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RITAW. GRUBER, Judge
hThe issue in this interlocutory appeal is whether an arbitration agreement exists between appellee, Grant Williams, and appellants, The Madison Companies, LLC, and Horsepower Entertainment, LLC (a wholly owned subsidiary of The Madison Companies, LLC). The Pulaski County Circuit Court entered an order finding that an arbitration agreement did not exist between the parties. Appellants appeal from the court’s order, arguing that there is a valid, enforceable arbitration agreement, that Mr. Williams’s claims against appellants fall within the agreement, and that they have the right to enforce the agreement. We affirm the circuit court’s order.
On February 14, 2015, Mr. Williams purchased tickets online for an outdoor music festival, Thunder on the Mountain, to be held June 26-28, 2015, on Mulberry Mountain near Ozark, Arkansas. Although the parties dispute appellants’ precise role in organizing and 12promoting the festival, Mr. Williams alleged in his complaint that Pipeline Productions, Inc. (“Pipeline”), and Backwood Enterprises, LLC (together, the “Pipeline Defendants”), and appellants jointly organized and promoted the festival. According to Mr. Williams, the Pipeline Defendants had a dispute with appellants about funding after tickets had already been sold, but the joint group continued to promote and sell festival tickets. Finally, on June 12, 2015, Pipeline notified Mr. Williams and other ticket holders that Thunder on the Mountain had been canceled and that Pipeline would refund ticket holders’ money within 90 days.
On Jupe 22, 2015, Mr. Williams filed a complaint on behalf of himself and a class of similarly situated persons against the Pipeline Defendants and appellants. Mr. Williams alleged that he had purchased tickets to Thunder on the Mountain from appellants and the Pipeline Defendants. He claimed that they had hidden the funding issues from him and other ticket purchasers, continuing to sell tickets with the knowledge that the festival was at great risk of being canceled. Thus, he alleged, he and others continued purchasing tickets, making hotel and other accommodation plans, and incurring substantial damages. Mr. Williams alleged that the Pipeline Defendants and appellants had violated the Arkansas Deceptive Trade Practices Act and that their acts were deceptive, unfair, unconscionable, and misleading.
Appellants filed a motion to compel arbitration on December 18, 2015. They did not produce either a contract or arbitration agreement between themselves and Mr. Williams. RRather, they produced an arbitration agreement from the website of Front Gate Tickets (“Front Gate”), the conduit through which all online tickets to the festival had allegedly been sold. They also attached the affidavit of David R. Lionette, a senior vice president for asset management with The Madison Companies, LLC.
In his affidavit, Mr. Lionette stated that his duties included overseeing and managing this litigation against appellants. He said that he had accessed the Front Gate Tickets Thunder on the Mountain Festival website through a Google search, where he “clicked on” a “terms of use” link and was transferred to a webpage containing Front Gate’s terms of use and terms of sale. He stated that the terms included a binding arbitration agreement. He attached a screenshot of the terms of use and terms of sale, including the arbitration agreement, to his affidavit. He then stated that, although he could not purchase tickets for the Thunder on the Mountain Festival because his search was performed months after the show had been canceled, he visited the main Front Gate Tickets’ website and accessed four other events for which he could purchase tickets. He stated that there was a prominent hyperlink for Front Gate’s terms of use at the bottom of each website for the four events. He stated that the terms of use for each event were identical and that all included arbitration agreements. According to his affidavit, in Mr. Lionette’s experience, each event’s website had an identical checkout procedure for the purchase of tickets. He attached screenshots of each checkout screen. He stated that a consumer could not execute a purchase until he or she affirmatively agreed to the terms of sale. He said that there was a hyperlink on the “terms of sale” language and that by clicking on the link, a consumer could view the entire terms of sale, including |4an arbitration agreement. He claimed that, based on his review of these websites, the arbitration agreement for each of the four events’ websites was identical to the arbitration agreement for Thunder on the Mountain Festival.
Using Mr. Lionette’s affidavit and attached screenshots and Mr. Williams’s ticket, or print pass, which included the Front Gate Tickets logo on the bottom, appellants argued in their motion that there was clearly a valid and binding arbitration agreement between Front Gate and Mr. Williams; that language in the agreement extended the agreement to other parties; and that Mr. Williams was equitably estopped from refusing to arbitrate with appellants because he was seeking to enforce claims directly related to the contract.
At the hearing on the motion, the circuit court expressed doubt that appellants could prove the existence of an arbitration agreement between them and Mr. Williams by producing an arbitration agreement they had obtained online between Front Gate and another purchaser for another event. Appellants argued that Mr. Williams’s assent to an arbitration agreement with Front Gate could be inferred from Mr. Lionette’s affidavit regarding Front Gate’s procedures and processes for other events. Mr. Williams objected to Mr. Lionette’s affidavit for lack of personal knowledge and proper authentication regarding Front Gate’s website and operations. The court then recognized two concerns: first, the affidavit was from an employee of a party rather than Front Gate and, second, there was nothing in the record to reflect that what the employee saw on Front Gate’s website was in place when Mr. Williams purchased his tickets ten months earlier. The court’s order, entered on February 17, 2016, denying ap pellants’ motion to compel arbitration “in all respects” | ^stated the following: “The Court does not find that an arbitration agreement exists between [Mr. Williams] and [appellants].”
An order denying a motion to compel arbitration is an immediately ap-pealable order. Ark. R. App. P.-Civil 2(a)(12) (2016). We review a circuit court’s order denying a motion to compel arbitration de novo on the record. HPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408, at 5, 424 S.W.3d 304, 307. We decide the issues on appeal using the record developed in the circuit court without deference to the circuit court’s ruling. Wyatt v. Giles, 95 Ark. App. 204, 205, 235 S.W.3d 552, 554 (2006). We are not bound by the circuit court’s decision, but in the absence of a showing that the circuit court erred in its interpretation of the law, we will accept its decision as correct on appeal. Diamante v. Dye, 2013 Ark. App. 630, at 4, 430 S.W.3d 196, 199. Further, we recognize that arbitration is strongly favored in Arkansas. Courtyard Gardens Health & Rehab., LLC v. Arnold, 2016 Ark. 62, at 6, 485 S.W.3d 669, 673.
When a court is asked to compel arbitration, it is limited to deciding two threshold questions: (1) Is there a valid agreement to arbitrate between the parties? and (2) If such an agreement exists, does the dispute fall within its scope? LegalZoom.com, Inc. v. McIllwain, 2013 Ark. 370, at 8-9, 429 S.W.3d 261, 265. A threshold inquiry is whether an agreement to arbitrate exists; that is, whether there has been mutual agreement, with notice of the terms and subsequent assent. Alltel Corp. v. Sumner, 360 Ark. 573, 576, 203 S.W.3d 77, 80 (2005). We keep in mind two legal principles when deciding whether the parties to an arbitration agreement entered into a valid contract: (1) a court cannot make a contract for the parties but |fican only construe and enforce the contract that they have made; and if there is no meeting of the minds, there is no contract; and (2) it is well settled that in order to make a contract there must be a meeting of the minds as to all terms, using objective indicators. Williamson v. Sanofi Winthrop Pharm., Inc., 347 Ark. 89, 98, 60 S.W.3d 428, 434 (2001). Both parties must manifest assent to the particular terms of the contract. Alltel Corp, 360 Ark. at 576, 203 S.W.3d at 80. For a party to assent to a contract, the terms of the contract, including an arbitration agreement, must have been effectively communicated. Asset Acceptance, LLC v. Newby, 2014 Ark. 280, at 8, 437 S.W.3d 119, 123; see also Alltel Corp., supra. Finally, a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).
We turn now to the threshold inquiry—that is, whether an agreement to arbitrate between the parties exists. Appellants argue that they provided sufficient proof of an agreement to arbitrate between Front, Gate Tickets and Mr. Williams. Their proof was comprised of Mr. Lionette’s affidavit and attached screenshots from Front Gate Tickets’ website. While Mr. Williams admitted that he had purchased his ticket online and his print pass contained the logo for Front Gate Tickets. on. the bottom of the ticket, he did not admit that he had agreed to any particular contract terms, and he specifically denied that he had agreed to the arbitration provision attached to Mr. Lion-ette’s affidavit.
Appellants argue that “clickwrap agreements” pursuant to which a consumer must accept certain terms and conditions in order to purchase an item online have been upheld as valid and enforceable. And we have reviewed the case cited by appellants in support of 17their argument. See, e.g., Goza v. Multi-Purpose Civic Ctr. Facilities Bd. for Pulaski Cty., 12-CV-6125, 2014 WL 3672128 (W.D. Ark. July 23, 2014) (finding arbitration provision valid in case between parties to the actual agreement). Appellants have not provided any case law on all fours with the facts in this case, however. They do not allege that they have entered into an arbitration agreement with Mr. Williams, nor do they allege that they are in any manner affiliated with Front Gate Tickets. Indeed, they have alleged that they had “absolutely nothing to do with the promotion, sales, or marketing of tickets to Thunder Mountain Festival” and merely loaned money to Pipeline. They attempt to prove Front Gate’s operations, procedures, and processes by their own employee’s affidavit. This employee was a vice president in asset management in charge of this litigation for appellants who conducted internet searches on Front Gate’s website for events unrelated to Thunder on the Mountain. And, with no evidence provided by Front Gate Tickets and without being a party to any agreement, appellants attempt to argue that an arbitration agreement allegedly entered into by Mr. Williams and Front Gate Tickets was specifically intended to apply to appellants.
We hold that this is simply not sufficient to prove that an arbitration agreement was effectively communicated to Mr. Williams or that he assented to its terms. Screenshots obtained by the employee of a party unconnected with Front Gate ten months after Mr. Williams purchased his ticket are not sufficiently specific to demonstrate effective communication of Front Gate’s arbitration agreement to Mr. Williams. Although Mr. Williams’s print pass does contain a reference to Pipeline’s terms of use—specifically stating | ¿that it is “subject to Pipeline Tieketing’s Terms of Use, Terms of Ticket Sales and Terms of PrintPass Sales, each available at www. pipelineproductions.com”—it does not refer to terms of use for Front Gate. A Front Gate Tickets logo appears on the bottom of the ticket, but there is no other information regarding Front Gate.
Because the additional issues argued by appellants presume the existence of a contract requiring arbitration, we need not address those issues. See Alltel Corp., 360 Ark. at 579, 203 S.W.3d at 81-82.
Affirmed.
Virden and Hixson, JJ., agree.
. The Pipeline Defendants are not parties to this appeal. | [
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LARRY D. VAUGHT, Judge
| Appellant Holly Rice appeals from the Mississippi County Circuit Court’s grant of appellee Scott Rice’s motion for directed verdict during the hearing on her motion to change custody of their two children. The only point she raises on appeal is that the court erred in finding that there were not changed circumstances warranting modification of custody. We disagree and affirm.
While married, Holly and Scott Rice had one biological child, and he adopted her child from a previous relationship. During divorce proceedings in 2010, the court initially awarded temporary joint custody of the two children. However, during the course of the case, Scott filed for an order of protection against Holly, after which Holly entered drug rehabilitation, withdrew her complaint for divorce, waived corroboration of grounds on Scott’s complaint, and voluntarily transferred custody of the children to Scott. The court granted Scott permanent custody of the children and granted Holly standard visitation.
|20n February 26, 2015, Holly filed a motion for change of custody, alleging that “the Defendant has remarried; he is currently separated from his new wife; and, at the present time the Defendant is not employed, and has no ascertainable financial means to support himself.”
At the hearing, the evidence demonstrated that Holly had successfully completed drug rehabilitation, had moved back to Blytheville from Jackson, Tennessee, had obtained stable employment, was purchasing a three-bedroom house, and was consistently attending addiction-support meetings.
Scott had remarried and moved himself and the children to Paragould. However, when it became clear that his children and his new wife’s children could not peacefully coexist and should not continue to live together, he and the children moved into a two-bedroom apartment. He and his new wife divorced, but ultimately reconciled, deciding to remarry while continuing to live apart because they felt it was best for the children. Scott quit his job in Blytheville when he moved to Para-gould, but he found part-time work as a substitute teacher. He then found a new job at Mid-South Health, and together, he and his new wife are able to pay their bills.
The couple’s eleven-year-old daughter testified that she would prefer to live with Holly. However, her testimony was fairly even as to both parents; she testified about things she liked and disliked about living with each.
At the close of Holly’s evidence, Scott moved for a directed verdict, arguing that she had failed to prove that there was a material change in circumstances to warrant a modification of custody. In response, Holly’s attorney listed numerous changes that had occurred since the divorce, including Scott’s marriage, divorce, remarriage, and separate living arrangement; the | amove from Blytheville to Para-gould; Scott’s change of jobs; and the kids’ move from one school to another. Scott’s attorney countered that, while there had been many changes, there had not been anything that legally met the requirements of a material change in circumstances warranting modification of custody.
The court granted Scott’s motion for directed verdict, ruling from the bench that, while there had been changes, none of those changes had a negative or detrimental impact on the children. Therefore, the court found that there had not been a material change in circumstances, so it declined to further address the issue of modification of custody. Following the hearing, the court issued a lengthy order outlining its findings. It found that Scott’s marriage, divorce, remarriage, and separate living arrangement were not material changes because the changes had not had any negative impact on the children and because their current living situation was similar to what it had been at the time of the divorce. The court also found that Scott’s change in jobs was not a material change in circumstances because he continued to be employed and earn money, and that he had financial means (through his own income and that of his wife) to meet the kids’ needs. The court noted that a custodial parent’s relocation and change in jobs in order to live with or near a new spouse is not sufficient to constitute a material change in circumstances. The court found no evidence to support Holly’s claim that Scott had no financial means to support himself. The court then specifically found that while “there have been some changes in factors and circumstances, none of these changes approach a material change in circumstances that would merit a | modification of custody.” It is the circuit count’s duty, in deciding a motion to dismiss made after the presentation of the plaintiffs case, to determine whether, if the case were a jury trial, there would be sufficient evidence to present to a jury. Wagner v. Wagner, 2011 Ark. App. 475, at 2, 2011 WL 2557619 (citing Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001)). The circuit court does not exercise its fact-finding powers, such as judging the witnesses’ credibility, in making this determination. Id. On appeal, we view the evidence in the light most favorable to the nonmoving party, giving the proof presented its highest probative value and taking into account all reasonable inferences deducible therefrom. Id. We affirm if there would be no substantial evidence to support a jury verdict. Id. In other words, when “the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed.” Id. at 2-3.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Harris v. Harris, 2010 Ark. App. 160, at 13, 379 S.W.3d 8, 16. A judicial award of custody will not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree "will be in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that either were not presented to the circuit court or were not known by the circuit court at the time the original custody order was entered. Id. at 13, 379 S.W.3d at 16; Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations'of custody. Grisham v. Grisham, 2009 Ark. App. 260, 2009 WL 936952. The reasons for requiring more stringent standards for modifications than for initial custody determinations are to | ^promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. Id. The party seeking modification has the burden of showing a material change in circumstances. Byrd v. Vanderpool, 104 Ark. App. 239, 290 S.W.3d 610 (2009).
Holly’s only argument on appeal is that the court erred in granting Scott’s directed-verdict motion based on its conclusion that she had failed to present sufficient evidence of changed circumstances to warrant modification. Holly’s argument is misplaced. As the circuit court expressly noted in both its oral ruling and its written order, the test is not whether there have been any changes, but whether there have been any “material changes demonstrating that a modification is in the best interest of the child.” Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001) (emphasis added). Here, the court properly considered the impact of each change (and the impact of the aggregated changes) in determining whether there had been a material change in circumstances. A brief examination of our caselaw on this issue is helpful.
In Calhoun v. Calhoun, 84 Ark. App. 158, 163, 138 S.W.3d 689, 692 (2003), we reversed a trial court’s order finding a material change in circumstances but then placing the burden of proof on the noncustodial parent to prove that the material change had an adverse impact on the child. In Calhoun, we cautioned that
[w]e do not hold, however, that the circuit court should never consider whether there was adverse impact on the child when determining whether a material change in circumstances has occurred. In Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003), the Arkansas Supreme Court addressed the issue of whether the noncustodial parent showed a material change in circumstances. In holding that the noncustodial parent’s evidence was insufficient to constitute a material change in circumstances, the court noted that the noncustodial parent “failed to demonstrate any actual harm or adverse effect.” Accordingly, in some instances it may be the adverse impact on a child that makes a change in circumstances “material.”
Calhoun, 84 Ark. App. at 163, 138 S.W.3d at 692. However, we have also held that “there is no requirement that the trial court wait until the children are actually harmed before finding that a material change in circumstances warranting a change in custody exists.” Sisson v. Sisson, 2012 Ark. App. 385, at 13, 421 S.W.3d 312, 319 (citing Boudreau v. Pierce, 2011 Ark. App. 457, 384 S.W.3d 664). In Valentine v. Valentine, 2010 Ark. App. 259, at 6, 377 S.W.3d 387, 390, we reconciled these holdings by ruling that, when a court bases its ruling on a finding that the changes had not had an adverse impact on the children, the court was simply conducting the required two-part changed-circumstances analysis rather than placing any burden on the noncustodial parent to prove adverse impact.
In the present case, the court clearly acknowledged that there had been changes but properly considered whether those changes had any negative or detrimental impact on the children in determining if they were material. It found that they had not had any such impact and therefore found that the changes were not material. Even reviewing the evidence in the light most favorable to the nonmoving party, giving the proof presented its highest probative value, and taking into account all reasonable inferences deducible therefrom, as we must in an appeal from the grant of a directed verdict, we affirm because there was no substantial evidence introduced at the hearing from which a reasonable fact-finder could find that the changes had negatively impacted the couple’s children.
Holly’s argument also fails because, even if she is correct that the court combined the changed-circumstances and best-interest analyses, it fully addressed each prong. While wejjhave numerous cases outlining a two-step analysis in which “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,’ ” see Singletary v. Singletary, 2013 Ark. 506, at 9, 431 S.W.3d 234, 240 (quoting Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002), we also have numerous cases that combine both prongs of the test into a single statement. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001) (defining the test as whether there have been any material changes demonstrating that a modification is in the best interest of the child); Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999) (defining the test as whether there has been a material change in circumstances which affects the welfare of the child). Therefore, we see no reversible error in the manner of the circuit court’s analysis.
Finally, to the extent that Holly is arguing on appeal that the court erred in considering only the alleged changes in Scott’s circumstances and not her own improvement in circumstances (such as successfully completing drug rehabilitation and staying sober), we note the Arkansas Supreme Court has previously held that changes of circumstances of the noncustodial parent are not sufficient, standing alone, to justify modifying custody but may be considered as factors in conjunction with changes in the custodial parent’s circumstances. See Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). However, Holly’s motion for change of custody alleged changes pertaining only to Scott. As a result, the court’s written order is limited to the specific allegations raised in her motion, all of which relate to Scott’s Iscircumstances, not her own. She then failed to raise any objection to the circuit court’s reliance solely on Scott’s circumstances, rendering the issue unpreserved for appellate review. A party is bound by the scope and nature of the arguments made at trial. Lewis v. Robertson, 96 Ark. App. 114, 239 S.W.3d 30 (2006). Because this allegation of error was not raised and decided below, we are precluded from reaching its merits now. Id.
Affirmed.
Abramson and Brown, JJ., agree.
. The court also modified Holly’s child-support obligation, but she has not appealed that portion of the order.
. As to each alleged change, the court determined whether the circumstance was actually different than it had been at the time of the decree, and if so, then addressed whether that change had any detrimental impact on the children. It also addressed the impact of the changes in the aggregate. | [
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RAYMOND R. ABRAMSON, Judge
11 Kathy’s Bail Bonds, Inc. (Bail Bonds) appeals from the February 9, 2016 bond-forfeiture judgment. On appeal, Bail Bonds argues that the circuit court abused its discretion when it ordered the bail bond forfeited because the State failed to flag the defendant’s passport, thereby allowing the defendant to flee the country. We affirm.
On October 20, 2014, the Saline County District Court set David Anson Alandt’s bond at $100,000 cash or professional bond. On November 21, 2014, a bond-reduction hearing was held, and the district court reduced Alandt’s bond to $75,000 and ordered that his passport be surrendered to the Benton Police Department. That day, Bail Bonds wrote a $75,000 bail bond in favor of Alandt with the conditions that he was to call in every Monday and that he must live with his parents, who resided in Houston, Texas.
On September 24, 2015, Alandt failed to appear at his scheduled jury trial in the |aSaline County Circuit Court where he was charged with felony possession of more than 100 pounds of marijuana with intent to deliver. His representative from Bail Bonds, Kathy Chism, was present and testified that her last contact with Alandt had been the day before—on September 23 after Alandt’s father had dropped him off at the airport under the pretense that he had a one-way ticket to Little Rock to come to trial.
The circuit court then entered an order for the issuance of an arrest warrant and summons/order for surety to appear. In it, the court ordered that Alandt be surrendered to the sheriff as required by the terms of the bail bond and also ordered Chism to appear before the court on February 8, 2016, for a show-cause hearing on a bond-forfeiture petition.
At the hearing, the circuit court heard testimony that Alandt had surrendered his passport to the Benton Police Department but that he had also obtained a new passport and fled the country. Bail Bonds requested more time and also moved to dismiss the bond forfeiture on the basis that the State had not complied with the orders of the court when Alandt was bonded. Bail Bonds argued that the State was required to seize Alandt’s passport and put a hold on it, and because the State failed do so, the bond should not be forfeited. The circuit court did not agree, and on February 9, 2016, a judgment was entered ordering the forfeiture of Alandt’s bond due to his failure to appear.
Bail Bonds timely filed its notice of appeal on March 2, 2016, and the matter is now properly before this court. Bail Bonds’s sole argument on appeal is that the trial court abused its discretion when it ordered the bail bond forfeited because the State failed to flag Alandt’s passport after it had been ordered surrendered as a condition of the bond and thereby failed to prevent Alandt from fleeing the country. While the State concedes that it did not flag the lapassport, it contends the Saline County District Court’s order did not require it to notify the State Department of the United States of the seizure of Alandt’s passport. We agree.
Arkansas Code Annotated section 16-84-207 (Supp. 2013) prescribes the rules for actions on bail bonds in circuit courts and provides, in pertinent, part as follows:
(a) If a bail bond is granted by a judicial officer, it shall be conditioned on the defendant’s appearing for trial, surrendering in execution of the judgment, or appearing at any other time when his or her presence in circuit court may be lawfully required under Rule 9.5 or Rule 9.6 of the Arkansas Rules of Criminal Procedure, or any other rule.
(b)(1) If the defendant fails to appear at any time when the defendant’s presence is required under subsection (a) of the section, the circuit court shall enter this fact by written order or docket entry, thereof to be forfeited, and issue a warrant for the arrest of the defendant.
(2) The circuit clerk shall:
(A) Notify the sheriff and each surety on the bail bond that the defendant should be surrendered to the sheriff as required by the terms of the bail bond; and
(B) Immediately issue a summons on each surety on the bail bond requiring the surety to personally appear on the date and time stated in the summons to show cause why judgment should not be rendered for the sum specified in the bail bond on account of the forfeiture.
In Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147 (2000), our supreme court determined that the essence of a show-cause hearing rests with the bonding company as to why the bond should not be forfeited. Bail Bonds’s only argument— that the State was implicitly ordered by the Saline County District Court to request that a federal agency, the United States State Department, prevent Alandt from obtaining a passport after surrendering his previous passport—is unpersuasive.
In M & M Bonding Co. v. State, 59 Ark. App. 228, 233, 955 S.W.2d 521, 524 (1997), our court explained,
Although the surety is not expected to keep the principal in physical restraint he is expected to keep close track of his whereabouts and keep him within this state subject to the jurisdiction of the court. The surety is not released from forfeiture except |4where an act of God, the State, or of a public enemy, or actual duress prevents appearance by the accused at the time fixed in the bond. Absent one of those excuses the failure of an accused to appear at the time fixed is sufficient basis for forfeiture.
(citations omitted.)
In the instant case, Bail Bonds has not shown that an act of God, the State or of a public enemy, or actual duress prevented Alandt’s appearance in circuit court on September 24, 2015. The district court docket sheet reflecting the bond reduction and the passport-surrender requirement did not require the State to take any action to limit Alandt’s ability to obtain a new passport. He was obligated to comply with this condition of his bond reduction, and the requirement that he surrender his passport put him on notice that he was not allowed to leave the country. The fact that Alandt acquired a new passport and fled the country was a voluntary act on his part and not the result of any action or inaction by the State.
Moreover, when a bail-bond company agrees to write a bond for a criminal defendant, it assumes the responsibility for the whereabouts of the defendant and is expected to “keep him within this state subject to the jurisdiction of the court.” Id. The bail-bond sheet shows that Alandt’s address was in Houston, Texas. Kathy Chism of Bail Bonds testified that Alandt’s father had dropped him off at the Houston airport on September 23, 2015, ostensibly to catch a flight to Little Rock for his jury trial. This is in direct contradiction of Bail Bonds’s obligation to keep Alandt in the state of Arkansas, subject to the jurisdiction of the court.
Alandt failed to appear for his September 24, 2015 jury trial. Bail Bonds was given 137 days to locate Alandt and produce him to the court. He was neither apprehended nor | ^present for court by the time of the scheduled bond-forfeiture hearing on February 8, 2016. Bail Bonds has not offered any authority for its position that the State acted to prevent Alandt’s appearance, and we are not convinced the circumstances presented here require reversal of the bond-forfeiture judgment. Accordingly, we affirm.
Affirmed.
Vaught and Brown, JJ., agree. | [
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RITA W. GRUBER, Chief Judge
hRashune Raglon was found guilty by a jury in the Circuit Court of Jefferson County of second-degree murder and was sentenced as a habitual offender to 65 years’ imprisonment in the Arkansas Department of Correction. The victim, Deme-trio McDaniel, died of a shotgun wound to the head. There was evidence at trial that on the night of the shooting, Raglon had been smoking the synthetic cannabinoid K2. He admitted shooting McDaniel in the head but claimed that the gun accidentally discharged. Dr. Frank Peretti, who was qualified at trial as an expert in the area of forensic pathology, testified over Raglon’s objection about how people behave after using K2. Raglon raises one point on appeal, contending that the circuit court abused its discretion when it permitted the expert to testify beyond the limits of his qualifications and that the testimony was unduly prejudicial. We affirm.
Generally, the admissibility of expert testimony depends on whether the testimony |gwill aid the fact-finder in comprehending the evidence presented or resolving a fact in dispute. Wood v. State, 75 Ark. App. 22, 26, 53 S.W.3d 56, 59 (2001). Abuse of discretion is a high threshold that does not simply require error in the circuit court’s decision; it requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. Hajek-McClure v. State, 2014 Ark. App. 690, at 9, 450 S.W.3d 259, 265. We will not reverse a ruling on the admission of evidence absent a showing of prejudice. Id,
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Ark. R. Evid. 702 (2016). When expert scientific testimony is proffered,
the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier, of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue.
Wood, 75 Ark. App. at 27, 53 S.W.3d at 59-60 (citing Farm Bureau Mut. Ins. Co. of Ark. v. Foote, 341 Ark. 105, 116, 14 S.W.3d 512, 519 (2000)) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (footnotes omitted)). See Ark. R. Evid. 104(a),
Testimony, even if helpful to a jury, may be properly excluded if it is offered by a person not qualified to render the opinion. Brunson v. State, 349 Ark. 300, 310, 79 S.W.3d 304, 310 (2002). Unless the person is clearly lacking in training and experience, the decided tendency is to permit the fact-findér to hear the testimony of someone having superior | ^knowledge in a given field. Graftenreed v. Seabaugh, 100 Ark. App. 364, 372, 268 S.W.3d 905, 914 (2007). The fact that a medical expert is not a specialist in that'particular field-does not necessarily exclude him or her from offering testimony. Dundee v. Horton, 2015 Ark. App. 690, at 6-7, 477 S.W.3d 558, 562. Nor is absolute expertise concerning a particular subject required to qualify a witness as an expert. Id. Rule of Evidence 702 expressly recognizes that an expert’s testimony may be based on experience in addition to. knowledge and training. Id.
Here, the State presented testimony that after midnight bn November 28, 2013, Kevin Kirk of the Pine Bluff Police Department went with officers to apartments at 26th and Beech Streets on a welfare check concerning a young child. They entered an open door to an apartment where they heard the noise of a television. They saw a man’s body in a coagulated pool of blood; a shotgun with a sawed-off handle was beside him, and there was “brain matter on a mattress that he was semi-on.” Coroner Chad Kelly pronounced the victim dead—the apparent cause of death being a gunshot wound to the left side of the head.
Brandon- McClatchie testified that in November 2013 he was living in the Beech Street apartments while on the run from drug court and was involved with K2. On the night of the shooting, he “fronted” McDaniel and Raglon some K2 and allowed them to sell it out of the apartment. Early the next day, McClatchie returned from shopping and dining in Little Rock. McDaniel- gave money to McClatchie, who gave McDaniel more K2. McClatchie gave Raglon another gram of K2 because he had smoked, his or given it away, had spent his money on PCP, and had kept saying that a gram was missing. The three of them sat on an |4air mattress and began playing an Xbox game; McClatchie was in the middle, with McDaniel a foot and a half to his right and Raglon the same distance to the left.
' McClatchie further testified that Raglon and McDaniel had brought guns to the apartment for protection from robbery, something that “goes along with the business of selling drugs.” McDaniel’s long-barreled shotgun was on the floor to his right; Raglon’s green-and-black sawed-off shotgun was on the floor in front of him. Just before the shooting, McClatchie and McDaniel had been playing a- game, and Raglon had been sitting on the floor-leaning on the mattress. According to McClatchie, '
There were no- arguments, nothing ..." and then a sudden flash and a bang, boom, across my face. I could feel, like, the wind off it. ... Raglon shot-my best friend. I saw the gun. He pointed it at me after he shot him. He did not say anything at first. I went in my pocket. ! thought he was wanting to rob me. He meant business. I went into my pocket like, “what you want, what you want.” He was like “come on, come on.” He grabbed my shirt.
McClatchie testified that Raglon then rushed him out the door, repeating “come on, come on” and leaving the door open. McClatchie further testified,
I did not recognize the person I was looking at. It was his eyes, he did not look like [himself], I have not been around while he was on PCP—I do not allow it around me. I am familiar with what happens to a person on that drug. They do stupid things they probably do not even remember doing. A lot of killing has been going on about that , drug.
Jeremy Shephard was going up the stairs as Raglon and McClatchie were leaving the apartment. Raglon directed the two of them into Shephard’s car and said to take him to the river port. Shephard was driving, another man was sleeping in the front seat, and Raglon and | BMcClatchie were in the back. When Shephard went the wrong way, Raglon got mad. He was “agitated and had this loaded shot gun.” McClatchie, to protect himself, suggested that Raglon remove the bullets and throw the gun somewhere. Raglon unloaded the gun, threw the shells out the window on the way to the port, and threw the gun over the rail from the middle of a bridge. He threatened McClatchie and Shephard that he would “come back and kill [them]” if they.said anything, that he “had done it before,” and that he had not trusted McDaniel. During his testimony, McClat-chie identified a photograph of a green- and-black shotgun as the one that Raglon had thrown over the bridge railing.
Dr. Peretti, testifying as an expert in the area of forensic pathology, explained that his job at the crime lab as associate medical examiner included performing autopsies and issuing death certificates. He testified that he had performed the autopsy in this case. He opined that the cause of death was a shotgun wound and that, based on the wound, the gun barrel was less than one inch from McDaniel’s head. Dr. Peretti said that he had performed some 350 autopsies in the past 25 years and had “some opinion about the effects of certain drugs on the body.” He explained:
I drug tested Mr. McDaniel at the crime lab. I was not able to identify any drugs. We test for the drugs of abuse, the major categories, which includes amphetamines. It also includes methamphetamine, barbiturates, the benzodiaze-pines, cannabis, marijuana, cocaine, opiates—which includes phencyclidine or PCP. Mr. McDaniel did not have those drugs in his system.
We do not test for K2. I am familiar with K2. It is a synthetic cannaboid, or | fimarfiuana. PCP is a hallucinogenic drug. K2 is legal in most states and you can buy it over the counter at some stores, I have seen the effects of K2 on people the last several years. The people using the drug become psychotic. They go into rages. I have seen people jump off bridges and through plate glass windows. It is a really bad drug.
At this point in the testimony, Raglon objected that the witness was not an expert on narcotic drugs and their effects and was not qualified to talk about the effects of K2 and PCP. The circuit court stated that it would withhold ruling on the objection and allow the witness to lay a foundation. Dr. Peretti then testified:
I do not have'any training in the sense that I am a toxicologist of pharmacolo gist. When I am answering these questions, it is what I have seen over the years in different cases. I certify deaths due to these drugs. I have knowledge of them, but I do not treat people with them. I have never treated anyone in my life. I just have knowledge to evaluate findings and causes of death in relation to these drugs for which I issue death certificates. I make determinations that people died from an overdose every day. I also review toxicology reports and decide about how the person, what activity he was involved with at his death based off the drugs that were in his system. I do it every day. With the information I have I can conclude how these drugs [affect] people based off the historical information obtained from the coroner, families, and investigating agencies.
Raglon again objected. He argued that Dr. Peretti was generally testifying about other cases, such as those in which he had talked to family members, and that the testimony was not related to the present case. The prosecution responded that the testimony was about K2, that Raglon had been using K2, and that the prosecution has asked whether Dr. Peretti had a professional opinion based on how people react to K2. The court ruled:
Testing for K2 is totally separate from knowing how it works, operates, or impacts the body. He would not have to test for it to know it. Those general questions are not related to the Defendant, Mr. Raglon, in terms of how it would make Mr. Raglon act. The question was “How do people who have ingested K2 respond?” You objected to him going in depth with that line of questioning. The prosecutor went back to lay a foundation. He stated that he was not a pharmacologist 17or a toxicologist but that he does have to determine death due to these products. Some kind of way, he has got to know something about what he is doing to know a person died from an overdose of drugs.
I do not know what he would do if the overdose was from K2, since they do not test for that. That is' only dealing with the person’s death. Whatever he has gotten in terms of training, experience, or whatever in terms of how it impacts somebody, that is what he is asking. He did as [sic] how it impacted Mr. Raglon. Whether, Mr. Raglon was on it, because he has not had any contact with Mr. Raglon, he has only had contact with the decedent and we are not talking about how the decedent acted.
Based on the question that was asked and the experience the doctor has, I am going to allow him to answer the question.
Dr. Peretti then testified that he knows how a person generally reacts to K2. He said it is a very dangerous drug because people can act.psyehotically. He explained that a reaction can be immediate or sometimes delayed, such as for a week.
Jeremy Shephard testified that on November 28 in the early morning, he drove to the apartments to buy K2 from Brandon McClatchie. He corroborated McClatchie’s testimony that Raglon had a shotgun when he came out of the apartment holding McClatchie “by the shirt”; that Shephard and McClatchie followed Raglon’s directive to get in the car; that Shephard drove to the port; and that Raglon threw the gun off the bridge.
Raglon testified in his own defense. He explained that he has a medical condition affecting his right foot and leg as a result of being shot years earlier. He testified that he was really high the night of the shooting because he had been drinking beer, had taken Xanax, and had been smoking K2 with McDaniel and McClat-chie. He said that McClatchie was in the bathroom, nowhere in sight, when the shooting occurred. Raglon said that he was sitting down watching the door when he saw someone coming. Raglon explained that, because of |shis leg and paralyzed foot, he could not get up from the ground without something to help him; he pushed off the wall and stumbled with the gun; and the gun went off. He testified that he gave McClatchie the gun while they were in the car, McClatchie took the bullets out, and Raglon threw them out the window. He denied throwing the gun out of the car, saying instead that he left it with McClat-chie and told him to get rid of it, and denied threatening to kill McClatchie unless he kept quiet. Raglon testified that the gun was already in the apartment when he arrived and said that it was not the one identified by trial witnesses. He said that he left to stay with a relative in Kansas City shortly after the shooting and that, rather than explaining to her his reason for being there, told her that a Pine Bluff drug dealer was trying to kill him.
On appeal, Raglon argues that no evidence indicated that Dr. Peretti was testifying from his expert, scientific knowledge about how people react to K2. He argues that Dr. Peretti’s opinion had no scientific basis in knowledge, skill, training, or experience. He concludes that the circuit court abused its discretion when it allowed the testimony that K2 could cause a person to become psychotic or go into a rage and that the onset could be sudden or delayed. He argues that prejudice resulted because this testimony rendered an opinion that negated manslaughter and negligence, on which the jury had received lesser-included instructions.
We agree with the State that Dr. Peret-tfs testimony did not range too far outside his area of expertise and that he demonstrated knowledge beyond that of ordinary knowledge regarding the effects of K2 on a user. See, e.g., Dundee v. Horton, 2015 Ark. App. 690, at 6, 477 S.W.3d at 562. Thus, he was properly allowed to testify as an expert regarding the effects of K2 on someone who ingests it. We hold that the circuit court did not abuse its discretion by allowing him to do so.
Finally, Raglon asserts that Dr. Peretti’s testimony created a profile of K2 users who go into psychotic rages without warning—with the effect either sudden or delayed—and that trial testimony placing Raglon into the profile “foreclosed his defense as to the lesser included offenses of manslaughter and negligent homicide.” We note that there was other strong evidence to dissuade the jury from delivering a verdict on lesser-included offenses of manslaughter or negligent homicide.
Affirmed.
Gladwin and Vaught, JJ., agree.
. On cross-examination, McClatchie testified -that McDaniel had brought the shotguns.
. Another trial witness identified the same photograph as showing the shotgun that he and his son had found lying in a ditch at a bridge near the river port the day after the shooting.' | [
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KAREN R. BAKER, Associate Justice
| Appellant Albert D. Bell brings this appeal from the denial of his pro se petition under Arkansas Code Annotated section 16-90-111 (Repl. 2016). Bell did not claim in the petition that the two sentences of life imprisonment that were imposed on him in 1994 were outside the statutory range for the offenses of which he was convicted. Rather, he argued that the sentences were facially illegal under the Eighth Amendment because the State did not prove in the sentencing proceeding in his case that he was incorrigible and irreparably corrupt. He asserted further that the “evolving standards of a modern society” no longer tolerated a life sentence for a juvenile, and thus, his sentences were cruel and unusual and violated the Eighth Amendment. He also argued that (1) numerous witnesses testified at the sentencing phase of his trial as to his character, “transient immaturity,” and other mitigating factors, and the jury was unable to decide on a sentence, which left the trial | p.court, rather than the jury ás trier-of-fact, to impose the harshest sentence possible; (2) the shooter in the case received only one life sentence while he received two consecutive life sentences; (3) 'the shooter was eligible for relief under Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), which permitted retroactive application of Miller v. Alabama, 567 U.S 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)/ to juvenile cases, but he was not; (4) the evidence was not sufficient to prove that he was guilty of the offenses. Bell reiterates the issues raised in the petition in his brief in this appeal and has also filed a motion seeking leave to file a belated reply brief in the appeal. A trial court’s decision to deny relief under section 16-90-111 will not be overturned unless it is clearly erroneous. The trial court’s decision in this matter were not clearly erroneous'. Accordingly, we affirm the order, and the petition to file a belated reply brief is moot.
I. Prior Proceedings
In 1997, this court affirmed Bell’s convictions for two counts of -first-degree murder and his. sentence to two consecutive life sentences. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997). Bell subsequently filed in the trial court a petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1994). The petition was denied, and we affirmed. Bell v. State, CR-02-1071, 2004 WL 1068724 (Ark. May 13, 2004) (unpublished per curiam). In 2010, Bell filed in the trial court a petition for recall and for resen-tencing. Bell sought resentencing by the trial court based on the decision of the United States Supreme Court in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), wherein the Court held that the Eighth Amendment forbids a sentence of life imprisonment without parole for a juvenile offender who did not commit homicide. The .trial court denied his, petition, and we affirmed the order. Bell v. State, 2011 Ark. 379, 2011 WL 4396975 (per curiam), cert. denied, 566 U.S. 943, 132 S.Ct. 1915, 182 L.Ed.2d 781 (2012).
II. Section 16-90-111
In 2015, Bell filed in the trial court a pro se petition to correct the sentence pursuant to section 16-90-111 (Repl. 2013) contending that the sentence imposed on him was illegal because he was a juvenile at the time the offenses were committed, and he, as an accomplice, had not killed anyone himself and did not intend to kill anyone. The trial court denied the petition on the grounds that it was an unauthorized second petition for postconviction relief under Rule 37.2(b) and, even if considered on substantive Eighth Amendment grounds, it did not state a basis for relief. We affirmed the order. Bell v. State, 2015 Ark. 370, 2015 WL 5895447 (per curiam).
When we affirmed the order that denied Bell’s initial 2015 petition under section 16-90-111, we noted a sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted; See Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999); see also Green v. State, 2016 Ark. 386, 502 S.W.3d 524. Bell, who |4did not contend that the sentence imposed on him exceeded the statutory maximum, was convicted of two Class Y felonies under Arkansas Code Annotated section 5-4-401(a)(1) (1987), punishable by a term of imprisonment of not less than ten years nor more than forty years, or life. Under Arkansas Code Annotated section 5-10-102(c) (Supp. 1991), first-degree murder was a Class Y felony when the offenses were committed. Accordingly, the life sentences imposed on Bell were within the range allowed by statute and were not facially illegal. See Green, 2016 Ark. 386, 502 S.W.3d 524.
As to Bell’s contention in his 2016 petition that Graham applied to his case and rendered him eligible for parole because he was merely an accomplice, this issue was addressed by this court in Bell, 2011 Ark. 379. In that proceeding, Bell also argued that he was entitled to resentenc-ing under Graham because he was only an accomplice to first-degree murder and, thus, did not commit a homicide offense. We noted in our opinion that our case law makes clear that Bell was convicted of two homicides. Bell, 2011 Ark. 379, at 2. We have held that there is no distinction between principals on the one hand and accomplices on the other insofar as criminal liability is concerned. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901. When two people assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id. Because Bell was convicted of a homicide offense, Graham was not applicable. Bell, 2011 Ark. 379, at 3.
This court has already addressed Bell’s claims concerning his sentencing as a juvenile to life imprisonment, and we need not reconsider the matter in this appeal. With respect to the other allegations that Bell raised in his second petition, the claims were assertions of Utrial and constitutional error. A claim that a sentence is illegal presents an issue of subject-matter jurisdiction that can be addressed at any time. See Walden v. State, 2014 Ark. 193, 433 S.W.3d 864. However, the claims, as advanced by Bell, did not allege an illegal sentence of the type that is jurisdictional in nature; rather, the grounds for relief raised in Bell’s petition were of the type that should have been raised in the trial court. See Cantrell v. State, 2009 Ark. 456, 343 S.W.3d 591.
Affirmed; motion moot.
, Miller prohibited a sentencing scheme that, mandated life without the possibility of parole for juvenile offenders in homicide cases. Because Bell was convicted of first-degree murder, a life sentence was not mandatory, and the mitigating factor of his youth was presented during the sentencing phase of his trial. Miller did not expressly hold that a life sentence for a juvenile offender was unconstitutional but that the mitigating factor of youth must be considered.
Prior to this decision, Bell had appealed from the trial court's denial of his motion seeking transfer to juvenile court, and this court affirmed the trial court’s order. Bell v. State, 317 Ark, 289, 877 S.W.2d 579 (1994). Bell.was tried and subsequently appealed his convictions and sentence. This court reversed and remanded in part for a new suppression hearing. Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996). On remand, the trial court suppressed Bell's .statements, and the State appealed. This court reversed the trial court's order of suppression, held that a new trial was not warranted, and ordered the mandate affirming'Bell's convictions and sentence be issued. Bell, 329 Ark. 422, 948 S.W.2d 557. | [
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RITA W. GRUBER, Chief Judge
|: This workers’ compensation claim stems from an altercation on May 5, 2016, between Leroy Dorn Jr., a maintenance worker for Housing Authority of Pine Bluff, and his coworker Bruce Spicer. The altercation occurred in their employer’s parking lot in front of the maintenance building on the morning of a supervisor-called meeting with Dorn and Spicer regarding an incident between them the previous day. Dorn’s injuries from the May 5 altercation included tooth avulsion, contusion of the left elbow, and fractures to the left orbital bones, left maxillary sinus, and right maxillary sinus. He appeals the determination of the Arkansas Workers’ Compensation Commission that his injuries were not statutorily compensable. We hold that the injuries were, compensable, and we reverse.
The May 5 altercation occurred in the presence of a Pine Bluff police officer, Chrisanthia Kendrick, who was in the parking lot for unrelated reasons. She tried to intervene. when she saw Spicer striking Dorn in the head, face, body, and shoulder with a baseball bat. She repeatedly yelled for Spicer to stop, but he did not obey until she sparked |aher taser at him. She arrested Spicer for battery. Several days later, the Housing Authority terminated both Dorn and Spicer from employment for workplace violence.
The Housing Authority controverted Dorn’s claim for medical expenses and temporary total-disability benefits. It contended that the altercation resulted from personal animosity and was not work related. It relied in part on Spicer’s claim of the previous day .that Dorn, whose job included cleaning apartments, pulled a knife on him after' accusing him of stealing Dorn’s cleaning supplies and personal things at the workplace.
The ease was heard by an administrative law judge, who found in her written opinion that Dorn’s injuries were “due to a work-related argument over missing cleaning supplies and personal items from the work site, while [Dorn] was attending an employer-mandated meeting.” She concluded that Dorn had proved entitlement to payment of medical expenses and to temporary total-disability benefits from May 6, 2015, to July 29, 2015. Both parties appealed to the Commission, with the Housing Authority claiming that Dorris injuries were not compensable and Dorn contending that he was entitled to temporary total-disability benefits beyond July 29. The Commission reversed the law judge’s decision, finding that Dorn had not proved the compensability of his injuries.
For purposes of this case, “compensable injury” is defined as an “accidental injury causing internal or external physical harm to the body ..., arising out of and in the course of employment and which requires medical services or results in disability or death.” Ark. Code Ann. § ll-9-102(4)(A) (Repl. 2012). Specifically excluded from the definition of “compensable injury” is “[[Injury of any active participant in assaults or combats which, |salthough they may occur in the workplace, are" the result of nonem-ployment-related hostility or animus of one, both, or all of the combatants and which assault or combat amounts to a deviation from customary duties,” or injury that was “inflicted upon the employee at a time when employment services were not being performed....” Ark. Code Ann. § 11—9—102(4)(B)(i), (iii). .
Here, the Commission found that Dorn was an “active participant” in an assault resulting from his “personal animus for Spicer,” which “had been building for some time prior to culminating into the altercation of May 5, 20l5.” It also found that Dorn was not conducting employment services at the time of the altercation. Thus, it concluded that Dorn had not overcome the elements of the statute.
Dorn raises two points on appeal. First, he challenges the Commission’s finding that his injuries were not compensable pursuant to section 11—9—102(4)(B). Second, he asserts that he is still unable to work and is entitled to temporary total-disability benefits beyond July 29, 2015— the date that his neurologist released him back to work.
In order to reverse a decision of the Commission, we must be convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Santillan v. Tyson Sales & Distrib., 2011 Ark. App. 634, at 6, 386 S.W.3d 566, 570. We will affirm if reasonable minds could reach the Commission’s conclusion. Thompson v. Mtn. Home Good Samaritan Vill., 2014 Ark. App. 493, 442 S.W.3d 873. We defer to the Commission’s findings of credibility and the resolution of conflicting evidence. Get Rid of It Ark. v. Graham, 2016 Ark. App. 88, at 10, 2016 WL 537389. We review the evidence 14in the light most favorable to the findings of the Commission and will affirm if the findings are supported by substantial evidence. Bennett v. Tyson Poultry, Inc., 2016 Ark. App. 479, at 2-3, 504 S.W.3d 653, 656.
I. Whether Substantial Evidence Supports the Commission’s Determinations That Dorn’s Injuries Were Barred Under Statutory Provisions Governing Workplace Assaults
In his first point on appeal, Dorn challenges the Commission’s findings that he was an active participant in the workplace assault, that the assault resulted from non-employment-related hostility, that the assault amounted to a deviation from his customary duties, and that he was not conducting employment services at the time of the assault. See Ark. Code Ann. § 11—9—102(4)(B)(i). His arguments are well taken.
The evidence before the Commission included testimony given at the hearing by Dorn, employee Robert Terry, and Dorn’s supervisor, Bobby Turner, and written statements of other employees regarding Dorn and Spicer’s previous argument about missing cleaning supplies and personal belongings. The documentary evidence included a May 4 police report recounting Spicer’s statement that Dorn “got angry” and “pulled a knife out of his pocket but did not use it” in the disturbance that “started over cleaning supplies missing from apartments”; a police report detailing the May 5 parking lot assault; a probable-cause affidavit for Spicer’s arrest on second-degree battery; and Spicer’s and Dorn’s letters of termination.
The Commission recounted Dom’s statements that items allegedly missing from the apartment unit where he was working were personal items left behind by former tenants as well as his own cleaning supplies, and employees’ statements that Dorn “had made his mind up prior to May 4 ... that Spicer was stealing his things.” The Commission found that | (¡Supervisor Turner had credibly testified that Spicer had come to him on May 4 with reports of Dorn’s threatening behavior the same day, which included brandishing a knife, and that “these threats ... reportedly upset Spicer so badly that Turner felt compelled to send him home for the rest of the day.” The Commission noted that on May 4, Spicer had reported the incident to police. The Commission wrote:
Without implying that Spicer was justified in hitting the claimant numerous times with a bat on the morning of May 5, 2015, the claimant’s reported behavior towards Spicer the previous day strongly suggests that the claimant—not Spicer—was the actual protagonist in this situation. The record, in fact, demonstrates that the claimant believed someone—namely Spicer—had been stealing his personal things and that he was determined to do something about it, even if that meant taking matters into his own hands. And, while there seems, at least by the claimant’s testimony, to be much consternation concerning tuhy Spicer would take a small bat to him in an unprovoked at tack on the morning of May 5, 2015, this much is clear in this claim: following a long-held suspicion, but lacking proof thereof, that Spicer had taken his personal belongings, on May 4, 2015, the claimant confronted Spicer with his presupposition that Spicer was the guilty party—even threatening bodily harm. This, in turn, led to the altercation of May 5, 2015, which is the subject of this claim. We note that this conclusion is supported by the fact that the claimant boasted to co-workers of his potential to commit unconscionable acts of revenge—even going as far as to express his intentions to physically harm Spicer for presumably stealing his things.
In sum, the preponderance of the evidence in this claim shows that (1) there was pre-existing animosity between the claimant and Spicer concerning personal items that Spicer allegedly stole from the claimant, (2) these missing items were identified as personal to the claimant both by his testimony and by documents contained within the record, (3) by allegedly eliminating other co-workers, the claimant summarily concluded that Spicer took these missing items, and (4) on May 4, 2015, the claimant confronted Spicer with his' suspicions, words were exchanged, and the claimant allegedly threatened Spicer with a knife.
Furthermore, although the actual events on the morning of May 5, 2015, leading up to the altercation are questionable in that only the claimant testified in this regard and the uncorroborated testimony of an interested party is always considered to be controverted, see, Burnett v. Philadelphia Life Ins. Co., 81 Ark. App. 300, 101 S.W.3d 843 (2003), the record clearly establishes that the claimant boasted to co-workers about his injurious intentions towards Spicer, and that Spicer was, in fact, fearful of the | ⅜claimant ⅛ touted retribution. This is supported, in part, by credible testimony that Spicer promptly reported the incident of May 4, 2015 to his supervisors, and he followed up by making a police report wherein he asserted that the claimant pulled a knife on him.
(Emphasis added.)
On this evidence, the Commission found that Dorn was not “just, an innocent victim, who, upon confronting a bully and thief was badly beaten at first opportunity.” It found that the growing animosity between Dorn and Spicer, based on Dorn’s uncorroborated conclusion that Spicer had stolen some of his personal belongings, “had culminated in, at the very least, a verbal altercation the day before.” It concluded that the physical altercation on the employer’s parking lot was clearly a result of non-employment-related hostility or animus of one or both of the combatants and that it amounted to a deviation from customary duties.
First and foremost, we hold that substantial evidence does not support the Commission’s finding that Dorn was an active participant in the workplace assault. Even accepting the Commission’s findings that Dorn unjustly accused Spicer and threatened him with bodily harm, which are findings that turned on the Commis'sion’s determination of credibility, we hold that there was no substantial evidence of Dorn’s active participation in the May 5 physical assault when Spicer repeatedly struck him with a baseball bat.
Evidence about the assault itself was given through Dorn’s testimony, coworker Robert Terry’s testimony, and the May 5 police report. The Commission acknowledged Dorn’s testimony on direct examination that Spicer was “looking out the window of the building” when Dorn pulled into the parking lot and parked in time for the meeting scheduled by Supervisor Turner; that Spicer walked out of the building, opened the door of |7a company vehicle, and “just stood there waiting” in the route where Dorn would necessarily walk to enter the building; that Dorn therefore waited approximately ten minutes for someone else to arrive at the facility and voiced his “discomfort with the'situation” to employee Sam Purley when he arrived; and that Purley encouraged Dorn to clock in on time. The Commission further recounted Dorn’s testimony:
According to the claimant; he was approximately twenty (20) feet from the facility when he was • “met with a baseball bat” wielded by' Spicer. The claimant testified that he did not attempt to return Spicer’s blows or to defend himself; rather, he “tried to get away because there was an officer there.” The •claimant testified that Spicer continued “attacking” him with the'bat as he tried to flee. The claimant described the bat as small—approximately two-and-a-half (2½) to three (3) feet long—and made of wood. The claimant stated that he was on the ground when the off-duty police officer intervened and threatened to taze Spicer if he did not stop.
The Commission then discussed Dorn’s cross-examination testimony .regarding the events leading up to the assault:
[T]he claimant testified that after the arrival of his co-worker on the morning of May 5, 2015, he walked by Spicer even though “something didn’t feel right.” Although the claimant could not initially recall having spoken to Spicer as he had admitted in deposition, the claimant later agreed that he spoke with Mr. Spicer on the morning of May 5, 2015, but he could not recall what' he said. Further, the claimant could not recall who spoke first. Despite his initial safety concerns', the claimant stated that he felt “safe within myself’ eventually walking past Spicer on the morning of May 5th, 2015, due to the fact that there was an off-duty police officer nearby and he was walking in with a coworker. The claimant testified that he walked around the passenger side of Spicer’s • truck in order to avoid him when Spicer suddenly ran towards him with a bat and began hitting him with it. The claimant hesitated before answering whether he'could have waited for his supervisor to arrive .before he entered the building. Eventually, however, the claimant stated that he did not wait because he did not want to clock in late.
(Emphasis added.)
Next, the Commission discussed the testimony of Robert Terry, who was present at appellee’s facility the morning of May 5, 2015, and saw Dorn there. The Commission noted Isthat although Terry corroborated Dorn’s testimony with respect to the events of the morning, “Terry did not actually witness the assault” because his “view was blocked when Spicer allegedly hit [Dorn] with a baseball bat.” The Commission acknowledged Terry’s testimony on cross-examination that all. maintenance employees carried clip-on box cutters..
' The Commission acknowledged that Officer Chrisanthia Kendrick had witnessed the May 5 altercation, had become involved in it, and had arrested Spicer for battery. The Commission summarized her report as follows:
Kendrick stated that the claimant asked for her assistance and she turned to see Spicer hitting the claimant in the face with a “stick.” Kendrick further stated that the claimant unsuccessfully attempted to flee the situation, and that Spicer did not stop hitting the claimant until she threatened to taze him.
Officer Kendrick stated that she arrested Spicer, who then informed her that the claimant had pulled a knife on him the day before. “Mr. Bruce Spicer stated that Mr. Leroy Dorn confronted him about cleaning supplies and other personal belongings of his,” Kendrick stated. Upon speaking with the claimant at the - emergency room, he informed Officer Kendrick that “sometime last week on Thursday, his personal belongings went missing out of an apartment unit he was cleaning. Mr. Leroy Dorn stated that he asked other co-workers about his missing personal belongings,” Kendrick added, then she continued,
“Mr. Dorn stated that he. asked Mr. Bruce Spicer on 05-05-2015 [sic] about the items and they started arguing with each other. Mr. Leroy Dorn stated he told his supervisors about the incident and on today they were going to meet.”
The claimant further informed Officer Kendrick that he and co-worker, Robert Terry, walked by Spicer’s vehicle on the morning of May 5, 2015, and “spoke to him as normal.”
We have viewed the evidence above in the light most favorable to the Commission’s findings and with deference to the Commission’s determination of credibility, the weight to|flbe assigned, and the resolution of conflicting evidence. Even if the Commission determined that Dorn pulled a knife on May 4 when he and Spicer argued; that Dorn threatened Spicer with physical harm, as recounted in other employees’ written statements and as reported by Spicer to Supervisor Turner on May 4; and that Dorn perhaps spoke inappropriately to Spicer on May 5 and should have waited to enter the building—none of those findings overcome the undisputed evidence that the May 5 assault consisted solely of Spicer’s striking Dorn with the baseball bat.
We hold that reasonable minds could not have found that Dorn was an “active participant” in the baseball-bat assault, and we reversé the Commission’s finding on this issue. Because Dorn was not an active participant, his claim is not barred. See Ark. Code Ann. § ll-9-102(4)(A).
II. Whether Substantial Evidence Supports the Commission’s Finding That Dorn Was Not Conducting Employment Services
An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Best W. Inn & Union Ins. of Providence v. Paul, 2014 Ark. App. 520, at 4, 443 S.W.3d 551, 554. We use the same test to determine whether an employee is performing employment services as we do when determining whether an employee is acting within the course and scope of employment. Id. The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Pifer v. Single Source Transp., 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002). When it was clear that the injury occurred outside the time and space boundaries of 1^employment, the critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Id. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Jonesboro Care & Rehab Ctr. v. Woods, 2010 Ark. 482, at 5-6, 2010 WL 5059566.
We agree with Dorn that he was well within the time and space boundaries of his employment, arriving on time to clock in for a meeting inside the security gate of his employer’s campus. There was no dispute that he entered the campus and parked on appellee’s parking lot, that employees were supposed to clock in by 8:00 a.m., and that he was required to attend a meeting the same morning to resolve the conflict with Spicer. As Dorn points out, although his employer knew of the trouble between Dorn and Spicer and knew that they would arrive by 8:00 in the morning, no member of the supervisory ‘staff had arrived for work when the attack took place—thus creating a possibly dangerous situation without anyone present to protect Dorn when he and Spicer arrived to clock in. We reverse the Commission’s finding that Dorn failed to prove a causal connection between his employment and the assault of May 5, 2015, and failed to prove that he was performing employment services at the time of this incident.
III. Conclusion
We reverse the Commission’s denial of Dorris claim that he sustained compensa-ble injuries in the May 5 workplace assault. We do not address Dorris entitlement to temporary total-disability benefits because the Commission, in denying the compensability of the entire | n claim, made no finding on this issue. We remand to the Commission for a determination of temporary total-disability benefits related to his compensable injuries.
Reversed and remanded.
Klappenbach and Hixson, JJ., agree.
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DAVID M. GLOVER, Judge
I,By order entered October 14, 2016, the trial court terminated the parental rights of Roderick (Rod) and Lisa Michelle Choate to their two minor children, I.C. and K.C. Both parents appeal from that decision, presenting separate briefs. We reverse the termination of parental rights with respect to each.
To put this case in context, we have gleaned the following facts from a confusing record. On September 25, 2011, Lisa and Rod were married in Tulsa, Oklahoma. In August 2014, they separated, and Lisa and the children went to live with Lisa’s parents, the Hebards, in Fayetteville, Arkansas, where she filed for divorce. On February 13, 2015, the divorce decree was entered. It gave Lisa custody of the children and provided strictly supervised visitation to Rod. In March 2015, Lisa and the children left the Hebards’ house and went to live with Rod’s parents in Tulsa. Rod was not living in the same house at the time. By |2June 12, 2015, however, the couple was living together again in Oklahoma with the children when Oklahoma authorities applied to take the minor children into emergency custody.. The Oklahoma application was accompanied by a “Declaration in Support of Verbal Application and Verbal Emergency Custody , Order,” which provided in part:
2. Pursuant to an assessment of child safety conducted by the Department pursuant to a referral, the Department determined the children to be unsafe and in need of immediate protection due to the following imminent safety threat: OKDHS was'involved due [to] concern of Threat of Harm due to [K.C. and I.C.] regarding Mr. Choate’s admission of having an erection while holding his daughter, [K.C.], walking around naked in front of his daughters and him admitting to watching child pornography. Ms. Choate has expressed to several people, including Arkansas CPS and law enforcement that she has had concern of him molesting their daughters.
Though the children were taken into emergency custody by Oklahoma officials, by June 15, 2015, they had been placed with the maternal grandparents in Arkansas pending transfer of the case to Arkansas. On the record before us, a criminal investigation seems to have arisen, but there is no evidence of any criminal charges ever having been pursued regarding any sexual-abuse allegation or child pornography.
According to an order entered July 9, 2015, by the .Arkansas trial court, a telephonic hearing was held that date between it and the Oklahoma judge who had first exercised emergency jurisdiction over the children. As a result of the hearing, jurisdiction was found to lie in Washington County, Arkansas, and a date was set for the adjudication hearing.
A probable-cause order was entered July 15, 2015, in which the trial court found probable cause existed to enter the ex parte order for emergency custody; it still existed to protect the children, necessitating placement with . the maternal grandparents, “because the court has con cerns that mother violated the [divorce decree] and allowed the children to be [alone] with the father in Tulsa rather than supervised.”
[aOn August 24, 2015, the trial court entered an adjudication order finding the children dependent-neglected. The adjudication order is a typical form document and in paragraph 3, the finding of dependency-neglect was found to be a result of “neglect” and “parental unfitness” (designated by check marks next to those terms). No check marks appeared next to “abandonment,” “abuse,” “sexual abuse,” or “sexual exploitation,” which were the remaining options available on the form. The form adjudication order further provided in paragraph 3 that the finding was based on “the parties’ agreement to a finding of dependency-neglect because the allegations in the petition and affidavit are true and correct, based on mother’s lack of stability in housing and employment and failure to protect by violating the visitation order [apparently referencing the visitation order contained in the parties’ divorce decree requiring supervised visitation with the children for Rod] and father’s prior addiction to pornography and lack of stability in employment and housing.” The court ordered Rod’s visitation with the children to be supervised by DHS. Lisa was allowed to continue living in the He-bards’ house, along with the children; her “visitation” with the children was to be supervised by the Hebards; and she was not to be left alone with the children. By order entered October 30, 2015, the trial court found Lisa had “made material progress through counseling, working with Children’s House, and is now employed,” and she “may be left alone with the children [for short periods per day, not to exceed three hours] so that the grandparents may have some respite time.”
In the January 13, 2016 review order, the trial court found Lisa had not complied with all the court orders and the case plan; specifically, that she needed to address her mental-health issues and obtain appropriate housing if she did not choose to continue living with'| ¿her parents; that she had completed her parenting classes; that she had attended some IFS and family counseling; and that she had made some progress toward alleviating or mitigating the causes of the juveniles’ removal from the home and completing the court orders and requirements of the case plan. In the same review order, the trial court found Rod had complied with all the court orders and the case plan; specifically, that he had maintained housing and employment in the Tulsa area; he was attending counseling to address his addiction to pornography; he was taking his medications as prescribed; he had completed his parenting classes; he had been consistent in his visitation with the children twice monthly, and he had made much progress toward alleviating or mitigating the causes of the juveniles’ removal from the home and completing the court orders and requirements of the case plan. Rod’s visitation was to remain supervised by DHS. Lisa was allowed to have unsupervised visitation at the Hebards’ discretion.
On June 6, 2016, the permanency-planning-hearing order was entered. In it, the trial court authorized a plan for adoption with DHS filing a petition for termination of parental rights because “[n]either parent has made significant, measurable progress toward achieving the goals established in the case plan,” “[n]either parent has diligently worked toward reunification,” and “[t]he girls need a consistent, structured home life,” which the trial court found the parents had demonstrated they could not provide.
On September 9, 2016, the termination hearing was held in Washington County, Arkansas. Numerous witnesses testified in a lengthy hearing. Melissa Bedford, who was a counselor at Dayspring Behavioral Healthcare (Children’s House), was among the witnesses who testified. She stated she had served as KC.’s counselor from September 21, 2015, to | fithe date of the hearing, and as I.C.’s counselor since August 2, 2016. She explained KC.’s diagnosis was posttraumatic stress disorder; suspected child sexual abuse; parent-child relational problem; child neglect; and developmental disorders. Bedford testified that K.C., who turned four in June before the September hearing, had engaged in play that caused her concern, e.g., she had put dolls in the sand and said they weren’t supposed to see, with a male figure standing over saying they weren’t supposed to see or know; she put a 3-D puzzle figure in the bathtub and wanted it to be naked; she became upset when she couldn’t get the clothes off; and she played with baby dolls and wanted them to be naked. After discussing modesty with her, Bedford said KC. made progress and wanted her dolls dressed. •
Bedford observed KC. never mentions Rod, and never says “my dad,” but does ask when she’s going to see her mom. She said Rod never participated in family therapy; she also acknowledged it was never ordered.
Bedford testified Lisa had been more cooperative since the last hearing; before then, Lisa showed up about 75 percent of the time; on two occasions, in meetings, Lisa had become upset with her mother, Linda Hebard, and said she could not meet with the girls and left; Lisa had made some progress; Lisa was starting to use conscious discipline techniques and they had engaged in family-play therapy.
Bedford’s recommendation was for K.C. to either remain with the Hebards (grandparents) or be placed in an adoptive family. She did not feel as if Lisa had worked through enough of her parenting issues; and Lisa had made comments about Rod’s being suicidal, and that concerned Bedford about the children’s safety.
| (¡Bedford acknowledged: I.C. had been her patient for only about a month, since August; I.C. had a new development in the last couple of weeks going from very oppositional and aggressive to being very concerned about noises in the hallway; and I.C. had become very agitated a couple of days ago at the school, wanting the teachers to sit between her and the doorway—concerned a monster was going to get her. Bedford’s recommendation for I.C. was that she remain with K.C. and either live with the maternal grandparents or an adoptive family.
Bedford explained that sexual abuse was suspected with both children. She stated, however, the only thing that concerned her about I.C. was “last year” the teachers contacted her to come observe I.C. during nap time, and I.C. was touching herself and “moaning inappropriately.” Regarding KC., the suspected sexual abuse had to do with the “sexual acting out in her play,” which Bedford said she has not been doing lately.
Bedford stated neither KC. nor I.C. appeared to be afraid of Lisa or Rod, although KC. pretended to put on some wings one time and said she needed to get away from dad. Bedford acknowledged Linda Hebard could be overbearing and that it would be hard for Lisa and Linda to live together in the same house.
Miranda Collins, a family-service worker for Washington County DHS, testified at length. It was her recommendation to terminate the parental rights of Lisa and Rod. She said the children had been placed with the grandparents, Linda and John Hebard, but this was not a potential adoptive placement. She also testified the-children were adoptable. She gave very glowing descriptions of the girls. She testified as follows. -Another family member might serve as a possible placement, maybe a long-term placement, but that person lived |7out of state; if the court did not terminate parental rights, DHS would be able to pursue an IGPC home study; she did not believe K.C. and I.C. would be safe if they were returned to Rod’s custody given “the history and the ongoing concerns with his porn addiction and definitely the testimony of the therapist today”; and the concern about placement with Lisa was that she had remarried Rod earlier -in the year and did so even after he admitted having the porn addiction.
Collins indicated the parents were in partial compliance with the case plan and court- orders; she had not been able to see the conditions of the couple’s home because they lived out of state; and she also had not been able to verify Lisa was taking her prescribed medication to control her anxiety and depression. Collins said she did not feel either parent had demonstrated they could protect the children and keep them -safe from harm..
On cross-examination, Collins acknowledged she had .reported that Lisa had not maintained clean and stable housing despite her having never been to the home because she could not cross state fines; that the same was true, with Rod, She further acknowledged she had also reported Lisa had not maintained stable employment while being aware Lisa was on disability. She also reported Rod had. mot maintained stable employment though she knew he had been employed at Dairy Queen; she did so because his hours vary. Collins confirmed, “Everything I put down that they have not done, is not stuff I really know.” ' ■
Collins further confirmed: she did not know the exact address of Lisa’s sister, who might want to adopt the children; she had not talked to Rod’s or Lisa’s counselors; she had not contacted Rod or Lisa since becoming the caseworker; Lisa and Rod contacted her weekly but she had never called them; she had been the caseworker for two months; Rod 18was attending individual counseling; and Rod took his parenting classes, which he paid for himself.
According to Collins, the girls came into care because Lisa allowed the girls to be around Rod unsupervised; the situation had not been remedied; and instead Lisa remarried and moved in with Rod, who was not supposed to have any unsupervised contact with, the children. On further cross-examination, ■ she acknowledged she did not know the names of any people who had ever seen Rod alone, i.e., unsupervised, with the girls.
Lisa Choate testified as follows. She was prepared to take the children home; her apartment had plenty of room and was clean and safe; she had lived there since February of “this year” and her husband had lived there since December of “last year”; her husband had been employed at Dairy Queen for over a year; she was on disability; they had financial stability; she attended counseling every Tuesday, and she and Rod went twice a month for visitation at DHS; she had attended every visitation; Rod had been going to Celebrate Recovery for over two years; she did not believe DHS,-had provided much assistance with services to get her daughters back; and she did not believe Rod had abused the children and if she did, she would -not be with him.
Lisa testified that if the court told her that day she could have the girls back if she moved out and divorced Rod, she would not do it. She recounted she has been reunited with Rod since February 2016.
Lisa acknowledgéd when shé and Rod divorced, there was a court order that said he could have only supervised visits; she testified he was never around the children unsupervised after the date of the divorce decree. She explained the reason she didn’t feel | flshe should have to give up her husband or her children was because she is convinced “he’s done nothing wrong”; and she said the girls do not ever have a problem being around Rod at the visits.
Rod Choate testified he had been seeing Salley Sutmiller at the Christian Family Institute since September 2014, and'the court had asked for documentation of,his counseling and therapy sessions at the previous hearing. Rod then said that he had brought the requested documentation with him. The attorney ad litem objected based on hearsay; the trial court sustained the objection but allowed the evidence to be proffered.
Rod stated he is in Celebrate Recovery for an adult-porn addiction and he had been addiction free for two years. He explained the steps he had taken to ward off any possible addiction urges. He stated he had never been with his girls unsupervised since the divorce; his girls did not seem to have a .problem being around him; they called him dad and told him they loved him; he took twelve hours of parenting classes; his kids would not be in danger if they came to live with him and Lisa; he had never shown pom to his kids; he had one “slip-up” a couple of months ago, but talked to his therapist at the very next meeting; and the slip-up involved adult pornography, not child pornography. He acknowledged, his previous statement to the court that he had viewed child pornography in 2009, but did not care for it and moved on. He testified he was not suicidal.
David Choate, Rod’s father, who also lives in Tulsa, Oklahoma, testified he has lived there for twenty-six years; he had regular contact with Rod; he believed Rod had made progress on his sexual-addiction issues;' he did not believe he was a danger to the children; |10he knows his son pretty well and does not think he is the kind of guy who would sexually abuse his own children; and if he thought Rod would, he would not be there.
Linda Hebard, Lisa’s mother and, the children’s maternal grandmother, testified the children had been with her since July 15, 2015; they were doing very well; I.C. did have a severe urinary tract infection, as Lisa stated,, but she could not say if that was why I.C. had been, touching herself; she had touched herself on other occasions; I.C. made lots of body movements with her hips—not, like a little girl; it was disconcerting to watch; .she had concerns about the girls being returned to their mother; she thought Lisa showed more affection to I.C. and that K.C. was aware of it; K.C. did not kéep clothes on her dolls; she had concerns about the girls being placed with Rod; Lisa had recently said, “You all don’t have to go home to the wrath of Rod,” talking about his temper; she had witnessed Rod’s lack of control in his temper; she did not think the girls would be safe; the children had improved socially and emotionally since being with her and her husband, but that I.C. had become very anxious in the last month; I.C. talked about somebody coming to the door, it was strange behavior, and she did not know why it had started.
Hebard believed both girls were adoptable, and they needed to be together. Along those lines, she said it was her other daughter who was the family member interested in adopting the girls; her other daughter had five children, two of whom are autistic; she did not even know if that daughter had a home to live in; and she did not think the other daughter would pass a home study. It was Hebard’s opinion that even if Rod were gone, she did not believe Lisa should have the girls because she did not have the stability, interest, or ability to take care of them financially or emotionally.
|nLisa Choate then took the stand again to respond to her mother’s testimony. She testified when she talked about Rod’s wrath, it was because there is animosity between her parents and Rod; Rod knew her mother was overbearing and controlling; he had to deal with her (Lisa) crying every time she came home on Tuesdays; his wrath was not directed at her (Lisa); it was directed at her mom; she was never worried that his wrath would be directed at the girls; and she (Lisa) had an order of protection against Rod until April 2015 because, during the investigation, she did not know whether he was a threat, and Detective O’Dell and Michael Fitch of Children’s Services in Arkansas asked her to get the protective order.
Following the termination hearing, the trial court entered one order terminating the parental rights of both parents. In it, the court found that DHS had proved two statutory grounds by clear and convincing evidence—“failure to remedy” and “subsequent factors.” Ark. Code Ann. § 9-27-341 (Repl. 2015). After conducting our de novo review, we are left with a definite and firm conviction that the trial court made a mistake.
I. The Termination of Rod Choate’s Parental Rights
Rod’s basic contention is that the trial court clearly erred in terminating his parental rights. We agree.
We review termination-of-parental-rights cases de novo. Guthrey v. Arkansas Dep’t of Human Servs., 2017 Ark. App. 19, 510 S.W.3d 793. The grounds for termination must be proved by clear and convincing evidence. McPherson v. Arkansas Dep’t of Human Servs., 2013 Ark. App. 525, 2013 WL 5371937. When the burden of proving a disputed fact is by “clear and convincing evidence,” the question on appeal is whether the trial court’s findings that the disputed fact |iawas proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. We reverse a trial court’s decision to terminate parental rights only when it is clearly erroneous. Guthrey, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Id.
A. Failure to Remedy Ground.
In the termination order, the trial court found in pertinent part:
a. The juveniles have been adjudicated by the Court to be dependent-neglected and have continued out of the custody of the parents for twelve (12) months and despite a meaningful effort by the Department to rehabilitate the parents and correct the conditions which caused removal, those conditions have not been remedied by the parents (see A.C.A. § 9-27-341 (b)(3)(B)(i)(a)).
Specifically, the juveniles were removed from the home on June 11, 2015 and were adjudicated dependent-neglected on August 24, 2015 due to neglect and parental unfitness. The juveniles have thus been outside the custody of a parent for twelve (12) months. Despite a meaningful effort by the Department (evidenced by this Court finding at the Adjudication Hearing on August 24, 2015 and at the Review Hearing on January 13, 2016 and at the Permanency Planning Hearing on June 1, 2016 that the Department had made reasonable efforts toward the goal of reunification), the conditions which caused removal have not been remedied by the parents.
Specifically, this Court found at the Permanency Planning Hearing on June 1, 2016 that “[n] either parent has made significant, measurable progress toward achieving the goals established in the case plan. Neither parent has diligently worked toward reunification. The girls need a consistent, structured home life. The Court finds that the parents have not demonstrated that they can provide such consistent care for the juveniles.” The Court likewise found that both parents were in partial compliance but that “the girls would not be safe if they were returned to the custody of a parent today” and that “the parents have not addressed the root cause of this case: parents’ stability, parents’ inability to properly parent these special needs children, and the Court’s major concern that father poses a threat of sexual abuse to the children. ” The Court found at the Adjudication Hearing on August 2k, 2015 that the juveniles were dependent-neglected due to the fact that Mother failed to protect the children “by violating the 113visitation order and father’s prior addiction to pornography and lack of stability in employment and housing.” The same concerns are present today, and today neither parent has remedied the conditions which caused removal.
(Emphasis added.)
The conditions that caused removal of these two children, as found in the adjudication order and recited in the termination order, were “based on mother’s lack of stability in housing and employment and failure to protect by violating the visitation order and father’s prior addiction to pornography and lack of stability in employment and housing.” (Emphasis added.)
Rod first contends the divorce decree awarded custody of the children to Lisa, not him, and thus, technically, the children were not in his custody at the time of removal. Even if we ignore that fact because it is undisputed that Lisa, Rod, and the children were once again living together in Oklahoma at the time of removal, the conditions cited by the , trial court related to Rod are not supported by the evidence before the trial court. Those conditions were “prior addiction to pornography and lack of stability in employment and housing.” The trial court also recounted in its order the findings from the permanency-planning hearing that the parents had not made measurable progress toward achieving the case-plan goals, had not diligently worked toward reunification, needed a consistent structured home life, and that “the parents had not addressed the root cause of this case: parents’ stability, parents’ inability to properly parent these special-needs children, and the Court’s major concern that father poses a threat of sexual abuse to the children.” The termination order concludes that “[t]he same concerns are present today, and today neither parent has remedied the conditions which caused removal.”
| MAddressing the removal-causing conditions related to Rod under this section, we are unable to find evidence from the termination hearing that supports the trial court’s conclusion. With respect to stability in employment and housing, the DHS family-service worker acknowledged in her testimony she had included several items in her court report that she really did not know:
In my court report I say Lisa has not maintained clean and stable housing, but I admit that I’ve never been to their home, but it’s my understanding that that’s Roderick’s home. They’re married. They live together. It’s just his home because he has maintained the- stability in the house. Even during the divorce, it 'was my understanding that that was his home. I don’t know the exact time frame that he lived" there. I don’t have any idea if it’s clean.
I just said I don’t know* how long they’ve lived there. I can’t say it’s not clean or stable because I don’t know. I haven’t been there. It could be, could not be. As for if it’s their fault I haven’t been there, well, I can’t cross state lines. I can get DHS in Oklahoma to go check out the home.
I say that Lisa has not maintained stable employment, but I am aware that she’s on disability; I’m not requiring her to have stable employment. There were some concerns about Lisa having to sell some things to get to her sessions with the girls. I don’t think we should go around and take everybody’s children away who have to sell some things to make ends meet.
As I said, Roderick has not maintained clean and stable housing, but that is the same apartment we just talked about. He has been employed. He’s employed at Dairy Queen. I don’t know the exact time frame that he’s been employed there, but his [hours] vary, so. If he’s been employed there for about a year, I would say that was stable. I say he’s not maintained stable employment because, again, his hours vary, so it’s not a stable income. It varies. And again, things were having to be sold to get here for visits and such.
I’ve not verified about.what medication he’s taking that’s prescribed. He could be taking his medication as prescribed, but I don’t know. Everything I -put down that, they have not done, is not stuff I really know.
(Emphasis added.)
| ^Similarly, even though the initial declaration in support of the Oklahoma verbal application for emergency custody contained concerning ‘ language about child pornography and fears of child molestation, those allegations were never established in any forum. Here, the only evidence before the trial ■ court about child pornography came from Rod himself, who acknowledged he had viewed child pornography once in 2009—approximately three years before the children were even born, he did not care for it, and he had “moved on.” Moreover, while Rod acknowledged he was addressing through therapy an addiction to adult pornography, we have been unable to find any authority to support the notion that an addiction to adult pornography—as long as the children are not exposed to it in any fashion—provides a basis for termination of parental rights. There was no evidence here that these children were exposed to such material. In addition, the adjudication order described Rod’s issue as a “prior addiction to pornography,” and none of the boxes for “abuse,” “sexual abuse,” or “sexual exploitation”, were checked in the adjudication order.
Our de novo review of the record leaves us with a "definite and firm conviction the trial court made a mistake in concluding that the statutory “failure to remedy” ground was proven by clear and convincing evidence. At worst, it was established that. the family-service worker did not know whether Rod’s housing and employment were stable; at best, it was established that he had lived in the same home since before the parties divorced, and even if Rod’s hours varied, he had worked for Dairy Queen for at least a year, and the only .example of income instability offered was that the couple had to sell things to get to “visits and such.”
1 ujB. Subsequent Factors.
The other statutory ground relied upon by the trial court to terminate Rod’s parental rights was “subsequent factors,” which provides “[t]hat other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile[s] in the custody of the ,parent[s] is contrary, to the juveniles’ health, safety, or welfare and that, despite the offer of appropriate family services, the [parents have] manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent[s’] circumstances that prevent the placement of the juvenile[s] in the custody of the parent[s],” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(A) (Repl. 2015). ■
With respect to the “subsequent factors” finding, the termination order provides -in pertinent part:
Specifically, subsequent to the filing of the original petition in this case, Mother and Father separated. This Court expressed concerns at the Adjudication Hearing about Father’s addiction to pornography. Mother was living with her parents, and she was making'some'progress toward the goal -of reunification. However, subsequent to the January 13, 2016 Review Hearing ■ and before the June 1, 2016 Permanency Planning Hearing, Mother re-married Father. The Court found at the Adjudication Hearing on August 24, 2015 that the juveniles were dependent-neglected due to the fact that Mother failed to protect the children “by violating the visitation order and father’s prior addiction to pornography and lack of stability in employment and housing.” The Court then found at the Permanency Planning Hearing, 9 months later, that “the parents have not addressed the root-cause of this case: parents’ stability, parents’ inability to properly parent these special needs children, and the Court’s major concern that father poses a threat of sexual abuse to the children,” Mother chose to re-marry Father despite being aware that the Court and the Department have serious concerns about Father’s appropriateness and parental fitness. Father has admitted to this Court that he has viewed child pornography. Father has walked around naked, holding the children—and on at least one occasion Father had an erection while doing so. The Mother made a choice in re-marrying the Father, and this subsequent factor demonstrates that the juveniles cannot be placed with Mother and that Mother is not making proper, protective decisions as regards her children. Father has not demonstrated to this Court that he is a fit and proper parent for the children.
117The only “subsequent factors” we can discern the trial court relied upon in finding DHS had proved this ground by clear and convincing evidence was summarized in the above-quoted language from the termination order, which bears repeating: “The Mother made a choice in re-marrying the Father, and this subsequent factor demonstrates that the juveniles cannot be placed with Mother and that Mother is not making proper, protective decisions as regards her children. Father has not demonstrated to this Court that he is a fit and proper parent for the children.” (Emphasis added.)
Lisa’s choices and decisions will be discussed with respect to the termination of her parental rights. Regarding Rod, our de novo review of the record again leaves us with a definite and firm conviction the trial court made a mistake in concluding that the statutory “subsequent factors” ground was proved by clear and convincing evidence. There are no “subsequent factors” relating to housing, employment, or pornography addiction. Rather, the only “subsequent factor” relied on by the trial court appears to be that Rod “has not demonstrated to this Court that he is a fit and proper parent for the children.” We need say no more than to note that the order provides no facts to support “subsequent factors” for Rod and to point out that it is not a parent’s burden to prove he or she is a fit and proper parent; rather, it is DHS’s burden to prove he or she is not. See Ark. Code Ann. § 9-27-325(h)(l) (Repl. 2015).
Because our review of this case convinces us that the trial court clearly erred in finding that statutory grounds for termination of Rod’s parental rights had been proved, it is unnecessary to address the remaining statutory requirements for termination and also | ^unnecessary to address Rod’s remaining arguments. We reverse the termination of Rod’s parental rights to I.C. and K.C.
II. The Termination of Lisa Choate’s Parental Rights
We turn now to the trial court’s termination of Lisa’s parental rights. She contends in part the trial court committed reversible error in terminating her parental rights because DHS failed to prove by clear and convincing evidence that the statutory grounds raised in the petition to terminate existed. We agree.
As explained earlier in this opinion, there is one order terminating the parental rights of both Rod and Lisa. The statutory grounds relied upon by the trial court were the same for both parents: “failure to remedy” and “subsequent factors.” Because we previously quoted the trial court’s termination-order findings, it is unnecessary to repeat them fully here. Rather, we will discuss the findings pertaining jointly or specifically to Lisa.
A. Failure to Remedy Ground.
The conditions causing removal that pertained to Lisa were based on her “lack of stability in housing and employment and failure to protect by violating the visitation order.... ” As with Rod, our de novo review of the record leaves us with a definite and firm conviction the trial court made a mistake in concluding that the statutory “failure to remedy” ground was proven by clear and convincing evidence with respect to Lisa.
As was true regarding Rod and as previously quoted at length, the family-service worker, in effect, testified that “Everything [she] put down that they have not done, is not stuff I really know.” She acknowledged the following relevant information. Lisa was on disability but stated she “was not requiring [Lisa] to have stable employment”; she had some 119concerns about Lisa having to sell some things to get to her sessions with the children but stated she did not “think we should go around and take everybody’s children away who have to sell some things to make ends meet”; and she had never been to Lisa and Rod’s home and had no idea if it was clean or stable (even though her court report stated Lisa had not maintained clean and stable housing). In addition, the court relied on Lisa’s “failure to protect” the children from Rod, but as previously discussed at length under the termination of Rod’s parental rights, DHS provided no evidence upon which to base a conclusion that Rod was doing anything Lisa needed to protect the children from.
B. Subsequent Factors.
The trial court’s findings on this statutory ground have already been quoted in full. It is clear that, with respect to Lisa, the trial court concluded Lisa’s return to living with Rod was the subsequent factor that demonstrated placement of the children with her was contrary to their health, safety, or welfare, and Lisa had manifested the incapacity or indifference to remedy that situation, i.e., to leave Rod. It is impossible to see a basis for concluding that, in returning to Rod, Lisa was not making “proper, protective decisions as regards her children” when DHS did not satisfy its burden of proving he was a threat to the children. Because DHS failed to demonstrate how Rod was unfit and a threat to the children, this “subsequent factor” basis for termination of Lisa’s parental rights must fail also.
As with Rod, because our review of this case convinces us the trial court clearly erred in finding that statutory grounds for termination of Lisa’s parental rights had been proved, it is unnecessary to address the remaining statutory requirements for termination. We therefore also reverse the termination of Lisa’s parental rights to I.C. and K.C.
IsnReversed.
Virden and Harrison, JJ., agree. | [
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DAVID M. GLOVER, Judge
|, Appellant Helen McGowan appeals the Pope County Circuit Court judgment in the amount of $279,158.16 to appellee Misty Massey. She presents two arguments: (1) the circuit court’s findings regarding causation were not established by a reasonable probability and (2) the judgment was excessive. We affirm.
In October 2015, Massey filed a complaint against McGowan alleging that on July 24, 2014, McGowan failed to stop her vehicle at a stop sign, causing a collision with Massey’s vehicle and injuring Massey and her minor daughter, B.A.C. Massey asserted the collision and resulting injuries to her. and her daughter' were due- to McGowan’s negligence; she requested damages for her past medical expenses and lost wages, her future medical expenses, | yher pain and suffering, and B.A.C.’s soft-tissue injuries and neck pain, McGowan failed to timely answer Massey’s complaint; Massey requested a default judgment, which was granted December 4, 2015. After a bench trial on damages held April 26, 2016, the circuit court awarded judgment in the amount of $279,158.16 to Massey, and $500.00 to B.A.C. A final order and judgment was filed July 13, 2016.
I. Causation of Injuries
McGowan first challenges the sufficiency of the evidence of causation of Massey’s injuries, arguing it was speculative that Massey’s injuries—specifically her headaches, fatigue, low-back, neck, and shoulder pain—were caused by the July 2014 vehicle collision. Citing Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972), she contends the law requires more than a mere possibility that certain injuries resulted from negligence; a reasonable probability must be established.
McGowan is precluded from mounting a challenge to the proximate causation of Massey’s injuries, as liability was established by the default judgment. In Jones v. McGraw, 374 Ark. 483, 288 S.W.3d 623 (2008), our supreme court held that while a defendant is entitled to a hearing on damages after a default judgment' has been entered, she is not entitled to challenge her liability at that hearing by attempting to dispel proximate causation. A defaulting defendant is permitted' to challenge proof regarding the amount of damages | ¡¡claimed; however, the damages hearing does not provide a second chance for a defaulting defendant to defend on liability, which would include proximate causation. Id. McGowan’s right to challenge proximate causation was forfeited when she failed to answer Massey’s complaint. Therefore, we affirm on this point.
II. Excessive Verdict
McGowan next contends Massey’s award of $279,158.16 is excessive. When an award of damages is alleged to be excessive, this court reviews the proof and all reasonable inferences most favorably to the appellee and determines whether the verdict is so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the jury. Vaccaro Lumber v. Fesperman, 100 Ark. App. 267, 267 S.W.3d 619 (2007). In determining whether the amount of damages is so great as to shock the conscience of the court, we. consider such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Id.
Here, there are three components of damages—(1) past special damages (past medical expenses and lost wages); (2) future medical special damages; and (3) pain and suffering. Massey asked for and received $16,214.72 in past medical damages and lost wages. McGowan does not contest the $225.00 in lost-wages on appeal, and Massey submitted copies of her medical bills to support the amount of her past medical expenses.
Future medical expenses do not require the same degree of certainty as past medical expenses. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). It is sufficient for the court to consider future medical expenses if a physician testifies the appellee might need ^further medical procedures and appellee still has pain. Id. Here, Dr. Davis set forth (1) the need for Massey to be treated for the remainder of her life for her headaches, as there was no cure; and (2) the necessity of epidural injections two to three times per year for her herniated disc for the duration of her life or, if that conservative treatment does not provide relief, a discectomy. Based on a life expectancy of 44.73 more years, a conservative estimate of Masseys treatment for her headaches is $26,838.00. Regarding her back injury, Massey opted to request the less expensive $60,000 surgical intervention (rather than the injections over the course of her lifetime, which, at the most conservative, would total almost $90,000). Massey’s conservative damages for her past and future medical expenses and lost wages totaled $93,062.72, which is what the circuit court awarded. There was no evidence offered to rebut these calculations.
As for damages for pain and suffering, the circuit court awarded Massey $186,-106.44—twice her special-damages award. Unrebutted testimony was presented regarding the daily pain Massey endures as a result of her headaches, for which there is no cure, only treatment for the symptoms. Both Massey and her husband testified as to how Massey has changed since the accident—she is not able to enjoy outdoor activities as she used to do, she is at times confined to her bed because of her headaches, and she is no longer the person she was prior to the accident. Additionally, Massey is in pain due to her herniated disc, and while surgery might relieve her pain, if she chose to undergo only steroid injections, they are not a cure to her pain, but only a treatment. Massey presented unrebutted proof she suffered permanent injuries that will cause her pain and discomfort, and she is no longer able to be as active as she was prior to the accident. We cannot say the | ¿total judgment of $279,158.16 is so great as to shock the conscience of this court. See Smith v. Galaz, 330 Ark. 222, 953 S.W.2d 576 (1997) ($300,000 award not excessive).
Affirmed.
Abramson and Gladwin, JJ., agree.
. McGowan does not appeal the $500.00 judgment in B.A.C.’s favor. | [
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MIKE MURPHY, Judge
11 Jeffery and Sarah Ford brought suit against their homeowner’s insurance provider, Safeco Insurance Company of America, for denying a claim the Fords allege was caused by a plumbing leak. Safeco moved for summary judgment, and the trial court granted it. The Fords now appeal, asserting that the trial court erred in granting summary judgment. We reverse and remand.
In May 2014, the Fords noticed a low spot in their living room floor. A foundation-repair contractor suspected a plumbing leak. An initial plumbing inspection in May did not detect a problem, but a second test in July concluded there was a leak somewhere under the house. The Fords filed a claim with their homeowner’s insurance provider, Safeco, the same day the leak was detected. Safeco denied the claim. The estimate to repair the damage was about $75,000.
|2The Fords filed a complaint against Safeco alleging that the claim was covered under their insurance policy and that Safe-co had breached the contract by denying it. Safeco moved for summary judgment, asserting that the denial was proper because the policy explicitly excludes loss caused by both (1) settling of foundations or floors and (2) continuous or repeated leakage or seepage of water that occurs over a period of weeks, months, or years.
To support its first point, Safeco included with its motion an affidavit from an engineer who stated that, in his professional opinion, “at the time of construction of the Plaintiffs’ home, there was inadequate compaction of the fill material below the concrete slab foundation,” and that “[a]s a result, the fill material has been settling over time, which in turn caused the concrete slab foundation to settle.” As to the second point, Safeco reasoned that the Fords noticed the damage in May but did not make their claim until July; thus, to the extent a drain-line leak caused or contributed to the damage, it “would have been occurring over a period of weeks by the time Plaintiffs submitted the Claim to Safeco.”
The Fords responded with deposition testimony that they contacted Safeco as soon as they knew a leak existed and provided an affidavit from them own expert, who attested that “the damage to the Plaintiffs’ home was caused by a mechanical failure in the plumbing system located at the premises” and that “[i]t is not possible to determine with any certainty when the plumbing system failure occurred, and any opinion as to the time of the plumbing malfunction would be speculative at best.”
In a one-paragraph order devoid of findings or conclusions, the trial court granted the motion in favor of Safeco, and the Fords now appeal. The sole issue on appeal is whether the trial court erred in granting summary judgment.
(¡¡Summary judgment should be granted only when it is clear that there are no genuine issues of material fact, and the party is entitled to judgment as a matter of law. Smith v. Farm Bureau Mut. Ins. Co. of Ark., 88 Ark. App. 22, 30-31, 194 S.W.3d 212, 218-19 (2004). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On review, we must determine whether there are any genuine issues of material fact. Id. All proof is viewed in the light most favorable to the party resisting the motion, with all doubts and inferences resolved against the moving party. Id.
Safeco contends that the damages sustained by the Fords are excluded under the policy and that summary judgement was proper. The policy covers “accidental direct physical loss” to the home “except as limited or excluded.” A list of those limitations and exclusions ensue. Of note, the policy excludes loss caused “directly or indirectly” by “continuous or repeated seepage or leakage of water or steam, or the presence or condensation of humidity, moisture or vapor which occurs over a period of weeks, months or years” or “settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundations, walls, floors, roofs, ceilings, swimming pools, hot tubs, spas or chimneys.” It also specifically excludes loss from “water damage,” except in cases of “overflow and escape caused by malfunction” or “obstruction ... of a drain or plumbing appliance.”
Which provision of the policy may or may not apply, however, simply cannot be ascertained at this juncture. We must first know what caused the damage. Succinctly, the Fords argue a plumbing malfunction caused the damage to their home, and Safeco refutes the same. On summary judgment, the Fords discarded the shielding cloak of formal Uallegations and supported their claim with deposition testimony, an expert affidavit, a loss report, and coverage-denial letters from Safeco (each letter asserting a different policy exclusion in support of the denial). Our caselaw is replete with the proposition that causation is almost always a question of fact for the jury and not appropriate for summary judgment. Green v. Alpharma, Inc., 373 Ark. 378, 395, 284 S.W.3d 29, 42 (2008).
Safeco argues that it is immaterial whether a plumbing leak also caused, or contributed to, the damages to the Fords’ home because of the broad lead-in clause preceding the exclusions. That’ clause reads as follows:
We do not cover loss caused directly or indirectly by any of the following excluded perils. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in wide spread damages or affects a substantial area.
Safeco’s argument is not persuasive. This provision still contemplates first assigning a “cause” to the loss. Safeco would have us put the cart before the horse in interpreting the insurance policy to deny coverage without ever establishing the cause of the loss. Only when causation is established can it be determined whether and which exclusionary provisions might apply. An award of summary judgment was in error.
Reversed and remanded.
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BRANDON J. HARRISON, Judge
hln 2013 the State charged Hunter with one count of engaging in a continuing criminal enterprise. Specifically, it alleged that Hunter had “violated a felony provision of the Uniform Controlled Substance Act, namely, the Delivery of a Controlled Substance-Cocaine and Methamphetamine.” The State claimed that the violation was part of a continuing series of two or more felony offenses: delivery of co caine and delivery of methamphetamine. It further alleged that Hunter acted in concert with five or more people when he committed “these violations” and that Hunter received substantial income from the operation. The conduct was alleged to have occurred between 2006 and 2013. The State later amended its criminal information to include a habitual-offender enhancement, Ark. Code Ann. § 5-4-501(a)(1) (Supp. 2007).
|2The case went to a bench trial on 8 April 2014 before the Columbia County Circuit Court, and a sentencing order was entered on 28 April 2015. The sentencing order reflects that the circuit court convicted Hunter of one count of engaging in a continuing criminal enterprise and sentenced him to 70 years’ imprisonment in the Arkansas Department of Correction and an additional 10 years’suspended imposition of sentence (SIS) for that count. Hunter appeals the April 2015 sentencing order and the related conditions of the SIS.
I. The Evidence Against Hunter
We first address Hunter’s challenge to the sufficiency of the evidence. He argues that the State did not prove every element of Arkansas’s continuing-criminal-enterprise statute beyond a reasonable doubt and goes through each of the twenty-one trial witnesses’testimony. The standard of review for whether the verdict is based on sufficient evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the. State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Direct or circumstantial evidence may provide substantial evidence to support a verdict. Campbell v. State, 2009 Ark. 540, 354 S.W.3d 41. Substantial evidence is that 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. Circumstantial evidence alone may constitute substantial evidence. Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). When: circumstantial evidence alone is relied upon to support a conviction, it must indicate the accused’s guilt and exclude every other reasonable hypothesis. Id. Only when | ..¡circumstantial evidence requires the fact-finder to speculate and conjecture is it insufficient as a matter of law. Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991).
A. The Primary Felony Offense
Arkansas Code Annotated section 5-64-405 (Supp. 2013), which is the continuing-criminal-enterprise statute, provides that
(a) A person commits the offense of engaging in a continuing criminal enterprise if he or she:
(1) ' Violates . any provision of this chapter that is a felony, except §§ 5-64-419 and 5—64—441; and
(2) The violation is a part óf a continuing series of two (2) or more felony offenses of this chapter, except §§ 5-64-419 and 5-64-441:
(A) That aré undertaken by that person in concért with five (5) or more other persons with respect to whom that person occupies a position of organizer, a supervisory position, or any other position of management; ‘ and
(B) From which that person' obtained substantial income or resources.
Because no exception applies in this, case, the first element the State must prove, under Ark. Code Ann. § 5-64-405 is that Hunter committed a felony under the Controlled Substances Act. See Hughey v. State, 310 Ark. 721, 723, 840 S.W.2d 183, 184 (1992). We call this the “primary felony offense.” And we infer from the record as a whole that the primary offense occurred when Hunter delivered 0.8048 grams of methamphetamine to Rachel Cole in 2007. (We must infer this because the State does not pointedly identify the primary offense for statutory-analysis purposes.)
The State says it proved that Hunter was “engaged in at least two instances of the Class Y felony delivery of controlled substance, one Class C felony delivery of a controlled substance, one Class C felony delivery of a counterfeit substance, and multiple counts of operating a drug premises.” Failing to identify a primary felony offense, the State says only that the evidence showed that Hunter “committed the requisite underlying felonies and these felonies were, no doubt, part of a series of a CCE.”. For due-process reasons, we reject the State’s use of underlying offenses (against Hunter) that were not named in the criminal information. We also remind the State that a prosecutor’s closing arguments should not be cited as substantial evidence supporting Hunter’s conviction. Lawyers’ arguments are not evidence. Ligon v. Stilley, 2010 Ark. 418, 371 S.W.3d 615.
Moving on ... Hunter argued in his motions to dismiss, as he does here, that “at most” the State proved that he introduced callers to the person who eventually sold drugs and that there is no credible evidence that he delivered methamphetamine—only that he “may have possessed” it. Simply possessing a, controlled substance is not a qualifying offense under the continuing-criminal-enterprise statute. See Ark. Code Ann. § 5-64-405 and -419.
1. The trial testimony
The court’s review of the record shows the following. Rachel Cole testified at trial as a State’s witness. She said that she worked with law-enforcement officer Michael Caldwell in 2007 and that she twice tried to buy drugs from Hunter. The first time she called Michael Hunter he told her to go to the Ponderosa, a trailer house that Hunter used. RThere, she bought drugs from Derek Hunter, the defendant’s brother, using money that Officers Wilson and Caldwell provided. Cole explained that she had known Michael Hunter all her life, recognized his voice on the telephone, and that during their telephone conversation she-and Michael had discussed the price of drugs and what she wanted. She further explained that she gave Derek Hunter $100 at the Ponderosa and that he handed her a rock-like substance, which she later gave to Officer Caldwell. Cole also testified about another time she called Michael Hunter, and he told her to go to a trap house on Dempsey; there she bought drugs1 from Cadetric Box. During the course of the direct examination, the State stipulated that Cole didn’t “know what she bought. She’s not a chemist.”
On cross-examination, Cole said that these purchases occurred in September 2007 and that she had started working with Officers Caldwell and Wilson in exchange for the dismissal of an aggravated-robbery charge. She' clarified that when she talked to Michael Hunter she told him that she wanted, to buy some crack cocaine and that “he told me to meet him at the Ponderosa.” When asked if Michael Hunter sold her any drugs, she said “No.” Cole explained that the transaction was recorded because she was wearing a-wire. No recording was introduced as evidence.
Officer Michael Caldwell testified that he had worked narcotics for the Magnolia Police Department since 2007, that he was also currently assigned to an FBI task force, and |Bthat he was an agent with the Drug Task Force. Officer Caldwell stated, in part, that the Ponderosa was located at 131 Columbia 56 and that it was a “location where Michael Hunter and other individuals dealt drugs.” His conclusion was based on police interviews of numerous people. He explained that he and Officer Robert Wilson met with Rachel Cole on 19 September 2007. They told Cole to go straight to the Ponderosa and come back to a prearranged location. Officer Caldwell said they provided buy money to Cole. Cole returned to the prearranged location and gave the officers “the suspected metham-phetamines.” Officer Caldwell explained that the suspected meth was delivered to the Arkansas State Crime Lab and identified State’s Exhibit 13 as the lab-submission report he had signed. He connected State’s Exhibit 13 with State’s Exhibit 14—the latter exhibit being the crime-lab report showing that suspected methamphetamine submitted was in fact 0.8048 grams of methamphetamine dimethyl sul-fone. Hunter expressly waived on the record any right he may have had that a “crime lab person” testify during trial and agreed to the crime-lab report being admitted as evidence against him. Officer Caldwell testified that he did not arrest Hunter in 2007, but continued to surveil him for the next six to seven years. According to Officer Caldwell, Michael Hunter’s usual mode of operation was to use a third party to deliver the drugs.
The Chief of Police of Waldo, Arkansas, Robert Philson, testified that he knew Hunter personally and spoke with Hunter on 28 March 2010 and asked him about some arrests that had been made the day before. During the conversation, Philson said that Hunter admitted that he sold drugs to take care of his family and “put some women on the |7side and pay bills” and that he was arrested with “large sums” of cash in Greenville, Texas, as he was journeying to buy drugs in Dallas.
FBI Special Agent Forrest Avery Ben-ham testified that he talked to Hunter after a search warrant had been executed in March 2013 at Hunter’s residence in Waldo, Arkansas. Hunter told Agent Ben-ham that he would obtain approximately one-half to one ounce of methamphetamine weekly from a family member who was a supplier and that “he did not feel comfortable trafficking in narcotics with just anyone.” Based on his conversation with Hunter, Agent Benham estimated Hunter had been earning about $250 per week for the past three years from selling a one-half ounce of meth. Hunter indicated that, before that three-year period, he had obtained narcotics from a man in Dallas, Texas. Agent Benham testified that Hunter showed him where the drugs he sold were hidden at the house on 205 Angela.
On cross-examination, Agent Benham said Hunter had indicated that he received between thirteen and twenty-seven grams of methamphetamine a week and that Agent Benham considered that a “fair amount of narcotics” for Waldo, Arkansas, although Hunter indicated to Agent Ben-ham that he was “just trying to get by and that he had financial challenges.” On redirect examination, Agent Benham said he estimated Hunter had earned a total of $39,000 in tax-free income over the past three years.
Another witness for the State, Barry Poindexter, testified that he met Hunter at a John Deere dealership in Magnolia, Arkansas around the end of 2004 or 2005. He explained that he developed a business relationship with Hunter by buying methamphetamine from him and then reselling it. He started off with small amounts, and as time went by, worked |sup to a quarter ounce (seven grams). Poindexter testified that between 2007 and 2012 he bought drugs from, or was given drugs by, Hunter more than twenty times. He said that these buys took place “everywhere,” including the Ponderosa. Poindexter explained, in part, that the Ponderosa was a trailer house that Hunter owned. He also said that whenever a drug transaction occurred, wherever it was, it would begin with a call to Hunter, although it was not always to the same telephone number. He said that he had dealt with twenty to thirty different individuals, but mainly with Derek Coleman and Ricky Biddle, following a telephone call to Hunter inquiring about drugs. He said that when he would call Hunter, Hunter would tell him to call another number and that other number “was him [meaning Hunter.]” They would talk “business and prices” and Hunter would tell Poindexter where to wait, and “they would bring me the drugs.” He confirmed that he was “recruited to be a drug dealer for D.D. Hunter.”
2. The testimony and the continuing-criminal-enterprise statute
The statute in force in 2007 when the methamphetamine delivery to Cole was alleged to have occurred provided that the State must prove that Hunter knowingly or purposely delivered methamphetamine. Ark. Code Ann. § 5-64-401 (Supp. 2007). “Deliver” or “delivery” means the “actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship.” Ark. Code Ann. § |s5-64-101(6). Delivery of less than 28 grams of methamphetamine was classified as a Class Y felony for “any purpose other than disposition.” Ark, Code Ann. § 5-64-401 (a)(l) (A) (i).
As we said earlier, Hunter argues that he did not deliver the drugs. But the circuit court, sitting as the fact-finder, could have reasonably found that Hunter constructively transferred methamphetamine to Cole. Although Hunter did not meet Cole when delivering the drugs—nor was he physically present when the meth was transferred—he did participate in the drug transaction by arranging the price and the location for Cole to buy methamphetamine. Cole arrived at the Ponderosa, a known drug location, and received drugs from Derek at the price and location Hunter had prearranged. This circumstantial evidence, combined with Hunter’s admission to law-enforcement agents that he was a drug dealer, and Poindexter’s testimony about the Ponderosa and Hunter’s method of operation, is substantial evidence that Hunter constructively delivered methamphetamine to Cole on 19 September 2007.
B. Continuing Series of Two or More Felony Controlled Substance Offenses
The second element of the continuing-criminal-enterprise statute the State must prove is that the course of illicit conduct spanned a definite period of time; and a “series” is established by proof of three or more related violations. Hughey, 310 Ark. at 723-24, 840 S.W.2d at 184 (internal citation omitted). The Arkan sas Supreme Court has said that “[u]nder the wording of our statute element.two'-is met if there are two felonies under the act in addition to the felony committed by the defendant.” Id. So the State had to prove that the primary offense was part of a continuing series of two or more other felony-drug offenses. Again, Hunter’s sole argument on this element is that the State failed to prove that |inhe delivered methamphetamine. We hold that there was sufficient proof that Hunter constructively delivered methamphetamine to Anna Estes in 2009 and Donnell Burnell in 2011.
1, Delivery to Anna, Estes
Anna Estes testified that she was an unwilling witness for the State. The caveat having been spoken, she then told the court that she went to the Ponderosa numerous times to buy drugs from either Hunter or through one of his associates. She also said that she had a sexual relationship with Hunter and was herself a drug addict. According to Estes, she would text Hunter, he would tell her where to go, and someone would deliver drugs to her car. Estes said that she went to the Ponde-rosa “a lot” between 2007 and 2009 to buy drugs.
On 6 October 2009, Estes was “busted” by Officer Caldwell. She reportedly told Caldwell that she got the drugs from D.D, in Waldo and was delivering them to a friend, Greg Fuller. Estes explained that she was selling drugs at the time to support her habit and that she would hold the drugs for 3-4 days before she sold them. Although she was arrested for selling methamphetamine, Estes received a “break” with a reduced charge and addiction treatment.
On cross-examination, Estes explained that the break she received from the pros? ecuting attorney did not include testifying against Michael Hunter. When she was arrested by Officer Caldwell, Estes was also selling ecstasy pills-, though she had bought them from someone, other than Hunter. Estes clarified that she was arrested in October 2009 but did not make a deal with the prosecuting attorney until 23 June 2011, which included nolle prossed charges. Estes told the court that when she purchased drugs from Hunter, “they Intook place anywhere,” including a hamburger place or in the middle of the street in Waldo. Prior to the transactions, Estes would communicate through text messaging with a person she thought to -be Hunter, though she was not certain it was him. Hunter never appeared- at any of the drug transactions, according to Estes, and he never personally handed her drugs. She also denied that Hunter sent her to a location to buy drugs.
On redirect examination, Estes explained that Hunter provided her with a number to call or text for drugs and that he would text her a new number when he changed phones. On recross, she stated that she did not know for sure who gave her the phone number that she testified Michael Hunter had given her. But on redirect she said that she had no reason to believe it was anyone other than Hunter.
Officer Caldwell testified that Hunter used tracphones and that he used other people’s phones in the course of his drug dealing. Officer Caldwell stated that law enforcement identified one phone that was actually registered to Hunter. He explained that on 6 October 2009 he came into contact with a man named Greg Fuller during, a search of a residence in Magnolia, Arkansas. Fuller had a phone and was in the process of arranging a purchase of methamphetamine and ecstasy from Anna Estes, Officer Caldwell assumed Fuller’s identity and exchanged texts with Estes wherein she agreed to deliver ecstasy and methamphetamine to a certain loca tion. Officer Caldwell surveilled the area and when Estes arrived, he arrested her.
According to Officer Caldwell, Estes told him that she had gotten the methamphetamine from Michael Hunter and the ecstasy from another individual. Caldwell then placed the recovered substances into evidence and submitted it to the Arkansas State haCrime Lab. He testified that State’s Exhibit 11 is a lab-submission sheet that is consistent with the numbers that go with the laboratory report that is State’s Exhibit 12, State’s Exhibit 12 shows that one of the substances recovered was 1.4142 grams of methamphetamine and the other substance was four pills of benzylpipera-zine (BZP). Anna Estes is listed as the suspect on the report.
When Hunter allegedly delivered the meth to Estes in October 2009, the State had to prove that Hunter knowingly or purposely delivered the methamphetamine. Ark. Code Ann. § 5-64-401 (Supp. 2009). “Deliver” or “delivery” means, the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship. Ark. Code Ann. § 5-64-101(6).
The State put on sufficient proof that Hunter constructively delivered methamphetamine to Estes. In addition to his admissions to law-enforcement agents about being a drug dealer that we have already recited, the circuit court heard that Estes frequently went to the Pondero-sa (and other locations) to buy drugs as directed by Hunter to buy drugs. It was up to the circuit court to credit Estes’s testimony as it saw fit to do. While circumstantial, there was sufficient proof that it was Hunter who constructively transferred methamphetamine to Estes; and Estes, in turn, attempted to resell the meth to Greg Fuller but was instead arrested by Officer Caldwell, who recovered the methamphetamine. We reject Hunter’s argument that he cannot be guilty of delivering methamphetamine to Estes because he did not physically deliver the drugs.
11¾2. Delivery to Donnell Burnell
Donnell Burnell, a felon, testified for the State that he agreed to make buys for Agent Crawford of the Drug Task Force. He recalled some work involving Michael Hunter, whom Burnell calls D.D. He testified that he knew Hunter’s voice on the phone and had known Hunter for years. Burnell called Hunter, and Hunter told him to meet him at the Lee Biddle Trailer Park. Burnell explained that Cory Briggs had given him Hunter’s number and that the call was about buying some hard meth or “ice.” When Burnell arrived at the Lee-Biddle Trailer Park, he saw Hunter there but did not speak with him. Corey Briggs handed Burnell “ice,” and Burnell handed Briggs $305 that Officer Crawford had given him.
On cross-examination, Burnell said that the entire conversation he had with Hunter on the phone was recorded. Burnell later explained that the first telephone call he made to Hunter requesting' “ice” was not recorded, but a second call was.
Detective Shawn Crawford testified that he recruited Burnell to assist hiña in the Hunter investigation. Detective Crawford explained that Burnell was “into some trouble” himself for delivering controlled substances. Crawford said that one phone call Burnell made was not recorded. Bur-nell was furnished with electronic-surveillance equipment and $325 of buy money .from the sheriffs buy fund and sent “on his way.”
After Burnell bought the drugs, he met Detective Crawford at a prearranged location and returned the recording equipment and suspected narcotics. Detective Crawford placed the drugs Burnell gave him in an evidence bag and sealed it. The crime-lab submission sheet for that evidence bag, which Detective Crawford signed, was admitted as State’s |uExhibit 2, without objection. The offense date is listed as 08/17/2011 and the suspect’s name is listed as Corey Briggs. State’s Exhibit 7, a crime-lab report, was introduced without any testimony about it and without objection. State’s Exhibit 7 has the same case numbers and offense date (08/17/2011) as State’s Exhibit 2 and reflects that the substance was 3.2348 grams of dimethyl sul-fone methamphetamine.
Officer Caldwell testified that he had listened to an audio tape of Donnell Bur-nell and believed the voices on the tape to be Burnell’s and Michael Hunter’s. State’s Exhibit 5 is a recorded call made on 17 August 2011. The recording begins with “[ajpproximate time is 5:54. Sergeant Michael Caldwell with Detective Shawn Crawford. The C.I. [Burnell] is about to make a phone call to D.D.” The call is essentially about Hunter directing Burnell on how to get to Lee Biddle Trailer Park. There is no mention of drugs.
State’s Exhibit 6 is the August 17 video recording. It captured a conversation between Burnell and Corey Briggs, about money and driving past the trailer park. A conversation between Burnell and Sergeant Caldwell and Detective Crawford follows. Burnell says that D.D. “won’t come out that trailer” and that “he sent Corey to handle it man.” The officers confirmed on the recording that D.D. (Hunter) arranged for the drugs to be delivered to Burnell by Corey Briggs and that he was present at the trailer.
Here, Hunter again argues that he did not deliver methamphetamine to Burnell. Under the statute in place when Hunter allegedly delivered drugs to Burnell, a person who delivers two grams (2g) or more but less than ten grams (lOg) by aggregate weight, including an adulterant or diluent, of methamphetamine or cocaine upon conviction is guilty of a Class B felony. Ark. Code Ann. § 5-64-422 (Supp. 2011). The definition of delivery h ¿remains unchanged: “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship. Ark. Code Ann. § 5-64-101(6).
We hold there was sufficient evidence that Hunter constructively delivered methamphetamine to Burnell in August 2011. There was evidence that Burnell called Hunter, and Hunter negotiated the price and location. Burnell showed up at the location (Lee Biddle Trailer Park). Corey Briggs then exchanged methamphetamine for $305 from the sheriffs buy fund. These facts, combined with the testimony and other admissions we have discussed earlier, is substantial evidence of a constructive delivery of methamphetamine from Hunter to Burnell, through Corey Briggs.
We therefore affirm on the “second element” of the offense under Hughey—that the State sustained its burden of proving a continuing series of two or more felony controlled-substance offenses when it proved that Hunter, at a minimum, constructively delivered methamphetamine to Anna Estes and Donnell Burnell.
C. Organizer, Supervisor, or Some Management Role
The State must also prove Hunter donned the role of organizer, supervisor, or some managerial position in the criminal enterprise and did so in concert with at least five |1fiadditional people. Ark. Code Ann. § 5-64-405(2)(A). On appeal, Hunter argues, as he did in his motion to dismiss at the close of all the evidence that,
[excluding the law enforcement officers, the State paraded a veritable rogue’s gallery of sorry characters before the trial court. Nearly all of them testified only because the State forced them to do so; nearly all of them are drug addicts, convicted felons, or both; and none of them offered any credible evidence that ... any of the persons from whom they purchased drugs acted in concert with, or under the direction or influence of Mr. Hunter.
In Leavy v. State, the supreme court summarized the management provisions of the continuing-criminal-enterprise statute this way:
The government need not establish that the defendant managed five people at once, that the five acted in concert with each other, that the defendant exercised the same kind of control over each of the five, or even that the defendant had personal contact with each of the five. In essence the management element is established by demonstrating that the defendant exerted some type of influence over another individual as exemplified by that individual’s compliance with the defendant’s directions or instruction.
Leavy v. State, 314 Ark. 231, 237, 862 S.W.2d 832, 834 (1993) (internal citation omitted).
1. More evidence on Hunter as CEO
In addition to the testimony we have recited already, more trial testimony is relevant to this leadership element. Officer Todd Dew of the Magnolia Police Department testified that he was present when a search warrant was executed on 21 March 2013 at Hunter’s residence. He explained that he found a total of $1,860 in Hunter’s pants and wallet. Harry Washington of the Hunt County Sheriffs Office in Texas testified that he encountered Hunter as a passenger during a traffic stop on 1-30 in April 2011. Hunter had $5,600 in his tennis shoe. On 2 June 2011, Officer Washington encountered Hunter again while conducting consensual searches on a Greyhound bus. Hunter was carrying $10,984 in his crotch area and that money was seized by the State of Texas.
|17Ashley Ellis testified that she called Hunter in 2011 and told him that she wanted some methamphetamine and met him at the Ponderosa. When she arrived, Michael Hunter left the Ponderosa, and Derek Hunter came in and “gave [her] the dope.”
Saquita Easter, one of Hunter’s girlfriends, testified that Hunter took her to hotels and on trips to Dallas where they stayed and shopped, that Hunter drove a Suburban with rims, and that $20,000 to $30,000 in cash was hidden in the vehicle. Easter said that Hunter would give the cash to a man named Claudie Miller when they got to Dallas. Special Agent Forrest Avery Benham testified that he knew about Claudie Miller’s case and that Miller had been indicted by the U.S. Attorney’s Office and convicted of narcotics trafficking.
Easter also testified that the Ponderosa was where most of the drug transactions took place. She said that Derek “basically pretty much brought D,D. the money back” during the drug transactions. She confirmed that John Armstrong would do the same thing—“[h]e had took something down the road and pretty much just threw it out the window” and would bring back money to Michael Hunter. Ditto for Dexter Greene. On cross-examination, Easter confirmed that Hunter would give drugs to Armstrong to deliver and Armstrong would return with money. The “same thing” would happened with Mr. Coleman and Mr. Green. She confirmed that she only saw this happen with those three people.
|1sJohn David Woodai-d testified that he would call Hunter and tell him he was looking for something [methamphetamine] and Hunter would say “Okay. Well, go to the Dairy.” Woodard would go to the Dairy and somebody would meet him there, usually Derek Coleman, and Woodard would hand over $100 and receive one gram of meth. On cross-examination, Woodard testified that Hunter would never tell him who to go see, “[h]e would just say to go someplace and then somebody would come.”
Jessica Giles said under oath that she received drugs from Hunter in exchange for money or sex on a regular basis. On 15 December 2011 she helped Officer Crawford with his investigation by wearing a recording device and was given $100 in buy money. Giles went to the Ponderosa, and Hunter tried to get her to have sex with him; she refused and put money on a counter. According to Giles, Hunter “got nervous” and told her to sit in the car. A man who called himself J.J. got in the car with her and told her that Hunter had sent him there to give her drugs. State’s Exhibits 8 and 9 were recordings Giles made at Officer Caldwell’s request. These exhibits showed that she ultimately bought the drugs from J. J. Walker.
Officer Caldwell testified that he had surveilled the now infamous Ponderosa using confidential sources who would arrive there, get out with vehicles still running, go inside the Ponderosa, and come out a few seconds later, and report illegal activity.
2. The CEO element and fulling it all together
No single witness (1) testified that Hunter organized, supervised or-managed a criminal enterprise and (2) identified five people who acted in concert with.him. But there was testimony by Saquita Easter that Hunter exerted control over three' people: John 11S Armstrong, Dexter Greene, and Derek Coleman. And Barry Poindexter agreed that Hunter had recruited him as a drug dealer. That’s four people.
The State’s case was additionally based on circumstantial evidence from which the circuit ■ court could reasonably infer that Hunter was the leader of a drug operation. FBI Special Agent Forrest Avery Benham testified that Hunter was a dealer who moved a “fair amount of narcotics” in the area. He based his opinion on the drugs found in Hunter’s residence and Hunter’s confession to him. ■ Law-enforcement officers also found large amounts of cash on Hunter’s person in a traffic stop and on a Greyhound biis, which they implied was consistent with the practice of drug dealers. Easter said that Hunter would take Miller $20,000 to $30,000 in Dallas. Agent Benham testified that Miller was later convicted of drug trafficking. What’s more, the State offered circumstantial evidence that methamphetamine buyers would call Hunter, and Hunter would direct his various dealers when and where to meet the buyers with the drugs. The State established this through the testimony of its witnesses Rachel Cole, Donnell Burnell, Anna Estes, Jessica Giles, John David Woodard, and Ashley Ellis, among others.
Here, the circumstantial evidence and direct testimony was sufficient to support the court’s conclusion that Hunter exerted some type of influence over five (or more) people. Their compliance with his directions or instructions make the case. In the end, we are satisfied that the evidence sufficiently supports the conclusion that Hunter’s drug operation included at least Derek Hunter, Derek Coleman, J.J. Walker, John Armstrong, Dexter Greene, Cade-trie Box, Barry Poindexter, and Corey Briggs—and Hunter was the CEO.
li>nD. Hunter Received Substantial Income From Drug Deals
As a final point, Hunter argues that the State did not prove beyond a reasonable doubt that he realized substantial income or resources from an ongoing narcotics enterprise. We disagree,
The State presented testimony from Hunter’s past romantic relationships. Ashley Martin testified that she traded sex for drugs with Hunter and became pregnant by him in 2009. She said that he had a car-detail shop at one time, that he worked, but she did not ever see him there. According to Martin, Hunter provided about $500-$600 in five years to support the child she had with him. Kellie Dover testified that Hunter would give her money from time to time—“$20 here and $30 there”—to support the child they had together. She said that Hunter had fifteen kids and was not “rolling in a lot of money.” Dover also testified that Hunter did not have a job. Ava Brown testified that she had a child with Hunter in 2007 and that he has helped her some financially— “$100, $150 here and there.” Taiwashan' Satterwhite testified that she and Hunter lived together and had biological children together. According .to Satterwhite, Hunter worked at John Deere “a long time ago,” but she never .saw his paycheck and that he did not pay more than $200 to $300 a month to help support her and the children. On cross-examination, she said that he provided her with a used car and that he filed tax returns but did not receive refunds because “child support took it.”
Dr. Lupetha Rasheed testified in Hunter’s defense. She said that Hunter was a part of a social entrepreneurship project, and he worked at a detail shop that she opened in January 2013. She explained that Hunter made deposits for her business, averaging between [ 21 $2,000 and $3,000. per month, and that the State had wrongly seized some of that money in a civil-forfeiture action but she could not get-the money back because it was being held as evidence.
Given all of the testimony we have recited previously, we hold that the State’s proof was sufficient. The record as a whole supports the conclusion that Hunter was unemployed or underemployed during most of the seven-year period at issue; yet he was shown to have had large amounts of cash at various times. Hunter himself admitted receiving income from, selling methamphetamine, and Officer Avery tes-. tified that he thought Hunter received around $39,000 in three years. Easter testified that she saw Hunter with up to $30,000 cash at one time, and he was stopped by law enforcement on a Greyhound bus with over $10,000 on his, person for an unexplained reason. Dr. Rasheed’s body shop was not opened until 2013, the year Hunter was arrested on the continu ing-criminal-enterprise charge, and it was undisputed that he had not been employed at John Deere for a long time. Yet from 2007 to 2013 he provided financial gifts and support to his girlfriends and numerous children and had large amounts of cash on his person at various times. The circuit court could reasonably infer that Hunter derived substantial income from selling methamphetamine, and the State provided sufficient evidence to indicate Hunter’s guilt and exclude every other reasonable hypothesis. We affirm on this point.
II. The Circuit Court’s Sentence
Sentencing in Arkansas is statutory. Gray v. State, 2014 Ark. 417, 443 S.W.3d 545 (per curiam). No sentence may be imposed unless a statute so permits. Atkins v. State, 2014 Ark. 393, 441 S.W.3d 19. The supreme court has said that an illegal sentence may be | ^corrected by the appellate courts on their own initiative. Cook v. State, 46 Ark. App. 169, 878 S.W.2d 765 (1994) (citing Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994)). A void or illegal sentence is one that fails on its face. Lovelace v. State, 301 Ark. 519, 785 S.W.2d 212 (1990). If a sentence is within the limits set by statute, however, then it is legal. Grissom v. State, 2013 Ark. 417, 2013 WL. 5775663. We have an illegal sentence in this case that requires correction.
A. ■ Hunter’s Illegal Sentence
The plain language of the appealed sentencing order shows that Hunter was given 70 years’ imprisonment in the Arkansas Department of Correction and 10 years’ SIS for one count of engaging in a continuing criminal enterprise. The order also provides that an 840-month period of confinement accompanies the SIS. The order thus presents a couple of problems. (Given the interrelated nature of the sentencing statutes and our detailed discussion of them and the order, we have appended the complete four-page sentencing order to this opinion.)
Ark. Code Ann. § 5-64-405 (Supp. 2013) provides:
(b)(1) A person who engages in a continuing criminal enterprise upon conviction is guilty of an unclassified felony and shall be sentenced to a term of imprisonment up to two (2) times the term otherwise authorized for the underlying offense referenced in subdivision (a)(1) of this section and shall be fined an amount up to two (2) times that authorized for the underlying offense referenced in subdivision (a)(1) of this section.
(2) For any purpose other than disposition, engaging in a continuing criminal enterprise is a Class Y felony.
(c)(1) A person who violates subsection (a) of this section after a previous conviction under subsection (a) of this section has become final upon conviction is guilty of an unclassified felony and shall be punished by a term of imprisonment not exceeding three (3) times that authorized for the | ¡^underlying offense referenced in subdivision (a)(1) of this section and a fine not exceeding three (3) times the amount authorized for the underlying offense referenced in subdivision (a)(1) of this section.
(2) For any purpose other than disposition, engaging in a continuing criminal enterprise is a Class Y felony.
Here, the sentencing range for a first-time, continuing-criminal-enterprise conviction is linked to the primary, underlying drug offense—meaning the section (a)(1) offense. In other words, section (b)(l)’s sentencing range is tethered to the sentencing range of what we have been calling the primary offense (the section (a)(1) offense charged). And early on we said the primary offense (the (a)(1) offense)—with out any help from the State—must have been the 2007 Class Y felony delivery of methamphetamine to Rachel Cole. Under the statute in force when the primary offense was committed, the sentencing range for delivery of methamphetamine was 10-40 years or life, and a $25,000 fine. See Ark. Code Ann. § 5-64-401 (now repealed). Arkansas Code Annotated section 5-64-405(b)(l) provides that the circuit court could imprison Hunter for up to two times the term allowed for the primary (a)(1) offense (the 2007 Class Y delivery of meth to Rachel Cole). Because Hunter did not receive life, the maximum time the court could impose was an aggregate term of 80 years; that number is double the 40-year maximum range for the Class Y felony for delivering meth to Rachel Cole. Ark. Code Ann. § 5-64-405(b)(l). Hunter’s sentence is within the statutory limits.
But the court overstepped its authority when it sentenced Hunter to the 10 years’ SIS for the continuing-criminal-enterprise charge. Arkansas Code Annotated section 5-64-405 forbids that disposition:
(e) An offender found guilty of a violation of this section shall not:
|24(1) Have his or her sentence suspended;
(2) Be placed on probation;
(3) Have imposition of sentence suspended;
(4) Have the execution of the sentence deferred;
(5) Have the sentence deferred; or
(6) Be eligible for § 16-93-801 et seq.
Ark. Code Ann. § 5-64-405(e)(3) (emphasis added). Arkansas Code Annotated section 5-4-104(e)(l)(A)(vi) also states that suspended imposition of sentences are not allowed for continuing-criminal-enterprise convictions. Ark. Code Ann. § 5-64-104 (e)(1)(A) (“The court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for the following offenses.... (vi) Engaging in a continuing criminal enterprise, § 5-64-405.”). We must therefore strike the 120 months’ SIS portion of the circuit' court’s sentencing order because it is not allowed. We also strike the 840--month period of confinement accompanying probation or SIS that is marked in the sentencing order because Hunter could not be placed on probation or SIS for a continuing-criminal-enterprise conviction.
Recall the list of prohibited sentences listed in section 5-64-405 (with emphases added):
(e) An offender found guilty of a violation of this section shall not:
(1) Have his or her sentence suspended;
(¾) Be placed on probation;
(3) Have imposition of sentence suspended;
(4) Have the execution of the sentence deferred;
(5) Have the sentence deferred; or
(6) Be eligible for § 16-93-301 et seq.
Next, we turn to the habitual-offender enhancement. As we stated earlier, the State charged Hunter as a habitual offender under Arkansas Code Annotated section 5-4⅛501 (a)(1). While the State presented evidence of prior convictions, the circuit court did not find that Hunter was a habitual offender in its oral rulings. Additionally, the first-offense (engaging in a continuing criminal enterprise) section in the sentencing order was not marked to show that Hunter was, in fact, sentenced as a habitual offender. In other words, the court made no mark in the habitual-offender box (pursuant to Arkansas Code Annotated section 5-4-501). The third page of the sentencing order, however, identifies “5-4-501 Habitual Offender” as a separate offense, with a separate sentence of 70 years’ imprisonment and 10 years’ SIS. But nothing in the order indicates whether this habitual-offender sentence runs consecutive to or concurrent with the first offense (the continuing-criminal-enterprise conviction). The “total time to be served for all offenses” stated in the appealed sentencing order is .840 months (70 years).
The bottom-line problem is Hunter was only charged with only one crime: engaging in a continuing criminal enterprise. And the habitual-offender statute,'in the phrase of the case law, “does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishment and to furnish a guide for the court or jury in fixing the final punishment in event of conviction of the offense charged.” Traylor v. State, 304 Ark, 174, 176, 801 S.W.2d 267, 268 (1990); Ark. Code Ann. §§ 5-4-501 to-505. The circuit court separately sentenced Hunter to 70 years’ imprisonment and 10 years’ SIS under the “5-4-501 Habitual Offender” statute. But the habitual-offender status is not a separate crime or offense. So on remand the sentencing order must be corrected to show that Hunter was convicted of only one offense: engaging in a continuing criminal | ^enterprise. We affirm, however, the sentencing order’s, statement that the total time Hunter received as a sentence on all offenses is 840 months (70 years).
B. The Circuit Court’s Upward Deviation from the Sentencing Standards
Hunter’s second point on appeal is that the circuit court abused its discretion when it deviated upward by 250% .from the Arkansas Sentencing Commission’s presumptive sentence of 240 months’ imprisonment when it sentenced him to 840 months’ imprisonment. We review this point for an abuse of discretion. Whittier v. State, 2015. Ark. App. 536, 2015 WL 5770144.
The Arkansas Sentencing Standards recommend similar sentences for similar offenders, with similar criminal histories. Ark. Code Ann. § 16-90-801 (Repl. 2016). This helps ensure that sanctions imposed are proportional to the seriousness of the offense of the conviction and an offender’s criminal history. Ark. Code Ann. § 16-90-801(b), (c). Applying the sentencing standards is, however, a voluntary process. A circuit court can deviate from the presumptive sentence without providing a written justification for doing so. Ark. Code Ann. §§ 16-90-803, -804(a).,
Under the voluntary, presumptive standards, there is a grid. Two dimensions of the .grid represent the primary determinants of-a sentence—the offense’s seriousness and the offender’s history. Ark, Code Ann. § 16-90-803(b). The Arkansas Sentencing Commission classifies the seriousness of engaging in a continuing criminal enterprise as - a Level 9 Y offense. Ark. Code R. 154.00.l-III-l (Weil .1994). On remand, the seriousness-level box should be marked level 9, not 8. Offender criminal history is determined by referring to Arkansas Code Annotated section 16-90-803, which allocates points for different levels of | a7prior offenses. Because Hunter’s prior felony records were more than fifteen years old, and his prior misdemeanor record was more than ten years old, they do not count toward his criminal history under the presumptive standards. Ark. Code Ann. § 16r-90-803(C)(v)(b)-(c). Consequently, Hunter’s criminal-history score is 0, which is what he argued to the circuit court during the sentencing hearing. The sentencing order, however, gave Hunter a mistaken criminal-history score, of 2.
