear Pfeifer’s petition for writ of mandamus.
III. Writ of Mandamus
Next, the City contends that the circuit court abused its discretion by issuing a writ of mandamus because the city council’s decision was legislative, Pfeifer did not show a clear and certain right to relief via mandamus, and Pfeifer had an adequate remedy by appeal.
This court has stated that the purpose of a writ of mandamus in a civil or a criminal case is to enforce an established right or to enforce the performance of a duty. Smith v. Fox, 358 Ark. 388, 193 S.W.3d 238 (2004). When requesting a writ of mandamus, a petitioner |Bmust show a clear and certain right to the relief sought and the absence of any other adequate remedy. Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004). The standard of review in granting or denying a petition for writ of mandamus is whether the circuit court abused its discretion. See Dobbins v. Democratic Party of Ark., 374 Ark. 496, 288 S.W.3d 639 (2008). A circuit court abuses its discretion when it makes a decision that is arbitrary or capricious. Ortho-McNeil-Janssen Pharms., Inc. v. State, 2014 Ark. 124, 432 S.W.3d 563.
With this precedent in mind, we turn to the applicable statute. Section 14-88-207, which concerns the findings of municipal governing bodies, states,
(a)(1) At the time named in the notice, the municipal governing body shall meet and hear all owners of real property within the proposed district who desire to be heard on the question as to whether a majority in assessed value of the property owners has signed the petition and shall make a finding as to whether the petition is signed by a majority in assessed value of the property owners.
(2)(A) The finding of the governing body shall be expressed in an ordinance.
(B)(i) If it finds that a majority has signed the petition, it shall then be the duty of the governing body, by the same ordinance, to establish the district.
(ii)(a) The ordinance shall designate the boundaries of the district and the object of the proposed improvement as described in the petition.
We review issues involving statutory interpretation de novo on appeal. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766. The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637. We construe statutes so that, if possible, every word is given meaning and effect. Dachs v. Hendrix, 2009 Ark. 542, 354 S.W.3d 95. 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. Simpson v. Cavalry SPV I, LLC, 2014 Ark. 363, 440 S.W.3d 335. When a statute is clear, it | fiis given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002).
Based on our de novo review of section 14-88-207, the statute plainly states that the municipal governing body “shall make a finding as to whether the petition is signed by a majority in assessed value of the property owners” and that finding “shall be expressed in an ordinance.” Ark. Code Ann. § 14-88-207(a)(1), (2)(A). The statute contains the word “shall,” which we have interpreted to mean that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurd result. See Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). Here, the city council failed to perform its duty in making the requisite findings pursuant to section 14-88-207. Thus, we hold that the circuit court did not abuse its discretion in granting Pfeifer’s petition for writ of mandamus. See Ark. Code Ann. § 14-88-101.
We note, however, that the circuit court also ordered the city council to perform seven tasks pursuant to the statutory scheme provided in section 14-88-207. Section 14-88-207(a)(2)(A) requires the City to pass an ordinance that makes specific findings, but here, the circuit court went too far by specifying the findings that the City was to make. While we affirm the circuit court’s grant of Pfeifer’s petition for writ of mandamus, we modify the circuit court’s order to provide that mandamus is granted here only to require the city council to make specific findings pursuant to section 14-88-207(a) and any other relevant statutes.
Affirmed as modified.
Hart, J., concurs in part; dissents in part. | [
116,
-19,
-12,
78,
-38,
64,
26,
-124,
67,
-117,
117,
119,
-91,
-117,
1,
29,
-29,
-7,
101,
105,
-61,
-78,
71,
98,
-78,
-77,
107,
87,
-72,
-19,
-11,
-124,
28,
85,
-22,
-35,
68,
-62,
-81,
92,
-122,
-121,
11,
-4,
89,
65,
62,
107,
18,
-113,
49,
-82,
-14,
44,
48,
-62,
104,
44,
89,
41,
88,
-13,
-72,
-115,
91,
22,
-127,
-26,
-104,
3,
98,
74,
-112,
49,
8,
-24,
115,
-74,
-122,
100,
45,
-103,
12,
32,
34,
17,
-115,
-41,
-80,
-120,
6,
-102,
-119,
-90,
-14,
25,
90,
67,
-106,
-97,
44,
6,
14,
126,
103,
-123,
93,
108,
-119,
-18,
-60,
-95,
-50,
104,
-124,
83,
-53,
15,
52,
101,
-51,
-26,
-1,
103,
49,
-53,
-122,
-79
] |
Per Curiam.
The Arkansas Public Service Commission (Commission) and Southwestern Bell Telephone Company (Southwestern Bell) filed a joint motion with this court to dismiss the Attorney General’s appeal of Order No. 4 of the Arkansas Public Service Commission. In Order No. 4, the Commission held that it was in the public interest to allow Southwestern Bell to offer Caller-ID service in the Arkadelphia and West Memphis areas for a one-year trial period. The Commission also ordered Southwestern Bell to take affirmative action prior to the expiration of the trial period to either continue or discontinue the Caller-ID service. The Attorney General appealed from this order, contending the Commission’s establishment of a one-year trial period for Caller-ID service was not supported by substantial evidence. Subsequent to the filing of the Attorney General’s appeal, the Commission by an order in another docket approved permanent Caller-ID service, and the one-year trial period expired. As a result of these occurrences, the Commission and Southwestern Bell have moved to dismiss the Attorney General’s appeal of Order No. 4, contending’ that his appeal is now moot. We agree.
The only action the Commission took in Order No. 4 was to establish a one-year trial period for Caller-ID service. That trial period has now expired, and therefore, any rulings this Court might make in regard to Order No. 4 would have no effect. It is the duty of the court to decide actual controversies by a judgment which can be carried into effect and not give opinions upon abstract propositions or declare principles of law which cannot affect the matter in issue. Netherton v. Baldor Electric Co., 232 Ark. 940, 942, 341 S.W.2d 57 (1960). An issue is moot when it has no legal effect on an existing controversy; Killam v. Texas Oil and Gas Corp., 303 Ark. 547, 556-57, 798 S.W.2d 419 (1990); it is one in which a decision of the court on appeal could not afford the appellant any relief. Dotson v. Ritchie, 211 Ark. 789, 795, 202 S.W.2d 603 (1947).
We also note that, in earlier pleadings filed in this appeal, the Attorney General stated that his appeal would be moot at the end of the trial period. A party litigant is bound by his own pleadings and cannot maintain a position inconsistent therewith. International Harvester Co. v. Burks Motor, Inc., 252 Ark. 816, 821, 481 S.W.2d 351 (1972).
Accordingly, the joint motion of the Commission and Southwestern Bell is granted, and the appeal of the Attorney General is dismissed. | [
80,
-24,
-12,
-100,
9,
96,
18,
54,
83,
-93,
-25,
83,
45,
-62,
-108,
123,
-13,
59,
81,
120,
-57,
-74,
103,
96,
90,
-13,
81,
-43,
-65,
95,
-25,
-66,
74,
48,
-54,
-43,
70,
76,
-53,
30,
-86,
3,
-101,
109,
120,
-119,
1,
62,
82,
-113,
53,
-51,
-31,
-83,
24,
-53,
-23,
44,
-37,
41,
-48,
-7,
-120,
-107,
-33,
6,
33,
37,
-102,
-121,
-8,
62,
0,
49,
8,
-88,
114,
-90,
2,
52,
75,
-7,
44,
98,
98,
0,
32,
-25,
-20,
-88,
22,
-97,
-107,
-90,
-112,
9,
75,
13,
-105,
-107,
110,
30,
3,
-2,
119,
-59,
19,
-20,
8,
-114,
-110,
-93,
119,
-29,
22,
11,
-21,
-29,
84,
117,
-50,
-16,
84,
71,
55,
27,
-58,
-44
] |
D. Franklin Arey, III, Judge.
The Workers’ Compensation Commission found that appellee Harry Highfill’s second foot injury was a compensable consequence of his initial work-related injury. Appellee sustained his second injury when he stepped on, or tripped over, a tree root while walking through a park; he was in the park attending a church activity. The appellant, Oak Grove Lumber Company, argues that the Commission’s decision is not supported by substantial evidence and is erroneous as a matter of law. We affirm.
On June 16, 1995, appellee dropped a sledgehammer on his right foot while working for appellant. Appellee saw a nurse practitioner, who determined that appellee sustained a nondisplaced fracture. She treated appellee and instructed him to wear protective boots when he returned to work. Appellee returned to work for a few days.
On June 22, 1995, appellee attended a church function in a city park. While walking through the park, appellee either stepped on or tripped over a tree root. In his words, “something happened” to his foot; the incident “bent my toes back and it just went ahead and broke.”
Appellee saw Dr. R. Cagle, who diagnosed an angular fracture of the second metatarsal with some dorsal displacement. Dr. Cagle referred appellee to Dr. Marion Hazzard, who performed an operation on appellee’s foot on June 28, 1995. On January 26, 1996, the plates were removed from his foot and he was released on February 12, 1996, to resume normal activities.
In a January 16, 1996 medical report, Dr. Hazzard stated that he believed that appellee’s displaced fracture was a direct result of his initial injury with the sledgehammer, as a fracture was reported after that incident. He stated that weakening of the bone secondary to the first trauma was a contributing factor to the subsequent displaced fracture. However, at his deposition, Dr. Hazzard testified that he was not saying that the displaced fracture was a natural consequence of the first fracture; he agreed that the second fracture did not follow as a natural progression in the course of events. Dr. Hazzard did believe that a previous fracture would certainly increase the probability of a displaced fracture occurring.
After reviewing Dr. Hazzard’s deposition, the Commission was persuaded that his acknowledgment regarding the “natural consequence” of appellee’s first fracture simply meant that appel-lee was not destined to sustain a major fracture owing to the presence of a minor one. Relying on Dr. Hazzard’s opinion of January 16, 1996, other testimony from his deposition, and the close temporal relationship between appellee’s two fractures, the Commission concluded that appellee’s accident would not have caused the displaced right foot fracture had it not been for the previous injury of June 16, 1995. Thus, the Commission concluded that it was unable to find that appellee’s injury of June 22, 1995, occurred as a result of an independent intervening cause.