Hunter is correct that the presumptive sentence is 240 months (20 years), given his criminal-history score (0) and the seriousness level of the crime (9). Ark. Code R. 154.00.1-III-1. On remand, the presumptive sentence listed in the sentencing order (184.80 months) should be corrected to 240 months. But determining the presumptive sentence for Hunter’s continuing-criminal-enterprise conviction is not the end of the process. Departure criteria and procedures are determined by statute. See Ark. Code Ann. § 16-90-804. The circuit court added 50 years to the presumptive sentence of 20 years. Here is what the court wrote to support such an upward departure:
The offense was a major controlled substance offense if two or more of the following are present: (a) Three or more separate transactions involve sale, transfer or possession with intent; (b) Amounts substantially larger than the statutory minimum which defines the offense; (c) Offense involved a high degree of planning or occurred over a lengthy period of time or involved a broad geographic area; (d) Offender occupied a high position in the drug distribution hierarch; (e) Offender misused position of trust or status or fiduciary duty to facilitate commission; (f) Offender has received substantial income or resources from drug trafficking.
Given the novella-length testimony recited in this opinion against Hunter, and because the presumptive sentencing standards are merely advisory, we hold that the court did not abuse its discretion by departing from the presumptive sentence of 20 years’ imprisonment and j ^imposing 70 years’ imprisonment against Hunter on the continuing-criminal-enterprise conviction.
III. Conclusion
Hunter’s continuing-criminal-enterprise conviction—and the circuit court’s decision to impose a 70-year sentence on that charge—is affirmed. But we remand this case to the court to correct its sentencing order in some particulars. To summarize, on the continuing-criminal-enterprise charge, we strike the 120 months’ SIS and the 840-month period of confinement accompanying the SIS because the statutes do not support those dispositions. Also on remand, the criminal-history score should be a 0, the' seriousness level should be a 9, and the presumptive sentence should be 240 months. Finally, the total sentence imposed should be 840 months; and there should be no separate offense titled “habitual offender.”
Affirmed as modified; remanded to correct the sentencing order.
Hixson and Brown, JJ,, agree.
12sAddendum
. Other witnesses identified Derek as Michael Hunter’s mother’s boyfriend. So it seems there are two Dereks in this case: Derek Hunter and Derek Coleman.
. A bench conference was held where the court ruled that the missing-recording issue was “moot” after hearing arguments that the recording had been lost or destroyed.
. Several witnesses said Hunter is also known as D.D.
. We do not discuss the timing of the deliveries, how the deliveries relate to one another, and whether they meet the test of being a "continuing series.” Hunter argued the topic below, but he abandoned it on appeal. The sole argument on this element is that the State failed to prove that he delivered a controlled substance.
. It is unclear during this direct examination which Derek—Derek Hunter or Derek Cole man—Easter is referring to. .On cross-examination it is apparent that Easter refers to Derek Coleman. | [
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BART F. VIRDEN, Judge
11 This case arises out of a default judgment in the Cleburne County Circuit Court. Patrick Malloy and John Callaghan raise the following three arguments in support of their position that the default judgment should be set aside: (1) Bruce and Jan Smith (the Smiths) did not comply with New York law regarding completion of service; (2) the Smiths’ summonses do not strictly comply with Ark. R. Civ. P. 4(b); and (3) the default judgment against Malloy and Callaghan should be set aside for the reasons stated above and also due to “excusable neglect.” Callaghan further argues that Malloy’s defense of excusable neglect due to illness should inure to him under the .common-defense doctrine. For the reasons set forth below, we find no error and affirm.the circuit court.,
I. Factual History
On June 1, 2015, the Smiths filed a complaint against New York residents Patrick Malloy and John Callaghan in the Cleburne County Circuit Court. In their complaint, they alleged that Malloy and Callaghan only partially, performed the contract they, executed with [2the Smiths and were therefore in breach. The Smiths asserted that in order to meet the costs of running a business owned by their son, Dane, they loaned Malloy and Callaghan around $300,000 between November 1, 2001, and June 27, 2013. According to the Smiths, Malloy and Callaghan promised to repay the Smiths, but they failed to do so after they had made a few payments.
On June 29 and July 1, 2015, the Smiths personally served Malloy and Callaghan at their places of business in New York. On July 13, 2015, the Smiths mailed a copy of the summonses to Malloy’s and Callaghan’s business addresses. On July 16, 2015, both proofs of personal service were filed in the Cleburne County Court. The June 29, 2015 proof of service showed that it was delivered by process server to Patrick Malloy’s workplace, Malloy Enterprises, 14 Bay Street, Sag Harbor, NY 11963, and that Jenny Pagano accepted the summons. The proof of service of the summons dated July 1, 2015, showed that it was delivered by process server to John Callaghan’s place of business at 50 Route 111, Suite 315, Smithtown, New York, 11787 and that it was left with Gloria Scholz. The parties agree that a summons was mailed to Malloy’s and Callaghan’s places of business on July 13, 2015; however, separate proofs of mailing the summonses were not filed within twenty days of mailing.
Neither Malloy nor Callaghan answered the Smiths’ complaint, and the Smiths filed a motion for default judgment on August 17, 2015. In their motion, they asserted that both Malloy and Callaghan had been properly served, but neither party filed a responsive pleading within thirty days,, as required. The Smiths requested a hearing on damages, and a notice of the hearing was mailed to Malloy’s and Callaghan’s places of business. Neither party |aresponded. On October 5, 2015, the damages hearing was conducted, and on October 19, the order awarding the Smiths $285,346.91 (with 10 percent postjudgment interest) was entered.
Malloy and Callaghan filed a joint answer on November 6, -2015, in which they denied they were in breach of contract. Malloy and Callaghan also asserted that they had not been properly served, and thus, the circuit court lacked personal jurisdiction over the parties.
On November 16, 2015, Malloy and Callaghan filed a motion to set aside the default judgment in which they argued that the default judgment against them was void due to insufficient service of process according to both New York and Arkansas law. Malloy and Callaghan also asserted that the court should set aside the default judgment based on “excusable neglect” due to Malloy’s illness from June through October 2015, and that Malloy’s defense inured to Callaghan under the common-defense doctrine. Malloy attached an affidavit from his physician, Dr. William B. Kerr, in which he stated that during May and June 2015, Malloy became increasingly lethargic and that his health deteriorated after a ruptured Achilles tendon on June 4. Dr. Kerr stated in his affidavit that Malloy was in and out of consciousness for an unspecified amount of time, that he was unable to speak clearly, that he could not tend to his daily needs, and that he required 24-hour nursing care. Dr. Kerr asserted that Malloy remained in grave medical condition and had been in the hospital off and on until around October 21, 2015, when he seemed to regain relatively normal functioning. Malloy submitted no other evidence or documentation of his illness.
pThe Smiths responded that service was proper according to both New York and Arkansas law and that Malloy’s illness did not constitute excusable neglect.
On February 2, 2016, there was a hearing on the motion to set aside the default judgment. The court ruled from the bench that the Smiths met the requirements of Ark. R. Civ. P. 4 regarding service, and the circuit court rejected Malloy’s argument regarding excusable neglect, finding that Malloy had failed to “attend to his business[.]” The circuit court took the issue of New York’s requirements regarding proof of service under advisement. On April 29, 2016, the circuit court entered an order denying the motion to set aside the default judgment. In the order, the circuit court found that after having considered the testimony, documents filed in support, arguments of counsel, and “all other evidence and proof’ the motion should be “denied in its entirety.”
Malloy and Callaghan filed a timely notice of appeal.
II. Standard of Review
Arkansas Rule of Civil Procedure 55(c) (2016) governs default judgments, and subsection (c) sets forth the circumstances under which a court may set aside a default judgment:
The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
Our standard of review for an order denying a motion to set aside a default judgment depends on the grounds upon which the appellant claims the default judgment should be | fiset aside. Steward v. Kuettel, 2014 Ark. 499, 450 S.W.3d 672. In eases in which the appellant claims that the default judgment is void, our review is de novo, and we give no deference to the circuit court’s ruling. Id.
For their first and second points on appeal, Malloy and Callaghan assert that the default judgment is void under Rule 55(c)(2) for lack of proper service, and thus our review is de novo. For their third point on appeal regarding excusable neglect, this court reviews the circuit court’s order denying the motion to set aside default for abuse of discretion. See Steward, supra.
III. Issues on Appeal
A. Whether the Smiths Properly Completed Service According to New York’s Rules of Civil Procedure
Malloy and Callaghan argue that the Smiths did not properly perfect service according to New York law, and thus the default judgment against them is void. We disagree, and we affirm.
According to Ark. R. Civ. P. 4(e)(2), service is authorized “in any manner prescribed by the law of the place in which service is made.” The Smiths served Mal-loy and Callaghan in New York pursuant to section 308(2) of the New York Civil Practice Law and Rules, which allows personal service to be made
by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person |fito be served and ... by mailing the suramohs by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential,” such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in ■the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of serviced]
N.Y. C.P.L.R.'§ 308(2) (McKinney 2017). ‘
New York requires that three steps must be completed before service is effected. First, the summons must be delivered to a person of suitable age at the party’s actual place of business. Second, the summons must be mailed to the party’s actual place of business. Third, the proof of service must be filed with the clerk of the court within twenty days of either the delivery or the mailing of service, whichever is later. See Discover Bank v. Fortier, 31 Misc.3d 394, 916 N.Y.S.2d 917 (N.Y. Sup. Ct. 2011).
Malloy and Callaghan admit' that the Smiths personally delivered the summons' to their places of business and that the Smiths mailed the summons to their business addresses as well. Malloy also agrees that the Smiths filed proofs of personal service with the clerk of the court within the specified time. The point of contention between the parties is whether N.Y. C.P.L.R. § 308(2) requires that proof of the mailing of the summons be filed within twenty days of either mailing or personal delivery, whichever had been effected later. Malloy and Callaghan argue that the Smiths failed to file a valid proof of service, because the proofs of service contained proof only that the server had personally delivered the summons to their places of business-, and that the proofs did not show proof of mailing. We disagree.
17Rule 308(2) specifically sets forth that “proof of service shall identify such persons of suitable age and discretion and state the date, time and place of service!;.]” Rule 306, entitled “Proof of Service,” defines what constitutes proof of'service:
(a) Generally. Proof of service shall specify the papers served, the person who was served and the date, time,' address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an-authorized person and in an authorized manner.
(b) Personal service. Whenever service is made pursuant to this article by delivery of the summons to an individual, proof of service shall also include, in addition to any other requirement, a description of the person to whom it was so delivered, including, but not limited to, sex, color of skin, hair color, approximate age, approximate weight and height, and other identifying features.
N.Y. C.P.L.R. § 306(a)—(b).
The two summonses in the record contain the -following information. The first summons shows that it was issued to Patrick Malloy, that it was personally served by process server at his place of business on June 29, 2015, and that it was left with Jenny Pagano. The second summons sets forth that it was personally delivered to John Callaghan at his place of business on July 1, 2015, and that Gloria Scholz accepted it. Both summonses contain a physical description of the person who received the summons.
Malloy and Callaghan do not dispute that the summonses were mailed on July 13, 2015, and that the proofs of service described above were filed on July 16, 2015, and were within the twenty-day time limit. Appellants argue that because the Smiths did not ask leave of the court to file the proofs of mailing late, service was not completed in a timely fashion and the default judgment was void; however, we cannot discern any language dictating that proof of the mailing of the summons must be timely filed in either section 308(2) or section 306.
| sMalloy cites several New York cases in support of his argument. None of the cases are analogous to the case at bar. See Alexander Smith Carpet v. Walter Arnold, Inc., 94 A.D.2d 643, 462 N.Y.S.2d 206 (N.Y. 1983) (in which the New York Supreme Court held that service was defective because the Massapequa address that the summons was delivered to was not the actual place of the defendant’s business or residence); Bossuk v. Steinberg, 58 N.Y.2d 916, 460 N.Y.S.2d 509, 447 N.E.2d 56, 58 (1983) (“[W]e find equally without merit defendant’s contention that proof of the mailing of a copy of the summons, as further required by the statute, was lacking because the Sheriff’s employee who actually did so was not produced. The proof of the Sheriffs regular course of business in this regard sufficed.”); Takeuchi v. Silberman, 41 A.D.3d 336, 839 N.Y.S.2d 71 (N.Y. 2007) (Jurisdiction was demonstrated by plaintiffs’ showing delivery to person of suitable age and discretion at, and mailing to, place that defendant acknowledged was his place of business.); Garrison Fuel Oil of Long Island, Inc. v. Grippo, 127 Misc.2d 275, 486 N.Y.S.2d 136 (Nassau Cty. Ct. 1985) (The court held that it was impossible to ascertain whether service pursuant to CPLR 308(2) was properly- accomplished because the affidavit of service did not list the address to which the copy of the subpoena was mailed.); N.Y. State Higher Educ. Servs. Corp. v. Palmeri, 167 A.D.2d 797, 563 N.Y.S.2d 358, 359 (N.Y. 1990) (Service was not proper because the mailing was made twenty-six days after the service at his residence rather than the required twenty days.).
While section 308(2) does clearly require that the mailing be done within twenty days, it does not establish that the proof of the mailing be filed in order to complete service. Proof of service must be filed but not proof of the mailing. We hold that perfection of service was effected under New York law, and we affirm.
|9B. Arkansas Rule of Civil Procedure 4
Malloy and Callaghan contend on appeal that the Smiths did not comply with Ark. R. Civ. P. 4(b) because the space on the official form of summons for the address of the party being served was left blank, and thus, the default judgment'is void for lack of service. We disagree.
Statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance .with them must be exact in order to give a court jurisdiction over a defendant. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). This court has held that the same reasoning applies to service requirements imposed by court rules. Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 3-4, 306 S.W.3d 428, 430. The technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and compliance with those requirements must be exact. Id. The purpose of the summons is to apprise a defendant that a suit is pending against him and afford him an opportunity to be heárd. Shotzman v. Berumen, 363 Ark. 215, 227, 213 S.W.3d 13, 19 (2005).
Rule 4(b) sets forth that the summons must contain
the names of the parties; be directed to the defendant; state the name and address of the plaintiffs attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
Malloy and Callaghan argue that because the official form of summons required by our supreme court contains a blank space for the defendant’s address, the address must be filled in to meet the Rule 4(b) requirement that the summons “be directed to the | ^defendant.” Malloy and Callaghan cite Shotzman, in support of their argument. In Shotzman, the appellants argued that they complied with the requirement that the summons be “directed to” the defendant. They asserted that there is no requirement that a defendant’s name be set forth after the language on the summons form: “THE STATE OF ARKANSAS TO DEFENDANT(S)” and contended that Rule 4 requires only that the summons be “directed to” the defendant. Because “SEMMC” was listed under the heading “Defendant’s address,” they argued that they had sufficiently complied with the rule. Our supreme court held,
However, this argument is contradicted by this court’s adoption of the Official Form of Summons on May 24, 2001, wherein the court provided that the form was “adopted ... for use in all cases in which personal service is to be had pursuant to Rule 4(c), (d), and (e) of the Arkansas Rules of Civil Procedure.” The language of the official form includes the phrase “THE STATE OF ARKANSAS TO DEFENDANT: _” We are unwilling to conclude that this phrase is nothing more than surplus verbiage, or that it is unnecessary for a plaintiff to • fill in the blank to identify the defendant.
Id. at 227-28, 213 S.W.3d at 19-20.
Shotzman is distinguishable from the instant case. First, the crux of Shotzman is that the summons did not include the correct name of the defendant. Our supreme court held that “[bjecause Sisters of Mercy and SEMMC are entirely separate corporate entities, the Shotzmans’ ‘misnomer’ is fatal because it was ‘material and substantial. [enough] to indicate a different entity or to produce doubts as to the corporation intended to be sued.’” Id. at 225, 213 S.W.3d at 18 (quoting Builder One Carpet One v. Wilkins, 83 Ark. App. 252, 257, 128 S.W.3d 828, 831 (2003)). Malloy and Callaghan do not argue that there was a misnomer or omission on the form of the summons that would have created confusion as to the party being sued. They argue simply that the form had a space for the address of the Indefendant and that information must be filled in on the form to satisfy the requirement that the summons be directed to the defendant.
It is important to note that the official form of summons sets forth that the form complies with Rule 4(b) and “does not modify of amend any part of that rule.” With that in mind, we note that Rule 4 does not specifically require that the defendant’s address be stated on the summons. Arkansas Rule of Civil Procedure 4 requires only that the summons be directed to the defendant, which was done by filling in the correct names of the defendants. Furthermore, the purpose of a summons, as stated above, is to apprise a defendant that a suit is pending against him and afford him an opportunity to be heard. No confusion as to the identity of the parties in this case was alleged, as was contended in Shotzman. We hold that Shotzman is inapposite to the present case.
Malloy and Callaghan also cite Earls v. Harvest Credit Management, 2015 Ark. 175, 460 S.W.3d 795, in support of their argument that service was void; however, Earls is distinguishable from the present ease as well. Our supreme court held in Earls that because the response time was incorrectly stated as thirty days rather than sixty days, the summons was void:
[T]he language of Rule 4(b) requiring that the summons be directed to “the defendant,” or in this case, the Earlses, must be read in conjunction with Rule 12(a), which provides for varying response times for in-state, out-of-state, and incarcerated defendants. Given that Rule 4 and Rule 12 govern summonses and the response times therein, we cannot ignore our case law that states that a summons must comply exactly and not substantially with the requirements of Rule 4(b). Thus, we conclude that the response times for each category of defendant—in-state, out-of-state, and incarcerated defendants—must be correct and exact.
Id. at 6-7, 460 S.W.3d at 799 (citations omitted). In Earls, there was an obvious error on the face of the summons misstating the response time for the defendants. Here, there is no |]2error or omission on the face of the summons that violates or fails to fulfill the requirements of Rule 4.
This case is analogous to Talley v. Asset Acceptance, LLC, 2011 Ark. App. 757, 2011 WL 6064975, in which the appellant argued the summons was fatally defective because the court’s zip code was incorrectly stated on the form. In Talley our court held,
Nothing contained in subsection (b) requires the court address to appear in the summons. In addition, while it is true that the Reporter’s Notes to Rule 4 contain an “Official Form of Summons,” which provides a space for “Address of Clerk’s Office: _,” we have concluded that, in determining whether there has been exact compliance with the service requirements, the language actually set forth in Rule 4 must take precedence over the “Official Form.” This is particularly true in light of the fact that the Reporter’s Notes also provide, “[t]he form ... may be modified as needed in special circumstances.” The Notes go on to explain, “The adoption of this form is in compliance with Rule 4(b) and does not modify or amend any part of that rule.”
Id. at 4.
On this point, we affirm.
C. Excusable Neglect
Malloy and Callaghan argue that the circuit court erred in finding that Mal-loy did not prove excusable neglect due to illness and that they have a meritorious defense to the Smiths’ action; thus, the default judgment should be set aside. Their argument is not well-taken, and on this point we affirm.
As we stated earlier, Rule 55(c) provides that the court may set aside a default judgment when it finds that the defaulting party has proved excusable neglect and has demonstrated a meritorious defense to the action. See Tyrone v. Dennis, 73 Ark. App. 209, 39 S.W.3d 800 (2001).
| isMalloy asserts that he was ill from June to October 2015, and his personal physician supports Malloy’s assertion in an affidavit. Dr. Kerr stated that on June 4, 2015, Malloy collapsed after he had ruptured his Achilles tendon, that following the rupture, Malloy had been in and out of consciousness, that he was eventually diagnosed with deep-vein thrombosis, and that he spent from June to October in “grave medical condition” requiring constant nursing-home care. Dr. Kerr asserted that Malloy was unable to attend to his affairs during this time.
The circuit .court rejected Malloy’s explanation, stating from the bench that “there’s gaps that I’m not satisfied that ... • Mr. Malloy was in fact incapacitated that entire period of time.” In other words, the circuit court did not find Malloy’s testimony or his physician’s affidavit credible. Th’e circuit court found that Malloy had not proved excusable neglect and that Mal-loy had failed to attend to his business.
Our supreme court and this coürt have repeatedly held that failure to attend to business does not constitute excusable neglect. See Maple Leaf Canvas, Inc. v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992); Israel v. Oskey, 92 Ark. App. 192, 202, 212 S.W.3d 45, 51 (2005). We hold that the circuit court did not abuse its discretion in finding that Malloy did not meet his burden of proof regarding excusable neglect.
Because we affirm the circuit court’s decision that Malloy did not prove excusable neglect, there is no need to reach the second prong of the analysis regarding whether Malloy and Callaghan had a meritorious defense to the complaint. See Ark. R. Civ. P. 55(c). Similarly, we need not reach the merits of whether Malloy’s defense inures to Callaghan, or any preservation issues regarding that argument.
| ^Affirmed.
Whiteaker, J., agrees.
Gruber, C.J., concurs.
. The Smiths argue that Malloy and Callaghan failed to obtain a specific ruling on the issue of whether New York law requires proof of service to perfect service. We hold that the ruling obtained was in the nature of a "blanket” ruling and thus preserved for our review. See Sloop v. Kiker, 2016 Ark. App. 125, at 4, 484 S.W.3d 696, 699. | [
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BART F. VIRDEN, Judge
JjA Pulaski County jury found appellant Edward Darnell Rogers guilty of three counts of rape and sentenced him as a habitual offender to an aggregate term of forty years in prison. On appeal, he argues that the trial court erred in denying his directed-verdict motions and abused its discretion in not allowing him to impeach one of the victims with a misdemeanor conviction for theft of property. We agree with Rogers’s second point and therefore reverse and remand.
I. Trial Testimony
In 2003 or 2004, Tia Bryant moved to a neighborhood in North Little Rock with her five children—four daughters and one adult son. Rogers already lived in that neighborhood with his mother. Bryant and Rogers began dating, and Rogers moved into Bryant’s home in 2006.
|2The four daughters from oldest to youngest are L.W. (DOB: 6-23-1994), twins Mi.B. and T.B. (DOB: 6-27-1998), and Ma.B. (DOB: 5-5-2000). All four girls testified that they thought of Rogers as their father and that he had transported them to school and after-school events, had cooked for them, had bought them clothes and shoes, and had even disciplined them. All four girls also testified that Rogers began touching them inappropriately when they were teens. They each described multiple sexual encounters with Rogers that involved penetration. They further testified that Rogers had warned them not to tell anyone about the encounters.
Tia Bryant stated that her daughters eventually told her what Rogers had done to them and that she had made Rogers move out in October 2013. He moved four houses down; he was permitted to keep a key to Bryant’s home; and the children continued to be around Rogers and his family. Bryant testified that Rogers had apologized and that he had said that he made a mistake, that it would never happen again, and that he would continue to support her financially. Bryant said that she gave Rogers the benefit of the doubt and did not report the rapes until November 2014.
Rogers testified on his own behalf, along with various family members, friends, and neighbors. Rogers said that it was his idea to move out of Bryant’s home in 2013 because someone had been stealing from him and because of the lack of space. Rogers stated that he continued to see Bryant’s daughters and continued to act as their father figure. He denied ever having touched them inappropriately and could not understand why they would tell such lies. According to Rogers, Bryant reported the rape allegations because she was jealous when she saw him with another woman and because she was probably upset that he could |3no longer continue to support her financially because he was providing for his wife and five children.
The jury found Rogers guilty of raping L.W., Mi.B., and Ma.B., but the jury found him not guilty of raping T.B. The jury sentenced Rogers to twenty years for raping L.W. and Mi.B. and to forty years for raping Ma.B.
II. Discussion
A. Sufficiency
Because of double-jeopardy concerns, we address Rogers’s challenge to the sufficiency of the evidence before our review of any asserted trial errors. Foshee v. State, 2014 Ark. App. 315, 2014 WL 2159326. A directed-verdict' motion is a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Id.
Rogers contends that there was insufficient evidence to support his convictions for rape because the victims’ testimony was inconsistent; there was no physical evidence of rape; and there was a one-year delay in reporting the alleged crimes.
Defense counsel made the following directed-verdict motions at trial:
|4Judge, on the count against Ma.B., State has failed to meet a prima facie case in that they’ve failed to show that Edward Rogers engaged in sexual intercourse or deviate sexual activity with Ma.B. and that Ma.B. was less than 14 years of age at the time of the. alleged offense.
I’m gonna make the next two motions because they are the same as the [sic] T.B. But the State has failed to make a prima facie case that Edward Rogers engaged in sexual intercourse or deviate sexual activity with either Mi.B. or L.W., and that Mi.B. and L.W. were less than 18 years of age at the time of the alleged offense. And that Mr. Rogers was Mi. B.’s or L.W.’s guardian.
Rogers’s arguments are not preserved for review because they are being raised for the first time on appeal. Defense counsel below made no mention of credibility, the lack of physical evidence, or the victims’ delayed reporting; rather, he challenged the elements of the two rape offenses. In any event, the uncorroborated testimony of a rape victim- alone is sufficient to sustain a conviction. Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007). It is the province of the jury- to decide the credibility of witnesses. West v. State, 27 Ark. App. 49, 766 S.W.2d 22 (1989). Scientific evidence is not required, and the victim’s testimony describing penetration is enough for a conviction. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995).
The victims testified to their ages, to sexual encounters with Rogers involving penetration, and to the notion that they considered Rogers their father for all practical purposes. To the extent the victims’ testimony was inconsistent, it was for the jury to resolve those inconsistencies. Moreover; Dr. Kristen Long testified that it was not unusual to have no physical findings of rape, and Detective Ashley Noel testified that delayed disclosure is normal. The testimony of the victims was substantial evidence to support Rogers’s convictions.
|fiB. Witness Impeachment
For the purpose of attacking the credibility of a witness, evidence that he or she has been convicted of a crime shall be admitted but “only if the crime ... involved dishonesty or false statement, regardless of the punishment.” Ark. R. Evid. 609(a)(2). Rogers sought to impeach L.W. with a prior conviction. The following colloquy occurred:
[Defense]: She has a misdemeanor conviction out of 2014 for theft of property; Before I impeach her for that, I want to make sure are y’all objecting on that?
[Prosecutor]: Yes. It’s a misdemeanor, and it’s over—I mean, it’s over a year old.
[Defense]: It’s a misdemeanor, but it’s in the matter that deals with truthfulness.! ]
[Prosecutor]: Actually!,] theft is not. If it was a forgery, or filing a false police report or something like that.
, | ¿Trial Court: I. agree.! ]
A person commits theft of property if he or she knowingly takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose .of depriving the owner of the property, or obtains the property of another person by-deception or by threat with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103(a)(1) & (2) (Repl. 2013).
The Arkansas Supreme Court has interpreted Ark. R. Evid. 609 to include theft of property as a crime involving dishonesty, See, e.g., Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982) (holding that, because .Floyd’s convictions for burglary and theft were crimes involving dishonesty pursuant to Rule 609, they were admissible without the weighing test); James v. State, 274 Ark. 162, 622 S.W.2d 669 (1981) (holding that a prior conviction for theft involved dishonesty pursuant to Rule 609 and that there was no requirement that the trial court weigh and consider the prejudicial effect). Crimes- involving dishonesty and false statements are regarded as probative of credibility and, can be used to impeach a witness’s credibility. Fronterhouse v. State, 2015 Ark. App. 211, 463 S.W.3d 312. We hold that the trial court thus erred in excluding L.W.’s prior conviction for impeachment purposes under Rule 609(a)(2).
[7Here, Rogers’s counsel did not proffer a certified copy of .L.W.’s 2014 conviction for theft of property. It is well established that error may not be predicated upon a ruling that excludes evidence unless both á substantial right of the party is affected and the substance of the exclud ed evidence was -made known to the trial court by offer of proof or was apparent from the context within which the questions were asked. Jones v. State, 321 Ark. 649, 907 S.W.2d 672 (1995). In West v. State, 27 Ark. App. 49, 766 S.W.2d 22 (1989), this court held that it was’ necessary for the proponent of the evidence to demonstrate that a conviction for hindering apprehension was a crime involving dishonesty or false' statements because there were six different ways to commit that crime—only one of which involved giving false information. Because there was no offer of proof as to the factual circumstances, this. court was unable to determine whether the conviction would have been admissible.
On the other hand, in Fronterhouse, supra, this court held that the trial court erred in excluding evidence of a witness’s misdemeanor convictions for improper use of evidence of registration and criminal impersonation because they were admissible for purposes of impeachment under Rule 609. We distinguished West, supra, and noted that it was not always necessary to demonstrate the underlying facts giving rise to a conviction in order to establish that it involved dishonesty or false statements—especially when the definition of the offense itself clearly demonstrates that dishonesty or a false statement is necessary to be convicted of the offense.
Even though a certified copy of L.W.’s conviction was not proffered here, as was done in Fronterhouse, the record shows that the prosecutor acknowledged that such a conviction existed. The colloquy demonstrated that it was a 2014 misdemeanor conviction lsfor .theft of property. Theft of property, by its very definition and as interpreted by our supreme court, involves an act of dishonesty; therefore, it was not necessary to hear the underlying facts, and no proffer .was required because the substance of the conviction was made known to the trial court. See Jones, supra.
Although the erroneous denial of a defendants opportunity to impeach a witness is subject to a harmless-error analysis, Swinford v. State, 85 Ark. App. 326, 154 S.W.3d 262 (2004), to conclude that a constitutional error is harmless and does ■not -mandate a reversal,, our appellate courts must conclude beyond a reasonable doubt that the error did not. contribute to the verdict. Id.. While the evidence was legally sufficient to support a conclusion that Rogers raped Mi.B. and Ma.B., we are not entirely convinced that the jury would have believed their testimony had Rogers been permitted to impeach L.W. with her prior conviction. Because of the similarity of the sexual acts among these then teen-aged siblings who lived, with Rogers and thought of him as their father, we cannot say that L.W.’s testimony had no bearing on whether the jury believed Mi.B. and Ma.B. For these reasons, we reverse Rogers’s three rape convictions and remand for a new trial or further proceedings.
Reversed and remanded.
Glover, Hixson, and Brown, JJ., agree.
Gladwin and Whiteaker, JJ., dissent.
. Rogers was charged with raping L.W. and Mi.B. pursuant to Ark. Code Ann. § 5-14-103(a)(4)(A)(i) (Supp. 2011 and Repl.- 2013), which, among other things, requires the actor to be the victim's guardian. Rogers was charged with rape pursuant to section 5-14- . 103(a)(3)(A) (Supp. 2011 and Repl. 2013) with • respect to Ma.B. because she was less than fourteen years old.
. In response to the dissenting judges, we note that L.W. was the State’s witness on the stand when defense counsel sought to impeach a witness. It seems only reasonable that defense counsel would seek to impeach the witness who was accusing his client of rape. To be fair, Ms. Hackett was also a witness, but to suggest that defense counsel would want to attack her credibility is illogical because she was later called to the stand by defense counsel to testify on Rogers’s behalf, and she gave testimony that was favorable to Rogers.
. The terms "truthfulness or untruthfulness” and "dishonesty” in Arkansas Rules of Evidence 608 and 609(a)(2) are often conflated. In Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), our supreme court recognized that its interpretation of Ark. R. Evid. 608(b) was too broad in Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), and modified its interpretation of the rule to limit the inquiry on cross-examination to “specific instances of misconduct clearly probative of truthfulness 'or untruthfulness as distinguished from conduct probative of dishonesty.” Rhodes, 276 Ark. at 207, 634 S.W.2d at 110. So, while Rule 608 permits admission of specific instances of conduct involving truthfulness or untruthfulness, Rule 609(a)(2) authorizes admission of convictions for crimes involving dishonesty or false statements,
. Although it would have been the better practice for the trial court to announce its ruling by clearly stating either "sustained” or "overruled,” the prosecutor was the last person to speak before the trial court said, "I agree.” Moreover, the parties were aware that the trial court had sustained the State’s objection given that defense counsel did not proceed with his impeachment of L.W, with her 2014 misdemeanor conviction for theft of property.
. L.W.’s testimony was relevant to proving the charges involving her sisters. Under the pedophile exception to Arkansas Rule of Evidence 404(b), our supreme court has approved allowing evidence of the defendant’s similar acts with the same or other children when it is helpful to show a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373. | [
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PHILLIP T. WHITEAKER, Judge
1tAppellant Aaron Cutsinger was convicted of one count of first-degree murder, one count of attempted first-degree murder, and one count of committing the of fense of first-degree murder in the presence of a child. On appeal, he does not challenge the sufficiency of the evidence; instead, he argues that the circuit court erred in denying his motion in limine to exclude part of a text message. While we agree that the circuit court erred in denying Cutsinger’s motion in limine, the error was harmless in light of the evidence presented at trial. We therefore affirm.
I. Background
Cutsinger had a tumultuous relationship with Leanora Rippy. In September 2015, Rippy’s body was discovered on the side of a mountain road in Sebastian County. She had 12been run over repeatedly by a vehicle. Rippy’s infant son, S.C., was also found on the side of the road a short distance away from her body. S.C. had multiple bruises, contusions, and abrasions on his head and torso consistent with “road rash.” Cutsinger was arrested within days and charged with the murder of Rip-py and the attempted murder of S.C.
Prior to trial, Cutsinger filed a motion in limine seeking to exclude evidence of text messages he had sent to a friend, Scott VanHorn, in the weeks prior to Rippy’s death. The message was part of an exchange of texts between Cutsinger and VanHorn as follows:
Cutsinger: Tell Lea to piss off and her n her kid can brin [sic] in hell fuck off you white piece of luring [sic] trash fucku
VanHorn: I cannot tell her anything like that. And by texting me messages you violate the restraining order.[ ] I can talk about anything else but I cannot do what you asked. This is for everyone’s protection. Hope you understand. Here is hoping you have a wonderful evening.
Cutsinger: Fuck the restraining order I kill them both she a living white ass bitch I’m ready to kill me some cops come on you peace [sic] of shit fuck your n [S.C.] hope you both die
Come at me she done fuck up
You all have God can’t even save you!!!
Specifically, Cutsinger’s motion in limine sought to preclude the State from introducing the last message from him in which he said he was “ready to kill me some cops,” He asserted that the message had no independent relevance because he was “not on trial for any offense committed against the police.” He further argued that any relevance this statement might | shave was outweighed by the danger of undue prejudice, and he requested that the phrase “I’m ready to kill me some cops” be redacted.
The State responded that the entire message went to show Cutsinger’s mental state at the time he sent the threats and that it was relevant because he intended to put his mental state in issue by raising it as a defense. In addition, the State cited Scott v. State, 2015 Ark. App. 614, 474 S.W.3d 516, in which this court found that similar language was relevant and admissible. Relying on Scott, the circuit court denied Cutsinger’s motion and allowed the entirety of the text message to be introduced into evidence.
A Sebastian County jury convicted Cut-singer on all three offenses and sentenced him to forty years in the Arkansas Department of Correction for first-degree murder; thirty years for attempted first-degree murder, and ten years for committing the murder in the presence of a child. The sentences were run consecutively. Cutsing er filed a timely notice of appeal, and argues to this court that the circuit court erred in denying his motion in limine.
II. Standard of Review
When reviewing a denial of a motion in limine, we employ an abuse-of-discretion standard. Gutierrez v. State, 2015 Ark. App. 516, 472 S.W.3d 147. An abuse of discretion is a high threshold; it does not simply require error in the circuit court's decision but "requires that the circuit court acted improvidently, thoughtlessly, or without consideration. Id.
III. Discussion
In his sole argument on appeal, Cutsinger argues that the circuit court abused its discretion in allowing the State to introduce his text message to VanHorn. In particular, he Uargues that the statement, “I’m ready to kill me some cops,” was not relevant, that it was significantly more prejudicial than probative, and that the Scott case on which the State and the circuit court relied is inapposite.
We begin by considering whether the statement, “I’m ready to kill me some cops,” was relevant. Arkansas Rule of Evidence 402 states that “[a]ll relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.” Relevant evidence is evidence that, has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Ark. R. Evid. 401.
Cutsinger’s defense at trial was that he did not have the requisite mental state to commit first-degree murder. He argues that his statement, “I’m ready to kill me some cops,” was not relevant—i.e., did not make it more or less probable—on the issue of whether he purposely killed Rip-py-
We agree. Cutsinger’s mental state at the time of Rippy’s murder and the attempted murder of S.C. was an issue at trial. The portion of his text message in which he wrote, “Fuck the restraining order I kill them both,” was clearly in reference to Rippy and S.C. This statement may -have been relevant to his . intent to cause harm to them. The, portion. of his text message stating, “I’m ready to kill me some cops,” however, was.not in reference to Rippy | fior S.C., as neither of them was a police officer. This statement was irrelevant to the issue of his mental state for the murder and attempted murder of individuals who were not police officers and therefore should not have been admitted. Because we find the statement was not relevant, we do not address Cutsinger’s probative-value arguments.
Nevertheless, the State argued to the circuit court and on appeal that our decision in Scott v. State makes' Cutsinger’s statement both relevant and admissible. In that case, a police officer was permitted to testify that she had observed the defendant,"'Scott, in an altercation with his girlfriend at a nightclub; when the. officer asked Scott to leave" the club, he became visibly upset and said, “Fuck the police and her.” Scott, 2015 Ark. App. 614, at 2, 474 S.W.3d 516, 517. The girlfriend was found dead approximately an hour later. Id. On appeal, Scott argued that .it was error to have allowed the State to introduce the statement, “Fuck the police.” This court disagreed, reasoning that the entire statement—“Fuck the police and her”—coupled with evidence that he was visibly upset at the time, was relevant to show his state of mind shortly before the murder. Id. at 4, 474 S.W.3d at 519.
We find Scott to be distinguishable. In Scott, the statement concerning law enforcement was made nearly contemporaneously with the act of violence against the victim and was relevant to show Scott’s state of mind shortly before the murder. In the instant case, the statement concerning law enforcement was made more than two weeks before Rippy’s death and was not made nearly contemporaneously with the act of violence against her. Its relevance was clearly attenuated for that reason. It would have been a simple matter for the circuit court to excise those six words,- and we find error in its refusal to do so.
| fiThat does not end our analysis, however, because we must determine whether such error prejudiced Cutsinger. The appellate courts of this state have consistently held that under the harmless-error rule, when evidence of guilt is overwhelming and the error slight, we can declare the error harmless. Johnston v. State, 2014 Ark. 110, 431 S.W.3d 895; Gutierrez, supra. In determining whether the error is slight, we look to see if the defendant has been prejudiced. Johnston, supra. Prejudice is not presumed, however, and we will not reverse the circuit court’s ruling unless the appellant demonstrates prejudice by the admission of the evidence. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).
We conclude that the error in the circuit court’s ruling was harmless. The evidence of Cutsinger’s guilt in this case was overwhelming. Rippy’s body was found on Observatory Road in a mountainous area of Sebastian County. The medical examiner testified that her skull had almost been crushed; she had a hinge fracture at the base of her skull; pieces of skull were embedded in her brain; and her clavicle and pelvic bones were crushed. The lack of blood in her abdominal cavity associated with these latter injuries indicated that her head had been run over first, causing near-instant death. The medical examiner explained that the nature of Rippy’s injuries suggested that she had been side-swiped by a vehicle, then run over at least twice.
Police officers who secured the crime scene found a broken-off piece of chrome trim from a fender well on the side of the road; after they had developed Cutsinger as a suspect and went to his home, they observed that his truck was missing a matching portion of chrome trim from the passenger side. Analysis of a tire track found on Rippy’s shirt matched the tire tread on Cutsinger’s truck. DNA testing of multiple samples recovered from the underside 17of Cutsinger’s truck revealed the presence of Rippy’s blood and bodily tissue; in addition, DNA testing of a blood swab taken from Cutsinger’s shoes showed a match to Rippy.-
After his arrest, Cutsinger gave a statement to police in which he initially denied seeing Rippy on the day of her murder. After telling multiple different accounts of what happened that day, including the claim that he accidentally ran over her, Cutsinger eventually admitted to police that he and Rippy had gotten into a fight; he kicked her and her baby out of the car, ran over her with his truck at least twice, and then “got scared” and threw her belongings out of the car, leaving Rippy and the baby for dead. He then drove back down the mountain, washed his car, bought two sandwiches at Subway, and went home to watch a football game.
The foregoing is substantial evidence that Cutsinger killed Rippy by intentionally running over her with his truck multiple times. See Dixon v. State, 311 Ark. 613, 616, 846 S.W.2d 170, 172 (1993) (holding that evidence that the victim was killed by being run over more than twice by an automobile sustained conviction for first-degree murder). Because the evidence of Cutsinger’s guilt was overwhelming and any prejudice caused by the introduction of the text message was slight, we therefore affirm Cutsinger’s convictions.
Affirmed.
Klappenbach and Vaught, JJ., agree.
. It was unclear from the evidence presented at trial whether Rippy had obtained an order of protection against Cutsinger or some other order of restraint.
. A person commits first-degree murder if, with a purpose of causing the death of another person, the person causes the death of another person. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 2015)..
. Photographs of the child were also introduced into evidence, showing the multiple contusions and abrasions on his head and torso. | [
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John Mauzy Pittman, Judge.
Appellant, James A. Duty, was found guilty by the circuit court, sitting without a jury, of speeding and driving under a suspended driver’s license, for which he was fined $50.00 and $500.00, respectively, and ordered to pay court costs. Appellant raises several arguments on appeal. We find sufficient merit in one of his points to warrant reversal and remand for a new trial.
We first consider appellant’s argument that he was denied his constitutional right to a jury trial. Arkansas law gives every criminal defendant the right to a jury trial. The right “shall remain inviolate” unless “waived by the parties ... in the manner prescribed by law.” Ark. Const, art 2, §§ 7, 10; see Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992). The criminal defendant is not required to demand a jury trial, and the contemporaneous objection rule is inapplicable to the failure to afford one a trial by jury. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). “The burden is on the trial court to assure that, if there is to be a waiver of the right to a jury trial in a criminal case, it be done in accordance with the Rule by which we have implemented our Constitution.” Id., 310 Ark. at 749, 841 S.W.2d at 596. In order for a defendant to waive his right to a jury trial, he must personally make an express declaration in writing or in open court. Ark. R. Crim. P. 31.2; Calnan v. State, supra. A waiver is the intentional relinquishment of a known right. Win kle v. State, supra; Calnan v. State, supra. For a waiver to exist, there must be a “voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered.” Franklin v. State, 251 Ark. 223, 229, 471 S.W.2d 760, 764 (1971). Furthermore, the waiver of a jury trial must be knowingly, intelligently, and voluntarily made, and such must be demonstrated on the record or by the evidence. See Williamson v. Lockhart, 636 F. Supp. 1298 (E.D. Ark. 1986); see also Dranow v. United States, 325 F.2d 481 (8th Cir. 1963). A person makes a knowing and intelligent waiver when the person knows that the right exists and has adequate knowledge upon which to make an intelligent decision. Franklin v. State, supra.
In the record now before us, the following discussion took place well into the trial, just before the State rested its case:
THE COURT: ... I just noticed in the file that there was a demand for a jury trial by the defendant, at which time the State advised the defendant, I believe, and advised the Court that it was not seeking any incarceration in the —
[PROSECUTING ATTORNEY]: That’s correct. We’d waive any jail time.
THE COURT: — in the event of a conviction in this case. And, as I understand it, the defendant has withdrawn his request for a jury trial. Is that —
[PROSECUTING ATTORNEY]: That’s correct, Your Honor. We would waive any requirement for —
THE COURT: Is that correct, Mr. Duty?
[APPELLANT]: That’s the way that I understood it when I left Mr. Harper’s office.
Appellant argues that he was erroneously led to believe that he had no constitutional right to a jury trial if no incarceration was imposed. He further argues that he responded only to the remarks concerning the potential for incarceration, not to the issue of a jury trial.
From our reading of the foregoing, we cannot conclude that it constitutes an “express declaration” by appellant of an “intentional relinquishment” of his right to a jury trial. See Calnan v. State, supra. Two separate questions (the possibility of incarceration and waiver of a jury trial) were being discussed at the same time, and appellant’s response to the court was ambiguous at best. Therefore, we reverse and remand for a new trial.
Appellant, who proceeded pro se, also argues that he was denied his right to appointed counsel at the trial. We cannot agree. An indigent defendant does not have a right to appointed counsel in a misdemeanor case unless there is a sentence to imprisonment. Scott v. Illinois, 440 U.S. 367 (1979); Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990); Ark. R. Crim. P. 8.2(b). Assuming for the purposes of this argument that appellant was indigent, the trial court did not err in not affording appellant an attorney as there was no sentence to incarceration.
Appellant next contends that the trial court erred in denying his motion for a continuance made just before trial. As the basis for this motion, appellant stated that he thought that a plea bargain agreement had been reached; thus, he had failed to obtain the presence of a material witness and was unprepared for trial. Although we find no abuse of discretion in the trial court’s denial of the motion, we do not address this matter further as it is not likely to occur again on retrial.
Appellant also argues that the trial judge erred in not disqualifying himself from presiding over appellant’s case. Appellant moved for the trial judge’s recusal, stating that the judge was prejudiced against him and that the judge could be called as a material witness. Appellant stated that in speaking with the court on his first motion for a continuance, the court appeared to appellant to be prejudiced against him. Appellant further stated that the trial judge would be called as a material witness to testify to the fact that appellant had contacted the judge years earlier, while the judge was in private practice, for legal representation and the judge refused.
A judge’s recusal is, discretionary, and his decision will not be reversed absent a showing of an abuse of discretion. Woods v. State, 278 Ark. 271, 644 S.W.2d 937 (1983); Korolko v. Korolko, 33 Ark. App. 194, 803 S.W.2d 948 (1991); Chancellor v. State, 14 Ark. App. 64, 684 S.W.2d 831 (1985). Further, judges are presumed to be impartial and the party seeking disqualification bears a substantial burden in proving otherwise. Chancellor v. State, supra.
From our review of the record before us, we find no evidence of bias or prejudice. At the trial, the judge stated that he was not prejudiced against the appellant and was unfamiliar with the facts of the case. The Arkansas Supreme Court, in Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992), stated that Canon 3.C(1) of the Arkansas Code of Judicial Conduct, which requires recusal for bias and personal knowledge of the facts, does not preclude participation of a judge who has obtained knowledge of facts through previous judicial participation in it. The fact that a judge may have an opinion concerning a case does not dictate that a recusal is required. Rush v. Wallace, 23 Ark. App. 61, 742 S.W.2d 952 (1988). In that instance, whether recusal is required lies within the judge’s conscience. Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987); Rush v. Wallace, supra.
When it becomes necessary for a judge to testify as a material witness, the judge must recuse himself. Arkansas Code of Judicial Conduct, Canon 3.C(l)(d)(iv). However, the fact that a judge improperly fails to recuse himself does not result in reversible error unless there is a showing of prejudice from the failure to recuse. Elmore v. State, 13 Ark. App. 221, 682 S.W.2d 758 (1985). From our review of the record, appellant has not shown how the fact that the appellant contacted the judge years earlier, when the judge was in private practice, for legal representation, would be relevant to this case. Nor has appellant shown how the judge would be a necessary and material witness in the present case. Finally, appellant has not shown how he was. prejudiced by the judge’s failure to recuse. From the review of the record, we cannot conclude that the judge abused his discretion in failing to recuse.
Appellant finally argues that the trial court erred in imposing upon appellant the maximum fine for driving under a suspended driver’s license. There is no dispute that the fines imposed here were within statutory limits. Appellant contends that the court erroneously failed to consider his financial status when imposing sentence.
Appellant’s reliance on Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984) is misplaced. Drain concerned revocation of a suspended sentence and imposition of a sentence to imprisonment for the defendant’s failure to pay a fine, and is inapposite to the facts of this case, which involves the initial sentencing. Appellant’s argument that the trial court was required to consider his financial condition is premature. If appellant should fail to pay his fines, and he is ordered to show cause why he should not be imprisoned for non-payment, his ability to pay should be considered at that time. See Ark. Code Ann. 5-4-203 (Repl. 1993). We cannot conclude that the trial court abused its discretion in fining appellant.
Reversed and remanded.
Robbins and Rogers, JJ., agree.
In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant’s attorney. Ark. R. Crim. P. 31.3. However, this rule is not applicable to the case before us as appellant was not represented by counsel. | [
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BART F. VTRDEN, Judge
|! Debra Mason appeals from several of the Pulaski County Circuit Court’s rulings in her divorce from Charles Mason. Her appeal presents issues relating to alimony and property division. We affirm in part and reverse and remand in part.
I. Background
In March 2010, Charles filed a complaint for divorce from Debra, his wife of twenty-nine years. Charles served as the financial provider for the family for most of the marriage. He is an emergency-room physician. Debra has an accounting degree, but she never received her CPA license and now requires additional schooling to participate in the exam.
A final divorce hearing on Charles’s complaint was held in June 2011. By that time, the parties had agreed to an uncontested divorce and the division of most of their | ¡.personal property. The primary issues remaining to be resolved were Debra’s request for permanent alimony, the disposition and division of the marital home, the division of the parties’ retirement accounts, and debt allocation.
In August 2011, the trial court entered a divorce decree. In the decree, Charles was ordered to pay Debra alimony in the amount of $3500 a month for thirty-six months and thereafter $1500 a month for sixty months or upon Debra’s remarriage, whichever occurred first. The decree provided that the alimony award was based partially on the assumption that the parties would each receive approximately $150,000 from the sale of the marital home. Also pertinent to this appeal is a provision of the decree finding that a Scottrade retirement account is Charles’s nonmarital property.
Debra timely appealed, challenging the alimony award and the finding that the Scottrade account was Charles’s nonmari-tal property. In June 2012, our court dismissed that appeal for lack of a final order because the court did not make a final disposition of the marital home. See Mason v. Mason, 2012 Ark. App. 393, 2012 WL 2337861.
In October 2012, the trial court entered an order that addressed the disposition of the marital home. The order included a provision stating that
[t]he issues of whether the Plaintiff receives credit for any reduction in the principal of the house and any repairs he has made are reserved. If the home is sold, the parties shall deposit any disputed funds into escrow subject to further orders of this Court. This order is not intended to be a final order as there are issues still outstanding.
The house eventually sold for $710,000 in January 2014.
| ¡¡In February 2014, Debra filed a motion to modify alimony. She argued she was entitled to an increase in alimony because Charles’s income had substantially increased since the divorce was, granted and that the award of alimony was based, in part, on the incorrect assumption that the parties would each receive approximately $150,000 from the sale of the marital home. The sale of the house resulted in each party receiving only $39,906.68. Charles opposed the modification.
Charles also filed a motion for summary judgment seeking to have his alimony obligation terminated as a matter of law pursuant to Arkansas Code Annotated section 9-12-312(a)(2)(D) (Repl. 2015). This statutory section, enacted in August 2013—two years after the parties’ divorce decree had been entered—provides, “[ujnless otherwise ordered by the court or agreed to by the parties, the liability for alimony shall automatically cease upon ... the living full time with another person in an intimate, cohabiting, relationship.” Ark. Code Ann. § 9-12-312(a)(2)(D). Debra responded by arguing that this statutory section did not require termination of Charles’s alimony obligation as a matter of law.
In August 2014, the trial court held a hearing on the pending alimony issues— including Debra’s motion to modify alimony and whether Charles’s alimony obligation had terminated pursuant to Ark. Code Ann. § 9-12-312(a)(2)(D). Ultimately, the trial court found that Debra was not entitled to an increase in alimony based on changed circumstances and that Charles’s alimony obligation terminated as a matter of law pursuant to Ark. Code Ann. § 9-12-312(a)(2)(D).
DDebra timely appealed. Again, our court dismissed Debra’s appeal for lack of a final order because the trial court’s October 2012 order indicated that there were outstanding issues relating to the disposition of the marital home. See Mason v. Mason, 2015 Ark. App. 644, 2015 WL 7009290.
The case returned to the trial court for a third time. The trial court issued an order in February 2016, providing that all issues have been previously resolved, that there are no pending motions before the court, and that the matter is closed and this order finalized all issues in this case. Debra timely appealed.
On appeal, Debra contends that the trial court erred by (1) terminating her alimony award pursuant to Arkansas Code Annotated section 9-12-312(a)(2)(D); (2) initial-, ly awarding an improper amount of alimony and by later refusing to modify the alimony award; and (3) determining that the Scottrade account was Charles’s non-marital property.
II. Alimony
As a preliminary matter, we address Debra’s first point on appeal in which she argues the trial court erred in terminating her alimony pursuant to Arkansas Code Annotated section 9-12-312(a)(2)(D). Our court certified this appeal to the supreme court based on the question of whether Arkansas Code Annotated section 9-12-312(a)(2)(D) [^applies. The supreme court held that this statutory section does not automatically terminate alimony awards that were entered before the statute was enacted, and thus, it did not automatically terminate Debra’s alimony as a matter of law as the trial court had ordered. Mason v. Mason, 2017 Ark. 225, 522 S.W.3d 123. Accordingly, w,e reverse the trial court’s order terminating alimony.
With this settled, we turn our attention to Debra’s remaining alimony arguments, specifically whether the trial court erred- in its initial alimony award and its refusal to increase alimony. The law on alimony in Arkansas is well' settled. Our courts have set forth the following guidelines for an award of alimony:
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. The primary factors to consider are the financial need of one spouse and the other spouse’s ability to pay. 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.
Dozier v. Dozier, 2014 Ark. App. 78, at 4-5, 432 S.W.3d 82, 85. An award of alimony is subject to modification upon' application of either party. Matthews v. Matthews, 2009 Ark. App. 400, 322 S.W.3d 15. Modification must be based on a change in circumstances, and the party seeking the change bears the burden of showing the change. Id.
The decision to award alimony is a matter that lies within the trial court’s sound discretion, and an award of alimony will not be reversed absent an abuse of that discretion. Cummings v. Cummings, 104 Ark. App. 315, 292 S.W.3d 819 (2009). Abuse of discretion is |fia high threshold that does not simply require error in the trial court’s decision; it requires that the trial court act improvidently, thoughtlessly, or without due consideration. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007).
First, we consider whether the trial court’s initial alimony award amounts to reversible error. Debra requested lifetime alimony from Charles in the amount of $12,198 a month. The trial court awarded her alimony in the amount of $3500 a month for thirty-six months and thereafter $1500 a month for sixty months or upon Debra’s remarriage, whichever occurred first. She contends this amounted to an abuse of discretion.
We disagree. At the time of the parties’ divorce Debra, had recently acquired a job making $39,000 a year. By . contrast, the testimony indicated that Charles had a net monthly income of $15,000 to $16,000 at the time of the final hearing. On its face, this award does indicate disparity. However, we are reminded that,.during this time, Charles was also, making the parties’ $5884 mortgage payment. Additionally, Charles’s accountant testified that he was having difficulty meeting his financial obligations.
We hold thát the trial' court did not abuse its discretion in its initial alimony award. There is evidence to support the trial court’s findings,- and it is apparent that the trial court did not act thoughtlessly and without due consideration when awarding alimony. Taylor, supra. The divorce decree includes detailed findings on its alimony award. The court considered Debra’s need for alimony; Charles’s ability to pay; the length of the, marriage; the incomes and expenses of both parties; the financial circumstances of the parties; the amount and nature of the income, both current and anticipated, of both parties; and the |7extent and nature of the resources and assets of both parties. Accordingly, we affirm on this point.
Secondly, we consider whether the trial court’s refusal to modify Debra’s alimony was reversible error. In support of her motion for modification of alimony, Debra highlighted evidence that Charles’s income significantly decreased around the time of the initial divorce proceedings, increased almost immediately following the entry of the decree, and remained substantially higher than it had been during the divorce proceedings. Debra is dubious of these changes. In addition, the initial alimony award was based partially on the assumption that each party would receive approximately $150,000 after the sale of the marital home. Instead, each party received only $39,906.68 from the sale of the marital home. Debra argues that these facts amount to a change in circumstances and support her request for a modification of alimony.
Charles points to several other facts that the trial court could have considered when it denied the motion to modify alimony. For example, although neither party received the anticipated payout from the sale of the marital home, Debra benefited from Charles paying the mortgage on the house for much longer than either party had expected. Additionally, she is in good health, and while not capable of the earning potential of her ex-husband, she has a college degree in accounting. Since the divorce decree was entered, Debra has taken 18a job where she earned more money than she did at the time of the entry of the decree—approximately $72,000 a year.
When evaluating this issue, we are reminded that the purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties. Dozier, supra. And we reverse when a trial court abuses its discretion regarding the modification of alimony. With these standards in mind, we must reverse the trial court’s refusal to modify alimony. The evidence demonstrates that Charles’s income increased dramatically, and at the same time, his obligations to Debra decreased in that his obligation to make the house payment terminated. Additionally, neither party received the anticipated payoff from the sale of the house—a factor the trial court clearly considered important to the initial alimony determination. Although it is correct that both parties saw their income increase after the divorce, there remains a substantial economic imbalance between the parties that the current alimony award does not sufficiently address. We reverse the trial court’s refusal to modify alimony and remand the issue to the trial court for further proceedings.
III. The Scottrade Account
The trial court awarded Charles a Scottrade investment account as his non-marital property, and Debra contends that this is reversible error. The evidence demonstrated that the Scottrade account was funded by Charles with proceeds from an inheritance from his father, but the account was maintained in both parties’ names.
| ¡¡Property acquired by inheritance is not ordinarily considered marital property. See Ark. Code Ann. § 9-12-315(b)(1). However, “once property ... is placed in the names of persons who are husband and wife without specifying the manner in which they take, there is a presumption that they own the property as tenants by the entirety, and clear and convincing evidence is required to overcome that presumption.” McLain v. McLain, 36 Ark. App. 197, 199, 820 S.W.2d 295, 296 (1991). Clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he or she testifies is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the fact-finder to come to a clear conviction, without hesitation, of the truth of the facts related. Id. at 199, 820 S.W.2d at 296-97. Because Charles placed his inherited funds into an account maintained in both parties’ names, the funds were presumed marital and it was his burden to prove otherwise. The relevant inquiry for our review is whether the trial court clearly erred in finding that Charles established by clear and convincing evidence that the Scottrade account was his nonmarital property.
The evidence reflects that Charles funded the Scottrade account with proceeds from an inheritance and that he never contributed any marital funds to the account. Charles testified that he used the funds in this account as his “play” account. Debra provided competing evidence that she handled the parties’ finances and used the account to pay bills during the marriage. She testified that they would use the account to pay for anything that had been purchased if the balance on a certain credit card was too high.
ImThe clear-and-convincing standard is high. That evidence must come from a witness “whose memory of the facts about which he testifies is distinct, whose narration of the details thereof is exact and in due order, and whose testimony is so clear, direct, weighty, and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the truth of the facts.” Id. Here, we hold the trial court clearly erred in finding that Charles met this standard. Charles did not present distinct and detailed information about the account and how it was used. Accordingly, we reverse and remand on this issue for an order consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Harrison and Glover, JJ., agree.
. Three circuit judges have issued rulings in this case. Judge Vann Smith originally presided over the proceedings, Judge Smith later ■recused because he had been consulted by the legislature on Ark. Code Ann. § 9—12— 312(a)(2)(D), and Judge Christopher Palmer was assigned to the case. Judge Palmer decided the issues relating to the termination and 'modification of alimony. Judge Cathleen Compton succeeded Judge Palmer on the bench, and she issued the February 2016 order.
. Because the trial court terminated alimony pursuant to Arkansas Code Annotated section 9-12-312(a)(2)(D), it is unclear whether the court gave much consideration to Debra’s motion to modify alimony. Irrespective of this, the trial court denied her motion. | [
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John B. Robbins, Chief Judge.
In this workers’ compensation case, appellee Ronnie Furman prevailed on an appeal by appellant Second Injury Fund, and now seeks an award of an attorney’s fee against the fund. His motion must be denied.
The general rule in Arkansas is well settled that attorneys’ fees are not awarded unless expressly provided by statute or rule. Ark. Okla. Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998); City of Ozark v. Nicholas, 56 Ark. App. 85, 937 S.W.2d 686 (1997).
As authority for granting his request, appellee cites Ark. Code Ann. section 11-9-715(b)(1) (Repl. 1996), which provides:
(1) In addition to the fees provided in subdivision (a) (1) of this section, if the claimant prevails on appeal, the attorney for the claimant shall be entided to an additional fee at the full commission and appellate court levels, the additional fee to be paid equally by the employer or carrier and by the injured employee or dependents of a deceased employee, as provided above and set by the commission or appellate court.
Flowever, this subsection does not mention the Second Injury Fund. It cannot reasonably be contended that the terms “employer or carrier” include the Second Injury Trust Fund, because the legislature specifically names the Second Injury Trust Fund when it speaks of that entity. The best example of such is in this same code section 11-9-715 (a) (2) (A) that addresses proceedings before an administrative law judge. It directs the Commission to award an attorney’s fee from the Second Injury Trust Fund when it finds that a claim against the fund has been controverted but compensation is awarded. The attorney fee provision of section ll-9-715(b)(l) pertaining to appeals from the administrative law judge to the full Commission and appellate courts simply does not similarly provide for a fee to be paid from the Second Injury Fund.
We believe this motion only requires an application of the law. However, if we perceived an ambiguity in these statutory provisions and undertook to construe them, we would be obliged to construe section 11-9-715(b)(1) strictly. Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996). Consequently, a strict construction would likewise require us to deny an award of an attorney’s fee against the fund.
Although we might think it unfair that appellee is not entitled to an award from the Second Injury Fund for attorney fees he has incurred on this appeal, it our duty to apply the law. The law does not permit such an award and we deny appellee’s motion.
Pittman, Arey, Jennings, Stroud, and Meads, JJ., agree.
Bird, Rogers, Neal, Griffen, Crabtree, andRoAF,JJ., dissent. | [
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Andree Layton Roaf, Judge.
Joshua M. Heagerty appeals from the denial of his motion to transfer six narcotic-related charges from Lonoke County Circuit Court to Lonoke County Chancery Court, Juvenile Division. On appeal, he argues that the circuit court erred in refusing to transfer his case to juvenile court. We reverse.
In May of 1997, Heagerty was charged by information with two counts of delivery of cocaine and four counts of delivery of marijuana. The offenses allegedly occurred during a one-month period between August 24 and September 24, 1996. On June 3, 1997, Heagerty moved to have his case transferred to juvenile court. A hearing on this motion was conducted on July 8, 1997, less than a week before Heagerty’s eighteenth birthday.
At the hearing, undercover narcotics officer Jason Young testified that he made the first drug buy in August of 1996, shortly after Heagerty had turned seventeen. However, he claimed that charges were not filed for nine months to protect his identity in an on-going investigation. Officer Young testified that the four narcotics buys that he was personally involved with took place on the Cabot High School parking lot.
Heagerty also called his mother, Sheila Heagerty, to testify. Mrs. Heagerty had been a teacher in the Cabot middle school for twenty-one years. She stated that her son had always been a good student until she and her ex-husband got a divorce. She stated that the divorce “really had a big effect on Joshua,” that he quit basketball and other sports, his grades went down, and that she “kind of [lost] him” for several months in the fall of 1996. Mrs. Heagerty stated, however, that after she took her son’s truck from him and sent him to a short-term drug treatment facility called Recovery Way in March of 1997, his grades returned to A’s and B’s and that she had no further problems with him. Ms. Heagerty further testified that Joshua had graduated from high school, was going to recovery meetings, attending church, working for a landscaping service, and was enrolled for the fall semester at Arkansas State University in Jonesboro.
The circuit judge denied the motion to transfer. In his ruling from the bench, the judge stated that the six narcotics buys showed a “repetitive pattern,” and apparently based his ruling on that finding.
Heagerty argues that the trial court erred when it denied the motion to transfer charges from circuit court to chancery court, juvenile division. He contends that the circuit court erred in refusing to transfer his case to juvenile court because he met his burden of proof under Ark. Code Ann. § 9-27-318(e) (Supp. 1997), and because the State failed to show by clear and convincing evidence that he should be tried as an adult. He asserts that his mother’s testimony that he was a good child, did well in school, only got into trouble during a brief period when he was affected by his parents’ divorce, and became a “model citizen” after short-term, in-patient treatment at Recovery Way proved that he was an excellent candidate for rehabilitation. He argues that conversely, the State presented no evidence regarding any of the statutory factors except the seriousness of the offense, and did not meet its burden of proof. He contends that he had no prior convictions, and his only previous experience with the criminal justice system was pursuant to a juvenile charge of possession, which was dismissed. Heagerty also urges this court to find his case analogous to Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992), where the supreme court reversed a decision refusing transfer for a sixteen-year-old who had no prior felony record, attended school, made passing grades, was not a problem at home, and employed no violence in the commission of the charged offense, possession of a controlled substance with intent to deliver, involving possession of fifteen rocks of crack cocaine. His argument has merit.
Pursuant to Ark. Code Ann. § 9-27-318(e), a circuit court’s decision to retain jurisdiction of criminal charges against a juvenile must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f); Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Wright v. State, 331 Ark. 173, 959 S.W.2d 50 (1998). When reviewing the denial of a motion to transfer to juvenile court, the appellate court views the evidence in the light most favorable to the State. Id. The circuit court’s decision to retain jurisdiction should not be reversed unless the decision is clearly erroneous. Id.
When deciding whether to retain jurisdiction of or to transfer a case to juvenile court, the factors that the circuit court must consider are:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, or any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Ark. Code Ann. § 9-27-318(e). (Emphasis added.) A circuit court does not have to give equal weight to each factor, nor does evidence have to be presented as to each factor. Wright v. State, supra.
Here, we find from the trial judge’s comments from the bench when making his ruling that he misapplied the law in deny ing Heagerty’s motion to transfer. The trial judge simply stated that “six buys shows a repetitive pattern.” This finding obviously referred to Ark. Code Ann. § 9-27-318 (e)(2), which allows a trial judge to consider recidivism on the part of a juvenile previously committed to the juvenile justice system in his decision of whether to try him or her as an adult.
The plain language of the statute, however, does not allow mere nonadjudicated charges, no matter how numerous, in and of themselves to be proof of recidivism. Id. Moreover, the subsection also specifies what will constitute competent evidence for deciding to apply this factor to deny transfer, i.e., “past efforts to treat and rehabilitate the juvenile and response to such efforts.” Id. The statute necessarily presupposes prior adjudications in the juvenile justice system, and the supreme court has held that “one prior adjudication and attempted rehabilitation does not a repetitive pattern make.” McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). Juvenile delinquency laws are penal in nature, Walker v. Arkansas Dep’t of Human Servs., 291 Ark. 43, 722 S.W.2d 558 (1987), and it is well settled that statutes that are penal in nature are to be strictly construed. Beebe v. State, 298 Ark. 119, 765 S.W.2d 943 (1989); Burnett v. State, 51 Ark. App. 144, 912 S.W.2d 441 (1995). We find that strictly construing the statute leads to the inevitable conclusion that the trial judge misapplied the law.
Furthermore, in the instant case, there is no evidence of a failed attempt at rehabilitation. The State adduced evidence only as to the seriousness of the offenses and conceded that there was no violence involved. It did not present evidence that could support a conclusion that Heagerty is beyond rehabilitation, nor did it present evidence of his prior history, character traits, mental maturity, or any other factor which would sustain a finding regarding his prospects for rehabilitation. Conversely, Heagerty presented clear evidence that he was on the road to rehabilitation even before the charges had been filed against him.
Finally, Blevins v. State, supra, is clearly analogous; both Blevins and the instant case involved serious drug offenses and no use of violence. Moreover, Heagerty, like the juvenile in Blevins, has no prior record of juvenile adjudication. Also like the juvenile in Blevins, Heagerty presented evidence that he was making good grades in school and his mother testified that he was not a discipline problem at home. The instant case is only distinguishable from Blevins in the number of narcotics-related offenses that Heagerty was charged with and the fact that Heagerty was one year older than the juvenile in Blevins at the time that the offense was committed and when he moved to transfer. In Blevins, the supreme court held that, under the circumstances, the seriousness of the offense alone did not outweigh the evidence on the other factors proven by Blevins at the hearing, and that the trial court was clearly erroneous in refusing to transfer the case.
We are not unmindful of the supreme court’s holding some nine months later in Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992), a case also involving facts strikingly similar to Heagerty’s case. Hogan, like Heagerty, had been charged with multiple counts of delivery of marijuana and cocaine, possessed cocaine on school premises, had no prior record, was doing well in school and planned to attend college.
However, Hogan’s age proved a crucial factor in the court’s decision to affirm the denial of transfer. Hogan was one month short of his eighteenth birthday when he was arrested and was eighteen when his motion to transfer was filed. Quoting from Bright v. State, 307 Ark. 250, 819 S.W.2d 7 (1991), the court said:
the appellant was seventeen years and seven months old at the time of the crimes, and has now reached his 18th birthday. A person who has reached his 18th birthday cannot be committed to a youth services center. Ark. Code Ann. § 9-27-331(a)(1) and 9-28-209(a)(1) (Supp. 1991).
311 Ark. At 254, 843 S.W.2d at 831.
Heagerty’s crimes were committed shortly after his seventeenth birthday, and although charges were not filed for nine months, he was seventeen at the time of his transfer hearing. Indeed, in recent cases, the supreme court has stated that it is permissible to consider a defendant’s age in evaluating the availability of proper rehabilitative services. Oglesby v. State, 329 Ark. 127, 946 S.W.2d 693 (1997); Smith v. State, 328 Ark. 736, 946 S.W.2d 667 (1997). Furthermore, we acknowledge that the State is precluded by statute from committing Heagerty to a juvenile deten tion facility because he has now reached his eighteenth birthday. Ark. Code Ann. § 9-28-209 (Supp. 1995).
However, commitment to a “youth services center,” or boys training school, is not the only option available to the juvenile court when an adjudication of delinquency is made. See Ark. Code Ann. § 9-27-330 (Supp. 1995). More importantly, since Hogan was decided in 1992, the legislature in 1995 greatly expanded the dispositions available to the juvenile court upon a finding of delinquency, from eight to fifteen. Id. The fifteen alternative dispositions available are listed in Ark. Code Ann. § 9-27-330, and include probation, fines, voluntary community service, suspension of driving privileges, and residential detention with electronic monitoring. In addition, the juvenile court may retain jurisdiction over the juvenile until he or she reaches twenty-one years of age. Ark. Code Ann. § 9-27-303 (Supp. 1995).
We are not unmindful of the supreme court decisions handed down since the legislature expanded the dispositions available to juvenile court, in which it affirmed a trial court at least in part because the juvenile involved was near or over the age of eighteen. In all of these cases, however, the supreme court found that the prospect for rehabilitation in the juvenile system was nil. In the instant case, the uncontroverted evidence that Heagerty had made excellent progress toward rehabilitation without commitment to the Department of Youth Services can lead us to no other conclusion that his prospects for rehabilitation through one of the alternative dispositions are good. Consequently, the stated rationale for denying transfer to a person near or over the age of eighteen has absolutely no application under these circumstances.
For the foregoing reasons, we conclude that the trial court was clearly erroneous in denying the motion to transfer. Clearly erroneous means that 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. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). We are left with such a definite and firm conviction in this instance. Accordingly, we reverse and remand to the trial court for proceedings consistent with this opinion.
Reversed and remanded.
Stroud, Crabtree, and Neal, JJ., agree.
Meads and Griffen, JJ., dissent.
Jones v. State, 332 Ark. 617, 967 S.W.2d 559 (1998); Rhodes v. State, 332 Ark. 516, 967 S.W.2d 550 (1998); Wright v. State, 331 Ark. 173, 959 S.W.2d 50 (1998); Brown v. State, 330 Ark. 518, 954 S.W.2d 276 (1997); Majesty v. State, 330 Ark. 416, 954 S.W.2d 245 (1997); Rice v. State, 330 Ark. 257, 954 S.W.2d 216 (1997); Fleetwood v. State, 329 Ark. 327, 947 S.W.2d 387 (1997); Oglesby v. State, 329 Ark. 127, 946 S.W.2d 693 (1997); Smith v. State, 328 Ark. 736, 946 S.W.2d 667 (1997); Jensen v. State, 328 Ark. 349, 944 S.W.2d 820 (1997); McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997); Jones v. State, 326 Ark. 681, 933 S.W.2d 387 (1996); Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996); Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996); Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Macon v. State, 323 Ark. 498, 915 S.W.2d 273 (1996); Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996); McGauchy v. State, 321 Ark. 537, 906 S.W.2d 671 (1995). | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with two counts of delivery of a controlled substance. After a jury trial, he was found guilty of two misdemeanor counts of possession of a controlled substance. He was sentenced to a term of eighteen months probation with fourteen days in the Grant County Jail, and fined $2,000.00 to be paid at the rate of $100.00 per month. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in denying his motion for a directed verdict due to the insufficiency of the evidence. We do not agree.
An appeal from the denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence, and the test for determining the sufficiency of the evidence in a criminal case is whether there is substantial evidence to support the verdict. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1994). In making our review, we do not weigh the evidence favorable to the State against any conflicting evidence favorable to the accused, but instead we review the evidence in the light most favorable to the State and affirm if the finding of guilt is supported by substantial evidence. Lowe v. State, 36 Ark. App. 85, 819 S.W.2d 23 (1991). Substantial evidence is evidence which is forceful enough to compel a conclusion one way or the other without resorting to suspicion or conjecture. Cleveland v. State, supra.
Viewing the evidence in the light most favorable to the appellee, the record shows that Larry Witcher, a confidential informant, testified that he purchased marijuana from the appellant while in Sheridan on September 27, 1991. Mr. Witcher also stated that, during one purchase, he made a recording of the transaction which was later transcribed. The transcription of this recording, which was included in the record, is partially inaudible. Nevertheless, the audible portions of the transcription tend to support Mr. Witcher’s testimony to the effect that he purchased marijuana from the appellant on two separate occasions on the day in question.
The appellant’s argument is ultimately addressed to the credibility of the confidential informant. He argues that the jury’s guilty verdicts for possession of marijuana, rather than the greater offense of delivery with which the appellant was charged, indicates that the jury found that the testimony of the confidential informant lacked credibility. In essence, the appellant argues that, because the jury found the confidential informant’s testimony to lack sufficient credibility to support the charge of delivery of a controlled substance, it necessarily follows that the same testimony lacks the requisite weight to support a conviction for the lesser included offense of possession of a controlled substance. We do not agree. It is not the function of the appellate court to weigh the evidence. Instead, that function is entrusted to the jury, which may accept or reject any part of a witness’s testimony; when it has done so, we are bound by the jury’s conclusion concerning a witness’s credibility. Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987). We have no right to disregard the testimony of a witness after the jury has given it full credence, at least where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). None of these circumstances apply to the testimony of the confidential informant in the case at bar, and we consequently affirm the appellant’s conviction.
Nevertheless, we find it necessary to modify the sentence imposed by the trial court because our review of the record has disclosed a sentencing error. When a trial court has imposed an illegal sentence on a defendant, we will review it regardless of whether an objection was raised below, and we may raise the issue on our own. See Jones v. State, 27 Ark. App. 24, 765 S.W.2d 15 (1989). An illegal sentence is one which is illegal “on its face.” Id. In the case at bar, the appellant was convicted of two counts of misdemeanor possession of marijuana, and was sentenced to eighteen months probation. However, pursuant to Ark. Code Ann. § 5-4-403(c)(2) (Repl. 1993), the aggregate of consecutive terms for misdemeanors shall not exceed one year. This one-year maximum is applicable to the appellant’s probationary sentence by virtue of Ark. Code Ann. § 5-4-306(a) (Repl. 1993), which provides that a period of probation shall not exceed the maximum jail or prison sentence allowable for the offense charged. Consequently, the probationary period imposed by the trial court exceeds the maximum allowable by six months. Therefore, although we affirm the appellant’s conviction, we modify the sentence imposed by the trial court so as to reduce the appellant’s probationary period to one year.
Affirmed as modified.
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Larry D. Vaught, Judge.
Maria Pina appeals from a decision of the Arkansas Workers’ Compensation Commission overruling the Administrative Law Judge’s award benefits after concluding that her claim was barred by the statute of limitations. Because we hold that substantial evidence supports the Commission’s findings regarding the date on which the statute began to run, we affirm.
Pina began working for Sam’s Travel in February 1999 doing a variety of tasks, including stuffing envelopes and folding promotional t-shirts. In October 1999 she complained to her supervisor of numbness in her hands that traveled up to her forearms and elbows. After making this complaint, she was reassigned to a data-entry position. She did not request medical treatment at the time. Indeed, she testified:
No. I didn’t think it was really significant. And by that time they went ahead and switched me to the computer, which it wasn’t as bad as when I was doing the — writing. So, you know, I said probably it’ll you know, start to ease off, but no — we still — we went ahead and kept on doing that with — with the computer. Then I got moved and it got really severe afterwards.
Pina continued in this position with Sam’s Travel until the summer of 2000 when she was promoted to a position taking payments. In August 2000, the Sam’s Travel office moved out of state, and she began working for Wal-Mart Associates, Inc., in accounts payable where she reviewed invoices for discrepancies. According to Pina, her job duties with Wal-Mart only required her to utilize her right hand while keying in the numbers from the invoices, while she turned the pages of the invoices with her left hand.
The medical records reveal that Pina sought medical treatment on March 8, 2000, after she was involved in a motor-vehicle accident. Pina testified that this accident did not involve an injury to her hands or wrists. Dr. Huskins recorded complaints of “immediate onset of pain in the neck, back, shoulders from the lumbar area up. Has had numbness in her hands.” In a follow-up visit with Dr. Huskins’s partner, Dr. Lueders, Pina complained of “still having chronic numbness and tingling that radiates down her arms.” On January 26, 2001, Pina became a patient of Dr. Kim Emerson. Although Pina only sought an annual PAP exam at that time, Dr. Emerson performed a thorough examination and recorded complaints of knee, elbow, and wrist pain bilaterally for which Pina took 800mg of Ibuprofen on a daily basis. Dr. Emerson further recorded, “[S]he does (sic) numbness of her hands and she has to let go of what she is doing and then she feels a burning sensation. She is awakened at night...” During her examination of Pina, Dr. Emerson noted among other things that Pina had “positive tinels and phalens bilaterally. Decreased sensation of the ulnar and radial aspects of digits 1-4 are noted[.]” Pina testified that she noticed an increase in her symptoms when the numbness and tingling started going up her arm with a burning sensation. According to her testimony on direct examination, she did not notice a worsening or increase in her symptoms until January 2002, which was what prompted her to report her injury to her supervisor. Pina completed an “Associates Statement” for workers’ compensation on January 30, 2002. In this statement she alleged that she injured both her hands. Wal-Mart sent Pina to Dr. Gary Moffitt for an evaluation at that time. In his report dated January 31, 2002, Dr. Moffitt wrote:
Ms. Pina is seen today with complaints of pain, numbness and weakness in both hands. It has been bothering her for at least the past few weeks. She has no specific injury. She works doing data entry. She is having symptoms whenever she sleeps. On her examination, there is no swelling or discoloration. Her grip does seem to be somewhat diminished. She has a negative Tinel’s but she has abnormal two point discrimination in the median nerve distribution bilaterally. She probably has carpal tunnel syndrome. I am recommending nerve conduction studies. She may continue to work but will need to limit her gripping with both hands. I would recommend no more than two hours a day of data entry. She is to be reevaluated in one week.
On April 15, 2002, Pina underwent an NCV/EMG performed by Dr. Miles Johnson. In his report of that same date, Dr. Johnson stated that Pina’s studies were consistent with a diagnosis of moderate to moderately severe carpal-tunnel syndrome on the right and moderate carpal-tunnel syndrome on the left. As a result, Pina consulted with Dr. Rodger Dickinson, Jr., an orthopedic surgeon. In a report dated April 17, 2002, Dr. Dickinson noted:
I have seen Ms. Maria Pina because of pain and numbness of both hands [sic] which she has been experiencing for over a year. She has a history of doing a lot of repetitive motion, i.e., keypunch-type of operation computer work. She complains of pain and numbness consistent with carpal tunnel. EMG and nerve conduction also confirm the diagnosis of carpal tunnel syndrome. I certainly think that her occupation is of contributory nature to her carpal tunnel symptoms.
On April 18, 2002, Pina signed a “Claim for Compensation” against Wal-Mart, which was mailed by her attorney to the Workers’ Compensation Commission on April 23, 2002. On cross-examination, Pina confirmed her deposition testimony that she first became aware that her carpal-tunnel problems were work-related in October 2001. She confirmed her deposition testimony that she began to feel the numbness in her hands around October 2000. However, Pina also admitted that she actually experienced numbness and tingling in her hands, forearms, and elbows by October of 1999, while working at Sam’s Travel.
Based on these admissions, Wal-Mart contends that Pina’s claim — first filed in April of 2002 — is barred by the statute of limitations. In response Pina argues that the statute of limitations did not begin to run until a nexus between her injury and her work environment was established and her condition stabilized. The ALJ agreed with Pina’s position and concluded that she sustained a compensable injury and was entitled to medical benefits. How ever, the Commission reversed the ALJ’s decision and dismissed Pina’s claim after concluding that her claim was time barred. Pina appeals the Commission’s decision, claiming that there is no substantial evidence to support this conclusion.
In reviewing decisions from 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 they are supported by substantial evidence, i.e., evidence that a reasonable person might accept as adequate to support a conclusion. Morales v. Martinez, 88 Ark. App. 274, 198 S.W.3d 134 (2004). The issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. The Workers’ Compensation Commission is not required to believe the testimony of any witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief; once the Commission has made its decision on issues of credibility, we are bound by that decision. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).
Our singular task on appeal is to determine the point in time that Pina sustained a compensable injury. It has long been held that the statute of limitations does not commence to run until the true extent of the injury manifests and causes an incapacity to earn wages sufficient to give rise to a claim for disability benefits. Hall’s Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992); Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Shepard v. Easterling Constr. Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983). Act 796 of 1993 provides that for purposes of statute of limitations, “the date of compensable injury shall be defined as the date an injury is caused by an accident as set forth in § 11-9-102(5).” However, this amendment did not address the injury date with regard to gradual-onset injuries — the type presented in Pina’s claim. In Minnesota Mining & Manufacturing v. Baker, 337 Ark. 94, 982 S.W.2d 11 (1999), our supreme court addressed when a scheduled injury claim becomes compensable for statute of limitations purposes. In Baker, the court reasoned that loss of earnings are conclusively presumed in scheduled-injury cases; therefore, the statute of limitations begins to run when the scheduled injury became apparent to the claimant. Here, because Pina’s injuries are scheduled under the Workers’ Compensation Act, the statute of limitations began to run when the injury' became apparent to her. The Commission determined, based on her testimony, that Pina’s injury became apparent at least by the date she reported her symptoms of pain and numbness to her supervisor in October 1999 and she was provided accommodations by her employer.
However, the Commission acknowledged that “it may be argued that the dicta in Minnesota Mining & Mfg. v. Baker, supra, in which the court stated that statute of limitations began to run in that claim in February of 1978 because that claimant’s hearing loss had not ceased to deteriorate until then, stands for the proposition that the statute of limitations does not begin to run until the claimant becomes aware of his injury and the injury has stabilized.” This is precisely the argument that Pina makes on appeal. Pina argues that Baker requires both the awareness of an injury and the stabilization of the injury prior to the commencement of the running of the statute of limitation.
The initial claim in Baker was for permanent disability-benefits. Therefore, in order to be entitled to permanent disability benefits, the hearing loss had to reach a point of stability. Accordingly, it is our view that the requirement that the injury stabilize is limited to hearing-loss claims, and the Baker dicta supports only a narrow view of the stabilization requirement. Further, in hearing-loss claims the annual hearing tests quantify the amount of loss experienced by the claimant. Such annual testing objectively demonstrates the amount of loss and the time period in which the loss occurred, removing all elements of subjectivity as to time and amount of loss from the fact finding.
Thus, because the Baker dicta is not applicable to the present case, we must simply determine if substantial evidence exists to support the Commission’s conclusion that Pina’s carpal-tunnel syndrome developed and became apparent to Pina by October 1999, while working for Sam’s Travel.
Pina argues that she did not become aware of her diagnosis until she was examined by Dr. Moffitt in January 2002 and that she was not aware that her condition was work-related until at least October 2001. However, a claimant’s awareness that her injury is causally related to the working environment is not an element of the inquiry. See Smith v. Aluminum Co. of Am., 78 Ark. App. 15, 76 S.W.3d 909 (2002). The medical evidence shows that Pina was diagnosed with carpal-tunnel syndrome by Dr. Emerson in January 2001, one year prior to the diagnosis by Dr. Moffitt. Further the medical records show that Pina consistently complained of numbness in her hands and wrists after October 1999.
It is true that Pina testified that she believed her symptoms would resolve when she was given a computer to perform her work after her initial complaint to her supervisor in 1999. However, she admitted at the hearing that her symptoms never resolved. The Commission concluded that, because her symptoms were sufficient to voice a complaint to her supervisor in October 1999, her injury became apparent to her by at least October 1999. Therefore, the Commission ruled that because Pina did not file her claim for benefits until April 2002, the claim was barred by the statute of limitations.
Because this finding is supported by substantial evidence — particularly Pina’s acknowledged report of her symptoms to her supervisor — we are obligated to affirm. In so doing, we are mindful that our analysis and conclusion punish those employees willing to “grin and bear it” and produce the counter result of encouraging employees to file claims at the first hint of pain. Whether this result properly serves the public policy surrounding workers’ compensation law is a question reserved for our legislature.
Affirmed.
Glover and Baker, JJ., agree.
Had Pina been able to rely on the Baker dicta and argue that her injury did not manifest until it had fully stabilized, Pina’s claim would still fail. The Commission made a finding that the only evidence of continued deterioration was Pina’s own self-serving testimony — which is a credibility determination that would withstand appellate scrutiny. | [
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John Mauzy Pittman, Chief Judge.
The appellant, Ricky Myers, appeals from an order terminating his parental rights. We affirm.
The record shows that appellant was named as the putative father of D. M. The child, who was born in June 2002, was taken into emergency custody by the Department of Human Services in November 2002. Appellant was incarcerated on December 20, 2002, when the child was adjudicated dependent-neglected. After appellant’s release, an attorney was appointed to represent him in the dependency-neglect proceeding. Although visits with the child were scheduled, appellant failed to appear for most of them and had no further contact with the child, the Department of Human Services, or the trial court after June 2003.
Appellant’s attorney appeared at review and permanency planning hearings on appellant’s behalf but made no objections, stating in open court that appellant was aware of the hearing date, but that she had had no contact with appellant after April 23, 2003; that appellant had not responded to letters that she sent to his last known address; that appellant had done nothing toward the case plan and would not fill out affidavits of financial means and paternity as she requested; that she was unaware of appellant’s location and unable to obtain his current address; that the only means of contacting appellant was by his cell phone; and that, when she called his cell phone, appellant pretended to be someone else. At a hearing to terminate parental rights held on December 9, 2003, appellant’s attorney stated that she had been informed that appellant had again been incarcerated but that, despite having made multiple attempts to locate him, she had had no further contact with appellant after June 3, 2003. She stated that appellant had not had any significant contact with the child, and she did not object to the entry of an order terminating appellant’s parental rights.
After the termination order was entered, present counsel was appointed for appellant and perfected this appeal, arguing that the trial court erred in terminating appellant’s parental rights because adequate reunification services were not provided, no meaningful effort was made to reunite appellant and his putative child, no evidence was presented at the hearing, and that appellant’s appointed trial counsel was ineffective. We affirm.
We cannot address appellant’s arguments because they all have been raised for the first time on appeal. Even in a case involving termination of parental rights where constitutional issues are argued, we will not consider arguments made for the first time on appeal. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). This applies as well to appellant’s assertion that his trial counsel was ineffective. Jones v. Arkansas Department of Human Services, 361 Ark. 164, 205 S.W.3d 778 (2005).
Affirmed.
Gladwin and Bird, JJ., agree. | [
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Karen R. Barer, Judge.
Appellant, Alexander Newborn, challenges the revocation of his probation alleging that the court erred in finding that he was in possession of a firearm. Based upon that finding, the trial court found appellant guilty of violating the terms of his probation by being in possession of a firearm and sentenced him to twenty years’ imprisonment in the Department of Corrections on his prior conviction for residential burglary and six years on a prior conviction for terroristic threatening. The sentences were to run concurrently.
In revocation proceedings, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of probation. Ark. Code Ann. § 5-4-309(d) (Supp. 2003). Evidence that may not be sufficient to convict can be sufficient to revoke due to the State’s lower burden of proof. Bradley v. State, 347 Ark. 518, 521, 65 S.W.3d 874, 876 (2002). A circuit court’s finding in revocation proceedings will not be reversed on appeal unless it is are clearly against the preponderance of the evidence. Lemons v. State, 310 Ark. 381, 383, 836 S.W.2d 861, 862 (1992).
Under these facts and circumstances, we cannot say that the trial court clearly erred by concluding that appellant possessed at least one of the shotguns found in the trunk of the car in which he was a passenger.
At the revocation hearing, Officer Tina Pomaybo testified that on November 30, 2002, she was the back-up officer for Officer Tracy Copeland who made a traffic stop on the car in which appellant was riding in the front-passenger seat. There was an odor of burning marijuana, the officers found marijuana, and the driver claimed possession of the drug. The driver did not have a valid driver’s license and was being taken to jail for the marijuana possession, so the officers conducted an inventory of the car. The officers found two shotguns in the trunk during the inventory search. Officer Pomaybo testified that she could not recall finding any ammunition.
Appellant was released after telling the officers that one gun belonged to his father. According to Officer Pomaybo, appellant stated that he was going hunting, there were items of hunter’s orange in the vehicle that appellant retrieved, and appellant was wearing a Carhart jumpsuit typically worn while hunting to keep warm. The officers were not aware at the time of the incident that appellant was on probation. Officer Pomaybo testified that she did not know to whom the car belonged, but she believed that appellant did not own the car.
In order to prove possession of contraband, the State does not have to establish actual physical possession. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). It may prove constructive possession, that is the control or right to control the contraband. See Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994). Constructive possession can be established by circumstantial evidence, see Polk, supra, and may be implied when the contraband is in the joint control of the defendant and another, but joint occupancy alone is insufficient to establish possession. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). When the State relies upon constructive possession, it must provide additional facts and circumstances indicating the defendant’s knowledge and control over the contraband. White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994).
Appellant maintains that, in order for the State to prove constructive possession, the State had to show that he had dominion and control over the vehicle and was required to demonstrate at least a reasonable inference that he had knowledge of the contraband. See Walker v. State, 77 Ark.App. 122, 72 S.W.3d 517 (2002) (requiring a reasonable inference of the knowledge of the contraband); Boston v. State, 69 Ark. App. 155, 112 S.W.3d 245 (2000) (reversing where contraband was found in the suitcase of the defendant’s car, but the State failed to demonstrate that the defendant had knowledge of the contents of the suitcase). Appellant maintains that the State failed to prove that he had any knowledge that the shotgun was in the trunk of his car. He notes that he was not present when the vehicle was searched, the keys were not found on his person or at his home, and there was no evidence that he had recently driven the vehicle or had any recent contact with the vehicle.
However, appellant’s argument must fail. First, it is not necessary for the State to prove literal physical possession of contraband in order to prove possession. See Polk v. State, supra. The State can prove that appellant had constructive possession of contraband by proving that he controlled the contraband or had the right to control the contraband. Id. (affirming simultaneous possession charge where cocaine was found in plastic bag sticking out above sun visor on driver’s side and the handgun was found underneath rear passenger-side floor mat of the car, and the defendant was the sole occupant of borrowed car that he was driving); Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003) (affirming simultaneous possession charge where firearm was found in the defendant’s kitchen next to items used to manufacture methamphetamine).
In this case, Appellant’s uncle, William Harris, testified that appellant had sold him a shotgun, but that the gun had never been delivered to him. This fact coupled with testimony that appellant stated that he was going to deer camp, the hunter-orange clothing, Carhart jumpsuit, and testimony regarding ownership and possession of the shotgun provide the facts and circumstances indicating appellant’s knowledge and control over the gun.
Additionally, appellant testified at trial that when stopped on November 30, 2002, he did not know that the gun was in the truck; however, Officer Pamaybo testified that appellant told her that the weapons in the trunk belonged to his father. In conducting our review, this court defers to the circuit court’s determinations as to the credibility of the witnesses who testify at the revocation hearing. Bradley, 347 Ark. at 521, 65 S.W.3d at 876. Therefore, we find the trial court did not err in revoking appellant’s probation.
Affirmed.
Vaught, Crabtree, Bird and Roaf, JJ., agree.
Hart, Gladwin, Griffen, and Glover, JJ., dissent. | [
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Olly Neal, Judge.
This appeal arises from the Sharp County Circuit Court’s decision to lift a stay of levy and deny appellant’s motion to quash a writ of execution. The procedural history is as follows. Appellant hired appellee Air Flo Company to spray an inch-and-a-half-thick insulation into a building. Fie refused to make payment after he claimed that appellee only sprayed three-quarters of an inch ofinsulation into the building. On August 5,2002, appellee filed a complaint against appellant to collect on the debt. A default judgment was filed on January 22, 2003, and appellee obtained a writ of execution on January 9, 2004. Appellant was served with the writ of execution, and on January 30, 2004, appellant filed a motion to quash the writ of execution, motion for stay of levy and garnishment, and motion to dismiss. The trial court granted the stay and set a hearing for February 17, 2004.
At the hearing, appellant testified that he was not served with the complaint prior to receiving the writ of execution from the deputy sheriff. However, Bob Castleman testified that he served appellant with the original complaint on August 15, 2002. All parties stipulated that Castleman was neither a sheriff nor a deputy, but a process server. Castleman testified that he went to a pawn shop where he saw two men talking. Castleman testified that he asked appellant whether he was Mr. George Renfro, to which appellant responded that he was. Subsequently, Castleman testified that, once he confirmed that the man was George Renfro, he laid the papers in front of the man and walked out. Castleman identified appellant as the man he served. He further testified that the notes he wrote on August 15, 2002, stated, “George Renfro, five foot seven, heavy weight, mustache and served at 1:40 p.m.” Following the hearing, the court determined that appellant’s motion should be denied and further found that service of process on appellant was proper and the judgment valid. This appeal followed.
For reversal, appellant contends that because service was done by someone other than a sheriff or deputy who failed to submit an affidavit concerning service, appellee failed to prove return of service under Ark. R. Civ. P. 4(g), and therefore, the summons was not properly served within the 120-day period, and the default judgment is void ab initio. We affirm.
Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). Arkansas law is well settled that service of valid process is necessary to give a court jurisdiction over a defendant. Vinson v. Ritter, 86 Ark. App. 207, 167 S.W.3d 162 (2004) (citing Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003)). Rule 4(g) of the Arkansas Rules of Civil Procedure requires that an affidavit be provided if service is made by a person other than a sheriff or his deputy. However, failure to make proof of service does not affect the validity of service because proof of service may be made by means other than demonstration on the return of the serving official. Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990); Adams v. Nationsbank, 74 Ark. App. 384, 49 S.W.3d 164 (2001).
In the instant case, although no affidavit was provided, the court allowed Castleman to testify as to the circumstances surrounding his service of the summons on appellant. The defect complained of here is one of proof of service as opposed to a lack of service, and this defect did not render the judgment void. See Adams, supra (where the required return receipt showing refusal of a certified letter did not appear in the record, the defect did not render the default judgment absolutely void). The defect was cured by Castleman’s testimony at the hearing that he served appellant with the complaint on August 15, 2002. See Lyons, supra.
Affirmed.
Crabtree and Roaf, JJ., agree. | [
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Terry Crabtree, Judge.
The appellant, Oscar Adaway, Jr., was convicted by a jury of two counts of battery in the second degree and one count of fleeing. He was sentenced to three years in the Arkansas Department of Correction for fleeing and a two-year sentence and $2,000 fine for each of the two counts of battery.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j), his counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within thirty days. He filed a brief alleging three reasons why his conviction should be overturned: that he was not tried by a jury of his peers; that he had poor representation by his attorney; and that the judgment against him was not justified. The State responded to appellant’s pro se brief pointing out that a pro se litigant is held to the same standards as one who is represented by legal counsel, and that the appellant has failed to abstract any of the pleadings or the record in the instant case. However, Rule 4-3 (j) (2) only requires an appellant “to raise any points that he or she chooses.” Therefore, a pro se brief filed by an indigent appellant upon receiving notice that a no-merit brief has been filed on his or her behalf is supplemental to the brief filed by the representing attorney. The Attorney General must then brief the points raised by the appellant.
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997). Counsel has not adequately explained any of the adverse rulings nor why each of the adverse rulings is not a meritorious ground for reversal. Also omitted are citations to any authority that would support counsel’s belief that an argument on appeal would not have merit. In a case where such a clearly inadequate no-merit brief has been filed, our only option is to direct counsel to rebrief the case according to the standards set forth in Anders, supra, and Rule 4-3(j). As we do so, we are reminded of the Supreme Court’s rationale for requiring the filing of a no-merit brief rather than a simple statement that the. appeal has no merit:
This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a non-indigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished by counsel.
Anders, 386 U.S. at 745. The brief filed in this case, because it lacks a full discussion of each adverse ruling, amounts to nothing more than a statement that the appeal has no merit. Accordingly, we also direct appellant’s counsel to discuss the points raised by appellant in his pro se brief, and discuss whether such points have merit.
Rebriefing ordered.
Arey and Neal, JJ., agree. | [
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John JVLauzy Pittman, Judge.
This case involves the adoption of an infant born to a sixteen-year-old mother. No significant relationship existed between the mother and the biological father, who was himself a teenager, either before or after the child’s conception. The mother put the child up for adoption. Appellants (the prospective adoptive parents) filed a petition to adopt the child; however, appellee (the biological father) then established his paternity and withheld his consent. The petition to adopt was dismissed after a hearing in which it was held that the appellee did not unreasonably withhold his consent to the adoption contrary to the best interest of the child. From that decision, comes this appeal.
For reversal, appellants contend that the probate judge erred in ruling that evidence of appellee’s actions prior to the birth of the child, and evidence of psychological studies performed on appellee, were inadmissible in determining whether appellee unreasonably withheld his consent to adoption contrary to the best interests of the child. We agree, and we reverse.
Arkansas Code Annotated § 9-9-220 (Supp. 1995) provides, in pertinent part:
(a) . . . [T]he rights of a parent with reference to a child, including parental right to control the child or to withhold consent to an adoption, may be relinquished and the relationship of parent and child terminated in or prior to an adoption proceeding as provided in this section.
(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:
(3) That in the case of a parent not having custody of a child, his consent is being unreasonably withheld contrary to the best interest of the child.
The probate judge refused to admit the challenged evidence on the grounds that it lacked relevance. The determination of the relevance of evidence is within the sound discretion of the trial court, and that determination will not be reversed in the absence of an abuse thereof. Waeltz v. Arkansas Department of Human Services, 27 Ark. App. 167, 768 S.W.2d 41 (1989). The record reflects that the child was born in December 1996. The hearing was held approximately four months later, in April 1997. The evidence in the case at bar showed that, in the years immediately before the child was born, appellee had been involved in organizing street gangs, in illegal drug use, and in assaults and other violent behavior. It also depicted him as marginally self-sufficient, unmotivated, underemployed, and generally lacking stability. The probate judge ruled that this evidence was inadmissible, stating that the inquiry was restricted to appellee’s conduct after the birth of the child.
The probate judge cited no rifle or reason for thus limiting the inquiry, and we think he was clearly wrong. In making a decision of whether to terminate the parental rights of a party, the trial court had a duty to look at the entire picture of how that parent discharged his duties as a parent, the substantial risk of serious harm the parent imposed, and whether or not the parent was unfit. Waeltz v. Arkansas Department of Human Services, supra. Any evidence having probative value as to the present or prospective fitness of a parent is admissible to determine whether consent has been unreasonably withheld. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983). The Lindsey court itself recited evidence concerning the mother’s habits and behavior prior to the birth of her child. A Virginia appellate court reviewing a similar case dealing with the reasonableness of a father’s refusal to consent to adoption attached great weight to that father’s antisocial behavior prior to the birth of the child, noting that past actions over a meaningful period serve as good indicators of what the future may be expected to hold. Frye v. Spotte, 4 Va. App. 530, 359 S.E.2d 315 (1987). In the case at bar, only four months passed between the child’s birth and the hearing: limiting the evidence to that four-month period, as the probate judge did here, prevents consideration of past actions over anything remotely approaching a “meaningful period.” The probate judge, whose duty it is to “peer into the future to make a projection” bearing on the future welfare of the child, 2 Am. Jur. 2d Adoption § 90 (1994), has rendered himself blind and incapable of making an accurate prediction of the future by needlessly limiting his consideration to a statistically insignificant period of time.
The probate judge’s refusal to consider the psychological evidence was likewise in error. The excluded evidence included an assessment of appellee’s ability to provide a safe and nurturing environment for a child, and of the likelihood of appellee’s continued involvement with violence, drugs, and antisocial behavior. The probate judge refused to consider this evidence because he believed that his decision needed to be based on “whether or not in the opinion of the court that [appellee] has done anything to forfeit his right to consent to the adoption.” The question, however, is not fault but is instead fitness, see Lindsey, supra, and the excluded psychological evidence is relevant to appellee’s fitness as a parent.
We reverse and remand to the probate court for further proceedings consistent with this opinion. This case involves the adoption of an infant, and it needs to be expeditiously resolved. We do not limit the scope of the probate judge’s inquiry on remand, but we direct that it be concluded as quickly as is prudent, and we order that the mandate from this court be issued immediately.
Reversed and remanded.
Arey and Griffen, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
11 Arkansas Center for Physical Medicine and Rehabilitation (ACPMR) appeals the order of the Pulaski County Circuit Court dismissing its complaint against Gloria Ma-gee. On appeal, ACPMR argues that the circuit court erred in granting Magee’s motion for judgment on the pleadings because (1) Magee waived her statute-of-limitations defense when she failed to raise it as an affirmative defense in her answer; and (2) Arkansas Code Annotated section 16-56-106(b)(Repl. '2015) did not bar her claim as to account number 1007157. We affirm.
ACPMR is a chiropractic and physical-therapy clinic. Magee had been a patient at ACPMR. On August 12, 2016, ACPMR filed a complaint against Magee seeking to collect $7,195.68 in unpaid medical bills. ACPMR attached to its complaint an August 16, 2011 | ¡.contract with Magee and account ledgers for account numbers 1007157 and 1006694. In account number 1007157, ACPMR charged Magee for services performed from August 16, 2011, through January 13, 2012, and the unpaid balance totaled $6,060. In account number 1006694, ACPMR charged Magee for services performed from February 4, 2014, through September 11, 2014, and the unpaid balance totaled $1,135.68.
On August 26, 2016, Magee filed an answer to ACPMR’s complaint. She asserted the affirmative defenses of lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process and service of process, failure to state a claim, waiver, setoff, laches, payment, failure of consideration, illegality of contract, unclean hands, and comparative fault.
On November 2, 2016, Magee filed a motion for judgment on the. pleadings. She asserted that ACPMR could not recover on account number 1007157 because the claim was barred by the statute of limitations set forth in Arkansas Code Annotated section 16-56-106(b). Specifically, she pointed out that subsection 106(b) requires that a claim for unpaid medical bills be filed two years from the date the services were performed, or from the date of the most recent partial payment, whichever is later. She asserted that she last made a payment on that account on November 9, 2011, and that ACPMR last provided her services on that account on January 13, 2012, but that ACPMR did not file.its complaint until August 12, 2016, more than two years later. Accordingly, she asked the court to dismiss ACPMR’s complaint as to account number 1007157 with prejudice.
laOn November 7, 2016, ACPMR filed a motion to dismiss Magee’s motion for judgment on the pleadings. It argued that its claim for account number 1007157 was not barred by the statute of limitations because Magee had received ongoing treatment as recently, as September 4, 2014, with respect to account number 1006694.
The court held a bench trial on December 16, 2016. ACPMR did not appear. The court orally granted Magee’s motion for judgment on the pleadings as to account number 1007157. The court then proceeded to the merits of ACPMR’s remaining claim on account number 1006694. However, because ACPMR did not appear, Magee moved for a directed verdict, and the court granted it. The court entered a written order on January 13, 2017.
ACPMR timely filed a notice of appeal. On appeal, ACPMR argues that the court erred in granting Magee’s motion for judgment on the pleadings because (1) she waived the statute-of-limitations defense when she failed to raise it as an affirmative defense in her answer; and (2) Arkansas Code Annotated section 16-56-106(b) did not bar her claim as to account number 1007157.
Motions for judgment on the pleadings are not favored by the courts. LandsnPulaski LLC v. Ark. Dep’t of Corr., 372 Ark. 40, 269 S.W.3d 793 (2007). Such a judgment should be entered only if the pleadings show on their face that there is no defense to the suit. Id. When considering the motion, the court views the facts alleged in the complaint as true and in the light most favorable to the party seeking relief. Id.
[4As to ACPMR’s first argument, we hold that the issue is not preserved for our review. It is well established that an appellant must raise an issue and make an argument to the circuit court for it to be preserved on appeal. See Porter v. Ark. Dep’t. of Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008). Here, ACPMR failed to raise the waiver argument to the circuit court. Accordingly, we decline to address the issue on appeal.
ACPMR next argues that the court erred in finding that Arkansas Code Annotated section 16-56-106(b) barred her claim as to account number 1007157. Specifically, ACPMR argues that its claim is not barred because Magee revived the debt when she received additional treatment from February 4, 2014, through September 11, 2014, in account number 1006694. It cites Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913 (1999), wherein our supreme court discussed the continuous-treatment doctrine, which tolls the statute of limitations for medical-malpractice claims, and it asks us to apply the doctrine here.
We find ACPMR’s argument without merit. Arkansas Code Annotated section 16-56-106(b) states as follows:
No action shall be brought to recover charges for medical services performed or provided after March 31, 1985, by a physician or other medical service provider after the expiration of a period of two (2) years from the date the services were performed or provided or from the date of the most recent partial payment for the services, whichever is later.
This court has held that an action barred by this statute can be continued or revived only by “(1) an express promise to pay the debt or an express acknowledgement of the debts from which [the patient’s] promise to pay may be inferred and (2) an acknowledgement of | sthe specific debts asserted to ‘the party in interest’ or to ‘the person to whom the debt is due.’ ” Kitchens v. Evans, 45 Ark. App. 19, 26, 870 S.W.2d 767, 770 (1994) (holding that the appellant did not revive a medical debt by filing a lawsuit against a third party seeking medical expenses associated with the debt or by agreeing to pay all medical expenses incurred by him in his divorce decree). “ ‘A mere acknowledgment ... of the debt as having once existed is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal ac-knowledgement of the debt as still subsisting as a personal obligation of the debt- or.’ ” Id. at 24, 870 S.W.2d at 769 (quoting Morris v. Carr, 77 Ark. 228, 91 S.W. 187 (1905) (quoting Shepherd v. Thompson, 122 U.S. 231, 7 S.Ct. 1229, 30 L.Ed. 1156 (1887))).
Here, the only evidence ACPMR offered is the August 2011 contract and the account ledgers. These documents do not show an express promise by Magee to pay her unpaid balance or an express acknowl-edgement of the balance from which her promise to pay may be inferred.
Further, we decline to apply the continuous-treatment doctrine to this case. Our supreme court has applied the continuous-treatment doctrine only in medical-malpractice cases when the patient received active, ongoing medical treatment. See Raynor, 338 Ark. 366, 993 S.W.2d 913 (citing Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988)). Continuous medical treatment is “something more than the mere continuation of the physician-patient relationship.” Id. at 372, 993 S.W.2d at 916 (declining to apply the doctrine when the patient did not see the | (¡physician for three and one-half years). This case is not a medical-malpractice case, and Magee did not receive continuous treatment. Specifically, she did not receive services from ACPMR for a period of more than two years from January 13, 2012, through February 4, 2014. Accordingly, we affirm.
Affirmed.
Murphy and Brown, JJ., agree. | [
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JOHN MAUZY PITTMAN, Judge.
This case involves an underin-sured motorist provision in an automobile insurance policy. Appellee Hosea Williams’s son, Christopher Williams, died in April 1995 as a result of an accident that occurred while riding as a passenger in a vehicle driven by Jason Howard that was struck by a vehicle driven by Donald Patten. Mr. Patten’s insurer, State Farm Insurance Company, paid $100,000 in liability benefits to Christopher’s estate. State Farm also insured Mr. Howard’s vehicle and paid $25,000 in underinsured motorist coverage (“UIM”) to the estate. Appellee then made a claim for $25,000 in UIM benefits against his insurer, appellant Shelter Mutual Insurance Company. Appellant denied this claim on the ground that the policy’s UIM provision contained an “other insurance” clause barring recovery. Appellee then sued appellant in the Pulaski County Circuit Court for recovery of the UIM benefits.
Appellant moved for summary judgment, arguing that the “other insurance” clause precluded the stacking of UIM coverages. After a hearing, the circuit judge entered an order on April 15, 1999, denying the motion for summary judgment and incorporating his findings in a letter opinion that stated:
In the case of State Farm Mutual Auto Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995), the Supreme Court of Arkansas subscribed to a method of review of stacking cases: “Read the statute and Read the Policy!” The Beavers case, although dealing with a different set of facts, provides this Court with important guidelines for resolving your issues. Justice Holt sets out the distinction between the statutory design of the uninsured motorist and underinsured motorist statutes:
“We concede the distinction between uninsured and underin-sured motorist coverage. Uninsured coverage applies when a tortfeasor either has no insurance or has less than the amount required by law. Coverage is designed to guarantee a minimum recovery equal to that amount. Underinsured coverage applies when the tortfeasor has at least the amount of insurance required by law, but not enough to fully compensate the victim. This coverage is designed to provide compensation to the extent of the injury, subject to the policy limit. See Kluiter v. State Farm Mutual Automobile Insurance, 417 N.W.2d 74 (Iowa 1987).
Justice Holt also set out the change in the underinsured motorist statute. The original version, codified at Ark. Code Ann. § 23-89-209 (1987) provided in pertinent part:
“(a) ... Coverage of the insured pursuant to underinsured motorist coverage shall not be reduced by the tortfeasor’s insurance coverage, except to the extent that the injured party would receive compensation in excess of his damages.”
The 1993 amended version setting out the definition of underinsured motorist coverage states:
(a)(3) The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injuries to or death of an insured, which the insured is legally entitled to recover from the owner or operator of another motor vehicle, whenever the liability insurance limits of such other owner or operator are less than the amount of damages incurred by the insured.”
The change in the statute is subtle, but broad in effect. In the early version, the insurer could not take credit for, and thus reduce its liability by, the tortfeasor’s insurance coverage, except where the injured party would receive an amount in excess of his damages. But it could, arguably, reduce its exposure by the amount of other like (underinsured motorist) coverage.
With the change, the insured is entitled to recover under his underinsured coverage so long as the recovery doesn’t exceed his damages. Thus, an attempt to deny coverage before the insured has been fully compensated, would not be permitted by the statute. This interpretation fits well with what Justice Holt recites as the purpose of underinsured motorist coverage.
That same day, the circuit judge entered a separate order granting a $34,250 judgment to appellee that included the UIM limits of $25,000, a 12% penalty of $3,000, and attorney’s fees of $6,250.
Appellant argues that the circuit judge erred in denying its motion for summary judgment. As a general rule, the denial of a motion for summary judgment is neither reviewable nor appealable. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999). This is true even when there has been a trial on the merits and a judgment has been entered. See Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993); State Farm Fire & Casualty Co. v. Amos, 32 Ark. App. 164, 798 S.W.2d 440 (1990). Accordingly, we must first consider whether this argument reaches us through any exception to the general rule barring review of the denial of a summary-judgment motion.
In Karnes v. Trumbo, 28 Ark. App. 34, 770 S.W.2d 199 (1989), we held that an order denying a motion for summary judgment was appealable because it was combined with a dismissal on the merits that effectively terminated the proceedings below. Here, the circuit judge entered a final order granting judgment to appellee on the same day that he denied appellant’s summary judgment motion. Therefore, following the reasoning of Karnes v. Trumbo, this case is an exception to the general rule, and the order may be reviewed on appeal.
Appellant argues that the circuit judge erred in his interpretation of the UIM statute. According to appellant, provisions which prevent stacking of UIM coverages are consistent with the purposes of the underinsured motorist statute. Appellant contends that, in Arkansas, stacking of underinsured motorist coverages is not prohibited by the statute but may be precluded by an applicable anti-stacking clause in the policy. We agree.
Underinsured motorist coverage was enacted in this state by Act 335 of 1987 to supplement benefits recovered from a tortfeasor’s liability carrier; its purpose is to provide compensation to the extent of the injury, subject to the policy limit. Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); American Cas. Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). In Birchfield v. Nationwide Ins., 317 Ark. 38, 875 S.W.2d 502 (1994), the supreme court explained that, under this act, as amended, the legislative intent is clear that the inability to obtain the limits of liability coverage is what triggers the availability of UIM coverage. There is a distinction between uninsured (“UM”) and UIM coverage. UM coverage applies when a tortfeasor either has no insurance or has less than the amount required by law; such coverage is designed to guarantee a minimum recovery equal to that amount. Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992). UIM coverage applies when the tortfeasor has at least the amount of insurance required by law but not enough to fully compensate the victim. Id.
Arkansas Code Annotated section 23-89-209 (a) (Supp. 1999) provides in pertinent part:
(3)The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injuries to or death of an insured which the insured is legally entided to recover from the owner or operator of another motor vehicle whenever the liability insurance limits of such other owner or operator are less than the amount of the damages incurred by the insured.
This statute mandates that a minimum of $25,000 UIM coverage be offered for each automobile. Ark. Code Ann. § 23-89-209 (a) (4) (Repl. 1999).
As the circuit judge noted, the supreme court has held that, in considering a stacking issue, the result is best determined by a simple rule: “Read the Statute and Read the Policy!” State Farm Mut. Auto. Ins. Co. v. Beavers, 321 Ark. 292, 295, 901 S.W.2d 13, 15 (1995). Accord Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998). We agree with appellant that, in Arkansas, although stacking of UIM coverages is not prohibited by statute, it may be precluded by an applicable anti-stacking clause in the policy. Kanning v. Allstate Ins. Cos., 67 Ark. App. 135, 992 S.W.2d 831 (1999). See also Ross v. United Servs. Auto. Ass’n, 320 Ark. 604, 899 S.W.2d 53 (1995).
The controlling question in this case, therefore, is whether the policy effectively prohibited the stacking of UIM coverages. The policy issued to appellee by appellant contained the following provision:
COVERAGE E-l UNDERINSURED MOTORISTS (DAMAGE FOR BODILY INJURY)
We will pay damages for bodily injury which an insured or the insured’s legal representative is legally entitled to recover from the owner or operator of an underinsured motor vehicle....
OTHER INSURANCE
With respect to injury to an insured while in an auto not owned by you, this insurance shall apply only as excess insurance over any other similar insurance available to the insured as primary insurance. This insurance will then apply only in the amount that its Emit of liability is excess over the liability of the other insurance. Except as above, if the insured has other insurance available, the damages shall not exceed the Emits of Eability of this insurance or of the other insurance, whichever is larger. We will not be liable for a greater proportion of any loss to which this coverage apphes than the Emits of liabiEty of this insurance bear to the sum of the Emits of EabiEty of this insurance and any other similar insurance available to the insured.
(Bold in original.)
Appellant argues that this policy unambiguously prohibits the stacking of UIM coverages. Appellee responds that the policy is ambiguous and should be construed in favor of the insured. Specifically, appellee asserts that the word “primary” in the UIM provision is ambiguous. Appellee states that, in UM cases, this term may not be ambiguous because there is no third-party liability insurance; therefore, the policy will always be referring to two UM coverages. On the other hand, appellee argues, in a case involving UIM coverage, it is unclear whether the policy is referring to the third-party liability insurance or to the other policy providing UIM coverage. Appellant replies that this term is not ambiguous because it has only one reasonable construction — that, in the context of UIM coverage, the “primary” coverage is that provided for the automobile in which the insured was riding. We agree.
The initial determination of the existence of an ambiguity rests with the court and, when a contract is unambiguous, its construction is a question of law for the court. Kanning v. Allstate Ins. Cos., supra. An insurance policy is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Id. The language in an insurance policy is to be construed in its plain, ordinary, and popular sense. Tri-State Ins. Co. v. Sing, 41 Ark. App. 142, 850 S.W.2d 6 (1993). Contracts of insurance should receive a practical, reasonable, and fair interpretation consonant with the apparent object and intent of the parties in the light of their general object and purpose. Id. The terms of an unambiguous insurance policy are not to be rewritten under the rule of strict construction against an insurer to bind the insurer to a risk which is plainly excluded and for which it was not paid. First Fin. Ins. Co. v. National Indem. Co., 49 Ark. App. 115, 898 S.W.2d 63 (1995); Tri-State Ins. Co. v. Sing, supra.
Here, the policy plainly provides that it “shall apply only as excess insurance over any other similar insurance available to the insured as primary insurance.” Although appellant contends that the term “primary insurance” is ambiguous, we do not agree. As a fundamental principle of insurance law, under a standard automobile policy, primary liability is generally placed on the insurer of the owner of the automobile involved and the policy providing the nonownership coverage is secondary. 7A Am. Jur. 2d Automobile Insurance § 543 (1997). We recognized this basic rule in State Farm Fire & Cas. Co. v. Amos, supra. Additionally, we note that this “other insurance” clause is contained within the UIM endorsement to the policy. Hence, it is clear that State Farm’s coverage was primary and appellant’s was secondary. Therefore, the only reasonable construction of this provision of the policy is that it prohibits the stacking of this coverage with that provided by State Farm to the vehicle in which Christopher was riding. Accordingly, we must reverse the circuit judge’s decision to the contrary.
Reversed and dismissed.
Jennings and Neal, JJ., agree. | [
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JOHN B. R.OBBINS, Chief Judge.
Appellant Foundation Telecommunications, Inc. (“Foundation”), appeals the entry of judgment against it in favor of appellee Moe Studio, Inc. (“Moe”), for breach of an oral contract. Moe filed a complaint in municipal court and prevailed; Foundation appealed that decision. The case was tried de novo in circuit court, and Moe again prevailed. Foundation’s three points on appeal are: (1) the special judge hearing the case was not properly elected to hear the case such that the judgment he rendered is void; (2) the trial court erred in finding that Foundation’s employee had apparent authority to bind the corporation to enter into an oral contract; and (3) the trial court erred in finding that substantial evidence supported the finding that a valid oral contract existed. Because the judgment rendered is void, we dismiss the appeal.
The standard that we apply when we review a judgment entered by a circuit court after a bench trial is well established. We do not reverse such a judgment unless we determine that the circuit court erred as a matter of law or we decide that its findings were clearly against the preponderance of the evidence. Riffle v. United General Title Ins. Co., 64 Ark. App. 185, 984 S.W.2d 47 (1998). We will not reverse a trial court’s finding of fact unless it is clearly erroneous. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999).
This case was tried to the bench in Benton County Circuit Court on a de novo appeal from municipal court. Circuit Judge Tom Keith, who had scheduled the case for trial, was not present on the day of trial, set for January 11, 1999, at 9:00 a.m. Instead, Andrew Miller presided over the trial without objection from appellant during the course of the proceedings.
At the conclusion of the trial, Mr. Miller found in favor of Moe and awarded $4715 in damages for work completed. He stated from the bench that Ms. Roper, an employee of Foundation, possessed the apparent authority to bind the company and that a valid contract was entered into by the parties with the consent of Mr. Livergood, the president of Foundation. Mr. Miller also stated that he believed that a contract can be “ever evolving” and that this was such an agreement. After judgment was pronounced from the bench but prior to a precedent being filed of record, Foundation’s counsel wrote to the duly elected circuit judge, Tom Keith, stating that the letter constituted its formal objection to Andrew Miller sitting as special judge since he had not been properly elected.
Moe’s counsel responded by a letter to Judge Keith in which he stated:
[A]U attorneys with business before the court that day were advised of your absence and were advised of the efforts that were being made to select a special judge to serve in your absence. More importandy, a review of the record in the case will reveal not a single objection made to the appointment of Mr. Miller. Rather, both parties announced their readiness for trial and proceeded to try the case.
Foundation’s counsel responded to the letter from Moe’s counsel by a further letter to Judge Keith containing these statements:
I was never informed of any efforts being made to select a “special judge.” I was simply told that you were out with a sick father, who was in the hospital, and that “Judge Miller” would be hearing the case. I did not know if Judge Miller was from another circuit or otherwise serving on exchange. It was not until after the trial that I learned that Mr. Miller was an attorney practicing law with your son, Sean. Therefore, I never acquiesced to a “special judge.” In fact, had I been made aware that Mr. Miller was not an elected judge but a “special judge,” I would have asked for a continuance and I would have never acquiesced to him hearing this case. This case involved some very complex issues which a seasoned judge needed to hear.
No ruling was ever issued on this matter, and the judgment was filed of record the following week, signed by Mr. Miller, who purported to be acting as special judge. This appeal followed.
Foundation’s first point on appeal is that the service of Mr. Miller as special judge in this case was improper. It argues that, because Mr. Miller was not properly elected, the judgment rendered by him is void. Moe counters by arguing that this issue is not preserved for review because counsel voiced no objection at the commencement of trial and only raised an objection after an adverse judgment was announced. We find merit to Foundation’s argument.
Article 7, § 21, of our state’s Constitution provides for the election of special judges. Its purpose is to avoid delay in the trial of pending cases that are about to be reached on the docket or that in fact have been reached; this provision was intended to keep the sessions of the court from failing and to keep the courts in motion by the election of special judges. Wessell Bros. Foundation Drilling Co. v. Crossett Public Sch. Dist. No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985); Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974). The Constitution requires that special circuit judges or chancellors be elected by the attorneys in attendance at the court and that the proceedings be entered upon the record. Abercrombie v. Green, 235 Ark. 776, 362 S.W.2d 12 (1962).
The supreme court promulgated Administrative Order Number 1 mirroring Article 7, § 21, which oudines procedures to be followed in the election of special judges. That order states, in pertinent part, that when a circuit judge fails to appear for court, the clerk of the court shall conduct an election from the attorneys present in the courtroom; the ballots shall be secret; and the qualified attorney shall serve immediately after being sworn in by the clerk. Administrative Order of Supreme Court Number 1, § 1. This order further provides that “the clerk of the court in the county in which the special judge election is held shall make a record of the proceedings” and the record shall be substantially in the form set forth in the order and verified by the clerk of the court. Id. at § 5.
The supreme court has held that elections of special judges by consent, either expressly or tacitly given, cannot impart judicial power to a special judge. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992); Red Bud Realty Co. v. South, 145 Ark. 604, 224 S.W 964 (1920). “Where the parties attempt to select a special judge by agreement the proceedings are void, and the appeal must be dismissed.” Abercrombie v. Green, 235 Ark. 776, 777, 362 S.W.2d 12 (1962). “Parties to a suit may select an arbitrator, but they can not by agreement select a person to preside as judge, and try a cause in the Circuit Court; they can not by such agreement impart to him any judicial power. A special judge must be elected as provided by the Constitution.” Dansby v. Beard, 39 Ark. 254, 255 (1882). T herefore, appellant cannot be said to have verified this action by consent, and in any event consent cannot confer jurisdiction. See id.
Equally well settled in Arkansas law is that elections of special judges, including the reasons for the regular judge’s absence, are presumed to be valid. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). Appellant bears the burden to produce a record showing that an attack on the election was made in the trial court. Titan Oil & Gas Inc. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974). However, this presumes that an election was held. See e.g. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). Moe did not contend that an actual election was held when it responded to Foundation’s posttrial objection nor does it do so now. Further more, the record does not reflect that an election was conducted. Consequently, there could be no objection to the election procedure.
Appellant has demonstrated that this record is devoid of evidence of a duly held election of the special judge in accordance with Constitutional mandate, and therefore this judgment was void. The appeal is dismissed. Inasmuch as the subject judgment is void, the case remains on the Benton County Circuit Court docket and should be set for trial.
Dismissed.
Hart and Stroud, JJ., agree.
ROAF, J., concurs.
Jennings, J., and Hays, S.J., dissent. | [
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John E. JENNINGS, Judge.
Appellants, Robert Dye and Christopher Stowell, appeal from an order adjudging them to be delinquent juveniles. Appellant Dye, age ten, was found to have committed one count of felony criminal mischief for which he was placed on probation for a year. Appellant Stowell, age fifteen, was found to have committed two counts of felony criminal mischief, and one count of misdemeanor criminal mischief. His probation on a previous sentence was also revoked. He was placed on a suspended sentence to the Division of Youth Services and was placed on probation for two years. Stowell was also ordered to pay restitution in the amount of $5,064.67. Of that amount, Dye was ordered to be jointly responsible for the payment of $3,301.90. On appeal, appellants contend that the trial court erred in denying their motion to suppress statements that were made to a police officer. We affirm.
In late July of 1998, several acts of vandalism took place in Fort Smith over the course of several evenings. A number of vehicles were damaged on the car lot of Fort City Motors; tires were slashed on a vehicle owned by Alfred Barter; and tires on a service truck were cut and six storefront windows were damaged at Darrell’s Tire Company. Appellants were arrested on the evening of July 26, 1998, for violating curfew after they were observed by an off-duty officer throwing stones into the lot of Fort Motors. The officer had been hired to watch the lot because of the damage that had been done the preceding nights.
The next day, Detective Ron Lockhart went to the home of appellant Stowell and spoke to Stowell’s uncle and grandmother. Lockhart advised them of his suspicion that Stowell was involved in the acts of vandalism, and he asked them to bring Stowell to the police station for an interview. They complied with this request and arrived at the station before Lockhart. Without giving Miranda warnings, Lockhart conducted an interview, during which Stowell made incriminating statements. Afterwards, Lockhart advised Stow-ell of his rights for the purpose of taking a formal statement. When Stowell invoked his right to counsel, Lockhart advised Stowell and the adults that he could not speak with them any further and that they were free to leave. Stowell changed his mind about wanting an attorney and gave a statement confessing his guilt after executing a written waiver of his rights.
Lockhart also visited the home of appellant Dye that day, and he spoke with Dye in the presence of his mother. Dye made admissions of his own guilt and implicated Stowell as being involved as well. Lockhart asked Dye’s mother to bring him to the police station at 8:30 the following morning for an interview. The next morning, Mrs. Dye called Lockhart and asked if the interview could be postponed until 10:30 a.m., but Lockhart advised her that the later time was inconvenient because he had another interview scheduled at that time. Without giving Miranda warnings, Lockhart interviewed Dye who once again admitted guilt. Lockhart then advised Dye of his rights, and Dye gave a statement, after waiving his rights in writing, admitting his involvement in the vandalism that occurred at Fort City Motors.
At issue on appeal are the statements made by the appellants during the initial interviews at the police station and the statements made by them after they had been advised of their rights. Appellant Dye makes no argument that the admissions he made at his home were subject to suppression. Appellants argue that the first, unwarned statements were invalid and that the subsequent statements were tainted as “fruits of the poisonous tree.” Specifically, appellants argue that their initial statements were invalid because Detective Lockhart failed to advise them that they were under no obligation to meet with him at the police station in violation of Rules 2.2 and 2.3 of the Arkansas Rules of Criminal Procedure. Secondly, appellants contend that their first statements were a product of custodial interrogation made without being advised of the Miranda warnings.
In making these arguments, appellants recognize the Supreme Court’s decision in Oregon v. Elstad, 470 U.S. 298 (1985), where the Court held that a confession made after a suspect has been warned of his rights is not necessarily subject to suppression because it was preceded by statements made in response to custodial questioning without benefit of Miranda warnings. The Court stated:
We must conclude that, absent deliberately coercive and improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded the admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.
Id. at 314. The Court ruled that the second confession was admissible because the first, unwarned remark was voluntarily made as there was nothing coercive about the environment in which it was given. In its decision, the Court also observed that the lapse of time between the two statements was not a controlling factor.
Appellants argue, however, that in contrast to the decision in Elstad, their first statements were made in a coercive atmosphere and were thus involuntary. They liken the facts of this case to those found in Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). In that case, a police officer had been brutally murdered by Shelton’s accomplice, Porier. Shelton, age seventeen, and another accomplice, age fourteen, had been haled out of a bunkhouse by officers at 2:30 a.m. by use of a P.A. system. The boys were told that the officers were looking for Porier and another suspect in the killing, and they were driven in a patrol unit to the home of Shelton’s parents. When they arrived at the home, Shelton was left alone in the vehicle with a police officer who stressed the seriousness of the crime and told Shelton that he had better tell if he knew the location of the suspects or anything about the murder. Shelton then began crying and said, “We did it. We did it. We were there. We were there.” Shelton was then administered Miranda warnings and was taken to the police station where he gave a detailed statement after again being advised of his rights. Focusing on Shelton’s age and the place of interrogation, the supreme court determined that Shelton’s initial statement was the product of custodial interrogation, and it reversed the trial court’s denial of the motion to suppress. The court also held that the subsequent statement given at the police station should also have been excluded. In so holding, the court discussed the rule in Elstad and found it inapplicable because of the coercive elements present at the time the initial admission was made.
In the present case, we need not directly address appellants’ arguments that the first statements were subject to suppression either because the officer failed to advise them that they were not obligated to come to the police station or because they were in custody and not advised of their rights before the interview began. From our review of the record, no references were made to the initial statements at the adjudication portion of the hearing; thus, those statements were not introduced into evidence and used against them. Rather, even assuming that the initial statements should have been excluded for the reasons advanced by appellant, the issue in this case is whether the first statements were made involuntarily so as to render the second, warned statements inadmissible. In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998).
Considering the totality of the circumstances, we cannot conclude that the first statements were involuntary. Officer Lock-hart did not immediately escort the appellants to the police station; instead, he asked them to come there later for the purpose of giving an interview. Appellants, although minors, were interviewed in the presence of their adult caretakers, and there was no testimony that Officer Lockhart made use of any improper tactics to compel them to speak. We are also particularly struck by Lockhart’s statement to Stowell that he was free to leave when Stowell invoked his right to counsel. Although appellants argue that there is a degree of compulsion associated with the interviews being conducted at the police station, we are not convinced that this alone rendered the environment coercive in view of all of the attending circumstances. In sum, absent in this case are any of the coercive elements found in Shelton v. State, supra. We thus cannot say that the trial court’s decision to deny appellants’ motion to suppress is clearly against the preponderance of the evidence.
Affirmed.
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CLIFF HOOFMAN, Judge'
| Appellant Richard Burleigh appeals from the Benton County Circuit Court’s February 10, 2015 order granting a preliminary injunction in favor of appellee Center Point Contractors, Inc. (Center Point). On appeal, Burleigh contends that (1) the noncompete agreement was intended to protect only against ordinary competition and is therefore unenforceable and (2) the circuit court’s additional protections in the preliminary injunction that were not present in the noncompete agreement show that the agreement was unreasonable and not valid as written. We reverse and remand.
On December 30, 2014, Center Point filed a complaint alleging that Burleigh breached his duty of loyalty to Center Point when he worked on a project for Jeff Wolfe and that Burleigh breached the non-compete agreement that he signed with Center Point. Center Point also sought a preliminary injunction. A copy of the employee noncompete and confidentiality agreement, which was attached to the complaint, specifically stated the | following in pertinent part:
1. Agreement Not to Compete: While I am employed-by the company, and 2 years afterward, I will not compete with the business of the Company or its successors and assigns, within a radius of 50 miles from- the present locations of the Company (10316 East Highway 72, Bentonville, AR 72712). I will not directly or indirectly, as an owner, director, employee, independent contractor, consultant, representative, or in any other capacity, engage in activities competitive to the Company in business substantially similar to the present of the Company or such other business activity in which the Company may substantially engage while Pm employed by the Company.
In particular, I will not:
A) Solicit or attempt to solicit any, business or trade from the Company’s actual or prospective customers or clients on behalf of myself or any other person, firm, partnership, corporation or other entity competitive to the Company.
B) Solicit or attempt to solicit any existing Company employee for the purpose , of said employee leaving the Company’s employment and working for any customer or competitor, or
2. Confidentiality. I acknowledge that the Company, in reliance of this agreement, may provide me with access to trade secrets, customers, proprietary-data and other said information on .my own behalf or disclose same to.any third party, except when I am required to do so to properly perform my duties to the Company.
4. Injunctiye Relief. I acknowledge and agree that in the event of a violation or threatened violation of any provision of this agreement, the Company will sustain irreparable harm and will have full right to seek injunctive relief, in addition to any other legal remedies available, without the requirement of posting bond.
6. Governing Law. The formation, construction and interpretation of this agreement shall at all times and in all respects be governed by the laws of the State of Arkansas.
Burleigh filed his answer and a motion to dismiss on January 29,2015. After Center Point filed its response to the motion to dismiss, - the circuit court orally denied Burleigh’s motion to dismiss and held a hearing on the preliminary injunction on February 2, 2015.
Is At the hearing, Shelli McDaniel testified that she owned Center Point, which was a general commercial construction company. She explained that Burleigh was hired in March 2012 as the operations manager and estimator in an effort to expand her business in steel fabrication. She further admitted that Center Point did not provide Burleigh any specialized training in this area -but relied on his previous expertise in the construction industry and on his existing contacts with general contractors in Northwest Arkansas. The only training that he would have received “would’ve been how things were done in [Center Point’s] office, how [Center Point] proceeded with doing bids, how [Center Point] did [its] contracts, how.[it] did [its] record keeping, that — that type of .things. [Shelli] did not train him on how to do his job.” Shelli also admitted that Center Point did not use any specialized proprietary software or formulas to bid on jobs, but it used templates after general contractors sent invitations. to bid to local subcontractors, including Center Point. According to Shelli, the noncompete agreement prohibited Burleigh from “any activity [that was] competitive” with Center Point for a period of two years, and she desired to have Burleigh prohibited from bidding on any projects .on which Center Point also bid. She admitted on cross-examination that she believed that the agreement prohibited any competition regardless of “whether or not it was unfair competition, using some information he learned from [Center Point], or just generally fair competition, responding to invitations to bid.”
Chris McDaniel, Shelli’s husband and an officer with Center Point, testified that he had been involved in the decision to hire Burleigh. Chris further explained that he believed that Burleigh could engage in any commercial construction to the extent that it would not be indirect competition with Center Point. Although Chris stated, “I believe that there’s activities that he gained and gleaned from our company during the course of two years that he was there that if he takes and uses that at another company, then he has an unfair advantage in his bidding process over us,” he openly admitted that he did not think Center'Point taught Burleigh how to bid on steel work and that he assumed that Burleigh used his own formulas when plác-ing bids for Center Point. Additionally,-he explained that Center Point’s customer list was generated by. a subscription service, Datafax, and that anyone who had the ability to qualify for a particular job would be able to find the jobs that were available for bidding using that service.
Richard Burleigh testified that he was hired by Center Point and began working in March 20Í2. He explained that he had expanded Center Point’s business during his tenure, but his employment with Center Point ended in October 2014. He also denied that Center Point provided him with any training, proprietary formulas; trade secrets, or a secret customer list. Furthermore, he testified that he did not believe that he had learned anything at Center Point that would give him an unfair advantage in the bidding process against it.
Burleigh testified that he had approximately fourteen years of experience in many areas of construction, including concrete, steel, underground utilities, paving, engineering, design, project management, estimating, personnel management, arid organization of various trades and projects. He additionally explained that his experience was gained in northwest. Arkansas and that he would be-unable to move to any other area due to his family and due to the lack of contacts, experience, and reputation in any other area. Therefore, he testified that he had 1 ^entered into an agreement'with a friend to form KB Structural, which was another construction company. He, admitted that he had already solicited several bids for construction work on behalf of KB Structural, including work in concrete, masonry, and steel .erection, from general contractors.
The circuit court filed a written order granting the preliminary injunction on February 10, 2015. The circuit court specifically found that '
Plaintiffs' request for a preliminary injunction is supported by the evidence. Defendant has knowledge of Plaintiffs operations. The time and geographic restrictions contained within the parties’ Employee Non-Compete and Confidentiality Agreement are not unduly burdensome. There is a strong likelihood that Plaintiff will preváil on the merits of its claim against Defendant. A preliminary injunction should issue.
The circuit court added additional terms and conditions in granting the preliminary injunction. It enjoined Burleigh from “engaging in any business activities that compete with the types of business activities that Plaintiff substantially engaged in before '31 October 2014.” It further ordered Burleigh to notify Center Point in writing regarding any prospective business activity that he wished to engage in that could arguably -violate the circuit court’s order. Center Point was required to (1) respond within- fourteen days after receiving any written notice from Burleigh, (2) provide a copy of the bid or proposal it intended to submit, and (3) to in fact submit such a bid or proposal to the prospective client. Finally, the circuit court required Center Point to post a $50,000 bond pursuant to Arkansas Rule of Civil Procedure 65(c). This timely appeal followed.
Arkansas Rule of Appellate Procedure-Civil 2(a)(6) (2015) allows a party to appeal an interlocutory order by which an injunction is granted, continued, modified, refused, or |fidissolved, or by which an application to dissolve or modify an injunction is refused. In determining whether to issue a preliminary injunction or a temporary restraining order pursuant to Arkansas Rule of Civil Procedure 65, the circuit court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007). The test for determining the likelihood of success on the merits is whether there is a reasonable probability of success in the litigation. Freeman v. Brown Hiller, Inc., 102 Ark. App. 76, 281 S.W.3d 749 (2008). Consideration of this issue will require determining whether the requirements for a noncompete- agreement were met. ■ Id. Furthermore, we review a circuit court’s ruling on a request for a preliminary injunction under an abuse-of-discretion standard. Potter, supra.
Burleigh -first contends that the noncom-pete agreement was intended to protect only against ordinary , competition and is therefore unenforceable, which challenges the circuit court’s finding that Center Point demonstrated a likelihood of success on the merits to warrant a preliminary injunction. Essentially, appellant argues that the non-compete agreement was void and unenforceable because it violates the public policy of this state which prohibits unreasonable restraints of trade. We agree.
Covenants not to compete are not looked upon with favor by the law. Moore v. Midwest Distrib., Inc., 76 Ark. App. 397, 65 S.W.3d 490 (2002). A party challenging the validity of a covenant not to compete must show that it is unreasonable and contrary to public policy. Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999). In order 17for a noncompete agreement to 'be valid, the following three requirements must be met: (1) the covenantee must have a-valid interest to protect; (2) the geographical restriction must not be overly broad; and (3) a reasonable time limit .must be imposed. Freeman, supra. However, an employer may not shield itself from ordinary competition. Import Motors, Inc. v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (Ark. Ct. App. 1980). The test of reasonableness of contracts in restraint of trade is that the restraint imposed upon one party must not be greater than is reasonably necessary for the protection of the other and not so gréat as to injure a public interest. Moore, supra. Appellate courts have viewed noncompete agreements differently based on whether they grow out of an employment relationship or whether they are made in connection with the sale of a business, and noncompete agreements in employment contracts are subject to stricter scrutiny than those connected with a -sale of business. Freeman, supra. Where a noncompete agreement grows out of an employment relationship, appellate courts have found an interest sufficient to warrant enforcement of the agreement only in those cases where the employer provided special training, or made available trade secrets, confidential business information, or customer lists, and then only if it is found that the employee was able to use the information so obtained to gain an unfair competitive advantage. Moore, supra.
In the present case, Center Point’s owner and officer testified that Burleigh was not provided with any special training. In fact, Center Point relied on Burleigh’s expertise in steel construction in order to expand its business. Shelli admitted that Center Point did not use any specialized proprietary software or formulas, and Chris admitted that he assumed that Bur-leigh used his own formulas when placing bids for Center Point. Additionally, Chris |sexplained that Center Point did not maintain a special customer list and that anyone that had the ability to qualify for a particular job would be able to find the jobs that were available for bidding. Furthermore, Burleigh testified that Center Point did not provide him with any training, proprietary formulas, trade secrets, or a secret customer list. Rather, he maintained that he did not learn anything at Center Point that would give him an unfair advantage in the bidding process against it. As such, Center Point did not have a legitimate interest to be protected by .the agreement, and the non-compete agreement only shielded Center Point from ordinary competition. Therefore, the circuit court erred, in granting a preliminary injunction because Center Point failed to demonstrate a likelihood of success on the merits, and we reverse and remand. Because we find that the circuit court erred in granting the preliminary injunction, it is unnecessary to address Burleigh’s second point on appeal.
Reversed and remanded.
Virden and Kinard, JJ., agree. | [
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RITA W. GRUBER, Judge
|, Matthew Aaron Burr was charged in the Benton County Circuit Court with first-offense driving while intoxicated, refusal to submit to a chemical test, and failure to use a turn signal. He waived 'his right to trial by a jury and filed a motion to suppress all evidence or statements he made as a result of a traffic stop that led to his arrest. At the conclusion of a combined suppression hearing and trial, he asked that Arkansas Code Annotated section 5-65-202 and subsection -205(a)(2) (Supp. 2011) be declared unconstitutional “as applied” because they are in direct conflict with the Fourth Amendment as applied in Missouri v, McNeely, — U.S. -, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The circuit court denied the motion to suppress and found him guilty of all charges.
In his sole point on appeal, Burr contends that the circuit court erred in not finding Arkansas Code Annotated section 5-65-205(a)(2), entitled “Refusal to submit to a chemical | gtest,” unconstitutional. The statute, a part of our criminal code, is codified under the chapter on driving while intoxicated and the subchapter on chemical analysis of body substances. See also Ark. Code Ann. § 5-65-202, entitled “Implied consent.”
Burr asks that his conviction for refusal to take chemical tests be reversed and dismissed on the basis of unconstitutionality and that his DWI conviction be reversed because his refusal to take a chemical test was used to show consciousness of guilt. He lists the following extraordinary issues in his brief: federal constitutional interpretation; substantial public interest; significant issue needing clarification or development of the law, or overruling of precedent; and significant issue concerning construction of statute, ordinance, rule, or regulation. He notes that three related drunk-driving cases involving blood or breath tests are now pending before the United States Supreme Court:- North Dakota v. Birchfield, 858 N.W.2d 302 (N.D.), cert, granted, — U.S.-, 136 S.Ct. 614, 193 L.Ed.2d 494 (2015); Beylund v. Levi, 859 N.W.2d 403 (N.D.), cert, granted, — U.S.-, 136 S.Ct. 614, 193 L.Ed.2d 495 (2015);- and Minnesota v. Bernard, 859 N.W.2d 762 (Minn.), cert, granted, —- U.S. -, 136 S.Ct. 615, 193 L.Ed.2d 495 (2015). The Court’s docket listing for consolidation of these cases states that each case presents the same question: “Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.” Additionally, the docket shows that the cases are set for oral argument on April 20, 2016.
The relevant statutes in this appeal are Arkansas Code Annotated sections 5-65-202 Land 5-65-205 (Supp. 2011). Section 5-65-202(a), Implied consent provides in part that
[a]ny person who operates a motor vehicle or is in actual physical control of a motor vehicle in this -state is deemed to have given consent, subject to the provisions of § 5-65-203, to one (1) or more chemical tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:
(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has an. alcohol concentration of eight hundredths (0.08) or more in the person’s breath or blood.
Ark.Code Ann. § 5-65-202(a). Section 5-65-205(a)(l), Refusal to submit to a chemical test, directs that if an arrestee refuses to submit to a chemical test “as provided in § 5-65-202; no chemical test shall be given,” but the arrestee’s license shall be seized. Arkansas Code Annotated section 5-65-205(a)(2) specifies that refusal to submit to a chemical test “is a strict liability offense and is a violation” under Arkansas law.
Officer Eric Lyle of the Pea Ridge Police Department testified that the following events bégan shortly after midnight on March 22, 2013. He observed a truck make a “yield turn” at a high rate of speed, followed it, observed it turn without signaling, and activated his lights. The truck braked but then accelerated and kept going. Lyle activated his siren and spotlight. The driver, Burr, turned to look at Lyle and waved, but did not pull over. With lights, siren, and spotlight on, Lyle continued following the truck, driving approximately ten miles an hour over the speed limit of 25. Burr pulled into the driveway of a home that was |4his ultimate destination approximately a mile and a half later.
Lyle approached with his gun drawn, ordered Burr out of the truck, and told him to place his hands on it. Burr complied and was handcuffed. Lyle noticed that a strong odor of intoxicants was emanating from Burr; his eyes were bloodshot and watery; and he was wearing a t-shirt, pajama pants, and no shoes. Burr said that he had not pulled over because he “didn’t do anything wrong.” Lyle noticed that his speech was slow and slurred. When asked where he was going, Burr responded, “Here”; when asked whether he had drunk anything,- Burr replied, “No.” Lyle attempted to administer a portable breath test; Burr did not cooperate and, merely pretended to blow into the device, saying that he could not do it because he had a “blown” eardrum. Lyle could not conduct other field-sobriety tests because the area was unsuitable, Lyle arrested Burr for driving while intoxicated (“DWI”) and failing to yield to an emergency vehicle.
Lyle placed Burr in, the back of his patrol car and .decided to give him “the benefit of the doubt” that his eardrum was blown and take him to the hospital for a blood test. Lyle orally reviewed the implied-consent form with Burr as he sat in the back of the unit, and Burr responded that he did not think the officer could tow his truck. When asked more than five times about the blood test, Burr responded, “I guess so, I don’t know” at first and then did not’ respond at' all. Lyle took him to the sheriffs office instead.
j fiLyle conducted an inventory search of the truck prior to its being towed from the scene; he discovered an empty six-pack and six empty beer bottles in it. In the sally port at the sheriffs office, Lyle asked Burr , if he would submit to field-sobriety tests. Burr replied that he would. Lyle testified that Burr failed' all the tests that were administered — the hórizontal-gaze-nystagmus, the walk-and-tum, and the one-leg-stand test — and that failure of the first two indicated intoxication. Lyle then took Burr to the blood-alcohol-content room to begin a 20-minute observation of him prior to administration of the BAG test and- read Burr his implied-consent rights from a form. On the form, Burr acknowledged being read his rights and agreed to take the breath test. Lyle did not offer him a urine or blood test. After 20 minutes, Burr blew into the BAC machine three times but failed to “follow directions” and did not-'give enough of a sample to register. Although the form indicated that Burr requested another test at his own expense, ■ no other - test was administered because Lyle understood it to be available only after he had “taken the officer’s test.”' Burr was booked at the jail, and Lyle overheard him tell a deputy that he would beat the charge like he had before. -
■ Burr asks that we overrule Tiller v. State, 2014 Ark. App. 431; 439 S.W.3d 705, in which thé appellant argued that she had the constitutional right to refuse to take a breath test because it was a warrantless search in contravention of the Fourth Amendment and in which we held that section 5-65-202 is an exception to the warrant requirement. Burr argues that the nonrevocableness of our implied-consent law is problematic and that state statutes cannot allow for the criminalization of a person’s exercising a federal constitutional right under the |fiFourth- Amendment. He also argues that an-additional problem in his case is that he did not have the physical ability to perform the breath test.
We agree with the State that not all of . Burr’s arguments are preserved for appellate review. He claimed in the circuit court that our statutes violate McNeely, 133 S.Ct. 1552, and that he had a right to withdraw his implied cohsent to any chemical testing under the statute and the Fourth Amendment. He also argued that the implied-consent statute could not supply the consent necessary under the Fourth Amendment, notwithstanding our holding to the contrary in Tiller, 2014 Ark. App. 431, 439 S.W.3d 705. He did not argue, as he does on appeal, that the statute' violated due process, see State v. Trahan, 870 N.W.2d 396 (Minn.App.), review granted, No. A13-0931 (Minn.2015); that criminalizing the exercise of a constitutional right is impermissible under cases such as Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); or that implied consent to a breath test is otherwise “unreasonable” under the Fourth Amendment.- We will consider on appeal only specific constitutional arguments that were raised and developed below. E.g., Raymond v. State, 354 Ark. 157, 162, 118 S.W.3d 567, 571 (2003). Because appellant did not argue impermissible criminalization of the exercise of a constitutional right, due process, or general unreasonableness below, the claims are not preserved, and we need not address them. Nor will we consider his undeveloped assertion that his physical inability to take the breath test due to a medical problem is relevant to his constitutional claim. We find no merit to Burr’s ^remaining arguments.
We apply familiar standards when considering a constitutional challenge to a statute. Statutes are presumed constitutional, and the burden of proving otherwise is on the party challenging them. Because of their presumption of constitutionality, statutes should not be deemed unconstitutional unless the conflict with the constitution is “clear and unmistakable.” Akers v. State, 2015 Ark. App. 352, at 5, 464 S.W.3d 483, 487. In accordance with these governing standards, we reject Burr’s constitutional argument.
Burr’s reliance on McNeely is mistaken. There, after an arrestee in a DWI case refused to consent-to a blood draw for purposes of measuring his blood-alcohol content, officers' had his blood drawn without obtaining a warrant. McNeely, 133 S.Ct. at 1556-57. The narrow issue in the case was “whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to-the [Fourth Amendment’s] warrant requirement for noncon-sensual blood testing in drunk-driving cases.” Id. at 1558. The Court held that the answer was no and that exigency had to be decided on a case-by-case basis. It also noted that because the case had been argued “on the broad, proposition that drunk-driving cases present a per se exigency” the Court had not been provided with “an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant.” Id. at 1568.
McNeely does not stand for the proposition that a warrant is always required in nonexigent circumstances in order to obtain a chemical sample from an arrestee who has not | Sexpressly consented. Even if McNeely did hold as Burr alleges, the Arkansas statutes he challenges would not run afoul of it. In contrast to the noncon-sensual blood draw of McNeely, section 5-65-205(a)(l) prohibits administering a chemical test when an arrestee explicitly refuses, and no compelled chemical testing was administered after Burr refused. Moreover, to the extent that McNeely spoke on the issue litigated here, it did so contrary to Burr’s claim. A plurality of the Court noted the availability of a “broad range of legal tools ... to secure BAC evidence” other than warrantless blood draws, including “implied consent laws” in all 50 states that “require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense[ ]” and the adverse inference that could be drawn in subsequent prosecutions from the ■refusal to submit to such tests. Id. at 1566 (plurality). In sum, sections 5-65-202(a)(3) and 5-65-205(a)(2) do not clearly and unmistakably conflict with the holding of McNeely, and we reject Burr’s constitutional challenge premised on it.
Were we to reach Burr’s Fourth Amendment argument regarding reasonableness, we would still affirm. “The touchstone of the Fourth Amendment is reasonableness,” United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), and determining whether a search is reasonable requires an examination of the totality of the circumstances, with an assessment of “the degree to which it intrudes upon an individual’s privacy and ... the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (citations and quotations omitted).
Burr cites Williams v. State, 167 So.3d 483 (Fla.Dist.Ct.App.), review granted, No. J1SC15-1417, 2015 WL 9594290 (Fla. Dec. 30, 2015), a case similar to his because Williams refused to submit to a warrant-less breath test to determine his blood-alcohol content and was convicted under Florida’s refusal-to-submit statute. Williams argued that Florida’s refusal-to-submit statute was unconstitutional as applied. 167 So.3d at 485-86. The District Court of Appeal of Florida, Fifth District, held that it is not unconstitutional to punish a person criminally for refusing to submit to a breath-alcohol test and that a warrantless breath-alcohol test “is constitutional because it satisfies the reasonableness requirement of the Fourth Amendment.” 167 So.3d at 492. The court balanced the State’s legitimate interest in decreasing and prosecuting drunk driving against the intrusion on Williams’s privacy. 167 So.3d at 493. The court found that the State had a compelling interest in “protecting lives, securing the safety of our public roads, and deterring drivers from operating vehicles while intoxicated” and that breath tests are minimally intrusive and reveal nothing more than the level of alcohol in a person’s bloodstream. 167 So.3d at 493-94 (internal citation omitted). It found that Williams had a diminished expectation of privacy, in part because he was driving an automobile on a public road and had been arrested based on probable cause for driving under the influence. 167 So.3d at 494. Under this balancing test, the court concluded that “a post-arrest warrantless breath-alcohol test would have been permissible under the Fourth Amendment.” Because a warrantless breath test would have been reasonable under the totality of the circumstances, the court concluded that Williams had no Fourth Amendment right to refuse the test and that the State was not constitutionally barred from criminally punishing him for the refusal.
|inIn the present case, Burr asserts that “the Arkansas implied consent law, as it applies to criminalizing the refusal of a person for invoking their Fourth Amendment rights, should be declared unconstitutional ‘as applied.’ ” Apparently distinguishing his case from Williams, he argues that because of the medical problem with his ears, he did not have the physical ability to blow into the breath-test machine without suffering serious pain.
Section 5-65-202(a)(3) authorizes chemical testing upon arrest only when there is reasonable cause to believe that the driver has been operating a vehicle while intoxicated or with an alcohol concentration in the blood or breath in excess of .08 percent. Thus, a person is already in custody on a finding of reasonable cause when a test is authorized and arrestees have a reduced expectation of privacy. E.g., Maryland v. King, — U.S.-, 133 S.Ct. 1958, 1978, 186 L.Ed.2d 1 (2013). One of the tests that the circuit court concluded appellant failed to submit to was a breath test. Although a breath test is a search, it is not a particularly intrusive one and does not involve risk to an arrestee. See, e.g., id. at 1969, 1979 (considering intrusiveness and threat to safety and health of a test in determining reasonableness); cf. McNeely, 133 S.Ct. at 1565 (plurality) (emphasizing the “compelled intrusion into the human body” from the blood draw that was at issue). Moreover, the United States Supreme Court has long held that drivers have a diminished expectation of privacy given the pervasive regulation of motorists. See, e.g., New York v. Class, 475 U.S. 106, 112-13, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). That privacy is even further reduced in light of the notice to drivers in section 5-65-202(a)(3) that they are subject to chemical testing if they are arrested for DWI. The United States Supreme Court also has repeatedly recognized that the states have' a compelling interest in combating drunk driving. See, e.g., Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).
In view of Burr’s arrest on reasonable cause, the reduced expectation of privacy as a motorist and an arrestee, the minimal intrusiveness of a breath test, and the compelling interest in combating drunk driving, it simply cannot be said that the implied-consent statute clearly and unmistakably violates the Fourth Amendment. See, e.g., State v. Birchfield, 858 N.W.2d 302, 309-10 (N.D.), cert, granted, — U.S. -, 136 S.Ct. 614, 193 L.Ed.2d 494 (2015); see also, e.g., Beylund v. Levi, 859 N.W.2d 403, 412-14 (N.D.), cert, granted, — U.S. -, 136 S.Ct. 614, 193 L.Ed.2d 495 (2015). We reject Burr’s request to reverse his conviction for refusal to take chemical tests on the basis of unconstitutionality as applied. We also reject his request to reverse and dismiss his DWI conviction on the basis that his refusal to take a chemical test was used to show consciousness of guilt. He has not shown that Arkansas Code Annotated section 5-65-205 is unconstitutional, and the circuit court properly considered his refusal to submit along with other evidence of his DWI. See McNeely, 133 S.Ct. at 1566 (plurality) (noting that an adverse inference could be drawn in subsequent prosecutions from the refusal to submit to such tests).
We note a scrivener’s error in the circuit court’s sentencing order, which shows a finding of guilty on Arkansas Code Annotated section “5-65-205 Violation of Implied Consent Law.” This is a confusion of code sections and titles. See Ark.Code Ann. §§ 5-65-205, entitled Refusal to submit to a chemical test, and 5-65-202, entitled Implied consent. The Pea Ridge Police Department’s citation order correctly lists the offense as 5-65-205, Re fusal to Submit, as does the finding of guilt shown on the district court’s worksheet. Additionally, the |12cireuit court orally pronounced Burr guilty of refusal to submit at the conclusion of his trial. We remand to the circuit court to correct the sentencing order to show a conviction under section 5-65-205, “Refusal to submit to a chemical test.”
Affirmed; remanded for correction of sentencing order.
Abramson and Vaught, JJ., agree.
. The record before us does not show a disposition of this charge.
. The circuit court discounted Burr’s testimony that he signed the form in the back of the officer’s patrol car and consented to the blood draw,
. Although Burr argues on appeal that Tiller should be overruled, Tiller did not involve the constitutionality of our refusal-to-submit statute, the issue in the present case. We find it unnecessary to revisit our decision.
. It is not entirely clear whether the circuit court also considered the implied-consent statute in finding Burr guilty of DWI. | [
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BART F. VIRDEN, Judge ,
. 11 This appeal stems from the Cross County Circuit Court’s denial of Marcus Wilson’s petition to set aside a judgment in which it denied Marcus’s request to modify visitation with his minor child, D.W. . We affirm,
I. Facts'
Marcus Wilson and Edie Wilson were divorced in August 2004,, and by mutual • agreement, Edie was granted custody of the parties’ , minor children. Marcus was granted visitation and shared parenting^
On February 26, 2010, Edie filed a petition to suspend Marcus’s visitation' with the children because of allegations that Marcus had been arrested for possession of a firearm, that Marcus and his -wife had been - manufacturing methamphetamine, and that there was domestic abuse in their home. A temporary ex parte emergency order suspending visitation was entered the same day. On' March 5, 2010, Marcus was personally served by process server with a ^summons, the complaint, and the order. The summons set forth that a hearing would be held on March 10, 2010, or sooner if Marcus requested one, and that if he failed to respond he would be subject to a default judgment. An affidavit of service of the summons, complaint, and ex parte temporary order was returned. .
», Marcus did not file ah answer, and the hearing took place on March 10, 2010. Marcus did not attend the hearing, and the circuit court entered an order on April 8, 2010, terminating Marcus’s visitation with his children.
. On November 15, 2013, Marcus filed a petition to reinstate his visitation with D.W., the only child who was still a minor. In his petition, Marcus acknowledged that on February 26, 2010; • the circuit court entered a temporary order, suspending his visitation. Marcus asserted that the criminal charges against him had been dropped, and that because it' was in D.W.’s best interest to have a relationship with his father, the court should reinstate visitation. Edie filed a response on January 10, 2014, arguing that the petition should be denied.
At the hearing on July 31, 2014, Marcus assérted that a material change in circumstances had occurred, namely, 'that no criminal charges' had ever been filed against him and that he was employed and remarried; therefore, Marcus argued, because of his stability over the last few years, and because it was generally good for fathers to be involved in their children’s lives, it was in D.W.’s best interest for the court to reinstate visitation. Edie and the child’s stepfather asserted that visitation should not be reinstated. They testified that the child’s family life had been stable for the last four years and that D.W. was thriving in his current situation that did not include Marcus.
13At the hearing, Marcus’s' attorney explained that the petition to reinstate visitation had referenced the February 26; 2010 order, and not the April 8, 2010 order, because neither she nor Marcus had been aware until that morning that the April order existed and that Marcus had believed that “there was never another hearing.” The court refused to hear testimony concerning anything but the issue of modification of visitation and instructed counsel that she could proffer any evidence related to why Marcus did not attend the hearing on March 10,2010.
On September 10, 2014, the court entered an order denying Marcus’s petition to reinstate visitation. In the' order, the circuit court made the following findings: there had been little contact between D.W. and his father over the last few years other than a few phone calls and their paths crossing at a family Christmas gathering; Marcus had kept up with D.W.’s life by talking to D.W.’s adult siblings; Marcus’s visitation had been terminated in 2010 because he had been arrested and charged with possession of a gun and manufacturing methamphetamine; the criminal charges had been dismissed in 2013; and since 2014, Marcus had remarried, had been employed full time, and was stable in his lifestyle.
The circuit court also found that though Marcus had shown a material change in circumstances had occurred, “there is no evidence introduced which could lead this court to determine that modification is in the best interest of the child. Without that finding, this court may not modify the visitation order.” The circuit court also found that Marcus had not addressed “the other factors which this court should consider” listed in Sharp v. Keeler, 99 Ark. App. 42, 56, 256 S.W.3d 528, 538 (2007) (“the wishes of the child, the capacity of the |¿party desiring visitation to supervise and care for the child, problems with transportation and prior conduct in abusing visitation, the work schedule and stability of the parties, the relationship of siblings and other relatives”).
On September 22, 2014, Marcus filed a motion to set . aside the April 8, 2010 de- ' fault judgment. Alternatively, he requested postjudgment relief in the form of a new trial.
A hearing on the matter took place on November 12,.2014, and after hearing argument from both sides, the court denied Marcus’s motion to set aside judgment. Marcus filed a timely notice of appeal.
II. Points on Appeal
Marcus raises the'following four points in this one-brief appeal: (1) the circuit court erred when it denied Marcus’s motion to set aside the April 8,2010 judgment as- void for insufficient service; (2) the circuit court erred when it denied Marcus’s motion to set aside the April 8, 2010 judg ment because the relief granted by the circuit court exceeded the relief sought; (3) the circuit court erred when it denied his Rule 59 motion for a new trial because irregularities in the proceedings had prevented Marcus from having a fair trial and because the circuit court made an error of law; (4) the circuit court erred in refusing to reinstate visitation.
None of Marcus’s arguments on appeal are meritorious, and we affirm.
A. Service
Marcus argues that this court must reverse the circuit court’s decision to deny his motion to set aside the April 8, 2010 default judgment because service of the temporary ex parte order entered on February 26, 2010, was not properly made. We disagree, and we 1¡¡affirm.
Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Shotzman v. Berumen, 363 Ark. 215, 223, 213 S.W.3d 13, 16 (2005). Our case law is equally well settled that statutory-service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Our supreme court has held that the same reasoning applies to service requirements imposed by court rules. Id,
It is axiomatic that a circuit court in custody proceedings retains jurisdiction of the cause and can modify a previous decree upon a showing of changed circumstances and in furtherance of the welfare of the child. Pyle v. Pyle, 254 Ark. 400, 403, 494 S.W.2d 117, 120 (1973). Where modification is considered a continuation of an original matter before the court, the issuance of a new or original process, or new personal service, is not required. Parsons v. Parsons, 267 Ark. 1035,1038, 593 S.W.2d 483, 485 (App.1980).
Arkansas Rule of Civil Procedure 5 governs service requirements where a court has continuing jurisdiction, and it sets forth the following:
(1) Whenever under this rule or any statute service is required or permitted to be made upon a party represented by an attorney, the service shall be upon the attorney, except that service shall be upon the party if the court so orders or the action is one in which a final judgment has been entered and the court has continuing jurisdiction.
(2) Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail or commercial delivery company at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy for purposes of this paragraph means handing it to the attorney or to the party[]
(3) If a final judgment or decree has been entered and the court has continuing | (jurisdiction, service upon a party by mail or commercial delivery company shall comply with the requirements of Rule b(d)(8)(A) and (C), respectively.
(Emphasis added.)
The purpose of Rule 5(b)(3) is not to require that a party must serve summonses with motions to modify a final decree when the court has reserved continuing jurisdiction. Dickson v. Fletcher, 361 Ark. 244, 249, 206 S.W.3d 229, 232 (2005). Instead, Rule 5 directs that “such motions are required to be served in the same manner or method required for a summons and complaint[.]” Dickson, 361 Ark. at 249, 206 S.W.3d at 232 (Emphasis added.) Arkansas Rule of Civil Procedure 4(d)(1) sets forth that service may be made “[u]pon an individual, other than an infant by delivering a copy of the summons and complaint to him personally!!.]” , ⅛.
The permissible methods of serving the motion are listed in Rule 5(b)(2),- and personal delivery is specifically set forth as a valid method of service. Rule 5(b)(3) simply provides that if service is by mail or commercial delivery service, the requirements of Rule 4(d)(8)(A) and (C) must be satisfied. See 2 David Newbern, John Watkins & D.P. Marshall Jr., Arkansas Civil Practice & Procedure § 38:5 (5th ed. 2011) Service is not required to be made by mail, as Marcus argues.
On March 5, 2010, at 1:40 p.m. Marcus was personally served by a process server with the February 26, 2010 order. Marcus urges this court to hold that the circuit court erred by not requiring service by mail; however, nothing in Rule 5 dictates that service must be made by mail or forbids service by personal delivery. Rule 4 simply permits service via regular and commercial mail. See Ark. Rule Civ. P 4(d)(8)(A) and (C). As is stated above, Marcus was personally served, which is allowed by Rule 4 and 5, and thus, the requirements of service by 17mail are inapplicable here.
Marcus argues that there are many errors on the face of the summons; however, any defects in the summons are immaterial because, as we stated above, Rule 5 does not require that a summons be served when the circuit court has-continuing jurisdiction as it did here. We find no error, and’we affirm:
B. Remedy Exceeded Relief Requested
Marcus argues that the order terminating his visitation, which was a default decree against him, is void because the remedy ordered by the circuit court did not strictly conform to Edie’s request for relief in her complaint — Edie had requested that visitation be suspended, and the circuit court instead terminated Marcus’s ■visitation. We hold that the circuit court did not err, and we affirm.
Our standard of review depends on the grounds claimed by the party that moved to set the decree aside. When the party'claims that the judgment is void, as Marcus does here, then the matter is a question of law, which we review de novo. Nucor Corp. v: Kilman, 858 Ark. 107, 186 S.W.3d 720 (2004). Where the default judgment is void, proof of a meritorious defense to the cause of action is unnecessary. See, Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998).
Arkansas Rule of Civil Procedure 54(c) sets forth that in cases where -judgment is entered by default, a party is expressly precluded from obtaining any relief not demanded in his pleadings. Robinson v. Robinson, 103 Ark. App. 169, 170, 287 S.W.3d 652, 653 (2008). Judgment by default shall not be different in kind from or exceed in amount that prayed for | sin the demand for judgment. Bom v. Hodgesf 101 Ark. App. 139, 141, 271 S.W.3d 526, 528 (2008). The purpose of the rule is to uphold the principle that a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void. Id.
First, we examine Rule 55 of the Arkansas Rules of Civil Procedure which sets forth that a default judgment may be set aside when the judgment is void:
[T]he court may, upon motion, set aside a default judgment previously entered for the following, reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however; if the judgment is void, no other defense to the action need be shown.
Marcus argues that the circuit court’s decision to terminate visitation with D.W. in the April 8, 2010 order was in excess of its power because Edie did not specifically ask for termination, only suspension., To adopt Marcus’s argument would result in an absurd interpretation of our rules. This court does not engage in interpretations of a court rule that defies common sense and produces absurd -results. Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Sews., Inc., 2011 Ark. 501, at 5, 385 S.W.3d 797, 800.
Although visitation is always modifiable, to promote stability and continuity for the children and to discourage repeated litigation of the same issues, courts require more rigid standards for modification than for initial determinations. Baber v. Baber, 2011 Ark. 40, at 9, 378 S.W.3d 699, 705. This court has stated the best interest of the child is the polestar for making judicial determinations concerning custody and visitation. Buckley v. Buckley, 73 Ark. App. 410, 416, 43 S.W.3d 212, 216 (2001). A circuit court maintains continuing jurisdiction 19over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or facts not known to it at the'time of the initial order. Baber, 2011 Ark. 40 at 9, 378 S.W.3d at 705. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id. When the best interests of the child -are at stake, the circuit court should look into the particular -circumstances of each case and act as the welfare of the child appears to require. Moon v. Marquez, 65 Ark. App. 78, 80, 986 S.W.2d 103, 104 affd, 338 Ark. 636, 999 S.W.2d 678 (1999).' We know of no type of case wherein the personal observations of the court mean more than in a child custody case. Wilson v. Wilson, 228 Ark. 789, 793, 310 S.W.2d 500, 502 (1958).
The circuit court did not err when it modified Marcus’s visitation in the April 8, 2010 order, and Marcus’s argument that Edie was given a greater or different remedy than she asked for is not well taken. A circuit court’s determination of the best interest of a child is not a matter of an amount of recovery prayed for by a party. Furthermore, the circuit court’s determination to terminate Marcus’s visitation with D.W. was not “different in kind” from Edie’s request for a suspension of visitation. A modification of visitation-either suspension or termination or any other possible outcome-depends on the same factors: a material change in circumstances and the best interest of the child. See Buckley, supra. It would be absurd for this court to hold that the degree of modification of visitation asked for by Edie was “different in kind” from the degree of modification of visitation that the circuit court found to be necessary to further D.W.’s best interest.
The circuit court’s restriction of visitation was consistent with the court’s continuing | ^responsibility in visitation matters, and thus, we affirm.
In the alternative^ Marcus argues that the default judgment should be set aside under provisions (1) and (4) of Rule 55(c): “surprise” and “any other reason justifying relief from the operation of judgment,” respectively. We disagree. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action. Ark. R. Civ. P. 55. Marcus does not present a meritorious defense, as is required, and therefore his argument fails. “A point is not sufficiently developed for review when appellant cites authority without applying the holdings of those cases [or the dictates of our rules] to the facts of the case at bar and otherwise makes no convincing argument on appeal; the appellate court will not conduct research on appellant’s behalf.” Rybum v. Rybum, 2014 Ark. App. 108, at -3, 432 S.W.3d 102, 106. On-this point, we affirm.
C. Motion for a New Trial
Marcus argues that the circuit court erred in not granting his motion for a. new trial based on Rule 59(a), which sets forth:
A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the sub.stantial rights of such party: (1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; ... (8) error of law occurring at the trial and objected to by the party making the application.
Marcus argues that the irregularity that he believed occurred began with the improper service of notice of the February 26, 2010 temporary ex parte- order, which we have stated was properly made. Because the essence of Marcus’s argument relies upon the presumption of improper service, and because we have decided that service was proper, his argument fails.
~ l nFirst, Marcus asserts that the February 26, 2010 ex parte temporary order was granted without notice. .¿Marcus argues that because he did not receive proper notice, the circuit court issued the February 26, 2010 order in error. Specifically, Marcus argues that because Edie -had not complied with the requirement set forth in Arkansas Rule of Civil Procedure 65(b)(1)(A), which-'governs temporary restraining orders issued without notice, and sets forth that “specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss of damage will result to the movant before the adverse party can be heard in opposition[.]” Marcus asserts that Edie did not submit an affidavit or a verified complaint; therefore, he was entitled to a new trial under Rule 59(a)(1) and (8) because the circuit court erred as a matter of law by issuing.a temporary restraining order and because he was denied a fair trial. .
' The Rule 65(b)(1)(A) requirement of an affidavit or verified complaint only applies to situations where notice was not given. Because Marcus’s argument hinges on failure of service of notice, which we have stated earlier in this opinion was properly made, his argument fails, and on this point we affirm.
Marcus also argues that he was entitled to a new trial via Rule 59- because the circuit court erred in granting greater relief than Edie requested. We rejected this argument in a prior point on appeal, and we need not address the issue again.
Marcus’s filial argument concerning this point on appeal is that the circuit court erred in denying his motion for a new trial because the burden of proof was impermis-sibly shifted to him’ to' prove that a material change in circumstances had occurred when he petitioned to | iahave visitation reinstated. Marcus argues that the burden of proof should have been on Edie to show that the circumstances that led to a temporary restraining order had continued such that a permanent restraining order was necessary. He states in his brief that his “petition t.o reinstate visitation was a motion to dissolve the restraining order.” ‘
Marcus is incorrect. The error in Marcus’s argument lies in his conflation of dissolution of a temporary restraining or der with modification of visitation. They are not the same.
When a modification of visitation is requested, as it is here, the moving party must show a material change in circumstances such that the best interest of the child will be served by the modification. See Moix v. Moix, 2013 Ark. 478, at 9, 430 S.W.3d 680, 685. Marcus’s argument that he met the necessary threshold to dissolve the restraining order; and thus, his visitation with D.W. should have been reinstated, is misguided. On this point we affirm.
The issue of the circuit court’s denial of Marcus’s request for modification of visitation is fully addressed below.
D. Material Change of Circumstances and Best Interest of the Child
Marcus argues that the circuit court erred in refusing to reinstate his visitation with D.W. The Arkansas Supreme Court stated our standard of review of modification of visitation cases in Moix, supra:
In domestic relations cases, we review the evidence de novo and will not reverse the circuit court’s findings unless they are clearly erroneous. We also give special deference to the circuit court’s superior position in evaluating the witnesses, their testimony, and the child’s best interest. Because a circuit court maintains continuing jurisdiction over visitation, it may modify or vacate a prior visitation order when it becomes aware of a material change in circumstances since the previous order. The party seeking modification has the burden of demonstrating such a material change in circumstances. With regard to visitation, the primary consideration is the best interest of the child. | ^Important factors for the court to consider in determining reasonable visitar • tion are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems, of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and relationship with siblings and other relatives. We have held that fixing visitation rights is a matter that lies within the sound discretion of the circuit court.
(Citations omitted). As stated above, our court has held that “[w]hile custody is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues.” Stellpflug v. Stellpflug, 70 Ark. App. 88/ 14 S.W.3d 536 (2000). The party seeking the change also has the burden to show that the modification is in the best interest of the child. Brown v. Ashcraft, 101 Ark. App. 217, 220, 272 S.W.3d 859, 862-63 (2008).
In the present case, the circuit court found that a material change of circumstances had occurred, namely, that Marcus had a stable lifestyle and that he had resolved the circumstances that had led to the termination of visitation with his children; however, the circuit court found that Marcus had failed to present any testimony showing that it would be in D.W.’s best interest to reinstate visitation with his father, and it also found that Marcus had not addressed important factors the court normally considers in such cases-the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and relationship, with siblings and other relatives. We find no error m the circuit court’s determination that Marcus did not present sufficient evidence that it was in D.W.’s best interest to reinstate visitation; therefore, on this point we affirm.,.
|! .(Affirmed.
Gladwin, C.J., and Gruber, J., agree. | [
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WAYMOND M. BROWN, Judge
| tAppellant Erica Barnes appeals from the June 9, 2016 order of the Pulaski County Circuit Court terminating her parental rights to her five children, E.B. (DOB 1-15-02), Z.R. (DOB 9-24-06), T.H.l (DOB 6-20-12), T.H.2 (DOB 8-2-13), and E.H. (DOB 1-1-15). Barnes argues on appeal that the evidence was insufficient to terminate her parental rights. Appellant Tyshon Hall, the father of T.H.1, T.H.2, and E.H., also appeals the June 9, 2016 termination order. He contends that the trial court erred in terminating his parental rights because DHS failed to properly plead the potential-harm prong in its petition and the evidence was insufficient to support the termination. We find no error and affirm.
12This case began after Barnes tested positive for cocaine at the birth of E.H. On January 2, 2015, Barnes tested positive for both cocaine and oxycodone. Barnes had also tested positive for cocaine at her prenatal visit on December 22, 2014. Arkansas Department of Human Services (DHS) took a seventy-two hour hold on the children on January 2, 2015. DHS filed a petition for emergency custody on January 5, 2015, and the court issued an ex parte order for emergency custody that same day. On February 11, 2015, the children were adjudicated dependent-neglected as a result of parental unfitness and neglect based on Barnes’s stipulation of cocaine use at or near the time of E.H.’s birth and E.H.’s positive cocaine screen at the time of birth. The order also indicated that the court accepted Barnes’s case as “Zero to Three.” In the Zero to Three review order of July 13, 2015, the court noted that Barnes had tested positive for alcohol on June 12 and June 26. The court ordered unsupervised visits in Barnes’s home with the children on October 5, 2015.
The permanency-planning hearing took place on December 9, 2015. In the order entered on the same day, the court found that Barnes “has checked off boxes, but there are still serious problems with [her] stability and judgment.” The order noted in pertinent part that
TONI HANSBERRY testified that mother has made progress towards reunification. She completed treatment, has a sponsor, and has participated in NA/ AA, random drug screens, and visitation. She has completed counseling and is employed. Mother was recently evicted from her home; she has located a home in North Little Rock. She has outstanding bills in her name, so she cannot get the utilities in her name, DHS learned this on November 4, when they attempted to visit mom’s home during a visit. Mother was not there, and the landlord told Ms. Hansberry what happened. Mother |ahad the kids at McDonalds. Ms. Hansberry talked to mother; mother denied owing that much money, but she said she did owe some. Because of this, the visits returned to the DHS office. The landlord told Ms. Hansberry that mother owed $3000 in rent. Mother owes $1600 in electric; $300 in water; and she did not have an amount for gas. She had utilities in her old place in different people’s names. She is trying to get the lights on in the uncle’s name. Mom works for Jason’s Deli. That is a hew job. [Z.R.] is not doing well at Centers; she is aggressive. ... [E.B.] was doing well until another teen was placed in the home; then he started being disrespectful and skipped classes. ... Mother has visited with all but [Z.R.] recently. Mom recently started visiting her at Centers. Mother still needs assistance with redirection and helping with younger kids. [E.B.] sometimes does not want to come to visits because he does not want to help with the younger kids. Four out of the five children have some type of behavior problem. Mother works the services, but she does not have the capability to parent all five kids. There are budgeting concerns, as well. ... Mother has had one therapy session with [Z.R.] ... Mother had been served with eviction notices several times before November 4. Mother moved from Rose City to another place in NLR; she now works in Little Rock. At visits, she pays attention to the kids, but she is also on the phone. As the visits wind down, she starts getting on the phone. Mother said she has little support. DHS just received the psychological evaluation for mother today. The psychological was done in April. Housing and ability to parent the children are the main concerns. Each time mother has moved, utilities and/or apartment has been in someone else’s name. That is part of her history. Jerome Martin is using his name for utilities, but he also had an old bill that mother had to pay to get to use his name. Another friend may let mother put gas in her name. The Hall grandmother is letting mother live with her; mother has a friend here today (Jasmine Clarks) that helps with transportation. Mother said she had “other bills” like a cell phone bill, a light bill, bus, and bills from where she goes to the emergency room. She has had one hair follicle; they requested another but it has not been approved. She did that at the beginning of November, and again after the staffing!;.]
The court changed the case’s goal to adoption and termination of parental rights. It noted that Barnes’s continued poor decision making was a present problem.
DHS filed a petition for termination of parental rights on January 11, 2016. DHS listed three grounds for termination against Barnes: (1) the “failure to remedy” ground, (2) |4the “subsequent other factors or issues” ground, and (3) the “aggravated-circumstances” ground. DHS listed four grounds for termination against Hall: (1) the “subsequent other factors or issues” ground, (2) the “aggravated-circumstances” ground, (3) the “abandonment” ground, and (4) the “sentenced-in-a-criminal-proceeding” ground.
The termination hearing took place on March 7and April 21, 2016. Dr. Paul Dey-oub testified that he evaluated Barnes and diagnosed her with cocaine use. He said that she had borderline intellectual functioning due to a 74 IQ, and that she was a child-abuse perpetrator because E.H. was born with cocaine in his system. Dr. Dey-oub opined that due to Barnes’s cocaine use, she needed individual therapy, residential drug treatment, parenting classes, an adequate place to live and means of employment and support, and evidence of a stable environment for at least six months. On cross-examination, Dr. Deyoub stated that Barnes and Hall had a very unstable relationship. He testified that Hall had failed to show up twice for his psychological appointment in this case.
Barnes testified that she participated in “quite a few services throughout the course of this case,” including parenting classes, therapy with Z.R., a psychological evaluation, outpatient treatment at RCA, AA meetings, and the Zero to Three Program before it ended. She admitted that she tested positive twice in June for alco hol; however, she denied coining to visits under the influence of alcohol. According to Barnes, the positive alcohol screens 15were from her drinking a day or two before the screens. She testified that she currently resided at 703 West 23rd Street in North Little Rock with Hall. She stated that she had lived there since January 7, 2016. She testified that it was her plan to remain with Hall. She said that she had gotten a house on Haywood in November but that she never moved into it because she could not get the lights turned on. She stated that she subsequently moved in with Hall’s mother until she got herself together. Barnes testified that she lived in an apartment located at 7414 Mabelvale Pike in Little Rock when the case first opened. She denied being evicted from the apartment, but instead contends that she left after there was a shooting across the field from her apartment. She said that she did not believe that she owed the landlord of the apartment $3,000, but guessed that she did owe him about $1,500. She stated that she is currently employed at Jason’s Deli where she has been employed for nearly seven months. She said that prior to that, she worked at Family Dollar. She testified that she enjoyed unsupervised visitation with her three youngest children until around November.
On cross-examination, Barnes stated that she and Hall had not undergone couple’s counseling although she had a battery conviction against Hall. She stated that she had been with Hall for six years but that she was unaware of any convictions he had during that time. She said that Hall went to prison during this time but that the reason “wasn’t [her] worry at the time.” She admitted that she made no effort to pay off her outstanding utility bills while she lived with Hall’s mother. She stated that she had been unable to manage her rent and | ^utilities for a couple of months. She testified that she makes $7.71 an hour at Jason’s Deli and that she works approximately twenty-eight hours a week.
Hall testified that he was released from prison on January 4, 2016. He stated that he was placed in custody on April 2, 2015, due to probation revocations on underlying charges. He said that he was unable to participate in services while he was incarcerated but that he did take parenting classes, anger management classes, drug and alcohol treatment, and another class while in prison. He testified that he would be on parole until February 18, 2018. He stated that the residence he and Barnes shared had two bedrooms. He said that if all of the children were returned to them, two children would sleep in each room and E.H. would sleep in the living room with him.
On cross-examination, Hall denied having a positive drug screen on April 2, 2015, while at a criminal hearing. He stated that he received certificates for the classes he took while in prison but that he “left them all behind.” He testified that he has had multiple probation revocations in the past five years. He stated that he had never been charged with assault against Barnes. He said that he was on call with Complete Staffing but that he had not been called for a job yet. He stated that he received financial assistance from his family.
On redirect, Hall stated that he pays bills with the income he receives from his family. He said that he works for his family’s lawn service “under the table” and receives payment for that.
On re-cross, Hall stated that his payment varied depending on the service put in. He said that on average, he receives $60 to $70 a day. He testified that he saves his money and helps with the bills in the residence he shares with Barnes.
|7Upon examination by the court, Hall stated that he received payment for the days he worked. However, he said that he could still go to his parents for money if he was in a bind.
Toni Hansberry, the family service worker assigned to the case, testified that the children were removed after E.H. was born with cocaine in his system. She stated that the case was initially a Zero to Three case, which meant that there were the extra benefits of coming to court more frequently; additional counseling; the benefit of a visit coach who monitored the visitation and reported to DHS and the court; additional types of therapy; and overall, a more intensive and hands-on experience. She stated that Barnes enjoyed unsupervised visitation with her children until DHS learned that she had been served with an eviction notice in November. She said that Barnes subsequently moved to a house on Haywood, but that no home study could be conducted because the house did not have any utilities on. She stated that Barnes then moved in with friends and eventually began staying with Hall’s mother. According to Hansberry, Barnes moved to another location and subsequently moved to the current location in North Little Rock. Hansberry stated that Barnes had been offered drug screens, supervised and unsupervised visitation, psychological evaluation, parenting classes, Zero to Three Program, individual therapy, outpatient drug treatment, drug-and-alcohol assessment, and bus passes. She stated that Barnes had completed the services offered by DHS. She said that Z.R. was in Centers from August to January and that during that time, Barnes participated in one therapy session and one visit. She stated that she was unaware of the reasons that prevented Barnes from participating more.
Hansberry stated that she did not have any contact with Hall before he was released from prison. She said that Hall did not start any services before going to prison. However, |sshe stated that he did submit to a paternity test, which was positive for the three youngest children. She testified that Hall contacted DHS following his release, and he began to visit his children. She stated that a psychological evaluation had been scheduled but that it would be April before they could see him. Hansber-ry opined that it was in the children’s best interest to have Barnes’s and Hall’s parental rights terminated.
On cross-examination, Hansberry testified that Barnes never indicated that she and Hall were planning on being a couple upon his release from prison. She stated that permanency, debt, and having a support system were all concerns DHS had for Barnes. Hansberry said that although Barnes completed some of the Zero to Three goals, she never completed stability. She stated that in 2012, there was an unsubstantiated referral concerning Barnes that was very similar to what came to light in 2014. Hansberry opined that the children could not be returned to Barnes and not be placed at risk of harm due to Hall’s presence in the residence. According to Hansberry, it would be months before Hall could complete the services necessary to make it safe for the children to return. She also said that there would be some concerns about Hall’s criminal history with respect to the safety of the children due to the serious nature of his criminal charges that involved weapons and drugs.
On cross-examination by Barnes’s attorney, Hansberry testified that Barnes was required to maintain sobriety and stable housing. She stated that Barnes needed to be able to apply what she learned when interacting with the children. She further testified,
In order for her to be reunified with her children she needed to stay in her home. She needed to have utilities on in her home. She needed to learn how to deal with the behaviors of her children without being instructed or prompted and assistance from other people. She has a son who has some problems and was having some problems in school, some educational issues. She has a daughter that has some severe behavior tissues. She needed to get into therapy with her daughter so she can learn what’s going on with her daughter, how to better deal with her daughter and how to be able to parent a child that has some special needs and behavior needs. Although the children were out of her care for over a year, Ms. Barnes was afforded the opportunity to participate in services with her children. She was to visit and participate in therapy, learning what’s going on with your children, learning how to deal—there’s a difference. I heard her testimony on how she did counseling with Z.R., she did one counseling session. It wasn’t December until February.
I said the mother’s instability and about taking care of her home, that she should have stayed in her home. As for if I’m talking about the home where the shooting was, well, I don’t know if there was a shooting, that’s just what Ms. Barnes is telling us. But she had that home and then she moved to another home and then that home didn’t pan out and then she moved somewhere else and then she moved somewhere else. So that’s instability, she’s not staying long enough where we can be able to—the home that she moved in on Haywood Street, there was never any utilities there so that a home study could be conducted to see if there were any safety concerns in the home. Then she moved in with Mr. Hall’s mom and then she left there and then she moved to the home that she’s in now. So once she left her home on Mablevale she has had a pattern of instability in her living status. She’s had two homes, she had Mablevale and she’s go the one she’s in now, but she’s only been there since January 7th. She didn’t got right from Mabelvale to this house. She went from Mablevale to 4901 Haywood. She moved all of her personal things into the home. She never moved into the home because she could not get utilities on in the home. She left that home and went to Mr. Hall’s mother’s home. She left Mr. Hall’s mother’s home and then she went to the home that she is on West 23rd Street. So that’s four addresses that she’s had. She paid rent at the Haywood home, she paid the deposit and she moved her stuff in. She never lived there but said that’s where her residence was.
Hansberry stated that they were unable to provide Barnes with budgeting services because there was never a stable home to come to. She stated that there was no cash assistance made to Barnes. She also said that there were not any housing referrals made because DHS does not make housing referrals. Hansberry testified that Barnes still needed redirection with parenting the younger children.
Upon cross-examination by Hall’s attorney, Hansberry stated that Hall had submitted to requested drug screens. She said that he had not had a new referral for individual therapy. 11flShe stated that DHS did not make any new referrals while Hall was in jail so that his psychological evaluation could be conducted there. She also stated that there was no referral made for Hall to have a drug-and-alcohol assessment. She testified that since Hall was incarcerated during the time of the Zero to Three, he did not receive any additional counseling. She further stated that Hall was not offered any parent-child psychotherapy.
On redirect, Hansberry stated that no one had provided DHS a copy of the lease of appellants’ current residence. She said that there was a possibility that the utilities would be disconnected if someone decided he/she no longer wanted them in his/her name. She stated that Barnes had not received domestic violence counseling or anything for anger management.
Danyetta Pride, an adoption specialist, testified that the children were adoptable. She stated that as a family group of five with all the behavioral, medical, and developmental issues, there were ten resources available. When the three youngest children are run as a group, there are 146 adoption resources. She stated that there are sixty-five adoption resources for E.B. alone. And she said that there are eighty-two adoption resources for Z.R. by herself. Pride opined that the children did not have issues that would be a barrier to adoption* although the older children had some behavior issues.
Matthew Gerek testified that hair follicle tests were performed on both appellants on February 25, 2016, and that they both were positive for cocaine.
Barnes testified that she felt bad and scared for E.H. when they tested positive for cocaine on January 2, 2015. She stated that she had taken steps to correct that situation. She said that she underwent a drug and alcohol assessment and that she completed outpatient treatment at RCA. She said that she started going to AA meetings and meeting with a |„sponsor after she got out of treatment. She stated that she worked through the steps but that she still had to work on her amends. Barnes said that she underwent urine tests throughout the case and that they were all negative for drugs. However, she admitted that she tested positive for alcohol on two of the screens. She stated that she has not used alcohol since that time. She testified that she learned redirection and discipline in parenting class, which she successfully completed. She said that Dr. Deyoub performed a psychological evaluation on her and that she learned a lot about herself from the results. She stated that she underwent counseling to work on her anger management and other issues. She said that she works as a cashier at Jason’s Deli, and that she trains the new hires. She stated that she left Family Dollar and went to Jason’s Deli because it was hard for her to get home at night. She testified that she would like to own her own restaurant in the future. She stated that she had recently done a budget and had done “fantastic” with her bills lately. She said that the gas bill was now in her name and that the light and water bills were in Hall’s name. She stated that she received no services from DHS for managing her money. Barnes testified that she and Hall lived together and that their relationship was going “good.” She stated that he was currently employed at something like a deli.
On cross-examination by Hall’s attorney, Barnes stated that Hall has helped support the household and her sobriety. She stated that they help keep each other clean. She said that Hall was very supportive when it came to visiting the children, and that she believed the children needed him in their lives. She also stated that Hall had expressed his love for the children to her.
|iaOn cross-examination by DHS, Barnes testified that she had not used alcohol since June 26, 2015. She stated that the last time she visited Z.R. was January 4 because she did not have a way to Fordyce for the visits. However, she stated that she calls and checks on Z.R. She said that she and Hall started dating in 2010. She stated that she never used cocaine with Hall al though they both have a history of cocaine use. She said that her unsupervised visits were ended because she was evicted and that it was never reinstated because she did not have an appropriate and suitable home. She stated that although the hair follicle test shows that she was positive for cocaine in February 2016, she did not understand the positive result because she had not used cocaine since December 31, 2014.
Upon cross-examination by the attorney ad litem, Barnes stated that she was with Hall when he pled guilty to aggravated assault on. October 26, 2010. However, she said that she was not with him in January 2011 when a revocation petition was filed against him and he was sent to jail for thirty days. She said she was with him in December 2013 when another revocation petition was filed and he was sentenced to ninety days in jail with fifty-two days jail credit. She also stated that she was aware of the revocation petition filed against Hall in December 2014, which subsequently resulted in him being imprisoned after he tested positive for drugs on April 2, 2015. She further testified
I think having Mr. Hall as my partner and living with him is a good choice for my children as far as stability and a good example. He’s a good example because of the things that he did, I mean, he got hisself [sic] together. I could see if he keep doing it and got out and was doing the same thing, then that would be a different thing. But as far as his children, he’s a great father to his kids. As far as if I’m just completely ignoring the fact that he tested positive in a hair test in February of this year when I say that he’s not doing that, well, I can’t believe that, I don’t believe that. I don’t believe the hair test results.
|1SB arnés stated that DHS did not help her figure out her finances and what needed to be done. She said that she did not have a payment plan for her light bill, water bill, or back rent. She stated that Hansberry conducted a home visit on February 10, 2016, and that at that time, the home was heated by gas stoves that had open flames in the front, which was not safe for toddlers. She also stated that at the time of the visit, a couch or sofa blocked the front door. Barnes stated that she had known since the beginning of March that her hair-follicle test was positive for cocaine. She said that she did not go into any treatment program after the positive screen as suggested by her drug and alcohol assessment as well as her psychological evaluation. When asked why her children should be returned to her, Barnes stated
As for me telling the Court why I should get my kids back even though I haven’t complied, well, I complied with everything like I said I haven’t even touched a drug since 12-31-14; so I don’t feel like I’m doing—dealing with my recovery, but I don’t feel like, you know, that should be a part of it because it’s not true. I didn’t say that I don’t have a problem. I said I’m dealing with my recovery. I never said I didn’t have a problem, I just said this wasn’t true.
Hall requested that his parental rights not be terminated. He stated that he started visiting his children as soon as he was released from prison. He said that he had visited them every week, sometimes twice a week, since his release. He testified that prior to going to jail in April, he saw his children daily. He stated that he provided them with essentials as well as gifts for the holidays. He said that he had always been able to work and that, when his money was low, he received help from his family. He stated that although he was sentenced to thirty-six months’ imprisonment for a revocation, he only served nine months. He said that since his release, he had been doing the best he could to get his children back home with him. He testified that he has tried to stay employed since his release and that he was currently misemployed with Schlotzsky’s, making $8.50 an hour. He said that he also helps his uncle with lawn services. He stated that he provided Barnes with transportation to meetings and that he also attended some meetings himself. He also said that he attends church. He testified that April 2, 2015, was the last time he used an illegal substance. He said that he did not understand how his hair follicle test was positive for cocaine. He stated that he was currently on parole and that there were no known revocations pending at the time. He said that he was unaware of any services DHS had asked him to do since his release. However, he stated that he had been drug screened and allowed visitation. He also said that DHS had visited his home and pointed out some health and safety concerns that needed to be fixed. He stated that he shut down the whole heating system and planned to get it fixed during the summer. He further testified:
Today, I’m asking the Court to, you know, I’m really asking the Court for another chance of having rights to my kids because not only am I trying to better myself, but I’m trying to be here as well for them. I know I ain’t the perfect person in the world, but I’m a good dad to all three of my kids. And if they walked in here right now, they’ll know who I am and they will know who I’ll be for the rest of their life so I’m trying to do my best, I mean—
There’s been some questions asked about whether it was a good idea for Ms. Barnes to get back with me after I got out of jail. I have done plenty to help support her. I mean, I have two vehicles of my own in my name, driver’s license. And no matter what, I mean, relationship we go through things however it may be. I’m pretty sure everyone else have they—well, that ain’t got nothing to do with it. All I know is that I do what’s best in my relationship, make sure that she gets everywhere she need to go no matter what time. She ain’t got to do nothing. I’m going to provide for everything; so that’s just me.
Upon cross-examination by DHS, Hall stated that his parole ends on February 18, 2018. He admitted that he had rules for parole and that he would “get a sanction” if he broke those rules. He stated that returning to prison was a possible sanction, “but they give you | ^chances.” He testified that he had heard of other people having their parole revoked but that he did not have any intention of getting revoked. He continued, “I don’t think I would go back into custody if DHS were to turn over the hair shaft test to my parole officer.” He stated that he and Barnes were talking about getting married. He said that he had referrals for a psychological evaluation and for a counselor before he was incarcerated. He stated that both of his vehicles could travel an hour’s distance.
On cross-examination by the ad litem, Hall stated that he currently had a traffic citation in Pulaski County, which he received on March 30, 2016. He said that he was ticketed in February 2015 for driving on a suspended license, but that his license was reinstated in February 2016. He testified that Barnes asks him all the time to take her to Fordyce, but he is unable to because they “have to do maintenance work on the vehicles.” He stated that one of his vehicles is down and that the other one has bad tires. He admitted that he missed his March 25, 2015 psychological evaluation, but he stated it was because he had to report to his probation officer. He said that since his release, DHS had informed him that he would be referred for a psychological evaluation. He stated that he completed Ms counseling, but that he had requested a new counseling referral since his release. He testified that he was ready to take on all five of the children if they were returned. He said that he would put E.B. and Z.R. to work as a form of discipline. He stated that he completed parenting classes in prison. He denied using any drugs, being around people using drugs, or dealing drugs.
Kathy Crow, the CASA worker assigned to the case, testified that she had seen Hall twice at visitations and that she was able to observe that he had a bond with his children. She Instated that Hall did not bring food, gifts, or any other items for the children during the visits she observed. She testified that Hall had helped Barnes since being released by providing her with transportation and sharing the house together. She stated that Hall told her that he was “determined not to be involved in any kind of drugs. That he did not drink and never had.” She also stated that Hall said he and Barnes were worMng together to maintain sobriety. Crow said that based on her interaction with Hall, he is trying to be “helpful as opposed to hurtful in the reunification process.” She also stated that Hall had “shown love and bonding with his children.”
On cross-examination by DHS, Crow stated that she participated in preparing the CASA report, and that she and her co-volunteer recommended terminating the parental rights of both appellants based on the hair-follicle test.
Upon cross-examination by the ad litem, Crow said that she was not able to observe any visits by Hall before he went to jail.
An order was entered on June 9, 2016, finding that it was in the children’s best interest to have appellants’ parental rights terminated and that they would be at risk of harm if returned to appellants. Appellants filed timely notices of appeal. This appeal followed.
We review cases involving the termination of parental rights de novo. While we review the factual basis for terminating parental rights under a clearly erroneous standard, no deference is given to the circuit court’s decision with regard to errors of law. An order |17forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest and that a statutory ground for termination exists. Best interest includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the juvenile to the parent.
The trial court terminated Barnes’s parental rights based on all three grounds alleged in DHS’s petition. However, only one ground must be proved to support termination. Barnes argues that the evidence was insufficient to support the failure-to-remedy or the subsequent-issues grounds. More specifically, she contends that DHS failed to offer meaningful effort or appropriate services in the form of inpatient drug treatment and budgeting or cash assistance. As to the aggravated-circumstances ground, she argues that “there can not be a little likelihood finding when all appropriate services were not provided to her.” In finding that Barnes had subjected the children to aggravated circumstances, the court stated
DHS can provide services for parenting, counseling, addiction treatment, and other relevant issues. It is up to the parent to participate fully and meaningfully, and to demonstrate a change in circumstances. The Court cannot find that this mother has done so. She still completely lacks forethought or insight. At the April 21, 2016 hearing, mother could not articulate any summer childcare plans for the children, were they to be returned to her, other than taking the older children to the YMCA and the younger ones to a daycare on Asher as she did prior to their removal. Mother later admitted that she had not actually looked into childcare arrangements and was unaware that Little Rock had no YMCA at this time. There has been testimony throughout this case, including the March 7, 2016 termination hearing, that mother struggles to maintain control of the children during visitation, and she needs redirection with | ^parenting the younger children. Mother has heard time and again that she needed to get stable and work on reunification with her children, yet she chose to resume a relationship with Mr. Hall as soon as he was released from incarceration. It is well-settled that even full completion of a case plan may not defeat a petition to terminate parental rights. Davis v. Ark. Dep’t of Human Servs., 2009 Ark. App. 815, 370 S.W.3d 283 (2009); Wright v. Ark. Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). What matters is whether completion of the case plan achieved the intended result of making the parent capable of caring for the child. Id. The Court finds in this matter, by clear and convincing evidence, that Erica Barnes is not capable of safely caring for these children. There has been too much inconsistency and too many games for this Court to believe any of these children could safely be returned to the mother at any time that would be reasonable from the perspective of any of the children. Mother has jumped through the hoops as far as completion of services, but the Court does not find that the mother has benefitted from the services received. The Court is not convinced that additional counseling, budgeting courses, intensive family services, or any other available service would make an appreciable difference towards reunification. Mother seems fully cognizant of the choices she makes, and she can provide rationalizations for all of them. She minimizes problems instead of acknowledging them and looking for solutions. Therefore, the Court finds that there is little likelihood that further services would result in successful reunification with the mother, which is aggravated circumstances.
Although Barnes had successfully completed parenting classes, she still had to be redirected during visitation with her children. The completion of those services did not put her in a capable position to care for her children. Thus, the court’s finding that there was little likelihood that continued services to the family would result in successful reunification is not clearly erroneous. Because we find no clear error with this ground, it is unnecessary to address the other grounds.
Barnes also contends that termination of her parental rights was not in the children’s best interest because, “some or all of these children are not adoptable.” This argument is without merit. The court is not required to find by clear and convincing evidence that the |ia children are adoptable but merely must consider the likelihood of adoption if parental rights are terminated. Generally, a caseworker’s testimony that a child is adoptable is sufficient to support an adoptability finding. The adoption specialist testified that the children were adoptable despite the medical, behavioral, and developmental issues suffered by the older children. She stated that there were ten adoption resources if all the children were adopted together and that the number of resources increased if the three younger ones were adopted as a group and the two older ones were adopted individually. This evidence was sufficient to support the court’s finding that the children were adoptable.
Hall argues first that the trial court erred in terminating his parental rights because DHS failed to properly plead the potential-harm prong in its petition. According to Hall, he was not put on notice “with regard to the potential-harm prong or the facts to support that required element.” In support of his contention, Hall cites to cases in which a parent was not put on notice of all of the grounds on which termination would be sought. This case is distinguishable from those cases because potential harm is not a ground; it is an element inherent in the best-interest analysis, which must be satisfied in order to support the termination of a parent’s parental rights. He further contends that termination was not in the children’s best interest because DHS “basically ignored” him and, had he had the benefit of services, he would be capable of caring for his children. As discussed below to support the | ^ground for termination, Hall’s prison sentence was sufficient to support the court’s best-interest finding of potential harm as it relates to Hall. A parent’s past behavior is often a good indicator of future behavior.
The court relied on three grounds to terminate Hall’s parental rights: the subsequent-factors ground, the aggravated-circumstances ground, and the sentenced-in-a-criminal-proceeding ground. Only one ground is necessary to support the termination of Hall’s parental rights. In finding that Hall was sentenced in a criminal proceeding for a period of time that would constitute a substantial portion of his children’s lives, the court wrote
It was also subsequent to the filing of the original petition that Mr. Hall received a thirty-six month sentence for theft by receiving (a class C felony) in case number 60CR-11-218 and a thirty-six month sentence for possession of a controlled substance (a class C felony) in case number 60CR-11-2880. Both were sentences to the Arkansas Department of Correction. Certified copies of these two sentencing orders were admitted into evidence as Petitioner’s Exhibits 5 and 6. He testified that he served around nine (9) months of the sentences, and he was currently released on parole and would be under rules of parole until February 2018. Based on the ages of the children and the sentence received, the Court finds by clear and convincing evidence that Tyshon Hall has been sentenced in a criminal proceeding for a period of time that would constitute a substantial portion of [T.H.l’s, T.H.2’s and E.H.’s] lives. The Court likewise finds by clear and convincing evidence that it is in the children’s best interests to terminate Father’s parental rights to them. Mr. Hall is released from prison, but he is still be subject to parole and its requirements, which could result in rein-carceration were he to fail to comply. His ADC time computation, admitted as Attorney Ad Litem exhibit 1, indicated that he also has prior convictions for aggravated assault (a class D felony), and possession of a firearm by certain persons (a class D felony). Mr. Hall also indicates in his letter to the clerk, also part of Attorney Ad Litem Exhibit 1, that his thirty-six month sentence mentioned supra was a result of his third violation of probation. The Court also notes that testing positive for illegal substances is a violation of his parole. Mr. Hall had a hair drug screen while living with Ms. Barnes after his release, collected in February 2016, that was positive for cocaine. Taking all of this into consideration, the odds of further compliance with his parole conditions are not in Mr. Hall’s favor, and this Court does not wish to | ¾1 gamble the children’s stability and permanency. See Moses v. Ark. Dep't of Human Servs., 2014 Ark. App. 466, 441 S.W.3d 54; Hill v. Ark. Dep’t of Human Servs., 2012 Ark. App. 108, 389 S.W.3d 72.
At the time of the termination hearing, Hall had just been released from prison for his third violation of probation. He received a sentence of three years’ imprisonment, although he served only nine months before being released on parole. However, he was subject to parole until February 2018. Since his release, he had already tested positive for cocaine in a hair-follicle test. The children were one, two, and three years old at the time of the termination hearing, and given their young ages, a three-year prison sentence is a substantial portion of their lives. On these facts, we cannot say that this finding was in error.
Affirmed.
Glover and Whiteaker, JJ., agree.
. The court also terminated the parental rights of E.B.'s and Z.R.’s putative fathers; however, they are not parties in this appeal.
. Z.R. was not included because she was in an acute placement, and there is no indication that E.B. was included.
. Ark, Code Ann. § 9-27-341 (b)(3)(B)(i)raJ (Repl. 2015).
. Ark. Code Ann. § 9-27-341(b)(3)(B)(viiya).
. Ark. Code Ann. § 9-27-MmOm(ix)(a)(3)(A).
. Ark. Code Ann. § 9-27-341 (b)(3)(B)(iv).
. Ark. Code Ann. § 9-27-34 l(b)(3)(B)(viii)(a.j.
. The utilities are in her mother's and Hall’s names.
. Griffin v. Ark. Dep't of Health & Human Servs., 95 Ark. App. 322, 236 S.W.3d 570 (2006).
. Id.
. Ark. Code Ann. § 9-27-341(b)(3)(A).
. Donley v. Ark. Dep’t of Human Servs., 2014 Ark. App. 335, 2014 WL 2443031.
. Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 285 S.W.3d 277 (2008).
. Sarut v. Ark. Dep’t of Human Servs., 2015 Ark. App. 76, 455 S.W.3d 341.
. Miller v. Ark. Dep’t of Humans Servs., 2016 Ark. App. 239, 492 S.W.3d 113.
. Abram v. Ark. Dep’t of Human Servs., 2016 Ark. App. 437, 502 S.W.3d 563.
. Jackson v. Ark. Dep’t of Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276; K.C. v. Ark. Dep’t of Human Servs., 2010 Ark. App. 353, 374 S.W.3d 884.
. Hernandez v. Ark. Dep’t of Human Servs., 2016 Ark. App. 250, 492 S.W.3d 119. | [
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KENNETH S. HIXSON, Judge
|,This appeal arises out of litigation that began as a foreclosure proceeding. Appellant Kenneth W. Tilley, individually and as trustee of the Kenneth Tilley Family Trust (Tilley), was a borrower on a loan from appellee Malvern National Bank (MNB). Appellee Stephen Moore (Moore) was vice president of commercial lending at MNB during most of the time relevant to the case. MNB filed a foreclosure action against Tilley, and he responded by denying the allegations and filing a counterclaim against MNB and a third-party complaint against Moore. Tilley demanded a jury trial, but the circuit court ultimately struck his demand. After a bench trial, the circuit court ruled in favor of MNB and Moore on all claims. Tilley appeals and asks our court to hold that (1) the circuit court erred by striking his demand for jury trial and (2) the circuit court abused its discretion by refusing to admit evidence of his future lost profits. We affirm.
1 gI. Background
In July 2010, Tilley and MNB entered into a loan agreement. The loan agreement included a jury-waiver clause in the event of a dispute between the parties. Tilley executed a promissory note in favor of MNB with a principal balance of $221,000. The note was secured through a mortgage on certain real property in Garland County, Arkansas. Tilley defaulted on the loan. MNB accelerated the note and filed its complaint in foreclosure against Tilley in November 2011. Tilley answered the complaint, asserted affirmative defenses, reserved the right to file one or more counterclaims, and demanded a jury trial.
In October 2012, Tilley filed a counterclaim against MNB and a third-party complaint against Moore. The essence of Tilley’s counterclaim and third-party complaint is that Moore, acting on behalf of MNB, promised to loan him $350,000 so that he could fund two development projects. The $350,000 loan was never made to Tilley. For reasons unrelated to this litigation, Moore resigned from his position at MNB. Following Moore’s resignation, Tilley entered into further negotiations with other representatives from MNB, resulting in Tilley and MNB entering into the $221,000 loan agreement instead of the $350,000 loan Tilley had originally requested and MNB had allegedly agreed on. Tilley alleged that MNB’s failure to fulfill the promise to loan him $350,000 caused him to default on the $221,000 loan. Tilley sued for breach of contract, promissory estoppel, violations of the Arkansas Deceptive Trade Practices Act, tortious interference, negligence, and fraud and demanded a jury trial.
The circuit court set the case for a jury trial. Shortly thereafter, MNB and Moore filed a motion to strike Tilley’s jury-trial demand. Generally, they argued that Tilley was |snot entitled to a jury trial because (1) a foreclosure claim and all claims essential to the foreclosure proceeding should be tried to the court rather than a jury and (2) Tilley had waived his right to a jury trial in the loan agreement with MNB. Tilley responded by arguing that he was entitled to a jury trial because his claims were claims at law and because his waiver of his right to a jury trial in the loan agreement was not knowing and voluntary. The circuit court struck Tilley’s jury demand, and the parties proceeded to a bench trial.
Following the bench trial, the circuit court ruled in favor of MNB on its foreclosure claim and against Tilley on his counterclaim and third-party complaint. The circuit court entered its findings of fact and conclusions of law and then entered a judgment and decree of foreclosure. Following the entry of these orders, Tilley filed a motion for new trial that was deemed denied. Tilley timely appealed arguing that (1) the circuit court erred by striking his jury-trial demand and (2) the circuit court abused its discretion by refusing to allow him to introduce evidence of his future lost profits.
II. Entitlement to a Jury Trial
Whether a party is entitled to a jury trial is a legal issue centered on constitutional interpretation, reviewable de novo on appeal. Ludwig v. Bella Casa, LLC, 2010 Ark. 435, 372 S.W.3d 792. This court is not bound by the decision of the circuit court. First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005).
In support of his contention that he was entitled to have his counterclaim and third- party complaint decided by a jury, Tilley asserts that (1) he had a constitutional right to a jury trial on his claims; (2) the jury-waiver clause in his loan agreement with MNB was unenforceable as a matter of law; (3) MNB and Moore waived their right to enforce the jury-waiver provision; (4) his waiver was unenforceable because it was not knowingly and voluntarily made; and (5) the jury-waiver clause does not apply to his third-party claims against Moore.
A. The Constitutional Right to a Jury Trial
Tilley contends that he had a constitutional right to a jury trial on his claims, and this issue involves a question of whether the circuit court erred in trying his claims as a bench trial. It implicates amendment 80 to the Arkansas Constitution. Amendment 80 only merged the chancery and circuit courts and did not alter or expand a party’s right to a jury trial. First Nat’l Bank of DeWitt, 360 Ark. 528, 203 S.W.3d 88. With this merger, circuit courts simply added to their existing jurisdiction as a court of law the equitable jurisdiction which the chancery courts held prior to adoption of the amendment. Id. at 533, 203 S.W.3d at 91-92.
It is a long-standing rule that the right to a jury trial does not extend to foreclosure proceedings. Riggin v. Dierdorff, 302 Ark. 517, 519, 790 S.W.2d 897, 898 (1990). Accordingly, it is clear that the circuit court was required to decide MNB’s foreclosure claim without a jury. MNB and Moore argue that Tilley’s claims must also be tried by a court of | (¡equity pursuant to the clean-up doctrine. We disagree. “Since Amendment 80 was enacted, the clean-up doctrine has disappeared because any circuit court now has subject-matter jurisdiction to hear all justiciable matters not assigned elsewhere, and it has the power to grant all remedies to the parties before it.” Stokes v. Stokes, 2016 Ark. 182, 491 S.W.3d 113.
With this in mind, we turn our attention to the standard by which Tilley’s counterclaim and third-party complaint must be evaluated. In determining whether a particular claim may properly be submitted to a jury, courts must review the historical nature of the claims to determine whether they must be submitted to a judge as equitable matters or whether they may be submitted to a jury as legal matters. Nat’l Bank of Ark. v. River Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754. Courts should also look to the remedies sought in the complaint when determining whether a trial by jury is warranted. Stokes, supra.
Tilley’s counterclaim and third-party complaint included causes of action for breach of contract, promissory estoppel, violations of the ADTPA, tortious interference, negligence, and fraud; he sought money damages on each of his claims. In reviewing the historical nature of these claims and the remedy sought, we conclude that Tilley’s claims are legal in nature. We hold that the circuit court erred in finding that Tilley did not have a constitutional right to a jury trial on his historically legal claims. With this determination reached, we direct our attention to whether the circuit court erred in striking Til-ley’s jury demand pursuant to the jury-waiver clause in the loan agreement.
lfiB. The Jury-Waiver Clause
MNB and Moore successfully argued to the circuit court that the jury-waiver clause in the loan agreement precluded a trial by jury. For reference, the jury-waiver clause provides:
Each party to this Agreement hereby expressly waives any right to trial by jury of any claim, demand, action or cause of action (1) arising under this Agreement or any other instrument, document or agreement executed or delivered in connection herewith, or (2) in any way connected with or incidental to the dealings of the parties hereto or any of them with respect to this Agreement or any other instrument, document or agreement executed or delivered in connection herewith, or the transactions related hereto or thereto, in each case ... whether sounding in contract or tort or otherwise, and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury.
First, we dispose of two of Til-ley’s arguments in support of reversal that are not preserved for our review. Tilley argues that MNB and Moore waived their right to enforce the jury-waiver provision in the loan agreement by filing their motion too late in the proceedings. Tilley makes this argument for the first time on appeal, and it is well settled that appellate courts will not consider arguments made for the first time on appeal. Brown v. Lee, 2012 Ark. 417, 424 S.W.3d 817. We summarily dispose of this point on appeal.
Additionally, Tilley claims that, if held enforceable, the jury-waiver clause bars his right to a jury trial only against MNB—not Moore. Tilley failed to develop this argument before the circuit court, and where an argument is not fully developed at the trial level or on appeal, it is not preserved for review. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). Accordingly, we affirm on this point as well.
With these conclusions reached, we turn to whether predispute contractual waivers of the right to a jury trial are unenforceable under Arkansas law. Tilley argues our ^constitution provides that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law ...” See Ark. Const. art. 2, § 7. However, that same section concludes with the proviso: “[B]ut a jury trial may be waived by the parties in all cases in the manner prescribed by laiu.” Id. (emphasis added). Hence, while our constitution clearly emphasizes the fundamental right to a jury, it also contemplates that the right may be waived.
In Arkansas, “[p]arties to a contract are free to contract upon any terms not contrary to public policy or the terms of our statutes.” Pest Mgmt., Inc. v. Langer, 369 Ark. 52, 58, 250 S.W.3d 550, 556 (2007). Arkansas allows parties to enter into contracts that control the manner in which their disputes are resolved. Parties may choose the forum in which their case will be heard and the law that will govern their case, and they may even choose to forego the civil justice system and submit to arbitration. See, e.g., Servewell Plumbing, Inc. v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005); Evans v. Harry Robinson Pontiac-Buick, Inc., 336 Ark. 155, 983 S.W.2d 946 (1999); Pest Mgmt., Inc., supra. Because parties are free to enter into contracts that are not contrary to our state’s public policy, and our constitution itself provides that parties may waive their right to a jury trial, we hold that predispute contractual waivers of the right to a jury trial—such as the one executed by Tilley—may be enforceable. They are particularly enforceable when the waiver is entered into knowingly and voluntarily.
To that end, Tilley argues that the circuit court erred in striking his jury-trial demand because he did not knowingly and voluntarily waive his right to a jury trial. When considering whether this jury-waiver clause is valid, we refer to the general rules of construction and interpretation of contracts. We acknowledge this as our standard and note 18that this is the manner by which other somewhat novel contractual issues—for instance, arbitration—have been evaluated by our courts. See Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005).
As a preliminary matter, it is a matter of basic contract law that contracts must be entered into knowingly and voluntarily. The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. City of Dardanelle v. City of Russellville, 372 Ark. 486, 277 S.W.3d 562 (2008).
Our law provides that if a person signs a document, he or she is bound to know the contents of that document. Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (2002). The fact that a person signed a contract is evidence of his or her knowledge of the contract. Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 552, 810 S.W.2d 39, 41 (1991).
Here, MNB and Moore attached a copy of the signed loan agreement, which contained the jury-waiver clause, to then’ motion to strike. Pursuant to Arkansas law, Tilley was bound to know the contents of the agreement. Similarly, our law presumes that this contract was entered into voluntarily; generally, the party attacking voluntariness must allege and prove otherwise. Bank of the Ozarks, Inc. v. Walker, 2014 Ark. 223, 434 S.W.3d 357. Tilley attempts in his affidavit challenging the motion to strike to show that he signed this contract under duress. However, he offered only the conclusory statement that he was under duress, and this is insufficient evidence of any alleged involuntariness. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995). Accordingly, we conclude that the jury-waiver clause in the loan agreement was enforceable, and we hold that the circuit court lflproperly granted the motion to strike Tilley’s jury-trial demand on these grounds. Because of our holding on this issue, MNB and Moore were entitled to have the entire case heard as a bench trial, regardless of whether Tilley’s claims were legal or equitable in nature.
III. Evidence of Lost Future Profits
For his final point on appeal, Tilley argues that the circuit court abused its discretion by applying the new-business rule and refusing to allow him to introduce evidence of future lost profits. However, Tilley concedes in his reply brief that his argument is moot unless we reverse the circuit court’s order striking his jury demand. Because we affirm the circuit court’s decision in this respect, we do not address his final point on appeal.
Affirmed.
Harrison and Brown, JJ., agree.
. MNB and Moore attached a copy of the loan agreement that included the jury-waiver clause to their motion to strike.
. As a threshold issue, MNB and Moore contend that Tilley failed to preserve the issues relating to his right to a jury trial. They argue that Tilley was required to appeal from the order striking his jury demand pursuant to Arkansas Rule of Appellate Procedure—Civil 2(a)(4). We disagree. Our supreme court in Liberty Life Ins. Co. v. McQueen addressed this precise issue and held that a party may not bring an interlocutory appeal from the denial of a juiy demand. 364 Ark. 367, 219 S.W.3d 172 (2005). | [
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KAREN R. BAKER, Associate Justice
hOn April 20, 2016, a Mississippi County-Circuit Court jury convicted appellant, Daniel Curtis Johnson, of first-degree murder and found that he had used a firearm in the commission of that murder. Johnson was sentenced to life imprisonment and fifteen years’ imprisonment for the firearm enhancement to run consecutively. Johnson’s conviction and sentences stem from the June 22, 2015 death of Vincent Stone at or near a basketball court in Williams Park in Blytheville, Arkansas. At trial, Blytheville Police Officer, Carl Lee Treadway, testified that on the day of the incident, he responded to a 911 call that shots had been fired at Williams Park. Officer Treadway testified that he had driven through the park minutes before receiving the call and estimated that approximately 80 people were present, | ^enjoying the park and playing basketball. The State called Jimmy Aldridge, Jr., and Chardrick Mitchell as witnesses. Both men testified that they were playing basketball at the park with Stone on the day of the incident and a large group of people were at the park. Aldridge and Mitchell also testified that after they finished their game and were leaving the basketball court with Stone, two men came up from behind Stone and shot Stone multiple times. Aldridge and Mitchell both identified Johnson at trial as one of the assailants. Johnson was convicted and sentenced as described above.
After the trial, pursuant to Rule 33.3(b) (2016), on May 11, 2016, Johnson filed a motion for new trial following the discovery of two Facebook posts created by Al-dridge and Mitchell. On May 13, 2016, the circuit court conducted a hearing on the motion for new trial and on that same day denied the motion. From that order, Johnson appeals. Johnson does not challenge the sufficiency of the evidence and presents one issue: whether the circuit court erred in denying his motion for new trial.
I. Motion for New Trial
For his sole point on appeal, Johnson asserts that the circuit court erred when it denied his motion for new trial. “The decision whether to grant a new trial is left to the sound discretion of the trial court, and it is not reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party.” McIntosh v. State, 340 Ark. 34, 41, 8 S.W.3d 506, 510 (2000) (internal citations omitted). To prevail on a motion for new trial | Sbased on newly discovered evidence, the movant “must show that the new evidence would have impacted the outcome of his case, and that he used due diligence in trying to discover the evidence.” Wilcox v. State, 342 Ark. 388, 394, 39 S.W.3d 434, 438 (2000). “A trial court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous.” State v. Cherry, 341 Ark. 924, 928, 20 S.W.3d 354, 357 (2000).
We have recognized that newly discovered evidence is one of the least favored grounds to justify granting a new trial. Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972). A new trial will not be granted because of perjury on an immaterial issue, or on a collateral issue, nor generally where the false testimony may be eliminated without depriving the verdict of sufficient evidentiary support. Bennett v. State, 307 Ark. 400, 404, 821 S.W.2d 13, 15 (1991). Further, newly discovered evidence that relates only to the impeachment of a witness does not afford grounds for a new trial. Hayes v. State, 169 Ark. 883, 886, 277 S.W. 36, 37 (1925); Whittaker v. State, 173 Ark. 1172, 1176, 294 S.W. 397, 399 (1927) (“It is the general rule of practice in this court not to reverse the ruling of the trial court in refusing a new trial on the ground of newly discovered evidence where such evidence tends merely to impeach the credibility of witnesses.”); Taylor v. State, 299 Ark. 123, 126, 771 S.W.2d 742, 744 (1989) (“Evidence which only attacks the credibility of other testimony is not grounds for a new trial. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245, cert. denied, 469 U.S. 847, 105 S.Ct. 162, 83 L.Ed.2d 98 (1984)”). Finally, “[t]he mere fact that the purported evidence would be contradictory to that offered at the trial by the State is insufficient. It must also be shown that, because of the proffered evidence, a different | ¿result upon a new trial is probable.” Gross v. State, 242 Ark. 142, 147, 412 S.W.2d 279, 283 (1967) (internal citations omitted).
With these standards in mind, we turn to Johnson’s argument on appeal. At trial, Aldridge testified that he and Stone had been playing basketball, just lost their game, and were walking off the court when Johnson and another man approached them. Aldridge testified that in broad daylight, in a “packed” park, without saying anything, the two men walked up and both shot Stone:
Aldridge: We were just playing ball.... Me and Vincent [Stone] we were talking, talking to one another .., Daniel [Johnson] popped up.
He had a blue hoodie on.... [He] was shooting, pointing [a] gun ... at [Vincent Stone]. Came on the court, shot him.... Broad daylight.
Aldridge went on to testify that Johnson wore dreads in his hair and had a black pistol and identified Johnson as the shooter.
The Prosecutor: And you said [Johnson] ... had [a] hoodie on. How were you able to see who ... [he] was?
Aldridge: Because, actually, you know, the hood, D’Nasty’s hood—
The Prosecutor: You are talking about Daniel Johnson.
Aldridge: Yeah, Daniel Johnson. You know, his braids was in the way. That’s how I actually—his hood fell off too, you know what I’m saying? The hood fell off.
Also at trial, Aldridge testified that immediately after the shooting he spoke with Officer Middlebrook of the Blytheville Police Department at the hospital and identified | kJohnson as the shooter. Aldridge further testified that on July 27, 2015, he provided a written statement to law enforcement wherein he also identified Johnson as the shooter. Finally, at trial, Al-dridge was cross-examined regarding his eyewitness account of the shooting and his identification of Johnson.
Next, two weeks after the trial at the hearing on Johnson’s motion for new trial, Johnson asserted that he was entitled to a new trial and to deny his motion “would be a manifest injustice to [Johnson]. We’ve got some ... Facebook postings ... that impeach one witness fairly well and at least show a bias in another witness, that I think might have helped in this trial from the beginning.” At the hearing, Johnson’s sister, Latrice Johnson, testified that approximately two weeks after Johnson’s trial, an anonymous person sent Latrice a Facebook post made by Aldridge regarding Stone’s murder, which she shared with defense counsel. Latrice testified that the Facebook post was made on June 28, 2015, six days after the shooting, and she confirmed the Facebook post by checking Al-dridge’s Facebook page. The post stated in its entirety:
Real niggas cry! Got me crying like a baby! Lost my nigga right in front of me! Couldn’t do shit!! It was to [sic] many people out there for nobody to see anything!! My nigga can’t rest in peace until justice is served!! 6/22/15 real nigga holiday!!!
At the hearing, Aldridge testified that his Facebook post was consistent with his trial testimony regarding witnessing the shooting and in his identification of Johnson as the shooter. On cross-examination, the following colloquy occurred:
The Prosecutor: You remember— you’re the one that made that—you identified Mr. Johnson as the shooter of Vincent Stone.
| rAldridge: Yes, sir.
The Prosecutor: Okay. Now, and if you recall correctly, you were extensively cross-examined about that that day; right?
Aldridge: Yes, sir.
The Prosecutor: Okay. Now, you also testified about there being a bunch of folks out there; correct?
Aldridge: Yes, sir.
The Prosecutor: Okay. Now, do you recall there being any questions about how many people were out there and how only two came forward? Do you recall testimony about that?
Aldridge: Yes, sir.
[The Prosecutor hands Aldridge the Fa-cebook post]
The Prosecutor: Can you identify what that is I’ve handed you, Mr. Aldridge?
Aldridge: Basically, saying like I said, I seen my homeboy be killed in front of me right there. But I’m the only one going to the police about it. I’m calling Mr. Walker, has anyone else come up. No. No. Nobody came up. So, June 28th I made a Facebook status like all these people out here, and I’m the only one that’s, you know, pushed the issue to say something. He’s on Snap-chat threaten[ing] other people, so I guess they were scared to say something.
The Prosecutor: So by that—what did you mean by that post? What exactly did you mean?
| tAldridge: What I mean by this, I saw Vincent killed in front of me. It was so many people out there. I am one of the only ones to stand up.
The Prosecutor: So not—by that post you’re not meaning to say, “Nobody saw anything. I wish I knew who did it.”
Aldridge: I was being sarcastic.
The Prosecutor: You’re saying “How were all these people out here and nobody saw anything. How am I the only one coming forward?”
Aldridge: Right.
Aldridge: ... I did ... say, I lost my homeboy right in front of me. Right in front of me. Like he was right there. I seen everything.
The Prosecutor: And do you recall testifying to that fact at trial?
Aldridge: Yes, sir.
The Prosecutor: And is there anything about that post that takes away from the truth of your statement that day?
Aldridge: No, sir.
The Prosecutor: ... Is there anything in that post that wasn’t already testified to at the trial?
Aldridge: No, sir.
At the close of the hearing, the circuit court denied Johnson’s motion and explained,
With regard to Defendant’s Exhibit # 2, which is the Facebook post of Jimmy Aldridge, again the Court finds that this Facebook post of Mr. Aldridge Isdoes not in any fashion establish or suggest perjury on any material issue at trial.
The Court finds that in this Facebook post Mr. Aldridge did not state that he did not see who shot Vincent Stone. That is not what it says. Instead, it states, “It was too many people out there for nobody to see anything.” That statement, the Court does not consider it to be a fair reading of that statement to suggest that he was stating that he did not see anything, but rather, a fair reading of that Facebook post can be read consistently with Mr. Aldridge’s testimony at the trial that he did see it, there were other people present, and despite there being other people present at the time two people alone—Mr. Al-dridge and Mr. Mitchell—were the only two people who came and testified to this jury as to what they saw.
That issue, the fact that other people were present and that Mr. Aldridge and Mr. Mitchell were the two that testified at trial, that was argued to the jury by the defense as a reason for disbelieving those two eyewitnesses. The jury has heard argument or did hear argument along those lines.
I find that presentation of Defendant’s Exhibit #2 does not warrant a new trial. Further, Mr. Aldridge was cross-examined aggressively on credibility issues. I am not persuaded that the presentation to the jury of this Facebook post would have altered the outcome of the trial, and I am not persuaded that this would have even constituted persuasive impeachment evidence; but at best, it is additional cumulative impeachment evidence that is substantially insufficient basis for granting a new trial.
Here, Johnson contends that the circuit court erred in denying his motion for new trial asserting that the Facebook post demonstrates that Aldridge did not witness the shooting and was not aware who the shooter was. In other words, Al-dridge’s post was newly discovered evidence that stated Aldridge did not actually witness what happened at the park on the night of the incident. Johnson further asserts that if the jury had Aldridge’s Face-book post, the jury may have come to an opposite conclusion as to the credibility of Aldridge and acquitted Johnson. In sum, Johnson contends that this evidence would have materially changed the outcome of Johnson’s trial in his favor had the evidence been available to the [ ¡Jury because it demonstrates that Aldridge did not witness the shooting.
Relying on Bussey v. State, 69 Ark. 545, 64 S.W. 268 (1901), and Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991), Johnson urges us to reverse the circuit court. In Bussey, we reversed the denial of a motion for new trial after the victim provided a sworn recantation the day after the trial. Here, Aldridge’s Facebook post is not a recantation of his testimony about the shooting or of his identification of Johnson as the shooter. In Bennett, we held that a new trial should have been granted because of material perjured testimony from an undercover law enforcement officer where the officer provided false testimony regarding her romantic relationship with Bennett. Accordingly, in Bennett, the newly discovered evidence was based on the undercover narcotics officer’s relationship with Bennett, which is not an issue in Johnson’s case.
Here, based on our standard of review and the record before us, we agree with the circuit court that the post would not have impacted the outcome of his case. Prior to trial, Aldridge stated in conversations with law enforcement and in a written statement to law enforcement, that he had witnessed the shooting and had identified Johnson as one of the shooters. Further, at trial, Aldridge consistently testified that he had witnessed the shooting, and identified Johnson as the assailant. At the motion-for-new-trial hearing, Aldridge again testified to the same and explained that his post was a sarcastic comment stating, “How were all these people out here and nobody saw anything. How am I the only one coming forward?” The record demonstrates that the testimony from multiple witnesses was that there was a large crowd there that evening, and Aldridge and Mitchell were the only witnesses to 1 ^come forward. Reading the statement as a whole, Aldridge’s comment was a reaction to the specific facts of this case and not a recantation of testimony. Further, Aldridge was cross-examined about the post and clearly stated that he had witnessed the shooting; he identified Johnson and did not waver from his testimony. The evidence could have possibly been used to attempt to impeach Aldridge, which, as discussed above, does not satisfy our standard for newly discovered evidence.
Accordingly, based on the record before us, we cannot say that Johnson has met his burden and demonstrated that the circuit court erred. Therefore, based on our discussion above and our standard of review, we do not find error and affirm the circuit court.
In compliance with Arkansas Supreme Court Rule 4—3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Johnson, and no prejudicial error has been found.
Affirmed.
. Daniel Johnson is referred to in the record by several names: Daniel Johnson, D’Nasty Johnson, D’ynasty Johnson, Dynasty Johnson and Dy’nasty Johnson.
. Based on the record before us, because Johnson has abandoned his argument regarding the Facebook post by Mitchell, we address only the motion for new trial with regard to Aldridge’s Facebook post. | [
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N. MARK KLAPPENBACH, Judge
| Appellant Laurie D. Farrow filed a petition in probate court to have certain real property removed from the estate of Richard Bloch, deceased, her former partner. Farrow alleged that these two properties passed to her as a joint tenant with rights of survivorship upon Bloch’s death. The trial court granted Farrow’s request as to one piece of property but converted her ownership interest in the other property to a tenant in common with the estate. Farrow now appeals, and we affirm in part and reverse and remand in part.
Farrow and Bloch were romantic partners for thirty-five years, and while they had a child together, they never married. Their relationship ended in 2012, and litigation was initiated regarding the operation of a restaurant the parties owned, Autumn Breeze, and the division of assets. The litigation resulted in a settlement agreement. Bloch married Sheila Fuller on January 1, 2015, and on March 6, 2015, Bloch died intestate. Fuller was appointed |2as the personal representative of his estate. Farrow filed a petition to have the restaurant property and a house removed from the estate. She argued that the two properties were jointly purchased by her and Bloch with the deeds naming them “joint tenants with the right of survivor-ship.” Farrow claimed that the settlement agreement did not change the ownership of the properties, and thus, they passed to her at Bloch’s death.
The settlement agreement, signed by Farrow and Bloch on April 18, 2013, stated that they remained joint owners of the house and restaurant property. They agreed that Bloch would be entitled to sole possession of the house. Bloch was to pay Farrow $30,000 as consideration for Farrow’s shares in the restaurant corporation, Autumn Breeze, Inc., and Farrow agreed to vacate the house fifty-six days after receipt of this payment. Bloch was to make the mortgage payments on the house, and the parties were to continue to list the house for sale. Farrow was entitled to one-half of the net profits only if the house sold for an amount greater than $400,000. The agreement provided that Bloch would make yearly attempts to refinance the mortgage in his sole name beginning in May 2014. If Bloch was successful in refinancing the mortgage, Farrow would release her interest in the property via a quitclaim deed and would not be entitled to any profits of a sale.
Regarding the restaurant property, the settlement agreement provided that Bloch would have sole and exclusive use of the real estate in exchange for the payment of one dollar per year as rent. The agreement stated that on or before May 1,2023, Bloch would list the property for sale for the sum of not less than $335,000. Upon the sale of the property, all profits after costs of the sale were to be equally divided between the parties. UAmong other things, the settlement agreement also divided personal property and set out the parties’ obligations to pay the utilities and keep the properties insured.
At a final hearing, Farrow testified that the parties intentionally chose to not change the ownership of the properties from joint tenants with right of survivor-ship to a tenancy in common; instead, they left it the way it was to protect themselves until the properties sold. She said that both she and Bloch were represented by attorneys when they negotiated and entered into the settlement agreement. Since that time, the properties had not been sold, and the mortgage had not been refinanced. Farrow thought that the mortgage balance was around $320,000 at the time of the settlement agreement. Fuller argued that the estate should be entitled to Bloch’s rights under the settlement agreement because it stated that it “shall inure to the benefits of, and shall be binding upon, the heirs, legal representatives, successors and permitted assigns of the parties hereto.” Fuller also claimed that the estate was insolvent without the properties and that the equities of the case and the changed circumstances of the parties supported the imposition of a constructive trust in favor of the estate.
The trial court found that the settlement agreement stated the parties’ intentions with respect to dissolution but was only partially performed, and no documents modifying property ownership or responsibility had been executed. With respect to the house, the trial court found that “based upon the mortgage indebtedness and the estate’s inability to assume any responsibility for the mortgage, it is not possible to attempt to carry out the terms of the Settlement Agreement and the petitioner’s petition to remove the real property from the Restate should be granted.” With respect to the restaurant property, the court found that “the property is not mortgaged and the intent of the Settlement Agreement was clear that Farrow and Bloch [would] share an equal interest in the division of this parcel, therefore the petitioner’s petition to remove the real property is denied. To carry out the intent of this order, the ownership interest in the warranty deed to the ... property shall be converted to a tenancy in common.” Farrow appeals from this order. The estate has not filed a brief on appeal.
Probate cases are reviewed de novo on the record; however, the decision of the probate court will not be reversed unless clearly erroneous. Estate of Adair v. Adair, 2013 Ark. App. 290, 427 S.W.3d 733. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left, on the entire evidence, with the firm conviction that a mistake has been committed. Id. Our appellate courts defer to the trial court’s evaluation of witness credibility. Id.
Farrow argues that the trial court erred in converting a joint tenancy to a tenancy in common and in disposing of two identically titled properties in different ways when title to both properties passed to her as the surviving joint tenant. We agree. A joint tenancy with right of survivorship may be created in real property by conveyance to two or more persons, regardless of their relationship to each other. Ark. Code Ann. § 18-12-106(a) (Repl. 2015); Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993). Both deeds at issue here conveyed the properties to Bloch and Farrow “as joint tenants with right of survivorship.” When a joint tenant dies and is survived by other joint tenants, title to the real estate passes by | ¡¡operation of law to the survivor or survivors. See Gladson v. Gladson, 304 Ark. 156, 800 S.W.2d 709 (1990). Title to property held in joint tenancy takes precedence over the claim of a devisee, legatee, or heir. Id. An heir is not entitled to inherit interests terminated by the intestate’s death. See Ark. Code Ann. § 28-9-206(a) (Repl. 2012). In Tripp v. C.L. Miller, 82 Ark. App. 286, 105 S.W.3d 804 (2003), we held that it was error to reform a deed to reflect that the appellant and decedent owned property as tenants in common where the deed unambiguously created a joint tenancy with right of survivorship.
Farrow contends that the settlement agreement did not convert ownership of the properties to a tenancy in common. She argues that the plain language of the agreement did nothing to convert or terminate the joint tenancy with right of surviv-orship but instead anticipated the joint tenancy remaining in place until the properties were refinanced or sold. Farrow contends that the terms of the agreement and the fact that no new deeds had been executed, despite the fact that both parties were represented by attorneys, strongly indicates that no change in ownership was intended until later. We agree.
The supreme court has held that the issue of whether a settlement agreement changes a tenancy by the entirety into a tenancy in common turns on the construction of the language in the settlement agreement. Killgo v. James, 236 Ark. 537, 367 S.W.2d 228 (1963). Like a joint tenancy with right of survivorship, an estate by the entirety, which is peculiar to marriage, entails the right of survivorship. See Lowe v. Morrison, 289 Ark. 459, 711 S.W.2d 833 (1986). The property settlement agreement in Killgo provided that upon the parties’ divorce, the husband would have possession of the parties’ home “until such time as the | fiparties to this case may agree on a sales price.” 236 Ark. at 538, 367 S.W.2d at 229. The proceeds of a sale were first to be used to reimburse the husband for mortgage payments and then to be equally divided. When the husband died before the property was sold, his heirs brought a suit for partition on the theory that the settlement agreement converted the tenancy by the entirety into a tenancy in common. The supreme court, however, held that there was nothing in the agreement to support the conclusion that the parties had an affirmative intention to bring about an immediate termination of the tenancy by the entirety. The court further stated that
[f]or a couple to declare that they will sell a piece of property at some future date and divide the proceeds is not even a roundabout way of saying that they will also become tenants in common at once. The language that the Killgos selected, with the advice of counsel, is perfectly consistent with a desire on their part to leave the estate untouched until a sale should be completed. We do not feel justified in rewriting the contract by reading into it an additional clause that the parties chose to leave out.
Killgo, 236 Ark. at 539-40, 367 S.W.2d at 230.
In a later case, Rucks v. Taylor, 282 Ark. 200, 667 S.W.2d 365 (1984), the supreme court affirmed the conversion of a tenancy by the entirety into a tenancy in common upon holding that the language in the settlement agreement showed an intent to terminate all property rights between the parties with the signing of the agreement. This agreement included the statement that it was the “intention of the parties that all rights, interest, liabilities, and relations, with respect to property and financial matters be finally and conclusively fixed and determined by this agreement in order to settle and determine in all respects and for all purposes their respective present and future property rights, claims and |7demands in such a manner that any action with respect to the rights and obligations, past, present, or future, of either party, with respect to the other, be finally and conclusively settled and deter mined by this agreement.” Rucks, 282 Ark. at 202, 667 S.W.2d at 366.
The language in the agreement between Bloch and Farrow is much more similar to the language in Killgo than in Rucks. As in Killgo, Bloch and Farrow, who were represented by counsel, agreed to sell their property at some point in the future. Them agreement did not state an intent to dispose of all property rights upon execution of the agreement, and they did not execute deeds to reflect a change in their ownership. Therefore, we hold that it was clearly erroneous for the trial court to convert Farrow’s interest into a tenancy in common. While the trial court attempted to fulfill the intent of the agreement that Bloch and Farrow receive equal interests in the restaurant, performance of the settlement agreement with regard to the properties had become impossible. See Butcher v. Beatty, 2010 Ark. 130, 2010 WL 987048 (specific performance of an agreement for wife to pay sum of money in exchange for full title to property was impossible when husband died and title vested solely in wife). Title to both properties vested solely in Farrow upon Bloch’s death, and the estate has no interest in the properties.
The trial court’s decision to remove the house from the estate based on the mortgage indebtedness reached the right result for the wrong reason. The court’s refusal to remove the restaurant from the estate was clearly erroneous. Accordingly, we affirm in part and reverse and remand in part.
Affirmed in part; reversed and remanded in part.
IsGruber, C.J., and Glover, J., agree. | [
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James R. Cooper, Judge.
The appellant was convicted by a jury of second degree murder and sentenced to twenty years in the Arkansas Department of Correction and fined $15,000.00. On appeal, he argues that the evidence is insufficient to support his conviction. We affirm.
In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991). 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 resort to speculation or conjecture. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992). In determining the sufficiency of the evidence, we do not weigh the evidence on one side against the other but simply determine whether the evidence will support the verdict. Ward v. State, 35 Ark. App. 148, 816 S.W.2d 173 (1991). The fact that evidence is circumstantial does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred. Edwards v. State, 40 Ark. App. 114, 842 S.W.2d 459 (1992). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). This becomes a question for the fact-finder to determine. Id.
A person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103(a)(l) (Repl. 1993). A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. Further, a person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ark. Code Ann. § 5-2-202(2) (Repl. 1993).
Earsie Flowers testified that o,n October 10, 1991, he witnessed a vehicle swerve off the road and collide with a telephone pole. James Johnson, a paramedic with MEMS, responded to the accident. He testified that he found the victim in the driver’s seat of the car, and that the victim was not breathing, had no pulse, and was bleeding from his head. He further testified that, prior to moving the victim, he observed a gun between the victim’s legs. Officer David Burns testified that when he responded to the accident, he made contact with the appellant who was sitting on the passenger side of the front seat. He stated that he noticed blood on the appellant’s hands and the left side and back of the appellant’s head. Officer Burns testified that he observed the gun on the seat between the victim’s legs, somewhat under one leg. He stated that he retrieved the weapon and turned it over to Detective Tracy Roulston.
Detective Roulston testified that he investigated the incident, collected the evidence, and processed the crime scene. He stated there were blood splatters on the left outside of the vehicle which traveled from a front to back direction which indicated that the car was moving at the time they were made. He tes tified that he recovered one expended .380 cartridge casing from the front passenger floorboard and a bullet from the headliner of the vehicle above the driver’s seat. He testified he also recovered a .380 automatic pistol from Officer Burns. Ronald Andre-jack, a firearms examiner, testified that he determined that the .380 pistol was operable, that the discharged bullet was fired from the pistol, and that’ the discharged cartridge casing was fired in the pistol.
David De Jong, a forensic pathologist, testified that he performed an autopsy on the victim. He testified that the victim died from a gunshot wound to the right temple. He stated that the wound was a contact wound which indicated that the gun was held right against the head when fired. He testified that the bullet went through the brain and exited on the left side of the head. He further testified that the victim’s wound was consistent with a wound made by a .380 caliber bullet.
Lisa Sakevicius, a criminalist with the Arkansas State Crime Laboratory, testified that the appellant and the victim both tested positive for gunshot residue. She stated that a person who tested positive had either discharged a weapon, was at close range when the weapon discharged, or had handled a recently discharged firearm. She testified that it was possible from the levels analyzed from the results of the appellant’s kit that he could have fired a weapon. She testified that the appellant’s right and left hands tested positive, with the highest levels on the back of the right hand. She said that it was unlikely that the level of residue on his right hand was deposited from picking up a recently discharged weapon for only a minute.
Nawodney Thomas testified that on the night of the shooting, the victim and the appellant came to his house. He stated that the victim pulled his pistol out and waved it at the appellant and then put it back in the car. He stated that the appellant then grabbed the gun, said, “I told you don’t play,” and shot it over the victim’s head. He further stated that the appellant was upset that the victim had pointed the gun at him.
The appellant gave a taped statement to Detective Roulston which was played for the jury. The appellant stated that on the day of the shooting, the victim retrieved a .380 pistol from a pawn shop. He stated that the victim later test fired the gun. Afterwards, he and the victim went riding around in the victim’s vehicle. He testified that at one point they took Nawodney riding around with them. He testified that they went to get something to eat and that he fell asleep in the car. The appellant stated that he awoke when the vehicle crashed. He said that he shook the victim and because he would not wake up, he thought the victim had been knocked out. He stated that only the two of them were in the car. He further stated that he did not hear a gunshot and that he did not know how the victim had been shot. He said that in his opinion someone shot the victim from outside the vehicle and that the .380 was not the weapon used. He further stated that the only time he handled the pistol that day was when he picked it up with his right hand and handed it to the victim. He said that he had it in his hand for thirty seconds to a minute. He also stated that he did not fire the gun that day and that he had not had an altercation or conflict with the victim.
The appellant contends that the State failed to produce substantial evidence from which the jury could reach its conclusion without having to resort to speculation or conjecture. We disagree. The evidence reveals that the victim was killed by a gunshot wound to the head which was made when the gun was pressed to the right side of the victim’s head. The appellant was the only other person in the vehicle at the time the victim died, and the evidence indicates that the victim was shot with the .380 pistol found in the vehicle. Other testimony reveals that there had been an altercation or disagreement between the victim and the appellant and that the appellant had fired the gun in the car over the head of the victim. Although the appellant testified that he only handled the gun for a short moment and had not fired it that day, the trier of fact was not required to believe his testimony, since he was probably the person most interested in the outcome of the trial. King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993). Furthermore, the testimony of Ms. Sakevicius indicates that the amount of gunshot residue on the appellant’s hands was not consistent with picking up a gun and only holding it for a moment. The appellant also testified that he slept despite there being gunfire to his immediate left and that he thought someone from outside the vehicle had shot the victim. A defendant’s improbable explanations of incriminating circumstances are admis sible as proof of guilt. Edwards, supra. Although the evidence in the case at bar was circumstantial, we hold that reasonable minds could reach the conclusion, without resort to speculation or conjecture, that the appellant shot the victim, thereby causing his death. Accordingly, we affirm.
Affirmed.
Robbins and Mayfield, JJ., dissent. | [
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John B. Robbins, Chief Judge.
Appellant Alice Anderson has filed her motion for rule on our clerk, requesting us to require our clerk to accept and file an appeal record. By letter and opinion dated March 13, 1997, appellant was notified by the Workers’ Compensation Commission that her claim for benefits was denied and dismissed. She then filed her notice of appeal on October 2, 1997. While the tendered record does not reflect when appellant received her copy of the Commission’s decision, appellant explains the delay in filing her notice of appeal by stating that she was out of town when the Commission’s certified letter arrived and someone else signed for her.
Appellant tendered the record of the Commission’s proceeding on February 6, 1998, but fifing was rejected by the clerk because it was untimely. Rule 5 of the Arkansas Rules of Appellate Procedure — Civil requires the record to be filed with the clerk within ninety days from the fifing of the notice of appeal. Appellant’s motion for rule on clerk offers no explanation as to why she was thirty-seven days out of time in tendering the record.
Even if we consider appellant’s notice of appeal as timely, notwithstanding the fact that it was not filed until almost seven months after the Commission’s decision, appellant’s motion for rule on clerk must be denied because she tendered the record one hundred and twenty-seven days after fifing her notice of appeal. We placed the public on notice on May 6, 1987, when we handed down Evans v. Northwest Tire Service, 21 Ark. App. 75, 728 S.W.2d 523 (1987), that the appellate rules had been harmonized and no longer would any variance from the ninety-day rule be permitted. We have consistently followed Evans ever since. See Novak v. B.J. Hunt Transport, 48 Ark. App. 165, 892 S.W.2d 526 (1995).
The concurring judges express concern about the ninety-day requirement in Rule 5 in fight of the supreme court’s per curiam in D.B. Griffin Warehouse, Inc. v. Sanders, 332 Ark. 510, 965 S.W.2d 784 (1998). In that case, the ninety days for fifing the appeal record was to expire on December 31, 1997. The appellant tendered the record five days earlier on December 26; however, the record lacked a certificate by the circuit clerk, and no fifing fee was paid. By January 2, 1998, these two deficiencies were corrected, and the clerk stamped the record as being filed on December 26, 1997, the date it was originally tendered. In its per curiam denying the appellee’s motion to dismiss the appeal, the supreme court noted that it has long been the practice of the clerk’s office to allow appellants seven days to correct the record as to errors in form, provided that the record was actually tendered timely, i.e., within Rule 5’s ninety days or extensions properly granted thereto.
While the concurring judges question the seven-day grace period within which an appellant’s deficiencies in complying with all the form requirements of an appeal record may be corrected, the supreme court obviously approves of this practice; and apart from the appellee in D.B. Griffin Warehouse, Inc., it does not appear that anyone else has ever complained about such an act of grace. There are no cases cited, and certainly there is no evidence before us, that suggest that the clerk has not consistently permitted the seven-day grace period when the record was tendered timely, and denied grace when it was not. We are obliged to apply the interpretation that our supreme court has given to its own rules. We may not always agree, but we must always comply.
Motion denied.
Pittman, Jennings, Bird, Rogers, Stroud, Crabtree, and Meads, JJ., agree.
Arey, Neal, Griffen, and Roaf, JJ., concur. | [
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Terry Crabtree, Judge.
Appellant James Hunter was convicted by a jury of driving while intoxicated, possession of a controlled substance, and resisting arrest. He was thereafter sentenced to a total of three years in the Mississippi County Detention Center. Appellant now appeals, raising three points for reversal. We affirm.
The events that led to appellant’s convictions occurred on October 5, 1995, when Blytheville police officer Danny Lackey was ordered to investigate a complaint about a pickup truck blocking the entrance to an apartment complex. When Officer Lackey arrived, he found appellant sitting in the truck with the engine running. As the officer approached, appellant turned off the truck, exited, and began cursing the officer. Appellant then removed a small off-white item about the size of a pencil eraser from his pocket and put it in his mouth. Officer Lackey testified that the substance resembled a piece of crack cocaine. The officer told appellant to spit it out, but appellant refused and the two began to struggle. The officer testified that he could smell intoxicants on appellant’s breath during the altercation.
After subduing and handcuffing appellant, Officer Lackey picked him up and saw a bag of what he thought was marijuana lying on the ground underneath appellant. The unidentified off-white substance that appellant had ingested was not recovered. Appellant was arrested for driving while intoxicated, refusing a breath test, possession of a controlled substance (marijuana), and resisting arrest.
Before trial, appellant’s counsel moved to suppress Officer Lackey’s testimony about appellant ingesting the off-white substance because (1) there was no evidence that the substance was an illegal drug, (2) it would be prejudicial to admit the testimony, and (3) the officer did not have probable cause to search or arrest appellant when the officer attempted to retrieve the substance. The trial court denied that motion because appellant’s action of ingesting the substance was part of the res gestae, and without the testimony the jury would not understand why the officer and appellant had struggled.
During the trial, there was an objection regarding the chain-of-custody of the bag of green, leafy material found under appellant. Neither the bag nor any other physical evidence was presented, but the trial court admitted a property receipt and a crime lab report that indicated that the bag had contained marijuana when it was recovered and tested. After the jury returned guilty verdicts on the DWI, resisting arrest, and possession charges, the trial court ruled that the possession of marijuana charge should not have gone to the jury because of the chain-of-custody issue. The court, therefore, granted appellant’s motion for a directed verdict with respect to the possession charge. However, the court stated that the initial evidentiary ruling had been correct.
Appellant first argues that the trial court erred in allowing Officer Lackey to testify about seeing appellant ingest the unidentified off-white substance. The trial court allowed the testimony as res gestae so the jury would have a full understanding of the sequence of events and why the scuffle ensued. In reviewing a trial court’s denial of a motion to suppress, this court makes an independent determination based upon the totality of the circumstances and reverses only if the ruling is clearly against the preponderance of the evidence. Stewart v. State, 59 Ark. App. 77, 953 S.W.2d 599 (1997).
The trial court did not err in admitting the testimony as res gestae. Appellant was tried for possession of a bag of marijuana. That bag fell out of appellant’s clothing during the struggle with Officer Lackey. Without testimony as to why the officer struggled with appellant, the jury would have been left with significant unresolved questions. Moreover, appellant was tried for resisting arrest. All of the circumstances of a particular crime (here, resisting arrest) are part of the res gestae of the crime, and all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986).
Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. .They are proper to be submitted to a jury, provided they can be established by competent means, sanctioned by law, and afford any fair presumption or inference as to the question in dispute .... [Cjircumstances and declarations which were contemporaneous with the main fact under consideration or so nearly related to it as to illustrate its character and the state of mind, sentiments or dispositions of the actors are parts of the res gestae.
Id. at 241, 707 S.W.2d at 334. There was no error in admitting the testimony as res gestae.
Appellant also argues that the testimony should have been suppressed because Officer Lackey had no probable cause to seize appellant after seeing him ingest the off-white substance. Appellant contends that the officer had no reasonable suspicion of any crime, and that the officer began conducting an illegal search when he exerted force upon appellant.
In Brunson v. State, our supreme court stated:
The same standards govern reasonable cause or probable cause determinations, regardless of whether the question is the validity of an arrest or the validity of a search and seizure. The determination of probable cause is to be based on the factual and practical considerations of everyday life upon which reasonable and prudent persons act. In assessing the existence of probable cause, our review is liberal rather than strict. (Citations omitted.)
327 Ark. 567, 571, 940 S.W.2d 440, 441 (1997).
Rule 3.1 of the Rules of Criminal Procedure provides that a law enforcement officer lawfully present in any place may stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit a felony, if such action is reasonably necessary to determine the lawfulness of his conduct. A reasonable suspicion is one based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. Ark. R. Crim. P. 2.
Officer Lackey testified that as he approached appellant to ask why he was blocking the driveway, appellant “jumped out of the vehicle and started using profanity and I could smell the odor of intoxicants. That’s when he reached in his pocket and put the object in his mouth and that’s when the scuffle occurred.” The officer stated that the substance was an offi-white object like a yellowish piece of gravel, that it was clearly not gum, and that “[bjeing the narcotics dog handler, I see a lot of that all the time. I could see his hand when he did it. It was not wrapped in anything, it was loose.” Based on the factual and practical considerations of everyday life upon which reasonable and prudent persons act, Brunson, supra, Officer Lackey had a sufficiently reasonable suspicion to approach appellant to determine whether the substance was an illegal drug. Additionally, whatever seizure occurred after the fight began was a proper physical restraint to arrest appellant for resisting arrest. See Ark. R. Crim. P. 3.3; 4.1. Therefore, the trial court did not err in refusing to suppress the officer’s testimony based on an argument that the search or seizure was illegal.
Appellant also argues that it was error to admit evidence that the bagged substance found under his body was mari juana. After addressing chain-of-custody problems, the trial court admitted two reports indicating that the substance was marijuana. There was no physical evidence admitted, and appellant argues that while minor chain-of-custody discrepancies are for the trial court to weigh, there should have been some physical evidence presented at trial. This argument is without merit. We will not reverse an evidentiary ruling absent a showing of prejudice. Turner v. State, 59 Ark. App. 249, 956 S.W.2d 870 (1997). In the present case, the trial court reversed its decision to admit the marijuana evidence and directed a verdict in appellant’s favor on the possession charge. Appellant thus suffered no real prejudice as a result of the marijuana evidence.
Appellant’s second point on appeal is that the trial court erred in denying a motion for a mistrial. As stated, no physical evidence of marijuana was presented at trial. The only evidence concerning marijuana was a signed property receipt, indicating that Officer Lackey deposited the bag in the evidence locker, and a crime lab report that indicated the substance was indeed marijuana. After the trial court admitted these two exhibits, the following exchange took place:
Appellant’s Counsel: I would like to move for a mistrial on the basis that they have lost the evidence in this case and any mention of marijuana is tainting the rest of the trial.
The Court: I am going to deny the motion. I think that goes to the weight and I think the jury will take care of that situation.
There was no error in denying appellant’s motion. Declaration of a mistrial is a drastic remedy and is proper only when the error is beyond repair. Warren v. State, 59 Ark. App. 155, 954 S.W.2d 298 (1997). In addition, the granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse. Id.
At the time the motion for mistrial was made, the possession charge was still before the jury. Appellant’s argument that the marijuana evidence tainted the trial is therefore unpersuasive. While it is true that the trial court directed a verdict in appellant’s favor on the possession charge after the jury had returned a guilty verdict, the court’s ruling on the motion for mistrial was proper. Variances and discrepancies in the proof go to the weight or credibility of the evidence and are, therefore, matters for the factfinder to resolve. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). Accordingly, when there is evidence of a defendant’s guilt, it is for the jury as factfinder to resolve any conflicts and inconsistencies. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). There was no abuse of discretion is denying appellant’s motion.
Robbins, C.J., • Pittman, Jennings, and Stroud, JJ., agree.
Griffen, J., dissents. | [
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Olly Neal, Judge.
The Board of Trustees of the University of Arkansas appeals from the Board of Review’s determination that appellee, Tena Farver, was discharged from her last work for reasons other than misconduct in connection with the work. For reversal, appellant questions whether the Board of Review’s determination that appellee was discharged from her last job for reasons other than misconduct in connection with her work is supported by substantial evidence. We hold that Farver was discharged from her last work for reasons other than misconduct in connection with her work, and, therefore, we affirm the decision of the Board of Review.
Tena Farver worked for the University of Arkansas as a family-nutrition assistant assigned to teach basic nutrition to low-income families. The position required that she enlist seventy-five families in the program; Farver had only enlisted fifty-two. In a letter dated November 18, 2003, Farver was notified that her position would be terminated on December 18, 2003, due to her low enrollment numbers. Following the issuance of the letter, Joyce Whittington, a County Extension Agent serving as staff chair, conducted an audit of Farver’s records subsequent to November 18, 2003, and determined that Farver had falsified records during this period, in that she claimed to have worked with families at addresses that did not exist. Whittington then fired Farver for falsifying records before the termination date given to Farver. At the hearing before the Appeals Tribunal, Farver admitted to falsifying records. Further, Whittington testified at the hearing that “Ms. Farver was discharged because she did not enroll a sufficient number of families.” The Appeals Tribunal determined that appellee had been discharged for misconduct in connection with the work due to her dishonesty. The Board of Review reversed that finding and awarded Farver benefits. This appeal followed.
In unemployment compensation cases, findings of fact by the Board are conclusive if supported by substantial evidence, and review by this court is limited to determining whether the Board could reasonably reach its decision upon the evidence before it. Hiner v. Director, 61 Ark. App. 139, 965 S.W.2d 785 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997). This court reviews the evidence and all reasonable inferences deducible therefrom in a light most favorable to the Board’s findings. Barber v. Director, 67 Ark. App. 20, 992 S.W.2d 159 (1999). We do not conduct a de novo review of the evidence in an appeal from a Board decision. Hiner, supra. 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 the Board could reasonably reach its decision upon the evidence before it. Niece v. Director, 67 Ark. App. 109, 992 S.W.2d 169 (1999). An administrative agency, like a jury, is free to believe or disbelieve any witness, and the appellate court gives the evidence its strongest probative force to support the administrative decision. Singleton v. Smith, 289 Ark. 577, 715 S.W.2d 437 (1986).
Arkansas Code Annotated section ll-10-514(a)(l) (Repl. 2002) allows the Director of the Arkansas Employment Security Department to disqualify an individual for benefits if he is discharged from his employment for misconduct connected with the work. Misconduct, as used in this section involves (1) disregard of the employer’s interests, (2) violation of the employer’s rules, (3) disregard of the standards of behavior that the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). To constitute misconduct, more is required than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith error in judgment or discretion; there must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Fleming v. Director, 73 Ark. App. 86, 40 S.W.3d 820 (2001); Love v. Director, 71 Ark. App. 396, 30 S.W.3d 750 (2000); Niece v. Director, supra.
There are no Arkansas cases that address this very issue, although Bradford v. Director, 83 Ark. App. 332, 128 S.W.3d 20 (2003), provides us with some guidance. Bradford, who was hired as the Executive Chief Information Officer for the State of Arkansas, gave two weeks’ notice of his intention to end his employment with the State by submitting a letter of resignation to Governor Huckabee. Thereafter, Bradford was notified by the governor’s chief of staff that the governor had directed her to terminate Bradford’s employment that very day. Bradford sought benefits. Our court affirmed the Board of Review’s denial of benefits to Bradford upon determination that Bradford had voluntarily left his work without good cause. In making this holding, we determined that the Board of Review clearly could have viewed Bradford’s resignation letter as a clear and unequivocal manifestation of his intention to leave his job with the State.
In Batal Builders, Inc. v. Polonica, 21 Va. Cir. 107 (1990), Polonica was discharged from her employment. Subsequent to the discharge it was discovered that she misappropriated company funds. Polonica applied for and received unemployment benefits; Batal appealed. The circuit court held that “misconduct discovered after an employee is discharged is irrelevant to the question of whether the employee is eligible for benefits because the conduct complained of was not the basis for discharge as required under the governing statute.” 21 Va. Cir. at 109. Although not binding on this court, we find this case highly persuasive in making our determination.
Similarly, Farver received, on November 19, 2003, a letter dated November 18, 2003, informing her that her job would end on December 18, 2003. Whittington testified that her audit took place November 24 through November 28, after appellant informed Farver that she was being terminated. It was during this audit that the misconduct (falsifying of records) was discovered. The Board of Review clearly could have viewed appellant’s letter of termination to Farver as a clear and unequivocal manifestation of its intention to terminate Farver’s employment for the reason stated in the letter — Farver’s inability “to reach the minimum number of enrolled families.” Therefore, appellant can not use its subsequent finding of misconduct as a basis to prevent Farver from obtaining unemployment benefits. Accordingly, because substantial evidence supports the decision of the Board of Review, we affirm.
Affirmed.
Crabtree and Roaf, JJ., agree. | [
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Terry Crabtree, Judge.
Appellant Rose Care, Inc., a long-term care facility located in Saline County, appeals from a $1.6 million compensatory-damage verdict in favor of appellee Helen Ross, whose mother, Eula Givens, was a resident at Rose Care for a litde more than one year. Ross has cross-appealed the trial court’s refusal to submit the issue of punitive damages to the jury, along with certain evidentiary rulings. We affirm on direct appeal and reverse and remand on cross-appeal.
Facts
Eula Givens entered Rose Care on October 1, 1999, after having been a resident at another long-term care facility in Pine Bluff. She did not come to Rose Care a healthy woman but neither was she in a deteriorated condition. She was ninety years old, weighed 118 pounds, had no pressure sores (although she did have a red area on her coccyx), and suffered from diabetes, arthritis, hypertension, bladder incontinence, dementia, and a recent urinary-tract infection (UTI). The care plan prepared for her by Rose Care recognized that she would be dependent on the facility’s staff for virtually all of her activities for daily living, including her meals, which were to be spoon-fed to her. Among the problem areas noted in the care plan were her incontinence, her potential for skin breakdown, her recurrent UTIs, and her risk of dehydration and weight loss. The interventions recommended for these problems included checking her frequently for incontinence episodes, keeping her clean and dry, monitoring her skin daily, conducting weekly body audits, evaluating her nutritional needs, monitoring her food intake, and offering her fresh water often.
Beginning in late October 1999, Mrs. Givens’s condition began to decline in several respects. On October 26, 1999, the red area on her coccyx had progressed to a Stage II pressure sore. By late November and early December, she had Stage II sores on her hip, heel, and ankle. Her vital-signs record shows that, as of November 6, 1999, she weighed 102 pounds, having suffered a sixteen-pound weight loss in a little over one month. On November 7, 1999, she was hospitalized for five days with what hospital records describe as “severe dehydration and urinary tract infection.” She was hospitalized again for several days beginning on November 19, 1999, with physician and hospital notes indicating that she was dehydrated and had a “probable” UTI with possible urosepsis.
On January 12, 2000, Mrs. Givens was again admitted to the hospital, this time with pneumonia, dehydration, and mild anemia. Although her weight had risen in mid-December to 105 pounds, by January, she was down to ninety-two pounds. Her weight loss persisted, and by May 2000, she weighed only seventy-six pounds. Additionally, her pressure sores increased in severity, with one sore intermittently progressing to a Stage III throughout January and two others progressing to Stage III by February 2000, where they remained through May 2000. At some point, one sore progressed to a Stage IV.
In July 2000, a feeding tube was inserted into Mrs. Givens, and she began to gain some of her weight back; by December 2000, she weighed 102 pounds. However, she continued to suffer with UTIs and a Stage II pressure sore. On or about December 7, 2000, she had a UTI from which she did not recover and died approximately one week later.
On November 6, 2001, and by an amended complaint filed on June 7, 2002, appellee sued Rose Care in Saline County Circuit Court. She sought compensatory and punitive damages for medical malpractice, negligence, violation of the Arkansas Long Term Care Residents’ Rights Law, Ark. Code Ann. § 20-10-1204 (Repl. 2000), and wrongful death. The factual basis of her claims was established at trial, where she contended that Rose Care understaffed its facility and allowed Mrs. Givens to become severely dehydrated, lose a great deal of weight, develop several painful pressure sores, suffer numerous indignities, and eventually die while a resident there. The following pertinent testimony was adduced on these matters.