Appellant argues that the Commission’s decision is erroneous as a matter of law. Relying on Arkansas Code Annotated section 11-9-102(5)(F)(iii) (Supp. 1997), appellant argues that appellee’s second injury was a nonwork-related independent intervening cause, thereby precluding the payment of benefits. That section provides:
Under this subdivision. . ., benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of the claimant.
Ark. Code Ann. § 11-9-102(5)(F)(iii). In effect, appellant argues that the Commission should have found appellee’s second injury to be a nonwork-related independent intervening cause as a matter of law.
Appellant’s argument ignores the Commission’s role as a fact finder. As a general matter, the determination of whether there is a causal connection between the injury and the disability is a question of fact for the Commission to determine. See Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986). Likewise, our prior decisions indicate that the determination of the existence of an independent intervening cause is a question of fact for the Commission to determine. See Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993); Lunsford v. Rich Mountain Elec. Coop., 38 Ark. App. 188, 832 S.W.2d 291 (1992)(reversing the Commission’s finding of the existence of an independent intervening cause for lack of substantial evidence). Thus, the question of whether appellee’s second injury was a nonwork-related independent intervening cause was not to be determined as a matter of law; rather, it was a question of fact for the Commission’s determination. Therefore, we reject appellant’s argument that the Commission erred as a matter of law.
Appellant also argues that the Commission’s opinion is not supported by substantial evidence. Appellant focuses on Dr. Haz-zard’s testimony that the displaced fracture was not a natural consequence of the first fracture. Appellant complains that the Commission gave its own interpretation of the doctor’s testimony, rather than giving the testimony its “plain and clear meaning.”
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Broadway, 41 Ark. App. at 113-14, 848 S.W.2d at 447. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even where a preponderance of the evidence might indicate a contrary result we will affirm if reasonable minds could reach the Commission’s conclusion. Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983).
It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988). The Commission has a duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Id. It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted; and when it does so, its findings have the force and effect of a jury verdict. Id.; see Johnson v. Democrat Printing & Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997).
While Dr. Hazzard did confirm that he was not saying that appellee’s displaced fracture was a “natural consequence” of his first fracture, other parts of his deposition testimony and his report of January 16, 1996, support the Commission’s determination. The Commission was certainly empowered to draw inferences from Dr. Hazzard’s testimony, and it did so. In this instance, the Commission’s decision is supported by substantial evidence.
Affirmed.
Neal, Meads, and Roaf, JJ., agree.
Griffen and Bird, JJ., dissent.
The dissent rests on Ark. Code Ann. § ll-9-102(5)(B)(ii) and (iii)(Supp. 1997). There is no indication in the Commission’s opinion that these subsections were argued to the Commission. Indeed, appellant’s argument was summarized in the opinion as follows:
Respondents now appeal from [the ALJ’s] opinion and order, contending that claimant’s June 22, 1995, foot injury is the result of an independent intervening cause and is not a compensable consequence of his work-related injury.
Because appellant failed to raise an argument based upon § 11-9-102(5)(B)(ii) and (iii) below, we decline to address it here. See Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). Even, if the Commission’s opinion could somehow be read to indicate that an argument based upon this statute was raised, the opinion contains no ruling concerning this statute. It was the appellant’s responsibility to obtain a ruling; a question not passed upon below presents no question for decision here. See W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996). | [
49,
104,
-7,
-116,
11,
97,
42,
58,
123,
-63,
55,
125,
-17,
-81,
13,
47,
-89,
125,
-64,
55,
-47,
-77,
87,
73,
-46,
-9,
123,
87,
-77,
111,
116,
-4,
79,
48,
10,
-43,
-26,
8,
-51,
94,
-62,
-124,
-101,
-59,
25,
64,
40,
46,
-48,
15,
49,
-113,
107,
10,
16,
-49,
105,
44,
74,
60,
-110,
-71,
-110,
13,
105,
3,
-93,
38,
30,
15,
-40,
26,
24,
49,
16,
-56,
114,
-74,
-62,
116,
43,
-87,
4,
67,
98,
33,
13,
101,
120,
-72,
63,
-98,
-99,
36,
-111,
40,
99,
3,
-105,
-75,
114,
68,
14,
124,
-10,
85,
95,
44,
3,
-126,
-42,
-79,
-33,
36,
-100,
-93,
-17,
-121,
19,
113,
-52,
-94,
92,
-124,
115,
-101,
-105,
-70
] |
JOHN Mauzy Pittman, Judge.
The appellant in this workers’ compensation case was employed by appellee as a plumber. Appellant’s work was very strenuous, including such activities as digging trenches, carrying 200-pound loads, and jumping into trenches while carrying 100-pound loads on his shoulder. He sustained a compensable ruptured disc in November 1992 when he fell from a ladder while attempting to shut off a sprinkler valve. He was treated surgically for a ruptured disc, improved dramatically, and returned to work six weeks later.
In July and August of 1993, approximately four months after he returned to work, appellant began experiencing back symptoms while carrying and laying pipe. The new symptoms differed from his original symptoms in that they were not localized on the right side of the body, but instead affected both sides. Appellant saw several physicians for a gradually increasing number of complaints, but all of the physicians save one concluded that he was not a candidate for additional surgery. The one physician who did recommend additional surgery, Dr. Ricca, ultimately performed additional surgery on appellant, performing a fusion at L4-5 and removing a recurrent herniated disc at that level. However, Dr. Ricca characterized his decision to do so as reluctant, and testified that the attempt to improve appellant’s condition by additional surgery was “heroic” and ultimately ineffective.
Appellant sought medical benefits for the repeat surgery and permanent total disability benefits. The Commission found that appellant’s worsened condition following his return to work resulted from a new injury sustained while carrying 100-to-200-pound pipe, that the additional surgery was not reasonably necessary for treatment of appellant’s compensable injury, and that appellant was not permanently and totally disabled. From that decision, comes this appeal.
For reversal, appellant contends that the Commission erred in finding that appellant sustained a new injury after July of 1993, in finding that the additional surgery was not reasonable and necessary medical treatment for his compensable injury, and in finding that appellant was not permanently and totally disabled. We affirm.
In determining the sufficiency of the evidence to support the findings of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Wal-Mart Stores, Inc. v. VanWagner, 63 Ark. App. 235, 977 S.W.2d 487 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Nelson v. Timberline International, Inc., 57 Ark. App. 34, 942 S.W.2d 260 (1997). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998).
Appellant first contends that the Commission erred in finding that he sustained a new back injury or aggravation after his initial surgery. In so finding, the Commission noted in its opinion that appellant encountered only minimal problems following his initial surgery and was able to return to work after only six weeks. The Commission also noted that, after performing strenuous physical labor in August 1993, appellant experienced pain even greater than the pain he had prior to surgery, and that this new pain was not limited to one leg, as had been the case following his original injury, but was felt in both legs. The evidence relied upon by the Commission is supported by the record, and on this record we cannot say that reasonable persons could not conclude that appellant sustained a new injury after July of 1993.
Appellant next contends that the Commission erred in finding that the additional surgery was not reasonable and necessary medical treatment for his compensable injuries. We do not agree. As the Commission noted, with the exception of Dr. Ricca, every physician who saw appellant was of the opinion that additional surgery was not indicated. Even Dr. Ricca characterized his decision to perform additional surgery as a reluctant one made after appellant implored him to do so. Dr. Ricca also testified that the attempt to improve appellant’s condition by additional surgery was “heroic” and ultimately ineffective, and stated that, in retrospect, the spinal fusion was not necessary because appellant did not have a condition that it would benefit. The Commission also noted that appellant stated that he did not benefit from the additional surgery. Postsurgical improvement is a proper consideration in determining whether the surgery was reasonable and necessary, see Linn Care Center v. Cannon, 74 Or. App. 707, 704 P.2d 539 (1985), and on this record, where even the surgeon who performed the procedure believed that it would not be effective and where no postsurgical improvement took place, the Commission did not err in finding that the additional surgery was not reasonably necessary for treatment of appellant’s compensable injuries.
Finally, appellant contends that the Commission erred in finding that he was not permanently and totally disabled. We do not agree. In reaching its decision on this issue, the Commission considered evidence that appellant’s first compensable injury and surgery resulted only in a ten-percent physical impairment rating; that appellant was only thirty-seven years old and was able to study for and obtain a plumbing license; and that, throughout the medical records, appellant was characterized as a malingerer with grossly exaggerated pain complaints, a characterization borne out by evidence that appellant was physically capable of climbing a ladder to the roof of his house to repair a satellite dish, and of initiating a fight in which he hit and kicked another man. We hold that the Commission did not err in finding that appellant was not permanently and totally disabled.
Affirmed.
Robbins, C.J., and Jennings, Bird, and Rogers, JJ., agree.
Hart, J., dissents. | [
112,
106,
-103,
-52,
26,
99,
58,
58,
97,
-89,
-27,
25,
-81,
87,
-103,
103,
-13,
125,
81,
53,
-11,
-77,
67,
-56,
-46,
-41,
59,
69,
-16,
111,
-12,
-11,
79,
56,
2,
-107,
-30,
8,
-59,
92,
-62,
6,
-101,
-18,
89,
0,
48,
62,
-48,
71,
49,
-42,
3,
46,
18,
-49,
40,
44,
107,
-68,
80,
-24,
-112,
13,
111,
21,
-95,
4,
28,
111,
-38,
30,
-102,
-80,
64,
-88,
18,
-10,
-126,
52,
107,
-69,
4,
99,
98,
35,
29,
-83,
104,
-8,
46,
-34,
-113,
-124,
-71,
24,
26,
35,
-108,
-67,
122,
28,
12,
124,
-4,
77,
31,
108,
-121,
-122,
-106,
-77,
-49,
52,
-100,
-93,
-1,
39,
-80,
117,
-50,
-78,
92,
6,
115,
-97,
62,
-102
] |
John P. STROUD, Jr., Judge.
In October 1998, appellant, John Slaughter, was tried by a jury and found guilty of the offense of domestic battery in the second degree, which at that time was a class D felony. During the sentencing phase of the trial, the jury returned a verdict that the trial court found unacceptable. Consequently, the trial court imposed its own sentence, which was four years in the Arkansas Department of Correction. We find that the trial court erred in doing so.
The verdict form that was originally submitted to the jury provided:
AMCI 2d 9305 — VP STAGE TWO: STANDARD VERDICT FORM — CLASS D FELONY
WE, THE JURY, HAVING FOUND JOHN WAYNE SLAUGHTER GUILTY OF DOMESTIC BATTERY IN THE SECOND DEGREE, FIX HIS SENTENCE AT:
(A) A TERM OF _ (NOT MORE THAN 6 YEARS) IN THE ARKANSAS DEPARTMENT OF CORRECTION; OR
(B) A FINE OF_(NOT EXCEEDING $10,000) DOLLARS; OR
(C) BOTH A TERM OF_(NOT MORE THAN 6 YEARS) IN THE ARKANSAS DEPARTMENT OF CORRECTION AND A FINE OF_ (NOT EXCEEDING $10,000) DOLLARS.
FOREPERSON
WE, THE JURY, FIND JOHN WAYNE SLAUGHTER NOT GUILTY.
FOREPERSON
Following its deliberation, the jury returned the verdict form with a zero, “0,” in three of the blanks for the sections marked (A), (B), and (C). The trial court returned the verdict form to the jury, explaining in part:
[Y]ou would only write in whatever blank that you are taking activity. You can give the defendant time in the Arkansas Department of Correction, anything from zero to six years; of course, zero, you are not doing anything. You don’t have to give him any time in the Department of Correction.
Or you can give him a fine. A fine can be from whatever amount you want to, and cannot exceed $10,000.
Or you can give him prison and a fine.
But you would only fill out A or B or C. You won’t fill out A, B, and C.
All right?
But, now, one of those, you need to do something that the law says for you to do. If you want zero, that means you leave it blank.
All right?
For instance, if you are going to give the person no jail time in A, then you just leave it blank. You don’t put the zero there.
If you are going to give him a fine, then you will put — write in the amount of money the fine is going to be.
Or if you are going to give him jail time and a fine, you would do C, where you’ve got those two blanks, to that. And only the blank that you are enforcing should be the one that is filled in, which will be A or B or C.
(Emphasis added.)
When the jury returned from its second deliberation, the original zeroes had been marked out, and the foreperson’s initials were placed nearby. In addition, in the blank space under section (A), which addressed the possibility of a prison term, another zero, “0,” had been inserted. In part, the colloquy between the trial court and the jury with respect to the revised verdict form was as follows:
The COURT: The Court has been tendered a form that has not been filled out. The primary form has not been filled out. There is no sentence on the form.
Does the jury misunderstand the instructions, or ... the jury
[No response.]
The Court: Is this the jury’s pleasure? Just what ...
[No response.]
The COURT: I don’t know. There is no sentence on this form that the Court can pronounce whatsoever, and you must fill in the form. One of the blanks has got to be filled in.
JUROR: There is one that’s filled in.
The Court: No. None of them that are filled out.
Jury Foreperson: Yes, they are.
The COURT: Well, I don’t see it. This is vanishing ink.
[No response.]
The COURT: All right. This is the pleasure of the jury? Is this the jury’s decision?
Jury Foreperson: No. Yes.
The COURT: This is the best the jury can do. Is that what the jury wants to do? That’s all I need to know.
Jury Foreperson: We have an alternative plan on there.
The Court: Didn’t ask you about any alternative. Asked you about a primary. And we need a primary form. And if this is what the jury wants to do ... is that what you want to do?
Jury Foreperson: Yes, sir.
The COURT: Very well. The Court then would find that the jury cannot sentence this defendant, and the Court will sentence the defendant.
The trial court then proceeded to sentence appellant to serve four years in the Arkansas Department of Correction.
Appellant raises the following two points of appeal: 1) the trial court erred in the trial proceeding when it took the case away from the jury and sentenced the defendant itself; and 2) the court erred when it found it was unable to consider the alternative sentence proposed by the jury. We agree.
The parties have not provided us with citation to any authority that is squarely on point with the facts of this case and the issue of whether a jury, after finding a defendant guilty of a felony, may impose a “sentence” of “zero” jail time. Nor has our research yielded any such authority. The circumstances of this case are unusual enough that it is doubtful they would arise very often. Our review of the pertinent statutory provisions, however, convinces us that the manner in which the jury completed the verdict form the second time was proper and that the trial court erred in taking the case from the jury and imposing its own sentence. We think it is abundantly clear that the jury, despite finding appellant guilty, did not want him to serve a term of imprisonment or to pay a fine.
Arkansas Code Annotated section 16-97-101 outlines generally the bifurcated sentencing procedures in felony cases. It provides in pertinent part:
The following procedure shall govern jury trials which include any felony charges:
(3) Following the introduction of additional evidence relevant to sentencing, if any, instruction on the law, and argument, the jury shall again retire and determine a sentence within the statutory range.
(Emphasis added.) Arkansas Code Annotated section 5-4-103 (Repl. 1997), provides further:
(a) If a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter.
(b) Except as provided by [designated statutes involving capital murder], the court shall fix punishment as authorized by this chapter in any case where:
(1) The defendant pleads guilty to an offense; or
(2) The defendant’s guilt is tried by the court; or
(3) The jury fails to agree on punishment; or
(4) The prosecution and the defense agree that the court
may fix punishment; or
(5) A jury sentence is found by the trial court or an appellate court to be in excess of the punishment authorized by law.
Moreover, Arkansas Code Annotated section 16-90-107(a) (1987) also designates instances in which the trial court is to take the sentencing function away from the jury, providing in pertinent part:
(a) When a jury finds a verdict of guilty and fails to agree on the punishment to be inflicted,or does not declare the punishment in its verdict, or if it assesses a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment and render judgment accordingly.
(Emphasis added.)
None of the designated instances in which the trial court is to impose the sentence fits squarely within the facts of this case. Four of the five exceptions listed in section 5-4-103(b) clearly do not apply. Appellant did not plead guilty, his guilt was not tried by the court, the prosecution and defense did not agree for the court to fix punishment, and the jury’s sentence did not exceed that authorized by law. Moreover, it is clear from the verdict form and the colloquy between the court and the jury that the jury was in agreement on the verdict form; the problem arises because the “punishment” they agreed upon was that appellant should receive “zero” punishment. The first exception listed in section 16-90-107(a), failure to agree on punishment, is covered by section 5-4-103(b)(3) and was just discussed. The remaining two exceptions are instances where the jury “does not declare the punishment in its verdict,” or “assesses a punishment not authorized by law.”
In short, the issue thus presented is whether the “zero” punishment imposed by the jury is authorized under our sentencing statutes. As mentioned previously, neither of the parties have provided us with authority on this issue under the circumstances presented by this case, and we have found none. We are not unmindful of the case of Higgins v. Higgins, 326 Ark. 1030, 936 S.W.2d 740 (1996). Under the circumstances of that case, the supreme court held that a sentence of zero years’ imprisonment and zero fine was not a legal sentence, and we agree because the offense charged was a Class B felony, having a sentencing range for imprisonment of not less than five nor more than twenty years. We find that Higgins is distinguishable from the instant case, which involves a Class D felony. Neither have the parties engaged in statutory construction of our sentencing statutes in an effort to clarify this precise issue. Our continued review of the statutes reveals that Arkansas Code Annotated section 5-4-401 (a)(5) (Repl. 1997), provides in pertinent part:
(a) A defendant convicted of a felony shall receive a determinate sentence according to the following limitations:
(5) for a Class D felony, the sentence shall not exceed six (6) years[.]
(Emphasis added.)
The American Heritage Dictionary of the English Language defines “determinate” as “1. Precisely limited or defined. 2. Settled; final. 3. Firm in purpose; resolute.” Black’s Law Dictionary (5th ed), defines “sentence” as “[t]he judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted. Judgment formally declaring to accused legal consequences of guilt which he has confessed or of which he has been convicted.” Moreover, Black’s defines “punishment” as “[a]ny fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him, or for his omission of a duty enjoined by law. A deprivation of property or some right. But does not include a civil penalty redounding to the benefit of an individual, such as a forfeiture of interest.” Finally, while the statute clearly defines the top limit for imprisonment on a Class D felony, six years, it does not set forth the lower limit.
In addition, Arkansas Code Annotated section 16-90-107 (1987), makes it clear that whether a sentence is imposed by the court or by the jury, it must fall within the range established by law. It cannot be less than the minimum nor greater than the maximum time provided by law:
(b) (1) Juries and courts shall have the power to assess the punishment of one convicted of a felony at a general sentence to the penitentiary. The sentence shall not he less than the minimum nor greater than the maximum time provided by law.
(d) If the jury in any case assesses a punishment, whether offne or imprisonment, below the limit prescribed by law for offenses of which the defendant is convicted, the court shall render judgment and pronounce sentence according to the lowest limit prescribed by law in such cases.
(e) The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in the opinion of the court, the conviction is proper and the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted, so that the punishment is not, in any case, reduced below the limit prescribed by law in such cases.
(Emphasis added.)
Again, the issue seems to boil down to whether “zero” is the lower limit of the sentencing range for a Class D felony. We find that it is. Otherwise, as argued by the appellant, if zero is not the minimum limit, what is? Would it be one day, one hour, one minute, one second? Class D felonies are the only classified felonies that do not have a specified lower limit for sentencing. For example, the sentence for a Class C felony “shall be not less than three (3) years nor more than ten (10) years.” Ark. Code Ann. § 5-4-401(a)(4) (Repl. 1997) (emphasis added). On appellate review, we strictly construe criminal statutes, resolving any doubts in favor of the defendant. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). Accordingly, we find that the verdict form submitted by the jury the second time was proper, and that the trial court erred in taking the case from the jury.
For his second point of appeal, appellant contends that the trial court erred when it found that it was unable to consider the alternative sentence proposed by the jury. We agree. The jury was instructed during the sentencing phase of the trial that it could recommend an alternative sentence. In addition to the primary verdict form discussed previously under appellant’s first point of appeal, the jury recommended an alternative sentence of “[a] term of eighteen months supervision by the Adult Probation Department of Jefferson County, Arkansas.”