Four former Rose Care employees who were Certified Nurse’s Aides (CNAs) testified on behalf of appellee. They explained that, as CNAs, their duties consisted of helping residents with their daily activities such as feeding and bathing, providing them with water, and turning and repositioning them when they could not move themselves, which was required every two hours to avoid bedsores. Each of the CNAs testified that Rose Care was understaffed to the point that they could not carry out their duties in a timely fashion. For instance, Casie Davis said that she sometimes worked the facility’s back hall — whose residents required total care — either all alone or with only one other CNA. Davis and another CNA, Minia Christian, testified that they complained about the understaffing to their superiors but received no helpful response. CNA Kristi Kindy testified that the task of providing water may have been neglected by CNAs due to understaffing. She recalled that Mrs. Givens wanted water “a lot” and that, when walking down the hall, she heard Mrs. Givens’s voice quavering and asking for water. There was also testimony regarding the state of Mrs. Givens’s hygiene. Davis recalled an incident where, at the start of her shift, she discovered Mrs. Givens with dried feces all over herself, her bed, and the wall. Davis said it took more than an hour to find someone to help her clean Mrs. Givens. Christian testified that, on three out of five mornings when she would begin working her shift, she would find Mrs. Givens saturated in urine, feces, or both. According to her, Mrs. Givens had feces under her fingernails and in her hair. The CNAs also related incidents in which a fresh bandage on Mrs. Givens had been placed over an older bandage, a nurse unclogged Mrs. Givens’s feeding tube by pouring Coca-Cola into it, Mrs. Givens’s call light was placed out of her reach, and a maintenance man was “pulled onto the floor” to act as a CNA when state inspectors came to the facility.
Rose Care’s nursing consultant, Nancy Ahead, was also called by appellee. Through her, appellee established that state and federal regulations require that: 1) a resident without pressure sores should not develop pressure sores unless her clinical condition indicates that the sores were unavoidable; 2) the facility must provide each resident with sufficient fluid intake to maintain proper hydration and health; 3) based on a resident’s comprehensive assessment, the facility must ensure that a resident maintains acceptable parameters in nutritional status such as body weight and protein levels unless the resident’s clinical condition demonstrates that this is not possible; 4) resident records and charts are to be complete and accurately documented; 5) the facility must have sufficient nursing staff to provide for the residents’ needs. Alread’s testimony revealed violations of those regulations by Rose Care in its stewardship of Mrs. Givens. For instance, although she testified as to the importance that a resident’s consumption and intake/output (I/O) records be accurate if the resident is at risk of weight loss or dehydration, she admitted that there were errors in Mrs. Givens’s records. Her charts did not document her I/O figures on several days prior to her first hospitalization and some of her I/O figures that were documented were on days that she was hospitalized and not present at the facility. Further, her charts did not document that she had been receiving a nutritional supplement that had been ordered for her. Ahead also acknowledged that certain records reflected that Mrs. Givens consumed meals at the facility on days that she was hospitalized.
Airead further said that regulations call for a resident’s care plan to be reassessed quarterly but sooner if significant changes occur. She agreed that Mrs. Givens’s weight loss and hospitalizations for dehydration were significant and should probably have triggered changes in her care plan; however, she said, the care plan did not mention these events or set out new interventions to address them. Airead said finally that pressure sores and hydration and nutrition problems could indicate understaffmg.
Appellee’s other pertinent witnesses were her experts, Nurse Olive Brown and Dr. William Patrick Joseph. Because the testimony of these witnesses is particularly pertinent to the first two issues on appeal, i.e., whether there was sufficient evidence to support the medical-malpractice and wrongful-death verdicts, we will provide a synopsis of their testimony in conjunction with our discussion of those issues. For now, it is enough to say that Nurse Brown offered her opinion that Rose Care breached the standard of care applicable to nursing homes in several respects and that Dr. Joseph testified that Mrs. Givens’s death was caused by the final UTI that she suffered in December 2000.
Rose Care, for its case, presented the testimony of its administrator Melba Hutcheson; its activities director, Joyce Staggs; one of its nurses, Kathy Barnhill; its medical director, Dr. David Stewart; and two expert witnesses, Nurse Lori Reasoner and Dr. Randy Hill. Hutcheson, Staggs, and Barnhill all said that Rose Care was well staffed and well supplied, and they denied the allegations made by the CNAs who testified on appellee’s behalf. Each of them also testified that Mrs. Givens’s problems could be explained by the fact that she often refused to eat and would keep her mouth closed or spit out her food. Dr. Stewart testified that he spoke with Mrs. Givens’s family in January 2000 regarding inserting a feeding tube but that they did not want to pursue that, a claim that appellee denies. He said that the family later changed their mind and had a feeding tube inserted in July 2000, whereupon Mrs. Givens began to improve. At the time of Mrs. Givens’s last infection, according to Dr. Stewart, appellee “didn’t want anything done,” although he admitted that he did not talk to appellee about hospitalizing Mrs. Givens because “I didn’t think I could do much more in the hospital than I was doing [at Rose Care].”
Lori Reasoner, who was a nurse practitioner at another long-term care facility, testified that Rose Care was not understaffed; that Mrs. Givens was in decline before she entered Rose Care; that her pressure sores were unavoidable; that Rose Care did nothing that caused Mrs. Givens to become dehydrated; and that Rose Care tried to prevent her weight loss by administering supplements and vitamins. She admitted that there were errors in Mrs. Givens’s charts regarding documentation of meal consumption and I/O numbers. However, she opined that Rose Care responded appropriately when Mrs. Givens’s condition changed significantly with regard to weight loss, dehydration, and pressure sores and that it was not necessary to revise her care plan so long as the problems were being addressed. On cross-examination, Reasoner admitted that the presence of a resident riddled with pressure sores, suffering repeated bouts of dehydration, severe weight loss, and poor hygiene, with feces in her hair and under her fingernails, would prompt her to investigate. She also said that Rose Care’s Director of Nursing’s name appeared on staff sign-in sheets several times, possibly so the facility would have enough staff.
Dr. Randy Hill offered his expert opinion that Rose Care did not cause Mrs. Givens’s death, although he did agree that she died of a UTI. He said that her decline was consistent with dementia patients; that nothing Rose Care did or did not do caused her to have UTIs; and that Rose Care’s staff communicated well with Dr. Stewart at the time of the last UTI. He said on cross-examination, however, that Mrs. Givens’s debilitated state contributed to her death.
Following the presentation of the above testimony, the jury was instructed on claims for ordinary negligence, medical malpractice, violation of the residents’ rights statute, and wrongful death, and they were provided with a separate verdict interrogatory for each cause of action. In order to prevent their attributing damages for the same injury to more than one cause of action, they were told on each interrogatory that:
any element of damage considered by you in answering this interrogatory should not also be considered by you in answering any other interrogatory. In other words if you award damages for injuries sustained by Ms. Givens as a result of [a particular cause of action], you must not award damages for those same injuries as a result of [the other three causes of action].
After deliberations, the jury returned verdicts against Rose Care on each count, awarding $1,000,000 for negligence, $250,000 for medical malpractice, $100,000 for violation of a resident’s rights, and $250,000 for wrongful death. Rose Care’s first argument on appeal is that the evidence was insufficient to support the jury’s verdict for medical malpractice.
Sufficiency of the Evidence — Medical Malpractice
Rose Care moved for a directed verdict on the medical-malpractice claim, arguing that appellee’s experts did not establish a link between Rose Care’s conduct and Mrs. Givens’s injuries. The trial court denied the motion, which Rose Care assigns as a point of error.
A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003). Substantial evidence is defined as that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond suspicion or conjecture. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993). In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Curry v. Thornsberry, supra. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented. Id. It is not our province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. Id.
Our medical-malpractice statutes set forth the burden of proof that must be met by a plaintiff. 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; (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. Ark. Code Ann. § 16-114-206(a) (Supp. 2003). Further, the expert’s opinion must be stated within a reasonable degree of medical certainty or probability. See Watts v. St. Edward Mercy Med. Ctr., 74 Ark. App. 406, 49 S.W.3d 149 (2001). Rose Care does not argue that appellee’s proof was deficient for lack of expert qualifications, lack of testimony of a breach of the applicable standards of care, or failure to state opinions within a reasonable degree of medical certainty. Its argument on appeal is confined — as it was below — to the third statutory element, i.e., that expert testimony as to proximate cause was wanting in this case.
We look to the testimony of appellee’s expert witness on nursing-home care, registered nurse Olive Brown. Nurse Brown had worked as a CNA, a licensed practical nurse, (LPN) and a registered nurse (RN). At the time of trial, she was the Director of Nursing for a 175-bed facility in New York. She possessed a master’s degree in nursing and hospital health-service management and was a doctoral candidate in health-service administration. She also expressed familiarity with nursing-home regulations at both the state and federal levels and with the standard of care for nursing homes in Arkansas. She had previously testified as an expert in Arkansas and other states.
Brown testified that Rose Care failed to meet the standard of care for nursing homes in five particular areas: 1) the monitoring of Mrs. Givens’s weight; 2) the monitoring of Mrs. Givens’s hydration status; 3) the management and prevention of pressure ulcers; 4) the provision of an appropriate care plan; 5) the use of restraints. In the interest of conserving both the reader’s resources and our own, we will not recite the sum and substance of Nurse Brown’s opinions as to each of the above areas; her learned testimony was quite extensive. Instead, we limit our discussion to two aspects of her opinions that clearly establish a causal link between Rose Care’s actions and Mrs. Givens’s injuries ■— Rose Care’s failure to monitor Mrs. Givens’s weight loss and its failure to manage and prevent her pressure sores.
With regard to Mrs. Givens’s weight loss, Brown opined that Rose Care failed to evaluate why Mrs. Givens was not eating. She also said that, after Mrs. Givens suffered a sixteen-pound weight loss in November 1999, Rose Care failed to reevaluate her condition and establish new interventions. Had proper evaluations taken place, Brown said, “I’m sure that a cause for weight loss would have been determined and, therefore, you could move on before it got to 36 pounds.” In other words, Rose Care’s failure to act quickly to ascertain the cause of Mrs. Givens’s weight loss and establish new interventions resulted in her continuing to lose weight in drastic amounts. Regarding Rose Care’s management of the pressure sores, Brown stated that Mrs. Givens’s Stage II pressure sores “could have been healed” and that it was a breach in the standard of care that they were allowed to progress to Stages III and IV. Further, she said, Stage IV sores were very painful. She also said that the nursing-home staff should have known what could happen if they did not turn and reposition the residents frequently enough. Moreover, she said, Rose Care’s nurses should have known that they “absolutely must be aggressive with those pressure sores” to keep them from worsening but that they were not doing so. Further, in testimony that shows the synergystic nature of Mrs. Givens’s many ailments, Brown stated that pressure sores are prevented by maintaining hydration and weight.
Although Nurse Brown did not make the exact statement in her testimony that Rose Care’s lack of care “proximately caused” Mrs. Givens’s injuries, Arkansas does not require any specific “magic words” with respect to expert opinions, and they are to be judged upon the entirety of the opinion, not validated or invalidated on the presence or lack of “magic words.” Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004). Even in medical-malpractice cases proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred. Id. Brown’s opinions, in their entirety, contain substantial evidence from which the jury could have fairly inferred a causal link between Rose Care’s conduct and Mrs. Givens’s injuries. We therefore affirm the medical-malpractice verdict.
Sufficiency of the Evidence — Wrongful Death
Rose Care moved for a directed verdict on the wrongful-death claim, arguing as follows:
We heard testimony from their doctor, Dr. Joseph, that Ms. Givens died of a treatable and curable urinary tract infection that developed in December 6 [sic], 2000. He had no testimony giving a causal link between any acts or omissions... in the development of that urinary tract infection to the nursing home. Their nursing expert, Nurse Brown, offered no causal link between the development of the urinary tract infection and anything the staff at Rose Care either did or failed to do. So under [Ark. Code Ann. § 16-114-206(a)(3)] they’ve got the burden of proving with expert testimony from a qualified medical expert that the alleged injuries were proximately caused by the negligence of the defendant and I don’t think they’ve done it in this case.
The trial court denied the motion. Our standard of review is the same as that recited in the discussion of the previous issue. Further, because a medical injury resulting in the death of a person is governed by our medical-malpractice statutes, see Pastchol v. St. Paul Fire & Marine Insurance Co., 326 Ark. 140, 929 S.W.2d 713 (1996), the statutory burdens of proof set out in Ark. Code Ann. § 16-114-206(a) apply.
Again we note that Rose Care appeals solely on the question of proximate cause. There is no contention that Dr. Joseph lacked qualifications, failed to establish that Rose Care breached the applicable standards of care, or failed to state his opinions within a reasonable degree of medical certainty.
Our resolution of this point requires a close reading of Dr. Joseph’s testimony. He began by offering his opinion that Mrs. Givens died of a urinary-tract infection. He agreed that she was susceptible to UTIs but said that neither her susceptibility nor the fact that she was ninety-one years old necessarily meant that she would die from a UTI. He further said that, if an individual is prone to such infections, dehydration increases that risk. When asked why she died of the UTI, Dr. Joseph testified as follows:
Dr. Joseph: Mrs. Givens died from a urinary tract infection that became so severe that it caused her death. That is not something that is expected in anyone unless there are additional risk factors for an infection to become severe. Recognized risk factors for [a] urinary tract infection to become severe are usually malnutrition and dehydration.
Counsel: Can malnutrition and dehydration cause debilitation in a resident that has urinary tract infections .... Can malnutrition and dehydration be factors in debilitating a person?
Dr. Joseph: I believe you used the term debilitation, and that’s a generic or general term. And, yes, it can. Dehydration and malnutrition can be factors that cause debilitation. Debilitation is a common term that generally means a weakened system. I was much more specific in saying that a urinary tract infection in a person who is dehydrated and malnourished is much more likely to be a severe and life-threatening urinary tract infection.
On cross-examination, Dr. Joseph testified that, if Mrs. Givens had been transferred to an acute-care hospital, the infection could have been treated. He also gave his opinion that Mrs. Givens’s prior urinary-tract infections for which she was hospitalized between November 1999 and January 2000 did not cause her death. When asked specifically whether Mrs. Givens’s weight loss or malnutrition caused her death, he said:
Well, you’ve linked a couple of things together... in assuming that weight loss is the only risk factor from malnutrition. The weight loss that I saw in Ms. Givens was predominantly during the first half of the year 2000. The weight loss that occurred in the first part of the year 2000 I don’t think had a contributing factor to her death but that does not mean that there wasn’t malnutrition that occurred concomitantly with her infection in December. Malnutrition can certainly occur without weight loss.
He clarified that he was not testifying that Ms. Givens was malnourished in December 2000 because the records were not complete enough to reach that conclusion.
Although Dr. Joseph testified on direct examination that dehydration and malnutrition were risk factors in creating a severe UTI, he offered no testimony that Mrs. Givens was either dehydrated or malnourished at the time of her death. Additionally, he said that Mrs. Givens’s most severe UTIs, which caused her to be hospitalized, did not contribute to her death. However, our attention is drawn to Dr. Joseph’s comments regarding the effects of a person’s debilitation on the development of and the ability to withstand a severe UTI and his testimony that some risk factor must be present for a UTI to become deadly. This testimony is most telling when read in connection with the statement of Rose Care’s expert, Dr. Randy Hill, who said that Mrs. Givens’s debilitated state contributed to her death. The jury had before it evidence of Mrs. Givens’s long, slow decline precipitated and propelled by incidents of substandard care and neglect such as those mentioned by the CNAs who testified on appellee’s behalf — a decline whose effects were unquestionably debilitating and which, the jury could fairly infer, ultimately rendered Mrs. Givens too devitalized to overcome a urinary-tract infection.
Causation is ordinarily a question of fact for the jury to decide. Stecker v. First Commercial Trust Co., 331 Ark. 452, 962 S.W.2d 792 (1998). Moreover, as stated earlier, even in medical-malpractice cases proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred. Wal-Mart Stores, Inc. v. Kilgore, supra. The expert testimony in this case with regard to proximate cause is sufficient to support the jury’s verdict for wrongful death.
Evidentiary Errors
Rose Care asserts that the trial court made three errors in evidentiary rulings that merit reversal. The first came about as the result of a colloquy that occurred during appellee’s voir dire of potential jury members. Appellee’s counsel asked the venire whether they thought that punitive damages worked to deter future conduct by companies. Venireman James responded:
I would have some questions about whether they worked [in] the medical profession because to me it seems like most of the money is coming from insurance companies and the damages would just be passed along. Drive up the cost of health care for everyone.
James further said that, while punitive damages might be useful in a sexual-harassment situation, “in health care where people are not actually paying for the — where the insurance companies are paying . . .” At that point, James was cut off by appellee’s counsel and asked “you haven’t heard testimony to that effect though, have you?” James said, “No, I just, I’m saying that those people who have medical care or insurance, you know, I mean ...” James was cut off again, and counsel asked:
Assuming that you don’t ever hear any evidence, assume that you’re picked to sit on this jury and you never hear any evidence that — I mean that there’s any insurance in this case or that anyone’s going to actually — in other words, you don’t get any information as to who actually pays the verdict, are you able to set aside that preconceived notion that someone other than the nursing home or someone other than the company is going to pay for the damages? And sit here and rule fair and impartially on the facts and evidence that you hear in this case?
James said that he thought he could. Counsel then reiterated that he was trying to find out whether James had any preconceived notion about the futility or uselessness of punitive damages.
At this point, Rose Care moved to strike the venire on the grounds that appellee’s counsel had “interjected insurance” into the case. The trial court denied the motion, and Rose Care contends on appeal that this was error. Our standard of review is whether the trial court abused its discretion in refusing to strike the jury panel. See generally Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995).
As a general rule, it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage. Synergy Gas Corp. v. Lindsey, 311 Ark. 265, 843 S.W.2d 825 (1992). Certainly, where there has been an intentional and deliberate reference to insurance when it was not an issue in the case and when the opposing party had not opened the door for its admission, a mistrial is the proper remedy. See id.; Hacker v. Hall, 296 Ark. 571, 759 S.W.2d 32 (1988); Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30 (1982). However, where the attorney poses a question with apparent sincerity and in good faith rather than in a deliberate attempt to prejudice the jury, and the witness answers with a reference to insurance, an admonition by the court is ordinarily sufficient to correct the error. Id.
It appears from the transcript of the exchange between Venireman James and appellee’s counsel that counsel was asking in good faith about punitive damages, that he did nothing to elicit the mention of insurance, and that he in fact tried to steer James away from the topic. Further, Rose Care did not ask for an admonition of any kind. Under these circumstances, we cannot say that the trial court abused its discretion in refusing to strike the panel. See also King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978), and Hill v. Billups, 85 Ark. App. 166, 148 S.W.3d 288 (2004), where counsel was permitted to pose questions to the venire as to whether they believed that insurance premiums would increase if they rendered a verdict for the plaintiff.
The second evidentiary point of error concerns Rose Care’s motion in limine that sought, in part, to exclude testimony by appellee’s experts regarding issues not disclosed during the experts’ depositions. The court ruled, “let’s try to avoid that happening.” During Nurse Brown’s testimony, she testified about what appropriate staffing levels would be required under federal regulations. Rose Care objected that Brown was offering an opinion that she had not offered during her deposition, but the trial judge allowed the testimony. During Dr. Joseph’s testimony, he stated, over Rose Care’s same objection, that malnutrition and dehydration could debilitate a person and that poor catheter care could lead to UTIs. Rose Care argues on appeal that the evidence should not have been admitted because the expert’s opinions were not provided in discovery and that, under Ark. R. Civ. P. 26(e)(1)(B) (2004), a party is under a duty to supplement its discovery responses with the substance and subject matter upon which the party expects its experts to testify.
A trial court’s decision to admit evidence is within its discretion and will not be reversed absent an abuse of discretion. See Aka v. Jefferson Hosp. Ass’n, 344 Ark. 627, 42 S.W.3d 508 (2001). Further, when a party complains about failure to update discovery, the matter lies within the discretion of the trial court. Hill v. Billups, supra.
Rose Care relies on Arkansas State Highway Commission v. Frisby, 329 Ark. 506, 951 S.W.2d 305 (1997), an eminent-domain case. There, our supreme court reversed on the basis of a discovery violation when the landowners’ expert testified in his deposition that the pre-taking value of the land was either $113,000 or $117,000 but testified at trial, based on new facts and figures not previously provided, that its value was $158,000. In the case at bar, unlike Frisby, we are unable to tell exactly what opinions these experts offered in their depositions because those depositions are not contained in the record. Thus, we have no way of confirming that their trial testimony in fact exceeded the scope of the opinions that they offered in their depositions. It is an appellant’s burden to bring up a record sufficient to demonstrate error, and matters outside the record will not be considered in making a ruling on appeal. See Estates of Seay v. Quinn, 352 Ark. 113, 98 S.W.3d 821 (2003). Because Rose Care has not met that burden, we affirm on this point.
The final evidentiary error asserted by Rose Care concerns the admission of a 1999 Office ofLong Term Care (OLTC) survey into evidence. The survey cited Rose Care for a violation where a resident who was at risk for pressure sores was observed in the same position on September 29, 1999, from 9:20 a.m. until 12:16 p.m. Rose Care argues that the survey was irrelevant and unfairly prejudicial because it was conducted before Mrs. Givens became a resident and it involved issues relating to residents other than Mrs. Givens. Our standard of review remains the abuse-of-discretion standard. Aka v. Jefferson Hosp. Ass’n, supra.
In Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003), cert. denied, 540 U.S. 1004 (2003), a case similar to the case at bar, 1997 and 1998 OLTC surveys containing information about the care of residents other than Mrs. Sauer were admitted into evidence (although Mrs. Sauer was a resident of the facility during those periods). The supreme court held that the surveys were relevant because they reflected problems with staffing and lack of quality care that, according to the court, tended to show that the Sauer estate’s allegations that those problems existed in regard to Mrs. Sauer were more or less probable. Further, the court said, the surveys were relevant to show that the facility was on notice of dangerous conditions due to understaffing. Likewise, in the present case, the 1999 survey, which was completed just as Mrs. Givens was admitted to Rose Care, showed evidence of a problem with failure to turn and reposition residents in a timely fashion, one of the exact allegations that appellee made against Rose Care in this case. It also showed that, at the time of Mrs. Givens’s admission, Rose Care was on notice that it had a problem in complying with turning and repositioning requirements. In light of the ruling in Advocat, supra, we find no abuse of discretion with regard to the admission of the 1999 survey.
Denial of Motion of New Trial
Rose Care makes two arguments on appeal that were made below solely in its motion for a new trial — that the jury’s damage awards were excessive and that juror misconduct occurred when two jurors mentioned their personal experiences with nursing homes during deliberations. We do not reach the merits of these arguments because Rose Care’s notice of appeal does not reflect that an appeal has been taken from the denial of the motion for a new trial.
Following the entry of judgment on the jury’s verdict, Rose Care filed timely post-trial motions for a new trial and for a judgment notwithstanding the verdict. The motions were deemed denied when they were not ruled upon within thirty days of their filing. See Ark. R. Civ. P. 59(b) and 50(b)(2) (2004). Rose Care’s notice of appeal, which was filed on April 12, 2004, recites that it is appealing from the “final judgment” entered on February 11, 2004, referring to the judgment entered on the jury’s verdict. However, the notice of appeal does not mention that an appeal was being taken from the “deemed denial” of the new trial motion.
A notice of appeal must state the order appealed from with specificity, and orders not mentioned in the notice of appeal are not properly before the appellate court. See Arkansas Dep’t of Human Servs. v. Shipman, 25 Ark. App. 247, 756 S.W.2d 930 (1988). More recently, our supreme court stated the same in a criminal case. See Wright v. State, 359 Ark. 418, 198 S.W.3d 537 (2004). Further, in Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003), the supreme court noted that, when a motion for a new trial has been deemed denied, the only appealable matter is the original order; however, any previously filed notice of appeal may be amended to appeal from the deemed-denied motion. See also United States Bank v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003) (indicating that a notice of appeal should be filed in order to appeal from the denial of a post-trial motion for reconsideration).
Because Rose Care’s notice of appeal does not mention the deemed denial of the new-trial motion or that an appeal is being taken from any order other than the original judgment, we do not reach the issues that were solely raised in the new-trial motion.
Cross-Appeal: Directed Verdict on Punitive Damages
The trial court granted Rose Care’s motion for a directed verdict on appellee’s punitive-damages claim, which appellee claims is reversible error. In reviewing an order granting a motion for directed verdict, the appellate court views the evidence in the light most favorable to the party against whom the verdict was directed; if any substantial evidence exists that tends to establish an issue in favor of that party, then a jury question is presented, and the directed verdict should be reversed. Trotter v. Bowden, 81 Ark. App. 259, 101 S.W.3d 264 (2003).
The critical inquiry with respect to punitive damages is to determine whether there is evidence that a party likely knew, or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred. Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004).
There was evidence in this case that Rose Care was chronically understaffed and had ignored CNA complaints on the matter; that rewards were offered for facilities that kept within budget constraints; that Rose Care would “pull” a maintenance man onto the floor as staff during inspections; that Mrs. Givens lost a troubling amount of weight in a short time and that her charts did not properly reflect her feeding schedule; that Mrs. Givens was dehydrated three times within a few months and that her fluid-intake/output chart contained readings for days that she was not on the premises; that Mrs. Givens’s pressure sores increased in severity alarmingly over several months even though, according to one expert, they should clearly have been cured at the less severe stages; that Rose Care had been cited for failure to turn and reposition residents every two hours as required; that Mrs. Givens was found on several occasions covered in dried feces, which indicates an appalling level of neglect; and that all of these conditions occurred despite the fact that, in its initial care plan, Rose Care established that Mrs. Givens was at risk for many of these very conditions. These factors constitute “any substantial evidence” of reckless disregard, such that a directed verdict on punitive damages was improper. We therefore reverse and remand for a new trial on the issue of punitive damages.
Remaining Issues on Cross-Appeal
In discovery, appellee requested production of reports, correspondence, or other writings generated by or on behalf of any management or consultant to Rose Care concerning the care and treatment of residents between October 1, 1999, and December 14, 2000. At a hearing on a motion to compel, the trial court refused to order discovery of the reports on the grounds that they involved remedial measures. Appellee appeals from this ruling.
Trial courts have wide discretion in all matters pertaining to discovery, and we will not reverse their decisions absent an abuse of discretion that is prejudicial to the appellant. Heinrich v. Harp’s Food Stores, Inc., 52 Ark. App. 165, 915 S.W.2d 734 (1996). However, the trial court’s ruling in this instance appears to have been based on the reports’ supposed inadmissibility into evidence and not on their discoverability. It is not grounds for objection to a discovery request that the information sought will not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Ark. R. Civ. P. 26(b)(1) (2004). As previously noted in the Advocat case, the conditions and care of other residents in a long-term-care facility may be relevant to show that a plaintiffs allegations regarding the same matters are more or less probable.
Rose Care argues that appellee never established that such consultant reports existed. However, that is one of the purposes of discovery; it is impossible to determine whether such reports exist and what information they contain until they are produced, or until Rose Care states that there are no such reports or offers a legitimate basis for them not to be discovered. We therefore reverse on this point.
Appellee also argues that the trial court erred in denying admission of a 1998 OLTC survey, even though the court had admitted a 1999 OLTC survey. In the 1998 survey, Rose Care was cited for, inter alia, deficiencies for improper use of restraints, improper grooming of residents (including two instances where a resident was found with a brown substance under her fingernails), failure to prevent UTIs, improper treatment of pressure sores, and at least four instances where a resident at risk for pressure sores remained in the same position for more than two hours - all issues that were present in this case. However, the trial court determined that the 1998 survey was “too remote” in time to be relevant.
We believe that the court abused its discretion in the evidentiary ruling. Rose Care argues that admission of the survey would violate the U.S. Supreme Court’s holding in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), a seminal punitive-damages decision, which ruled that a defendant should not be punished for being an unsavory business but only for conduct that harmed the plaintiff. According to Rose Care, the 1998 survey would permit a jury to award damages against it to punish its conduct toward persons other than Mrs. Givens. However, Rose Care agrees that evidence of prior conduct affecting nonparties satisfies due process so long as it is substantially similar to the conduct that harmed the plaintiff. In fact, the admissibility of prior similar occurrences is commonly accepted in Arkansas upon a showing of sufficient similarity in circumstances, see Union Pacific R.R. Co. v. Barber, supra, although exact identity of circumstances is not required for admissibility. Arrow Int’l v. Sparks, 81 Ark. App. 42, 98 S.W.3d 48 (2003). Rose Care claims that the 1998 survey contains evidence of violations that are not substantially similar to its conduct toward Mrs. Givens. While we agree that some of the conduct mentioned in the survey is not substantially similar to that which occurred in this case, the survey contains numerous incidents that are substantially similar and relevant to appellee’s claim for punitive damages. See Arrow Int’l, supra. We therefore conclude that, with proper redacting upon remand, the survey can be suited for admissibility.
In light of the foregoing, we affirm the jury’s verdict on direct appeal and reverse and remand on cross-appeal.
Neal and Roaf, JJ., agree.
As explained by one of appellee’s experts, there are four stages of pressure sores or, as they are sometimes called, bedsores. In Stage I, there is an area of skin redness without a break in the skin. In Stage II, the top layer of skin is broken. In Stage III, the ulcer has progressed into the dermis layer of the skin, causing some pain. In Stage IV, the ulcer progresses to the muscle or bone, causing severe pain.
Nursing homes are included in the statutory definition of a “medical care provider” for purposes of medical-malpractice actions. See Ark. Code Ann. § 16-114-201(2) (1987). Further, the term “medical injury” for which recovery may be had under the malpractice statutes includes “any adverse consequences arising out of or sustained in the course of the professional services being rendered by the medical care provider, whether resulting from negligence, error, or omission in the performance of such services.” Ark. Code Ann. § 16-114-201(3) (1987).
Rose Care argues that appellee should be barred from arguing that its conduct with respect to dehydration, weight loss, and pressure sores constituted medical malpractice because she contended at trial that those elements constituted ordinary negligence or a violation of a residents’ rights. Rose Care is referring to colloquies between appellee’s counsel and the court during a discussion of the statute of limitations. Any statement made by appellee’s counsel concerning the causes of action to which those elements pertained was not directed to the jury but to the court in a bench conference. The jury was not instructed that any particular element of damage corresponded to any particular cause of action.
Neither party mentions the Civil Justice Reform Act of 2003, which has several provisions pertaining to punitive damages. See Ark. Code Ann. § 16-55-201 to -220 (Supp. 2003). We make no ruling on whether the Act is applicable in the present case.
We have found no Arkansas case that addresses the subject of whether a new trial may be ordered on the issue of punitive damages alone, and neither party cites one. Our research did reveal cases from other jurisdictions that have ordered a retrial solely on punitive damages. Jannotta v. Subway Sandwich Shops, 125 F.3d 503 (7th Cir. 1997); McClure v. Walgreen Co., 613 N.W.2d 225 (Iowa 2000); Gulf Guar. Life Ins. Co. v. Duett, 671 So.2d 1305 (Miss. 1996); Fabricar, Inc. v. E. I. DuPont, 24 S.W.3d 82 (Mo. App. 2000). | [
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Andree Layton Roaf, Judge.
Appellant Jefferson D. Guess, Jr., and other heirs to the estate of Anna Elizabeth Guess appeal an order of the Lonoke County Probate Court denying their request to remove appellee, Alice Going, as executrix of the estate, and appoint a substitute. On appeal they assert that the probate court erred in denying their request. We reverse.
Anna Elizabeth Guess lived a long and mostly independent life on a farm in Cabot. She raised seven children. By all accounts, she dealt with her descendants generously, loaning money and selling property on very favorable terms. For example, she allowed one son, Wayne, to trade a three-year-old Chevrolet pickup truck for ten acres of land in 1989, and grandson Doyle Guess, Jr., purchased a house and a half-acre of land in 1974, for $1,000 in cash and $100 per month for ten years.
In 1991, apparently at the behest of her daughter, Alice Going, Anna granted Going a durable power of attorney that remained in effect until her death. The event that motivated the giving of the power of attorney, according to Going, was a kitchen fire that resulted from Anna forgetting her meal on the stove. According to Anna’s other daughter, Martha Blackwell, however, the reason for the power of attorney was Going’s intention to prevent her from further disposing of her real estate after the trade of the pickup truck for ten acres of land. This view was shared by Doyle Guess, Jr., Wayne Guess, and Jeffrey Guess, Jr. According to these heirs, Going blocked several proposed land sales.
On March 31, 1994, however, Anna, then age 82, entered into a land-sale contract with Douglas Wayne Wilson and Cindy Going Wilson, Going’s daughter. Pursuant to the agreement, which was prepared by Going, she conveyed her greatest asset, 85 acres of farmland, for $170,000. The agreement provided that the Wilsons were not required to make a payment of any kind until January 15, 1995. At that time, they would be required to begin making thirty-six monthly payments of $500. Only after they had made this interest-free “down payment,” would they then be required to begin paying seven-percent interest on the $152,000 balance. The $152,000 was then to be amortized by monthly payments of $1,027.19, to be made over the next 28 and a half years.
On July 14, 1995, Anna signed a new will that Going had also prepared for her. According to Going, she patterned the new will after the previous will that had been prepared by a lawyer. The will only changed in two significant respects. It changed the distribution of certain property that was previously bequeathed to Paul Guess, Sr., who was deceased, to Paul Guess, Jr. It also shortened the distribution time from five years to one year.
Anna died on September 15, 1995. On September 26, 1995, Going petitioned the Lonoke County Probate Court to appoint her executrix and admit her mother’s July 14, 1995, will to probate. An order admitting the will to probate and appointing Going executrix was signed that same day. On October 5, 1995, Jefferson D. Guess, Jr., Wayne Guess, Lewis Guess, Martha Guess Blackwell, Doyle Guess, Jr., and Sherry Guess Kwaitkowski (hereinafter Guess et al.) filed pleadings opposing the probate of the will and alleging lack of testamentary capacity, undue influence, and procedural defects in the execution. They also opposed the appointment of Going as executrix, asserting that Going refused to bring an action to set aside the land-sale agreement involving her daughter, which they contended was invalid due to lack of mental capacity, undue influence, and inadequacy of consideration, and was obtained by fraud. Guess et al. prayed that Lewis Guess, Wayne Guess, and Martha Guess Blackwell be appointed co-administrators of the estate. After a two-day trial, the probate court upheld the validity of the will and denied Guess et al.’s petition to replace Going as executrix.
As a preliminary matter, we first take up the question of whether there is a final appealable order from which this appeal is taken. Relying on In re Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991), and on Ark. Code Ann. § 28-48-103(f) (1987), Going asserts that a petition for the appointment of an alternative executor or special administrator is not appealable. Central to Going’s argument is an assertion that “No where in Appellants’ Petition do they request the removal of Alice Going as Executrix.” We find no merit to this argument.
It is obvious from reading the Guess et alls petition that they were not seeking the appointment of a special administrator. A special administrator is vested with much more limited authority than a general administrator. See Ark. Code Ann. § 28-48-103; see also Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986). While perhaps the pleading could have been better drafted, it made clear to the opposing party and to the trial court that Guess et al wanted the appointment of a different administrator.
Moreover, the probate court treated the pleading as a petition to remove Going as executrix, and it ruled on it as such. The denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994) (construing Ark. Code Ann. § 28-1-116 (1987)). Accordingly, we hold that the decision of the probate court was a final appealable order and proceed to the merits of this case.
Guess et al. argue that the probate court erred in not finding that Going’s conflict of interest made her “unsuitable” to serve as executrix. They contend that this conflict arises from the fact that she drafted the land-sale agreement, and her “mother’s love” precludes her from challenging an agreement that was extremely favorable to her daughter because she “naturally would not want to deprive her daughter of such a benefit.” Moreover, Guess et al. argue that the probate court erroneously looked only to the purchase price for the property, and not the terms of the agreement or when the proceeds would become available to the heirs, in determining that Going had not wronged the estate in refusing to challenge the agreement. In support of this argument, Guess et al. urge this court to resort to decisions from foreign jurisdictions to find that a conflict of interest is grounds for removal of an administrator. This is clearly not necessary.
An executor of an estate occupies a fiduciary position and must exercise the utmost good faith in all transactions affecting the estate and may not advance his own personal interest at the expense of the heirs. Crider v. Simmons, 192 Ark. 1075, 96 S.W.2d 471 (1936); Warren v. Tuminello, 49 Ark. App. 126, 898 S.W.2d 60 (1995). Personal representatives are directed by Arkansas’s probate code to marshal all assets of the estate. Ark. Code Ann. § 28-49-101 (1987). It is clear that by not challenging the land-sale agreement, Going did not completely discharge her duty to marshal all assets of the estate.
In Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975), the supreme court required a probate court to remove an administra-trix who persistently acted in her own interests in order to deprive her stepchildren of their entitlement. We find the instant case analogous. Under the land-sale agreement, the heirs, almost all of whom are middle-aged or older, will likely not see the benefit of what would have been the estate’s greatest asset.
Under Ark. Code Ann. § 16-48-105 (a)(1) (1987), an administrator of an estate may be removed “When the personal representative becomes . . . unsuitable . . . [or] has failed to perform any duty imposed by law.” In In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995), the supreme court noted that the Arkansas probate code contains no definition of the term “unsuitable,” but quoted with approval, as it had previously in Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959), the definition of this term given by the Massachusetts Supreme Court in Quincy Trust Co. v. Taylor, 57 N.E.2d 573 (1944):
The statutory word “unsuitable” gives wide discretion to a probate judge .... Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, promptly, fairly, and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown.
319 Ark. at 581, 892 S.W.2d at 495.
Going admitted on direct examination that she was aware that all the other heirs wanted her to challenge the land-sale contract, but she refused to do it, in part, because it would affect her daughter. There can be no more explicit proof of a conflict of interest than this testimony.
Although this court reviews probate cases de novo, Warren v. Tuminello, supra, an order of a probate court will not be reversed unless clearly erroneous. Newton County v. West, supra. Clearly erroneous means that 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. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). We find that the probate court’s refusal to replace Going as executrix was clearly erroneous.
We note that the probate court’s decision to retain Going as administrator rested upon its determination that the land-sale agreement between Anna and the Wilsons was valid. However, when it did so, the probate court acted outside its jurisdiction. The probate court is a court of special and limited jurisdiction, and even though it is a court of superior and general jurisdiction within those limits, it has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976).
A probate court’s jurisdiction extends only to heirs, distributees or devisees, beneficiaries, and claimants against an estate. Id. A probate court lacks jurisdiction to determine contests over property rights and titles between the personal representative and third parties or strangers to the estate. Id., McDermott v. McAdams, 268 Ark. 1031, 598 S.W.2d 427 (Ark. App. 1980). Because the Wilsons were not heirs, distributees, devisees, or beneficiaries of or claimants against Anna’s estate, the probate court was without jurisdiction to determine the validity of the land-sale contract.
Furthermore, it is well settled that while a probate court may apply equitable principles, it lacks jurisdiction to grant equitable relief. Brown v. Imboden, 28 Ark. App. 127, 771 S.W.2d 312 (1989); Hilburn v. First State Bank, supra, McDermott v. McAdams, supra. The action to set aside the land-sale agreement between Anna Guess and strangers to her estate properly belonged in chancery court. See Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995); Merrell v. Smith, Special Admr., 226 Ark. 1016, 295 S.W.2d 624 (1956); Sykes v. Campbell, 221 Ark. 858, 256 S.W.2d 320 (1953); Petree v. Petree, 211 Ark. 654, 201 S.W.2d 1009 (1947); Beller v. Jones, 22 Ark. 92 (1860); Kelly’s Heirs v. McGuire, 15 Ark. 555 (1854). Any attempt to extend probate court jurisdiction without specific authority is void. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).
Accordingly, we reverse and instruct the probate court to appoint a suitable administrator for the estate of Anna Elizabeth Guess.
Reversed and remanded.
Robbins, C.J., and Bird, J., agree. | [
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David M. Glover, Judge.
Appellant Phillip Hamm, who worked with the youth in his church, was originally charged with two counts of sexual assault in the second degree involving two different young girls under the age of fourteen. The cases were severed for trial. The felony information with respect to the child in the instant case, M.C., was subsequently amended. The amended information charged appellant with rape, alleging that he engaged in sexual intercourse or deviate sexual activity with another person who was less than fourteen years of age. He was tried by a jury and found guilty of the offense of rape. Appellant was sentenced to seventeen years in the Arkansas Department of Correction. This appeal followed.
Appellant raises seven points of appeal. We are required to address challenges to the sufficiency of the evidence first due to double-jeopardy considerations. Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 359 (2004). In Points III and IV, appellant challenges the sufficiency of the evidence, contending that the trial court erred in denying his motion for directed verdict and arguing, first, that “due to all of the conflicts and weaknesses the evidence was insufficient to support a conviction,” and, second, that the State did not prove that the sexual conduct occurred during the time frame alleged in the felony information, i.e., from December 2001 through February 2002. Appellant’s challenges to the sufficiency of the evidence were not properly preserved for this court’s review because he did not renew his motion at the close of all of the evidence.
Our supreme court explained in King v. State, 338 Ark. 591, 595, 999 S.W.2d 183, 185 (1999):
Our procedure rules require that a motion for a directed verdict be brought at the “conclusion of the evidence presented by the prosecution and again at the close of the case ...” Ark. R. Crim. P. 33.1. Close of the case means close of the whole case, in other words, after the last piece of evidence has been received. As we stated in Rankin supra “Even if a defendant renews his motion at the close of his case-in-chief, the requirement of the rule to renew the motion at the “close of the case” obligates the defendant to renew the motion again at the close of any rebuttal case that the State may present in order to preserve the sufficiency issue for appeal.”
In King, the appellant did not move for a directed verdict after the State’s rebuttal testimony; thus, there was no motion for a directed at the close of the whole case, and the supreme court held that appellant had thereby failed to preserve the question of sufficiency of the evidence.
The same is true here. Appellant renewed his motion for a directed verdict, but he presented surrebuttal evidence and failed to again renew his motion at the close of that evidence. Consequently, the motion for directed verdict was not made at the close of all of the evidence, and these issues were not preserved for this court’s review.
Even if this court were to address these issues, they would not provide grounds for reversal because there was substantial evidence to support the verdict. The victim’s testimony alone would be sufficient regarding the actual rape. See Eaton v. State, 85 Ark. App. 320, 151 S.W.3d 15 (2004) (testimony of rape victim alone may constitute substantial evidence to support a conviction for rape). In addition, the victim testified that she visited appellant’s house on a regular basis from July 2001 to January 2002 and that the offenses occurred during those visits. This testimony supports the time frame alleged in the information. See Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003) (generally, the time a crime is alleged to have occurred is not of critical significance, unless the date is material to the offense, and this is particularly true with regard to sexual crimes against children).
We now turn to Point VI, which requires us to reverse and remand this case for a new trial. For this point of appeal, appellant contends that the trial court abused its discretion in allowing Robbie Sullivan to testify about an incident that she observed at a church “lock-in” when appellant had a young girl, who was not identified as the victim in this case, sitting astraddle of his pelvic area while he was lying down on an air mattress. We conclude this issue has merit.
At trial, the State called Robbie Sullivan, a member of the church attended by appellant and by M.C. Ms. Sullivan testified that she had the opportunity to see appellant in the children’s department at the church and to see how he responded and interacted with children. She specifically testified about an incident at a back-to-school “lock-in” that was held at the church in August 2001. She stated that she observed something that made her concerned about appellant’s behavior. She explained that during some unstructured time, the kids were pulling out their sleeping bags, and appellant pulled out a full-size air mattress. She said that she
glanced over, and he had a little girl on the air mattress with him, and I can show you how she was being held. He was lying on the air mattress on his back, and he had the little girl straddling his pelvic area, and at that time I pulled the youth minister aside, and told him it was not appropriate, and I was very concerned.
She further testified that the youth minister separated the girls and boys to watch a video and to settle down. Ms. Sullivan stated that appellant brought his air mattress over, and a little girl named N.C. and one of her friends used the air mattress, and appellant sat in a chair beside them until she, Ms. Sullivan, went to sleep.
Appellant objected to Ms. Sullivan’s testimony based upon Rule 404(b). The trial court overruled the objection. In his argument to this court, appellant maintains that the trial court abused its discretion in doing so. We agree.
Rule 404(b) of the Arkansas Rules of Evidence provides:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence offered under this rule must be independently relevant, thereby having a tendency to make the existence of any fact that is of consequence to the determination of guilt more or less probable than it would be without the evidence. Henderson v. State, 360 Ark. 356, 201 S.W.3d 401 (2005). Moreover, the exceptions to inadmissibility that are listed in Rule 404(b) are not exclusive but, instead, are representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Id.
When the charge concerns the sexual abuse of a child, evidence of other crimes, wrongs, or acts, such as sexual abuse of that child or other children, is admissible to show motive, intent, or plan pursuant to Ark. R. Evid. 404(b). Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004). This exception to Rule 404(b) is known as the pedophile exception, which provides:
When the alleged crime is child abuse or incest, we have approved allowing evidence of similar acts with the same or other children in the same household 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.
Parish v. State, 357 Ark. 260, 268, 163 S.W.3d 843, 847 (2004). Such evidence is admissible to show the familiarity of the parties and antecedent conduct toward one another and to corroborate the testimony of the victim. Id. Further, such evidence helps to show the depraved sexual instinct of the accused. Id. The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Id.
Here, Ms. Sullivan’s testimony clearly does not fall within the pedophile exception to Rule 404(b). The acts that M.C., the victim in the instant case, reported involved appellant touching her breasts and pubic area and digitally penetrating her vagina during visits to appellant’s house. Ms. Sullivan’s observations at the church lock-in involved a child, who was not identified as the victim in the instant case, sitting astraddle of appellant’s pelvic area while he was lying down at a church function. While Ms. Sullivan was appropriately concerned about appellant’s interaction with the child in that regard, we have determined that the observed conduct was not similar enough to that reported by M.C. to be “helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship,” and therefore it does not fall within the pedophile exception to Rule 404(b)’s prohibition.
Similarly, we have also determined that Ms. Sullivan’s testimony was not relevant to show any of the items listed in Rule 404(b) with respect to the abuse of M.C. The State contends that Ms. Sullivan’s testimony bore independent relevance because it demonstrated appellant’s intent, plan, and preparation to commit sexual offenses against minor girls; that the State’s theory at trial was that appellant would gravitate toward young girls at church, befriend them, and permit them to come to his residence, which was filled with activities appealing to children; and that while the children were in that environment, he would molest them. The State further contends that the challenged testimony of Ms. Sullivan supported the theory that appellant used his association with the children’s ministry at his church to find victims.
The problem with the State’s position is that, while Ms. Sullivan was concerned about appellant’s interaction with the child at the lock-in, the conduct itself did not amount to a sexual offense, and in fact could have been entirely innocent. In addition, there was no evidence that the child who sat astraddle of appellant at the lock-in was ever at appellant’s residence or that she was ever molested by appellant. Consequently, Ms. Sullivan’s testimony amounted to evidence of the very type that Rule 404(b) was designed to prohibit. That is, it was evidence of another act that was admitted to prove the character of appellant in order to show that he acted in conformity therewith. The testimony did not provide proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident concerning the rape of M.C., the victim in the instant case.
Furthermore, we cannot say that the error in allowing the testimony was without prejudice to appellant. The proof in this case essentially amounted to a swearing match. Ms. Sullivan’s testimony, as an objective outsider, might well have swayed the jury. We are therefore forced to reverse and remand on this issue.
In light of our remand for a new trial, it is only necessary to address one of appellant’s remaining points of appeal, Point VII, because it is likely to arise upon retrial. Under this point, appellant contends that the trial court abused its discretion when it allowed the State to introduce the transcripts of Ms. Tollece Sutter’s interviews with M.C. We find no abuse of the trial court’s discretion in admitting these transcripts.
In cross-examining Ms. Sutter, appellant focused on the interview technique and tried to portray Ms. Sutter as “trumping up” the case against him by asking leading and suggestive questions. The State recalled the investigator and moved to introduce the transcripts to put the questions into context (Ark. R. Evid. 106) and as a recorded recollection (Ark. R. Evid. 803). The trial court allowed them to be introduced and published. This was not an abuse of discretion. Rule 106 of the Arkansas Rules of Evidence provides:
Whenever a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.
This rule is directed toward preventing a misleading impression that may be created by taking a statement out of context. Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992). The right to put in the remainder of a statement as part of the opponent’s case is subject to the general principles of relevancy. See id. See abo 1 J. Weinstein, Weinstein’s Evidence § 106[02] (1991). The interview transcripts were properly admitted to rebut appellant’s attempt to show that Ms. Sutter exerted improper influence on M.C. during the interview process and to give proper context.
In addition, in cross-examining M.C., appellant focused on comparing her trial testimony and the interview testimony, referring expressly to portions of the interview and the fact that she did not recount the digital penetration until later, inferring that she added the digital penetration because she was afraid that appellant would be acquitted if she did not expand her allegations. Rule 801 (d) (1)(ii) of the Arkansas Rules of Evidence provides:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement By Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is... (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive,....
Thus, the interview transcripts were also properly admitted as a prior consistent statement of a witness offered to rebut a charge of recent fabrication. We hold that the trial court did not abuse its discretion in admitting the transcripts.
The complexion of the issues raised in the remaining Points I, II, and V, if they arise at all, will very likely change upon retrial. Consequently, any opinion that we offer on these issues would be purely advisory, and we do not issue advisory opinions. See K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000).
Reversed and remanded.
Robbins and Neal, JJ., agree.
SUPPLEMENTAL OPINION ON DENIAL of REHEARING SEPTEMBER 28, 2005
REPORTER’S Note: Petition for rehearing was denied September 28, 2005, by per curiam order. Robbins, Griffin, Glover, and Neal,JJ., agree; Bird andVaught,JJ., dissent. | [
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John B. Robbins, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission, which affirmed and adopted the opinion of the Administrative Law Judge (ALJ). The Commission denied benefits on a claim submitted by appellant Woodrow Swaim to his employer, appellee Wal-Mart Stores, Inc. Swaim argues on appeal that the Commission’s decision, finding that his right-foot fracture was idiopathic and non-compensable, is not supported by substantial evidence. We reverse and remand for further proceedings.
When reviewing a decision from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Death & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. See id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id. Where the Commission denies a claim because of the claimant’s failure to meet his 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. Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000); Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992).
In the case at bar, the Commission issued a brief opinion, which affirmed and adopted the ALJ’s opinion as the decision of the Commission, which is permitted under Arkansas law. See Odom v. Tosco Corp., 12 Ark. App. 196, 672 S.W.2d 915 (1984). In so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. See ITT/Higbie Mfg. v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991). Therefore, for purposes of our review, we consider both the ALJ’s order and the Commission’s majority order. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003).
In this case, there were multiple issues to be litigated, but the primary and controlling issue was whether the fracture to Swaim’s right foot was idiopathic in nature and non-compensable. The facts giving rise to the claim were not in dispute. Swaim, a diabetic man in his fifties, worked for Wal-Mart since 1992 as a stocker. He worked first in the automotive department, but he was ultimately moved to the produce section. By April of 2000, he had routinely stocked the produce section on Sundays for a couple of years, often using a pallet pulled by a jack to move the produce from the refrigerated section of the store out into the shopping area.
On Sunday morning, April 9, 2000, he was walking backward while pulling a heavily-loaded pallet by the jack attached to it when he felt a “pop” in his right foot. Swaim said he did not do anything differently while pulling the pallet that day, nor did he step off of or onto anything or twist his foot; he was in the normal course of walking backward. The pallet carried “a lot of produce” that day, although there were times when it had more and times when it had less. Swaim stated that pulling the heavy pallet put a lot of strain on his calves and feet, but he did not know why it popped that particular day as opposed to any other day.
Swaim took his shoe off to look, seeing “a little ‘A’ sticking up” on top of his foot, and a dime-sized blue circle on bottom. Though it hurt, Swaim continued to work. When a supervisor arrived at the store later that morning, Swaim reported the incident. On April 19, 2000, Swaim presented to Dr. Greg Neaville, his internal medicine doctor at the White River Medical Center, where he complained that his foot was hurting. X-rays revealed that he had a fracture in his right foot at the fifth metatarsal (the small toe). When he and his employer were informed that the toe was broken, Swaim was taken off the floor and placed on light duty.
Swaim testified that he was diagnosed with diabetes in 1990 and that he knew the dangers associated with diabetes. He confirmed that he and his wife checked his feet twice daily since 1993 or 1994. Swaim was hospitalized twice in the 1990’s to treat diabetic foot ulcers, and he had undergone a single-toe amputation on his left foot because of poor healing.
With regard to the right-foot fracture, the medical records indicated that Swaim was referred to his regular treating orthopedic surgeon in Batesville, Dr. Jeff Angel, who recommended surgery to set the bone. Swaim was reluctant to have surgery, but he denied that he refused surgery. Another orthopedic surgeon, Dr. Lowery Barnes, provided a second opinion, and Dr. Barnes agreed that given Swaim’s substantial improvement and lack of pain by June 2000, surgery was not mandated. Swaim returned to see Dr. Barnes for follow-up in July and September 2000; appellant denied having any foot pain. During this time, Swaim was regularly wearing a special shoe designed for diabetic feet. He continued to work light duty, missing no work.
On February 8, 2001, Swaim presented to the emergency room with a new ulceration on a toe of his right foot. Although the infected area was drained and cleaned, it resulted in amputation of the fifth toe on February 10, 2001. Appellant was not discharged from the hospital until February 21, 2001. More problems with drainage persisted, and on June 2, 2001, the fourth toe was amputated.
An independent medical evaluation was conducted by Dr. Ruth L. Thomas in January 2003. Dr. Thomas opined that the two-toe amputations on his right foot were related to his diabetic neuropathy and poor circulation, not his April 2000 fracture at work. Drs. Angel and Neaville wrote supportive letters on behalf of appellant, describing his medical history and relating the foot ulceration in February 2001 and the complications that followed to the fracture that never properly healed.
The ALJ denied workers’ compensation benefits for this claim, concluding that the right-foot fracture was an idiopathic injury that did not arise out of his employment. The rest of the issues presented for litigation were never reached because of this finding. Swaim appealed to the Commission, which affirmed and adopted the ALJ decision. This appeal followed.
Appellant had the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002). Arkansas Code Annotated section 11-9-102(4)(A) (Repl. 2002) provides that “compensable injury” means “an accidental injury causing internal or external physical harm . . . arising out of and in the course of employment. ... An injury is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence [.]” “Arising out of the employment” refers to the origin or cause of the accident, while the phrase “in the course of the employment” refers to the time, place and circumstances under which the injury occurred. See Little Rock Convention & Visitors Bur. v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997); Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987).
An idiopathic injury is one whose cause is personal in nature, or peculiar to the individual. See Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996); Little Rock Convention & Visitors Bur. v. Pack, supra; Moore v. Darling Store Fixtures, supra. Injuries sustained due to an unexplained cause are different from injuries where the cause is idiopathic. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). Where a claimant suffers an unexplained injury at work, it is generally compensable. Little Rock Convention & Visitors Bur., supra. Because an idiopathic injury is not related to employment, it is generally not compensable unless conditions related to the employment contribute to the risk of injury or aggravate the injury. Id. See also Crawford v. Single Source Transp., 87 Ark. App. 216, 189 S.W.3d 507 (2004).
Appellant contends on appeal that although he suffers from diabetes, the foot fracture was neither idiopathic nor unexplained but was a compensable specific-incident workplace injury. We must agree.
Appellant relies on Crawford v. Single Source Transp. Fidelity & Cas. Ins. Co., 87 Ark. App. 216, 189 S.W.3d 507 (2004), to support his argument. In that case, Mr. Crawford, a man in his late fifties, was exiting the cement truck he drove for his employer. He stepped down two steep steps while holding onto the steering wheel, and as his left foot reached the ground, Crawford’s knee gave way or buckled. As a result, appellant fell to the ground and began to feel pain in his knee, and it swelled and hurt after the fall. Resulting surgery evidenced that Crawford had a both a tear of the medial meniscus and osteoarthritis in his left knee. The Commission denied benefits, but on appeal we agreed with appellant’s argument that his injury was neither idiopathic nor unexplained but rather that he sustained a specific-incident injury. In reversing and remanding for benefits, we held that the injury was not simply personal in nature where it was caused while he attempted to exit his employer’s vehicle from an elevated position, which employment conditions contributed to his accident. See id. We also held that Crawford’s injury was not unexplainable because his testimony fully explained the circumstances surrounding his fall. See id.
As applied to the present appeal, Swaim’s fracture was not unexplained because his testimony fully explained the circumstances surrounding the morning when he felt his foot “pop.” The question is narrowed to whether the fracture was idiopathic, and if so, whether the employment contributed to the risk or increased the effect of the injury. Little Rock Convention & Visitors Bur., supra. We hold that there is no substantial evidence to support the finding that this fracture was idiopathic or that the work conditions did not contribute to the risk that a fracture would occur.
Appellee relies on the case of Whitten v. Edward Trucking/Corporate Solutions, 87 Ark. App. 112, 189 S.W.3d 82 (2004), to support its contention that there is a substantial basis for the denial of benefits. Therein, Mr. Whitten fell while at work, delivering fuel tickets to his employer at the trucking company’s office. Specifically, Whitten walked up the stairs to enter the office, reached for the door, felt pain in his back, and fell to the ground. Whitten did not trip or stumble and he was not carrying anything heavy at the time. Whitten had three known medical conditions or events predating his injury on that day: a stroke or cerebrovascular accident; a herniation at L3-4; and a compressive lesion on his thoracic spine. One doctor opined that the lesion may have caused his fall. The ALJ denied benefits, finding that the fall was idiopathic, caused by one or more of the medical conditions particular to Whitten, not precipitated or aggravated by his job. The Commission affirmed and adopted the ALJ decision. On appeal to us, we examined the relevant law, determined that there was substantial evidence to support the conclusion that this was an idiopathic and not unexplained fall, and we affirmed the denial of benefits. We noted the case of ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998), which held that though a fall from scaffolding was idiopathic, in that it was caused by the effects of a condition related to alcohol-withdrawal, but held that it was compensable because the risk associated with working high atop scaffolding increased the dangerous effect of the fall.
Using these precedents, we hold that there is no substantial evidence to support that this was an idiopathic injury, particular to Swaim. In fact, we see no evidence, medical or otherwise, to support a conclusion that Swaim’s diabetic condition predisposed him to bone fractures. In addition, the ALJ failed to make any factual findings beyond the idiopathic injury itself, whereas the law does not preclude compensability if the risk of such an injury is increased by working conditions, or if working conditions aggravate the effect of the idiopathic injury. Even were we to hold that substantial evidence supported the idiopathic-injury finding, we would not affirm a finding that the work conditions did not contribute to the risk of such an injury. Swaim’s job duties required that he walk and pull a produce-laden pallet that put stress on the feet, and thus the work increased the risk of fracture.
In summary, this was a specific-incident injury arising out of and in the course of the employment. The finding that this was a non-compensable idiopathic injury is not supported by substantial evidence.
We reverse and remand for proceedings consistent with this opinion.
Glover and Neal, JJ., agree.
The named appellant is technically Betty Swaim, acting in her capacity as adminis-tratrix of the estate ofWoodrow Swaim, who died after the ALJ entered his decision but prior to the submission of this appeal to our court. We will refer to Mr. Swaim as the appellant for the sake of clarity.
If the foot fracture was determined to be compensable, the remaining issues included (1) whether the condition resulting in amputation of Swaim’s right toes was causally related to his employment, (2) whether Swaim was rendered permanently and totally disabled, and (3) whether the Second Injury Fund bore any liability regarding this claim. Those issues were rendered moot by finding that the fracture was not compensable. | [
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JOHN DAN KEMP, Chief Justice
[ 1 Appellant Kenneth Dale Ramirez entered a negotiated plea of guilty to first-degree murder and four counts of aggravated assault, and in accord with the State’s recommendation, the trial court imposed consecutive sentences of 480 months’ imprisonment on the murder charge and 72 months’ imprisonment on each of the assault charges, for an aggregate term of 768 months’ imprisonment. More than seven years after the judgment had been entered, Ramirez filed in the trial court a pro se petition for writ of error coram nobis. The court denied and dismissed the petition without a hearing. Ramirez brings this appeal, asserting that the trial court erred in denying his petition without a hearing and in failing to find that his plea was coerced. Ramirez did not state a basis in his petition to support issuance of the writ in that he failed to allege facts to | ¡.support a finding of coer-: cion. Accordingly, we affirm the denial of coram nobis relief without a hearing.
Ramirez claimed in the petition that he was coerced by trial counsel, who exploited his fear of being given the death penalty and incorrectly assured him that he would be eligible for work release and furloughs if he accepted the plea agreement. Ramirez additionally argued that the State’s evidence against him was insuf ficient to support the charges. He asserted that he brought the petition after he had belatedly learned that he would not be eligible for work release or furloughs. The trial court reviewed the petition,, plea-hearing transcript, and plea agreement, and it concluded that Ramirez had failed to support his claim of coercion with a factual basis and that the petition was without merit.
The standard of review for the denial of a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Scott v. State, 2017 Ark. 199, 520 S.W.3d 262. An abuse of discretion happens when the trial court acts arbitrarily or groundlessly. Id. The trial court’s findings of fact on which it bases its decision to grant or deny the petition for writ of error coram nobis will not be reversed on appeal unless they are clearly erroneous or clearly against the preponderance of the evidence. Smith v. State, 2017 Ark. 236, 523 S.W.3d 354. There is no abuse of discretion in the denial of error coram nobis relief when the claims in the petition are groundless. Id. A hearing is not required if the petition clearly has nó merit, either because it fails to state a cause of action to support issuance of the writ, or because it is clear from the petition that the petitioner did not act with dué diligence. Scott, 2017 Ark. 199, 520 S.W.3d 262.
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. Faulkens v. State, 2017 Ark. 291, 2017 WL 4837338. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833. 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. Id.
|4When this court reviews a trial court’s ruling on a coram nobis petition on appeal, the appellant is limited to the scope and nature of the arguments he or she made below that were considered by the trial court in rendering its ruling, and we therefore limit our consideration on appeal to those claims, ánd any factual support- for those claims, that were contained in the petition filed in the trial court. Smith, 2017 Ark. 236, 523 S.W.3d 354.
Ramirez argued in his. petition and on appeal that he was coerced by his attorney, who advised him that a jury trial “was not an option” because Ramirez had confessed to shooting the victim, Palmore; there were several individuals who had witnessed the s'hooting; and the defense had no witnesses. Ramirez’s claim is that he was pressured by counsel into entering a plea. His attorney indicated a plea deal was “the only option” because the evidence against him was overwhelming and that the likely outcome of a trial was conviction and the death penalty. Ramirez maintains that counsel had also explained that, with a lesser sentence, Ramirez would be eligible for work release and furloughs in, prison, He asserts that this representation was important, to his decision to accept the plea agreement and that he would have gone to trial had it not been made.
This court has held that, to rise to the level of coercion to warrant issuance of the writ, allegations that a plea was coerced must demonstrate the compulsion of a free agent by physical, moral, or economic force or threat of physical force. Id. Mere pressure to plead guilty occasioned by the.fear of a more severe sentence is not coercion. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. Ramirez’s factual basis for his allegations of pressure in the form of misrepresentations by counsel does not support a cognizable claim of | ¿coercion in coram nobis proceedings. This court has recognized that coram nobis proceedings do not provide relief to a petitioner who, although he couches his claims in terms of a coerced guilty plea,' actually bases his claims on allegations of ineffective assistance of counsel and trial error. Green v. State, 2016 Ark. 386, 502 S.W.3d 524. Ramirez’s allegation that counsel incorrectly advised him concerning his eligibility for early release was the type of claim that should have been raised under Arkansas Rule of Criminal Procedure 37 and not in coram nobis proceedings; White v. State, 2015 Ark. 151, 460 S.W.3d 285.
Ramirez’s final claim for issuance of the writ is that he is actually innocent of the offense to which he pleaded guilty. This also does not establish a ground for the writ because the claim constitutes a direct attack on the judgment. Williams v. State, 2017 Ark. 313, 530 S.W.3d 844. The trial court did not err in finding that a hearing was not required because the petition clearly had no merit in that it failed to state a cause of action to support issuance of the writ. Despite Ramirez’s allegations to the contrary, there was no need for the trial court to consider evidence of his attorney’s ineffective assistance. Establishing that fact would not, as noted above, provide a basis for the writ.
Affirmed.
. Ramirez also alleged in the petition that his sentence on the murder charge was illegally enhanced by using the assault charges. On appeal, he concedes, however, that the murder sentence was within the statutory range, and he does not reassert the argument that the sentence was illegally enhanced. All argu- • ments made below but not raised on appeal are abandoned. Carter v. State, 2015 Ark. 166, 460 S.W.3d 781.
. The record includes the transcript of the plea hearing. It does not include the plea agreement that Ramirez signed, but Ramirez admitted in the petition that none of the documents from the file that he reviewed indicated that the State had agreed' that he should be eligible for work release and furloughs as a condition of the plea agreement. For the reasons set out in this opinion, the disposition of the matter does not require a review of the signed agreement,
.A petition for writ of error coram nobis is filed directly with the trial court when the judgment of conviction was entered on a plea of guilty or nolo contendere. Thacker v. State, 2016 Ark. 350, 500 S.W.3d 736 (citing Noble v. State, 2015 Ark. 141, 460 S.W.3d 774). | [
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Olly NEAL, Judge.
Appellant, James Meadors, appeals from an order of the Clark County Chancery Court granting a motion to dismiss to appellee, Arkadelphia Public School District, under Ark. R. Civ. P. 12(b)(6), and finding that Meadors’s complaint did not activate the provisions of the Teacher Fair Dismissal Act of 1983, Ark. Code Ann. § 6-17-1501 et seq. On appeal, Meadors argues that the removal of his position as head football coach constituted a nonrenewal of his 1998-1999 teacher’s contract and that the trial court erred in granting appellee’s motion to dismiss. We affirm.
The material facts in this case involve three teaching contracts entered between the appellee and Meadors during the years of 1996-1999. During the 1996-1997 school year, Meadors’s contract with the District provided that Meadors would perform the following services:
Primary responsibility Teaching and other school related duties
Related responsibilities Head football coach — $3,000
The contract further stated that Meadors would receive an annual salary of $37,022 and that he would be subject to transfer or reassignment at the direction of the superintendent. Meadors’s 1997-1998 teaching contract stated that appellant would perform the following specific duties:
Primary responsibility Teaching and other school related duties
Related responsibilities Coach=$3,000
The contract contained the same provision as the 1996-1997 contract that “teachers, principals, and other staff members are subject to transfer or reassignment at the recommendation of the superintendent.” During the 1997-1998 school year, Meadors remained as head football coach and received a salary of $37,786.99.
By memorandum dated April 24, 1998, appellant was notified that the school board had voted on April 21, 1998, to reemploy him for the 1998-1999 school year and that he would be reassigned from head football coach to the junior high school football coach. Meadors was also informed that his annual salary would not be reduced.
On September 11, 1998, Meadors filed an amended and substituted complaint, alleging that his duties under the 1998-1999 teaching contract were vastly different and inferior to those duties provided in his 1997-1998 contract. Meadors alleged that the duties outlined in the 1998-1999 contract increased his work hours, which resulted in a per diem loss of his income, and caused damage to his reputation and standing in the community. The language found in the 1998-1999 contract was essentially the same as the language contained in Meadors’s 1997-1998 contract. On September 17, 1998, appellee filed a motion to dismiss appellant’s complaint on the basis that appellant failed to state a claim upon which relief could be granted, pursuant to Ark. R. Civ. P. 12(b)(6).
A hearing was held December 18, 1998, to address the issue of whether the actions taken by appellee had activated the provisions of the Teacher Fair Dismissal Act. In finding that the Act had not been triggered, the trial court noted that Meadors was still assigned to football coaching duties and that he would be working the same number of days under 1998-99 contract that he worked under 1997-1998 contract. The trial court further found that Meadors’ salary had not decreased under the 1998-1999 contract. Thereafter, the trial court granted appellee’s motion to dismiss.
When reviewing a trial court’s ruling on a motion to dismiss under Ark. R. Civ. P. 12 (b) (6), the appellate court treats the facts alleged in the complaint as true and views them in the light most favorable to the party who filed the complaint. Ghegan v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999).
Appellant argues that appellee’s action in removing him from the position of head football coach constituted a nonrenewal, and not a reassignment. Thus, he argues that the procedural and substantive protections of the Teacher Fair Dismissal Act were applicable.
The Teacher Fair Dismissal Act provides in pertinent part:
Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument, unless:
(1) By May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed;
(2) During the period of the contract or within ten (10) days after the end of the school year, the teacher shall send by certified or registered mail to the president, vice-president, or secretary of the board of directors of the school district, with a copy to the superintendent, or may deliver in person to the president, vice-president, or secretary of the board of directors of the school district, with a copy to the superintendent, his or her resignation as a teacher; or
(3) The contract is superseded by another contract between the parties.
Arkansas Code Annotated § 6-17-1506(a) (Repl. 1999).
In this case, the District’s proposed 1998-1999 Teacher Contract constituted a reassignment of appellant’s duties, and not a nonrenewal. The 1998-1999 contract recited the same terms and salary as the contract for the previous year, and it clearly stated that teachers were subject to transfer or reassignment at the recommendation of the superintendent. Appellant argues that the 1998-1999 contract was not on the same terms as his contracts from previous years because his head-football-coach position was nonrenewed. In support of this argument, appellant relies on the facts set out in Western Grove School Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). However, that case is distinguishable because Terry involved a high school teacher/coach whose salary was reduced by $6,000 and whose coaching responsibilities were totally divested. In this case, appellant’s salary did not decrease and his coaching duties were merely reassigned to the junior high school football program. Further, Meadors signed the 1998-1999 contract on July 8, 1998, following his reassignment to junior high football coach, and he endorsed the language of “coach” found in the 1998-1999 contract, which was the same language contained in the 1997-1998 contract. In McCaskill v. Fort Smith Pub. Sch. Dist., 324 Ark. 488, 921 S.W.2d 945 (1996), the Arkansas Supreme Court held that when a teacher signs a superseding contract following a reassignment or nonrenewal, the notice requirement of the Teacher Fair Dismissal Act no longer applies. Id. at 433, 921 S.W.2d at 948.
Upon review of the record, we conclude that the trial court did not err in granting the motion to dismiss and that the Teacher Fair Dismissal Act was not applicable.
Affirmed.
Robbins, C.J., and Pittman, Jennings, and Stroud, JJ., agree.
Meads, J„ dissents. | [
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PHILLIP T. WHITEAKER, Judge
liThe appellant, First United Methodist Church of Ozark (“the church”), appeals the decision of the Franklin County Circuit Court granting separate motions for summary judgment filed by the appellees, Harness Roofing, Inc. (“Harness”); K & K Electric, Inc. (K & K); and Mid-Continental Restoration Co., Inc. (MCR). We reverse'and remand as to separate appellees K & K and MCR. We affirm as to separate appellee Harness.
A review of the facts and procedural history, of the litigation is relevant to our determination of the issues raised on appeal. In the summer of 2009, the church began a renovation of its building without the services of a general contractor. MCR was the painting Land drywall contractor; K & K was the electrical contractor. At some point, Harness was called in to give an estimate regarding a leak in the roof. On Sunday, July 11, 2010, a fire heavily damaged the church. The fire department concluded that both the cause of the fire and the origin of the fire were undetermined. The church’s expert, however, concluded that the probable cause of the fire was a halogen lamp that had been left on near combustible material in the attic.
The ■ church filed suit against K & K, MCR, and Harness. The church alleged that K & K was the owner of the halogen lamp and that both MCR and Harness had used the lamp close to the time of the fire. The church further alleged that all three contractors were negligent in leaving the lamp on, in leaving the lamp near combustible materials, and in not checking to make sure the lamp had been turned off. The contractors filed separate answers denying liability. Eventually, K & K, Harness, and MCR each filed separate motions for summary judgment. Although each contractor asserted that it did not owe a duty to the church, each described the nature of the duty differently.
In its motion for summary judgment, K & K argued that it did not owe a contractual duty to the church nor a common-law duty , to inspect or ensure a hazard-free worksite. The circuit court granted K & K’s motion, finding that K & K did not owe any duty to the church to monitor the conduct of third parties, including, other contractors, using its equipment.
lain its motion for summary judgment, Harness asserted that it had no duty to operate or interfere with equipment owned by one contractor and used by another contractor. The circuit court granted summary judgment to Harness, finding that Harness did not owe a duty to the church to ensure that the halogen lamp was in the “off’ position or that it did not' otherwise create a hazard.
Finally, in its motion for summary judgment, MCR argued that it did not have any duty to control any third party who had allegedly left the halogen lamp on. The court found that MCR owed neither a duty to inspect the job site to ensure that there were no potential fire hazards nor a duty .to supervise the conduct of other contractors to ensure that they did not create a potential fire hazard. The church timely appealed the orders granting summary judgment.
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 evidentiary items presented by the moving party in support of the motion leave a material fact unanswered, Id. We view the evidence in the light most favorable to the party 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.
| ¿The first issue for our review is the circuit court’s conclusion that none of the appellees owed a duty of care to the appellant. Because the underlying causé of action is based in negligence, the existence of a duty of care is crucial. Our supreme court recently set out the framework for analyzing a negligence case, stating that “[u]nder 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 cause of the plaintiffs injuries.” Yanmar Co. v. Slater, 2012 Ark. 36, at 16, 386 S.W.3d 439, 449 (internal citations omitted). 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 264 (2002).
On appeal, the church argues that the three contractors owed a duty of care. We agree. As contractors, K & K, MCR, and Harness are each held to both the standard of care of the contracting industry as, well as to the standard of care of a reasonably prudent person. See Dixon v. Ledbetter, 262 Ark. 758, 760, 561 S.W.2d 294, 295 (1978); Henderson, v. Harbison, 2012 Ark. App. 657, 425 S.W.3d 33, The standard of care for the industry is that degree of skill and care ordinarily possessed and used by contractors doing work similar to that shown by the evidence. Henderson, supra. Where a contractor is held to both custom-and-industry standards and to the standard that would be followed by a reasonably prudent man, the more exacting standard will control. Smith v. Aaron, 256 Ark. 414, 416, 508 S.W.2d 320, 321 (1974). Based upon our de novo review, we conclude that the circuit court’s finding that K & K, MCR, and Harness owed no duty to the church is in error.
The next issue for our review is whether there exist genuine, material issues of fact to be litigated. As to all three contractors, the court found that the church lacked evidence as to who turned the halogen lamp on, who did or did. not turn the lamp off, and who was the last person out of the attic on the last workday before the fire. The court further found that the - church had failed to meet proof with proof to demonstrate that there was a genuine issue of material fact as to the proximate cause of the fire. As to K & K and MCR, we find that genuine, material issues of fact exist to be litigated.
The following facts are admittedly not in dispute. The church contracted with both K & K and MCR to perform subcontractor services -on the renovation of its building. During the course of its services, K & K placed a halogen lamp that it owned in the attic of the church. During the course of providing its services, MCR suspected that a leak in the roof was impeding the completion of its work. Harness was called on to inspect the leak and provide an estimate on any repairs to the roof. Prior to the inspection of the suspected leak, an employee of MCR requested the use of .a light in the attic from K & K. Joe Neden, an MCR employee, admitted- that he plugged in an extension cord to- check the leak. Both Neden and Mike Jones, an employee of Harness, entered the attic to inspect the leak. Curtis Kimsey, an employee of K & K, saw Neden plug in the extension- cord before going up into the attic with-Jones to inspect the leak. Kimsey later entered the attic to make sure that a junction box he |fihad installed was not-in the way. The lamp was already on when he went into the attic. It is undisputed that the lamp was still illuminated when Neden and Jones left the attic.
Based upon this evidence, the circuit court’s conclusion- that the .church lacked any evidence to show who turned on the halogen lamp was clear error. Admittedly, the church’s pastor testified in his- deposition that he did not .have any information about.who plugged in the extension cord. The circuit court,,however, is not confined to considering affidavits filed with the motion but may search and review “the entire record, including all pleadings and exhibits filed in the case.” Purser v. Corpus Christi State Nat’l Bank, 258 Ark. 54, 59, 522 S.W.2d 187, 190 (1975) (emphasis added); Marshall v. Turman Constr. Corp., 2012 Ark. App. 686, at 2, 2012 WL 6045442.
While the above facts are not in dispute, there are issues of material facts that are in dispute. There are disputed, material issues of fact that pertain to the duty owed by MCR. These include on what day the inspection occurred and whether the lamp was turned off at the completion of the inspection.- MCR claims that the day of the inspection was on a Monday, Other evidence from the church, Harness, and E & K, however, all indicate that the day of the inspection was on a Thursday. This disputed issue of fact is material because MCR takes the position that it unplugged the extension cord at the completion of its inspection on Monday. The fire did not occur until Sunday, six days later, and there was evidence that the cord was still plugged in after the fire. Whether the inspection occurred on Monday or Thursday is relevant in light of this conflict. This evidence • clearly implicates MCR’s duty to [7use ordinary care during its use of the halogen lamp and whether it breached that duty by failing to turn the lamp off after using it.
Moreover, there are disputed, material issues of fact that pertain to the duty of K & K. There exists an issue of material fact concerning the use of the halogen lamp for inspection purposes. E & E admits that MCR requested the use of a light in the attic for that purpose. It takes the position that it offered MCR the use of a-flashlight but denies that it permitted the usé of the halogen lamp. MCR^ on the other hand, alleges- that K & K permitted the use of the lamp. This dispute is relevant to the issue of the duty owed by K & E, because the record shows that K & K knew that, on the day of the inspection, others were using its lamp to light the attic. K & K did not object to othér contractors using the lamp -at that time; therefore, it was entirely foreseeable that other contractors on the job would'use the equipment placed on the site by E & .K. See Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007) (holding foreseeability was one element in- determining whether duty was owed).
Other courts have held that where the owner of equipment left at the job site has knowledge that its equipment is being used by others, it has a duty to'make sure that its equipment causes no harm. Melchers v. Total Elec. Constr., 311 Ill.App.3d 224, 243 Ill.Dec. 512, 723 N.E.2d 815 (1999); Holliday v. Miles, Inc., 266 Cal. App.2d 396, 72 Cal.Rptr. 96 (1968). K & K admits that it did not go back up into the attic the rest of the week to make sure that the halogen lamp was turned off. E & E argues that it did not turn the lamp on and was thus under no duty to control the actions of another person to turn the lamp off, even though it had the practical ability to do soi See Trammell v. Ramey, 231 Ark. 260, 329 S.W.2d 153 (1959); Tackett v. Merchant’s Sec. Patrol, 73 Ark. App. 358, 44 S.W.3d 349 (2001). The requirement that E & E ensure that its lamp is turned off does not impose an obligation to supervise the conduct of other contractors. Rather, it is simply being held to its own duty of ordinary care to make sure that its equipment causes no harm.
Harness -is in a somewhat different position, however. The circuit court specifically found that there was -no evidence that ■ Harness employees used, touched, turned on, turned off, plugged in, or unplugged the halogen lamp, -While Harness also owed a duty of ordinary care, see Dixon, supra, the church failed to meet proof with proof because there is nothing, in the record to indicate that Harness breached its duty. When- a party cannot present proof on an essential element of his or her -claim, there is no remaining genuine issue of material fact and the party moving for a summary judgment is entitled to judgment as a matter of law. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992) (citing Short v. Little Rock Dodge, Inc., 297 Ark. 104, 106, 759 S.W.2d 553, 554 (1988)).
We therefore conclude that there are genuine issues of material, fact as to whether K & K and MCR breached their duties to the church, and whether their negligence, if any, was a proximate cause of the fire, thus precluding summary judgment. See Clark v. Transcon. Ins. Co., 359 Ark. 340, 197 S.W.3d 449 (2004).
Affirmed in part; reversed and remanded in part.
Glover and Brown, JJ., agree.
. Jim’s Sheet Metal and Cameron Construction were also contractors on the renovation. However, they are-not parties to this litigation . or appeal. | [
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ROBERT J. GLADWIN, Chief Judge
[Jennifer Lea Hosey appeals from the Arkansas Workers’ Compensation Commission’s (“Commission’s”) denial of her claim for medical benefits for her neck and shoulder injuries. Appellant contends that her injuries were caused by accidents while in the employ of appellee Wal-Mart Associates, Inc. (Wal-Mart), thus requiring Wal-Mart to provide the medical 'care for both problems and entitling her to temporary total-disability benefits (TTD). Because the Commission had a substantial basis for the denial of relief, we affirm.
I. Facts
Appellant worked for Wal-Mart as an overnight Stocker on October 6, 2011, when she manually pulled a pallet of juice backward and ran the pallet into a stack, of milk crates. She was facing the pallet of juice and pulling the pallet jack with both hands when she hit 12the milk crates, coming to a dead stop. She was jerked forward, and her right shoulder popped. .She immediately had burning pain and sharpness from her shoulder down to her hand on her right side.
Appellant reported the incident to a supervisor, describing it as having caused her arm to have “shooting pains [that] run from the shoulder to [her] fingers on the right side.” On October 11, 2011, she described her injury on the Form AR-N as “Rt shoulder, Rt arm all the way down to fingers, Rt side of neck.” Dr. Hasmukh Patel treated her for right-árm and shoulder pain on that date, ordered an MRI, and placed her on light duty. Appellant performed light-duty work for Wal-Mart and was referred to Dr. Charles Pearce.
Dr. Pearce noted in his initial evaluation on November 29, 2011,
She had an MR arthrogram performed on November 7, 2011, which by report showed a posterior superior labral tear, she had previously had an anterior la-bral repair done by me on August 13, 2008, and this was intact. I reviewed, - her scan I do not see a definite posterior superior labral tear as described. The anterior labral repair is intact.
(Emphasis added.) His assessment was that her right-shoulder pain was consistent with possible nerve irritation, and there were no physical findings consistent with a posterior labral tear. He found that appellant was not at maximum-medical improvement (MMI) and that she should continue .light duties. Appellant followed up with Dr. Pearce on December 29, 2011, and he found that she was still not at MMI, but that she could resume her regular work duties.
Appellant requested a change of physician, and on February 15,'2012, appellant saw Dr. Jason Stewart for a second opinion. His' assessment was as follows:
1) Based on the lack of findings on her physical exam, I believe that the slight loss of motion she has is a residual of the 2008 surgery. At that time she says that she |shad lost approximately 25% of her function of the arm. I would not estimate it to be that great today. I would say that she has 10% or less deficit in range of motion of the right arm, but I believe this to be a residual still from 2008 and not a new finding. She does not symptomatically show any signs of a posterior superior labral tear and I would not recommend any surgery on the shoulder for this problem. ■
2) Cervical radiculopathy, most likely C5, symptomatic. I would recommend an MRI of the C-spine. It does not sound like this injury is being covered by Worker’s Comp. If it is, I would recommend ah MRI of the C-spine. If not, I have advised her -to contact her personal family physician, Dr. Robert Sykes in Nashville, Arkansas, and I would recommend that he get an MRI for her of her neck to see if she does have a symmetric disc bulge causing cervical symptoms that could cause the’ lateral shoulder pain and arm pain and numbness in the hands.
3) Regarding her right shoulder, she is at [MMI]. There is no impairment rating for this diagnosis, and she can return to her regular duties without restriction. (Emphasis added.)
At Dr. Stewart’s recommendation, Dr. Robert Sykes referred appellant to a neurosurgeon, Dr. Fred Contreras, on May 10, 2012, and his nurse noted the following:
[Appellant] went round and round with the doctor of their choice, who told her that the MRI of her right shoulder, which was done at Texarkana MRI, was negative. She states that her thumb and first two fingers on each hand go numb when she raises her arms or drives. Her right elbow aches all the time and she rates it as a 9/10. She also states that her right shoulder and arm just really hurt all the time and she rates that as a 9/10. She is currently on full duty at work at Wal-Mart at this time. She comes to us for further evaluation and management to rule out a possibility of a problem with her neck. An MRI of her neck was performed on
June 4, 2012, and Dr. Contreras found that appellant appeared to have “disc protrusions, although they appear to be on the left rather than the right. She appears to have a small disc herniation at C7, T1 on the left and C6-7 on the left.” His impression/plan states,
[G]iven the degree of atrophy and weakness, this probably needs to be worked up. I have indicated that her current study does not demonstrate an obvious source for her pain. I have recommended a myelo-CT which we will get done and then have her follow back up with us.
A nerve-conduction study was done on June 25, 2012, and the results indicated carpal-tunnel syndrome grade 3 (moderately severe) bilaterally, worse on the left. A CT Rexam of the C-spine was performed on June 25, 2012, and the only defects found were at the C5-C6 level, where mild bulging of the annulus fibrosis versus a small central disc protrusion was revealed. At the C6-C7 level, axial images demonstrated a small left paracentral disc protrusion. And, at the C7-T1 level, a small left paracentral disc protrusion was found.
Dr. Contreras’s nurse reported on July 17, 2012, that appellant had brought her CT exam results and that Dr. Contreras felt strongly that she had nerve-root defects at C6-7-T1. The nurse noted, “Going back to her initial visit in May, definitely her neck problem could be related to work secondary to the fact that she was pulling a pallet of juice and ran into a pallet of milk and pinched the nerves.” Appellant was returned to work with a weight-lifting restriction of no greater than twenty pounds.
Appellant underwent a right carpal tunnel release and an anterior-cervical discec-tomy and fusion on May 6, 2013. After complaining of right-shoulder pain, on September 12, 2013, appellant underwent an MRI of her right shoulder, and the radiologist found a suspected small full-thickness tear of the supraspinatus tendon anteriorly in the region of the rotator interval, finding, “Additional small intrasubstance tear versus postop change is seen more posteri-orly in the region of the infraspinatus tendon.”
Dr. Charles Daniels examined appellant on March 27, 2014, and summarized appellant’s medical history as follows:
[Appellant] comes in' complaining of right shoulder pain. Her problems began in 2008 when she was formerly employed with Wal-Mart National Arkansas. She was seen by Dr. Charles Pearce in Little Rock and had ortho-scopic right surgical procedure. She does not know what was done. I do have, a copy of an MRI that was done of her right shoulder after that on 11/07/2011, which shows evidence of a labral repair, but no acute pathology. She states that this MRI was obtained after |Ba reinjury in 2009. She further re-injured her shoulder by her report moving pallets in 2012. She changed from Dr. Pearce along the way to Dr. Jason Stewart. When he saw her he thought she had cervical radiculopathy. She was- subsequently referred to a spine surgeon at Texarkana, Texas, and reports she underwent C6-C7 cervical arthrodesis followed up by right carpal tunnel release. She has not been able to see that surgeon after that. She has currently been laid off because of her inability to work due to her right shoulder debility. She had another MRI on 09/12/2013, which possibly demonstrates ' a small full-thickness rotator'cuff tear in rotator interval and has some AC joint DJD.
Dr. Daniels’s impression was that she had a small rotator-cuff tear that was full thickness, and he recommended outpatient arthroscopy and mini-open rotator-cuff repair if the MRI findings were borne out.
Appellant filed for medical leave from Wal-Mart beginning July 19, 2012, and the leave was extended, according to her testimony, for about a year. Thereafter, Wal-Mart terminated her employment. At the same time, appellant’s long-term disability benefits ran out. Appellant filed a claim with the Commission for her neck, right shoulder, and bilateral carpal-tunnel injuries on September 12, 2012, and Wal-Mart controverted her claims related to her neck and carpal tunnel ■ and refused any further treatment for the right shoulder.
After a hearing, the administrative law judge (ALJ) determined that appellant had sustained a compensable injury to her right shoulder on October 6, ‘2011. However, he found that she failed to establish by a preponderance of the evidence that (1) she had sustained a compensable neck injury or a compensable carpal-tunnel-syndrome injury; (2) the rotator-cuff repair proposed by Dr. Daniels was related to her compensable right-shoulder injury; and (3) she was entitled to TTD after July 19, 2012.
This decision was appealed to the Commission, and the Commission affirmed and adopted the ALJ’s decision on September 30, 2015. Appellant filed her notice of appeal on |fiOctober 15, 2015, and this appeal timely followed. On appeal, appellant is abandoning her claim for a right-carpal-tunnel injury.
Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Smith v. Commercial Metals Co., 2011 Ark. App. 218, 382 S.W.3d 764. In this case, the Commission affirmed and adopted the ALJ’s opinion as its own, which it is permitted to do under Arkansas law. Id. Moreover, in so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s order and the Commission’s majority order.
II. Standard of Review
To prove a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark.Code Ann. § 11-9-102(16) (Repl.2012), establishing the injury; and (4) that the injury was caused by a specific incident identifiable by time and place of occurrence. Ark.Code Ann. § ll-9-102(4)(A)(i).
In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Ganus v. St. Bernard’s Hosp., LLC, 2015 Ark. App. 163, 457 S.W.3d 683. When the Commission denies benefits because the claimant has failed to meet his burden of proof, |7the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a. substantial basis for the denial of relief. Willis v. Great Dane Trailers, 2014 Ark. App. 547, 444 S.W.3d 423. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission; if so, the appellate court must affirm. Id.
III. Neck and Shoulder Claims
Appellant claims that the decision denying benefits for her neck and shoulder injuries is not supported by substantial evidence. The ALJ denied her benefits for her neck, finding that she did not sustain a neck injury for three reasons: (1) Her testimony and written accounts about what happened provided no indication that she received neck trauma; (2) She pursued neck surgery under private insurance; and (3) No doctor had identified any neck or spine trauma that she might have sustained in the incident.
Appellant contends that she reported a neck injury only five days after the at-work incident. She cites Dr. Stewart’s recommendation on February 15, 2012, that she obtain an MRI of the C-spine and the findings of the MRI performed on June 4, 2012, which were a small left para-central disc protrusion at C7-T1 and C6-C7, and a minimal central disc protrusion at C5-C6. She also points to the cervical myelogram on June 25, 2012. Based on that test, Dr. Contreras’s nurse wrote on July 17, 2012, that appellant had nerve-root defects at C6-7, T1-. The nurse also wrote, “Going back to her initial visit in May, definitely her neck problem could be related to work secondary to the fact that she was | «pulling a pallet of juice and ran into the pallet of milk and pinched the nerves.” Thus, appellant contends that she presented objective-medical evidence of a neck injury and an opinion from a treating specialist that the condition was related to her on-the-job incident in October 2011.
Regarding her shoulder, appellant had another MRI in September 2013, and Dr. Daniels wrote that she had a possible small rotator-cuff tear. Appellant argues that despite the medical evidence, the ALJ concluded that there was no causal connection between the rotator-cuff tear in 2013 and the October 2011 accident.
She also contends that the ALJ erred as a matter of law by requiring a medical opinion on causation because he erroneously based his determination on compensability of the neck injury on what he called a lack of a physician’s opinion thqt appellant “sustained a neck injury while pulling a pallet on October 6, 2011.” She cites Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 447, 990 S.W.2d 522, 524 (1999), for the proposition that objective medical evidence is not essential to establish the causal relationship between the injury and a work-related accident in a workers’ compensation case. She contends that there are scans showing definite disc and neck injuries. . She also claims that the record contains Dr. Contreras’s opinion that the neck injury was associated with the accident at work. Thus, she argues that the AL J erred as a matter of law by requiring an opinion from a physician that appellant sustained a neck injury while pulling a pallet;
She also contends that her shoulder and neck injuries are compensable based on the accident' having aggravated her preexisting conditions. Ozark Nat’l Food v. Pierson, 2012 Ark. App. 133, 389 S.W.3d 105. She claims that the accident" made her shoulder problems Rworse, and the same holds true for her neck injury. She claims that if she had issues’with her neck beforé" the 2011 accident, she was not symptomatic, but she became symptomatic afterward, necessitating medical treatment. Williams v. L&W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004).
Further citing Williams, supra, she contends that thé' compensable injury here was a factor in the resulting need for medical treatment, and this was the opinion of Dr. Contreras. She argues that after Dr. Contreras performed the neck surgery, most of her symptoms disappeared, save for the continuing pain, in her shoulder. This postsurgical improvement is a proper consideration in determining whether surgery was reasonable and necessary. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001).
Appellant claims that Arkansas courts have long recognized that a causal relationship may be established between an employment-related incident -and a subsequent physical .injury based on evidence that the injury manifested itself within a ■reasonable period of time following the incident so that the injury is logically attributable to the incident, where there is no other reasonable explanation for the injury, citing Hall v. Pittman Constr. Co., 235 Ark. 104/357 S.W.2d 263 (1962). She contends that she complained of ’ neck, shoulder, and arm pain within five days of the accident and asserts that this was a reasonable period of time following the •incident. Thus, as Dr. Contreras pointed out, appellant maintains that her injury is logically attributable to the incident.
|1ffWe disagree with appellant’s contention that the ALJ required objective medical evidence to establish the causal relationship between the alleged neck injury and the work-related accident. The ALJ’s opinion regarding appellant’s claimed neck injury states as follows:
First, Ms. Hose/s account of what happened with the pallet jack provides no indication to this examiner that she received any trauma whatsoever to her neck and cervical spine simply by walk- . ing backward five feet dragging a pallet of juice until the. pallet hit a stack of milk crates. Her attorney at one point described the incident as involving “this jerking sensation and her grabbing a hold of and holding onto that and the jerking and the holding back and forth ...” Again, however, there is no indication from either Ms. Hosey’s written accounts or her hearing testimony indicating that while pulling the jack five feet and ■ then hitting the milk crates with the pallet she either slipped, fell, hit her head, or sustained any other identifiable trauma to her head, neck or spine.
Second, when Ms. Hosey pursued neck surgery with Dr. Contreras, she did so using private insurance. Third, neither Dr. Contreras nor any other physician has ever identified any type of head, neck, or spine trauma that Ms. Hosey might have sustained in the incident that she described, and no physician has opined that Ms. Hosey sustained a neck injury while pulling a pallet on October 6, 2011. On this record, Ms. Hosey has failed to establish a work related neck injury by either a preponderance of the medical evidence or a preponderance of the non-medical evidence. I find that the respondent is not liable for any of the treatment that Ms. Hosey has received related to her neck.
The determination of whether a causal connection exists is a question of fact for the Commission to determine. Smith v. Sw. Ark. Food Bank, 2011 Ark. App. 181, 381 S.W.3d 889. A cláim for workers’ compensation benefits must be based on proof. Id. Credibility of witnesses and the weight to be given- to their testimony are within the exclusive province of the Commission. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
Based on our review, all of appellant’s arguments are resolved by acknowledging that the Commission did not give weight to Dr, Contreras’s report, scribed by his nurse practitioner, which stated that the possible nerve-root defect “definitely” could be related Into the 2011 work incident. The opinion was based on subjective information from appellant; however, the Commission is not bound by a doctor’s opinion that is based on facts related to him by the claimant. Beliew v. Lennox Indus., 2010 Ark. App. 112, 2010 WL 374407.
With our standard of review in mind, we hold that the Commission had a substantial basis for the denial of relief, and the Commission did- not err as a matter of law. The Commission found, based on the evidence in the record, that it was not credible that the minor incident described by appellant caused all the fairly serious injuries as alleged.. The evidence was that appellant had. reported problems with her neck and numbness, pain, and tingling in her- hands for years prior to the work-related incident. Wal-Mart points to appellant’s complaint of neck pain that extended into her hands “in a stocking glove fashion,” on May. 29, 2008, and again in November 2009. She testified that she had a tingling in her hands for about a year prior to the October 2011 injury. She also testified that she had previously used wrist splints due to pain in her hands, like a needle sensation, since before 2008, when she worked at the Days Inn. The medical records indicate degeneration in the left side of the neck, and she testified that she hurt her right arm and right shoulder.
Regarding appellant’s right shoulder, the MRI taken soon after the incident on November 7, 2011, did not show any indication of a rotator-cuff tear. Further, neither Dr. Pearce nor Dr. Stewart reported any indication that appellant’s complaints of pain could be associated with a rotator-cuff tear. The Commission gave weight to Dr. Pearce’s opinion, as he had been treating appellant since 2008 when he had performed a previous right-shoulder surgery on her. Both Dr. Pearce and Dr. Stewart concluded that the right-shoulder | ^injury on October 6, 2011, did not cause any permanent impairment. . The Commission considered Dr. Daniels’s proposal of rota-tor-cuff surgery -and determined that he had been given a materially inaccurate history. The ALJ noted that Dr. Daniels had been told that the pallet incident occurred in 2012, which was after the 2011 shoulder MRI.
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; this court is foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Jackson v. O’Reilly Auto. Inc., 2013 Ark. App. 755, 2013 WL 6685791. The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Id. While it is within the province of the Commission to weigh conflicting evidence, the Commission may not arbitrarily disregard medical evidence. Id. Accordingly, we hold that substantial evidence supports the Commission’s determination denying appellant’s claims for her neck and shoulder injuries. The Commission was well within its authority in giving greater weight to Dr. Pearce’s and Dr. Stewart’s opinions rather than relying on the opinions of Dr. Daniels and Dr. Contreras.
IV. TTD
To receive TTD benefits, the claimant must prove by a preponderance of the evidence that he is within the healing period and is totally incapacitated from earning wages. Union Drilling, Inc. v. Griffith, 2015 Ark. App. 273, 2015 WL 1952691. The healing period ends when the employee is as far restored as the permanent nature of the injury permits; thus, if the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition, the healing period has ended. Id. The determination • of when the healing period has ended is a factual determination for the Commission. Smallwood v. Ark. Dep’t of Human Seros., 2010 Ark. App. 466, 375 S.W.3d 747.
|1SArk. Dep’t of Parks & Tourism v. Price, 2016 Ark. App. 109, at 10, 483 S.W.3d 320.
Appellant argues that she has been unable to work for a long time, first taking short-term and then long-term disability, until Wal-Mart terminated her employment. Her doctors told her not to work, at least until a few weeks after the neck surgery. Thus, she contends that she is entitled to TTD for that time period.
Wal-Mart contends that the Commission found Dr. Stewart credible and gave great weight to his indication that appellant had reached MMI for her compensable right-shoulder injury and could return to regular-duty work on February 15, 2012. Appellant wrote on her leave request that her reason was her “own serious health condition.” Because we affirm the Commission’s determination that the various injuries for which appellant sought treatment after July 19, 2012, were not causally related to the October 6, 2011 work incident, we affirm the Commission’s decision to deny TTD on or after July 19, 2012.
Affirmed.
Harrison and Whiteaker, JJ., agree.
. The report of July 17, 2012, was written by Sherry Missildine, RN, ACNP and reviewed by'Dr. Contreras.
.- We note that Act 10 of 1986, Second Extraordinary Session, codified as Ark.Code Ann. § 1 l-9-704(c)(4) (1987),, changed the law to provide that in determining whether a party has met its burden of proof, ALJs and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party. Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 367, 768 S.W.2d 521, 522-23 (1989). | [
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BART F. VIRDEN, Judge
I,Ryan O’Neal Echóles was convicted by a Pulaski County Circuit Court jury of fourth-degree sexual assault and was sentenced to thirty days in jail and fined $2500. On appeal he argues that the evidence supporting his conviction was insufficient. We affirm.
On June 1, 2016, there was a trial on the matter. K.P., who was fourteen at the time of the incident, testified that on the evening of April 27, 2014, she and her nine-year-old sister were visiting Echóles at his home. K.P. stated that while they were in the kitchen making milkshakes, Echóles asked her “Do you want to make some extra money?” and that she agreed, thinking he was going to ask her to wash dishes. K.P. testified that Echóles asked her if she would promise not to tell anyone, and she agreed. K.P. recounted that Echóles pushed her against the wall and began groping her buttocks and kissing her on her mouth. K.P. testified that she told Echóles to stop, that she was uncomfortable,, and that she then returned to the living room. K.P. explained that she told her sister that it was time to leave. |aK.P. testified that Echóles walked them home. K.P. did not tell her family about the assault that night, and she testified that the next day while she was at school she became upset. K.P. recounted that she told her teacher what had happened and that the teacher took her to the school guidance counselor, who called her mother.
K.P.’s teacher testified that the day she took K.P. to the school counselor, K.P. had seemed “shaky” and more introverted than usual, and that when she took K.P. out into the hall to ask her what had happened, K.P. became very upset, which was unusual for her. K,P.’s guidance counselor testified that the teacher brought K.P. to his office, where she told him what had happened. The guidance counselor testified that he immediately called K.P.’s mother.
K.P.’s mother testified at the trial that she first heard of the incident when the school counselor called her. She recalled that on the evening of April 27, 2014, K.P. had not wanted to drink the milkshake she had brought home from Echoles’s home, and it was unusual for her to refuse ice cream. K.P.’s mother testified that, after she spoke to the guidance counselor, she filed a police report at the North Little Rock Police Department. She explained that a couple of days after the incident, she and K.P. met and spoke with Detective Julie Eckart to give a recorded statement.
Detective Eckart testified that she had been assigned to K.P.’s case and that K.P.’s mother brought her into the office to make a report. Detective Eckart testified that K.P. seemed truthful and forthcoming. Eckart recounted that K.P. told her that Echóles asked her, “are you ready to make some extra money?” and that he pushed her up against the I «wall, grabbed her, and started kissing her. Eckart testified that K.P. indicated to her that she pushed Echóles away from her when he touched her buttocks and told him no.
Officer Rodney Thomas of the North Little Rock Police Department testified that he conducted the follow-up interview regarding KP.’s allegation of sexual assault. Detective Thomas testified that he took KP.’s statement and that she told him Echóles had asked her if she was “ready to work for some money,” and that he touched her buttocks and kissed her on the lips.
Echóles testified at his trial. He explained that K.P. and her sister had regularly visited his home—about three or four times a week. Echóles explained that he had been concerned for their mother, whom he had known for years, because she had been moody and withdrawn. Echóles testified that he often cooked for the kids, helped them with homework, and occasionally gave them money for doing chores because their mother had not been working. Echóles explained that on April 27, 2014, the girls had been at his house eating and watching television but had left his home early because there was a tornado in the area. Echóles asserted that, around that time, KP.’s family members had been upset because he was planning'on accepting a promotion and moving to Helena. He testified that the children often asked if he would marry their mother, though Echóles testified that he had not been in a relationship with KP.’s mother. Echóles denied touching or kissing K.P.
Echoles’s attorney moved for a directed verdict. He asserted that
[s]pecifically, there is no evidence that my client unlawfully engaged in sexual contact for the purposes of gratification of the defendant. And there has been zero evidence put forward of anything regarding that there is a statement about any reaction by Mr. Echóles to the alleged incident.
I/There has been quite a few questions raised as to whether or not it happened, but as far as proof of any type of gratification there has been zero evidence put forward regarding that. There’s been nothing regarding any kind of body movement by the defendant, any type of arousal by the defendant or any other type. Any evidence of gratification at this point.
The circuit court denied the motion for a directed verdict. Counsel renewed the motion for a directed verdict and restated his assertion that the State had not proved that Echóles “engaged in sexual conduct with an individual with the intent for sexual gratification, specifically under sexual contact.” The circuit court denied the motion. The jury found Echóles guilty of fourth-degree sexual assault, sentenced him to thirty days in jail, and fined him $2500. Echóles filed a timely notice of appeal and a timely amended notice of appeal.
On appeal, Echóles asserts that the evidence is insufficient to support a conviction of fourth-degree sexual assault. Specifically, he argues that “the victim was not truthful in her statement and testimony alleging that appellant kissed and grabbed her butt. To assume that appellant committed this offense amounts to nothing more than speculation and conjecture.” Echoles’s argument on appeal is not well taken because it is different than the basis for the directed-verdict motion at the circuit court level. Below, Echóles argued only that the State had not proved the sexual-contact element of fourth degree sexual assault. On appeal, he argues that the victim’s testimony lacked credibility and that the jury would be forced to resort to speculation.
| BIt is well settled that an appellant must raise the issue and make an argument at trial in order to preserve it for appeal. Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). All arguments made below but not raised on appeal are abandoned. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). A party is bound by the scope and nature of his directed-verdict motion and cannot change the grounds on appeal. Plessy v. State, 2012 Ark. App. 74, 388 S.W.3d 509.
We hold that by not raising to the circuit court the issue of the sufficiency of KP.’s testimony to convict him of fourth-degree sexual assault Echóles abandoned the issue; however, even if the argument had been preserved for our review, we would affirm.
It is uncontroverted that on April 27, 2014, Echóles was twenty years of age or older, that K.P. was fourteen years old, and that the two were not married. K.P. testified that on April 27, 2014, Echóles pushed her against the pantry door, touched her buttocks, and kissed her on the mouth.
The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the victim’s account of the facts rather than the defendant’s. Van Winkle v. State, 2014 Ark. App. 591, 445 S.W.3d 542. A sexual-assault victim’s testimony may constitute substantial evidence to sustain a conviction for sexual assault. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The victim’s testimony need not be corroborated, and the victim’s testimony alone, describing the sexual contact, is enough for a conviction. Colburn v. State, 2010 Ark. App. 587, 2010 WL 3582441. The credibility of witnesses is a matter for the jury’s consideration. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). Even where the defendant denies the allegations, the credibility and weight of the evidence are issues properly left to the fact-finder. Estrada v. State, 2011 Ark. 3, 376 S.W.3d 395.
The jury in this case chose to believe K.P. Her testimony, standing alone, constituted substantial evidence to sustain Echoles’s conviction, and Echoles’s assertion on appeal that K.P. is “lying” is not a ground for reversal.
Affirmed.
Whiteaker and Murphy, JJ., agree.
. A person commits sexual assault in the fourth degree if he is 20 years of age or older and engages in sexual contact with another person who is less than 16 years of age and who is not his spouse. Ark. Code Ann. § 5-14—127(a)(1)(B) (Repl. 2013). | [
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ROBIN F. WYNNE, Associate Justice
|! Samuel Hartman appeals from an order of the Franklin County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015) filed following his conviction for rape. Appellant argues on appeal that the circuit court erred in denying his petition because (1) his trial counsel made disparaging remarks about him during closing arguments and (2) his trial counsel was ineffective for failing to object to certain trial testimony as hearsay. Appellant also argues that the matter should be remanded to the circuit court for that court to consider additional evidence regarding his claim that his trial counsel was ineffective for failing to present evidence at trial that he had a sexually-transmitted disease and the victim did not. We affirm.
Appellant was tried before a Franklin County jury on charges of rape and tampering with physical evidence. The victim was his stepdaughter. Among the evidence submitted | ?at trial was testimony that appellant admitted to police that he had touched the victim’s genital area. Appellant was found guilty and sentenced to life imprisonment. Appellant’s conviction for rape was affirmed by this court. Hartman v. State, 2015 Ark. 30, 454 S.W.3d 721. After appellant’s direct appeal concluded, he filed a petition for relief under Rule 37 in the circuit court. Following a hearing, the circuit court entered an order denying appellant’s petition. Appellant subsequently filed a motion for reconsideration in which he alleged that he had found evidence that contradicted testimony given at the hearing. The motion for reconsideration was denied. This appeal followed.
This court will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. Adkins v. State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appel late court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. When considering an appeal from a trial court’s denial of a postconviction petition based on a claim of ineffective assistance of counsel, the sole question presented is whether under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court clearly erred when it held that counsel was not ineffective. Hooks v. State, 2015 Ark. 258, at 3-4, 465 S.W.3d 416, 419 (per curiam). Under the Strickland test, a petitioner must show that counsel’s performance was deficient, and a petitioner must demonstrate that he was prejudiced by counsel’s deficient performance. Pennington v. State, 2013 Ark. 39, at 1-2, 2013 WL 485660 |a(per curiam). A defendant making an ineffective-assis-tanee-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Miller v. State, 2011 Ark. 114, 2011 WL 913206 (per curiam). In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors; a reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Delamar v. State, 2011 Ark. 87, 2011 WL 693579 (per curiam).
Appellant first argues that the trial court erred by denying his petition because his trial counsel made derogatory comments about him during closing arguments in the guilt phase. At the onset of his closing argument to the jury during the guilt phase, appellant’s trial counsel, Ernest Witt, made the following remarks:
Now [the prosecutor has] called [appellant] a purveyor of young women, young girls, and he finally just called him essentially a pervert. You know what, I kind of agree with him. You probably do too; but you guys know what he is charged with? He’s charged with rape, and that’s why I’m here today.
The charge is rape... This is a rape case, and I’ve got a client over there that’s done some things that shouldn’t have been done, and I’m here today not to praise him but I’m not here to bury him on any charge he’s not guilty of.
[The victim] tells her mother what happened to her, and that happened to her I’m convinced it did. That man sitting over there did things to her; but remember what the Prosecutor said in opening statement. We must prove penetration. Not rubbing, - not fondling but penetration. So she tells her mother nothing about penetration.
That scallywag over there probably irritated the heck out of those ladies up there and they were probably going to get him and maybe he did deserve to be gotten on something, but my position here is that guy sitting over there is not guilty of rape. He’s guilty of some bad stuff.
[4Witt testified at the hearing on appellant’s petition that he made the statements in an effort to build empathy with the jury and get it to understand that, while appellant had admitted engaging in conduct that could be termed perverse, the State had failed to prove that he had committed the offense of rape with which he was charged. In its order denying the petition, the trial court found that counsel was not ineffective for making the statements because, given the proof which included appellant’s own statements to police, counsel had no choice but to pursue a strategy of differentiating to the jury the conduct admitted to by appellant and the elements of the offense with which he was charged. Appellant argues in his brief that the trial court erred by finding that there was a proper strategic or tactical basis for making the comments to the jury.
Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for finding ineffective assistance of counsel. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. We conclude that counsel’s strategy was reasonable given the particular circumstances presented. Appellant admitted to police that he had engaged in sexual contact with the victim, although he never admitted to penetration, which is required to establish the offense of rape. The prosecution indicated in its closing that the evidence showed that appellant had engaged in perverse behavior. Faced with appellant’s admissions, counsel was left with a difficult task. Ijf he defended his client from the allegation by the prosecution that he had engaged in perverse behavior, he might lose credibility with the jury, as appellant had clearly admitted to sexual contact with a young girl. If he ignored appellant’s statements to police, he created an opportunity for his client to be convicted based on his admission to conduct that did not meet the requirements for the offense of rape. The trial court was correct that the only avenue available to counsel given the evidence was to distinguish appellant’s admitted conduct from the requirements of the offense charged. In order for such a strategy to have any chance of succeeding, the jury had to see counsel as a reasonable, credible person. While counsel’s tactical choices might have been different with the benefit of hindsight, the strategy guiding his decision was reasonable. The fact that the strategy was unsuccessful does not render counsel’s assistance ineffective.
Appellant next argues that his counsel was ineffective because he failed to object to certain testimony by a police officer that he contends should have been objected to as hearsay. At trial, Ozark Chief of Police Corey Tedford testified that he responded to a call of a domestic disturbance between appellant and his wife, who is the victim’s mother. He testified regarding several statements made by the victim’s mother while he was at the scene. According to Chief Tedford, she told him that appellant struck a couple of doors during their argument, took her cell phone when she attempted to call the police, and prevented her from leaving the house. She also told him that appellant had become angry when he discovered that she was taking the victim to a forensic interview regarding the allegations that he had sexually abused the victim and that she believed that appellant had sexually [^assaulted her daughter. Witt testified that he did not object to the testimony because, although he did not know what use he would make of the statements at the time, he wanted to “leave the door open.” In its order, the trial court denied the claim, stating that appellant failed to identify which hearsay statements were inadmissible, appellant failed to demonstrate how he was prejudiced, and that counsel was not ineffective for failing to object because the testimony allowed for effective cross-examination of Chief Ted-ford.
In his brief, appellant states that the trial court was incorrect when it stated that he failed to identify the hearsay testimony to which he was objecting and lists the specific testimony. Appellant’s argument misapprehends the trial court’s ruling. In its ruling, the trial court states that appellant failed to identify which of the hearsay statements were inadmissible. In other words, appellant failed to argue that the hearsay testimony would not have been allowed into evidence under an exception to the hearsay rule. Appellant again fails to specify in his brief which hearsay statements would have been deemed inadmissible had an objection been made; he simply identifies statements that he believes were hearsay. In order to carry his burden to demonstrate prejudice, a petitioner must show, when making a claim of ineffective assistance for failing to raise an objection or make an argument, that the objection or argument would have been successful if made. See Reese v. State, 2011 Ark. 492, 2011 WL 5589268 (per curiam). As appellant has failed to demonstrate that an objection on the basis of hearsay would have been successful, his argument on this point fails.
17Appellant’s final argument is that the trial court erred by denying his motion for reconsideration. In his petition, appellant alleged that his counsel was ineffective for failing to present evidence at trial that he and his wife both had chlamydia and that the victim did not. At the hearing on appellant’s petition, Witt testified that he had not been informed of this at the time of trial. The trial court denied the claim in its order, finding that Witt was not ineffective for failing to present evidence of the infection because he was not aware of it and that appellant failed to demonstrate that the victim’s not having a chlamydia infection was relevant to the issue of whether a rape had been committed.
After the order denying appellant’s petition was entered, appellant filed a motion for reconsideration in which he argued that subsequent to the entry of the order his postconviction counsel had discovered in his trial counsel’s notes a passage that he asserted belied Witt’s assertion at the hearing that he was unaware of the chlamydia issue. The trial court denied the motion for reconsideration.
Appellant admits in his brief that, pursuant to Arkansas Rule of Criminal Procedure 37.2(d), rehearing of a circuit court’s decision on a petition filed pursuant to Rule 37 is not permitted. This court has permitted motions for reconsideration concerning issues omitted from the circuit court’s consideration, see Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000); however, appellant further admits that this exception does not apply. Rather, appellant contends that this presents an issue of later-discovered evidence impeaching a witness’s testimony that must be considered by the trial court in order to uphold the integrity of the circuit court’s findings.
| ¡Appellant has failed to demonstrate a sufficient basis for the establishment of another exception to Rule 37.2(d). While his postconviction counsel did not discover the evidence until after the hearing on the Rule 37 petition, there is no indication that the evidence was unavailable to appellant before that time or that it had somehow been wrongfully withheld. As such, it appears that appellant simply failed to discover evidence he could have used to impeach Witt at the hearing. Under these circumstances, appellant’s motion for reconsideration was improper, and the dr- cuit court did not err by denying it.
Affirmed.
. This court reversed the conviction for tampering with physical evidence.
. The trial court did not instruct the jury as to any lesser-included offenses. The offense of rape has no lesser-included offenses.
. Much of the testimony was cumulative to other testimony at trial.
. Although appellant takes issue with the trial court’s finding that he failed to prove that the evidence of a chlamydial infection was relevant, he does not argue that the trial court erred in denying the claim, only that it erred in denying his motion for reconsideration. Furthermore, his only requested relief on this point is for the matter to be remanded for consideration of the chlamydia issue. As the motion for reconsideration was improper, consideration of appellant’s other claims on this point is unnecessary. | [
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John B. Robbins, Chief Judge.
Appellant Donald Anderson appeals his conviction for defrauding a secured creditor for which he was fined $5,000 and ordered to pay court costs and restitution in the amount of $2,800. He asserts two points on appeal. We find merit in appellant’s argument and reverse his conviction.
Appellant was convicted of violating Ark. Code Ann. § 5-37-203 (Repl. 1997), which provides:
(a) A person commits the offense of defrauding secured creditors if he destroys, removes, cancels, encumbers, transfers, or otherwise disposes of property subject to a security interest with the purpose to hinder enforcement of that interest.
(b) Defrauding secured creditors is a Class D felony.
The facts upon which appellant was charged are as follows. On November 15, 1993, appellant and his wife purchased a 1986 Chevrolet truck from J&P Auto Sales in Flippin, Arkansas. The sales price was $5,850, and the retail installment agreement provided for monthly installment payments of $219.35. Their agreement further provided that appellant was granting a security interest to the seller in the truck being purchased. The buyers fisted an address at the time in Flippin, Arkansas. J&P financed the transaction by simultaneously assigning its rights to Peoples Bank & Trust of Mountain Home, Arkansas, and guaranteeing payment of the debt.
Appellant and his wife missed monthly installments or made partial payments on the truck off and on after its purchase. Only the first payment due in December 1994 was timely and paid in full. The payment history that followed is outlined: January — $0; February — $0; March — $200; April — $200; May — $100; June — $380; July — $100; and August — $100. The records indicated that one money order for partial payment came from appellant on July 19, 1994, after he had moved, and on it was handwritten in the address portion “Don Anderson, Amity, Ark.” In September 1994, the bank called on J&P, as guarantor, to repay the outstanding loan in full and reassigned all of its right and title under the retail installment contract back to J&P. The arrangement with the bank was that J&P could be required to repurchase, or pay off, the loan if any payment became past due for more than ninety days.
Appellant explained that he and his wife separated around June 1994. His wife moved back to Florida, and he moved from Flippin to Amity, Arkansas, where his sons lived. Before they separated, he thought she was paying the truck payments. When they divided their belongings, his wife did not want to take the truck so he took it. Short of money, he only paid partial payments in July and August 1994. Then, after learning and expecting that the truck was to be repossessed, he simply stopped making any payments.
The bank had begun sending J&P notices of late payment beginning in January 1994. It was important for J&P to be informed of this information since the bank had recourse against the automobile dealership. Before and after September 14, 1994, when it had to pay off the loan, J&P attempted to find appellant and determine the whereabouts of the truck. Appellant’s sister, who was listed on his credit application as living in Flippin, had apparently moved when J&P tried to locate her for a more current address.
The owner of J&P filed an affidavit seeking a criminal prosecution regarding the truck in December 1994. The formal information filed by the prosecutor alleged that on or before September 14, 1994, appellant and his wife purchased the truck, left the area, and failed to pay for the vehicle or to contact J&P regarding their whereabouts. J&P continued thereafter to try to locate appellant and the truck through letters, telephone calls, and requests for a more current address from the post office. It also attempted to obtain information from appellant’s probation officer in Arkadelphia, but the probation officer would not disclose any information. Apparently, J&P did not check with the Office of Motor Vehicles in the Arkansas Department of Finance and Administration prior to seeking criminal prosecution. If it had, it would have learned that, in November 1994, appellant had renewed the truck’s annual registration and listed his Amity address.
The truck was finally located in Amity, Arkansas, and it was repossessed from that location in September 1995. The truck’s condition was found to be substantially deteriorated from the time it had been sold. The motor would not “turn over,” one side was dented, the seat was torn, the ceiling lining was torn and hanging down, the radio/tape player was broken, and the engine oil had the consistency of “pudding.” The truck was not operable and had apparently been sitting in front of appellant’s Amity residence for months. J&P sold the truck in this condition for about half the price for which it had been sold to appellant.
Appellant admitted that his son had told him that some man had been looking for him, and his son had told the man where appellant was working at the time. Appellant testified that he knew that he was behind and in fact had stopped making payments — “I knew that they was [sic] going to come and get it; I just didn’t know when. Like I said, I left keys in it for them. They could have come down any time, day or night, [to repossess the truck.] ” He knew the bank had an existing lien. He maintained that he never intended to defraud a secured creditor; he just fell behind and expected the secured party to recover the truck. He moved only because he and his wife had separated and he needed somewhere to live.
Appellant argues that the trial court erred when it denied his motion to dismiss on the grounds (1) that the complaining party was not a secured creditor and therefore no cause of action could be sustained, and (2) that there was no evidence of intent. The first motion to dismiss was made prior to the case going to trial, and the trial judge properly denied that motion. A motion to dismiss cannot be granted prior to the State having an opportunity to present its case. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228 (1988).
After the State presented its case, appellant moved for directed verdict, which is a challenge to the sufficiency of the evidence. Tucker v. State, 50 Ark. App. 203, 901 S.W.2d 865 (1994). When reviewing the sufficiency of the evidence, we view all the evidence and the reasonable inferences capable of being drawn therefrom in the light most favorable to the State. Brunson v. State, 45 Ark. App. 161, 873 S.W.2d 562 (1994). The evidence, direct or circumstantial, must be of sufficient force that it compels a conclusion one way or the other without resort to speculation and conjecture. Edwards v. State, 40 Ark. App. 114, 842 S.W.2d 459 (1992).
Though appellant makes two arguments on appeal, we first consider, as we must, the sufficiency of the evidence argument. Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997). Appellant argues that there is insufficient evidence upon which to find the requisite intent to defraud a secured creditor. As recited above, the appellant must have had the “purpose to hinder enforcement of [the secured creditor’s] interest.” One acts purposefully when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997). One’s intent is seldom capable of being proven by direct evidence. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). The jury is allowed to draw upon its own common knowledge and experience to infer intent from the circumstances. Tiller v. State, 42 Ark. App. 64, 854 S.W.2d 730 (1993). Thus, there is a presumption that a person intends the natural and probable consequences of his acts. Moore v. State, 58 Ark. App. 120, 947 S.W.2d 395 (1997). If circumstantial evidence is the only evidence supporting a finding of a culpable mental state, it must do so excluding every other reasonable hypothesis consistent with innocence. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).
From the evidence presented at trial, there was insufficient evidence from which the jury could have determined that appellant purposefully acted to hinder enforcement of a secured interest. At worst, the State proved that appellant was not following through with his payment obligations under the retail sales agreement, perhaps proving a negligent disregard for the rights of his secured creditor. However, irresponsibility in the handling of his payments and contacts with his creditor does not constitute substantial evidence to support the jury’s determination that appellant’s conduct was criminal. The evidence simply falls short of compelling a conclusion, without resort to speculation and conjecture, that appellant acted with the conscious object to hinder a secured creditor’s enforcement of its interest.
Eggleston v. State, 16 Ark. App. 72, 697 S.W.2d 121 (1985), cited by appellant, is somewhat analogous and gives some guidance. Mr. Eggleston was prosecuted for violation of the same statute. His employer, South Central Career College, purchased a car for him since he could not obtain a loan due to a poor credit history. South Central held title to the car, and it was financed through Twin City Bank. South Central deducted payments from his paycheck. Mr. Eggleston was also responsible for other expenses such as taxes, license fees, and insurance. When Mr. Eggleston left the employ of South Central, he discussed the car situation with the owner of South Central and stated that Eggles-ton’s accountant would contact him about refinancing the automobile or paying it off in full. The accountant did call South Central’s owner, but nothing was resolved within the two days that it was anticipated to take. The staff at South Central was thereafter unable to locate Mr. Eggleston, and the owner soon took his grievance to the law enforcement authorities. The bank, the secured creditor, was not involved in the proceeding, and no representative of the bank testified at trial. While South Central was not a secured creditor, it did have a contractual relationship with Mr. Eggleston. There we saw no evidence of purposeful intent to hinder the enforcement of a security interest.
The holding in that case lends support to our holding today. As we stated in Eggleston: “Although there was testimony that appellant could not be located and that he allowed the insurance to lapse on his car, these circumstances alone do not establish appellant’s intent to hinder the enforcement of a security interest.” Id. at 76. Here, appellant did not dispose of the truck, and although the truck had deteriorated, it was not destroyed, so the only conceivable basis for the State to pursue appellant was the “removal” of the truck with the purpose to hinder enforcement of the lien. The very nature and purpose of a truck is to be moved about. The fact that appellant’s circumstances caused him to move to another town and take the truck with him does not constitute substantial evidence of the requisite purposeful intent, the highest level of culpable mental state that can be required under Arkansas law. Therefore, we reverse on this point.
Appellant alternatively argues that there was no secured party complaining when the criminal charge was filed. Although we question whether this was preserved for appeal, we need not address this argument because we are reversing on the first point.
Accordingly, we reverse appellant’s conviction.
Bird and Roaf, JJ., agree. | [
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SHAWN A. WOMACK, Associate Justice
| ¶ Kevin Reed was convicted of rape and second-degree sexual assault after a trial in the Benton County Circuit Court. He received a total, consecutive sentence of life plus twenty years. On appeal, Reed argues that his convictions should be overturned because the trial court denied him the right to represent himself at trial in violation of his constitutional rights. Because we agree with the trial court that Reed’s attempt to waive his right to counsel and represent himself was equivocal, we affirm.
The United States Supreme Court held in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), that .the right to self-representation for criminal defendants is “necessarily implied by the structure of the [Sixth] Amendment” to the United States Constitution. Faretta, 422 U.S. at 819, 95 S.Ct. 2525. There is an inherent tension, however, between the Supreme Court’s command that criminal defendants receive effective counsel and permitting those same defendants to handle their own defenses, virtually always without relevant expertise and sometimes with literal 12life-and-death stakes. Acknowledging this tension, the Court elaborated that defendants invoking the right to self-representation must “knowingly and intelligently forgo” the right to counsel after having been made aware of the “dangers and disadvantages of self-representation.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. This court has addressed similar concerns by requiring that (1) the request to waive counsel must be unequivocal and timely asserted, (2) the, waiver must be knowing and intelligent, and (3) the defendant must not have engaged in conduct that would prevent the fair and orderly exposition of the issues. See, e.g., Pierce v. State, 362 Ark. 491, 498, 209 S.W.3d 364, 368 (2005).
In this case, Reed initially requested to waive his right to counsel and represent himself at a pretrial hearing. The trial court then began providing the necessary disclosures about the “dangers and disadvantages” of self-representation. Reed and the court then engaged in an extended back-and-forth about the preparation and review of evidence for his trial. After this discussion, Reed again said that he wished to represent himself. This request, however, was commingled with his evident concern that the trial should be delayed, a request the court repeatedly stated would not be granted. Consideration of Reed’s request for self-representation then picked up the next morning, the day of the trial. Reed renewed his request at the outset of this discussion. After the court reiterated that the trial would not be delayed and that Reed would have to conduct voir dire and his defense that very day, however, Reed said that he was “trying to do’ what I believe is right, and I don’t know.” More directly, he then said, “I’m debating whether to represent myself or let [my current counsel] represent me.” Reed repeated that he did not know what he wanted to do at that point, and in response to a proposed compromise by the trial court in which Reed’s current | ¡¡counsel would serve as “a whispering attorney,” Reed confirmed that he was not sure. After Reed’s multiple instances of uncertainty while being told of the consequences of self-representation, the.trial court ruled that Reed’s invocation was equivocal, and the trial proceeded with Reed’s original counsel.
Our precedents have, made clear that a defendant’s statements must be viewed in their entirety to judge whether an attempt to waive counsel and self-represent is sufficiently unequivocal. In Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999), for instance, the defendant stated, “I’ll just represent myself. I don’t want a lawyer.” Mayo, 336 Ark. at 281, 984 S.W.2d at 805. After a review of the likely motives for the defendant’s request, however, we upheld the trial court’s decision not to grant the defendant’s request despite a facially unequivocal statement. As we have said, “[e]very reasonable presumption must be indulged against the waiver Of fundamental constitutional rights.” Pierce, 362 Ark. at 498, 209 S.W.3d at 368. Reed’s statements in this case presented an inconsistent picture to the court of his commitment to the idea of self-representation. The trial court discounted Reed’s earlier, more assured statements after further discussion indicated that Reed harbored doubts about representing himself. This is exactly the sort of holistic review in which a court must engage when a defendant’s decision to invoke one right imperils another.
We hold that- the trial court correctly held that Reed’s attempts to waive his right to counsel and represent himself were equivocal.
As required by Ark. Sup. Ct. R. 4—3(i) (2017), the record has been examined for reversible error. None has been found.
Affirmed. | [
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PER CURIAM
LOn January 20, 2016, judgment was entered in the Pope County Circuit Court reflecting that Michael Edward Hansler had entered a negotiated plea of nolo con-tendere to rape for which a sentence of 180 months’ imprisonment was imposed. On April 11, 2016, Hansler filed in the trial court a timely, verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016) seeking to have the judgment vacated on the ground that he was not afforded effective assistance of counsel. The trial court denied the relief sought, and Hansler brings this appeal. Hansler has filed a motion for a “default judgment” on the grounds that the appellee State was improperly granted extensions of time to file its brief and that he was entitled to appointment of counsel in the Rule 37.1 proceeding and is entitled to an attorney to represent him on appeal an attorney to represent him on appeal.
|2We affirm the trial court’s order denying the Rule 37.1 petition. The motion seeking a default judgment and appointment of counsel is moot. The Rule 37.1 petition filed in the trial court was devoid of facts to support his claims of ineffective assistance of counsel. Concluso-ry statements cannot be the basis for post-conviction relief, Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783, and this court will affirm the denial of relief unless the trial court’s findings are clearly erroneous. Beavers v. State, 2016 Ark. 277, 495 S.W.3d 76. 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.
When a plea of guilty or nolo con-tendere is entered, the sole issue in post-conviction proceedings is whether the plea was intelligently and voluntarily entered on advice from competent counsel. See Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259, In his petition, Hansler raised the following allegations of ineffective assistance of counsel: (1) counsel did not listen to his protestations that he was- innocent of the offense charged and seemed determined to focus on securing a favorable plea offer from the State; (2) counsel failed to investigate the case: (3) counsel failed to provide him with all the evidence so that he could determine who the trial witnesses would be and what evidence had been obtained by the authorities; (4) counsel was prejudiced against Hansler because Hansler is a Wiccan and counsel advised him that the jury would consist of Christians who would be biased against him.
It first should be noted that Han-sler in his brief in this appeal enlarges on and embellishes the allegations contained in his Rule 37.1 petition. This court will not consider the new material contained in the brief. We do not address new arguments raised for the |3first time on appeal or consider factual substantiation added to bolster the allegations made below. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam). When reviewing the trial court’s ruling on a Rule 37.1 petition, the appellant is limited to the scope and nature of the arguments that he made below that were considered by the trial court in rendering its ruling. Pedraza v. State, 2016 Ark. 85, 485 S.W.3d 686 (per curiam).
With respect to Hansler’s assertions that counsel failed to investigate his case, did not discuss the evidence with him, and focused on obtaining a favorable plea bargain, the claims were not supported by facts to show that Hansler was prejudiced by counsel’s conduct. To prevail on a claim of ineffective assistance of counsel for failure to investigate or discuss evidence with the petitioner, the petitioner must allege some direct correlation between counsel’s deficient performance and the decision to enter the plea, or the petitioner is proeedurally barred from post- conviction relief. See Mancia, 2015 Ark. 115, 459 S.W.3d 259. Statements without an alleged factual basis do not suffice. Pedraza, 2016 Ark. 85, at 3-4, 485 S.W.3d 686, 690. Hansler did not state any specific information that could have been discovered with more investigation, could have been brought out if counsel had discussed the evidence with him more thoroughly, or not focused on plea bargaining such that his decision to enter a plea would have been changed. Accordingly, he did not show that counsel made any error. See Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508.
Likewise, neither Hansler’s conclu-sory claim that counsel was prejudiced against him because of his Wiccan religion nor Hansler’s statement that counsel advised him of the possibility that a jury might be, or would be, biased against him because of his religion demonstrated that counsel was incompetent under the Strickland standard. Hansler offered Rno facts to establish that any alleged bias or advice counsel might have given him concerning the possible religious prejudice of the jury rendered his plea involuntary. By not delineating the actual prejudice that arose from counsel’s conduct, he failed entirely to show that there was a direct correlation between counsel’s deficient behavior and his decision to enter the plea. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1.
Finally, Hansler states in his brief that he is “appealing the fact that Judge Pearson denied my Rule 37 petition without a hearing.” Pursuant to Rule 37.3(a), the trial court has the discretion to deny relief under the Rule without a hearing. Sims v. State, 2015 Ark. 363, at 16, 472 S.W.3d 107, 118. The trial court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit.” Bienemy v. State, 2011 Ark. 320, 2011 WL 3930364 (per curiam). Because Hansler’s petition lacked factual support for the claims it contained, we cannot say that the files and records of the case and the petition itself did not conclusively show that Hansler’s allegations of ineffective assistance of counsel were not well taken. Therefore, the trial court did not err in denying the petition without a hearing. See Robinson v. State, 2014 Ark. 310, 439 S.W.3d 32 (per curiam) (This court may affirm the denial of a Rule 37.1 petition, regardless of the adequacy of the order, when the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted.).