As discussed with respect to the first point of appeal, the trial court considered the primary verdict form to be invalid, and concluded therefore that it was without authority to consider the alternate sentence proposed by the jury. Having concluded, as we have, that the primary verdict form was not invalid, the trial court was certainly authorized, although not obligated, to consider the recommended alternative sentence pursuant to Arkansas Code Annotated section 16-97-101(4), which provides:
(4) The court, in its discretion, may also instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify. The jury, in its discretion, may make a recommendation as to an alternative sentence. However, this recommendation shall not be binding on the court
(Emphasis added.)
In fight of the trial court’s imposition of a four-year term of imprisonment, we think it is clear that the court would have opted to impose the jury’s recommended alternative sentence of eighteen months’ probation, rather than the “zero” punishment submitted by the jury in the primary verdict form. Consequently, rather than remanding this case for sentencing, we elect to sentence appellant to the eighteen months’ probation recommended by the jury as an alternative sentence. We therefore reverse and remand this case to the trial court for entry of a judgment and commitment order that is consistent with this opinion.
Reversed and remanded.
Hart and Griffen, JJ., agree. | [
112,
-22,
-107,
-68,
41,
65,
24,
-104,
82,
-115,
-30,
115,
103,
-58,
5,
105,
99,
123,
84,
113,
-48,
-106,
55,
67,
-94,
-13,
-107,
85,
63,
107,
-84,
-12,
78,
112,
-22,
-43,
102,
66,
-29,
72,
-122,
34,
-117,
116,
114,
66,
44,
39,
70,
15,
49,
-113,
-86,
42,
26,
-56,
109,
108,
88,
41,
-56,
-109,
-38,
15,
-17,
18,
-77,
-90,
-98,
5,
122,
44,
-40,
61,
32,
-8,
115,
-106,
-126,
84,
109,
-117,
45,
100,
98,
32,
29,
-51,
-8,
-119,
55,
111,
-115,
-89,
-104,
121,
3,
14,
-98,
-65,
110,
-108,
62,
126,
103,
4,
93,
108,
65,
-114,
-112,
-109,
-19,
44,
-50,
-70,
-21,
39,
16,
117,
-52,
-94,
92,
71,
91,
27,
-113,
-66
] |
Judith ROGERS, Judge.
In this appeal from the Arkansas Workers’ Compensation Commission, appellant challenges the award of additional medical benefits to appellee. We affirm.
On February 28, 1994, appellee fell from a dump truck while in appellant’s employ and broke his hip. The accident also caused injury to his leg and back. Appellee had a history of back problems dating to 1985. He had undergone surgery to his back in 1993. Following a hearing that took place in December 1995 and in January 1996, the Commission determined that appellant had suffered a compensable injury to his hip and leg and a compensable aggravation of his preexisting back condition. The Commission awarded temporary total disability and authorized a neurological examination to determine whether the 1994 injury caused nerve damage to his left leg or foot. It awarded no further medical benefits.
In 1998, appellee again petitioned for additional medical benefits. In support of his claim, appellee introduced into evidence two notes from his treating physician, Dr. Philip Johnson, written in 1997, stating appellee was having recurring back symptoms related to his 1994 fall and was in need of pain management. Appellee also introduced the nerve-conduction study performed on April 24, 1997, which revealed peripheral neuropathy. The administrative law judge awarded additional medical benefits and the full Commission affirmed. This appeal follows.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 597 S.W.2d 360 (1979). The issue is not whether we might have rached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). Conflicts in the medical evidence are a question of fact for the Commission. Henson v. Club Prods., 22 Ark. App. 136, 736 S.W.2d 290 (1987).
Appellant raises two points on appeal. First, appellant argues that the Commission’s award of additional medical benefits is arbitrary and inconsistent with its own prior opinions, and that it is not supported by substantial evidence. Arkansas Code Annotated section 11-9-508 (Repl. 1996), states that employers.must provide all medical treatment that is reasonably necessary for the treatment of a compensable injury. What constitutes reasonable and necessary treatment under this statute is a question of fact for the Commission. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996) (citing Arkansas Dep’t of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994)); see also Morgan v. Desha County Tax Assessor’s Office, 45 Ark. App. 95, 871 S.W.2d 429 (1994). In 1996, the Commission agreed that objective evidence did not support continued treatment beyond the neurological testing on appellee’s foot. In the opinion that is the subject of this appeal, the Commission held that objective findings supported additional treatment in the form of pain management as recommended by Dr. Johnson. This does not necessarily demonstrate arbitrariness or inconsistency on the part of the Commission. The Commission correctly decreed that appellee may be entitled to benefits for a subsequent period of complications related to his compensable injury as long as the complications are distinguishable from those involved in the first hearing. See Cariker v. Ozark Opportunities, 65 Ark. App. 60, 987 S.W.2d 736 (1999). Appellee submitted to the Commission evidence of the 1997 neurological study and the opinions of Dr. Johnson supporting his claim that he needed additional medical treatment. The Commission did not arbitrarily reverse itself. Rather, it looked at the evidence before it and found evidence of nerve impingement in the nerve-conduction study and noted the opinion of the appellee’s primary physician that appellee needed further treatment for his compensable injury. This same evidence provides substantial evidence to support the opinion of the Commission.
Appellant argues further that the Commission made a mistake of fact when it interpreted the nerve-conduction study to indicate a finding of nerve impingement. Again, we find no error. The Commission considered the diagnosis by Dr. Miles following the nerve-conduction study. Dr. Miles positively diagnosed a peripheral neuropathy but stated that he was unable to test appellee’s back to his satisfaction because of appellee’s pain. After reviewing this report, the Commission characterized the results as evidence of nerve “impingement.” “Peripheral neuropathy” is defined by Health Central’s General Health Encyclopedia as “a general classification of disorders involving damage or destruction of nerves, not including the nerves of the brain or spinal cord.” The dissent argues that the Commission made a mistake of fact when the nerve-conduction study was used to indicate a finding of nerve impingement. We recognize that the interpretation of medical opinion is for the Commission. Stafford v. Arkmo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996). The interpretation given to medical evidence by the Commission has the weight and force of a jury verdict. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Although the Commission characterized Dr. Miles’ diagnosis of peripheral neuropathy as nerve “impingement,” we find no reversible error in the use of the term “impingement” as opposed to “damage” or “destruction.” This diagnosis, when combined with the opinion of Dr. Johnson that appellee was in need of pain management, was substantial evidence which supports the award of benefits.
For its second point on appeal, appellant argues that the Commission erred as a matter of law by shifting the burden of proof to the appellants to prove that the medical treatment requested by-appellee was not reasonable or necessary. The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). Here, the Commission undertook a lengthy discussion of the injury that the appellee sustained and why the evidence proved the treatment was reasonable and necessary. It noted that the reports of Drs. Miles and Johnson submitted by appellee supported his claim that he needed additional medical treatment and found that this treatment was reasonable and necessary. The Commission then noted that appellant had not rebutted this evidence. The Commission did not improperly place the burden of proof on appellant.
Affirmed.
Robbins, C.J., Griffen, Roaf, and Stroud, JJ., agree.
Pittman, J., dissents. | [
80,
107,
-47,
-100,
8,
-63,
58,
42,
67,
-83,
37,
81,
-89,
-44,
29,
111,
-30,
61,
-63,
37,
-41,
-77,
83,
75,
-54,
-41,
123,
-57,
-80,
107,
-12,
-108,
77,
48,
-54,
-107,
-26,
-56,
-49,
92,
-54,
-126,
-101,
-19,
121,
64,
56,
110,
-104,
87,
48,
-106,
-21,
46,
24,
-57,
45,
44,
75,
36,
81,
-72,
-118,
13,
-1,
18,
-93,
4,
26,
47,
90,
90,
-40,
48,
0,
-52,
50,
-74,
-126,
52,
123,
-71,
12,
96,
98,
33,
29,
-27,
120,
-72,
15,
-114,
29,
-92,
-70,
17,
91,
11,
-106,
-75,
106,
84,
12,
124,
-15,
77,
30,
108,
-113,
-114,
-108,
-79,
79,
41,
-100,
-93,
-25,
-85,
22,
117,
-52,
-30,
92,
71,
115,
-101,
-106,
-78
] |
HOWARD W. BRILL, Chief Justice
| ¶ Appellant William Gill appeals from the sentencing order of the White County Circuit Court reflecting his convictions for negligent homicide and inadequate insurance during an accident and his total sentence of six months in the county jail. On appeal, Gill contends that the circuit court erred in denying his motion to dismiss the negligent-homicide charge because the State failed to present sufficient evidence of criminal negligence. He also contends that the circuit court erred in denying his motion to dismiss the inadequate-insurance charge because the State did not present sufficient evidence that he failed to carry adequate insurance at the time of the accident. We affirm in part and reverse and dismiss in |p,part.
On March 19, 2012, Gill was driving on North Apple Street, in Beebe. The victim, Emmaly Holt, was driving on Highway 367 with no requirement to stop at the intersection of those two roads. In a statement given at the scene, Gill said that he “stopped at the stop sign on Apple,” and “looked both ways,” but “did not see any car coming.” Gill proceeded through the stop sign, and a collision occurred between his vehicle and Holt’s vehicle. Holt was pronounced dead at the scene of the collision. Blood testing determined that Gill-had- neither drugs nor alcohol in his system at the time of the collision; he was seventy-one years old at the time.
On October 28, 2013, the State filed a misdemeanor information, alleging that Gill had committed the offenses of negligent homicide and failure to maintain adequate liability insurance. The circuit court held a bench trial on January 22, 2014. At the conclusion of the State’s evidence and at the close of all evidence, Gill moved for dismissal of the charge of negligent homicide, arguing that the State had failed to present sufficient evidence that he had acted • negligeritly and .that he had caused Holt’s death. Gill also moved for dismissal on the charge of inadequate insurance, arguing that the State.had failed to meet its burden of proving that he did.not have insurance at the time of the accident. The circuit court found Gill guilty of both offenses and sentenced him to six months in the county jail and $2500 |.4n fines and court costs. Gill filed a timely notice of appeal.
A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is a challenge to the sufficiency of the evidence. See Russell v. State, 367 Ark. 557, 560, 242 S.W.3d 265, 267 (2006); Ark. R.Crim. P. 33.1 (2015). The test for determining sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict, E.g., Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id., 57 S.W.3d at 156. Circumstantial evidence may constitute substantial evidence to support a conviction. E.g., Wallace v. State, 2009 Ark. 90, at 6, 302 S.W.3d 580, 585. The longstanding rule in-the-use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused; Id., 302 S.W.3d at 585. On appeal, this court .views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. E.g., Stevenson v. State, 2013 Ark. 100, at 5, 426 S.W.3d 416, 420.