Affirmed; motion moot. | [
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James R. Cooper, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that the appellant failed to prove that certain medical treatment was reasonable and necessary for her compensable injury. On appeal, the appellant contends that the Commission’s decision is not supported by substantial evidence. We agree and reverse and remand for the reasons discussed herein.
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. Garrett v. Sears, Roebuck & Co., 43 Ark. App. 37, 858 S.W.2d 146 (1993). However, this stan-. dard must not totally insulate the Commission from judicial review and render this Court’s function in these cases meaningless. Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 756 S.W.2d 923 (1988). We will reverse a decision of the Commission when we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Price v. Little Rock Packaging Co., 42 Ark. App. 238, 856 S.W.2d 317 (1993).
The appellant sustained a compensable injury on October 18, 1990. She was initially treated by Dr. R.L. Turney and was subsequently referred to Dr. P.B. Simpson, Jr., a neurosurgeon. On November 20, 1990, Dr. Simpson performed a myelogram and a post myelogram CT scan which revealed a herniated nucleus pulposus at C5-6, along with cervical spondylosis. On November 26, 1990, Dr. Simpson performed a diskectomy at C5-6 with an anterior cervical fusion. On December 2, 1990, Dr. Simpson performed another myelogram and post myelogram CT scan which revealed minimal indentation of the thecal sac at C4-C5 and C5-C6, along with mild root swelling at those levels. The appellant suffered a grand mal seizure after the second myelo-gram. She was discharged from the hospital on December 5, 1990. The appellant returned to Dr. Turney and Dr. Simpson for regular follow-up visits and continued treatment.
The appellant petitioned for a change of physicians, or in the alternative, for an independent medical examination. An independent medical examination was completed by Dr. Robert Abraham, a neurosurgeon, on August 30, 1991. After reviewing the appellant’s radiographic studies, he opined that the appellant had right cervical radiculopathy and recommended a conservative course of treatment. The appellant’s final visit with Dr. Simpson was on January 20, 1992, at which time Dr. Simpson concluded that no further treatment was needed. He indicated that he was not impressed with the appellant’s symptomatology. Dr. Simpson assigned an impairment rating of 15% to the appellant’s body as a whole and released her from his care.
Dr. Turney subsequently referred the appellant to Dr. Ray Jouett, who examined the appellant on March 11, 1992. Dr. Jou-ett found that an MRI revealed some spondylosis at C5-6 and opined that the appellant may not have had a good fusion at that level. Consequently, Dr. Jouett referred her to one of his associates, Dr. David L. Reding, who performed additional surgery on the appellant.
The administrative law judge awarded the appellant temporary total disability benefits and found that the medical treatment rendered by Dr. Ray Jouett and Dr. David Reding was com- pensable as authorized referrals for reasonable and necessary treatment from the appellant’s authorized treating physician, Dr. Turney. The Commission reversed the ALJ’s decision and found that the appellant failed to prove by a preponderance of the evidence that the treatment provided by Dr. Jouett and Dr. Reding was reasonably necessary for the treatment of her compensable injury. In doing so, the Commission found it unnecessary to address the other findings of the ALJ.
The Commission found that the record contained only minimal evidence of the services provided by Dr. Jouett and Dr. Red-ing. It noted that the findings of Dr. Jouett and Dr. Reding which were in the record were consistent with the findings of Dr. Simpson and Dr. Abraham and, based on essentially the same findings, both Dr. Simpson and Dr. Abraham concluded that the surgery was not indicated. The Commission further noted that Dr. Red-ing indicated that the decision to operate was based on the failure of other forms of treatment to relieve the appellant’s condition. The Commission placed greater weight on the opinions of Dr. Simpson and Dr. Abraham.
However, although Dr. Abraham recommended conservative treatment for the appellant, he did not suggest that further treatment was not in order. Dr. Simpson’s office notes indicate that the appellant continued to experience pain in her neck which radiated into her right shoulder, arm, and hand. Even Dr. Simpson recommended that the appellant undergo another myelogram in order to discover the cause of her continued complaints of pain. However, the appellant testified that she was afraid to submit to another myelogram because of the seizure she previously experienced. Apparently, the conservative treatment of the appellant was not improving her condition. Dr. Reding found the appellant’s diagnostic studies indicated a pseudoarthrosis at C56 with persistent osteophyte on her right side. He opined that this was probably causing her persistent pain syndrome. He repeated her decompression and fusion and noted that she seemed to do well with the procedure. We do not think that fair-minded persons with the same facts before them could have concluded that the appellant failed to prove by a preponderance of the evi dence that the medical treatment by Dr. Jouett and Dr. Reding was reasonable and necessary. We therefore reverse the Commission’s finding in this regard and remand to the Commission for review of the remaining issues.
Reversed and remanded.
Pittman and Mayfield, JJ„ agree.
We note that the Commission did not make any determination regarding the appellant’s award of temporary total disability benefits. | [
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KENNETH S. HIXSON, Judge
11Appellant Rhonda Donham appeals from an order placing permanent custody of her daughter with Danny and Helen Carrington. On appeal, she argues that there was insufficient evidence presented at the permanency-planning hearing to support an award of permanent custody to a third party. Rhonda alternatively argues that the trial court erred in declining to award her unsupervised visitation or set a visitation schedule. We affirm.
This dependency case involves Rhonda Donham and her only child, fifteen-year-old R.D. Rhonda had custody of R.D. A family-in-need-óf-services case was opened in February 2016 at Rhonda’s request. Rhonda was on a fixed income ($1700 per month in Social Security disability benefits) and asked for assistance with getting her water reconnected and having adequate food in the house. Arkansas Department of Human |2Services (DHS) provided supportive services to Rhonda to help with food and utilities and to assist with her budgeting skills.
On August 8, 2016, emergency custody of the child was taken and R.D. was placed in the custody of Danny and Helen Car-rington. The emergency custody was based on Rhonda’s failure to keep food in the home, failure to set up a budget with DHS, and failure to attend counseling. On August 12, 2016, DHS filed a petition for emergency custody and dependency-neglect, and, the trial court entered an ex' parte order for emergency custody on August 15, 2016. The trial court entered a probable-cause order on August 23, 2016.
On October 11, 2016, the trial court entered an adjudication order of a dependent juvenile. In that order, the trial court found that R.D. was a dependent juvenile as defined by Arkansas Code Annotated section 9-27-303(17)(B) (Repl. 2015). The trial court found that, despite receiving adequate income, Rhonda did not budget properly to provide for R.D., that the water was shut off for a period of time, and that there was not adequate food in the home. The trial court also found that Rhonda suffered from mental disorders for which she takes medication. The trial, court set the case goal as reunification.
| a A review order was entered on January 23, 2017. In the review order, the trial court continued the case goal as reunification. The trial court found that Rhonda had partially complied with the case plan, maintained contact with R.D., maintained stable housing, and completed a psychological evaluation. However, Rhonda had refused to participate in budgeting-assistance services and had missed some counseling appointments.
After a permanency-planning hearing held on March 27, 2017, the trial court entered a permanency-planning and permanent-custody order on April 21, 2017. In that order, the trial court found that the return of R.D. to the custody of her mother was contrary to the welfare of the child. In accordance with .the best interest of the child, the trial court placed R.D. in the permanent custody of the Carringtons. The trial court found that Rhonda had not complied with the case plan or orders of the court- in that she had failed to (1) attend two court-ordered psychological evaluations; (2) maintain stable housing; (3) maintain reliable transportation; (4) participate in individual counseling; (5) properly complete budgeting sheets; and (6) .cooperate with DHS. The trial court further found that R.D- was fearful for her safety while in her mother’s care, and that R.D. was “a, different child than the one who initially entered. DHS custody in that said juvenile is now well-adjusted, happy, and unafraid.” The trial court ordered that Rhonda have no unsupervised contact with R.D., but stated that the Carringtons were willing to arrange, at their discretion, supervised visits between Rhonda and R.D. The order of permanent custody was to remain in effect until further orders of the court, and the matter was subject to being reopened for modification.
| ¿Maxine Sterrate, the caseworker for this case, testified at the permanency-planning hearing. Ms. Sterrate stated that, despite DHS efforts, Rhonda had not been cooperative or compliant with the case plan. Ms. Sterrate indicated that one of Rhonda’s problems was budgeting, and that she could never budget properly or comply with the budgeting plan. "Ms. Ster-rate further testified that Rhonda was bipolar and was no longer attending mental-health counseling sessions. Ms. Sterrate testified that Rhonda did have weekly supervised visits with R.D.,. but said that there was little communication during the visits. Ms. Sterrate also stated that during her home visits there was not much food in Rhonda’s house. In Ms. Sterrate’s opinion, R.D. could not be returned to Rhonda’s custody at that time.
Ms. Sterrate testified that R.D. was doing well, making good grades, and had no behavioral problems while in the Carring-tons’ custody. She stated that the Carring-tons’ home was clean and suitable and that they had received an approved home study. Ms. Sterrate stated that R.D. wished to remain with the Carringtons and that the Carringtons wanted permanent custody of her. Ms. Sterrate recommended that permanent custody be awarded to the Carringtons. With respect to Rhonda’s visitation with R.D., she hoped it could be worked out between Rhonda and the Car-ringtons, but she did not think it should be unsupervised.
Danny Carrington testified that he and his wife, Helen, wanted permanent custody of R.D. He stated that they were trying to help R.D. in any way they could, and he indicated that R.D. had become part of their family. If granted permanent custody,J^Mr. Carrington said he would not have any problem with Rhonda having visits if they were supervised. He thought that unsupervised visits with Rhonda might be unsafe.
R.D. testified that she had been to court several times, that each time her testimony was that she did not wish to return home to her mother, and that was still true today. R.D. did not feel like her mother could adequately care for her at this time. R.D. stated that her life has changed dramatically since she has been with the Car-ringtons. She receives support she had never received before, and she enjoys having meals cooked for her, as well as being helped with school and extracurricular activities. R.D. stated that, when she was with her mother, she could not be a typical teenager, and she was always worried about whether the water would be disconnected or if they had enough food. However, in the Carringtons’ care she no longer has such worries. Her life with her mother was stressful, and her life in her present placement is not. If the trial court granted permanent custody to the Carringtons, R.D. still wanted visitation with her mother, but she thought it would be good if the visits were supervised because she and her mother are known for conflict and do not have the best relationship.
Rhonda testified on her own behalf, and she stated that she had been attending counseling and had been doing her best to budget her finances. However, Rhonda acknowledged that things had fallen apart financially for her and that her car had been repossessed. Rhonda stated that her house was for sale, and that if it sold she would move to an apartment. Rhonda thought she could adequately take care of R.D., and asked the trial court to send R.D. home with her. Rhonda testified that she suffers from bipolar | ^schizophrenia and depression, and that when unmedicat-ed she has hallucinations. She stated that she was diagnosed with mental-health conditions in 1998 and has been on medication ever since.
On appeal from the trial court’s order placing permanent custody of R.D. with the Carringtons, Rhonda argues that there was insufficient evidence that the custody placement was in the child’s best interest. She further contends that the order must be reversed because the trial court did not explicitly find her to be unfit in its order. Rhonda cites Devine v. Martens, 371 Ark. 60, 263 S.W.3d 515 (2007), where the supreme court stated that the law prefers permanent custody with a parent over a third party unless the parent is proved to be incompetent or unfit. Finally, Rhonda argues that, even if we affirm the permanent placement with the Carring-tons, the trial court erred in not awarding her unsupervised visitation or setting a definite visitation schedule. Rhonda asserts that unsupervised visits with R.D. would not be a safety concern.
Juvenile proceedings are equitable in nature; therefore, our standard of review on appeal is de novo. Chase v. Ark. Dep't of Human Servs., 2013 Ark. App. 474, 429 S.W.3d 321. However, the trial court’s findings of fact are not reversed unless they are clearly erroneous. Rose v. Ark. Dep’t of Human Servs., 2010 Ark. App. 668, 2010 WL 3902858. 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.
17The provisions in the Arkansas Juvenile Code relevant to this appeal are in the permanency-planning statute, Arkansas Code Annotated section 9-27-338 (Repl. 2015). Subsection (c) of the statute provides, in relevant part:
(c) At the permanency planning hearing, based upon the facts of the case, the circuit court shall enter one (1) of the following permanency goals, listed in order of preference, in accordance with the best interest, health, and safety of the juvenile:
(1) Placing custody of the juvenile with a fit parent at the permanency planning hearing;
(2) Returning the juvenile to the guardian or custodian from whom the juvenile was initially removed at the permanency planning hearing;
(3) Authorizing a plan to place custody of the juvenile with a parent, guardian, or custodian only if the court finds that:
(A)(i) The parent, guardian, or custodian is complying with the established case plan and orders of the court, making significant measurable progress toward the goals established in the case plan and diligently working toward reunification or placement in the home of the parent, guardian, or custodian.
(ii) A parent’s, guardian’s, or custodian’s resumption of contact or overtures toward participating in the case plan or following the orders of the court in the months or weeks immediately preceding the permanency-planning hearing are insufficient grounds for authorizing a plan to return or be placed in the home as the permanency plan.
(iii) The burden is on the parent, guardian, or custodian to demonstrate genuine, sustainable investment in completing the requirements of the case plan and following the orders of the court in order to authorize a plan to return or be placed in the home as the permanency goal; and
(B)(i) The parent, guardian, or custodian is making significant and measurable progress toward remedying the conditions that:
(a) Caused the juvenile’s removal and the juvenile’s continued removal from the home; or
(b) Prohibit placement of the juvenile in the home of the parent.
(ii) Placement of the juvenile in the home of the parent, guardian, or custodian shall occur within a time frame consistent with the juvenile’s developmental needs but no later than three (3)' months from the date of the permanency-planning hearing.
(4) Authorizing a plan for adoption with the department’s filing a petition for termination of parental rights unless
(5) Authorizing a plan to obtain a guardian for the juvenile;
| r(6) Authorizing a plan to obtain a permanent custodian, including perma nent custody with a fit and willing relative; or
(7)(A) Authorizing a plan for another planned permanent living arrangement that includes a, permanent planned living arrangement and addresses the,quality of services, including, but not limited to, independent living services and a plan for the supervision and nurturing the juvenile will receive.
(Emphasis added.)
Based on our review of the record, we conclude that the trial court did not clearly err in finding that permanent custody of R.D. to the Carringtons, under the sixth preference in the permanency-planning statute, was in the best interest of the juvenile and in' accordance with her health and safety. The first preference of the statute returns a child to a fit parent only when it is in the best interest of the child and the child’s health and safety can be adequately safeguarded if returned home. In the permanent-custody order, the trial court found that the return of R.D. to the custody to her mother was contrary to the welfare of the juvenile; The trial court found that R.D. was fearful for her safety in her mother’s custody, and that in the Carringtons’ custody she is a “different child” who is “well-adjusted, happy and unafraid.” In the permanent-custody order, the trial court did not find Rhonda to be a fit parent.
The testimony at the permanency-planning hearing demonstrated that Rhonda had significant and chronic financial issues, that she had not been compliant with DHS or the case plan, and that R.D. strongly preferred to not be returned to her mother’s custody. Rhonda has mental-health issues, no transportation, and a history of providing insufficient |nfood and allowing utilities to be disconnected. These issues were, by R.D.’s own testimony, a source of constant stress for R.D. By all accounts, the Carringtons are providing excellent care for R.D., and she wishes to remain in their custody. We hold that the trial court’s decision to place R.D. in the Car-ringtons’ permanent custody was not clearly erroneous because that custody placement was in accordance with the best interest, health, and safety of the juvenile.
Rhonda’s remaining argument is that the trial court erred in declining to award unsupervised visitation or set a visitation schedule. The fixing of visitation rights is a matter that lies within the discretion of the trial court, with the primary consideration being the best interest of the child. Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006).
Here, the trial court allowed Rhonda supervised visitation at the Carringtons’ discretion and stated that the Carringtons were willing to arrange visitation. This was consistent with Mr. Carrington’s testimony that he would have no problem with Rhonda having supervised visits. As a result of tensions between R.D, and Rhonda, R.D. wanted the visitation with her mother to be supervised as did the caseworker and Mr. Carrington. Based on our review, we conclude that the visitation arrangement set forth in the permanent-custody order was not an abuse of discretion.
Affirmed.
Glover, J., concurs.
Gladwin, J., agrees.
. R.D.’s father is unknown.
. R.D. has remained in the Carringtons’ custody ever since.
. That provision provides that a- dependent juvenile is a child whose parent is incapacitated so that the parent cannot provide care for the juvenile and the parent has no appropriate relative or friend .willing or able to provide care for the child.
. These medical disorders were documented as bipolar disorder and borderline-personality disorder.
. The trial court had previously found in the adjudication order that Rhonda was incapacitated, meaning that she was unable to provide for the child’s care. | [
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Andree Layton Roaf, Judge.
This case involves a boundary dispute between adjoining landowners. Appellants claim that two boundaries between their property and appellees’ were established through either adverse possession, boundary by agreement, or the doctrine of boundary by acquiescence. The chancellor found that appellants had failed to establish boundary line by acquiescence or adverse possession and that a 1996 survey com missioned by appellees accurately established the boundary lines. We find no error and affirm.
Appellants and appellees are next-door neighbors in the town of Garfield. Appellants acquired their property from the Lawson family on January 14, 1994. Mrs. Reba Lawson had lived on the property since 1985. Appellees purchased their land from the estate of Ruth Carter on July 28, 1995. The Carters had resided on the property since at least 1951. Appellants’ property bordered appellees’ property on both the east and the north.
The controversy that gave rise to this case began when appellees procured a survey of their property in October 1996. Upon receipt of the survey, appellee Gary Eckel began construction of a fence along his eastern and northern borders. Appellants immediately filed a petition in Benton County Chancery Court to stop the construction. They alleged that the predecessors in title to both pieces of property — Mrs. Carter and Mrs. Lawson — had agreed upon boundary lines that differed from those shown on the survey. Specifically, appellants claimed that a small ridge running between the properties had been “acquiesced” in as the east/ west boundary and that a stone wall had been acknowledged as the north/south boundary for more than seven years. They stated further that they had adversely possessed the disputed area along the north/south border. Appellees generally denied appellants’ allegations. The case went to trial, and the chancellor made the following findings:
2. That the plaintiffs have failed to prove by a preponderance of the evidence that a boundary line dividing the parties [sic] property has been established by acquiescence or that the plaintiffs have adversely possessed the defendants property.
3. This court further finds that the survey which was stipulated as exhibit “4” and which has been filed for record in November of 1996 is the accurate boundary which divides the parties [sic] property.
It is from this order that appellants bring their appeal.
Chancery cases are reviewed de novo on appeal. Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). We will not reverse a chancellor’s finding of fact in a boundary dispute case unless the finding is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id. Location of a boundary fine is a question of fact. Kittler v. Phillips, 246 Ark. 233, 437 S.W.2d 455 (1969); Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).
Appellants’-first argument on appeal is styled as follows: THE TRIAL COURT WAS IN ERROR IN HOLDING THAT THE APPELLANTS FAILED TO MEET THEIR BURDEN OF PROOF IN ESTABLISHING THE NORTHERN AND EASTERN BOUNDARIES BY ACQUIESCENCE. Our review of this case is complicated by appellants’ use of the terms “boundary by agreement” and “boundary by acquiescence” as though they were one and the same. They are not. See Seidenstricker v. Holtzendoff, 214 Ark. 644, 217 S.W.2d 836 (1949). In the case of a boundary by agreement, the landowners have made a parol agreement as to the location of the boundary. See, e.g., Nunley v. Orsburn, 312 Ark. 147, 847 S.W.2d 702 (1993); Moeller v. Graves, 236 Ark. 583, 367 S.W.2d 426 (1963). For a valid oral boundary line agreement to exist, four factors must be present: (1) there must be an uncertainty or dispute about the boundary fine; (2) the agreement must be between the adjoining landowners; (3) the line fixed by the agreement must be definite and certain; and (4) there must be possession following the agreement. Nunley v. Orsburn, supra; Fields v. Griffen, 60 Ark. App. 186, 959 S.W.2d 759 (1998). The agreement is binding even if the parties entering into possession pursuant to it do not occupy the land for the full statutory period of seven years. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972).
By contrast, a boundary by acquiescence arises not by a parol agreement but from the actions of the parties. See Jennings v. Buford, supra. It is more in the nature of an implied agreement presumed to exist by the long acquiescence of adjoining landowners who apparently consent to a dividing fine between their properties. Raborn v. Buffalo, 260 Ark. 531, 542 S.W.2d 507 (1976). The concept is based upon the landowners’ tacit acceptance of a fence fine or other monument as the visible evidence of their dividing line. Walker v. Walker, 8 Ark. App. 297, 651 S.W.2d 116 (1983). The acquiescence need not occur over a specific length of time, although it must be for “many years” or a “long period of time.” Jennings v. Burford, supra. But see Rabjohn v. Ashcraft, supra, holding that the acquiescence must exist for a period of seven years. Most boundary by acquiescence cases involve time periods of at least twenty years. See Kitler v. Phillips, supra (over fifty years); Clay v. Dodd, 238 Ark. 604, 383 S.W.2d 504 (1964) (fifty years); Gregory v. Jones, 212 Ark. 443, 206 S.W.2d 18 (1947) (thirty-four years); Jennings v. Burford, supra (twenty years); Summers v. Dietsch, supra (twenty years).
The caption of appellants’ argument refers to boundary by acquiescence, as does the chancellor’s decree. However, the majority of appellants’ proof below and their argument on appeal are directed to the theory of boundary by agreement. Because appellants and the chancellor treated the theories of boundary by agreement and boundary by acquiescence interchangeably, we consider the merits of the appeal as to both theories.
Appellants’ first argument focuses on two matters: (1) whether a boundary agreement actually existed between appellants’ and appellees’ predecessors in title, and (2) if an agreement did exist, whether it fixed a definite and certain boundary fine. The chancellor made no specific finding regarding the existence of an agreement. But at the close of the evidence at trial, he found that the proof was not sufficient to allow him to establish a definite, agreed-upon boundary line. We cannot say that the chancellor’s finding was clearly erroneous.
Appellant Allen Lammey testified that the east/west boundary between the properties was agreed upon by Mrs. Lawson and Mrs. Carter as follows: The southern point of the boundary line began at a maple tree. It extended northward along a ridge that ran part of the length of the property. The boundary was “aimed down” by a lilac bush that was in line with an iris garden, other flower gardens (some of which were no longer in existence), and three elm trees. The northernmost corner was represented by the corner of a rock wall that was no longer there. Lammey had marked the spot with a rock. Rick Lawson, the son of Reba Law son, testified that the maple tree at the southern point of the fine was “close to the boundary.” On cross-examination, he marked the southernmost point on a photograph at a location other than the maple tree. He testified that the line went through the lilac bush, through the flower beds, and to a group of elm trees. He further testified that the northernmost point of the east/west boundary was marked by a pin in the ground about a foot from a walnut stump. Appellee Gary Eckel testified that there had been a lilac bush on the property other than the one referred to by Lam-mey and Lawson and that he had torn it down.
Regarding the north/south border between the properties, Lammey testified that a rock wall, since torn down, represented the border fine. He said that the wall extended from the easternmost point westward to some remnants of an old fence. The remnants were located about four feet behind a barn that was no longer there. On cross-examination, Lammey admitted that the rock wall he referred to was actually a large rock pile. Lawson testified that the easternmost point of the border began at the pin near the walnut stump and ran westward to a point about three feet behind where the barn had been. He acknowledged that the “rock wall” was treated as a boundary, although he could not say if Mrs. Carter had considered it a boundary.
It is essential to the validity of a binding boundary line agreement that the boundary line fixed by agreement be definite, certain, and clearly marked. Walters v. Meador, 211 Ark. 505, 201 S.W.2d 24 (1947). Appellants cite Disney v. Kendrick, 249 Ark. 248, 458 S.W.2d 731 (1970), in which the chancellor’s finding of boundary by agreement was affirmed, in support of their argument that their proof was sufficient to establish a boundary line. The Disney case involved a boundary dispute between the Disneys and the Kendricks, who shared one common boundary between them. The chancellor found that, even though at one point no specific marker or monument plainly marked the boundary fine, a boundary by agreement was established when the Disneys and Mr. Fink, the Kendricks’ predecessor in title, installed concrete stobs at the southern and northern border points of their properties.
The proof in this case regarding the location of the boundary, or at least the end points of the boundaries, is not as conclusive as that in Disney. Approximate points are not sufficient. See DeClerk v. Johnson, 268 Ark. 868, 596 S.W.2d 359 (Ark. App. 1980). Appellants’ evidence may have provided a general idea regarding the location of what they contended was the agreed boundary. But we cannot say that, given the conflicts in Lammey’s and Lawson’s testimony and the destruction of certain landmarks relied upon by appellants, that, the chancellor’s decision should be reversed.
Appellants’ next argument on appeal is that the chancellor erred in holding that they were required to establish open and notorious possession for a period of seven years to prove “boundary by acquiescence.” Appellants are referring to the following remarks made by the court at the close of the evidence:
I mean there has to be an exact definitive location. It can’t just be out there somewhere. It has got to be exact. There are no monuments out there. I mean this rock wall was the best, but that turned out to be — I believe the general consensus now is it was probably more of a berm of rocks thrown out of a garden plot. Somebody mowed up to it on one side, and of course you couldn’t mow the rocks, so then somebody trimmed the rocks on the top, but that is not a definite marker. Of course, the other thing you have too is that case law has consistently said it requires a long period of time, and the case law has consistently used the term seven years which is for adverse possession. Also, as we are well aware, adverse possession requires more then [sic] just occupancy. That’s part of it, but then it has to be adverse, hostile, continuous possession for over a period of seven years. Here your people can only state for certainty their occupancy on the property, which was less than four years.
The court’s remarks again reflect the confusion both appellants and the chancellor were under in this case regarding the difference between boundary by acquiescence and boundary by agreement. Appellants are correct that possession for a period of seven years is not necessary to prove a boundary by agreement. Rabjohn v. Ashcraft, supra. However, a boundary may be established by acquiescence in a “clearly established line as the boundary over a period in excess of seven years” (emphasis added), and without the necessity of a prior dispute or adverse usage up to the line. Id. When the court’s remarks are viewed as a whole, it was the lack of certainty regarding the boundary line that made up the court’s mind to rule against appellants, and the remarks regarding adverse possession were offered as merely an additional reason to deny appellants’ petition. On de novo review, we cannot say that the trial court’s finding of uncertainty about the location of the line, which precludes appellants from prevailing on either a theory of boundary by agreement or boundary by acquiescence, is clearly erroneous.
Affirmed.
Neal and Meads, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Myeshia Stevens entered J a conditional guilty plea to possession of marijuana with intent to deliver pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, reserving in writing her right to appeal from the judgment and challenge the trial court’s denial of her motion to suppress. On appeal, Ms. Stevens argues that her motion to suppress should have been granted because the searches and seizures of her person and her vehicle violated the Fourth Amendment of the United States Constitution, as well as Article 2, Section 15 of the Arkansas Constitution. Ms. Stevens also argues that the statement and evidence she gave to the police should have been suppressed because she was not given Miranda warnings. We agree with Ms. Stevens’ first argument, and we reverse and remand.
Officer Randall Robinson of the Little Rock Police Department testified at the suppression hearing. He stated that he was on patrol at about 2:45 a.m. on December 12, 2003, and was parked in a lot adjacent to the Exxon store on the corner of Asher and 36th Street. Officer Robinson stated that there had been numerous prior complaints from the Exxon clerk pertaining to people loitering in the parking lot after leaving nearby clubs.
Officer Robinson observed a car enter and stop in one of the car-wash stalls on the Exxon property. Officer Robinson stated that there was not much traffic and that there were plenty of open parking spaces in front of the store. Officer Robinson watched the vehicle for eight to ten minutes and observed no activity. He then decided to make contact with the driver to “check on the condition of the subject.”
Officer Robinson activated his blue lights and pulled up to the car-wash stall. Ms. Stevens was in the driver’s seat and a woman named Anquetta Thompson was in the passenger’s seat. Officer Robinson knocked on the driver’s side window, and Ms. Stevens lowered the window. Officer Robinson asked Ms. Stevens why she was there, and she replied that she was getting ready to purchase some items from the store. As Officer Robinson talked to Ms. Stevens, he smelled a strong odor of marijuana coming from the vehicle. He informed Ms. Stevens of this fact and asked her to step out of the car so he could conduct a pat-down search.
After Ms. Stevens exited the vehicle, Officer Robinson asked her if she had any drugs or weapons. Ms. Stevens advised that she had a blunt (marijuana wrapped within a cigar), and retrieved it from her front pocket and handed it to Officer Robinson. Another patrol unit arrived to offer assistance, and a female officer conducted a pat-down search of both Ms. Stevens and Ms. Thompson, but found no contraband. Ms. Stevens was arrested and placed in the back of Officer Robinson’s patrol car.
Officer Tom Dillon testified that he assisted Officer Robinson in conducting an inventory search of the vehicle because they were going to have it towed. During the search, Officer Dillon found a small bag under the driver’s seat that contained marijuana, a set of scales, some money, and Ms. Stevens’ driver’s license. Officer Dillon found another bag in the back seat behind the driver’s seat that contained several baggies of suspected marijuana.
Officer Robinson acknowledged on cross-examination that, prior to this occasion, he had never met Ms. Stevens or Ms. Thompson, and had no warrants for their arrest or knowledge of any suspected criminal activity “other than what the clerk had advised in the store.” At no point did Officer Robinson read Ms. Stevens her Miranda rights or advise her that she did not have to talk to him.
Ms. Stevens’ first argument is that the searches and seizures of her person and vehicle were unlawful. She contends that Officer Robinson lacked authority to initiate the encounter, and thus that all of the evidence seized as a result of the encounter was fruit of the poisonous tree and should have been suppressed.
Ms. Stevens correctly asserts that Rule 3.1 of the Arkansas Rules of Criminal Procedure authorizes a law enforcement officer to “stop and detain any person he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.” However, Ms. Stevens asserts that this rule is inapplicable because Officer Robinson lacked any reasonable suspicion that she was engaged in or was about to engage in any such criminal activity. Ms. Stevens submits that her presence in the car-wash stall was completely lawful and notes that while there had been complaints of loitering in the past, there were no such complaints on the evening at issue and there were no loiterers in the parking lot.
Ms. Stevens further argues that Officer Robinson’s conduct was not justified under Rule 2.2, which provides:
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
(b) In making a request pursuant to this rule, no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists. Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.
In Jennings v. State, 69 Ark. App. 50, 10 S.W.3d 105 (2000), we held that an encounter under Rule 2.2 is permissible only if the information or cooperation being sought is in the investigation of a particular crime. Ms. Stevens notes that in the present case, Officer Robinson was not investigating any particular crime when he made contact with her. Because Officer Robinson had no reasonable suspicion under Rule 3.1 and was not investigating a crime as contemplated by Rule 2.2, Ms. Stevens argues his contact with her was illegal.
When we review a denial of a motion to suppress the 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 inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We hold that the trial court erred in denying Ms. Stevens’ motion to suppress because Officer Robinson’s confrontation with Ms. Stevens was unauthorized, and all of the evidence seized was the fruit of an illegal detention.
Ms. Stevens is correct in asserting that the encounter was not justified by either Rule 3.1 or Rule 2.2. By Officer Robinson’s own testimony, there was no reasonable suspicion that Ms. Stevens was engaged in any criminal activity, and he was not asking for cooperation in the investigation or prevention of a particular crime.
The State argues that the encounter was lawful, citing Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990). In that case, Officer Parsons observed Mr. Thompson’s car parked legally on a street with its lights on and motor running and the vehicle remained there ten minutes later. The officer approached the car and found that Mr. Thompson was in the driver’s seat and smelled of alcohol. The officer then conducted sobriety tests and arrested Mr. Thompson for DWI. In affirming the trial court’s denial of Mr. Thompson’s motion to suppress, the supreme court explained:
Not all personal intercourse between policemen and citizens involves “seizures” of persons under the fourth amendment. See Terry v.Ohio, 392U.S.1 (1967). A “seizure” occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id.
Police-citizen encounters have been classified into three categories. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir.1988). The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some question. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. Id. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. Id.
Here, Officer Parsons’ approach to investigate the appellant’s car parked in a public place fits into the first category, and thus is not a “seizure” within the meaning of the fourth amendment. (Citations omitted).
After observing a car with its lights on and motor running parked in the early morning hours in the same place for ten minutes, Officer Parsons acted properly in approaching appellant’s car and asking the appellant “what the problem was.” At this point, the record does not show that Officer Parsons restrained the liberty of the appellant by means of physical force or a show of authority. The officer did not approach the car exhibiting a weapon or ordering the appellant out of his vehicle. Thus, there was no “seizure” under the fourth amendment. The “seizure” of the appellant occurred only after the officer addressed the appellant and noticed the odor of alcohol after appellant volunteered he had been at a club. Then, the officer had a reasonable suspicion that the appellant had committed or was about to commit a DWI and properly asked him to exit his car. See Ark. R. Crim. P. Rule 3.1.
Thompson v. State, 303 Ark. at 409-10, 797 S.W.2d at 451-52. In the case at bar, the State asserts that the encounter was lawful because, as in Thompson v. State, supra, the initial contact was not a “seizure,” and the subsequent search was lawful because Officer Robinson smelled marijuana. See McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999).
We disagree with the State’s argument that the initial contact by Officer Robinson did not constitute a seizure under the Fourth Amendment. The material difference between this case and Thompson v. State, supra, is that the officer in this case activated his blue lights before making the contact.
A person has been seized within the meaning of the Fourth Amendment only if, in view of all circumstances surrounding the incident, a reasonable person would believe he was not free to leave. United States v. Mendenhall, 446 U.S. 544 (1980); Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002). If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed. Florida v. Royer, 460 U.S. 491 (1983); Jefferson v. State, supra. The Supreme Court has held that so long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual, and no reasonable suspicion is required. See California v. Hodari D., 499 U.S. 621 (1991).
In the present case, Ms. Stevens was seized at the time that Officer Robinson knocked on her window after approaching and stopping in his patrol unit with blue lights flashing. This is because there was a sufficient show of authority to compel a reasonable person to believe that she was not free to disregard the officer and go about her business or leave the scene. The encounter was not consensual and Officer Robinson lacked any reasonable suspicion, and thus the subsequent seizure of all of the evidence was illegal.
For the foregoing reasons, we hold that the trial court erred in denying Ms. Stevens’ motion to suppress. Because we hold that there was a Fourth Amendment violation, we need not address Ms. Stevens’ alternate argument pertaining the officer’s failure to administer Miranda warnings. We reverse and remand with directions that all the seized evidence be suppressed and that Ms. Stevens be allowed to withdraw her guilty plea pursuant to Ark. R. Crim. P. 24.3(b).
Reversed and remanded.
Glover and Neal, JJ., agree. | [
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Andree Layton Roaf, Judge.
Detric L. Conway appeals his conviction in a Garland County jury trial of theft by receiving property worth over $500. He received a thirty-year sentence in the Arkansas Department of Correction as an habitual offender. On appeal, Conway raises two arguments: 1) the trial court erred in admitting his statement to police that he owned the vehicle he was driving, in violation of his Miranda rights; and 2) the use of AMCI 3605 in instructing the jury violated his right not to testify and conflicted with AMCI 111. We affirm.
On April 2, 1997, Officer Paul Norris of the Hot Springs Police Department made a traffic stop of Conway. The bronze-colored 1981 Cadillac Fleetwood that Conway was driving had no license plate. Conway was unable to produce a driver’s license, proof of insurance, or proof of registration, but told the officer that it was his car. Officer Norris gave Conway traffic citations and told him that he would not be allowed to continue to operate the vehicle without tags, registration, proof of insurance, and a driver’s license. Conway was allowed to park the car at a nearby gas station, and Norris ended the encounter. At the time, Conway was not suspected of any other criminal activity. According to Officer Norris, a check of the vehicle identification number conducted at that time revealed that the car was not stolen.
On April 3, 1997, Hot Springs Police Department Lieutenant Bob Southard, who backed up Officer Norris on the traffic stop the day before, again stopped Conway for driving the bronze-colored 1981 Cadillac. This time the vehicle bore a fictitious plate, and Conway was arrested. When the police conducted an inventory search of the vehicle, they discovered several stereo speakers and other stereo components.
Detective Gary Hawkins traced the stereo speakers and components found in Conway’s vehicle to burglaries at W.C.’s Pawn Shop and the residence of James Kidd. Wade Singleton, the owner ofW.C.’s Pawn Shop, and James Kidd subsequently identified the items as their property.
Conway was charged by information with theft by receiving property valued in excess of $500. The information also alleged that Conway was an habitual offender and reflected that he had been convicted of Criminal Attempt to Commit Burglary on September 19, 1995, two counts of felony Theft by Receiving on October 26, 1993, one count of felony Theft by Receiving on October 27, 1992, and Breaking or Entering on August 17, 1992.
Trial was held on July 11, 1997. Conway moved to suppress his statement that he owned the 1981 bronze-colored Cadillac, made during the April 2, 1997, traffic stop. The motion was denied. At the close of the trial, Conway objected to the use of AMCI 3605, and proffered a version that did not include the unexplained-possession-of-stolen-property presumption. The trial court overruled the objection.
Conway first argues that the trial court erred in admitting his statement. Relying on Miranda v. Arizona, 384 U.S. 436 (1965), Conway asserts that his statement that he owned the vehicle he was driving at the time of the April 2, 1997, traffic stop should not have been admitted because the circumstances under which he gave the statement constituted custodial interrogation and he was not given his Miranda warnings. This argument is without merit.
The statement that Conway seeks to have suppressed was given in the course of a routine traffic' stop, while he remained seated in his car. In Berkemer v. McCarty, 468 U.S. 420 (1984), the U.S. Supreme Court held that an individual in this situation is not subjected to restraints comparable to those associated with a for mal arrest and therefore it does not constitute custodial interrogation for Miranda purposes. See Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992)(holding that where officer issued offender a citation in lieu of arrest after a routine traffic stop, the accused was not “in custody” for purposes of Miranda warnings).
When this court reviews a trial court’s denial of a motion to suppress an inculpatory statement, it makes an independent determination based on the totality of the circumstances, and only reverses if the trial court’s decision was clearly against the preponderance of the evidence. Milton v. State, 54 Ark. App. 96, 924 S.W.2d 465 (1996). Under the totality of the circumstances standard, the trial court’s decision not to suppress Conway’s statement is not clearly erroneous.
Conway next argues that the use of AMCI 3605 in instructions to the jury violated his right not to testify and conflicted with AMCI 111. Citing Article 2, § 8, of the Arkansas Constitution, Conway asserts that he has an absolute right not to testify, and that right was promulgated to the jury at his trial in AMCI 111. He argues, however, that AMCI 3605, another jury instruction used in his trial, direcdy conflicts with this right. The offending jury instruction stated:
Detric L. Conway is charged with the offense of Theft by receiving. To sustain this charge, the State must prove beyond a reasonable doubt that Detric L. Conway acquired possession or control of stolen property of another person, knowing or having good reason to believe that it was stolen.
If you find that Detric L. Conway was in unexplained possession or control of recently stolen property, you may consider that fact along with all the other evidence in the case in deciding whether Detric L. Conway knew or believed that the property was stolen.
(Emphasis added.) Conway asserts that AMCI 3605 forced the jury to consider his failure to explain his possession of the stolen property, and thus is in conflict with his absolute right not to testify.
Conway acknowledges that the supreme court has turned aside similar challenges to this instruction in Grooms v. State, 283 Ark. 224, 675 S.W.2d 353 (1984), Newton v. State, 271 Ark. 427, 609 S.W.2d 328 (1980), Petty v. State, 245 Ark. 808, 434 S.W.2d 602 (1968), and Hammond v. State, 244 Ark. 1113, 428 S.W.2d 639 (1968), and that this court does not have the authority to overrule these cases, but asks that this case be certified to the supreme court to reconsider and overturn these decisions. Relying on Wells v. State, 102 Ark. 627, 145 S.W. 531 (1912), Conway asserts that the conflict between AMCI 111 and AMCI 3605 violates his right to have his case submitted on correct instructions, because the jury could only follow one or the other, but not both.
However, this very argument was rejected in Grooms v. State, supra, and Hammond v. State, supra. The validity of the instruction was similarly upheld, albeit in the face of different arguments and facts in Newton v. State, supra (holding that the instruction was not an impermissible comment on the evidence where both appellants testified and denied knowing that the property was stolen), and Petty v. State, supra (holding that a permissible inference is not a comment on the weight of the evidence). The supreme court has had the opportunity to address the constitutionality of AMCI 3605 as recently as 1994, in Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994), but did not disturb its earlier holdings.
Moreover, in Barnes v. United States, 412 U.S. 837 (1973), the United States Supreme Court upheld the validity of a similar jury instruction in the face of a virtually identical argument. The court in Barnes held that the permissive inference promulgated by the jury instruction did not infringe on the accused’s privilege against self-incrimination.
This court cannot overrule precedent handed down by our supreme court, Roark v. State, 46 Ark. App. 49, 876 S.W.2d 596 (1994), and we do not see such an obvious flaw in the basis of these decisions as to warrant certification to the supreme court for reconsideration.
Affirmed.
Robbins, C.J., and Bird, J., agree. | [
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Sam Bird, Judge.
Cantrell-Waind & Associates, Inc., has appealed from a summary judgment entered for appellee Guil-laume Motorsports, Inc., in its action to recover a real-estate brokerage commission. Because we agree with appellant that the circuit judge erred in his interpretation of the applicable law and because genuine issues of material fact remain to be tried, we reverse and remand.
On August 1, 1994, appellee, represented by its president and sole stockholder Todd Williams, agreed to lease real property in Bentonville to Kenneth Bower and Kay Bower. The lease gave the Bowers an option to purchase and provided for the payment of a commission to appellant, the real-estate broker in this transaction, as follows:
In the event of the exercise of this option within the first twenty-four (24) month period, ten per cent (10%) of the monthly rental payments shall apply to the purchase price. Thereafter, this credit shall reduce two per cent (2%) per year until the expiration of the original lease term hereof, to the effect that the credit will be eight per cent (8%) during the third year, six per cent (6%) during the fourth year, and four per cent (4%) during the fifth year. The sales price shall be $295,000.00. GUILLAUME MOTOR-SPORTS, INC., agrees [to] pay CANTREL-WAIND & ASSOCIATES, INC., a real estate commission of $15,200.00 upon closing of sale of the property under this Option to Purchase, provided the closing occurs within two (2) years from the date of execution of the Lease with Option to Purchase.
The Bowers’ attorney, Charles Edward Young III, notified Williams in writing on April 23, 1996, that the Bowers chose to exercise the option to purchase, and that they anticipated closing at the earliest possible date. Young also sent a copy of this letter to Samuel Reeves, appellee’s attorney. Soon after this, Williams approached Mr. Bower and offered to credit him with one-half of the appellant’s $15,200 commission if he would agree to delay closing until after August 1, 1996. Mr. Bower declined this offer.
Ruth Ann Whitehead, a loan officer at the Bank of Benton-ville, notified Mr. Bower on July 19, 1996, that the loan had been approved and that she awaited notification of a closing date. In his deposition, Young said that he attempted to set a July closing date on behalf of the Bowers but had been told by Ms. Whitehead, Reeves, and a representative of the title company that Williams had told them he would be out of the country in late July and unavailable for closing until after August 1.
Young also said that he had asked Reeves if Williams would utilize a power of attorney for closing before August 1 but Williams refused. Williams did not leave the country and was in Ben-tonville July 22 through 25. Closing occurred on August 14, 1996, and the commission was not paid.
Appellant filed a complaint against Guillaume Motorsports, Inc., on August 12, 1996, for breach of contract. Appellee moved for summary judgment on the ground that it was under no obligation to close the transaction before August 1. In support of its motion, appellee filed the affidavits of Ms. Whitehead and Mr. Carroll, who stated that, to their knowledge, a closing date was not scheduled before August 14, 1996.
Appellee Williams also filed his affidavit stating that a closing date was not established before August 14, 1996, and that the Bowers had not demanded an earlier closing date. Further, he admitted: “While I did in fact approach Kenneth Bower with a proposal to reduce the purchase price if he would agree to establish a closing date after August 1, 1996, my offer was not accepted and no such agreement was made.” He said although it would not have bothered him to put the closing off until after August 1, he did not think it was a “conscious decision” not to be available until after August 1.
In a hearing on the motion for summary judgment, counsel for appellee argued that neither the corporation nor Williams was under any obligation to close prior to August 1. He contended there was no bad faith to be inferred by the deliberate avoidance of a real estate commission that is keyed to a “drop-dead” date. He said the real estate broker agreed to the terms of the contract and was bound by it. Counsel pointed out the two separate terms used in the contract when referring to the option to purchase and the closing. The contract stated that to get the maximum discount in the purchase price the Bowers had to exercise the option before August 1, 1996. However, the clause referring to the commission stated that the transaction had to close by August 1. Counsel stated, “I believe my client had every right to do anything within his power, short of breaching his contract with this buyer, to see that this closing didn’t occur earlier than that date so he would not owe the commission.”
In response to appellee’s motion for summary judgment, appellant argued that appellee (by Williams) had a duty to act in good faith and that, in taking steps to prevent the transaction from closing before August 1, 1996, appellee had not acted in good faith. Appellant contended that all contingencies and requirements for the loan had been satisfied by July 19, 1996, and that Mr. and Ms. Bower had attempted to establish a closing date before August 1, but had been deliberately prevented from doing so by Williams’s misrepresentations that he would be out of the country and unavailable to close until after August 1. Appellant attached as exhibits excerpts from the depositions of Ms. Whitehead, Mr. Young, Laura Tway (who assisted with closing), Mrs. Bower, Mr. Bower, Williams, and Mr. Carroll. Also attached was a copy of Mr. Young’s May 28, 1996, letter to Mr. Reeves. In a supplemental response to the motion for summary judgment, appellant also requested summary judgment against appellee.
In his order granting summary judgment, the judge stated that appellee had no obligation to appellant to arrange for a closing date that would have entitled appellant to a commission and said that the real estate commission was “clearly avoidable” by appellee.
On appeal appellant argues that the trial court erred in ignoring Williams’s prevention of a condition precedent as a material fact and that the trial court erred in granting summary judgment in appellee’s favor. Appellant argues that, although appellee had no duty to insure that closing occurred before August 1, 1996, it did have a duty not to actively hinder or prevent the transaction from closing before that date. Appellee contends that the circuit court acted appropriately in refusing to extend its obligations beyond those created by the express terms of the contract and that Williams was under no obligation to make himself available for a closing date that would have entitled appellant to a commission.
The term of the contract providing that a commission would be due appellant only if closing occurred before August 1, 1996, is a condition precedent. See Stacy v. Williams, 38 Ark. App. 192, 834 S.W.2d 156 (1992). When a contract term leaves a decision to the discretion of one party, that decision is virtually unre-viewable; however, courts will become involved when the party making the decision is charged with bad faith. Vigoro Indus., Inc. v. Crisp, 82 F.3d 785 (8th Cir. 1996).
In Willbanks v. Bibler, 216 Ark. 68, 224 S.W.2d 33 (1949), the Arkansas Supreme Court held that “he who prevents the doing of a thing shall not avail himself of the nonperformance he has occasioned.” Id. at 72, 224 S.W.2d at 35. See also Samuel Williston, The Law of Contracts § 677 (3d ed. 1961). This principle is expressed in 17A Am. Jur. 2d Contracts § 703 (1991):
One who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its nonperformance. Even more broadly, where a promisor prevents or hinders the occurrence, happening, or fulfillment of a condition in a contract, and the condition would have occurred except for such hindrance or prevention, the performance of the condition is excused and the liability of the promisor is fixed regardless of the failure to perform the condition. Moreover, while prevention by one party to a contract of the performance of a condition precedent excuses the nonperformance of the condition, it must be shown that the nonperformance was actually due to the conduct of such party; if the condition would not have happened whatever such conduct, it is not dispensed with.
A party has an implied obligation not to do anything that would prevent, hinder, or delay performance. See Housing Auth. of the City of Little Rock v. Forcum-Lannom, Inc., 248 Ark. 750, 454 S.W.2d 101 (1970); Dickinson v. McKenzie, 197 Ark. 746, 126 S.W.2d 95 (1939); Townes v. Oklahoma Mill Co., 85 Ark. 596, 109 S.W. 548 (1908); Smith v. Unitemp Dry Kilns, Inc., 16 Ark. App. 160, 698 S.W.2d 313 (1985); City of Whitehall v. Southern Mechanical Contracting, Inc., 269 Ark. 563, 599 S.W.2d 430 (Ark. App. 1980).
Comment b to section 225 of the Restatement (Second) of Contracts (1981) provides that the non-occurrence of a condition of a duty is said to be “excused” when the condition need no longer occur in order for performance of the duty to become due: “It may be excused by prevention or hindrance of its occurrence through a breach of the duty of good faith and fair dealing.” The Restatement (Second) of Contracts § 205 (1981) states: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” This legal principle also applies to contracts providing for the payment of commissions to real estate agents. McKay and Co. v. Garland, 17 Ark. App. 1, 701 S.W.2d 392 (1986). Accordingly, we hold that the circuit court erred in fading to recognize that a duty of good faith and fair dealing was included in this contract and, therefore, appel-lee was obligated to not deliberately avoid closing the transaction before August 1, 1996.
Our above holding requires a determination of whether there is a genuine issue of máterial fact as to whether appellee’s actions prevented or hindered the occurrence of the condition precedent. The burden of sustaining a motion for summary judgment is on the moving party. Moeller v. Theis Realty, Inc., 13 Ark. App. 266, 683 S.W.2d 239 (1985). On appeal, we must view the evidence in the light most favorable to the nonmoving party. Undem v. First Nat’l Bank, 46 Ark. App. 158, 879 S.W.2d 451 (1994). It is our task to determine whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994). Summary judgment is not proper where evidence, although in no material dispute, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Id. It is not the role of summary judgment to weigh and resolve conflicting testimony but to simply decide whether such questions exist to be resolved at trial. Jones v. Abraham, 58 Ark. App. 17, 946 S.W.2d 711 (1997). A summary-judgment analysis does not evaluate evidence beyond the question of whether a dispute exists. Id.
Appellant presented evidence that all of the requirements for the transaction to close had occurred by July 19, 1996, and that Mr. and Ms. Bower were eager to close before August 1; that Williams was aware that closing could occur before August 1; and that Williams had stated to Ms. Whitehead that he would be unavailable to close the transaction until after August 1 because he would be out of the country. In his deposition, and in his answers to appellant’s requests for admission, appellee Williams admitted that he was in fact in Bentonville from July 22 through 25 and that he did not leave the country.
In its brief, appellant asserts that it was entitled to summary judgment. We note, however, that appellant did not move for summary judgment but simply requested such relief in the conclusion to its supplemental response to appellees’ motion for summary judgment. Consequendy, even if the trial court had applied the correct principle of law, and if appellant had properly moved for summary judgment, we could not agree that summary judgment was warranted. In his deposition, appellee Williams testified that he was ready, willing, and able to close and would have closed the transaction before August 1 if he had been contacted. He also stated that, although he was in Bentonville on July 22 through 25, he was not aware until the afternoon of the 25th that the Bowers wanted to close the transaction as soon as possible. In our opinion, genuine issues of material fact remained for trial. Accordingly, we reverse the circuit judge’s entry of summary judgment for appellees and remand this case for trial.
Reversed and remanded.
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John Mauzy Pittman, Judge.
The appellant in this workers’ compensation case was employed by the appellee answering 911 emergency calls on the third floor of the Bi-State Justice Building in Texarkana. She was not allowed to smoke on the third floor, but there was a designated smoking area on the first floor. On March 11, 1997, she exited the elevator on the first floor on her way to the smoking area, tripped over a rolled-up carpet, and was injured. Appellee initially accepted the claim as compensable but later controverted the claim in its entirety. After a hearing, the Commission found that the claim was not compensable because appellant was not performing employment services when she was injured. From that decision, comes this appeal.
For reversal, appellant contends that the Commission erred in finding that she was not performing employment services when she was injured. We find no error, and we affirm.
Act 796 of 1993, which applies to all injuries occurring after July 1, 1993, requires the courts to construe its provisions strictly. Arkansas Code Annotated § 11-9-102(5) (B)(iii) (Supp. 1997), which is part of Act 796 of 1993, excludes from the definition of “compensable injury” any injury “which was inflicted upon the employee at a time when employment services were not being performed.” An employee is performing “employment services” when he is engaged in the primary activity that he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity. See Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).
Appellant argues, on public-policy grounds, that her break advanced her employer’s interest by allowing her to relax, which in turn helped her to work more efficiently throughout the rest of her work shift. We are not unsympathetic to this argument. Under former law, the definition of compensable injury did not include a strict requirement that the injury occur while the worker was performing employment services, and a claimant’s activities at the moment of injury were relevant only to the separate and broader question of whether the injury arose out of and in the course of the employment. See id. It is clear that, under former law, appellant’s injury while en route to the break area would have been in the course of her employment pursuant to the personal-comfort doctrine. See Lytle v. Arkansas Trucking Services, 54 Ark. App. 73, 923 S.W.2d 292 (1996). It may be true that the interests of both workers and employers would be better served by a more uniform application of an administrative remedy than they would be by the uncertainty inherent in a tort claim based on premises liability. Nevertheless, the legislature, rather than the courts, is empowered to declare public policy, Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997), and whether a law is good or bad, wise or unwise, is a question for the legislature, rather than the courts. Longstreth v. Cook, 215 Ark. 72, 220 S.W.2d 433 (1949). In the present case, Act 796 of 1993 applies and, although appellant’s break may have indirecdy advanced her employer’s interests, it was not inherendy necessary for the performance of the job she was hired to do. Consequently, we hold that the Commission did not err in finding that appellant was not performing employment services when she was injured.
Nor do we find merit in appellant’s contention that the employer, by initially accepting the claim as compensable, waived the issue of whether appellant was performing employment services. Waiver is in most cases a question of fact, see Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992), and neither the administrative law judge nor the Commission made any finding regarding waiver in the case at bar. We do not address issues raised for the first time on appeal. Teague v. C & J Chemical Company, 55 Ark. App. 335, 935 S.W.2d 605 (1996).
Affirmed.
Robbins, C.J. and Jennings, J., agree. | [
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Karen R. Baker, Judge.
A jury in Benton County Circuit Court convicted appellant, Robert Lee Sparkman, of raping T.B., a four-year-old girl, and sentenced him to 216 months’ imprisonment in the Arkansas Department of Correction. Appellant’s sole point on appeal is that the admission of a video-taped interview of the child during his trial violated his right of confrontation guaranteed by the Sixth Amendment. Appellant relies on the recent Supreme Court of the United States case of Crawford v. Washington, 541 U.S. 36 (2004). We affirm.
Prior to trial, appellant filed a motion to determine T.B.’s competency to testify. Appellant also filed a motion in limine to bar introduction of the videotaped interview of the child taken by Janice McCutcheon at the Child Advocacy Center. On March 13, 2003, a hearing was held to determine the competency of the child and the admissibility of her videotaped interview. T.B. testified and revealed that she was not able to distinguish between a truth and a lie. Also during her direct examination, T.B. was unwilling to answer questions regarding appellant. At the conclusion of the direct examination, defense counsel did not take the opportunity to cross-examine T.B. As a result, the trial judge determined that the child was unavailable as a witness. Furthermore, the trial judge determined that the videotape of the child’s interview was admissible as evidence at trial.
A jury trial was held on July 30, 2003. At the trial, Angela Acey, T.B.’s mother, testified that she and appellant met in September 2001. At the time, she and T.B. were living with her parents. She and appellant began dating and eventually moved in together. During the time they lived together, appellant was unemployed, and Acey worked at a daycare and at the Days Inn. From March 2002 to June 2002, while Acey worked at the Days Inn, she left T.B. in appellant’s care.
Heather Sangwin, Acey’s sister, testified that she and T.B. were very close. Sangwin testified that they spent time together on a regular basis. In June 2002, T.B. went swimming with her aunt and her cousin. Sangwin testified that she had the opportunity that day to talk to T.B. about appellant. She asked T.B. if appellant had ever “touched her sexually.” Without hesitation, T.B. told Sang-win that appellant had touched her and “pointed to her private.” T.B. also said that appellant had touched her with his tongue. T.B. told Sangwin that she had not told her mother about the incident because appellant told T.B. that he would hurt her if she did. Knowing that T.B. would be in Sangwin’s mother’s care throughout the rest of the weekend, Sangwin called the Springdale Police Department and the hotline on Monday morning to report the information. Sangwin went to the police department to answer some questions regarding the incident. When the police questioned Acey during the investigation, she told detectives that she was very surprised at the allegations against appellant.
Soon thereafter, T.B. was interviewed by Janice McCutch-eon at the Children’s Advocacy Center. As forensic interviewer, McCutcheon interviews victims of alleged child abuse. McCutch-eon testified that T.B. mentioned several times during the interview that appellant had “whupped” her. McCutcheon testified that she uses dolls during the interviews that are anatomically correct. McCutcheon also testified as to the following: “When I asked her how the defendant touched her, she pressed one doll against the other. She took the penis with her hand and put it there. I asked a clarifying question of what she was doing. From my recall, she said inside.” After T.B. disclosed the penetration, McCutcheon said she had difficulty getting her to continue and to focus.
Brad Abercrombie from the Rogers Police Department conducted an interview of appellant on June 26, 2002. The videotape and a transcript of tíre interview were admitted into evidence and played for the jury. At the beginning of the interview, appellant acted surprised when he learned of the charges against him. Appellant also denied having committed the offense. However, further into the interview, appellant described an occa sion when he and T.B. were “cuddling” in his bed together. She was coloring, and appellant was lying next to her with her rear end towards him. Appellant admitted that while the two were cuddling, his hand “must have accidentally hit her on, hit her on her privates that’s all.” Appellant further admitted to Detective Aber-crombie that he made T.B. touch his penis and that T.B. kissed his penis. He also admitted to Abercrombie that he ejaculated in her presence.
Dr. Karen Farst worked at the Children’s Advocacy Center on the day T.B. was brought in for an examination. Dr. Farst explained that, while there appeared to be no injury to T.B.’s inner thigh area and labia majora, a “notch” was discovered on her hymen. The notch was located at the “five o’clock position.” Dr. Farst described a notch as healing tissue that appeared like a scar. Dr. Farst explained that trauma to the hymen meant that there had been penetration beyond the labia majora. Any injury to the hymen would require overstretching to the point of tearing. As the tear healed back together, the notch or indentation appeared. The location of the notch was significant in that a notch at the five o’clock position was indicative of the force and direction of penetration. The fact that the labia majora was not injured indicated that the labia was open when the trauma occurred and allowed Dr. Farst to rule out accidental injury. The notch was described as being two to three weeks old in that it was healing and had thickened and become white and plaque-like. Dr. Farst opined that the notch found on T.B.’s hymen was consistent with intentional penetration past her genitalia.
Following Dr. Farst’s testimony, the State rested its case. Defense counsel then moved for a directed verdict on the basis that the State had failed to prove a prima facie case of rape. The motion was denied, and the defense did not present any witnesses. Ultimately, the jury convicted appellant of raping T.B. and sentenced him accordingly. This appeal followed.
Appellant’s only point on appeal is that the admission of the video taped interview during his trial violated his right of confrontation guaranteed by the Sixth Amendment. Crawford v. Washington, 541 U.S. 36 (2004), upon which appellant relies, held that out-of-court statements by witnesses that are testimonial are barred under the Confrontation Clause unless witnesses are unavailable and defendants had a prior opportunity to cross-examine, regardless of whether such statements are deemed reliable by the court, abrogating Ohio v. Roberts, 448 U.S. 56 (1980). Appellant specifically asserts that under Crawford the child’s videotaped interview “clearly contributed to the conviction” and should not have been admitted as evidence in his trial. We need not address whether the trial court erred in admitting the video taped interview because we find that, even if the admission was error, it was harmless.
Although some constitutional rights are so fundamental that their violation can never be deemed harmless error, see Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992), others are subject to the harmless-error analysis. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999) (citing Chapman v. California, 386 U.S. 18 (1967)). To conclude that a constitutional error is harmless and does not mandate a reversal, this court must conclude beyond a reasonable doubt that the error did not contribute to the verdict. Id. (citing Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995); Allen v. State, supra; Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992)). Our supreme court has held that trial error, even involving the Confrontation Clause, is subject to a harmless-error analysis. See Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994); see also Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).
In Winfrey v. State, supra, our supreme court stated that “when determining whether the denial of a party’s right to cross-examine a witness for possible bias is harmless error, the court considers a host of factors, including the importance of the witness’s testimony, whether the testimony was cumulative, whether evidence existed that corroborates or contradicts the testimony of a witness, and the overall strength of the prosecution’s case.” See also Sullivan v. State, 32 Ark. App. 124, 798 S.W.2d 110 (1990). The correct inquiry is whether, assuming that the damaging potential of the cross-examination was fully realized, this court might nonetheless say that the error was harmless beyond a reasonable doubt. Winfrey v. State, supra.
In applying the Chapman analysis, we excise the interview of T.B. conducted by McCutcheon and determine whether the remaining evidence shows beyond a reasonable doubt that the error did not contribute to the verdict. See Chapman v. California, supra. In this case, the jury had before it appellant’s own admission during his interview with Detective Abercrombie that he engaged in inappropriate sexual conduct with T.B. Appellant specifically admitted that, while appellant and T.B. were lying in his bed together, appellant put his hand on T.B.’s private area. Appellant further admitted that he made T.B. touch his penis and that T.B. kissed his penis. He also admitted that he ejaculated in her presence. In addition to appellant’s own admission of his actions, Dr. Farst described the “notch” that was discovered on T.B.’s hymen as being located at the “five o’clock position,” which was indicative of the force and direction ofpenetration. She was able to rule out accidental injury, and she opined that the notch was consistent with intentional penetration past her genitalia. Mc-Cutcheon also testified without objection that T.B. used the dolls to demonstrate how appellant touched her and that “T.B. pressed one doll against the other.” McCutcheon further testified that T.B. disclosed during the interview that penetration occurred. Finally, T.B.’s aunt testified that T.B. told her that appellant had touched her in her private area.
Therefore, given the other evidence presented at trial, the introduction of the video tape is at best cumulative. Thus we conclude, beyond a reasonable doubt, that the introduction of the video tape did not contribute to appellant’s conviction and its introduction was harmless. Accordingly, we affirm.
Gladwin, Vaught and Crabtree, JJ., agree.
Hart, J., concurs.
Griffen, J., dissents.
This Court attempted certification of this case to our Supreme Court, which declined to accept it.
The dissent describes appellant’s actions as merely “improper judgment” on his part, when, in fact, appellant specifically admitted to Detective Abercrombie that appellant “hit her on her privates” with his hand; that he “made T.B. touch his penis;” that “T.B. kissed his penis;” and that he ejaculated in her presence.
The dissent notes that McCutcheon’s testimony regarding T.B.’s statements during the interview was “equally inadmissible.” However, appellant made no specific objection at trial to McCutcheon’s testimony regarding T.B.’s statements. Further, appellant does not assert on appeal that the trial court erred in admitting McCutcheon’s testimony. Arguments not raised on appeal are deemed abandoned. See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). | [
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Terry Crabtree, Judge.
A jury in the Mississippi County Circuit Court found appellant, Manuel Rameriz, guilty of rape for engaging in sexual intercourse with a child less than fourteen years old, a violation of Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Supp. 2003). As a result, he was sentenced to a term of fifteen years in prison. Based on the same evidence, the trial court revoked appellant’s suspended sentence for a second-degree escape conviction and sentenced him to three years in prison for that offense. On appeal, appellant raises two issues pertinent to the conviction for rape in which he argues that the trial court erred in denying his motion to suppress a statement he gave to the police. Appellant also contends that the trial court was without jurisdiction to revoke his previous suspended sentence. We affirm.
On January 26, 2003, appellant was questioned by Albert Wright, the chief of police in Luxora. After waiving his rights under Miranda, appellant confessed that he had sexual intercourse with the thirteen-year-old victim, R.W. Prior to giving the statement, appellant had been issued a criminal citation for sexual solicitation of a child, and he had been arrested for that offense. At the outset of the interview, which was recorded, Chief Wright stated the fact that appellant had been arrested on the charge of soliciting a child. Appellant was charged with rape by felony information dated February 20, 2003.
Appellant first contends on appeal that he did not knowingly and intelligently waive his Miranda rights because he was told that he was being charged with sexual solicitation, not rape. Our standards of review are as follows. Statements arising from custodial interrogation are presumed to be involuntary, and the burden is on the State to prove that a custodial statement was given voluntarily and was knowingly and intelligently made. Dondanville v. State, 85 Ark. App. 532, 157 S.W.3d 571 (2004). In determining voluntariness, this court looks to whether the statement and waiver were the result of free and deliberate choice rather than coercion, intimidation, and deception. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). On appeal, this court makes an independent determination of the voluntariness of a confession, but in doing so, we review the totality of the circumstances and will reverse only when the trial court’s finding of voluntariness is clearly against the preponderance of the evidence. Id.
The Supreme Court has held that the Constitution does not require a criminal suspect to know and understand every possible consequence of a waiver of the Fifth Amendment privilege. Colorado v. Spring, 479 U.S. 564 (1987). There, Spring argued that his waiver was not knowingly made because he was questioned, without being informed before the waiver, about a homicide during the course of being interrogated about another crime. In rejecting the argument that his waiver was invalid, the Court’s focus was on the nature of the constitutional right — “his right to refuse to answer any question which might incriminate him.” Id. at 576 (quoting United States v. Washington, 431 U.S. 181, 188 (1977)). The Court said:
This Court’s holding in Miranda specifically required that the police inform a criminal suspect that he has the right to remain silent and that anything he says might be used against him. There is no qualification of this broad and explicit warning. The warning, as formulated in Miranda, conveys to a suspect the nature of his constitutional privilege and the consequences of abandoning it. Accordingly, we hold that a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.
Id. at 577.
Our courts have recognized that a suspect’s awareness of all of the different charges in advance of interrogation is not relevant in determining whether the suspect voluntarily, knowingly, and intelligently waived his rights. Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988) (citing Colorado v. Spring, 479 U.S. 564 (1987)); see also Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Brown v. State, 54 Ark. App. 44, 924 S.W.2d 251 (1996). The argument appellant raises on appeal has been addressed by the appellate courts of this State and found to be unavailing. In Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004), the appellant argued that his waiver of rights was not knowingly and intelligently made because the interrogating officer used the words “lewd act” rather than rape in describing the purpose of the interview. The court found no error in the denial of the motion to suppress inasmuch as Standridge was “certainly aware” that the investigation related to allegations that he had engaged in sexual contact with the victim. In Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000), we found no merit in the argument that a defendant must be aware that he is a suspect of a specific crime, or that he must be informed of the specific nature of the possible charges against him in order to make a voluntary, knowing, and intelligent waiver of his Miranda rights.
Here, appellant knew that he was being questioned about acts of sexual misconduct with the victim. We know of no authority, and appellant has cited none, for the contention that the police were required to inform him about the range of offenses he could be charged with based on facts yet to be revealed in the statement. If the Constitution does not require the police to inform a suspect about the subject matter of interrogation, as was held in Colorado v. Spring, supra, it cannot be said that a suspect must be told of the possible offenses he could be charged with when being questioned about a specific matter. Therefore, we find no merit in this argument.
Appellant also contends that, when Chief Wright advised him of the charge of sexual solicitation, he “could have” interpreted this representation as a promise of leniency. Appellant, however, did not make this argument to the trial court. We will not reverse a trial court’s suppression ruling based on an argument that was never raised or otherwise developed during the hearing. Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002).
Appellant’s final argument concerns the revocation. Appellant contends that his suspended sentence had expired by the time the revocation hearing was held. Although there is probable merit in this argument, we are not able consider it in light of the incomplete record that is before us.
The record reflects that on May 12, 2000, appellant was convicted of second-degree escape for which he was sentenced to two years in prison, with an additional suspended imposition of sentence of three years. Arkansas Code Annotated section 5-4-307(c) (Repl. 1997) provides that, if the court sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment. See also Chadwell v. State, 80 Ark. App. 133, 91 S.W.3d 530 (2002). Referencing the “supplemental record,” appellant maintains that he was released from prison on October 13, 2000. He thus argues that the three-year period of suspension ended on October 13, 2003, one month in advance of the revocation hearing held on November 12, 2003. Appellant further maintains that there is nothing in the record to indicate that a warrant was issued for his arrest or that he was arrested for violating the terms of the suspended sentence prior to the expiration of the three-year suspension, which under Ark. Code Ann. 5-4-309 (e) would permit revocation beyond the period of suspension. In sum, appellant contends that the trial court lacked jurisdiction to revoke the suspended sentence. The State concedes error, and recommends that we reverse and dismiss the revocation petition.
Appellant did not question the trial court’s jurisdiction below. Nevertheless, appellant is correct that his failure to object does not necessarily bar a challenge on appeal because Arkansas appellate courts treat allegations of void or illegal sentences much like jurisdictional questions, which can be raised for the first time on appeal. Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004). An illegal sentence, however, is one that is illegal on its face, Timmons v. State, 81 Ark. App. 219, 100 S.W.3d 52 (2003), where the trial court lacks the authority to impose it. Jones v. State, 83 Ark. App. 195, 119 S.W.3d 70 (2003). The illegality of the sentence in this case is dependent upon the parties’ assertion that appellant was released from prison on October 13, 2000. However, the date of appellant’s release was not included in the original record, and the parties assume that we have allowed, or will permit, the record to be supplemented to include this fact as evidence. The parties are mistaken.
After the record was lodged in this court, appellant filed a motion to supplement the record to include a consent order entered by the trial court which stated that appellant was released from prison on October 13, 2000. We addressed the motion in a per curiam opinion issued on June 30, 2004, where we stated:
We remand this case to the circuit court to settle the record. See Ark. R. App. P. - Crim.; Ark. R. App. P.-Civ. 6(e). Under Rule 6(e), the circuit court may settle any difference that “arises as to whether the record truly discloses what occurred in circuit court.” The rule further provides that the circuit court can correct omissions from the record by error or accident or misstatements therein. While appellant attempts to use Rule 6(e) to settle the record, our concern here is whether the information contained in the consent order was presented to or considered by the circuit court at any time before the court entered a final order revoking appellant’s suspended imposition of sentence. We note that our supreme court has indicated that it is not the purpose of settling the record to introduce evidence that was not introduced at trial. Tackett v. First Sav. of Ark., 306 Ark. 15, 810 S.W.2d 927 (1991) (discussing Ark. R. App. P. 6(e), the predecessor to our current Ark. R. App. P. - Civil 6(e)). Accordingly, we remand to the circuit court for it to determine whether this evidence was before the court prior to entry of the final order, so that the supplementation of the record would constitute a correction of an omission by error or accident or misstatement.
Rameriz v. State, CACR 04-212 unpub. opin. June 30, 2004 (emphasis supplied). We thus made it clear that we would allow the record to be supplemented only if the trial court should find that this information was presented to the court prior to the entry of judgment.
On November 1, 2004, the trial court settled the record by an order stating that the “evidence that appellant was released on parole on October 13, 2000, was not before the court prior to entry of the final order.” We are thus compelled to deny appellant’s motion to supplement the record to include the date of release. As we expressed in the per curiam, settling the record is not a device to be used to supplement the record to include evidence that was not properly or timely presented to the trial court.
It is well settled that the appellant bears the burden of producing a record that demonstrates error. Miles v. State, 350 Ark. 243, 85 S.W.2d 907 (2002). As there is no evidence in the record that shows when appellant was released from prison, appellant has failed in his burden of demonstrating error, and thus we affirm. We do so reluctantly, but we cannot go outside the record to determine issues on appeal. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). Appellant may seek relief pursuant to Ark. R. Crim. P. 37.1(b).
Affirmed.
Pittman, C.J., and Baker, J., agree.
As the appellate court, it is our function to pass judgment on the merits of the issue, and we are not bound by the State’s conclusion that error occurred. Burrell v. State, 65 Ark. App. 272, 986 S.W.2d 141 (1999). The proper administration of the law cannot be left merely to the stipulation of the parties. Id. | [
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MIKE MURPHY, Judge
11 This is an appeal from an order entered on May 11, 2017, by the Benton County Circuit Court, terminating appellant Jasmine Tatum’s parental rights to her minor children. On appeal, she argues that (1) the circuit court erred in changing the goal of the case , plan to adoption; (2) there was insufficient evidence presented to establish that grounds supporting termination of her parental rights existed; and (3) terminating her parental rights was not in the best interests of her children. We affirm.
On September 16,- 2015, Jasmine Tatum was arrested and incarcerated by the Ben-tonville police for prostitution, endangering the welfare of a minor, and obstruction of governmental operations. Tatum had three children, who were, at the time, ages eight, five, and two. .Allegedly, Tatum had posted an ad on Craigslist, invited a man to her hotel room where she was living with her children, and spent some time with him in the bathrbom |awhile the children sat on the bed and watched television. Tatum then accepted. $40 from the man and he left.
The Arkansas Department' of Human Services (DHS) took an emergency hold on the children. The case progressed through an emergency-custody order, a probable-cause hearing, and an adjudication hearing. At the adjudication hearing, the court found that the children were at substantial risk of serious harm as a result of neglect and parental unfitness, specifically, inadequate supervision, failure to protect, and threat of harm by Tatum when she was arrested for engaging in prostitution in the presence of the children.
The circuit court established reunification as the case-plan goal. Under the case plan, Tatum was ordered to establish residential stability, obtain and maintain stable employment and transportation, display proper parenting skills, attend individual counseling, submit to a drug-and-alcohol assessment and follow the recommendations, undergo a psychological evaluation and comply with the recommendations, and to resolve all legal issues. DHS was ordered to make a housing referral.
Tatum was found to be in partial compliance at the March 1, 2016 review hearing, and in full compliance at the June 14, 2016 hearing. Custody continued with DHS. On November 2, 2016, DHS filed a petition for termination of parental rights, alleging the grounds of twelve months failure to remedy, subsequent factors, and aggravated circumstances.
Tatum did not appear for the February 9, 2017- permanency-planning hearing. The circuit court found that Tatum was unfit due to her “significant history of use'and abuse of [¡¿illegal and prescription drugs; significant medical issues that interfere with her fitness to work; lack of employment and housing stability;” and “unsuccessfully treated mental health issues” and that “all of these issues endanger the children.” The circuit court further found that Tatum had been unable to resolve her issues, despite the services offered to her, and that Tatum “would need at least a year to a year and a half to rehabilitate to be ready for the children.”
A termination hearing was held on March 28, 2017. Testimony and evidence introduced indicated that, during the case, Tatum developed endometriosis, required an ablation, and then a complication arose with the ablation that resulted in infection and a need for a wound-VAC. Tatum’s primary-care physician testified that there was little doubt that Tatum was in serious pain from the procedure and complications, and prescribed Tatum pain medication. Tatum, however, sought treatment from several doctors and emergency rooms during that time and obtained over 400 oxycodone pills in a six-month period. Three doctors who had treated Tatum over the year testified that they believed she had a narcotics dependency. Doctor Steven Irwin, an interventional pain physician, also testified.- Tatum began seeing him in Óctober 2016 for pain related to her en-dometriosis, Dr. Irwin testified that, as of February 2017, he was starting to wean Tatum off opioids.
Tatum testified about her housing instability throughout the case. At the beginning of the case, she was living in a hotel with her children. She then got an apartment but had to move out for failing to pay $2400 in rent and fees. From there, she lived in multiple-shelters, another hotel for a month, and then moved to Missouri to live with'a man she |4had met on Craig-slist.-She also testified that; at the time of the termination hearing, she had failed to resolve her criminal issues, and there was currently' a warrant out for her arrest in Florida on an unresolved shoplifting misdemeanor'charge.
In an order dated May 11, 2017, the circuit court terminated Tatum’s parental rights on all grounds alleged in the petition.. Tatum timely appeals.
We review termination-of-parental-rights cases de novo. Threadgill v. Ark. Dep’t of Human Servs., 2017 Ark. App. 426, 526 S.W.3d 891. At least.one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof that will produce in' the fact-finder a firm conviction as to the allegation sought to be established. Id. 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. Credibility determinations are left to the fact-finder, here, the circuit court. Id. Only one statutory ground is necessary to terminate parental rights. Id.
Tatum first argues that the evidence does not support the grounds to terminate her parental rights. Regarding the subsequent-factors ground, she argues that the circuit court erred in finding that DHS provided appropriate family services.
The subsequent-factors ground states
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s ^circumstances that prevent the placement of the juvenile in the custody of the. parent.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017).
Specifically, Tatum argues that “DHS did not provide the appropriate service to address her opiate dependency and tolerance.” She contends that she sought, her own treatment and followed the recommendations of that treatment plan. She further argues that it would be clear error to base termination on her valid prescription-medication use.
DHS contends that Tatum’s argument is procedurally barred because she did not appeal from prior orders in which the circuit court found that DHS had made reasonable efforts to providé services. However, not every order in a dependency-neglect case can be immediately appealed. See Threadgill, supra. Here, the circuit court found that DHS* had made reasonable efforts to provide family services in its March 1, 2016 review order; its June 16, 2016 review order; and its February 9, 2017 permanency-planning order. Because none of these orders have Rule 54(b) certificates, and because Tatum raised the argument at the termination hearing, she has not waived her argument now regarding the services offered by DHS now. See id.
In reaching the merits of this argument, we hold that the circuit court did not clearly err in finding that DHS had provided appropriate family services to Tatum. The children were initially removed when Tatum was arrested. Subsequently, Tatum developed a prescription-drug-abuse problem. Services offered by DHS included a psychological evaluation, two drug-and-alcohol assessments, transportation, a housing referral, and a | fifinancial-assistance referral. Tatum alleges that DHS did nothing to assist her with her opioid dependency, but Tatum never disclosed this need for treatment with DHS; in fact, she was not even entirely upfront with her own pain-management doctor about the extent of her opiate use.
Further, Tatum did not comply with the requirements of the case plan and the court’s repeated orders to attend coun seling, maintain housing stability, maintain employment stability, maintain transportation stability, and to resolve all legal issues. We have held there can be no meritorious challenge to the subsequent-factors ground when there was “evidence of appellant’s lack of compliance with the case plan and court orders.” Cotton v. Ark. Dep’t of Human Servs., 2012 Ark. App. 455, at 11-12, 422 S.W.3d 130, 137-38. There is sufficient evidence to support termination under this ground, including the finding that DHS provided appropriate family services.
Tatum next argues that there was insufficient evidence to support the court’s best-interest determination. In determining the best interest of the juvenile, a trial court must take into consideration (1) the likelihood that the juvenile will be adopted, if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Myers v. Ark. Dep’t of Human Servs., 2011 Ark. 182, 380 S.W.3d 906. Potential harm must be viewed in a forward-looking manner and in broad terms. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722.
' 17Tatum does not challenge the adopta-bility finding. Instead, she asserts that she was complying with her opiate-dependency treatment, had submitted to counseling, had acquired appropriate housing in Missouri, and was working odd jobs to bring in income; therefore, there was no risk of potential harm to the children by returning them to her custody.
We disagree. The circuit court specifically found, and the record supports, that Tatum has an open warrant for her arrest in Florida; has no stable housing or income; sought narcotics medication from over twenty physicians in Arkansas; and that rather than intensifying her efforts at the end of the case, Tatum diminished them by moving from Arkansas to Missouri without disclosing this move to DHS. This is more than sufficient to demonstrate consideration of this factor. Tatum does not demonstrate reversible error on this point.
Finally, in the last two, sentences of her argument, Tatum challenges the goal of the case being changed to adoption in the permanency-planning order “for all of the reasons set forth above.” Because we affirm the termination of parental rights, we also necessarily hold that it was appropriate for the circuit court to change the goal of the case plan to adoption. See Ark. Code Ann. § 9-27-338(c).
Affirmed.
Abramson and Brown, JJ,, agree. | [
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RITA W. GRUBER, Chief Judge
11 Catherine Roberts sued Broadway Health & Rehab, LLC, and related entities (collectively “Broadway”) for medical malpractice, negligence, and violations of the Arkansas Long-Term Care Residents’ Rights Act for injuries her mother, Evelyn King, sustained | ¿while a resident at Broadway Health & Rehab in West Memphis. Broadway appeals from an order denying its motion to compel arbitration. Broadway argues on appeal that the circuit court erred in finding that the Federal Arbitration Act did not apply, in denying Broadway the opportunity to conduct discovery regarding Ms. Roberts’s authority to sign the agreement for her mother, and in finding that the third-party-beneficiary doctrine was inapplicable. Broadway also argues that nonsignatories to the arbitration agreement may enforce the agreement. We hold that there was no valid arbitration agreement and that the circuit court did not abuse its discretion in denying Broadway the opportunity to conduct further discovery. Accordingly, we affirm the circuit court’s order denying the motion to compel arbitration. This disposition renders all other issues moot.
When Ms. King was admitted to the facility on March 5, 2013, Ms. Roberts signed the relevant paperwork, which included an arbitration agreement. The arbitration agreement lists Evelyn N. King in the space immediately next to “Print Resident Name.” Directly beneath that line is a signature space in which Ms. Roberts signed her name next to the date. The following appears directly under her signature:
Signature of (1) Resident or (2) Resident Representative (circle one)
If Resident Representative, please check the basis of your authority:
□ Power of Attorney (attach document)
□ Court-Appointed Guardian (attach document)
□ Other. Please . explain.
Neither “Resident” nor “Resident Representative” was circled. The box next to “Other” lawas checked, with the explanation “Daughter” written on the blank line next to it.
On November 24, 2015, Ms. Roberts, as guardian of the person and estate of Evelyn King, filed a complaint against Broadway alleging negligence, medical malpractice, and violations of the Arkansas Long-Term Care Residents’ Rights Act. Specifically, Ms. Roberts alleged that Ms. King was admitted to the facility for incapacity due to a previous stroke and that during her time there she sustained numerous injuries, including a severe injury to her left hand; and she suffered from illnesses, including infection, poor hygiene, poor nutrition, and unnecessary pain and suffering. Broadway answered and then filed a motion to dismiss the complaint and compel arbitration pursuant to the Federal Arbitration Act, arguing that Ms. Roberts, on behalf of her mother, executed a binding arbitration agreement that • encompassed the claims in her complaint. In the alternative, Broadway argued that, if the court found Ms. Roberts lacked authority to bind her mother, the arbitration agreement was valid under the third-party-beneficiary doctrine. Ms. Roberts resisted arbitration, claiming that Broadway did not own the facility when the arbitration agreement was signed and thus was not a party to the agreement and could not enforce it; Ms. Roberts lacked the authority to bind Ms. King; and the third-party-beneficiary doctrine was inapplicable because there was no valid underlying agreement between Ms. Roberts and Broadway.
Following a hearing, the circuit court denied Broadway’s motion to compel arbitration, finding that the arbitration agreement was invalid as a matter of law, that Ms. King did not execute the agreement, that Ms. Roberts lacked the legal capacity to bind Ms. - King to the terms of the arbitration agreement, that the third-party-beneficiary doctrine was | inapplicable, and that the Federal Arbitration Act did not.apply to Ms. Roberts’s claims. Finally, the circuit court denied Broadway’s request for additional time to conduct discovery. Broadway filed this appeal.
We review an order denying a motion to compel arbitration de novo on the record, determining the issue as a matter of law. Bank of the Ozarks, Inc. v. Walker, 2014 Ark. 223, at 4, 434 S.W.3d 357, 360. We look to state contract law to decide whether the parties’ agreement is valid. Id. Thus, the essential elements for an enforceable arbitration agreement are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. Id. The construction and legal effect of an agreement to arbitrate are to be determined by the appellate court as a matter of law. Courtyard Gardens Health & Rehab., LLC v. Quarles, 2013 Ark. 228, at 6, 428 S.W.3d 437, 442.
Our review of appellant’s points on appeal requires that we first consider the circuit court’s finding that Ms. Roberts lacked the legal capacity to bind Ms. King to the terms of the arbitration agreement, although we note that Broadway does not appear to specifically challenge this finding. Before a court can compel arbitration, it must make a threshold determination that a valid arbitration agreement exists between the parties. Id. Arbitration is a matter of contract, and the elements of a contract, including mutual agreement, must be met. GGNSC Holdings, LLC v. Lamb, 2016 Ark. 101, at 7, 487 S.W.3d 348, 353. When a third party signs an arbitration agreement on behalf of another, as was done in this case, the court must determine whether the third party was clothed with the authority to bind the other person to arbitration. Courtyard Gardens Health & Rehab., LLC v. Williamson, 2016 Ark. App. 606, at 3, 509 S.W.3d 685, 688.
The burden of proving an agency relationship lies with the party asserting its existence—in this case, Broadway. Quarles, 2013 Ark. 228, at 7, 428 S.W.3d at 443. And while the statements and actions of an alleged agent may be admissible to corroborate other evidence tending to establish agency, neither agency nor the scope of agency can be established by declarations or actions of the purported agent. Id. Not only must the agent “agree to act on the principal’s behalf and subject to [her] control,” but the principal must also indicate that the agent is to act for her. Quarles, 2013 Ark. 228, at 6, 428 S.W.3d at 442-43 (quoting Evans v. White, 284 Ark. 376, 378, 682 S.W.2d 733, 734 (1985)).
In this case, the only evidence regarding Ms. Roberts’s authority to bind her mother to the arbitration agreement is the agreement itself. The agreement demonstrates that, Ms. Roberts did not have a power of attorney to act on Ms. King’s behalf and that she had not been appointed to serve as Ms. King’s guardian, Further, there was no evidence that Ms. King authorized Ms. Roberts to serve as her agent. Ms. Roberts specified' on the arbitration agreement that she signed as Ms. King’s “Daughter.” Our supreme court made it clear in Quarles that a familial relationship is - not 'sufficient to- establish agency. At the hearing, Broadway’s counsel conceded that, other than signing the agreement, she was not aware of any other steps having been taken by Broadway to ascertain actual or apparent agency between Ms. Roberts and Ms. King:
Court: But as you stand before me, you don’t have anything to present to the Court of actual agency.
Appellant’s Counsel: No, Your Honor.
(Court: Not even apparent agency other than the familial relationship.
Appellant’s Counsel: Correct, Your Honor, and the language of this agreement.
There is no evidence at all to support the contention that Ms. King authorized Ms. Roberts to act as her agent in signing the arbitration agreement, even' assuming she had the capacity to do so. On the record before us, we hold that the evidence fails to demonstrate, as a matter of law, that Ms. Roberts had the authority to act as Ms. King’s agent to bind her to the arbitration agreement.
Broadway contends that the circuit court erred in denying its request for additional time to conduct discovery on the legal authority of Ms. Roberts to bind her mother to the arbitration agreement. A circuit court has. broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by this court absent- an abuse of discretion that is prejudicial to the appealing party. Bennett v. Lonoke Bancshares, Inc., 356 Ark. 371, 155 S.W.3d 15 (2004). In order for this court to reverse the circuit court’s denial of a continuance, an appellant must show that the circuit court abused its discretion and that the additional discovery would have changed the outcome of the case. Alexander v. E. Tank Servs., Inc., 2016 Ark. App. 185, at 7, 486 S.W.3d 813, 817.
At the hearing, the circuit court questioned- Broadway’s counsel about what additional evidence it could discover to demonstrate that Ms. Roberts had authorization from her mother to execute the arbitration agreement on her behalf. Counsel stated that “having a conversation with Ms. Roberts to understand how she understood to have this authority” might help Broadway progress on the issue. The court stated that it was not persuaded there |7was anything Broadway could discover from Ms. Roberts to ascertain that she had actual authority to enter into the agreement, and it denied the stay to conduct additional discovery.
We note again that, while the statements of an alleged agent may be admissible to corroborate other evidence tending to establish agency, agency cannot be established by declarations or actions of the. purported agent. Quarles, 2013 Ark. 228, at 7, 428 S.W.3d at 443. Thus, the circuit court did not abuse its discretion in denying Broadway an opportunity to conduct additional discovery on the issue.
Broadway also argues that the circuit court erred in finding that the third-party-beneficiary doctrine is inapplicable to this case. Specifically, as an alternative to the agency theory to support a valid arbitration agreement, Broadway contends that Ms. Roberts entered into the arbitration agreement in her individual capacity and that Ms. King was the third-party beneficiary. Two elements are necessary to apply the third-party-beneficiary doctrine: there must be an underlying valid agreement between two parties and there must be evidence of a clear intention to benefit a third party. Progressive Eldercare Servs.-Chicot, Inc. v. Long, 2014 Ark. App. 661, at 4, 449 S.W.3d 324, 327. The first element, a valid agreement between Ms. Roberts and Broadway, has not been shown to exist. The only evidence is the agreement itself, in which Ms. Roberts clearly indicated that she did not sign in her individual capacity. Ms. King was listed as the resident on the arbitration agreement above Ms. Roberts’s signature. Under the request for the basis of Ms. Roberts’s authority to sign the document, Mr. Roberts indicated “Daughter.” The doctrine does not apply.
Because we hold that the parties did not have a valid arbitration agreement under 1 ^either the agency theory or the third-party-beneficiary doctrine, we need not consider Broadway’s additional arguments, which have been rendered moot.
Affirmed.
Gladwin and Vaught, JJ., agree.
. Ark. Code Ann. §§ 20-10-1201 et seq. (Repl. 2014).
.. An order denying a motion to compel arbitration is an appealable order. Ark. R. App. P. Civ. 2(a)(12) (2016). | [
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N. MARK KLAPPENBACH, Judge
11 Frankie Dewayne Von Holt appeals the Sebastian County Circuit Court’s revocation of his suspended imposition of sentence (SIS). In July 2008, appellant Von Holt pled guilty to six felony offenses and was sentenced to concurrent terms of five years in the Arkansas Department of Correction (ADC) for breaking or entering, five years in the ADC with an additional ten-year SIS for possession of methamphetamine. with intent to deliver, and five years in the ADC with an additional five- year- SIS for possession of drug paraphernalia. Under the terms and conditions of the SIS, appellant was ordered to pay restitution to the victims of the breaking or entering and to pay a $100 fee for his public defender.
The State petitioned to revoke appellant’s suspended sentence on December 30, | ⅞2015, asserting that appellant had violated the terms and conditions of the SIS by (1) committing new offenses of trafficking of a controlled substance, possession of a controlled substance with purpose to deliver, possession of drug paraphernalia, and conspiracy to deliver methamphetamine; and (2) failing to pay restitution and public defender fees.
A revocation hearing was held on August 24, 2016 regarding violation of appellant’s, SIS. The trial court heard testimony on appellant’s charges that were the result of a controlled buy conducted by Fort Smith Police on December 22, 2015. On that day, police officers used a confidential informant to purchase methamphetamine at the residence, of Curtis Jones. Shortly after .the confidential informant entered Jones’s residence, appellant arrived in a truck registered in his name. Appellant, Jones, and the informant were all inside the residence for less than, ten minutes, after which the informant returned to police with a bag of a substance that field-tested positive for methamphetamine. Police obtained and executed a search warrant within one hour of the controlled, buy.
Approaching the residence with the search warrant, police encountered Jones and appellant outside, leaning against appellant’s truck and talking.. The men were detained and searched. Although Detective Napier of the Fort Smith Police Department testified that the audio recording of the controlled buy showed that the actual delivery occurred before appellant entered the residence and that the only conversation was between appellant and Jones, police discovered the $200 in recorded bills— the “buy money”—in appellant’s pocket. During the search, police discovered and photographed multiple bags of what would I Jater test positive for methamphetamine, along with a small amount of marijuana and paraphernalia including a pipe and digital scale. The methamphetamine, divided into bags and stuffed into an .upholstery cleaning wipes container, was found inside a pair of rubber boots in the bed of the truck.
At the hearing, the trial court also heard testimony regarding another ground for revocation. As part of the terms and conditions of his SIS, appellant had been ordered to pay restitution to the victims of his original breaking-or-entering conviction along with a fee for his public defender. The petition asserted appellant’s failure to pay these fees over the past year as a second and independent ground for revocation. The Staté presented evidence that appellant had not made a restitution payment since July 29, 2015 and still owed over $10,000.
Appellant moved for a directed verdict at the close of the testimony, which was denied. The trial court found that appellant had violated the terms and conditions of his SIS and sentenced him to an aggregate term of twenty-five years in the ADC.
Appellant argues that the trial court erred in ruling that there was sufficient evidence to show that appellant inexcusably violated the terms and conditions of his suspended sentence. Primarily, appellant argues that the State failed to estab lish by a preponderance of the.evidence a prima facie case that appellant was trafficking methamphetamine.
14As a second point on appeal, appellant asserts that the State did not adequately prove that his failure to pay restitution and public-defender fees was willful and therefore failed to prove that appellant had violated that condition of his SIS.
To revoke a suspended sentence, the State bears the burden of proving by a preponderance of the evidence that the defendant violated a condition of the suspended sentence. Jones v. State, 355 Ark. 630, 633, 144 S.W.3d 254, 255 (2004); Ark. Code Ann. § 5—4—309(d) (Supp. 2003). On appeal, a trial court’s revocation of a suspended sentence will be affirmed unless the decision is clearly against the preponderance of the evidence. Jones, 355 Ark. at 633, 144 S.W.3d at 255; Simington v. State, 2016 Ark. App. 514, 2016 WL 6471684. The State’s burden of proof for revocation of a suspended sentence—preponderance of the evidence—is lower than that required to sustain a criminal conviction. Jones, 355 Ark. at 633, 144 S.W.3d at 255. Therefore, evidence that is insufficient for a criminal conviction may be sufficient for revocation of a suspended sentence. Id., citing Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Where multiple SIS violations are alleged, a trial court’s revocation will be affirmed if the evidence is sufficient to establish that the appellant violated any one condition of the suspended imposition of sentence. Simington, 2016 Ark. App. 514, at 3 (citing Doyle v. State, 2009 Ark. App. 94, at 4, 302 S.W.3d 607, 609); Cheshire v. State, 80 Ark. App. 327, 331, 95 S.W.3d 820 (2003).
At the revocation hearing, the State presented multiple grounds for revocation: [^Appellant had committed offenses of trafficking of a controlled substance, possession of a controlled substance with purpose to deliver, possession of drug paraphernalia, conspiracy to deliver methamphetamine, and failure to pay restitution and public-defender fees.
'With revocation of a suspended sentence, it is well established that the State need only prove, by a preponderance of the evidence, that the defendant failed to comply with any one term of the suspended sentence. Here, a preponderance of the evidence supports all grounds alleged by the State for revocation. Appellant’s “Restitution Case Profile,” entered into evidence without objection at the revocation hearing, shows that appellant did not make any restitution payments after July 29,2015. The profile also shows appellant’s outstanding balance of $100 for his public defender. The State presented this evidence of nonpayment, and the burden of proof 'shifted to appellant to provide a reasonable excuse for his failure to pay. See Robertson v. State, 2015 Ark. App. 113, at 2, 2015 WL 830855; Bohannon v. State, 2014 Ark. App. 434, 439 S.W.3d 735.
Not only did appellant fail to offer an excuse for nonpayment, he seemed to misunderstand the burden of proof,' essentially asserting that the State had the burden to show that his nonpayment was willful. As discussed above, this is not the correct standard.' Additionally, appellant’s argument oh this point is vague and cites no authority and is therefore meritless. Under the appropriate standard of review, we do not believe the trial court’s' ruling that appellant inexcusably failed to'pay his required fees is clearly against the preponderance of the evidence.' Therefore, we must affirm.
| RWere we to reach the allegations relating .to methamphetamine and drug paraphernalia, we would also affirm. Detective Napier testified that when they executed. the search warrant at Jones’s residence, they discovered in appellant’s pockets the $200 in marked bills that had been given to the confidential informant to purchase drugs. Detective Napier testified that they also discovered the rubber boot containing bags of methamphetamine in the bed of appellant’s truck directly below where appellant was leaning. Also in appellant’s truck, Napier testified, the officers discovered Ziploc bags, digital scales, a pill bottle containing various types of pills, and paraphernalia associated with measuring drugs. Arkansas State Crime Lab chemist Nick Dawson testified that he tested the items from the truck, which tested positive for 248.5 grams of methamphetamine along with other .controlled substances. This is enough to prove the allegations of trafficking and possession. of a controlled substance and drug paraphernalia, beyond a preponderance of the evidence. Therefore, we affirm.
Although we affirm the revocation; we must address a sentencing issue in this case. “The issue of an illegal sentence cannot be waived by the parties and may be addressed for the first time on appeal.” Valencia v. State, 2016 Ark. App. 176, at 6, 2016 WL 1039595 (citing Reyes v. State, 2015 Ark. App. 55, 454 S.W.3d 279). “If we hold that a trial court’s sentence was illegal and that the error had nothing to do with guilt, but only with the illegal sentence, we can correct the sentence in lieu of remanding.” Id. (citing Walden v. State, 2014 Ark. 193, at 3, 433 S.W.3d 864, 867).
|7The original sentencing order shows that appellant was given 60 months in the ADC for his breaking-or-entering convictions. This was not a suspended sentence, and appellant served the prison sentence. On the. revocation sentencing order, however, the trial court “revoked” this sentence and reinstated a 48-month sentence on the breaking-or-entering convictions. Because the original 60-month sentence was'.not suspended, this new sentence on the breaking-or-entering convictions is illegal. A sentence that is not suspended cannot be revoked. Because this court may correct an illegal sentence on appeal sua sponte, we vacate appellant’s new 48-month sentence on the breaking- or-entering convictions.
Affirmed as modified.
Gruber, C.J., and Hixson, J., agree.
. Four counts of breaking or entering, one count of possession of methamphetamine with intent to deliver, and one count of possession of drug paraphernalia.
. Appellant was required to pay $50 per month beginning 90 days after his release from the 60-month sentence for breaking or entering, in addition to a $100 public-defender fee.
. Appellant’s counsel raised this argument below when moving for a directed verdict. | [
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WAYMOND M. BROWN, Judge
lrIn December 2014, Marco Lee (hereinafter “appellant”) was tried by a Critten-den County jury and found guilty of one count of Rape,- a class icY” felony. On appeal, he argues that the trial court committed reversible error in denying his motion for a mistrial. We affirm.
In the State’s opening statements at appellant’s trial for rape, the prosecutor referred to the victim, a fourteen year-old girl, as a “virgin.” Appellant’s counsel immediately objected and moved for a mistrial, and requested the judge instruct the jury that the prosecutor’s statements were not evidence. The judge gave the following instruction:
“Ladies and gentleman, opening statements, remarks during the trial, and closing arguments of the attorneys are not evidence but are made only to help you in understanding.the evidence and applicable law. Any argument, statements or remarks of attorneys having no basis in the evidence should be disregarded by you.” ' '
laThe trial' court took- the motion under advisement and, áftér a hearing on the matter the following day, denied the motion. This appeal followed. ■
Our standard’ of review for appeals of an order denying a mistrial motion is well established, and a trial court’s refusal to grant a mistrial is difficult to overcome:
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. The 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. Among the factors this court considers on appeal in determining whether or not a circuit court abused its discretion in refusing to declare a mistrial are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice.
It is further well settled that an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial.
In Brewer v. State , the prosecutor asked the victim if she had ever had sexual intercourse before the alleged rape. The defense immediately objected and moved for a mistrial outside the presence of the jury. The trial court agreed that question was improper and admonished the jury to disregard the. question, but denied the motion for mistrial. On appeal, the Arkansas Supreme Court stated:
I ¿“It makes no difference whatsoever whether the victim of rape was a virgin or a prostitute. The offense of rape is committed if the person engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Therefore, prior sexual conduct has no relevancy to the issue in ques .tion. We do not think-the prejudice was so great as to call for a mistrial, and we think' the court acted properly in continuing the trial after admonishing--the jury to disregard the improper question and answer.” .
Here, the trial court, in its wide discretion to grant or deny a mistrial, admonished the jury that statements made by the attorneys were not evidence. Although it did not indicate specifically which statement to disregard, we cannot say its action continuing the trial amounted to an abuse of discretion. “
Appellant, in turn, argues that even if the statement is relevant to the issue of rape, it should be excluded as unfairly prejudicial pursuant to Arkansas Rule of Evidence 403. We -do not believe appellant has established such prejudice. First, he was convicted of a “Y” felony, and therefore, he could have been sentenced up to forty years’ imprisonment, but instead, he was sentenced to only fourteen. Second, testimony at trial overwhelmingly corroborated appellant’s guilt. Seven different witnesses testified against appellant. The victim testified that appellant asked her to ride with him to pick up their cousin. Instead, she continued, appellant drove to his own house and, once inside, removed the victim’s underwear and forcibly had sexual intercourse with her. She further testified that she immediately told her family members when they returned home. They immediately alerted the authorities and took the victim to a rape crisis center in Memphis. The family members testified accordingly against appellant.
|/The prosecutor’s statement that the victim was a “virgin” at the time of the rape was improper because it was irrelevant. However, appellant has failed to show that such-.a statement was so prejudicial as to warrant a mistrial. Therefore, we do not find that the trial court abused its discretion and we affirm.'
Affirmed.
Glover, and Whiteaker, JJ., agree.
. Burks v. State, 2009 Ark. 598, 359 S.W.3d 402 (citing King v. State, 361 Ark. 402, 206 S.W.3d 883 (2005)).
. Robinson v. State, 2010 Ark. App. 419, 2010 WL 1905095.
.Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980).
. Id. at 189, 599 S.W.2d at 143. | [
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KENNETH S. HIXSON, Judge
k This case involves the interpretation of restrictive covenants for a subdivision known as Belle Pointe Subdivision in Little Rock (the subdivision). The trial court ruled that restrictive covenants encumbering the subdivision prevented appellant D/B Briggs & Associates, LLC (Briggs) from accessing a new planned development through the subdivision. On appeal, Briggs contends that the trial court erred in failing to properly apply the “unfettered use” rule in construing the restrictive covenants applicable to the subdivision. We affirm.
In 1989, Darbe Development Company (Darbe) developed Belle Pointe Subdivision (the subdivision). The subdivision can be generally described as a one-street subdivision lying in a north-south orientation with a cul-de-sac at each end. Belle Pointe Drive Igconnects the two cul-de-sacs with numbered residential lots on either side of the drive. This litigation pertains to the cul-de-sac at the north end. Adjacent to, and north of, this cul-de-sac is a 40-acre tract of undeveloped land, which is the land that Briggs intends to use to build his new development. Lot 25 of the subdivision lies on the left side (west) of the cul-de-sac, and Lot 26 lies to the right side (east) of the cul-de-sac. Lot 25 and Lot 26 do not have a common border. Instead, between Lots 25 and 26 is a triangular area of land styled “Tract A.” Briggs desires to build a street or driveway from the cul-de-sac through Tract A to gain access to his new 40-acre development. The appellees, various owners of lots within the subdivision, do not want the cul-de-sac opened up to the new development.
Melvyn Bell, Darbe’s principal shareholder, owned the forty acres lying north and contiguous to Tract A. When Darbe created the subdivision, Darbe filed a bill of assurance (the original bill of assurance) and a plat (the original plat) of the subdivision. The original bill of assurance for the subdivision provided, in relevant part:
[Darbe] has donated and dedicated to the public no right-of-way for streets, but does hereby provide for an easement as a common drive for Belle Pointe, within the area shown on the Plat, as access, drainage and utilities, to be used for ingress, egress and regress only by the owners of the lots 1-32, Tract A’ and Tract B’ and the ⅛0 acres, [description omitted], lying North of and contiguous to Tract A’ and Lots 24 and 25, their agents, licensees, family, guests, invitees and for fire, police, postal and related services.
(emphasis added). The original bill of assurance also provided that “[t]he land herein platted shall be held, owned and used only as residential building sites. Tract A’ shall remain open space until combined mth other land to make a build-able residential lot with the approval of the Little |¡flock Planning Commission.” (emphasis added). Tract A was shown on the original plat as being located between residential lots 25 and 26 and overlapping part of the cul-de-sac at the north end of the subdivision.
The subdivision was replatted (the rep-lat) in 1993 by a property owners’ improvement district owning more than seventy-five percent of the property within the subdivision. The replatting was designed to create more lots over the same area, resulting in eight additional lots. Along with the replat, the improvement district created and filed an amended and restated bill of assurance (the restated bill of assurance) for the subdivision. In relevant part, the restated bill of assurance provided:
The undersigned hereby donates and dedicates to the public an easement of way on, over and under the streets owned by the undersigned as shown on the Plat to be used as public streets as well as any landscaped areas.
The Original Bill of Assurance made no dedication or donation to the public of right-of-way for streets, but said Original Bill of Assurance and Original Plat did provide for certain easements for a common drive, access, drainage and utilities as shown on the Original Plat. To the extent not hereby dedicated to public use, the undersigned reaffirms such easements as shown on the Original Plat and nothing herein shall be deemed to amend or revoke the prior grant of said easements.
(emphasis added). In addition, the restated bill of assurance again provided that “Tract A shall remain open space until combined with other land to make a build-able residential lot with the approval of the Little Bock Planning Commission." (emphasis added).
Briggs entered into a contract to purchase Tract A of the subdivision and the contiguous forty acres north of Tract A with the intention of creating Belle Pointe View |4Estates (BPVE) subdivision. In the proposed plat for BPVE, Briggs combined a portion of the forty acres of undeveloped land along with Tract A of Belle Pointe to create a new proposed buildable residential lot. And, more importantly, the proposed plat showed that Tract A would be used for a street or driveway for access to BPVE from the Belle Pointe Subdivision.
On July 14, 2015, appellees, as property owners on the subdivision, filed an action for declaratory judgment. They contended that Briggs’s plan to construct a street or driveway across Tract A violated the restated bill of assurance providing that Tract A would remain open space until combined with other land to make a build-able residential lot.
Briggs answered and counterclaimed, contending that it intended to build a gated, private drive and that the Belle Pointe subdivision restrictions did not prohibit Tract A from being used for a private drive. Briggs requested injunctive relief to enjoin appellees from interfering with its development of Tract A for that purpose. Briggs subsequently filed a motion for summary judgment. The appellees filed a response to Briggs’s summary-judgment motion and a countermotion for summary judgment..
The trial court conducted a hearing on the pending cross-motions for summary judgment. At the conclusion of the hearing, the trial court announced that it would grant the-appellees’ motion for summary judgment, thereby prohibiting Briggs from using Tract A as an access drive to its new proposed subdivision. The order memorializing the trial court’s findings and ruling was entered on November 5, 2015, and that order recites in relevant part:
3. The sole issue to be decided by this court was whether Defendant is prohibited by the restrictive covenants of Belle Pointe Subdivision to use Tract A to | sconstruct a private drive to access Briggs’s proposed subdivision adjoining Tract A of Belle Pointe Subdivision.
4. The parties agree that the Court, in construing restrictive covenants, must do so by applying the “strict construction” test so that “all doubts are resolved in favor of the unfettered use of land.” Royal Oaks Vista, LLC v. Maddox, 372 Ark. 119, 271 S.W.3d 479 (2008).
5. In applying the above standards for construction for Bills of Assurance, the Court finds that the operative document is the 1993 Restated and Amended Bill of Assurance that says Tract A shall remain open space and it will combine other land and make a buildable residential lot with the approval of the Little Rock Planning Commission. The Court finds that language amends the original Bill of Assurance and is very specific that there was going to be a building with land combined to Tract A and the Little Rock Planning Commission was required to approve it.
6. Accordingly, the Court GRANTS Plaintiffs’ Motion for Summary Judgment to declare that Tract A may only be combined with other areas outside Belle Pointe Subdivision to make a single residential lot.
On appeal, Briggs contends that the trial court erred by imposing a restriction on Tract A that was not clearly apparent from the bills of assurance. Briggs further asserts that the trial court erred by failing to construe both the original bill of assurance and the restated bill of assurance together in arriving at its decision.
Ordinarily, 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. Abraham v. Beck, 2015 Ark. 80, 456 S.W.3d 744. However, in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions for summary judgment, as they did in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. Id. As to issues of law presented, our review is de novo. Id.
At issue in this case is the interpretation of a protective or restrictive covenant on the use of land. Our courts have observed that restrictions on the use of land are not favored |fiin the law. Royal Oaks Vista, L.L.C. v. Maddox, 372 Ark. 119, 271 S.W.3d 479 (2008). Further, a restrictive covenant will be strictly construed against limitations on the free use of land. Id. Thus, all doubts are resolved in favor of the unfettered use of land. Id. In addition, the supreme court has stated that the general rule of interpretation, application, and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs. Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). Any restriction on the use of land must be clearly apparent in the language of the asserted covenant. Id. Where the language is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the provision. Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006). The rule of strict construction is limited by the basic doctrine of taking the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).
Briggs argues that the application of the “unfettered use” rule, as outlined above, allows it to use Tract A to access its adjacent BPVE development and that the trial court erred in deciding otherwise. However, applying the principles above to the restrictive covenants at issue here, we disagree.
In arguing that the restrictive covenants prohibited Briggs’s intended use of Tract A, the appellees rely on our decision in Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984). There, we held that a restrictive covenant providing that “no lot shall be used except for residential purposes” was violated by the appellant’s intended use of one of the subdivision lots to access its apartment complex, which was not part of the 17subdivision. We indicated that such a restrictive covenant permitted only uses that were reasonably incidental to residential uses. We concluded in Briarwood Apartments that the use of the appellant’s lot as a connecting street to access the adjoining apartment complex was not in any sense a residential use or a use incidental thereto.
In the case at bar, the trial court determined that Briggs’s intended use of Tract A as access to a separate subdivision was inconsistent with the use of Tract A as stated in the restated bill of assurance. More particularly, the restated bill of assurance provided that Tract A shall remain open space until combined with other land to make a buildable residential lot with the approval of the Little Rock Planning Commission. The restated bill of assurance further provided that “[no] structures or other improvements shall be erected, altered, placed or permitted to remain on any building site other than a single detached single-family residence and the appurtenance thereunto such as a driveway, sidewalks, and fences[.]” Although Briggs argues that the restriction on Tract A as found by the trial court was not clearly apparent, we agree with the trial court that the language employed in the restated bill of assurance evinced a clear intent to limit Tract A to a single residential use. Because a roadway as access to other property is inconsistent with such residential use, the trial court’s interpretation of the restrictive covenants was correct. See Briarwood Apartments, supra.
Briggs, however, argues that the original bill of assurance was incorporated by reference into the restated bill of assurance, and that the original bill of assurance granted an easement across Tract A to access the 40-acre tract to the north, which allows for the common drive that Briggs proposes to develop. Briggs relies on the language in the original | «bill of assurance providing for an easement for ingress and egress to the property owners within the subdivision, and also to Tract A and the 40 acres lying north and contiguous to Tract A.
Assuming arguendo that the restated bill of assurance did incorporate by reference the original bill of assurance, the restated bill of assurance terminated any easement across Tract A, if one in fact existed. The person asserting an easement has the burden of proving the existence of the easement. Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997). An express grant of an easement must be clearly and unmistakably communicated by the clear intention of the grantor. 25 Am. Jur. 2d Easements and Licenses § 14 (2016). Moreover, the grant should identify the easement’s location with specificity. Wilson v. Johnston, 66 Ark. App. 193, 990 S.W.2d 554 (1999).
We observe that the original bill of assurance contains inconsistent provisions as to whether there was an intention to create an easement over Tract A to the contiguous 40-acre tract. The provision relied on by Briggs to assert such easement specifically describes the easement as being “within the area shown on the plat.” However, the original plat depicts the easement ending at the cul-de-sac; the easement as shown on the plat does not extend across Tract A to the undeveloped 40-acre tract. Furthermore, the original bill of assurance contains conflicting language providing that Tract A shall remain open space until combined with other land to make a build-able residential lot with the approval of the Little Rock Planning Commission, and this provision would be inconsistent with a public street.
Even if we were to determine that the intent of the original bill of assurance was to create an express easement across Tract A, we conclude that the easement was subsequently | gterminated. An easement can terminate either by expiring in accordance with the intent of the parties manifested in the creating transaction, or by being extinguished by the course of events subsequent to its creation. See Sluyter v. Hale Fireworks P’ship, 370 Ark. 511, 262 S.W.3d 154 (2007). In this case, the express terms of the restated bill of assurance terminated any claim to an easement over Tract A.
The operative language in the restated bill of assurance is as follows:
The Original Bill of Assurance made no dedication or donation to the public of right-of-way for streets, but said Original Bill of Assurance and Original Plat did provide for certain easements for a common drive, access, drainage and utilities as shown on the Original Plat. To the extent not hereby dedicated to public use, the undersigned reaffirms such easements as shown on the Original Plat and nothing herein shall be deemed to amend or revoke the prior grant of said easements.
(emphasis added). The original plat does not show an easement across Tract A to the contiguous 40-acre tract to the north, nor does the restated plat, so by the express terms as restated in the restated bill of assurance, no such easement exists.
We hold that the trial court’s application of the “unfettered use” rule to these restrictive covenants was not erroneous. Because the restated bill of assurance contains restrictions preventing Briggs’s intended use of Tract A, and there is no existing easement to otherwise allow for access across Tract A, we affirm the trial court’s summary judgment entered against Briggs and in favor of the appellee landowners.
Affirmed.
Gladwin, C.J., and Kinard, J., agree.
. Morgan Magness, Judith B. Magness, George W. Foster III, Jack London, Karen London, B. Douglas Stokes, Sarah Moore Stokes, Michael Roberson, Sara Roberson, Dianne Wood, and Linda Young.
. Lot 25 became Lot 30R, and Lot 26 became Lot 3IR. The configuration of Tract A appeared to be unchanged. | [
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DAVID M. GLOVER, Judge
1 iThis case involves separate appeals by appellant MidFirst Bank (MidFirst) and appellants Carolyn Bedford and her sister, Denise Bedford, from the order of the Crittenden County Circuit Court unwinding the results of a foreclosure decree that was set aside for improper service on Carolyn Bedford, the property owner. MidFirst appeals that part of the order awarding appellee Lori Sumpter a money judgment against it and from the award of indemnification to Carolyn Bedford on a separate claim. Carolyn and Denise Bed-ford appeal from that part of the order directing that they take nothing on their conversion claims against |2MidFirst and Sumpter. Carolyn Bedford also argues that the circuit court erred in failing to remove a cloud on her title. Sumpter has filed a cross-appeal. We affirm as modified in part, affirm in part, reverse in part, and remand in part on the direct appeals. We affirm on Sumpter’s cross-appeal.
Background and Procedural History
In July 1986, Carolyn Bedford became the owner of property located in West Memphis, Arkansas. Bedford assumed the indebtedness owed under a deed of trust and note executed by Warren Taylor and his wife, Lisa Taylor. This note and deed of trust were later assigned to MidFirst. The note went into default when Carolyn Bedford failed to make the March 2007 payment.
On January 10, 2008, MidFirst filed a judicial-foreclosure action against Carolyn Bedford and other defendants with record title interests in the property. Service on Bedford was had by certified mail, restricted delivery, return receipt requested; but the green card was signed by Bedford’s sister, Denise Bedford, who was residing in the home.
After Carolyn Bedford failed to respond to the complaint, the circuit court entered a decree of foreclosure by default on July 25, 2008. The property was offered for public sale on September 15, 2008, and Sumpter purchased the property for $35,103.46. On October 6, 2008, the circuit court confirmed the sale and approved the Commissioner’s Deed. The Commissioner’s Deed to Sumpter was recorded the same day.
On October 2, 2008, Sumpter borrowed $62,250 from Fidelity National Bank, secured by a mortgage on the property, to finance the purchase and to make improvements to the property ($35,103.46 was immediately drawn by Sumpter for payment of the | ¡¡purchase price, and the remaining balance of the loan was drawn by Sumpter for improvements and other expenses). The mortgage was recorded shortly after the Commissioner’s Deed had been recorded. After evicting the Bedfords from the property, Sumpter began making improvements. In November 2008, Sumpter leased the property.
On October 15, 2008, Carolyn Bedford moved to set aside the foreclosure decree for insufficient service of process. She alleged the service of the summons and complaint by certified mail was improper because it was signed for by Denise Bedford instead of Carolyn Bedford. Sumpter was made a party.
In August 2009, the circuit court found service of the foreclosure complaint had been defective. The court set aside the default judgment, vacated the foreclosure sale, voided the Commissioner’s Deed, and ordered possession be returned to Bedford within sixty days. The court noted that MidFirst had failed in its obligation to ensure Sumpter received good title to the property. Sumpter sought to have the order modified so Bedford would not regain possession until she paid the value of the improvements made by Sumpter, as provided by the Betterment Act.
Sumpter sought to quiet title to the property in her name and requested damages from Bedford and MidFirst alleging various legal theories. Carolyn Bedford answered the petition and denied the material allegations. MidFirst responded by asserting that the doctrine of caveat emptor applied to bar any relief to Sumpter. Sumpter later amended her Upetition to seek damages under the Betterment Act in the approximate sum of $60,000, together with lost revenues in the amount of $352,000.
Carolyn Bedford filed a cross-claim for indemnification against MidFirst for any damages Sumpter might recover against her. As an alternative theory in an amended cross-claim, Bedford asked for damages for wrongful foreclosure. She also asked that Fidelity National’s mortgage lien on the property be canceled. Denise Bedford filed her motion to intervene for the purpose of asserting a conversion claim against MidFirst and Sumpter. After the circuit court granted the motion to inter vene, Denise Bedford filed her third-party complaint seeking damages from MidFirst and Sumpter for conversion of personal property lost or damaged during the eviction.
By agreed order entered on December 28, 2009, Sumpter’s purchase price of $35,103.46 was refunded to her by Mid-First. The order reserved the question of whether she should be awarded interest on the sum.
Carolyn Bedford filed for Chapter 13 bankruptcy protection on April 15, 2010. Fidelity National and Sumpter were granted relief from the automatic stay in the summer | Rof 2011. The bankruptcy court confirmed Bedford’s Chapter 13 plan to become current on the mortgage in August 2011.
Sumpter moved for partial summary judgment on the issue of MidFirst’s liability. MidFirst responded to the motion. Following a hearing, by order entered on July 27, 2011, the circuit court granted Sump-ter’s motion as to MidFirst’s liability only, reserving all other issues, including damages and apportionment among the parties. The court did not state the theory or the basis for its ruling but noted both Bedford and MidFirst were inattentive to their business, which led to the improper foreclosure action, and Sumpter was not to blame.
The case proceeded to a two-day bench trial. In its order entered on November 2, 2012, the circuit court found Sumpter was entitled to recover from MidFirst the total amount she had borrowed from Fidelity Bank, plus all associated costs and interest paid and accrued, which the court found to be $81,516.15, less the refunded purchase price of $35,103.46, for a balance of $46,412.69, plus interest at the maximum lawful rate until paid. The court specifically declined to give an offset for the $7,000 in rent Sumpter had received on the property. Fidelity National was granted a lien on the net proceeds of the judgment, or such portion thereof as might be necessary, to pay off the balance Sumpter had borrowed. Finally, the circuit court found the Bedfords could not recover on their conversion claims because their claims were grossly exaggerated and not credible, their damages not proven, and any amounts claimed by Carolyn Bedford were more than offset by the improvements Sumpter had made to the property. That judgment was appealed.
|fiWe dismissed the original appeals by MidFirst and the Bedfords in Sumpter /, supra, for lack of a final order because the circuit court did not address Sumpter’s Betterment Act claim against Carolyn Bedford or Bedford’s related cross-claim for indemnity on that claim against Mid-First.
On remand, the court entered an order on January 7, 2015, granting Sumpter judgment against Carolyn Bedford in the amount of $9,650 under the Betterment Act, finding that the Bedford property had increased in value by $9,650 due to the improvements by Sumpter. The court declined to offset this Betterment Act judgment by the $7,000 in rent received by Sumpter during the period in which she was in possession of the property. The court granted Carolyn Bedford’s cross-claim for indemnification against MidFirst in the same amount.
MidFirst timely filed a posttrial motion noting that it had already repaired the purchase price of $35,103.46 to Sumpter and arguing that the doctrine of caveat emptor applied to the foreclosure sale and that Sumpter was barred from any other recovery from MidFirst. MidFirst alternatively argued the Betterment Act was Sumpter’s exclusive remedy or, at least, limited the amount of her recovery to the value of the improvements and that any Betterment Act judgment should be against the property owner, Carolyn Bed-ford, not MidFirst. Finally, MidFirst argued that Carolyn Bedford was not entitled to judgment for indemnification for Sumpter’s judgment under the Betterment Act.
The court entered a final order on May 29, 2015, addressing all parties’ posttrial motions and denying all other claims for relief from the parties. The order also incorporated by reference the original November 2, 2012 order and the January 7, 2015 order addressing 17the Betterment Act. Timely notices of appeal and cross-appeal were filed by MidFirst and the Bedfords. Sumpter filed a notice of cross-appeal in the event the award of damages against MidFirst is reversed.
Standard of Review
In civil bench trials, the standard of review on appeal is whether the circuit court’s findings were clearly erroneous or clearly against a preponderance of the evidence. Tadlock v. Moncus, 2013 Ark. App. 363, 428 S.W.3d 526. 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.
Discussion
Sumpter’s claims against MidFirst and Carolyn Bedford
The order confirming the foreclosure sale was filed on October 6, 2008. Sumpter borrowed $35,103.46 from Fidelity National Bank to finance the purchase price. The foreclosure sale was subsequently set aside, and MidFirst refunded the $35,103.46 purchase price to Sumpter on December 31, 2009. Hence the refund of the purchase price is not an issue on appeal.
Sumpter’s claims against MidFirst are essentially for the cost and expenses of the improvements to the Bedford property, plus interest paid and accrued to her lender, Fidelity National Bank. Sumpter also has a claim for the increased value of improvements against |RCarolyn Bedford under the Betterment Act. As such, we find that both claims by Sumpter emanate from the improvements to the Bedford property. The claim against MidFirst is for the actual cost of improvements, while the claim against Carolyn Bedford is for the increased value of her property. As conceded by Sumpter’s counsel in oral argument, Sumpter cannot receive both remedies because it would amount to a double recovery. Based on these competing, yet similar, claims we find that the legislature specifically promulgated the Betterment Act to provide relief under these circumstances.
The Betterment Act provides in pertinent part that
(a) If any person, believing himself or herself to be the owner, either in law or equity, under color of title, has peaceably improved, or shall peaceably im prove, any land which upon judicial investigation shall be decided to belong to another, the value of the improvement made as aforesaid and the amount of all taxes which may have been paid on the land by such person, and those under whom he or she claims, shall be paid by the successful party to such occupant, or the person under whom or from whom, he or she entered and holds, before the court rendering judgment in such proceedings shall cause possession to be delivered to such successful party.
Ark. Code Ann. § 18-60-213(a). Thus, a person may recover for improvements made to another’s land under the Betterment Act if she (1) believes herself to be the owner of the property; and (2) holds under color of title. Smith v. MRCC P’ship, 302 Ark. 547, 792 S.W.2d 301 (1990); Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995). The remedy provided by the Betterment Act is against the true owner of the property. Stephens v. Clark, 121 Ark. 292, 181 S.W. 895 (1915). The Betterment Act also applies without regard to whether the true owner wanted the improvements or whether he could profitably use them. Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962); Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981). Our supreme court has held the statute applies to the purchaser at|na judicial sale that has been set aside on the ground of irregularity. McDonald v. Kenney, 101 Ark. 9, 140 S.W. 999 (1911); McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88 (1909).
Here, Sumpter clearly made improvements to the Bedford property while she believed herself the true owner and while she held color of title from the foreclosure sale. The evidence introduced in the record indicates that the value of improvements to the Bedford property for work provided by Sumpter was $9,650. Based on the application of the Betterment Act, the damages sustained by Sumpter are not the costs of the improvements, but rather the increased value of the improvements. Therefore, Sumpter’s judgment against MidFirst is set aside, and Sumpter shall -have a judgment against Carolyn Bedford in the amount of $9,650 as herein below modified.
The next question is whether the circuit court erred in failing to apply a setoff for the rents Sumpter received. The Betterment Act specifically provides that “the court may allow to the owner of the lands, as a setoff against the value of the improvements and taxes, the value of all rents accruing after the date of the judgment in which it has been allowed.” Ark. Code Ann. § 18-60-213(e) (emphasis added). Despite the permissive plain language of Imthe statute, our supreme court has construed the Betterment Act as not providing for recovery of the value of improvements unless the improvements exceed the rents and profits due the owner. Crouch v. Crouch, 244 Ark. 823, 431 S.W.2d 261 (1968). Here, Carolyn Bedford made a demand for rents and profits against Sumpter. As a result, we hold the circuit court erred in failing to reduce the judgment on the Betterment Act by the amount of rent received by Sumpter. Therefore, the judgment in favor of Sump-ter against Carolyn Bedford in the amount of $9,650 is reduced to $2,650.
The next question is whether the circuit court erred in awarding a judgment for indemnification in favor of Carolyn Bedford for Betterment Act damages over against MidFirst. We hold that it was error. The purpose of the Betterment Act was to compensate the mistaken occupier of property for improvements to the land made in good faith, under the belief he was the sole owner. Riddle v. Williams, 204 Ark. 1047, 166 S.W.2d 893 (1942). “The betterments act does not proceed upon the idea of contract or consent of the parties, or negligence of the owner in asserting his title. It is a rule for administering justice, and the principle of it is that no one ought to be enriched at the expense of another.” Id. at 1053, 166 S.W.2d at 895 (quoting Beard v. Dansty, 48 Ark. 183, 188, 2 S.W. 701, 702 (1887)). Here, without regard to negligence, contract, or consent, Carolyn Bedford has received an increase in value to her property in the amount of $9,650. The court erred in granting Bedford a judgment over against MidFirst for indemnification and said judgment is reversed.
The only issue remaining in this part of the discussion relates back to Sumpter’s purchase of the Bedford property at the foreclosure sale and the refund by Mid-First. While MidFirst ultimately repaid Sumpter the purchase price of $35,103.46 on December 31, In2009, Sumpter prayed for the return of interest paid. We hold that Sumpter shall have judgment against MidFirst for interest at the rate of 6.5% per annum on the principal amount of $35,103.46 from October 6, 2008, through December 31, 2009.
Conversion
Carolyn and Denise Bedford argue that the circuit court erred in denying them recovery on their conversion claims against MidFirst and Sumpter. We disagree.
Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. Carpenter v. Layne, 2010 Ark. App. 364, 374 S.W.3d 871. In order to establish liability for the tort of conversion, a plaintiff must prove the defendant wrongfully committed a distinct act of dominion over the property of another, which is a denial of or is inconsistent with the owner’s rights. C.A.R. Transp. Brokerage Co., Inc. v. Seay, 369 Ark. 354, 255 S.W.3d 445 (2007). If the defendant exercises control over the goods in exclusion or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s own use or another’s use. Id.
At trial, Carolyn Bedford sought approximately $6,000 for personal property, and Denise Bedford sought approximately $70,000 for personal property. There was disputed evidence as to the amount and condition of the Bedfords’ personal property when it was left in the storage unit. Denise Bedford presented a detailed list of the items she claimed were lost. The testimony of the deputy sheriff supervising the move corroborated some of the items on the list with photographs. However, the deputy did not see any flat-screen | ^televisions. The total of those items on the list was more than $97,000. Included were three flat-screen televisions, exercise equipment, kitchen appliances, computers, hundreds of CDs and DVDs, and other electronics. Sumpter presented testimony from some of the crew that moved the personal property from the house to the storage unit. They said the property was in good condition when left in the storage unit. However, they denied there were flat-screen televisions or exercise equipment. Denny Sumpter testified the kitchen appliances were removed and replaced. Where the pivotal issue is the credibility of interested parties whose testimony is in direct conflict, we defer to the circuit judge’s determination. Carpenter, supra. This is because the fact-finder’s choice between two permissible views of the evidence cannot be clearly erroneous. Rymor Builders, Inc. v. Tanglewood Plumbing Co., 100 Ark. App. 141, 265 S.W.3d 151 (2007).
In addition, the Bedfords were using the wrong measure of damages to attempt to prove their claims. The measure of damages for the conversion of personal property is the fair market value of the property at the time and place of the taking. JAG Consulting v. Eubanks, 77 Ark. App. 232, 72 S.W.3d 549 (2002). Fair market value is defined as the price the personalty would bring between a willing seller and a willing buyer in the open market after negotiations. Id. Evidence based upon purchase, replacement, or rental prices is improper. Id. Here, Denise Bedford testified solely as to the replacement cost of the items. She also testified the replacement values were from 2011, after the house had suffered from flooding in both 2010 and 2011. She made no effort to relate the value at the time of the taking. However, the plaintiff must show the fair market value at the time of the taking. Id. If the only testimony as to the value of the items taken is the replacement cost and there is no | ^evidence as to the fair market value, a judgment for the plaintiff cannot stand. Bank of Cabot v. Ray, 279 Ark. 92, 648 S.W.2d 800 (1983).
Removal of Cloud on Title
Carolyn Bedford argues that the circuit court erred in not removing a cloud on her title in the form of the mortgage given in favor of Fidelity National Bank by Sump-ter. While the circuit court stated that Fidelity National now had an unsecured obligation, out of caution we are concerned that this statement is insufficient to remove a cloud of title. We, therefore, remand to the circuit court to enter an order removing the lien in favor of Fidelity National on the Bedford property.
Cross-Appeal
In her cross-appeal, Sumpter seeks remand for consideration of her various other causes of action and whether she should be subrogated to the rights of Mid-First. We hold that Sumpter does not have a cause of action against MidFirst for breach of contract, quasi-contract, implied contract, or breach of the covenants in the commissioner’s deed because, in judicial sales, the court is the vendor. Kellett v. Pocahontas Fed. Sav. & Loan Ass’n, 25 Ark. App. 243, 756 S.W.2d 926 (1988). We agree with the statement of New York’s highest court:
With judicial sales, however, the situation is different. The contract is made with some officer or agent appointed by the court, who acts under its direction, judgment or decree. In such cases the purchaser cannot demand damages as for a breach of contract made by the court through its officer or agent, but has to rely upon the court to do equity under the circumstances. Therefore, the awarding of compensation to an innocent purchaser for his reasonable expenses in examining title, where it is found defective, is founded upon equity and not upon the breach of contract.
People v. New York Building-Loan Banking Co., 189 N.Y. 233, 82 N.E. 184, 185 (1907).
Likewise, Sumpter does not have a cause of action under the Arkansas Deceptive Trade Practices Act (ADTPA). The ADTPA, Arkansas Code Annotated sections 4-88-101 to -502 (Repl. 2011), prohibits deceptive and unconscionable trade practices. The circuit court, in addressing MidFirst’s motion to dismiss Sumpter’s claims, found the alleged misrepresentation would not support a claim for punitive damages because the “actions at issue herein were neither reckless nor were they intentional. What we have here is a mere oversight that resulted in a cascade of unfortunate consequences.” Sumpter does not challenge the findings that MidFirst was neither reckless nor intentional. A private cause of action under the ADTPA does not arise absent a showing of both a violation and resultant damages. Skalla v. Canepari, 2013 Ark. 415, 430 S.W.3d 72. Here, Sumpter has not shown a violation of the Act.