I. Negligent Homicide
Gill contends that the circuit court erred in denying his motion, to dismiss the negligent-homicide charge because the State failed to present sufficient evidence of criminal negligence. Trooper Andy Simpson of the Arkansas State Police testified that on March 29, 2012, at approximately 10:45 a.m., he was dispatched to a two-vehicle accident at the intersection of Highway 367 .and,. North Apple Street , in Beebe. . Simpson stated that, after ^arriving at the scene, he saw a pickup truck and a car off the east shoulder of the road. He also stated that -the vehicles were “impacted together” and that the pickup truck “was still up against the driver’s side door” of the car. According to Simpson, Holt, the driver of the car, was still in her vehicle, and.she was obviously deceased.
Simpson testified that there were stop signs on both sides of North Apple, that vehicles on Highway 367 had the right-of-way, and that the weather conditions, that day were clear and dry. Simpson also testified that he measured the distance between the stop sign on North Apple and the point of impact of the collision to be approximately forty-three feet. As part of his investigation, Simpson documented gouge marks in the concrete of the eastbound lane that established the point of impact. He. stated that, given the point of impact, it did not appear’ that Holt had attempted to veer or otherwise take evasive action when Gill’s truck went into her lane. Simpson testified that he made contact with Gill at the scene and that Gill gave a statement about the collision. In the statement, which Simpson read aloud at trial, Gill said that he.,stopped at the stop sign and looked both ways, but he “did not see” Holt’s vehicle. Gill was riot given a traffic citation by Simpson or any other police officer.
Trooper Ronald Laslo, qualified as an expert in accident reconstruction, testified that he investigated the collision and reached conclusions about the speed of the vehicles and their directions of travel. According to Laslo, at the point 'of impact, Gill’s truck was traveling at a minimum of ten miles per hour, and Holt's vehicle was traveling at a minimum of thirty-eight miles per hour. The vehicles collided in Holt’s lane, and there were no skid marks visible from either direction made by either vehicle.
URobert Burns, á deputy coroner with the White County Coroner’s Office, testified that he was called to the collision site where he pronounced Holt dead. ' Burns testified that, based upon his training as a deputy coroner, it was his opinion that the cause of Holt’s death was blunt trauma and lacerations to the left side of the body and head as a result of the collision;
A person commits negligent homicide if he or she negligeritly causes the death of another person. Ark.Code Ann. § 5-10-105(b)(1) (Repl. 2013). The criminal code states that a person is criminally negligent when the person “should [have] be[en] aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.” Ark.Code Ann. § 5-2-202(4)(A) (Repl. 2013). The criminal code further states that “[t]he risk must be of such a nature and degree that the actor’s failure to- perceive the risk involves a gross deviation from the standard of care that a' reasonable person would observe in the actor’s situation considering the nature and purpose of the actor’s conduct and the circumstances known to the actor.” Id. § 5-2-202(4)(B) (emphasis added).
The standard for crimirial culpability differs from' the- standard for civil liability. In a civil case, negligence is defined as the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, rinder circumstances similar to those shown by the evidence. E.g., Wallace v. Broyles, 331 Ark. 58, 67, 961 S.W.2d 712, 715 (1998); Scully v. Middleton, 295 Ark. 603, 604, 751 S.W.2d 5, 5 (1988). Something more than a failure to exercise reasonable care is required for criminal negligence. See Original Commentary to AricCode Ann. § 5-10-105 (Repl. 1995) (noting that proof of negligence sufficient to generate civil liability will not suffice to establish criminal liability under the negligent-homicide statute). In cases of criminally negligent conduct, “somethirig more” is the requirement that the negligence be a “gross deviation from the standard of care that a reasonable person would observe in the actor’s situation,” See Ark.Code Ann. § 5-2-202(4) (emphasis added).
In our cases affirming negligent-homicide convictions, we have found substantial evidence of a gross deviation from the standard of care. For example, in Utley v. State, 366 Ark. 514, 237 S.W.3d 27 (2006), this court affirmed a conviction for negligent homicide when the evidence showed that the defendant was driving a large commercial-garbage truck on a bridge and crossed the center line, struck a vehicle that swerved to get out of the truck’s path, remained in the wrong lane of traffic for approximately one hundred and fifty feet without braking or swerving, and then collided with a pickup truck on the bridge, killing the driver.
Similarly, in Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000), we held that there was substantial evidence to support convictions for three counts of negligent homicide arising from a head-on collision that occurred when the defendant passed a logging truck and collided with an oncoming vehicle. In that case, the defendant, a juvenile, testified that he had previously operated a vehicle on the same highway and was fairly familiar with the roads, as well as the double-yellow, no-passing lines; that it was raining as he was following behind |7the logging truck for a couple, of miles' and that he had his mind set on passing the truck; that, although he was unable to see because of the mist and spray coming from the back of the logging truck, he still attempted to pass it as he crossed double-yellow lines going up a hill; and that when he began to pass, the mist and spray cleared only when he was about, “one-third of the way up the truck,” which was when he first saw the vehicle coming from the opposite direction over the crest of the hill. We held that, based on those facts alone, the trial court did not err in denying the motion for directed verdict because the defendant’s driving grossly deviated from the standard of care that a reasonable person would have observed in the defendant’s situation.
Moreover, in Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978), this court affirmed a conviction for negligent homicide when the State presented evidence that the ■ defendant was driving seventy-six miles per hour on a state highway; refused to heed police officers’ pursuit of him; tried to negotiate a turn at a highway junction where another vehicle was stopped; and collided with the stopped vehicle, causing the death-of a passenger in that vehicle. In Baker v. State, 237 Ark. 862, 376 S.W.2d 673 (1964), we affirmed a conviction for negligent homicide when the evidence showed that the defendant was speeding in the opposite lane of traffic and had three drinks of whiskey that afternoon.
In the present case, there is no question that Gill’s failure to see Holt’s vehicle traveling on Highway 367 resulted in the fatal accident. That failure may well constitute civil negligence. Here, the State presented evidence of Gill’s statement, in which he said that he stopped at the stop,sign and looked both ways, but he “did not see” Holt’s vehicle.. There |swas no evidence that Gill was engaged in any criminally culpable risk-creating conduct; rather, the evidence established only that Gill inexplicably failed to see Holt’s vehicle when he pulled onto Highway 367. The evidence did not show that Gill was speeding, that he was driving erratically, that he was under-the influence of alcohol, that he was using a phone,, or that he was engaged in some similar conduct. The evidence falls short of the negligence found in Utley, Hunter, Lowe, and Baker, and does not support criminal negligence. It does not demonstrate “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation considering the nature and purpose of the actor’s conduct and the circumstances known to the actor.”
In our interpretation of the negligent-homicide statute, - we find pérsuasive the reasoning of the New York Court of Appeals in People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 253 (1990). In that case, the court construed New York’s criminally-negligent-homicide statute, which is substantially similar to Arkansas’s negligent-homicide statute. The Boutin court explained that
[c]riminally negligent homicide requires not only a failure to perceive a risk of death, |9but also some serious blameworthiness in the conduct that caused it. The risk involved must have been “substantial, and unjustifiable,” and the failure to perceive thát risk must have been a “gross deviation” from reasonable care.
In criminally negligent homicide, ... some culpablé risk creation is essential. Hence, unless a defendant has engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death, he has not committed the crime of criminally negligent homicide; his “nonperception” of a risk, even if death results, is not enough.
Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 254-55 (internal citations omitted) (emphasis added);’ sge also State v. Krovvidi, 274 Kan. 1059, 58 P.3d 687, 697 (2002) (holding that the defendant’s actions of running a red light,‘without more, did not as a matter of law meet the “material deviation” requirement required for conviction of vehicular homicide under the Kansas statute).
Gill’s failure to see Holt’s vehicle resulted in a tragic death, but that unexplained failure, without more, does not constitute criminally negligent homicide. Accordingly, we reverse and dismiss Gill’s conviction for negligent homicide.
II. Inadequate Insurance During, an Accident .
Gill contends that the circuit court erred in denying his motion to dismiss the charge of inadequate insurance during an accident because the State presented- insufficient proof that he did not have insurance coverage for his vehicle on March 29, 2012. Arkansas Code Annotated section 27-22-104 (Supp. 2013) provides, in pertinent part,
(a)(1) It is unlawful for a person to operate a motor vehicle within this state unless the motor vehicle and the person’s operation of the motor vehicle are each covered by:
(B)' An' insurance policy issued by an insurance company authorized to do business in this state.
| in(2)(A) Failure to present proof of insurance coverage at the time of a traffic stop or arrest or a failure of the Vehicle Insurance Database or proof of an insurance card issued under § 23-89-213 to show current insurance coverage at the time of the traffic stop creates a rebutta-ble presumption that the motor vehicle or the person’s operation of the motor vehicle is uninsured.
When the operator of. any motor vehicle is involved in a motor-vehicle accident in this state and the vehicle, or the operator while driving the vehicle, is found not to be adequately insured, as required by section 27-22-104(a)(l), the operator shall be deemed guilty of a Class A misdemeanor. Ark.Code Ann. § 27-22-105(a) (Supp. 2013)..
Troopér Simpson testified that Gill provided him with an insurance document at the scene. That document, marked as State’s Exhibit Number 10, was admitted into evidence. State’s Exhibit Number 10 reflected coverage from December 18, 2010, to June 18, 2011 — a time period prior to the collision — and did not reflect coverage on the day the collision occurred. Gill claims that, at trial, he provided proof of insurance on the pickup truck that he was driving at the time of the collision. The coverage period indicated on the document, which was admitted as Defendant’s Exhibit No. 7, was from December 16, 2011, through June • 15, 2012. . Stephanie May, a State Farm Insurance agent who handled Gill’s insurance account,- testified that Defendant’^ Exhibit- No. '7 was 'not proof of insurance; rather, it was a renewal certificate that was mérely an offer of insurance for the stated period of time. According to May, Gill accepted the renewal offer, to be paid on a-monthly basis. May testified that Gill’s automobile -insurance ceased to exist after February 16, 2012, for nonpayment of the premium. May testified that the policy had not been renewed by the date of the collision. No other proof of insurance was offered by Gill.