Conclusion
In conclusion, we affirm and modify Sumpter’s judgment against MidFirst for an amount equal to the interest at the rate of 6.5% per annum on the principal amount of $35,103.46 from October 6, 2008, through December 31, 2009. We remand to the circuit court for calculation of that interest. We also affirm and modify Sump-ter’s judgment under the Betterment Act against Carolyn Bedford to the amount of $2,650. We reverse Carolyn Bedford’s indemnification judgment against MidFirst. We affirm the circuit court’s judgment on the conversion claims of Carolyn and Denise Bedford. We affirm on Sumpter’s cross-appeal because she does not have any other viable causes of action against MidFirst, | ,-We remand to the circuit court and order the court to enter an order to remove the cloud on title evidenced by the lien in favor of Fidelity National Bank.
Affirmed as modified in part, affirmed in part, reversed in part, and remanded in part on direct appeal; affirmed on cross-appeal.
Hixson and Hoofman, JJ., agree.
. In MidFirst Bank v. Sumpter, 2014 Ark. App. 544, 2014 WL 5035112 (Sumpter I), we dismissed an earlier appeal of this case for lack of a final order.
. Ark. Code Ann. § 18-60-213 (Repl. 2003).
. Sumpter also set forth third-party claims against Fidelity National Bank, Stewart Title, and the current lessees of the property. She further requested the court enter a judgment declaring that she was not liable to Fidelity National with respect to the loan for the property or to the lessees under the lease. Sumpter later amended her petition again to include MidFirst, Bedford, Fidelity National, Stewart Title, and the current lessees in her claims.
MidFirst also amended its original foreclosure complaint to add the additional parties that may claim an interest in the property. Fidelity National, Bedford, and Sumpter each responded to MidFirst’s amended complaint and denied the material allegations. MidFirst asserted that Bedford failed to make the March 2007 payment and that the total principal due was $25,679.46, together with accrued interest of $8,003.60, plus insurance charges, taxes, late fees, and attorney’s fees.
. The remaining parties, Stewart Title, Warren Taylor, Lisa Taylor, Charles Hutchinson d/b/a A-l Bail Bonds, Erica Smith, Benjamin Webb, and Natasha Webb, were dismissed from the case.
. The balance of the $62,500 loan was subsequently drawn to finance improvements to the property and other expenses.
. However, the interest paid by Sumpter to Fidelity National Bank on the $35,103.46 principal is discussed hereinafter.
. There was conflicting evidence about the increase in value of the property. As part of its loan process, Fidelity National had an appraisal conducted on September 29, 2008, prior to any improvements being made, that valued the property at approximately $83,000 when completely improved. The Bedfords’ appraiser valued the property at $77,000 in March 2010. The county assessor valued the property at $73,350 in 2005, with an appraisal for $74,500 in 2009 and another appraisal for $74,850 in 2010. Applying the case law and the Betterment Act to these facts, we cannot say. the circuit court’s award of $9,650 is clearly erroneous.
. There are inconsistencies in the amount of the rental income received by Sumpter. Mid-First and Sumpter stipulated that the amount was a gross figure of $7,000. It appears the circuit court’s order utilizing the figure of $8,000 was a scrivener’s error.
. The promissory note between Sumpter and Fidelity National included an interest rate of 6.5% per annum. | [
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D. Franklin Arey, III, Judge.
The Cleveland County-Chancery Court granted appellant Margaret B. Grider a decree of separate maintenance on her counterclaim against the appellee, Grady Pat Grider. However, the chancellor declined appellant’s request that he enforce the separation and property settlement agreement previously entered into by the parties. On appeal, appellant contends the chancellor erred in failing to enforce this agreement. We agree that the chancellor had the power to enforce the agreement, so we reverse and remand this matter for further proceedings consistent with this opinion.
Appellant and appellee entered into a “Separation and Property Settlement Agreement” in February of 1996. The agreement noted the parties’ intent to live separate and apart for the rest of their lives, and purported to determine their rights and obligations during their separation. It divided the parties’ personal property and allowed appellant the use of the marital home. It specifically stated that it constituted an independent contract of the parties that would constitute a stipulation between them in any divorce action.
Appellee filed for divorce two months after the parties entered into the agreement. Appellant filed a counterclaim for separate maintenance. At trial, appellee failed to provide corroboration of the alleged grounds for divorce, so the chancellor granted a directed verdict against him. Since appellant proved her case, the chancellor entered a separate maintenance decree on her counterclaim.
Despite appellant’s request, the chancellor did not enforce the parties’ agreement. He believed that a decision on the agreement’s enforceability would be premature and inappropriate because no decree of divorce had yet been awarded in the proceeding.
We are asked to determine whether the chancellor has the power to enforce an agreement that divides the parties’ marital property in the course of a proceeding that results in a decree of separate maintenance. Appellee contends that the chancellor lacked jurisdiction to absolutely divide the parties’ property in the decree of separate maintenance. In her own words, appellant responds that she “is appealing the trial court’s decision that it lacked the power to enforce the [ajgreement between the parties, not its failure to proactively divide the property in its legal separation order.”
The chancellor did have the power to enforce the parties’ agreement, even though no decree of divorce was entered. “Courts of equity may enforce the performance of written agreements between husband and wife made and entered into in contemplation of either separation or divorce . . . .” Ark. Code Ann. § 9-12-313 (Repl. 1993). The agreement at issue indicates that it was “entered into in contemplation of. . . separation”; it determined the rights and obligations of the parties as to their marital property during their separation. Thus, section 9-12-313 provides the chancellor with the power to enforce the agreement.
This conclusion is supported by Strasner v. Strasner, 232 Ark. 478, 338 S.W.2d 679 (1960). In that case, no action for divorce was instituted by either party prior to our supreme court’s decision. At issue was an agreement between the husband and wife that divided their marital property, among other things. The wife brought an action in chancery court seeking specific performance of the agreement. The chancellor found that the agreement was valid, decreed specific performance of the property settlement agreement, and awarded the wife judgment for delinquent pay- merits. Id. at 480, 338 S.W.2d at 680. On appeal, the husband argued that the chancehor lacked subject matter jurisdiction to enforce the agreement because the wife had an adequate remedy at law for breach of contract. Our supreme court affirmed the chancellor’s jurisdiction, noting “that the Legislature settled the matter of jurisdiction by the passage of Act 290 of 1941 . . . .” Id. at 481, 338 S.W.2d at 681. Act 290 of 1941 is now codified as section 9-12-313.
Similarly, the enforcement of a separation and property settlement agreement was at issue in Rucks v. Taylor, 282 Ark. 200, 667 S.W.2d 365 (1984). The husband died after the parties entered into an agreement, but before a divorce decree was granted. The supreme court found that the language of the agreement at issue demonstrated an intent to terminate all property rights between the parties with the signing of the agreement.
While the agreement was to be incorporated into a divorce decree, if any, it was not contingent upon their obtaining a divorce. The chancellor has jurisdiction over such agreements even in the absence of a divorce action.
Rucks, 282 Ark. at 202, 667 S.W.2d at 366. The deceased husband’s widow sought to take a piece of property by virtue of her survivorship of an estate by the entirety with the deceased husband; our supreme court affirmed the chancellor’s enforcement of a provision of the agreement requiring a sale of the property and equal division of the proceeds. Id.
This line of cases supports the proposition that the chancellor had the power to enforce the parties’ agreement even though no divorce decree was entered. Therefore, entry of a decree of separate maintenance did not foreclose the chancellor’s exercise of jurisdiction to enforce the agreement.
The chancellor relied upon another line of cases for the proposition that marital property can only be distributed at the time a divorce decree is entered. See Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987); Moore v. Moore, 21 Ark. App. 165, 731 S.W.2d 215 (1987); Coleman v. Coleman, 7 Ark. App. 280, 648 S.W.2d 75 (1983). The cases cited by the chancellor articulate the following rule:
We have been unable to find any case holding that property rights are to be adjudicated upon the rendition of a decree of separate maintenance. We held in the recent case of Mooney v. Mooney, 265 Ark. 253, 578 S.W.2d 195 (1979), that the property belonging to the parties could not be divided unless a divorce was granted.
Spencer v. Spencer, 275 Ark. 112, 114, 627 S.W.2d 550, 551 (1982). Similarly, we have read Arkansas Code Annotated section 9-12-315(a) (Repl. 1993) to mean “that marital property shall be distributed at the time the divorce decree is entered. A chancellor has no authority to dispose of property rights in an award of separate maintenance.” Moore, 21 Ark. App. at 169, 731 S.W.2d at 218.
These cases are distinguishable and do not prevent the chancellor’s exercise of power in this instance. They indicate that the chancellor cannot adjudicate marital property upon an award of separate maintenance. However, they do not prevent the chancellor from enforcing the parties’ agreement. Compare Ark. Code Ann. § 9-12-313 and Strasner, supra, with Moore, supra. Our holding in this case does not authorize the chancellor to adjudicate property rights; rather, pursuant to the statute, the chancellor is authorized to enforce the parties’ agreement “made and entered into in contemplation of . . . separation . . . .” See Ark. Code Ann. § 9-12-313.
Reversed and remanded for further proceedings consistent with this opinion.
Robbins, C.J., and Bird, Neal, and Meads, JJ., agree.
Griffen, J., dissents.
The dissent highlights the following language in section 9-12-313: “. . . as are in conformity with rules and practices of courts of equity.” This language is cited as support for the dissent’s argument that a court of equity has no power to act in cases such as the one before us. We think the highlighted language modifies the “lawful ways and means” a court of equity may employ to enforce the agreement. It does not modify its power to act in the first instance. See § 9-12-313. | [
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John B. ROBBINS, Chief Judge.
Appellant, Southwestern Bell Telephone Company (SWBT), brings this appeal from Order No. 7, entered by the Arkansas Public Service Commission in Docket No. 97-436-U. Appellant contends that the Commission failed to regularly pursue its authority by holding that the Access Service Tariff Revisions, filed by appellant on November 26, 1997, violated Ark. Code Ann. § 23-17-407(a) (Supp. 1997). Appellant also contends that the Commission erred in holding that appellant’s switched-access service tariff, which was on file twelve months before it elected alternative regulation, is applicable to the switched-access service it provides to other local exchange carriers (LECs). We find no error and affirm.
On November 26, 1997, appellant filed with the Commission additions to its intrastate access tariff. These additions contained a new tariff section, which set a specific traffic-sensitive per-minute-of-use rate for access provided by appellant to other incumbent local exchange carriers (ILECs), but further provided that, if the other ILECs assessed appellant a higher rate for similar traffic, appellant would charge that ILEC a reciprocal rate equal to the rate charged by that ILEC to appellant.
The Staff of the Arkansas Public Commission (Staff) responded to appellant’s new tariff by petitioning the Commission to determine whether its reciprocal rate provision violates section 7(a) of the Telecommunications Regulatory Reform Act of 1997 (Act 77). This section of the act is codified at section 23-17-407(a) and provides in part:
The rates for basic local exchange service and switched-access services that were in effect in the date twelve (12) months prior to the date of filing of a notice of election by a local exchange carrier pursuant to § 23-17-406 shall be the maximum that such electing local exchange carrier may charge for such services for a period of three (3) years after the date of filing, excluding rate increases ordered by the commission pursuant to § 23-17-404....
Because appellant had elected alternative regulation on February 4, 1997, Staff contended that any switched-access service rates that appellant charges in excess of the switched-access rates it charged on February 4, 1996, would violate section 23-17-407(a). It further contended that the reciprocal rate provision included in appellant’s new tariff would cause it to exceed its February 1996 switched-access service rates, because the other ILECs have switched-access rates greater than appellant’s February 1996 access rates.
Appellant acknowledged that its reciprocal rate provision could cause it to charge other ILECs rates that exceed its February 1996 rates but denied that the February 1996 rates were applicable to its new tariff or that its new tariff violated section 23-17-407(a). It contended that its new tariff was not subject to section 23-17-407(a)’s rate cap because the access service it provided to other ILECs was not “switched-access service” as defined by Act 77. Act 77 defines “ [sjwitched-access service” as the “provision of communications between a customer premise and an interexchange carrier’s point of interconnection with a local exchange carrier’s network for the completion of end user calls to the public switched network for the origination or termination of interexchange long distance traffic.” Ark. Code Ann. § 23-17-403(23) (Supp. 1997). Appellant contended that, because it is not an “interexchange carrier,” its transfer of a toll call through it switching facilities for another ILEC does not meet the statutory definition of “switched-access service,” and, therefore, its reciprocal rate provision does not violate section 23-17-407(a). It contended that the term “inter-exchange carrier” describes interLATA carriers, such as AT&T, MCI, and Sprint (hereinafter referred to as pure interexchange carriers or IXCs), and does not include local exchange carriers (LECs), such as appellant. In the alternative, it argued that its access rates to other ILECs could not be measured against its rates on file in February 1996 because those rates were never charged to ILECs.
The Commission set a public hearing on Staff’s petition, and a number of ILECs and LECs were granted permission to intervene in the docket. Appellant was the only party at the hearing to argue that the access service provided between ILECs was not switched-access service as described by section 23-17-407(a). Appellant also argued that it would be necessary for the Commission to join all the ILECs in a proceeding and conduct a hearing to determine what rates were charged for ILEC-to-ILEC switched-access service in February 1996 if the Commission found that appellant’s new tariff was subject to section 23-17-407(a)’s cap on switched-access service rates.
On July 9, 1998, in Order No. 7, the Commission ruled that appellant’s Access Service Tariff revision of November 1997 was in violation of section 23-17-407(a). The Commission disagreed with appellant’s contention that no ILEC can be an interexchange carrier regardless of the amount of interexchange traffic that the ILEC carries. To support its holding, the Commission relied on the testimony of several witnesses who argued that an ILEC was an inter-exchange carrier for purposes of Act 77. These witnesses testified that ILEC-to-ILEC interexchange traffic is indistinguishable from traffic between an ILEC and a pure interexchange carrier (IXC), such as AT&T, Sprint, and MCI, and that ILECs have provided switched-access service as long as the ILECs have terminated inter-exchange calls with each other. The Commission noted that appellant’s Access Service Tariff, which was in effect twelve months before it elected alternative regulation, defines an interexchange carrier and that its definition makes no distinction for toll traffic between exchanges carried by ILECs or IXCs. It further noted that the distinction between telecommunications providers historically identified as “interexchange carriers” (IXCs) and those identified as “local exchange carriers” (LECs) was misleading and inaccurate and was fading quickly as traditional ILECs enter the long distance, cellular, PCS, and paging markets, and that telecommunications providers, including appellant, advocate the need for one-stop shopping for telecommunications with one provider for local, long distance, and cellular communications needs. The Commission also disagreed with appellant’s argument that it would be necessary for the Commission to conduct a hearing and determine a new rate applicable to ILEC-to-ILEC switched-access service if it found its tariff additions violated section 23-17-407(a), holding that appellant’s access tariff on file in February 1996 is applicable to “all switched access services provided by appellant to any other provider of switched-access services.”
The Public Service Commission is a creature of the legislature and performs, by delegation, legislative functions. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991). As such, the commission possesses the same powers as the General Assembly while acting within its legislatively delegated powers and has very broad discretion in exercising those powers. Id. This court’s review of appeals from the commission is limited by the provisions of Ark. Code Ann. § 23-2-423(c)(3), (4), and (5) (Supp. 1997), which define the standard of judicial review as determining whether the commission’s findings of fact are supported by substantial evidence, whether the commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the Constitutions of the State of Arkansas or the United States. See Bryant v. Arkansas Pub. Serv. Comm’n, 54 Ark. App. 157, 924 S.W.2d 472 (1996).
For its first point on appeal, appellant contends that the Commission failed to regularly pursue its authority by declaring that appellant’s additions to its access service tariff violated the limits on switched-access service in section 23-17-407(a). Appellant contends that, because ILECs historically have not been considered “inter-exchange carriers” and because section 23-17-403(23) defines “switched-access service” using the term “interexchange carrier,” its tariff additions cannot be for switched-access service and, therefore, do not violate section 23-17-407(a). Appellant’s argument depends on the meaning of the term “interexchange carrier,” which is used in section 23-17-403(23) and is not defined by Act 77. Appellant concedes that this term as well as the related term “interexchange long distance traffic” are ambiguous. It therefore contends that this court must give effect to the legislative intent when Act 77 was passed.
The basic rule of statutory construction to which all other interpretive guides must defer is to give effect to the legislative intent underlying the statute. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998); Vanderpool Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). When a statute is plain and unambiguous, an appellate court should give the language of the statute its plain and ordinary meaning, see Kildow, supra, but when the statute is ambiguous, an appellate court is permitted to look to the language of the statute, its subject matter, the object to be accomplished by the statute, the purpose to be served, and other appropriate matters. See Alltel Mobile Communications, Inc. v. Arkansas Pub. Serv. Comm’n, 63 Ark. App. 197, 975 S.W.2d 884 (1998). As a guide in ascertaining the legislature’s intent, the court examines the history of the statutes involved, as well as the contemporaneous conditions at the time of their enactment, the consequences of interpretations, and all other matters of common knowledge within the court’s jurisdiction. Southwestern Bell Tel. Co. v. Arkansas Pub. Service Comm’n, 68 Ark. App. 148, 5 S.W.3d 484 (1999). The interpretation of a statute is a judicial function, and the Commission’s construction is not binding on the court. See Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1992), reh’g denied, 312 Ark. 499A, 850 S.W.2d 322 (1993). Nevertheless, the interpretation given a statute by the agency charged with its execution is highly persuasive, and while not conclusive, neither should it be overturned unless it is clearly wrong. Id.
Appellant agrees that there is no difference between the access service it provides to other ILECs and the switched-access service it provides to IXCs. It maintains, however, that the origination and termination of ILEC-to-ILEC toll traffic is not “switched-access service,” because section 23-17-403(23)’s definition of switched-access service is very precise and specifically uses the term “inter-exchange carrier.” Appellant contends that the term “inter-exchange carrier” has a long and well-established meaning within the telecommunications industry and that, at the time the legislature passed Act 77, its meaning was restricted to pure IXCs, such as AT&T, MCI, and Sprint. In support of its argument, it relies on United States v. Western Electric Co., 569 F. Supp. 990 (1983), where Judge Harold Greene, on reviewing the divestiture plan of the Bell Operating Companies, referred to long-distance calls between exchanges in different LATAs as “interexchange communications” and carriers of those calls as “interexchange carriers.” Id. at 994 n.15. Appellant argues that since that time, the term “interexchange carrier” has been used to distinguish intercity carriers, such as AT&T, MCI, and Sprint, from local exchange carriers, such as appellant. But see Southwestern Bell Tel. Co. v. Metro-Link Telecom, Inc., 919 S.W.2d 687, 694 n.3 (Tex. Ct. App. 1996) (explaining that there was no reason for Judge Greene in Western Electric to use the term “interexchange carrier (IXC)” to describe intraLATA carriers, because that case did not involve the provision of intraLATA long-distance by non-Bell operating companies and the court specifically left the provision and regulation of intraLATA long-distance service to the states). Appellant also cites examples where the Commission has used the term “interexchange carriers” to describe only pure interexchange carriers. For example, the Intrastate Flat Rate Carrier Common Line Service Tariff, 3rd Revised Sheet 2, approved by the Commission, defined the term “interexchange carrier” to include any entity “that is not a LEC....” In Southwestem Bell Telephone Co. v. Arkansas Public Service Commission, 58 Ark. App. 145, 946 S.W.2d 730 (1997), the term “interexchange carrier” or “IXC” was also used to describe pure long-distance carriers.
Appellant contends that there is a well-established presumption that the General Assembly enacts a new law with full knowledge of previous court decisions on the subject and with reference to those decisions, Reed v. State, 330 Ark. 645, 957 S.W.2d 174 (1997), and Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991), and therefore, this court must presume that the legislature was aware that the term “interexchange carrier” had been used solely to describe pure IXCs when it enacted Act 77 and would have explicidy defined the term to mean something broader if it had intended it to apply to ILECs. It points out that, after the passage of Act 77, the Commission adopted the Telecommunication Provider Rules (TPR) and the Rules of Practice and Procedure (RPP) in compliance with Act 77’s directive to “conduct a rule-making proceeding to identify and repeal all rules and regulations relating to the provision of telecommunications service which are inconsistent with, have been rendered unnecessary by, or have been superseded by either this sub-chapter of the federal act.” Ark. Code. Ann. § 23-17-411(d) (Supp. 1997). These rules, which were later accepted by the House and Senate Utility Subcommittee and the Administrative Rules and Regulation Subcommittee, define the term “interexchange carrier” as “[a]ny entity that is not a local exchange carrier and that provides interexchange communications to the public for compensation in the State of Arkansas.” (Emphasis added.) Appellant contends that the legislature’s acceptance of these rules clearly demonstrates its intent to restrict the term “inter-exchange carrier” to pure IXCs.
The term “interexchange carrier” has been used numerous times to describe pure long-distance carriers; however, we do not agree that this has been its only meaning. It is clear from the exhibits filed in this proceeding that the term “interexchange carrier” has a broader meaning than a pure long-distance carrier. In fact, appellant’s own definition of interexchange carrier, which appears in section 2.7 of its Access Service Tariff, states that “Inter-exchange Carrier (IC)” or “Interexchange Common Carrier” “[djenotes any individual, partnership, association, joint-stock company, trust, governmental entity or corporation engaged for hire in intrastate communication by wire or radio, between two or more exchanges.” Access Service Tariff, Section 2.7, 8th Revised Sheet. The legislature has also defined the term in a broader sense than the definition appellant urges this court to adopt. Although inter-exchange carrier is not defined in Act 77, it was defined in Act 483 of 1983, the Universal Telephone Service Act, formerly codified at Ark. Code Ann. § 23-17-301(2) (1987):
“Interexchange carriers” includes persons, corporations, or other organizations which provide communications services which interconnect with local exchanges under provisions of the interstate and intrastate access charges tariffs and may include such other persons, corporations, or organizations engaged in interexchange communication services as the commission may find necessary for the successful administration of the fund established in section 23-17-304....
The Commission referenced this definition in Order No. 7 when it explained why it found the definition of interexchange carrier included in the TPR and RPP was not dispositive of the term’s meaning in section 23-17-403(23). Quoting from the Post Hearing Brief of Alltel Arkansas, Inc., Order No. 7 provides:
SWBT attempts to rely on the definition of the term inter-exchange carrier as such appears in the Commission’s rules. This reliance, however, is misplaced. The rules cited by SWBT specify distinctions made by the Commission for an entirely different purpose than the purpose for which SWBT attempts to use the term. The definition of interexchange carrier reflected in the rules has no utility other than for applying the rules in which the definition appears. A review of the rules reflects that their function is to establish certain administrative matters, such as tariff requirements and service obligations of the relevant carriers. The statute on the other hand functions for entirely different reasons, such as spelling out the provisions or terms of alternative regulation, including the capping of certain services. The rules do not address alternative regulation or what services are capped by alternative regulation, and therefore, were not intended to define the meaning of interexchange carriers as that term applies to capped services.
It is simply incorrect and illogical for SWBT to argue that Commission rules on one subject and developed for one purpose control a statute of another subject. If SWBT’s argument were correct, then all of the definitions of interexchange carrier cited above that appear in a variety of Commission dockets and that have been approved by this Commission would similarly be controlled by the definition appearing in the rule. Or, more logically the definition appearing in the statute that established the Arkansas Universal Telephone Service Fund would control over all these and SWBT would still be wrong. However, none of these control Act 77. Act 77 did not define the term interexchange carrier and, therefore, it must be interpreted to have the plain meaning described by Staff, ALLTEL, and others based on the clear intent of the legislature. ALLTEL Brief at 8-9.
Although we find the definition of interexchange carrier that appears in the TPR and RPP troubling, we are not persuaded that the Commission disregarded legislative intent in rejecting this definition as controlling. At the hearing, John Bethel, Manager of the Telecommunications Section for Staff, testified that appellant’s provision of switched-access service to other ILECs is not a new service and that ILECs have provided switched-access service to other ILECs as long as the ILECs have terminated interexchange calls with each other. He stated that each ILEC is an interexchange carrier when it delivers traffic from one exchange to another; that both ILECs and IXCs require switched-access services in order to complete toll calls; and that the switched-access service required to complete those calls for an ILEC is indistinguishable from the switched-access service required by an IXC. Bethel explained that the definition of interexchange carrier that appears in the TPR and RPPwas developed when there were separate rules applicable to LECs and IXCs, i.e. Special Rules-Telecommunications, which addressed the interexchange service provided by the LECs, and Interexchange Carrier Rules, which addressed the interexchange service provided by IXCs; that now a single set of rules addresses the interexchange service provided by LECs and IXCs; and that the definition of interexchange carrier that came from these earlier rules is inconsistent with the new rules and should be revised. He stated that a reasonable definition of an “interexchange carrier” is a telecommunications provider that provides interexchange service.
In determining the intent of the legislature, this court must look at the whole act and, as far as practicable, give effect to every part, reconciling provisions to make them consistent, harmonious, and sensible. Brandon v. Arkansas Pub. Serv. Comm’n, 67 Ark. App. 140, 992 S.W.2d 834 (1999). This court not only looks at the language of the statute but also its subject matter, the object to be accomplished by the statute, the purpose to be served, and other appropriate matters. Id. The legislative intent behind Act 77 is codified at Ark. Code Ann. § 23-17-402 (Supp. 1997) and states in part that the intent behind the enactment of Act 77 is to “[pjrovide for a system of regulation of telecommunications services, consis tent with the federal act, that assists in implementing the national policy of opening the telecommunications market to competition on fair and equal terms, modifies outdated regulation, eliminates unnecessary regulation, and preserves and advances universal service.” The Commission referenced this intent in Order No. 7, holding:
[I]n light of the federal Telecommunications Act of 1996’s goal of eliminating discriminatory action against any telecommunications provider, the Commission cannot, in good faith, implement the rate cap of Ark. Code Ann. § 23-17-407(a) (1997) in a way that creates an artificial and discriminatory distinction against ILEC to ILEC toll traffic that is not explicitly established by statute.... [I]f the Commission interprets “interexchange carrier” to include all parties who provide interexchange service, including ILECs, “then all parties that send SWBT an intrastate, interexchange call for termination will be treated equally.” [Brief of GTE Southwest, Inc., and GTE Arkansas, Inc., at 3.]
Based on this language as well as the evidence of the varied usage of the term “interexchange carrier,” we cannot say that the Commission’s interpretation of this term is clearly wrong or that the Commission erred in applying section 23-17-407(a) to appellant’s November 1997 tariff additions. Therefore, we affirm on this point.
We also affirm the Commission on appellant’s second point. Appellant contends that, even if the Commission correctly determined that its tariff additions for ILECs is subject to section 23-17-407(a)’s rate cap on switched-access service, Order No. 7 is still unlawful. It argues that the rates that Order No. 7 forces appellant to charge other ILECs for switched-access service were never charged to ILECs and, therefore, were not in effect twelve months prior to the date that it elected alternative regulation as described in section 23-17-407(a). It insists that the switched-access rates for ILECs, capped by section 23-17-407(a), are the rates that were included in the Arkansas IntraLATA Toll Pool (AITP) in February 1996 and that the Commission should be ordered to conduct a hearing to determine these rates.
It is undisputed that ILECs were neither billed nor paid the traffic-sensitive portion of their switched-access service set forth in their individual intrastate access service tariffs prior to the passage of Act 77. At the hearing, Staff’s Telecommunications manager, John Bethel, explained that, historically, the traffic-sensitive portion of the switched-access services for ILEC-to-ILEC traffic has been settled through the Arkansas IntraLATA Toll Pool (AITP) settlement process and that there was no specific rate charged for this access, although it was included in the costs submitted for recovery through each ILEC’s AITP settlement. Conversely, the traffic-sensitive switched-access service charges for IXC-to-ILEC traffic have been collected by each ILEC pursuant to its access service tariff.
After the enactment of Act 77, the AITP was abandoned by appellant and the majority of the other ILECs. Appellant, however, was the only party to assert that the traffic-sensitive rates for the ILECs’ switched-access service should be the same rates derived from the AITP. John Bethel argued that, if the switched-access service rates embodied in the AITP settlements process were used, the maximum rate would be zero because there were no rates in the AITP settlement process for the traffic-sensitive element of switched-access service associated with ILEC-to ILEC traffic. Alltel witness Leonard Beurer also agreed that switched-access service rates could not be determined from the AITP. He testified that there were no access rates being charged to the AITP by ILECS nor were there access rates being charged between the ILECS in the AITP. He explained that the AITP was utilized to distribute revenues received from the toll charges billed ILEC end-use customers and charges received from the Arkansas IntraLATA Common Carrier Line Pool and that those revenues could have been distributed to the ILEC’s using any number of allocation procedures, including a basis of access lines or number of employees. Although appellant witness Eldon Peters contended that the rates ILECS charged each other for switched-access service through the AITP could be computed and testified extensively regarding the method he employed to determine specific rates, he also admitted that some estimation was necessary. Alltel witness Beurer testified that the information Peters used to compute AITP access amounts were in error and appeared to be inaccurate by more than ten percent. Staff witness Bethel also disagreed with Peter’s methods, stating that the detail of the information required for AITP reporting was insufficient to identify specific access elements and quantify a switched-access service rate associated with the ILEC-to-ILEC interexchange traffic.
In Order No. 7, the Commission found appellant’s assertion that the Commission must determine a rate applicable to ILEC to ILEC switched-access service for all ILECS to be without merit. It noted that it was the ILECs, including appellant, which chose to discontinue participation in the AITP, but that appellant was the only ILEC that advocated charging ILECS a rate for switched-access toll traffic that is different from the charge IXCs pay for the same service. It also noted that appellant’s tariff, in effect twelve months before it elected alternative regulation, states that it “is available to all customers”; that its definition of “customer” includes ILECS; that any IXC or ILEC engaged in the provision of inter-exchange services could demand and receive service under the terms of its access tariff; and that appellant could not refuse to provide such service in accordance with its tariffed offering. The Commission concluded that “[a]ll telecommunications providers that carry toll traffic between a SWBT exchange and another exchange are subject to the rates for switched access services set out in SWBT’s Access Service Tariff as the tariff provides and those tariffed rates are subject to the cap established by Ark. Code Ann. § 23-17-407(a).”
The Commission has broad discretion in exercising its regulatory authority, and courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. Bryant v. Arkansas Pub. Serv. Comm’n, 55 Ark. App. 125, 931 S.W.2d 795 (1996); Bryant v. Arkansas Pub. Serv. Comm’n, 54 Ark. App. 157, 924 S.W.2d 472 (1996). As the trier of fact in rate cases, it is the Commission’s function to decide on the credibility of the witnesses, the reliability of their opinions, and the weight to be given their testimony. Bryant v. Arkansas Pub. Serv Comm’n, 64 Ark. App. 303, 984 S.W.2d 61 (1998).
Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis, and something more than mere error is necessary to meet the test. To set aside the Commission’s action as arbitrary and capricious, the appellant must prove that the action was a willful and unreasoning action, made without consideration and with a disregard of the facts or circumstances of the case. This Court has often said that, if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then this court must affirm the Commission’s action.
Bryant, 55 Ark. at 135, 931 S.W.2d at 800 (citations omitted).
Based on the evidence before the Commission, we cannot say it erred in applying appellant’s switched-access service tariff that was on file in February 1996 to all switched-access service provided by appellant.
Affirmed.
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M. MICHAEL KINARD, Judge
It Sergio Trujillo, Special. Administrator of the Estate of Pedro Trujillo, filed suit against appellees TK Martial Arts Academy, LLC, Tim Kuth, Kevin Bearden, Jerred Roller, and Jerry Kurt asserting causes of action for negligence and gross negligence resulting in the death of Pedro Trujillo. The trial court entered summary judgment in favor of all appellees. Appellant now argues that it was error to enter summary judgment on the basis of an exculpatory contract. We affirm.
Pedro suffered an injury while training at TK Martial Arts Academy on October 6, 2011, and died two days later. In December 2012, appellant sued the academy and the individual appellees/who were all present at the time of Pedro’s injury. Appellant alleged | athat Pedro was injured when Roller and Bearden threw him to- the ground numerous times under Kurt’s supervision despite appellees’ knowledge that Pedro’s head was hitting the floor. Appellant alleged that appellees breached their duty "of ordinary care in various ways, including failure to adequately instruct Pedro on how to be knocked to the floor without contacting his head, failure to cease the training after Pedro voiced complaints, failure to provide adequate floor padding and protective headgear, failure to warn of risks, and failure to adequately supervise the training.
Appellees answered, denying any negligence.- On September 5, 2014, appellees filed a motion for summary judgment based on an exculpatory contract signed by Pedro releasing the academy and its officers, agents, and employees from liability for injuries. Appellant filed a motion to strike the motion for summary judgment, arguing that appellees had not raised the affirmative defenses of waiver and" release in their answer. Appellees then filed amended answers asserting affirmative defenses, including waivér and release.' Appellant filed a motion to strike appellees’ amended answers and a response to the motions for summary judgment. After a hearing on November 17, 2014, the trial court denied appellant’s motion to strike and granted the motions for summary judgment based on the exculpatory contract.
For his first point on appeal, appellant argues that appellees’ failure to plead the affirmative defense of release in their original answer should have precluded reliance on the exculpatory contract. Arkansas Rule of Civil. Procedure 8(c) provides, in pertinent part, as [.¡follows:
Affirmative Defenses. In responding, to a complaint, counterclaim, cross-claim or third party claim, a party shall set forth affirmatively ... release ... waiver, and any other matter constituting an avoidance or affirmative defense.
Rule 8, thus, does require that affirmative defenses be pled in responding to a complaint, .but there is no requirement that the affirmative defense of release be pled in the original answer. Arkansas Rule of Civil Procedure 15(a) states, in part, as follows:
Amendments. With the exception of pleading the defenses mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the.court determines that prejudice would result or the disposition of the cause would be .unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.
Release is not a. defense mentioned in Rule 12(h)(1). Appellant moved to strike the amended answers, but the trial court found that no prejudice would result and allowed the amended answers.
We will not reverse a trial court’s decision allowing or denying amendments to pleadings absent a manifest abuse of discretion. Neal v. Sparks Regional Medical Center, 875 Ark. 46, 289 S.W.3d 8 (2008). In his brief, appellant asserts only that the amended answers were barred by the rules of civil procedure; ■ he makes no argument that he was prejudiced. Without establishing any prejudice as the basis for his motion to strike, we cannot say that the trial court abused its discretion in denying the motion. Grinnell v. Garnet Real Estate LLC, 2013 Ark. App. 273, 427 S.W.3d 717.
Appellant next argues that summary judgment was improper because the release was ambiguous, there was no mutual assent, and the intent of the parties was not considered. |4Our court has set forth the standard of review for summary-judgment cases as follows:
[Sjummary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, 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. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. We have also stated that summary judgment is inappropriate where, although there may not be facts in dispute, the facts could result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law.
Miller v. Pro-Transportation, 78 Ark. App. 52, 54, 77 S.W.3d 551, 553 (2002).
The release signed by Pedro provided in part as follows:
TK Martial Arts Academy is'committed to conducting its programs and activities in the safest possible manner and holds the safety of its participants in the highest possible regard. '■ Participants registering in recreational programs and activities however, -must'recognize the inherent risks of injury associated with such activities or programs. Therefore, TK Martial Arts continually strives to reduce risks and insists that all participants follow safety rules and instructions which have been designed to protect participants’ safety. TK Martial Arts further urges that all participants consult a medical professional before engaging in any programs or activities offered at the school.
Each person registering themselves or family members for a recreation program/activity should review their own health insurance policy for coverage. -It must, be noted that the absence of health insurance coverage does not make the TK Martial Arts automatically responsible for payment of medical expenses.
Due to the difficulty and high cost of obtaining liability insurance, the agency providing liability coverage for the TK Martial Arts REQUIRES the execution of the following Waiver and Release. Your cooperation is greatly appreciated. I,WAIVER AND RELEASE OF ALL
■ CLAIMS
Please read this form carefully and be aware that in participating in any program(s) or activities at TK Martial Arts, you will be waiving and releasing all claims for injuries you might sustain arising out of the -activities or program(s).
As a participant in the program(s) at TK Martial Arts, I recognize and acknowledge that there are certain risks of physical injury and I agree to assume the full risk of any injuries,- including death, damages or loss regardless of severity which I may sustain as a result of participating in any and all activities connected with or associated with the program.
I agree to waive and relinquish all claims I may have, as a result of participating in the program against the TK Martial Arts and its-officers, agents, servants and employees.
I fully release and discharge TK Martial Arts and its officers, agents, servants and employees -from any and all claims of injuries, including death, damage or loss including loss- of or damage to personal property which I may have or which may accrue to me on account of my participation.
I further agree to indemnify and hold harmless and defend TK Martial Arts -and its officers, agents, servants and employees from any and all claims from injuries, including death, damages, and losses sustained by me or arising out of, or in any way associated with the activities of the program.
In the event of emergency, I authorize TK Martial Arts officials to secure from .any licensed hospital, physician, and/or medical personnel any treatment deemed necessary for my immediate care and I agree that I will be responsible for payment of any and all medical services required.
Appellant contends that the following aspects of the release are ambiguous: the meaning of words such as “activities” and “programs,” the parties released under the contract, and the liability released under the contract. As appellees note, appellant’s arguments regarding contract interpretation, mutual assent, and ambiguity of the release were not raised below. It is well settled that -when the abstract does not reflect that, the argument, or any similar argument, was made in the trial court, we will not reach the .merits of the | fiargument ,on .appeal. Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001). Accordingly, we decline to address these arguments.
Appellant did argue below that the release did not contain the word negligence and did not cover his claims.' Exculpatory contracts are- to be strictly construed against the party relying on them. Finagin v. Arkansas Development Finance Authority, 355 Ark. 440, 455, 139 S.W.3d 797, 806 (2003). To be- enforceable, the contract must clearly set out what negligent liability is to be avoided. Id. When we are reviewing such a contract, we are not restricted to the literal language of the contract, and we will also consider the facts and circumstances surrounding the execution of the release in order to determine the intent of the parties. Id. • -
In Miller, 78 Ark. App. 52, 77 S.W.3d 551, the appellant argued that the exculpatory contract was invalid because it did not clearly set out what negligent liability was to be avoided. The exculpatory clause provided in part that “I will hold Pro-Transportation harmless from any liability for any damage or injury which I may receive while riding in said motor vehicle.” This court held that the language clearly and specifically set out the negligent liability to be avoided — liability for any injuries that the applicant may suffer while riding as a passenger in appellee’s motor vehicle. As in Miller, the release here did not contain the word “negligence,” but it similarly released liability for “all claims from injuries, including death, damages, and losses” arising out of participation in the academy’s programs or activities. In a case involving a release executed in the context of a dangerous recreational activity, we held that the protection from liability as contemplated by such a release must be 17Iimited to .injuries that are rationally associated with .the dangerous nature of the activity. Ver Weire v. Styles, 2013 Ark. App. 208, 427 S.W.3d 112. Here, the release specifically recognized that there were “inherent risks of injury” associated with participation in martial-arts activities. Appellant’s claims are related to the unique and obvious dangers associated with martial-arts training. Therefore, 'we agree with the tria] court, that the release was valid and that summary judgment was appropriate.,
For his last point;- appellant argues that, even if the release absolves the academy from liability, it should not extend to the individual appellees. He argues that, although the release protects “agents, servants, and employees,” there was no proof to establish that the individual appellees were agents. . As appellees note, however, appellant’s position is in direct contradiction to his -assertions in his complaint. A party is bound by his own pleadings and cannot maintain a position inconsistent therewith. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). In his complaint, appellant alleged that Kurt was employed as a teaching coach by- TK Martial Arts and was an employee, ■ agent, representative, and/or servant of thé academy. He alleged that Bearden and Roller were each “a participant in training at, and/or agent, employee, and/or- , representative of, TK Martial Arts.” In a separate paragraph of his complaint, appellant alleged that
[a]t all times herein mentioned, Defendants - Kuth, Bearden, - Roller, and/or Kurt were the employees, agents and/or servants of TK Martial Arts, and were acting within the course and scope of such employment, agency and/or servitude. , Defendant TK -Martial Arts is therefore vicariously liable for the ■wrongful acts of Defendants Kuth, Bear-den, Roller, and/or Kurt, its agents, employees, and/or servants 'under the doctrine of respondeat superior.
[ ^Appellant argued in his response to the motion for summary judgment that the release was not applicable to Bearden, Roller, and Kurt because they were not employees and were not specifically named in the release. In Culpepper, the supreme court established a condition for immunity by looking to the plaintiffs complaint, which asserted that individuals were acting within the course and scope of their duties, and employment. In Parsons Dispatch, Inc. v. John J. Jerue Truck Broker, Inc., 89 Ark. App. 25, 199 S.W.3d 686 (2004), this court held that the position adopted by the appellant ,at the summary-judgment stage and on appeal that there was no enforceable contract was inconsistent with its complaint and could not be maintained. As in those eases, we conclude that appellant is bound by his complaint and cannot now maintain that appellees were not agents or employees.
Affirmed.
Virden and Hoofman, JJ., agree.
. It was determined below that Jerry Kurt’s name was actually Gerald Kirk, but his name was never corrected in the caption of.the case.
. Appellee' Bearden later retained separate counsel and filed a separate answer and mo- . tion for summary judgment joining the motion filed by the other appellees. | [
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ROBERT J. GLADWIN, Chief Judge
11Appellant Jackie Collins appeals from the revocation of his probation by the Crit-tenden County Circuit Court. Appellant argues that the trial court’s findings that ,he violated two of the conditions of his probationary sentence are against the preponderance of the evidence. We affirm.
On January 31, 2005, appellant pleaded • guilty to burglary, a Class B felony, in the Crittenden County Circuit Court, case number CR-2004-1090, and was sentenced to forty-eight months’ probation. On July 7, 2005, the State filed a petition for revocation of probation, and on September 8, 2005, appellant pleaded guilty to the revocation and was sentenced to 120 months’ imprisonment in the Arkansas Department of Correction (ADC), with the imposition of an additional suspended sentence of 120 months.
Appellant was released on parole on November 4, 2008. ■ The State filed its peti tion for revocation of suspended sentence, on August 18, 2014,, alleging the following violations: |¾(1) failure to pay fines, costs, and fees as directed; (2) failure to notify sheriff of current address and employment; and (3) commission of residential burglary and theft of property. After a hearing on November 26, 2014, appellant was found to have violated two conditions of his probation, (1) failure to pay fines, costs, and fees, and (2) failure to lead .a law-abiding life, and was sentenced to 120 months in the ADC pursuant to a sentencing order filed on November 26, 2014. He filed a timely notice of appeal on December 9,2014.
In a revocation proceeding, the trial court must find by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation, and on appellate review, we do not reverse the trial court’s decision unless it is clearly against the preponderance of the evidence. Egger v. State, 2015 Ark. App. 471, 469 S.W.3d 811; Ark. Code Ann. § 16-93-308(d) (Supp. 2015). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended-sentence revocation. Id. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial court’s •superior position. Id. Furthermore, the State need only prove that the ■ appellant committed one violation of the conditions in order.to revoke appellant’s sentence. Peals v. State, 2015 Ark. App. 1, 453 S.W.3d 151.
I. . Failure to Pay Costs, , Fines, and Fees
Where the alleged violation involves the failure to pay ordered amounts, and the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide-a reasonable excuse for the failure to pay. Truitt v. State, 2015 Ark. App. 276, 2015 WL 1954067. It is the 1 ..¡probationer's obligation to, justify his failure to pay, and this shifting of the burden of production: provides an opportunity to explain the reasons for nonpayment. Id. The State,, however, shoulders the ultimate burden of proving that the probationer’s failure to pay was. inexcusable. Id.
Arkansas. Code Annotated section 16-93-308(d) states, “If a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation, the court may revoke the suspension or probation at any time prior to the expiration of the period of suspension or .probation.”
Condition number one of appellant’s conditions of suspended imposition of sentence required him to “pay all finés, court costs, and restitution.” Amy Peyton, the collector of fines for the Crittenden County Sheriffs Department, testifiéd that she received documentation reflecting the following fines and costs assessed against appellant: (1) $750 in. fines; ' (2) $750 in fees under the original conviction; and (3) $500 in costs and fees from the first revocation. Ms. Peyton testified that she had not received any payments from appellant since the first revocation hearing. She further stated that appellant had not contacted her at all since .2008 to apprise her of where he was working, where he was living, or when he would begin paying his fines and costs. A copy of the computer-generated account that is kept -at the sheriff s -office, along with the corresponding ledger sheet, and the criminal cost bill from the trial court reflecting the amounts that Ms. Peyton testified to were introduced into evidence without .objection.
|4AppelIant testified that,. upon his release on parole, he was employed with Delta Ice Service and Southland Greyhound Park. ■ Appellant acknowledged that, despite being able to pay his fines, he failed to do so. He testified that he “didn’t have no idea about [the fines]” and that he may have “lost [his] paperwork or something like that.” Appellant testified that' he was paying his parole fee. On cross-examination, appellant admitted that he had signed the conditions of suspended imposition of sentence. - He also testified that the required costs sounded “familiar.” Appellant conceded that he never called the sheriff s office to discuss his costs and fines and said he “never had no clue about that ... I was just thinking about parole fees.... ”
No testimony was offered through the parole officer, Ms. Mary Marshall, that he was.behind on his parole.payments, and appellant submits that his testimony was in harmony with that of Ms. Peyton in all respects. He maintains that his faithful payment of his parole fees, coupled with his evident ability and willingness to pay, constituted a “reasonable excuse” for his failure to pay. , .
We disagree. Through the testimony of Ms. Peyton and appellant, the State established that appellant violated the first condition of his suspension — that he pay all fines, costs, and-restitution — and this single violation justifies revocation. See Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Because the State offered evidence of nonpayment, the burden shifted to appellant to justify his failure- to pay. See Truitt, supra. As the case law makes clear, appellant’s alleged confusion over the owed amounts does not justify his nonpayment. See, e.g., Burkhart v. State, 2010 Ark. App. 462, at 5, 2010 WL 2195755 (holding that defendant’s alleged | ^confusion about her obligation to make payments did not constitute a sufficient excuse for her failure to pay).'
Additionally, we defer to the trial court’s superior position regarding questions of credibility and the weight to be given testimony and, after hearing the testimony of Ms. Peyton and appellant, the trial court found that appellant had violated the conditions of his suspended sentence by “never pay[ing] any money....” Therefore, the'trial court’s determination that appellant inexcusably failed to pay his costs, fines, and fees is not clearly against the preponderance of the evidence, and we affirm. ■
II. Commission of Theft
Additionally, appellant argues that the trial court clearly erred by finding that he committed theft, which was contrary to the preponderance of the evidence. Condition number two of appellant’s suspended imposition of sentence required appellant to “live a law-abiding life, be of good behavior, and not violate any state, federal, or .municipal law.” The State alleged in its petition for revocation that appellant had violated this condition by committing residential burglary and theft of property. The trial court found that appellant had violated this condition, but appellant argues that the State’s offered proof was insufficient to support that finding by a preponderance of the evidence.
Ms. Cambria- Gatewood testified that someone had broken into her house and had stolen 'her air conditioner. She further testified that she had not given it to anyone or authorized anyone to take it. Ms. Gatewood explained that appellant cut her yard and “apparently” had stolen the air conditioner as payment. This testimony was corroborated by | (¡appellant, who testified that Ms. Gatewood told him he was her “new yard person” after he mowed her yard the previous week. He admitted that he took the air conditioner from her back yard and sold it to a pawn shop. His testimony was corroborated by that of Detective Ira Roundtree of the Criminal Investigation Division of the West Memphis Poiice Department, who confirmed that the air conditioner was pawned by appellant in West Memphis.
Theft of property occurs when a person “[t]akes or exercises unauthorized control over ... the property of another person with the purpose of depriving the owner of the property.” Ark.,.Code Ann. § 5-36-103(a)(1) (Repl. 2013).. According to appellant, an express oral contract existed between Ms. Gatewood and himself regarding the mowing of her yard, with the only missing terms being the amount and form of payment. He argues that the admitted taking of the property was not shown to. be “unauthorized,” as required' by the statute, because it was taken as reasonable compensation for agreed-up.on services provided. Appellant urges that, because the State failed to offer sufficient proof that appellant took the property of the alleged victim without authorization, the trial court’s finding to the contrary by a preponderance of the evidence was erroneous.
We disagree and hold that the following evidence supports the trial court’s finding. Ms. Gatewood testified that someone broke into, her home around July 31, 2014, and stole her window-unit air conditioner, and that her neighbors told her who took it — appellant. Ms. Gatewood’s back door also had been pried open around the time that the air conditioner went missing. Ms. Gatewood further testified that she had npt given the air conditioner to ] 7anyone or authorized anyone to take it from her window. After visiting a pawn shop in West Memphis, Ms. Gatewood found and identified her stolen air conditioner. ,
Detective Roundtree testified that he conducted an interview with appellant regarding the theft. After going to the above-referenced pawn shop, Detective Roundtree- learned that ' appellant had pawned the air conditioner. Detective Roundtree also testified that appellant had “placed a thumb print on the receipt for the pawn ticket, [and] he signed for it.” Detective Roundtree retrieved the air conditioner and returned it to Ms. Gatewood. On cross-examination, Detective Round-tree testified that he questioned one of Ms. Gatewood’s neighbors who witnessed the theft. The neighbor said that she saw “a young black male who cuts her grass normally loading something in the back of a black taxi.”
Finally, appellant testified and admitted to having mowed Ms. Gatewood’s grass and to stealing the air conditioner, referring to it as “the one that I did steal.” Appellant stated that, while he did not break into the house, he did steal the air conditioner and sell it. On cross-examination, appellant acknowledged that he knew he could not steal air conditioners because he was on parole but that he had stolen it anyway. He said that he had pawned the air conditioner and taken the money, using a portion of the money to pay the taxi driver.
Based on the testimony of Ms. Gate-wood, Detective Roundtree, and appellant, the trial court found that appellant, stole the air conditioner, violating the terms of his suspended sentence. We hold that the record before us indicates that the trial court’s finding was not clearly against the preponderance of the evidence. See, e.g., Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). The trial court was in a superior position to evaluate the credibility | sof the witnesses and to determine the weight to be given to their testimony. Id. Further, appellant admitted to stealing the air conditioner, thereby satisfying section 5-36-103(a)(l), which provides that “[a] person commits theft of property if he ... knowingly ... [t]akes or exercises unauthorized control over ... the property of another person with the purpose of depriving the owner of the property.” Accordingly, the trial court’s finding was not clearly against the preponderance of the evidence and is affirmed.
Affirmed.
Harrison and Gruber,' JJ., agree. | [
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PRO SE SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [COLUMBIA COUNTY CIRCUIT COURT, NO. 14CR-02-30]
PER CURIAM
hln 2002, petitioner Steven Pinder was found guilty by a jury of two counts of rape and sentenced to life imprisonment. We affirmed. Pinder v. State, 357 Ark. 275, 166 S.W.3d 49 (2004). We subsequently affirmed the trial court’s denial of Pinder’s petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2002). Pinder v. State, CR-07-710, 2008 WL 2132816 (Ark. May 22, 2008) (unpublished per curiam).
In 2011, Pinder filed in this court a pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. In the petition, he alleged that the State withheld evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Part of the evidence alleged to have been withheld was a pretrial medical report written by Dr. Jerry Jones in which Dr. Jones reported that the victim “did retain her hymen.” We rejected the claim because Pinder admitted to having known of the medical report for over seven years when he filed his petition in this court and he offered no explanation of the lengthy delay in bringing his claim. Thus, he failed to exercise the due diligence that is required in labringing coram-nobis allegations. Pinder v. State, 2011 Ark. 401, at 3, 2011 WL 4492362 (per curiam).
Pinder sought reconsideration, and we noted that, even if he had been diligent with respect to the claim, the medical report indicated that sexual abuse was suspected, that there were physical findings that were suspicious or “suggestive of sexual abuse,” and that the results of the physical exam were consistent with the victim’s description of what Pinder had done to her. Pinder v. State, 2012 Ark. 45, at 4-5, 2012 WL 310959 (per curiam). Accordingly, a medical report that supported the ultimate conclusion of the jury would not have prevented rendition of the judgment against Pinder had it been introduced into evidence, and it would not warrant coram-nobis relief. Id. at 5 (citing Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam)).
Now before us is Pinder’s second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis filed on September 1, 2015. 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, 354 S.W.3d 61. A writ of errbr coram nobis is ‘an extraordinarily rare femedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coramnobis proceedings 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; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The function of the vkrit 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 1 ^rendition of the judgment. Neuman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts, 2013 Ark. 56, 425 S.W.3d 771.
The 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 v. State, 2012 Ark. 177, 403 S.W.3d 38.
As grounds for a writ of error coram nobis,- Pinder contends that Dr. Ivy McGee-Reed, a doctor who testified for the State, gave false testimony that was “determinative” of the finding of guilt in his case.- He contends that the State-was aware that Dr. McGee-Reed’s testimony was false and misleading-and that his-right to due process of law under the Fourteenth Amendment was denied by his being convicted on the false testimony.
Dr. McGee-Reed’s testimony at issue ,was that the victim, did not have a hymen and that her body showed indications of repeated sexual activity over a period, of years. Because this testimony differed from Dr. Jones’s report that the victim had a hymen and because Pinder alleges that Dr. McGee-Reed had reviewed that report,-Pinder asserts that Dr. McGee-Reed knew her testimony was untrue. In addition, Pinder claims that he has newly discovered evidence obtained in 2015 that the doctor was also untruthful when she said that she had obtained her license to practice medicine in 1997 when, in fact, it had not been issued until 1999.
1 ¿Pinder has not stated a ground for the writ. First, any claim that Pinder desired to raise to this court concerning Dr. Jones’s report and testimony from another witness at trial that disagreed with that report could have been raised in his first coram-nobis petition. In the first petition, the report was raised as a Brady violation.’ In the instant petition, the report is again raised, but it is couched in terms of the State having committed misconduct by calling a witness whose testimony did not agree with a finding in the report. As stated, this court has already held that Pinder was not diligent in bringing allegations pertaining to the report. Pinder’s attempt to raise the report again by linking it to an assertion of prosecutorial misconduct does not change this court’s ruling concerning his diligence.
Furthermore, even if Pinder had not mentioned Dr. Jones’s' report in his allegation that Dr. McGee-Reed’s testimony was false, he would not have stated a ground for the writ. He has offered no proof that the State knowingly utilized false testimony, and we have held that a petitioner’s allegation that the a witness gave false testimony at trial does not give rise to a showing of fundamental error that requires issuance of the writ. Smith v. State, 200 Ark. 767, 140 S.W.2d-675 (1940) (holding that the writ was not available to afford relief on the. ground that -the principal witness against the accused had recanted and that others since the accused’s conviction had confessed to the crime); see also White v. State, 2014 Ark. 348, 438 S.W.3d 916; Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990) (A witness’s recantation of part of his trial testimony was not a ground for the writ, as recantation of testimony did not fit within the remedy.)
To the extent that Pinder’s assertions concerning the allegedly false testimony could be considered a claim that the evidence was insufficient to sustain the judgment, issues concerning 15the sufficiency of the evidence or the credibility of witnesses are not cognizable in coram-no-bis proceedings. McArthur v. State, 2014 Ark. 367, at 7, 439 S.W.3d 681, 685, cert. denied, — U.S.-, 135 S.Ct. 1432, 191 L.Ed.2d 391 (2015).
With respect to Pinder’s allegation that he has newly discovered evidence that Dr. McGee-Reed misstated the date that she had acquired a license to practice medicine, we have held that a writ of error coram nobis cannot be granted on the basis of newly discovered evidence alone. Smith v. State, 301 Ark. 374, 375, 784 S.W.2d 595, 596 (1990). There is a distinction, between fundamental error, which requires .issuance of the writ, and newly dis-. covered information, which might have created an issue to be raised at trial had it been known. Hooper v. State, 2015, Ark, 108, at 6-7, 458 S.W.3d 229, 233 (per curiam). Even if, as Pinder alleges, the date the license was issued was misstated, Pin-der has not shown that the, misstatement created^ a significant issue; that is, he has not shown that the information would have called into question the outcome of the trial. Without this showing, Pinder has fallen short of establishing a ground to issue a writ of error coram nobis. Hooper, 2015 Ark. 108, at 7, 458 S.W.3d at 233-34.
Petition denied. | [
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DAVID M. GLOVER, Judge
| t Appellant Angela Patterson appeals the Poinsett County Circuit Court’s revocation of her probation, arguing that the sole condition for revocation was not expressly set out in the terms of her probation. We affirm the revocation of her probation.
In October 2013, Patterson pleaded guilty to possession of drug paraphernalia, a Class D felony, and was placed on two years’ probation. In February 2015, the State filed a petition to revoke her probation, alleging Patterson had violated the terms of her probation by testing positive for amphetamines on four occasions and marijuana on two occasions and by admitting to using Soma on one occasion; by testing positive for alcohol on two occasions; by failing to report for scheduled probation-office visits on four occasions; and by failing to report for counseling on eight occasions. After a hearing on the petition to revoke, the circuit court revoked Patterson’s probation specifically on her failure to report for counseling assessment on February 11, 2015, and sentenced her to two years in a regional ^correction facility. Patterson appeals, arguing the circuit court erred in revoking her probation on a condition not expressly set out in the written terms of her probation.
A trial court may revoke a defendant’s probation at any time prior to the expiration of the period of probation if, by a preponderance of the evidence, it finds the defendant has inexcusably failed to comply with a condition of his or her probation. Kidwell v. State, 2017 Ark. App. 4, 511 S.W.3d 341. The State has the burden of proving a condition of probation has been violated; proof of only one violation must be shown to sustain a revocation. Baney v. State, 2017 Ark. App. 20, 510 S.W.3d 799. The trial court’s findings are affirmed on appellate review unless they are clearly against the preponderance of the evidence. Id. The appellate courts defer to the trial court’s superior position to determine credibility and the weight to be accorded testimony. Kidwell, supra.
Patterson argues on appeal, citing Ross v. State, 268 Ark, 189, 594 S.W.2d 852 (1980), that the probation condition on which the trial court revoked her probation was not in writing and therefore cannot form the basis for revocation. Specifically, Patterson focuses on the allegation in the State’s petition for revocation that states, “Condition #15 Program Participation—Patterson failed to report for counseling/assessments on ... 2/11/2015.” Condition 15 in the written terms of Patterson’s probation states, ‘You must participate in, and are obligated for the expense of, any community based programs (such as NA and AA) deemed necessary by any supervising officer.” Patterson argues this condition does not expressly state a single absence from a community-based program would equate to the revocable action of failing to participate and therefore cannot form the basis for revocation.
Reviewing the written terms of Patterson’s probation, as well as the State’s allegation in the petition for revocation, it is clear the State erroneously mis-numbered the allegation in which it alleged Patterson failed to report for counseling, as that term of probation is contained in condition 14, which provides, “You must submit to, and are obligated for the expense of, any non-residential rehabilitative, medical, counseling, or psychiatric program deemed necessary by your supervising officer, for such period of time as may be recommended by the treating institution or person.” At the revocation hearing, Michael Jones, Patterson’s supervising probation officer, testified Patterson was scheduled to report to drug counseling on February 11, 2015, but failed to do so. Patterson offered no reason for missing the February 11 drug-counseling appointment, and it was considered an unexcused absence. Officer Jones’s unrebutted testimony supports the trial court’s revocation of Patterson’s probation based on the State’s allegation that she failed to submit to counseling as mandated by the written terms of her probation requiring her to submit to any counseling deemed necessary by her probation officer.
Affirmed.
Abramson and Gladwin, JJ., agree. | [
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JOSEPHINE LINKER HART, Justice.
It As permitted by Rule 3(a)(3) of the Arkansas Rules of Appellate Procedure-Criminal, the State of Arkansas brings this interlocutory appeal from the Pulaski County Circuit Court’s pretrial order granting the motion of the defendant, Bernard Kindall, to introduce at trial evidence of specific instances of sexual conduct of the alleged sexual-assault victim under Arkansas Code Annotated section 16-42-101(c) (Repl.1999), Arkansas’s rape-shield statute. The alleged victim, K.J., is Kin-dall’s cousin. The evidentiary issue in controversy in this case involves a specific instance of sexual conduct that occurred in 2006 between K.J. and D.R. D.R. is also KJ.’s cousin, and the alleged conduct between K.J. and D.R. occurred when K.J. was nine or ten years old. On appeal, the State asserts that the circuit court abused its discretion by ruling that the evidence is admissible. We conclude that the circuit court abused its discretion, and we reverse and remand.
Kindall was charged with second-degree sexual assault of K.J., a person less than ^fourteen years old. Prior to trial, Kin-dall filed a motion requesting a hearing under Arkansas Code Annotated section 16-42-101(e), alleging that K.J. had made similar allegations of sexual misconduct against others and that the evidence was relevant as to K.J.’s credibility. The motion stated that a hearing was necessary to determine if the probative value of the proffered evidence outweighed its inflammatory or prejudicial nature and to determine what questions could be asked at trial.
At the hearing on Kindall’s motion, K.J. testified that D.R. had engaged in sexual intercourse with her. K.J. further testified that while the allegation was true, initially she had told her mother that the incident had not occurred. She stated that the reason for the denial was because she feared “what the consequences might be” and that she would “get in trouble” with her mother if her mother “didn’t believe that I didn’t want to do it.” K.J. testified, however, that she later told her mother that the incident had occurred. She further testified that though she spoke to the police, neither she nor 'any member of her family attended D.R.’s juvenile hearing on the incident. She testified, however, that she was never contacted about appearing in court. K.J. stated that she was now fourteen years old and was twelve years old when D.R. was in court.
D.R. also testified at the hearing. He testified that he was nineteen years old and that four years earlier, in 2006, K.J. had accused him of rape. He denied that he had raped K.J. He stated that he went to juvenile court and entered a denial of the allegation but that neither |SK.J. nor any member of her family appeared in court and that the case “got threw out.” He remembered that he was present “on the night of the situation” when K.J. told her mother that the incident did not occur.
At the hearing, the circuit court ruled that it was granting the motion to admit the evidence “on the issue of credibility, especially in a case where much depends on the veracity of the victim in stating what occurred in a situation.” The court noted that “there is evidence that at one point anyway the victim recanted to someone with respect to the allegation that had been leveled against [D.R.].” The court also noted that “the victim did not show up at any court proceeding.” The court further stated that it considered its “knowledge of how court proceedings operate, that ... almost always in an adjudication of a matter the victims do show up or are subpoenaed to show up in a case such as this.” The court explained, “This has to do more with the Court’s knowledge of proceedings in criminal cases, but mostly on the testimony of [D.R.] that no one showed up for whatever reason. The jury may be — that may be an indication of truthfulness.”
In its written order, the circuit court ruled that Kindall could introduce at trial certain evidence “for the purpose of assessing the credibility of K.J., the alleged victim, in the present case and not as proof of prior sexual conduct.” The court set out the evidence that would be allowed and the scope of the questions. Particularly, the evidence included that prior to the present case, K.J. brought an allegation against D.R., accusing him of committing a sexual [4offense against her; that K.J. claimed that D.R. inserted his penis into her vagina; that K.J. informed her mother that the sexual offense she alleged against D.R. did not take place; that K.J. informed the police of the sexual-offense allegation; that D.R. was charged in juvenile court with committing a sexual offense against K.J. based on KJ.’s allegation; that D.R. appeared as a defendant in juvenile court to answer for the allegation and entered a plea of denial; that neither K.J. nor any member of her family attended D.R.’s juvenile court hearings concerning the allegation brought by K.J.; that the juvenile-court case against D.R. for committing the sexual offense as alleged by K.J. was dismissed by the State; and that D.R. stated that the allegation brought against him by K.J. was false. The court stated that it “considered the testimony involving the previous relationship between a cousin [D.R.] and the alleged victim and finds that the testimony’s probative value outweighs the prejudicial effect.”
On appeal from that order, the State argues that the circuit court abused its discretion in ruling that evidence of KJ.’s prior allegation of sexual conduct with D.R. is admissible. Particularly, the State challenges the court’s consideration of its own knowledge of court proceedings and the court’s reliance on KJ.’s and her family’s failure to attend D.R.’s hearing despite KJ.’s explanation of why they failed to attend. The State further asserts that the court failed to explain why evidence of KJ.’s prior sexual conduct with D.R. is relevant to whether Kindall engaged in sexual conduct with K.J. or why the probative value of the evidence outweighed its inflammatory or prejudicial nature. The State also asserts that the court ignored KJ.’s testimony that her allegation against D.R. is true. The State complains that the court’s Uorder is overbroad and admits evidence about K.J.’s prior sexual conduct. Further, the State asserts that the order does not specifically permit the State to present KJ.’s testimony that her allegation against D.R. is true.
Arkansas Code Annotated section 16-42-101(b), provides in part that
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.
Under our rape-shield statute, evidence of a victim’s prior sexual conduct is not admissible by the defendant to attack the credibility of the victim. Bond v. State, 374 Ark. 332, 335, 288 S.W.3d 206, 209 (2008). The statute specifically precludes the admissibility of evidence of a victim’s prior allegation of sexual conduct if the victim asserts that the allegation is true. In this instance, K.J. asserted that the prior allegation of sexual conduct with D.R. is true, so the rape-shield statute would preclude the admissibility of the evi dence surrounding the allegation to attack KJ.’s credibility. See Butler v. State, 349 Ark. 252, 265-67, 82 S.W.3d 152, 160-61 (2002) (holding that the rape-shield statute is violated by undermining the victim’s credibility with testimony about the victim’s prior inconsistent statement).
The statute further provides, however, that the circuit court may admit evidence of the victim’s prior sexual conduct with any other person if, following a hearing, “the court |fidetermines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature.” Ark. Code Ann. § 16-42-101(c)(2)(C). Thus, the statute is not a total bar to evidence of a victim’s sexual conduct but instead makes its admissibility discretionary with the circuit court pursuant to the procedures set out in the statute. Gaines v. State, 313 Ark. 561, 566-67, 855 S.W.2d 956, 958 (1993). Although the introduction of prior episodes of sexual conduct to attack the credibility of the victim is not absolutely barred by the rape-shield statute, it has been treated unfavorably by this court. State v. Townsend, 366 Ark. 152, 159, 233 S.W.3d 680, 685 (2006). In determining whether the evidence is relevant, the circuit court is vested with a great deal of discretion, and we will not overturn the circuit court’s decision unless it constituted clear error or a manifest abuse of discretion. Bond, 374 Ark. at 336, 288 S.W.3d at 209.
In considering our previous decisions, we observe that in Butler, 349 Ark. at 265-67, 82 S.W.3d at 160-61, Butler argued that the circuit court erred in denying his motion to introduce evidence under the rape-shield statute. The circuit court conducted a rape-shield hearing to determine the admissibility of Butler’s proffered testimony that was related to the victim’s prior sexual conduct. The victim testified that she told Butler’s daughter that the victim’s stepfather had sexually abused her, and she further testified that she never recanted her statement concerning her stepfather. Butler, however, testified that, during his visit with the victim, the victim recanted the allegation. The circuit court rejected Butler’s proffer, finding Butler’s testimony regarding the victim having had sexual contact with other persons was covered by and should be excluded under the rape-shield statute. On appeal, this court 17noted that Butler proffered the testimony as evidence of the victim’s prior inconsistent statements to undermine her credibility. This court concluded that the proffered testimony violated the rape-shield statute; thus, the circuit court did not abuse its discretion by ruling that the proffered testimony was inadmissible pursuant to the rape-shield statute. Though Butler involved the affirmance of the circuit court’s rejection of evidence, the case is nevertheless instructive in that we approved the circuit court’s preclusion of evidence of a victim’s prior inconsistent statement to undermine her credibility because the proffered testimony violated the rape-shield statute.
Here, KJ.’s admission of making a prior inconsistent statement to her mother about D.R. is impeachment evidence on a matter collateral to the allegation against Kindall, and the circuit court’s ruling broadly allows impeachment by the introduction of extrinsic evidence. See generally Nevada v. Jackson, 569 U.S.-, 133 S.Ct. 1990, 186 L.Ed.2d 62 (2013)(per curiam). The order permits Kindall at his trial to question K.J. regarding her previous allegation of sexual conduct involving D.R. and her subsequent denial of the conduct to her mother. The order also allows testimony from D.R. that he was charged in juvenile court with committing a sexual offense against K.J., that he appeared as a defendant in juvenile court to answer for the allegation, that neither K.J. nor any member of her family attended D.R.’s juvenile-court hearings, and that the case was dismissed by the State. It also permits D.R. to testify that KJ.’s allegation against him is false.
Although this testimony is not relevant to the case at bar, the jury, in hearing this testimony, would have to consider whether they believed K.J.’s allegation that D.R. engaged |8in sexual conduct with her or whether they believed D.R.’s denial of the allegation. The admission of the evidence would require the jury to assess KJ.’s explanation of why she gave the conflicting statement to her mother and her explanation as to why neither she nor her family attended D.R.’s hearing. In essence, Kin-dall’s trial would turn into a trial within a trial on whether KJ.’s allegation against D.R. is true, pitting K.J.’s version of the events and her credibility against D.R.’s version and his credibility.
We have previously approved the disallowance of similar testimony. See Butler swpra. Further, in this case, the circuit court’s order permits impeachment on a matter that is collateral to the charge Kindall faces and allows impeachment with extrinsic evidence. Given this, we conclude that the circuit court abused its discretion in ruling that the evidence is admissible, as the probative value of the testimony relating to K.J.’s inconsistent statement to her mother is slight and is substantially outweighed by the prejudicial and inflammatory nature of the testimony. Accordingly, we reverse the circuit court’s determination and remand the case for trial.
Reversed and remanded.
HANNAH, C.J., dissents.
. The record shows that Kindall was born on January 11, 1981, that the alleged sexual conduct took place on or about December 9, 2008, and that the hearing was held on December 7, 2010.
. In a previous appeal of this case, we reversed and remanded so that the circuit court could issue a written order in which the court made certain findings required by Arkansas Code Annotated section 16-42-101. State v. Kindall, 2011 Ark. 451, 2011 WL 5112841.
. This type of evidence is now addressed in Arkansas Rule of Evidence 411, which this court adopted effective January 1, 2013. | [
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KENNETH S. HIXSON, Judge.
1 lAppellant Jonathan Brawner brings this appeal from a conviction of stalking and for a violation of a protective order. The charges in this case stem from a series of text messages received by appellant’s former wife, Renea.
The parties were married in 2003 and had two daughters, R.B., born in 2005, whom appellant nicknamed “Boo” or “Rea,” and G.B. Renea filed for divorce while appellant was serving a prison sentence. While the divorce was pending, Renea received many text messages from appellant. After Renea filed for divorce, she received the following text messages: On July 20, 2010, a text message from (xxx) xxx-4635 that stated, “I know where u r all the time if u wont contact me I will contact u.” There were two text messages sent from (xxx) xxx-9091. One text message on July 27, 2010, stated, “U still have time to 12change your mind. Its not to late but time is running out.” The second text message was sent on August 6, 2010, that stated, “U decided which side your on. One more decision. Will we raise the girls together or will I raise them alone?” Renea had previously obtained a protective order against the appellant. On September 8, 2010, the court granted Re-nea’s request to extend the protective order for ten years. On October 23, 2010, Renea received a text message from (xxx) xxx-7910, which stated, “Unless we reconcile. I am going to kill Rea, G.B. and H. Troy is not going to raise my kids. U have 72 hours.” Three days later, on October 26, appellant 'was charged with violating the order of protection. On November 3, the State charged appellant with stalking, contending that he had engaged in a course of conduct that harassed another person and made a terroristic threat ■with the intent of placing that person in imminent fear of death or serious bodily injury of his or her immediate family.
The matters were tried to the court. After the State rested, appellant moved for a directed verdict, contending that insufficient evidence existed to connect the appellant to the telephone numbers from which the text messages originated. The court found that even though there was no direct evidence, strong circumstantial evidence existed that would prove beyond a reasonable doubt that appellant sent the text messages and that no other reasonable conclusion existed. Appellant brings this appeal.
I. Sufficiency of the Evidence
For his first point on appeal, the appellant challenges the sufficiency of the evidence used to convict him of sending the October 23 text message that led to the charges of stalking and for violating the order of protection. Although appellant moved for a directed verdict, [athe motion was actually a motion to dismiss because it was a bench trial, not a jury trial. Ark. R.Crim. P. 33.1(b); Turner v. State, 2010 Ark. App. 214, at 3, 2010 WL 724307. A motion to dismiss, identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Reed v. State, 91 Ark.App. 267, 209 S.W.3d 449 (2005). On appeal, evidence is viewed in the light most favorable to the State, and the conviction is affirmed if there is substantial evidence to support the verdict. Id. Substantial evidence is evidence that will, with reasonable certainty, compel a conclusion one way or another without resorting to speculation or conjecture. Id. It is within the province of the finder of fact to determine the weight of the evidence and the credibility of the witnesses. Id.
Arkansas Code Annotated section 5-71-229 (Repl.2005) provides that the offense of stalking is committed by a person who purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury or placing that person in imminent fear of the death or serious bodily injury of his or her immediate fami ly and the person does so in contravention of an order of protection consistent with The Domestic Abuse Act of 1991. “Course of conduct” has been defined as a pattern of conduct composed of two or more acts separated by at least thirty-six hours, but occurring within one year. Ark. Code Ann. § 5—71—229(d)(1)(A); Moses v. State, 72 Ark.App. 357, 39 S.W.3d 459 (2001).
Arkansas Code Annotated section 5-53-134 (Repl.2005) provides:
(а)(1) A person commits the offense of a violation of an order of protection if:
(A) A circuit court or other court with competent jurisdiction has issued a temporary order of protection or an order of protection against the person pursuant to the Domestic Abuse Act of 1991, § 9-15-101 et seq.;
|4(B) The person has received actual notice or notice pursuant to the Arkansas Rules of Civil Procedure of a temporary order of protection or an order of protection pursuant to the The Domestic Abuse Act of 1991, § 9-15-101 et seq.; and
(C) The person knowingly violates a condition of an order of protection issued pursuant to. the The Domestic Abuse Act of 1991, § 9-15-101 et seq.
Substantial evidence was presented that appellant sent the text messages to Renea. The content and the timing of the messages connected them to the appellant. During the bench trial, Renea testified that appellant frequently refers to his daughter R.B. by the nickname of “Rea.” Renea stated that she asked appellant not to contact her and requested that all communication go through her attorney. However, she testified that appellant contacted her close to one hundred times. She stated, “He would text constantly.” Most of the calls or texts would originate from an 870 area-code number, which appellant’s father testified was the same number of the phone that he had purchased for him. However, Renea also testified that during their marriage, appellant would carry multiple phones, each with a different number, so that his calls could not be traced.
Renea also testified that appellant was a jealous person and was particularly jealous of a man named Troy, who was a single father and had a son close in age to appellant’s oldest daughter. She stated that the children would play together.
Renea also testified that one of the messages she received, the one that stated, “You still have time to change your mind. It’s not too late, but time is running out,” was within minutes after the appellant was served with the extended order of protection.
She also stated that while appellant was in prison, he would tell her that he was “going to get” everyone that was against him. She said that statement made her believe that appellant | fisent the text message that asked her which side she was on and asking if they would raise the children together or would he raise them alone. She testified that the message made her believe that if she did not reconcile with him and raise their children together, he would have killed her.
The last message that was sent stated that unless she “reconciled” with him, he would kill Rea, G.B. and H. She said that she had not divorced anyone other than him recently, that there was no one else with whom she could “reconcile,” and that the message used the nickname for their daughter that was frequently used by appellant. She stated that she was scared to death of appellant, that she believed he was capable of following through with threats, and that there was no doubt in her mind that he sent the text messages. She also stated that after his arrest, she has not received any other threatening text messages. She stated that the contexts of the texts were directly related to the conversations that she had with appellant in prison.
Tammaula Lee, appellant’s probation officer, testified that she served appellant the extended order of protection and that seven minutes after he signed into her office to receive the order, Renea received the test message stating,' “You decided which side you’re on. One more decision: Will you raise the girls together or will I raise them alone?”
The court found that while there was no direct evidence that appellant sent the threatening text messages, there was very strong circumstantial evidence that it believed beyond a reasonable doubt pointed to appellant as the person who sent the messages. The | r,court also stated that no other reasonable conclusion existed based on the context of the messages.
For circumstantial evidence to be relied on, it must exclude every other reasonable hypothesis other than the guilt of the accused, or it does not amount to substantial evidence. Lowry v. State, 364 Ark. 6, 216 S.W.3d 101 (2005). The question of whether circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the factfin-der to decide. Id. On review, this court must determine whether the fact-finder resorted to speculation and conjecture in reaching the verdict. Id.
In the case at bar, testimony was presented that appellant would send Renea text messages even though she had requested that he communicate with her through her attorney. In the text messages, their daughter was referred to by a nickname used by appellant. The messages also contained references to reconciliation. One text message was sent immediately after he was served the order of protection. The messages would also refer to people in Renea’s life of whom the appellant was jealous. We hold that there was substantial evidence from which the circuit court could conclude that the appellant sent the text messages.
II. Registration as a Sex Offender
For his second point on appeal, the appellant contends that the court erred in requiring him to register as a sex offender. He contends that the court did not comment on the issue at the sentencing hearing and that under the statute, for him to be forced to register as a sex offender, he must be convicted of a “sex offense, aggravated sex offense, or sexually violent 17offense.” He argues that neither the content of the text message nor the act of sending the text message can be considered a sex crime.
Arkansas Code Annotated section 12-12-905, which outlines who must register as a sex offender, states that the registration applies to a person who “[i]s adjudicated guilty on or after August 1, 1997, of a sex offense, aggravated sex offense, or sexually violent offense.” Arkansas Code Annotated section 12 — 12—903(12)(A)(i) C (Repl.2009) defines a sex offense as including but not limited to stalking when ordered by the sentencing court to register as a sex offender.
When determining whether the court erred in construing the statute, we review the case de novo. Wickham v. State, 2009 Ark. 357, 324 S.W.3d 344. Although the decision of the circuit court is not binding on this court, we will accept its interpretation of the law unless there is a showing that the interpretation was in error. Fountain v. State, 103 Ark.App. 15, 285 S.W.3d 706 (2008). Applying the statute to the facts in this case and applying our standard of review, the circuit court specifically found the appellant guilty of stalking and ordered him to register as a sex offender. The circuit court did not err.
III. The Sentence
For his third point, appellant contends that the court erred in sentencing him by not giving him jail credit time of 485 days and by imposing his misdemeanor sentence for violation of the order of protection to run consecutively, rather than concurrently, with his felony conviction of stalking. His first argument regarding his sentence is moot. An amended sentencing order was filed with the clerk’s office showing that he was given jail credit time |sof 485 days, rather than 114 days as shown on his original sentencing order. However, he also contends that the court erred by ordering his misdemeanor conviction and his felony sentence to run consecutively rather than concurrently.
Arkansas Code Annotated section 5 — 4—403(c)(1) (Repl.2006) states that “[a] sentence of imprisonment for a misdemeanor and a sentence of imprisonment for a felony shall run concurrently, and both sentences are satisfied by service of sentence for a felony.” According to the statute, the sentences should run concurrently. The State concedes this point on appeal. Therefore, this court modifies the sentences to run concurrently. See, e.g., Moore v. State, 330 Ark. 514, 954 S.W.2d 932 (1997).
IV. Rule Wi(b) Evidence
Appellant asserts that Renea was improperly allowed to testify that he was a very jealous person, that he tried to distance her from family and friends, that he killed a high-school friend, that he planned a kidnapping and a murder, that he had been part of a drug deal, and that he had buried a dead body. He states that these acts occurred long before the alleged acts in this case took place. He contends that because the State did not have any evidence directly linking him to the text message that was sent from a number not traced to him, it resorted to a character assassination to prove its case, which is what Rule 404(b) prohibits. He contends that it was not harmless error to allow the evidence in because, without it, no evidence exists that he would ever try to harm his ex-wife and children.
Arkansas Rule of Evidence 404 provides:
|/q) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
For evidence to be admissible under this rule, it must have independent relevance. See Morris v. State, 367 Ark. 406, 240 S.W.3d 593 (2006).
The admission or rejection of evidence under this rule is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Tate v. State, 367 Ark. 576, 242 S.W.3d 254 (2006). The list of exceptions set out in the rule is exemplary and not exhaustive. Id. Testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. Id.
In Tate, appellant was convicted of first-degree murder. Evidence was admitted that prior to the killing, the appellant had approached a witness, asked if she was scared of him and then discharged a gun, which was determined to be the murder weapon, in a couch near her foot. He objected to her testimony. The court allowed it and he appealed. Our supreme court held the evidence that Tate intentionally fired the gun to be relevant to show his intent to commit murder. Tate, 367 Ark. at 580, 242 S.W.3d at 259.
|10As we have said in Morris, supra, any circumstance that ties a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible. In the case at bar, evidence of the crimes showed that appellant’s ex-wife had a rational, legitimate fear of her ex-husband. The crime of stalking contains elements of harassing another person and making a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury or placing that person in imminent fear of death or serious bodily injury of his or her immediate family and the person. The testimony concerning his bad acts were admissible to show his motive, intent, and plan for carrying out the threats made against his ex-wife.
We find this evidence of his prior bad acts to be independently relevant to show that appellant’s ex-wife had a legitimate, imminent fear for herself and her family of death or serious bodily injury. Her testimony that appellant had conveyed to her that he had planned a kidnapping, had murdered his best friend in high school, and had buried a body shows that she would be in imminent fear after receiving the texts. That testimony concerning his character showed that his ex-wife had a legitimate fear after receiving the threatening text messages. Here the evidence was not used to prove his character and that he acted in conformity therewith, but rather to show that Renea was fearful of him, and that he had a motive and intent for threatening her and, further, that he would carry out the threats.
Affirmed as modified.
HARRISON and BROWN, JJ., agree.
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ROBERT J. GLADWIN, Chief Judge.
|! Appellant Paul Gordon files this pro se appeal of the decree of adoption entered by the Grant County Circuit Court on August 23, 2012, allowing appellee David Draper to adopt Gordon’s minor daughter, K.G., without his consent. He argues multiple grounds for reversal, none of which has merit. Accordingly, we affirm.
Gordon and appellee’s wife, Bonnie Lee Draper, are KG.’s natural parents. The case originated in December 2010 when the Arkansas Department of Human Services (ADHS) removed K.G. from Gordon’s custody based on allegations of possession of child pornography on his computer. The trial court entered an order on March 7, 2011, directing ^Gordon not to contact K.G. but specifically preserving his right to request a hearing on visitation.
Subsequently, Gordon pled guilty on August 5, 2011, to three counts of rape of a minor, one of them being K.G. He is now serving three 35-year sentences to run consecutively.
Appellee Mrs. Draper and appellee, Mr. Draper, her husband of nine years, filed a petition to adopt K.G. on April 12, 2012. A hearing was held on the petition on August 13, 2012, at which time K.G. testified that she had not seen Gordon since December 2010, that he had not given her anything since then, and that she wanted appellee to adopt her. Also at the hearing, Gordon acknowledged that he had neither seen K.G. nor paid any child support since December 2010. He also testified that he .was innocent of the charges to which he pled guilty. The trial court announced findings of fact that Gordon had failed to communicate with or support K.G. and that he had pled guilty to raping K.G. and other minors.
On August 22, 2012, after the hearing but before the trial court entered its decree, Gordon filed a motion pursuant to Arkansas Rule of Procedure 59 (2012) requesting a new hearing and alleging prejudice for the first time in the proceedings. The trial court subsequently issued a decree approving the adoption on August 23, 2012. For appeal purposes, Gordon’s Rule 59 motion is treated as filed on August 24, 2012, pursuant to Rule 59(b). Gordon filed his notice of appeal of the August 23, 2012 decree on September 24, 2012, and his Rule 59 motion was deemed denied on September 24, 2012 — pursuant to | (¡Arkansas Rule of Appellate Procedure-Civil 4(b)(1) (2012). Gordon had thirty days to amend his notice of appeal to include the deemed-denied motion, under Arkansas Rule of Appellate Procedure-Civil 4(b)(2) (2012), but he did not amend his notice of appeal.
We review adoption proceedings de novo on the record, but we will not reverse the trial judge’s decision unless its findings are clearly erroneous or clearly against the preponderance of the evidence, after giving due regard to his opportunity to determine the credibility of the witnesses. Yerby v. Yerby, 2013 Ark. App. 25, 2013 WL 245460. In cases involving minor children, the trial court must utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children’s best interest. Id. Because the appellate court has no such opportunity, the superior position, ability, and opportunity of the trial court to observe the parties are afforded their greatest weight in cases involving minor children. Id.
Because K.G. was born during the marriage of Gordon and Mrs. Draper, his written consent is required before she may be adopted unless his consent is rendered unnecessary because he has, for a period of at least one year, failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree. Ark.Code Ann. § 9-9-207(a)(2) (Supp.2011).
The majority of Gordon’s argument is merely a recitation of what an exemplary father he is and that the result in this case is patently unfair. He explains that he had primary custody of KG. and her older brother, C.G., for over twelve years, with their mother having two days visitation a week and not paying any child support.
| ¿Gordon explains that KG.’s allegations that he had inappropriate contact with her, when she was younger, occurred after a few months of them not agreeing on her moving to her mother’s house, and when it was reported that Gordon was in possession of underage pornography. He states that the reasons K.G. gave for wanting to move were to change schools and to be with her half-brother and her half-sister more, but she eventually admitted to having problems at school while refusing to talk about it. Gordon submits that at one point, KG. told him, “I know how I can do it,” but she would not tell him what she meant. A few weeks later, the report was made to the police regarding the possession of the child pornography, although it is not clear from the record .before us who made the original allegation.
Gordon claims that the stories grew rapidly, and he alleges conspiratorial, or at least negligent, behavior from almost every individual involved — including the investigator, his lawyer, the prosecutor, the court reporter, and the trial judge. Gordon maintains that he never had a chance for a fair trial on the criminal charges against him because (1) the evidence was fabricated, (2) his lawyer refused to help, and (3) he was not allowed proper treatment for a mental condition caused by the ordeal. He claims he took an “unwillfull” plea at the time as his only resort and that he is appealing the decision. He acknowledges that the trial judge in this case informed him that he was not allowed to appoint counsel in a civil case and that in a civil matter, Gordon had to represent himself pro se or retain his own counsel. He was unable to do so, and he attended the hearing pro se. He claims that he was unable to question K.G. at the time because of the emotional involvement. He | ¡-.submits that because he had been prohibited to see or talk to her for such a long period of time, he could not sternly question her the necessary way for purposes of the hearing.
We hold that the trial court did not err in allowing the adoption to proceed without Gordon’s consent. It is undisputed that Gordon, who was represented by counsel in the criminal proceeding, pled guilty to three counts of raping a minor, including the rape of K.G. He is now serving three 35-year prison sentences to run consecutively.
With regard to Gordon’s challenge regarding the relevancy of the criminal charges as related to this appeal, we note that parental consent to an adoption is not required in cases of abuse if the cause is irremediable or will not be remedied by the parent. ArkCode Ann. §§ 9-9-202(10) (Repl.2009) (defining “abuse” to include sexual abuse); 9-9-207(a)(4) (Repl. 2009); and 9-9-220(c)(2) (Repl.2009). Where a parent fails to make reasonable efforts to remedy the cause for twelve months, the presumption is that the cause will not be remedied. ArkCode Ann. § 9-9-220(e)(2)(A).
We hold that, under these provisions, Gordon’s consent to the adoption was not required. Mrs. Draper and KG. testified that Gordon sexually abused K.G. Gordon, while represented by counsel, pled guilty to the rape of a minor. He made no effort to remedy the situation — failing even in his appellate brief to take responsibility for his actions, claiming that he pled guilty merely to make the proceedings stop.
Additionally, parental consent to an adoption is not required when the child is in another’s custody, if the parent for at least one year fails significantly and with out justifiable cause to either communicate with the child or provide for the child’s care and support as | (¡required by law. Ark.Code Ann. § 9-9-207(a)(2). A significant failure is one that is meaningful or important. Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981). A failure is unjustifiable if it is voluntary and intentional, i.e., arbitrary and without adequate excuse. Courtney, 2012 Ark. App. 148, at 14-15, 391 S.W.3d at 694-95.
We hold that Gordon’s failure to communicate with K.G. was significant and unjustifiable. He did not communicate with K.G. from December 2010 through the time of the hearing — a period of some nineteen months. See Reid v. Frazee, 72 Ark.App. 474, 41 S.W.3d 397 (2001) (adoption granted where father had no contact with child for twenty-five months). Gordon claims that his imprisonment and a no-contact order prevented communication. The evidence indicates that no one stopped him from trying to contact her during the initial stages of the case from December 2010 until the no-contact order was entered in March 2011; yet Gordon did not attempt to contact K.G. during that time. And although the no-contact order specifically preserved Gordon’s right to ask for a hearing to obtain visitation, he neither requested a hearing over the sixteen-month period that followed nor appealed the entry of the no-contact order. Vier v. Vier, 62 Ark.App. 89, 968 S.W.2d 657 (1998) (holding that a parent’s failure to seek visitation is relevant).
We also hold that Gordon’s reliance on his imprisonment to justify his failure to communicate with K.G. is misplaced. Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976) (noting that contact can still occur when parent is in prison); Courtney, supra. He acknowledges that, even while in prison, he can use the telephone anytime, send letters on a daily basis, and have four-hour visits every weekend. Likewise, he could have requested^ hearing on the visitation issue. Because Gordon did not utilize the resources available to him in prison, he cannot use his imprisonment as an excuse. Zgleszewski, 260 Ark. at 632-33, 542 S.W.2d at 768.
Moreover, Gordon acknowledges that he contributed nothing to KG.’s care and support for eighteen months from January 2011 to the hearing date in August 2012, and we hold that this failure was unjustifiable. Gordon’s excuse that he supported the children in the past and that it was now Mrs. Draper’s turn simply has no basis under the laws of this state.
Gordon provides neither relevant authority nor meaningful argument for the proposition that he is entitled to an attorney. For that reason alone, this court declines to address the argument. Mac-Kool v. State, 2012 Ark. 287, at 7, 423 S.W.3d 28, 33. Additionally, we note that Gordon did not explicitly request representation by counsel, merely asking, “Do we need to carry on or is that something I need before we go any further?” Because that question was not an explicit request for counsel, he failed to preserve the issue for appeal. Lucas v. Jones, 2012 Ark. 365, at 8, 423 S.W.3d 580, 585.
Moreover, Gordon’s argument is based on a deleted portion of the Arkansas Rules of Civil Procedure. Rule 17(c) was deleted in 2004; Ark. R. Civ. P. 17, Addition to Reporter’s Note, 2004 Amend. This court has held that the Sixth Amendment right to counsel is not cognizable in ordinary civil cases. Light v. Duvall, 2011 Ark. App. 535, 385 S.W.3d 399.
Finally, Gordon contends that the adoption hearing was just procedural and that everyone there knew what was going to happen. He claims that it would not have mattered | show much he presented to the trial court. He alleges prejudicial misconduct on the part of both the court reporter and the trial judge that rises to the level of reversible error.
We hold that Gordon failed to preserve this issue for review. Gordon had thirty days to amend his notice of appeal following the date that his Rule 59 motion was deemed denied, under Arkansas Rule of Appellate Procedure-Civil 4(b)(2). Because Gordon did not amend his notice of appeal, this court has no jurisdiction to hear the issue of prejudice raised in that motion. Vibo Corp. v. State ex rel. McDaniel, 2011 Ark. 124, 380 S.W.3d 411; see also Gore v. Heartland Cmt’y Bank, 356 Ark. 665, 158 S.W.3d 123 (2004).
Affirmed.
HIXSON and BROWN, JJ., agree.
. K.G.’s date of birth is January 9, 1996; she was sixteen and a half years old at the time of the hearing on August 13, 2012.
. See Courtney v. Ward, 2012 Ark. App. 148, at 13, 391 S.W.3d 686, 694.
. Gordon states that he did not abstract this because of changes in the record. | [
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BRANDON J. HARRISON, Judge.
[ 1 After 19 years of marriage and operating several businesses together, Charles and Myra Jones began dividing their property in this divorce case. They settled on some items but asked the circuit court to divide others. In November 2011, the Independence County Circuit Court held a trial on alimony, marital debt, and the division of some items of property — specifically a house, three vehicles, life-insurance policies, and 35 acres of land near Chinn Springs, Arkansas. Charles appeals the court’s division of these property items.
We review divorce cases de novo and look at the circuit court’s division of property to see if the court’s fact-finding is clearly erroneous or against the preponderance of the evidence. Baxley v. Baxley, 86 Ark.App. 200, 205-06, 167 S.W.3d 158, 161 (2004). A finding of fact is clearly erroneous when, although there is evidence to support |2it, we have a definite and firm conviction that a mistake has been committed. Id. Preponderance of the evidence is evidence of greater convincing force and the reasonable inferences that might be drawn to prove the principal facts sought to be established is sufficient to outweigh all other contrary inferences. Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 497, 206 S.W.2d 442, 445 (1947). We defer to the circuit court’s superior position to determine the credibility of witnesses and the weight of their testimony. Id.
1. The Kyler Road House
The Joneses lived at 1051 Kyler Road in Batesville, Arkansas for the majority of their marriage. Myra acquired this house in 1978, before she married Charles in 1992. When she got married, she owed approximately $16,000 on the house. During the marriage, Charles and Myra executed several mortgages and revolving lines of credit on the home, and by the time of their divorce they owed about $60,000 in debt on the house. Neither party produced evidence of the Kyler house’s value at the time of the divorce.
The trial testimony did reveal that the Joneses used one or more of the house’s mortgages to pay for the heating-and-air business Charles started in 1999. Myra had worked for that business since 1999, without compensation. There was also evidence that the Joneses used loans against the house to supplement their income and pay for medical expenses. The parties agreed that several basic repairs, including a new roof and new floors, were made to the house during the marriage, and that they had paid for the new roof from a $10,000 insurance check. Although the couple lived in the Kyler house |stogether and made mortgage payments on the house with marital property, it remained titled solely in Myra’s name during the marriage.
After the divorce trial, the circuit court ruled that the Kyler house was “premarital property as evidenced by the deed granting Ms. Jones ownership of such property prior to marriage,” and that “Mr. Jones shall not be entitled to any interest in said home.”
As his first point on appeal, Charles says that the circuit court’s decision that he had no interest in the house was clearly erro neous because the court failed to consider that he had used marital property to reduce the mortgages and to improve the house. In Charles’s view, the court committed a reversible error because it failed to apply an “active appreciation analysis” when determining whether he had a marital-property interest in the house. He also argues that it is unfair for the court to order him to pay half of the debt secured against the house but not award him an interest in it. He asks us to reverse the circuit court’s order, find the home to be marital property, and give him an interest in it.
The purpose of the property-division statute is to ensure that a court divides property fairly and equitably under the circumstances. Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001). Subsection 9 — 12—315(b)(1) of the statute exempts property acquired before marriage from the definition of marital property. Ark.Code Ann. § 9-12-315 (Repl. 2009). Subsection 9-12-315(a)(2) requires that all property a person owned before marriage be returned to its owner upon divorce. This means that, as a general rule, a spouse’s property acquired before marriage remains his or her exclusive property upon divorce. Our caselaw created a narrow exception to this rule when marital funds have |4been used to improve nonmarital property or reduce its debt. Box v. Box, 312 Ark. 550, 554, 851 S.W.2d 437, 440 (1993).
The circuit court’s ruling that Charles had no interest in the Kyler home is not clearly erroneous. Myra acquired the house in 1978, before she married Charles, and she remained the sole owner of it during the marriage. The house falls within the statute’s provisions that a spouse’s property acquired before marriage remains his or her separate property upon divorce. Ark.Code Ann. §§ 9-12-315(a)(2) and (b)(1).
Charles correctly notes the exception to the statutory rule. But the narrow Box exception, 312 Ark. at 554, 851 S.W.2d at 440, does not apply here, because he failed to show that his contributions to the marriage reduced the debt on the Kyler house or significantly improved it. Unlike the husband in Box, Charles did not pay down the original-debt amount that Myra owed on the house after she entered the marriage. Id. Instead, Myra showed the court that Charles’s contributions to the marriage increased, not decreased, the amount Myra owed on the house. Specifically, the circuit court found that the debt on the Kyler house increased from $16,000 to $60,000 during the marriage. Myra also produced evidence that the house was titled in her name alone, before and during the marriage. So the court did not clearly err when it ordered that Myra remain the sole owner of the Kyler house and that Charles had no interest in it. Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001).
2. The Three Vehicles
Three vehicles that the Joneses bought during their marriage are also at issue. One is a 2000 Ford F-250 pickup truck. During the divorce trial, Charles testified that the l^Ford truck was paid off and worth about $5,000. The second vehicle is a 2003 GMC work truck that Charles used for his heating-and-air business. And it was secured by a note from Citizens Bank for approximately $8,900; Charles testified that he thought it was worth around $8,000. The third vehicle, a 2007 Mercedes CLK 550, was an anniversary present for Myra. It was titled in Charles’s name. Charles thought the Mercedes was worth around $21,000 — the record shows the payoff amount was $22,108.
The court ruled that the three vehicles were marital property. The court also ordered that all other marital property, real and personal, be sold to pay off the marital debt. The final order divided the vehicles this way: Charles got the GMC and Ford trucks; Myra got the Mercedes. Moreover, Myra and Charles were to be “equally responsible for the debts on all three marital vehicles listed in the decree.” And if the money from the marital-property sale did not cover the marital debt, Myra would not be responsible for paying the remaining debt on the GMC work truck.
Charles first argues that the circuit court erred when it divided the vehicles, because it did not recite “its basis and reasons for the unequal division in its order.” The second part of Charles’s argument deals with the debt on the vehicles. Charles says that it is unfair for the court to order him to pay approximately $15,506 of debt for $14,000 worth of automobiles (his two trucks) while Myra got the Mercedes, worth $21,000, with only $15,506 of debt. He asks us to reverse the circuit court, order that all the vehicles be sold, and divide the remaining debt equally.
Marital property must be divided equitably in a divorce. Ark.Code Ann. § 9-12-315 (Repl.2009); Williams v. Williams, 82 Ark.App. 294, 108 S.W.3d 629 (2003). | (¡Arkansas Code Annotated section 9-12-315(a)(1)(A), provides that all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. The statute states that when a court finds such a division to be inequitable, the court must state, in its order, why it did not equally divide the marital property. Ark.Code Ann. § 9-12-315(a)(1)(B).
Courts do not have to be mathematically precise when distributing property; the statute’s thrust is an equitable, not a precise, division. Williams, 82 Ark.App. at 313, 108 S.W.3d at 641. A circuit court has broad powers and a measure of flexibility to apportion property (nonmarital and marital) to achieve an equitable division. Id. The critical inquiry is how the total assets are divided. Id. Our standard of review matters here: we will not substitute our judgment as to how the court should have divided the property; we only decide whether the order is clearly wrong. Id.
By Charles’s own admission, the court gave him about 40% of total value of all three cars ($14,000 out of $35,000) when it gave him sole ownership of the two trucks. Myra received about 60% of the total value of the vehicles when the court awarded her the Mercedes as her separate property ($21,000 out of $35,000). The court could have ordered that the vehicles be sold with the rest of the marital property, but it did not; it instead chose to distribute the marital property by giving each spouse his or her own vehicle as separate property. It gave Charles two trucks and Myra one car. This arrangement allowed the parties to keep the vehicles they normally drove and preserved their ability to have transportation. Because the court divided the vehicles equitably, the court was not required to state its reasons for its “unequal” division as Charles has argued. |7The court could not give the Joneses a mathematically equal share in the three vehicles unless the court ordered that all three vehicles be sold, but, as we have said, mathematical precision is not required. Williams, supra. The distribution of the vehicles’ monetary value favors Myra, but we cannot say that the court committed a reversible error.
Charles’s second argument about the justness of the court’s division of the debt in light of the vehicles’ values is not legally relevant to whether the court made an unequal distribution of the vehicles as marital property. Williams, supra. The legally important point is that the court committed no reversible error in how it divided the Joneses’ three vehicles.
3. The Life-insurance Policies
In its final order, the court ordered that
[t]he parties shall split equally the cash values of the life insurance policies acquired during the marriage, namely: American General Contract Number: 01841257; Modem Woodmen of America Certificate Number 4726527; United Fidelity Policy Number 50-0 0014920; New York Life Insurance Company Policy Number 26 750 999; and Met Life Policy Number 608207255M. Add. 27.
These life-insurance policies first came up during the divorce trial, because Charles did not produce them during the discovery phase. Myra believed that “they were hidden.” During trial, she asked the court to give her one-half of the cash value of the policies. On the witness stand, Charles admitted that the policies were not disclosed during discovery though Myra’s written discovery had requested the information.
Charles testified that his father bought the policies for him years ago. Charles also said that, possibly, two of the policies had been transferred into Myra’s name last year, and |sthat he had not purposefully failed to disclose the policies. He testified that he did not know about some of these policies because they were sent to his sister’s address and he never saw them.
William Jones, Charles’s father, testified briefly about the insurance policies. He said that he bought them when Charles was a young child. He also testified that he owned the policies until about two years before the divorce proceedings, when he transferred ownership to Charles.
Without objection, the court received, as evidence, the policy information Myra brought forth. There was no testimony, however, on (1) whether the policies William purchased were term or cash-value policies, (2) the exact number he purchased, or (3) the policies’ value. There was some indication that marital funds were used to pay the premiums the past two years, but the evidence suggests that Myra was never made a beneficiary of the policies.
Here, Charles argues that the court clearly erred because it did not find that the cash value of the life-insurance policies were his “sole and separate property” under Ark.Code Ann. § 9 — 12—315(b)(5), and that the court failed to explain its decision. Myra counters that we can affirm the court’s decision because it equally divided the policies. She also argues that this issue is not preserved for our review because Charles did not contest the court’s division in his posttrial motion to amend the judgment.
Contrary to Myra’s preservation point, Charles did not have to challenge the court’s division of the life-insurance policies in his Rule 59 motion to preserve the issue for an appeal. Ark. R. Civ. P. 59(f) (2012). But Charles does have the burden of |9bringing up a record sufficient to demonstrate that the circuit court erred. Troutt v. Matchett, 305 Ark. 474, 476, 808 S.W.2d 777, 778 (1991). Charles has not demonstrated that the circuit court’s order that “[t]he parties shall split equally the cash values of the life insurance policies acquired during the marriage” is clearly wrong. The record does not sufficiently establish that the life-insurance policies were either acquired before the marriage or given as a gift, as Charles argues. Because Charles has failed to bring up a record sufficient to demonstrate that the circuit court erred, we affirm the court’s ruling on the policies. Id.
4. The Chinn Springs Property
Charles and Myra owned 35 acres on Chinn Springs Road, and they asked the court to divide the property following their divorce. At trial, the court received as evidence a warranty deed that conveyed the Chinn Springs property to Charles and Myra, as husband and wife, on 31 January 1997. The testimony showed that the Joneses mortgaged the Kyler house in 1997, within a few days of when they signed the warranty deed conveying the Chinn Springs property to them jointly, as husband and wife.
There was a dispute during the divorce trial on whether the Joneses intended for Charles’s name be put on the Kyler house deed when Myra’s name was put on the Chinn Springs Road property deed. Both parties agreed that their lender would not loan money against the unimproved land on Chinn Springs Road, so they sought to mortgage the Kyler house instead. Charles testified that a private meeting between Myra and someone at the bank occurred when Myra signed the mortgage in 1997. Charles said that he thought the papers he signed in 1997 added his name on the Kyler house. He also told |inthe court that he would not have deeded Myra a half interest in the Chinn Springs property had he known he would have no interest in her house. Myra said that she and Charles had no such agreement, that Charles never asked to be a co-owner of the Kyler house, and that they had never discussed it.
The court ruled that the 35 acres on Chinn Springs Road was marital property because Charles had gifted it to Myra in January 1997. Charles argued at trial, and renews his argument here, that the 35 acres was his separate property and that it should not be divided; he contends that a constructive-trust theory bars this act. Specifically, he says he and Myra shared a confidential relationship and that caused him to rely on Myra to his detriment. Charles also says that the court should have reformed the deed and held the property in constructive trust as his separate property upon the divorce.
When a husband and wife hold real property as tenants by the entirety, our courts presume that the spouse who furnished the consideration made a gift to the other spouse — and this presumption can only be rebutted by elear-and-convinc-ing evidence. Keathley, supra. Further, absent evidence of fraud, marriage partners are charged with knowing the legal effects of a warranty deed conveying property to them as husband and wife. Ramsey v. Ramsey, 259 Ark. 16, 21, 531 S.W.2d 28, 31 (1975).
A court may hold property in constructive trust when one party abuses its power over the other party and the parties have a confidential relationship. A confidential relationship exists between two persons when one has secured the confidence of the other and claims to act with the other’s interest in mind. Henry v. Goodwin, 266 Ark. 95, 583 S.W.2d 29 (1979). A marriage can become a confidential relationship, but this is not Inalways so. Compare McIntire v. McIntire, 270 Ark. 381, 388, 605 S.W.2d 474, 478 (1980) (finding confidential relationship between husband and wife when deed was executed) with Robertson v. Robertson, 229 Ark. 649, 652, 317 S.W.2d 272, 274 (1958) (finding no confidential relationship between husband and wife when deed was executed).
A court may impose a constructive trust where a person holding title to property is subject to an equitable duty to convey it to another and not conveying it would unjustly enrich the title holder. Betts v. Betts, 326 Ark. 544, 547, 932 S.W.2d 336, 337 (1996). To impose a constructive trust, the moving party must show full, clear, and convincing evidence of its necessity, leaving no doubt with respect to the necessary facts. The burden is especially great when a title to real estate is sought to be overturned by parol evidence. Id. at 548, 932 S.W.2d at 338. It is no different when one spouse advocates for the court to find a confidential relationship and impose a constructive trust; the general presumption of spousal gift is strong — it can only be overcome by “clear, positive, unequivocal and convincing evidence.” McIntire, 270 Ark. at 388, 605 S.W.2d at 478.
The circuit court did not err when it rejected Charles’s constructive-trust request. Charles’s disputed testimony that he and Myra had an oral agreement that her name would be on his property and his name would be on her property is not enough. Myra testified the opposite way, and the circuit court was entitled to credit her testimony over Charles’s. Betts, 326 Ark. at 550, 932 S.W.2d at 339. The circuit court correctly ruled that the 35 acres the Joneses owned on Chinn Springs Road was marital property. The court based its ruling on the presumption that Charles gifted an interest in the Chinn |,2Springs property to Myra — as the property deed evinces — and the law charges the Joneses with knowing the legal effect of that deed. Ramsey, 259 Ark. at 21, 531 S.W.2d at 31.
We affirm the court’s division of the Kyler house, the three cars, the life-insurance policies, and the Chinn Springs property because the property division was neither clearly erroneous, nor clearly against the preponderance of the evidence.
Affirmed.
WYNNE and WHITEAKER, JJ., agree. | [
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DONALD L. CORBIN, Justice.
| Appellants, Paul Henry and Crystal Henry, appeal the judgment of the Baxter County Circuit Court awarding damages to Appellee, Willard N. Mitchell, on his complaint against them for misrepresentation in the sale of real property. The circuit court held a bench trial and then entered judgment based on the finding that the Henrys had mistakenly misrepresented the boundaries of the property and therefore committed constructive fraud. For reversal, the Henrys assert the circuit court erred in (1) disregarding an express waiver and release that Mitchell signed, (2) ruling that Mitchell’s reliance on the Hen-rys’ marking of the boundaries was reasonable, (3) using an incorrect measure of damages and failing to require Mitchell to mitigate his damages, and (4) failing to apply the correct burden of proof. In addition, as a fifth point on appeal, the Henrys ask this court to abandon the tort of constructive fraud. Because this latter request would require this court to overrule its precedent recognizing the tort of constructive fraud, we assumed jurisdiction of this appeal ^pursuant to Arkansas Supreme Court Rule 1 — 2(b)(5) (2012). We find no merit to any of the points on appeal, and we therefore affirm the judgment.
Mitchell initiated the present litigation by filing a petition in the Baxter County Circuit Court alleging a single cause of action for fraud. He alleged that he purchased a house on a lot located in the White River Valley subdivision only after the Henrys had misrepresented the location of the property’s corners and lot lines, the location of the water well serving the property, and the availability of an easement to access the driveway leading to the house. The petition alleged that Mitchell had incurred damages of $34,844.43 to place the property in the same condition as represented by the Henrys.
The Henrys answered the petition denying the alleged misrepresentations and asserting several affirmative defenses including waiver and release. The Henrys later filed a counterclaim for breach of contract relating to the waiver and release. The Henrys alleged that, in the real-estate-sales contract, Mitchell had agreed to forgo a survey and to hold them harmless for any boundary line or corner discrepancies that may exist or be discovered after closing. The Henrys further alleged that, in a subsequent closing document entitled “Release,” Mitchell accepted the boundaries and corners as marked by the Henrys and agreed to release them from any claims, known or unknown, relating to the negotiation of the real-estate contract. The counterclaim sought damages for costs associated with defending the lawsuit, lost wages, travel expenses, and emotional distress. The counterclaim also sought dismissal of Mitchell’s petition.
IsMitchell answered the counterclaim and asserted that he agreed to the waiver and release due only to the misrepresentation of the Henrys as to the corners of the property, the location of the well, and the availability of the easement. Mitchell requested that the counterclaim be dismissed.
The circuit court held a bench trial and heard testimony from the Henrys and Mitchell. Mitchell’s nephew, Tim Jones, who actually viewed the corners marked by the Henrys, also testified by deposition. The court also heard testimony from the neighbor, Greg Hnedak, who first discovered that the well and the driveway were on his property rather than on Mitchell’s property.
Jones testified in his deposition that his uncle, who resided in Ridgeland, Mississippi, asked him to go meet with Paul Henry to verify the corners of a lot and house in the White River Valley area that he was purchasing. According to Jones, Henry flagged the northeast and southeast corners of the property such that a water well and a gravel driveway were located within the eastern boundary of the property being purchased. Jones stated that he specifically asked Henry about the location of the well and that Henry assured him that the well was included on the property his uncle was purchasing. Jones also stated that Henry represented to him that part of the gravel driveway was located on the property his uncle was purchasing and that part of the driveway was an easement. After Jones met with Henry, he communicated Henry’s representations to Mitchell.
Mitchell testified at trial that he negotiated the flagging of the corners as part of the offer and acceptance making up the contract. Mitchell explained that his original offer to the RHenrys provided that the Henrys would flag all four corners prior to closing, and that the Henrys’ counteroffer provided that only the northeast and southeast corners would be flagged. Mitchell testified that he accepted the counteroffer to flag only the two eastern corners. Mitchell clarified that neither his offer nor the Henrys’ counteroffer stated that the corners would be flagged according to the best of the Henrys’ knowledge or to the best of their ability. Mitchell declared that he expected Henry to mark the true northeast and southeast corners of the property and that he was not willing to close on the property before Henry did so. Mitchell confirmed that, after his nephew met with Henry, his nephew’s description of the corners matched how the corners had appeared when he had viewed the property. He testified that he would not have signed the release document at closing if he had known that the corners had not been flagged properly.
Greg Hnedak testified at trial that he was an architect from Memphis, Tennessee, and that in July 2007 he purchased the unimproved lot bordering the house and the lot Mitchell had purchased from the Henrys in May 2006. Hnedak stated that he did not discover until after closing on his lot that a survey showed that the well supplying water to Mitchell’s house was actually located on Hnedak’s property and that a driveway being used by Mitchell was also located on his property. Hnedak stated that he never discovered through any title search or otherwise that any easement or any right to maintain that driveway had been given. Hnedak testified that he had purchased the lot and planned to use the entrance as a beautiful part of the property leading to the home he was going to build on the bluff. He stated that he did not think that he would be sharing the driveway with someone else and that having |sto do so made him feel that his property was not worth as much as he had paid for it. Hnedak testified that he reached an agreement with Mitchell over the well and the driveway. Hne-dak stated that he dictated the terms of the agreement and tried to be reasonable, but was frustrated because the look and feel of the property was especially important to him as an architect. Hnedak and Mitchell reduced their agreement to writing, and the agreement was entered into evidence. The terms of the agreement provided that Hnedak would transfer the real property where the well was located and would also transfer and enlarge the driveway easement. The agreement also required Mitchell to improve the surface driveway and to landscape the area to provide a natural appearance.
Paul Henry testified at trial that when he showed Jones the location of the water well, to the best of his knowledge, the well was on the property Mitchell was purchasing. He also testified that he represented that the road that leads to the back of the property provided access to the property. Henry stated that he realized now that what he marked as the corners were not the true corners of the property. Henry also acknowledged that his contract with Mitchell stated that he would flag the corners but did not state that he would flag the corners to the best of his ability or knowledge. When testifying as a witness for the defense, Henry stated that he marked the corners to the best of his ability and would never have marked them if he had known they had to be correct to the inch. He also stated that the previous owner of Hnedak’s lot had given him a thirty-foot easement for the driveway, but the easement was never recorded.
IfiAt the conclusion of the bench trial, the circuit court took the matter under advisement. Some months later, the circuit court entered the judgment amending the pleadings to conform to the proof and finding that the Henrys had committed constructive fraud when they mistakenly represented the corners of the property, the location of the well, and the access to the driveway. The circuit court also found that, according to a survey procured by Hnedak, and a later survey procured by Mitchell, neither the well that supplied water to Mitchell’s house nor the road that allowed access to the northern part of Mitchell’s property was actually located on Mitchell’s property. The circuit court further found that, in order to obtain full access to his property, Mitchell had to negotiate a resolution to the problem with Hnedak. The circuit court stated that it was clear that the Henrys had acted in good faith with no intent to deceive but that the law does not recognize that alone as a defense to constructive fraud. Furthermore, the circuit court found that the Henrys’ constructive fraud vitiated the waiver and release. Accordingly, the judgment awarded damages of $34,094.34, as the amount Mitchell expended to acquire the water well and the access to his property from Hnedak. The judgment also dismissed the Henrys’ counterclaim. The Henrys have timely appealed.
The standard of review on appeal from a bench trial is not whether there is substantial evidence to support the findings of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. City of Rockport v. City of Malvern, 2010 Ark. 449, 374 S.W.3d 660. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left |7with a firm conviction that an error has been committed. Id. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. Id.
I. Express Waiver
For their first point for reversal, the Henrys contend that the circuit court erred in disregarding the express waiver of liability contained in the real-estate contract. We note at the outset that the circuit court did not disregard the waiver; rather, it ruled that the waiver was vitiated by the constructive fraud. Because we affirm for the reasons discussed later herein the circuit court’s finding that the constructive fraud vitiated any waiver or release, we need not address the presupposition in the Henrys’ argument that the waiver in paragraph 10 of the contract even applied to option C as negotiated by the parties here.
The real-estate contract contained the following language:
10. SURVEY: Buyer has been given the opportunity to obtain a new certified survey. Should Buyer decline to obtain a survey as offered in Paragraph 10A of this Real Estate Contract, Buyer agrees to hold Seller and the Listing Firm and Selling Firm involved in this Real Estate Contract harmless of any problems relative to any survey discrepancies that may exist or be discovered (or occur) after closing.
_ A. A new certified survey, in a form satisfactory to Buyer, certified to Buyer within thirty (30) days prior to Closing by a registered land surveyor, will be provided and paid for by: _ Buyer_Seller.
_ B. No survey shall be provided.
x C. Other. Seller shall flag all comers prior to closing.
Should Buyer agree to accept the most recent survey provided by Seller, this survey is for information purposes only and Buyer will not be entitled to the legal benefits of a survey certified in Buyer’s names.
|sIn considering this waiver in the contract and whether it released the Henrys from liability for the mistake that the court found to have occurred, the circuit court stated in the judgment that
[a] plain reading of the Section 10 would mean that Mr. Mitchell released the Henrys from the situation which occurred. However, there is another principle to consider. Frans omnia Cor- rumpit: fraud vitiates everything it touches. See Malakul v. Altech Arkansas, Inc., 298 Ark. 246, 766 S.W.2d 433 (1989). The Henrys could not logically place a release provision in the contract, then make a fraudulent misrepresentation, and thereafter try to protect themselves from liability using the release provision. Under the facts of this case, the release provision in the contract provides no protection to the Henrys. Had they not agreed to flag the corners and the sale simply proceeded without a survey, the release provision would have provided protection.
The Henrys specifically challenge the circuit court’s reliance on the maxim that fraud vitiates everything it touches. The Henrys argue that, according to Barringer v. Hall, 89 Ark.App. 293, 202 S.W.3d 568 (2005), and Worley v. City of Jonesboro, 2011 Ark. App. 594, 385 S.W.3d 908, innocent misrepresentations are not sufficient to vitiate contract disclaimers. Mitchell responds that these two cases are not factually similar to the present case because they do not involve a seller who admitted he incorrectly marked the corners. Mitchell contends this case is more factually similar to Beatty v. Haggard, 87 Ark.App. 75, 184 S.W.3d 479 (2004), in that Beatty involved a seller who, like the Henrys, misrepresented the true condition of the property.
The three cases cited by the parties here do have distinguishing fact patterns, especially as to the specific terms of the particular waivers and disclaimers at issue therein. However, we need not engage in a fact-intensive analysis of those cases to resolve the issue here | presented. Contrary to the Henrys’ assertion, we need look no further than the case cited by the circuit court to resolve this issue.
The case cited by the circuit court, Malakul v. Altech Arkansas, Inc., 298 Ark. 246, 766 S.W.2d 433 (1989), involved a misrepresentation that amounted to fraud that this court held was sufficient to set aside a release. In so holding, this court noted the general proposition that plaintiffs are entitled to assert that the fraud they claim in the entire transaction fatally infects the release upon which the defendants rely. In support of this general proposition, the Malakul court cited Fitzwater v. Lambert & Barr, Inc., 539 F.Supp. 282 (W.D.Ark.1982), which observed that “[i]t is of course true that under Arkansas law, fraud may be shown to set aside a release. Creswell v. Keith, 233 Ark. 407, 344 S.W.2d 854 (1961).” Fitzwater, 539 F.Supp. at 292-93. The Fitzwater decision also pointed out that under Arkansas law, mutual mistake can provide grounds to set aside a release, as can a unilateral mistake if accompanied by fraud, misrepresentation, or inequitable conduct by the other party. Id. (citing Fullerton v. Storthz, 182 Ark. 751, 33 S.W.2d 714 (1930), and Foster v. Dierks Lumber & Coal Co., 175 Ark. 73, 298 S.W. 495 (1927)).
The Henrys do not explain what they mean by “innocent misrepresentations” when making their argument here that innocent misrepresentations are not sufficient to set aside a release. It may be that they are referring to their conduct as a mistake, for this court has stated that constructive fraud “generally involves a mere mistake of fact.” Kersh Lake Drainage Dist. v. Johnson, 203 Ark. 315, 327, 157 S.W.2d 39, 45 (1941). But even assuming that the Henrys are referring to their conduct as a mistake, as the cases from this court cited in Fitzwater hnestablish, Arkansas law is clear that mistake is also grounds to set aside a release. The circuit court specifically found that the Henrys committed constructive fraud by mistakenly misrepresenting the boundaries of the property and that the misrepresentation extended so as to vitiate any waiver and release Mitchell executed. Given the evidence presented at trial, we simply cannot say that the circuit court’s conclusion in this regard was clearly erroneous.
II. Justifiable Reliance
As their second point for reversal, the Henrys contend that the circuit court erred in finding that Mitchell justifiably relied on the Henrys’ representation of the corners, the well, and the driveway. They contend that, although there was a mistake as to the actual corners, Mitchell relinquished any remedies from and against them by agreeing to accept the property “as is” and by releasing them from liability. The Henrys rely on Barringer, 89 Ark.App. at 303, 202 S.W.3d at 574, where a seller successfully argued that a “Buyer’s Disclaimer of Reliance” and an “Inspection, Repair, and Survey Addendum” barred the buyers from asserting they had justifiably relied on the seller’s representations as to the existence of a septic system. Mitchell responds that his reliance was justifiable because he expected the Henrys to mark the true corners of the property; otherwise, he would not have agreed to forego the survey and substitute the Hen-rys’ flagging of the corners.
At the outset, we reject the Henrys’ assertion that Mitchell agreed to accept the property “as is”; rather, Mitchell agreed to accept the property as flagged by the Henrys. In the separate closing document entitled “Release,” Mitchell agreed that the “property corners 1 nhave been flagged and [that he] accepts same.” Thus, Mitchell agreed to accept the boundaries of the property as “flagged.”
The circuit court found that the flagging of the corners was performed as part of the agreement to induce Mitchell to purchase the property and that Mitchell could justifiably rely on the Henrys to flag the corners because a party is presumed to know the location of his boundary lines. Given that both parties negotiated the flagging of the corners as part of their agreement, and given that the Henrys placed no limitations in their counteroffer to flag the corners to the best of their ability or to the best of their knowledge, we cannot say that the circuit court was clearly erroneous in finding that Mitchell justifiably relied on the Henrys to flag the comers accurately.
III. Measure and Award of Damages
For their third point for reversal, the Henrys contend that the circuit court applied the wrong measure of damages and failed to hold Mitchell to his duty to mitigate damages. The Henrys cite Danielson v. Skidmore, 125 Ark. 572, 576, 189 S.W. 57, 58 (1916), for the proposition that the applicable measure of damages in this case is “the difference between the real value of the property in its true condition and the price at which [the Buyer] purchased it.” The Henrys acknowledge, however, that the parties stipulated that the measure of damages would be the cost of putting the property in the condition that was represented to Mitchell. Thus, the Henrys contend that the proper measure of damages should have been the difference between the value of the land in its true condition and either the amount Mitchell paid for the property or the amount required to put the property in the condition | ^represented. The Henrys claim, however, that the circuit court awarded damages that reflected the amount required to appease the exorbitant specifications of the neighboring third party and that did not account for Mitchell’s duty to mitigate.
In response, Mitchell agrees that the damages he incurred were the result of what his neighbor required and points out that he did not choose the neighbor with whom he was forced to negotiate to obtain the well and the driveway. Mitchell responds that he did, in fact, mitigate his damages by negotiating with his neighbor to reach a prompt agreement. Mitchell responds further that the Henrys have failed to offer any proof whatsoever to counter the damages he incurred and that it is therefore unclear how he could have mitigated his damages any more than he did.
As for the proper measure of damages and the parties’ stipulation thereto, we note the circuit court’s accurate statement from the bench that parties cannot stipulate to the law or to legal conclusions. See, e.g., Roberts v. Roberts, 2009 Ark. 567, at 5, n. 1, 349 S.W.3d 886, 889, n.l (quoting 73 Am.Jur.2d Stipulations § 4 (2009) (observing that “[p]arties to an action may not stipulate to legal conclusions to be reached by the court”)). In the present case, the parties stipulated that the measure of damages would be the cost to restore the property to the condition it was represented. This measure of damages is commonly referred to as “cost-to-repair” damages. Mitchell argued at trial that the difference-in-value measure of damages would yield a figure that exceeded the amount he had expended in restoring the property to the condition as it was represented.
| joThis court has previously affirmed a trial court’s award of cost-to-repair damages under similar facts. See, e.g., Copelin v. Corter, 291 Ark. 218, 724 S.W.2d 146 (1987) (affirming award of damages for misrepresentation of location of well based on cost to relocate the well and install new pump). The court of appeals has also applied the cost-to-repair damages under similar facts. See, e.g., Knox v. Chambers, 8 Ark.App. 336, 654 S.W.2d 582 (1983) (affirming award of damages for misrepresentation that well’s supply was adequate for household purposes based on repair costs to provide adequate water supply). Accordingly, we cannot say the circuit court was clearly erroneous in measuring the damages in this case according to the cost to restore the real property to the condition represented by the Henrys.
As for the Henrys’ argument that Mitchell expended an unreasonable amount to appease a third party and that he was required to mitigate his damages, we note that it was the Henrys’ burden as defendants to prove matters relating to mitigation. See Minerva Enters. Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). The Henrys were required to show both how Mitchell could have taken action to mitigate his damages and the amount of damages that might have been avoided by his proper mitigation. The Henrys failed to offer any such proof. They merely allege that if Mitchell had obtained a survey, he would not have had to expend the $34,094.34 in funds required to appease Hnedak and that a line-by-line analysis of the expenditures demonstrates their unreasonableness and excessiveness. The Henrys offered no evidence of what a reasonable expenditure would have been. The Henrys offered no evidence that Mitchell could have drilled an alternate well or built an alternate driveway at a more reasonable expense; nor do the Hen-rys assert a dollar amount of damages that | uMitchell could have avoided. Therefore, we conclude that the Henrys have not met their burden of proving Mitchell’s failure to mitigate his damages and the dollar value of damages caused by such failure.
The circuit court recalled Hnedak’s testimony that because he was an architect, the look and feel of arrival to the property was important to him. The circuit court observed that Hnedak thus required Mitchell to chip and seal the driveway, plant grass, shield the well from sight, and landscape the area, all under the direction of an architect. The circuit court acknowledged that Hnedak’s requirements could be argued as excessive, but the court further acknowledged that Mitchell was at Hnedak’s mercy. Given this situation, the circuit court concluded that Mitchell should be awarded the sum he expended to acquire access and water to his property. We cannot say this was clearly erroneous, given the unique facts of this case as shown in the evidence presented, and given the failure of proof from the Henrys of anything to the contrary.
IV. Burden of Proof
For the fourth point for reversal, the Henrys contend the circuit court should have required Mitchell to satisfy the clear-and-convincing standard of proof rather than the preponderance-of-the-evidence standard. The Henrys cite Beatty, 87 Ark.App. 75, 184 S.W.3d 479, where the court of appeals stated that to upset a solemn written instrument by a claim of fraud, the burden of proof is by clear and convincing evidence, rather than the usual preponderance-of-the-evidence standard. Mitchell does not dispute that the clear- and-convincing standard applies here, and he contends that he has satisfied that standard.
|1sAs the court of appeals noted in Beatty, this court has observed that
two different burdens of proof of fraud had been used in the past with respect to written instruments. “One, the ordinary rule which requires proof of fraud by a preponderance of the evidence and two, the stricter rule which requires proof of fraud by a preponderance of the evidence which is clear and convincing.”
Beatty, 87 Ark.App. at 83, 184 S.W.3d at 484 (quoting Clay v. Brand, 236 Ark. 236, 241, 365 S.W.2d 256, 259 (1963)). This court went on to explain in Clay that the “ ‘clear and convincing’ language seems to have evolved from that line of cases which require that in order to cancel or reform a solemn writing because of fraud, accident or mutual mistake the proof must be clear and convincing.” Clay, 236 Ark. at 241, 365 S.W.2d at 259.
Although the judgment does not recite which burden of proof the circuit court applied, it is evident that the circuit court was satisfied that even the higher standard of clear-and-convincing evidence had been met. The circuit court’s order states that “[t]he evidence Mr. Mitchell presented at trial clearly proves each element of constructive fraud.” (Emphasis added.) The judgment then goes on to state the court’s conclusions with respect to each element as follows:
Mr. Henry’s statement as to the location of the corners, albeit by mistake, was false. The location of the corners was a material fact. The flagging of the corners was performed as part of the agreement to induce Mr. Mitchell to purchase the property. A party is presumed to know the location of his boundary lines, thus, Mr. Mitchell could justifiably rely on Mr. Henry’s actions. Finally, Mr. Mitchell was damaged as a result of such reliance. While it is clear to the court that Mr. Henry was acting in good faith with no intent to deceive, the law doesn’t recognize that alone as a sufficient defense to constructive fraud.
This court has defined clear and convincing evidence as that degree of proof that produces in the finder of fact a firm conviction as to the allegation sought to be established. Howell v. Scroll Techs., 343 Ark. 297, 35 S.W.3d 800 (2001). “[I]t is not necessary that evidence be undisputed in order to be clear and convincing.” Kelly v. Kelly, 264 Ark. 865, 870, 575 S.W.2d 672, 675 (1979). Our review of the evidence in this case is consistent with the circuit court’s findings. And our review of the circuit court’s foregoing conclusions in the judgment convinces us that the circuit court had a firm conviction that the elements of constructive fraud had been adequately proved by clear and convincing evidence. We therefore conclude that the Henrys’ fourth point on appeal does not demonstrate any reason for reversal.
V. Tort of Constructive Fraud Should, No Longer Be Recognized in Arkansas
For their fifth and final argument on appeal, the Henrys contend that the torts of negligent misrepresentation and constructive fraud are “in all aspects besides name ... identical” and that because this court does not recognize the tort of negligent misrepresentation, S. Cnty., Inc. v. First W. Loan Co., 315 Ark. 722, 871 S.W.2d 325 (1994), we should overrule our precedent recognizing constructive fraud. Not only do the Henrys raise this argument for the first time on appeal, but also they do not cite to any legal authority supporting their claim that the elements of the two torts at issue are identical. It is well settled that this court does not address assertions of error unsupported by convincing argument or citation to supporting legal authority. See, e.g., Walters v. Dobbins, 2010 Ark. 260, 370 S.W.3d 209 (citing Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003)). This is especially true in cases where it is not apparent without further research that the unsupported argument is well taken. Lackey v. Bramblett, 355 Ark. 414, 139 S.W.3d 467|17(2003). The argument that the Henrys advance on appeal does not appear to be well taken, and we address it no further. See Curtis Lumber Co., Inc. v. Louisiana Pac. Corp., 618 F.3d 762 (8th Cir.2010) (noting that the doctrine of constructive fraud “does not apply to all material misrepresentations regardless of the defendant’s state of mind. If that were the case, then constructive fraud would encompass negligent misrepresentations as well, which is a result precluded by Arkansas law. See S. County, [315 Ark. at 722,] 871 S.W.2d at 326”). Curtis, 618 F.3d at 775.
We find no merit to any of the five arguments presented for reversal and affirm the judgment.
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PER CURIAM.
11Appellant Larry Eugene Barker has been an inmate in the Arkansas Department of Correction (“ADC”) since October 7, 2003. On August 26, 2013, the State filed a petition pursuant to the State Prison Inmate Care and Custody Reimbursement Act (“Inmate Reimbursement Act”), codified at Arkansas Code Annotated sections 12-29-501 to -507 (Repl.2009), seeking the sum of $6140.24 held in appellant’s inmate account as reimbursement for a portion of the cost of housing appellant in the ADC. Granting the State’s motion for leave to deposit funds, the circuit court ordered the sum of $6140.42 held in appellant’s inmate account to be deposited into the registry of the court in order to preserve the funds. At the hearing, the State introduced evidence that appellant had been in the custody of the ADC for 3817 days and that the total cost of providing for his care and custody during this time period 12was $214,863.94. The circuit court found that the State had proven its claim to reimbursement in an amount that exceeded the $6140.24 on deposit in the registry of the court and that appellant had not proven a valid defense to the State’s claim. The circuit court then ordered the clerk of the court to issue payment of $6140.24 to the State for deposit into the Arkansas State Treasury. Appellant has lodged an appeal from that order, and the parties have timely filed their briefs.
Now before us is appellant’s motion to file a belated reply brief. 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.
The appropriate standard of review on appeal from a bench trial is not whether there is substantial evidence to support the findings of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. King v. City of Harrisburg, 2014 Ark. 183, 2014 WL 1673754. 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. Id. Issues of statutory interpretation are reviewed de novo. MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28 (per curiam).
Appellant first argues on appeal that the trial judge allowed his case to be “railroaded” through the trial court and that the hearing was staged as a formality. In support of his claim, appellant refers to the Assistant Attorney General having a prepared order at the hearing, “everyone” already present in the courtroom when he arrived at the hearing, the location of his chair in the courtroom, the trial judge’s alleged expression of surprise at the cost of his housing, |sand the trial judge’s alleged inference during the hearing that the State’s request for relief would be granted. Appellant also describes the challenges that he faced in lodging his appeal. Because appellant failed to raise his claim before the circuit court, the argument was waived. It is well settled that this court will not address an issue raised for the first time on appeal, even a constitutional argument. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427.
Appellant next contends that the enforcement of the Inmate Reimbursement Act constituted unlawful discrimination in violation of the Fourteenth Amendment. In a related point, he argues that the Equal Protection Clause of the Fourteenth Amendment was violated by the applica tion of the Act. While appellant argues on appeal that an unreasonable distinction existed in the application of the Act with the Act being enforced only against inmates ■with a “substantial amount” in their accounts, he alleged below only that he was being targeted for application of the Act but did not know the reason for its selective enforcement, except as a punitive measure. Similarly, appellant contends for the first time on appeal that the Act has a “double standard” and lacks fairness apparently because it does not set out who is subject to its provisions.
On appeal, an appellant is limited to the scope and nature of the arguments he or she made below that were considered by the circuit court in rendering its ruling. Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam). We will not consider new arguments raised for the first time on appeal or consider factual substantiation added to bolster the allegations made below. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam). Likewise, issues raised below but not argued on appeal are considered abandoned. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.
|4In Burns v. State, 303 Ark. 64, 793 S.W.2d 779 (1990), we rejected the argument that the application of the Act violated the inmate’s right to due process or equal protection, finding that the record was barren of any proof that the inmate was “singled out” for application of the Act and that we would not attempt to respond to an argument lacking entirely in specificity. There, we also held that the Act was facially neutral. Burns, 303 Ark. 64, 793 S.W.2d 779; see also MacKool, 2012 Ark. 287, 423 S.W.3d 28 (holding the application of the Act did not violate the Equal Protection Clause because there is a rational connection between the Act and the non-punitive goal of reimbursement to the State, and there is a rational basis for the State to seek reimbursement only from inmates whose respective account balances are greater than the cost of litigating reimbursement under the Act). We find appellant’s conclusory argument that he was targeted for application of the Act to be unpersuasive and lacking the necessary specificity. In any event, we have rejected the argument that an inmate’s right to equal protection of the law was violated by the selective application of the Act based on the amount of money in his account. See MacKool, 2012 Ark. 287, 423 S.W.3d 28.
Appellant next summarily alleges that the trial judge was “within his jurisdiction” to appoint an attorney to represent him in this matter. Appellant acknowledged in his answer to the complaint that he did not have a right to have an attorney appointed, and he raises no argument on appeal to support any claim that he was entitled to the appointment of an attorney. In any event, postconviction matters are considered civil in nature, and there is no absolute right to appointment of counsel. Anthony v. State, 2014 Ark. 195, 2014 WL 1716538 (per curiam).
Appellant next contends that, because the funds at issue were given to him by his wife | .-for the purpose of sustenance, the sum was not part of his “estate” subject to recovery by the State for reimbursement of care and custody expenses, as the term “estate” is used in the Inmate Reimbursement Act. See Ark. Code Ann. § 12-29-502(4) (“ ‘Estate’ means any tangible or intangible properties, real or personal, belonging to or due an inmate confined to an institution of the Department of Correction or the Department of Community Correction, including income or payments to the inmate from social security, previously earned salary or wages, bonuses, annuities, pensions, or re tirement benefits, or any source whatsoever.”). We have held that, based on this definition, the plain language of the statute reflects that any money received by an inmate is part of his “estate” for purposes of this statute. See MacKool, 2012 Ark. 287, 423 S.W.3d 28; Burns, 303 Ark. 64, 793 S.W.2d 779. Thus, any money that appellant received from his wife is clearly within the statute’s definition of “estate,” and appellant’s argument on this point is without merit.
Appellant also argues that the Act required the circuit court to appoint a guardian to protect his rights. In his answer, appellant stated that a guardian would not suffice to represent his interests; however, at the hearing, appellant requested the appointment of an attorney or a guardian to assist him during the proceeding. The trial judge responded that the proceeding was civil in nature. Appellant now contends that the trial judge’s response was “irrational” and “inappropriate.”
Pursuant to Arkansas Code Annotated section 12—29—504(c)(1)(A),
At the time of the hearing, if it appears that the person or prisoner has an estate that ought to be subject to the claim of the state, the court, without further notice, shall appoint a guardian of the person and estate of the prisoner if the court deems one | (¡necessary for the protection of the rights of all parties concerned.
Based on the plain language of the statute, the appointment of a guardian is within the discretion of the trial court. Here, because appellant fails to state any argument as to why the appointment of a guardian was necessary for the protection of his rights, he is not entitled to the sought relief.
Finally, appellant contends that the circuit court erred in failing to consider a motion for summary judgment that he timely filed in January 2014. He acknowledges that the motion for summary judgment, filed three days before the March 10, 2014 hearing and dismissed by the circuit court as untimely; was indeed untimely. The motion for summary judgment alleged by appellant to have been filed in January 2014 is not included in the record, and appellant did not seek to bring up the motion by filing a petition for writ of certiorari. An appellant who seeks relief in this court has the burden to bring up a sufficient record upon which to grant relief. Greene v. State, 2013 Ark. 251, 2013 WL 2460096 (per curiam). It is well settled that an appellant bears the burden of producing a record demonstrating error. Id. Without the motion for summary judgment, filed in January 2014, this court is unable to conduct an adequate review. Therefore, appellant cannot prevail on appeal on this claim.
Order affirmed; motion moot.
. All inmates in the ADC have accounts in the inmate's name, maintained by the ADC, into which money may be deposited on the inmate’s behalf. | [
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WAYMOND M. BROWN, Judge.
| tThis is the third appeal in the probate of this estate. Robert 0. Shafer, Sr., died testate on May 26, 2007, leaving his children, Robert Shafer, Jr., Karl Shafer, and Roberta Payne, as heirs. Appellant Robert Shafer, Jr. appeals from the circuit court’s orders finding him in contempt, imposing sanctions against him, and awarding fees to the personal representative and the estate’s attorney. We find no error and affirm.
Mr. Shafer’s children were unable to agree about the disposition of the estate’s property. On August 14, 2007, with assistance from the White County Sheriffs Department, Karl delivered to appellant a flatbed trailer loaded with property that had belonged to their father. The sheriffs report stated:
On the above date and time I was advised to meet with the complainant at the Fairview Fire Dept, in reference to an escort to return property. Upon arrival, I met with the complainant, Mr. Karl Shafer, who advised me that his brother Robert Shafer, who is listed as the suspect, had stored some items willed to him by their father Don his property and that it had been there for some time. Mr. Shafer told me that he had advised his brother Robert to remove the items which he has refused to do. On today’s date, Mr. Shafer took several items consisting of flatbed trailer, spray tank, two plows, one front end loader, one mower, and one breaking plow back to his brother, Robert Shafer’s residence and left them there. Mr. Shafer attempted to contact his brother at the residence but had no success. Mr. Shafer requested a [sic] information report be taken in case there were any further problems.
Although their father’s will nominated appellant and Karl as co-executors, the extreme family discord, primarily caused by appellant, resulted in the circuit court’s appointment of Robert Hudgins, an attorney and certified public accountant, to serve as the executor in June 2008. In a July 23, 2008 letter to Hudgins, appellant’s attorney stated that the trailer Karl had brought to appellant’s residence might be an asset of the estate. On August 1, 2008, Hudgins sent a letter to appellant’s attorney stating that the estate considered the trailer and its contents to be assets of the estate. In an August 11, 2008 letter to Hudgins, appellant’s attorney acknowledged that the trailer and plow belonged to the estate but said that appellant claimed the breaking plow and another plow.
On October 3, 2008, Hudgins filed an inventory of the estate that included a “1960 utility trailer” and a “1997 16 ft. utility trailer flatbed light-duty AR-KAVTL9570245950.” At the conclusion of the hearing held on November 18, 2008, to address issues about the estate’s property (at which Hudgins, Karl, Roberta, Karl Shafer, Jr., and appellant testified), the court stated:
I’m going to say this one time and I hope everybody listens real close. If Mr. Hudgins and Mr. Biggs [the estate’s attorney] report back to me they’re having trouble with anybody on anything from this date forward, you better bring your toothbrush because you’re going to jail for a while because we’re not going to listen to this mess any more. I have the same sentiment that the young fellow [Karl, Jr.] that sat up here that talked about family and how this is ridiculous. This is ridiculous. You’re arguing Uover lots of little things that y’all should have decided. You’re asking me to decide. I have to follow the law. This isn’t going to be the best way to divide things up, but since I have to do it, this is the only way I know how to do it.
Everything in the inventory that was filed October 3rd is estate property and will be sold at auction. We’d like to do it within 60 days if possible....
I expect that if any of the heirs have any of this property that I’ve identified as property of the estate in their possession, they need to get that to Mr. Hud-gins within ten days or he’ll tell you where to deliver it within ten days.
We’ll have a sale. After the sale, the proper debts of the estate will be paid, then the balance will be divided among the heirs. At this sale I expect no arguments from any of the heirs, nothing but cooperation at that sale, and you have the opportunity if you want to bid at the sale just like anyone else.
On February 17, 2009, the circuit court held another hearing and entered an order finding that all items listed in the inventory were property of the estate and directing that “[a]ll estate property in the possession or under the control of the decedent’s three children” must be delivered to Hudgins. On February 18, 2009, appellant delivered a utility trailer with the ARKAVTL9570245950 serial number to the auctioneer; that trailer, however, was not the sixteen-foot utility trailer with the plows on it that had been discussed at the November 2008 hearing. Hudgins’s attempts to obtain the trailer from appellant were unsuccessful.
Property of the estate was sold at public auction on February 21, 2009. The sale of the personal property netted $9713.53; the real estate was sold for $59,000. In the report of sale, Hudgins alleged that appellant had refused his demands to deliver the 1997 sixteen-foot utility trailer (shown in a photo) as ordered, and asked that appellant be held in contempt. The circuit court confirmed the sale on March 20, 2009, and heard the contempt motion on June |424, 2009. Appellant and Hudgins testified at that hearing.
At the end of the hearing, the court stated:
So what we’re left with is the trailer and the rings. The trailer and rings need to be turned over to Mr. Hudgins within ten days.
Mr. Hudgins, you’ll have to, through Mr. Biggs and Mr. Carder [appellant’s lawyer], make arrangements on where to put that trailer, and then we’re going to have to sell it along with the rings. That will be done at the courthouse steps. Either party, any of the parties can advertise, or whatever they choose fit to, for the sale, but it will be held 45 days from today.
From a review of the file and the testimony that I’ve heard today, this estate was opened in, looks like 2008, the early part of that year. This thing should have been wrapped up at the end of, no later than the end of 2008. Now we’re almost halfway through the year 2009, which is totally, I would say ridiculous. There’s no sense in this.
And on this motion for contempt against Robert O. Shafer, Jr., from reviewing the testimony I think that Mr. Shafer has failed to act in good faith. I think that he has caused numerous delays in this. I don’t think that — I think he’s let his emotions come into play, and I think he’s the greatest cause of this, so I’m going to find Mr. Shafer in contempt for failure to cooperate with the estate, and I’m going to assess him the costs and attorneys’ fees for today. I’m going to have to have Mr. Biggs to prepare a petition and itemize that out and serve Mr. Carder with that, and if there’s any objections as to what’s included in that petition, we’ll have a short hearing to determine what’s reasonable for the fees and expenses, and that should include ... Roberta Payne’s expense for driving up here and driving back [from Mobile, Alabama],
In an order dated October 23, 2009, the circuit court found appellant in contempt and ordered him to deliver the “sixteen foot long trailer, two Masonic rings and one of the plows currently on the trailer [at appellant’s choice]” to Hudgins within ten days. In terms of sanctions, the order provided:
|sThe court hereby assesses the costs and attorney’s fees against Robert O. Shafer, Jr. relating to this June 24, 2009 hearing. Mr. Biggs should prepare and submit a petition to the court, copied to . Mr. Carder, setting out the itemized fees and expenses of the personal repre sentative and the attorney for the estate associated with the June 24, 2009 hearing, and said petition should include the expenses of Roberta Payne for her travel to and from said hearing from her home in Mobile, Alabama.
Appellant appealed this order. On June 2, 2010, this court dismissed that appeal because the circuit court had not yet imposed the sanctions for appellant’s contempt and the order was not final.
On February 25, 2011, Hudgins filed a. petition for fees for himself and Biggs and for Roberta’s travel expenses. He sought approval of fees for himself of $18,252.17, with an attached statement detailing his services. Giving credit for payments received, he listed a balance due of $11,842.00. Hudgins used an asterisk to indicate the costs and fees relating to the June 24, 2009 contempt hearing ($7375.00 for himself; $8120.11 for the estate’s attorney; and $795.15 for Roberta). In his petition, Hudgins listed numerous examples of appellant’s frivolous and obstructive actions that increased the cost of administering the estate from an expected $6000 or $8000 to over $38,000. Biggs’s detailed statement was also attached to the petition; the total was $19,748.27, and the charges attributable to the June 24, 2009 contempt | ^hearing were indicated with asterisks. Hudgins also attached copies of Roberta’s receipts from three restaurants, a grocery store, and Walmart for expenses incurred in attending the June 24, 2009 hearing. The Walmart receipts, in the amounts of $19.31 and $12.60, were described as “Thank you gifts for letting me stay with Karl and Vonda Shafer.” Roberta also sought $632.91 for mileage at the IRS’s standard rate. In response, appellant argued that the fees sought by Hudgins and Biggs were duplicative, excessive, and unjustified. He asserted: “Neither the value of the estate nor the nature of the matters for which the estate was called to defend against was so complex or sophisticated that the services of two attorneys would be prudent or justified.” He also argued that the requested fees were out of line with Arkansas Code Annotated section 28-48-108.
The circuit court held a hearing on April 1, 2011, to address the request for fees, at which Hudgins and Karl testified. Addressing appellant’s new counsel, the court stated:
[ Wjhile the arguments you make are very good arguments, some of it really doesn’t, isn’t applicable to this case. I mean there were, there was an executor and personal representative appointed and in normal circumstances I agree, that’s duplicative of expenses, it causes for a lot higher bill than needs to be assessed, but in this case your client did nothing to cooperate with this Court at any step. Never. You can even read the appeal. I’m sure you have. In the opinion of the Court of Appeals they were as flabbergasted as I was in the claims that he was making. There was no merit whatsoever.
Normally, these type of things, estates, definitely less than $10,000.00 in fees would be reasonable, but this isn’t your normal case. I don’t think it would be fair to, at this juncture to assess your client expenses and costs they incurred after the June 29 date for this hearing because that’s not what the order said. That’s not to say that at a subsequent hearing if the personal representative or the other heirs feel like he should be responsible for the attorneys’ fees that were incurred after that date, that they could ask and that would be set for another hearing and you would be given an opportunity 17to find out what they’re requesting and do your discovery, and that would only be the fair thing to do.
So, with that said, I 'find that the personal representative and the attorney of the estate fees are reasonable in light of the circumstances, that Roberta Payne is entitled to every nickel of that $795.15, and I think I promised her that this thing would be closed before she dies, and that is my goal, is to do that.
On June 15, 2011, the circuit court entered an order finding the fees and expenses claimed by the personal representative and attorney for the estate, as well as those (through June 24, 2009) marked as related to the June 24, 2009 hearing, to be “reasonable in light of the circumstances” and approved them. It also approved reimbursement to Roberta for $795.15. The court assessed and entered judgment of $15,560.42 against appellant ($6990.00 for Hudgins, $7775.27 for Biggs, and $795.15 for Roberta) relating to the June 24, 2009 hearing. Appellant filed a timely notice of appeal.
In his first point, appellant asserts that the trial court erred in finding him in contempt because the order was not definite in its terms and he did not willfully disobey it. He notes that the serial number listed with the sixteen-foot trailer on the inventory actually went with a different trailer (for a four-wheeler) in his possession. Appellant, in fact, contends that Hudgins did not even list the trailer on the inventory. He also states that Karl had represented to the sheriffs office that the trailer belonged to appellant when Karl took it to appellant’s residence in August 2007.
We review probate cases de novo on appeal and will not reverse the probate court’s findings of fact unless they are clearly erroneous. The willful disobedience of a valid court order is contemptuous behavior. However, before one can be held in contempt for violating a court’s order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. 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. Contempt is divided into criminal contempt and civil contempt. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private par ties. The focus is on the character of the relief rather than the nature of the proceeding. A contempt fine for willful disobedience that is payable to the complainant is remedial and therefore constitutes a fine for civil contempt. However, if the fine is payable to the court, |flit is punitive and constitutes a fine for criminal contempt. We will not reverse a circuit court’s finding of civil contempt unless that finding is clearly against the preponderance of the evidence. Here, the court ordered appellant to pay the estate’s expenses and attorney’s fees, and Roberta Payne’s travel expenses, incurred as a result of appellant’s behavior. Being remedial in nature and payable to the complainants, it was civil contempt.
We find appellant’s argument unpersuasive. One cannot reasonably interpret the sheriffs report in the manner urged by appellant. Although it is true that Hudgins acknowledged his (and the others’) confusion about the serial number, appellant did not claim that the trailer was not an asset of the estate at the November 2008 hearing. There has never been any doubt that Hudgins included that particular sixteen-foot utility trailer, regardless of its actual serial number, in the inventory; that appellant and his erstwhile attorney conceded that this trailer was part of the estate; that the court expressly found that everything listed on the inventory was an asset of the estate; and that the heirs were ordered to deliver all estate property (it was undisputed that the estate property included this trailer) to Hudgins in preparation for the sale. Additionally, Hudgins testified that he had faxed a letter to appellant’s attorney on February 19, 2009, stating that appellant still had a trailer that was an asset of the estate; that he wanted it; and that appellant should deliver it to him or face incarceration, | Appellant knew all along that Hudgins wanted him to turn this particular trailer over to the estate. The circuit court’s finding of contempt was not clearly against a preponderance of the evidence, and we affirm on this point.
In his second point, appellant argues that the fees awarded to the personal representative and the estate’s attorney are excessive and not authorized by Arkansas Code Annotated section 28-48-108 because they are not commensurate with the value of the estate; no complex issues were involved and no extraordinary skill was required; the fees were duplicative; and there was no need for Hudgins to earn an attorney’s rate for his services. Appellant correctly points out that Hudgins did not set forth the actual amount of time (and hourly rate) that he spent on any task and that Hudgins’s statutory fees would have been much less than the actual award. It is also apparent that Hudgins and Biggs charged for performing some services, such as reviewing files with appellant, contemporaneously.
The compensation to the personal representative is governed by Arkansas Code Annotated section 28-48-108(a) (Supp. 2011), which calculates such fees based on a percentage of the personal property passing through the hands of the personal representative. Subsection (b) of the statute allows the probate court to award an additional fee if the personal representative performs such duties with respect to the decedent’s real property, “taking into consideration the nature and extent of the services, the extent and value of the real property, and other relevant circumstances.”
Unless otherwise contracted with the personal representative, heirs, or beneficiaries of | uan estate, compensation for an attorney who performs legal services for the estate is governed by Arkansas Code Annotated section 28-48-108(d)(2) (Supp.2011), based on the total market value of the real and personal property reportable. However, under subsection (d)(3), the court can determine that the schedule of fees can be either excessive or insufficient under the circumstances and allow the attorney a fee commensurate with the value of the legal services rendered. While there is no fixed formula in determining the excessiveness or insufficiency of attorney’s fees, courts should be guided by certain recognized factors including the following: the experience and ability of the attorney; the time and labor required to properly perform the legal services; the amount involved in the case and the results obtained; the novelty and difficulty of the issues; the customary fees for similar legal services in the locality; whether the fee is fixed or contingent; the time limitations imposed by the client; and the likelihood, if apparent to the client, that the employment will preclude other employment by the lawyer. The reviewing court will usually defer to the superior perspective of the trial court in assessing the applicable factors. The value of attorney’s fees rendered to an estate is primarily a factual determination to be made by the probate court, and the appellate court will not reverse its decision where it is not clearly erroneous. A fee award for services rendered to an estate is a matter within the discretion of the trial court, and the appellate court will not |12reverse in the absence of an abuse of discretion.
In this case, the value of the estate is not an accurate measure of the work that was required of the personal representative and the estate’s attorney. As the circuit court explained, it appointed Hudgins, rather than a local bank, as personal representative because of the conflict. Biggs’s statement set forth, in detail, the work required to address appellant’s seemingly endless actions that delayed this proceeding and prevented an orderly distribution of this estate. Appellant filed numerous, unfounded motions and consistently opposed the actions taken by Hud-gins and the other heirs. A year passed before Karl filed his petition for appointment of a personal representative, after it became clear that appellant would not cooperate with the other heirs. This May, it will have been five years since Mr. Shafer died. Since Mr. Shafer’s death, appellant has accused Karl of stealing; removed property without authorization, including all of the family photographs previously sorted and divided by the heirs, telling them “nobody tells me what to do”; added disputed property to his father’s personal property assessment; willfully refused to turn over estate property to the personal representative; been found in contempt and fined on two occasions; and pursued two appeals before this one. The three appellate records contain over 1040 pages. Appellant filed motions for clarification, for reconsideration, for extensive discovery, and to remove the personal representative, prompting Biggs to file a motion for Rule 11 sanctions against appellant and his attorney. The circuit court has been 113forced to conduct numerous hearings. Hudgins, who coordinated a judicial sale of the real and personal property while struggling with appellant’s behavior, testified about the necessity of their services, the lack of duplication, and the huge role that appellant played in delaying the closing of this estate, which the court clearly believed. In light of appellant’s behavior, we cannot say that the trial court abused its discretion in making the awards to Biggs and Hudgins.
In his last point, appellant contends that the trial court’s assessment of a portion of Biggs’s and Hudgins’s fees, as well as Roberta’s travel expenses, associated with the contempt hearing was unreasonable, excessive, and an abuse of discretion. He makes the same arguments as he did in the previous points, and asserts that the trial court held him in “disdain” and was biased against him. The same considerations, discussed above, that support the contempt finding and the general awards of fees to Hudgins and Biggs are also relevant to this point. Although it is apparent that the trial court was very displeased with appellant’s obstructive behavior, we see no evidence of bias. At the April 1, 2011 hearing, Hudgins testified, which the trial court obviously credited, that he and Biggs had scrutinized their billing records as best they could to pinpoint only the work that related to the contempt issue, placing asterisks by those entries on the bills. We also disagree with appellant’s contention that Roberta’s travel expenses were unreasonable, including the inexpensive “thank you” gifts she purchased at Walmart for Karl’s letting her stay at his home. In light of appellant’s obstinate behavior, the trial court did not abuse its discretion in assessing these fees and entering judgment against him.
Affirmed.
HART and HOOFMAN, JJ„ agree.
. On December 9, 2009, Hudgins filed a petition for contempt, alleging that appellant had delivered the trailer but not the plow. The circuit court stated that appellant was "playing games” with the court; found him in contempt again; and ordered him to pay the estate $2500 in fees and expenses. Appellant appealed that order, complaining that the earlier order was not definite in its terms as to which plow he was to deliver. This court affirmed, finding the order to be "crystal clear in its directive.” Shafer v. Estate of Shafer, 2010 Ark. App. 743, at 6, 2010 WL 4345689.
. Shafer v. Estate of Shafer, 2010 Ark. App. 476, 2010 WL 2195997.
. Payne was very ill.
. Williams v. Hall, 98 Ark.App. 90, 250 S.W.3d 581 (2007).
. Shafer v. Estate of Shafer, 2010 Ark. App. 743, at 4, 2010 WL 4345689.
.Id.
. Id. at 5.
. Id.
. Id.
. id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Rice v. Seals, 2010 Ark. App. 393, 377 S.W.3d 416.
. Id.
. Id.
. Id.; accord Nabers v. Estate of Setser, 310 Ark. 194, 833 S.W.2d 375 (1992); Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991); Hooten v. Mobley Law Firm, P.A., 2011 Ark. App. 778, 387 S.W.3d 298; Rollins v. Rollins, 94 Ark.App. 65, 224 S.W.3d 554 (2005). | [
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COURTNEY HUDSON GOODSON, Justice.
|,Appellants Barton Land Services, Inc., and the heirs, successors, and assigns of grantors of a mineral deed appeal the Van Burén County Circuit Court’s grant of summary judgment in favor of appellees, SEECO, Inc., and the heirs, successors, and assigns of the deed’s grantee. |?For reversal, appellants argue that the circuit court erred in granting summary judgment and in finding that the deed conveyed one hundred percent of the grantors’ mineral interest in three tracts of land in Van Burén County. We have jurisdiction pursuant to Arkansas Supreme Court Rule l-2(b)(5) (2012), as this appeal presents a significant issue needing clarification or development of the law. We affirm.
In the 1920s and early 1930s, J.S. Martin, individually and as trustee for a group of apparent investors, leased minerals in the region now known as the Fayetteville Shale. Martin allegedly later attempted to buy an interest in the minerals beneath the land of these surface owners and lessors. In 1927, R.F. Thomas executed two oil-and-gas leases to J.S. Martin. On June 25, 1929, Thomas and his wife, Amy Thomas, as grantors, executed a warranty deed and an oil, gas, and mineral royalty instrument conveying a mineral interest to Martin, as grantee.
The Thomas-Martin mineral deed (“1929 mineral deed”) is a blank-form deed. However, the portion of the mineral deed pertaining to the percentage of the mineral interest to be conveyed was left blank. The language of the deed states in part as follows:
[R.F. Thomas and Amy Thomas] ... do hereby grant, bargain, sell and convey unto the said J.S. Martin Trustee and to his heirs and assigns forever, an undivided -interest in and to all the oil, gas and other minerals, in, under and upon the following described lands lying within the County of Van Burén and State of Arkansas, to-wit: [description of the three tracts] containing 221.35 acres, more or less.
Subsequent to the 1929 mineral deed, Amy Thomas, then a widow, conveyed the surface of the three tracts, excepting from the conveyance “all oil, gas and other minerals,” to Cleatus A. Owens and Lorene Owens and Carl and Viller Stacks. From 1929 to the present, the land | ^passed through many hands.
Appellee SEECO owned oil-and-gas leases and possessed rights, pursuant to the orders of the Arkansas Oil and Gas Commission (“AOGC”), authorizing it to explore for and develop minerals from the three tracts of land in Van Burén County. On January 10, 2011, SEECO filed an interpleader action to determine ownership of the oil, gas, and minerals in the land. In its complaint, SEECO alleged that it owned oil-and-gas leases from the numerous parties and from the integration of mineral interests by the AOGC and that it was the authorized party to explore for and develop minerals from the land. In its prayer for relief, SEECO requested that the circuit court quiet and confirm title in the appellees and that the court find that three limited-warranty deeds, arising from historic mineral-tax forfeitures and issued in 2005 from the Commissioner to the Lewises, be declared void.
After the parties answered SEECO’s complaint, seven motions for summary judgment were filed in the case by separate defendants. Those separate defendants consisted of (1) the “Lott Group,” which included Brian E. Quarles; James J. Restor; Robert Wade Steinbriede; Mary Walcott Steinbriede; Hogeye Investments, LLC; Goldfinger, LLC; Heti, LLC; Melton Oil & Gas, LLC; Cross Creek Resources, LLC; WGC I, LLC; Spawn Group, LLC; BOCHAP, LLC; AHL, LLC; W & W I, LLC; White Hawk Exploration, LLC; BGW I, LLC; Hand-werker Clean Energy, LLC; Harry H. Lott, Jr.; and Renelda Lott; (2) the “Stanton Group,” which included Donald Lea Stanton; Linda Stanton; Janet Stanton Farrar; Cheryl Stanton Hamlin; Alan Stanton; Brian J. Galka; Max Foster; Rachel Galka; Anne Stanton Yust; David Taggart; Jean Stanton; Sandra Stanton Strickland; Daniel Thomas Stanton; James |4Taggart; Marcia Taggart Smoke; and Linda Taggart Nielson; (3) the “Ward Group,” which included Bobby R. Ward; Nina Ward Johnston; Bobby R. Ward, attorney-in-fact for Nina Ward Johnston; Frankie A. Ward Glover; Bobby R. Ward, attorney-in-fact for Frankie A. Ward Glover; John F. Hafner & Associates; and Xisto Properties, LLC; (4) A.J. and Doris Lewis; (5) the “Barton Group,” which included Barton Land Services, Inc.; Martha Thomas; Dee Thomas; Guenvear Ward McKim; Theresa L. Townsend; and Tanya Thomas; and (6) intervenor Fay-etteville Shale Resources, LLC. SEECO also filed a motion for partial summary judgment. In their motions for summary judgment, SEECO and Martin’s heirs, the Lott Group and the Stanton Group, argued that the 1929 mineral deed conveyed one hundred percent of the mineral interest to J.S. Martin. However, the Thomases’ heirs, known as the Ward Group and the Barton Group, and Fayetteville Shale Resources asserted that the deed was void because the Thomases never specified what percentage of the minerals they intended to convey.
On March 27, 2012, the circuit court conducted a hearing on the seven cross-motions for summary judgment and subsequently entered an order, granting summary-judgment motions filed by the Lott Group, the Stanton Group, and SEECO and denying summary-judgment motions filed by the Ward Group, the Lewises, the Barton Group, and Fayetteville Shale. Specifically, the circuit court ruled that the 1929 mineral deed, even with a blank left empty in the granting clause, conveyed one hundred percent of the mineral interest. The court also ruled that the Lew-ises’ tax deeds were invalid and that the Lewises had perfected title to the mineral-interest rights by adverse possession.
[ sOn June 6, 2012, the circuit court entered a final order regarding the ownership of the oil, gas, and minerals. The order states in part as follows:
3. Title in and to 100% of the mineral interests in Tract 1, Tract 3, and Tract 4, including without limitation oil and natural gas, are hereby quieted and confirmed in the heirs, successors, and assigns of J.S. Martin, the grantee of that certain Mineral Deed from R.F. Thomas and Amy Thomas, Grantors, to J.S. Martin Trustee, Grantee
4. Title in and to 100% of the surface estate and the mineral interests in Tract 2, including without limitation oil and natural gas, are hereby quieted and confirmed in Separate Defendants, A.J. Lewis and Doris Lewis.
5. The limited warranty deeds, arising from historic mineral tax forfeitures, issued in 2005 from the Commissioner of State Lands to A.J. Lewis and Doris Lewis, H/W, each for a 1/4 mineral interest, that purport to convey mineral interests in Tracts 1, 2, or 3 ... are void.
Appellants, known as the Barton Group, the Ward Group, and Fayetteville Shale, timely filed a joint notice of appeal and amended joint notice of appeal. Appellees include the Stanton Group as Martin’s heirs and successors in interest, and SEE-CO. From the circuit court’s May 18 and June 6, 2012 orders, appellants now bring their appeal.
For the sole point on appeal, appellants argue that the circuit court erred in granting summary judgment in favor of appel-lees by construing the 1929 mineral deed to convey one hundred percent of the mineral interest to appellees. Specifically, appellants contend that the 1929 mineral deed was void because the description of the interest was so vague that it was unenforceable. In support of their position, appellants emphasize the language stating that the 16grantors conveyed “an undivided -interest in and to all of the oil, gas and other minerals” without filling in the blank and to specify the amount of interest to be conveyed. Further, appellants assert that this court should rely on Arkansas caselaw in its review. Appellants maintain that the circuit court erred in relying on Beaton v. Pure Oil Co., 483 P.2d 1145 (Okla.1971), as the basis for granting summary judgment.
In response, SEECO argues that the circuit court properly found that the 1929 mineral deed effectively conveyed one hundred percent of the mineral interest at issue. SEECO asserts that Arkansas authority supports the circuit court’s interpretation of the 1929 mineral deed and that the circuit court properly found the reasoning of Beaton to be persuasive. Similarly, the Stanton Group argues that the circuit court did not err in its ruling because the 1929 mineral deed was not void and contained a certain description of the interest to be conveyed; that Arkansas law supported the circuit court’s decision; that the circuit court properly relied on Beaton; and that subsequent oil-and-gas leases did not impact the scope of the 1929 mineral-interest conveyance.
Upon reviewing a circuit court’s decision on a summary-judgment motion, we typically would examine the record to determine if genuine issues of material fact exist. Progressive Halcyon Ins. v. Saldivar, 2013 Ark. 69, 2013 WL 655234. However, in the present case, which does not involve the question of whether factual issues exist but rather the application of legal rules, we simply determine whether appellees were entitled to judgment as a matter of law. Schultz v. Butterball, LLC, 2012 Ark. 163, 402 S.W.3d 61.
This case involves the construction of a mineral deed purporting to convey “an |7undivided-interest” in the Thomases’ mineral rights to Martin. The basic rule in the construction of deeds, as with other contracts, is to ascertain and give effect to the real intention of the parties, particularly of the grantor, as expressed by the language of the deed when not contrary to settled principles of law and rules of property. Jenkins v. Simmons, 241 Ark. 242, 407 S.W.2d 105 (1966). We examine the deed from its four corners for the purpose of ascertaining that intent from the language employed. Chicago, R.I. & P.R. Co. v. Olson, 222 Ark. 828, 262 S.W.2d 882 (1953). Further, we gather the intention of the parties, not from some particular clause, but from the whole context of the agreement. Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974). Every part of the deed should be harmonized and reconciled so that all may stand together and none be rejected. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W.2d 439 (1973). We will not resort to rules of construction when a deed is clear and contains no ambiguities, but only when the language of the deed is ambiguous, uncertain, or doubtful. Coffelt v. Decatur Sch. Dist., 212 Ark. 743, 208 S.W.2d 1 (1948).
In Arkansas, we recognize a presumption that a grantor intends to convey his entire interest by his deed, and such is the effect of a deed which does not limit the interest conveyed. Patterson v. Miller, 154 Ark. 124, 241 S.W. 875 (1922). A grantor may convey a particular interest, and, when this is done, only that interest is conveyed, and the grantor reserves to himself all he has not conveyed. Id. (citing Cocks v. Simmons, 55 Ark. 104, 17 S.W. 594 (1891)). In Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S.W. 218 (1913), this court stated that in order to convey legal title, it was absolutely necessary that there be words ^expressing the fact of a sale or transfer of the title, such as the words “grant, bargain and sell.” These longstanding principles in Arkansas are reflected in the following applicable statutes. Arkansas Code Annotated section 18-12-102(b) (Repl.2003) provides in pertinent part:
The words, “grant, bargain and sell” shall be an express covenant to the grantee, his or her heirs, and assigns that the grantor is seized of an indefeasible estate in fee simple ... unless limited by express words in the deed.
Similarly, Arkansas Code Annotated section 18-12-105 (Repl.2003) states that “all deeds shall be construed to convey a complete estate of inheritance in fee simple unless expressly limited by appropriate words in the deed.”
In construing the 1929 mineral deed, we interpret the foregoing statutes. The basic rule of statutory interpretation is to give effect to the intent of the legislature. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words them ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Id.
In the present case, the language of sections 18-12-102 and 18-12-105 dictate that the 1929 mineral deed conveyed the Thomases’ entire mineral interest to Martin. Section 18-12-102(b) states that the term “ ‘grant, bargain and sell’ shall be an express covenant to the grantee, his or her heirs, and assigns that the grantor is seized of an indefeasible estate in fee simple ... unless limited by express words in the deed.” We have long held that a “fee liisimple,” as referenced in these statutes, is the greatest estate or interest owned by a person to convey. Moody v. Walker, 3 Ark. 147 (1840). Similarly, section 18-12-105 provides that “all deeds shall be construed to convey a complete estate of inheritance in fee simple unless expressly limited by appropriate words in the deed.” This statutory language requires an interpretation that the Thomases conveyed one hundred percent of their mineral interest to Martin. Further, the 1929 mineral deed contains no language that appears to limit the Thomases’ conveyance to Martin as a complete estate in fee simple. This conclusion comports with our caselaw that a grantor intends to convey his entire interest by his deed when the grantor does not limit the interest conveyed. Patterson, supra. Thus, we conclude that sections 18-12-102 and 18-12-105 support the circuit court’s ruling that the Thomases conveyed their entire mineral interest to Martin.
On appeal, appellants assert that the circuit court erroneously relied on Beaton, supra, for the proposition that the 1929 mineral deed validly conveyed to J.S. Martin a one hundred percent mineral interest. In Beaton, the Oklahoma Supreme Court was presented with the question of whether an “unfilled blank” in a mineral warranty deed negated the validity of the conveyance for lack of a written description. Citing an Oklahoma statute, the Oklahoma Supreme Court held that the warranty deed at issue purported to convey an undivided interest of four grantors. The court stated as follows:
The mineral warranty deed conveys whatever interest the grantors own unless limited or reserved. Because the grantors did not fill in a blank in the deed pertaining to their interest only, does not mean that they did not convey their entire interest. It is more persuasive to conclude from the fact of conveyance that they intended to convey all of their undivided interest, rather than striking down an otherwise valid conveyance.
Beaton, 483 P.2d at 1147. Additionally, when considering the intent of the parties, the court reviewed the applicable statute and the additional qualifying language, “containing 40 acres,” in the description clause. Based on these factors, the Oklahoma court held that the grantors conveyed all of their interest in the minerals in the described forty-acre tract. Id. at 1148. Here, appellants attempt to distinguish Beaton, supra, by arguing that the Oklahoma Supreme Court relied on an Oklahoma statute that allows for the conveyance “to the grantee ... the whole interest in the grantor.” Beaton, supra (citing 16 O.S. 1961, section 19). However, like the Oklahoma court, we hold that the language of the foregoing Arkansas statutes, as well as our caselaw, suggest that the 1929 mineral deed is unambiguous and conveys the Thomases’ entire mineral interest to Martin.
Further, appellants, citing W.T. Carter & Brothers v. Ewers, 133 Tex. 616, 131 S.W.2d 86 (1939), in support of their argument, assert that the 1929 mineral deed is void for uncertainty. Unlike the deed in Carter, supra, the 1929 mineral deed in the case at bar is a blank-form deed and contains an adequate metes-and-bounds description of the property interest conveyed. Upon our review, we conclude that the Carter case is inapplicable to the case at bar. Appellants also claim that the 1929 mineral deed is void because various items are missing from the deed. Specifically, they list that (1) Thomas failed to write his name as the grantor; (2) he inserted “8th” and “March” in the blanks for the grantors; (3) he provided two different names for Martin as J.S. Martin Trustee and J.S. Martin; (4) he failed to state the name of the grantee in the habendum clause; (5) the deed states, “undivided-interest”; and (6) Thomas left thirteen spaces blank. With this argument, we are mindful of our well-established rule that|nthe intention of the parties is to be gathered, not from the particular words and phrases, but from the whole context of the agreement. Asbury Automotive Used Car Ctr. v. Brosh, 2009 Ark. 111, 314 S.W.3d 275. Here, these alleged deficiencies contained in the 1929 mineral deed do not overcome the grantors’ intent to convey one hundred percent of their mineral interest, and the thirteen blank spaces in the deed do not undermine that intent. Thus, these alleged deficiencies do not render the 1929 mineral deed void for uncertainty. For these reasons, we hold as a matter of law that the circuit court did not err in granting summary judgment.
Lastly, appellants note that a subsequent 1930 warranty deed, listing Martin as the grantor and Ethel Dora Lee, his secretary, as the grantee, references two 1927 oil-and-gas leases between the Thom-ases and Martin. Appellants argue that, if the Thomases had conveyed their full mineral interest to Martin in the 1929 mineral deed, then the 1930 warranty deed would not have been subject to these 1927 oil- and-gas leases.
We have stated that because a deed is the final expression of the parties’ agreement, it cannot be varied or modified by parol evidence. Thackston v. Farm Bureau Lumber Corp., 212 Ark. 47, 204 S.W.2d 897 (1947). If a deed is clear and unambiguous, then it cannot be set aside by parol proof of the acts of the parties, either before or after the conveyance of the deed. Higginbottom v. Higginbottom, 247 Ark. 694, 447 S.W.2d 149 (1969). Here, given our conclusion that the 1929 mineral deed is unambiguous, we hold that the circuit court did not err by refusing to consider the parol evidence of the subsequent 1930 Martin-Lee deed. Accordingly, we affirm the circuit court’s ruling.
Affirmed.
BAKER, J., not participating.
. While they do not specify which motion for summary judgment they are appealing, appellants can only challenge the circuit court’s grant of the motions for summary judgment filed by the Lott Group, the Stanton Group, and SEECO. See Jaggers v. Zolliecoffer, 290 Ark. 250, 718 S.W.2d 441 (1986). The Lott Group did not file a brief with this court. The Stanton Group and SEECO filed separate ap-pellees' briefs. | [
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PAUL E. DANIELSON, Justice.
petitioner James Thompson petitions this court for a writ of prohibition or, in the alternative, writ of certiorari to respondent, the Honorable Gordon W. “Mack” McCain, Jr. He contends that (1) the circuit court erred in failing to consider certain evidence when it dismissed his motion to set aside a property-settlement agreement between him and his former wife, Carolyn Brown; (2) the circuit court abused its discretion and acted in excess of its jurisdiction by finding him in contempt and sanctioning him, where the agreement was merely made a part of their divorce decree and did not merge into the decree itself. Because neither writ will lie, we deny the petition.
According to the partial record before us, a decree of divorce was entered on July 14, 2005, granting Carolyn a divorce from James. A property-settlement agreement between the | ¿parties, dated June 3 and filed June 6, 2005, was approved and “made a part of’ the decree. The agreement specified that, beginning July 1, 2005, James would pay Carolyn spousal support in the sum of $2,000 per month until either’s death or Carolyn’s remarriage. It further provided that, by agreement of the parties, the agreement would “be incorporated in but not merged into any Decree of Divorce.”
On February 2, 2010, Carolyn filed a motion for citation in the circuit court. The motion asserted that James had failed to comply with the divorce decree by failing to pay her spousal support in the sum of $109,000 as required by their agreement, and she requested that James be ordered to show cause why he should not be held in contempt. An order to show cause was filed, and James was served.
James responded to the motion and counterclaimed. While admitting that he signed the property-settlement agreement, James claimed that his signature was made under compulsion and that no voluntary consent had been given. He further counterclaimed, asserting acts by Carolyn, which he claimed were intended to cause coercion and undue influence to induce him to sign the agreement. James contended that he did not read the divorce decree or the property-settlement agreement, did not receive a copy, and was unaware that spousal support had been awarded until he was served with Carolyn’s motion for citation. He therefore requested that the motion be dismissed and that the agreement be found void.
An order of the circuit court was filed on October 1, 2010. The order found that in the final hearing of the parties’ divorce action, James appeared in person and tes- tiffed under lsoath “that he had executed the parties’ Property Settlement Agreement freely and voluntarily [and] understood the obligations imposed upon him therein, including the award of alimony.” It further found that a review of the pleadings in the divorce matter and the transcript of the hearing therein revealed that, “as a matter of law, [James] was acting without coercion or undue influence, and his motion to set aside the Decree should be denied.” The order then dismissed James’s counterclaim with prejudice.
On December 6, 2010, James filed a motion to set aside the property-settlement agreement, asserting that the agreement was unconscionable and that his monthly take-home pay was only $2,400. The circuit court subsequently entered its order, finding James in contempt for the nonpayment of alimony. The circuit court ordered James to serve three days in the Pope County Detention Center, with two days’ suspended, conditioned on his appearance at the Center at a designated time and date and serving a specific period of confinement. The circuit court further found that, upon James’s failure to appear to serve his period of confinement, a body attachment would issue for his arrest. It then noted that “[a]ll remaining rulings of the Court relating to purging [James’s] contempt shall be set forth in a separate order.”
Finally, on January 24, 2011, the circuit court entered its order finding James in |4contempt. The order noted that the circuit court had paid careful attention to the demeanor and appearance of the witnesses “in arriving at its findings of fact and determination of the credibility of the witnesses.” It then found James in contempt for his “willful failure to pay alimony accruing on or after September 1, 2005,” and found him delinquent in the amount of $131,000. The circuit court denied James’s motion to strike that portion of the property-settlement agreement concerning alimony and found that James’s testimony was not credible:
The testimony of the Defendant concerning his claims that he was unaware that the alimony term was not modifiable, that he was in an impaired mental condition, and/or financially insolvent and unable to hire counsel at the time of the execution of the Property Settlement Agreement are not credible. The Defendant clearly expressed his intent to obtain approval of the agreement at the July 14, 2005, hearing and the Court would not have approved the agreement unless fully satisfied that the Defendant appeared fully coherent and ready, without hesitation, to have the parties’ agreement approved and the Decree of Divorce entered.
The circuit court further noted that James had made alimony payments prior to and immediately following the July 14, 2005 hearing and found that his actions in doing so further controverted his claim that he was either unaware of the obligation or that he was financially insolvent.
As a contempt sanction, the circuit court directed James to pay an attorney’s fee of $2,500 and the costs of the action, in the amount of $100. In addition, the circuit court ordered that James “shall additionally serve three days in the Pope County Detention Center with one day suspended as set forth” in the circuit court’s earlier order. Finally, the circuit court set forth a payment schedule for the back support. On May 9, 2011, the circuit court, upon Carolyn’s motion and amended motion for body attachment, entered an order directing the Pope County Sheriffs Office to take and hold James until such time as he posted a cash |5bond in the amount of $3,600. The record reflects no appeal having been taken from any of the circuit court’s orders.
On January 24, 2013, James filed with this court the instant petition for writ of prohibition and/or certiorari, which we ordered submitted as a case and briefed. In his brief, James argues that the circuit court failed to properly consider evidence that he submitted to demonstrate his coercion, erred in dismissing his counterclaim, and erred in failing to void the property-settlement agreement. He claims that because the circuit court’s orders do not reference his evidence, it is apparent from the face of the record that the circuit court did not consider his evidence. He contends this was error on the circuit court’s part because, based on that evidence, the property-settlement agreement should have been found to be void. James further asserts that the circuit court erred in its finding of contempt and its award of sanctions. Finally, James avers, the circuit court erred in issuing the body attachment, where his attorney was served with notice instead of him.
The State, on behalf of the circuit court and Judge McCain, counters that this court should deny the requested writs, as James’s proper remedy was by an appeal of the circuit court’s orders. It further asserts that a writ of prohibition should not issue, because the writ cannot be invoked to correct erroneous actions already taken. In addition, the State contends, a writ of certiorari would be improper, where it is not apparent from the face of the record that the circuit court grossly abused its discretion, the circuit court did not lack jurisdiction or exceed it, nor were the proceedings erroneous on the face of the record.
In the instant case, James seeks a writ of prohibition or, in the alternative, a writ of | (¡certiorari. However, neither writ will lie. First, we have held that a writ of prohibition is extraordinary relief that is appropriate only when the circuit court is wholly without jurisdiction. See White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. The writ is appropriate only when there is no other remedy, such as an appeal, available. See id. However, we have further explained that the writ of prohibition cannot be invoked to correct an order already entered. See id. In those instances, a writ of certiorari is the appropriate vehicle. See id.
Each of the allegations in James’s petition concerns orders already entered by the circuit court. The circuit court has already acted on Carolyn’s motion for citation, James’s counterclaim, his motion to set aside the property-settlement agreement, and her motion for body attachment and has already held James in contempt. Because the circuit court has done so, a writ of prohibition does not lie. See, e.g., Patsy Simmons Ltd. P’ship v. Finch, 2010 Ark. 451, 370 S.W.3d 257.
We turn then to whether a writ of certiorari is appropriate. A writ of certiorari is extraordinary relief. See Boyd v. Sharp Cnty. Circuit Court, 368 Ark. 566, 247 S.W.3d 864 (2007). In determining its application, we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to review a circuit court’s discretionary authority. See id. Two requirements must be satisfied in order for this court to grant a writ of certiorari. See id. First, a writ of certiorari lies only when (1) it is appar ent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. See id. The second requirement is that 17there can be no other adequate remedy but for the writ of certiorari. See id.
We hold that the writ of certiorari does not lie. This court has explained that certiorari is available in the exercise of this court’s superintending control over a tribunal that is proceeding illegally where no other adequate mode of review has been provided. See Beverly Enters.-Arkansas, Inc. v. Circuit Court of Independence Cnty., 367 Ark. 13, 238 S.W.3d 108 (2006). We have repeatedly held that certiorari will lie only when there is no other adequate remedy, such as an appeal, available to a party. See Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008). It is axiomatic that where an appeal is available, another adequate remedy exists. See, e.g., Manila Sch. Disk No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004).
Here, James had an adequate remedy in that he could have appealed the circuit court’s orders. Merely because he failed to appeal in no way warrants the issuance of the writ. This court has been steadfast in holding that certiorari may not be used as a substitute for appeal. See Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003). Moreover, certiorari will not be used for the correction of mere error where the right of appeal has been lost due to the fault of the petitioner. See Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988). For these reasons, we deny the instant petition.
Denied.
. A writ of prohibition lies against the circuit court and not against an individual judge. See Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). We therefore will treat the prohibition petition as if it had been filed against the Pope County Circuit Court.
. The circuit court’s order further indicated that a hearing was held on James's counterclaim on August 26, 2010, with both James and Carolyn appearing with counsel; however, a transcript of that hearing is not included in the record filed with this court.
. The order also indicated that a hearing was held on January 6, 2011, with both James and Carolyn appearing with counsel; however, a transcript of that hearing is not included in the instant record. | [
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ROBERT J. GLADWIN, Chief Judge.
11 Sheryl Norris appeals the Saline County Circuit Court’s order of May 23, 2013, dismissing her motion to set aside the April 9, 2010 order of distribution filed In the Matter of the Estate of Joseph Earl Patterson, deceased. On appeal, Norris claims that the circuit court erred by granting the dismissal. We affirm.
Norris is the mother of decedent Joseph Earl Patterson. Patterson was the alleged father of K.P., born out of wedlock on October 31, 2007. On December 18, 2009, and subsequent to Patterson’s death, Norris filed a petition to establish paternity and for grandparent visitation against ap-pellee Ashley Davis, mother to K.P.
| gin a family-settlement agreement (FSA) signed on April 6, 2010, a list of pending litigation, involving the parties herein and others, was set forth. Included in the list was the Pulaski County Circuit Court case of Sheryl S. Norris v. Ashley Davis, described as the “Davis Visitation Case.” The FSA distributed the assets of the Joseph Earl Patterson Estate, including allowing distribution of one-fourth of the balance to the Estate of K.P. An order approving' the FSA was filed on April 9, 2010. In that order, the circuit court found that K.P. was an heir at law of Joseph Earl Patterson.
In her April 3, 2012 “Motion to Set Aside Order Approving Settlement and Objection to Distribution,” Norris alleged that since the parties signed the FSA, she had discovered that K.P. was not the natural child of her son, Joseph Earl Patterson. She further claimed that the child’s mother, appellee, had made false representations to her, claiming that K.P. was Joseph Earl Patterson’s child. Norris claimed that, based on that representation, she signed the FSA. The motion asked that the order and FSA be vacated pursuant to Arkansas Rule of Civil Procedure 60(c)(4), for misrepresentation or fraud. The motion alleged that K.P. had been DNA tested and found to be the natural child of another man, who is now under a child-support order benefitting K.P. Norris claimed that it was unfair to permit K.P. to retain funds fraudulently obtained by the false representations of her mother. On August 27, 2012, Norris filed requests for admissions from Davis.
In her response to Norris’s motion to set aside the order of distribution, Davis claimed that Norris’s allegations contradicted the letter and spirit of the FSA and that the petition was barred by the following: the statute of frauds; the parol-evi-dence rule; waiver; res judicata; ^judicial estoppel; Arkansas Rules of Civil Procedure 59 and 60; collateral estoppel; promissory estoppel; detrimental reliance; accord and satisfaction; release; payment; merger; failure to tender value received as a condition precedent to seeking rescission; laches; the statute of limitations and finality of paternity; mootness; improper joinder; failure of process; lack of standing; and public policy.
She recited portions of the FSA, which states that “they have entered into this Agreement without reliance on any statement or representation of any other Party ...” and acknowledges that the terms of the agreement were negotiated between the parties. Davis asserted that the question of K.P.’s paternity was the subject of a paternity action filed in Pulaski County, which was resolved by the FSA. She claimed that the paternity action was dismissed as part of the settlement.
On October 31, 2012, Davis responded to Norris’s requests for admissions, objecting to six of the fourteen admissions requests. On March 8, 2013, Norris filed a motion for order compelling discovery, alleging that Davis had not responded satisfactorily to her interrogatories and requests for production of documents promulgated on January 8, 2013. The attached answers contained Davis’s objections on the basis of numerosity and their being overly burdensome. Further, Davis claimed that the interrogatories were barred by the agreement of the parties. She alleged that the interrogatories were imposed to harass and annoy. Davis also objected on the basis that Norris’s discovery was intended to overturn legal proceedings and compromises made years ago and were, therefore, barred by legal and ^equitable estoppel, laches, waiver, compromise, payment, accord and satisfaction, res judicata, collateral estoppel, and judicial estoppel.
On March 19, 2013, Davis filed a motion to dismiss Norris’s petition to vacate, arguing that the newly discovered evidence of the child’s paternity could have been discovered prior to the FSA. Davis further alleged all of the defenses raised in her earlier pleadings. Attached to Davis’s motion were pleadings filed in the Pulaski County Circuit Court in the paternity matter filed by Norris.
After a hearing and reviewing the pleadings and law, the circuit court issued a letter opinion on May 16, 2013, finding that res judicata was the most persuasive reason for dismissing Norris’s petition. The circuit court stated, “There is nothing in the family settlement agreement that persuades the Court that [KP.’s paternity] was not at issue, and that it was not a matter that the parties decided to settle.” An order was filed on May 23, 2013, dismissing the petition. This appeal timely followed.
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. Chiodini v. Lock, 2014 Ark. App. 219, 2014 WL 1396652. Even though appellant contends that the instant case was not dismissed on summary judgment, but on a motion to dismiss, when a trial court is presented with extraneous materials outside the pleadings and does not exclude those materials, a motion to dismiss under Arkansas Rule of Civil Procedure 12(b)(6) shall be treated as one for summary judgment, King v. French, 2011 Ark. App. 257, 383 S.W.3d 426, Rand the evidence viewed in the light most favorable to the party opposing the motion. Watkins v. S. Farm Bureau Cas. Ins. Co., 2009 Ark. App. 693, 370 S.W.3d 848.
However, when the issues on appeal do not involve factual questions but rather the application of a legal doctrine such as res judicata, we simply determine whether the appellees were entitled to judgment as a matter of law. Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark., Inc., 2010 Ark. App. 279, 373 S.W.3d 907 (citing Linder v. Ark. Midstream Gas Servs. Corp., 2010 Ark. 117, 362 S.W.3d 889; Ruth R. Remmel Revocable Trust v. Regions Fin. Corp., 369 Ark. 392, 255 S.W.3d 453 (2007)). A circuit judge’s conclusion on a matter of law is reviewed by an appellate court de novo and given no deference on appeal. Linder, supra.
The Arkansas Supreme Court has explained res judicata as follows:
Res judicata has two facets, one being issue preclusion, or collateral estoppel, and the other being claim preclusion. Mason v. State, 361 Ark. 357, 206 S.W.3d 869 (2005). The term, res judi-cata, has sometimes been used to refer only to claim preclusion; however, res judicata encompasses both issue and claim-preclusion. Id. Under claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action. Id. Res judicata bars not only the reliti-gation of claims that were actually litigated in the first suit but also those that could have been litigated, Jayel Corp. v. Cochran, 366 Ark. 175, 284 S.W.3d 278 (2006).
... When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. [Riverdale Dev. Co. v. Ruffin Bldg. Sys., Inc., 356⅝ Ark. 90, 146 S.W.3d 852 (2004) ]. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Id.
Remmel Revocable Trust, 369 Ark. at 402-OS, 255 S.W.3d at 461.
IfiNorris contends that the circuit court erred by granting Davis’s motion to dismiss. She argues that she filed her motion to set aside the order approving settlement, relying on the circuit court’s authority to vacate a judgment after ninety days for fraud practiced by the party who obtained the judgment. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992); Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990) (probate court may vacate an order obtained by fraud). She contends that she specifically pled that the minor child had been DNA tested and is the natural child of another man, who pays child support for the child. She maintains that it is unfair to permit the child to retain funds fraudulently obtained by the false representations of the child’s mother and that, clearly, neither she nor the circuit court would have approved settlement to a minor who was not the natural child of Joseph Patterson.
She asserts that the discovery she propounded was in an effort to obtain information to develop “the time line of what [Davis] knew about the paternity and when she knew it.” She asserts that she argued to the circuit court at the hearing on the motion to dismiss that discovery was essential for defending the motion to dismiss. She cites several summary-judgment cases for the proposition that a plaintiff is entitled to the benefit of adequate discovery when responding to a motion for summary judgment. Pledger v. Carrick, 362 Ark. 182, 208 S.W.3d 100 (2005); First Nat'l Bank v. Newport Hosp. & Clinic, Inc., 281 Ark. 332, 663 S.W.2d 742 (1984); Locke v. Cont’l Cas. Co., 2011 Ark. App. 653, 2011 WL 5253036; RWR Props., Inc. v. Young, 2009 Ark. App. 332, 308 S.W.3d 183; Neal v. Farris, 101 Ark.App. 375, 278 S.W.3d 129 (2008). Norris argues that the cases on summary judgment are analogous to her case and [ 7alleges that the claims she made in her petition were as specific as possible without the benefit of discovery.
Davis responds that the circuit court did not err in granting her motion to dismiss. She contends that when the FSA was signed, there were four different actions pending that had been filed by Norris, all arising from the same facts. One of those cases was the paternity action regarding K.P. filed in Pulaski County. By virtue of the FSA, each of these four cases were resolved. However, in her motion to set aside the order of distribution and FSA, Norris claimed that K.P. was not the child of her son.
Davis contends that the FSA provided for numerous items of consideration, including resolution of two probate estates and distribution of part of the estate of Joseph Patterson to Norris and other “heirs.” Norris also received resolution of her claims for grandparent visitation with the three minors she claimed to be her grandchildren, including K.P. Davis argues that the FSA is a complete, integrated document that was prepared and edited by three sets of attorneys, including Norris’s. Davis contends that the probate court expressly ruled in 2010 that K.P. was an “heir” based on the negotiated FSA that proclaimed her to be an heir.
Davis argues that, pursuant to res judi-cata, Norris is precluded from relief. We agree, relying on the cases cited by Davis. In Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007), our supreme court held that Rule 60(c)(4) could not be used as a means to modify a divorce decree establishing paternity. Further, in Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999), our supreme court held that res judicata prevented 18reIitigation of paternity. Thus, as a matter of law, we affirm the circuit court’s application of res judicata and dismissal of Norris’s motion to vacate, as the issue of KP.’s paternity and heirship was established by the FSA and order of distribution.
Affirmed.
PITTMAN and WYNNE, JJ., agree.
. There were two children involved in the petition to establish paternity, but only the issue of K.P.’s paternity is pertinent to the instant case. | [
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JOHN B. ROBBINS, Judge.
| ¶ This is the third time appellant Daniel Dorsey’s appeal from the revocation of his suspended imposition of sentence and resulting ten-year prison sentence has come before this court. In the first appeal, Dorsey v. State, 2010 Ark. App. 742, 2010 WL 4345681, appellant’s counsel filed a no-merit brief, but we held that the brief was not in compliance with Arkansas Su preme Court Rules 4-2 and 4-8. Accordingly, we ordered appellant’s counsel to file a substituted brief containing all adverse rulings and a substituted addendum containing all relevant pleadings and any additional documents necessary on appeal. Mr. Dorsey’s counsel subsequently filed a substituted brief, but we again ordered re-briefing because the brief was still not in compliance with Rule 4-3(k)(l) because it failed to contain and adequately discuss all adverse rulings. See Dorsey v. State, 2011 Ark. App. 368, 2011 WL 1896718. After we delivered our second opinion, Mr. Dorsey’s counsel failed to timely file a substituted brief as ordered, nor did he file a 12motion for extension of time to file the brief. Consequently, we issued a per cu-riam opinion, Dorsey v. State, 2011 Ark. App. 622, 2011 WL 4824322, wherein we removed appellant’s original counsel and appointed substituted counsel so the appeal was no longer stalled.
In the third appeal now before this court, Mr. Dorsey’s present counsel has submitted a merit brief. Mr. Dorsey argues on appeal that the trial court erred in denying his motion for directed verdict. Although couched in those terms, a review of both the record and appellant’s brief demonstrates that Mr. Dorsey is actually asking this court to reverse and dismiss the judgment arising from his revocation because the record fails to show that he entered a voluntary guilty plea to the charge for which he received a suspended imposition of sentence. We agree, and we reverse.
On July 7,1998, the trial court entered a judgment and commitment order reflecting a conviction for Class C felony possession of a controlled substance and a ten-year prison sentence. That judgment also showed that Mr. Dorsey entered negotiated guilty pleas to three Class D felonies: theft by receiving in case # 98-362, possession of a prohibited weapon in case # 98-363, and felon in possession of a firearm in case # 98-364. For each of the Class D felonies, Mr. Dorsey received a six-year suspended imposition of sentence. The judgment also reflects a negotiated guilty plea in case # 98-365 to possession of a controlled substance with intent to deliver, a Class Y felony, for which Mr. Dorsey received a ten-year suspended imposition of sentence. It is this conviction and subsequent revocation that is at issue in this appeal.
| sAfter the July 7, 1998, judgment was entered, Mr. Dorsey served some of his ten-year prison sentence for the Class C felony conviction, and then he was paroled. Mr. Dorsey was arrested for new crimes on June 17, 2002, his parole was revoked based on the conduct that led to his arrest, and he was reincarcerated. The conduct that led to his arrest likewise was the basis for a petition to revoke the three six-year suspended sentences for the Class D felonies to which he previously pleaded guilty. After appellant was again released from prison, a revocation hearing was held and the trial court revoked the three six-year suspended sentences, and sentenced him to three concurrent six-year prison terms. Mr. Dorsey appealed from those revocations, and we affirmed the revocations and sentences in an unpublished opinion, Dorsey v. State, CACR03-1209, 2004 WL 2239813 (Ark.App. Oct. 6, 2004). Since then, Mr. Dorsey was again released from prison.
On August 28, 2007, the State filed a petition to revoke the ten-year suspended imposition of sentence associated with the Class Y felony offense of possession of a controlled substance with intent to deliver. The petition alleged multiple violations of Mr. Dorsey’s conditions, including selling cocaine on three occasions in March 2007. After a revocation hearing, the trial court found that Mr. Dorsey violated the conditions of his suspension by engaging in the sale of drugs. The trial court revoked Mr. Dorsey’s suspended sentence and entered a judgment and commitment order sentencing him to ten years in prison, which Mr. Dorsey now appeals.
At the revocation hearing, the State produced a video recording demonstrating that, on March 5, 2007, Mr. Dorsey exchanged cocaine for cash with an undercover officer. |4Mr. Dorsey testified on his own behalf and denied selling any drugs, indicating that the person captured on the video recording was his twin brother. Moreover, Mr. Dorsey maintained in his testimony that when he pleaded guilty in July 1998, he was only pleading guilty to the three Class D felonies, and that he did not plead guilty to Class Y felony possession of a controlled substance with intent to deliver. He stated that the Class Y felony charge was supposed to have been nolle prossed and that “I pled guilty to three charges to get one dismissed.”
Both prior to and at the close of the revocation hearing, Mr. Dorsey moved to dismiss the revocation petition on the basis that there was no record of him pleading guilty to Class Y felony possession of a controlled substance with intent to deliver in case # 98-365. The trial court denied these motions to dismiss, and in this appeal Mr. Dorsey argues that this was error.
The exhibits before the trial court showed that, on July 7, 1998, Mr. Dorsey signed a written guilty-plea statement listing case # s 98-362, 98-363, and 98-364, wherein he pleaded guilty to those three Class D felonies. However, the guilty plea statement contained no reference to case # 98-365 and did not indicate that Mr. Dorsey pleaded guilty to Class Y felony possession of a controlled substance with intent to deliver. A plea and sentence recommendation was signed by the prosecutor and Mr. Dorsey on the same day. However, that document provided that Mr. Dorsey was pleading guilty only to the three Class D felonies, for which the prosecutor recommended six-year suspensions. The plea-and-sentence recommendation referenced case # s 98-362, 98-363, and 98-364 in the heading of |fithe document, and the provisions of the recommendation included a $450 public-defender fee and the handwritten notation, “Also includes payment for # 98-365.” Two ledger sheets were introduced,, and the first ledger sheet contained charges and balances against Mr. Dorsey that had accrued over the years and documented that the original revocation hearing date of November 19, 2007, had been continued until January 8, 2008. However, that ledger sheet only listed case # s 98-362, 98-363, and 98-364. The second ledger sheet was identical to the first except that it contained a list of events occurring after January 8, 2008, and on this ledger sheet case # 98-365 had been added.
On appeal, Mr. Dorsey contends that the record does not demonstrate that the trial court complied with Arkansas Rules of Criminal Procedure 24.4, 24.5, 24.6, or 24.7, or that he actually pleaded guilty in case # 98-365. These rules provide, in pertinent part:
Rule 24.2. Advice by court.
The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally, informing him of and determining that he understands:
(a) the nature of the charge;
(b) the mandatory minimum sentence, if any, on the charge;
(c) the maximum possible sentence on the charge, including that possible from consecutive sentenees[.]
Rule 24.5. Determining voluntariness of plea.
The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated. The court shall also address the defendant personally and determine whether any force or threats, or any promises apart from a plea agreement, were used to induce the plea.
|fiRule 24.6. Determining accuracy of plea.
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.
Rule 24.7. Record of proceedings.
The court shall cause a verbatim record of the proceedings at which a defendant enters a plea of guilty or nolo contendere to be made and preserved.
It is undisputed that there was no available record of any proceedings where Mr. Dorsey pleaded guilty.
Mr. Dorsey relies on Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982), where the supreme court held that in the absence of the record required by Rule 24.7, the State has the burden of proving the plea was voluntarily and intelligently entered. The supreme court stated that the trial court’s findings on this issue will not be reversed unless clearly against the preponderance of the evidence. Id. Furthermore, the supreme court held that compliance with Rule 24.5, which requires that the trial judge himself ascertain whether a plea of guilty is voluntary, and Rule 24.6, which requires that a factual basis for the plea be established, are mandatory. Id. It is the duty and responsibility of the trial court to determine beyond a doubt that a plea of guilty is voluntary, and in order to do so, it should inquire of the defendant personally, substantial compliance being sufficient. Id.
In McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986), the supreme court held that before accepting a plea of guilty the trial court must first address the defendant personally, informing him of and determining that he understands the nature of the charge and, among other things, the mandatory minimum and possible maximum sentence. The 17trial court shall not enter a judgment upon a plea of guilty without making such inquiry as will establish that there is a factual basis for the plea. Id. In McDaniel, the supreme court held that where none of the information required to be conveyed to an accused was conveyed by addressing the defendant personally, and the court did not establish a factual basis for the plea, the case must be reversed. It is not enough that the prosecutor recite into the record the allegations against the accused; the trial court must ascertain from the accused whether he is pleading guilty because he believes he is in fact guilty. Id.
In Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986), the supreme court found that the trial court substantially complied with Rule 24.6 where the trial court informed the defendant of the consequences of pleading guilty, inquired whether the plea was procured by threats or coercion, and asked the defendant if there was a factual basis for the plea. The supreme court also found sufficient compliance with the applicable rules of criminal procedure in Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979), where the record clearly supported the finding that the plea of guilty was not involuntary. The record in that case showed that the defendant acknowledged both in writing and in open court that his plea was voluntary and that he was, in fact, guilty, and his attorney certified that he had carefully gone over the defendant’s written plea with him, that he apparently understood it, and that his guilty plea was consistent with the facts related by the defendant. During the plea hearing in Simmons, upon questioning by the trial court, the defendant acknowledged in open court that he signed and understood the plea statement, that he had no questions whatsoever about the plea statement, and that he was pleading guilty because he was guilty.
|sIn the case at bar, we hold that the trial court’s finding that Mr. Dorsey voluntarily pleaded guilty to Class Y felony possession of .a controlled substance with intent to deliver was clearly against the preponderance of the evidence. Nor was there any showing by the State that there was a factual basis for such a plea. The guilty plea statement signed by Mr. Dorsey indicated only that he was pleading guilty to the three Class D felonies, and there is no recording of any guilty plea made before the trial court as required by Rule 24.7. The State has failed in its burden of showing that a guilty plea to the Class Y felony, for which his suspended sentence was subsequently revoked, was voluntarily and intelligently entered.
The State argues that it met the burden established by Reed, supra, but we do not agree. The State notes that during the discussion of Mr. Dorsey’s pretrial motion to dismiss, the prosecutor stated that he never offered to nolle pros any portion of the charges. However, statements and arguments of counsel are not evidence, Durdin v. State, 59 Ark.App. 207, 955 S.W.2d 912 (1997), and even if it is true that the State did not offer to nolle pros case # 98-365, this falls short of establishing a valid guilty plea to that charge. The State further notes that the trial court stated at the hearing that it would not have documented the guilty plea had appellant not pleaded guilty, and that the judgment and commitment order reflects a negotiated plea of guilty to that offense. However, we deem neither of these factors sufficient to demonstrate that, upon personal inquiry by the trial court, Mr. Dorsey entered a voluntary guilty plea in conformance with the applicable requirements of our criminal procedure rules. Finally, the State notes that Mr. Dorsey did sign his written conditions of his suspended sentence, and that this document did reference a guilty plea in case # 98-365 | ¾along with the three Class D felonies. That document also indicated that a violation of his conditions could result in a prison sentence of ten to forty years. In our view this falls short of establishing a voluntary guilty plea to that offense where this was inconsistent with the written guilty plea, which was the document containing the applicable safeguards and an assertion by appellant that he voluntarily pleaded guilty and understood all of the information provided in the statement, as well as an assertion by his counsel that he had fully explained the contents of the statement to Mr. Dorsey. The written conditions contained no such assurances, and by signing that document Mr. Dorsey acknowledged only that he was advised of his conditions and understood the consequences of violating them.
On the record presented, when we view the totality of the circumstances, we cannot say with confidence that the State has met its burden of showing that Mr. Dorsey entered a voluntary and intelligent guilty plea to Class Y felony possession of a controlled substance with intent to deliver. Therefore, the ten-year suspended imposition of sentence imposed for that offense was invalid, and the subsequent revocation and resulting prison sentence must be reversed.
Reversed and dismissed.
WYNNE and ABRAMSON, JJ., agree. | [
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RITA W. GRUBER, Judge.
| Elizabeth Weinstein appeals the denial of her unemployment benefits based on a finding that she was discharged for misconduct. Evidence at her hearing before the Appeal Tribunal focused on disciplinary actions taken against her during her work as an attorney at the Arkansas Department of Environmental Quality (ADEQ) in December 2010, April 2011, and May 2011.
The Tribunal entered a written decision examining these actions under ADEQ’s policy of progressive discipline, which placed offenses into Groups 1-3; Group 2 offenses remained active for two years, and an accumulation of two active Group 2 offenses was grounds for dismissal. The Tribunal’s decision included the following findings of fact:
In December 2010, the claimant was reprimanded because she failed to follow routing procedures which required that she forward all completed documents to her immediate supervisor for review pri- or to disseminating completed documents to any other | {.persons. This was considered to be a Group 1 offense, and she was suspended from work for ten days. She was also reprimanded in April 2011 for unsatisfactory work performance. Specifically, the claimant submitted an unsatisfactory brief for review just a few hours prior to the deadline for its filing. This was considered to be a Group 2 offense, and the claim ant was placed on probation for ninety-days. In May 2011, the claimant was again reprimanded for failure to follow routing procedures, a Group 2 offense. Based on her accumulation of two Group 2 offenses, one of which occurred during her probationary period, the claimant was discharged from work.
The Arkansas Board of Review adopted and affirmed the Tribunal’s decision. The Board additionally found that even if the December 2010 incident alone did not constitute misconduct, the April and May 2011 reprimands showed misconduct in connection with Weinstein’s work, and that the April and May 2011 incidents that ultimately led to her discharge were a willful disregard of the employer’s best interests. The Board concluded that Weinstein was otherwise a good employee and her “otherwise satisfactory work performance established] ... she was able to produce acceptable work previously and did not do so when she was later reprimanded for unsatisfactory work product. Therefore, [she] was discharged from last work for misconduct in connection with the work.” Wein-stein contends on appeal that the Board erred in finding that although the December 2010 incident may not alone have established misconduct, other incidents established that she willfully disregarded her employer’s best interests; that she was able to produce acceptable work before producing an ^unsatisfactory work product in April 2011; and that her failure to follow routing procedures for two documents in May 2011 supported a finding of misconduct. We affirm the Board’s decision to deny benefits.
The Board of Review’s findings of fact are conclusive if they are supported by substantial evidence. Ark.Code Ann. § 11-10-529(c)(1) (Repl.2012); Perry v. Gaddy, 48 Ark.App. 128, 129, 891 S.W.2d 73, 74 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. West v. Dir., 94 Ark.App. 381, 383, 231 S.W.3d 96, 98 (2006). We review the Board’s findings in the light most favorable to the prevailing party, reversing only when the findings are not supported by substantial evidence. Ballard v. Dir., 2012 Ark. App. 371, at 4, 2012 WL 1943622. Issues of credibility of witnesses and weight to be afforded their testimony are matters for the Board to determine. Id.
Testimony at the hearing was given by Tammera Harrelson, who became chief of ADEQ’s legal division on February 21, 2011; Weinstein; and Dawn Guthrie, an attorney specialist and former managing attorney at ADEQ. The Board’s decision recounted Guthrie’s testimony that she was ordered by Director Teresa Marks to reprimand Weinstein for failure to follow routing procedures in December 2010, that Weinstein may have thought that she was to bypass normal routing procedures due to Director Marks’s urgent request for the document, and that Guthrie would not have written the reprimand had she not been instructed to do so by the director. The Board noted Harrelson’s testimony that Weinstein was reprimanded in April 2011 because approximately five hours pri- or to a filing deadline, |4due to poor time management, she submitted an unsatisfactory legal brief to Harrelson for editing; that the brief required significant editing; and that Harrelson placed Weinstein on a ninety-day probation and created timelines and deadlines for her to manage her time more effectively. The Board also noted Harrelson’s testimony that in May 2011, she observed two documents on the director’s desk authored by Weinstein, which she had not routed to Harrelson as required by routing procedures, and that Weinstein had not edited one of them.
The Board acknowledged Weinstein’s testimony that she should not have been reprimanded in December 2010 because, based on the director’s urgent request for the document, Weinstein assumed she was being instructed to bypass routing procedures; that the April 2011 reprimand was also unjust because she completed the brief and it was filed by the deadline; and that the May 2011 reprimand resulted from miscommunication, based on her explanation that the documents “somehow” were forwarded directly to the director despite Weinstein’s intention that Harrel-son review them first. Finally, the Board discussed testimony regarding Weinstein’s health as a reason for her dismissal — noting her suggestion that the discharge might have occurred because she had requested an FMLA leave of absence for serious asthma and ultimately was granted the leave to begin in June 2011. The Board noted Harrelson’s testimony that when she asked Weinstein if there was a problem resulting in the decline in her work, Weinstein indicated that she did not know what was wrong and that her problems with work performance were not related to her health condition.
In its reasoning and conclusions, the Board weighed the evidence presented at the hearing. It found that Weinstein reasonably thought in December 2010 that she was to bypass | ¡¡routing procedures and immediately submit documents to the director; that in April 2011, she submitted an unsatisfactory brief just hours before its filing deadline because she failed to begin working on it in a timely manner; and that in May 2011, she failed to review and edit a document before submitting it to the director for final review and intentionally failed to follow routing procedures although the process had been reviewed with her numerous times. The Board found that Weinstein was subject to discharge because she had accumulated two active Group 2 offenses, that her actions were against her employer’s best interests, and that her discharge was for misconduct in connection with her work.
Incident of December 2010
Ms. Weinstein contends in her first point on appeal that, in light of the Board’s finding that the December 2010 work product may not itself have established misconduct, “two later incidents, and failure to follow routing procedures” did not establish that she had willfully disregarded her employer’s best interests. She asserts that the issue was whether each of her three disciplinary offenses constituted misconduct, and she complains that the Tribunal’s finding that she accumulated two active Group 2 offenses was based on the December 2010 incident that both the Tribunal and the Board deemed not to constitute misconduct. She complains that the Board took the December action into account in determining that she was discharged for willful disregard of her employer’s best interests.
Whether the employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board. George’s, Inc. v. Dir., 50 Ark.App. 77, 80, 900 S.W.2d 590, 592 (1995). Here, we find no merit to Weinstein’s ^argument that the Board’s finding of misconduct was based on a finding that she willfully disregarded her employer’s best interests in December 2010. As discussed in the second and third points of this appeal, we hold that the Board’s findings regarding the April and May 2011 incidents are supported by evidence independent of the 2010 incident.
Incidents of April and May 2011
An employee shall be disqualified for unemployment benefits upon a finding that he or she was discharged from his or her last work for misconduct in connection with the work. Ark.Code Amn. § 11-10-514(a)(1) (Supp.2009). For unemployment-insurance purposes, the definition of misconduct requires more than mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvei'tencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Johnson v. Dir., 84 Ark.App. 349, 352, 141 S.W.3d 1, 2 (2004). Am element of intent is also required: mere good-faith errors in judgment or discretion and unsatisfactory conduct are not misconduct unless of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of an employer’s interest. Id. •
In her second point on appeal, Weinstein contends that the Board erred in finding that her otherwise satisfactory work performance established that she was able to produce acceptable work and did not do so when she was reprimanded for an unsatisfactory work |7product in April 2011. In her third point, she contends that the Board erred in finding that her failure to follow routing procedures for two documents in May 2011 supported a finding of misconduct.
Weinstein asserts that the April 2011 unsatisfactory work product did not constitute a clear instance of misconduct and that documents supporting her requests for medical leave conflict with the Board’s finding that her past satisfactory work performance established her ability to produce acceptable work in April 2011. She argues that these documents put her employer on notice that a serious health condition and medications impaired her ability to perform essential functions of her job. For example, in a letter dated April 8, 2011, her physician informed human resources at ADEQ that Weinstein’s chronic asthma, severe airway obstruction, and prednisone dependency for control of the disease were medical conditions that would necessitate “medical leave from work ... on an intermittent basis.” An April 20, 2011 letter from Weinstein asked that her prednisone dependency and side effects from asthma, such as mental confusion and difficulty in maintaining her train of thought, be considered in her request for FMLA.
Weinstein points to Harrelson’s testimony that she was unaware of the FMLA requests prior to taking disciplinary action over the unsatisfactory work product on April 12, 2012; that Weinstein approached her in March 2012 about taking leave, which Harrelson believed was related to asthma, but did not discuss what problems she was having; and that because another attorney dealt with FMLA requests, Har-relson tried to stay out of it beyond narrowing down the dates. Harrelson additionally testified that Weinstein appeared to be having timej 8management problems and on April 5, 2011, when the two of them were going through her case files, said that she had a response brief due the next day to a motion for summary judgment. Harrelson testified that she directed Wein-stein to work on it immediately, received an unacceptable draft at 11:15 the next morning, and considered the argument “weak” in the brief that Weinstein finished and sent out at 4:30. On cross-examination, Harrelson said that Weinstein’s initial brief did not adequately address jurisdiction and that although the brief filed at the end of the day included additional arguments with some legal support, Harrelson was concerned that citations could have been added. Harrelson testified that Weinstein “did not discuss how her health affected her performance with me or whether she was having problems with thinking, sleeping, or concentrating or whether she thought she had a disability.”
Harrelson also testified regarding her recommendation for termination in May 2011 after seeing two orders on the director’s desk waiting for a signature after supposedly coming across Harrelson’s desk. Harrelson testified that one order had never crossed her desk and the other did not include specific edits that she had directed Weinstein to make. Harrelson had directed staff in April 2011 that all orders were to come through her before going out, and she considered the May 2011 incident “the proverbial straw.” She acknowledged that Weinstein had been a valued member of the department who had done well in the past. Harrelson was unable to say whether Weinstein was doing as well as she was able to and testified that she made her decision based on job performance. Harrelson testified that she | previewed the December 2010 disciplinary action, in which she was not involved, and “took it into account” when she recommended termination.
Weinstein was questioned by the hearing officer regarding the May 2011 incident. She testified that she did not know how the two documents ended up bypassing Harrelson; that she (Weinstein) did not knock on Harrelson’s door because it was closed for a meeting; that Weinstein left the two binders with “Mary,” the administrative assistant who sat immediately across from Harrelson’s desk, and asked her to give them to Harrelson; and that Mary assured Weinstein that she would. Weinstein acknowledged that the binders bore her initials and not Harrelson’s, and she was unable to explain how the binders were delivered to the director without going to Harrelson unless the person delivering mail to Mary perhaps took them. The hearing officer also inquired if Harrelson had asked Weinstein what problem she was having with her performance. Wein-stein answered, “I don’t think we ever had that conversation. I know that the legal staff knew I had been ill for years and my health was in serious decline.”
We affirm the Board’s denial of unemployment benefits based on misconduct in connection with the work. Harrelson’s testimony supported the Board’s finding that in April 2011, Weinstein submitted an unsatisfactory brief for editing just hours before the filing deadline due to time-management problems. The testimony of Har-relson and Weinstein supported the finding that in May 2011, Weinstein failed to follow routing procedures and failed to review and edit a document before it was submitted to the director. In light of evidence that the routing process had been explained to her numerous times, the Board was Imfree to discredit her account of events and to find that she intentionally bypassed Harrelson. The Board was not required to conclude that medical documentation supporting Weinstein’s request for medical leave was proof of her inability to perform her work satisfactorily, as she had previously done.
The Board’s findings regarding the April and May 2011 incidents and Wein-stein’s ability to perform her job turned on the Board’s resolution of the credibility of witnesses and the weight of the evidence. Substantial evidence supports the Board’s finding that Weinstein’s acts were against her employer’s best interests and that she was discharged for misconduct in connection with the work.
Affirmed.
GLOVER and VAUGHT, JJ., agree.
. The December 2010 disciplinary form in the record before us shows both a Group 1 offense for "unsatisfactory performance in drafting the complaint” and a Group 2 offense for "failure to follow supervisor's instructions,” which resulted in ten days' unpaid leave and ninety days’ probation.
. The April 2011 disciplinary form reflects a Group 1 offense for unsatisfactory work.
. Weinstein notes in her reply brief that ADEQ improperly relies on a statutory provision that had not become effective until after the date of her discharge. See Ark.Code Ann. § 11-10-514(d)(2) (Repl.2012) (providing that a "repeated act of commission or omission or negligence despite progressive discipline shall constitute proof of intentional poor performance”). | [
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BILL H. WALMSLEY, Judge.
| lAppellant Essential Accounting Systems, Inc. (EAS), appeals from the trial court’s order granting a permanent injunction to appellee DeWayne Dewberry upon finding that the parties’ contract transferring Dewberry’s property to the corporation was unenforceable. On appeal, EAS argues that the parties had a valid contract, that the property at issue belonged to EAS, and that EAS should have been granted a permanent injunction. We reverse and remand.
In 2008, Maria Lammers and Roger Harrod, both accountants, decided to form a corporation with Dewberry, a software engineer. The purpose of the collaboration initially was to develop accounting and billing software for use in Lammers’s and Harrod’s accounting practices. The goal eventually evolved into creating a “server solution,” which they could market and sell. Articles of incorporation for EAS were first signed on December 15, 2008. On January 23, 2009, restated articles of incorporation were signed along with a stock purchase agreement. “Schedule A” of the stock purchase agreement provided that Lammers, 12Harrod, and Dewberry each owned 2000 shares of stock. On this date, all three also signed an employment agreement with an incorporated “trade secrets, confidential information, and non-competition agreement.” The blank for the amount of compensation remained unfilled on all three employment agreements.
According to Lammers, the three individuals agreed before signing the documents that they would not debt finance their venture. Instead, she and Harrod agreed to front the money for equipment, software, and other expenses. Lammers said that they all agreed that they would divide the profits equally when the product was eventually sold and the corporation earned revenue. She said that the exact amount and timing of compensation would have been worked out in the future; the corporation never had an income. Lam-mers acknowledged that the written agreements did not provide for the division of profits or require any party to make purchases for the corporation.
STAESYS was software developed by Dewberry in 1998 that they decided to use in the corporation. It was transferred to the corporation in paragraph four of Dewberry’s employment agreement, which provides as follows:
4. Additional compensation. Employee DeWayne Dewberry has previously developed certain computer software and programs that he has termed and named “Staesys.” In consideration of this Employee Agreement and other Agreements, including the right to acquire certain stock issued by the Employer, Employee does hereby assign, transfer, and give to Employer all of his right, title, and interest in any of the software and development thereof of the “Staesys” program and any developments related thereto and covenants and agrees that upon Employer’s request [to] sign, execute, and deliver to Employer any documents requested by Employer related to the transfer of ownership of the “Staesys” program or programs or matters related thereto so that any matters related to it shall solely belong to and be the separate property of Employer.
Lammers said that for two and a half years, the corporation further developed STAESYS and |sadded other technologies to it. Lammers said that she and Har-rod contributed to the development of STAESYS through buying equipment and software, paying for travel and other expenses, developing a business plan, researching grants, marketing the product, and integrating accounting knowledge and procedures into the computer systems. Lammers also allowed Dewberry to work out of a private suite in her office. Lam-mers prepared a document titled “Preliminary List of Capitalization Costs,” which listed corporation expenses she and Har-rod had paid for through May 1, 2011. She said that she would not have made these purchases, including equipment requested by Dewberry, if STAESYS was not the property of EAS. When the product was ready to be marketed, Dewberry prepared brochures and videos, and they together made presentations to multiple organizations. The brochure Dewberry made states that STAESYS had been “transferred to the Essential Accounting Systems, Inc. at its inception.”
In June 2011, Dewberry went to the office at night and removed software, hard drives, manuals, and schematics. He also removed the contents of the corporation’s safe-deposit box, closed the corporation’s bank account, and filed articles to dissolve EAS with no notice to Lammers and Har-rod. Upon discovering this, Lammers and Harrod had the dissolution revoked.
Dewberry testified that the items he took were his personal property. He testified that he always believed that he owned STAESYS because an agreement was never reached for his salary and how they were going to do business under the contract. He said that he kept working because Lammers and Harrod made him think they would be getting income from |4loans or grants. Dewberry claimed that he took the software because Harrod was ready to enter into a contract but the product was not ready. Harrod testified that Dewberry had participated in presentations representing that the product was a finished product to multiple organizations and had not told him that the product was not ready for market.
On June 20, 2011, EAS filed suit against Dewberry alleging that he had absconded with corporate property. EAS sought a preliminary injunction ordering Dewberry to immediately return all of the property and preventing him from selling, copying, or altering the computer-related applications, software, and hardware. EAS also pled claims of civil conspiracy, theft of trade secrets, breach of fiduciary duty, conversion, and breach of contract. Dewberry filed an answer and counterclaimed for breach of contract, theft of trade secrets, and conversion. The trial court granted EAS’s motion for a temporary injunction and ordered the surrender of specified property to the custody of the court.
Prior to the final hearing, an agreed order was entered severing the claims for injunctive relief from the other causes of action. The issues of ownership of the property and injunctive relief would be decided first in a separate trial. The final hearing was held on May 3, 2012.
The trial court issued a letter opinion and order finding that the employment agreement was unenforceable due to “the total lack of consideration and mutuality.” The court found that the employment agreements imposed no real obligations upon EAS, Lammers, or Harrod. The court found that the only consideration provided to Dewberry was a one-third share of any profits, which he obtained through his stock ownership, not through |sthe employment agreement. The court stated that Dewberry had effectively given away two-thirds ownership of his software and received nothing in return. Thus, the court concluded that the STAESYS software and other property belonged to Dewberry and granted his request for a permanent injunction. The trial court denied EAS’s request for a permanent injunction and dismissed its breach of contract claim.
EAS subsequently filed a motion for new trial or reconsideration on August 2, 2012. It was deemed denied after thirty days. On September 24, 2012, the trial court entered a corrected order with an expanded Rule 54(b) certificate. EAS filed a timely notice of appeal.
The standard of review for bench trials is whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Housley v. Hensley, 100 Ark.App. 118, 265 S.W.3d 136 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. Further, when there is testimony in conflict on the issue of whether the parties agreed to the terms of a contract, a factual question arises that is to be determined by the trial court. Bowen v. Gardner, 2013 Ark. App. 52, 425 S.W.3d 875. However, a trial court’s conclusion on a question of law is reviewed de novo and is given no deference on appeal. Id.
In order for a contract to exist, there must be: (a) competent pai'ties, (b) subject matter, (c) legal consideration, (d) mutual agreement, and (e) mutual obligations. Kearney v. Shelter Ins. Co., 71 Ark.App. 302, 29 S.W.3d 747 (2000). Consideration is any benefit conferred or agreed to be conferred upon the promisor to which he is not lawfully entitled, or any ^prejudice suffered or agreed to be suf fered by promisor, other than that which he is lawfully bound to suffer. Id. Mutual promises constitute consideration, each for the other. Id. While mutual promises will sustain a contract, there is no valid agreement if there is no promise by one party as a consideration for the other’s promise. Id.
EAS argues that the consideration for Dewberry’s agreement was his ownership interest in the corporation, which the corporation was obligated to provide and did so provide. EAS argues that the shareholders willingly deferred salary until the venture became profitable. Thus, EAS claims that the blank compensation line in the employment agreements does not evidence lack of consideration because the parties did not intend to receive a salary at that time. EAS contends that through its shareholders and officers it also supplied equipment, the costs of development, accounting knowledge, marketing research, and other forms of consideration. EAS argues that Dewberry needed the resources of EAS to complete the software.
Dewberry argues that under the terms of the employment agreement, he was entitled to compensation and the right to acquire stock. He claims that because the agreement did not provide the amount or timing of compensation or any terms related to any right to acquire certain stock, including the amount, price, or timing, there was no consideration in the contract. Dewberry argues that the employment agreement did not rise to the level of a contract, but instead served as evidence of the parties’ intent to work together and come to a formal agreement in the future.
The concept of “mutual obligations” has been explained by our supreme court asjjfollows:
A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. “... Mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.” A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other.
Odom Antennas, Inc. v. Stevens, 61 Ark. App. 182, 186-87, 966 S.W.2d 279, 281 (1998) (citing Townsend v. Standard Indus., Inc., 235 Ark. 951, 954, 363 S.W.2d 535, 537 (1962)). Our supreme court has also said that mutuality of obligation becomes a nonissue when consideration has otherwise been conferred upon one of the parties. Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 207 S.W.3d 525 (2005). A promise in exchange for performance does not require mutuality of obligation. Id.
EAS argues that there is no lack of mutuality because it performed under the contract by providing Dewberry with one-third ownership in the corporation. EAS contends that Dewberry accepted the benefits of the contractual relationship and performed under the contract for years without raising any claim to the properly at issue. Dewberry argues that EAS did not have any obligations to him under the employment agreement.
We conclude that Dewberry’s 2000 shares of stock supplied the necessary consideration to form a valid contract. The employment agreement provides for the assignment of STAESYS “in consideration of this Employee Agreement and other Agreements, including the right to acquire certain stock issued by the Employer.” Executed on the same day as the | ^employment agreement was the stock purchase agreement giving Dewberry 2000 shares. Thus, the corporation promised Dewberry an ownership interest in consideration of the assignment of STAESYS. By virtue of being a stockholder, Dewberry would have the right to future profits. The requirement of mutuality of obligation became a nonissue because there was a promise in exchange for performance. Dewberry promised to transfer STAESYS, and EAS performed by issuing stock to Dewberry.
We hold that the trial court’s finding that the contract was unenforceable is clearly erroneous. Because we reverse and remand on this ground, it is not necessary to address EAS’s alternative argument that it should prevail on a detrimental-reliance claim. We reverse the grant of Dewberry’s request for a permanent injunction, reverse the denial of EAS’s request for a permanent injunction, and reverse the dismissal of EAS’s breach of contract claim. We remand for further proceedings consistent with this opinion.
Reversed and remanded.
WHITEAKER and WOOD, JJ., agree. | [
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JOHN MAUZY PITTMAN, Judge.
|,Appellant was charged with first-degree murder and was tried by a jury. The jury was given instructions relating to this offense, as well as to the lesser-included offenses of second-degree murder and manslaughter. The jury found appellant not guilty of first-degree murder but guilty of second-degree murder. The sole issue on appeal is whether the evidence was sufficient to support the jury’s finding that appellant knowingly killed the victim. Appellant argues that the jury was faced with a choice between two reasonable conclusions because the evidence was circumstantial and was equally consistent with appellant having caused the death of the victim knowingly (the culpable mental state required for second-degree murder) or recklessly (that required for manslaughter). We affirm.
Although it is true that circumstantial evidence is insufficient as a matter of law if it leaves the jury solely to speculation and conjecture, the fact that evidence is circumstantial does not necessarily render it insubstantial. Garner v. State, 2013 Ark. App. 250, 2013 WL 1682628. The law |2makes no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence, and circumstantial evidence is sufficient if it excludes every other reasonable hypothesis consistent with innocence; whether the evidence excludes every other reasonable hypothesis is left to the jury to determine. Id. In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Simpkins v. State, 2010 Ark. App. 723, 2010 WL 4345687. We will affirm if the finding of guilt is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that which is of sufficient force to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The weight of the evidence and credibility of the witnesses are matters for the fact-finder, not for the trial court on a directed-verdict motion or this court on appeal. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). The fact-finder is free to believe all or part of a witness’s testimony and may resolve all questions of conflicting testimony and inconsistent evidence. Simpkins v. State, supra.
The jury was instructed that second-degree murder required proof that appellant killed the victim “knowingly,” and that manslaughter required proof that the appellant killed the victim “recklessly.” A person acts “knowingly” when he is aware that it is practically certain that his conduct will cause the result. Ark.Code Ann. § 5-2-202(2)(B) (Repl.2013). A person acts “recklessly” when he consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur and the risk is of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a treasonable person would observe. Ark.Code Ann. § 5-2-202(3). 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. Davis v. State, 2009 Ark. 478, 348 S.W.3d 553. Such circumstances can include the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds inflicted. Copeland v. State, 343 Ark. 327, 37 S.W.3d 567 (2001); Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Conduct of the accused following the crime, such as flight or concealment or destruction of evidence, is also relevant and properly considered as evidence of consciousness of guilt. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). Moreover, 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. Simpkins v. State, supra.
Here, the evidence viewed in the light most favorable to the State shows that appellant, Theresa Shoulders, Robert McAlum, and Gwendolyn Langford were sitting in Ms. Langford’s house off 16th Street in North Little Rock in the early morning hours of October 26, 2011. Appellant left Ms. Langford’s house to go to another house across the street; when he returned, appellant stood next to the couch where Theresa Shoulders was seated, pointed a gun at her head, and engaged her in a conversation about whether she was getting drugs from someone else on credit. Appellant told Theresa Shoulders that he was going to “do something” to her if she was getting drugs elsewhere, then fired the pistol. Theresa Shoulders was killed instantly. Appellant and Ms. Lang-ford wrapped the body in a sheet and put it in the back of appellant’s truck. Appellant then drove off, leaving the body and the pistol in a | location in North Little Rock near the Arkansas River. A firearms expert who examined the pistol testified that it did not fire when he hit it with a hammer, and that it could not fire unless it was first cocked and the trigger was pulled with four pounds of pressure. A medical examiner at the Arkansas State Crime Laboratory testified that the pistol was fired at Theresa Shoulders’s eye from a range of six to eight inches.
Appellant’s attorney on appeal has crafted a skillful argument. Nevertheless, given the evidence of threat, concealment, the nature of the wound, and the characteristics of the firearm, we cannot say that the jury was required to speculate to find that appellant knowingly killed the victim. Consequently, we affirm.
Affirmed.
GLADWIN, C. J., and WYNNE, J., agree. | [
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ROBERT J. GLADWIN, Chief Judge.
_JjThe White County Circuit Court granted appellee Michelle Beck’s petition to terminate guardianship. Appellant Tiffany Witham contends on appeal that the circuit court erred by requiring her to prove that Beck was an unfit parent. We affirm.
Witham and Beck lived together and were involved in a romantic relationship when Beck, after an affair, became pregnant with J., who was born November 28, 2005. A few months after J. was born, Beck returned to work as a truck driver, providing financially for J., and Witham became the primary caretaker for J. When the parties’ romantic relationship ended in 2008, Beck moved out, and J. remained with Witham. Beck continued to send support to Witham for J.
When Beck decided to join the military, she and Witham agreed that Witham would have guardianship over the person of J., as the Army required that, before joining the military, a single parent must establish a guardianship for her minor children. The order ^establishing the guardianship was filed October 28, 2008, and appointed Witham as guardian until J. attained the age of majority.
On April 21, 2010, Beck filed a petition to terminate the guardianship alleging that it was no longer necessary, as after her first year of service, the military would allow her to have custody of her child. Witham responded, alleging that she had been the primary caretaker for the child, that the child had little contact with Beck during the guardianship, that Beck was unable to properly care for the child, and that it would not be in the child’s best interest to terminate the guardianship. During the hearing on Beck’s petition, the parties came to an agreement, and an order was filed on August 23, 2010, wherein the petition to terminate guardianship was withdrawn, and visitation and child support were established.
On February 13, 2012, Beck filed another petition to terminate guardianship, this time alleging that she had been discharged from the military and that it would be in the best interest of J. to terminate the guardianship. Witham responded that she was the fit and proper person to have custody of the child and that it was in the child’s best interest to remain in her care.
At the hearing, twenty-seven-year-old Witham testified that she works part time on the weekends, is a full-time student at UCA, lives with her mother, is supported by her family, and receives child support from Beck. She claimed that she did not remember that the reason the guardianship was initiated was that Beck was going into the military, but she admitted that Beck could not have joined the military without the guardianship. She said that Beck loved the child but had never been the primary caretaker. She acknowledged that |aBeck had always worked and provided for the child financially. She told the circuit court that she thought the guardianship was still necessary because J. had lived in the same home her whole life and that Beck did not look out for J.’s best interests. She voiced her concerns that Beck was taking international studies and that Beck might be willing to take J. anywhere with her.
Beck testified that she lives in White Hall, Arkansas, with her grandmother. She stated that she had joined the military, which required that a guardianship be established for J. She claimed that since her honorable discharge, she receives $600 per month disability for a military injury and $1644 per month in unemployment benefits. She said that she would receive these payments for about a year and a half, until she obtains her bachelor’s degree in international relations. In the military, she was a Farsi linguist, and she also speaks Dari. She claimed that she had a home for the child in White Hall and that she had extended family support in the area. She stated that if it had not been for the military, she would not have consented to a guardianship.
The trial court terminated the guardianship, finding as follows:
2. The U.S. Military requires that any single parent, before joining the military, must establish a guardianship for their minor child or minor children. This requirement constituted the condition that necessitated the guardianship over
5. Michelle Beck joined the Army after the guardianship was established. She has been honorably discharged and she has returned to civilian life. The condition necessitating the guardianship has been removed.
6. [J.] is not a mere creation of the state.
|47. The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.
8. The best interest of [J.] is subject to the overriding principle that the relationship between parent and child is constitutionally protected.
9. Tiffany Witham has the burden of rebutting the presumption that termination of the guardianship is in the best interest of [J.].
10. The constitutional protection of a parent’s fundamental right to parent requires a finding of parental unfitness to continue an established guardianship over a parent’s objection.
11. Michelle Beck has not previously been found to be an unfit parent nor does this Court find her to be an unfit parent.
12. Tiffany Witham failed to demonstrate good cause or reason to overcome the presumption that Mi chelle Beck has a superior right to the custody of [J.]
13. The guardianship established by the Court over [J.] is hereby terminated.
From this order, Witham filed a timely notice of appeal.
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. Furr v. James, 2013 Ark. App. 181, 427 S.W.3d 94. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction 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 chancellor to observe the | .¡parties carries a greater weight than one involving the custody of minor children.” Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002) (quoting Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222, 224 (2001)).
When there has been a change of circumstances, the primary consideration for the trial court in awarding custody, or guardianship, of children remains the welfare and best interest of the children involved. Our appellate courts have regularly and often said that the child’s best interest is the paramount consideration in any situation in which the trial court is deciding who should exercise care, custody, and control over the minor child. Further, while we always give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. We have also repeatedly held that, in cases involving children, we afford even more deference to the trial court’s evaluation of the witnesses, their testimony, and the best interest of the children.
Furr, supra, 2013 Ark. App. 181, at 3-4, 427 S.W.3d at 96 (citations omitted). The Furr court confirmed Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413, and specifically held that a determination of parental fitness is unnecessary in guardianship proceedings as between a natural parent and a third party and that the best interests of the child are paramount. Furr, at 6, 427 S.W.3d at 97.
Our supreme court held that parents who have not been found unfit do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship and thus, they are entitled to the presumption that they are acting in their child’s best interest in a proceeding to terminate that guardianship. In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307. The burden of proof is as follows:
A natural parent who has not been deemed unfit is entitled to the presumption that he or she is acting in the child’s best interest, even after consenting to a guardianship. Therefore, when a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary. Once the court | Ris satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child’s best interest.
In re Guardianship of S.H., at 15, 409 S.W.3d at 316.
Witham argues that the trial court erred in imposing on her the duty of showing that Beck was an unfit parent. She concedes that there was substantial evidence for the finding that the reason for the guardianship was Beck’s joining the military. However, Witham argues that it was not in the child’s best interest to terminate the guardianship. She maintains that the trial court imposed on her the higher burden of proving Beck unfit to rebut the presumption of Beck acting in the child’s best interest. She argues that the trial court misstated the law in Paragraph 10 of the order, which states, “The constitutional protection of a parent’s fundamental right to parent requires a finding of parental unfitness to continue an established guardianship over a parent’s objection.”
Beck argues that Witham seems to suggest that this court should ignore Beck’s parental rights and decide this case solely on who can provide the better home for the child based on the past, not the present, even if Beck is fit. Beck points out Witham’s testimony at the hearing on Beck’s first petition to terminate guardianship, wherein Witham stated that Beck provided her with a vehicle during the guardianship; that Beck sent her child support, which increased when Beck was in the Army; that Beck provides health insurance for J. through the military; that Witham did not work during the guardianship; that Beck has been the best parent she can be; that Beck continued to have contact with J. after she moved out; that Witham was having an affair with a woman in the presence of J.; and that Beck loves |7J. She cites Holmes v. Holmes, 98 Ark.App. 341, 255 S.W.3d 482 (2007), for the proposition that Arkansas courts do not condone extramarital cohabitation.
Beck also points out that Witham’s situation had changed little from the first hearing in that she still lives with her parents, who still support her. Further, Witham admitted that Beck could not have gone to the military without the guardianship in place. Beck argues that, but for her child support, Witham would be destitute, living off family with no means to support herself and the child.
Beck next asserts that Arkansas Code Annotated section 28 — 65^=01 (b) (3) (Repl. 2010), provides that a guardianship may be terminated if the guardianship is no longer necessary or in the best interest of the ward. Beck argues that “or” means that, once she proves that the guardianship is no longer necessary, the best-interest analysis can be abandoned because there is a presumption that a parent acts in the best interest of the child if the parent is fit. See In re Guardianship of S.H., supra. Beck argues that Witham did not meet her burden of overriding the presumption that Beck is acting in the child’s best interest by terminating the guardianship. Beck contends that Witham did not prove her to be unfit, and the circuit court should be affirmed. We agree that Beck was not proved to be unfit; however, we note that parental fitness is not the question that the circuit court must answer in order to determine whether a guardianship should be terminated. Id.
In Witham’s reply brief, she argues that the circuit court did not address the best interest of the child based on its erroneous conclusion that the only way Witham could overcome the presumption in favor of Beck was to show that she was an unfit parent. She 1 Rcontends that Beck seeks affirmation of a finding that the trial court never reached, arguing that the totality of evidence shows that the trial court did not make a determination that termination was in the child’s best interest and that there is no substantial evidence in the record to support that finding. We disagree with Witham’s argument that the circuit court concluded that the only way to overcome the best-interest presumption in favor of Beck was to show that she was an unfit parent.
Neither of these parties makes a completely accurate argument based on the applicable burden of proof. The circuit court’s order states that Witham had the burden of overcoming the presumption that termination was in the child’s best interest. This statement comports with the burden of proof set forth by our supreme court in In re Guardianship of S.H., supra. The circuit court’s order also states that Witham did not overcome the presumption.
When a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary. Id. Here, Beck, who had not been deemed unfit and who had consented to the guardianship, filed a petition to terminate and put forth evidence that the guardianship was no longer necessary as she had been discharged from the military. Once the court is satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child’s best interest. Id. Here, after it was established that the guardianship was no longer necessary, Witham moved forward with her case by trying to show that it was in the child’s best interest to remain with her.
| nWitham argues that she overcame the presumption that termination of the guardianship was not in J.’s best interest by showing that she had been the primary caretaker for J. and that Beck had limited contact with her daughter for the child’s first three years. Witham argues that financial need was not what forced Beck to join the Army in 2008, even though this would take her away from J. Further, she argues that Beck told Witham’s sister that Beck would never take J. away from Wit-ham. She recites further testimony that Beck was unstable, without maternal interest, and had no connection to J. Witham contends that this was substantial and compelling evidence that it was not in J.’s best interest to terminate the guardianship, notwithstanding that Beck was not found to be unfit.
Even though the circuit court misstated the law regarding the necessity of finding the parent unfit, and notwithstanding Beck’s arguments that there was no finding of unfitness, the circuit court did consider the best interest of the child, which is paramount. In cases involving children, we afford even more deference to the circuit court’s evaluation of the witnesses, their testimony, and the best interest of the children. Furr, supra. Our de novo review reveals that each party tried this case with a goal of proving the best interest of J. Both parties put on proof showing why it was in J.’s best interest to be with them and not the other. According to Furr, supra, In re Guardianship of S.H., supra, and based on our de novo review, the circuit court’s determination that Wit-ham did not overcome the presumption that Beck was acting in the child’s best interest was not clearly erroneous.
Affirmed.
HIXSON and BROWN, JJ., agree. | [
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JIM HANNAH, Chief Justice.
| TAppellants/Cross-Appellees Courtyard Gardens Health and Rehabilitation, LLC; Arkadelphia Holdings, LLC; SLC Operations Master Tenant, LLC; SLC Operations, LLC; |2SLC Professionals of Arkansas, LLC; SLC Administrative Services of Arkansas, LLC; Capital SeniorCare Ventures, LLC; SLC Properties, LLC; 2701 Twin Rivers Drive, LLC; Angela Marlar, in her capacity as Administrator/Executive Director of Golden Living Center — Arka-delphia, n/k/a Courtyard Gardens Health and Rehabilitation, LLC; and Deborah Thornton, in her capacity as Administrator of Courtyard Gardens Health and Rehabilitation, LLC, fik/a Golden Living Center— Arkadelphia (collectively, “Courtyard Gardens”) appeal from an order entered by the Clark County Circuit Court denying their motion to dismiss and to compel arbitration. Appellee/Cross-Appellant Kenny Quarles, as Special Administrator of the Estate of Bennie Jean Quarles, deceased, and on behalf of the wrongful-death beneficiaries of Bennie Jean Quarles, deceased (“the Estate”), cross-appeals from the same order. We hold that there was no valid arbitration agreement as a matter of law; accordingly, we affirm the denial of the motion to compel arbitration. This disposition renders all other issues, including the cross-appeal, moot.
The facts are these. On February 2, 2009, Bennie Jean Quarles, the decedent, became a resident of Golden Living Center, a nursing home in Arkadelphia. At that time, her son, Ronald Quarles, signed admission documents on her behalf. Those documents included an arbitration agreement; however, that arbitration agreement is not the one at issue in this case. On July 1, 2009, Courtyard Gardens took over ownership and operation of the facility (and changed its name). Sometime shortly thereafter, Ronald Quarles signed a new admission agreement and a new optional arbitration agreement in his capacity as “responsible party” on behalf of his mother. The arbitration agreement stated in pertinent part as follows:
| aIt is understood and agreed by Facility and Resident that any and all claims, disputes, and controversies (hereafter collectively referred to as a “claim” or collectively as “claims”) arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the Parties, or in the absence of such an agreement, at the Facility, in accordance with the National Arbitration Fo rum Code of Procedure, (“NAF”) which is hereby incorporated into this Agreement, and not by a lawsuit or resort to court process.
(Footnote omitted.) The decedent was a resident of the facility until March 16, 2010.
On May 3, 2011, Kenny Quarles, another of the decedent’s sons, filed in the circuit court an amended complaint against Courtyard Gardens and various other entities associated with it and with Golden Living Center. Kenny Quarles filed the amended complaint as power of attorney for his mother, who was incapacitated at that time; after her death on May 17, 2011, he was substituted as party plaintiff in his role as special administrator of her estate. The amended complaint sought damages for negligence, medical malpractice, and violations of the Arkansas Long-Term Care Residents’ Rights Act, Arkansas Code Annotated sections 20-10-1201 to -1209 (Repl.2005).
Courtyard Gardens answered and then filed its motion to dismiss the complaint and compel arbitration, arguing that the arbitration agreement was valid and enforceable and that the claims raised in the amended complaint fell within its scope. In response, Kenny Quarles (who was still acting as power of attorney at that time) contended that the arbitration agreement was invalid for two reasons: (1) there was no evidence that Courtyard Gardens assented to the agreement, as it was not signed by a corporate representative; and (2) there |4was no evidence that the decedent assented to the agreement, as Ronald Quarles did not have authority to bind her by signing as her “responsible party.” Kenny Quarles further asserted that Courtyard Gardens had waived its right to demand arbitration by failing to timely assert it; that the arbitration agreement was unconscionable; and that enforcement of the arbitration agreement was impossible because it contained an integral term designating an arbitrator, the National Arbitration Forum, which had since become unavailable.
After a hearing, the circuit court entered an order denying Courtyard Gardens’s motion to compel arbitration. The order included three findings: (1) Courtyard Gardens assented to the arbitration agreement; (2) questions of fact remained regarding Ronald Quarles’s authority to bind the decedent to the arbitration agreement, leaving the issue of authority as a question for the jury; and (3) enforcement of the arbitration agreement according to its terms was rendered impossible due to the unavailability of the National Arbitration Forum, the designation of which was an integral term of the agreement. Courtyard Gardens filed a timely notice of appeal, and the Estate filed a timely notice of cross-appeal.
On appeal, Courtyard Gardens argues that there was a valid arbitration agreement between the parties as a matter of law. It advances three alternative theories in support of this argument: that Ronald Quarles had actual authority to sign the arbitration agreement on the decedent’s behalf, that he had statutory authority to sign the arbitration agreement on the | ^decedent’s behalf, and that the decedent was bound as a third-party beneficiary to the arbitration agreement. In addition, Courtyard Gardens maintains that the arbitration agreement was enforceable, as it did not expressly select the National Arbitration Forum as arbitrator and, even if it had, both the Federal Arbitration Act and the agreement itself provide for substitution in case of unavailability. The Estate responds that the evidence is in dispute regarding Ronald Quarles’s actual authority and that neither statutory authority nor the third-party-beneficiary doctrine applies. On the second point, the Estate contends that the arbitration agreement’s provision referring to the National Arbitration Forum’s Code of Procedure, and the incorporation of those procedures into the agreement, amounted to a designation in an integral term and that the substitution provisions are therefore inapplicable. Alternatively, the Estate argues that Courtyard Gardens waived its right to arbitrate by failing to timely assert it. On cross-appeal, the Estate asserts that the arbitration agreement was invalid because Courtyard Gardens did not assent to it. Courtyard Gardens responds that its actions indicated its assent.
Our jurisdiction is in accordance with Arkansas Rule of Appellate Procedure — Civil 2(a)(12) (2012) and Arkansas Code Annotated section 16 — 108—228(a)(1) (Supp.2011), which permit interlocutory appeals from orders denying motions to compel arbitration. We granted the Estate’s motion to reassign this case to this court on the basis that it presents a first-impression issue of statutory interpretation, pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) and (6) (2012). We review a circuit court’s order denying a motion.to compel arbitration de novo on the record. S. Pioneer Life Ins. Co. v. Thomas, 2011 Ark. 490, 385 S.W.3d 770.
As we have noted, the parties raise several issues in support of their positions. However, the threshold issue— and the one that is dispositive in this case — is whether there was a valid arbitration agreement. See Gruma Corp. v. Morrison, 2010 Ark. 151, 362 S.W.3d 898. This court has held that arbitration is simply a matter of contract between parties. S. Pioneer Life Ins. Co., supra. The question of whether a dispute should be submitted to arbitration is a matter of contract construction, and we look to the language of the contract that contains the agreement to arbitrate and apply state-law principles. Id. We have further held that the same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally; thus, we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004) (quoting E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001)). Finally, the construction and legal effect of an agreement to arbitrate are to be determined by this court as a matter of law. Id.
We must first determine whether Ronald Quarles had actual authority to bind the decedent to the arbitration agreement. Courtyard Gardens posits that Ronald Quarles signed the arbitration agreement in his capacity as the decedent’s agent. Our law on agency is well settled:
We have adopted the definition of agency contained in the Second Restatement of the Law of Agency, § 1, comment a, which provides that the relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control. Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968). The two essential elements of the definition are authorization and right to control.
Evans v. White, 284 Ark. 376, 378, 682 S.W.2d 733, 734 (1985). The burden of proving an agency relationship lies with the party asserting its existence. Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994).
In support of its contention that Ronald Quarles was acting as the decedent’s agent at the relevant time, Courtyard Gardens points to his deposition testimony, wherein he stated that he understood that he was signing the arbitration agreement on his mother’s behalf; that, while his mother was not present in the room when he signed it, he had discussed with her that he was going to sign the documents “to admit her into the nursing home”; and that he “thinkfs]” that he showed the arbitration agreement to his mother and discussed with her whether or not she wanted him to sign it. However, this testimony clearly related to the February 2009 documents signed upon the decedent’s admission to Golden Living Center. The undated arbitration agreement at issue here was signed sometime after July 1, 2009, when Courtyard Gardens took over ownership and operation of the facility. There was no testimony that Ronald Quarles showed this arbitration agreement to his mother or discussed with her whether or not she wanted him to sign it. In fact, Ronald Quarles testified that he did not remember signing new documents as a result of the change in ownership. He did state that he understood that he was signing both the second admission agreement and the second arbitration agreement on his mother’s behalf. Nonetheless, we have held that, while the statements and actions of an alleged agent may be admissible to corroborate other evidence tending to establish agency, neither agency nor the scope of agency can be ^established by declarations or actions of the purported agent. B.J. McAdams, Inc. v. Best Refrigerated Exp., Inc., 265 Ark. 519, 579 S.W.2d 608 (1979).
Acknowledging that the decedent had been diagnosed with moderate to severe dementia around the time of her admission to the facility, Courtyard Gardens contends that the evidence showed that her dementia was intermittent. It also avers that she was presumed to have the capacity to act as a principal and to grant her son authority to act as her agent. We need not determine these issues because, mental capacity aside, the evidence is still insufficient. While Ronald Quarles purported to act on the decedent’s behalf and subject to her control, there is no evidence at all to support the contention that the decedent had authorized him to do so, even assuming that she had the capacity to provide authorization. Stated differently, one of the two essential elements of an agency relationship — authorization—has not been established. The only evidence introduced by Courtyard Gardens was Ronald Quarles’s deposition testimony, and, as we have stated, his statements are insufficient to establish agency. Id. Furthermore, even his deposition testimony failed to include an assertion that his mother indicated a desire for him to act on her behalf. On the record before us, we hold that the evidence fails to demonstrate, as a matter of law, that Ronald Quarles had actual authority to bind the decedent to the arbitration agreement.
This does not yet end our analysis because Courtyard Gardens makes two alternative arguments in support of its position that the parties entered into a valid arbitration agreement. First, it contends that Ronald Quarles had statutory authority to sign the arbitration | ^agreement on the decedent’s behalf. Specifically, Courtyard Gardens relies on Arkansas Code Annotated section 20-9-602(11) (Supp.2011), which provides that an adult child of a parent who is of unsound mind “may consent, either orally or otherwise, to any surgical or medical treatment or procedure not prohibited by law that is suggested, recommended, prescribed, or directed by a licensed physicianf]” Courtyard Gardens suggests that Ronald Quarles, as the decedent’s adult child, had authority under this statute to not only consent to her medical treatment but to also consent to related contracts, including the arbitration agreement. We reject this interpretation on the basis that it conflicts with the plain language of section 20-9-602(11).
The basic rule of statutory interpretation is to give effect to the intent of the General Assembly. Carmody v. Raymond James Fin. Servs., Inc., 373 Ark. 79, 281 S.W.3d 721 (2008). The first rule in determining the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court will construe a statute so that no word is left void, superfluous, or insignificant, with meaning and effect given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous, conveying a clear and definite meaning, we need not resort to the rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. Giving the words of section 20-9-602(11) their ordinary and usually accepted meaning, it simply cannot be said that the statute contemplates the signing of an arbitration agreement by an adult child on behalf of a parent of unsound mind. The statute unambiguously refers only to “any surgical or medical |intreatment or procedure” as actions to which an adult child may consent. Consequently, we conclude that Ronald Quarles did not have authority to bind the decedent to the arbitration agreement by virtue of section 20-9-602(11).
For its second alternative argument, Courtyard Gardens contends that the third-party-beneficiary doctrine applies to bind the decedent to the arbitration agreement as a matter of law. More specifically, Courtyard Gardens maintains that it and Ronald Quarles entered into the arbitration agreement with the intent to benefit the decedent, a third party. The circuit court did not rule on this argument, and it is therefore not preserved for our review. See Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580 (stating that, where an appellant fails to obtain a specific ruling below, we do not consider that point on appeal). In its order addressing whether the parties had entered into a valid arbitration agreement, the circuit court limited its finding to issues of authority (in addition to the issue of Courtyard Gardens’s assent). Even assuming that this finding dealt with both actual authority and statutory authority, we cannot say that it also encompassed Courtyard Gardens’s argument on the unrelated issue of the third-party-beneficiary doctrine.
Because we determine that Ronald Quarles had neither actual authority nor statutory authority to enter into the arbitration agreement on the decedent’s behalf, we hold that there was no valid arbitration agreement as a matter of law. We note that the circuit court’s order framed the issue as one of fact, finding that questions of fact remained for the jury on the issue of authority. Nonetheless, we can affirm because the circuit court reached the right result, albeit for the wrong reason. See, e.g., Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 245 S.W.3d 115 (2006).
|nOur holding that the parties did not have a valid contract to arbitrate is dispos-itive; therefore, we need not consider whether the arbitration agreement was enforceable, whether Courtyard Gardens waived its right to arbitrate, or whether the arbitration agreement was invalid on the basis of Courtyard Gardens’s failure to assent to it.
Affirmed on direct appeal; cross-appeal moot.
GOODSON, J., dissents.
. The Golden Living Center defendants ultimately settled and were dismissed from the case.
. Following charges of anti-consumer bias, the National Arbitration Forum entered into a consent judgment with the State of Minnesota, the purpose of which was “to require the complete divestiture by the NAF Entities of any business related to the arbitration of consumer disputes.” | [
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ROBIN F. WYNNE, Judge.
1,Amalie (“Amy”) Bishop appeals from an order of the Lonoke County Circuit Court granting sole custody of the parties’ minor daughter to her ex-husband, appel-lee Joseph Singletary. She argues that the trial court erred by not analyzing the case as required by the holding in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). We reverse and remand the order of the circuit court.
The parties were married on February 14, 1998, and were divorced via a decree entered on April 21, 2010. The parties have one child, 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 [Amy] 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 parties’ stipulation and property-settlement agreement states that 12“the parties shall have joint legal custody of the parties’ minor child ... with [Amy] being the primary physical custodian.” The agreement further states that, unless agreed upon otherwise, the parties were to alternate custody of the minor child on a weekly basis. The agreement contains no provision for child support.
Amy filed a motion for change of child custody and support on April 19, 2011. In the motion, she alleged that a material change in circumstances had occurred since the decree was entered because her current spouse was being transferred to Fort Worth, Texas, in May 2011. She requested that she be granted sole custody of the child, subject to liberal visitation by Joseph. Joseph responded and counterclaimed, seeking sole custody of the child. He also filed a motion for a finding of contempt in which he alleged that Amy had relocated to Texas without the circuit court’s permission and that she had violated the exchange-of-custody terms set out in the decree.
The parties attended mediation prior to the hearing and reached an agreement that the visitation for the noncustodial parent would be reduced from two weeks per month to one week per month. The hearing on the motions before the circuit court was held on April 11, 2012. At the hearing, Amy and her husband, Gerald Bishop, testified that his new position in Texas had a higher salary, which would allow her to be a stay-at-home mother to C.S. and C.S.’s half-siblings, which they believed would be best for the family. Both Amy and Joseph testified that there were no disagreements with the custody arrangement prior to Amy’s relocation. Joseph testified that he understood what a custodial parent was at the time he signed the settlement agreement. Amy argued at the hearing that she should receive the | ¡¡presumption in favor of relocation by a custodial parent set out in Hollandsworth, 353 Ark. 470, 109 S.W.3d 653. Joseph argued that Hollandsworth did not apply because the parties had a true joint-custody arrangement. The attorney ad litem for C.S. agreed with Joseph and recommended that he 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., also found that Amy’s relocation constituted a material change in circumstances, and awarded sole custody of the child to Joseph. The circuit court did not apply Hol-landsworth in making its decision. This appeal followed.
We review equity cases de novo, but we will reverse only if the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We give due deference to the trial judge’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. Since the question of the preponderance of the evidence turns largely upon the credibility of the witnesses, we defer to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). Because there are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as much weight as in those involving child custody, our deference to the trial judge is correspondingly greater in such cases. Id. The best interest of the child is of paramount importance in deciding the question of custody; all other considerations are Lsecondary. Ford, supra.
Amy argues that the trial court erred by failing to apply Hollandsworth. In Hollandsworth, our supreme court held that relocation by a custodial parent does not, by itself, constitute a material change in circumstances. 353 Ark. at 476, 109 S.W.3d at 657. The Hollandsworth court also announced a rebuttable presumption in favor of relocation by a custodial parent with primary custody. Id.
We hold that the trial court erred by finding that the relocation by Amy constituted a material change in circumstances and by failing to apply the presumption that relocation by Amy is in C.S.’s best interest. The decree itself states that the parties would have joint custody, that Amy would have primary custody, and that child support and visitation would be in accordance with the parties’ settlement agreement. The parties’ settlement agreement, which was incorporated into the divorce decree, explicitly states that, while the parties would have joint legal custody of C.S., Amy would be the child’s primary physical custodian. Absent a subsequent modification, the language in the decree is controlling. Hurtt v. Hurtt, 93 Ark.App. 37, 47-48, 216 S.W.3d 604, 610 (2005). Thus, although the settlement agreement goes on to state that the parties would alternate weeks with the child, the decree does not award joint physical custody of C.S. Joseph was aware of this, as he testified at the hearing that he knew when he signed the agreement that Amy was to be the primary physical custodian of C.S., and that he also knew that this meant Amy would make the final decisions regarding the child.
Our holding in this case is supported by our case law. We affirmed the trial court’s | ^application of Hollandsworth in Chastain v. Chastain, 2012 Ark. App. 73, 388 S.W.3d 495, where the decree of divorce stated that custody of the children would be joint and equal with the mother having the primary residence. We reversed and remanded for application of Hollandsworth in Hurtt, supra, where the decree stated that the parties would have joint custody of the minor child with the wife having primary custody and the parties testified that they split time with the child equally. Likewise, in Durham v. Durham, 82 Ark.App. 562, 120 S.W.3d 129 (2003), a case that was decided shortly after Hollandsworth was announced, we applied the Hollandsworth presumption to a joint-custody situation in which one parent had primary custody.
Joseph argues in his reply brief that, although the circuit court did not employ Hollcmdsworth, the order should still be affirmed because the circuit court found a material change in circumstances in addition to the relocation. For support, he cites our decision in Shannon v. McJunkins, 2010 Ark. App. 440, 376 S.W.3d 489. Shannon is inapplicable to the instant case. In that case, we held that, although it was error for the trial court to not apply Hollandsworth, the resulting order could be affirmed because, in addition to the mother’s request for relocation out of state, the mother had impermissibly co-habitated with members of the opposite sex, the mother’s older daughter exhibited serious discipline problems, and the father of the mother’s older child harassed the mother. Here, both parties agreed that there were no problems prior to Amy’s relocation and the testimony reveals that all the problems that appeared after the relocation were a result of the relocation itself. Therefore, there was no basis to find a material change in circumstances independent of the move, and there is no | f,indication from the circuit court’s order that it did so.
The circuit court’s order is reversed and remanded for the circuit court to review the case pursuant to the requirements set forth by our supreme court in Hollands-worth.
Reversed and remanded.
WALMSLEY, GLOVER, and HIXSON, JJ., agree.
BROWN, J., concurs.
GLADWIN, C.J., and HARRISON, Gruber, and WOOD, JJ., dissent. | [
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DONALD L. CORBIN, Justice.
| Appellant Primus Automotive Financial Services, Inc., appeals the order of the Sebastian County Circuit Court granting the motion of separate Appellee Sherry L. Wilburn to set aside a garnishment and directing a return of funds paid. The motion was premised on the assertion that the lien of the underlying judgment had expired as had the underlying judgment itself. The motion also requested a return of funds paid after the date the judgment expired. The Arkansas Court of Appeals certified this case to us, stating that an issue needing clarification or development of the law was presented, that being whether the issuance of a writ of garnishment revives a judgment and extends the judgment’s effective period for an additional ten years. Accordingly, our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(b)(5) and (d) (2012). An order vacating or sustaining a garnishment or attachment is an appealable order pursuant to Ark. R.App. P.-Civ. 2(a)(5) (2012). We conclude that the circuit court 12erred as a matter of law and its decision was therefore clearly erroneous. We therefore reverse and remand.
The record reveals the following facts. Appellees Sherry and Kevin Wilburn purchased a new 1999 Kia Sportage from a dealership in Fort Smith, Arkansas, with a purchase price of $17,041. They financed $16,783.90 by executing a retail installment sales contract dated May 10, 1999, with Appellant Primus Automotive Financial Services, Inc. (“Primus”). On August 21, 2001, Primus filed a complaint in the Sebastian County Circuit Court against the Wilburns, alleging that they had failed to make the payments as agreed in the contract and that, upon their default and after proper notice, Primus sold the vehicle at a private sale in a commercially reasonable manner leaving a balance due on the contract of $4,214.43. Primus requested a judgment for the balance due, plus costs, attorney’s fees, and interest. Primus obtained a default judgment on January 9, 2002, against the Wilburns jointly and severally for the principal amount of the deficiency, $4,214,43, plus $150 in costs and $421 in attorney’s fees, with interest to accrue at 10% until paid.
On January 21, 2011, Primus filed a writ of garnishment, naming as garnishee Cooper Clinic, P.A., as the alleged employer of Appellee Sherry Wilburn. In response, the garnishee wrote a letter addressed to the Sebastian County Clerk stating that Sherry Wilburn was an active employee and was paid on a biweekly basis. The circuit court issued a garnishment order on March 28, 2011, based on the default judgment entered on January 9, 2002. The garnishment order stated that the judgment was a lien on salaries and wages due the Wilburns and that, pursuant to Act 276 of 1995, the garnishment would remain in force until the total |samount due on the judgment was satisfied, until the employer-employee relationship ended, or until the judgment was vacated or modified. The order of garnishment also directed the garnishee to begin withholding Appellee Sharon Wilburn’s income in accordance with the terms specified in the federal consumer-protection laws and to mail the withheld income to the law firm representing Primus. Finally, the order of garnishment stated that the payments made would be in partial satisfaction of the judgment.
On October 5, 2011, Primus attempted to revive the judgment by filing a petition for writ of scire facias, contending that the judgment obtained on January 9, 2002, remained unsatisfied. On February 27, 2012, Appellee Sherry Wilburn filed a motion to set aside the garnishment, arguing that the petition for writ of scire facias had never been issued, that no order to revive the judgment had been obtained, and that the judgment and lien had expired on January 9, 2012. In her motion, she asked the court to cancel the garnishment as of January 8, 2012, and to direct Primus “to return all funds received after that date.” On April 19, 2012, the circuit court held a hearing on the motion to set aside the garnishment, but also briefly addressed the petition for writ of scire facias. By order entered May 18, 2012, the circuit court denied the petition for writ of scire facias on the basis that it was not properly served. Primus has not appealed this order, and does not argue the issue of scire facias as a part of this appeal. By separate order also entered on May 18, 2012, the circuit court granted the motion to set aside the garnishment on the basis that garnishment is not an action on a judgment. The circuit court therefore .canceled the garnishment as of the date the judgment became stale, January 8, 2012, and further ordered Primus to immediately return to Appellee |4Sherry Wilburn all funds received in payment of the judgment after that date. It is from this order that Primus appeals.
In civil bench trials, the standard of review on appeal is not whether there is substantial evidence to support the findings of the court, but whether the court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). 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. Middleton v. Lockhart, 2012 Ark. 131, 388 S.W.3d 451. Where the issue is one of law, our review is de novo. Id.
The sole point for reversal urged by Primus is that the circuit court erred in setting aside the garnishment because the issuance of process or payment on a judgment tolls the statute of limitations on the judgment. Primus relies on Agribank, FCB v. Holland, 71 Ark.App. 159, 27 S.W.3d 462 (2000), and Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999) to support its argument. The point urged for reversal has merit, not only according to the cases cited by Primus, but also according to cases from this court dating back to 1852. See Lindsay v. Norrill, 36 Ark. 545 (1880); see also Bracken v. Wood, 12 Ark. 605 (1852), overruled on other grounds by Hanly v. Carneal, 14 Ark. 524 (1854). The point is well taken and warrants reversal.
Wilburn responds that there are only two means by which to revive a judgment, the first being a writ of scire facias and the second being a suit on the judgment, and that the circuit court correctly ruled that neither method applied here. Wilburn responds further that \ ¡Malone stands for the proposition that it is the payment on a judgment rather than the issuance of the garnishment that tolls the statute of limitations. Because Primus offered no proof of actual payment under the garnishment order, Wilburn asserts that Primus’s reliance on Malone for the proposition that the issuance of the garnishment tolls the statute of limitations is misplaced. Wilburn also contends that the statements in Malone concerning tolling were dicta. Wilburn’s arguments in support of the circuit court’s order are wholly without merit.
We first note that the statements in Malone concerning the tolling by payment pursuant to garnishment were not dicta because they were necessary for the analysis in this court’s ultimate conclusion that the then-new statutes on enforcement of judgments for child support controlled that case. The Malone court used the payment under the garnishment to toll the statute of limitations on a judgment for child-support arrearages. Because the limitations period was tolled, the judgment was still valid and could therefore be subject to the then-new and separate statutes on enforcement of judgments for child support. This portion of Malone was therefore not dicta. Regardless of whether that was dicta, however, that portion of Malone is not the only controlling rule of law applicable to the present case.
Wilburn is correct that the record does not reflect that Primus ever introduced any evidence of payment pursuant to the writ of garnishment by the garnishee on behalf of Wilburn. Wilburn is also correct that Malone speaks only in terms of payment under a writ of garnishment when it comes to the tolling of the statute of limitations on a judgment. However, that is most likely because the issue in the case upon which Malone relied in that | firespect, Pepin v. Hoover, 205 Ark. 251, 168 S.W.2d 390 (1943), dealt only with the issue of payment on a judgment and therefore had no cause for discussing the companion or corollary principle of law that the issuance of process or execution on a judgment tolls the limitations period of the judgment and begins a new period from which the limitations will run. See Koontz v. La Dow, 133 Ark. 523, 202 S.W. 686 (1918) (citing Lindsay, 36 Ark. 545). Thus, although this court in Malone stated that the payment on a judgment that occurred pursuant to a writ of garnishment tolled the statute of limitations, there is well-settled law of this state that Malone could have also relied on to conclude that the writ of garnishment— regardless of whether it is viewed as the issuance of process or as an execution on the judgment — tolled the limitations period of the judgment. See Koontz, 133 Ark. 523, 202 S.W. 686.