In We find no- merit in Gill’s argument that the circuit court had to resort to speculation or conjécture'tó'detérmine that he did not have adequate insurance coverage- for his vehicle on March 29, 2012. When Gill was asked to provide proof of insurance at the scene, he gave Trooper Simpson an insurance document showing that he was insured before the collision. Gill’s failure to present proof of insurance coverage at the time of the accident created a rebuttable presumption that his vehicle was uninsured. See Ark.Code Ann. § 27-22-104(a)(2)(A). At trial, Gill’s insurance agent, May, testified that Gill’s insurance was not in force at the time of the accident. Although Gill contends that the document admitted at trial as Defendant’s Exhibit No. 7 was proof of insurance, May testified that the document was a renewal offer for coverage beginning on December 16, 2011, and ending on June 15, 2012, not proof of insurance for that time period. She also testified that Gill’s insurance ceased to exist after February 16, 2012, because he did not pay the premium. In sum, Gill failed to rebut the presumption that his vehicle was uninsured at the time of the accident. Therefore, the circuit court did not err in denying Gill’s motion to dismiss the charge of inadequate insurance.
Affirmed in part; reversed and dismissed in part; court of appeals opinion vacated.
. Gill originally appealed to the court of appeals, which affirmed. See Gill v. State, 2015 Ark. App. 162, 457 S.W.3d 674. Gill then petitioned this court for review, and we granted the petition. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. E.g., Schneider v. State, 2015 Ark. 152, at 1, 459 S.W.3d 296, 297.
. Gill was sentenced to concurrent terms of six months for each offense.
. Negligent homicide is a Class A misdemean- or under subsection (b). See Ark.Code Ann. § 5-10-105(b)(2).
. In Boutin, the court stated that
[u]nder section 125.10 of the Penal Law, "[a] person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” As defined in section 15.05(4) of the Penal Law, "criminal negligence” with respect to a certain result is the ”fail[ure] to perceive a-substantial and unjustifiable risk that such result will occur.” Moreover, the "risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 254. | [
-112,
-22,
-12,
-98,
57,
32,
2,
26,
90,
-29,
101,
115,
-91,
-45,
1,
119,
-5,
125,
117,
40,
-25,
-77,
7,
-77,
-110,
-78,
107,
-57,
-80,
-54,
125,
-33,
78,
32,
-54,
85,
4,
74,
-91,
-40,
-50,
4,
-87,
-15,
91,
-102,
48,
123,
86,
7,
97,
-97,
-13,
42,
50,
-90,
109,
40,
91,
-67,
88,
-16,
-120,
23,
95,
16,
-79,
-90,
-104,
7,
88,
10,
-112,
-79,
8,
-4,
115,
-106,
-126,
-44,
107,
-103,
-116,
98,
103,
33,
53,
-51,
-91,
-120,
6,
46,
13,
-89,
-102,
57,
97,
9,
-105,
29,
124,
54,
7,
104,
111,
-42,
89,
108,
-127,
-49,
-80,
-111,
-52,
36,
-42,
123,
-41,
38,
52,
113,
-50,
-26,
84,
69,
125,
91,
83,
-74
] |
JOSEPHINE LINKER HART, Associate Justice ■
liDereck Pelletier appeals from a Faulkner County Circuit Court order denying his petition for postconviction relief. He filed the petition seeking relief from the sentence that he had received pursuant to a negotiated-;plea agreement. In the petition, he asserted various theories for relief, but at the circuit court hearing, he abandoned. all of the claims except his request for a writ of error coram nobis. On appeal, he argues that the circuit court erred when it failed to grant his petition for the writ. We affirm the circuit court.
Pelletier was charged .with thirty counts of distributing,, possessing, or viewing matter- depicting sexually explicit conduct in-, vólving a child, first offense, a violation of Arkansas Code Annotated section. 5-27-602 (Repl. 2013). The charges stemmed from his on-line sharing .of thirty pornographic images involving children. The recipient was Shannon Cook, an investigator with the Faulkner County. Sheriffs, Department. He pled guilty .to all charges in exchange for a sentence of ten years on each of the charges, with six of the charges set. to run consecutively and the .balance of the charges set to run concurrently. Ef-fectivel.y, | aPelletier ■ received a sixty-year sentence in the Arkansas Department of Corrections - The sentencing order- was filed on June 26, 2013. Pelletier did not petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure within the time specified by the rule. - - •
On June 20, 2014, Pelletier filed a pro se petition for writ of error corana nobis and other relief. He subsequently retained counsel. Pelletier’s final petition stated that he had been illegally sentenced for thirty crimes because he had sent only a single computer file, which made his conduct “one (1) crime, one (1) sequence of events, one (1) impulse that was uninterrupted, one (1) episode, on one (1) screen, at one (1) and only one (1) time.” After an October 29, 2014 hearing at which he was represented by counsel, the circuit court denied his. petition. The circuit court found that the relief Pelletier was seeking was more in the nature of Rule 37 relief, which was untimely; that Arkansas Code Annotated section 5-27-602 did not prohibit each photograph supporting a separate charge; and that Pelletier was not coerced into accepting the plea réeommen-dation.
On appeal, Pelletier argues that the circuit court erred in denying his petition. He reminds us that 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 circuit court and which, through nonnegligence or fault of the defendant, was not brought forward before rendition of the judgment. Citing Riley v. State, 2015 Ark. 232, 2015 WL 2452524 (per curiam), he acknowledges that a writ of error coram nobis is an extraordinarily rare remedy, available'to address certain errors that are found in one of four categories: insanity at the' time of trial, |aa coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to’ the crime during the time between conviction and appeal. Pel-letier nonetheless asserts that -a writ of error coram nobis is the appropriate remedy in this case because his guilty plea was “coerced” and “illegal.” He contends that the judge, the prosecutor, and his -own counsel led him- to believe that he had committed thirty separate offenses, which he argues was false. Pelletier argues that under Arkansas. Code Annotated section 5-l-110(a)(5) (Repl. 2013), he could not have been convicted of more than one offense because his sharing of the file was one continuous course of conduct. The statute states,
(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. However, the defendant may.not be convicted of more than one (1) offense if:
(5) The conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of'conduct was uninterrupted, unless the law provides that a specific period of the course of conduct constitutes a separate offense,
Id. He contends that he pled guilty because he relied on the “misconception” of his trial counsel and the prosecutor that the sentencing offer was a “good deal” and because the judge, the prosecutor, and his own counsel were “unaware” of section 5-l-110(a)(5).
Error coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. We review decisions of the circuit court granting or denying a writ of error coram nobis under an abuse-of-discretion standard. State v. Tejeda-Acosta, 2013 Ark. 217, 427 S.W.3d 673. An abuse-of-discretion lies when the circuit court’s decision is rendered improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004).
14We believe that the case before us is squarely controlled by our recent decision in Nelson v. State. In Nelson, this court affirmed the circuit court’s denial' of a writ of error coram nobis. As in Nelson, Pellet tier does not claim that he was innocent or that his plea was coerced “as a result -of fear, duress, or threats of mob violence.” Id. at 4. Further, like the appellant in Nelson, Pelletier does not'assert that he was subjected to any type of mistreatment or forced to go before the court and enter his plea. Id. The Nelson court held that the mere pressure to plead guilty, occasioned by the fear of a more severe sentence, is not coercion.' Id. The acts described by Pelletier as “misconception” on the part of his counsel, the prosecutor, and the trial judge do not constitute the type of coercion required for coram nobis relief.
We likewise find that Pelletier’s argument concerning the dictates of section 5-l-110(a)(5) does not entitle him to a writ of error coram nobis. Section 5-1-110 is Arkansas’s double-jeopardy statute. Double-jeopardy claims do not fall within any of the four .categories of recognized claims. Watts v. State, 2013 Ark. 485, 2013 WL 6157325 (per curiam).
'Finally, to the extent that Pelletier argues that his decision to plead guilty was occasioned by an erroneous interpretation of law by his trial counsel, that complaint sounds under. Rule.37.1. of the Arkansas Rules of Criminal Procedure. As noted previously, he did not timely file a petition under Rule 37.1. Coram nobis proceedings are not a substitute for proceeding under Rule 37.1. Nelson, supra. We are mindful that the federal courts treat petitions for writs of error coram nobis differently than we treat such petitions in state court. Nonetheless, we decline Pelletier’s invitation to overrule our cases and expand our coram | ¿nobis jurisprudence to include ineffective-assistance-of-eounsel claims.-
Affirmed. | [
48,
-24,
110,
60,
10,
-63,
26,
44,
82,
-45,
-29,
83,
-89,
-44,
0,
123,
-29,
127,
-43,
121,
-41,
-74,
53,
96,
-46,
-13,
19,
87,
-71,
107,
-92,
-36,
90,
112,
-50,
-47,
70,
-56,
-49,
92,
-114,
1,
-117,
-19,
88,
79,
56,
35,
26,
15,
49,
-66,
-13,
42,
20,
-53,
77,
44,
89,
-67,
90,
-79,
-38,
13,
-69,
20,
-95,
52,
-103,
2,
120,
62,
-104,
49,
0,
-24,
115,
-106,
-126,
116,
75,
25,
-84,
96,
98,
37,
77,
-57,
-88,
-24,
14,
-66,
-99,
38,
-40,
1,
75,
109,
-90,
-107,
116,
-44,
13,
120,
115,
-27,
117,
108,
-113,
-50,
-124,
-93,
-98,
105,
-36,
35,
-21,
4,
48,
53,
-51,
-10,
-16,
-41,
57,
-37,
-118,
-77
] |
BART F. VIRDEN, Judge
hA Drew County jury convicted appellant John Douglas Flemister of twelve counts of theft of property, for which he was placed on twelve years’ probation and was ordered to pay $23,400 in restitution. Appellant argues on appeal that the trial court erred in denying his motions for a directed verdict. We affirm his convictions.
I. Theft of Property
The relevant subsection .of the theft statute on which appellant was tried provides that a person commits theft of property if he knowingly obtains the property of another person by deception with the purpose of depriving the owner of .the property. Ark.Code Ann. § 5 — 36—103(a)(2) (Repl. 2013). “Deception” means, among other things, (i) creating or reinforcing a false impression of fact, law, value, or intention or other state of mind that the actor does not believe to be true, (ii) preventing another person from acquiring information that would affect his or her judgment of a transaction, ... or (v) employing any other scheme 12to defraud. Ark.Code Ann. § 5-36-101(4)(A). “As to a person’s, intention to perform a promise, ‘deception’ shall not be inferred solely from the fact that the person did hot subsequently perform the promise.” Ark.Code Ann. § 5-36-101(4)(B). A person acts knowingly with respect to (A) the person’s conduct or the attendant circumstances when he is aware that his conduct is of that nature or that the attendant circumstances exist, or (B) a result of the person’s conduct when he is aware that it is practicálly certain that his conduct will cause the result. Ark,Code Ann. § 5-2-202(2). A person acts purposely with respect to his conduct or a result of his conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1).
II. Trial Testimony
The evidence shows that appellant was a partner with his uncle, Larry Flemister, in F & F Custom Boats, LLC, which was started in 1978 by appellant’s father,- Bobby Jack Flemister. Bobby Jack retired in 2012 due to health reasons, and appellant took over his father’s unfilled orders for boats. Also, in January 2013, Larry began caring for his son, who was diagnosed with cancer and died in late November 2013. During that time, Larry did not take any orders for boats. Larry described F & F Custom Boats as having been “a one-man operation” until his return in early 2014.
According to Larry, the person who took an order was responsible for getting that boat built. Larry testified that he and appellant each had a crew of two men and that they often helped each other in building the boats. Appellant stated that, although Larry‘did not take any orders, he was still working on boats. The record, however, is not clear whether |sLarry’s crew continued to work in his absence. Bobby Jack testified, “[W]e didn’t have no whole bunch of labor to , help us.” He further testified to times when “three or four of [the laborers] laid out.” Larry acknowledged that there is only one man currently helping them build boats.
Bobby Jack testified that, depending on materials and labor, á boat could be built in thirty to forty-five days. ' Larry stated that; depending on the type of boat and its size, a boat could be built anywhere from two to eight weeks. According to appellant, depending on the size, some boats could be built in four or five days, while others could take from four to five weeks. In explaining why it could take a year or longer to build a boat, appellant said that having other-boats to build first would slow down the construction process. Yet, appellant claimed that, when taking boat orders, he “had no idea of the problems we were going to face” in producing the boats.
Larry testified that appellant controlled the money. According to Larry, appellant used boat deposits to buy cashier’s checks to pay for materials, and labor and utilities were paid from final payments on finished boats. Appellant stated, howeyer, that he sometimes paid for labor using the boat deposits. Larry admitted that, aside from the invoices, no financial records were kept for F & F Custom Boats because “as fast as [the money] comes in[,] it’s gone.” Larry conceded that it was possible that one customer’s deposit actually helped pay for another person’s boat, which he likened to “robbing from Peter to pay Paul.”
Harry Gray testified that he ordered a boat from appellant on March 4, 2013, paid a $2,000 deposit, and was told that it would be finished in about six weeks. When the boat was |,(Supposed to be finished, Gray called appellant repeatedly almost every day for two months. On one occasion, someone answered the phone, and Gray was told that appellant would call back in a few minutes. Gray did not receive that return call. On September 17, 2013, Gray sent appellant a registered letter explaining that he desperately needed the boat for personal reasons and implored appellant to contact him. Gray heard nothing, although he had a receipt showing that the letter had been received by appellant.- On November 5, 2013, Gray sent another registered letter requesting the return of his deposit. Gray, however, heard nothing from appellant.
James Langley ordered á boat from appellant on May 24, 2013, and paid him a $2,000 deposit. Langley was told that his boat would be finished in six weeks. After approximately twelve weeks with no word from appellant, Langley contacted appellant by phone and was told that his boat would be done in another two weeks. Two weeks passed, and, because Langley could not reach appellant by phone, he drove to appellant’s business. Langley’s boat was not even in the process of being built. Appellant explained that he was running behind but that the boat would be built after a few more weeks. When the boat had not. been built within the latest-given time frame, Langley confronted appellant again at his business and asked for his deposit back. Appellant told him that he had already ordered the metal for Langley’s boat, so Langley asked for a definite date on which the boat would be finished. Appellant gave him the date of November 8, 2014; however, the boat was not finished on that date. Langley bought a boat elsewhere and only wanted his money back from appellant. Langley agreed to accept a check for $1,800, instead of $2,000, but the check was retúrned |fifor insufficient funds.
Jason Wiegman testified that he ordered a boat from appellant in May 2013, paid a $2,000 deposit, and was told that the boat would be finished in eight weeks. Two weeks after the anticipated completion date, Wiegman attempted to contact appellant. When he finally reached him using someone else’s phone, appellant explained the delay, saying that there had been a family illness. Weeks passed, and Wieg-man heard nothing. Wiegman contacted appellant, again using someone el'se’s phone, and appellant claimed that the delay was because a press had broken. Wiegman subsequently called appellant’s phone, which disconnected after ringing so many times. Again using someone else’s phone, Wiegman reached appellant, who said that he needed a few more weeks to finish the boat. Wiegman did not hear from appellant, and in June or July 2014, he stopped by appellant’s business' and asked for the return of his deposit. Appellant claimed that he had just ordered the material and promised that the boat would be ready in two weeks. Wiegman said that he just wanted his money back and that appellant had told him that he did not have the money to repay him.
Robert Doles ordered a boat from appellant on June 2, 2013, and paid a $1,600 deposit. He said that appellant initially did not give him a date by which the boat would be built. After three months had passed, Doles heard others speaking about appellant’s business, got worried, and tried to contact appellant. Doles stated that appellant’s phone had been disconnected but that he continued to attempt to contact him. After appellant’s phone had been reconnected, Doles still could not reach appellant. Another month passed, and Doles drove two and one-half hours to see appellant at his business. Appellant said that he had | (¡“people down in his family.” When Doles said that he still wanted the boat, appellant said that it would take three days to get it built and that he would call Doles. Three months passed, and Doles heard nothing. When Doles finally reached someone at appellant’s business, he was told that appellant had gone to the post office and would call as soon as he returned. Doles did not hear from appellant. Doles began calling appellant every ten minutes for two hours, and appellant finally picked up the phone and said, “You want your boat, don’t you?” Appellant said 'that the boat would be built within two weeks. After three wéeks had passed, Doles repeatedly called appellant who finally answered the phone and said that he needed three more days. Doles never spoke with appellant again.
Darren Graham testified that he ordered a boat from appellant in September 2013 and paid a $2,000 deposit. Graham told appellant that he wanted the boat before duck season, which is the third weekend in November. Appellant said that he would have it done long before that time. Graham began calling appellant just before the start of duck season. Appellant told him that he was still working on it and sent him a picture that purported to be Graham’s boat. After duck season was over, Graham asked for his deposit back.
Brandon Snow ordered a boat from appellant on January 28, 2014, paid a $3,000 deposit, and was told that the boat would be completed in four to six weeks.' After six weeks had passed, Snow said- that “it became harder" to get in touch with [appellant].” Snow said that he called appellant every day and- sent him text messages asking why appellant would not respond. Finally, in June 2014, appellant sent Snow a picture that purported to be Snow’s boat in the process of being built. When Snow went to appellant’s business in mid-July 2014, |7he discovered that appellant had not started building his boat. Appellant said that he would start building it that Monday and. that it would be ready on .the following Friday.. Snow did not hear from appellant again.
Michael Williams ordered a boat from appellant on February 7, 2014, paid a $2,500 deposit, and was told that the boat would be done in six to eight weeks. After six weeks had passed, appellant said that the boat would be finished in two more weeks. Williams finally reached appellant in June 2014, and appellant said that he had been dealing with some medical issues related to his father. Appellant told Williams to call back the following Wednesday. They agreed on July 14, 2014, as the completion date for Williams’s boat. On that date, appellant said that he needed another week to; finish. After that, Williams ■ told appellant that he could not take any more days off at work.and that he just wanted his money back. Williams did not hear from appellant again.
■ Deon Roop ordered a boat from appellant on January 24, 2014, and paid a $2,500 deposit. Appellant told' Roop that if he sent the money the following day, he would give him free seats and said that he could order the metal right away for Roop’s boat, which he said would be built in- eight weeks. In February, Roop took a motor and trailer to appellant’s business in preparation; for the completion of the boat. Roop attempted to contact appellant multiple times but could not reach appellant. Roop tried calling from a different telephone number, and appellant answered and said that the boat would be ready the following week. In late June 2014, Roop went to appellant’s business and was told that appellant, who was not there, had “legal issues.” Roop later told appellant that he wanted either the boat, the | smetal, or the money, and appellant said that the boat would be done in two weeks. During that time, Roop asked for a picture of his boat. Roop testified that appellant sent a picture of a hull, but that it was too small and not the tunnel hull he had ordered. Appellant did not contact Roop again.
Mary McMahan and her husband Samuel ordered a boat from appellant in January 2014. In early February, they went to appellant’s business and were told that the sooner they paid their $1,500 deposit, the sooner appellant could order the metal and start building the boat. The McMahans were told that the boat would be built in six to eight weeks. After six weeks, the McMahans contacted appellant and were told that he needed two more weeks. Each time they called, appellant would extend the completion date by another two weeks. Appellant was supposed to call them in late May 2014, but they did not hear from him. Mary said that she started calling appellant “every fifteen or twenty minutes and called about forty times.” Appellant did not answer the phone. In June 2014, the McMahans went to appellant’s business and were told that the boat would be ready in one more week. In July 2014, the McMahans asked for their money back. Mary testified that, although appellant agreed to refund their deposit, he did not.
Todd Wisecarver testified that he ordered a boat from appellant on January 6, 2014, paid a $3,300 deposit, and was told that the boat would be ready in three months. Wisecarver built a trailer and took it to appellant’s business. After four months had passed since the boat had been ordered, Wisecarver attempted unsuccessfully to contact appellant. Wise-carver showed up at appellant’s business and was told that the construction on his boat would begin [flthe following week. In late August, Wisecarver went to .the prosecuting attorney about the matter. Wise-carver also contacted appellant’s attorney, who was told by appellant that he would start building the boat that Thursday. In October 2014, Wisecarver asked for his money back but. did not hear from appellant.