Before discussing our law on the tolling of the limitations period on a judgment, it is helpful to review the basic tenets of garnishment. Garnishment is purely a statutory proceeding, the object of which is to facilitate the execution of any judgment the plaintiff may recover, by seizing and holding the property and credits of the defendant that are in the hands of third persons. Giles v. Hicks, 45 Ark. 271 (1885). “The office of the writ is that of monition or warning to the defendant’s debtor or bailee not to pay the money or deliver the property to him, but to hold it subject to the orders of the court.” Id. at 276-77. By the service of the writ, the effects in the garnishee’s possession are in the custody of the law. Id.
The following basic principles of law on the tolling of the limitations period on judgments have long been well settled in this state. Intermediate executions and payments on judgments form new points for the running of the period of limitations on the judgment. Lindsay, 36 Ark. 545. Service of the writ of garnishment is an attachment of the debt or a form of levy thereupon. Lawrence v. Ford Motor Credit Co., 247 Ark. 1125, 449 S.W.2d 695 (1970). Garnishment after judgment is, in effect, a form of execution. Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978). Garnishment is in the nature of execution. Probst v. Scott, 31 Ark. 652 (1877). As garnishment is a form of execution on the judgment, we therefore conclude, consistent with Lindsay, 36 Ark. 545, that service of a writ of garnishment made within the period of limitations tolls the limitations period on the judgment and begins a new period.
These additional basic principles of law on the tolling of limitations on a judgment have also long been well settled in Arkansas. “[T]he issuance of process or payment on a judgment will toll the statute [of limitations] and form a new period from which it will run.” Koontz, 133 Ark. at 526, 202 S.W. at 687. The issuance of process includes execution and writs of garnishment. See, e.g., id., 133 Ark. 523, 202 S.W. 686 (stating that process was issued when execution and writs of garnishment were issued); see also Black’s Law Dictionary 1325 (9th ed.2009) (quoting 72 CJS Process § 2, at 589 (1987) and defining “process” to be synonymous with “writ” or “writs” in the sense that every writ is a process and in the sense that “process” is limited to writs or writings issued from a court under seal and returnable thereto). “[P]rocess may be issued at any time before the enforcement of the judgment is barred, and a break in the running of the statute [of limitations] would constitute the commencement of a new period, not only for an action to enforce the judgment, but for the issuance of process.” Koontz, 133 Ark. at 526, 202 S.W. at 687.
|sOur review of the foregoing long-settled principles of law in Arkansas leads us to restate them in our conclusion here that a timely writ of garnishment issued before the judgment is barred tolls the statute of limitations on the judgment and constitutes the commencement of a new period for enforcing the judgment, regardless of whether the garnishment is viewed as a form of execution on the judgment or as the issuance of process on the judgment.
The circuit court ruled that garnishment is not an action on the judgment in the sense that it is not a means of reviving the judgment, such as a writ of scire facias or a new suit on the judgment. This ruling was correct, insofar as it went. But that ruling stops far short of a complete analysis to resolve the issue presented and completely overlooks the principle that garnishment constitutes the issuance of process on the judgment and is a form of execution on the judgment, either of which tolls the limitations period on the judgment and begins a new period. Thus, while a writ of garnishment is not an action on a judgment in the sense of a writ of scire facias or in the sense of a new suit on the judgment, it is nonetheless an action on the judgment to enforce it that tolls the statute of limitations, either as a form of execution on the judgment, as the issuance of process on the judgment, or, upon presentation of proper proof, as payment on a judgment.
The record in this case is clear that the petition for a writ of garnishment was filed on January 21, 2011, and the order of garnishment was issued on March 28, 2011. Both are well within the ten-year limitations period on the judgment entered January 9, 2002. Process was therefore issued, and execution was therefore had on the judgment within the limitations | aperiod. The limitations period on the underlying judgment was tolled as of January 21, 2011, when the garnishee was thereby warned that some of Sherry Wilburn’s wages would be subject to future orders of the court. A new ten-year period of limitations then commenced on January 21, 2011. There is, accordingly, no basis in the law to quash the garnishment or to set it aside as the circuit court did in this case. The circuit court’s findings and conclusions that the judgment became stale and expired are therefore clearly erroneous. The order setting aside the garnishment and directing a return of funds paid is reversed.
Reversed and remanded.
DANIELSON, J., not participating. | [
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KENNETH S. HIXSON, Judge.
|, The decedent is Alvin H. Tittle. This case involves a dispute over his will between the decedent’s natural grandson and his mother, and the decedent’s stepdaughters by marriage. The appellants are Michael Shea Tittle (grandson) and Vicki Tittle Wilson (grandson’s mother). The appellees are Martha Lindvall (stepdaughter) and the Estate of Alvin H. Tittle, deceased. The decedent was married to Lorene and had one son, Tommy. In 1991, the decedent’s wife died. In 1994, the decedent married Beatrice Chadwick who had two daughters from a previous marriage who became the decedent’s stepdaughters. The decedent’s son died in 2004, survived by his wife Vicki and his son Michael. Later in 2004, the decedent changed his will to include his two stepdaughters as co-beneficiaries along with both appellants. The decedent died in 2011 at the age of ninety-four years. The trial court admitted the 2004 will into probate. The appellants, the grandson and his mother, filed a will ^contest alleging that the 2004 will was a product of undue influence and fraud. After a bench trial, the trial court found the 2004 will to be valid and denied appellants’ motion to vacate the order admitting will to probate. Vicki and Michael now appeal from that order. We affirm.
Our standard of review in probate cases is well settled. We review probate proceedings de novo on the record, but we will not reverse the findings of fact of the trial court unless they are clearly erroneous. Ashley v. Ashley, 2012 Ark. App. 236, 405 S.W.3d 419. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Morton v. Patterson, 75 Ark.App. 62, 54 S.W.3d 137 (2001). In conducting our review, we give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Foster v. Hatfield, 2013 Ark. App. 169, 2013 WL 831126. Furthermore, while we will not overturn the probate judge’s factual determinations unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law. Id.
The will at issue in this case was executed on November 22, 2004, when Alvin was eighty-seven years old. Alvin’s will left his estate one-third to stepdaughter Martha, one-third to stepdaughter Betty, one-sixth to grandson Michael, and one-sixth to his son’s surviving wife, Vicki. The will nominated Martha as executrix. The will also granted a life estate in Alvin’s real estate to Beatrice, but Beatrice predeceased Alvin.
Alvin died on May 13, 2011. Pursuant to a petition filed by Martha, the trial court entered an order on May 25, 2011, admitting Alvin’s will to probate and appointing Martha |3executrix. Vicki and Michael contested the will on June 14, 2011, alleging in their motion that Alvin was in poor health and lacked the required testamentary capacity to execute the will. They also alleged that Alvin signed the will under undue influence, fear, and duress at a time when Martha was in a superior position and took advantage of his poor health and state of mind to benefit herself. The trial court entered the order being appealed on June 22, 2012, wherein it found that the appellants failed to prove undue influence in the making of the will and that Alvin was competent when his will was executed.
Alvin and Beatrice each had wills prepared by attorney Ed Scrimshire. Attorney Scrimshire was Martha’s then-boyfriend. Mr. Scrimshire’s secretary, Teresa Pilcher, was one of the witnesses to the wills, and she testified that on the day Alvin came to the office to execute his will Martha was not with Alvin. Alvin advised attorney Scrimshire that he wanted to leave everything to his stepdaughters, Martha and Betty. However, attorney Scrimshire thought that Alvin should leave something to Tommy’s wife, Vicki, and his grandson, Michael. At Mr. Scrimshire’s suggestion, Alvin decided to leave Vicki and Michael one-sixth each of his estate and his stepdaughters one-third each. Ms. Pilcher incorporated the suggestions into the will. Ms. Pilcher testified that Alvin drove to the office that day, and he gave her no concern about his competency to execute the will. She indicated that Alvin knew who his heirs were and knew what he was doing, and she never got any impression that he was being pressured or forced to make the will.
|4The other witness to the will was an attorney named Bob Frazier. Mr. Frazier swore in an affidavit that, as an attorney, he always confirms that a will he is witnessing is a voluntary act by the testator. Mr. Frazier gave the opinion that Alvin had the testamentary capacity to execute the will and that Alvin did not appear to be suffering from any mental disease or under the influence of any medication.
There was evidence that, after executing his will in November 2004, Alvin entrusted stepdaughter Martha with his personal and financial affairs. In February 2005, Alvin transferred assets from one of his investment accounts into an account that he and Martha held in joint tenancy. At the time of Alvin’s death, these funds were transferred to Martha. In February 2007, Alvin granted Martha a durable power of attorney. In October 2008, Alvin deeded some real property to himself and Martha. Alvin also signed a living will, which appointed Martha as his healthcare proxy to make decisions on his behalf should he become permanently unconscious.
Appellant Vicki Tittle Wilson testified at the bench trial. She stated that in the later years of Alvin’s life he suffered from multiple health problems, including heart problems and COPD, and that he had poor hearing and eyesight. Vicki stated that she had several conversations with Alvin before he executed the will in November 2004. According to Vicki, Alvin told her that he already had a will but that Martha and her boyfriend, Ed Scrimshire, were constantly coming to his house and wanting him to sign papers and add more heirs to his will. Vicki testified that Martha and her boyfriend would not leave Alvin alone, which made Alvin very upset. Vicki stated that Alvin promised that he would not sign [¿anything, but that sometime later he came to her crying and said he couldn’t take it any longer.
Vicki testified that after she discovered that Alvin had executed the November 2004 will, she asked him about it and he apologized and said “they kept on and on.” According to Vicki, Alvin said that Martha and her boyfriend threatened that if Alvin refused to execute the will Vicki would get all of his money. Based on what Alvin had told her, Vicki testified that Alvin was constantly bothered and coerced to sign the will and that it was not a voluntary act.
B.C. Edmistin and his father were longtime friends with Alvin. B.C. testified that Alvin was very close to his son, Tommy, and that Alvin was very hurt after Tommy died in June 2004. B.C. stated that sometime after Tommy died he overheard a conversation between his father and Alvin, and that Alvin complained that Martha and Ed Scrimshire were constantly bothering him to sign papers. B.C. testified that Alvin later told B.C.’s father that he finally just signed what he was told to sign. According to B.C., Alvin sounded like he was beaten down and he did not even know what he had signed.
Terri Lunsford was a caregiver to both Beatrice and Alvin during their final years. Terri testified that Alvin was “pretty much self-sustaining up to the end” and that he was competent until going into a nursing home three months before he died.
Alvin’s nephew, Carl Johanson, testified that he had frequent contact with Alvin during the later years of Alvin’s life. Carl testified that Alvin spoke of his relationship with Martha and said how much he appreciated her coming by his house and helping him. Carl | finever heard Alvin say anything derogatory about Martha. Carl testified that Alvin always took care of himself and showed no signs of being incompetent. Carl did not think that anyone could take advantage of Alvin, and he did not believe Martha could force him to sign a will.
Roy McGill testified that Alvin was his wife’s uncle. Roy stated that Alvin had a warm feeling for both Martha and her sister, and that Alvin loved them like his own children. Roy never doubted Alvin’s competency to take care of his affairs, and he said that Alvin was still able to drive a car until three months before he died. Roy did not think that Martha or anyone else could force Alvin to do something he did not want to do. Roy said that they discussed the will about eight months before Alvin died, and that Alvin accurately described the shares his beneficiaries were to receive under the will.
Martha’s sister, Betty, testified that she was not aware that Alvin had made her or Martha beneficiaries in his will until after he died. Betty stated that she never saw anyone take advantage of Alvin, and said that nobody could make him do something he did not want to do.
James Bennett is an investment broker who had done business with Alvin since 1991. James testified that when Alvin came to him wanting to transfer one of his accounts to himself and Martha in February 2005, that account was worth $89,000. When that transaction occurred, Martha knew about it but was not present. James stated that Alvin told him that Martha had assisted him and was good to him, and Alvin was not concerned that Martha had access to the money in the account. The records reflected that Martha never made any | ./withdrawals from the account. James never thought that Alvin was under any stress, and he believed that Alvin was competent and knew completely what he was doing when he made the transaction.
In this appeal, appellants Vicki and Michael argue that the trial court erred in failing to place the burden of proof on Martha to prove that Alvin was free from undue influence in executing the will, and appellants also argue that undue influence was demonstrated by the proof. It has long been the law in Arkansas that a party challenging the validity of a will must typically prove by a preponderance of the evidence that the testator lacked the requisite mental capacity or that the testator was the victim of undue influence when the will was executed. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001).
We hold that the trial court did not clearly err in finding that the appellants failed to prove undue influence in the making of the will. By the time Alvin executed the will in November 2004, he had been married to Beatrice and the stepfather to Martha and Betty for more than ten years. There was, as appellants assert, testimony that Alvin had made comments about being badgered by Martha and her boyfriend about signing papers. However, there was testimony from other witnesses demonstrating that Alvin was competent, independent, and not susceptible to being taken advantage of or influenced against his will. There was also testimony that Alvin had a loving relationship with both Martha and Betty, and that he appreciated Martha for helping him. Alvin’s appreciation of, and trust in, Martha was demonstrated by numerous acts in the years following his execution of the will when he placed her on an investment account, deeded property to himself and Martha, and gave her | ¿power of attorney. The witnesses attesting the will thought that Alvin was competent and not under any pressure, and Martha was not present when he signed the will. 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 testator of his free agency in the disposition of his property. Pyle, supra. On this record, leaving the credibility decisions to the trial court, we are not left with a firm conviction that a mistake has been committed.
The appellants also contend on appeal that when the person benefiting from the will also engages in drafting or procuring the will, a rebuttable presumption of undue influence arises and creates a burden for the proponent of the will to prove beyond a reasonable doubt that the testator had both the testamentary capacity as well as the freedom from undue influence to execute a valid will. The appellants in this case contend that there was unrebutted testimony that Martha and her then-boyfriend, Ed Serimshire, repeatedly went to Alvin’s house and pressured him into executing a will until he finally succumbed. Because Martha was a beneficiary and procured the will, appellants assert that it was her burden to prove beyond a reasonable doubt that Alvin was free from undue influence, and appellants further assert that Martha failed to meet that burden. However, we conclude that the appellants’ argument concerning procurement and the shifting of the burden of proof is not preserved for review. It is well settled that our appellate courts will not consider arguments raised for the first time on appeal. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427. Moreover, when an appellant fails to obtain a ruling on an issue from the trial court, his or |9her argument is not preserved for appeal because there is no decision of the trial court for this court to review. Ark. Wildlife Fed’n v. Ark. Soil & Water Conservation Comm’n, 366 Ark. 50, 233 S.W.3d 615 (2006).
In the appellants’ contest of will and motion to vacate the order admitting the will to probate and appointing executrix, the appellants alleged that the will was invalid as a result of a lack of testamentary capacity and undue influence. However, the appellants did not allege that the burden of proof shifted to Martha because she procured the will, nor did they argue it at trial. In appellants’ counsel’s opening remarks prior to trial, their counsel stated:
I’m going to try to be very brief, although as the court is likely aware, that we have the burden of proving by a preponderance of the evidence, your honor, that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. And so that is the reason that I have a few more witnesses than the [appellees’ counsel] does.
Because the appellants never alleged below that Martha procured the will, and because they expressly conceded at trial that they had the burden of proving undue influence, we cannot now consider their argument that the burden should have been placed on Martha to show beyond a reasonable doubt that the will was not the result of undue influence. And because the procurement issue was not put to the trial court, the trial court did not make any ruling as to whether Martha procured the will. Therefore, there is no decision on the issue of procurement for this court to review.
Affirmed.
GLADWIN, C.J., and BROWN, J., agree.
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COURTNEY HUDSON GOODSON, Justice.
|,Appellant Hurt-Hoover Investments, LLC (Hurt-Hoover), appeals the judgment entered by the Cleburne County Circuit Court after a jury returned its verdict in favor of appellees Lester Fulmer, Rob Bentley, Robert Best, and Carl Chilson. For reversal, Hurt-Hoover contends that the circuit court erred in ruling that venue for this civil action concerning a debt and note was proper in Cleburne County and that the court erred by denying its motion for withdrawal of counsel and its concomitant request for a continuance. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1—2(e), as we granted appellant’s petition to review the decision of the Arkansas Court of Appeals affirming the judgment. See Hurt-Hoover Invs., LLC v. Fulmer, 2014 Ark. App. 197, 433 S.W.3d 917. We also find no reversible error and affirm.
Factual Background
■ [/The record discloses that the parties entered into a contract for Hurt-Hoover to purchase appellees’ interests in H20 Lifts and Ramps, LLC. Pursuant to their agreement, dated June 19, 2008, Hurb-Hoover agreed to pay the total sum of $955,000 for the business, which included an initial cash payment of $400,000 that was remitted at the time of closing. Hurt-Hoover executed individual promissory notes to each ap-pellee, according to their respective interests, for payment of the balance in thirty-six monthly installments, commencing on October 1, 2008.
On May 28, 2009, appellees filed suit against Hurt-Hoover in Cleburne County Circuit Court, alleging that Hurt-Hoover had wholly failed to pay the installments due under the promissory notes. In their complaint, ■ appellees alleged that venue was proper in Cleburne County, where they all resided, pursuant to Arkansas Code Annotated section 16-55-213 (Supp. 2013). In its answer, Hurt-Hoover denied that venue was proper in Cleburne County, and it moved to dismiss, asserting that venue lay in Craighead County, where it had its principal place of business, under Arkansas Code Annotated section 16-60-111 (Supp.2013). Hurt-Hoover also pled the affirmative defense of set-off, alleging that the terms of the parties’ agreement allowed it to take credit for damages it incurred as a result of appellees’ alleged misrepresentations and breach of warranties made in connection with the purchase agreement.
The circuit court held a hearing on the issue of venue on November 16, 2010. At the hearing, Hurt-Hoover asserted that section 16-60-lll(a) was controlling, as it specifically ^applied to actions on a “debt, account, or note,” and that the statute established venue where the defendant resided, which was in Craighead County, its principal place of business. Appellees maintained that section 16-55-213(a)(3)(A) provides that venue can be fixed in the county in which the plaintiff resided and that this statute provides that it applies to “all civil actions” with certain enumerated exceptions that do not include section 16-60-111. Appellees contended that section 16-55-213, as the more recently enacted statute, repealed section 16—60—111 (a) by implication because the two were in irreconcilable conflict. The circuit court took the question under advisement and issued an order denying Hurt-Hoover’s motion to dismiss on April 23, 2010. In the order, the circuit court found that the two venue statutes were invincibly repugnant and that section 16-55-213 impliedly repealed section 16-60-111. Accordingly, the court concluded that venue was proper in Cle-burne County as the county where appel-lees resided.
On May 17, 2011, appellees filed a motion for summary judgment, arguing that there were no material facts in dispute that Hurt-Hoover had defaulted on its obligations under the promissory notes. They also contended that the indemnity provisions of the agreement, relied on by Hurt-Hoover to support its claim of set off, applied only to damages that Hurt-Hoover might incur from a third party but not for any claims Hurt-Hoover may have against them. Thus, they argued that they were entitled to judgment as a matter of law. In response, Hurt-Hoover maintained that the agreement endowed it with the right to set off damages it incurred as a result of appellees’ alleged misrepresentations and breaches of warranty and that the agreement also stated that the exercise of its right to set-off was not an event of default. |4Hurt-Hoover also filed a counterclaim alleging breach of contract and the claim for set-off.
The circuit court held a hearing on the summary-judgment motion on November 2, 2011. The court entered an order denying the motion on June 1, 2012. In relevant part, the court’s order provided,
2. Plaintiffs contend that defendant has defaulted on certain promissory notes.
3. Defendant contends that it is allowed to take certain set-offs pursuant to paragraph 6.01 of the Interests Purchase and Sale Agreement entered into between the parties on June 19, 2008 (the “Agreement”).
4. Plaintiffs reason that because there have been no claims for indemnification made by an third party, then defendant is not entitled to take any set-offs.
5. Plaintiffs would be correct if the issues in the case involved a simple indemnification agreement. However, the Court finds that because of the language in paragraph 6.01(a) of the Agreement, there is a fact question as to what plaintiffs promised to indemnify against.
6. Paragraph 6.01(a) of the Agreement could be interpreted as providing indemnification to the defendant for damages and losses resulting from any “misrepresentation, breach of warranty, or failure to perform any covenant or agreement undertaken by seller in this agreement.”
7. The Court finds that there is a fact question as to whether or not plaintiffs agreed to indemnify defendant and hold defendant harmless for damages from any misrepresentation, breach of warranty, or failure to perform under the terms and conditions of the Agreement. This issue is to be determined by a trier of fact. Consequently, plaintiffs’ Motion for Summary Judgment is denied.
Thereafter, the circuit court scheduled the trial for July 19, 2012. On June 19, 2012, Hurt-Hoover filed a motion for the withdrawal of counsel, asserting that it was necessary for |fithe law firm of Barrett & Deacon, P.A., to be relieved as counsel so that one of its members, Robert S. Jones, who had drafted the parties’ agreement, could testify as to the parties’ intentions in light of the circuit court’s ruling that the indemnity provisions were ambiguous. Two days later, Hurt-Hoover also moved for a continuance in order to give it an opportunity to retain substitute counsel, should the circuit court grant its motion for counsel to withdraw. Appellees objected to a continuance and argued that the testimony of counsel was not admissible. The circuit court, via email communication, denied both motions, ruling that Jones’s testimony was barred by the parol-evi-dence rule and that, therefore, a continuance was not required. At trial, the circuit court permitted Hurt-Hoover to make a proffer of Jones’s proposed testimony.
After considering the evidence, the jury returned its verdict in favor of appellees on their complaint and against Hurt-Hoover on its counterclaim. Accordingly, the circuit court entered judgment in favor of appellee Fulmer in the amount of $294,705; appellee Bentley in the amount of $229,215; appellee Best in the amount of $65,490; and appellee Chilson in the amount of $65,490. This timely appeal followed.
Hurt-Hoover presents, essentially, two issues on appeal. First, it contends that the circuit court erred in denying its motion to dismiss on the question of venue by ruling that section 16-55-213 repealed section 16-60-111 by implication. Second, Hurt-Hoover argues that the parol-evi-dence rule did not bar Jones’s testimony and that the circuit court erred by denying its motion for a continuance to obtain substitute counsel. Neither argument warrants reversal.
| ¿Repeal by Implication
As its first argument on appeal, Hurt-Hoover argues that the two venue statutes are not in conflict and that the circuit court erred in ruling that venue was proper in Cleburne County based on its ruling of repeal by implication. Further, it contends that, because section 16-55-213 did not repeal section 16-60-111, section 16-60-111 should apply as the more specific venue statute over the general venue statute found in section 16-55-213.
This court has outlined its statutory construction rules regarding repeal by implication on numerous occasions. See Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002). The fundamental rule of the doctrine is that a repeal by implication is not favored and is never allowed except when there is such an invincible repugnan-cy between the two provisions that both cannot stand. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. A statute of a general nature does not repeal a more specific statute unless there is a plain, irreconcilable conflict between the two. Moreover, we will not find a repeal by implication if there is any way to interpret the statutes harmoniously. Neeve v. City of Caddo Valley, 351 Ark. 235, 91 S.W.3d 71 (2002). Thus, repeal by implication is recognized in only two situations: (1) where the státutes are in irreconcilable conflict, and (2) where the General Assembly takes up the whole subject anew, covering the entire subject matter of the earlier statute and adding provisions clearly showing that it was intended as a substitute for the former provision. Lambert, v. LQ Mgmt., LLC, 2013 Ark. 114, 2013 Ark. App. 114, 426 S.W.3d 437.
It is well’ established that the General Assembly is vested with the power to establish venue under the Arkansas Constitution. Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Gadbury-Swift, 2010 Ark. 6, 362 S.W.3d 291. The primary purpose of venue statutes is to provide a convenient, logical, and orderly forum for the resolution of disputes. Wright v. Cen-terpoint Energy Res. Corp., 372 Ark. 330, 276 S.W.3d 253 (2008). It is this court’s fundamental duty to give effect to the legislative purpose set by the venue statutes. Centerpoint Energy, Inc. v. Miller Cnty. Circuit Court, 372 Ark. 343, 276 S.W.3d 231 (2008).
Since 1838, the General Assembly has provided that, in the absence of a statutory exception, the basic rule of venue is that a defendant must be sued in the county where he or she resides or is summoned. Clark v. Johnson Reg’l Med. Ctr., 2010 Ark. 115, 362 S.W.3d 311. Consistent with that general rule, section 16—60—111(a)(1), first adopted in 1977, provides that “[a]n action on a debt, account, or note, or for goods or services may be brought in the county where the defendant resided at the time the cause of action arose.” See Act 401 of 1977. From its inception, this statute has also provided that “[t]he provisions of this section are cumulative to the venue laws of the State of Arkansas and shall not amend or repeal any other laws unless expressly in conflict therewith.” Ark.Code Ann. § 16-60-llKc).
In 2003, the General Assembly passed Act 649, the “Civil Justice Reform Act of 2003,” which primarily focused on tort reform; however, Act 649 also included certain venue provisions, including the one at issue here. Id. Specifically, section 16-55-213(a) provides in relevant part that “[a]ll civil actions,” excluding certain statutory exceptions, must be brought in any of the following counties:
|s(l) The county in which a substantial part of the events or omissions giving rise to the claim occurred;
(2)(A) The county in which an individual defendant resided.
(B) If the defendant is an entity other than an individual, the county where the entity had its principal office in this state at the time of the accrual of the cause of action; or
(3)(A) The county in which the plaintiff resided.
(B) If the plaintiff is an entity other than an individual, the county where the plaintiff had its principal office in this state at the time of the accrual of the cause of action.
On two previous occasions, this court has addressed whether section 16-55-213" repeals other venue statutes by implication. In Wright, supra, the deceased had succumbed to carbon monoxide poisoning in her home located in Craighead County. The personal representative of her estate filed a wrongful-death action in Crittenden County, arguing that venue was appropriate there under section 16-55-213(a) because it was the county where he, the plaintiff, had resided at the time of the deceased’s injury. He also urged that section 16-55-213(a) repealed by implication Arkansas Code Annotated section 16-60-112(a) (Repl.2005), which provides that actions for wrongful death are to be brought in the county where the accident occurred or where the person killed resided at the time of the injury. This court disagreed with the personal representative’s contention and held that the two statutes were not in conflict. In so holding, this court determined the General Assembly’s use of the past tense in section 16-55-213(a) evidenced its intention for venue to be fixed “where the plaintiff or defendant resided at the time of the events giving rise to the cause of action." Wright, 372 Ark. at 334, 276 S.W.3d at 257-57 (emphasis in original). Placing the two statutes side by side, we 19reasoned that they could be read harmoniously because they both fixed venue where the deceased resided at the time the events giving rise to the claim occurred.
By contrast, we reached a different result in Dotson v. City of Lowell, 375 Ark. 89, 289 S.W.3d 55 (2008). There, the issue was whether section 16-55-213(a) impliedly repealed section 16-60-116(a) (Repl. 2005), which was also a general venue statute providing that “every other action may be brought in any county in which the defendant or one (1) of several defendants resides or is summoned.” As in Wright, we noted that section 16-55-213(a) was written in the past tense, which indicated that the General Assembly intended for venue to be fixed at the time of the events giving rise to the claim. However, when compared to section 16-60-116(a), we found an irreconcilable conflict because the earlier statute fixed venue where the defendant “resides,” meaning that the General Assembly had intended for venue to be fixed at the time the suit is filed. Because the time at which venue was fixed differed, we held that the two statutes could not stand together. Given this irreconcilable conflict, we also reasoned that the General Assembly intended to adopt a new general venue scheme with the passage of section 16-55-213(a) as a substitute for section 16-60-116(a) because the new general default statute expressly fixes venue for “[ajll civil actions” with some noted exceptions.
In the present case, we reach the same conclusion as we did in Wright and hold that section 16-55-213(a) did not repeal section 16-60-lll(a) by implication. Section 16-60-lll(a) applies to debts and notes and states that such an action “may” be brought in the county where the defendant resided at the time the cause of action arose. Section 16-55-213(a) provides that all civil actions “must” be brought in either one of three counties: (1) the county in which a | insubstantial part of the events or omissions giving rise to the claim occurred; (2) the county in which an individual defendant resided, or if the defendant is an entity other than an individual, the county where the defendant had its principal office at the time of the accrual of the cause of action; or (3) the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, the county where the plaintiff had its principal office at the time of the accrual of the cause of action. As is evident, both statutes speak in the past tense and thus fix venue at the time of the events giving rise to the claim. Also, both statutes permit the filing of an action on a note to be filed in the county where the defendant resided. The only difference is that section 16-55-213 allows a plaintiff a choice among three options, but this choice does not place the statutes in irreconcilable conflict. Statutes covering the same subject matter can stand together when they are cumulative. Smith v. Sullivan, 190 Ark. 859, 81 S.W.2d 922 (1935).
Our view that section 16-55-213(a) was not intended to replace section 16-60-111(a) is also buttressed by the fact that the General Assembly has twice amended section 16-60-111 since the enactment of section 16-55-213—once in 2007 and again in 2009. See Act 549 of 2007; Act 546 of 2009. By virtue of these amendments, it is clear that the General Assembly does not consider section 16-60-111 to be a dead letter in the law. See Rural Special Sch. Dist. v. City of Pine Bluff, 142 Ark. 279, 218 S.W. 661 (1920); see also Sailer v. State, 192 Ark. 514, 92 S.W.2d 382 (1936) (observing that courts are reluctant to con strue statutes as being repealed by implication where subsequent legislation recognizes their existence). For these reasons, we hold that the two statutes can be read harmoniously and that section 16-55-218(a) did not |nrepeal section 16-60-111(a) by implication. Therefore, the circuit court erred in concluding otherwise. However, we affirm the circuit court’s decision denying the motion to dismiss, as venue did lie in Cleburne County pursuant to section 16-55-213(a)(3)(A), as the county where appellees resided. Wright, supra. As we have often said, we will affirm the circuit court where it reaches the right result, even though it may have announced the wrong reason. City of Marion v. City of W. Memphis, 2012 Ark. 384, 423 S.W.3d 594; Bridges v. Shields, 2011 Ark. 448, 385 S.W.3d 176.
Parol-Evidence Rule
Hurt-Hoover also contends that the circuit court erred by refusing to allow the testimony of the attorney who drafted the agreement. It contends that counsel’s testimony was not barred by the parol-evidence rule because the circuit court found that the language used in the agreement was ambiguous.
The parol-evidence rule prohibits the introduction of extrinsic evidence, parol or otherwise, which is offered to vary the terms of a written agreement; it is a substantive rule of the law, rather than a rule of evidence, and its premise is that the written agreement itself is the best evidence of the intention of the parties. Stilley v. James, 345 Ark. 362, 48 S.W.3d 521 (2001). On the other hand, the parol-evidence rule does not prohibit the introduction of extrinsic evidence where it would aid the court in interpreting the meaning of particular language of a contract, such as when the contract contains terms of art or words which have acquired their meaning through a course of dealing or custom or usage. First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992). Nor does the parol-evidence rule |12prohibit the court’s acquainting itself with the circumstances surrounding the making of the contract. Id. Where the meaning of a written contract is ambiguous, parol evidence is admissible to explain the writing. C & A Constr. Co. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974). The initial determination of the existence of ambiguity rests with the court and, if the writing contains a term which is ambiguous, parol evidence is admissible and the meaning of the ambiguous term becomes a question of fact for the fact-finder. Griffin, supra.
On appeal, we will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion. GSS, LLC v. CenterPoint Energy Gas Transmission Co., 2014 Ark. 144, 432 S.W.3d 583. This court has stated that 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. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599.
In the proffer, Jones stated that he drafted the purchase agreement while representing Hurt-Hoover. Upon Mike Hoover’s request, he included the indemnity provision to provide protection for the buyer against certain liabilities. Jones said that the provision was intended to protect the buyer with respect to warranty representations made by the sellers in connection with the sale, including statements about the nature of the company itself. He added that the intent was to afford the buyer the ability to offset any damages. Jones acknowledged, however, that appel-lees were not represented by counsel, and he did not recall whether he advised appel- lees that the purpose of the indemnity provision was for the protection of the buyer.
11sWe find no error in the exclusion of the testimony. As we explained in Kerr v. Walker, 229 Ark. 1054, 321 S.W.2d 220 (1959), when admissible, parol evidence must relate to an understanding that was common to both parties, as parol evidence is not permitted to show the un-communicated subjective interpretation that one party placed on the language of the agreement. Although the circuit court found that the language of the contract was ambiguous, Jones’s proposed testimony related only to his and Hurt-Hoover’s construction of the indemnity provision. As such, the testimony was not admissible as parol evidence, and the circuit court did not abuse its discretion by not allowing the introduction of the testimony.
We need not reach Hurt-Hoover’s related argument that the circuit court erred by denying its motion for a continuance. This request was predicated on the success of its motion for the withdrawal of counsel so that Jones could testify. Because the circuit court did not err by excluding Jones’s testimony, the denial of the motion for a continuance is of no consequence.
Affirmed; Arkansas Court of Appeals’ opinion vacated.
. The circuit court’s order denying the motion for summary judgment was preceded by a letter written to the parties from the court dated April 12, 2012, informing them of the court’s decision.
. These exceptions include Arkansas Code Annotated sections 16-60-601-103, 16-60-107, 16-60-114. 16-60-115. 16-60-119. and subsection 16-55-213(e). Section 16-60-111 is not mentioned. | [
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PER CURIAM.
| Appellant Patrick L. Sherman brings this appeal from two orders, both of which were entered in the Hot Spring County Circuit Court on June 10, 2013, that denied relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) in Case No. 30CR-12-241 and Case No. 30CR-12-286. In 2013, appellant entered a negotiated plea of guilty in Case No. 30CR-12-241 to fleeing on foot and possession of methamphetamine and to residential burglary and robbery in Case No. 30CR-12-286. He was sentenced as a habitual offender, who had been found guilty of three prior offenses, to an aggregate term of 144 months’ imprisonment.
Subsequently, appellant timely filed in the trial court a verified, pro se petition and amended petition for postconviction relief under Rule 37.1 that encompassed both cases. An evidentiary hearing was held in which appellant indicated that he wished the court to deal with the amended petition filed April 23, 2013. Appellant’s initial claim raised in the amended petition and argued in this appeal was that he was not afforded effective assistance of counsel | ;>when he entered his plea to the four offenses.
This court has held that it will reverse the trial court’s decision granting or denying postconviction relief- only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, 438 S.W.3d 234. 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. Caery v. State, 2014 Ark. 247, 2014 WL 2158140 (per curiam); 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 cannot 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. Caery, 2014 Ark. 247, 2014 Ark. 247; 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. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). 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. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both compo nents of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
Appellant’s claims for postcon-viction relief were limited to those asserting that his plea |4was not entered intelligently and voluntarily upon advice of competent counsel. Robinson v. State, 2014 Ark. 289, 2014 WL 2931692 (per cu-riam); Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508 (per curiam). By pleading guilty, appellant waived any claim that he was not guilty of the charges. Robinson, 2014 Ark. 289, 2014 WL 2931692. . To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, a petitioner who has entered a plea of guilty must demonstrate a reasonable probability that, but for counsel’s errors, he would not have entered a guilty plea and would have insisted on going to trial. Robinson, 2014 Ark. 289, 2014 WL 2931692 (citing Scott v. State, 2012 Ark. 199, 406 S.W.3d 1). A petitioner who has entered a guilty plea normally will have considerable difficulty proving any prejudice, as the plea rests upon an admission in open court that the petitioner did the act charged. Scott, 2012 Ark. 199, 406 S.W.3d 1. A petitioner under Rule 37.1 must allege some direct correlation between counsel’s deficient behavior and the decision to enter the plea. Robinson, 2014 Ark. 289, 2014 WL 2931692.
In his brief, appellant argues that his attorney was ineffective because she did not argue that he was illegally arrested. He further finds fault with counsel’s failure to file a pretrial motion to suppress evidence pertaining to certain clothing and the “suspect methamphetamine substance” because the substance was not confirmed by scientific testing to be methamphetamine and because it was not found until after a secondary search of the area where he was arrested. Appellant asserts that he would not have entered a plea of guilty had counsel filed the motions to suppress, presumably because the motions would have resulted in suppression of the evidence seized. Appellant also alleges that counsel should have filed pretrial motions to declare his criminal history void on the ground that the facts of the prior cases would | fishow those judgments to be invalid and to reduce the charge of felony fleeing because the facts would not support a conviction for the offense. Appellant also contends that counsel should have attacked the sufficiency of the evidence to support the fleeing charge and also filed a motion for directed verdict inasmuch as the evidence was insufficient to sustain a conviction for burglary and robbery.
A review of the allegations of ineffective assistance of counsel contained in the petition and discussed at the evidentia-ry hearing reflects that the crux of most of appellant’s assertions was that there was insufficient evidence to convict him of the four felonies to which he pleaded guilty. It is well settled that Rule 37.1 does not provide a means to challenge the sufficiency of the evidence merely because the petitioner has raised the challenge in the guise of an allegation of ineffective assistance of counsel. Nickelson v. State, 2013 Ark. 252, 2013 WL 2460147 (per curiam) (citing Norris v. State, 2013 Ark. 205, 427 S.W.3d 626) (per curiam) (The trial court was correct to deny relief on a Rule 37.1 petition where the claims, while framed as allegations of Ineffective assistance of counsel, were a challenge to the sufficiency of the evidence because such claims are a direct attack of the judgment and not cognizable under the Rule.).
The record of the guilty-plea hearing in Case No. 30CR-12-241 and Case No. 30CR-12-286 is a part of the record in this appeal. Appellant appeared with counsel and accepted a negotiated plea of guilty to the four felony charges, indicating in answer to the trial court’s query that he was satisfied with counsel’s representation. The court set out the facts underlying the charges, and appellant admitted that he was guilty of the offenses. As stated, by pleading guilty to the four offenses, appellant waived any claim that he was not guilty of the charges. Moore v. State, 2014 Ark. 231, 2014 WL 2019280 (per cu-riam). Appellant also admitted at the hearing that he was guilty of more than one and less than four prior offenses as alleged by the State as the basis for charging him as a habitual offender pursuant to Arkansas Code Annotated section 5-4-501(a)(1) (Repl.2011). The judgments were convictions in 1991 for residential burglary and theft of property and convictions in 1995 for battery and fleeing.
With respect to the claim that counsel should have challenged the validity of the 1991 and 1995 judgments for the prior offenses that resulted in appellant’s being charged as a habitual offender, counsel testified at the hearing that she examined the prior judgments and found no ground on which to challenge those judgments. Appellant contends that a challenge would have been successful as he was placed in double jeopardy because his 1995 conviction for battery and the fleeing conviction contained a common element. The claim must fail because this court has already considered the issue of whether appellant was placed in double jeopardy when he was convicted of battery and fleeing and held that he was not. Sherman v. State, 826 Ark. 153, 931 S.W.2d 417 (1996). We noted in that decision that fleeing was a separate offense and was not to be considered a component offense with any other offense occurring simultaneously. Appellant did not show in his Rule 37.1 petition that there was any meritorious challenge to be made to the prior convictions from 1995.
As to the 1991 prior judgments, appellant contended the judgments were invalid because he was not represented by counsel. Appellant, however, offered no proof that he was not represented by counsel when he entered the plea in 1991 that counsel could have employed to 17challenge the use of the 1991 judgment for burglary to establish that he was a habitual offender.
Also, it should be noted that, if appellant intended to utilize the Rule 37.1 proceeding as a means to mount a direct challenge to the legality of the 1991 or 1995 judgments, a claim challenging the validity of a prior conviction is not cognizable in a postconviction proceeding as the argument could have been addressed in an appropriate challenge to the prior judgment when that judgment was entered. See Ellis v. State, 2014 Ark. 24, 2014 WL 260991 (per curiam). Rule 37.1 does not provide a means to retry a prior judgment.
To the degree that appellant’s assertions of ineffective assistance of counsel could be said to go to whether the plea was entered with the effective assistance of counsel in his case, counsel testified at the Rule 37.1 hearing that she viewed the videotape of appellant’s arrest and reviewed the information obtained in discovery and concluded that there was no valid basis on which to file a motion to suppress the evidence. When it is alleged that counsel was ineffective for the failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is merit-less is not ineffective assistance of counsel. Conley, 2014 Ark. 172, 433 S.W.3d 234 (citing Mitchell v. State, 2012 Ark. 242, 2012 WL 1950257). For that reason, appellant must demonstrate that a motion to suppress the evidence obtained when he was arrested would have had merit. See Conley, 2014 Ark. 172, 433 S.W.3d 234 (citing Strain v. State, 2012 Ark. 42, 394 S.W.3d 294). Appellant’s claims that he did not run a stop sign triggering the traffic stop that led to his fleeing and that the arresting officer Rmust have planted the methamphetamine found near to where he was apprehended are simply his statements. There was no factual substantiation in the Rule 37.1 petition or proof presented at the hearing that the statements were true. The trial court was not required to accept appellant’s statements at face value; allegations of ineffective assistance of counsel must be supported by facts sufficient to satisfy the Strickland standard for a finding that counsel was not functioning as the counsel guaranteed a defendant by the Sixth Amendment. See Chunestudy v. State, 2014 Ark. 345, 438 S.W.3d 923 (per curiam). Appellant did not meet that burden. Conclusory allegations cannot overcome the presumption that counsel is effective and are not grounds for postconviction relief. Caery, 2014 Ark. 247, 2014 WL 2158140 (citing Watson v. State, 2012 Ark. 27, 2012 WL 234634 (per curiam)).
Appellant also argues in his brief that he was subjected to double jeopardy because he entered a plea of guilty in Case No. 30CR-12-286 to both residential burglary and robbery on the ground that the robbery was the underlying offense to the residential burglary. While a double-jeopardy claim is a fundamental claim that can be raised for the first time in a Rule 37.1 proceeding, Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000), appellant failed to establish an error in his case. Even fundamental claims must be supported by facts to demonstrate that a fundamental right was denied to a particular petitioner under the facts of his or her case. Green v. State, 2013 Ark. 455, 2013 WL 5968933 (per curiam); see also Norris v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam).
Appellant was charged by information with violating the residential-burglary statute, Arkansas Code Annotated section 5-39-201(a)(l) (Repl.2006 & Supp. 2007). The statute ^provides that a person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing any offense punishable by imprisonment. Ark. Code Ann. § 5—39—201(a)(1); see Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). To “enter or remain unlawfully” means to enter or remain in or upon premises when not licensed or privileged to enter or remain in or upon the premises. Ark.Code Ann. § 5—39—101 (2)(A); see Young v. State, 371 Ark. 393, 266 S.W.3d 744 (2007). Section 5-39-201 encompasses two separate and distinct elements, the first being the illegal entering of the residence and then, second, having the purpose to commit a felony in that residence. See Holt v. State, 2011 Ark. 391, 384 S.W.3d 498 (citing Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980)).
The felony information charged appellant with robbery in violation of Arkansas Code Annotated section 5-12-102(a) (Repl. 2006 & Supp.2007) for fighting the homeowner who was resisting the burglary. Pursuant to the statute, a person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Ark.Code Ann. § 5-12-102; see Young, 371 Ark. 893, 266 S.W.3d 744.
Appellant argues that because theft was the object of both the burglary and the robbery, he could not legally be found guilty of both offenses. The elements of the two offenses, however, were different in that robbery requires the use or threat of force. Appellant was legally found guilty of having committed burglary by entering the home to commit theft and legally | infound guilty of robbery by subsequently using force against the homeowner. See Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986) (holding under pri- or law that aggravated robbery is not a lesser-included offense of burglary, and a defendant can be convicted of both). Appellant did not establish that he was subjected to double jeopardy.
Finally, appellant, who was charged by felony information, asserts that he had an absolute right to be charged by a grand jury. The trial court did not err in declining to grant relief on the claim. This court has rejected the argument raised by appellant, which is essentially a challenge to the court’s jurisdiction. Smith v. State, 2012 Ark. 311, 2012 WL 3365218 (per curiam) (citing Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 (1973)). Section 1 of amendment 21 to the Arkansas Constitution provides that “All offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney.” The allegation that the charging instrument was invalid in appellant’s case was therefore without merit. See McGrew v. State, 338 Ark. 30, 991 S.W.2d 588 (1999) (Felonies must be charged by either grand jury indictment or by information filed by the prosecuting attorney.); see also Archer v. Benton County Circuit Court, 316 Ark. 477, 872 S.W.2d 397 (1994) (citing Ark. Const. art. 2, § 8; Ark. Const. amend. 21; Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984)).
After a review of the record and consideration of appellant’s arguments, we find that the claims raised by appellant under Rule 37.1 and argued in this appeal are without merit, and the trial court did not err in denying postconviction relief. Accordingly, the orders are affirmed.
Affirmed.
. Any other issues raised below but not argued on appeal are considered abandoned. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.
. Arkansas Code Annotated section 5-4-501(e)(1) (Repl.2011) provides that, for the purpose of determining whether a defendant has previously been convicted or found guilty of two or more felonies, a conviction or find-mg of guilt of burglary, § 5-39-201, and of the felony that was the object of the burglary are considered a single felony conviction or finding of guilt. | [
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JOHN B. ROBBINS, Judge.
| j This appeal concerns a divorce decree entered by the White County Circuit Court regarding appellant Dr. Michael Wadley and appellee Elizabeth “Beth” M. Wadley. We dismissed the initial direct appeal and cross-appeal of their November 2009 divorce decree because it was not a final, appealable order. Wadley v. Wadley, 2010 Ark. App. 733, 2010 WL 4345685. The trial court subsequently entered an amended divorce decree on July 27, 2011, resolving all outstanding issues. Michael appeals, contending that (1) the trial court abused its discretion in ordering him to pay permanent alimony of $2000 per month, and (2) the trial court clearly erred in determining the marital value of the veterinary clinic and in awarding Beth $270,000 as her interest in it. Beth cross-appeals, contending that the trial court clearly erred in failing to award her half of the “equity” gained during the marriage in a certificate of deposit | ^acquired by Michael. Although no reversible error is demonstrated on direct appeal, we find merit in the cross-appeal, necessitating reversal and remand.
Arkansas Code Annotated section 9-12-315 (Repl.2009) requires that the trial court equally divide marital property between the parties unless the trial court finds such a distribution inequitable. A trial court is required to divide the marital estate in a manner that is equitable, but we do not require mathematical precision in doing so. Coatney v. Coatney, 2010 Ark. App. 262, 377 S.W.3d 381. Allocation of marital debt must be considered in the context of the distribution of all the parties’ property. Bellamy v. Bellamy, 2011 Ark. App. 433, 2011 WL 2395205. Appeals of domestic-relations proceedings are reviewed de novo. Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007). We will not substitute our opinion as to what exact interest each party should have; we will decide only if the order is clearly wrong. Bellamy, supra.
In this case, the parties married in 1990, separated in 2007, and were divorced by decree filed in November 2009 on the basis of eighteen months of separation. The trial court later amended the decree in July 2011 to make it a final order for purposes of appeal. No children were born of the marriage, but assets and liabilities needed to be divided. Michael was a practicing veterinarian; Beth was a longtime teacher. They made their home in Searcy, Arkansas.
Beth retained her non-marital property, which included specific pieces of furniture, specific pieces of dishware, a strand of pearls, and a ring. The trial court found that a certificate of deposit held in Beth’s and her mother’s names along with her family’s farm [.¡subsidies were not marital and were not subject to division. Beth retained a 2008 Ford Explorer along with the responsibility for any indebtedness on it, which at the time of the hearing was approximately $19,000. She retained her half of the proceeds from the sale of the marital home.
Michael retained a Kawasaki motorcycle and an airplane along with the responsibility for any indebtedness on them, approximately $2840 and $22,600 respectively. Michael was to pay Beth $8000 for her interest in the value of the contents of their hangar and all other personal posses sions that were marital. He owed approximately $18,350 on the hangar. He retained his Centennial Bank account that held approximately $20,000, the source of which was his portion of the marital-home’s sale proceeds.
The parties sold a 1964 Ford Thunderbird and divided the $4000 proceeds. The parties equally divided their 2008 federal and state tax refunds (approximate aggregate sum of $11,000). They equally divided several financial accounts: a joint checking and savings account (approximate aggregate value of $950), the marital accrued value of Beth’s Missouri and Arkansas teacher retirement accounts (approximate aggregate value of $53,000), Michael’s two IRA accounts (approximate aggregate value of $49,600), and Beth’s ING account (approximate value of $10,900).
The decree divided the Wadley & Watson Veterinary Clinic by allowing Michael to retain their marital interest in the corporate stock, the real property where the clinic was located, the clinic assets, and the good will in exchange for his payment of $270,000 to Beth. The trial court awarded Beth $2000 per month permanent alimony from and after November [^2009, although it would terminate at her remarriage or either of their deaths. A certificate of deposit held in Michael’s name, valued at approximately $200,000, was determined to be comprised of money he borrowed from First Security Bank during the marriage, the debt for which Michael would be solely liable. The matters discussed in this paragraph are at issue on direct and cross-appeal.
On direct appeal, Michael argues first that the trial court abused its discretion in awarding Beth $2000 per month in permanent alimony. We disagree. 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. Cole v. Cole, 82 Ark.App. 47, 110 S.W.3d 310 (2003). The primary factors to consider are the financial need of one spouse and the other spouse’s ability to pay. Dew v. Dew, 2012 Ark. App. 122, 390 S.W.3d 764. Secondary factors are the financial circumstances of both parties, the amount and nature of current and anticipated income of the parties, the extent and nature of the resources and assets of both parties, and the earning capacity and ability of both parties. See Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006). Other factors include the parties’ past standard of living and the duration of the marriage. Page v. Page, 2010 Ark. App. 188, 373 S.W.3d 408. The trial court is vested with great discretion regarding alimony; it is not set upon a mathematical formula because the need for flexibility outweighs the need for relative certainty. Id. Notably, alimony is generally taxable income to the recipient and deductible to the payor. See Ark.Code Ann. §§ 26-51-404 and -417 (Rep1.1997).
| {¡Michael contends that viewing the overall distribution, Beth was given significant temporary alimony pending the final order and retained significant assets at the conclusion. He points to the fact that Beth continued her teaching profession before and after they married, and at the end of their marriage she was earning approximately $42,000 annually. Michael contends that Beth does not have a need for alimony, especially not any amount beyond the $1650 per month she claimed as a monthly-expense deficit, and certainly not permanently. He adds that he borrowed $200,000 to service the payments he is required to tender to Beth, which necessitates $4000 in monthly payments on that debt, indicating his less-than-optimum ability to pay this alimony.
Michael correctly points out that court-ordered alimony is always subject to modification upon a material change in circumstances. See Cole, supra. Beth concedes this long-standing Arkansas law on alimony. Thus, Michael does not suffer prejudice regarding the permanent award where appropriate material changes in circumstances may lead to a decrease or termination by the trial court.
With regard to the amount, we are not persuaded that the trial court clearly erred. In her brief to the trial court, Beth requested permanent alimony of $8000 per month but at minimum $1650 per month. Michael is a veterinarian earning approximately $195,000 annually; he was earning a net monthly income of $7740 and occasional bonus pay at the time of the hearing. His clinic pays for his vehicle and necessary gasoline in addition to life/health/disability/automobile insurance premiums. Beth supported them both for the four years he attended veterinary school. Her testimony indicated a current deficit of $1650 each | (¡month. On de novo review of the evidence, with obvious earning disparity between the parties and the approximately twenty-year length of the marriage, we cannot say that the trial court abused its discretion in awarding her $2000 per month in alimony. Dew, supra; Page, supra.
Next, Michael argues that the trial court erred in its valuation of the marital interest in the veterinary clinic, resulting in Beth receiving basically the entirety of the marital value. He asserts primarily that the trial court ignored multiple failings of Beth’s CPA in rendering an opinion of the marital value. We disagree that Michael has demonstrated clear error.
The parties presented competing professional CPA opinions of the marital value of the veterinary practice. Both CPAs agreed that valuation of this sort is not an exact science and that valuations are given in a range; they each took issue with the other’s methodology and figures. His CPA approximated the marital value between $252,600 and $325,000 after evaluating pertinent records from 2008 to 2008 and applying more than one approved method of analysis. Her CPA gave an opinion that the marital value of the veterinary clinic was much higher, approximately $525,000 to $600,000; he stated that the business should not be sold on the current open market for less than $1.6 million. The primary difference of opinion related to the entity’s good will and computation of excess earnings.
|7The trial court obviously gave greater weight to the opinion of her CPA when it awarded her $270,000 as her half in marital value. We defer to the trial court in matters of determining the weight and probative value of expert testimony. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). Michael attempts to pick apart the numerical values used by Beth’s CPA as a basis for reversal, but this is not persuasive. The trial court stated in a letter to counsel that it rendered its own finding on marital value based upon the formulas used by Beth’s CPA “but not all of his figures.” On de novo review of the evidence before the trial court, and noting that the marital value fell within the range provided by expert testimony, we cannot say that the trial court clearly erred in its division of the marital share of the veterinary clinic. See Cole, supra.
We turn now to Beth’s cross-appeal in which she contends that the trial court clearly erred by not dividing the marital equity in the certificate of deposit held in Michael’s name. The undisputed evidence was that Michael borrowed $200,000, placed the funds in a CD that drew interest, and paid down the corresponding debt to the bank, owing approximately $151,333 at the time of the hearing. The trial court found that Michael would be entitled to the CD, a marital asset, and be responsible for the outstanding indebtedness, which was significantly less than the value of the CD. This resulted in a marital asset that was not divided equally, which is clearly erroneous absent an explanation of the reasons why that division was equitable. Ark.Code Ann. § 9-12-315(a)(1)(B) (Repl.2002). Although Michael offers reasons why this was equitable, the trial court did not recite any reasons in its decree. We agree that this requires reversal and remand.
|sWe also recognize that trial courts have broad powers in distributing marital property in order to effect a division that is fair and equitable under the specific circumstances present. Copeland v. Copeland, 84 Ark.App. 303, 139 S.W.3d 145 (2003); Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). Allocation of marital debt must be considered in the context of the distribution of all the parties’ property. Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982). We recognize, too, that alimony and property division are complementary devices that are employed to make the dissolution of a marriage as equitable as possible. Cummings v. Cummings, 104 Ark.App. 315, 292 S.W.3d 819 (2009); Horton v. Horton, 92 Ark.App. 22, 211 S.W.3d 35 (2005); Cole, supra. With that in mind, we reverse and remand on cross-appeal, and because we do so, the trial court is not precluded from reconsidering its award of alimony in order to effect a fair and equitable disposition of this matter.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
VAUGHT, C.J., and HART, J., agree.
. Mr. Stephen Orr testified that he was a Certified Public Accountant, a Certified Valuation Analyst, and a Certified Forensic Financial Analyst.
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JOSEPHINE LINKER HART, Justice.
| Appellee, Alpha Marketing (“Alpha”), brought this cause of action in the Pulaski County Circuit Court against appellant, Arkansas Lottery Commission (“the Commission”), seeking, in its second amended complaint, declaratory relief that Alpha’s registered trademarks of “Arkansas Lottery,” “Arkansas Lotto,” and “Lottery Arkansas” are valid and that it holds exclusive rights to use them; injunctive relief enjoining the Commission’s alleged acts of trademark infringement; and monetary damages in the form of lost profits stemming from the alleged trademark infringement. Alpha also asserted that the alleged acts of trademark infringement constitute an illegal taking of private property in derogation of the Arkansas Constitution, entitling it to an injunction until the Commission deposits adequate funds with the circuit court to compensate Alpha for its damages.
The Commission brings this second interlocutory appeal from the circuit court’s denial of the Commission’s motion to dismiss Alpha’s lawsuit on the basis that the Commission has sovereign immunity, the first having been dismissed without prejudice for lack of a specific | ¡ruling on the issue of sovereign immunity. Ark. Lottery Comm’n v. Alpha Mktg., 2012 Ark. 23, 386 S.W.3d 400. In this appeal, the Commission asserts that Alpha failed to plead facts sufficient to state a claim under the recognized exceptions to sovereign immunity. We reverse the circuit court’s order and dismiss the lawsuit.
A discussion of the pleadings filed in this case is necessary for its disposition. Alpha filed a complaint for declaratory judgment against the Commission. In its complaint, Alpha described its business as a sole proprietorship based in Arkansas that is engaged in “advertising, promotion, and sales of goods via radio, internet, and print media throughout the state of Arkansas.” It further asserted that it began using “Arkansas Lottery” and “Arkansas Lotto” in its business activities in 1994, registering both as trademarks with the Secretary of State in 2007, and that it registered “Lottery Arkansas” in 2009, claiming use of the mark since 2007.
According to the complaint, Alpha received a cease-and-desist letter from then Senior Assistant Attorney General Bradford Phelps in 2009 “threatening legal action against Alpha Marketing if it did not immediately cease all marketing efforts” using the trademarks. A series of exchanges between the Attorney General’s Office and Alpha’s owner, Mr. Ed Dozier, then ensued, in which Mr. Dozier sought to resolve the matter and maintain his company’s rights to the marks. After hiring the Davidson law firm, it also contacted the Attorney General’s Office on Alpha’s behalf seeking a statement of intent as to the threat of litigation. Mr. Phelps replied that his office would take “no further action ‘at this time,’ ” and referred the issue to the Commission. Alpha asserted that its certificates of trademark registration entitled it to exclusive use of the trademarks; that the Commission and the Arkansas Attorney General’s | ^Office challenged its rights to exclusive use; and that litigation would likely ensue if the court did not make a declaration, regarding ownership and usage of the rights in the trademarks.
The Commission filed its answer in which it generally denied the allegations. Furthermore, it asserted under the heading “Affirmative Defenses” that Alpha “is legally ineligible” to use the trademarks because registration of the marks “is contrary to law, and the registrations should be canceled.” The Commission requested that the court deny Alpha relief and “enter a declaratory judgment canceling Alpha Marketing’s registration of the trademarks ... and for all other just and proper relief.”
Alpha filed an amended complaint in which it repleaded the factual allegations and its request for declaratory judgment. Alpha also added a claim for trademark infringement alleging that the Commission continually marketed its goods and services under the names “My Arkansas Lottery” and “Arkansas Scholarship Lottery,” during which time Alpha held its registered trademarks. Its claim for trademark infringement asserted that the Commission had used, without the consent of Alpha, colorable imitations of the marks registered by Alpha in connection with the sale, distribution, offering for sale, and advertising of the Commission’s goods and services; that such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services; and that the Commission has color-ably imitated the marks registered by Alpha and applied the colorable imitations to signs, prints, and advertisements intended to be used on or in connection with the sale of other distribution in this state of its goods or services. Alpha requested that the court enjoin the Commission from using the marks and award it lost-profit damages caused by such wrongful use.
l4The Commission filed a motion to dismiss the amended complaint and a supporting brief. In its motion, it asserted in part that the Arkansas Constitution entitled it to sovereign immunity from the trademark-infringement claims, as Alpha sought both monetary damages and in-junctive relief. The circuit court issued an order in which it denied the Commission’s motion to dismiss the amended complaint. The Commission then filed its answer to the amended complaint. In its answer, the Commission stated that it was “entitled to sovereign immunity under [ajrticle V, [sjection 20, of the Arkansas Constitution and that the Court therefore lacks jurisdiction over this action.”
The Commission made its first interlocutory appeal of the circuit court’s denial of the motion to dismiss the amended complaint. On review of the interlocutory appeal from the circuit court’s denial of the motion to dismiss, this court concluded that the Commission had failed to obtain an express ruling on the sovereign-immunity issue. Thus, this court held that an appeal based on that issue had to be dismissed, but it dismissed without prejudice “so that the Commission may return to circuit court to obtain a ruling for this court to review on an interlocutory basis.” Ark. Lottery Comrn’n v. Alpha Mktg., 2012 Ark. 23, at 9, 386 S.W.3d 400, 405.
Based on this court’s holding, the Commission then sought, and the circuit court subsequently issued, a supplemental order expressly denying the Commission’s motion to dismiss on the grounds of sovereign immunity. At that juncture, Alpha filed a second amended complaint specifically incorporating its previous allegations. It further asserted that the Commission “repeatedly took and damaged [Alpha’s] intellectual property with each act of | ginfringement and is continuing to do so with each act of infringement.” Additionally, it argued that the Commission acted in bad faith and in an ultra vires manner because it “failed to follow [the] proper statutory procedure setforth in [Arkansas Code Annotated section] 4-71-209(3)(c) and (4) to invalidate the trademarks referenced in the original and amended complaint, and rather, [the Commission] acted in bad faith and in [an] ultra vires manner by simply sending a cease[-]and[-]desist letter by and through the Attorney General’s office.” With respect to the takings claim, Alpha requested an injunction until the Commission first deposited an amount sufficient to cover its damages with the court and declaratory relief regarding the validity of and the exclusive right to use the trademarks, as well as any other just and proper relief.
Again, the Commission filed a motion to dismiss, this time the second amended complaint, arguing in part that the “second amended complaint should be dismissed in its entirety because ... the Commission was entitled to sovereign immunity.” It also filed an answer to the second amended complaint again asserting sovereign immunity. Subsequently, the court filed an order denying the motion to dismiss. In the order denying the motion to dismiss the second amended complaint, the court denied the motion because it determined that Alpha had pled sufficient facts for certain exceptions to sovereign immunity — ultra vires acts, an unconstitutional taking, and waiver of the doctrine by the Commission’s request for affirmative relief of its original answer. The court further stated, “Though the Court did not make any specific ruling on any of the substantive claims, the Court finds that [Alpha] pled sufficient facts for each exception to sovereign immunity to withstand a Motion to Dismiss.” The Commission appealed.
|ñThe Commission and Alpha have put forth differing appellate standards of review. The Commission asserts that the issue of whether a party is immune from suit is a question of law and is reviewed de novo, but Alpha contends that the appropriate standard of review is an abuse of discretion. Given that the circuit court made no substantive interpretations of law but instead made its decision by looking at Alpha’s pleadings and finding that Alpha “pled sufficient facts for each exception to sovereign immunity,” we apply the abuse-of-discretion standard of review. Ark. Dep’t of Envtl. Quality v. Oil Producers of Ark., 2009 Ark. 297, at 5, 318 S.W.3d 570, 572-73. On reviewing the denial of the motion to dismiss on sovereign immunity grounds, we look to the pleadings, treating the facts alleged in the complaint as true and viewing them in the light most favorable to the party who filed the complaint. Travelers Cas. & Sur. Co. of Am. v. Ark. State Highway Comm’n, 353 Ark. 721, 726, 120 S.W.3d 50, 52 (2003)
The defense of sovereign immunity originates from the Arkansas Constitution, which provides that “[t]he State of Arkansas shall never be made defendant in any of her courts.” Ark. Const, art. V, § 20. The Commission’s sovereign immunity is expressly reserved in Arkansas Code Annotated section 23-115-208(a) (Supp.2011). Because a judgment for Alpha would operate to control the action of the State or subject it to liability, the suit is one against the State and is barred by the doctrine of sovereign immunity. Ark. Tech Univ. v. Link, 341 Ark. 495, 502,17 S.W.3d 809, 813 (2000). For instance, a judgment for Alpha declaring its trademarks valid and its exclusive right to use them would, in effect, determine how the Commission advertises and markets the state lottery, as would its claim for injunctive relief related to alleged acts of trademark infringement. Further, a judgment for Alpha on its | ./declaratory-relief claim would require the Commission to file suit seeking to cancel the trademarks, thus forcing the Commission to surrender its sovereign immunity. Travelers Cas. & Sur. Co., 353 Ark. at 728-29, 120 S.W.3d at 54. Thus, the lawsuit is barred by the defense of sovereign immunity.
Additionally, a judgment for Alpha on its trademark-infringement claim, in which it seeks lost-profit damages, or on its takings claim in which it seeks an injunction until the Commission deposits adequate funds with the court to compensate for damages, would implicate the state’s treasury and subject it to liability. Alpha’s claim for lost-profit damages stemming from alleged acts of trademark infringement is barred by sovereign immunity because none of the exceptions apply to permit a damages claim to proceed against the sovereign state. There is an exception to sovereign immunity for unconstitutional acts, but the scope of the exception is limited to actions for injunctions. Ark. Tech Univ., 341 Ark. at 507, 17 S.W.3d at 816. The exception does not apply to suits seeking money damages. Id., 17 S.W.3d at 816. In addition, the exception for ultra vires, arbitrary, capricious or bad-faith acts extends only to injunctive relief; this court has never recognized the exception to allow a claim for damages to proceed. See Ark. Dep’t of Envtl. Quality, 2009 Ark. 297 at 6-7, 318 S.W.3d at 573-74. Because these exceptions do not apply to a claim seeking monetary damages, and because the Commission did not waive its sovereign immunity, this claim is barred.
Because each of Alpha’s claims is barred by sovereign immunity, we must determine whether Alpha pled facts sufficient to establish that one of the recognized exceptions to sovereign immunity applies. If not, its claims are barred by the doctrine of sovereign immunity.
IsAlpha asserts that the Commission waived the defense of sovereign immunity. Alpha’s waiver argument is predicated on the proposition that the Commission waived sovereign immunity by seeking affirmative relief. The Commission could not raise the defense of sovereign immunity if it has been a moving party seeking specific relief. See LandsnPulaski, LLC v. Ark. Dep’t of Corr., 372 Ark. 40, 43, 269 S.W.3d 793, 796 (2007). Alpha primarily focuses on the paragraph in the Commission’s answer to the original complaint in which, under the heading, “Affirmative Defenses,” it stated as follows:
Pleading affirmatively, Plaintiff is legally ineligible to use “Arkansas Lottery,” “Lottery Arkansas,” and “Arkansas Lotto,” as trademarks. Plaintiffs registration of these trademarks is contrary to law, and the registrations should be canceled.
WHEREFORE, Defendant Arkansas Lottery Commission requests that this Court deny Plaintiff any relief and enter a declaratory judgment canceling Alpha Marketing’s registrations of the trademarks “Arkansas Lottery,” “Lottery Arkansas,” and “Arkansas Lotto” and for all other just and proper relief.
The Commission argues that there was no waiver because it dropped the request for declaratory judgment in its answer to the amended complaint, and, similarly, its answer to the second amended complaint did not contain a request for affirmative relief. It posits that these subsequent pleadings supersede and replace its original answer. By analogy, it cites to Edward J. DeBartolo Corp. v. Cartwright, 323 Ark. 573, 577, 916 S.W.2d 114, 116-17 (1996), in which the court observed that “an amended complaint, unless it adopts and incorporates the original complaint, supersedes the original complaint.”
In response, Alpha contends that the Commission’s subsequent amended answer incorporated by reference a request for affirmative relief. Alpha points to paragraph 34 of the Commission’s amended answer, where it stated that Alpha was legally ineligible to use the [.¡trademarks, that the registration of the trademarks was contrary to the law, and that “the registrations should be cancelled.” In paragraph 35 of the Commission’s answer to the amended complaint, the Commission stated that it “incorporates by reference all defenses and arguments raised in its motion to dismiss the amended complaint ... and its brief in support of its motion to dismiss.” In its brief, the Commission asserted that “[b]eeause the plaintiffs trademarks are deceptively misdescriptive and are likely to deceive consumers, the plaintiffs trademarks are invalid and should be cancelled.”
We hold that the Commission’s answer to the second amended complaint, however, superseded and replaced its two prior answers. While the Commission’s answer to the second amended complaint incorporated certain responses it made in its amended answer, it did not incorporate a request for cancellation of the trademarks. This pleading instead superseded all prior answers and established that the Commission relied on and pleaded the doctrine of sovereign immunity. Clearly, in the Commission’s answer to the second amended complaint, the Commission raised the defense of sovereign immunity and did not seek affirmative relief.
1 inAlpha claims an exception to sovereign immunity under the Arkansas Administrative Procedure Act (APA). The APA is a limited exception to the State’s immunity arising under article V, section 20 of the Arkansas Constitution. Ark. Dep’t of Envtl. Quality v. Al-Madhoun, 374 Ark. 28, 33, 285 S.W.3d 654, 659 (2008). Specifically, the APA provides:
In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself or herself injured in his or her person, business, or property by the failure, refusal, or delay may bring suit in the circuit court of any county in which he or she resides or does business, or in Pulaski County Circuit Court, for an order commanding the agency to act.
Ark.Code Ann. § 25-15-214 (Repl.2002). Thus, the APA authorizes the Pulaski County Circuit Court to command agencies failing or refusing to act to the injury of any person or their property to do so where the agency acts unlawfully, unreasonably, or capriciously.
Alpha asserts that the APA orders the Commission to answer for its ultra vires use of power in a court of equity, and that Alpha exercised the only form of relief it had by bringing suit in the Pulaski County Circuit Court. Alpha seems to argue that the APA entitled it to bring its claims in the circuit court because the Commission, through the Attorney General’s Office, failed to act or unreasonably delayed providing Alpha with its “final position” on whether it would bring suit under the Arkansas Deceptive Trade Practices Act (ADTPA) after sending the cease-and-desist letter.
Alpha failed to plead facts sufficient to establish this exception to the sovereign-immunity doctrine for two reasons. First, this matter is not one concerning “rule making” or an “adjudication,” to which the APA exception applies. “Adjudication” is defined as an “agency process for the formulation of an order.” Ark.Code Ann. § 25-15-202(i)(A)_Lu(Supp.2011). An “order” means “the final disposition of an agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice and hearing.” Ark.Code Ann. § 25-15-202(5). Finally, “rule making” is defined as the “agency process for the formulation, amendment, or repeal of a rule.” Ark. Code Ann. § 25-15-202(9). Given these definitions, and the express language of the APA limiting its application to cases of rule making and adjudication by an agency, this exception does not apply to this case.
Second, even if Alpha’s factual allegations regarding the Commission’s delay or failure to act after sending the cease-and-desist letter are true, the APA does not entitle it to seek the relief it has sought. The express language of the APA only authorizes the Pulaski County Circuit Court to issue an order commanding the agency to act. Alpha did not seek an order from the Pulaski County Circuit Court commanding the Commission to act; instead, it sought declaratory, injunctive, and monetary relief. Nowhere did it assert that it was seeking an order commanding the Commission to act. In any event, the Attorney General’s Office did act; it sent a letter declaring its intent not to pursue the ADTPA claim and referring the matter to the Commission. Alpha acknowledges this fact in its pleadings. For these reasons, the APA as a limited exception to the Commission’s sovereign immunity is inapplicable to the case at bar.
Alpha’s arguments that the Commission committed an ultra vires act center on the Attorney General’s sending a cease-and-desist letter predicated on violations of the ADTPA, requiring it to take down its website and arrest its advertising activities or face suit. Alpha argues that the Commission was authorized to hold and enforce its trademarks, and as such, 112it should have brought suit to cancel the trademarks under Arkansas Code Annotated section 4 — 71—209(3)(c),(4) (Repl.2011) as opposed to sending the cease-and-desist letter, which it contends amounted to a threat to take Alpha’s property. Interspersed with this argument is that sending the letter amounted to an arbitrary, capricious, and bad-faith act.
A state agency may be enjoined if it can be shown that the agency’s pending action is ultra vires or outside the authority of the agency. Ark. Dep’t of Envtl. Quality, 2009 Ark. 297, at 6, 318 S.W.3d at 573. Furthermore, a state agency may also be enjoined from acting arbitrarily, capriciously, in bad faith, or in a wantonly injurious manner. Id. at 6-7, 318 S.W.3d at 573-74. Alpha failed to plead facts to demonstrate that the Commission acted outside the scope of its authority or that it acted in an arbitrary, capricious manner or in bad faith. Alpha does not assert anywhere in its pleadings that the Commission solicited the Attorney General’s Office to send the letter; nor does the letter mention the Commission. If the Attorney General’s Office acted of its own volition, which the letter indicates and Alpha does not contest, it is unclear how the letter can be construed as an ultra vires, arbitrary, capricious, or bad-faith act by the Commission.
Even assuming that the letter had been sent by the Commission through the Attorney General’s Office, it was predicated on Alpha’s alleged violations of the ADTPA; nowhere did the letter refer to Alpha’s trademarks or the desire to cancel them. Alpha did not plead that the Commission, by and through the Attorney Gen eral’s Office, did not have authority to send the cease-and-desist letter predicated on a violation of the ADTPA. As the Commission correctly argues, the Attorney General’s Office is expressly authorized by statute to enforce the |1SADTPA pursuant to Arkansas Code Annotated §§ 4-88-104, 4-88-105(d)(6) (Repl.2011). Nowhere did Alpha plead or contest that the Attorney General’s Office did not have authority to act on alleged violations of the ADTPA or that it did not have a good-faith belief that violations of the ADTPA had occurred. Instead, Alpha asserts that the letter was a veiled attempt to cancel its trademarks and the proper procedure for doing so is to bring suit to cancel the trademarks. There is no requirement that the Attorney General’s Office pursue a lawsuit to cancel trademarks when alleged advertising activities are also potentially deceptive in violation of the ADTPA. The Attorney General’s Office could pursue a remedy under the ADTPA, which it is expressly authorized to enforce, for Alpha’s allegedly deceptive conduct. Moreover, if the statutory scheme compelled the Commission to bring suit to cancel the trademarks, it would, in effect, compel the Commission to waive its sovereign immunity. Thus, Alpha has not stated facts sufficient to show that any act on the part of the Commission was ultra vires, made in bad faith, or was arbitrary or capricious.
In so far as Alpha seemingly pleaded a claim for an unconstitutional taking predicated on the Attorney General’s Office sending a cease-and-desist letter, which Alpha characterizes as a “threat to take its private property,” it failed to plead sufficient facts to establish the applicability of this exception. First, the pleadings demonstrate that, after sending the cease-and-desist letter, the Attorney General’s Office subsequently informed Alpha that it did not intend to pursue the matter. Thus, even assuming that the letter did constitute a threat to take Alpha’s property and that such a threat gave rise to an unconstitutional takings claim, neither the Commission nor the Attorney General’s Office acted on the threat; in fact, the 114undisputed facts demonstrate that the Attorney General’s Office effectively retracted the alleged threat to take Alpha’s property.
Alpha pleads that ongoing acts of trademark infringement by the Commission constitute an unconstitutional taking of its property. In support of this assertion, Alpha argues that infringement on a trademark is analogous to a taking, that it has established a vested property right in its trademarks, and that each time the Commission infringes on its trademarks, there is a continuous taking.
We decline to address in this case whether a trademark infringement committed by a state entity can give rise to a cognizable takings claim under the Arkansas Constitution. Instead we are guided by Austin v. Arkansas State Highway Commission, 320 Ark. 292, 895 S.W.2d 941 (1995), where we affirmed the dismissal of the plaintiffs’ action against the Highway Commission, which erected a barrier, effectively blocking access to their land. In dismissing the case, the court relied on the principle that a “landowner, claiming a taking of property, may seek either prospective injunctive relief in chancery court or damages from the State Claims Commission.” Id. at 296, 895 S.W.2d at 943. Alpha’s continuous-takings argument is tantamount to a finding that once the Highway Commission erected the barrier blocking the Austins’ access to their land, they continued to suffer damages each day their access was denied, thereby entitling them to injunctive relief. Because Alpha argues that the cease-and-desist letter constituted the “taking,” and thus the taking had already occurred prior to its having filed the first complaint, its claim for in-junctive relief is barred by the defense of sovereign immunity.
In conclusion, we hold that the Commission is an entity of the State entitled to the |1Bdefense of sovereign immunity. Further, Alpha’s claims for injunctive, monetary, and declaratory relief would operate to control the actions of the State and are therefore barred by the defense of sovereign immunity. Also, the exception for waiver does not apply; the exception for ultra vires, arbitrary, capricious, or bad-faith acts does not apply; the limited exception found in the Arkansas Administrative Procedure Act does not apply; and the takings exception does not apply.
Reversed and dismissed.
Special Justice J. SHEPHERD RUSSELL, III, joins and concurs.
CORBIN, DANIELSON, and GOODSON, JJ., dissent.
HOOFMAN, J., not participating.
. Though not argued by the parties, we are mindful that Rule 12(h)(1) of the Arkansas Rules of Civil Procedure provides that "[a] defense of lack of jurisdiction over the person, improper venue, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading.” Sovereign immunity is an affirmative defense that must be specifically asserted in a responsive pleading under Rule 8(c), but because it is not a defense listed in Rule 12(h)(1), it may be raised in an amended answer under Rule 15(a). See Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 419-20, 291 S.W.3d 179, 184 (2009) (holding that waiver of the defense of charitable immunity did not result from failure to plead it in the original answer). | [
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DONALD L. CORBIN, Justice.
11 Petitioner, John Skylar “Sky” Tapp, an attorney licensed to practice law in Arkansas since 1976, petitions this court for a writ of certiorari to vacate an interim suspension of his law license while disbarment proceedings are pursued against him by Respondent Stark Ligón, as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct (“Committee”). In seeking the writ, Tapp asserts that the interim suspension should be dissolved and replaced with such reasonable conditions as this court may impose. Tapp argues that there will be no irreparable harm to the public, his clients, or the judicial system if the suspension is vacated. He further argues that when this court examines the entire record we should conclude that it is not likely that he will ultimately be disbarred. Our jurisdiction of this petition is pursuant to section 16(E) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (“Procedures”). For the reasons explained below, we deny Tapp’s petition for a writ of cer-tiorari.
|2The record reveals that Panel B of the Committee voted in December 2012 to institute disbarment proceedings against Tapp as the result of two separate cases before the Committee. The panel also voted to impose an interim suspension on Tapp pursuant to sections 16(A)(1) and 17(E)(3) of the Procedures. The first case is CPC Docket No. 2012-047, wherein the Office of Professional Conduct (“OPC”) instituted a formal complaint against Tapp as a result of a referral by United States Bankruptcy Court Chief Judge Richard D. Taylor. According to the evidence before Panel B, Tapp and Marilyn and William Fenimore forméd an Arkansas company, G.F.S.T., LLC (GFST), to purchase property in Panama City, Florida. Tapp owned a one-half interest in GFST, while the other half was owned by Garrett-Feni-more, LLC, a business entity formed by the Fenimores. GFST purchased one property in Panama City, and Tapp, personally, purchased another piece of property in Bay County, Florida, which he pledged as additional collateral for the Panama City property owned by GFST. Following a downturn in the market, GFST could no longer make payments on its property, nor was Tapp able to make payments on his personal property, and both went into foreclosure. On February 7, 2012, a “Final Judgment of Foreclosure” was entered in favor of Regions Bank against GFST, Tapp, Garrett-Fenimore, and others in the amount of $825,165, plus interest. A judicial sale was scheduled for July 6, 2012.
After entry of the foreclosure order, Tapp, acting pro se, filed two bankruptcy actions on March 8, 2012, in Arkansas. The first was a handwritten, personal Chapter 13 petition that was assigned docket number 12-bk-70931. Therein, Tapp listed as an asset a one-half ownership interest in GFST that he valued at $350,000 and that was subject to a $700,000 I..¡secured claim to Regions Bank. He also listed on his personal financial statement the one-half interest in GFST; the Panama City property, listed as a “negative” asset of $350,000; and the Bay County property, valued at $550,000 and noted as pledged on the same Regions Bank note for the Panama City property. The foreclosure proceeding in Florida was not disclosed in this action.
Tapp, again acting pro se, filed a second Chapter 13 bankruptcy petition, docketed as number 12-bk-70933, on behalf of GFST. Therein, Tapp listed as “Joint Debtors” Marilyn and William Fenimore, as the co-owners of GFST. He also listed the Panama City property as an asset, subject to the Regions note and mortgage.
The bankruptcy trustee filed a motion to dismiss docket number 12-bk-70933 on March 23, 2012, claiming federal law allows only individuals to file a Chapter 13 action. That same day, the trustee also moved to dismiss docket number 12-bk-70931 on the basis that Tapp was ineligible to proceed under Chapter 13. The petitions were ultimately dismissed, but Chief Judge Taylor ordered Tapp to show cause, and a hearing was held on April 12, 2012. At that hearing, Tapp admitted that there was a pending judicial-foreclosure sale for both the Panama City and Bay County properties. He also admitted that he filed the two bankruptcy petitions to stay or delay the foreclosure proceedings in Florida. While Tapp admitted that he did not intend to make the Fenimores Chapter 13 debtors, he also admitted that he did not represent them. At the conclusion of the hearing, Chief Judge Taylor | announced that he was forwarding this matter to the Committee because of his concern that Tapp had admitted putting the Fenimores into bankruptcy when Tapp was not their attorney.
The panel asserted that, based on the evidence before it, Tapp had violated the following Arkansas Rules of Professional Conduct: (1) Rule 1.1, by demonstrating a lack of legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation; (2) Rule 1.4(a)(1), by failing to acquire the Fenimores’ consent before listing them as joint debtors on the bankruptcy petition; (3) Rule 8.1, by bringing a proceeding that had no basis for being filed; (4) Rule 3.3(a), by knowingly making a false statement of law; (5) Rule 3.4(b), by providing false evidence in purporting to have the authority to file for bankruptcy on behalf of GFST; (6) Rule 4.4(a), by using means that had no substantial purpose other than to embarrass, delay, or burden a third person; (7) Rule 8.4(c), by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and (8) Rule 8.4(d), by engaging in conduct that is prejudicial to the administration of justice.
The second case against Tapp is CPC Docket No. 2012-049, which stems from Tapp’s representation of Dr. Katharine Hurst; she is also Tapp’s first cousin. According to the information presented to Panel B, Tapp began representing Dr. Hurst in her divorce from Dr. Kevin Rudder in 2005. A decree of divorce was entered January 2, 2008, and provided that each party was entitled to one-half of $13,368, from proceeds realized from the sale of their marital residence. Tapp was initially ordered to hold these funds on behalf of Dr. Hurst |sin his client-trust account pending resolution of an appeal. The appeal was decided on September 9, 2009, and Tapp filed one last pleading on behalf of Dr. Hurst in May 2011. After failing for several years to obtain her one-half of the escrowed funds, Dr. Hurst filed a grievance with the OPC. The OPC wrote Tapp a letter dated June 6, 2012, informing him of the grievance filed by Dr. Hurst. Tapp replied by letter, dated June 21, 2012, stating that he had paid the money owed Dr. Hurst to her bankruptcy trustee on June 19, 2012. He paid the $6,611.82 to the trustee by check # 3046 from his client-transaction account, drawn on Malvern National Bank.
Following Tapp’s reply letter, the OPC requested that Tapp provide his monthly statements for his client-transaction account for the period beginning April 2006 through June 2012, so that it could verify that the $6,611.82 belonging to Dr. Hurst had continuously remained in his client-trust account. Tapp complied, and the records from Malvern National Bank revealed that the client-trust account had fallen below that amount on at least eighteen occasions, going as low as $6 in March 2011.
In its complaint and supplemental complaint on the Hurst matter, the OPC alleged that Tapp violated the following Rules of Professional Conduct: (1) Rule 1.15(a)(1), by failing to hold his client’s property separate from his own property; (2) Rule 1.15(a)(4), by failing to accurately maintain his trust-account records; (3) Rule 1.15(b)(1), by failing to deposit client funds in a separate, clearly identifiable trust account; (4) Rule 1.15(b)(3), by depositing nonclient funds in a client-trust account well in excess of the $500 allowed under the rule; (5) Rule 1.16(d), by failing to disburse his client’s funds upon termination of representation; and |fi(6) Rule 8.4(c), by making a false and misleading statement to the OPC that Dr. Hurst’s funds had remained safeguarded in his client-trust account at all times.
Tapp filed answers to the complaints, disputing the factual allegations and alleged rules violations asserted by the OPC. According to Tapp, he never intentionally violated any rules. With regard to the bankruptcy matter, Tapp stated that he was following the advice of a friend, who was a bankruptcy attorney, and that he mistakenly listed the Fenimores on the petition as joint debtors instead of co-debtors because of his inexperience with bankruptcy law. Moreover, Tapp denied that he ever intended to represent the Fenimores in bankruptcy without their consent, as evidenced by the fact that he listed their Florida attorney’s name and address on the bankruptcy petition. Finally, Tapp contended that he believed he was authorized to file for bankruptcy on behalf of GFST because he was a fifty-percent owner. As to the Hurst matter, Tapp asserted that Dr. Hurst’s bankruptcy attorney informed him that the funds belonging to Dr. Hurst could be paid only to the bankruptcy trustee at the conclusion of her appeal in the divorce matter, that there was no request by the trustee or her bankruptcy attorney to disburse those funds, and that her funds were always available. While Tapp admitted that his bookkeeping was insufficient, he averred that Dr. Hurst’s funds were never missing and that he had paid them out of his earned fees in a different client-trust account maintained at Arvest Bank. According to Tapp, he had left an earned fee from another client in his client-trust account per an agreement with that client pending any outstanding Medicare issues that might arise. To support this claim, Tapp attached an affidavit from the client.
17Upon review, Panel B of the Committee entered two separate orders and findings on December 28, 2012. Therein, the panel found that Tapp had violated each of the rules alleged in the complaints and that he had committed serious misconduct. The panel ordered disbarment proceedings to be initiated and imposed an interim suspension of Tapp’s law license. In reaching these decisions, the panel noted that Tapp’s prior disciplinary record was a factor in its decision.
On December 81, 2012, Tapp filed a motion for dissolution or modification of the interim suspension, pursuant to section 16(B) of the Procedures. At that same time, he also submitted an affidavit in rebuttal, refuting what he deemed to be “erroneous factfindings” by Panel B. On February 19, 2013, the panel denied Tapp’s motion for dissolution or modification and ordered the interim suspension to be filed with this court’s clerk.
Tapp then filed the instant petition for writ of certiorari on February 22, 2013, as well as a motion for accelerated consideration. We granted the motion for accelerated consideration, ordered briefing by the parties, and temporarily stayed the interim suspension. We turn now to the merits of Tapp’s petition.
Pursuant to section 17(E) of the Procedures, when a panel of the Committee finds that an attorney has violated any provision of the Arkansas Rules of Professional Conduct, the panel is authorized to temporarily suspend the attorney’s privilege to practice law pending a final adjudication and disposition of the disciplinary matter. According to section 17(E)(3), an interim suspension shall be appropriate in the following situations:
(a) Immediately on decision to initiate disbarment;
|s(b) Immediately upon proof that the attorney has been found guilty of a Serious Crime in any jurisdiction, notwithstanding pending post-conviction actions; and,
(c) When a panel of the Committee is in receipt of sufficient evidence demon strating that the lawyer has engaged or is engaging in misconduct involving:
(i) Misappropriation of funds or properly;
(ii) Abandonment of the practice of law; or,
(iii) Substantial threat of serious harm to the public or to the lawyer’s clients.
Where an interim suspension has been imposed, an attorney may submit to the executive director an affidavit in rebuttal of the evidence before the panel of the Committee and a request for the dissolution or modification of the interim suspension. See Ark. Sup.Ct. P. Regulating Profl Conduct § 16(B). If the request is denied, the attorney may then petition this court for a writ of certiorari as set forth in section 16(E) of the Procedures, which provides as follows:
Upon the filing of a petition for a writ of certiorari with the Clerk after final action by the Committee or its panel imposing an interim suspension on an attorney, the Arkansas Supreme Court, in its discretion, may decide whether to review the imposition of the interim suspension and may take any action regarding the interim suspension which it determines is appropriate.
It is by way of section 16(E) that we are here. This Procedure was adopted in 2011. See In re Procedures of the Ark. Sup. Court Regulating Prof'l Conduct of Attorneys at Law, 2011 Ark. 242 (per cu-riam). The instant petition presents us with an issue of first impression, as this court has heretofore not addressed section 16(E). Accordingly, we must determine an appropriate standard to be utilized in reviewing such petitions.
| flTapp asserts that the closest procedure to one such as this is a preliminary injunction. This court has explained that in determining whether to issue a preliminary injunction or a temporary restraining order, a circuit court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007). We agree with Tapp that an interim suspension to practice law is akin to a preliminary injunction. In fact, other jurisdictions have treated it as such. E.g., In re Discipline of Trujillo, 24 P.3d 972 (Utah 2001); People v. Varallo, 913 P.2d 1 (Colo.1996) (per curiam), cert. denied, 519 U.S. 822, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996); In re Malvin, 466 A.2d 1220 (D.C.1983) (per curiam); see also Francis M. Dougherty, Annotation, Validity and Construction of Procedures to Temporarily Suspend Attorney from Practice, or Place Attorney on Inactive Status, Pending Investigation of, and Action Upon, Disciplinary Charges, 80 A.L.R.4th 136 (1990).
In Malvin, the Court of Appeals for the District of Columbia reasoned that the temporary suspension of an attorney pending the completion of a disciplinary proceeding had the same effect as a preliminary injunction barring that attorney from the practice of law. The court then explained that it was necessary to apply the standards governing the issuance of a preliminary injunction but adapted to the context of a professional-disciplinary proceeding. Id. The Supreme Court of Utah, relying on the decision in Malvin, adopted the following four-factor standard in analyzing the propriety of an attorney’s interim suspension: (1) whether the public will suffer irreparable harm unless the order of interim suspension issues; (2) whether the threatened injury to the public outweighs whatever damage the proposed order | ,nmay cause the attorney temporarily sus pended from the practice of law; (3) whether the proposed order, if issued, would be adverse to the public interest; and (4) whether there is a substantial likelihood, based on all the available evidence, that a significant sanction will be imposed on the attorney at the conclusion of any pending disciplinary proceedings. Trujillo, 24 P.3d 972. We are persuaded by the court’s reasoning in Trujillo and adopt the aforementioned factors to be utilized when considering a petition such as the instant one.
We now review those factors in light of the facts in this ease. The first question we must answer is whether the public will suffer irreparable harm unless the order of interim suspension issues. Tapp argues that there will be no irreparable harm if he is allowed to continue practicing law. According to Tapp, there are no allegations here of substance abuse, no allegations of criminal activity, or any allegations of missing funds. But, we cannot say that an interim suspension will be necessary only in one of these circumstances enumerated by Tapp. Here, among its many other findings, Panel B specifically found that Tapp violated rules of professional conduct involving client representation in that he demonstrated a lack of legal knowledge, skill, thoroughness, and preparation. Whether by intention or mistake, Tapp purported to represent the Feni-mores, without their consent, and ultimately made them joint debtors in a bankruptcy action that he admitted was filed for the sole purpose of delaying the foreclosure proceedings in Florida. All of this was done despite Tapp’s experience with bankruptcy proceedings. As Panel B found, Tapp was experienced in bankruptcy court, having appeared as counsel of record in at least eighteen bankruptcy cases in Arkansas since 1987, including three Chapter 13 cases. Moreover, the evidence before the panel established |nthat Tapp failed to properly manage the funds in his client-trust account, and would not turn funds over to his client, Dr. Hurst, until she filed a grievance with the OPC. Finally, Panel B found that Tapp committed numerous violations of the model rules, some of which constituted serious misconduct. We simply cannot agree with his assertion that there is no risk of harm to the public or to his clients.
We must next analyze whether the threatened injury to the public outweighs whatever damage the proposed order of suspension may cause Tapp. While we are mindful of Tapp’s assertion that he has a busy law practice and that his clients will be harmed if they are forced to find new representation, we cannot ignore the serious nature of Tapp’s misconduct. Harm has already befallen Tapp’s former business partners, the Fenimores, because of his actions in the GFST bankruptcy petition. Moreover, Panel B found that Tapp was able to pay the funds he owed to Dr. Hurst and her trustee due only to large deposits of funds from other sources in the months preceding the issuance of the check to Dr. Hurst. Panel B further found that Tapp’s assertion that Dr. Hurst’s funds had continuously remained in his client-trust account was a false statement. In light of this evidence, we conclude that the threat of further harm to clients or to the public certainly outweighs any damage Tapp might sustain as a result of the temporary suspension.
The third factor is whether the order of suspension, if issued, would be adverse to the public interest. Again, we are mindful of Tapp’s assertion that he has a busy law practice. And, while he may have clients who will be forced to seek new legal representation, we cannot agree with Tapp that it is more reasonable to allow him to continue practicing law 112with certain restric tions in place, including the appointment of a monitor for Tapp’s practice. Tapp points to section 17(E)(7) of the Procedures, which allows the appointment of a monitor for a lawyer placed on probation, but we do not find such an appointment to be appropriate under the facts of this case. Here, we cannot say that an order of suspension will be adverse to the public interest when there are numerous allegations of serious misconduct by Tapp.
Finally, we must consider whether there is a substantial likelihood, based on all the evidence, that a significant sanction will be imposed on Tapp. The Committee is seeking the disbarment of Tapp, based on the findings of misconduct in both the bankruptcy and Dr. Hurst matters. In addition to the evidence supporting the findings of misconduct, we also have to consider Tapp’s prior disciplinary record. In thirty-seven years of practicing law, Tapp has accumulated one warning, six cautions, and six reprimands as a result of attorney misconduct. In light of these prior disciplinary proceedings and the serious nature of the alleged misconduct in the latest two cases, it is reasonable to conclude that a suspension, or possible disbarment, will result.
Accordingly, upon consideration of the aforementioned four factors, we cannot say that the Committee’s decision to impose an interim suspension on Tapp’s license to practice law was improper. We therefore deny Tapp’s petition for writ of certiorari to dissolve or modify the order of suspension. The temporary stay of the interim suspension is also vacated.
Petition denied.
BAKER and HART, JJ., concur in part; dissent in part.
. The Fenimores filed an adversary proceeding against Tapp in Arkansas, bankruptcy docket No. 12-ap-07036, seeking compensatory and punitive damages, for the unauthorized filing by Tapp of the GFST bankruptcy petition. The Fenimores subsequently dismissed this action. | [
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JOHN MAUZY PITTMAN, Judge.
| ,This is an appeal from a judgment of dismissal with prejudice on the pleadings of appellant United Systems’ lawsuit against appellees Beason & Nalley, Inc.; its former director and owner, Chad Bra-ley; and its former consultant, David Miller (collectively referred to hereafter as Beason & Nalley). Appellant argues that the trial court erred in finding that grounds for dismissal existed. We agree, and we reverse and remand.
United Systems hired Beason & Nalley in 2008 to prepare Incurred Cost Submission (ICS) reports that United Systems was required to submit in connection with a subcontract that United Systems had on a federal government project. United Systems chose Beason & Nalley for this work because Beason & Nalley held itself out as an expert in U.S. government 1 contracts and the preparation of reports and documents required in connection with such contracts. Beason & Nalley prepared the ICS reports, but these reports erroneously deducted certain costs that were not deductible pursuant to applicable regulations. United Systems hired a different firm to correct the errors so that it could submit compliant ICS reports and sued Beason & Nalley for breach of contract and negligence. Beason & Nalley moved to dismiss on the pleadings for failure to state a claim, and the motion was granted. Because the case had previously been dismissed, the second dismissal was with prejudice. See Ark. R. Civ. P. 41(b).
In reviewing a trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Hendrickson v. Carpenter, 88 Ark.App. 869, 199 S.W.3d 100 (2004). In testing the sufficiency of the 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. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id. We look to the underlying facts supporting an al-, leged cause of action to determine whether the matter has been sufficiently pled. Id.
Beason & Nalley moved for dismissal on three grounds: first, that United Systems’ claim for contract damages must fail because the damages sought were consequential, and the contract demonstrated that there was no tacit agreement by Bea-son & Nalley to be liable for consequential damages; second, that the indemnity clause of the contract barred United h Systems from bringing any claim against Beason & Nalley with respect to their contract or its performance; and third, that no action against Beason & Nalley would lie because United Systems had admitted that the actions of Keith Reed, United Systems’ chief financial officer, were the proximate cause for the submission of improper expenses on the ICS reports prepared by Beason & Nalley. The trial court’s order did not specify the ground or grounds on which the court based its order of dismissal, but the court nevertheless erred because none of these arguments provide grounds for dismissal.
Direct or Consequential Damages
The distinction between direct and consequential damages was recently discussed in Hobson v. Entergy Arkansas, Inc., 2014 Ark. App. 101, at 12-18, 432 S.W.3d 117:
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, supra § 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.
Here, United Systems sought damages of $29,976.11 against Beason & Nal-ley, that being the amount that United Systems paid another firm to correct the errors in the ICS reports prepared by Beason & Nalley. There is no more natural and direct result of the failure to perform under a contract than the reasonable cost of obtaining substituted performance. Damages that seek to compensate a plaintiff for the value of the performance promised are direct rather than consequential. 24 Richard A. Lord, Williston on Contracts § |464:12 (4th ed.2002) (citing Schonfeld v. Hilliard, 218 F.3d 164 (2d Cir.2000)). Beason & Nalley’s claim that the damages sought were other than direct is unsupported by either logic or authority.
Indemnity Clause
It is possible to contract to indemnify an indemnitee for the indemnitee’s own negligence, but a high standard is generally required before a contract will be so interpreted. Restatement (Third) of Torts: Apportionment of Liability § 22 (2000).
[However,] agreements tending to erode common-law liability or relieving the contracting parties from penalties imposed for their improper conduct are not favored. The law expresses this disfavor either by indulging in a presumption against the parties’ intention to contract for immunity against the consequences of their own negligence, or by requiring that such a provision for immunity in a contract must be expressed in clear and unequivocal language to be valid and effective.
8 Richard A. Lord, Williston on Contracts § 19:19 (4th ed.1998). In Arkansas, a party’s intent to contractually obligate itself to indemnify another party for that second party’s own negligence must be expressed in clear and unequivocal terms and to the extent that no other meaning can be ascribed. Arkansas Kraft Corp. v. Boyed Sanders Construction Co., 298 Ark. 36, 764 S.W.2d 452 (1989).
The contract at issue contains the following indemnification clause:
United Systems of Arkansas, Inc. shall indemnify and hold harmless Beason & Nalley, Inc., and its personnel from and against any claims, liabilities, costs and expenses (including, without limitation, attorney’s fees and the time of Beason & Nalley, Inc.’s personnel involved) brought against, paid or incurred by Beason & Nalley, Inc. at any time and in any way arising out of or relating to Beason & Nalley, Inc.’s services under this proposal, except to the extent finally determined to have resulted from the gross negligence or willful misconduct of Beason & Nalley, Inc. personnel.
liiThe language employed in this clause is broad. However, in jurisdictions adhering to the Arkansas rule, it has frequently been held that mere general, broad, and seemingly all-inclusive language is not sufficient to impose liability for the indemni-tee’s own negligence. See, e.g., Kansas City Power & Light Co. v. Federal Construction Corp., 351 S.W.2d 741 (Mo.1961) (citing numerous cases to that effect). Given the requirement of unmistakable terms, and the absence of any language in the present contract specifically focusing attention on the indemnitor’s assumption of liability for the indemnitee’s own negligence, we hold that this clause does not provide in the requisite “unmistakable terms” that United Systems agreed to indemnify Beason & Nalley for Beason & Nalley’s own negligence. For much the same reason, we hold that this clause cannot reasonably be construed as a bar to an action brought by either party for breach of the contract itself.
Actions of Keith Reed as an Intervening Cause
Beason & Nalley argued below that United Systems had admitted in its pleadings that the actions of United Systems officer Keith Reed, an in-house accountant for United Systems, were the sole proximate cause for Beason & Nal-ley’s errors. However, a fair reading of the assertions made by United Systems in the pleadings reveals no admission that Reed’s actions were the sole proximate cause of the errors. At most, it could be argued that allegations in a separate lawsuit raised the possibility that the actions of Keith Reed contributed to Beason & Nalley’s errors. However, under Arkansas law, the questions of causation and whether an action constituted an intervening cause are questions of fact, Pollard v. Union Pacific Railroad Co., 75 Ark.App. 75, 54 S.W.3d 559 (2001), and it is improper to | f,decide factual questions on a motion to dismiss. Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 255 S.W.3d 424 (2007).
Reversed and remanded.
WALMSLEY, GLOVER, and VAUGHT, JJ„ agree.
GLADWIN, C.J., and WHITEAKER, J., dissent. | [
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JOHN B. ROBBINS, Judge.
| iAppellant Walgreen Company appeals the award of workers’ compensation benefits to its employee Grant Goode, who filed a claim for benefits related to mid- and low-back injuries he said he sustained at work on August 11, 2006. Goode prevailed on his request as to a gradual-onset thoracic-spine injury, but he did not prevail as to any benefits for his lumbar spine. Related medical treatment, temporary total disability, a five-percent permanent-partial impairment rating, and attorney fees were awarded to him by the Administrative Law Judge. Walgreen appealed to the Workers’ Compensation Commission, | ¿which affirmed and adopted the ALJ’s decision. This appeal followed. Walgreen contends that Goode failed to establish (1) a gradual-onset thoracic injury; (2) that the surgical procedures were reasonably necessary; (3) that he was entitled to any more than nine weeks of TTD; and (4) that he was entitled to the permanent impairment rating. Walgreen essentially attacks every component of the benefits awarded to Goode. We affirm.
We review decisions of the Workers’ Compensation Commission to determine whether there is substantial evidence to support them. Rice v. Georgia Pacific Corp., 72 Ark.App. 148, 35 S.W.3d 328 (2000). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark.App. 146, 41 S.W.3d 822 (2001). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Geo Specialty Chem. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000). It is the Commission’s province to weigh the evidence and determine what is most credible. Minn. Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999); Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 (2008); Buford v. Standard Gravel Co., 68 Ark.App. 162, 5 S.W.3d 478 (1999). The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Adams v. Bemis Co., Inc., 2010 Ark. App. 859, 2010 WL 5129957; Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). The standard of review requires that we affirm if reasonable minds could reach the Commission’s decision; we do not determine whether the evidence could support a contrary finding. St. Joseph’s Mercy Med. Ctr. 3v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45; Sharp Cnty. Sheriffs Dep’t v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001).
The ALJ heard this claim in November 2010. Goode testified first. He stated that he was forty-four years old and 6' 3" tall. Goode acknowledged that when he was in high school, he suffered lumbar hernia-tions at L4-5 and L5-S1 that required surgical intervention in 1984. He admitted that he had intermittent low-back pain since that time; he said he sought chiropractic care when he had muscle or back pain after 1984.
Goode became a licensed pharmacist in 1990. He worked other jobs in his family’s businesses (a mortgage company, a manufactured home outlet, and a pest control service) as well as in pharmacies over the next several years. Goode’s pharmacy license was not current when he was hired by Walgreen on July 31, 2006. To get his license current, he was required to first complete 240 hours as a pharmacy technician. Walgreen also required that he complete fifty hours of computer training to become familiar with company practices and policies. He said he was working at a very busy Conway pharmacy to complete his training.
As a pharmacy technician, he was required to reach down to ankle level to retrieve containers for medication and to reach across a waist-high counter to place the filled medications in a bin. He performed this duty over and over, standing in one place. On Friday, August 11, 2006, Goode clocked in to begin work at 8:22 a.m. Goode said that at around 11:00-11:30 a.m., his mid-back began tightening and stiffening up with “real sharp pain.” When he sat down for computer training that afternoon, he said the pain felt like a ruptured disc in his mid-back.
| ¿Goode treated his pain at home with ibuprofen, acetaminophen, and ice packs, but the pain did not subside. He first sought medical treatment for his back from Drs. Lamey and McGehee, both chiropractors, beginning on August 29 with the hope that he could resolve his back pain manually. Thereafter, Goode took a trip he planned prior to being employed by Walgreen to the Ukraine for about two weeks, returning to work in mid-September at the Russellville pharmacy. He said he just used ice packs and over-the-counter pain relievers. He did not file a workers’ compensation claim until November 22, 2006. He said this was prompted when a manager took issue with his use of a chair in the pharmacy.
Goode first saw Dr. Ghormley, an orthopedist, in February 2007 for his mid-back complaints. A March 27, 2007 MRI of his thoracic spine revealed a small, focal central disc protrusion and small annular tear at T6-7, along with mild degenerative changes at T9-10 and T10-11. Dr. Ghormley referred him to orthopedic surgeon Dr. Saer, who he saw on August 28, 2007. Dr. Saer noted the quick onset of symptoms after his being hired; he read the MRI as showing “some desiccation and early degeneration at T6-T7 with a small central herniation.” Dr. Saer recommended non-operative care, like physical therapy and injections to treat his pain. At some point, Goode was moved to a less strenuous Walgreen pharmacy job in Salem, Arkansas.
Goode traveled to Florida in September 2007 to the Laser Spine Institute, seeking a consultation about possible laser treatment for his thoracic spine problems. After a consultation, he changed his mind about proceeding with this doctor.
Isln November 2007, Goode sought the care of a neurosurgeon in California, Dr. Chiu, who operated on his thoracic and lumbar spine on November 15, 2007. Dr. Chiu reported evidence of herniations at T5-6, T6-7, L4-5, and .L5-S1, which he believed were “post traumatic” and “a result of the work related injury dated 08/11/06.” Because conservative treatment failed, Dr. Chiu recommended “provocative thoracolumbar discograms and microdecompressive thoracolumbar discec-tomy” to treat the thoracic herniations. Dr. Chiu opined that this was a much more cost effective, less invasive treatment that would require far less recovery time than traditional spinal discectomies.
This was the first time Goode missed work due to his back problems. He received facet-joint injections to T7-8 and T8-9 on December 17, 2007. In February 2008, Goode received a nerve-blocking procedure, and in March 2008, Dr. Chiu operated again to treat recurrent T6-7 herniation by repeat discography and dis-cectomy. Dr. Chiu opined with certainty that Goode was injured at work on August 11, 2006, and that this precipitated his thoracic disc symptoms.
For each of these procedures, Goode said he was off work for about three weeks, and thereafter he would work up to twenty hours per week for his family businesses if he was able to sit. He described his work as more managerial than anything else. He drew up to $8600 per month from the family businesses as he needed, but he said this was substantially less than his full salary as a pharmacist. His tax return for 2007 showed a gross income of $175,000, the majority of which was earned at Walgreen.
IfiGoode believed he received positive results after Dr. Chiu’s treatments, and Dr. Chiu released him to work July 21, 2008. Even so, Goode did not return to work for the pharmacy and instead continued with physical therapy. He was given a five-percent permanent partial impairment rating for his mid-back procedures by Dr. Chiu in November 2008 when Goode was deemed at maximum medical improvement. Goode said that his mid-back hurts if he engages in any activity for more than approximately forty minutes, if the activity involves standing or bending.
The two chiropractors and Dr. Chiu directly related his thoracic symptoms to his work on August 11, 2006. In July 2009, Dr. Saer was asked to review the entirety of Goode’s medical records to date. Dr. Saer opined that Goode’s problems related to preexisting degenerative disc disease and the natural progression of it. Also in July 2009, Dr. Thomas, a neurosurgeon, was asked to review Goode’s medical records, and he agreed with Dr. Saer that the existence of degenerative change at multiple levels in his thoracic spine was the cause of his pain, not the work.
Dr. Lawrence, Goode’s long-time family physician, offered a letter in which he stated his belief that Goode did not have any ongoing back pain until this work event. Goode’s mother testified, corroborating her son’s testimony.
On this evidence, the ALJ rendered his opinion, in which he rejected Goode’s claim of a specific-incident thoracic injury but believed that Goode carried his burden of demonstrating a gradual-onset thoracic injury based upon his credible description of his work duties. The ALJ credited the opinions of those medical providers — Drs. McGehee 17(chiropractor) and Chiu (surgeon) — who believed that his herniations and annular tear were directly related to his work and the major cause for the need for treatment. He rejected the physicians’ opinions — Drs. Saer and Thomas — that contended Goode suffered solely fromO preexisting degenerative change in his spine and did not need surgical intervention. The ALJ also credited Goode’s mother and his family physician in their belief that Goode never had prior thoracic back problems. The ALJ found the lumbar complaints unrelated to his work because he first noticed low-back pain in mid-September 2006 and first reported it to his chiropractor in mid-October 2006, removed in time from August 2006 and after his long trip to the Ukraine.
The ALJ found that Goode was entitled to reasonable and necessary treatment of his thoracic injury, to include the surgeries performed by Dr. Chiu. Walgreen relied on the opinions of Drs. Ghormley, Thomas, and Saer who opined that only conservative care would be warranted to treat his preexisting degenerative problems. The ALJ found Dr. Chiu’s opinion carried greater weight and that Goode was entitled to the provocative thoracic diseograms and microdecompressive thoracic discecto-mies. Goode’s stated post-surgical improvement was noted as a factor in this decision.
Goode sought TTD from November 14, 2007 (when Dr. Chiu first operated) to November 7, 2008 (when Dr. Chiu finally gave him a rating and declared him at maximum medical improvement). Walgreen contested any TTD, but if it was given, Walgreen argued that he was not entitled to TTD while he worked and drew income from his family businesses, and in any event it should end on July 21, 2008 (when Dr. Chiu released Goode |8to return to work with restrictions). The ALJ found Goode entitled to TTD from November 14, 2007 to July 21, 2008 because Goode did not replace his pharmacy job but instead continued work for his family on the side as he had already done.
The ALJ awarded Goode a five-percent permanent-partial impairment rating based upon his own assessment of two-thoracic-disc-level surgical treatment as applied to the AMA Guides. He found that the major cause of the impairment was his compensable injury. Attorney fees were also awarded. Walgreen was determined to be entitled to a set off for any short-term benefits or group health-insurance benefits provided. By a 2-1 decision, the full Commission adopted the ALJ’s decision and this appeal followed.
First, Walgreen takes issue with the finding that Goode proved a compensa-ble gradual-onset thoracic injury. Walgreen contends that Goode failed to prove that his thoracic maladies were the major cause for the need for treatment and failed to prove a causal connection between his work and the thoracic problems. It focuses on these facts: (1) that Goode had worked for Walgreen only eleven days before the alleged injury occurred; (2) that Goode had a history of major back problems dating back to 1984; and (3) that two physicians attributed his treatment to preexisting degenerative disc disease. These are relevant facts, but the ALJ specifically accepted the opinions of his chiropractors and Dr. Chiu over Drs. Thomas and Saer. The ALJ noted the existence of degenerative changes but found the primary cause to be a traumatic work-based injury; the ALJ was aware of the 1984 lumbar problems and |9rejected compensation for those problems. The ALJ deemed Goode to be a credible witness, in contrast to Walgreen’s argument that he is not. This claim was driven by credibility of witnesses and the weight to be afforded to testimony and medical evidence, a function left solely to the Commission. Whitson v. J.B. Hunt Transp., Inc., 2011 Ark. App. 336, 2011 WL 1707626. We affirm the finding of a compensable thoracic injury.
Walgreen next attacks the award of medical benefits, specifically the surgical procedures performed by Dr. Chiu, as not reasonable or necessary for the thoracic injury. What constitutes reasonable and necessary medical treatment is a question of fact for the Commission to resolve. Ark.Code Ann. § 11-9-508 (Repl. 2002); Foster v. Kann Enters., 2009 Ark. App. 746, 350 S.W.3d 796. Walgreen asserts that only Dr. Chiu recommended these “risky” procedures, positing the other physicians’ opinions in contrast to his. But again, the weight and probative value of medical opinions is a function left to the Commission, not our court on appeal. Id. Substantial evidence exists to support the award of Dr. Chiu’s treatment as reasonable and necessary for the thoracic injury.
Walgreen also argues that no TTD was warranted, and even if warranted after the surgical procedures, it would be limited to only those weeks between his first surgical procedure in November 2007 and July 21, 2008, when he did not earn income from his family businesses. We disagree.
To be entitled to TTD, a claimant must prove that he remains within his healing period and suffers a total incapacity to earn wages. RPC, Inc. v. Hargues, 2011 Ark. App. 264, 2011 WL 1319384. “Disability” means incapacity because of the compensable injury to earn, in the same or any |10other employment, the wages that the employee was receiving at the time of the compensable injury. Ark. Code Ann. § 11-9-102(8) (Repl.2002). For purposes of defining disability, “any other employment” means any other employment in lieu of the one in which the employee was injured. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark.App. 167, 72 S.W.3d 889 (2002)(citing Stevens v. Mountain Home Sch. Dist., 41 Ark.App. 201, 850 S.W.2d 335 (1993)). When there is tandem employment, the other job is not “any other employment” undertaken in lieu of the employment in which the worker was injured. See id. Section 11-9-102(8) has not been revised by our legislature since our interpretation in the Stevens and Wal-Mart opinions; it and our opinions remain good law. In this claim, the evidence was that Goode supplemented his income by intermittent work with his family’s businesses, as he had done for years. Thus, the ALJ’s finding, that he was entitled to TTD while he remained in his healing period and was unable to earn his pharmacist wages in other employment, is supported by substantial evidence.
Lastly, Walgreen argues that the ALJ’s decision to award Goode a five-percent permanent-partial disability rating is not supported by substantial evidence. It argues specifically that (1) the rating stems from Goode’s preexisting degenerative disc disease and the “risky, unreasonable, unnecessary, and questionable surgical procedures on his thoracic spine,” and (2) Goode cannot satisfy the “major cause” requirement. We disagree.
The existence and extent of physical impairment must be supported by objective and measurable physical or mental findings. Ark.Code Ann. § 11 — 9—704(c)(1)(B) (Repl.2002). Permanent benefits shall be awarded only upon a determination that the compensable |ninjury was the “major cause” of the disability or impairment. ArkCode Ann. § ll-9-102(4)(F)(ii)(a) (Repl.2002). “Major cause” means more than fifty percent of the cause, which the claimant must establish by a preponderance of the evidence. Ark.Code Ann. § ll-9-102(14)(A) (Repl.2002); see also Yellow Transp., Inc. v. Bennett, 2009 Ark. App. 424, 2009 WL 1478007.
Here, the ALJ relied on Dr. Chiu’s November 7, 2008 report for the objective findings to support a rating. Therein, Dr. Chiu noted the surgical interventions on his thoracic spine. The ALJ referenced the AMA Guides himself, assigning a five-percent rating due to those two surgical treatments in the thoracic spine. The ALJ attributed the major cause of the rating to the compensable thoracic injury. Undoubtedly, there is substantial evidence to support objective findings correlating to a five-percent permanent-impairment rating for Goode’s thoracic spine. Causation is a question of fact, and the evidence supported thoracic herniations that required decompression. We affirm the ALJ on this finding.
After viewing the evidence and all inferences in the light most favorable to the Commission, which affirmed and adopted the ALJ’s findings, we hold that the decision is supported by substantial evidence.
Affirmed.
WYNNE and ABRAMSON, JJ., agree.
. The insurance carriers, Zurich American Insurance Company and Sedgwick Claims Management Services, Inc., are also appellants of record. For clarity, we will refer to only the insured employer, Walgreen, as the appellant in this opinion.
. Goode was found to have failed to notify his employer of the work injury until November 22, 2006, so the employer’s liability for medical treatment did not begin until that date. Goode does not appeal that finding.
. Goode did not prevail on his alternative basis to award benefits — that being a specific-incident injury to his thoracic spine. For this reason, Walgreen’s arguments on that subject are immaterial. | [
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DAVID M. GLOVER, Judge.
|, Jesse Hoodenpyle was convicted by a jury of first-degree battery for “knowingly, without legal justification, causing] serious physical injury to a person he or she knows to be twelve (12) years of age or younger,” ArkCode Ann. § 5-13-201(a)(7) (Supp.2011). The victim was his two-month-old daughter, Taylor. He was sentenced to five years in the Arkansas Department of Correction. On appeal, Hoo-denpyle argues that the trial court erred (1) in denying his motion for directed verdict because the State failed to prove that he knowingly caused physical injury to Taylor; (2) in allowing Taylor to be used as a demonstrative exhibit; (3) in denying his proffered jury instruction on a lesser-included offense; and (4) in denying defense counsel the ability to argue for an alternative sentence of probation or a suspended imposition of sentence. We affirm the conviction.
|2This is the second time this case has been before this court. We remanded the case to the trial court to settle the record because, while Hoodenpyle was originally charged with a Class Y felony, he was convicted of a Class B felony; however, the judgment and commitment order reflected that Hoodenpyle was convicted of the Class Y felony instead of the Class B felony. Hoodenpyle v. State, 2013 Ark. App. 114, 2013 WL 625747. This error has now been corrected, and this case is before us once again.
At trial, there was extensive testimony offered by the State. On March 11, 2010, two-month-old Taylor was admitted to Arkansas Children’s Hospital (Children’s) with possible head trauma. Dr. Karen Farst, a pediatrician at Children’s (whose primary focus is children at risk and pediatric-emergency medicine), testified that she was asked to consult with the pediatric-intensive-care team treating Taylor on March 12. Dr. Farst testified that Taylor was initially relatively stable after being transported to Children’s but was admitted to pediatric intensive care after it became clear that she was having seizure activity that required closer monitoring. Dr. Farst testified that she reviewed the CAT scan, which indicated that Taylor had cerebral edema (swelling of the brain tissue); sub-dural hematomas (bleeding on the surface of the brain and between the two lobes of the brain); and areas of the brain that had direct injury to them. She stated that there was no medical reason that would account for Taylor’s condition.
Dr. Farst was present when an ophthalmologist performed an examination of Taylor’s eyes, which revealed retinal hemorrhaging and significant and extensive bleeding in the back of both of Taylor’s eyes. Dr. Farst testified that Taylor’s retinal hemorrhages 13went all the way to the edges; that there were too many to count; that the blood in her eye chamber made it difficult to even arrive at an accurate hemorrhage count; and that the pattern of Taylor’s hemorrhages was seen in children with mild to moderate head trauma.
According to Dr. Farst, she met with Hoodenpyle and his wife, Brittany, reviewed the history, and explained to them that her findings did not match the history. Dr. Farst testified that Hoodenpyle explained to her that Taylor had a fit after Brittany left for work on March 10; that he fed her and she calmed down; and that she slept until Brittany returned around 11 p.m. Brittany told Dr. Farst that Taylor “did not seem right” that night; that Taylor was more fussy and irritable; that she had a shrill, abnormal cry; that she got worse during the night; and that she called the doctor that night and took Taylor in the next morning. Dr. Farst testified that she told Taylor’s parents that the symptoms were very consistent with a child who has suffered a head injury and that the symptoms were progressively getting worse as the brain began to swell. Dr. Farst said that after she relayed that information and told them there was a concern someone had injured Taylor, Hoo-denpyle became upset and offered the explanation that he had dropped Taylor onto a mattress on the floor while trying to retrieve her dropped bottle; that it was an accident; and that he had not said anything because he did not think that she was injured. When she told Hoodenpyle that a fall to a hard surface from shoulder height would not have caused the degree of Taylor’s trauma and that a report would be made to DHS, Dr. Farst stated that he became more upset and said that he had “freaked out” because Taylor would not 14 stop crying; that he had shaken her and she went to sleep; but that it was “not that shaken baby thing.”
Dr. Farst described Taylor’s injuries as global instead of just one area of injury, with evidence of injury in multiple parts of the brain. She said that a few months after the injury, a follow-up scan indicated a significant area of permanent brain damage, that an area of Taylor’s brain was “basically dead.” She likened Taylor’s retinal hemorrhages to the most severe cases of head trauma that she sees — retinal hemorrhages of that type were commonly seen in children who did not survive their injuries. It was her opinion that Taylor’s retinal hemorrhaging was caused by rotational forces.
On cross-examination, Dr. Farst explained that children’s injuries due to head trauma are a relatively new diagnosis, having been discussed since the 1970s. She stated that she is involved in trying to teach people that shaking babies can cause head trauma, and it is important to educate the public about that in an ongoing effort to prevent child abuse. She acknowledged that head trauma in children can be caused both intentionally and by accident or out of ignorance.
Brittany, Hoodenpyle’s wife, testified that when she returned home on the evening of March 10, Hoodenpyle did not mention that he had dropped Taylor or that he had shaken her. She said that Taylor was fussy and would not eat, and as the night progressed, she got worse. She said that when she asked Hoodenpyle if anything had happened, he acted like everything was normal, and he continued to deny that anything had happened |Bwhen they arrived at Children’s. However, when Dr. Farst told them that Taylor’s injuries were consistent with someone doing something to her, Brittany stated that Hoodenpyle “broke down” and said that he had dropped Taylor on the mattress and that she had rolled to the floor. Brittany then stated that she left the room after Dr. Farst said that such a fall would not explain Taylor’s injuries, and Hoodenpyle admitted that he had shaken Taylor. Brittany testified that she was initially told Taylor would probably not survive, and although doctors told her that Taylor would not walk, crawl, stand, or talk because of the brain damage, she was now speaking, crawling, and pulling up.
Dr. Patrick Casey, a developmental pediatrician, testified that he saw Taylor in Children’s growth and developmental clinic. He said that the first time he saw her, she was twelve months old but was functioning at the level of a six-month old. Six months later, he noted that seizure problems had activated, and there were concerns about her eyesight and behavioral problems. He stated that his latest exam revealed that the seizure problem was more under control, although she was having difficulties with swallowing and chewing, and that while she was twenty-three months old, she was functioning at about a ten-month-old level. It was his opinion that, intellectually, she would probably progress to the seven-to-ten-year-old range.
Arkansas State Police Special Agent Joseph Pickett testified that he interviewed Hoodenpyle at Children’s. The State introduced a transcript of that interview as an exhibit. In that interview, Hoodenpyle first said that he was trying to feed Taylor, that the 1 (¡bottle slid out of her mouth, and that she “flopped” out of his hands, hit the bed, and bounced onto the floor. He said that she cried and tensed up, and he began to panic. He stated that there was a time “when her eyes made her not look like my daughter.” He admitted that he shook Taylor and told her to “stop it.” He said that he thought that there must be something wrong from the fall, that she would not calm down, and that he began to panic and shook her a little bit; however, he said that it was not like “the shaken baby syndrome.” Twice in his statement Hooden-pyle admitted that he had shaken Taylor, and on a scale of one to ten, he “probably shook her a six or seven.” He told Trooper Pickett that after he shook her, Taylor began to calm down; that she went to sleep; that he put her in her swing; and that when his wife arrived home, Taylor would not eat for her and would instead spit up. He said that when Brittany asked him what was wrong, he did not want to tell her that he had dropped Taylor; he thought it might be connected to what happened earlier, and he was afraid to say anything. He said that by the time they took Taylor to the hospital, he thought about telling Brittany that he had dropped Taylor, but he was just hoping that everything would “come out okay.” He only told someone he had shaken Taylor when he learned that she had head trauma, but he said that when he shook her, although it was like anger, he was not angry to the point of saying “shut up.” He testified that when he was trying to get Taylor to “come to,” there was not a thought in his head that it would ever harm her and that people who shake babies are “psycho.”
|7The radiologist testified about Taylor’s different CAT scans. She said that Taylor’s head injuries were extensive, with both brain bleeding and brain swelling.
The State also requested that Taylor Hoodenpyle be introduced to the jury as an exhibit. Hoodenpyle’s counsel objected on the basis that Taylor had never been disclosed as a potential witness; that it was never anticipated that Taylor would be in front of the jury; that the State had failed to disclose this in discovery; that there was no way to prepare for it; and that it was highly prejudicial. The State denied that she was a witness. The trial court stated that it recalled the State talking about its intention to have the mother bring Taylor in an earlier motion conference, and the defense could not consider it a surprise when it had been mentioned earlier. The defense argued that Taylor was not a competent witness, and it had no way to cross-examine her. The trial court ruled that she was a demonstrative exhibit because she could not talk and would not be asked questions.
After Taylor was introduced to the jury, the State rested and the defense moved for a directed verdict. In that motion, defense counsel argued that the State had to prove that Jesse Hoodenpyle “knowingly caused serious physical injury to a person under the age of four.... Arkansas Code Annotated section 5-22-202 defines knowing as a person being aware that it is practically certain that his or her conduct would cause such a result.” Counsel then argued that the State “presented no evidence that Jesse knew his conduct would cause the result of a serious physical injury.” The motion was denied.
|RIn his defense, Hoodenpyle called Dr. Barbara Lang, the executive director of the nursing program at the University of Arkansas, Fort Smith School of Nursing, who testified that Hoodenpyle entered the practical nursing program in the fall of 2009 and completed one and a half semesters. She said that Hoodenpyle did not receive any specialized training in pediatrics while he was enrolled in the nursing program.
Gary Grisham testified that he was Hoo-denpyle’s associate pastor and Sunday School teacher. He said that he had seen Hoodenpyle interact with his children and that nothing about that interaction caused him concern.
The defense rested and renewed its motion for directed verdict, again specifying that the State was required to prove “that Jesse knowingly caused serious physical injury to a person under the age of four, under circumstances manifesting extreme indifference to the value of human life.” Again, defense counsel argued that the State failed to present any evidence that Hoodenpyle knew that his conduct would cause the physical injuries Taylor suffered. The renewal motion was denied.
Denial of Directed Verdict
Hoodenpyle’s first argument is that the trial court erred in denying his motion for directed verdict because the State failed to prove that he “knowingly” caused serious physical injury to Taylor. A motion for directed verdict is a challenge to the sufficiency of the evidence. Simmons v. State, 89 Ark.App. 34, 199 S.W.3d 711 (2004). To determine if evidence is sufficient, there must be substantial evidence, direct or circumstantial, to | {¡support the verdict. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other with reasonable certainly, without speculation or conjecture. Mayo v. State, 70 Ark.App. 453, 20 S.W.3d 419 (2000). 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 conviction. Simmons, supra.
A person acts “knowingly” with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist, and a person acts “knowingly” with respect to a result of his conduct when he is aware that it is practically certain that the conduct will cause the result. Ark.Code Ann. § 5-2-202(2) (Repl.2006). The element of criminal intent can seldom be proved by direct evidence and must be inferred from the facts and circumstances of the crime. Hicks v. State, 2012 Ark. App. 667, 2012 WL 5949103. The fact-finder need not lay aside its common sense in evaluating the ordinary affairs of life and may consider and give weight to any false, improbable, and contradictory statements made by the defendant to explain suspicious circumstances when determining criminal knowledge and intent. Id. Intent can be inferred from the nature and extent of injuries. Harshaw v. State, 348 Ark. 62, 71 S.W.3d 548 (2002).
Here, Hoodenpyle points to the fact that Dr. Farst testified that preventative efforts are being made by hospitals to educate people about injuries inflicted on babies by shaking | mthem. Dr. Farst did agree that the type of injuries suffered by Taylor could be inflicted either intentionally or by accident and out of ignorance.
While Hoodenpyle stated in his interview with Agent Pickett that he did not mean to harm Taylor and that he did not shake her out of anger like “shaken baby syndrome,” he also admitted in that interview that on a scale of one to ten, he shook her “probably six, seven.” The medical evidence indicated that there was severe trauma that did not match the information initially given at admission. Tests revealed that Taylor had cerebral edema, subdural hematomas on both sides of the surface of her brain as well as between the two layers of her brain, and significant permanent brain damage; additionally, the retinal hemorrhaging was one of the most severe cases of head trauma that Dr. Farst had seen. Dr. Farst testified that there was no medical reason to explain the significant trauma other than an intentional or abusive injury.
Hoodenpyle attempts to deflect any culpability for knowingly injuring Taylor by stating that he was not asked specifically the history of how the injury occurred until they were at Children’s and that he did not know his actions could cause the severity of the injuries Taylor sustained until confronted by Dr. Farst. However, he first told Dr. Farst that he had dropped Taylor, not that he had shaken her; it was not until after Dr. Farst told him that a fall would not produce such extensive injuries that Hoodenpyle admitted that he had shaken Taylor. It was clear that Hooden-pyle knew the night that he shook Taylor that something was very wrong; yet he said nothing that night and continued to say nothing |1Tuntil directly confronted. While he claims that he did not knowingly harm his daughter, medical evidence supports a different finding, and it is apparent that the jury believed that Hoodenpyle knowingly caused Taylor’s injuries.
Taylor Hoodenpyle as Demonstrative Exhibit
Hoodenpyle next argues that the trial court erred in allowing Taylor as a demonstrative exhibit because it was more prejudicial than probative to any relative element the State was required to prove and that Taylor had not been properly disclosed as a potential exhibit. We disagree.
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 be without the evidence. Ark. R. Evid. 401 (2012). Relevancy of evidence under this rule is a matter of discretion for the trial court, whose determination is entitled to great deference. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). Determinations regarding the use of demonstrative evidence are left to the discretion of the trial court and decisions about such are reversed only for an abuse of that discretion. Id.
Hoodenpyle argues that no relevant element of the case was proved by presenting Taylor as demonstrative evidence. However, as the State points out, Hoodenpyle challenged Taylor’s physician regarding the extent of Taylor’s developmental disabilities as a result of her injuries. The jury was therefore entitled to see Taylor and draw its own | ^conclusions about her physical challenges. Her condition is not unduly prejudicial, as Hooden-pyle’s actions caused her condition in the first place.
With regard to Hoodenpyle’s argument that Taylor was not properly disclosed pursuant to pretrial discovery procedures, the burden is on him to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996). Taylor’s injuries and resulting problems had been discussed and presented to the jury through medical testimony, and Hoodenpyle was obviously aware of her appearance and limitations. Hooden-pyle has failed to explain how the presentation of Taylor to the jury constituted surprise evidence that he could have rebutted had he been given notice of the State’s use of her as a demonstrative exhibit.
Denial of Instruction for Lesser-included Offense
Hoodenpyle next argues that the trial court erred in not allowing a jury instruction on battery in the third degree as a lesser-included offense. Hoodenpyle’s proffered jury instruction was that he “recklessly caused physical injury to Taylor Hoodenpyle,” one of the definitions of third-degree battery. Ark.Code Ann. § 5-13 — 203(a)(2) (Repl.2006).
An instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence; however, a trial court’s decision not to give an instruction on a lesser-included offense will be affirmed if there is no rational basis for doing so, and that decision will not be reversed absent an abuse of discretion. Ratterree v. State, 2012 Ark. App. 701, 2012 WL 6200294. Here, it is undisputed that Taylor’s injuries were serious and life-threatening; there was no basis to give an instruction on simple physical injury.
Denial of Ability to Argue Alternative Sentence
Hoodenpyle’s final argument is that the trial court erred in denying his defense counsel the ability to argue for an alternative sentence of probation or a suspended imposition of sentence during the sentencing phase. The decision to allow alternative sentencing is reviewed for an abuse of discretion. Benjamin v. State, 102 Ark.App. 309, 314-15, 285 S.W.3d 264, 268 (2008). This standard of review is a high threshold, and it requires that a trial court act improvidently, thoughtlessly, or without due consideration. Id. Arkansas Code Annotated section 16-97-101(4) (Repl.2006) provides:
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.
In this case, the trial court held that it would not allow the defense to use the words probation, parole, or suspended sentence; however, it held that defense counsel could ask for a fine. The trial court held that if the State objected to alternative sentencing, it would not allow defense counsel to argue that because the State would have to agree to a suspended sentence, and it was not a form of sentence that could be had after a conviction in front of a jury. Nevertheless, the trial court did allow defense counsel to tell the jury that if they had a recommendation they could write it on the jury form, and defense counsel was allowed to argue to the jury that it should come up with an alternative 114sentence that did not require imprisonment. Defense counsel specifical ly argued to the jury during closing argument in the sentencing phase that sending Hoodenpyle to the penitentiary did no one any good; that the jury had the option of alternative sentences; and that he was begging the jury to brainstorm and to come up with something other than sending Hoodenpyle to a “dark, dangerous place.” Defense counsel further implored the jury to think outside of the box and to come up with something other than sending Hoodenpyle to the penitentiary. We find no abuse of discretion because Hoo-denpyle’s counsel was, in fact, allowed to argue to the jury that it recommend an alternative sentence not involving prison time.
Affirmed.
GRUBER and VAUGHT, JJ., agree. | [
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