“Bo” Echols, a customer of F & F Custom Boats for twenty-five years, ordered what would have been his fifth boat from appellant on April 11, 2014. He paid a $3,000 deposit and was told that the boat would be done in four to six weeks. Echols began calling appellant after six weeks but did not reach him until he called from a different phone. Appellant told him that he was running behind and that there were a couple of boats ahead of his to be built. Echols “tried endlessly to get a hold of [appellant].” He called appellant’s office number, but it had been disconnected; he called appellant’s cell phone, but the voice mail had not been set up; and appellant would not respond to text messages. When Echols reached appellant in' late September 2014, he said to appellant, “You’re going to stick me, aren’t you?” which appellant denied. In October 2014, Echols reached appellant when he tried calling from a different phone and told him that he needed the boat before duck season. Appellant said that the boat would be finished in two weeks. In November 2014, Echols’s attorney sent appellant a letter requesting the return of Echols’s deposit. There was no response from appellant.
Jimmy D. Howell ordered a boat from appellant on June 11, 2014, paid a $2,000 deposit, and was told that the boat would be ready in “a month or so.” Howell began calling appellant every day in August. He did not reach appellant until he called from a number with |ina Florida area code. Appellant said that the metal for Howell’s boat had not yet come in and that it would be a few more weeks before he could finish the boat. In late September 2014, Howell drove to appellant’s business. Appellant said that, although the hull was in, the boat would not be finished for another two weeks. When Howell visited appellant at his business a second time, appellant claimed, contrary to his earlier statement, that the hull was not in yet. When the boat had not been completed by October 13, 2014, Howell asked appellant to return his deposit.
Investigator Larry McMahen with the Arkansas State Police testified that he was assigned to appellant’s case in November 2013 and received information from multiple victims. He stated that in December 2013 he went to F & F Custom Boats and spoke with appellant about his dissatisfied customers. According to McMahen, additional victims came forward after that interview. Also, Tim Nichols with the Drew County Sheriffs Office testified that he began getting complaints regarding F & F Custom Boats in 2012 and that he contacted appellant about those complaints. Nichols stated that, even after charges- had been filed against appellant in April 2014, he continued to receive complaints about the business.
Appellant testified that F & F Custom Boats had produced seventy-nine boats in 2013 and fifty-one boats in 2014. According to appellant, the other boats would have been built if charges had not been filed against him and if his victims had not canceled their orders. Appellant insisted that he had never failed to build a boat or to return a customer’s deposit but conceded that he might not have done so in the expected time frame.
111 III. Standard of Review
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Durham, v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). When a challenge is made to the sufficiency of the evidence on appeal, we will affirm the conviction if there is substantial evidence to support it. McClellan v. State, 2014 Ark. App. 725, 452 S.W.3d 116. In examining the evidence, we view it in the light most favorable to the State and consider only that evidence supporting the verdict. Id. Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228 (1988).
IV. Argument
Appellant argues that, due to family circumstances, F & F Custom Boats’ cash-flow problems became insurmountable, resulting in his becoming indebted for the amounts of deposits placed on canceled boat orders. He says, however, “a financial inability to refund money paid down on a subsequently cancelled contract is a debt; it is not a withholding of property and does not fit the definition of ‘deprive’ in ACA § 5-36-101(4).” . Appellant. also | ^states in his brief that “in an effort to keep up with the demand for his high quality craftsmanship, the Appellant — who by no means was a businessman — simply became far overbooked and could not fulfill his commitments. That does not constitute deception.” He asserts that there was no evidence that he intended to keep a deposit without building a boat and, however careless or reckless he may have been, it was not his conscious object to keep the money without building a boat. He states that “one of the primary causes behind [his] criminal prosecution ... was his failure to properly communicate with his customers- ... and his seemingly dishonest and ■ deceptive conduct in his attempts to pacify them by having them believe their boat was under construction when it actually wasn’t.” He argues that no property was obtained by that deception. Appellant asserts that property (a deposit on a.boat to be built in the future) cannot be obtained by subsequent deceptive practices and that misrepresentations relating solely to the future are insufficient to support his convictions. Appellant maintains that there was no evidence that his customers “either paid their deposits because they were told the boat would be finished and delivered within the promised time frame or that the deposit for materials needed for the boat ordered would'not be used to pay overhead and materials on other boats on order.”
V. Discussion
A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from- the circumstances of the crime, and because intent cannot be proved by direct evidence, the jurors are allowed to draw on their common knowledge and experience to infer it from the circumstances. ■Davis v. State, 2009 Ark. 478, 348 S.W.3d 553. Because of the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts. Id. The trier of fact is not required to believe the testimony of a criminal defendant, who is the person most interested in the outcome of the proceeding. Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). In Kerhy v. State, 233 Ark. 8, 342 S.W.2d 412 (1961), our supreme court, in affirming the appellant’s conviction for obtaining money by false pretenses in the sale of corporate stock, noted that misrepresentations about matters relating solely to the future, e.g., a statement.that the stock would increase in value within a year, were relevant because the evidence assisted the jury in understanding all the circumstances. The supreme court found sufficient evidence of misrepresentations about existing facts to support his conviction but, quoting Baker v. State, 4 Ark. 56, 62 (1842), wrote, “All the authorities concur, that the intention and design of the party are best explained by a complete view of every part of his conduct at the time, and not merely from the proof of a single and isolated act or declaration.”
Appellant relies on three cases for the proposition that deception cannot be inferred solely from the fact that a person did not subsequently perform a promise, which he maintains is the sole fact here. In Wiley v. State, 268 Ark. 552, 594 S.W.2d 57 (1980), the appellant told the owner of a lumber company that he wished to buy lumber and materials on credit to build a house on land willed to him by his grandfather. When the lumber company did not receive payment as promised, the owner went to the land the appellant had referenced on the credit application and saw no construction underway and,no materials on 114site. Our supreme court held that there was insufficient evidence to support a theft-by-deception conviction because deception could not be inferred from the appellant’s mere failure to perform a promise, which was to build a house. Moreover, the court pointed out that there was no evidence that the appellant made any false or deceptive representations. In Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (1979), the appellant withdrew funds from an escrow account to discharge liens and then converted the money to his own use. The conviction for theft by deception was reversed by our ■ supreme court because the trial court had improperly inferred deception from the appellant’s subsequent failure to pay off the liens. In Cox-Hilstrom v. State, 58 Ark. App. 109, 948 S.W.2d 409 (1997), the appellant’s theft-by-deception conviction was reversed by this court because the only unfavorable evidence was the appellant’s admitted failure to pay the balance on a newspaper-ad account in the name of the owner of a business being leased by the appellant. Those cases, however, are distinguishable in that the only evidence of deception was the failure to perform a promise.
Here, there was evidence of deception aside from appellants failure to perform a promise. - The jury could infer from these circumstances that, at the timé that appellant accepted boat deposits from the victims, he was well aware of the lack of manpower at P & F Custom Boats.' Appellant was charged with filling orders taken by Bobby Jack before he h(¡retired and took virtually all of the orders over the course of a year while Larry was with his son. It was not possible for “a one-man operation” to build boats in the time frames represented by appellant. Appellant had been in the business for approximately thirty-five years ■ and knew or should have known that unfilled orders and working short handed would slow the construction process considerably. Appellant was aware of the increasing number of complaints against his business and avoided his victims because he knew that they likely wanted answers regarding their long-overdue orders. In spite of this, appellant continued to accept deposits for boat orders. Further, the jury could infer that, in readily answering calls from unknown numbers, appellant seemed eager to take on new business without regard for the unfilled orders of his victims. The jury could further conclude that appellant purposely deprived the victims of their property, ostensibly in order to satisfy and fund the demands of other customers in an ' effort to keep his business afloat. Appellant deprived the victims of their property in that he disposed of the deposits as he saw fit instead of buying materials for each customer’s boat, and, when his victims asked for the return of their deposits, he did not have the money to give them. See, e.g., Hardcastle, supra (affirming the appellant’s theft-by-deception conviction and noting that investors were deprived of the use and benefit of their property when the appellant did not use the funds he received ■for the purposes represented to them). The jury-was not required'to believe appellant’s explanation that he simply became overwhelmed with- orders and got himself in “an unexpected crunch”;. rather, the jury could have concluded from this evidence that appellant exhibited a pattern of deceit and engaged in a scheme to defraud. Viewing the evidence in the light most favorable to the jury’s | ^verdict, we hold that there was substantial evidence to support appellant’s convictions.
Affirmed.
Gladwin, C.J., and Gruber, J., agree.
, Arkansas Code Annotated section 5-36-101(4) provides that “deprive” means to (A) withhold property or to causé it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner, [or] ... (C) dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely.
. We agree with the State that the facts of this case are similar to those in Williams v. State, 2009 Ark. App. 848, 2009 WL 4851104; however, that case involved theft by exercising unauthorized control over the property of another, not theft by deception.
. Appellant referred to all counts in his directed-verdict motions but did not address each count individually. In reviewing the sufficiency of the evidence, this court will do likewise. | [
80,
-20,
-104,
61,
58,
-32,
42,
-104,
-45,
-25,
-10,
19,
-27,
-58,
4,
47,
-25,
-3,
-43,
97,
-46,
-78,
15,
35,
80,
-69,
-39,
-59,
60,
75,
-28,
-35,
89,
48,
-62,
85,
-58,
9,
-19,
-34,
-126,
64,
42,
-31,
-101,
72,
52,
-113,
0,
78,
113,
14,
-69,
43,
63,
111,
109,
46,
91,
57,
64,
80,
-6,
79,
123,
18,
-125,
38,
-104,
67,
-32,
40,
-104,
113,
0,
-40,
-13,
-78,
-126,
-12,
79,
-117,
-120,
102,
98,
17,
13,
-51,
-20,
-40,
-82,
126,
-83,
-81,
-102,
73,
75,
77,
-65,
-34,
80,
-108,
28,
-6,
-32,
-106,
29,
108,
2,
-113,
-44,
-125,
44,
52,
-98,
-77,
-1,
51,
36,
112,
-52,
-30,
85,
14,
120,
-97,
-114,
-73
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.